Wednesday, September 21, 2011

Judicial Conference Approves Standards & Procedures for Sealing Civil Cases

At its September meeting, the Judicial Conference adopted a national policy that encourages federal courts to limit those instances in which they seal entire civil case files.

The policy emphasizes that “an entire civil case file should only be sealed when . . . sealing . . . is required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives, such as sealing discrete documents or redacting information, so that sealing an entire case file is a last resort.”

Any order sealing an entire civil case should contain findings justifying the sealing, and the seal should be lifted when the reason for sealing has ended, the policy says. The Conference also endorsed modifying the Judiciary’s Case Management/Electronic Case Files system to include a mechanism “that would remind judges to review cases under seal annually.”

In separate action, the Conference responded to inflationary pressures by increasing, effective November 1, certain miscellaneous fees for federal courts. The newly approved court fee schedule, the first inflationary increase in eight years, is expected to result in an estimated $10.5 million in additional fee revenue for fiscal year 2012. Fees in appeals, district, and bankruptcy courts are affected. The income the Judiciary receives through miscellaneous fees allows it to reduce its annual appropriations request to Congress.

The Conference also authorized an increase in the Judiciary’s electronic public access fee in response to increasing costs for maintaining and enhancing the electronic public access system. The increase in the electronic public access (EPA) fee, from $.08 to $.10 per page, is needed to continue to support and improve the Public Access to Court Electronic Records (PACER) system, and to develop and implement the next generation of the Judiciary’s Case Management/Electronic Case Filing system.

The EPA fee has not been increased since 2005. As mandated by Congress, the EPA program is funded entirely through user fees set by the Conference. Implementation of the two-cent per page increase will take a minimum of
six months.

The Conference was mindful of the impact such an increase could have on other public entities and on public users accessing the system to obtain information on a particular case. For this reason, local, state, and federal government agencies will be exempted from the increase for three years. Moreover, PACER users who do not accrue charges of more than $15 in a quarterly billing cycle would not be charged a fee. (The current exemption is $10 per quarter.) The expanded exemption means that 75 to 80 percent of all users will still pay no fees.

At its September session, the Judicial Conference also adopted a courtroom sharing policy for bankruptcy judges in new courthouse and courtroom construction. In court facilities with three or more bankruptcy judges, one courtroom will be provided for every two bankruptcy judges. In those facilities with an odd number of bankruptcy judges, the number of courtrooms allotted will remain at the next lower whole number. (The Conference in 2008 adopted a courtroom sharing policy for senior district judges in new construction, and in 2009, adopted a courtroom sharing policy for magistrate judges in new construction.)

The Conference also was briefed on the current budget situation facing the federal courts. To date, the only action by Congress on the Judiciary’s fiscal year 2012 budget is a bill approved by the House Appropriations Committee on June 23, 2011. The proposed funding levels in this bill, if enacted, would result in the loss of thousands of clerk’s office staff and probation officers and would have a significant negative impact on court operations. The Conference is hopeful that final action by the Congress will result in a more favorable budget for the Judiciary.

Monday, September 19, 2011

Homes Group Fix for Patent Jurisdiction Becomes Law

From Prof. Arthur Hellman (Pittsburgh):

Buried in the patent bill that President Obama signed into law Friday (Pub. L. No. 112-29, the “America Invents Act”) is a set of amendments to Title 28 dealing with jurisdiction in intellectual-property cases.  These amendments are known as the “Holmes Group fix” because they address issues raised by the Supreme Court’s decision in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002).

In Holmes Group, the Court held that the appellate jurisdiction of the Court of Appeals for the Federal Circuit does not encompass cases in which claims under the patent laws are raised in a responsive pleading (e.g., as a counterclaim) rather than in the plaintiff’s complaint.  The Court reached this result through interpretation of the two governing sections of the Judicial Code.  Section 1295(a)(1) has provided that the Federal Circuit shall have exclusive jurisdiction over appeals from the district courts “if the jurisdiction of [the district court] was based, in whole or in part, on section 1338 of this title.”  Section 1338(a), in turn, has vested original jurisdiction in the district courts “of any civil action arising under any Act of Congress relating to patents . . .”

The Court held that § 1338(a) must be interpreted in accordance with the “well-pleaded complaint” rule long established for § 1331 general federal-question jurisdiction cases—and of course under that rule, a counterclaim does not support “arising under” jurisdiction.  The Court’s result was criticized for contravening Congress’s intent to create a uniform body of patent law by having all patent appeals heard by the Federal Circuit (however justified the Court’s reasoning, for a seven-Justice majority, may have been as a matter of interpreting the text of the existing jurisdictional statutes).  And because the exclusive jurisdiction of federal courts in patent and copyright cases is tied to original jurisdiction, the decision also had the effect of allowing state courts to hear counterclaims under the patent and copyright laws.

The “Holmes Group fix” (contained in § 19 of Pub. L. No. 112-29), applicable to civil actions commenced on or after the date of enactment, addresses these concerns by amending two existing sections of the Judicial Code and adding one new section.

First, the new law overrules the specific holding of Holmes Group by defining the appellate jurisdiction of the Federal Circuit to include an appeal from a final decision of a district court “in any civil action arising under, or in any civil action in which a party has asserted a compulsory counterclaim under, any Act of Congress relating to patents or plant variety protection.”

Second, the second sentence of § 1338(a) is deleted and replaced with:  “No State court shall have jurisdiction over any claim for relief arising from any Act of Congress relating to patents, plant variety protection, or copyrights,” with “State” defined broadly to include the District of Columbia, Puerto Rico, and territories.

Finally, the act adds a new section (28 U.S.C. § 1454) authorizing removal of “[a] civil action in which any party asserts a claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.”

The Public Law is not yet on line, but the new statutory language can be found at pp. 48-49 of the enrolled bill:

The authoritative legislative history of the “America Invents Act” is the House Report on H.R. 1249, the bill that became Pub. L. No. 112-29.  That report has little to say about the Holmes Group fix.  It notes:  “The Act clarifies the jurisdiction of the US District Courts and stipulates that the US Court of Appeals for the Federal Circuit has jurisdiction over appeals involving compulsory patent counterclaims.  The legislative history of this provision, which we reaffirm and adopt as our own, appears in the Committee Report accompanying H.R. 2955 from the 109th Congress” in 2006.  That Committee Report, No. 109-407, can be found at this link:

The version of the “fix” enacted by Congress yesterday differs in a few respects, not worth detailing now, from the version reported by the House Judiciary Committee in 2006.

Tuesday, September 13, 2011

FIU College of Law Junior Faculty Federal Court Workshop

FIU College of Law will host the Fourth Annual Junior Faculty Federal Court Workshop on February 2-4, 2012.  The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Five senior scholars have confirmed participation this year: Susan Bandes (University of Miami), Lee Epstein (USC), Theodore Eisenberg (Cornell University), Martin Redish (Northwestern University), and Suzanna Sherry (Vanderbilt University).

This year, we are spreading the conference out over two days (meaning an extra day in Miami in February, not a bad thing). It begins with a dinner on Thursday, February 2, then panels on Friday and Saturday. Each panel will consist of 4-5 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.

The workshop is open to non-tenured and recently tenured academics who teach and write in Federal Courts, Civil Rights Litigation, and associated topics, often including Civil Procedure. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2012 are welcome. The program is also  open to scholars wanting to attend, read, and comment on papers but not present.  There is no registration fee.

The complete announcement with submission details is here:

Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida 33199
(305) 348-7482
(786) 417-2433