MAJOR LEGISLATION OF INTEREST TO LAWYERS †

112th Congress (Jan. 5, 2011 - Jan. 3, 2013)

 

 

Content

 

 

 

* ABA testified or submitted statement or letter to Congress or federal agency during the 112th Congress.

 

♦ ABA legislative and governmental priority during the 112th Congress, including issues encompassed in broad priorities.

 

† This chart includes issues on which the ABA House of Delegates or Board of Governors has approved association policy, unless otherwise noted.

 

 

 

Subject 

Description and Status

 

ABA Position

 

 

Administrative Law

 

*Administrative Conference of the United States (ACUS)

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, included $2.9 million for ACUS. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation enacted 9/28/12, funds the federal government, including ACUS, at fiscal year 2012 funding levels through 3/27/13. H.R. 2480 would have reauthorized ACUS at $2.9 million per year through fiscal year 2014. The House passed H.R. 2480. The Senate Judiciary Committee approved H.R. 2480, and the bill was placed on the Senate calendar. There was no further action on the legislation.

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Supports reauthorization and funding for ACUS.

 

 

Alternative Dispute Resolution 

  

 

*Federal Consent Decree Fairness Act

 

H.R. 3041 would have authorized state or local governments, and related officials sued in their official capacity or their successors, to file motions to modify or vacate existing federal court consent decrees four years after the decree was originally entered or once the highest elected state or local government official authorizing the consent decree leaves office, whichever occurs first. The House Judiciary Subcommittee on Court, Commercial and Administrative Law held a hearing on H.R. 3041. There was no comparable Senate legislation.

 

Opposes.

 

*International Commercial Arbitration

 

S. 987 and H.R. 1873 would have established a new Chapter 4 within Title 9 of the U.S. Code governing arbitration to invalidate any pre-dispute arbitration agreement if it requires arbitration of an employment, consumer or civil rights dispute. The Senate Judiciary Committee held a hearing on mandatory arbitration and related legislation, including S. 987. H.R. 1873 was referred to the House Judiciary Subcommittee on Courts, Commercial and Administrative Law, where there was no action on the bill.

 

No position on the overall legislation, but urges the adoption of several technical amendments to clarify key terms and protect international commercial arbitration.

 

*Mediation Week

 

The Justice Department and a number of state and local officials expressed support for observing Mediation Week on Oct. 16-22, 2011, and Oct. 14-20, 2012. Previously, during the ABA Midyear Meeting in February 2011, the ABA Board of Governors officially recognized the third week of October as ABA Mediation Week to promote mediation and related forms of collaborative non-adversarial problem-solving and to educate parties, lawyers and the general public about these processes. The 2011 theme was “Civility and Civil Public Discourse,” and the 2012 theme was “Mediation in the Mainstream: From the Courthouse to the Conference Room.”

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Supports.

 

 

Antitrust Law

 

 

Leegin Decision/Resale Price Maintenance

 

S. 75 and H.R. 3406 would have effectively overturned the 2007 Supreme Court decision in Leegin Creative Leather Products Inc. v. PSKS Inc., 551 U.S. 877 (2007), which reversed a 96-year-old precedent that vertical agreements between a supplier and its distributor or retailer on the minimum resale prices for the supplier’s products are per se violations of Section 1 of the Sherman Act. The Senate Judiciary Committee approved S. 75, and the bill was placed on the Senate calendar. H.R. 3406 was referred to the House Judiciary Subcommittee on Intellectual Property, Competition and the Internet, where there was no action on the bill.

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Supports the Leegin decision and opposes legislation that would effectively overturn the decision.

 

 

Attorney-Client Privilege

 

 

♦*Consumer Financial Protection Bureau (CFPB)

 

P.L. 112-215 (H.R. 4014), signed 12/20/12, amends the Federal Deposit Insurance Act to clarify that when banks and other supervised entities produce privileged information to the CFPB in the course of any of its supervisory or regulatory processes, those submissions will not waive attorney-client privilege or work product protections as to any third party, and the CFPB can share the information with other federal agencies without affecting its privileged status.

 

Supports.

 

♦*Federal Reserve Board

 

The Federal Reserve Board of Governors proposed changes to the Comprehensive Capital Analysis and Review data collection schedules that would require bank holding companies to report detailed information regarding their legal reserves for pending and probable litigation matters, including certain information protected by the attorney-client privilege and the work product doctrine. The Federal Reserve Board later issued a final rule that will only require bank holding companies to report aggregated legal reserve information, not the more sensitive legal reserve data for individual litigation matters or events that was originally proposed.

 

Opposed the original Federal Reserve Board proposal.

 

♦Financial Accounting Standards Board (FASB)

 

The FASB voted 7/9/12 to withdraw proposed amendments to the Financial Accounting Standards that would have substantially increased the amount of privileged information companies must report in connection with periodic disclosures of litigation loss contingencies, ending a five-year effort to write a new accounting standard for loss contingencies. Following the withdrawal, the FASB issued an invitation for stakeholders to comment on a proposed overall financial statement disclosure framework as a first step in collecting broad input on ways to improve the effectiveness of disclosures.

 

Opposed the proposed amendments.

 

♦ *Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) Whistleblower Rules

 

Final rules implementing the whistleblower program mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203) provide that whistleblowers who voluntarily provide the SEC or the CFTC with original information regarding violations of federal securities law or the Commodity Exchange Act, respectively, may be entitled to receive substantial cash awards. Although lawyers generally will not be eligible to receive such payments for divulging privileged or confidential client information in violation of the lawyer’s ethical obligations, the agencies may pay bounties to lawyers who disclose confidential client information in those narrow circumstances when such disclosure is permitted under state or federal lawyer conduct rules.

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Supports provisions that generally protect the attorney-client privilege and client confidentiality, but has concerns regarding the creation of financial incentives for lawyers to disclose confidential client information, even in narrow circumstances.

 

 

Business Law

 

 

*Congo Conflict Minerals

 

Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203) seeks to discourage companies from providing financial support to those engaged in the ongoing armed conflict in the Democratic Republic of the Congo by creating a detailed regime for disclosing certain information regarding Congo conflict minerals to the Securities and Exchange Commission. The act’s definition of “persons” subject to the requirements is vague, however, and could invite challenges to future criminal or civil enforcement efforts.

 

Supports a technical amendment to clarify the definition of “persons” subject to the Dodd-Frank Act’s disclosure requirements regarding Congo minerals.

 

*Pension Relief

 

P.L. 112-141 (H.R. 4348), signed 7/6/12, authorized, among other provisions, funds for federal highways and highway safety programs, and included provisions providing for pension funding stabilization.

 

No policy on overall legislation, but met with House and Senate staff to discuss favorable impact pension relief would have on the association’s pension funding requirements.

 

*Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC)Self-Funding

 

Congress expanded the regulatory responsibilities of the SEC and CFTC as part of P.L. 111-203, the Dodd-Frank Wall Street Reform and Consumer Protection Act and other recent laws. However, Congress did not authorize the agencies to become self-funding through the use of industry-paid fees as a way to ensure the agencies can meet the growing challenge of overseeing modern financial markets.

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Supports increased, reliable sources of reserve for the SEC and CFTC, whether through authorizing self-funding or other appropriate mechanisms.

 

 

Children/Families

 

 

Adoption Assistance Appropriations

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, included $39.5 million for adoption incentive programs. P.L.112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including adoption incentive programs, at fiscal year 2012 funding levels through 3/27/13.

 

Supports federal efforts to encourage adoption.

 

*Anti-Bullying

 

The U.S. Civil Rights Commission held a briefing on the federal response to incidents of bullying based on race, national origin, religion, disability, gender, or lesbian, gay, bisexual and transgender (LGBT) status. S. 506, H.R. 83, H.R. 975, H.R. 1648 and H.R. 6019 would have authorized federal funding for various state grant programs to combat bullying, including the collection and reporting of data. The House Judiciary Committee approved H.R. 6019, which would have authorized $40 million annually through fiscal year 2017 to expand the use of juvenile accountability block grants to address bullying. S. 506 was referred to the Senate Health, Education, Labor and Pensions Committee. H.R. 83 was referred to the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. H.R. 975 and H.R. 1648 were referred to the House Education and the Workforce Subcommittee on Early Childhood, Elementary and Secondary Education.

 

Urges prevention of bullying, including cyberbullying and youth-to-youth sexual and physical harassment on a variety of bases, including sexual orientation and gender identity.

 

*Child Abuse Prevention and Treatment Act (CAPTA)

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, included $26.482 million for child abuse state grants, $25.793 million for child abuse discretionary activities, and $41.6 million for child abuse community-based grants. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including child abuse prevention programs, at fiscal year 2012 levels through 3/27/13.

 

Supports.

 

*Court Improvement Program (CIP)

 

P.L. 112-34 (H.R. 2883), the Child and Family Services Improvement and Innovation Act signed 9/30/11, amended CIP to provide additional grant eligibility for programs to improve legal representation in child welfare cases and reauthorized the program at its current funding level through fiscal year 2016. P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation enacted 12/23/11, included $30 million for CIP. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including CIP, at fiscal year 2012 funding levels through 3/27/13. H.R. 3873 would have allowed state courts to focus on improving legal representation for parents by devoting a stream of CIP funding to that area. H.R. 3873 was referred to the House Ways and Means Subcommittee on Human Resources. There was no comparable Senate legislation.

 

Supports H.R. 3873 and CIP reauthorization with additional grants for improving legal representation in child welfare cases.

 

*Every Child Deserves a Family Act

 

S. 1770 and H.R. 1681 would have promoted permanency for children waiting in foster care by removing sexual orientation, gender identification and marital status as bars to child placement decisions when the placement is in the best interest of the child. S. 1770 was referred to the Senate Finance Committee. H.R. 1681 was referred to the House Ways and Means Committee. There was no action on the bills.

 

Supports.

 

*Foster Youth Education

 

P.L. 112-278 (S. 3472), signed 1/14/13, amends the Family Educational Rights and Privacy Act of 1974 to allow student educational records to be released to child welfare agencies to improve educational outcomes for students in foster care.

 

Supports.

 

*Foster Youth Financial Security

 

H.R. 2953 would have required states to determine Social Security eligibility of all foster children and provide for the conservation of the funds in dedicated accounts that the youth could access when leaving care. H.R. 2953 was referred to the House Ways and Means Committee Subcommittee on Human Resources, where there was no action on the bill. There was no comparable Senate legislation.

 

Supports.

 

*Fostering Connections to Success and Increasing Adoptions Act

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation enacted 12/23/11, included $15 million for family connection grants. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including family connection grants, at fiscal year 2012 funding levels through 3/27/13. The House Ways and Means Subcommittee on Human Resources held a hearing on improving programs designed to protect at-risk youth.

 

Supports the act and recommends a technical change clarifying school stability requirements for foster youth.

 

*Promoting Safe and Stable Families (PSSF)

 

P.L. 112-34 (H.R. 2833), the Child and Family Services Improvement and Innovation Act signed 9/30/11, reauthorized the PSSF at current levels through fiscal year 2016. P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, included $345 million for the PSSF. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including the PSSF, at fiscal year 2012 funding levels through 3/27/13.

 

Supports PSSF reauthorization with increased funding to enhance substance abuse and mental health treatment as well as housing assistance.

 

*Residential Treatment of Youth

 

S. 1667 and H.R. 3126 would have required residential programs for teens to uphold certain standards and allocated resources to prevent child abuse and neglect in facilities for teens. S. 1667 was referred the Senate Health, Education Labor and Pensions Committee. H.R. 3216 was referred to the House Education and the Workforce Subcommittee on Early Childhood, Elementary and Secondary Education. There was no action on the bills.

 

Supports.

 

♦*Violence Against Women Act (VAWA)

 

The Senate Judiciary Committee held a hearing to assess the accomplishments of VAWA during its 17-year history. S. 1925 would have reauthorized VAWA, including provisions for the Legal Assistance for Victims (LAV) program, which awards grants for funding and training attorneys to represent survivors of domestic violence, dating violence, sexual assault and stalking in a wide range of increasingly complex legal matters. The bill also would have strengthened tribal criminal jurisdiction and, for the first time, added uniform nondiscrimination provisions that would ensure that victims seeking assistance cannot be denied services based on gender identity or sexual orientation. The Senate passed S. 1925. The House passed H.R. 4970, its version of VAWA reauthorization. P.L. 112-55 (H.R. 2112), consolidated fiscal year 2012 appropriations legislation signed 11/18/11, included $41 million for the LAV program. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including the LAV program, at fiscal year 2012 funding levels through 3/27/13.

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Supports reauthorization legislation that reflects the comprehensive language in the Senate bill.

 

 

Civil Rights/Constitutional Law

 

 

Civic Education

 

H.R. 3464 would have amended Part C of Title II of the Elementary and Secondary Education Act of 1965 to begin a program awarding competitive grants to nonprofit educational organizations to develop and implement programs that promote civic learning and engagement through instruction, professional development, and evaluations. H.R. 3464 was referred to the House Education and the Workforce Subcommittee on Early Childhood, Elementary and Secondary Education, where there was no action on the bill. There was no comparable Senate bill.

 

Supports.

 

Civil Rights Tax Relief

 

S. 1781 and H.R. 3194 would have amended the Internal Revenue Code of 1986 to exclude from gross income amounts received from certain unlawful discrimination claims and to allow income averaging for backpay and frontpay awards received on account of such claims. S. 1781 was referred to the Senate Finance Committee. H.R. 3194 was referred to the House Ways and Means Committee. There was no action on the bills.

 

Supports.

 

*Defense of Marriage Act Repeal

 

S. 598 and H.R. 1116 would have repealed the Defense of Marriage Act and protected the state regulation of marriage by making clear that all marriages validly licensed and recognized by the various states must be recognized by the federal government. The Senate Judiciary Committee held a hearing on S. 598 and approved the bill. H.R. 1116 was referred to the House Judiciary Committee, where there was no action on the bill. The U.S. Supreme Court announced that it will hear a challenge to the Defense of Marriage Act and is expected to issue a decision in June.

 

Supports.

 

*Disability Rights – Intermediate Care Facilities

 

H.R. 2032 would have prohibited entities that receive federal funds from using those funds to file a class action lawsuit on behalf of residents of intermediate care facilities for the mentally retarded (ICF/MRs) unless the residents have the opportunity, after receiving notice, to opt out of the class. As a result, residents of ICF/MRs would be the only individuals in federal court with the right to opt out of a class action for injunctive relief. H.R. 2032 was referred to the House Judiciary Subcommittee on the Constitution, where there was no action on the bill. There was no comparable Senate legislation.

 

Opposes.

 

♦*Discrimination – Sexual Orientation/Gender Identity

 

S. 811 and H.R. 1397 would have prohibited employment discrimination on the basis of actual or perceived sexual orientation or gender identity by covered entities (employers, employment agencies, labor organizations, or joint labor-management committees) and prohibited preferential treatment or quotas. The Senate Health, Education, Labor and Pensions Committee held a hearing on S. 811. H.R. 1397 was referred to the House Judiciary Subcommittee on the Constitution, where there was no action on the bill.

 

Supports.

 

Native Hawaiian Self-Determination

 

S. 675 and H.R. 1250 would have allowed Native Hawaiians to choose a political framework that could be recognized by the federal government and would have supported an indigenous governing entity for Native Hawaiians within the state of Hawaii. The bill would have established an Office for Native Hawaiian Relations within the Office of the Secretary of the Interior and a Native Hawaiian Interagency Coordinating Group. The Senate Indian Affairs Committee initially approved S. 675 in 2011 and approved a substitute version of the bill in 2012 that would have streamlined the bill and recognized the work of the State of Hawaii’s Hawaiian Roll Commission, which is tasked with establishing a base roll of Native Hawaiians interested in reorganizing a Native Hawaiian government. H.R. 1250 was referred to the House Natural Resources Committee, where there was no action on the bill.

 

Supports.

 

♦ *Paycheck Fairness Act

 

S. 797, S. 3220 and H.R. 1519 would have updated the Equal Pay Act of 1963 to prohibit an employer from paying unequal wages to male and female workers who perform jobs under similar work conditions that require substantially equal skill, effort and responsibility, unless there is a legitimate reason for the pay differential. The bills also would have prohibited employer retaliation against employees who share salary information. The Senate rejected a motion to proceed to consideration of S. 3220. S. 797 was referred to the Senate Health, Education, Labor and Pensions Committee. H.R. 1519 was referred to the House Education and the Workforce Subcommittee on Workforce Protections, where there was no action on the bill.

 

Supports.

 

Reporters’ Shield

 

H.R. 2932 would have codified a federal shield law for journalists to protect them from federally compelled disclosure of confidential sources of information under specified conditions. H.R. 2932 was referred to the House Judiciary Committee Subcommittee on the Constitution, where there was no action on the bill. There was no comparable Senate legislation.

 

Supports.

 

Tribal Justice

 

The Senate Indian Affairs Committee held a hearing on P.L. 111-211, the Tribal Law and Order Act, one year after the law’s enactment to evaluate the impact of the legislation on improving tribal justice systems.

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Supports the act.

 

 

Courts/Judiciary

 

 

Administrative Law Judges (ALJs)

 

On 12/27/12, the president issued an executive order providing a 0.5 percent increase for ALJ pay and locality pay adjustments for 2013, effective 4/7/13.

 

Supports fair and adequate compensation for ALJs.

 

Cameras in the Courtroom

 

S. 410, H.R. 2802 and H.R. 5163 would have authorized presiding judges to permit media coverage of federal appellate and district court proceedings and directed the U.S. Judicial Conference to promulgate advisory and mandatory guidelines with regard to media coverage. H.R. 2802 and H.R. 5163 also would have permitted the televising of U.S. Supreme Court proceedings. S. 1945 and H.R. 3572 would have required television coverage of all open sessions of the U.S. Supreme Court unless the court decided by a majority that doing so would constitute a violation of the due process rights of one or more of the parties involved in the case before the court. The Senate Judiciary Committee approved S. 410. The Senate Judiciary Subcommittee on Administrative Oversight and the Courts held a hearing on S. 1945. H.R. 2802, H.R. 3572 and H.R. 5163 were referred to the House Judiciary Subcommittee on Courts, Commercial and Administrative Law, where there was no action on the bills.

 

Supports further experimentation with cameras in federal court proceedings, including the U.S. Supreme Court, under guidelines promulgated by the U.S. Judicial Conference.

 

♦ Equal Access to Justice for the Military

 

S. 1664 and H.R. 3133 would have eliminated an inequity in current law by permitting a court-martialed servicemember who faces dismissal, discharge or lengthy confinement to petition for review by the U.S. Supreme Court even if denied review by the Court of Appeals for the Armed Forces. S. 1664 was referred to the Senate Judiciary Committee. H.R. 3133 was referred to the House Judiciary Subcommittee on Courts, Commercial and Administrative Law. There was no action on the bills.

 

Supports.

 

♦ Inspector General – Judiciary

 

S. 348 and H.R. 727 would have established a statutory Office of Inspector General for the federal judiciary for the purpose of conducting investigations of matters pertaining to the judicial branch, including possible judicial misconduct. S. 348 also would have provided for investigations by the inspector general of alleged judicial misconduct by justices of the U.S. Supreme Court. S. 348 was referred to the Senate Judiciary Committee. H.R. 727 was referred to the House Judiciary Committee. There was no action on the bills.

 

Opposes any Congressional proposal to create an Office of Inspector General for the judiciary with broad investigative powers and close ties to Congress.

 

♦ *Judgeships

 

S. 1014, S. 1032, H.R. 2365 and S. 3301 and H.R. 6020, fiscal year 2013 appropriations bills, would have provided for additional permanent judgeships in Arizona, California, Minnesota and Texas and made some temporary judgeships permanent. H.R. 162 would have divided the U.S. Court of Appeals for the Ninth Circuit into two circuits. S. 1014 and S. 1032 were referred to the Senate Judiciary Committee, which approved S. 1014. The Senate Appropriations Committee approved S. 3301, and the House Appropriations Committee approved H.R. 6020. H.R. 162 and H.R. 2365 were referred to the House Judiciary Subcommittee on Courts, Commercial and Administrative Law, where there was no action on the bills.

 

Supports additional judgeships to meet the growing caseloads in the federal courts.

 

Judicial Safety

 

P.L. 112-84 (H.R. 1059), signed 1/3/12, protects the safety of judges by extending the authority of the U.S. Judicial Conference to redact sensitive information contained in their financial disclosure reports. S. 2076 and H.R. 6185 would have provided assistance to state and local governments to improve courthouse security. The Senate Judiciary Committee approved S. 2076. The House passed H.R. 6185.

 

Supports efforts to ensure judicial safety and court security.

 

♦*Judicial Selection/Vacancies

 

During the 112th Congress, there was a total of 156 nominations (25 court of appeals, 129 district court and two Court of International Trade), of which 113 were confirmed (14 court of appeals, 99 district court). Three nominations were successfully filibustered, and three nominees withdrew their nominations. At the end of the 112th Congress, the Senate returned 33 nominations to the president, and there were 80 vacancies (17 court of appeals, 61 district court, and two Court of International Trade).

 

Supports prompt filling of judicial vacancies and urges selection of individuals of racial and ethnic diversity, as well as those with disabilities, at all levels of the federal bench.

 

♦* Judicial Compensation

 

Federal judges will receive no cost-of-living adjustment (COLA) in 2013 after members of Congress blocked COLAs for themselves as part of P.L. 112-240 (H.R. 8), legislation signed 1/2/13 to address the “fiscal cliff.” Because federal judicial pay is linked to congressional pay, the judiciary’s COLA could be blocked even though the president issued an executive order 12/27/12 to provide a 0.5 percent COLA, effective 4/17/13, for federal employees, judges and members of Congress. S. 569 would have assured that judges automatically receive a COLA every year that General Schedule civilian federal employees receive one. S. 569 was referred to the Senate Judiciary Committee, where there was no action on the bill. There was no comparable House legislation. The U.S. Court of Appeals for the Federal Circuit, sitting en banc, ruled 10/5/12 in Beer v United States that Congress violated the Constitution’s compensation clause when it blocked COLAs for federal judges in 1995, 1996, 1997 and 1999, and that Congress improperly withheld COLAs in 2007 and 2010 based on erroneous interpretation of a statute. On 1/11/13, the Justice Department asked the U.S. Supreme Court to review the judicial pay ruling. Meanwhile, seven other judges filed a class action lawsuit on 11/30/12 in the U.S. Court of Federal Claims seeking monetary and declaratory relief for all federal judges who served any time during the past six years.

 

Supports S. 569, increased judicial compensation, and periodic review of judicial salary levels. Supported the plaintiffs in Beer v. United States.

 

♦ *Lawsuit Abuse Reduction Act

 

S. 533 and H.R. 966 would have circumvented the Rules Enabling Act to amend Rule 11 of the Federal Rules of Civil Procedure to require, rather than permit, the imposition of monetary sanctions for the filing of non-meritorious claims and to eliminate a provision adopted in 1993 that allows parties and their attorneys to avoid sanctions by withdrawing frivolous claims within 21 days after a motion for sanctions is served. The House Judiciary Subcommittee on the Constitution held a hearing on H.R. 966, and the full committee approved the bill. S. 533 was referred to the Senate Judiciary Committee, where there was no action on the bill.

 

Opposes.

 

♦ *State Court Funding - Tax Refund Intercept

 

S. 755 and H.R. 1416 would have provided a cost-neutral way for the federal government to help financially strapped state courts by authorizing the Internal Revenue Service to intercept federal tax refunds of individuals who owe restitution to their victims or have past-due court fines and fees. S. 755 was referred to the Senate Finance Committee. H.R. 1416 was referred to the House Ways and Means Committee. There was no action on the bills.

 

Supports.

 

*Sunshine in Litigation Act

 

S. 623 and H.R. 592 would have circumvented the Rules Enabling Act to restrict the authority of the federal courts regarding protective orders under Rule 26(c) of the Federal Rules of Civil Procedure. The Senate Judiciary Committee amended and approved S. 623. H.R. 592 was referred to the House Judiciary Subcommittee on Courts, Commercial and Administrative Law, where there was no action on the bill.

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Opposes.

 

 

Criminal Law

 

 

♦ *Alternatives to Incarceration

 

H.R. 2567 would have extended to additional categories of non-violent, low-level offenders the provisions of the Federal First Offender Act of 1987, which permits federal judges to place certain first-time drug offenders convicted of simple possession on probation without entering a judgment of conviction. H.R. 2567 was referred to the House Judiciary Committee, where there was no action on the bill. There was no comparable Senate legislation.

 

Supports.

 

♦ *Collateral Consequences of Conviction

 

The U.S. Equal Employment Opportunity Commission (EEOC) held a hearing on barriers to employment for ex-offenders and issued new EEOC guidelines stating that blanket exclusion of applicants based on their criminal history is a per se violation of Title VII of the Civil Rights Act. The EEOC based its decision on evidence that such blanket policies have a disparate impact on certain protected racial and ethnic minorities. The new guidelines also require employers to evaluate individual job applicants with criminal records on a case-by-case basis.

 

Opposes automatic barriers to employment for ex-offenders and supports applying discretionary factors on a case-by-case basis.

 

*Death Penalty Representation

 

The Department of Justice issued a proposed rule intended to implement the certification process for capital counsel systems at the state level that was established by Section 507 of the USA PATRIOT Improvement and Reauthorization Act of 2005. The proposed rule does not satisfy the mandate for the appointment of competent counsel because it fails to require states to do a number of things, including appointing post-conviction defense teams, adopting meaning performance standards, providing adequate training of post-conviction counsel, or providing for timely appointment of counsel.

 

In comments on the proposed rule, recommended that the proposed certification criteria be revised to require compliance with the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.

 

*Evidence Disclosure

 

S. 2197 would have established uniformity in evidence disclosure standards in federal criminal prosecutions. The bill would have required federal prosecutors to make early disclosure of evidence that is favorable to a defendant and may demonstrate his or her innocence, regardless of whether the evidence is deemed material to the case by the prosecutors. The Senate Judiciary Committee held a hearing on S. 2197. There was no comparable House legislation.

 

Supports.

 

Gang Violence Prevention/Youth Promise Act

 

H.R. 2721 would have supported community-based efforts to prevent youth from entering the justice system through implementation of evidence-based strategies proven to reduce youth violence and delinquency. H.R. 2721 was referred to the House Education and the Workforce Subcommittee on Early Childhood, Elementary and Secondary Education, where there was no action on the bill. There was no comparable Senate legislation.

 

Supports.

 

Gun Violence -Concealed Firearms

 

S. 2213, S. 2188, H.R. 822 and H.R. 3543 would have allowed an individual with a permit to carry a concealed firearm in one state to carry a concealed firearm in other states that allow their residents to carry concealed guns. The provisions would have applied only if the individual was not prohibited from possessing, transporting, shipping or receiving a firearm under federal law. The House passed H.R. 822. H.R. 3543 was referred to the House Judiciary Committee, where there was no action on the bill. S. 2213 and S. 2188 were referred to the Senate Judiciary Committee, where there was no action on the bills.

 

Opposes.

 

Hate Crimes

 

H.R. 224 would have amended the federal criminal code to impose penalties for willfully causing bodily injury to any person or attempting to cause such injury because of the person’s actual or perceived race, color, religion, national origin, gender, sexual orientation or disability. The bill also would have directed the U.S. Sentencing Commission to study adult recruitment of juveniles to commit hate crimes and required the administrator of the Office of Juvenile Justice and Delinquency Prevention to make grants to state and local programs designed to combat hate crimes committed by juveniles. H.R. 224 was referred to the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, where there was no action on the bill. There was no comparable Senate legislation.

 

Supports hate crimes legislation.

 

♦ *Indigent Defense Funding

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, included $1.031 billion for the federal judiciary’s defender services program, a $6 million increase over the fiscal year 2011 funding. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including the defender services program, at fiscal year 2012 funding levels through 3/27/13. The ABA submitted a report to the U.S. attorney general with five key findings of the National Focus Group on Indigent Defense Reform, which was funded by the Bureau of Justice Assistance through a grant to the ABA Standing Committee on Legal Aid and Indigent Defendants with the National Association of Criminal Defense Lawyers as a subgrantee.

 

Supports.

 

♦ *Juvenile Justice

 

H.R. 3305 would have required, among other things, states to enact laws and adopt policies to grant child offenders who are serving a life sentence a meaningful opportunity for parole or supervised release at least once during the first 15 years of incarceration and at least once every three years thereafter. H.R. 3171 would have amended the Juvenile Justice and Delinquency Prevention Act of 1974 to revise requirements relating to the treatment of juveniles who are in custody. S. 3328 would have reauthorized the Juvenile Mentoring Program to implement mentoring programs that link at-risk youth to responsible adults to encourage participation in community service and activities. H.R. 3305 was referred to the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. H.R. 3171 was referred to the House Education and the Workforce Subcommittee on Early Childhood, Elementary and Secondary Education. S. 3328 was referred to the Senate Judiciary Committee. There was no action on the bills.

 

Supports periodic review of life sentences imposed on juveniles. Supports reauthorization of the Juvenile Justice and Delinquency Prevention Act focusing on four core requirements of the act.

 

♦ *Mandatory Minimum Sentencing

 

S. 1151, a data security bill as amended by the Senate Judiciary Committee, would have created a mandatory minimum sentence of three years for offenders who intentionally cause or attempt to cause damage to critical infrastructure computers, which store vital databases concerning national security, health, electric power, safety, banking, water supply, transportation and telecommunications. S. 409, S. 605, S. 839 and H.R. 1571 would have expanded the application of mandatory minimums to certain synthetic drugs. The Senate Judiciary Committee approved an amended version of S. 1151 and also approved S. 409, S. 605 and S. 839. The House passed H.R. 1571.

 

Recognizes the need to protect the nation’s critical computer-based infrastructure, but opposes setting a mandatory minimum sentence for the crimes. Opposes mandatory minimum sentences and the expanding of such sentences through triggers in proposed legislation for crimes involving synthetic drugs.

 

♦ *National Criminal Justice Commission

 

S. 306 would have established a National Criminal Justice Commission to conduct a comprehensive review for the first time in more than 40 years of federal, state and local criminal justice systems in the United States and propose recommendations for legislative reform. The Senate rejected efforts to attach the language of S. 306 to H.R. 2112, fiscal year 2012 appropriations legislation.

 

Supports.

 

*Prison Overcrowding/Costs

 

The Senate Judiciary Committee held a hearing on rising prison costs to examine budgeting and crime prevention options. The hearing focused on successful bipartisan reforms in the states, including probation rather than jail time, community sentencing, reducing time-served for certain categories of nonviolent offenders, and removing mandatory minimums for first-time offenders.

 

Supports federal legislation based on successful state reforms to address prison costs and prison overcrowding.

 

*Prison Rape Standards

 

The Department of Justice issued new standards in May 2012 required by the Prison Rape Elimination Act of 2003 for the prevention of and punishment for the crime of rape in federal prisons and state correctional institutions that receive federal funds. The final standards incorporate changes that the ABA recommended last year to proposed standards and are consistent with the ABA’s Criminal Justice Standards for the Treatment of Prisoners.

 

Supports.

 

*Racial Disparities in the Justice System

 

H.R. 1771 would have established a five-year pilot program in 20 federal districts to collect and analyze data on the race and ethnicity of defendants at each stage of a criminal proceeding, determine causes of racial and ethnic disparities in the criminal justice process, and submit a proposed plan for addressing such disparities. H.R. 1771 was referred to the House Judiciary Subcommittee on the Constitution, where there was no action on the bill. There was no comparable Senate legislation.

 

Supports.

 

*Racial Profiling

 

S. 1670 and H.R. 3618 would have prohibited any law enforcement agent or agency from engaging in racial profiling, granted the United States or an individual injured by racial profiling the right to obtain declaratory or injunctive relief, and required federal law enforcement agencies to maintain adequate policies and procedures to eliminate racial profiling and to cease existing practices that permit racial profiling. The Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights held a hearing on S. 1670. H.R. 3618 was referred to the House Judiciary Committee, where there was no action on the bill.

 

Supports.

 

♦* Second Chance Act

 

P.L. 112-55 (H.R. 2112), consolidated fiscal year 2012 appropriations legislation signed 11/18/11, included $63 million for offender reentry programs and research authorized under the Second Chance Act, enacted in 2008 to provide resources to state and local governments and community-based organizations to improve efforts to help those released from prison and jail to successfully return to their communities. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including offender reentry programs and research authorized under the Second Chance Act, fiscal year 2012 funding levels through 3/27/13. S. 1231 would have reauthorized the act for five years. The Senate Judiciary Committee approved S. 1231. There was no comparable House legislation.

 

Supports.

 

♦*Sentencing – Good-Time Credit for Early Release

 

The federal prison system’s method of calculating earned good-time credit for early release reduces a prisoner’s sentence to a maximum credit of 47 days per year – below the 54 days many observers believe is intended by federal law. The Department of Justice has proposed the creation of a new good-time credit that would be earned by successful participation in recidivism-reducing efforts such as educational or occupational programming.

 

Supports clarification of the statutory language for good-time credit, and urges quick implementation of the DOJ proposal.

 

♦ *Sentencing Disparities – Cocaine

 

The U.S. Sentencing Commission approved an amendment to the Sentencing Guidelines in April 2011 to implement the Fair Sentencing Act of 2010, which reduced the disparity between powder and crack cocaine quantities that trigger mandatory minimum penalties from 100-1 to 18-1. In June 2011, the commission unanimously voted to give retroactive effect to the implementing amendment for persons convicted under previous law. The retroactive amendment went into effect on 11/1/11.

 

Supports.

 

♦ *Sentencing Guidelines

 

The U.S. Sentencing Commission and the House Judiciary Committee each held a hearing to discuss the impact of the 2005 Supreme Court decision in U.S. v Booker, 543 U.S. 220 (2005), which ruled that key elements of the Sentencing Reform Act of 1984 were unconstitutional, effectively rendering the federal sentencing guidelines advisory.

 

Maintains that the current advisory sentencing guidelines system is functioning well and does not need a substantial overhaul.

 

♦ *Sentencing Guidelines –Anti-Fraud Amendments

 

 

The U.S. Sentencing Commission held a hearing focusing on the commission’s implementation of congressional sentencing directives in two laws enacted last year: the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Patient Protection and Affordable Care Act. The new laws call for greater penalties for economic crimes that include health care fraud and securities and bank fraud.

 

Supports a comprehensive assessment of the guidelines for all economic crimes to ensure that sentences are proportional to offense severity and adequately take into consideration individual culpability and circumstances.

 

*Solitary Confinement

 

The Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights held a hearing to evaluate the human rights, fiscal and public safety consequences of solitary confinement and the mounting evidence that the use of such confinement may be counterproductive.

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Supports adherence to the ABA Criminal Justice Standards on Treatment of Prisoners, which opposes extreme isolation in all instances, and advocates a congressional investigation of the impact of long-term solitary confinement.

 

 

          Elder Law

 

 

*Elder Abuse

 

The Senate Special Committee on Aging held hearings on elder abuse. S. 462, S. 464, S. 3290, S. 3294, S. 3562, S. 3598, H.R. 2564 and H.R. 4979 would have addressed elder abuse by, among other things, authorizing funding for victim advocate groups and entities that provide training and other types of support to prosecutors, courts, local law enforcement, and others handling elder justice-related cases. The Senate bills were referred to the Senate Judiciary Committee. H.R. 2564 and H.R. 4979 were referred to the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. There was no action on the bills.

 

Supports the bills and increased funding to address elder abuse.

 

*Guardianship

 

S. 1744 would have provided federal funding to state courts for assessing and improving the handling of proceedings relating to adult guardianship and conservatorship. The Senate Judiciary Committee approved S. 1744. There was no comparable House legislation.

 

Supports federal funding and support for state-level guardianship programs based on specific principles.

 

* Older Americans Act (OAA)

 

The Senate Special Aging Committee held a hearing to determine priorities for upcoming OAA reauthorization, focusing on providing legal services for the elderly and strengthening the act’s Long Term Care Ombudsman program. S. 3562 would have reauthorized the OAA through fiscal year 2017 and revised the act, including provisions to increase assistance for veterans, Holocaust survivors and lesbian, gay, bisexual and transgender seniors, improve access to fall prevention programs, and provide more support for family caregivers. The bill also would have strengthened local ombudsman programs, nutrition programs, and efforts to prevent elder abuse. S. 3562 was referred to the Senate Health, Education, Labor, and Pensions Committee, where there was no action. There was no comparable House reauthorization bill.

 

Supports OAA reauthorization that addresses nine specific principles, including creating a high-quality coordinated legal services system in each state and strengthening state legal assistance developers.

 

*Social Security Administration (SSA) – Disability Determination Process

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, included $10.555 billion for Limitation on Administrative Expenses for the SSA, and also designated that from this amount not less than $273 million could be used for conducting continuing disabilities reviews and redeterminations of eligibility under SSA’s disability programs. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including the SSA administrative process, at fiscal year 2012 appropriation levels through 3/27/13.

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Supports intensive efforts, including increased SSA administrative funding, to reduce the backlog in SSA disability claims.

 

 

Election Law

 

 

D.C. Voting Rights Act

 

H.R. 266, H.R. 267, H.R. 597, and H.R. 3732 would have treated the District of Columbia as a state for the purposes of representation in the House of Representatives. H.R. 597 and H.R. 3732 would have restored the rights of residents of the District of Columbia to vote in Maryland in congressional and presidential elections. H.R. 266, H.R. 267, and H.R. 3732 were referred to the House Judiciary Committee and the House Oversight and Government Reform Committee. H.R. 597 was referred to the House Administration Committee, the House Judiciary Committee, and the House Oversight and Government Reform Committee. There was no action on the bills. There was no comparable Senate legislation.

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Supports securing voting representation in Congress for citizens of the District of Columbia.

 

 

Federal Government

 

 

*Ethics – Ban on Gifts from Lobbyists

 

The Office of Government Ethics (OGE) proposed amendments to existing regulations limiting gifts to executive branch employees from registered lobbyists and lobbying organizations. The proposed amendments would have expanded the current lobbyist gift ban to cover all executive branch employees, not just the political appointees who are now subject to the ban. The proposals would have allowed government employees to continue to accept certain gifts from nonprofit professional associations, however, when they are made in connection with educational or professional development activities.

 

Supports exclusion for nonprofit professional associations.

 

*Meeting Attendance

 

S. 1789 and H.R. 2146 included provisions that would have severely restricted government employee attendance at meetings and conferences held by associations and other nongovernmental organizations. The Senate passed S. 1789, and the House passed H.R. 2146, but there was no further action on the bills.

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Opposes.

 

 

Federal Regulation of Lawyers

 

 

♦ *HUD SAFE Act Rule

 

The Department of Housing and Urban Development (HUD) included a broad lawyer exemption in its final rule implementing the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act). The final rule states that licensed lawyers who help clients negotiate or renegotiate their residential mortgages will not be deemed to be engaging in the business of a “loan originator” and will not be subject to the SAFE Act regulatory requirements if they are providing legal services to their clients and are in compliance with all applicable state court ethical rules and standards. The Consumer Financial Protection Bureau (CFPB) subsequently republished and recodified the HUD SAFE Act rule in substantially identical form as a new CFPB interim final rule.

 

Supports the exemption.

 

♦ *DOL “Persuader Activities” Rule

 

The Department of Labor (DOL) issued a proposed rule that would substantially narrow the longstanding “advice” exemption to the “persuader activities” reporting rule under Section 203 of the Labor-Management Reporting and Disclosure Act of 1959. The proposed rule would require many labor lawyers and law firms representing employers to report confidential client information to the government, which could conflict with the lawyers’ ethical duty to protect client confidentiality under ABA Model Rule 1.6 and similar binding state rules and undermine the client-lawyer relationship. DOL announced plans to take final action on the proposed rule in April 2013.

 

Opposes.

 

♦ *Gatekeeper Regulation of Lawyers

 

S. 1483, S. 1346, H.R. 3416 and H.R. 2669 included provisions that would have subjected many lawyers and law firms to the anti-money laundering and suspicious activity reporting (SAR) requirements of the Bank Secrecy Act when they help clients establish companies, trusts or certain other entities. The Senate Foreign Relations Committee held a hearing on S. 1483. S. 1346 was referred to the Senate Finance Committee. H.R. 3416 was referred to the House Financial Services Committee; H.R 2669, to the House Ways and Means Subcommittee on Financial Institutions and Consumer Credit, and the House Financial Services Subcommittee on Capital Markets and Government Sponsored Enterprises. There was no action on the bills. The Treasury Department’s Financial Crimes Enforcement Network (FinCEN) issued a proposed rule that would require law firms that establish accounts at financial institutions on behalf of their clients to disclose the identity and other beneficial ownership information regarding those clients. The Financial Action Task Force (FATF), an international intergovernmental body, is in the process of updating and refining its existing international anti-money laundering and counter-terrorist financing standards.

 

Opposes the bills and the FinCEN proposed rule. Urges the FATF to retain the “risk-based” approach of its existing standards and the related ABA-adopted “Voluntary Good Practices Guidance for Lawyers” and avoid imposing new burdensome “rules-based” reporting requirements on lawyers.

 

♦ *Red Flags Rule

 

The U.S. Court of Appeals for the District of Columbia Circuit issued a ruling 3/4/11 reverting the Federal Trade Commission’s (FTC) appeal of an earlier ruling of the U.S. District Court for the District of Columbia back to the district court. The district court dismissed the FTC’s appeal in light of the legislation Congress passed clarifying that the FTC cannot regulate lawyers under the “Red Flags Rule” of the Fair and Accurate Credit Transactions Act of 2003, which requires “creditors” to establish and implement programs to detect, identify and respond to activities that signal possible identity theft. The ruling followed enactment in December 2010 of P.L. 111-319, the Red Flag Program Clarification Act, which effectively exempted all practicing lawyers from the FTC rule by clarifying the law’s definition of “creditor.”

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Opposed application of the FTC “Red Flags Rule” to lawyers.

 

 

Health Law

 

 

Advance Directives/End-of-Life Counseling

 

H.R. 1589 would have amended Medicare and Medicaid to cover a voluntary advance care planning consultation and directed the secretary of Health and Human Services to make grants to eligible entities to establish statewide programs for physician orders for life-sustaining treatment (POLSTs) and expand or enhance existing programs for POLSTs. H.R. 1589 was referred to the House Energy and Commerce Subcommittee on Health and the House Ways and Means Committee, where there was no action on the bill. There was no comparable Senate legislation.

 

Supports.

 

Biomedical Research/Stem Cell Research

 

H.R. 2376 would have amended the Public Health Service Act to require the secretary of Health and Human Services to conduct and support research that utilizes human stem cells, including human embryonic stem cells, that meet certain requirements. H.R. 2376 was referred to the House Energy and Commerce Subcommittee on Health, where there was no action on the bill. There was no comparable Senate legislation.

 

Supports continuation of biomedical research involving embryonic stem cells undertaken with accepted scientific research safeguards against misuse.

 

HIV/AIDS Funding

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, included $2.3 billion for the Ryan White Comprehensive AIDS Resources Emergency Act, and $5.89 billion for international programs to fight HIV/AIDS. P.L. 112-175 (H.J. Res 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including the Ryan White Comprehensive AIDS Resources Emergency Act and international programs to fight HIV/AIDS, at fiscal year 2012 funding levels through 3/27/13.

 

Supports funding for HIV/AIDS prevention efforts and the global strategy of the World Health Organization for the worldwide prevention and control of AIDS.

 

*HIV/AIDS Preventative Syringe Exchange Programs

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, reinstated the ban on the use of federal funds for syringe exchange programs designed to stop the spread of diseases among intravenous drug users and also banned the District of Columbia from using its own funds for these programs. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, extends the bans through 3/27/13.

 

Supports federal funding of syringe exchange programs as an effective public health strategy for reducing the transmission of HIV/AIDS.

 

*International Family Planning

 

S. 1585 and H.R. 2639 would have repealed the “Mexico City policy,” which before being rescinded by executive order in 2009 banned the receipt of U.S. family planning assistance funds by foreign nongovernmental organizations that use their own funds to provide abortion-related services, including counseling and referrals, or to advocate or conduct public education campaigns relating to abortion. S. 1585 was referred to the Senate Foreign Relations Committee. H.R. 2639 was referred to the House Foreign Affairs Committee. There was no action on the bills. The House included provisions to reinstate the policy in its version of H.R. 2055, consolidated fiscal year 2012 appropriations legislation, and the Senate included provisions to repeal the policy in its version of the same legislation. Conferees did not include “Mexico City policy” language in the final of H.R. 2055, which was signed 12/23/11 as P.L. 112-74. The House Foreign Affairs Committee also approved language to restore the policy as part of H.R. 2583, fiscal year 2012 State Department and foreign operations authorization legislation that never reached a full House vote. H.R. 5857, fiscal year 2013 State-Foreign Operations appropriations legislation approved by the House Appropriations Committee, included provisions to reinstate the policy; the Senate Appropriations Committee version of the bill, S. 3241, did not address the issue. Neither bill reached the full House or Senate for a vote.

 

Supports repeal of the “Mexico City policy.”

 

U.N. Population Fund (UNFPA)

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, included $35 million for the UNFPA to be used for specific activities relating to women’s health and clarified that UNFPA does not fund, provide or support abortion services. The law specifically prohibited the use of UNFPA funds for a country program in the People’s Republic of China. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, extends federal government funding, including UNFPA and its funding restrictions, at fiscal year 2012 funding levels through 3/27/13. H.R. 5857, the House Appropriations Committee’s fiscal year 2013 State-Foreign Operations funding bill, included provisions blocking any funding for the UNFPA, but the bill never reached the House floor.

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Supports UNFPA funding as critical to fighting the HIV/AIDS crisis.

 

 

Housing/Homelessness

 

 

*Homeless Assistance

 

P.L. 112-55 (H.R. 2112), consolidated fiscal year 2012 appropriations legislation signed 11/18/11, included $1.9 billion for grants under the McKinney-Vento Homeless Assistance Act. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including grants under the McKinney-Vento Homeless Assistance Act, at fiscal year 2012 funding levels through 3/27/13. H.R. 32 would have amended the Department of Housing and Urban Development definition of “homelessness” to include children, youth and their families who are verified as “homeless” by federal program personnel from the following federal programs within the Departments of Health and Human Services, and Education: school district homeless liaisons under the McKinney-Vento Homeless Assistance Act; Head Start; Runaway and Homeless Youth Act; and early intervention under Part C of the Individuals with Disabilities Education Act. The House Financial Services Subcommittee on Insurance, Housing and Community Opportunities held a hearing on H.R. 32 and approved the bill. There was no comparable Senate legislation.

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Supports.

 

 

Immigration Law

 

 

♦*Comprehensive Immigration Reform

 

S. 1258, comprehensive immigration reform legislation, would have, among other things, strengthened border security, enhanced worksite enforcement of immigration law, and required that the estimated 11 million undocumented immigrants present in the United States register with the government, pay taxes, learn English, pay a fine, pass a background check, and wait in line for legal permanent residence. S. 1258 was referred to the Senate Judiciary Committee, where there was no action on the bill. There was no comparable House legislation.

 

Supports comprehensive legislation that provides for new legal channels for future workers, a path to legal status for much of the undocumented population in the United States; family- and employment-based visa backlog reduction, and enhanced border security.

 

♦Deportation Process – Prosecutorial Discretion

 

In August 2011, President Obama announced that 300,000 pending deportations of undocumented immigrants in federal immigration courts were being reviewed on a case-by-case basis by a joint task force of the Department of Homeland Security and the Department of Justice to prioritize cases and focus the government’s efforts on deporting convicted criminals and those who might be a public safety or national security threat.

 

Supports.

 

*Detention Duration

 

H.R. 1932 would have expanded the authority of the secretary of Homeland Security to allow detention of certain non-citizens indefinitely and restrict judicial review of immigration detention decisions to habeas proceedings in the U.S. District Court for the District of Columbia. The House Judiciary Committee amended and approved H.R. 1932. There was no comparable Senate legislation.

 

Opposes.

 

♦*Detention Standards

 

In February 2012, U.S. Immigration and Customs Enforcement issued new detention standards for immigration facilities and announced plans to open new detention facilities that for the first time incorporate civil detention principles and address the needs and characteristics of the diverse detention population. The House Judiciary Subcommittee on Immigration Policy and Enforcement held a hearing on the new standards. H.R. 933 would have set forth detention standards for immigration detention facilities and convened a detention advisory committee, promulgated regulations regarding detainee care and custody, and implemented secure alternatives and protective alternatives for vulnerable aliens. H.R. 933 was referred to the House Judiciary Committee and the House Homeland Security Committee, where there was no action on the bill. There was no comparable Senate legislation.

 

Assisted in development of detention standards that went into effect in 2001 and 2012 and supports regulations for the standards to ensure consistent implementation. Adopted the ABA Civil Immigration Detention Standards. Opposes mandatory detention and supports increasing programs to provide alternatives to detention for those in the civil immigration system.

 

♦* Development, Relief, and Education for Alien Minors Act (DREAM Act)

 

S. 1258, comprehensive immigration reform legislation, S. 952 and H.R. 1842 would have allowed for an adjustment of status to legal permanent resident for minors who entered the United States before the age of 15, have been present in the country for at least five years prior to enactment, have not committed any crimes, and have been admitted to an institution of higher education or received a high school diploma or General Equivalency Diploma. S. 1258 and S. 952 were referred to the Senate Judiciary Committee. H.R. 1842 was referred to the House Judiciary Committee and House Homeland Security Committee. There was no action on the bills. In June 2012, the Department of Homeland Security announced a new policy to allow those who came to the United States as children or young adults to stay temporarily in the country if they meet certain criteria. The new policy, deferred action for childhood arrivals (DACA), went into effect 8/15/12.

 

Supports providing noncitizens who reside in the United States and who demonstrate significant ties to this country with an opportunity to acquire lawful permanent residence.

 

♦*Immigration Courts/Due Process

The Senate Judiciary Committee held a hearing on challenges and delays that asylum-seekers face in the immigration court system, which is housed in the Justice Department’s Executive Office of Immigration Review. The hearing focused on what can be done with current resources to increase efficiency and improve the quality of administration in the immigration courts.

 

Supports measures to improve the immigration court system and increase due process safeguards, including access to counsel for those in removal proceedings.

 

♦Refugee Protection Act

 

S. 1202 and H.R. 2185 would have eliminated the one-year time limit for filing an asylum claim, permitted and set forth the requirements for reopening a claim that was denied because of failure to file within one year, and revised the definition of refugee and the criteria for granting asylum. S. 1202 was referred to the Senate Judiciary Committee. H.R. 2185 was referred to the House Judiciary Committee, House Ways and Means Committee, and House Budget Committee. There was no action on the bills.

 

Supports.

 

♦*Unaccompanied Immigrant Children/Trafficking

 

S. 1301 and H.R. 2235 would have required training of Department of Homeland Security (DHS) personnel who come into contact with unaccompanied alien children, and set forth related protections for such children. S. 1301 also would have established child advocate programs at immigration detention sites for trafficking victims and vulnerable unaccompanied alien children and included provisions for individuals who reach the age of 18 and are transferred to DHS to be considered for placement in the least restrictive setting available, including alternative detention programs. The Senate Judiciary Committee amended and approved S. 1301. H.R. 2235 was referred to the House Judiciary Committee and the House Homeland Security Committee, where there was no action on the bill.

 

Supports appointment of counsel at government expense to represent unaccompanied children in immigration proceedings.

 

*Uniting Families

 

S. 821, H.R. 1537, and H.R. 1796 would have amended the Immigration and Nationality Act to eliminate discrimination in the immigration laws by permitting same-sex partners of U.S. citizens and lawful permanent residents to obtain lawful permanent resident status in the same manner as spouses of U.S. citizens and lawful permanent residents. S. 821 was referred to the Senate Judiciary Committee. H.R. 1537 and H.R. 1796 were referred to the House Judiciary Committee. There was no action on the bills.

 

Supports.

 

Visas

 

In January 2013 the Department of Homeland Security issued a final rule for a new provisional waiver process, effective 3/4/13, intended to reduce the amount of time U.S. citizens are separated from undocumented immediate relatives applying for visas. Under the current process, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the United States and obtain an immigrant visa abroad. Under the new rule, immediate relatives must still depart the United States for the consular immigrant visa process, but they can apply for a provisional waiver before they depart for their immigrant visa interview abroad.

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Supports steps to reduce the family-based visa backlog and to provide noncitizens who reside in the United States and who demonstrate significant ties to this country with an opportunity to acquire lawful permanent residence.

 

 

Intellectual Property Law

 

 

*Patent and Trademark Office (USPTO) Funding

 

P.L. 112-29 (H.R. 1249), the Leahy-Smith America Invents Act (AIA) signed 9/16/11, includes authorization language designed to ensure that all user fee collections of the USPTO, including collections in excess of the annual appropriations, are made available for USPTO use. Stronger provisions to guarantee USPTO access for all fee collections by removing USPTO funding from the appropriations process were included in earlier versions of the AIA and supported by the ABA, but those provisions were dropped from the final legislation. P.L. 112-55 (H.R. 2112), consolidated fiscal year 2012 appropriations legislation signed 11/18/11, includes $2.526 billion for the USPTO, the amount of user fees the USPTO expects to collect. P.L. 112-55 also includes language from the AIA that provides a mechanism for USPTO use of fee collections in excess of the annual appropriation. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including USPTO, through 3/27/12 at fiscal year 2012 funding levels.

 

Opposes diversion of patent user fees to fund other programs.

 

*First-Inventor-to-File Rule

 

P.L. 112-29 (H.R. 1249), the Leahy-Smith America Invents Act signed 9/16/11, includes provisions providing for the transition of the United States to a system in which a patent is awarded to the “first inventor to file,” to replace the current “proof-of-invention” system.

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Supports the “first-inventor-to-file” rule.

 

 

International Law

 

 

*China and WTO

 

The People’s Republic of China (PRC) has made some progress in liberalizing its legal services market since acceding to the World Trade Organization (WTO) in 2001, but there are still a number of important barriers on the ability of U.S. and other foreign law firms to operate in China. Currently U.S. law firms are unable to hire PRC-qualified lawyers to practice PRC law, and Chinese lawyers employed by a U.S. (or other foreign) law firm must surrender their licenses to the Ministry of Justice and are prohibited from practicing Chinese law during that period of employment. This prevents U.S. firms from being able to offer the comprehensive and integrated services expected by clients operating in the increasingly globalized economic environment.

 

Supports increased liberalization of the legal services market and full WTO compliance by China.

 

*India – Bilateral Investment Treaty

 

The United States and India continued to negotiate a bilateral investment treaty. A private Indian lawyer filed a lawsuit in the High Court of Madras seeking to limit the ability of U.S. lawyers to travel to India and give advice on their home jurisdictions’ laws to Indian clients or to U.S. clients who are present in India. The High Court rejected the lawyer’s petition and ruled in February 2012 that foreign lawyers may participate in international arbitration proceedings in India and advise clients on foreign laws on a “fly-in fly-out” basis.

 

Supports inclusion of legal services provisions in the treaty to provide reciprocal treatment of U.S.-licensed lawyers in India similar to the U.S. practice of allowing overseas licensed lawyers to provide legal services in the United States.

 

♦*International Affairs Budget – Rule of Law

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, reduced funding for the international affairs budget, providing $1.45 billion for membership in international organizations, including the United Nations; $1 billion for the U.S. Agency for International Development; $1.8 billion for peacekeeping activities; and $114.8 million for the Democracy Fund. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including the international affairs programs, at fiscal year 2012 funding levels through 3/27/13. S. 1848 and H.R. 2829 would have restricted U.S. payments to the United Nations and related agencies. The House Foreign Affairs Committee approved H.R. 2829. S. 1848 was referred to the Senate Foreign Relations Committee, where there was no action on the bill.

 

Supports funding for organizations and programs that assist in the establishment of the rule of law abroad. Supports congressional appropriations of funds for the full and prompt payment of arrears owed by the United States to the United Nations for general and peacekeeping assessments.

 

* Multilateral Development Banks

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, authorized U.S. participation in the share reallocation and capital increases of the World Bank, International Finance Corporation, Inter-American Development Bank, African Development Bank, and the European Bank for Reconstruction and Development.

 

Supports.

 

*Trans-Pacific Partnership (TPP)

 

The U.S. Trade Representative solicited comments regarding the interest expressed by Japan, Mexico and Canada in joining the TPP, a trade and investment partnership among the following nine countries: Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam and the United States.

 

Supports the Trans-Pacific Partnership and the inclusion of Japan, Mexico and Canada to increase trade in legal services and reduce barriers to U.S. lawyers.

 

*Trafficking Victims Protection

 

S. 1301, H.R. 2830 and H.R. 3589 would have reauthorized the Trafficking Victims Protection Act to enhance the reporting and prosecution of human trafficking and require more international collaboration to monitor and eliminate trafficking. The Senate Judiciary Committee held a hearing on S. 1301 and amended and approved the bill. The House Foreign Affairs Committee amended and approved H.R. 2830. H.R. 3589 was referred to the House Foreign Affairs Committee, House Ways and Means Committee, House Energy and Commerce Committee, and the House Judiciary Subcommittees on Immigration Policy and Enforcement, and Crime, Terrorism and Homeland Security, where there was no action on the bill. The president announced initiatives in September 2012 to expand resources and legal assistance to human trafficking victims and to strengthen government contractor compliance with anti-human trafficking efforts.

 

Supports.

 

*Treaties

 

The Senate Foreign Relations Committee held hearings on the Convention on the Rights of Persons with Disabilities (CRPD) and approved the treaty, but the Senate failed to garner the two-thirds vote necessary to pass a resolution of advice and consent to CRPD ratification. The Senate Foreign Relations Committee held a series of hearings on the Convention on the Law of the Sea, but took no further action on the treaty. H. Res. 20 would have expressed the sense of the House that the Senate should ratify the Convention on All Forms of Discrimination Against Women. H. Res. 20 was referred to the House Foreign Affairs Subcommittee on Africa, Global Health and Human Rights, where there was no action on the resolution. S. Res. 99 would have expressed the sense of the Senate that the Convention on the Rights of the Child is incompatible with the U.S. Constitution. S. Res. 99 was referred to the Senate Foreign Relations Committee, where there was no action on the resolution. There was no action on other ABA-supported treaties, including the Rome Statute for an International Criminal Court and the American Convention on Human Rights.

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Supports ratification of the treaties.

 

 

International Trade

 

 

Free-Trade Agreements

 

The president signed three free-trade agreements on 10/21/11: P.L. 112-41 (H.R. 3080), the United States-South Korean Free Trade Agreement; P.L. 112-42 (H.R. 3078), the United States-Colombia Trade Promotion Agreement; and P.L. 112-43 (H.R. 3079), the United States-Panama Trade Promotion Agreement.

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Supports the rule of law contributions made by free trade agreements. Supports appropriate access for U.S. lawyers to the legal services markets of key trade partners.

 

 

Legal Education

 

 

Thurgood Marshall Legal Educational Opportunity Program

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, included no funding for the Thurgood Marshall Legal Educational Opportunity Program, which provides assistance to low-income minority or disadvantaged students to help them gain access to and complete their legal studies. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including the Thurgood Marshall program, at fiscal year 2012 funding levels through 3/27/13. This program has not received federal funding in several years.

 

Supports the program.

 

*Law School Admissions – Disabilities

 

The ABA has encouraged Congress and the states to ensure that students with disabilities receive proper accommodations when taking the Law School Admissions Test (LSAT). A new California law, AB 2122, signed by the governor 9/26/12, requires test sponsors of the LSAT to provide proper accommodations and reduce the burden of test takers with disabilities.

 

Supports the rights of persons with disabilities to take the LSAT without unnecessary burdens.

 

*Law School Transparency

 

The ABA responded to concerns from senators about the transparency of information provided by law schools regarding employment data and how the information is collected and distributed to current and prospective law students. As part of the ongoing work of the ABA Section of Legal Education and Admissions to the Bar, the section has expanded and refined the methods of collection and the quality of job placement data that law schools must report to the section as part of their annual accreditation reporting.

 

Taking steps to ensure law schools provide more complete reporting information.

 

Loan Forgiveness and Repayment Assistance

 

P.L. 112-55 (HR. 2112), consolidated fiscal year 2012 appropriations legislation enacted 11/18/11, provided $4 million for the John R. Justice Prosecutors and Defenders Incentive Act for student loan repayment assistance for lawyers employed as federal and state prosecutors and public defenders. P.L. 112- 175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including the John R. Justice program, at fiscal year 2012 funding levels through 3/27/13.

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Supports the program.

 

 

Legal Services

 

 

Interest on Lawyers Trust Accounts (IOLTA)

 

S. 3637 would have extended unlimited FDIC coverage for IOLTAs and certain other bank accounts. The new FDIC limit will be $250,000 per person (not per IOLTA account) per banking institution. The Senate defeated the bill on a budget point of order. IOLTAs will continue to have FDIC protection, but it will not be unlimited as of 1/1/13.

 

Supports the full FDIC coverage of IOLTAs.

 

♦*Legal Services Corporation (LSC)

 

P.L. 112-10 (H.R. 1473), consolidated fiscal year 2011 appropriations legislation signed 4/11/11, reduced LSC funding from $420 million to $404.2 million. P.L. 112-55 (H.R. 2112), consolidated fiscal year 2012 appropriations legislation signed 11/18/11, included $348 million for the LSC. P.L. 112-175 (H.J. Res 117), continuing appropriations legislation signed 9/28/12 that funds the government through 3/27/13, increased LSC funding to $350 million.

 

Supports the adequate funding of the LSC to increase the effectiveness and efficiency of the delivery of legal services to the poor.

 

Medical-Legal Partnerships

 

S. 1609 would have directed the Secretary of Health and Human Services (HHS) to establish a nationwide demonstration project to award matching grants or enter into contracts with medical-legal partnerships, which bring legal aid services into medical settings to assist patients and their families in navigating health-related programs and activities. S. 1609 was referred to the Senate Health, Education, Labor and Pensions Committee, where there was no action on the bill. There was no comparable House legislation.

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Support medical-legal partnerships to integrate lawyers in a health care setting to help patients navigate the complex legal system.

 

 

Legal Research

 

 

*Law Library of Congress (LLOC)

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, included $587.3 million, a 6.6 percent reduction, for the Library of Congress, which houses the LLOC. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including the Library of Congress, at fiscal year 2012 funding levels through 3/27/13.

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Supports full funding for the LLOC to allow for enhancement of services, including electronic development, reclassification and cataloguing. Also urges Congress to appropriate funds for planned archival facilities for the Library of Congress collection.

 

 

Military Law

 

 

Don’t Ask, Don’t Tell

 

“Don’t Ask, Don’t Tell,” the policy banning openly gay people from serving in the U.S. military, ended on 9/20/11 as required by P.L. 111-321, a law enacted during the 111th Congress. Under the law, repeal was effective 60 days after the president, the Defense secretary and the chairman of the Joint Chiefs of Staff certified that the Department of Defense had prepared the necessary policies and regulations and that implementation of the policies and regulations was consistent with the standards of military readiness and effectiveness, unit cohesion and military recruiting retention. The certification was sent to Congress on 7/22/11.

 

Supports.

 

Homeless Veterans

 

P.L. 112-154 (H.R. 1627), signed 8/6/12, includes several provisions benefitting homeless veterans or veterans at risk of homelessness through improving access to veterans homelessness service programs and the administration of claims. S. 3309 would have made improvements to existing housing and supportive services programs for homeless veterans or those at risk of homelessness. S. 3049 and H.R. 4287 would have amended federal law to expand the definition of “homeless veteran” to promote stable and safe housing and related supportive services for a veteran or veteran’s family fleeing domestic violence, dating violence, sexual assault, stalking or other dangerous living conditions. The Senate Veterans’ Affairs Committee held a hearing on numerous veterans bills, including S. 3049 and S. 3309. The House Financial Services Subcommittee on Insurance, Housing and Community Opportunity held a hearing on homeless veterans. H.R. 4287 was referred to the House Veterans’ Affairs Committee, where there was no action on the bill.

 

Supports.

 

♦Legal Services for the Military

 

S. 1106 would have authorized the Department of Defense to divert up to $500,000 in surplus funds already appropriated for other purposes to support pro bono legal assistance programs benefitting military servicemembers and their families. The provisions of S. 1106 were included in the Senate version of fiscal year 2012 defense authorization legislation but not in the final act, P.L. 112-81 (H.R. 1540), signed 12/31/11. S. Rept. 173, the Senate Armed Services committee report for the fiscal year 2013 defense authorization legislation, includes language lauding the ABA Military Pro Bono Project and directing the secretary of Defense to make recommendations by 3/1/13 for revenue-neutral support for the ABA project. P.L. 112-81 and P.L. 112-239 (H.R. 4310), fiscal year 2013 defense authorization legislation signed 1/2/13, include provisions strengthening legal protections for survivors of sexual assault in the military by ensuring that victims have access to legal assistance and maintaining their option of confidential reporting even if they seek legal counsel.

 

Supports.

 

Military Child Custody

 

Several legislative proposals would have amended the Servicemembers Civil Relief Act to offer protection for deployed military servicemembers who are parents: H.R. 4201; Section 573 of the House-passed version of H.R. 1540, fiscal year 2012 defense authorization legislation; and Section 564 of House-passed version of H.R. 4310, fiscal year 2013 defense authorization legislation. Each proposed superseding state laws in child custody cases in an attempt to prevent servicemembers from losing child custody by sole reason of their deployment. The provisions, however, would have created liabilities for military parents and introduced federal litigation in child custody cases. The House passed H.R. 4201, but there was no further action on the bill. The provisions were not included in the final version of the defense authorization bills: P.L. 112-81 (H.R. 1540), signed 12/31/11, and P.L. 112-239 (H.R. 4310), signed 1/2/13.

 

Maintains that military deployment or threat of deployment alone should not be the basis of denial or permanent change in custody, and supports ensuring this through state law.

 

Veterans Treatment Courts

 

The Senate Judiciary Subcommittee on Crime and Terrorism held a hearing on the development of veterans treatment courts. H.R. 2026 would have authorized a competitive grant program to be administered by the Office of National Drug Control Policy encouraging the use and development of veterans treatment courts. H.R. 3721 would have authorized the establishment and use of veterans treatment courts under the Omnibus Crime Control and Safe Streets Act of 1968. S. 3702 would have provided grants to establish veterans treatment courts. H.R. 2026 and H.R. 3721 were referred to the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. S. 3702 was referred to the Senate Judiciary Committee. There was no action on the bills.

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Supports.

 

 

National Security

 

 

*Cybersecurity

 

The president issued a comprehensive cybersecurity policy proposal in May 2011. More than 100 cybersecurity-related bills were introduced during the 111th and 112th Congresses, and numerous hearings were held in the House and Senate. The Senate failed twice to invoke cloture and proceed to consideration of S. 3414, a bipartisan bill placed directly on the Senate calendar that would have established a public-private partnership between the federal government and private-sector technology firms to develop voluntary cybersecurity practices to increase protection of the country’s cyber-infrastructure. In spite of a veto threat from the White House based on privacy concerns, the House passed H.R. 3523, a bipartisan cybersecurity information-sharing bill, along with three other cyber-related bills (H.R. 2096, H.R. 3834 and H.R. 4257).

 

No position on specific bills, but adopted new policy comprised of five principles that the association is urging the executive and legislative branches to consider when making policy determinations for improving cybersecurity for the U.S. public and private sectors.

 

♦*Guantanamo Detainees

 

The president issued an executive order 3/7/11 announcing a new review policy for detainees at Guantanamo Bay, Cuba, and the resumption of trials before military commissions. P.L. 112-81 (H.R. 1540), fiscal year 2012 defense authorization legislation signed 12/31/11, requires the use of military detention rather than civilian arrest for virtually all non-citizen terrorist suspects associated with al Qaeda and other forces involved in hostilities against the United States, regardless of place of capture. The law authorized indefinite detention of those suspects without trial until the end of hostilities and permitted trial by military commission of all terrorist suspects, including U.S. citizens or lawful residents, even in situations where trial by an Article III court would be possible. The law also included provisions prohibiting the use of appropriated funds to transfer non-citizens held by the U.S. military on foreign soil to the United States. P.L. 112-239 (H.R. 4310), fiscal year 2013 defense authorization legislation signed 1/2/13, extends the limits on transfer of detainees, including restricting transfers of certain detainees from the Parwan prison at Bagram Air Base in Afghanistan. The president issued a signing statement in 2012 disagreeing with many of the detainee provisions and clarifying that his administration will not authorize the indefinite military detention without trial of American citizens. In 2013, he issued a signing statement continuing to oppose limits on transfer of detainees, including the new limits on transfers from Parwan.

 

Supports release and resettlement of all detainees at Guantanamo who are not considered “enemy combatants.” Supports prosecution in Article III federal courts of detainees charged with criminal law violations unless the attorney general certifies that prosecution cannot take place before such courts.

 

♦*Military Commissions

 

The president issued an executive order 3/7/11 lifting a two-year moratorium on military commission trials for those detained at Guantanamo Bay and designated as “enemy combatants.” The attorney general referred the cases of five individuals accused in the 9/11 terrorist attacks to the Department of Defense to proceed in military commissions to be held at Guantanamo Bay. The action reversed the Justice Department’s earlier plans to bring the alleged terrorists to trial in federal district court in New York.

 

Supports prosecution in Article III federal courts of detainees charged with criminal law violations, unless the attorney general certifies that prosecution cannot take place before such courts.

 

♦*Guantanamo – Access to Counsel

 

The Department of Defense proposed a new rule in December 2011 that would have allowed privileged attorney-client communications between attorneys and their Guantanamo detainee clients to be intercepted and reviewed by the U.S. government and sometimes withheld from the detainees. The chief defense counsel for the war crimes tribunal at Guantanamo issued an order in January 2012 instructing military attorneys not to follow the order requiring them to submit attorney-client privileged materials for review. The Department of Justice (DOJ) proposed a change in policy that would have required lawyers representing Guantanamo detainees whose habeas corpus petitions were no longer pending to sign a memorandum of understanding that shifted the authority over lawyer access to their clients from the courts to the Defense Department commander of the Joint Task Force-Guantanamo. A federal judge ruled against DOJ on 9/6/12, ordering that the protective order that has been in place for the prior eight years will continue to govern access to counsel for detainees.

 

Opposed the proposed changes.

 

USA PATRIOT Act/Foreign Intelligence Surveillance Act (FISA)

 

P.L. 112-14 (S. 990), signed 5/26/11, extended the “library,” “roving wiretaps” and “lone wolf” provisions of the USA PATRIOT Act through 6/1/15. P.L. 112-238 (H.R. 5949), signed 12/30/12, reauthorizes through 12/31/17 the Title VII provisions of FISA, which govern electronic surveillance of foreign terrorism suspects.

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Urges Congress to conduct a thorough review and regular oversight of executive branch powers under the USA PATRIOT Act.

 

 

Tax Law

 

 

*Internal Revenue Service (IRS) Funding

 

P.L. 112-74 (H.R. 2055), consolidated fiscal year 2012 appropriations legislation signed 12/23/11, provided $11.8 billion for the IRS, a decrease of $305 million from the fiscal year 2011 level. P.L. 112-175 (H.J. Res. 117), continuing appropriations legislation signed 9/28/12, funds the federal government, including the IRS, at fiscal year 2012 funding levels through 3/27/13.

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Opposed proposed reductions of up to $650 million for the IRS and urges Congress to provide adequate funding for the IRS to perform its mission.

 

 

Tort and Insurance Practice

 

 

*Insurance Regulation

 

The Treasury Department’s Federal Insurance Office (FIO) requested public input on how to modernize and improve the system of insurance regulation in the United States for a study required by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.

 

Supports the FIO and recommends specific ways states can improve procedures for dealing with insolvent insurance companies and improve the operation of the current state receivership system.

 

*Medical Professional Liability

 

H.R. 5 and other legislation would have, among their provisions, preempted state law to do the following: cap noneconomic damages and punitive damages in medical liability cases at $250,000; provide that each party is responsible only for their damages; and empower courts to restrict payment of damages to the attorney and cap contingent fees at certain limits. H.R. 5652, a budget bill, included similar medical liability provisions. The House Judiciary Committee and the House Energy and Commerce both approved H.R. 5, and the House passed the bill. The House passed H.R. 5652. There was no comparable Senate legislation.

 

Opposes caps on pain and suffering awards and federal preemption of state medical malpractice laws, but supports certain changes at the state level.

 

♦*Medicare Secondary Payer Act

 

P.L. 112-142 (H.R. 1845), signed 1/10/13, includes provisions amending the Social Security Act to provide certainty and efficiency in the Medicare set-aside process for liability claims. H.R. 5284 would have addressed confusion and uncertainty in situations where Medicare is a secondary rather than the primary payer of medical expenses related to workplace injuries. The House Energy and Commerce Subcommittee on Oversight and Investigations held a hearing to examine the Medicare Secondary Payer system. S. 1718 was referred to the Senate Finance Committee, where there was no action. The House Energy and Commerce Committee approved H.R. 1063. H.R. 5284 was referred to the House Ways and Means Subcommittee on Health and the House Energy and Commerce Subcommittee on Health, where there was no action on the bill.

 

Supports legislation to clarify the Medicare set-aside process for both workers’ compensation and liability cases.

 

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