Procrastinating federal judges hurt justice and interpreters.
March 4, 2014 § Leave a comment
If you are a federally certified court interpreter in the United States you have surely provided interpretation services at the request of private attorneys, who are part of a panel kept by that district, according to the United States Criminal Justice Act, commonly referred to as the CJA (18 U.S. Code § 3006A) These attorneys, and I will refer to them as CJAs in this posting, are private lawyers appointed by a federal district court judge, or a federal magistrate, to represent a party who cannot afford his own private attorney in cases where representation by the Office of the Public Defender is not possible because of the physical location of the defendant or due to a conflict of interest. In other words, when there are codefendants and one is represented by the federal public defender, all others must be represented by private counsel or by a CJA panel attorney. CJA attorneys are known to most court interpreters because they are always at the courthouse, just like the public defenders. They have a big caseload, and many of their clients do not speak English. Because of defendants’ constitutional rights and the Civil Rights Act of 1964 these non-English speakers have the right to an interpreter that is also furnished under the same Criminal Justice Act: “…Representation under each plan shall include counsel and investigative, expert, and other services necessary for adequate representation…” (18 U.S. Code § 3006A) Federally certified court interpreters are asked to interpret during client-attorney office interviews, trial preparation, jail visits, and similar services requested by the CJA attorney. After the service is performed, the interpreter must prepare and submit to the District Court a CJA invoice form that the panel attorney signs. Once the form is submitted and verified for accuracy and completeness by the court’s financial department, it is sent to the federal district court judge or magistrate who has been assigned to that case for approval and signature. It is only after the judge signs the form and returns it to the court’s financial department that the interpreter gets paid. This process can take, depending on the district court, from one week to a month in average. All interpreters know this and accept it as part of the life of a freelancer. I should mention that this seemingly bureaucratic process is attractive to the freelance interpreter because of volume. In fact, in districts where there are several staff certified court interpreters this may be the bulk of the freelancers work for the courts.
Unfortunately, there are certain cases where this simple and straight forward payment process is unconscionably delayed. There are federal district court judges in the United States who hold back payment for incredibly long periods of time and there is no apparent reason or justification for this delay.
Dear colleagues, I am not talking about late filings or incomplete voucher forms; I am talking about withholding of invoices for no cause. I am afraid that there may be more that one judge following this practice; there is one among them, who shall remain anonymous in this blog, who has generated comments from colleague interpreters such as: “…Oh, that judge! One time it took well over a year to get paid for a half a day interpretation…he just didn’t approve the form any sooner…” And this one depicting the interpreter’s feeling of impotence: “…it always takes many months to get paid, but nobody dares to say anything because…well judges are appointed for life…” Finally, an interpreter summarized it very graphically in these words: “…the judge doesn’t care. There may be other priorities, but unlike federal judges, we cannot afford to go months without payment. We have to put food on the table for our families…” This particular judge has been on the bench for many years, by all accounts seems to have a good grasp of the law, but when it comes to other judicial skills, this judge has received poor reviews from a judicial evaluation commission such as: “…(the judge has exhibited) slowness when it comes to ruling on motions…” or: “…lack of punctuality to convene proceedings…” and even “…(having) poor judicial temperament while on the bench…” The judge was described as: “impatient,” “a yeller from the bench,” “mean spirited,” and “angry.”
I want to make it very clear that most judges and court clerical staff do a very good job at processing invoices and making sure interpreters are paid on a timely manner. Judges like the ones described above are the exception to the rule; but they exist and will continue on the bench.
Faced with this reality what can interpreters do to get paid on time? First the interpreter needs to make a distinction between those cases where the interpretation services have been rendered and the judge is procrastinating, and the cases where no service has been rendered yet.
For the first scenario there are the usual remedies that we all know: Talk to the chief staff interpreter once again, write to the clerk of the court, file a duplicate form with the court’s financial department; even talk to the judge’s clerk and explain your situation. This may accomplish the objective in some cases, but unfortunately it will fail most of the time because the approval of the form is not being delayed by any of these people. It is the judge who created the problem. So what is there left to do? Well, there may be a legal answer: The American legal system contemplates situations when the authority does not comply with its duty of doing or abstaining from doing something: The Writ of Mandamus. This may be an option available to the interpreter. The request for a Writ of Mandamus can be filed with the Court of Appeals having jurisdiction over the procrastinating district court judge asking the higher court to order the approval or denial of the interpreter’s invoice. “…(Courts) may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law…” [28 U.S. Code §1651(a)] Of course, before the interpreter decides to take this step, he must consider the consequences: (1) Because this blog is not giving any legal advice to anybody, the interpreter must consult with an attorney to see if a writ of mandamus is possible in that specific case; (2) The district court judge may simply deny the invoice. The writ can order that the authority take action but not the outcome of this action. Of course this may open other channels to the interpreter to appeal the judge’s decision on the invoice and that way get paid; and (3) The practical consequences of filing the petition including the possibility of being branded as a “troublemaker” by others, which could result in the loss of business and therefore the loss of income.
When the interpreter has not provided any interpretation services yet, that is, when interpreters are first contacted by the CJA attorney (or by the district court depending on the district) to request the interpretation services, the interpreter should always ask who is the judge in that particular case, and if it turns out to be a procrastinating judge’s case, the interpreter should refuse the assignment. Remember, you are a freelancer. Freelancing means that sometimes you may have to wait forever to get paid on a CJA voucher, but it also means that you are free to ban all procrastinating judges if you want to. The best way to avoid late payments is to avoid those clients who are always late. In fact, the interpreter should explain to the CJA attorney the reason for declining the assignment and reassure him that cases from all other federal judges will be accepted as usual. This should solve that interpreter’s problem. It may be very difficult to fix this procrastinating judges situation for all interpreters in all cases, but at least you will get paid on time.
Finally, I remind you again that this posting is not giving any legal advice to anybody, and I ask you to share with the rest of us your experiences and solutions to this terrible problem, and please do not mention any names.