• Clearing the Bench, Part 1
  • February 6, 2015
  • Law Firm: Alston Hunt Floyd Ing Attorneys At Law A Law Corporation - Honolulu Office
  • By the year 2017, the United States District Court for the District of Hawai`i may have two fewer judgeships. As a result of two different sets of circumstances, the District stands to lose both an Article III and a magistrate judge. This issue is not simply one of two judges retiring, but of two spots on the bench being eliminated. At a November 20, 2014 discussion with the Federal Bar Association - Hawai`i chapter, U.S. District Court Judge Susan Oki Mollway and U.S. Magistrate Judge Barry Kurren talked about this somewhat unique and difficult situation that the Aloha State is unlucky enough to find itself in.

    Hawaii’s issue regarding its Article III judgeships originates with the position that Senior Judge Helen Gillmor filled in 1994. Before Judge Gillmor took the bench, Congress had authorized three judgeships for the District. To create the fourth seat, Congress created a temporary judgeship. This type of judgeship was once common, but Congress almost never creates one today. Typically a temporary judgeship was a result of a compromise after a state’s Congressional delegation fought for a new seat on the federal bench, and in the face of opposition settled on a new position with a limited term. Congress only authorized temporary judgeships for a specific amount of time (e.g., 10 years).

    The expiration of the time has no effect on the judge appointed to the temporary judgeship, who is still appointed for life. The issue arises when the authorization for the additional seat on the federal bench expires, and then after that date, a judge assumes senior status or leaves the bench altogether. When a vacancy occurs after the expiration of a temporary judgeship, because that extra position is no longer authorized, the court will simply lose that seat, and a new judge will not be appointed to fill the vacancy.

    This is precisely the scenario threatening the District of Hawai`i. The temporary judgeship is set to expire in April 2015. The next judge in line to take senior status, Judge Mollway, does not become eligible until November 2015. In order for the District to preserve an Article III judge position, either the temporary judgeship set to expire next April needs to be extended, or one of the four active district court judges has to leave the bench before April 2015. Because none of the four judges will be eligible for senior status before Judge Mollway, unless one of them leaves the bench unexpectedly, Congress will have to extend the temporary judgeship to avoid the loss of the seat. (As an aside, if the judgeship in question is not extended, no openings on the bench are expected until 2024, when Judge Seabright becomes eligible for senior status.)

    The reauthorization of the temporary judgeship does not have to occur before it expires in April 2015. As long as there is no vacancy, the reauthorization can be retroactive. For example, if the judgeship expires in April 2015, and it is reauthorized retroactively in 2017, and Judge Mollway has not yet taken senior status, then the seat will not be lost. But if Judge Mollway assumes senior status in November 2015 and the position has not yet been reauthorized, the position is lost and cannot be easily regained.

    Judge Mollway, therefore, finds herself in an odd position. Typically judges are encouraged to take senior status when they are eligible because the senior judge still maintains a caseload, and the active seat becomes open for appointment of another judge, thereby allowing all judges to benefit from a reduced workload. Here, however, Judge Mollway may choose to wait to take senior status in hopes that the fourth judgeship is reauthorized. Unfortunately, there is no way of knowing when this will happen, if at all. There is also a financial disincentive to remaining as an active judge once one can “go senior” because the salaries of judges on senior status (unlike those on active status) are not subject to federal FICA or Medicare taxes.

    Byzantine Politics of Reauthorizing a Temporary Judgeship

    The politics of reauthorizing the temporary judgeship are complicated. It can be achieved through specific legislation either authorizing a new temporary judgeship or creating a new permanent judgeship, but a state’s congressional delegation is unlikely to spend its time and political capital on such a bill. So the only realistic chance of reauthorization is through an appropriations bill, which can retroactively reauthorize a temporary judgeship that has expired only if a vacancy has not already caused a loss of the seat.

    There are two reasons why reauthorization via an appropriations bill will be challenging. First, there is no telling when the next appropriations bill will be passed. Given the recent disputes over the debt ceiling and budget between Congress and the President, the yearly appropriations bills have been extremely delayed. When those delays occur, the government is funded on continuing resolutions, which cannot be used to reauthorize a temporary judgeship. If there is a lengthy battle between Congress and the President, it is possible that an appropriations bill will be held up indefinitely, leaving the District of Hawai`i’s fourth judgeship a victim of circumstance.

    Second, when it is passed, there is no telling whether the reauthorization will be in it. The current appropriations bill for fiscal year 2015 (which is a very long way from passing) has the reauthorization in the Senate version, but not in the House version. Moreover, the entire Hawai`i Congressional delegation will soon be in the minority in Congress. In the past when there was a pending vacancy in the District of Hawai`i and the judgeship needed reauthorization, Senator Inouye had sufficient influence in the House to ensure reauthorization was in the House bill. Today the situation is less certain.

    There is another option besides an appropriations bill for reauthorization. There are 10 temporary judgeships across the country that will expire in 2015. If there is sufficient political inertia to reauthorize those judgeships, it is possible that the senators from those states (Hawai`i included) will band together to introduce legislation to do so. The questions are whether there is sufficient motivation for that effort to occur and whether it will meet with resistance.

    In a future post, we’ll look at the issue of the magistrate judgeship in jeopardy.


    Since the discussion of this issue at the Federal Bar Association event on November 20, 2014, much has happened to relieve the concerns raised. It all arises from the passage of the 2015 appropriations bill much earlier than expected and with the reauthorization of Hawaii’s temporary judgeship contained within the bill. The House passed its version of the bill on December 11, 2014, and the Senate passed the house version on December 13, 2014. President Obama signed the bill into law on December 16, 2014. The bill includes an extension of the temporary judgeship for the District of Hawaii for one year.  That means that if there is a vacancy on the court before April 11, 2016, that vacancy will be filled. Under the language of the statute, it does not matter if the vacancy is not filled before April 11, 2016. As long as there is a vacancy, it can be filled. Accordingly, on December 22, 2014, the Court issued a press release announcing that Judge Mollway would assume senior status on November 6, 2015, which would then create an open position that can be filled under the law authorizing the judgeship.