Duplantier v. U.S., No. 79-2351

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GEWIN, AINSWORTH and REAVLEY; AINSWORTH; The government argues that a judgment against the United States and the Attorney General will be inadequate as the Attorney General plays a secondary role in the enforcement of the Act since he merely b
• Citation: 606 F.2d 654
• Parties: Adrian G. DUPLANTIER, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Docket Number: No. 79-2351
• Decision Date: 19 November 1979

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606 F.2d 654 Adrian G. DUPLANTIER, et al., Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee. No. 79-2351. United States Court of Appeals,
Fifth Circuit. Nov. 19, 1979.
Rehearing and Rehearing En Banc Denied Dec. 12, 1979.

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Talley, Anthony, Hughes & Knight, Richard F. Knight, R. Bradley Lewis, Bogalusa, La., for plaintiffs-appellants.

Neil H. Koslowe, U. S. Dept. of Justice, Washington, D. C., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEWIN, AINSWORTH and REAVLEY, Circuit Judges.

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AINSWORTH, Circuit Judge:

At issue in this class action brought by federal judges is the complex legal question of whether an act of Congress the Ethics in Government Act of 1978 insofar as its provisions require federal judges annually to file personal financial statements available for public inspection, is violative of the Constitution of the United States. ¹ After carefully balancing the interests involved we conclude that the Act is not unconstitutional. We therefore affirm, but on different grounds, the district court's denial of a preliminary injunction against enforcement of those provisions of the Act which pertain to the federal judiciary, and vacate the court's order staying enforcement of the Act pending determination of this suit.

I.

The Ethics in Government Act of 1978 was enacted to "preserve and promote the accountability and integrity of public officials . . . ." ² Title III is that part of the Act ³ specially applicable to the federal judiciary and requires judges to file annually

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with the Judicial Ethics Committee a personal financial report containing a full statement of assets, income and liabilities, and those of their spouses and dependent children. ⁴ A second copy of the report must also be filed with the clerk of the court on which the judge sits or serves. ⁵ Reports on file with the Judicial Ethics Committee and the clerks of court are public documents, available for inspection and

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reproduction. ⁶ The Judicial Ethics Committee was established by the Judicial Conference of the United States under provisions of the Act, ⁷ is responsible for developing the forms for these reports, and has control over the receipt, custody, and public disclosure of the reports filed with it. ⁸ The Attorney General of the United States is authorized to bring civil actions against individual federal judges who willfully or negligently violate the financial reporting provisions of the Act. Penalties for willful violations may not exceed $5,000, and penalties for negligent violations may not exceed $1,000. ⁹

This action was filed May 14, 1979 in the United States District Court for the Eastern District of Louisiana by six federal district court judges as a class action on their own behalf, and on behalf of all persons similarly situated, to enjoin enforcement of Title III of the Ethics in Government Act. In the original complaint plaintiffs named as sole defendant the United States of America, and alleged that the Act violates the constitutional doctrine of the separation of powers of the three branches of government. Plaintiffs also alleged that imposition of a civil penalty as provided by the Act would diminish a judge's compensation, in violation of Article III of the Constitution. Plaintiffs contended that the Act constitutes an invasion of a judge's right of privacy. Finally, plaintiffs alleged that the Act denies due process of law and equal protection of the laws contrary to the provisions of the Constitution. They alleged that each plaintiff has filed or is willing to file the financial reports, but not for public disclosure. Plaintiffs sought a temporary restraining order against enforcement of the Act in addition to preliminary and permanent injunctive relief.

After a hearing on May 15, the final day set by Congress for compliance with the disclosure provisions of the Act, ¹⁰ the district court issued a temporary restraining order enjoining enforcement of the law pending a hearing on plaintiffs' application for a preliminary injunction. On May 24, plaintiffs amended their complaint to name as defendants, in addition to the United States, Griffin B. Bell, individually and in his official capacity of Attorney General of the United States; Judge Edward Allen Tamm, individually and in his official capacity as the chairman of the Judicial Ethics Committee, and the Judicial Ethics Committee.

A hearing on plaintiffs' motion for a preliminary injunction was held on May 25. Plaintiffs' motion to consolidate the hearing on the merits with the hearing for a preliminary injunction was opposed by the United States and denied by the court. Plaintiffs asserted that the district court had subject matter jurisdiction of the case under the provisions of 28 U.S.C. § 1331(a), ¹¹ and argued that the court also had In personam jurisdiction over all named defendants pursuant to 28 U.S.C. § 1391(e). ¹² Counsel for

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the United States of America conceded jurisdiction of the court as to the United States of America and Griffin B. Bell, the Attorney General, but made a special appearance on behalf of Judge Tamm and the members of the Judicial Ethics Committee to contest personal jurisdiction over these parties.

During the hearing, counsel for plaintiffs presented their entire case, stating that it was not their intention to offer any additional evidence on a hearing for a permanent injunction. ¹³ At the conclusion of the hearing, the district court took the case under advisement and extended the temporary restraining order for an additional ten days. Rule 65(b), Fed.R.Civ.P.

On June 4, the district court issued its memorandum opinion denying plaintiffs' motion for a preliminary injunction. The court held that although it had subject matter jurisdiction of the case under 28 U.S.C. § 1331(a), it lacked In personam jurisdiction of the Judicial Ethics Committee, Judge Tamm, its chairman, and the clerks of court; therefore, adjudication on the merits as to these parties was precluded. Section 1391(e), which provides for nationwide service of process in "(a) civil action in which a defendant is an officer or employee of the United States or any agency thereof" and which was relied upon by plaintiffs to establish personal jurisdiction over Judge Tamm and the Committee, was held to apply only to the executive branch of government, citing Liberation News Service v. Eastland, 2 Cir., 1970, 426 F.2d 1379. The court pointed out that under 5 U.S.C. § 701(b)(1)(A), (B), the term "agency" means each authority of the United States but does not include the Congress and the courts of the United States. The court rejected plaintiffs' argument that the Judicial Ethics Committee was performing executive functions in administering the Act and that section 1391(e) was therefore applicable. The court also held that the Louisiana long-arm statute, La.R.S. 13:3201 another means of effectuating extraterritorial service of process was "inapplicable to these parties on its face." The court found that it had both subject matter and In personam jurisdiction over the defendants United States of America and Griffin B. Bell. However, the court held that the provisions of the Act "relegate the responsibilities of the United States, and more specifically, the Attorney General, to a secondary status," ¹⁴ and that any relief it could grant plaintiffs against the Attorney General and the United States would therefore be "premature and incomplete." Accordingly, the district court refused to pass upon the merits of the case or the constitutionality of the Act.

The district court did not dismiss the suit but held that it would "defer reaching the merits as to the United States or the Attorney General until it becomes clear which court may exercise jurisdiction over all parties and grant complete relief," and stated it would then transfer the case, pursuant to 28 U.S.C. § 1404(a). However, the court issued an order pursuant to Rule 62(c), Fed.R.Civ.P., against the United States, the Attorney General, the Judicial Ethics Committee, Judge Tamm, and all clerks of court in all United States courts, staying enforcement of the Act "pending appeal of this decision or a final disposition on the merits before a court having In personam jurisdiction as to all parties."

Plaintiff judges contend on appeal that the district court erred in holding that it did not have jurisdiction to consider the constitutionality of the Act, and urge this court to grant the injunctive relief sought in the

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district court. The government contends that the district court was correct in determining that it lacked personal jurisdiction over Judge Tamm and the Judicial Ethics Committee, and argues that the district court correctly held that it could not grant adequate or complete relief in this case.

We agree with plaintiffs that the district court should properly have addressed the issue of the constitutionality of the Act upon the merits of their motion for a preliminary injunction. However, since, in our view, the Act is constitutional insofar as its provisions pertain to members of the federal judiciary, the district court could not properly have granted injunctive relief to plaintiffs. We therefore affirm the district court's denial of a preliminary injunction, and vacate the court's order staying enforcement of the Act.

II.

The first question for decision is whether the trial judge and the members of the panel of this court are disqualified from considering the case. Since the suit is a class action on behalf of all federal judges, at least technically all members of the federal judiciary have an interest in the outcome of this litigation sufficient to call into question their impartiality. 28 U.S.C. § 455(a) (Supp. V. 1975). ¹⁵

During the proceedings in the district court, the government requested that the district judge recuse...