Tashima v. Administrative Office of U.S. Courts

Decision Date19 June 1992
Docket NumberNo. 89-55906,89-55906
PartiesA. Wallace TASHIMA, United States District Judge, Plaintiff-Appellee, v. ADMINISTRATIVE OFFICE OF The UNITED STATES COURTS; L. Ralph Mecham, Director, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Douglas Letter, U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.

Christopher G. Caldwell, Hedges & Caldwell, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: FLETCHER, BOOCHEVER, WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

L. Ralph Mecham, Director of the Administrative Office of the United States Courts ("AO"), appeals the district court's declaratory judgment directing the Administrative Office to pay legal expenses incurred by Judge Tashima. Judge Tashima was represented by private counsel in three suits in which the validity of a local district court rule was disputed. This court has jurisdiction over this timely appeal under 28 U.S.C. § 1291. We affirm the district court's judgment.

BACKGROUND

By majority vote, the judges of the Central District of California adopted Local Rule 2.2.1 which, in connection with Local Rules 2.1 and 2.2.3.2, provides that an attorney who lives or is regularly engaged in business in California may perform as an attorney in the court only if the attorney is a member of the California state bar. Such an attorney may not appear pro hac vice.

In 1987 and 1988, respectively, two suits were filed in the Federal District Court for the Central District of California challenging the constitutionality of Rule 2.2.1. Maynard v. United States Dist. Ct., 701 F.Supp. 738 (C.D.Cal.1988) aff'd, 915 F.2d 1581 (9th Cir.1990) and Giannini v. Real, 711 F.Supp. 992 (C.D.Cal.1989) aff'd 911 F.2d 354 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 580, 112 L.Ed.2d 585 (1990) ("Giannini I"). After a final determination in favor of the defendants was reached in Giannini I, Giannini brought another action, Giannini II, based on the same facts. In each of these three suits, the judges of the Central District were named individually in their official capacity. Because the judges were sued in their official capacity, they requested the AO to arrange for legal representation by government attorneys. The Department of Justice assigned the U.S. Attorneys' Office for the Central District of California to defend the judges against these actions. Assistant U.S. Attorney Roger West was assigned to the case. The primary defense West raised on behalf of the judges was that the rule was constitutional.

A. Wallace Tashima, one of the judges of the Central District and a named defendant in these suits, requested that the AO authorize funds for him to obtain private counsel to defend him under 28 U.S.C. § 463. Judge Tashima held the view that the challenged rule was unconstitutional, "outmoded and wrong." Therefore, Judge Tashima believed that the suits should be defended on other grounds and that the constitutional question should be avoided. In this respect, Judge Tashima's desired defense strategy differed from the defense strategy advanced by West on behalf of the other judges. As a result of this conflict of interest, Judge Tashima was unable to accept representation by the U.S. Attorney. Thus, he was forced to request funds with which to obtain private counsel to mount his defense.

The AO refused to authorize such funds. The AO erroneously believed that Judge Tashima's intended litigation strategy was to assert that Local Rule 2.2.1 was unconstitutional. Based on this erroneous belief, the AO took the position that it was not required to authorize funds that would allow Judge Tashima to advocate a position contrary to that of the majority of the court. 1

Judge Tashima eventually corrected the Administrative Office's mistaken view of his litigation strategy and received an authorization of funds for the limited purpose of seeking his dismissal from Giannini II and Maynard. However, the AO continued to refuse to authorize funds for Judge Tashima's private counsel to mount a complete defense. Furthermore, despite the fact that Judge Tashima's defense strategy was the same for each of the suits challenging Local Rule 2.2.1, the AO continued to refuse to authorize any funds for the payment of Judge Tashima's defense costs in Giannini I. Judge Tashima then filed this suit. He brought actions for mandamus, relief under the Administrative Procedure Act and declaratory relief. The district court ruled in favor of the AO on the issues of mandamus and relief under the APA but granted declaratory relief in favor of Judge Tashima. The AO appealed.

DISCUSSION
I. STATUTORY CONSTRUCTION OF SECTION 463

Judge Tashima argues that under 28 U.S.C. § 463 the AO must pay his legal fees for representation by private counsel. Section 463 is a statute authorizing the AO to provide counsel to judges sued in their official capacity when the services of a government attorney are not available.

A. Section 463

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 ..., 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.

Congress enacted section 463 to fill the gap in the legal assistance provided to federal judges created when a judge is sued in his or her individual capacity, but the Department of Justice is unable to provide representation due to a conflict of interest or other reason. See S.Rep. No. 97-275, reprinted in 1982 U.S.C.C.A.N. 11, 26. Normally, when federal judges are sued in their official capacity, a government attorney will be assigned to defend them. 28 U.S.C. § 516-17; 57 Op.Comp.Gen. 444 (1975); see Meredith v. Van Oosterhout, 286 F.2d 216 (8th Cir.), cert. denied, 365 U.S. 835, 81 S.Ct. 749, 5 L.Ed.2d 745 (1961). The Comptroller General has stated that "it is well established that when an officer of the United States is sued because of some official act done in the discharge of an official duty the expense of defending the suit should be borne by the United States." Guide to Judiciary Rules and Procedures, Chap. XI, part E, exh. A, at 19. The rationale for providing a government attorney to defend official acts taken by judges is that such representation is necessary to ensure the independence of the judiciary. If a government attorney were not provided, judges would be forced to hire counsel with their own private funds. Judges would then be vulnerable to improper pressure created by threatened lawsuits. Furthermore, lack of such protection would increase the difficulty in recruiting talented attorneys to join the federal bench.

Yet, prior to the enactment of section 463, no provision had been made to deal with a situation where a government attorney could not represent the judge due to a conflict of interest or for other reasons. To remedy this deficiency, Congress adopted section 463, authorizing the Administrative Office to pay the costs of private counsel where a government attorney was unavailable. However, the statute states that the Administrative Office may pay the costs of private defense counsel. Thus, the language allows for some discretion on the part of the AO to determine whether to pay such costs. The scope of this discretion is the primary issue in this case.

B. The AO's Interpretation of Section 463

The AO claims that Congress' use of the discretionary term "may" rather than the mandatory term "shall" indicates that Congress did not intend to impose any duty on the Administrative Office to pay for private counsel to represent judges sued in their official capacities when a government attorney is unavailable. At various times during the dispute, the AO has advanced differing theories to support the exercise of its discretion to deny Judge Tashima's request for private counsel. The AO claims that it may deny the request because it determined that providing Judge Tashima with private counsel was not in the best interests of the judiciary. The AO also claims that it may deny the request because it determined that the Judge Tashima's chosen litigation strategy was inappropriate. Finally, the AO claims that it may deny the request because it believed that Judge Tashima should not have personally taken the view, contrary to the position of the majority of the court, that rule 2.2.1 is unconstitutional.

The underlying problem which the AO has with Judge Tashima's request for private counsel stems from the fact that Judge Tashima voted against the adoption of rule 2.2.1. The AO claims that Judge Tashima's judicial duties with respect to the enactment of the rule ended when the court voted to adopt it over Judge Tashima's objections. It is apparent that the AO believes that as a member of the District Court, Judge Tashima had a duty, once he lost the vote on rule 2.2.1, to adopt and defend publicly the position taken by the Central District. The AO contends that the members of the court should present a united front to litigation against the court, particularly in the face of controversy such as that generated by this case. The corollary to that proposition, however, is that individual dissenting opinions such as Judge Tashima's would be suppressed.

The AO further contends that the plaintiffs in each of the suits ought not to have named the individual judges as defendants at all, but rather should have only named the Central District. In the AO's view, had the plaintiffs...

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