As Judicial Ranks Stagnate, 'Desperation' Hits The Bench

By Cara Bayles
March 19, 2019

U.S. District Judge Lawrence O'Neill has advice for any attorney or litigant unhappy with the brevity of his rulings: Complain to your senators.

The chief judge of California's Eastern District puts the same disclaimer at the top of all his rulings. Only arguments "necessary to reach the decision in this order" will be addressed, he warns, blaming a "shortage of district judges and staff."

"Judges in the Eastern District of California carry the heaviest caseloads in the nation," his rulings say. "The parties and counsel are encouraged to contact the offices of U.S. Senators [Dianne] Feinstein and [Kamala] Harris to address this court's inability to accommodate the parties and this action."

Federal judges tend to avoid politics, especially in official missives. If California's senators object, they didn't tell Law360; neither responded to comment requests. But Judge O'Neill said he's desperate. Judges in the Eastern District carry the sixth-heaviest workload in the nation. The next available civil trial date there is in 2021, he said.

Last week, the Judicial Conference of the United States recommended Congress add 73 permanent judgeships to 27 courts across the country. The request would nearly double the six-person bench of California's Eastern District by creating five additional judgeships. 

Those additions are necessary, Judge O'Neill said. He works a 14-hour day that begins at 4 a.m. He's served on the Eastern District's bench for 20 years, and when he retires next year, he won't maintain a caseload, because he's too exhausted.

By February 2020, both he and his colleague, U.S. District Judge Morrison England, will have retired. Last June, every judge in the Eastern District signed a letter to lawmakers warning without replacements, the workload there would escalate from "crisis" to "catastrophe."

"The huge stress that is being put on district judges has a consequence beyond major," Judge O'Neill told Law360.

The 87,000-square-mile Eastern District, which spans more than half the landmass of California, hasn't seen its bench grow since 1978, when it got three additional judgeships from the Omnibus Judgeship Act. That bill, creating 113 permanent judges, passed during the Carter administration. Judge O'Neill, now 66, had not yet graduated from law school.

The last time Congress passed a large-scale judgeship bill was in 1990, when 69 permanent district court positions were created. Since then, judgeships have inched up by 4 percent, while filings have increased by at least 38 percent.

In overburdened districts across the country, cases languish, judges are burned out and attorneys are starting to avoid federal court altogether. But it's unlikely much will come of this latest recommendation.

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The same partisanship that's blocked judicial nominees has effectively halted new judgeships as well, according to Russell Wheeler, a visiting fellow at the Brookings Institution and former deputy director of the Federal Judicial Center.

"It's not just that they haven't passed one in a while," he said. "They've stopped passing them."

The 'Sting' of Disparities

Last year, U.S. District Judge Jose Linares was feeling hopeful. New Jersey, where he serves as chief judge, has the fourth-heaviest caseload in the country, but he had the ear of then-White House counsel Don McGahn.

Rather than pushing for a sprawling judgeship bill, McGahn seemed receptive to a plan to add three judges to New Jersey's bench, Judge Linares told Law360.

But between the U.S. Supreme Court nominations of Justices Neil Gorsuch and Brett Kavanaugh and the government shutdown, the plan was put on hold. It "died on the vine" when McGahn stepped down in October, Judge Linares said.

"The politics have gotten in the way," the judge said. "It's affecting our litigants, and it's affecting the orderly dispensation of justice."

U.S. District Judge Jose Linares has advocated  for more New Jersey judges.

This year, the Judicial Conference recommended New Jersey get four additional judges, marking an uptick from 2017, when it requested three.

Every two years, the conference analyzes the docket in all 94 federal districts for complexity. The result is then divided by the number of judgeships allotted to the district, yielding "weighted caseloads." In New Jersey, the weighted caseload is 903, more than double the benchmark of 430 weighted cases the conference considers a manageable docket.

But not every district shoulders such a heavy load. Because the judicial roster reflects decades-old population and litigation trends, absurd disparities have arisen.

Hawaii and Delaware each have four judgeships, but when weighted for the case complexity, a Delaware judge has more than four times the workload of one in Hawaii. The Eastern District of Pennsylvania has five more judgeships than New Jersey, where there were more than three times as many new complaints filed in 2018.

"The fact we have less judges and more weighted cases than some of our brethren does sting a little more than it should," Judge Linares said. "But that's not their fault."

The reasons for the workload crises in some courts are as varied as the terrain and people who make up the districts. A proliferation of patent, multidistrict litigation and pharmaceutical cases are to blame for the uptick in New Jersey, Judge Linares said.

In Arizona, immigration proceedings and the caseload from Indian nations contribute heavily to the docket. Delaware's business-friendly tax scheme has drawn half the country's publicly traded companies to incorporate there, bringing with them a bevy of lawsuits.

And with more than 20 million residents, Florida is the third-most populous state in the country after California and Texas. It's grown by about 30 percent since 1990. That's why lawsuits in the Southern District of Florida have doubled since 1992, according to Chief U.S. District Judge K. Michael Moore.

"Florida's a growing state," he said. "There's only so many cases you can push through the pipe with the amount of hours in the day."

'We Try to Avoid Federal Court'

Intellectual property litigator Dana Herberholz of Parsons Behle & Latimer always sits down with his clients and warns them about the backlog in the District of Idaho, where two judges cover 83,000 square miles. They deal with 561 weighted cases at a time, and the Judicial Conference recommends adding a third judge to their ranks.

"They truly are understaffed and overworked. They're doing the best they can but it is very congested," he said. "It's not uncommon to wait six months or more for an order from the court."

Civil litigants are hardest hit by backlog. The Speedy Trial Act of 1974 sets deadlines for federal prosecutions, meaning criminal cases often bump civil trial and hearing dates.

Richard Watters, a personal injury attorney, said an Eastern District of California case he filed in 2016 still doesn't have a trial date.

"Quite often, we try to avoid federal court because it takes so long," he said. "And I prefer federal courts and their procedures."

Some litigants use the delay to their advantage, according to Daniel Jamison of the central California firm Dowling Aaron Inc. An out-of-state insurance company will deny a business's property damage claim, then seek a finding in federal court that it doesn't owe anything for the loss, he said.

"The insurance company is greatly advantaged by this, because the case will not move forward," he said. "In the meantime, your client goes bankrupt."

But corporate attorneys also dislike delay, said The Guardian Life Insurance Co. of America's general counsel, Eric Dinallo. He said when he updates the company's executive board, he likes being able to say cases have been resolved.

"It's not like a fine wine," he said of litigation. "You're paying the cost of counsel."

Guardian Life frequently defends against claims disputes in overwhelmed states like California, Texas and Florida, and Sean Quinn, its chief litigation counsel, admitted that sometimes long waits work to his advantage when the other side is more eager to resolve a case. But on the whole, he said, "the longer litigation goes on, the more it costs."

"There are states where if we denied a claim and litigation continues, the whole time it continues, we're accruing prejudgment interest. In Massachusetts, it's 12 percent," he said.

Judges' efforts to address delays aren't always popular. In the District of Arizona, Chief U.S. District Judge G. Murray Snow has reassigned Phoenix cases to Tucson to spread around complex civil cases filed chiefly in the state's capital.

"All the Phoenix practitioners hate it," Judge Snow tells Law360. "But if we didn't do that, we couldn't manage our caseloads at all."

Kristy Peters of Littler Mendelson PC said the practice disadvantages Phoenix-based attorneys who know their local judges. And the two-hour drive adds to litigation costs.

"It's either expense for the client or expense for the firm. You have to get down there one way or another," she said.

House of Cards

Chief U.S. District Judge Ricardo Martinez said he was just helping his friend Larry when he got 10 judges in Washington's Western District to take on 94 cases from the Eastern District of California in 2008.

From 900 miles north, the Washington judges issued orders and held hearings telephonically for their brethren in California.

"We couldn't just let them fail," Judge Martinez said. "I know they have thousands of cases to get through. It just made sense to help out in any way we could."

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It's not unusual for judges to help swamped colleagues across districts. In 2017, the Administrative Office of the U.S. Courts assigned 143 judges to 223 other jurisdictions.

But the Western District hasn't volunteered like this in years, Judge Martinez said. Four of its seven judges have gone senior and still haven't been replaced. Though President Barack Obama did float nominees, they lapsed without approval from Congress.

Confirmation rates for judicial nominees hit a record low during the final years of Obama's presidency, after Republicans gained a Senate majority in 2014. When Obama took office in 2008, there were 29 district court vacancies. When he left, there were 86, and 44 pending nominations lapsed.

President Donald Trump has appointed 53 district court judges since taking office, and 54 more await confirmation.

Three of the vacancies in Judge Martinez's district date back to 2016. He said he's lucky senior judges have maintained a caseload. Otherwise, he said, "we'd be going under."

"It's putting quite a strain on our people here," he said. "As chief judge, all you can do is shake your head."

The weighted caseload in Washington's Western District is 485, but that number is based on judgeships, not the number of sitting judges. Weighted caseload statistics don't account for vacancies, or for stopgap measures like active senior and magistrate judges.

Vacancies throughout the system, most of which are more than a year old, have exacerbated the problem created by an out-of-date bench.

In New Jersey, for example, the state's weighted caseload is 903, but that reflects the workload per 17 allocated judgeships, not per sitting judge. With five vacancies, only 12 district judges are hearing cases now — a far cry from the 21-judge bench recommended by the Judicial Conference.

Active senior judges who maintain a caseload while receiving their post-retirement pay have helped plug the hole vacancies create, as have magistrate judges, who don't require political nominations. Neither are reflected in the weighted caseload numbers, though they are considered when the Judicial Conference makes its recommendations.

But magistrate judges serve eight-year terms and can only adjudicate misdemeanor cases or civil matters when both sides agree to use them. And senior judges can go "inactive," or retire, at any time.

That means some districts stand like a house of cards, precariously built and easily toppled.

Take, for example, the Middle District of Louisiana, where weighted caseloads climbed from 338 in 2013 to 870 last year, making it the nation's fifth-busiest court as of September. The onslaught stemmed from a barrage of insurance claims after 2016 flooding in Baton Rouge, according to Chief U.S. District Judge Shelly Dick.

But the district was managing until the 2017 death of U.S. District Judge James Brady, its only senior judge. Because he was serving in his capacity as a retired judge, his work bolstering the three-person bench wasn't reflected in weighted caseload statistics.

"Judge Brady kept a full caseload," Judge Dick said. "When he died, we lost that resource. That made a significant difference."

Reaching Consensus

Last year, a familiar scene played out in the U.S. House of Representatives: A panel of federal judges urged lawmakers to add to their ranks.

Caseloads in five of the 27 districts listed in the conference's 2017 recommendations had reached "urgent levels" requiring "immediate action," former U.S. District Judge Lawrence Stengel said during testimony before a House Judiciary subcommittee. Civil litigants' ability to obtain justice at all was at risk, he said.

But as usual, nothing came of it.

The reason, according to Sen. Mike Lee, R-Utah, who sits on the Senate Judiciary Committee, is that new judgeships create new vacancies.

"People aren't interested in adding judgeships that a president of the other party can fill. There are ways around that problem, but I don't think there's a lot of trust between Republicans and Democrats on the issue," he told Law360 in an email.

Rep. Jamie Raskin, D-Md., who sits on the House Judiciary Committee, had a similar take. "It's easy to support the creation of new judgeships when your party controls the White House," he told Law360 in an interview, but compromise is harder to come by.

Bills adding dozens of judgeships to the federal bench haven't always been difficult to pass. Between 1961 and 1990, Congress passed six laws creating 394 permanent judgeships. Since 1991, Congress has created 31. The most recent bill added 12 permanent judges 16 years ago.

But lawmakers continue to try. Last year, then-Rep. Darrell Issa, R-Calif., introduced the Judiciary Reforms, Organization and Operational Modernization Act of 2018, or Judiciary Room Act, a bill to create 52 judgeships and make eight temporary positions permanent, as requested by the Judicial Conference in 2017.

The legislation, sponsored by four Republicans, proved controversial among Democrats. During a hearing in September, Rep. Jerrold Nadler, D-N.Y., said it created "52 new opportunities for the president to pack the federal courts with extremist judges."

It was voted out of the House Judiciary Committee, but only after Democrats added language delaying its implementation until after the next presidential election.

Raskin told Law360 the markup was proof lawmakers could compromise.

"It's not impossible to make some progress on the creation of new federal judgeships in a bipartisan way," he said. "It's just a question of galvanizing everyone's attention around the issue itself."

The Room Act expired on the House floor. Raskin said he knew of no plans to revive it this session. A spokesman for Rep. George Holding, R-N.C., the only Room Act co-sponsor still in office, said he had no plans to refile the bill.

Democrats' efforts to create new judgeships haven't fared better. Sen. Chris Coons, D-Del., noted in an email to Law360 that even his recent bill to shore up his home state's bankruptcy judges, who are not Article III judges, "faced resistance."

Gabe Roth of Fix the Court, which pushes for accountability in the judiciary, told Law360 his organization is working on a proposal to add new judgeships gradually and across presidential administrations — maybe five a year over the course of a decade. That would allow for "a partisan mixture."

The irony of the stalemate, Roth said, is that "this is a problem everyone agrees exists."

"I don't know what the magic formula is, but the country has grown, and the number of cases has grown," he said. "It's clear there should be a way to keep up with it."

Cara Bayles is a feature reporter for Law360. She last wrote about litigation by indigent defendants against public defenders. Follow her on Twitter. Video by Annie Pancak. Editing by Jocelyn Allison, Katherine Rautenberg and John Campbell.

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