299 F.3d 1357 (Fed. Cir. 2002), 01-5146, McBryde v. United States

Docket Nº:01-5146.
Citation:299 F.3d 1357
Party Name:John McBRYDE, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
Case Date:August 06, 2002
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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299 F.3d 1357 (Fed. Cir. 2002)

John McBRYDE, Plaintiff-Appellant,


UNITED STATES, Defendant-Appellee.

No. 01-5146.

United States Court of Appeals, Federal Circuit

Aug. 6, 2002

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David Broiles, Wells Purcell & Kraatz, of Fort Worth, Texas, argued for plaintiff-appellant. With him on the brief was Arnon D. Siegel, Robbins, Russell, Englert, Orseck & Untereiner LLP, of Washington, DC.

Shalom Brilliant, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General and David M. Cohen, Director.

Before NEWMAN, LOURIE and CLEVENGER, Circuit Judges.

Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by Circuit Judge PAULINE NEWMAN.


CLEVENGER, Circuit Judge.

The Honorable John McBryde ("Judge McBryde") appeals from a decision of the Court of Federal Claims granting summary judgment to the United States on his claim for reimbursement of legal expenses incurred in pursuing a mandamus action to the United States Court of Appeals for the Fifth Circuit. See McBryde v. United States, 50 Fed. Cl. 261, 267 (2001). Because we conclude that the trial court correctly interpreted and applied 28 U.S.C. § 463 and the Compensation Clause of the United States Constitution to the undisputed facts of this case, we affirm.


Judge McBryde is an active judge of the United States District Court for the Northern District of Texas. The roots of this case lie in a dispute over Judge McBryde's handling of two cases originally assigned to his docket: United States v. Satz, No. 4:94-CR-094-A (" Satz ") and Torres v. Trinity Industries Inc., No. 4:90-CV-812-A (" Torres "). Judge Jerry Buchmeyer, who was then the chief judge of the Northern District of Texas, being not content with Judge McBryde's conduct on the bench, transferred both Satz and Torres from Judge McBryde's docket to his own. The underlying facts of the two cases, as well as the chain of events that led to their removal from Judge McBryde's docket, are well documented elsewhere and will not be repeated here. See In re McBryde, 117 F.3d 208 (5th Cir.1997).

After the cases were transferred, Judge McBryde filed a "Request for Assistance" under 28 U.S.C. § 332(d)(1) with the Fifth Circuit Judicial Council seeking to have the two cases returned to his docket. In response to Judge McBryde's request, Judge Politz, then chief judge of the Fifth Circuit, issued an order forming a committee to "review, investigate, and report its recommendations on the matter brought before the Council by Judge McBryde, concerning the reassignment...." 1 The committee decided against Judge McBryde

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on his request for reassignment, and the Judicial Council issued an order invoking its own authority under 28 U.S.C. § 332 to reassign the Satz and Torres cases to Chief Judge Buchmeyer. After the Judicial Council issued its order affirming the reassignment, Judge McBryde--who had theretofore represented himself--retained legal counsel. Through counsel, Judge McBryde filed a petition in the Court of Appeals for the Fifth Circuit seeking a writ of mandamus ordering the Judicial Council and the Chief Judge of the Northern District of Texas to transfer Satz and Torres back to Judge McBryde's docket. During the course of the mandamus action, the Department of Justice provided counsel for the individual judges--other than Judge McBryde--and the Judicial Council retained private counsel. The Fifth Circuit issued the writ, holding that neither Chief Judge Buchmeyer nor the Judicial Council possessed the power to transfer cases from a district court judge due to dissatisfaction with the judge's handling of the cases. In re McBryde, 117 F.3d at 230-31. Judge McBryde subsequently defended against the Judicial Council's petition for rehearing en banc and petition for certiorari, both of which were denied.

Following the initial mandamus ruling by the Fifth Circuit, Judge McBryde requested reimbursement for his ongoing expenses stemming from the mandamus litigation from the Director of the Administrative Office of the U.S. Courts ("AO") pursuant to 28 U.S.C. § 463. The AO denied reimbursement because it viewed the mandamus action as offensive, rather than defensive, litigation, understanding section 463 to authorize reimbursement only for the costs of defensive litigation. After twice requesting reconsideration of the decision, both of which requests were denied, Judge McBryde filed suit in the United States District Court for the District of Columbia, seeking a declaratory judgment that the AO must pay his expenses from the mandamus proceeding. McBryde, 50 Fed. Cl. at 263. At this point, the total amount sought by Judge McBryde was $103,922.19. The district court transferred the case to the Court of Federal Claims in March 2001.

Following the transfer, Judge McBryde filed an amended complaint seeking compensation for his mandamus expenses under the Tucker Act, by virtue of both 28 U.S.C. § 463 and the Compensation Clause of the United States Constitution. Id. The government moved to dismiss for failure to state a claim, and Judge McBryde moved for summary judgment on both of his theories of recovery. Id. The court held for Judge McBryde on the threshold issue of whether section 463 is money-mandating, but held for the government on the merits as to both the section 463 and Compensation Clause claims. 2 Judge McBryde now appeals. We exercise jurisdiction over an appeal from a final decision of the Court of Federal Claims pursuant to 28 U.S.C. § 1295(a)(3).


We review the trial court's grant of summary judgment de novo, "determining whether the matter was amenable to summary resolution and, if so, whether the law was correctly applied to the undisputed facts." Mass. Bay Transp. Auth. v. United States, 129 F.3d 1226, 1230-31 (Fed.Cir.1997).

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As noted above, Judge McBryde seeks compensation based upon either section 463 or the Compensation Clause. We turn first to Judge McBryde's statutory claim.


Judge McBryde primarily bases his claim for relief on 28 U.S.C. § 463, which he argues mandates reimbursement in this case. Section 463 provides:

Whenever a Chief Justice, justice, judge, officer, or employee of any United States court is sued in his official capacity, or is otherwise required to defend acts taken or omissions made in his official capacity, and the services of an attorney for the Government are not reasonably available pursuant to chapter 31 of this title, the Director of the Administrative Office of the United States Courts may pay the costs of his defense. The Director shall prescribe regulations for such payments subject to the approval of the Judicial Conference of the United States.

Initially, we must address whether section 463 can be the basis of a Tucker Act claim--a threshold issue raised by the United States both here and before the trial court. As the United States rightly notes, Tucker Act jurisdiction arises only when the underlying statute "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained." United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (quoting Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002 (1967)). If, as the United States urges, section 463 cannot fairly be interpreted as mandating compensation, then neither the trial court nor we may reach the merits of Judge McBryde's claim based on that statute.

The United States argues that the language "may pay" in section 463 indicates that the statute is not money-mandating, and therefore that it cannot support a claim under the Tucker Act. The government's argument is based largely on Huston v. United States, 956 F.2d 259, 262 (Fed.Cir.1992), in which we held that the Court of Federal Claims did not have jurisdiction over a claim for a pay increase under 5 U.S.C. § 5333(b). In Huston, the statute provided that "an employee ... who regularly has responsibility for supervision ... over employees whose pay is fixed and adjusted ... by wage boards ... as nearly as is consistent with the public interest in accordance with prevailing rates, may be paid at one of the rates for his grade which is above the highest rate of basic pay being paid to any such prevailing-rate employee regularly supervised...." 5 U.S.C. § 5333(b) (1988) (emphasis added). The court held that the statute did not mandate increased pay for supervisory employees, but rather granted complete discretion to the hiring agency to determine whether such pay increases should be granted. Huston, 956 F.2d at 261. The plaintiff in Huston admitted that the agency had great discretion, and we agreed, holding that the pay increase provision was wholly discretionary. We also noted that several other sections of the statute use the mandatory term "shall" when referring to pay rates, and remarked that the choice between "may" and "shall" within the same statute indicates a differentiation between mandatory and discretionary tasks. Id. at 262. Huston also recognized that where discretion is not unlimited, the statute can be money-mandating, citing Bradley v. United States, 870 F.2d 1578, 1580 (Fed.Cir.1989).

Other cases decided after Huston, however, have clarified that a money-mandating provision can use the term "may." In Doe v. United States, for example, we held

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that the moiety statute, which authorizes the Secretary of the Treasury to compensate informants in customs investigations by giving them a portion of the recovery, is money-mandating, notwithstanding its use of the word "may." 100...

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