IN RE: UNIVERSITY OF MICHIGAN, et al. Petitioners. JOHN DOE, Plaintiff-Respondent, v. UNIVERSITY OF MICHIGAN; UNIVERSITY OF MICHIGAN BOARD OF REGENTS, Defendants-Petitioners.
No. 19-1636
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
August 23, 2019
19a0212p.06
Before: ROGERS, KETHLEDGE, and THAPAR, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). On Petition for a Writ of Mandamus. United States District Court for the Eastern District of Michigan at Detroit; No. 2:18-cv-11776—Arthur J. Tarnow, District Judge.
COUNSEL
ON PETITION FOR A WRIT OF MANDAMUS AND REPLY: Stephen J. Cowen, Erin L. Ramamurthy, Andrew J. Clopton, JONES DAY, Detroit, Michigan, for Petitioners. ON RESPONSE: Deborah L. Gordon, Elizabeth Marzotto Taylor, DEBORAH GORDON LAW, Bloomfield Hills, Michigan, for Respondents.
THAPAR, J., delivered the opinion of the court in which KETHLEDGE, J., joined. ROGERS, J. (pg. 11), deliverеd a separate opinion concurring in the result.
THAPAR, Circuit Judge. This case is about power. The power of district courts to manage their cases and our power to review that process. Questions about judicial power are far from new. At the founding, the Anti-Federalists feared that unchecked judges would become tyrants in robes. They warned that judges, “independent of the peoplе, of the legislature, and of every power under heaven,” would “soon feel themselves independent of heaven itself.” Brutus XV, in 2 The Complete Anti-Federalist 438 (Herbert J. Storing ed. 1981). In response, the Federalists promised that judges would not usurp power because they can exercise neither “force nor will” but merely “judgment.” The Federalist No. 78, at 465 (Alexander Hamilton) (J. Cooke ed., 1961). That is the original promise of the judicial branch.
But cоurts have not always lived up to that promise. At times, they exercise force
I.
John Doe sued the University of Michigan for violating his due-process rights during a school disciplinary hearing. This court remanded Doe’s case in light of a related ruling requiring live hearings and cross-examination in such proceedings. See Doe v. Baum, 903 F.3d 575, 578 (6th Cir. 2018). Upon remand, the district judge took two actions that led to this mandamus petition.
First, the district judge—frustrated with the University’s apparent foot-dragging—scheduled a settlement conference and required the University’s president to attend. The University requested that the president be allowed to attend by telephone or send a delegate in his place, but the district judge refused. Next, the University requested permission to send someone with both more knowledge about the sexual assault policy at issue and full settlement authority. Whilе the district judge “100 percent” believed that such a person existed, he again refused. Pet. Exhibit A at 10. Instead, the district judge said he wanted the president to be there even if someone else with full settlement authority attended, and “even if the parties [we]re able to resolve the cross-examination issue as applied to Mr. Doe.” Pet. Exhibit D at 3. The district judge made himself clear: “I want the President herе. He will be here.” Pet. Exhibit A at 10. The University planned for the president to attend.
But showing up was only half the battle. Two days before the settlement conference, the district judge decided that the conference (which he had assured the University would be private) should be a public event. The district judge reversed course because the case involved “matters of public interest.” R. 54, Pg. ID 1805; Pet. Exhibit A at 10.
The surrounding media attention also grabbed the district judge’s interest. “[H]olding a settlement conference is the Court’s attempt to protect all parties . . . from unnecessary publicity[.]” Response at 5. While the district judge acknowledged that “the press covered the story . . . fully, and, for the most part, accurately,” he worried that “the resulting publicity has neither helped the University’s image nor contributed to the resolution of this case.” Id. at 6. The “change of heart” was also “prompted, at least in part, by the University’s public filing of a Motion to Dismiss . . . . The filing incited confusion amongst the media, . . . ultimately causing the University to issue a statement clarifying its position on the matter.” Id. at 7.
To sum up, the district judge summoned a specific high-ranking state official to attend a settlement conference in person, and then turned that privаte settlement conference into a public event because “the case concern[ed] matters of public interest” and sparked media attention. R. 54 at 1805. The University now seeks a writ of mandamus to remedy these actions.
II.
Federal courts are entrusted with great power. So where does that power come from? The answer is simple: from Congress and from the Constitution. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The Constitution did not create lower federal courts. Rather, it vested the federal “judicial power” in the Supreme Court and in “such inferior courts as the Congress may from time to time ordain and establish.”
To be sure, not all of our powers are spelled out in the text of a federal statute. The Supreme Court has also recognized that the “judicial power” grants lower federal courts some “inherent power” to “manage their own affairs.” Link v. Wabash Ry. Co., 370 U.S. 626, 630 (1962). These powers are not broad or ill-defined. Rather, they often have аn ancient pedigree—even predating the federal rules. See, e.g., id. at 629–30 (“The authority . . . to dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot seriously be doubted . . . . The power is of ancient origin, having its roots in judgments of nonsuit and non prosequitur entered at common law[.]” (citing 3 William Blackstone, Commentaries on the Laws of England *295–96)). And inherent powers must be necessary for courts “to perform their functions.” Kokkonen, 511 U.S. at 380. Indeed, they must be “incidental to all Courts.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991).
Any power a lower federal court exercises must have some basis in either an act of Congress or the Constitution. Otherwise, it has no basis in law. Here, the district judge sought to do two things: (1) require the University president to attend the settlement conference and (2) make that settlement conference open to the public and the media. Neither had a basis in law. Thus, the district judge abused his discretion.
III.
A. Congress
Congress has given district courts great control over their dockets. After all, the modern federal district judge faces a challenge—she must balance administering just and lawful outcomes with the need to move cases along. That means she must be both a fair and impartial adjudicator and a conscientious and capable manager. The district judge’s job is not an easy one. But the Federаl Rules of Civil Procedure provide tools to manage a busy docket, including the valuable tool of encouraging parties to settle when appropriate. See
Timely and effective case management is even more difficult when you have a recalcitrant party. Here, the district judge was frustrated with the University because he believed the University was not acting in good faith and potentially not complying with Doe v. Baum. 903 F.3d 575. The district judge also expressed surprise that the University could not name a specific individual with full settlement authority besides the president.
Yet the district judge had a lawful avenue for dealing with bad faith settlement practices, if he thought the University’s actions reached that level. The Federal Rules allowed the district judge to sanction the University if it “fail[ed] to appear at a . . . рretrial conference” or
Requiring a specific high-ranking government official to attend a settlement conference. Rule 16 provides that a “сourt may require that a party or its representative be present or reasonably available by other means to consider possible settlement.”
Requiring a settlement conference to be public. The Federal Rules provide five enumerated purposes of pretriаl conferences. See
In fact, to achieve the purposes that the Rules do permit, settlement conferences should be private, not open to the media and the public. A judge may order a pretrial conference to facilitate settlement.
Given the important interest in private settlement negotiations, the district judge abused his discretion by ordering that the private conference become an open and documented discussion of “matters of public interest” two days before the conference was to take place. R. 54, Pg. ID 1805.
B. The Constitution
Congress did not grant the district judge the power to require a specific high-ranking state official to attend a public settlement conference. Neither does the Constitution. As the Supreme Court has told us, to fall under the category of “inherent powers” vested in Article III courts, a power must be necessary to the court’s function. And because such powers are incidental to all courts, they often have ancient roots. Kokkonen, 511 U.S. at 378; Chambers, 501 U.S. at 43. Of course, it may be that the “judicial power,” as originally understood, authorizes action beyоnd the doctrine of “inherent powers.” But the parties have not pointed us to any other power that would authorize the district judge’s order in this case.
The district judge’s asserted power to require a specific person—regardless of the availability of other representatives—to attend a public settlement conference does not meet the high bar of “inherent powers.” It is nоt “necessary” for courts to perform their functions or “incidental to all courts.” Chambers, 501 U.S. at 43. And neither the parties nor the district judge have shown that this power has ancient roots. No surprise, since settlement conferences only date back to “early 20th century efforts by municipal courts to apply Scandinavian conciliation techniques to local cases.” B.H. v. McDonald, 49 F.3d 294, 300 (7th Cir. 1995). Courts have long been empowered to decide cases or controversies, not to hold press conferences on “matters of public interest.” R. 54, Pg. ID 1805. Further, federalism and separation-of-powers principles counsel strongly against recognizing such a power.
Federalism. The University president is a high-ranking state official. See Mich. Const. art. 8, § 5 (describing the president of the University of Michigan as a “principal executive officer”). So the district judge’s plan was to require a high-ranking state official to “explain” a state policy “to the media, to the public, and perhaps most importantly to the faculty and the students” in a federal court. Pet. Exhibit A at 10. Invoking federal power to haul a high-ranking state official into federal court for the express purpose of requiring that he explain something to his constituents is an “obvious irritant” “against [a] state official[.]” Allegheny Cty. v. Frank Mashuda Co., 360 U.S. 185, 190 (1959). Thus, this order threatens the “delicate balance in the area of federal-state relationships.” Id. at 187.
Separation of Powers. The district judge’s order would also set a dangerous precedent for the judiciary’s place in our system of separated powers. Imagine if federal judges were free to conduct firing-line-style interviews of high-ranking government officials under the guise of public
Neither Congress nor the Constitution granted the district judge the power to order a specific high-ranking state official to attend a public settlement conference, and he abused his discretion by doing so.
IV.
Finally, we turn to our own power to remedy the district judge’s conduct. Our power to grant mandamus comes from Congress. Today, that power is codified in the All Writs Act, which has roots in the Judiciary Act of 1789. See
The district judge took two actions that together warrant mandamus. He summoned a specific high-ranking state official to attend a settlement conference and required, at the eleventh hour, that the settlement conference be open to the public and the media. Either of these actions alone may warrant mandamus. Together, they certainly do.
First, the University has no other means of obtaining relief. “[A] mandаmus lies, if there be no other adequate, specific, legal remedy.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 152 (1803). No “controlling question of law” that would “materially advance the ultimate termination of the litigation” could have given rise to a discretionary interlocutory appeal under
***
The limits of the federal judicial power have been debated for centuries and will keep judges and scholars busy for centuries more. But when it comes to thе daily operations of the district court, the answer in practice is straightforward. A court can only act if it has power. And a court only has power if an act of Congress or the Constitution grants it. Only then will we uphold the original promise of the judicial branch to exercise “neither force nor will but merely judgment.” The Federalist No. 78, at 465 (Alexander Hamilton). We grant the petition for mandamus.
IN RE: UNIVERSITY OF MICHIGAN, et al. Petitioners. JOHN DOE, Plaintiff-Respondent, v. UNIVERSITY OF MICHIGAN; UNIVERSITY OF MICHIGAN BOARD OF REGENTS, Defendants-Petitioners.
No. 19-1636
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
CONCURRING IN THE RESULT
ROGERS, Circuit Judge, concurring in the result. I concur, but would state my reasoning somewhat differently. In a sense, a court does not have the “power” to act in a way that abuses its discretion. Ordering the presence of the university president at an on-the-record settlement conference—for reasons not clearly related to obtaining a settlement—amounts to an abuse of discretion, as we hold. Such an order was thus in a way of speaking beyond the court’s power. But this is not to say, and I do not read our decision today to hold, that ordering the presence of a specific officer of a defendant to attend a settlement conference is categorically beyond the inherent power of a federal district court. The federal rulеs appear to assume such an inherent power,1 and the Seventh Circuit, sitting en banc, has upheld such authority with respect to a corporate representative. See G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 652–53 (7th Cir. 1989) (en banc). We need not address the broader power issue in this case, however, because this particular abuse of discretion in any event warrants mandamus relief.
Further, while the majority correctly relies on federalism concerns in this case involving a state entity, federal separation-of-powers concerns in contrast are not implicated here, where no federal official is involved.