One rumor floating around related to the soon-to-be-vacant bankruptcy judgship in Rochester is that the Hon. Margaret Cangilos-Ruiz, currently the bankruptcy judge in the Northern District of New York, Syracuse Division, would be appointed to the Rochester position.
I have absolutely no inside information to substantiate this rumor, but if it is based on the assumption that Judge Cangilos-Ruiz is somehow a ‘temporary’ judge, with a term soon to expire, this is an incorrect assumption. And a bill now pending in Congress would extend the temporary judgeship in the Northern District for another five years.
Section 152 of Title 28 of the United States Code assigns a specific number of bankruptcy judges to each court in the country. The Western District of New York (Rochester and Buffalo) is assigned three permanent judges, while the Northern District of New York (Albany to Syracuse) is assigned two. Bankruptcy judges are appointed for fourteen year terms, and are appointed by the circuit court of appeals (not by the President, unlike District Court judges.)
No permanent slots for bankruptcy judges have been added anywhere in the country in nearly twenty years; instead, Congress has expanded the bankruptcy bench by adding ‘temporary’ judgeships. So, for example, the number of bankruptcy judges in the Northern District of New York was ‘temporarily’ enlarged from two to three in 2005. Judge Cangilos-Ruiz was that third judge added to the district, effective February 16, 2007. However, she was appointed to a full 14 year term, and can be reappointed just like any other bankruptcy judge.
So what does it mean that the third judgeship is ‘temporary’ in the Northern District? It means that any vacancy in the district five years after the third judge was appointed will remain vacant. The actual wording of the statute (28 USC Sect. 152, as amended in 2005) is as follows:
“The first vacancy occurring in the office of bankruptcy judge in each of the judicial districts set forth in paragraph (1) – (i) occurring 5 years or more after the appointment date of the bankruptcy judge appointed under paragraph (1) to such office; and (ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge; shall not be filled.”
Therefore, unless the temporary judgship is extended, the first death, retirement, resignation or removal of a Northern District bankruptcy judge after February 16, 2012 will not be replaced; the third judgship will be considered to have lapsed. But until then, all three judges in that district may serve full terms and are eligible for reappointment.
A bill now pending in Congress (H.R. 1021) would extend many temporary bankruptcy judgeships an additional five years, including the Northern District of New York. The bill passed the House of Representatives December 6, 2011. A companion Senate bill, S.1821, was referred out of the Judiciary Committee December 15 and could be enacted by the Senate at any time.
It is possible that a judge in the Northern District could sit in the Western District (or vice versa.) 28 US 152(d) includes this provision: “(d) With the approval of the Judicial Conference and of each of the judicial councils involved, a bankruptcy judge may be designated to serve in any district adjacent to or near the district for which such bankruptcy judge was appointed.”