Doe v. Univ. of Mich. (In re Univ. of Mich.)

• Decision Date: 23 August 2019
• Docket Number: No. 19-1636,19-1636
• Citation: 936 F.3d 460
• Parties: IN RE: UNIVERSITY OF MICHIGAN, et al. Petitioners. John Doe, Plaintiff-Respondent, v. University of Michigan; University of Michigan Board of Regents, Defendants-Petitioners.
• Court: U.S. Court of Appeals — Sixth Circuit

936 F.3d 460

IN RE: UNIVERSITY OF MICHIGAN, et al. Petitioners.John Doe, Plaintiff-Respondent,

v.University of Michigan; University of Michigan Board of Regents, Defendants-Petitioners.

No. 19-1636

United States Court of Appeals, Sixth Circuit.

Decided and Filed: August 23, 2019

THAPAR, Circuit Judge.

This case is about power. The power of district courts to manage their cases and our power to review that process. Questions about judicial power are far from new. At the founding, the Anti-Federalists feared that unchecked judges would become tyrants in robes. They warned that judges, "independent of the people, of the legislature, and of every power under heaven," would "soon feel themselves independent of heaven itself." Brutus XV, in 2 The Complete Anti-Federalist 438 (Herbert J. Storing ed. 1981). In response, the Federalists promised that judges would not usurp power because they can exercise neither "force nor will" but merely "judgment." The Federalist No. 78, at 465 (Alexander Hamilton) (J. Cooke ed., 1961). That is the original promise of the judicial branch.

But courts have not always lived up to that promise. At times, they exercise force or will beyond the mere judgment that our founding principles permit. Those principles lay down a clear rule: federal courts may only act if they have power to do so. And they only have power if Congress or the Constitution so provides. When courts act beyond that power, as the district judge did here, they abuse their discretion. We grant the University of Michigan’s petition for mandamus.

I.

John Doe sued the University of Michigan for violating his due-process rights during a school disciplinary hearing. This court remanded Doe’s case in light of a related ruling requiring live hearings and cross-examination in such proceedings. See Doe v. Baum , 903 F.3d 575, 578 (6th Cir. 2018). Upon remand, the district judge took two actions that led to this mandamus petition.

First, the district judge—frustrated with the University’s apparent foot-dragging—scheduled a settlement conference and required the University’s president to attend. The University requested that the president be allowed to attend by telephone or send a delegate in his place, but the district judge refused. Next, the University requested permission to send someone with both more knowledge about the sexual assault policy at issue and full settlement authority. While the district judge "100 percent" believed that such a person existed, he again refused. Pet. Exhibit A at 10. Instead, the district judge said he wanted the president to be there even if someone else with full settlement authority attended, and "even if the parties [we]re able to resolve the cross-examination issue as applied to Mr. Doe." Pet. Exhibit D at 3. The district judge made himself clear: "I want the President here. He will be here." Pet. Exhibit A at 10. The University planned for the president to attend.

But showing up was only half the battle. Two days before the settlement conference, the district judge decided that the conference (which he had assured the University would be private) should be a public event. The district judge reversed course because the case involved "matters of public interest." R. 54, Pg. ID 1805; Pet. Exhibit A at 10.

The surrounding media attention also grabbed the district judge’s interest. "[H]olding a settlement conference is the Court’s attempt to protect all parties ... from unnecessary publicity[.]" Response at 5. While the district judge acknowledged that "the press covered the story ... fully, and, for the most part, accurately," he worried that "the resulting publicity has neither helped the University’s image nor contributed to the resolution of this case." Id. at 6. The "change of heart" was also "prompted, at least in part, by the University’s public filing of a Motion to Dismiss .... The filing incited confusion amongst the media, ... ultimately causing the University to issue a statement clarifying its position on the matter." Id. at 7.

To sum up, the district judge summoned a specific high-ranking state official to attend a settlement conference in person, and then turned that private settlement conference into a public event because "the case concern[ed] matters of public interest" and sparked media attention. R. 54 at 1805. The University now seeks a writ of mandamus to remedy these actions.

II.

Federal courts are entrusted with great power. So where does that power come from? The answer is simple: from Congress and from the Constitution.

Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

The Constitution did not create lower federal courts. Rather, it vested the federal "judicial power" in the Supreme Court and in "such inferior courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, § 1, cl. 1. Congress established the lower courts and gave us certain powers. But it can also set limits on those powers, subject to constitutional constraints. See Patchak v. Zinke , ––– U.S. ––––, 138 S. Ct. 897, 906, 200 L.Ed.2d 92 (2018). Thus, courts must look to Congress for delegations of power and may not expand those delegations "by judicial decree." Kokkonen , 511 U.S. at 377, 114 S.Ct. 1673.

To be sure, not all of our powers are spelled out in the text of a federal statute. The Supreme Court has also recognized that the "judicial power" grants lower federal courts some "inherent power" to "manage their own affairs." Link v. Wabash Ry. Co. , 370 U.S. 626, 630, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). These powers are not broad or ill-defined. Rather, they often have an ancient pedigree—even predating the federal rules. See, e.g. , id. at 629–30, 82 S.Ct. 1386 ("The authority ... to dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot seriously be doubted .... The power is of ancient origin, having its roots in judgments of nonsuit and non prosequitur entered at common law[.]" (citing 3 William Blackstone, Commentaries on the Laws of England *295–96)). And inherent powers must be necessary for courts "to perform their functions." Kokkonen , 511 U.S. at 380, 114 S.Ct. 1673. Indeed, they must be "incidental to all Courts." Chambers v. NASCO, Inc. , 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).

Any power a lower federal court exercises must have some basis in either an act of Congress or the Constitution. Otherwise, it has no basis in law. Here, the district judge sought to do two things: (1) require the University president to attend the settlement conference and (2) make that settlement conference open to the public and the media. Neither had a basis in law. Thus, the district judge abused his discretion.

III.

A. Congress

Congress has given district courts great control over their dockets. After all, the modern federal district judge faces a challenge—she must balance administering just and lawful outcomes with the need to move cases along. That means she must be both a fair and impartial adjudicator and a conscientious and capable manager. The district judge’s job is not an easy one. But the Federal Rules of Civil Procedure provide tools to manage a busy docket, including the valuable tool of encouraging parties to settle when appropriate. See Fed. R. Civ. P. 16.

Timely and effective case management is even more difficult when you have a recalcitrant party. Here, the district judge was frustrated with the University because he believed the University was not acting in good faith and potentially not complying with Doe v. Baum . 903 F.3d 575. The district judge also expressed surprise that the University could not name a specific individual with full settlement authority besides the president.

Yet the district judge had a lawful avenue for dealing with bad faith settlement practices, if he thought the University’s actions reached that level. The Federal Rules allowed the district judge to sanction the University if it "fail[ed] to appear at a ... pretrial conference" or "d[id] not participate [in a pretrial conference] in good faith." Fed. R. Civ. P. 16(f)(1). But the rules did not allow the district judge to order a forced public settlement conference where the University’s principal executive is held to account.

Requiring a specific high-ranking government official to attend a settlement conference. Rule 16 provides that a "court may require that a party or its representative be present or reasonably available by other means to consider possible settlement." Fed. R. Civ. P. 16(c)(1). And the Federal Rules generally allow a district court to order someone with settlement authority to attend a settlement conference. See In re LaMarre , 494 F.2d 753, 756 (6th Cir. 1974). But this power is more limited when it comes to government actors. The Advisory Committee Notes explain that in cases involving government officials, it may be that nobody with settlement authority can attend, to say nothing of the highest-ranking official with such authority. There, "the most that should be expected is access to a person who would have a major role in submitting a recommendation to the body or board with ultimate decision-making responsibility." Fed. R. Civ. P. 16 Advisory Committee Notes (1993 Amendments); see also In re NLO, Inc. , 5 F.3d 154, 157 (6th Cir. 1993) ("The Supreme Court has established that ‘in ascertaining [the] meaning [of the Rules] the construction given to them by the Committee is of weight.’ " (quoting Miss. Pub. Corp. v. Murphree , 326 U.S. 438, 444, 66 S.Ct. 242, 90 L.Ed. 185 (1946) )).

Here, the University, a state actor, went further than the rules require—it offered the district judge a representative with full settlement authority. The district judge refused. He insisted that the president attend the conference because the president had a duty to explain University policy to his constituents. That is not a valid reason. Similarly, the district judge’s understandable desire to...