Tashima v. Administrative Office of US Courts

• Decision Date: 07 June 1989
• Docket Number: No. CV-88-4582 SAW.,CV-88-4582 SAW.
• Citation: 719 F. Supp. 881
• Court: U.S. District Court — Central District of California
• Parties: A. Wallace TASHIMA, United States District Judge, Petitioner/Plaintiff, v. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS; L. Ralph Mecham, Director, Respondents/Defendants.

719 F. Supp. 881

A. Wallace TASHIMA, United States District Judge, Petitioner/Plaintiff, v. ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS; L. Ralph Mecham, Director, Respondents/Defendants.

No. CV-88-4582 SAW.

United States District Court, C.D. California.

June 7, 1989.

Christopher Caldwell, Hedges, Powe & Caldwell, Los Angeles, Cal., for petitioner/plaintiff.

Eric Segal, Dept. of Justice, Civ. Div., Washington, D.C., for respondents/defendants.

MEMORANDUM AND ORDER

WEIGEL, District Judge.

Petitioner/plaintiff, the Honorable A. Wallace Tashima, United States district judge in the Central District of California (petitioner), brings this action to compel respondents/defendants, Administrative Office of the United States Courts and L. Ralph Mecham, Director (respondents or Administrative Office), to authorize payment for his private counsel in two lawsuits. The parties have filed cross-motions for summary judgment.

I. Background.

Petitioner has been named a defendant in two actions challenging the constitutionality of Local Rule 2.2.1¹, promulgated by the United States District Court for the Central District of California (the Central District). In November, 1987, in Maynard v. United States District Court for the Central District of California, 701 F.Supp. 738 (C.D. Cal.1988) (Maynard), the Central District and each of its judges, including petitioner, were named as defendants in their respective official capacities. In March, 1988, petitioner and the other Central District judges were likewise named as defendants in a separate action, Giannini v. Real, 711 F.Supp. 992 (C.D.Cal.1989) (Giannini).

In Maynard, at the request of the Chief Judge of the Central District, respondents recommended to the United States Department of Justice that legal representation be provided to the Central District and its judges. The Department of Justice authorized the United States Attorney's Office for the Central District of California to provide representation.

On February 24, 1988, petitioner wrote to respondents requesting that they approve his retention of separate counsel in Maynard at Administrative Office expense. He made the request because, unlike the other defendants, he did not favor upholding the challenged local rule.²

On March 21, 1988, respondents denied petitioner's request. By letter dated April 27, 1988, respondents also denied petitioner's request for reconsideration. Respondents stated that the Maynard lawsuit "does not challenge any action by Judge Tashima individually but instead challenges the collective actions of the court of which Judge Tashima is a member." Further, respondents noted that petitioner faces no individual liability. Respondents concluded that "the Administrative Office ... is not obliged to authorize payment of separate counsel so that Judge Tashima may advocate his personal views, especially views that are in the nature of an individual dissent." Letter of April 27, 1988.

Meanwhile, in Giannini, again at the request of the Chief Judge of the Central District, respondents recommended to the Department of Justice that representation be provided to all defendants, except petitioner. Representation was authorized.

On June 1, 1988, petitioner wrote requesting private representation at Administrative Office expense in Giannini because he wanted to take the same position he had taken in Maynard. Several weeks later, after being served with discovery requests from plaintiff in Giannini, petitioner mailed a supplemental request to respondents. On June 27, 1988, respondents wrote to petitioner denying both requests. Respondents acknowledged that representation was being provided by the Department of Justice to the other judges named as defendants in Giannini. Respondents, however, refused petitioner's request, stating the same reasons given in Maynard, i.e., that "payment of private counsel to advocate the separate, dissenting views of an individual judge in an action that neither seeks nor can obtain relief from the judge individually is not ... appropriate". Letter of June 27, 1988.

On November 3, 1988, petitioner wrote respondents to ask that they submit a request for representation on his behalf directly to the Department of Justice. Letter of November 3, 1988. Respondents submitted petitioner's request with a recommendation that "the Department of Justice provide representation to the extent consistent with the best interests of the United States." Letter of December 16, 1988. Respondents noted that "any acts or omissions on the part of Judge Tashima that may be relevant to this complaint would have occurred in the discharge of his official duties." Id. Nevertheless, respondents submitted "we do not believe it would be in the best interests of the United States to represent Judge Tashima in seeking to overturn or amend the local rules." Id.

The Department of Justice declined to represent petitioner. Letter of January 26, 1989. Subsequently, respondents authorized payment for petitioner's private counsel in Maynard and Giannini "for the limited purpose of seeking to achieve petitioner's dismissal from the case." Letters of February 8, 1989 and March 20, 1989. Respondents stated "we believe that it would be inappropriate for the Administrative Office to pay private counsel to advocate a position on behalf of an individual judge that squarely conflicts with the position of the court that has exclusive authority to promulgate or modify the local rule." Letter of February 8, 1989. Respondents thus concluded that "this authorization does not extend to the payment of private counsel to represent petitioner in challenging the local rule in question, whether the challenge is framed in terms of the rule's constitutionality or in terms of some other asserted invalidity." Letter of March 20, 1989; see also Letter of February 8, 1989.

Meanwhile, on July 28, 1988, petitioner filed this action alleging that respondents have a duty under 28 U.S.C. § 463³ to authorize the retention of private counsel for petitioner at government expense in the Maynard and Giannini actions. Petitioner claims that respondents' refusal to authorize such payment — while at the same time recommending to the Justice Department that all other defendants in Maynard and Giannini be represented at government expense — is arbitrary, capricious, an abuse of discretion, in excess of respondents' statutory authority and contrary to respondents' constitutional powers. Petitioner contends also that no judicial power is vested in respondents and that the authorization of payment for private counsel for the limited purpose of effecting petitioner's dismissal from Maynard and Giannini was a judicial determination.

Petitioner seeks (1) a writ of mandamus, (2) relief under the Administrative Procedure Act (APA), and (3) declaratory relief.

The Court concludes that petitioner is not entitled to a writ of mandamus nor to relief under the APA but is entitled to declaratory relief because respondents have exercised their discretion under 28 U.S.C. § 463 in a manner exceeding constitutional limits.

II. Writ of Mandamus.

Mandamus is a drastic remedy to be invoked only in extraordinary circumstances. Armster v. United States District Court, 792 F.2d 1423, 1431 (9th Cir.1986), motion to vacate denied, 817 F.2d 480 (9th Cir. 1987) (citing Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123-24, 48 L.Ed.2d 725 (1976)). Mandamus will issue "only to compel the performance of `a clear nondiscretionary duty.'" Pittston Coal Group v. Sebben, ___ U.S. ___, 109 S.Ct. 414, 424, 102 L.Ed.2d 408 (1988) (quoting Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 2022, 80 L.Ed.2d 622 (1984)). It "does not lie to review the discretionary acts of officials." Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir.1983) (quoting Nelson v. Kleppe 457 F.Supp. 5, 8 (D.Idaho 1976), aff'd sub nom., Nelson v. Andrus, 591 F.2d 1265 (9th Cir. 1978)).

The Ninth Circuit has delineated standards governing the availability of mandamus to compel an official of the United States to perform a duty. The writ may be issued only if (1) the plaintiff's claim is clear and certain, (2) the official's duty is "ministerial and so plainly prescribed as to be free from doubt", and (3) no other adequate remedy is available. Azurin v. Von Raab, 803 F.2d 993, 995 (9th Cir.1986), cert. denied, 483 U.S. 1021, 107 S.Ct. 3264, 97 L.Ed.2d 763 (1987) (quoting Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir.1986)).

Respondents' duty to authorize payment for petitioner's private counsel cannot be regarded as "so plainly prescribed as to be free from doubt." Azurin, 803 F.2d at 995.

The starting point for interpreting a statute is the language of the statute itself. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Nothing in the language of 28 U.S.C. § 463 creates a plainly prescribed duty that respondents authorize payment for a judge's private counsel when he is sued in his official capacity. Instead, section 463 provides that whenever a judge is sued in his official capacity, respondents "may pay the costs of his defense" (emphasis added).

Nothing in the legislative history of section 463 indicates that Congress intended a plainly prescribed duty on respondents' part. See S.Rep. No. 97-275, 97th Cong., 2nd Sess. (1982), reprinted in, 1982 U.S. Code Cong. & Admin.News 11, 25-26. Moreover, the regulations issued pursuant to section 463 do not narrow the discretion vested in respondents. See Section III of the Guide to Judiciary Policies, Volume 1-C, Chapter XI, Part E. The regulations provide that the Director of the Administrative Office "shall ... consider the exercise of his authority under 28 U.S.C. § 463 to pay the costs of such legal defense by private counsel." Id. at ¶ 3.1. The regulations state also that the Director's determination shall be guided by the decision of...