Case: 10-30709 Document: 00511585438 Page: 1 Date Filed: 08/26/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 26, 2011
No. 10-30709 Lyle W. Cayce
Clerk
RHONDA DANOS,
Plaintiff - Appellant
v.
EDITH JONES, United States Court of Appeals for the Fifth Circuit,
individually and in her official capacity as presiding officer of the Judicial
Council of the Fifth Circuit; JUDICIAL COUNCIL OF THE FIFTH CIRCUIT,
an entity created by Congress pursuant to 28 United States Code 332
composed entirely of Article III Judges; CAROLYN DINEEN KING, Judge,
United States Court of Appeals for the Fifth Circuit, in her official capacity as
a member of the Judicial Council of the Fifth Circuit and Individually;
JERRY E. SMITH, Judge, United States Court of Appeals for the Fifth
Circuit, in his official capacity as a member of the Judicial Council of the
Fifth Circuit and Individually; W. EUGENE DAVIS, Judge, United States
Court of Appeals for the Fifth Circuit, Council of the Fifth Circuit, in his
official capacity as a member of the Judicial Council of the Fifth Circuit and
Individually; RHESA H. BARKSDALE, Judge, United States Court of
Appeals for the Fifth Circuit, in his official capacity as a member of the
Judicial Council of the Fifth Circuit and Individually; EDITH BROWN
CLEMENT, Judge, United States Court of Appeals for the Fifth Circuit, in
her official capacity as a member of the Judicial Council of the Fifth Circuit
and Individually, also known as Joy Clement; PRISCILLA R. OWEN, Judge,
United States Court of Appeals for the Fifth Circuit, in her official capacity as
a member of the Judicial Council of the Fifth Circuit and Individually;
JENNIFER WALKER ELROD, Judge, United States Court of Appeals for the
Fifth Circuit, in her official capacity as a member of the Judicial Council of
the Fifth Circuit and Individually; LESLIE H. SOUTHWICK, Judge, United
States Court of Appeals for the Fifth Circuit, in his official capacity as a
member of the Judicial Council of the Fifth Circuit and Individually; SARAH
S. VANCE, United States District Judge for the Eastern District of Louisiana,
in her official capacity as a member of the Judicial Council of the Fifth Circuit
and Individually; NEAL B. BIGGERS, JR., United States District Judge for
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the Northern District of Mississippi, in his official capacity as a member of
the Judicial Council of the Fifth Circuit and Individually; LOUIS G.
GUIROLA, JR., United States District Judge for the Southern District of
Mississippi, in his official capacity as a member of the Judicial Council of the
Fifth Circuit and Individually; SAM R. CUMMINGS, United States District
Judge for the Northern District of Texas, in his official capacity as a member
of the Judicial Council of the Fifth Circuit and Individually; HAYDEN HEAD,
United States District Judge for the Southern District of Texas, in his official
capacity as a member of the Judicial Council of the Fifth Circuit and
Individually; FRED BIERY, United States District Judge for the Western
District of Texas, in his official capacity as a member of the Judicial Council
of the Fifth Circuit and Individually,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
Before HIGGINBOTHAM, COLLOTON,* and GRAVES, Circuit Judges.
COLLOTON, Circuit Judge:
Rhonda Danos was a secretary for G. Thomas Porteous, Jr., during his
service as a United States District Judge for the Eastern District of Louisiana.
Porteous was removed from office on December 8, 2010, after impeachment by
the House of Representatives and conviction by the United States Senate. See
U.S. Const. art. II, § 4; 156 Cong. Rec. S8607, S8611 (daily ed. Dec. 8, 2010); 156
Cong. Rec. H1327, H1335-37 (daily ed. Mar. 11, 2010).
While Porteous still held judicial office, the Judicial Council of the Fifth
Circuit publicly reprimanded him for judicial misconduct and ordered that no
new cases be assigned to him for two years or until Congress took final action on
impeachment proceedings against him, whichever occurred earlier. The Council
*
United States Circuit Judge for the Eighth Circuit, sitting by designation.
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also suspended Judge Porteous’s authority to employ staff for the same period
of time. As a result, Danos was terminated from her employment. She then
sued the Judicial Council and fifteen of its members, alleging that the Council’s
action in suspending Judge Porteous’s authority to employ staff was
unconstitutional and ultra vires. The district court dismissed Danos’s claims,
Danos v. Jones, 721 F. Supp. 2d 491 (E.D. La. 2010), and we affirm.
I.
The judicial council of each federal judicial circuit is composed of the chief
judge of the circuit, who presides, and an equal number of circuit judges and
district judges of the circuit. 28 U.S.C. § 332(a)(1). In the Fifth Circuit, the
Judicial Council includes the chief judge, nine circuit judges, and nine district
judges. The defendants in this action are the Judicial Council of the Fifth
Circuit, the chief judge of the Fifth Circuit, and fourteen other members of the
Council as of September 10, 2008. The district court interpreted the complaint
to sue the Council members in their official capacities only, see 721 F. Supp. 2d
at 495, and Danos does not challenge this interpretation on appeal.
One responsibility of the Judicial Council is to consider complaints of
judicial misconduct filed in accordance with the Judicial Conduct and Disability
Act, 28 U.S.C. §§ 351-364. In May 2007, the United States Department of
Justice filed a complaint alleging that Judge Porteous had engaged in judicial
misconduct. The matter was investigated by a special investigatory committee
appointed by the chief judge of the Fifth Circuit. After receiving a report from
the special committee, the Judicial Council determined that Judge Porteous had
engaged in conduct that might be grounds for impeachment under Article II of
the Constitution. The Council certified this determination to the Judicial
Conference of the United States in accordance with 28 U.S.C. § 354(b)(2)(A).
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The matter was referred to the Committee on Judicial Conduct and
Disability of the Judicial Conference, which issued a report and recommendation
that was adopted by the Judicial Conference. The Conference then certified and
transmitted to the House of Representatives the records of the proceeding and
its determination that impeachment of Judge Porteous may be warranted. The
Conference also authorized the Committee on Judicial Conduct and Disability
to request that the Judicial Council of the Fifth Circuit determine whether to
continue or suspend the underlying judicial misconduct proceeding. The
Committee further suggested that if the Council continued the proceeding, then
it should consider the propriety of a public reprimand and an order that no new
cases be assigned to Judge Porteous.
The Judicial Council, after considering the report and recommendation,
issued an Order and Public Reprimand in the judicial misconduct proceeding.
The Council reprimanded Judge Porteous for conduct prejudicial to the effective
and expeditious administration of the business of the courts within the circuit,
and ordered that no new cases be assigned to him for two years or until final
action on the impeachment proceedings, whichever occurred earlier. See 28
U.S.C. § 354(a)(2)(A)(i); Rule for Judicial-Conduct and Judicial-Disability
Proceedings 20(b)(1)(D)(i)-(ii). It is undisputed that Judge Porteous had no cases
pending on his docket at the time of the Council’s order.
In the portion of its order at issue here, the Council, pursuant to 28 U.S.C.
§ 332(d)(1), also ordered that Judge Porteous’s authority to employ staff be
suspended for the same period of time in which no new cases would be assigned
to him. The order was entered on September 10, 2008. Danos alleges that as a
result of the Council’s order, she was terminated from her employment on
September 19, 2008.
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Danos sued the Judicial Council and fifteen of its members. She sought
a declaratory judgment on four points: (1) that the Council lacked authority
under 28 U.S.C. § 332(d)(1) to suspend Porteous’s authority to employ staff, (2)
that the actions available to a Judicial Council with respect to an Article III
judge in a judicial misconduct proceeding are limited to those specifically
described as “possible actions” in 28 U.S.C. § 354(a)(2)(A)(i)-(iii) and
§ 354(a)(2)(B)(i)-(ii), (3) that the Council committed an ultra vires act by
suspending Judge Porteous’s authority to employ a secretary and law clerks, and
(4) that the Council’s order to that effect is null and void. Danos also sought
reinstatement to her position as secretary to Judge Porteous, monetary relief
including back pay and retirement credits, and attorney’s fees and costs.
The district court dismissed the complaint for lack of subject matter
jurisdiction, concluding that Danos’s claims were barred by sovereign immunity.
After entry of the court’s order in July 2010, the impeachment proceedings
against Judge Porteous were completed, and Porteous was removed from office
on December 8, 2010. Danos appeals the district court’s order insofar as it
dismissed her claims against the members of the Judicial Council.
II.
A federal court has no subject matter jurisdiction over claims against the
United States unless the government waives its sovereign immunity and
consents to suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Danos sued both the
Judicial Council and members of the Judicial Council, but claims against officers
of the United States in their official capacities are actually claims against the
sovereign. S. Sog, Inc. v. Roland, 644 F.2d 376, 380 (5th Cir. Unit A May 1981).
Where applicable, therefore, sovereign immunity precludes claims against the
officers as well.
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To avoid the bar of sovereign immunity, Danos invokes Larson v. Domestic
& Foreign Commerce Corp., 337 U.S. 682 (1949), where the Supreme Court
described “suits for specific relief against officers of the sovereign which are not
suits against the sovereign.” Id. at 689. The Court cited two types of cases that
may fall into this category: (1) those in which a “statute or order conferring
power upon the officer to take action in the sovereign’s name is claimed to be
unconstitutional,” and (2) those in which the officer’s action is ultra vires his or
her authority. Id. at 689-90. Danos argues that the Council’s action in
suspending Judge Porteous’s authority to employ staff was both unconstitutional
and ultra vires, such that sovereign immunity does not preclude her claims.
Like the district court, we assume for the sake of analysis that the Larson
exception to sovereign immunity may still apply in certain cases after the 1976
amendments to the Administrative Procedure Act, see Swan v. Clinton, 100 F.3d
973, 981 n.4 (D.C. Cir. 1996); cf. Geyen v. Marsh, 775 F.2d 1303, 1307 (5th Cir.
1985), but we nonetheless conclude that Danos cannot prevail.
A.
Danos’s constitutional argument is that the Council’s order “partially
disqualified” Judge Porteous from holding his office as an Article III judge. Her
theory is that Congress in 28 U.S.C. § 752 authorized federal district judges to
“appoint necessary law clerks and secretaries,” and that any suspension of that
authority amounts to a partial removal from office. Because a federal judge is
entitled under the Constitution to hold office “during good Behaviour,” U.S.
Const. art. III, § 1, Danos contends that the alleged “partial removal” of Judge
Porteous could be accomplished only through the impeachment process identified
in Article II, Section 4 and set forth in Article I, Sections 2 and 3.
We agree with the district court that Danos lacks standing to pursue this
constitutional claim, because she cannot assert the rights of Judge Porteous.
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Even where Article III standing requirements are satisfied, prudential
considerations require that a party “generally must assert [her] own legal rights
and interests, and cannot rest [her] claim to relief on the legal rights or interests
of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). The alleged rights
at issue—to avoid “partial removal” from judicial office and to employ a secretary
under § 752—are rights of the judge, not of the secretary. Judge Porteous, it
turns out, did not seek review of the Council’s order by the Judicial Conference
of the United States through the mechanism provided by statute. See 28 U.S.C.
§ 357(a). Yet neither the judicial tenure protections of Article III nor 28 U.S.C.
§ 752 can properly be understood as granting a secretary a right to judicial relief
for alleged violations of a judge’s purported rights to retain office or to appoint
staff.
Danos complains that Congress foreclosed the judge from securing judicial
review of the Council’s order by limiting appellate review to a decision by the
Judicial Conference. See 28 U.S.C. § 357(c). She posits that third-party
standing is allowed here, because there exists “some hindrance to the third
party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U.S. 400,
411 (1991). This is hardly a case, however, like the Supreme Court’s prime
example of permissible third-party standing, where requiring the third party to
assert his own alleged right “‘would result in nullification of the right at the very
moment of its assertion.’” Singleton v. Wulff, 428 U.S. 106, 116 (1976) (plurality
opinion) (quoting NAACP v. Alabama, 357 U.S. 449, 459 (1958)). There was no
barrier to Judge Porteous challenging the Council’s order before the Judicial
Conference, and he could have done so without any adverse consequence to his
alleged rights. That Congress elected to limit appellate review to the Judicial
Conference, and thereby to deprive the federal courts of jurisdiction over a
judge’s claim, does not grant the courts license to frustrate that limitation by
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“expanding jurisdiction through the back door of third party standing.” Am.
Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352, 1364 (D.C. Cir. 2000). We
therefore conclude that Danos lacks prudential standing to bring her
constitutional challenge to the Council’s action.
B.
The ultra vires exception to sovereign immunity, as articulated by the
Supreme Court in Larson, provides that “where the officer’s powers are limited
by statute, his actions beyond those limitations are considered individual and
not sovereign actions.” 337 U.S. at 689. Such actions are “ultra vires his
authority and therefore may be made the object of specific relief.” Id. To invoke
this exception, a plaintiff must “do more than simply allege that the actions of
the officer are illegal or unauthorized.” Ala. Rural Fire Ins. Co. v. Naylor, 530
F.2d 1221, 1226 (5th Cir. 1976). The complaint must allege facts sufficient to
establish that the officer was acting “without any authority whatever,” or
without any “colorable basis for the exercise of authority.” Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984) (internal quotations
omitted). Prudential standing considerations do not foreclose this aspect of
Danos’s claim, because the legal right that she asserted—the right not to be
injured by unauthorized action of the Council—was her own. Haitan Refugee
Ctr. v. Gracey, 809 F.2d 794, 811 nn.13-14 (D.C. Cir. 1987); see also Chiles v.
Thornburgh, 865 F.2d 1197, 1210-11 (11th Cir. 1989).
Danos’s complaint sought three forms of relief based on the alleged ultra
vires action of the Council. First, she prayed for injunctive relief in the form of
reinstatement to her position as a secretary to Judge Porteous. This claim is
moot in light of Porteous’s removal from office. See Harris v. City of Houston,
151 F.3d 186, 189 (5th Cir. 1998).
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Second, the complaint requested an award of back pay and retirement
credits. The prayer for relief was based on an annual salary of $67,210.00, and
covered a period of more than two years, from the date of Danos’s termination
through Porteous’s eventual removal from office. Even where the Larson
exception to sovereign immunity applies, however, it does not extend to
monetary relief against the United States. “Of course, a suit may fail, as one
against the sovereign, even if it is claimed that the officer being sued has acted
unconstitutionally or beyond his statutory powers, if the relief requested cannot
be granted by merely ordering the cessation of the conduct complained of but will
require affirmative action by the sovereign or the disposition of unquestionably
sovereign property.” Larson, 337 U.S. at 691 n.11. Based on this “exception to
the exception,” Zapata v. Smith, 437 F.2d 1024, 1025 (5th Cir. 1971), this court
has determined that a suit is one against the United States where “the remedy
sought is back pay which can be satisfied only out of the public treasury.” Id. at
1027; see also Johnson v. Mathews, 539 F.2d 1111, 1124 (8th Cir. 1976) (holding
that footnote 11 in Larson “precludes retroactive payments from the federal
treasury”). Therefore, Danos’s claims for back pay and retirement benefits are
barred by sovereign immunity. Cf. 28 U.S.C. § 1346(a)(2) (conferring jurisdiction
on district courts for back pay claims of $10,000 or less); Clinton v. Goldsmith,
526 U.S. 529, 540 (1999).
Finally, Danos seeks a declaratory judgment that the Council’s action was
ultra vires. But given that her claim for monetary relief is barred by sovereign
immunity and her claim for injunctive relief is moot, Danos lacks the necessary
injury-in-fact to pursue declaratory relief. In an effort to describe a continuing
Article III controversy, Danos alluded at oral argument to an alleged injury to
her reputation resulting from the Council’s order. The order, however, was
directed at Judge Porteous and suspended his authority to employ staff based on
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the Council’s finding that he committed misconduct. The remainder of the
Council’s proceedings were confidential. 28 U.S.C. § 360(a). And even accepting
for the sake of analysis that the order and suspension of Judge Porteous’s
authority caused reputational harm to Danos, any such harm is “merely the
secondary effect of an injury that is otherwise moot.” Foretich v. United States,
351 F.3d 1198, 1212 (D.C. Cir. 2003). “[W]here reputational injury is the
lingering effect of an otherwise moot aspect of a lawsuit, no meaningful relief is
possible and the injury cannot satisfy the requirements of Article III.” Id. A
declaration that Judge Porteous should have been permitted to employ staff
while impeachment proceedings were pending would not remedy any alleged
injury to Danos.
In any event, there is a second jurisdictional barrier to Danos’s claim for
declaratory relief, and we may address it as well. See Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 584-85 (1999). Even if Danos has standing to seek
declaratory relief, she has not pleaded a sufficient claim of ultra vires action by
the Judicial Council to overcome the jurisdictional bar of sovereign immunity.
The Council suspended Judge Porteous’s authority to employ staff based on the
Council’s authority to “make all necessary and appropriate orders for the
effective and expeditious administration of justice.” 28 U.S.C. § 332(d)(1). Given
this broad grant of administrative power, it is untenable that the Council
members, as stewards of the public fisc, lacked even a “colorable basis” for
prohibiting a judge with no caseload from employing a secretary paid from the
United States Treasury. The statute granting hiring authority to a judge, after
all, permits only the appointment of “necessary law clerks and secretaries.” 28
U.S.C. § 752 (emphasis added). What is more, this court has recognized that “it
is not unreasonable to view § 332 as empowering a council to remedy judicial
misconduct,” and that “§ 332 grants the judicial councils some authority to deal
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with judicial misconduct.” In re McBryde, 117 F.3d 208, 227-28 (5th Cir. 1997).
The Council thus had at least a colorable basis to believe it also could restrict
Judge Porteous’s appointment authority as a facet of the remedial action taken
in the Order and Public Reprimand of September 10, 2008.
* * *
For these reasons, the judgment of the district court is affirmed.
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