McBryde, In re

• Decision Date: 14 August 1997
• Docket Number: No. 97-10800,97-10800
• Citation: 120 F.3d 519
• Parties: In re The Honorable John H. MCBRYDE, District Judge, United States District Court for the Northern District of Texas, Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 519

120 F.3d 519

In re The Honorable John H. MCBRYDE, District Judge, United

States District Court for the Northern District of

Texas, Petitioner.

No. 97-10800.

United States Court of Appeals, Fifth Circuit.

Aug. 14, 1997.

R. David Broiles, Kirkley, Schmidt & Cotten, L.L.P., Fort Worth, TX, William H. Jeffress, Jr., Scott L. Nelson, Jody Manier Kris, Miller, Cassidy, Larroca & Lewin, Washington, DC, for Petitioner.

Robert B. Fiske, Jr., Davis, Polk & Wardwell, New York City, for Respondent.

Petition for Writ of Mandamus to the Clerk of the United States Court of Appeals for the Fifth Circuit.

Before SMITH, DUHE and BARKSDALE, ^* Circuit Judges.

JERRY E. SMITH, Circuit Judge:

United States District Judge John McBryde petitions for a writ of mandamus directing Charles R. Fulbruge III, Clerk of the United States Court of Appeals for the Fifth Circuit, to file with this court a petition to enforce a subpoena. We deny the petition.

I.

This petition arises from complaint proceedings instituted against Judge McBryde under the Judicial Councils Reform and Judicial Conduct and Disability Act, 28 U.S.C. § 372. We need not describe here the bases for the complaints, for they are immaterial to the questions before us and, in any case, have been adequately discussed in a recent opinion resolving a related dispute. See In re McBryde, 117 F.3d 208, 209-18 (5th Cir.1997) ( "McBryde I" ).

An inquiry by the Judicial Council of the Fifth Circuit (the "Judicial Council") into the underlying complaints is ongoing. ¹ The instant dispute concerns preparations for an evidentiary hearing that a Special Committee of the Judicial Council (the "Special Committee"), acting under the authority of 28 U.S.C. § 372(c), has scheduled for August 25, 1997. On April 24, 1997, the Special Committee held a preliminary hearing at which, according to Judge McBryde, Fifth Circuit Chief Judge Politz (acting in his capacity as presiding officer of the Judicial Council) and Judge McBryde's counsel discussed the procedures by which Judge McBryde could obtain subpoenas for the purpose of presenting evidence in the evidentiary hearing. Also according to Judge McBryde, Chief Judge Politz instructed counsel that such subpoenas could be obtained by contacting Mr. Fulbruge, the Clerk of this court. Judge McBryde subsequently submitted eighteen subpoenas and subpoenas duces tecum to the Clerk, who signed each of the subpoenas and issued them bearing the seal of the Fifth Circuit.

A dispute arose as to the subpoena duces tecum issued to Postal Inspector Rex S. Whiteaker, who was a witness and one of the complainants against Judge McBryde. Whiteaker claimed that certain notes requested by the subpoena were under seal by order of the United States District Court for the District of Arizona; Judge McBryde disagreed.

On June 26, 1997, Judge McBryde submitted to the Clerk a petition to enforce this subpoena, intending that the petition be heard by the Fifth Circuit. The Clerk, however, advised Judge McBryde's counsel that the petition instead would be filed with the Judicial Council under the docket numbers that had been assigned to the complaint proceeding. On July 10, the Judicial Council and Special Committee issued a joint order vacating all eighteen subpoenas and describing the proper procedure for the issuance of future ones:

[T]he subject judge must direct his request for the issuance of subpoenas or subpoenas duces tecum to the special investigating committee along with his reasons why the witnesses and documents are relevant and necessary. Any such requests shall be filed with Circuit Executive Gregory A. Nussel, Secretary of the Council, who will then forward the requests to the special investigating committee. The special investigating committee will then act on that request and issue appropriate instructions to the Clerk, United States Court of Appeals for the Fifth Circuit, relative to the issuance of the requested subpoenas. The clerk is directed to forward all filings of the Honorable John H. McBryde requesting issuance of subpoenas/subpoenas duces tecum (whether filed before this date or hereafter) to the special investigating committee.

In re McBryde, Nos. 95-05-372-0023, 95-05-372-0023(A)-(D), at 2-3 (5th Cir. Judicial Council July 10, 1997).

On July 16, 1997, Judge McBryde's counsel wrote the Clerk, again requesting that the petition to enforce the Whiteaker subpoena be filed with the Fifth Circuit and pointing out that it was, in his view, "not a part of the judicial misconduct proceedings before the Council or Special Committee." On the same day, the Judicial Council and Special Committee responded with a second order stating that, in light of the fact that the Whiteaker subpoena had been vacated, any proceeding to enforce it was now moot. The order also provided:

In the event Judge McBryde makes future application for the reissuance of the subpoena and a dispute arises over whether the subpoena will be issued and/or the scope of product of documents that will be required under the subpoena, that dispute will be addressed by the special investigating committee as an arm of the Fifth Circuit Judicial Council.

In re McBryde, Nos. 95-05-372-0023, 95-05-372-0023(A)-(D) (5th Cir. Judicial Council July 16, 1997).

In accordance with the July 10 and July 16 orders, the Clerk continued to refuse to file the petition to enforce the Whiteaker subpoena with the Fifth Circuit rather than with the Special Committee. Judge McBryde subsequently brought the instant petition for a writ of mandamus, which seeks to compel the Clerk to file the petition to enforce the Whiteaker subpoena with the Fifth Circuit.

II.

As a threshold matter, we must determine whether the petition to enforce the Whiteaker subpoena is properly before this court. Judge McBryde argues that, by redirecting the subpoena to the Judicial Council, the Clerk has improperly abrogated his duty to file the petition to enforce the Whiteaker subpoena in this court. The writ of mandamus is an appropriate remedy to cure a "usurpation of judicial power." Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S.Ct. 234, 238, 13 L.Ed.2d 152 (1964); In re Stone, 986 F.2d 898, 901 (5th Cir.1993) (per curiam).

We sympathize with the Clerk, who quite reasonably concluded that matters pertaining to the disciplinary proceedings should be directed to the Judicial Council. Nonetheless, we conclude that this court must initially consider all petitions addressed to it, even if we ultimately find that we have no jurisdiction to adjudicate such petitions on the merits. The principle of open access to the courts demands that every claim for relief raised in a federal court must be decided by that court.

We have never considered whether a petition seeking to enforce a subpoena duces tecum issued under the seal of the Fifth Circuit, pursuant to Judicial Council proceedings, is a matter within the jurisdiction of the Fifth Circuit or the Judicial Council. Hence, we are sensitive to the dilemma posed by the instant petition, which invoked the jurisdiction of the Fifth Circuit yet concerned proceedings of the Judicial Council. Under these circumstances, absent any prior guidance from this court, no one reasonably could criticize the decision to direct the petition to the Judicial Council.

Nevertheless, the power to dismiss a pleading rests exclusively with this court, not with the Clerk. As we have recently explained, "in the absence of specific instructions from a 'judicial officer,' the clerk of court lacks authority to refuse or to strike a pleading presented for filing." McClellon v. Lone Star Gas Co., 66 F.3d 98, 102 (5th Cir.1995). Accordingly, the petition to enforce the Whiteaker subpoena properly invoked the jurisdiction of the Fifth Circuit and should have been submitted to this court for disposition.

For example, it is well established that the clerk of a court of appeals may not refuse to file a pleading for failure to comply with requirements of form. According to FED.R.APP.P. 25(a)(4), "[t]he clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or by any local rules or practices." Filings in the district courts are governed by FED.R.CIV.P. 5(e), the last sentence of which is identical to rule 25(a)(4).

It has long been the practice of this court to interpret rule 25(a)(4) according to its plain language, permitting rejection of pleadings only on the order of a judge, not at the discretion of the Clerk. ² Likewise, in McClellon, 66 F.3d at 102, we held that the Clerk has no discretion to reject a pleading for failure to comply with form requirements unless a "judicial officer" orders the Clerk to strike the pleading. The same rule applies to pleadings that invoke our jurisdiction, as it is axiomatic that this court always has jurisdiction to determine its own jurisdiction. ³ Therefore, the petition to enforce the subpoena should have been submitted to the Fifth Circuit for decision. ⁴ From this, it follows that the petition to enforce the Whiteaker subpoena is properly before this duly-constituted panel of the Fifth Circuit, the parties have fully briefed the underlying jurisdictional issue, and the disciplinary proceedings that form the basis of the dispute are imminent.

We emphasize that our decision regarding jurisdiction over the petition should not be interpreted as a criticism of the Clerk, who performed his duties in this case with admirable discretion. In his dual capacity as an officer of both the Fifth Circuit and the Judicial Council, the Clerk must wear two hats. The extraordinary circumstances of this case have blurred the line between those two distinct roles. Absent guidance from a panel of this court, it was not unreasonable for the Clerk to conclude that a petition to enforce a subpoena issued in connection with a Judicial Council disciplinary proceeding should be...