Pennsylvania Bureau of Correction v. United States Marshals Service

PETITIONER:Pennsylvania Bureau of Correction
RESPONDENT:United States Marshals Service
LOCATION:Heath Residence

DOCKET NO.: 84-489
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 474 US 34 (1985)
ARGUED: Oct 15, 1985
DECIDED: Nov 18, 1985

ADVOCATES:
Leroy S. Zimmerman – on behalf of the Petitioner
Mark Irving Levy – on behalf of the Respondents

Facts of the case

Question

Audio Transcription for Oral Argument – October 15, 1985 in Pennsylvania Bureau of Correction v. United States Marshals Service

Warren E. Burger:

We will hear arguments first this morning in Pennsylvania Bureau of Correction against the United States Marshals Service.

Mr. Zimmerman, you may proceed whenever you are ready Mr. Attorney General.

Leroy S. Zimmerman:

Mr. Chief Justice, and may it please the Court:

The question presented by this appeal is whether a district court has the authority to direct the United States Marshals Service to share responsibility with state officials for the production of state inmates to appear in Federal District Court at a trial of a civil action.

This question arose in the course of a civil rights action brought by a state prisoner against Philadelphia County officials for events allegedly occurring while he was in the custody of county prison officials.

The magistrate ordered the state custodians to produce the plaintiff and two witnesses.

Plaintiff was incarcerated 220 miles from the federal courthouse.

One witness 218 miles away and another witness 143 miles away.

Recognizing the burden that is placed on the state custodians, the magistrate ordered that state custodians transport the inmates to the Philadelphia House of Detention, there to transfer custody to the United States Marshals, who would transport the prisoners from the House of Detention to the Federal Courthouse and maintain custody of them while they were inside the courthouse.

Well, the magistrate’s order transferring custody from state to federal officers and the apportion of transportation responsibilities were based in part on his knowledge that the U.S. Marshal regularly transported federal prisoners between the Philadelphia House of Detention and the Federal Courthouse.

This arrangement permitted state custodians to avoid the deployment of guards from their primary responsibility, that of maintaining prison security, to transferring prisoners.

The U.S. Marshals Service intervened to oppose the orders, arguing that no authority exists to support such orders.

In rejecting the Marshals’ contentions, the magistrate recognized that the explosion of federal civil rights litigation by state prisoners has strained available resources.

Consequently, in fashioning a procedure, the magistrate stressed that his order placed considerable burden on state officials, but the Marshal really would have very little burden, if any at all.

The Court of Appeals in a split decision did not dispute the magistrate’s factual and pragmatic conclusions, rather, Judge Gibbons, writing for the Court, concluded that no statutory authority, including the All Writs Act, supported the magistrate’s order, apportioning the transportation responsibility between state officials and the United States Marshals.

The Court held that the Marshal is obligated to maintain custody over the prisoners while they are in the courthouse.

In fact, the Court of Appeals held that if security concerns justify it, the Marshal could be ordered to take custody of state prisoners outside the courthouse.

Now, it is our position–

William H. Rehnquist:

General Zimmerman, as I understand it, the state does not contest that part of the magistrate’s order which required transportation from a correctional facility to Philadelphia.

Leroy S. Zimmerman:

–That is correct, Justice Rehnquist.

William H. Rehnquist:

And, the government doesn’t challenge that part of the Court of Appeals’ decision which required the furnishing of security within the Federal Courthouse?

Leroy S. Zimmerman:

That is correct, Justice Rehnquist.

William H. Rehnquist:

So, what we are talking about is transportation from the State Correctional Center in Philadelphia to the Federal Courthouse in Philadelphia.

Leroy S. Zimmerman:

Yes.

It is our position that the All Writs Act–

Thurgood Marshall:

Do you have a Federal House of Detention in Philadelphia?

Leroy S. Zimmerman:

–I beg your pardon?

Thurgood Marshall:

Do you have a Federal House of… Do you have any place where federal prisoners are kept in Philadelphia?

Leroy S. Zimmerman:

No.

The House of Detention in Philadelphia, operated by the County of Philadelphia, is a designated repository by the Federal Marshals to house federal prisoners.

Thurgood Marshall:

So, what this ruling says is that they can pick up their own prisoners and transfer them, but they don’t have to pick up these from the exact same place?

Leroy S. Zimmerman:

This ruling… The magistrate, in fashioning this ruling, Justice Marshall, said that because they regularly… in considering this, because the Marshals regularly went back and forth, that it was not a burden on them to transport state prisoners to Federal Court in civil rights actions.

Byron R. White:

General, I don’t suppose your submission would be limited to that fortuitous circumstance.

Leroy S. Zimmerman:

No, Justice White.

Byron R. White:

You would think any time in the 1983 action the Federal Marshals should be required to bring the plaintiff, if he is a prisoner, and witnesses from the prison, furnish any of that transportation.

Leroy S. Zimmerman:

Justice White, so long as it is not an inordinate burden on the Federal Marshals.

I think that that is something… I think the source of the powers in the All Writs Act, but I think that beyond that then there is a matter of discretion, assuming that point of law where the magistrate can take into account the respective burdens–

Byron R. White:

If it is a question of authority, why, if they have authority or if they are obligated to do this under the law, it wouldn’t make any difference what the burden is, would it?

Leroy S. Zimmerman:

–No.

It is our position that the All Writs Act–

Lewis F. Powell, Jr.:

Mr. Attorney General, refresh my recollection.

How far was the transportation in terms of miles?

Leroy S. Zimmerman:

–Five miles from the House of Detention in Philadelphia to the Federal Courthouse.

Lewis F. Powell, Jr.:

And, you mentioned burden.

I realize that you can make all sorts of suppositious cases, but suppose it were 50 miles.

Would the rule still be the same?

Leroy S. Zimmerman:

Well, Justice Powell, I don’t think that the question of burden is in this particular case.

There is no record in this case to determine whether it were not nor is there a challenge to the magistrate’s exercise of discretion by the Marshals.

The sole source, the focus of the question in this case is whether or not the All Writs Act provides the authority, the power in the court, to fashion such a writ as it did in this case.

Lewis F. Powell, Jr.:

And, that would apply to the 50 miles?

Leroy S. Zimmerman:

Yes, sir.

It is our position that–

Sandra Day O’Connor:

General Zimmerman, suppose that you are somehow correct that the All Writs Act could encompass such a power on the part of the Federal Court to order this transportation, what requirements would you then think a judge or magistrate would have to find in order to justify such an order?

Is it enough that the magistrate or judge determine that there should be cost shifting from the state to the federal government?

Is that alone enough to justify an order like this under the All Writs Act if you are correct?

Leroy S. Zimmerman:

–Justice O’Connor, I don’t think that this is a question solely of money.

It is our position that this is a question of allocation of manpower and getting prisoners from a place where they are incarcerated to a place where their rights would be vindicated.

Obviously, money is involved, but it is a question of manpower and the allocation of manpower from maintaining the operation of prisons in a secure fashion.

That is part of the question of this burden.

It does involve money.

Sandra Day O’Connor:

What requirements do you think would have to be met under the All Writs Act if your position about it is valid–

Leroy S. Zimmerman:

Well, I believe–

Sandra Day O’Connor:

–to justify such an order?

I think the language of the Act incorporates words such as necessary and appropriate.

What would make it necessary and appropriate?

What is there in this case other than a cost shifting in effect?

Leroy S. Zimmerman:

–In this particular case… It is not our argument that it is necessary, but I do believe that the Act… Of course, the Act says,

“appropriate in aid of the respective jurisdiction of the Court. “

And, I suggest that in this case, as well as being agreeable to the usage and the principle of law… In this case, the All Writs Act was designed to give the courts that flexibility and I believe that when there is a determination made and there is a burden, anything that lessens that burden, that burden to produce a prisoner, and obviously there has to be–

Sandra Day O’Connor:

It is a burden on both the federal and state agencies to have to do this.

There is always a burden and there is always a cost.

What is to guide a court or magistrate in making such a determination?

Leroy S. Zimmerman:

–As we argue, if the All Writs Act is the source of the Court’s power, and I believe that it is here, then, of course, there will be a question in each of the cases, a matter of discretion of the magistrate to exercise discretion, whether or not he has acted correctly in looking at the burden of producing a witness.

In civil rights cases, it is necessary frequently for the Court to make a determination on whether or not to produce the prisoner or witness in the court.

Now, in examining and making that decision, there are burdens that are going to be placed if the Court decides the prisoner should be there or the witnesses ought to be there to better vindicate the rights, to have a more clearly and informed court.

Sandra Day O’Connor:

In this case, does the state take the position that it would not have obeyed an ad testificandum order to have the prisoner transported?

Leroy S. Zimmerman:

No, it does not take that position, Justice O’Connor.

The All Writs Act is designed to give the court the flexibility you say is necessary to free the courts from the constraints of historic practice where new solutions are essential to solve new problems.

And, this Court has reaffirmed that flexibility, the All Writs Act, recognizing it as a judicial arsenal from which the courts can develop new tools as the need arises.

Now, the Act is worded broadly.

As I said a moment again, a new writ only satisfy two requirements, that it be necessary or appropriate in aid of the court’s jurisdiction, and agreeable to the usages and the principles of law.

Now, that first requirement, we feel that there is no question that the underlying civil rights action was within the District Court’s jurisdiction and I submit the magistrate’s orders were appropriate in aide of that Court’s jurisdiction.

The explosion of civil rights litigation, especially by prisoners, has increased the requirement for the production of prisoners in court and the corresponding burden on the custodians who must produce those prisoners.

Harry A. Blackmun:

General, if this action were in state court, and it could have been there, could it not?

Leroy S. Zimmerman:

Yes, Justice.

Harry A. Blackmun:

Then we would have no problem at all.

Leroy S. Zimmerman:

Well, the state court–

Harry A. Blackmun:

I take it the U.S. Marshals would not be involved.

Leroy S. Zimmerman:

–That is correct.

Harry A. Blackmun:

So, the expense would be that of the Commonwealth.

Leroy S. Zimmerman:

It would be.

Specifically, in civil rights cases, the court must often decide whether to require… As I indicated, whether to require the production of these prisoner witnesses in court.

In making that decision, the Court must weigh the relevance or the importance of probable testimony against the burden of producing the prisoner witnesses.

Byron R. White:

General, pursuing Justice Blackmun’s question another step, if this had been in the state court and the plaintiff was not an indigent… He was in prison, but he wanted witnesses from the state prison, wouldn’t you make him pay the witness fees and wouldn’t you make him pay the transportation?

Leroy S. Zimmerman:

No, Justice White, he would not be required… If the witnesses were in prison, he would not be required to pay those.

Byron R. White:

Even though the plaintiff is not an indigent?

Leroy S. Zimmerman:

Well, if he is an indigent–

Byron R. White:

Well, I said–

Leroy S. Zimmerman:

–he would not be required to pay.

If he were not indigent, yes, Justice White, he would be required to pay the cost.

Byron R. White:

–And, in this case then, if this person were not an indigent, wouldn’t he have to pay?

Leroy S. Zimmerman:

In the case of a state prisoner here in this case?

He would eventually, depending on the outcome of litigation, that may be taxed against him, yes.

Thurgood Marshall:

Okay.

Mr. Attorney General, while this state prisoner is in Philadelphia, who pays for his expenses there, the federal government?

Leroy S. Zimmerman:

The arrangement is entered into between the Marshals Service and the Philadelphia County House of Detention.

Thurgood Marshall:

I am talking about in a case like this, this prisoner here.

Who would pay for his living expenses in Philadelphia?

Leroy S. Zimmerman:

The arrangement there is between Philadelphia and the U.S. Marshals in this case.

Ordinarily, state prisoners would not be transported from the place of incarceration in Philadelphia to the House of Detention.

They would go directly to the Federal Courthouse.

Thurgood Marshall:

Well, suppose the case lasted more than one day.

Who would pay the expenses?

Leroy S. Zimmerman:

A state prisoner would be returned to the place in Philadelphia called Greaterford which is the State Penitentiary there.

They would not go back to the House of Detention ordinarily, not as state prisoners.

Thurgood Marshall:

Then the state would pay his expenses?

Leroy S. Zimmerman:

That is correct.

Thurgood Marshall:

Now, in this case, who would pay his expenses?

Leroy S. Zimmerman:

In this particular case, the expenses would be worked out in accordance with a voluntary agreement between the Marshals Service and the County of Philadelphia.

Thurgood Marshall:

I am trying to find out what is that voluntary agreement.

Leroy S. Zimmerman:

Well, I don’t know the correct terms… I don’t know the exact terms of that agreement in this particular case, Justice Marshall.

Thurgood Marshall:

Well, you talk about the additional… There are no additional expenses in this case.

Is it admitted that this bus goes every day?

Leroy S. Zimmerman:

There is no record in this case, but the magistrate found in making his order that the bus… The Marshals traveled regularly to and from the House of Detention to the Federal Courthouse.

Thurgood Marshall:

And, is there any showing that this precedent would cause additional expense?

Leroy S. Zimmerman:

There is no showing of any kind because there is no record.

And, in this case, we are not arguing burden.

I don’t think burden is involved here.

It is strictly a power, a power question of the Court and the authority of the magistrate under the All Writs Act.

John Paul Stevens:

May I ask, during the day at the Federal Courthouse he is in federal custody, as I understand it, and nobody disputes that.

Leroy S. Zimmerman:

Yes, Justice Stevens.

John Paul Stevens:

Who buys his lunch if he has to spend the day there?

Leroy S. Zimmerman:

Well, I am not certain about who buys his lunch in the Federal Courthouse, but from my experience as Attorney General as a prosecutor I believe that his lunch would be provided by the United States Marshals because he is in their custody inside the courthouse in this case.

William H. Rehnquist:

General Zimmerman, when you say you are not arguing burden, and yet I take it that the magistrate would not have been free to say that the state has paid enough of these costs so I am going to pick someone out of the courtroom here and have him required to pay the expenses from the Detention Center in Philadelphia to the Federal Courthouse.

If he can’t just pick someone from random, why can he pick the federal government?

Leroy S. Zimmerman:

I believe that in this particular case anything that will lessen that burden of proceeding–

William H. Rehnquist:

But, you conceded, I take it, that you can’t call upon bystanders to lessen the burden.

Leroy S. Zimmerman:

–I don’t take the position in this case that Section 1651, the All Writs Act, is unlimited.

There are limitations.

The limitations are that certainly the Court cannot order somebody to do something that is not in the course of their duties.

William H. Rehnquist:

All the All Writs Act gives you is a remedy if there is something you are entitled to under some other standard.

Why are you entitled to it?

Leroy S. Zimmerman:

I believe the Court was entitled to do what it did here in order to get these witnesses from where they are incarcerated to a federal court to vindicate their rights.

That is a very important aspect of this.

William H. Rehnquist:

But, it is conceded, isn’t it, that the magistrate also had power to bring… to order the state to bring the people from the Correction Center in Western Pennsylvania to the Federal Courthouse.

Leroy S. Zimmerman:

That is correct and that is what he did in this case.

And, most of the burden in this particular case was on the state custodian.

There was very little–

William H. Rehnquist:

My question wasn’t from the Correctional Center to the Philadelphia.

I said from the Correctional Center all the way to the Federal Courthouse.

William H. Rehnquist:

The Marshal had the authority, didn’t he, to require the state to do all of that.

Leroy S. Zimmerman:

–The magistrate.

William H. Rehnquist:

I am sorry, the magistrate, yes.

Leroy S. Zimmerman:

The magistrate had the authority and, in fact, did in this case say bring the prisoners from wherever they are incarcerated throughout the Commonwealth of Pennsylvania in the various institutions to Philadelphia.

Now, in order to lessen–

William H. Rehnquist:

But now my question is do you or do you not admit that he would have had the authority to go further and say not just bring them to Philadelphia, but bring them to the Federal Courthouse in Philadelphia?

Leroy S. Zimmerman:

–Yes, he would have, but I argue in this case he considered the burden and an attempt to lessen the burden on the state custodian somewhat.

In this case minimally I concede, but we are not focusing on that in this case.

I believe that the principle in this case is whether or not the magistrate… the problem in this case is whether the magistrate had the authority to do what he did and I believe the All Writs Act, of course, gives him that authority because of the need, to vary writs, to vary orders.

The question of burden in producing persons makes… That has to be examined and wherever it makes it more likely that the Court will be able to hear and to consider all of the evidence relevant to the merits of a claim, clearly that aids the Court in an informed exercise of its jurisdiction.

Now, the Marshals argue that these orders are neither appropriate or necessary because there already exists the general habeas corpus statute which they say places the full burden on the custodian to produce the prisoners in the Federal Courthouse.

This argument, we believe, ignores the point that some cases may call for modification of traditional procedure.

And, where modification is determined to be necessary or appropriate in aid of the Court’s jurisdiction, the power to modify is found not in the habeas corpus statute, but in the All Writs Act.

Thus, the habeas corpus statute is really not the end for purposes of analysis as the Marshals argue, but really the beginning.

Similar considerations, I submit, support the conclusion that the order under review is as required by the All Writs Act agreeable to the usages and principles of law.

Certainly, transfer of custody violates no positive congressional command nor does it violate any common law rule, rather the order modifies traditional procedure to respond to modern developments in our ever-expanding jurisprudence.

The essential principal underlying the writ of habeas corpus ad testificandum is affording the Court an orderly and an efficient means of procedure for securing the testimony of prisoner witnesses.

This principle hardly is subverted by a modification of the writ directing the transfer of a prisoner from the custodian to a substitute custodian.

Byron R. White:

Was a writ issued in this case?

Leroy S. Zimmerman:

An order was issued in this case, Justice White, by the magistrate, by Magistrate Hall.

Byron R. White:

Mr. Attorney General–

–Why wasn’t there just a writ of habeas corpus?

Leroy S. Zimmerman:

The magistrate did not label the writ.

The magistrate relied on the habeas corpus statute in this case.

It is our position, and we argued this in the Circuit Court, and the Circuit Court held against us, that the authority and the power to do what was done here was in the All Writs Act; that it was necessary to go to that Act to find the variation and the flexibility that the Court has said was in that Act to do what was done, a transfer of custody.

The traditional habeas corpus act is concerned with getting inside the prison walls of the custodian and getting the prisoner to the gate.

There is no question about that, the habeas corpus writ generally.

But, from that point, getting the prisoners from the gate of the jail to the courthouse, today there are many–

Byron R. White:

What if a writ of habeas corpus had just been served on the custodian?

What would the writ have said?

Byron R. White:

Bring him, wouldn’t it?

Leroy S. Zimmerman:

–Yes, sir.

Byron R. White:

Bring him to the courthouse.

Leroy S. Zimmerman:

Yes, it would have.

Byron R. White:

Well, suppose that is all that would have been served on the custodian?

What would have happened?

Leroy S. Zimmerman:

Then the custodian would have been required to bring him to the courthouse.

But, my point is–

Byron R. White:

So, there is this provision for getting witnesses to the courthouse, but the magistrate didn’t use that, he used an order.

Leroy S. Zimmerman:

–In the calculus of the magistrate, and without a record I suggest it is impossible to be precise, but in the calculus of the magistrate’s order, in examining that order, you will see that he took into account the principles and the concerns that I say are in the All Writs Act to be used by the Court.

In any case, whatever statutes exist to govern and devine the role of the Marshal are not inconsistent with the role of the Marshal, are not inconsistent with the duties that are imposed by the order here.

Marshals are assigned regularly to go to Court.

Thurgood Marshall:

Mr. Attorney General assuming that the week before this occurred the prisoner had been transferred to California.

Who would produce him?

Leroy S. Zimmerman:

Assuming that the All Writs Act provides the authorities, I urge that it does, then it would have been up to the magistrate to determine.

We are not asking in this case that there be–

Thurgood Marshall:

Who would you suggest in conformity with your theory would be responsible for transporting him back to Philadelphia?

Leroy S. Zimmerman:

–I believe that if the magistrate directed and knew that the Marshal was going to Chicago once a week regularly, it would not have been improper for the magistrate to have fashioned an order to say, Marshal, bring the prisoner from California to Chicago and the state will be required to–

Thurgood Marshall:

Let’s make one little minor change, Hawaii.

Leroy S. Zimmerman:

–Well, I think–

Thurgood Marshall:

I don’t know of any Marshal that goes from Philadelphia to Hawaii regularly.

Leroy S. Zimmerman:

–I don’t think that the question–

Thurgood Marshall:

You don’t really mean just because he goes there.

It is a very simple question.

Would California, Philadelphia, or the federal government pay for the transportation of this hypothetical prisoner?

Leroy S. Zimmerman:

–I think that either one could be ordered to pay completely.

It would be preferable to have a sharing of transportation responsibilities.

Decisions in other courts of appeals demonstrate that this procedure apportioning these responsibilities for transportation has been employed… have been employed in many districts throughout this country.

Finally, I urge the Court in this case to preserve the reservoir of judicial power that is found in the All Writs Act, which was built by the Congress to provide the courts with the necessary flexibility to craft new orders and new writs that are responsive to the varied and practical challenges arising out of an ever-expanding jurisprudence.

Thank you.

Warren E. Burger:

Mr. Levy?

Mark Irving Levy:

Thank you, Mr. Chief Justice, and may it please the Court:

The state’s argument here is, in essence, that the magistrate’s order is reasonable.

The trial courts have broad authority to impose reasonable obligations on the United States Marshals Service and that our objection to the order are, as in the words of the state’s reply brief, merely dry formalism.

All of that is far from correct.

The United States Marshals Service is an arm of the Executive Branch of the federal government.

Marshals are appointed by the President, is part of the Department of Justice, and under the supervision of the Attorney General, and is funded through Department of Justice appropriations.

In fact, this Court in its opinion in the Naggle case reported in 135 U.S., specifically recognized that the Marshals Service is within the Executive Branch.

Thus, contrary to the premise of the state’s argument, the Marshals Service is not the hand-maiden or the administrative staff of the courts subject to whatever duties judges, in their discretion, may devise.

Now, of course, the Marshals Service and the courts have developed a sound and cooperative working relation that well serves the effective administration of justice.

The Marshal is by law subject to the control of federal judges in many respects.

In addition, the Marshal often exercises his discretion as an executive official and agrees to do things that legally could not be required.

Thus, disputes of the kind involved in this case are fortunately very rare.

But, that cooperative arrangement does not negate the principle that there must be a source of statutory authorization before a court can require the Marshal, as part of the Executive Branch of the federal government, to take a particular action and expend its funds in a particular way.

The Marshal has myriad responsibilities and only limited resources with which to carry them out.

Among its principal responsibilities are the security of the courthouse, custody over and transportation of federal prisoners needed in federal court, execution of arrest warrants, and seizure of forfeited property, and implementation of the Witness Protection Program.

To perform these duties, there are fewer than 1,000 Deputy Marshals nationwide, while there are 500 active federal district judges and 250 full-time magistrates in 500 federal court facilities around the country.

The allocation among those various duties of the finite resources appropriated to the Marshal is at the heart of the Executive Branch’s function.

In the aggregate, orders of the type entered by the magistrate here will impose a substantial burden on the Marshals Service and interfere with its discharge of its statutorily assigned responsibilities.

In addition, a trial court in any given case, is in no position to assess these considerations and decide how the Marshals’ resources are to be deployed overall.

John Paul Stevens:

Mr. Levy, can I interrupt with a question that goes to the question of power rather than whether it is a good idea or not?

Mark Irving Levy:

Sure.

John Paul Stevens:

Supposing you had an emergency situation, a fire at the County Detention Center or an escape or a riot or something like that, and the state was short of personnel and couldn’t get a witness to the courthouse and they let the district judge know and the district judge said, well, we want to go ahead with the trial and it is the only way we can get the witness here.

It is absolutely necessary in order to have the trial go forward is to send a Marshal out and pick him up.

Would you make the same argument that he has no power to do that?

Mark Irving Levy:

Well, first, in those circumstances it is exceedingly likely that the Marshal would agree to go out and do that.

John Paul Stevens:

Let’s assume the question is one of power.

In that situation, would the judge have the power to order the Marshal to–

Mark Irving Levy:

The answer is he might, but that is a much different situation from what we have here.

In that situation the Marshal would not be required in the first instance to bear the transportation or production burden, rather the court would have entered the ad testificandum writ to the custodian and when the custodian was unable or in this instance unwilling to comply, the court, in effect, would enter a second order, a compliance order, enforcement or sanction order.

John Paul Stevens:

–What would be the source of the federal judge’s authority to enter such an order?

Mark Irving Levy:

Well, for example, if the state custodian simply refused to comply with an order that was within his capability–

John Paul Stevens:

Well, take my hypothetical.

It is just an emergency and the judge thinks the only way he could really get the witness there is to order the Marshal to go out and get him.

Mark Irving Levy:

–Well, the question would be whether… as part of enforcing an order that directive to the Marshal would be appropriate.

There are questions whether it would, but that is a much different sort of issue than is presented here, where the Marshal is required in the first instance to produce that–

John Paul Stevens:

Well, assume you get a state of facts which you would agree for purposes of my question that it is either necessary or appropriate to go get him.

Would there be power to order the Marshal to go get him?

Mark Irving Levy:

–I am doubtful that there would be.

I am not taking a categorical position on it.

John Paul Stevens:

Isn’t that, in jurisdictional terms, the same issue that we have here?

Mark Irving Levy:

Well, not necessarily.

As I say the jurisdictional question in this case is whether the magistrate has the authority, the judicial power to require the Marshal in the first instance to step into the state’s shoes and become the principle respondent for producing the body of the prisoner.

That is not the situation–

John Paul Stevens:

He just delivers him from the intermediate point to the courthouse.

Mark Irving Levy:

–But, the Marshal would not be acting in lieu of or as the surrogate custodian in that case.

The Marshal would be acting as a law enforcement official enforcing a federal court order that the state was unable to comply with.

That enforcement responsibility of the Marshal simply presents a different question than the one in this case.

Thurgood Marshall:

Mr. Levy, getting it closer to this case, a judge tells the Marshal, I have a witness who is in the House of Detention in Philadelphia that I need for trial this afternoon.

I have discovered that you have a bus that is going to bring in federal prisoners and other people from the exact same place and that you have half a dozen seats vacant on there, would you mind putting him in one of those seats and bring him to the courthouse.

What is wrong with that?

Mark Irving Levy:

Nothing may be wrong with it and the Marshal in most instances, I assume, would be agreeable to complying in his discretion.

The question is whether or not–

Thurgood Marshall:

And, that is the difference between this case?

Mark Irving Levy:

–Yes.

In this case, the Marshal was required, not asked or invited.

Thurgood Marshall:

So, the whole question is he was ordered and not asked?

Mark Irving Levy:

Well, the question here is one of judicial–

Thurgood Marshall:

Is that the difference?

Mark Irving Levy:

–The question here is one of judicial power.

Thurgood Marshall:

Is that the difference?

Mark Irving Levy:

Yes, but that has nothing–

Thurgood Marshall:

That is what you are complaining about?

Mark Irving Levy:

–We are complaining about–

Thurgood Marshall:

If he had asked it would have been all right.

Mark Irving Levy:

–If you are asking if the Marshal chose to do it because it was not inconsistent or a burden on his other responsibilities.

In this case, as the Attorney General of Pennsylvania stated, there is no record and the magistrate did not make any specific findings about either the burden on the state in this case.

All he said generally was that there was a burden on the state in general or the burden on the Marshal in this case.

In contrast to the hypothetical, Justice Marshall, I am advised, just as an illustration, that the Marshal typically brings between six and twelve prisoners from the Philadelphia Detention Center to the Federal Courthouse on an average day.

In this case, the prisoner originally sought writs for nine state prisoners.

The magistrate initially cut him back to five.

Those numbers are a substantial portion of the prisoners that the federal government has need to bring in for its own purposes.

It might well require additional vehicles.

Thurgood Marshall:

In the city the size of Philadelphia.

Mark Irving Levy:

I’m sorry?

Thurgood Marshall:

In the city the size of Philadelphia.

Mark Irving Levy:

That is correct.

It might require additional vehicles, it might require extra guards.

There are any number of ways in which this could impose a very serious burden on the Marshal and that would interfere with the Marshal’s execution of its other obligations.

Now, Congress could certainly decide as a policy matter that the United States Marshals Service should transport these prisoners and Congress could make available the necessary funds to do so, but we don’t have that here.

John Paul Stevens:

Let me get one other thing straight in my mind.

The government concedes, as I understand it, that after the prisoners and witnesses are delivered to the Federal Courthouse… I guess they are taken to a lockup downstairs or something… that the Marshal then can be ordered to continue to hold custody of them in the elevators and throughout the building, not merely in the courtroom.

Mark Irving Levy:

Incidents with courthouse security responsibility, that is correct.

John Paul Stevens:

Supposing you had a situation as you do in Chicago where there is a Federal Detention Center about a block from the Federal Courthouse.

Could they be ordered to take custody at the Federal Detention Center and haul them back and forth across Jackson Parkway?

Mark Irving Levy:

Again, it is a matter of judicial power to require the Marshal to do that.

We think not.

John Paul Stevens:

But, you would say the extent of judicial power is the exterior walls of the building which houses the Federal Courthouse?

Mark Irving Levy:

The Court of Appeals looked over a somewhat broader exception where the security needed required the custody be transferred outside the courthouse.

It is unclear exactly what that means, but they left that open.

Mark Irving Levy:

But, the rationale is not that the Marshal has any independent responsibility for the prisoner-witnesses, but rather he has responsibility for the security of the courthouse.

So, when they are in the courthouse, whether it is in the lockup or the elevator or the courtroom, the Marshal would be responsible for custody.

When they are outside the courthouse, even in a federal jail or detention center, that would not be within the scope of 569(a), the courthouse security provision for the Marshal.

John Paul Stevens:

But, if the Marshal has the responsibility for the courthouse, where does the judge get the power to tell the Marshal what do it in the courthouse?

Mark Irving Levy:

Well, the Marshal would have the discretion how to implement the courthouse security.

John Paul Stevens:

The judge can order the Marshal though to be responsible for security in the elevator.

That is not a matter for the Marshal to decide for himself.

Mark Irving Levy:

Whether he is to be responsible for security, we would agree, could be imposed by the judge.

Now, whether it requires–

John Paul Stevens:

What is the source of the judge’s power to do that?

Mark Irving Levy:

–That would be under 569(a) of 28 U.S. Code.

John Paul Stevens:

Which says what about judge’s power?

Mark Irving Levy:

It says that the Marshal may, in the discretion of the court, be required to attend any session of court.

John Paul Stevens:

Any session of court.

Mark Irving Levy:

And, if the Marshal has agreed and not raised any–

John Paul Stevens:

Any session of court includes riding up and down an elevator.

Mark Irving Levy:

–The Marshal hasn’t challenged that construction of the statute.

John Paul Stevens:

But, do you think it is correct?

Mark Irving Levy:

I think it is certainly within the Marshal’s–

John Paul Stevens:

No, no.

Within the court’s power to order him in the elevator.

Mark Irving Levy:

–We think it is certainly a permissible reading for the Marshal to make of its own statute, that this confers power on the court to do that.

That is correct.

John Paul Stevens:

In other words, the judge should defer to the expertise of the Marshal in construing that statute.

Mark Irving Levy:

Well, as on any statutory construction, the reading of the agency whose statute it is is entitled to substantial deference.

It would be controlling, of course, but it would be relevant and significant.

Now, absent legislative authorization, our submission is that a court cannot require the Marshal to transport state prisoners regardless of its view of the reasonableness of that order.

The question then is whether there is any lawful authority for the transportation order issued in this case.

There plainly is no such explicit authority, so the question is one of implied authority.

Now, our analysis starts from the proposition, which is essentially undisputed, that under settled principles, it is the obligation of the custodian to produce its prisoners in court pursuant to a writ of habeas corpus ad testificandum.

Mark Irving Levy:

Indeed, if the prisoners in this case were in federal rather than state custody, it would be the responsibility of the Marshal to transport them to court.

The result we seek here asks that state to do no more with respect to its own prisoners.

The custodian’s obligation to produce–

William H. Rehnquist:

Of course, that isn’t necessarily a compelling argument, because what may be permissible as the distribution of burden within the federal system may not be permissible when you go outside the federal system and ask the state to produce some–

Mark Irving Levy:

–Our point here though is that the custodian has the obligation and we agree that obligation would apply to us if these were federal prisoners, just as it applies to the state where they are state prisoners.

Now, the custodian’s obligation to produce its prisoners existed at common law and is carried forward by the express terms of the federal habeas corpus statute.

In fact, the whole theory of the ad testificandum writ requires that the custodian be the respondent and bring its prisoners to court since it is the custodian that has the control over the prisoner.

It is the fact that custody that fixes the custodian mandatory and non-delegable legal duty.

This obligation reflects two important considerations.

First, the custodian, like everyone else, has a public duty to make available evidence in its possession, here, the prisoner himself, even if that imposes a burden or is inconvenient.

And, second, the custodial state has a penal interest in the continued confinement of the prisoner, since it is that confinement that gives rise to the special problems and added expense of obtaining the prisoner in court.

It is not unfair or unreasonable for the law to impose the production obligation on the custodian.

Since time immemorial until the recent state of litigation, the entire system has operated on the questioned rule that the production obligation rests on the custodian.

William H. Rehnquist:

–Mr. Levy, what if someone commenced a lawsuit in the Federal Court in the Eastern District of Philadelphia and said we are proceeding IFP and made the necessary affidavits and then decides that he wants to subpoena some witnesses.

Now, do the witness that an IFP plaintiff subpoenas get witness fees and mileage the way the other witnesses do?

Mark Irving Levy:

That is something of an unanswered question.

William H. Rehnquist:

Why should they have to come if they don’t get the statutory witness and mileage fees if there is no exception for IFP plaintiff?

Mark Irving Levy:

Well, I think that in the end is probably the right argument.

William H. Rehnquist:

So, the in forma pauperis plaintiff can’t compel witnesses outside of prisons to come without paying mileage and witness fees.

Mark Irving Levy:

As I said, it is unresolved, but I don’t disagree with that proposition.

And, it would be perfectly appropriate for the magistrate, in exercising his discretion, whether to issue the ad testificandum writ to take into account the very same considerations.

There is no absolute right for a prisoner or any other plaintiff to have an ad testificandum writ and the magistrate could well say that unless you make some contribution, even if you are IFP, to the expenses involved here, I won’t issue the writ.

Certainly, if he weren’t IFP, we will take the position that the Marshal does that the magistrate should exercise the discretion to require the non-indigent plaintiff to pay for the expenses involved.

William H. Rehnquist:

Even though it is a custodial situation and not just the payment of witness fees and mileage?

Mark Irving Levy:

That would be correct.

The magistrate would certainly have discretion to impose that obligation on a non-indigent litigant.

And, indeed, we cite one case in our brief, United States versus $64,000.00 in Currency, where that is exactly what the trial court did.

Thurgood Marshall:

Mr. Levy, was there any effort or is there any effort now to work this out amicably between the state, the federal government, the judges, and the Marshals?

Mark Irving Levy:

I think there was an effort, but unfortunately it was unsuccessful.

Thurgood Marshall:

I don’t see why we have this tension between the magistrate and a Marshal.

Thurgood Marshall:

They are both working for the same boss.

Mark Irving Levy:

Yes, they are, and almost in all instances they work in a cooperative way.

Thurgood Marshall:

Were any efforts made to work this out?

Mark Irving Levy:

I believe efforts were made and they were simply unsuccessful.

And, part of the reason for that is that the order in this case departs, as the magistrate conceded, from the historical practice in the Eastern District of Pennsylvania.

For a long time, the Marshal was not involved in this.

The state was responsible for transporting its prisoners.

In return–

Thurgood Marshall:

Did they sit down?

Mark Irving Levy:

–I believe that they did try to work it out.

Thurgood Marshall:

You believe, but you don’t know?

Mark Irving Levy:

I was not party to the discussions.

I am not certain of that.

But, if they did try, they were unable to work out the differences.

Thurgood Marshall:

It seems to be it would have been much easier than bothering us with it.

Mark Irving Levy:

But, the issue in this case is not whether the parties can work it out.

Clearly the Marshal would have authority to entered into a cooperative agreement where it thought it was proper in the exercise of its executive discretion.

The issue here is whether the Marshal for good and sufficient reasons chooses not to enter into such a cooperative agreement, whether the magistrate can require under his judicial authority to require the Marshal to do so nonetheless.

And, although it was neither relied on by the magistrate nor raised by the state in the courts below.

The state now places principal reliance on the All Writs Act, 28 U.S.C. 1651.

The state contends, in effect, that Section 1651 is a preformed and virtually unbounded grant of authority to judges to devise any and all writs that they consider to be desirable.

We disagree with that exceedingly expansive view of the statute, especially as applied to the federal Executive Branch.

The All Writs Act is not a codification of standardless discretion for judges to do good.

Instead, it establishes two requirements.

First, the writ must be necessary or appropriate for the court’s exercise of its jurisdiction; and, second, it must be agreeable to the usages and principles of law.

The order in this case satisfies neither of those elements.

The order is not necessary or appropriate since there is a well-established means available to obtain the prisoners.

Sandra Day O’Connor:

However, Mr. Levy, in the circumstances proposed, for example, by Justice Stevens, conceivably it is arguable under some extreme circumstances that might be necessary and appropriate.

Mark Irving Levy:

Under some extreme circumstances, it might be necessary and appropriate in the literal sense.

And, certainly if the Court disagrees with our submission here, it should limit any discretion the trial court has for those exceptional circumstances.

Mark Irving Levy:

But, even there I still think there would be a substantial question whether the magistrate, as an arm of the Executive Branch, could require that the Marshals transport state prisoners.

Considerations of separation of power and sovereign immunity apply here as they do in any other case and we don’t think the All Writs Act circumvents those traditional considerations.

Now, in addition to being necessary or appropriate, the writ also has to be agreeable to the usages and principles of law.

The order in this case doesn’t satisfy that requirement either.

Quite the contrary.

The order sought by the state is inconsistent with and in contravention of the custodian’s time-honored obligation–

Byron R. White:

Mr. Levy, is it consistent… Would it be consistent with your argument to say that the Marshal could agree to have done what he was ordered to do?

Mark Irving Levy:

–The Marshal, as a matter of executive discretion, could agree and the regulations–

Byron R. White:

Where would he have the authority to do that?

Mark Irving Levy:

–Well, there would be two sources.

First, generally executive officials have broad discretion to do many things that they are authorized and not required to do.

Byron R. White:

My question is where would they get the authority to do it?

Mark Irving Levy:

It would be an inherent exercise of executive authority to–

Byron R. White:

Do you mean the Marshals can just issue a writ on the Treasury of the United States without authority to do so?

Mark Irving Levy:

–No, but our position would be that the Attorney General, who supervises the Marshals, has the inherent authority to direct the Marshals in the exercise of their normal duties and that where there is–

Byron R. White:

Whether or not there is any express authority for it.

Mark Irving Levy:

–There are many instances where there is inherent authority or authority that is implied from the statute, if you will, that is not express authority.

That has never been thought to be a bar to the executive exercise in his discretion to take a particular act.

Byron R. White:

So, you really are just relying on the separation argument to a great extent.

If, without express authority, the Attorney General could spend this money if he wanted to, you are really just saying, well, that may be so, but a judge can’t order him to do it over his objection?

Mark Irving Levy:

There is a considerable difference between authorizing the executive to do something–

Byron R. White:

Well, there may be, but that is just about where you stand, isn’t it?

Mark Irving Levy:

–That is an important part of our argument.

I would also say, Justice White, that there is a statute that provides that the Marshal is to be allowed the expense of transporting prisoners.

Now, that doesn’t itself constitute a substantive authorization to transport prisoners, but it does mean that where the transportation is authorized, then it will be covered by the United States Treasury.

John Paul Stevens:

May I ask as a follow-up on Justice White’s question that if instead of volunteering to do the transportation initially you had a situation in which the state had done the transportation, as was true in the Seventh Circuit case, and then came in and asked for reimbursement from the Marshal.

The Seventh Circuit held that they could be ordered to reimburse them.

You, of course, disagree with that case, but would you agree that the Marshal could voluntarily reimburse the state for the cost of transportation?

Mark Irving Levy:

Where it did not itself carry out the transportation?

John Paul Stevens:

The state just sent a bill and said we produced all these prisoners and it cost us this much money.

Mark Irving Levy:

Well, in the circumstances of the Seventh Circuit case where there was an outstanding order to the Marshal to transport them, the Marshal simply ignored that order.

John Paul Stevens:

Assume it just went to the state and they said, well, we will decide who bears the expense later and after the case is over the state just calls up the Marshals and said it cost us $400 to transport these prisoners, would you mind paying it.

Would the Marshal have the authority in its inherent power in your view to pay that bill?

Mark Irving Levy:

I am not certain of the answer.

I would be doubtful.

John Paul Stevens:

Why is it different as a matter of power whether you pay it in advance or later?

Mark Irving Levy:

But–

John Paul Stevens:

It is the same power.

Mark Irving Levy:

–But, the Marshals’ power–

John Paul Stevens:

It is the same burden on the–

Mark Irving Levy:

–The Marshals’ power would be to engage in activities that are within the control of the Attorney General.

Where it has engaged in activities, I don’t know that the Attorney General would have the authority to give away money of the Treasury.

I simply am not certain of that.

It is not the issue presented here.

John Paul Stevens:

–Well, it relates.

We are dealing with inherent power here, as I understand it.

Mark Irving Levy:

But, the issue in this case is the power of the court, not the power of the Attorney General or the Executive Branch to do something on its own.

John Paul Stevens:

Your view is the Marshal has greater discretion than the judge?

Mark Irving Levy:

It is a common situation.

For example, the United States Attorney has discretion to prosecute or not taking into consideration any number of factors.

It would never be thought though that simply from that a court could require the U.S. Attorney to exercise that authority in a particular way and at the direction of the court.

William H. Rehnquist:

But, there must be more limits than I get the impression you say there are.

Supposing they are building a new building for the Department of Justice and the Attorney General says we are behind schedule on the building, you ten marshals go down and start digging that trench.

Is that a permissible exercise of discretion?

Mark Irving Levy:

I doubt that that would be, but here, the duties are those of a kind the Marshal normally exercises and I think it is within the Attorney General’s control to indicate how the Marshals should be deployed.

That is really the core of the Executive Branch’s function here.

Now, let me say that, first, the Attorney General has promulgated regulations that say the Marshal can enter into intergovernmental or cooperative agreements.

So, the Attorney General has recognized the authority to do that.

And, second, the Marshal, in fact, does provide assistance to states in many areas.

For example, apprehending fugitives from state custody even though no federal offense had been committed.

Mark Irving Levy:

The Marshals will assist the states in the Marshals’ discretion for free or in transporting state prisoners between states for state proceedings.

The Marshal will often help the states do that without charge.

William H. Rehnquist:

Why is the Marshal willing to do this latter thing, transport prisoners between states for state proceedings, but not to do what the magistrate in this case said he should do?

Mark Irving Levy:

Once again, the Marshal would be free in this case, but in those other instances, he decides that the transportation of a particular prisoner in a particular set of circumstances does not detract from the exercise of his other duties.

He may, for example, have a plane… this is one of the hypotheticals the Court suggested… and he knows that there is empty space and no additional guards would be needed.

So, he exercises his discretion to assist the state.

The order in this case doesn’t depend in any way on that determination.

And, the authority of a court, the power of a court to order the Marshal to do simply wouldn’t be workable if it depended on that kind of precises deployment of the Marshals’ resources.

The court is in no position to assess those kinds of considerations or make the judgments that are entrusted to the Marshal as an executive official.

William H. Rehnquist:

But, a district judge or a magistrate could under 28 U.S.C. 569.

It can order the Marshals to attend a session of the court.

Mark Irving Levy:

That is correct.

William H. Rehnquist:

And, it could order the Marshal to execute any lawful writs, process of papers, issued out of the court.

Mark Irving Levy:

Anything that is properly addressed.

William H. Rehnquist:

Yes.

Mark Irving Levy:

Let me discuss the statute there which is what the magistrate specifically relied on, 28 U.S.C. 569(b), which provides that the Marshal shall execute all lawful writs, process and orders of federal courts.

That provision, which has been in the Code since 1789, sets for the Marshals traditional obligation to execute court orders.

It establishes the Marshal as the designated official for executing judicial process and makes clear that the Marshal, even though a part of the Executive Branch, has a mandatory duty to do so.

We concede all of that.

But, Section 569(b) is not an independent, affirmative source of judicial authority to address orders to the Marshal.

Rather, it simply requires that the Marshal execute those orders that under some other source of lawful authority are properly directed to it.

To give a specific illustration, the case at hand, the fact that a trial court is empowered to issue an ad testificandum writ to someone, that is the custodian, does not mean that it can issue the writ to the Marshal.

A contrary conclusion would mean that the Marshal can be required to perform any order whose substantive terms are not prohibited.

Under this theory, any court… any order that a court can enter at all could be directed against the Marshal in the first instance, but simply by the fact that it is addressed to him the Marshal would be bound to carry it out.

William H. Rehnquist:

But now here the Marshal could have issued the subpoena ad testificandum and directed the Marshal to deliver to the custodian of the state prison, could he not?

Mark Irving Levy:

I am afraid I didn’t understand the question, Justice.

William H. Rehnquist:

The magistrate could have issued a writ of habeas corpus ad testificandum to produce these witnesses from the Western State Penitentiary and directed the Marshal to serve that writ on the custodian.

Mark Irving Levy:

To serve the writ, yes.

William H. Rehnquist:

Yes.

Mark Irving Levy:

That is right.

Mark Irving Levy:

But, that is far different.

That is the sort of execution that the Marshal is authorized by other provisions of law to make.

There is no other provision of law that authorizes or requires him at the direction of the court to bring state prisoners into Federal Court in order to relieve the state custodian of its legal obligations.

Byron R. White:

The writs were issued in this case, weren’t they?

Mark Irving Levy:

They were orders.

I don’t believe they were styled as writs, but there were orders issued here jointly to the state and to the Marshals, that is correct.

Byron R. White:

Well, who served them on the state?

Mark Irving Levy:

I am not certain of the answer to that.

It may have been that they were simply served by mail or that the Marshal may have served them.

The state has never challenged that they were properly served.

Byron R. White:

So, the Marshal to serve them would have to go to these penitentiaries.

Mark Irving Levy:

It may be that there is an official for service in Philadelphia.

I simply don’t know what arrangements there are for service on the State of Pennsylvania.

John Paul Stevens:

Mr. Levy, as I understand it, since about 1976 or 1977 the circuits that have addressed this problem have all gone the other way from the Third Circuit.

And, has the Marshals Service or the Attorney General ever asked Congress to take a look at this problem in the intervening period?

Mark Irving Levy:

It has not.

We proposed that in our brief and our position in this case, but the court stay its hand to allow the legislative process to go forward.

We said that we would propose legislation.

The Court granted certiorari in this case and it is very difficult to get legislation proposed or considered when the very issue is pending in a case before the Court.

So, no legislation has been sought so far.

I can only assume that after this Court has rendered its decision, the losing side will then seek appropriate legislation in Congress and that is where we think the issue ought to be resolved, as we told the Court before.

It is a matter for Congress to decide in the end as a policy question, how the Marshals’ resources should be spent, whether the Marshal, to transport state prisoners, in addition to or instead of its currently prescribed duties.

But, absent legislative authorization of that kind, there is simply no legal authority for the trial court to require the Marshal as an arm of the Executive Branch, to transport state prisoners to Federal Court.

Byron R. White:

But, there would be authority, inherent authority, you say, for the Marshals Service to undertake that obligation within its discretion.

If it wanted to, it could do so.

Mark Irving Levy:

We think if the Marshal wanted to, it could do so, that is correct.

And, that is nothing more than the typical instance of executive discretion to take acts within its generally authorized area of responsibility.

The real problem in this case is that orders of the type entered by the magistrate here will impair Marshals’ ability to carry out the existing functions that are assigned to it.

Thank you.

Warren E. Burger:

Do you have anything further, General?

Leroy S. Zimmerman:

A very, very brief rebuttal, one point.

The government has argued finite resources.

Certainly there are finite resources on both sides, the state and the Marshals Service in this particular case, and there will always be burden to be considered here.

But, it is our position that the magistrate should have the discretion to consider the burden in order to try in more cases to have more prisoners, more witnesses in the court in these civil rights cases in order to make a more enlightened determination.

And, frequently, in the calculus that is used by the court to determine whether to issue the writ, that is a factor.

I respectfully ask this Court to reverse the decision of the Court of Appeals and to affirm the order of the magistrate in this case.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.