Mallard v. United States District Court for Southern District of Iowa/Opinion of the Court

by William J. Brennan, Jr.

We are called upon to decide whether 28 U.S.C. § 1915(d) authorizes a federal court to require an unwilling attorney to represent an indigent litigant in a civil case. We hold that it does not.

* Section 1915(d) provides: "The court may request an attorney to represent any [person claiming in forma pauperis status] unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." In Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1005 (1984), the Court of Appeals for the Eighth Circuit ordered "the chief judge of each district to seek the cooperation of the bar associations and the federal practice committees of the judge's district to obtain a sufficient list of attorneys practicing throughout the district so as to supply the court with competent attorneys who will serve in pro bono situations," such as in forma pauperis proceedings conducted under 28 U.S.C. § 1915. The District Court for the Southern District of Iowa heeded the Court of Appeals' command. Under the system in force since February 1986, once the District Court has determined that an indigent party qualifies for representation under § 1915(d), the Clerk of the Court forwards a copy of the court file to the Volunteer Lawyers Project (VLP), a joint venture of the Legal Services Corporation of Iowa and the Iowa State Bar Association. The VLP keeps a copy of a roster prepared by the District Court of all attorneys admitted to practice before the court and in good standing. After deleting the names of lawyers who have volunteered for VLP referrals of pro bono state-court cases, the VLP selects lawyers from the list nonalphabetically for § 1915(d) assignments. ^[1] Lawyers who are chosen under the plan may apply to the District Court for reimbursement of out-of-pocket costs. They may also keep any fee award provided by statute, but are not guaranteed even minimal compensation for their own services. The VLP assists lawyers assigned to litigate in areas of the law with which they are unfamiliar by providing written materials, holding periodic seminars, and facilitating consultations with experienced attorneys.

Petitioner Mallard was admitted to practice before the District Court in January 1987, and entered his first appearance the following month. In June 1987 he was asked by the VLP to represent two current inmates and one former inmate who sued prison officials under 42 U.S.C. § 1983, alleging that prison guards and administrators had filed false disciplinary reports against them, mistreated them physically, and endangered their lives by exposing them as informants. After reviewing the case file, Mallard filed a motion to withdraw with the District Court. In his motion, petitioner stated that he had no familiarity with the legal issues presented in the case, that he lacked experience in deposing and cross-examining witnesses, and that he would willingly volunteer his services in an area in which he possessed some expertise, such as bankruptcy and securities law. App. 4-8. The VLP opposed petitioner's motion, claiming that he was competent, that he had an ethical duty to do whatever was necessary to try the case, and that permitting an exception to the rule of assignment would create a dangerous precedent. A Magistrate denied petitioner's motion.

Mallard then appealed to the District Court. Although he reiterated his unfamiliarity with § 1983 actions, he contended that he should be permitted to withdraw not because of his inexperience in interpreting the statute and its case law, but because he was not a litigator by training or temperament. Forcing him to represent indigent inmates in a complex action requiring depositions and discovery, cross-examination of witnesses, and other trial skills, Mallard asserted, would compel him to violate his ethical obligation to take on only those cases he could handle competently and would exceed the court's authority under § 1915(d). Id., at 19-29. In an accompanying affidavit, Mallard added: "I do not like the role of confronting other persons in a litigation setting, accusing them of misdeeds, or questioning their veracity. Because of my reluctance to become involved in these activities, I do not feel confident that I would be effective in litigating a case such as the instant case." Id., at 38.

Unmoved, the District Court upheld the Magistrate's decision. App. to Pet. for Cert. 2a-4a. Based on the quality of petitioner's brief in support of his motion to withdraw, the court pronounced him competent, notwithstanding his very slight acquaintance with trial litigation. The court also held that § 1915(d) empowers federal courts to make compulsory appointments in civil actions. In November 1987, Mallard sought a writ of mandamus from the Court of Appeals for the Eighth Circuit to compel the District Court to allow his withdrawal. The Court of Appeals denied the petition without opinion. Id., at 1a. We granted certiorari to resolve a conflict among the Courts of Appeals over whether § 1915(d) authorizes compulsory assignments of attorneys in civil cases. ^[2] 488 U.S. 815, 109 S.Ct. 51, 102 L.Ed.2d 30 (1988). We now reverse.

Interpretation of a statute must begin with the statute's language. E.g., United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989); Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297, 2301, 85 L.Ed.2d 692 (1985). Section 1915(d)'s operative term is "request": "The court may request an attorney to repres nt" an indigent litigant. The import of the term seems plain. To request that somebody do something is to express a desire that he do it, even though he may not generally be disciplined or sanctioned if he declines. Of course, somebody who frequently refuses another person's requests might not win that person's favor. A soldier who regularly fails to fulfill his superior's requests might not rise in the ranks as rapidly as would someone who was more compliant. But somebody who refuses a request, as the word is ordinarily used, may not be penalized formally for doing so, as a soldier who disobeyed orders might be court-martialed. In everyday speech, the closest synonyms of the verb "request" are "ask," "petition," and "entreat." See, e.g., Webster's New International Dictionary 1929 (3d ed. 1981); Black's Law Dictionary 1172 (5th ed. 1979). The verbs "require" and "demand" are not usually interchangeable with it.

There is little reason to think that Congress did not intend "request" to bear its most common meaning when it used the word in § 1915(d). Although "request" may double for "demand" or "command" when it is used as a noun, particularly when employed as a term of art in connection with wills, trusts, and probate proceedings, its ordinary and natural signification when used as a verb was precatory when Congress enacted the provision now appearing at 28 U.S.C. § 1915(d) in 1892. See, e.g., Black's Law Dictionary 1027 (1st ed. 1891); 2 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 415 (1879); 7 Judicial and Statutory Definitions of Words and Phrases 6120-6122 (West 1905).

Perhaps the clearest proof that Congress did not intend § 1915(d) to license compulsory appointments of counsel is the contrast between that subsection and § 1915(c). Whereas § 1915(d) merely empowers a court to request an attorney to represent a litigant proceeding in forma pauperis, § 1915(c) adopted at the very same time as § 1915(d)-treats court officers and witnesses differently: "The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases." (Emphasis added.) Congress evidently knew how to require service when it deemed compulsory service appropriate. Its decision to allow federal courts to request attorneys to represent impoverished litigants, rather than command, as in the case of court officers, that lawyers shall or must take on cases assigned to them, bespeaks an intent not to authorize mandatory appointments of counsel. ^[3]

An examination of state statutes governing in forma pauperis proceedings at the time § 1915(d) became law bolsters this conclusion. By the late 19th century, at least 12 States had statutes permitting courts to assign counsel to represent indigent litigants. The Congress that adopted § 1915(d) was undoubtedly aware of those statutes, for the brief and otherwise unilluminating Report of the House Judiciary Committee states that the bill containing § 1915(d) was designed to enable persons unable to afford legal representation to avail themselves of the courts, as "[m]any humane and enlightened States" that had similar laws allowed them to do. H.R.Rep. N . 1079, 52d Cong., 1st Sess., 2 (1892). None of those state statutes, however, provided that a court could merely request that an attorney serve without compensation. All of them provided instead that a court could assign or appoint counsel. Ark.Stat. § 1053 (1884) (assign); Ill.Rev.Stat., ch. 26, § 3 (1845) (assign); Ind.Rev.Stat., Vol. 2, pt. 2, ch. 1, Art. 2, § 15 (1852) (assign); Ky.Stat. § 884 (1915) (Act of May 27, 1892) (assign); Mo.Rev.Stat. § 2918 (1889) (assign); N.J.Gen.Stat., Vol. 2, Practice § 369, p. 2598 (1896) (enacted 1799) (assign); 1876 N.Y.Laws, ch. 448, Art. 3, § 460 (assign); 1869 N.C.Pub.Laws, ch. 96, § 2 (assign); Tenn.Code § 3980 (1858) (appoint and assign); Tex.Rev.Stat., Art. 1125 (1879) (enacted 1846) (appoint); Va.Code Ann. § 3538 (1904) (appeared in 1849 Code) (assign); W.Va.Code, ch. 138, § 1 (1891) (assign). Cf. N.Mex.Comp.Laws § 2289 (1884) (judge may appoint attorney to represent Territory if Territory's attorneys are unable to attend by reason of sickness or inability); Nev.Comp.Laws § 3126 (1900) (court may appoint attorney to appear on behalf of absent defendant in certain contract actions). To the extent that the "assignment" or "appointment" of counsel denotes the imposition of a duty to undertake representation that courts may enforce, Congress' decision to allow the federal courts to do no more than "request" attorneys to serve, in full awareness of more stringent state practices, seems to evince a desire to permit attorneys to decline representation of indigent litigants if in their view their personal, professional, or ethical concerns bid them do so.

Moreover, the extent to which state statutes empowering courts to "assign" or "appoint" counsel in in forma pauperis proceedings also authorized courts to sanction attorneys who refused to serve without compensation is unclear, because few appointments were made pursuant to those statutes, because many legal proceedings went unrecorded, and because lawyers seem rarely to have balked at courts' assignments. It is nevertheless significant that no reported decision exists in the above States prior to 1892 holding that a lawyer could not decline representation without compensation, see Shapiro, The Enigma of the Lawyer's Duty to Serve, 55 N.Y.U.L.Rev. 735, 749-762 (1980) (hereinafter Shapiro), for it suggests that Congress did not intend to replicate a system of coercive appointments when it enacted § 1915(d), particularly when it used the weaker verb "request" in place of the words "assign" or "appoint." English precedents from the 15th to the late 19th century, on which the States apparently relied and which Congress might have had in mind, were equally murky. Few appointments were made in either civil or criminal cases; and although sergeants-at-law were expected to represent indigent persons upon demand of the court, they held public office and were court officers in a much fuller sense than advocates who appeared before it. Again, no reported decisions involve the imposition of sanctions on lawyers unwilling to serve. See id., at 740-749. Professor Shapiro concludes: "To justify coerced, uncompensated legal services on the basis of a firm tradition in England and the United States is to read into that tradition a story that is not there." Id., at 753. ^[4]

Comparing § 1915(d) with similar federal statutes strengthens our conclusion that Congress did not authorize mandatory appointments. The sole federal statute antedating § 1915(d) that provided for court-ordered representation allowed a capital defendant "to make his full defence by counsel learned in the law" and stated that "the court before whom such person shall be tried, or some judge thereof, shall . . . immediately, upon his request . . . assign to such person such counsel, not exceeding two, as such person shall desire. . . ." Act of April 30, 1790, ch. 9, § 29, 1 Stat. 118, presently codified as amended at 18 U.S.C. § 3005 (emphasis added). Thus, when Congress enacted § 1915(d), the verb "assign" was already part of the federal statutory lexicon; Congress' decision to depart from prior usage in fashioning a rule for civil cases ^[5] involving indigent litigants might be taken to display a reluctance to require attorneys to serve, even though Congress apparently mandated service in the much more serious case of criminal defendants facing the death penalty. ^[6]

This inference finds additional support in Congress' actions subsequent to § 1915(d)'s enactment. Every federal statute still in force that was passed after 1892 and that authorizes courts to provide counsel states that courts may "assign" or "appoint" attorneys, just as did the 1790 capital representation statute. See 18 U.S.C. § 3006A (1982 ed. and Supp. V) (appoint; criminal defendant); 18 U.S.C. § 3503(c) (assign; criminal defendant at deposition to preserve testimony); 18 U.S.C. § 4109 (appoint; proceeding to verify offender's consent to transfer to or from United States); 25 U.S.C. § 1912(b) (appoint; Indian child custody proceedings); 42 U.S.C. § 1971(f) (assign; defendant in voting rights case); 42 U.S.C. § 2000a-3(a) (appoint; complainant seeking injunction under civil rights laws); 42 U.S.C. § 2000e-5(f)(1) (appoint; Title VII complainant); 42 U.S.C. § 3413(1) (assign; commitment of narcotics addict); see also Fed.Rule Crim.Proc. 44 (assign; criminal defendant); cf. 10 U.S.C. § 827 (courts-martial shall "detail" trial counsel and defense counsel). Congress' decision to promulgate these apparently coercive representation statutes when § 1915(d) was already on the books and after it had been extended to cover criminal as well as civil cases, see Act of June 25, 1910, Pub.L. 317, ch. 435, 36 Stat. 866, ^[7] suggests that § 1915(d)'s use of "request" instead of "assign" or "appoint" was understood to signify that § 1915(d) did not authorize compulsory appointments. In any case, Congress' enactments after 1892 afford no reason to believe that the plain meaning of § 1915(d) is not its intended meaning.

Contrary to respondents' assertion, Brief for Respondent 7-9, construing § 1915(d) to allow courts to ask but not compel lawyers to represent indigent litigants does not render § 1915(d) a nullity. Respondents contend that statutory authorization is unnecessary for a court simply to ask an attorney to represent someone; § 1915(d) would be superfluous if it did no more than hat, and thus it must be read to confer coercive power upon the federal courts. Respondents' major premise, however, is too strong. Statutory provisions may simply codify existing rights or powers. Section 1915(d), for example, authorizes courts to dismiss a "frivolous or malicious" action, but there is little doubt they would have power to do so even in the absence of this statutory provision. Nor do respondents' premises compel their conclusion. Section 1915(d) plays a useful role in the statutory scheme if it informs lawyers that the court's requests to provide legal assistance are appropriate requests, hence not to be ignored or disregarded in the mistaken belief that they are improper, like a judge's request to cut short cross-examination so that he can go fishing. Section 1915(d) may meaningfully be read to legitimize a court's request to represent a poor litigant and therefore to confront a lawyer with an important ethical decision; one need not interpret it to authorize the imposition of sanctions should a lawyer decide not to serve in order to give purpose to the provision. ^[8]

Mallard's petition to this Court followed the Court of Appeals' denial of his application for a writ of mandamus. "The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). See also Will v. Calvert Fire Ins. Co., 437 U.S. 655, 661, 98 S.Ct. 2552, 2556, 57 L.Ed.2d 504 (1978); Kerr v. United States District Court for Northern District of California, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). Mallard alleged that the District Court did not lawfully exercise its jurisdiction in appointing him and that the Court of Appeals should therefore order the District Court to grant his motion to dismiss his appointment; he did not seek to compel the District Court to exercise some authority it wrongfully declined to use. Although "we have not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of 'jurisdiction,' " Kerr, supra, 426 U.S., at 402, 96 S.Ct., at 2124; see Will v. United States, supra, 389 U.S., at 95, 88 S.Ct., at 273 we have required that petitioners demonstrate a "clear abuse of discretion," Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953), or conduct amounting to "usurpation of [the judicial] power," De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945), to be entitled to issuance of the writ. To ensure that mandamus remains an extraordinary remedy, petitioners must show that they lack adequate alternative means to obtain the relief they seek, see, e.g., Kerr, supra, 426 U.S., at 403, 96 S.Ct., at 2124; Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per cur am), and carry "the burden of showing that [their] right to issuance of the writ is 'clear and indisputable,' " Bankers Life, supra, 346 U.S., at 384, 74 S.Ct. at 148, quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 287, 43 L.Ed. 559 (1899).

Mallard met this demanding standard. In resting its decision solely on § 1915(d)-the only ground for decision properly before us-the District Court plainly acted beyond its "jurisdiction" as our decisions have interpreted that term, for, as we decide today, § 1915(d) does not authorize coercive appointments of counsel. In addition, Mallard had no alternative remedy available to him. And the principal reasons for our reluctance to condone use of the writ-the undesirability of making a district court judge a litigant and the inefficiency of piecemeal appellate litigation, see, e.g., Kerr, supra, 426 U.S., at 402-403, 96 S.Ct., at 2123-2124; Allied Chemical Corp., supra, 449 U.S., at 35, 101 S.Ct., at 190-are not present here. The District Court Judge was never made a party to this action, nor did Mallard's petition attempt to sever one element of the merits litigation from the rest. Thus, Mallard discharged his burden of proving that he was entitled to a writ of mandamus, and the Court of Appeals erred when it denied his application.

We emphasize that our decision today is limited to interpreting § 1915(d). We do not mean to question, let alone denigrate, lawyers' ethical obligation to assist those who are too poor to afford counsel, or to suggest that requests made pursuant to § 1915(d) may be lightly declined because they give rise to no ethical claim. On the contrary, in a time when the need for legal services among the poor is growing and public funding for such services has not kept pace, lawyers' ethical obligation to volunteer their time and skills pro bono publico is manifest. Nor do we express an opinion on the question whether the federal courts possess inherent authority to require lawyers to serve. Although respondents and their amici urge us to affirm the Court of Appeals' judgment on the ground that the federal courts do have such authority, the District Court did not invoke its inherent power in its opinion below, and the Court of Appeals did not offer this ground for denying Mallard's application for a writ of mandamus. We therefore leave that issue for another day. We hold only that § 1915(d) does not authorize the federal courts to make coercive appointments of counsel. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Notes

1. In February 1986, the Iowa State Bar Association sent a letter to all lawyers licensed to practice before the United States District Courts for the Northern and Southern Districts of Iowa describing the referral system. According to the letter, 130 appointments were made between June 1984 and June 1985. The combined lists for both Districts embraced roughly 3,500 lawyers. Each lawyer was eligibl to be chosen every third year, making her odds of being selected roughly 1 in 9 in those years. App. to Brief for Respondents 1-5.
2. Compare, e.g., Caruth v. Pinkney, 683 F.2d 1044, 1049 (CA7 1982) (§ 1915(d) does not authorize compulsory appointments), cert. denied, 459 U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 451 (1983); United States v. 30.64 Acres of Land, 795 F.2d 796, 801-803 (CA9 1986) (same), with, e.g., Peterson v. Nadler, 452 F.2d 754, 757 (CA8 1971) (§ 1915(d) permits mandatory assignments); Whisenant v. Yuam, 739 F.2d 160, 163, n. 3 (CA4 1984) (same).
3. The sole reference to compulsory service in the short floor debate in the House supports this inference. In response to a statement by Representative Stone that the bill would compel court officers to work without pay, Representative Culberson said: "We are simply in these cases of charity and humanity compelling these officers, all of whom make good salaries, to do this work for nothing. That is all the bill does. There may be one such case upon a docket of five hundred; and they are not required to do much ex-officio service." 23 Cong.Rec. 5199 (1892). No one spoke of compelling lawyers to serve without compensation.
4. In claiming that "state courts had statutory authority to order lawyers to render assistance to indigent civil litigants in a dozen States" in 1892, post, at 314, the dissent ignores recent scholarship questioning the extent of that authority and casting doubt on unqualified and poorly documented assertions of its existence by contemporary writers, such as Cooley. See Shapiro 751-753. In view of the complete absence of precedent evincing state courts' power to sanction attorneys unwilling to provide free representation, the dissent's surmise that Congress meant to grant this power to federal judges, and indeed to confer on them as much authority as judges in the "most progressive" States exercised, post, at 314, seems somewhat extravagant. Lower federal-court decisions construing § 1915(d) within a decade of its enactment, on which the dissent relies, see id., at 316, certainly do not support this inference. On the contrary, they tell against it. In Whelan v. Manhattan R. Co., 86 F. 219, 221 (CC SDNY 1898), cited approvingly a year later regarding attorney assignments in Brinkley v. Louisville & N.R. Co., 95 F. 345, 353 (CC WD Tenn.1899), the court said: "If the attorney who brought the action is willing to continue the litigation [without compensation, unless the plaintiff prevails and recovers an amount sufficient to pay him a fair fee], he will be assigned to represent plaintiff; if not, the court will find some other attorney to prosecute her case." Courts at the time evidently believed that attorneys were free to decline a judge's request to represent an indigent plaintiff under § 1915(d).
5. Although § 1915(d) now pertains to "the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein," 28 U.S.C. § 1915(a), as originally drafted it apparently applied only to suits commenced by an indigent person. Act of July 20, 1892, ch. 209, § 1, 27 Stat. 252. Since a private individual may not institute a criminal prosecution, the scope of § 1915(d) was limited to persons bringing civil suits. The legislative history of the bill containing § 1915(d) corroborates this inference. The House Report refers exclusively to litigation over property. See H.R.Rep. No. 1079, 52d Cong., 1st Sess., 1 (1892). And the floor debate in the House speaks only of poor persons suing as plaintiffs. See 23 Cong.Rec. 5199 (1892).
6. We do not decide today whether, or under what conditions, 18 U.S.C. § 3005 or any other federal statute providing for the "assignment" or "appointment" of counsel authorizes federal courts to compel an unwilling attorney to render service. Nor do we offer an opinion on the constitutionality of compulsory assignments.
7. These federal statutes empowering courts to assign or appoint counsel were all passed well after § 1915 attained its present broad coverage. See Act of Aug. 10, 1956, Pub.L. 1028, § 827, 70A Stat. 46, 10 U.S.C. § 827; Pub.L. 88-455, 78 Stat. 552 (1964), 18 U.S.C. § 3006A; Pub.L. 91-452, 84 Stat. 934 (1970), 18 U.S.C. § 3503(c); Pub.L. 95-144, 91 Stat. 1218 (1977), 18 U.S.C. § 4109; Pub.L. 95-608, 92 Stat. 3071 (1978), 25 U.S.C. § 1912(b); Pub.L. 88-352, 78 Stat. 241 (1964), 42 U.S.C. § 1971(f); Pub.L. 88-352, 78 Stat. 244 (1964), 42 U.S.C. § 2000a-3(a); Pub.L. 88-352, 78 Stat. 259 (1964), 42 U.S.C. § 2000e-5(f)(1); Pub.L. 89-793, 80 Stat. 1445 (1966), 42 U.S.C. § 3413(1).
8. Although we do not reach the question whether the federal courts have inherent authority to order attorneys to represent litigants without pay, see Part IV, infra, it bears noting that if respondents' argument regarding the function of § 1915(d) were correct, it would seriously undermine respondents' assertion that the federal courts possess inherent power to direct unwilling lawyers to serve. If the federal courts already had the authority to compel representation, then by respondents' reasoning § 1915(d) would have been otiose; respondents would therefore have to conclude, it seems, that the federal courts lacked inherent authority to sanction lawyers for failing to heed the courts' orders to provide legal counsel free of charge.