Garland v. Sullivan

737 F.2d 1283

Opinions

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

GIBBONS, Circuit Judge:

The United States Marshals Service, an intervenor, appeals from an order of a United States Magistrate in a pending civil action, denying the intervenor’s motion for reconsideration of an order directing the United States Marshal for the Eastern District of Pennsylvania to transport a state prisoner witness from the nearest county jail to the United States Courthouse in Philadelphia and to maintain custody of that prisoner while he is in the federal courthouse. The underlying civil action is within the subject matter jurisdiction of the district court, and is assigned for trial before a United States Magistrate by consent of the parties. 28 U.S.C. § 636(c)(1). The Marshals Service contends that the district court, and hence the United States Magistrate, lacked statutory authority to enter the order appealed from. The Bureau of Corrections, Commonwealth of Pennsylvania, the Sheriff of Philadelphia County, and the City of Philadelphia, which have also intervened, defend the order. We hold that the district court, and thus the magistrate, has statutory authority to direct the United States Marshal to maintain custody of a state prisoner witness in the federal courthouse while he is there in connection with judicial proceedings, but lacks such authority to direct the Marshal to transport that prisoner between the county jail and the federal courthouse.

I.

Appealability

This dispute, between the United States Marshals Service and the Pennsylvania corrections officials as to who must bear the expense of transporting and maintaining secure custody over state prisoners required as witnesses in civil proceedings in the federal courts, is entirely collateral to the underlying action. The Magistrate’s order disposes of the dispute fully and finally. Review of final orders in cases tried by consent of the parties before United States Magistrates lies directly to this court.¹ 28 U.S.C. § 636(c)(3). Thus we have appellate jurisdiction. Story v. Robinson, 689 F.2d 1176, 1177 (3d Cir.1982).

II.

The Merits

At issue in this appeal is the authority of a United States District Court to shift the burden of expense in responding to unquestionably lawful federal civil process from the Commonwealth of Pennsylvania to the United States Treasury. The Commonwealth understandably prefers that federal taxpayers bear that burden, and since the United States is often seen as the ultimate deep pocket target, that preference has a plausible appeal. But the United States has not conferred on the federal judiciary any authority to lay hands on its Treasury. To the contrary, the Constitution provides that “[n]o Money shall be drawn from the Treasury, but in Consequence of appropriations made by Law ____” Art. I, Sec. 9, cl. 7. Absent statutory authorization, what the Commonwealth proposes is a raid in its interest on the United States Treasury.

A.

Transportation

This court has dealt with the contention advanced on behalf of the Commonwealth, the County and the City in the recent past. In Story v. Robinson, 689 F.2d 1176 (3d Cir.1982), the Commonwealth and Allegheny County appealed, as intervenors, from a writ of habeas corpus ad testificandum' directing that state prisoner witnesses be transported from state prisons to a county jail near the federal courthouse in Pittsburgh. The Commonwealth objected to transporting the prisoners without reimbursement by the United States, and urged on us several statutes which might authorize the district court to qualify the writ by a reimbursement condition. The first statute relied upon was 28 U.S.C. § 569(b), which instructs the Marshals to “execute all lawful. writs, process and orders executed under the authority of the United States____” We held that this statute was not a separate source of judicial authority to issue writs, process and orders, but only a source of the Marshals’ duty to execute them when they have been issued pursuant to some other source of authority. 689 F.2d at 1179. A second statute was 28 U.S.C. § 571, which authorizes the United States Marshal to act as disbursing officer for the United States Attorney and for federal court personnel. We held that this statute conferred no authority to relieve state custodians of the financial burden of complying with federal process. 689 F.2d at 1179. A third statute relied on by the Commonwealth was 28 U.S.C. § 567(2), which provides that each United States Marshal shall be allowed “the expense of transporting prisoners____” We held that this statute was no authority, at least absent some intergovernmental agreement, see 28 C.F.R. § 0.111(j) (1983), for relieving the Commonwealth of such expense. Id. Finally, the Commonwealth relied on 28 U.S.C. § 1651. We rejected the Commonwealth’s contention that this statute required the grant of the motion to impose the entire cost of compliance with the writs of habeas corpus ad testificandum on someone other than the state custodian. 689 F.2d at 1180.

In the instant case, neither in the district court nor before this Court did the Commonwealth and its subdivisions, rely upon section 1651 as authority for an order directed to the United States Marshal.² Technically, the question is open, for while Story v. Robinson rejected the contention that section 1651 required an order that the cost of producing prisoner witnesses must be assumed by the Marshals Service, it did not decide whether the section nevertheless authorized such an order as a matter of discretion. No party has briefed that question, but since such a construction of section 1651 might arguably justify the order appealed from, we address it.

A construction of the All Writs Act as a grant of authority to transfer to the United States Treasury the expense of compliance with witness process is unsupportable. None of the authorities construing section 1651 interpret it as a grant of authority for the issuance of an order compelling a non-party Executive branch officer to satisfy the obligation of state custodians to respond to witness process. United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977), on which the Commonwealth relied in Story v. Robinson, supra, involves the authority of the district court to direct process to non-parties who are so situated that their cooperation is essential to the exercise of its jurisdiction otherwise attaching. The Marshal clearly is not so situated. The only cooperation necessary to the exercise of the district court’s jurisdiction over pending civil or criminal cases is that of the custodian of needed witnesses.³

In McIntire v. Wood, 11 U.S. [7 Cranch] 504, 3 L.Ed. 420 (1813), the Court held that section 14 of the Judiciary Act of 1789, from which section 1651(a) is derived, was not a source of substantive authority to mandamus federal executive branch officers. Cf. McClung v. Silliman, 19 U.S. [6 Wheat.] 598, 5 L.Ed. 340 (1821) (state court cannot mandamus federal officer). Compare Pub.L. No. 87-748, § 1(a), 76 Stat. 744 (1972), codified at 28 U.S.C. § 1361 (1976) (“Action to compel an officer of the United States to perform his duty”). Since the Marshals are not custodians, they are not appropriate respondents to writs of habeas corpus. Orders directing them to assume the burden of compliance are therefore in the nature of mandamus. Thus the definitive construction of the All Writs Act in McIntire v. Wood precludes reliance on that statute.

Any other interpretation of section 1651 would permit district courts to impose the expenses of litigation upon the Treasury of the United States whenever that seemed to the court to be a good idea. Both common sense and appropriate concern for separation of powers caution against such an arrogation of judicial power. Certainly section 1651 authorizes writs in aid of the district court’s jurisdiction otherwise obtaining. Thus, as we held in Story v. Robinson, it authorizes writs of habeas corpus ad testificandum directed to custodians. But it is a long leap from authority to compel custodians to produce witnesses necessary for the exercise of jurisdiction, to authority to compel non-custodians to bear the expense of that production simply because they have access to a deeper pocket.

The Marshals Service has not fared well in the other circuits that have considered this issue. In Ballard v. Spradley, 557 F.2d 476 (5th Cir.1977), the Fifth Circuit upheld a cost-splitting order by the district court. It held that the district court had the power to issue such a writ under 28 U.S.C. § 2241. and that the Marshal was obligated to obey under 28 U.S.C. § 569. The precedent was applied to an order allocating full responsibility to the Marshal in Ford v. Allen, 728 F.2d 1369 (11th Cir.1984). In Ford v. Carballo, 577 F.2d 404 (7th Cir.1978), the Seventh Circuit held that under the All Writs Act, 28 U.S.C. § 1651, the district court abused its discretion when it failed to order the Marshals Service to reimburse a state for the cost of transporting and producing a plaintiff prisoner in a habeas proceeding. Finally, in Wiggins v. County of Alameda, 717 F.2d 466 (9th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1425, 79 L.Ed.2d 749, the Ninth Circuit held in dicta that "a district court judge has the discretion to allocate the costs of compliance with a writ ad testificandum in any number of combinations ... [including] the clearly preferable sharing of costs approved in Ballard and Story as well as imposing full costs on the United States, see 28 U.S.C. § 567(2), 569(b) ..." The court disagreed, however, with Ballard’s holding that the Marshals Service could be ordered to reimburse the state for the costs of transportation. It also disapproved of Ford v. Carballo's use of the All Writs Act instead of the separate grant of habeas power contained in 28 U.S.C. § 2241.

B.

Courthouse Security

Custody of state prisoners in the United States Courthouse presents a separate issue, because courthouse security is involved. A federal statute provides that “[t]he United States Marshal of each district is the marshal of the district court ... and may, in the discretion of the respective courts, be required to attend any session of court.” 28 U.S.C. § 569(a). Addressing that provision, we observed in Story v. Robinson:

This statute quite clearly authorizes the district court to require the attendance of the Marshal at any judicial proceeding, including any proceeding at which the testimony of a state prisoner may be required. It seems plain, then, that the court has authority to direct the marshal to take prisoners into custody during the time their attendance at court is required.

689 F.2d at 1180. The Marshals Service acknowledges that this section of the statute makes the Marshals responsible for courthouse security, and that funds are appropriated for that purpose, but urges that absent some finding of a security risk, it should not be construed to relieve the state custodians of the duty to produce their prisoner witnesses and maintain them in secure custody.

We hold that section 569(a) authorizes federal trial courts,⁴ in the interest of security and flexibility, to require the Marshal of the district to take custody of state prisoner witnesses while they are in a federal courthouse for purposes of testimony. Requiring an individualized “special security risk” finding would be completely impractical. The development of a record for such findings is beyond the capabilities of the litigants for whose lawsuits the prisoner witnesses are needed.. Because of the critical need for courtroom security this case presents one of those rare instances in which the trial courts must be recognized as having virtually unreviewable discretion. Nor is the alternative of depending on state corrections officers for the maintenance of security within federal courthouses a viable alternative. Since 1789 the United States has depended upon its own marshals for the security of its own court facilities, and few if any federal judges would be comfortable with any other arrangement.

The provision of the order requiring that the Marshal of the District Court transport prisoners between the county jail and the federal courthouse, however, presents a distinctly different issue. In Story v. Robinson we reserved the question “whether section 569(a) provides authority for a direction, in the interest of courthouse security, that prisoner witnesses be taken into custody at a point outside the courthouse.” 689 F.2d at 1180. We did not'intend to suggest that federal trial courts had unlimited discretion to enter such orders. Obviously the security problem outside the courthouse is of an entirely different order of magnitude than that within. The presumption should be that there is no federal court security interest until state prisoners are delivered to the custody of the Marshal of the district at the federal courthouse. Situations obviously can be imagined in which that presumption may be overcome: particularly dangerous or threatening prisoners, for example, or perhaps prisoner witnesses whose own safety may be at risk. But those situations are likely to be the . exception. Thus we hold that unless a federal trial court makes a specific finding that special security circumstances exist which require an order that state prisoner witnesses be taken into the Marshal’s custody at a situs away from the federal courthouse, section 569(a) does not authorize such an order. There is no other authority for such an order.

III.

Conclusion

The order appealed from will be affirmed insofar as it requires the Marshal of the District Court to take into custody while in the federal courthouse state prisoner witnesses whose presence is required for testimony in civil proceedings in the federal court, but reversed insofar as, without a finding of special security circumstances, it required ■ the Marshal to transport those witnesses between the county jail and the federal courthouse.

1 . Siers v. Morrash, 700 F.2d 113 (3d Cir.1983), does not hold otherwise. That case did not involve a case tried before a United States Magistrate by consent of the parties, 700 F.2d at 116 n. 10, and the appeal was therefore brought under 28 U.S.C. § 1291, not under 28 U.S.C. § 636(c)(3).

2 . The Magistrate relied on 28 U.S.C. § 569 which authorizes the Marshals to "attend any session of court ...” when ordered by the district judge to do so, and to “execute all lawful writs ... issued under the authority of the United States.”

3 . Similarly, Application of the United States of America, 610 F.2d 1148 (3d Cir.1979), which upheld an order directing telephone companies to cooperate in tracing certain telephone calls, is distinguishable from the case before us because the cooperation of the companies was essential to the execution of the tracing order.

4 . The Marshals Service does not contend that Magistrates have less authority under section 569(a) than do district judges.