United States v. Dillon

Decision Date27 July 1965
Docket NumberNo. 19629.,19629.
Citation346 F.2d 633
PartiesUNITED STATES of America, Appellant, v. Edward J. DILLON, Appellee. Petition of Manley B. STRAYER.
CourtU.S. Court of Appeals — Ninth Circuit

John W. Douglas, Asst. Atty. Gen., Morton Hollander, Robert V. Zener, Attys., Dept. of Justice, Washington, D. C., Sidney I. Lezak, U. S. Atty., Portland, Or., for appellant.

Clifford N. Carlsen, Jr., William B. Crow, King, Miller, Anderson, Nash & Yerke, Portland, Or., for appellee.

Before HAMLEY and JERTBERG, Circuit Judges, and MATHES, District Judge.

JERTBERG, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the District of Oregon, directing the United States to pay fees and expenses of counsel appointed by the court to represent a prisoner in connection with proceedings under 28 U.S.C. § 2255. The opinion of the district court, Dillon v. United States, is reported at 230 F.Supp. 487.

The jurisdiction of the district court to enter such a judgment against the United States was asserted under the Tucker Act, 28 U.S.C. § 1346. The jurisdiction of this Court over the present appeal rests on 28 U.S.C. § 1291.

The facts are not in dispute. The following summary is taken from appellant's brief, to which appellee takes no issue.

In a proceeding under 28 U.S.C. § 2255, Edward J. Dillon sought to set aside a sentence of 18 years for armed bank robbery. This sentence had been imposed after Dillon had pleaded guilty. Dillon alleged that the plea was induced by a false promise of a lenient sentence. The district court held a hearing on the petition under 28 U.S.C. § 2255 and denied the relief requested. During the course of this hearing, Dillon made a request for counsel, which was denied. See Dillon v. United States, supra.

This Court, with one member dissenting, reversed the district court's denial of relief, on the ground that counsel should have been appointed. Dillon v. United States, 307 F.2d 445. The case was remanded for a hearing.

Upon remand, the district court noted that this Court had premised its holding on the ground that the case presented a "subtle and difficult issue of fact." 307 F.2d at 451. The district court stated that "in view of the Court of Appeals appraisal of the matter, I feel that I must designate an attorney with some considerable experience and with some means."

The district court appointed Manley Strayer, Esquire, of the firm of Hart, Rockwood, Davies, Biggs & Strayer, of Portland, Oregon. At the time of the appointment, the district court stated that —

"I think that in executing the command of the Court of Appeals I am conscripting your services for the benefit of another person to whom, I suggest, the government owes the duty to supply, and taking your property without just compensation."

Accordingly, the court invited Mr. Strayer to make application for compensation upon completion of his services.

At the hearing on Dillon's petition under 28 U.S.C. § 2255, the district court held that Dillon's plea of guilty had not been coerced or induced by a false promise. However, the sentence was vacated on the ground of a violation of Rule 32(a) of the Federal Rules of Criminal Procedure, Dillon being held for resentencing. Dillon v. United States, 218 F.Supp. 948 (D.Ore.)

Mr. Strayer then applied for compensation, pursuant to the district court's invitation. Mr. Strayer requested a fee of $5,000, plus expenses of $24.50.

The district court held that it had jurisdiction under the Tucker Act to grant the relief requested, either on the basis of an implied contract or the Fifth Amendment. The Tucker Act gives district courts jurisdiction concurrent with the Court of Claims of claims not exceeding $10,000 "founded either upon the Constitution * * * or upon any express or implied contract with the United States * * *." 28 U.S.C. § 1346(a) (2).

The district court further held that its order requiring Mr. Strayer to represent Dillon was a taking of Mr. Strayer's property for a public use, within the meaning of the Fifth Amendment, and that just compensation was therefore payable. The court ordered payment of compensation in the amount of $3804.54 representing $35 per hour for 108 hours, plus $24.54 expenses. The court noted that "the licensed services, backed by his law office, of Mr. Strayer, * * * in commerce, would justify a much greater amount * * *." But the court fixed the figure of $35 an hour "in view of the fact that the substance and weight of the traffic of this cause falls within the realm of humanities rather than commerce * * *."

While appellant argues in its brief that representation of indigents in criminal cases in the courts of the United States, by court appointed counsel, does not constitute involuntary servitude in violation of the Thirteenth Amendment to the Constitution of the United States, and that court appointed counsel in such cases have no contractual claim against the United States for compensation, the position of appellee, both on brief and oral argument is clear that he relies entirely upon the quoted provision of the Fifth Amendment to the Constitution of the United States. In his brief he states:

"Appellee makes no claims relative to involuntary servitude. We agree that a court may issue a valid order compelling a lawyer to represent an indigent. The enforcement of civil rights by compelling the incidental giving of personal services cannot be considered an imposition of involuntary servitude."

Also in his brief it is stated:

"Appellant argues that appellee has no contractual claim to compensation under the Tucker Act 28 USC 1346(a). The Tucker Act gives federal district courts original jurisdiction, concurrent with the Court of Claims, of civil actions founded upon either the Constitution or upon any express or implied contract with the United States. We make no contractual claim."

Appellee's counsel, in oral argument, confirmed the position of appellee as stated in his brief. In these circumstances it appears to us that the question which we are called upon to decide may be properly stated as follows:


In seeking to establish that appellee has no right under the Fifth Amendment to compensation for the services rendered, appellant relies upon two grounds: First, that there is no "taking" under the Fifth Amendment when a lawyer is required to fulfill an obligation which he has accepted; and, Second, that the term "property" as used in the Just Compensation Clause of the Fifth Amendment does not include personal services.

Appellant's brief contains a very complete and scholarly treatise which in our view establishes an obligation on the part of the legal profession to represent indigents upon court order, without compensation. We include portions of such brief in an appendix to this opinion. As the appendix points out, the obligation of the legal profession to serve indigents on court order is an ancient and established tradition, and that appointed counsel have generally been compensated, if at all, only by statutory fees which would be inadequate under just compensation principles, and which are usually payable only in limited types of cases. Further, as shown in the Appendix, the vast majority of the courts which have passed on the question have denied claims of appointed counsel for nonstatutory just compensation, pointing out that representation of indigents under court order, without a fee, is a condition under which lawyers are licensed to practice as officers of the court, and that the obligation of the legal profession to serve without compensation has been modified only by statute. An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus, the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a "taking of his services." Cf. Kunhardt & Company, Inc. v. United States, 266 U.S. 537, 45 S.Ct. 158, 69 L.Ed. 428 (1925).

In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court held, in a capital case where the defendant was unable to employ counsel and was incapable of making his own defense adequately because of ignorance, etc., that it was the duty of the court to assign counsel for him, and stated at page 73, 53 S.Ct. page 65:

"Attorneys are officers of the court, and are bound to render service when required by such an appointment."

Appellee premises his claim to just compensation, in part, on the holdings of the Supreme Court in Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), and Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957), that a state cannot exclude a person from the practice of law in a manner or for reasons that contravene the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. Such decisions do not support appellee's claim that there has been a taking of his services without just compensation when he performs an obligation imposed upon him by the ancient traditions of his profession and as an officer assisting the courts in the administration of justice.

The problem of providing some system of compensation for appointed counsel, in light of the developing law of the right of indigents to counsel, is a matter for legislative and not judicial treatment....

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