John McBryde v. United States

of combination patentability test

inventions, specifically which a test Stratoflex, in this Circuit

abrogated 1530, Corp., Aeroquip Inc. v. (Fed.Cir.1983). USPQ 20; Br. at Reply Br. at Post-Trial Allen’s obfuscation, replete 24. The record and mischaracterization. deflection case, mind- that counsel We trust court, will as officers of ful of role their assidu- on remand and will job a better do further conducting ously the court assist opinion. with this consistent proceedings AFFIRMED-IN-PART, REVERSED- VACATED-IN-PART, IN-PART, AND REMANDED McBRYDE, Plaintiff-Appellant,

John Defendant-Appellee. STATES, UNITED No. 01-5146. Appeals, Court of United States Federal Circuit.

Aug. trial cor- we conclude that the

cause applied rectly interpreted Compensation and the Clause of Constitution to the undis- United States case, this we affirm. puted facts of

I judge of the

Judge McBryde is an active District Court States United of Texas. The roots of District Northern Judge in a over dispute case lie Kraatz, & Broiles, Purcell Wells David originally McBryde’s handling of two cases Worth, Texas, plaintiff- argued Fort of v. his docket: United States assigned to was Ar- him the brief on appellant. With (“Satz”) Satz, and No. 4:94-CR-094-A Russell, Robbins, Englert, D. Siegel, non Inc., No. Trinity Industries Torres LLP, Washington, of Orseck & Untereiner (“Toms ”). Judge Jerry 4:90-CV-812-A DC. judge chief Buchmeyer, who was then the Counsel, Brilliant, Trial Texas, Senior being Shalom District of of the Northern Branch, Divi- Civil Litigation Commercial Judge McBryde’s conduct not content Justice, Washing- sion, Department both Satz bench, and on the transferred ton, DC, defendant-appellee. argued for McBryde’s docket to Torres from D. were Robert him the brief With facts of the two underlying his own. The Jr., McCallum, Attorney General Assistant cases, of events that as the chain as well Cohen, Director. David M. removal led to their docket, are well documented McBryde’s NEWMAN, LOURIE Before repeated here. and will not be elsewhere CLEVENGER, Judges. Circuit (5th McBryde, In re 117 F.3d 208 See Cir.1997). by filed Circuit for the court Opinion Dissenting opinion

Judge CLEVENGER. transferred, Judge cases were After the Judge PAULINE filed Circuit for Assistance” McBryde “Request filed a NEWMAN. 332(d)(1) Fifth § with the under 28 U.S.C. seeking to have CLEVENGER, Council Judge. Judicial Circuit his docket. returned to the two cases McBryde (“Judge John The Honorable request, Judge McBryde’s response to a decision of appeals from McBryde”) Politz, the Fifth chief then sum granting of Federal Claims Court a commit forming issued order on his to the mary judgment “review, its investigate, report tee expenses legal claim for reimbursement brought on the matter recommendations action to a mandamus pursuing incurred McBryde, before the Council Appeals States Court the United reassignment....”1 concerning the McBryde v. United See Fifth Circuit. McBryde (2001). against Judge States, committee decided Be- 50 Fed. Cl. McBryde To Review Circuit v. Comm. sepa- See committee also conducted 1. The same Disability Orders allegations of investigation of various Council Conduct rate States, brought McBryde against Judge misconduct the United Conference 54-55 attention third (D.C.Cir.2001). Council's to the Judicial Department Justice. including parties, request on his reassignment, and the only for the costs defensive litigation. Judicial Council issued an order invoking After twice requesting reconsideration of own authority its under 28 U.S.C. 332 to decision, both requests of which were reassign the Satz and Torres cases to denied, Judge McBryde filed suit in the Judge Buchmeyer. Chief After the Judi United States District Court for the Dis- cial Council issued order affirming its Columbia, trict of seeking a declaratory reassignment, Judge McBryde had —who judgment the AO must his ex- theretofore represented himself—retained penses from the mandamus proceeding. legal counsel, Through counsel. Judge McBryde, 50 Fed. Cl. at 263. At this a petition filed in the Court of point, the total amount sought by Judge Appeals for the seeking Fifth Circuit $103,922.19. McBryde was The district writ mandamus ordering the Judicial court transferred the case to the Court Council and the Chief of the North Federal Claims in March 2001. ern District of Texas to transfer Satz and transfer, Following the Judge McBryde Toms back to Judge McBryde’s docket. filed an amended complaint com- seeking During action, the course of the mandamus pensation for his expenses mandamus un- Department provided Justice coun Act, der the Tucker by virtue of both 28 sel for the individual than —other § U.S.C. 463 and the Compensation Judge McBryde the Judicial Council —and Clause of the States United Constitution. private retained counsel. The Fifth Cir Id. government moved to dismiss for writ, cuit issued the holding that neither claim, failure to state and Judge Judge Buchmeyer Chief nor the Judicial McBryde for summary moved judgment possessed power Council to transfer on both of his theories of recovery. Id. cases from a district court due to The court held for Judge McBryde dissatisfaction with judge’s handling of threshold issue of whether section 463 is the cases. In re McBryde, 117 F.3d at money-mandating, but held for govern- 230-31. McBryde subsequently de ment on the merits fended as both the section peti Council’s tion and Compensation for rehearing en banc Clause petition claims.2 for certiorari, Judge McBryde both of which appeals. were now denied. We exer- jurisdiction cise appeal over an from final Following the initial mandamus ruling decision of the Court of Federal Claims by Fifth Judge McBryde re- pursuant 1295(a)(3). § to 28 U.S.C. quested reimbursement his ongoing expenses stemming from the mandamus II litigation from the Director of the Admin- We review the trial grant istrative court’s (“AO”) Office of of sum the U.S. Courts mary novo, pursuant judgment § to 28 de “determining The AO denied whether the matter reimbursement because it was amenable to viewed sum offensive, and, mandamus action mary so, as resolution if rather whether the law defensive, than litigation, understanding correctly applied to the undisputed section 463 to authorize reimbursement facts.” Bay Mass. Transp. Auth. v. Unit 2. The government's court treated the court, motion not excluded the motion shall be as a summary motion for judgment permit- as treated as summary judgment one ted Rule of the Court of Federal Claims disposed 56, provided of as in Rule and all 12(b). 12(b) (“If, See RCFC on a motion parties shall be given opportunity reasonable asserting ... pleading failure to state a present pertinent all material made such upon claim granted, which can relief be mat- 56.”). a motion Rule pleading ters outside the presented to and argues that the lan The United States States, ed 1230-31 463 indicates “may in section guage pay” above, McBryde (Fed.Cir.1997). As noted money-mandating, is not the statute either sec based compensation seeks support it cannot therefore that Clause. Compensation 463 or tion govern Tucker Act. The under the claim statutory Judge McBryde’s turn first largely on Hu argument is based ment’s claim. States, 956 F.2d ston United (Fed.Cir.1992), held that the we which A jur did not have of Federal Claims Court his primarily bases for a increase over a claim isdiction § which on 28 U.S'.C. for relief claim 5333(b). Huston, 5 U.S.C. in this reimbursement mandates argues he ... employee “an provided statute provides: case. Section super responsibility has regularly who Justice, judge, justice, a Chief Whenever pay is ... whose employees over vision officer, any employee or ... by wage boards adjusted ... fixed capaci- official is sued public with the nearly as consistent as to defend or is otherwise ty, prevailing in accordance interest in his offi- made or omissions acts taken rates, one of the rates for may paid at of an at- the services capacity, cial highest rate grade which above not rea- the Government torney for any prevail paid to such pay being basic 31 chapter pursuant available sonably super regularly ing-rate employee title, the Adminis- Director of of this 5333(b) (1988) (em § ...” 5 U.S.C. vised'. the United States trative Office added). court held phasis defense. of his may pay costs Courts pay increased for did not mandate statute regulations prescribe Director shall granted but rather employees, supervisory subject ap- payments for such hiring agency to discretion to the complete Conference proval of the Judicial pay such increases whether determine United States. Huston, F.2d at 956 granted. be should admitted that Huston plaintiff 261. The whether Initially, we must address discretion, and we agency great had Tucker of a can be the basis 463 section pro increase pay that the holding agreed, by the raised threshold issue Act claim—a also discretionary. We wholly vision before both here and States United other sections that several noted rightly As the United States trial court. mandatory term “shall” use the statute only notes, jurisdiction arises Act Tucker rates, and remarked pay referring when fairly be “can underlying statute when the “may” and “shall” between the choice by mandating compensation as interpreted a indicates differ the same statute within damage Government the Federal mandatory and discre between entiation Testan, 424 v. United States sustained.” Huston also Id. at 262. tionary tasks. 948, 392, 114 400, 47 L.Ed.2d 96 S.Ct. U.S. is not discretion that where recognized (1976) Corp. v. Eastport S.S. (quoting unlimited, money-man can be the statute 599, 607, 372 States, 178 Ct.Cl. United States, Bradley v. United citing dating, (1967)). If, as United States F.2d 1002 (Fed.Cir.1989). 1578, 1580 870 inter fairly cannot 463 urges, section Huston, how- after then cases decided Other mandating compensation, preted as ever, money-mandat- clarified reach have may nor we the trial court neither In “may.” the term can use ing provision claim Judge McBryde’s the merits States, we held example, v. United Doe on that statute. based 1362 statute, moiety which authorizes cases Doe interplay of such as and Huston Secretary Treasury compen- not, of the “may” is that the use of the word does investigations

sate informants customs itself, by wholly render a statute discre- portion giving recovery, them tionary, money-mandating. and thus not money-mandating, notwithstanding its use conclusion, In reaching this we have sound 1576, “may.” the word 100 F.3d 1582 guidance from the Court. Supreme (Fed.Cir.1996). moiety statute set Rodgers, 461 U.S. statutory forth the requirements pay- (1983), S.Ct. L.Ed.2d ment, provided and then that “the Secre- Supreme Court interpreted statute tary such may person award and Congress which replaced had “shall” with percent amount that does not exceed 25 “may,” following stated guide the net amount so recovered.” interpretation: 1619(a) (2000). We noted the force of statute, “may,” The word used in a when government’s argument regarding the implies degree usually some of discre- “may,” statute’s of the use word but ex- tion. This principle common-sense plained prior had interpreted cases statutory construction is no means the moiety mandating statute as some invariable, however, ... and can be de- award, though Secretary even it gave legislative feated indications of intent Doe, discretion to determine the amount. contrary to the or by obvious inferences heavily F.3d at 1582. We relied also purpose the structure and on our understanding of the intent of Con- statute.... gress, complete which was not to vest dis- (citations Id. at 103 S.Ct. 2132 cretion in compensation. the award of Id. omitted). may footnotes We thus presume ultimately followed those earlier cases Congress that when the “may” used word despite “may,” held that the use of the suit, in the statute should we use com- moiety statute was money-mandating. mon and presume sense that the word The government concedes that the mere conveys degree some of discretion. But “may” use of section does not 463 fore- we proceed must to test that presumption finding close a that the section is nondis- intent Congress the of and other Instead, cretionary. the government notes inferences that we may rationally draw that section 463 uses the term “may pay,” purpose from the structure and of the provisions whereas other Chapter of 21 of statute at hand. mandatory Title 28 use the term “shall.” See, 456(a) (2000) e.g., § (provid- 28 U.S.C. noted, trial As the court the legisla ing that Director jus- the “shall each tive of history section 463 indicates that tice or of judge the United States ... Congress payment did not intend attending while court transacting or offi- discretionary. the statute to be Congress cial at a place business other than his passed section 463 to a problem correct official duty transportation station” ex- peculiar judges judicial to branch em Thus, penses expenses). and subsistence ployees. Normally, an when officer or em government the argues that—as Hu- ployee the of States sued or Chapter ston—in context of of Title subpoenaed in his or her official capacity, codified, in which section (DOJ) Department of provides Justice “may” language clearly renders it discre- representation for party. the affected See tionary. (2000); § see also 28 C.F.R. 50.15(a) (2000). agree with the trial court For members of the branch, however, conclusion to be reached from the representa- such lieu of counsel in private to seek impro- forced appearance an can create tion attorney. con- DOJ Id.3 outright an cases in some priety —and attorneys DOJ interest' —because flict Furthermore, only like the other Court they judges before appear regularly issue, we think to Appeals examine In rec- represent. to called may be grant- of section 463 interpretation an 463, the section ommending passage pick to and choose discretion ing AO ex- Report Judiciary Committee Senate be com- judicial defendants should which plained constitutional would raise serious pensated by U.S. provided [ujsually, services See Tashima Admin. questions. Office assistants, individu- Attorneys their Courts, 967 F.2d the United govern- routinely represent als who Cir.1992). Tashima, (9th 1269-70 they are before litigation in ment Tashima, judge, then a district many represent. While also judges of along with the other sued ‘conflict in which no may arise instances District Court United States improprie- ‘appearance interest’ or The lawsuit District of California. Central exists, exist perceived or is ty’ rule validity of local bar- challenged the will be a few such cases only public, hac vice pro ring attorneys appearing legal damage the enough permanently of California they if were either residents reputation. system’s practiced California. regularly or 97-275, 16, in 1982 reprinted Rep. S. attorney represent appointed an DOJ appear- To avoid the U.S.C.C.A.N. rule on a defended the judges, and he possibility impropriety ance of it was ground: constitutional. single in the be diminished might judiciary among the Tashima, had been who sec- Congress enacted perception, public’s adopt in the voices decision dissenting Di- authorize “expressly 463 to tion rule, the rule’s validi- defend wished to ‘pay Office of the rector Administrative espoused those than grounds other ty justice is sued or costs’ when re- attorney. He therefore the DOJ and ‘the services capacity in his official private to hire that he allowed quested are not government attorney for counsel, personal view because Chapter pursuant reasonably available with that a conflict created case 28)’ repre- (of provides [which Title 31 down, turned him AO States. The 15-16, at Id. by DOJ].” the sentation and a writ of mandamus for a and he sued added). (emphasis 25-26 at U.S.C.C.A.N. entitled that he was declaratory judgment section, preservation this purpose The of expense. at the AO’s private counsel to in the judiciary the of integrity Tashi- granted court The district only private if furthered eye, can public Ninth and the declaratory judgment, ama judicial to officers is available counsel rejected as The affirmed. the DOJ representation whenever unreasonable, very likely unconstitu- impropriety. appearance cause would had dis- tional, it position AO’s clearly intended Congress therefore to deny reimbursement to cretion the Administra- authorize^]” “expressly ar- raised the identical The AO a Tashima. the costs whenever to pay tive Office government gument Tashima capacity is her official in his or judge sued Judge McBryde's situa- statute, course, up We take whether requires com- also 3. The "other- parameters required judge falls within the is “otherwise tion pensation if the prong in his made defend” acts or omissions to defend taken wise infra. (2000). capacity.” 28 official presents to us Congress’ here: “that use Congress believe that could intend such discretionary term ‘may’ rather a result because a reassignment “[s]uch than mandatory term ‘shall’ indicates powers from III Article entities to a non- Congress did not to impose intend adjunct Article III precisely type any duty on the Administrative Office to threat to the independence of the Judicia private counsel represent ry which the Supreme Court has consis sued in their official capacities tently invalidated.” Id. (citing N. Pipe government when a attorney is unavail- line, 2858). U.S. at 102 S.Ct. able.” However, Id. at 1268. if the stat- AO “was created to perform, and histori ute truly AO, vests discretion in the cally performed, has a limited ministerial non-Article III entity,4 pick and choose function. It was not intended govern which defend, Article III judges then or policy make for the Id. Judiciary.” at may statute well raise serious consti- 1271. agree with the Ninth Circuit concerns, tutional because it would allow a that “[t]he policy AO’s determinations in non-Article III entity too sway much over this case nature business the judiciary. Id. at 1269-70. As the and outside the role of the Administrative Ninth Circuit explained, discretion “[t]he Office.” Id. As the Supreme Court stated pick and choose who will be represent- in Northern Pipeline, judicial pow “[t]he government ed at expense and who will er of the United States must be give would exercised the AO the power to influ- ence courts having or coerce a federal attributes prescribed per- formance III judge’s Article [lifetime official tenure duties.” and consti Id. at 1270. Ninth Circuit also noted tutionally-protected compensation.]” that allowing the AO to make the policy Pipeline, Northern 458 U.S. at regarding decision whether a particular S.Ct. 2858. ju Encroachment such representation would be in the best inter- dicial power by non-Article III entities ests of judiciary would itself raise ser- necessarily raises a serious constitutional ious questions. constitutional Id. “Judicial question. policymaking is a function traditionally as- We therefore agree with the trial court signed to the Judicial Conference and the that, statute, like the moiety Councils, section 463 Article III entities.” (footnote omitted). payment mandates Id. when the statutory According to the government’s met, conditions are theory, and it Congress shifted therefore particular policy money-mandating decision from purposes vesting III Article entities to their adjunct, Court of Federal jurisdic- Claims with AO. Like the Ninth we choose not tion Tucker Act. Although the AO directly works fed narrowest sense of that term. Di- judiciary, eral it is no more an Article III rector was entrusted with authority no over entity Court, than a U.S. Bankruptcy see N. performance the judicial of business—his role Pipeline Co., Constr. v. Pipe Co. Marathon Line respect was, is, with to such business and 50, 2858, 598, U.S. 102 S.Ct. 73 L.Ed.2d merely to collect information for use the or other agencies administrative that serve themselves."). Thus, courts Congress while interests, Benson, Article III see Crowellv. may create non-Article III entities such as the 22, (1932). U.S. 52 S.Ct. 76 L.Ed. 598 AO to assist the III judiciary, Article the con- See also Chandler Judicial Council the of delegation stitution frowns excess of au- 74, 97, Tenth 398 U.S. 90 S.Ct. thority over Article III bodies to such non- (1970) (Harlan, J., 26 L.Ed.2d 100 concur Article Pipeline, III entities. See N. 458 U.S. ("The ring) Office, role the Administrative at 102 S.Ct. 2858. Director, and its was to be 'administrative' in tion, provide that does not for com- prong

B when, here, as in pensation judge the that the trial court Having concluded position plaintiff initiating of a offen- the jurisdiction over correctly asserted litigation. sive au- case, we to whether section 463 turn McBryde’s le- Judge payment of thorizes Second, the proceeding before Judi- from the mandamus expenses flowing gal lawsuit; cial was a it an Council above, the statute we noted action. As investigation under the proceeding internal (1) in two situations: payment authorizes Act, Disability Judicial Conduct and in his capaci- is sued official judge when (the “Act”).5 § 372 As the District (2) and when ty; explained, Circuit has Columbia “Con- made taken omissions with- defend acts or gress sought give judicia- in the Act capacity. Judge scope in the official power its ry ‘keep own house he is to com- McBryde that entitled argues by conducting investigations order’ its own prongs or under either both pensation McBryde, of misconduct.” 264 F.3d at 61 inquiry. disagree. the section 463 96-362, 11, reprinted No. at (citing S.Rep. First, McBryde was not 4325). The Act in 1980 at U.S.C.A.A.N. in a in his lawsuit named as a defendant private, po- therefore internal provides therefore statute capacity, official judicial licing judicial branch compensation for his does mandate jurisdiction branch. do not have Courts “sued in his official under the expenses appeals from the merits of section hear beyond cavil that It is capacity” prong. specif- 372 determinations because the Act as a Judge McBryde was not named defen ically provides such review can be had in a in a court. Neverthe suit filed dant only by petition to the Judicial Conference less, McBryde argues pro States. 28 U.S.C. ceedings in the Judicial Council were (2000) 372(c)(10) judi- that a (providing him, nature of a suit “aggrieved by an action of the cial officer he con proceeding—which mandamus (6) of this paragraph council under must, cedes, he as he initiated—was may petition Judicial Con- subsection appeal from the ad in the nature of the United States for review ference of the Judicial Council. verse decision thereof’). review of the Judicial Judicial theory with this problems There two similarly determinations is Conference’s First, recovery. Judge McBryde initiated determinations, precluded: “all orders in the Judicial Council proceedings review, including petitions denials request he filed a for assistance with when shall not be final and conclusive and shall Thus, body. assuming that the even or other- judicially appeal reviewable on in the Judicial Council were proceedings Thus, “ap- no there could be wise.” Id. lawsuit, nature of peal” to the Fifth Circuit from the decision position plaintiff in the of a stood Rather, in In re Council. proceedings, for it was his respect to those McBryde, Fifth reviewed and initiated complaint Council the decision of remedied mandamus plain meaning of “is sued them. As (rather Buchmeyer than Judi- capacity” unambiguously refers his official Council) offensive, defensive, Satz Torres litiga- than cial transfer rather portion join Judge McBryde's did assertion that the Fifth 5. proceedings Higginbotham's opinion discussing that before that issue. Circuit held judicial were in nature is Judicial Council McBryde, F.3d at In re 231. See panel judges two on the incorrect. The other Judge McBryde’s Judge McBryde argues docket. See In re also that at McBryde, to resort re mandamus action'was judicial quired defend his acts in Satz arguendo assuming But even that Torres, that and- the “otherwise re was, way, the mandamus action an some quired prong to defend” of section 463 action, appeal from the section 372 section therefore authorizes reimbux-sement of his provide appropriate 463 does not ave view, expenses. In McBryde’s nue to obtain reimbursement. addition Buchmeyer transfers and the internal providing disciplinary pro Judicial Council were to or responses sanc (i.e., extrajudicial) ceedings internal judicial tions for his acts Satz and Tor proceedings, review of section 372 Con res, and he required therefore to file gress provided explicitly also a mechanism mandamus action order to “remedi- subjected judge which a section to a the effect at[e] of those orders proceeding compensated can be for ex judicial McBryde and his business.” He penses resulting from such an investiga also contends that “[t]he institution and tion: ... pursuit proceeding the mandamus Upon the of a request judge magis- or preservation were essential to the of his judge subject trate whose conduct judicial independence individual and the complaint subsection, aof under this judicial concept independence.” its For may, complaint council if the has part, government argues no one finally been paragraph dismissed under Judge McBryde forced take a writ to (6)(C) [ie., judge’s dismissal fa- the Fifth he so was not “otherwise vor], recommend that the Director of the required to defend” his actions. Administrative Office of the United thought The trial court that the “other- reimbursement, award States Courts required wise to defend” prong section appropriated from funds Federal 463 covers circumstances in which a judge judiciary, for expenses, those reasonable is compelled judge’s to defend the acts fees, including attorneys’ incurred despite not been having sued. “Examples judge magistrate judge or during may such instances include a defending investigation which would not have judicial employee subpoenaed in his official requirements been incurred but for the capacity Congress, as witness before of this subsection. body, court, grand administrative or a 372(c)(16) (2000). Thus, 28 U.S.C. Con- jury.” McBryde, 50 Fed. at 267. Al- Cl. gress specifically spoke to situations in though the court acknowledged peti- that a judge litigation which a incurs expenses in tion for mandamus might sometimes fall the course of a investigation, section 372 within scope of section the court only decided that who actually held phrase “[t]he apply does reimbursed, win can only and then case of this judge nature where one sues the recommendation of the Judicial Con- judge another and the Judicial Council to Thus, ference. assuming arguendo that challenge transfemng orders cases from Judge McBryde’s mandamus action was an his docket.” Id. appeal from the investigation section 372 Council, remedy court, the Judicial is not agree with the trial and hold compensation seek under section interpretation the correct of “other- pursue but rather reimbursement at the wise to defend” refers to situa- recommendation of the Judicial Confer- tions in which a takes action to 372(c)(16). ence under section government defend coercive acts. to de- “required no more McBryde include would actions Compensable any plaintiff other than is to) his acts peti- a fend” bringing limited not be (though seeking to vindicate subpoe- a because who enters subpoena a quash tion to (ie., law, statute by coercive by protected common backed interest nas are truth, McBryde The government. Judge of the power contempt) or constitution. 463, while history section he wished to legislative this because action initiated of the interpretation this supports sparse, to do That so, he had so.6 not because do above, commit- we noted As statute. helped may advance doing have in so he 463 to section accompanied report tee is admi- independence the cause that Con- indicated Senate the floor of the interests rable, importance but provide was to overarching concern gress’s not convert his protect to does sought he who, though for representation litigation in into offensive to engage choice cannot be capacity, official in their named under section 463. act a defensive of ethical because by the DOJ represented court, not hold that do we Like trial example, and most obvious concerns. will writ of mandamus for a petition a the stat- in mentioned specifically the one of sec- boundaries always fall outside defendant is named ute, a a judge when that under the simply hold We tion 463. equally However, judge a in a lawsuit. case, Judge in which circumstances served when capacity in his official named any gov- subject of was not instance, if the even subpoena, with a him required compulsion ernment in the a fact defendant not in judge is or, in- seeking writ his acts defend And, subpoe- because lawsuit. underlying Council deed, by petitioning power the coercive backed nas are trans- Buchmeyer’s Judge from for relief sub- named government, not allow orders, 463 does fer section fact, defend him- is, required, poena reimbursement. a matter subpoenaed he is self when acts. to his official related C interpretation foregoing Under claim MeBryde’s Judge turn next to We prong, to defend” the “otherwise U.S. Clause Compensation compensation provide 463 does section to reimburse- him Constitution entitles facts of this McBryde on Judge manda- in the expenses legal ment of his not re- he was so because This is case. Clause Compensation mus action. de- compulsion by government quired Judges, both “[t]he provides Torres. acts in Satz his fend Courts, ... shall at and inferior supreme compelled, McBryde felt Judge accept Services, a their Times, receive stated to take duty, an internal felt he in that be dimin- which shall Compensation, upon his cases these preserve action in Office.” Continuance during their ished However, to vindicate seeking docket. Judge Ill, § 1. As Const., art. Torres, U.S. Judge retain Satz right to Buchmeyer rather litigate in front of Buchmeyer's or- Chief true that It is exert- also McBryde. orders than transferring Torres ders Satz court, be- clerk of upon the compulsion ed government coercive MeBryde's were docket enter into not to was ordered the clerk cause However, important remember it is acts. issued orders any further record the official per- may Judge McBryde have that —however The or- cases. Judge McBryde in those compulsion exerted orders them—the ceived however, towards ders, directed were not and not and Torres parties in upon the Satz any compel alter- did not Judge McBryde and adjudicating judges involved upon the his behavior. ation in parties compelled the it because matters those 1368 notes, 570, Evans,

McBryde correctly have (quoting we held 121 S.Ct. 1782 253 Clause, Compensation “fairly 265, J., in- (Holmes, U.S. at 40 S.Ct. 550 dis- terpreted, payment mandates the of mon- senting)). iney prohibited compensa- the event of a Judge McBryde argues that he gives tion diminution” and therefore rise to litigation would have incurred the ex jurisdiction. Tucker Act v. Hatter penses judge, were he not a and that States, 626, (Fed.Cir.1992). 953 F.2d 628 therefore denial of “[t]he reimbursement Compensation protects Clause legal expenses] [of his to an is tantamount sitting both judges from direct reductions indirect reduction his income.” We dis salary, in their from some indirect First, above, agree. as we discussed Hatter, See reductions. United States Judge McBryde litigation initiated the 557, 569, 1782, 532 U.S. S.Ct. 149 which he compensation seeks of his own (2001) (“[T]he Compensation L.Ed.2d 820 accord—he duty no affirmative protections Clause offers that extend be his request file assistance with the a yond legislative directly effort dimin Judicial Council or petition his for a writ of a judge’s pay, say, by ish a ordering low mandamus. That he chose to so in do salary. legislature er a Otherwise could order vindicate his legal interests does circumvent even the most Compen basic him any plain differentiate other protection by sation Clause enacting a And, tiff. citizenry the bulk of the at law, discriminatory tax for example, that least, it is well understood that plaintiffs precisely indirectly but achieved the for engage litigation civil at their ex own (internal omitted).). bidden effect” citation pense—not government’s at expense. respect

With to indirect reductions in Judge McBryde That should suffer this compensation, Supreme Court has burden the rest of his fellow citizens made it clear that is it those laws that does not violate the ie., Compensation Clause specifically target the judiciary, dis laws, criminatory paying litigation expenses because may that violate sim Compensation ply Clause. Id. at example general another of a burden Hatter, S.Ct. 1782. the Court held judges share with all other citizens. application of the Medicare tax to Indeed, it is hard to govern see how the judges appointed before its enactment did single ment could possibly out Judge Compensation not violate the Clause. Id. any McBryde—or negative judge—for That tax affected all citizens equally; un treatment litigation based on like the tax Security Social that the Court judge freely to initiate. gov chooses Hatter, invalidated the Medicare tax impose ernment did not duty a did not out single members of the pursue of litigation, sort and thus it branch. adopted The Hatter Court any cannot exert influence on whether reasoning of Justice Holmes’s and Justice judges choose to their reduce available Gore, Brandeis’s dissent in Evans v. pool monetary through engag reserves U.S. 40 S.Ct. 64 L.Ed. 887 « ing it. (1920), that “the Compensation Clause of Second, litigation expenses—like most fers ‘no reason for exonerating’ expenses life—do not compensa- reduce citizen, ‘from the ordinary duties of a above, tion. As alluded to expenses sim- which he shares with all others. To re ply claim a portion judge’s compen- quire pay man to the taxes that all And, sation it has paid. been while other men have to possibly cannot after tax, made instrument attack the Court in Hatter find indepen did ” Hatter, judge.’ dence as a course, U.S. at which one of expense, sort fore, judgment Court affirm if it we Clause Compensation violate could entirety. in its impor- it is Federal Claims judges, of discriminated expense an is tax that a note to tant COSTS government. the to paid and

imposed the over control has government No costs. the tax is tax, indeed the and of amount AFFIRMED. the before pay gross simply deducted individual the reaches ever paycheck by Circuit court filed for Opinion the unique- provides A tax therefore judge. Dissenting opinion Judge CLEVENGER. govern- for the opportunity dangerous ly Judge NEWMAN. filed Circuit an indirect judiciary for the target ment by an salary in take-home decrease NEWMAN, Judge, PAULINE into immediately back flows that amount dissenting. a discrim- treasury. Such government the and courage acted McBryde Judge pro- it tax, opportunity the inatory judicial author defending his in pertinacity undue to exert government for vides lawyers, of actions assorted against the ity judiciary, is independent an over influence bureaucrats, He succeed colleagues. the Com- danger that of the sort precisely Fifth Cir ed, unequivocally. fully Here, against. guards Clause pensation posi his of vindicated Appeals Court cuit danger. The however, no such can see we to his docket. tion, his cases and returned Judge that mandate did government (5th Cir. 117 208 McBryde, In re costs, nor litigation these McBryde incur hold 1997). panel on this My colleagues imposition of benefit reap it did acts his official the defense of because that lawyers McBryde’s Judge those costs— a writ McBryde to seek Judge danger no Therefore, simply there did. “de not a mandamus, therefore he was influ- could somehow government that simply a authority, but judicial fender” of or oth- McBryde Judge ence or intimidate litigation.” initiating offensive refusing to “plaintiff similarly situated er that through court holds incurred ground this legal expenses On pay litiga- offensive to the benefit pursue entitled is not judge’s decision McBryde rights. legal own his are recom vindicate whereby judges tion to the statute Thus, compensate failure incurred attorney fees pensed incurred in he expenses McBryde in their official taken of actions defense does not action mandamus pursuing capacity. of the Com- salary in violation his diminish high. the nation stakes Clause. pensation transferred cases are judge’s aWhen result, actions such change order Ill indepen- an right public’s threaten above, con- we given reasons For the Stump Sparkman, v. See judiciary. dent money man- while section clude 1099, 98 S.Ct. 435 U.S. Tucker Act creating purposes dating (1978): L.Ed.2d of this undisputed facts jurisdiction, recognized early as Court As to re- McBryde entitle do case principle general it was “a mandamus pursuing his the costs cover proper admin- to the importance highest of section prong either action under officer, justice that a istration such ex- Furthermore, the failure authority vested exercising Compensation not violate does penses own him, free act [should] be There- Constitution. the U.S. Clause convictions, apprehension without Courts, and received the advice that personal consequences to himself.” minor should file claim under the Feder- al (quoting Bradley Fisher, (13 Tort Claims Act. U.S. reject- Wall.) 335, 347, (1871)). 20 L.Ed. 646 ed remedy, issued Order stated:

The attorney statute, services 28 U.S.C. 463,1 is based on premise judi- The court is disappointed that there cial acts must be free intimidation and would even a suggestion that Grecia the defense of acts should not Torres, minor, a acting through a person at the be personal expense of judge. or persons might who legally quali- areWe not here called to decide how fied to act behalf, on her would be re- far a district or circuit court go can quired go to to the expense time and to overseeing way judge performs his eMiaust administrative remedies, duties, for the Fifth Circuit decided that through a tort process, claims before issue favor of Judge McBryde. The being able to obtain relief from violation only question before us is the statutory of an order of this court.... entitlement to reimbursement attorney of clerk, The upon consultation with Chief fees. Judge Buchmeyer, responded in a manner The Judicial Acts that Judge McBryde “disrespect- deemed The incidents triggered these ful” and “insolent.” Judge in- McBryde events are not review, irrelevant to this for sisted that action under the Tort Claims they make clear that Judge McBryde had Act was an inappropriate remedy for the “taken acts in his official capacity,” 28 error, court’s whereupon the Chief Judge § and that he obliged became removed the case from Judge McBryde, to defend these cases, acts. In two that of reassigned himself, it to vacated Judge Satz, and Torres of the chief judge of the orders, McBryde’s and sealed the file.2 district court transferred the pending Chief Judge Buchmeyer filed memoran- cases from Judge McBryde’s docket to his dum stating that the reassignment was own, and withdrew orders that Judge necessary “to public avoid humiliation and McBryde had issued and substituted his damage to the Clerk, District as well as to own, thereby changing substantive rulings. the reputation of this Court.” case, In the Toms the court clerk dis- The second case involved the criminal covered that office, the clerk’s through in- trial of a defendant advertence, named Satz. jury After had not Judge followed trial and McBryde’s Satz, conviction of order years Judge four earlier that $40,000 McBryde the sum of denied the government’s awarded request to a minor named to delay Grecia Torres sentencing should be until placed in after sentencing an interest-bearing account. of Satz on a On discover- similar conviction Arizona. ing the error the clerk contacted the Ad- issues were complex,3 and after vari- ministrative Office of the United States ous hearings Judge McBryde held an As- 1.28 U.S.C. 463. Justice, Whenever a Chief ed States may pay Courts the costs of his justice, officer, judge, or employee any defense. United States court is sued in his official capacity, or is otherwise to defend 2. The facts are fully more set forth in the acts taken or omissions made in his official opinion Circuit, of the Fifth McBryde, In re capacity, and the services attorney of an (5th Cir.1997). 117 F.3d 208 the Government are reasonably available pursuant chapter title, the Di- supra. See 2n. rector of the Administrative Office of the Unit- the effective impediment “an as cases contempt Attorney sistant justice.”5 order administration with an comply failing questions to answer refusing and Court to the appealed McBryde Judge Judge proceeding, Arizona about appeal Fifth Appeals for “engaged the AUSA stating writ of for a petition of a taking the form AUSA deception.” and in falsehood two return these mandamus Buchmeyer, Judge Chief complained Department his docket. cases contempt McBryde’s Judge vacated who Judge Chief counsel provided Justice ease to himself. reassigned order AUSA; clerk, Buchmeyer, attempted McBryde objected, counsel; private retained Council and sentence. judgment to enter coun- private McBryde retained directed Buchmeyer then Chief Fifth hearing, Following him- sel. signed only materials file clerk in favor mandamus the writ orders issued McBryde’s self; he declared that Buchmey- court observed The Judge McBryde. Judge the file. void, and sealed ac- to dis- response the that described of cases “reassignment order an er issued truthful,” and “entirely per- rulings as substantive AUSA agreement cused as stat- Attorney very U.S. Arizona threatens quoted cases taining to those in unseal- McBryde’s action Judge system.” court ing that the federal structure grand Arizona an file jeopardized ing the at 223. McBryde, 117 investigation.4 jury cir- observed Circuit Fifth The As- “Request filed Judge appellate is not Council Judicial cuit’s Dispute” with in Resolution sistance as Buchmeyer Judge court, “Chief and Circuit Council. Fifth Circuit appellate power lacks district to a the matter referred Politz Judge Chief district fellow his over review Investigatory Committee. Special decision is Circuit The Fifth judges.” Id. Judge from testimony heard Committee review; is it nor to collateral subject not to be request refused McBryde, but interpretation subject to administrative other testimony of the during the present However, § 463. of 28 U.S.C. application and the Buchmeyer witnesses, Judge Chief reim- McBryde requested Judge when criticized. had been who and AUSA clerk attorney fees from of his bursement adopted Commit- Council The Judicial Office, pro- statute as the Administrative recommendations, ruling tee’s and Associate vides, Counsel the General irrep- “threaten[ed] McBryde’s accusations reim- denying “decision” issued Director reputa- professional to the damage arable ac- bursement, mandamus ruling clerk and career of’ tions and defensive. rather than offensive tion in these actions other AUSA, and criticized sug- footnote opinion at its "curious,” majority since Circuit found Fifth 4. The "plethora” of were a there gests that same information disclosures earlier is McBryde. That "charges” seal: under not made were these incorrect; related only issues McBryde’s Curiously, this effect These cases. investigation] targets of the Torres Satz [alerting phases order on the "conduct made spite of concern charges disclosures not did asserted is states, a continu- but sub- bench,” majority motion Umphres’ panel first as AUSA seal and ance, ca- April judge's not official filed taken in acts stantive attorney.... on Satz's served presumably pacity. at 216. McBryde, 117 F.3d In re I “judicial Power of the United States” be reposed must in an independent Judi- doI not speculate whether any of the ciary. It commands that the participants indepen- in these might events have dence of the Judiciary acted more jealously temperately, mindful of “the egos guarded, provides and it sometimes flourish under clear institu- III,” shelter of protections Article as tional the Fifth for that independence. put it. The only question is whether An independent judiciary requires inde- Judge McBryde, who not did receive assis- pendence only from the other branches tance of counsel from the Department of of the government, but pressures Justice under entitled reim- influences of persons within judicial bursement of his attorney fees under institution, including the reassignment § 463. cases in order change their disposition. panel majority holds that Judge Judicial independence integ- McBryde was neither “sued in his official rity inseparable. It capacity” “required nor to defend acts tak- McBryde’s personal rights that are at is- en or omissions made in his official capaci- sue; it is the nation’s right that judges be ty.” The majority’s theory is that because free attempted pressure, dominance or Judge McBryde’s defense of his official that they conduct their judicial business in took acts the form of for a petitioning writ accordance conscience, with their mandamus, he was anot defender but a stand up for their convictions. Justice “plaintiff.” However, the mandamus pro- Charles Evans Hughes referred to the ceeding was solely in defense of Judge judge’s “bedrock of conviction” as the McBryde’s judicial actions and authority. strength foundation of the system nation’s A judge need not be subpoenaed, as the justice. See The Supreme Court the majority argues, in order to be in the (1928). United States 49 position of defending “acts taken in his finality With official of the capacity,” in Fifth the Circuit’s deci- § words of sion, Judge McBryde’s entitlement to re- panel majority proposes imbursement of attorney § fees under McBryde could have simply acquiesced in was established. This entitlement vested this assault on authority, and with the decision of Circuit; the Fifth thus have avoided the legal cost of defend there is no discretion in the Administrative ing his official My acts. colleagues read Office to withhold reimbursement. Nei- the words “otherwise to defend” ther the Court of Federal §in Claims nor the 463 to mean that the statute excludes Federal Circuit nor the legal Administrative Of- any services situation where such fice has authority acquiescence possible. is I re-eharacterize the suppose a per proceedings son can the always Fifth My choose Circuit. not to col- defend one leagues self on panel However, attack. point appropriately when the attack out strikes at the independence Administrative Office and was not convictions of the judge, created under III, relief from Article and does financial cost of that defense is- provided policy exercise authority over Article III by § 463. As (Of reiterated in Northern Pipe judges. course, neither was the Court line Construction Co. v. Pipe Marathon Claims, Federal my whom colleagues Co., Line 50, 60, 458 U.S. 102 S.Ct. consign this policy authority, created un- (1982): 73 L.Ed.2d 598 III.) der Article Section 463 is a fee-shift- [O]ur Constitution unambiguously enun ing statute, not a new cause of action. ciates a fundamental principle the Whether the statutory § conditions —that authority of and business met is circuit Circuit; and when Fifth RESTORATION ISLAND TURTLE MeBryde’s defense resolved Steiner, Ameri NETWORK, Todd under acts, reimbursement his official of Cru Society for the Prevention can Indeed, con- entirely ministerial. Society Animals, Humane elty to reimbursement that this intent gressional States, and the Sierra United subject collateral ministerial, and Plaintiffs-Appellants, Club, Act, apparent Tucker review directly 463, which §of the structure Secretary EVANS, of Com L. Donald to dis- Office Administrative authorizes Secretary Powell, merce, L. Colin err colleagues My funds. these pense Secretary O’Neill, State, H. Paul and applies Act Tucker holding that Sandlaw, As Treasury, B. (and David Federal Claims Court of Bu Secretary of State for authority sistant have appeal) Circuit Federal En International and Oceans reau of Fifth to review obligation Affairs, and Scientific vironmental entitlement to decide in order proceedings Dalton, Admin Assistant Penelope D. fees. attorney Fisheries, Ma National istrator Service, Alan P. Fisheries rine

II Secretary of State Larson, Under Agricultural Business Economic it “becomes wrote that Judge Cranch Appellants, Affairs, Defendants-Cross calmly poise Judiciary duty of unmoved justice, the scales clamor by the undisturbed power, armed Inc., Institute, Fisheries National v. Boll multitude,” Appellant. Defendant-Cross (No. (C.C.D.C.1807) man, 24 F. Cas. 00-1581, positioning 00-1569, 00-1582. MeBryde’s 14,622). Judge Nos. cost of at a justice was scales of Appeals, Court decision colleagues’ my $103,922.19. From Circuit. Federal under not reimbursable fees are that these whereby procedure Aug. DECIDED satel requires § reimbursement of Federal the Court litigation

lite Federal to the appeal potential Claims and dissent. respectfully I Floum, Strategies Legal R.

Joshua CA, petition filed a Emeryville, Group, rehearing en banc rehearing panel him on With plaintiff-appellant. F. Pierre. was Ariela St. petition Environ- Thurston, Attorney, Alice M. Division, Civ- Resources and Natural ment Justice, of Division, Department il DC, response filed Washington, her on With appellants. defendants-cross Cohen, Di- M. David were response

Case Details

Case Name: John McBryde v. United States

Court Name: Court of Appeals for the Federal Circuit

Date Published: Aug 6, 2002

Citation: 299 F.3d 1357

Docket Number: 20-2003

Court Abbreviation: Fed. Cir.