Appeal from the United States District Court for the Central District of California; D.C. No. CV-88-4582-SAW; Stanley A. Weigel, District Judge, Presiding.
Betty B. Fletcher, Robert Boochever and Charles Wiggins, Circuit Judges. Opinion by Judge Charles Wiggins; Dissent by Judge Betty B. Fletcher.
Ralph Mecham, Director of the Administrative Office of the United States Courts, appeals the district court's declaratory judgment directing the Administrative Office to pay Judge Tashima's expenses for having a private attorney represent him in two suits in which he sought to challenge the constitutionality of a local court rule. This court has jurisdiction of the timely appeal. 28 U.S.C. § 1291. We reverse.
By majority vote, the judges of the Central District of California validly enacted Local Rule 2.2.1, which, in connection with Local Rules 2.1 and 188.8.131.52, provides that an attorney who lives or is regularly engaged in business in California may perform as an attorney in the court only if he is a member of the California state bar; he may not appear pro hac vice.
In 1987 and 1988, respectively, two suits were filed in the Central District of California challenging the constitutionality of Rule 2.2.1, both naming each judge of the Central District as a defendant in his official capacity, and one also naming the Central District itself as a defendant. The Department of Justice authorized the U.S. Attorney's Office for the Central District of California to represent the court and its judges in defending the validity of the local rule. The rule was upheld as constitutional in both cases. Maynard v. United States Dist. Ct., 701 F. Supp. 738 (C.D. Cal. 1988), aff'd, 915 F.2d 1581 (9th Cir. 1990); Giannini v. Real, 711 F. Supp. 992 (C.D. Cal. 1989), aff'd, 911 F.2d 354 (9th Cir.), cert. denied, 111 S. Ct. 580 (1990).
A. Wallace Tashima, a judge in the Central District, and therefore a nominal defendant in the cases challenging Rule 2.2.1, believed that the rule should be amended rather than defended. He requested, under 28 U.S.C. § 463, that the Administrative Office authorize funds for him to retain private counsel to advocate his position in these suits. He believed that, given his unique position in the litigation, it would be a conflict of interest for the United States to represent him along with the other judges of the court. The Administrative Office refused to authorize funds for Judge Tashima's private counsel to advocate a position contrary to the majority of the court and not in the nature of a defense. The Administrative Office eventually did authorize funds for an attorney for Judge Tashima in Maynard for the limited purpose of securing his dismissal from the case. Judge Tashima then filed the instant action.
The district court granted his motion for a declaratory judgment, holding that: (1) although mandamus was improper because the Administrative Office did not have a clear non-discretionary duty, (2) and although the APA does not apply to the Administrative Office, rendering review for arbitrary and capricious actions under the APA inapplicable, (3) the Administrative Office had unconstitutionally based its decision on Judge Tashima's position in the litigation, thus effectively supervising and controlling the exercise of purely judicial duties in violation of Article III of the Constitution.
This court reviews decisions to grant or deny declaratory relief de novo. Fireman's Fund Ins. Co. v. Ignacio, 860 F.2d 353, 354 (9th Cir. 1988). Judge Tashima argues that the Administrative Office must pay his counsel fees based on 28 U.S.C. § 463, which provides:
Whenever a Chief Justice, justice, judge, officer, or employee of any United States court is sued in his official capacity, or is otherwise required to defend acts taken or omissions made in his official capacity, and the services of an attorney for the Government are not reasonably available . . ., the Director of the Administrative Office of the United States Courts may pay the costs of his defense. The Director shall prescribe regulations for such payments subject to the approval of the Judicial Conference of the United States.
Id. (emphasis added). Judge Tashima asserts that the Administrative Office was set up to have "no authority over the performance of judicial business," Chandler v. Judicial Council, 398 U.S. 74, 97 (1970) (Harlan, J., concurring), and, therefore, that § 463 must not be read to give the Director any discretion in deciding whether to pay for private counsel. Rather, Judge Tashima argues that the Director must pay for private counsel whenever judges sued in their official capacity cannot be represented by government attorneys.
 First, even if the Administrative Office were so inclined, we seriously doubt that § 463 authorizes it to grant Judge Tashima's request for private attorney fees in Maynard and Giannini other than for the limited purpose of securing his dismissal from the cases. Second, even if § 463 could be read to allow the possibility of granting his request, we hold that the statute vests the Administrative Office with ...