Ostrander v. Williams (In re Williams), CASE NO. 11-42792-DML-7
| Decision Date | 19 April 2013 |
| Docket Number | ADVERSARY NO. 11-04190-DML,CASE NO. 11-42792-DML-7 |
| Parties | In re: DAVID E. WILLIAMS, II, DEBTOR. JAMES OSTRANDER PLAINTIFF, v. DAVID E. WILLIAMS, II, DEFENDANT. |
| Court | United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Northern District of Texas |
The following constitutes the ruling of the court and has the force and effect therein described.
___________
Before the court is the Motion for Appointment of Counsel (the "Motion," at docket no.1 28) filed pro se by James Ostrander ("Plaintiff") in the Adversary. By the Motion, Plaintiffrequests that the court appoint counsel to represent him in the Adversary pursuant to 28 U.S.C. § 1915.
Plaintiff has raised an issue that has divided federal courts across the country: whether or not the bankruptcy court is a "court of the United States" authorized by Congress to grant relief under 28 U.S.C. § 1915. The court need not resolve that thorny issue today because the court concludes that it would not be appropriate to appoint counsel in the Adversary. Nevertheless, the court's ruling is bolstered by the fact that it might not possess the authority to appoint counsel even if it would otherwise be inclined to do so.
The court sets forth its reasoning in the form of a memorandum opinion because Plaintiff lacks legal expertise and would benefit from a detailed explanation of why this court cannot appoint counsel, and because the Motion implicates issues that the United States Court of Appeals for the Fifth Circuit has not yet squarely addressed and on which other courts have reached divergent results. This memorandum opinion constitutes the court's conclusions of law on the issues posed by the Motion. FED. R. BANKR. P. 7052. The court exercises core jurisdiction over the Adversary pursuant to 28 U.S.C. §§ 1334 and 157(b)(2)(I).2
The parties are familiar with the facts of the Adversary, but the court will briefly recount the facts for the benefit of other readers. Plaintiff is currently serving a sentence at the Alfred Hughes correctional facility in Gatesville, Texas ("Hughes") for aggravated assault with a deadlyweapon.3 His projected release date is July 31, 2020, and he becomes eligible for parole on August 1, 2015.4 As a result, Plaintiff has not appeared at prior hearings in the Adversary, and he is unlikely to appear at future hearings absent order of the court. See docket no. 22. The court has made arrangements for Plaintiff to appear telephonically for trial docket call and in person for trial in the Adversary. See docket nos. 30-32.
Plaintiff filed the Adversary pro se against David E. Williams, II ("Defendant") on October 24, 2011. See docket no. 1. Defendant is the debtor in the above-captioned bankruptcy case (the "Case"). By the Adversary, Plaintiff alleges that he hired Defendant, an attorney, to represent him in his criminal case, and that Defendant quit without prior notice the day of Plaintiff's trial. Plaintiff alleges that Defendant thereby committed "negligence," "extort[ion,]" and "theft of services." Id. Plaintiff therefore asserts that he is a creditor of the Defendant, and requests that the court deem his debt non-dischargeable in the Case pursuant to section 523 of the Bankruptcy Code.5 To the best of the court's knowledge, Plaintiff has not received a judgment in his favor against Defendant in federal or state court. Plaintiff has, however, filed a proof of claim in the Case. See Case, Claims Register, Claim # 21-1.
Plaintiff filed the Motion on March 18, 2013. Plaintiff alleges in the Motion that (1) he is "unable to afford counsel;" (2) his "imprisonment will greatly limit his ability to litigate, the issues involved in this case are complex, and will require significant research and investigation;" (3) he has "limited access to the law library" at Hughes and "limited knowledge of the law;" and (4) "[a] trial in [the Adversary] will likely involve conflicting testimony, and counsel wouldbetter enable [P]laintiff to present evidence and cross[-]examine witnesses." Motion at 1. As a result, Plaintiff, "pursuant to 28 [U.S.C.] § 1915(e)(1), [m]oves for an [o]rder appointing counsel to represent him in" the Adversary. Id.
Because Plaintiff appears pro se, the court must construe the Motion liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972).
28 U.S.C. § 1915 permits "any court of the United States" to "request any attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(a), (e) (emphasis added).6 Section 1915 allows the court to appoint counsel in civil as well as criminal cases, see, e.g., 28 U.S.C. § 1915(a)-(b); Marquez v. Woody, 440 F. App'x 318, 326 (5th Cir. 2011); Castro Romero v. Becken, 256 F.3d 349, 353-54 (5th Cir. 2001), and even incarcerated indigent civil plaintiffs may request the appointment of counsel.7 The decision to appoint counsel is not automatic; rather, it is committed to the court's discretion. Marquez, 440 F. App'x at 326; Castro Romero, 256 F.3d at 353-54.
28 U.S.C. § 451. Thus, this court may only appoint counsel under section 1915 if the bankruptcy court qualifies as a "court of the United States" under section 451. "Now, of course, no one would disagree that bankruptcy courts are considered to be, and are respected as, courts of the United States" as a matter of general parlance,9 but where Congress has carefully defined a term to give it a distinct meaning, this court must give effect to that definition.10
"Considerable difference of opinion exists as to whether bankruptcy courts are 'courts of the United States' and thus able to grant § 1915 relief at all."11 Although the majority rule appears to be that bankruptcy courts "are not 'courts of the United States' within the meaning ofthis and related sections,"12 there are strong opinions to the contrary,13 and the majority is slim.14 To the best of this court's knowledge, "the Fifth Circuit has not addressed this question,"15 and courts within the Fifth Circuit have reached opposite conclusions.16
"[T]he phrase 'court of the United States' is scattered throughout Title 28."17 A ruling that the bankruptcy court is not a "court of the United States" could therefore have unanticipated and "potentially pervasive effect[s]."18 Thus, because the court ultimately concludes that itwould not appoint counsel in the Adversary even if it possessed the authority to do so,19 the court need not resolve the question of whether it is a "court of the United States" within the meaning of the statute.20 The court merely notes that it questions whether it possesses the authority to appoint counsel for Plaintiff.
Nonetheless, because the court has thoroughly considered the issue, the court will recite the various arguments that courts and commentators have given against or in favor of the conclusion that bankruptcy courts are "court[s] of the United States," as well as novel arguments that have occurred to the court. That way, should this court (or any other court that finds this court's reasoning persuasive) be called upon to squarely resolve the issue in the future, it will not have to begin its analysis from square one.
Evidence that the bankruptcy court is not a "court of the United States" may be found through analysis of section 451's text, the text of related statutory provisions, and section 451's legislative history.
First, even courts that ultimately conclude that bankruptcy courts are "court[s] of the United States" under section 451 concede that "[b]ankruptcy courts, it is clear, are not listed explicitly in § 451." In re Schaefer Salt Recovery, Inc., 542 F.3d 90, 103 (3d Cir. 2008). Bankruptcy courts obviously are not courts of appeals or the Supreme Court of the United States, so they may only qualify as "court[s] of the United States" if they fall within the definition of "district courts constituted by chapter 5 of this title, including the Court of International Trade and any court created by Act of Congress the judges of which are entitled to hold office during good behavior." 28 U.S.C. § 451. Because bankruptcy courts are constituted by chapter 6, not chapter 5, of Title 28 of the United States Code,21 they do not fall under the umbrella of district courts as defined in 28 U.S.C. § 451.22 Nor do bankruptcy courts fall into section 451's residual category of "court[s] created by Act of Congress the judges of which are entitled to hold office during good behavior" because bankruptcy judges hold office for 14-year terms and therefore are not entitled to hold office during good behavior like district court judges.23
Further evidence that Congress did not intend for bankruptcy courts to qualify as "court[s] of the United States" may be found by comparing 28 U.S.C. § 451 with section 376 ofthe same title. 28 U.S.C. § 451 defines the term "judge of the United States" to include the judges of all of the courts listed as "court[s] of the United States," with the exception of the Supreme Court of the United States.24 28 U.S.C. § 376 in turn defines the term "judicial official" to include any "Justice or judge of the United States, as defined by section 451 of this title," as well as any "full-time bankruptcy judge."...
To continue reading
Request your trial