Upcoming Events
LatinX Heritage Month Program. Please mark your calendars and plan to join your fellow FJA members on October 10, 2023, at 4:00 p.m. EST/3:00 p.m. CST/2:00 p.m. MST/1:00 p.m. PST for a very special Hispanic Heritage Month program. Hon. Esther Salas of the District Court for the District of New Jersey and Hon. Marina Garcia Marmolejo of the District Court for the Southern District of Texas will have a frank and open discussion of race, gender, and the bench, including the challenges diverse judges have faced and ideas for a positive path forward. You won’t want to miss this! (Closer to the dates of these programs, the FJA will send more detailed announcements and instructions for how to join the programs).
“Thirst for Knowledge Thursdays” Programs. The next installment of ‘Thirst for Knowledge Thursdays’ is scheduled for Thursday, October 19, 2023, at 7:30 p.m. EDT/6:30 p.m. CST/5:30 p.m. MST/4:30 p.m. PST. Dr. Diana Uchiyama (J.D., Ph.D.), the executive director of the Illinois Lawyers Assistance Program, will discuss best practices for judges in communicating and interacting with persons struggling with emotional and mental issues. Dr. Uchiyama is a former Assistant Public Defender, drug court coordinator, staff psychologist, and supervisor of domestic violence intervention and substance abuse programs. Her presentation promises to be a practical guide to techniques members can use (or avoid) in oral and written interactions with litigants.
The Appellate Judges Education Institute (AJEI) Summit will be held on November 2-5, 2023, in Washington, DC. FJA President J. Michelle Childs (also chairperson of the program committee) will interview Supreme Court Justice Brett Kavanaugh and Solicitor General Elizabeth Prelogar, as well as serve on a panel. Other FJA members serving as speakers/panelists include Ret. Judge Thomas I. Vanaskie (3rd Cir.); Toby J. Heytens (4th Cir.); Jennifer Choe-Groves (Court of International Trade); Amy St. Eve (7th Cir.); James C. Ho (5th Cir.); John B. Owens (9th Cir.); Al Diaz (4th Cir.); and M. Margaret McKeown (9th Cir.)
The Federal Judicial Center (FJC) will pay the registration fees and certain travel costs for a limited number of FJA appellate judges who wish to attend the AJEI. You may register for the AJEI Summit on the National Judicial College website. When you get to the Payment Method section, please select “Pay by Check.” FJC will pay the registration fee directly. In the “Notes” field, please enter “FJC.” For further questions, you may contact Brenda Baldwin-White, Senior Judicial Education Attorney, at the FJC, at [email protected]; 202-215-1158.
Committee Reports:
By-Laws: Chair, Patty Shwartz
The FJA Board of Directors are the representatives of our members. Directors field questions from members, serve on committees, and address issues impacting the FJA, ranging from judicial security and independence to civics education and the rule of law.
Each circuit has between one and four directors. Each director serves a three-year term, and current directors serving their first term are eligible for reelection to a consecutive second term. Elections for members of the Board of Directors will begin or are underway in the First, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits and will be completed by December. The circuit directors in those circuits holding elections have or will soon announce that nominations are being solicited. Elections will take place either by electronic ballot or at your circuit conference, depending on your circuit’s practice.
If you have any questions about the nominations or elections process, please contact FJA Secretary Patty Shwartz, [email protected]
Civics and Service: Chair, Robin Rosenbaum
2) The Civics & Service Committee will be holding the first two of its Clerkship Chats in the fall. This program presents Zoom panels of three federal judges and a moderator to students at law schools that are outside the top twenty, or so, law schools. The object is to explain what a federal clerkship entails and how to apply for a clerkship to well-qualified students from schools that may not traditionally emphasize federal clerkships. In October, we will be holding Clerkship Chats for Texas A&M Law School and Arizona State University Law School. We plan to have two more Clerkship Chats later in the school year. We thank the judges who’ve agreed to participate in the panels and to serve as moderators for these events.
3) The Civics & Service Committee continues to gratefully accept submissions for the FJA’s Speech Bank, which members can use as a starting place when they need to give speeches. The Speech Bank has speeches covering a variety of topics. The Speech Bank can be found on the FJA website. If you wish to have one of your speeches archived there, please send them to the communications chair, Mary Scriven, at [email protected].
Communications: Chair, Mary S. Scriven
The Communications Committee is continually encouraging members to access the FJA website to obtain current information regarding the FJA. We are highlighting new members throughout the year. Our most recent highlight is of Judge Calabretta: it is set forth at the end of the newsletter and will be archived on the website as well. If you would like to recommend a new member to be highlighted, please submit their name to the Communications Committee Chair, Mary Scriven, or any of the members of the committee. So far, we have highlighted Judge Nancy Abudu, a circuit judge from the 11th Circuit, and Judge Daniel Calabretta, a district judge from the 9th Circuit. We are looking for others from various circuits. Finally, we would love to recognize our members for any awards they have received in their local communities or their work on the national level. If you would like to submit yours or someone else’s please do so, and we will get them added to the website. If there is an accompanying photo, we would welcome the opportunity to share it with our membership.
Education: Chairs, Pam Pepper and Leo Gordon
In August, the Education Committee presented the first ‘Thirst for Knowledge Thursdays’ program, ‘Writers Judging Judges.’ Professor Julie Empric of Eckerd College led a discussion of how judges are portrayed in fiction and how those portrayals might impact public perception. (Turns out, we haven’t always been portrayed in the most favorable light) All members can access the recording of this session until September 30, 2023. We hope that you can join us for the second installment of the series on Thursday, October 19, 2023, at 7:30 p.m. EDT/6:30 p.m. CST/5:30 p.m. MST/4:30 p.m. PST.
You can access the recording of the first series using the link and passcode set forth below:
Passcode: y396+a@U
Ethics: Chair, Al Diaz
Judges sometimes receive requests from law firms for which their law clerks will work after the clerkships end. These firms ask, for the purpose of screening for conflicts of interest, the clerk or judge to identify the matters that the clerk worked on or that passed through chambers during the clerkship period. In this section, the Ethics Committee strives to address whether a judge should provide law firms and clerks with a list of matters the clerk worked on while in chambers, as well as whether a judge should provide a list of all matters that were pending before the judge or the court during the clerk's tenure:
Matters the Clerk Worked on While in Chambers. Judges and clerks should generally decline to provide law firms with lists of matters the clerks worked on while in chambers as this could disclose confidential information. Canon 3D of the Code of Conduct for Judicial Employees mandates that a judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties. This provision binds clerks even after their clerkships end and ensures that present and former law clerks will not later use their privileged access to the judiciary for personal gain. Just as law clerks identify conflicts to their judges instead of being required to submit a list of their former employer's matters or cases that may include confidential information, former clerks who are employed by law firms should be trusted to recognize those cases whose very pendency is confidential but from which they should be isolated due to clerkship-related conflicts. This process can occur without resorting to a case list divulging confidential information in violation of the continuing confidentiality obligation under Canon 3D.
Instead, the concerns underlying the requests can be effectively addressed through less intrusive means:
1) Judges may suggest to clerks that they maintain a list of cases in which they have participated to facilitate the identification of conflicts of interest during their future employment.
2) Law firms can also provide to the former clerk, who joins the firm, a list of cases whose pendency before a specific judge or court is a matter of public record and ask the clerk to identify those cases where there is a conflict.
3) At the start of the former clerk's employment and for whatever time-period deemed appropriate, firms can isolate former clerks from all cases pending before a particular judge or court as identified from the public docket.
Matters Pending Before the Judge or the Court During the Clerk's Tenure. Judges may decide on an individual basis to provide such lists to clerks of all cases assigned to the judge's court during the relevant time, or in the case of district, bankruptcy, or magistrate judges, all cases assigned to that judge. Although the Code does not preclude this, keep in mind that such disclosure could still create confidentiality concerns and other administrative burdens, and that, ultimately, the judges are under no obligation to provide such lists.
One way to avoid future conflicts would be for the court to provide to the clerk, upon departure, a list disclosing only publicly available information about pending cases.
The Codes of Conduct Committee recently developed a template letter (see below) that judges can provide to their departing clerks if they are asked for that type of information:
Dear [Name of Law Clerk],
You have asked me if you may provide your employer with a list of the matters you worked on during your clerkship year. You may not provide such a list, given the policies found in the Code of Conduct for Judicial Employees, specifically Canons 3D and 3F, and Advisory Opinion No. 109. The Code places the onus on you to identify which matters you should recuse from.
You may wish to provide your employer with the following statement:
“Judge [Judge’s Name] has advised me that I may not provide you with the information you requested regarding the matters that I worked on during my clerkship. This is consistent with the Code of Conduct for Judicial Employees and Advisory Opinion No. 109. I have attached the Advisory Opinion in hopes that it will aid your understanding of the situation.”
Warmest Regards,
[Judge’s Name]
International Rule of Law: Chair, Cynthia Rufe
Next week, six FJA delegates will attend the annual meeting of the International Association of Judges in Taipei, Taiwan where we will represent our members on common issues concerning civil and criminal law and procedures, as well as administrative approaches to current matters. We will also discuss Judicial Independence, judicial security, and rule of law. Past FJA President Margaret M. McKeown will present remarks on the latter topics from her recent article entitled “The Future of Democracy and the Rule of Law” (link provided). Past FJA President Allyson Duncan, who continues to serve the IAJ in the capacity of Vice-President, will also give a presentation to the general assembly. Our remaining delegates will each participate in the four study groups and make presentations based on reports we have written in response to questionnaires. Our reports are filed and posted on the IAJ
Judicial Security: Chair, Esther Salas
Since the enactment of the Daniel Anderl, Judicial Security and Privacy Act on December 23, 2022, the Judiciary Security Division (JSD) has expanded its services to identify, remove, and monitor online personally identifiable information (PII) from a variety of sources such as data broker websites, the open web, state and local online public records, social media platforms, and the dark web as part of the continued development of the Administrative Office (AO)’s new authority to remove judges’ and immediate family members’ personal information from online sources. The AO has approximately 62% of our active judges enrolled in the DeleteMe service and has removed over 2 million pieces of PII from the internet. JSD also provides custom research services to assist judges with the identification and removal of personal information from state and local public online records. The program is in the process of expanding its services to include immediate family members along with retired judges. As part of the overall JSD’s Vulnerability Management Program, the Division has increased staff, providing 16 regional physical security and emergency preparedness liaisons to facilitate solutions to physical security and emergency preparedness at the Circuit and District levels. The liaisons are co-located in the courts to allow for ease of access and direct engagement with court personnel. In addition to the AO’s efforts, the U.S. Marshals Service has expanded its threat intelligence and open-source intelligence capabilities, providing expanded headquarters, as well as Circuit, and District resources for online threat monitoring and threat investigations. The AO is also working with the Department of Justice to implement the state-level grant program intended for the development and support of state statutes that will allow for redaction of judges' information from public records to reduce their online exposure and overall vulnerability to threat actors. Lastly, the AO has coordinated with the General Services Administration and received approval for 11 facilities for courthouse hardening projects. 55 additional sites are being assessed for possible projects. These projects, which protect against breaches of courthouse exteriors at the ground level, are made possible through $127.5 million in security funding approved by Congress in the last two years.
Here are a few tips on how to be an active participant in your security, and decrease an attacker’s chances by increasing your own:
1) Be actively engaged. Be aware of your environment and of baseline changes in your environment of what “feels off” or “does not fit.” Report anything suspicious to law enforcement.
2) Practice de-escalation techniques. Mitigate an emerging threat in your courtroom by engaging in the following:
- Actively listen, let the parties talk, avoid being the cause of someone losing their dignity, take a recess during times of heightened tension, coordinate with security, create a safe word that allows you and your staff to covertly warn of potential trouble, establish and practice an escape plan, place opposing parties separately in the gallery and let the parties leave at separate times, and do not hesitate to use the duress button.
3) Protect your digital privacy and data. Opt out and scrub the internet using open-source platforms. Advise your loved ones to refrain from sharing sensitive and private information on social media.
4) Have an honest conversation. Communicate with your loved ones and law enforcement about the risk you face, and develop a contingency plan of “what ifs,” including establishing alternative routes and routines.
Announcements
Advisory Committee on Civil Rules
In response to several proposals, the committee has created a subcommittee, chaired by Judge Cathy Bissoon, W.D. Pennsylvania, to address whether, due to a circuit split, any amendments should be made to Federal Rule of Civil Procedure 41(a), which pertains to voluntary dismissal of actions by plaintiffs. The Advisory Committee seeks your input. Does 41(a) create confusion or complication, in your experience? Should the committee undertake the project of amending the rule, do you have any suggestions with respect to what any such amendment should attempt to accomplish, and how it might accomplish it? The current text of the rule is:
Rule 41. Dismissal of Actions
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or,
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
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Currently, the circuits interpret the meaning of the word “action” in the rule differently. In some circuits, a plaintiff seeking to dismiss a case under this rule must dismiss her entire case—that is, all claims against all defendants. Under this interpretation of the rule, voluntary dismissal of less than the entire action may not be achievable with or without a court order. Other circuits have interpreted the scope of the rule more flexibly to permit a plaintiff either to dismiss: (a) all claims against one of multiple defendants, while allowing the claims against any other defendants to go forward or (b) one of multiple claims against a defendant.
One threshold question, on which we would appreciate your feedback, is whether this disuniformity alone should prompt a rule amendment. In this case, the circuits diverge significantly on the meaning and applicability of the rule, and the differences in interpretation have spillover effects on the application of other rules, availability of appeal, and preclusive effect of judgments.
At the same time, however, it is not clear whether, despite the different application of the rule and its effects in different circuits, there is a “real-world problem” to solve, or whether a rule amendment, with its inherent risks of unanticipated consequences, is prudent. For example, any such rule amendment inevitably would affect the panoply of rules that govern the modification of a case after it is filed, including amendments under Rule 15. Ultimately, should the committee decide to amend the rule, it will need to face a set of fundamental policy questions about how flexible the rules should be with respect to allowing parties to streamline cases prior to trial.
The original purpose of Rule 41(a), the text of which has remained essentially unchanged since the 1938 promulgation of the Federal Rules, was to shorten the time frame in which a plaintiff could dismiss unilaterally (that is, without a court order) and without prejudice. Prior to the adoption of the Federal Rules—and presently in some states—a plaintiff may voluntarily dismiss an action without prejudice when the litigation is well advanced, including at trial, and refile the case anew in another court. Rule 41(a) therefore serves to restrict the time-period in which a plaintiff may unilaterally dismiss without prejudice before the filing of an answer or motion for summary judgment. After that period, a court order is necessary to dismiss, and the judge may place conditions on that order. There does not appear to be any suggestion that the drafters of the rule considered the question that causes confusion today—perhaps understandably, given the increase in complex multiparty and multiclaim litigation since 1938. Some courts have responded to this development by permitting flexible application of the rule or by permitting parties to stipulate to dismissal of some but not all claims after a court order, while other courts have streamlined, using other rules. This diversity of approaches may serve as evidence that the rule needs to be amended, or that it is best left alone.
If you have any insights, experiences, or concerns regarding Rule 41(a), please send comments in an email detailing those issues to [email protected] no later than September 29, 2023. Unattributed responses will be compiled and made public by the Civil Rules Advisory Committee.
