Muirhead v. Mecham

United States Court of Appeals
For the First Circuit

No. 05-1493

JAMES R. MUIRHEAD,
Plaintiff, Appellant,

v.

L. RALPH MECHAM, DIRECTOR,
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Ronald R. Lagueux,* Senior U.S. District Judge]

Before

Selya and Lynch, Circuit Judges,
and Restani,** Judge.

Peter D. Anderson, with whom McLane, Graf, Raulerson &
Middleton, P.A. was on brief, for appellant.
Catherine Y. Hancock, Attorney, Appellate Staff, with whom
Peter D. Keisler, Assistant Attorney General, Civil Division,
Thomas P. Colantuono, United States Attorney, and Michael S.
Raab, Attorney, Appellate Staff, were on brief, for appellee.

October 20, 2005

__________
*Of the District of Rhode Island, sitting by designation.
**Chief Judge of the United States Court of International Trade,
sitting by designation.
 SELYA, Circuit Judge. This case stems from a statutory

interpretation by the Director of the Administrative Office of the

United States Courts (the Director) that resulted in the exclusion

of a magistrate judge from the Judicial Survivors' Annuities System

(JSAS). The judge challenged the correctness of the Director's

interpretation in the United States District Court for the District

of New Hampshire. After determining that it had jurisdiction to

adjudicate the matter, the district court upheld the Director's

interpretation and dismissed the action for failure to state a

claim. See Fed. R. Civ. P. 12(b)(6). We conclude that the

Director's actions were the acts of the sovereign and, therefore,

immune from scrutiny in the district court. Consequently, we

vacate the dismissal of the complaint and remand for the entry of

an order of dismissal, without prejudice, for want of subject-

matter jurisdiction.

The facts are not in dispute. Plaintiff-appellant James

R. Muirhead is a United States Magistrate Judge in and for the

District of New Hampshire. The district court initially appointed

him to an eight-year term beginning September 1, 1995. In

recognition of his meritorious service, the court named him to a

second eight-year term beginning September 1, 2003. He continued

his tenure as a magistrate judge without any break in service.

When Congress first enacted the JSAS, only Article III

judges were eligible to participate. Congress later amended the

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statute to extend eligibility to bankruptcy and magistrate judges.

See Retirement and Survivors' Annuities for Bankruptcy Judges and

Magistrates Act of 1988, Pub. L. No. 100-659, 102 Stat. 3910

(codified at 28 U.S.C. § 376(a)(1)(F)). The JSAS pays an annuity

to surviving spouses and dependent children of enrolled judges. 28

U.S.C. § 376(h). The amount of the annuity is based on factors

such as the participant's salary, years of creditable service, and

years of contribution to the JSAS. Id. § 376(l). Participant

contributions, in the form of payroll deductions and payments to

cover prior creditable service, fund roughly fifty percent of the

JSAS and government contributions fund the remainder. See id.

§ 376(b)-(d), (w).

Participation in the JSAS is voluntary. See id.

§ 376(a)(1). The statutory scheme contains a number of

contingencies covering enrollment. The contingency at issue here

stipulates that, in order to enroll in the JSAS, a judge must

furnish written notice to the Director of his or her intention to

do so "within six months after . . . the date upon which he or she

takes office." Id. (emphasis supplied). The controversy between

the parties centers on the meaning of the phrase "takes office."

The appellant did not elect to enroll in the JSAS at the

inception of his initial term as a magistrate judge. On December

18, 2003, roughly three months after his reappointment, the

appellant gave the Director written notice of his intent to enter

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the program. The Director rejected the appellant's attempted

election as untimely; although the appellant gave notice within six

months of the start of his second term, the Director determined

that "a magistrate judge does not have a new opportunity to elect

JSAS upon reappointment to that same office." In other words, the

Director interpreted the statutory phrase "takes office" to apply

solely to original appointments.

The appellant did not take this rejection lightly. He

filed suit in the district court seeking a declaratory judgment

that his election was effective and a writ of mandamus to compel

the Director to accept it. He maintained that a magistrate judge

"takes office" anew whenever he or she is reappointed to an

additional eight-year term. This interpretation would grant a

magistrate judge a six-month window to elect into the JSAS not only

after his or her initial appointment but also after each successive

reappointment. That would mean, then, that the appellant's

election was timely and the Director had no discretion to reject

it.

The Director moved to dismiss the action on two grounds.

First, he contended that principles of sovereign immunity barred

the maintenance of the appellant's claim. Second, he contended

that, even if the district court was competent to act, the

complaint failed to state a claim upon which relief could be

granted because the Director had correctly construed the statutory

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term "takes office." The district court rejected the sovereign

immunity defense out of hand, but concluded that, under the JSAS

statute, a magistrate judge only "takes office" upon his or her

initial appointment. On that basis, the court granted the

Director's motion to dismiss.

On appeal, both parties make compelling arguments in

support of their competing interpretations of the JSAS statute.

Intriguing as this definitional conundrum may be, the better

practice is to confirm the existence of subject-matter jurisdiction

before proceeding to the merits. See, e.g., Bolduc v. United

States, 402 F.3d 50, 55 (1st Cir. 2005). We follow that course.

The Director posits that the district court lacked

jurisdiction over the action because the appellant's claim was

barred by sovereign immunity. This proposition requires us to

determine whether the Director's refusal to accept the appellant's

election should be considered an act of the sovereign or,

conversely, an act taken outside the bounds of the Director's

authority (and, thus, outside the safe haven of sovereign immunity

protection).

It is beyond cavil that, as the sovereign, the United

States is immune from suit without its consent. See United States

v. Thompson, 98 U.S. 486, 489 (1878); Bolduc, 402 F.3d at 55. That

consent usually takes the form of an express waiver of its

sovereign immunity. Such a waiver "cannot be implied but must be

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unequivocally expressed." United States v. King, 395 U.S. 1, 4

(1969). Even then, the waiver must be strictly construed. See

Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S.

273, 287 (1983); see also United States v. Horn, 29 F.3d 754, 762

(1st Cir. 1994). In the absence of an applicable waiver, courts

lack jurisdiction to entertain claims against the United States.

United States v. Sherwood, 312 U.S. 584, 586 (1941).

The appellant contends that the district court had

jurisdiction over the asserted claim because the United States has

expressly waived its immunity through Congress's enactment of the

federal mandamus statute, 28 U.S.C. § 1361.1 This argument

misconstrues the nature and purpose of the mandamus statute.

The mandamus statute provides that "district courts shall

have original jurisdiction of any action in the nature of mandamus

to compel an officer or employee of the United States or any agency

thereof to perform a duty owed to the plaintiff." Id. Because the

mandamus statute applies only to officers and employees of the

United States, rather than to the United States itself, the statute

1
Although the instant action is also premised on the
Declaratory Judgment Act, 28 U.S.C. § 2201, that statute plainly
does not operate as an express waiver of sovereign immunity. See
Progressive Consumers Fed. Credit Union v. United States, 79 F.3d
1228, 1230 (1st Cir. 1996) (recognizing that the Declaratory
Judgment Act does not effect a waiver of sovereign immunity because
it "neither provides nor denies a jurisdictional basis for actions
under federal law, but merely defines the scope of available
declaratory relief" (citation and internal quotation marks
omitted)).

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does not create any new cause of action against the government. It

simply gives the courts jurisdiction in those instances in which

substantive law already provides a remedy. Accordingly, the

provisions of the mandamus statute do not waive the sovereign

immunity of the United States. Coggeshall Dev. Corp. v. Diamond,

884 F.2d 1, 3 (1st Cir. 1989); Doe v. Civiletti, 635 F.2d 88, 94

(2d Cir. 1980).

Nor does the sovereign immunity waiver included in the

Administrative Procedure Act, 5 U.S.C. § 701, pertain here. This

waiver only applies to actions of an agency or its officers. The

statute, in turn, defines "agency" in a way that excludes the

"courts of the United States." Id. § 701(b)(1)(B). The

Administrative Office of the United States Courts is a part of the

judicial branch, so the Director's actions are not subject to

judicial review under the terms of this waiver.

These holdings do not end our odyssey. Although the

government enjoys broad protection through the operation of the

sovereign immunity doctrine, that doctrine does not necessarily

shield federal officers to the same extent. See, e.g., Sloan

Shipyards Corp. v. U.S. Shipping Bd. Emerg. Fleet Corp., 258 U.S.

549, 567 (1922) (finding that, although government officers may act

as instrumentalities of the government, a government agent,

"because he is an agent, does not cease to be answerable for his

acts"); Coggeshall Dev., 884 F.2d at 3 (noting that certain suits

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against individual government officers "will not be considered

against the United States, and thus will not be barred by sovereign

immunity"). Where, as here, a plaintiff brings suit against a

federal employee rather than against the government itself, an

inquiring court must analyze the claim to ascertain whether,

despite the nomenclature, the suit is, in reality, a suit against

the United States. See Mine Safety Appliance Co. v. Forrestal, 326

U.S. 371, 375 (1945).

This is a unitary test, but both the conduct challenged

and the relief sought may have a bearing on its outcome. As for

conduct, "if the [challenged] actions of an officer do not conflict

with the terms of his valid statutory authority, then they are the

actions of the sovereign" and come under the protective umbrella of

sovereign immunity. Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682, 695 (1949). As for relief, a suit, although

nominally aimed at an official, will be considered one against the

sovereign "if the judgment sought would expend itself on the public

treasury or domain, or interfere with the public administration, or

if the effect of the judgment would be to restrain the Government

from acting, or to compel it to act." Dugan v. Rank, 372 U.S. 609,

620 (1963) (citations omitted). When a plaintiff seeks specific

performance, the answer to the inquiry about relief hinges on

whether the redress obtained against the officer will, in practical

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effect, be obtained through the sovereign. Larson, 337 U.S. at

688.

Here, the appellant seeks a declaratory judgment and a

writ of mandamus against the Director in the latter's official

capacity. He contends that his election was timely, that the

Director therefore had no right to reject it, and that the suit

against the Director avoids the sovereign immunity bar under the

reasoning of Larson.

The Larson Court described two situations in which the

acts of a government official would not enjoy the prophylaxis of

sovereign immunity. Id. at 689-90. Both situations envision a

plaintiff who, like the appellant, seeks to have a government

official conform his conduct to federal law. See id.; see also

Kozera v. Spirito, 723 F.2d 1003, 1008 (1st Cir. 1983) (discussing

the Larson exceptions).

First, "where an officer's powers are limited by statute,

his actions beyond those limitations are considered individual and

not sovereign actions." Larson, 337 U.S. at 689. The Larson Court

reasoned that when the officer is not carrying out the sovereign's

will, it does not insult the sovereign's authority if a court metes

out equitable relief. Id. Second, an officer's acts are not

protected if the statute that confers the power to act is

unconstitutional or if the officer exercises that power in an

unconstitutional manner. See id. at 690; see also Dugan, 372 U.S.

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at 621-22. Again, the justification for granting relief is the

notion that the officer is not cloaked with legitimate sovereign

power when he acts — "the power has been conferred in form but the

grant is lacking in substance because of its constitutional

invalidity." Larson, 337 U.S. at 690. Relief in the nature of

specific performance is appropriate so long as a government

official is sued and either of the two Larson exceptions is

implicated. Am. Policyholders Ins. Co. v. Nyacol Prods., Inc., 989

F.2d 1256, 1265 (1st Cir. 1993).

The appellant advances no argument regarding the

constitutionality of either the statutory scheme or the Director's

decision to exclude him from the JSAS.2 Instead, he hinges his

argument on the first Larson exception: he asseverates that the

phrase "takes office" refers to reappointments as well as to

original appointments and that, therefore, the Director was

compelled, under the terms of the JSAS statute, to accept his

election. In his view, the Director's action in refusing to accept

2
In view of this fact, the appellant's reliance on Tashima v.
Admin. Office of U.S. Courts, 719 F. Supp. 881 (C.D. Cal. 1989), is
misplaced. The decision in Tashima was based on a finding that,
although the Director had the authority to make the type of
decision at issue, he exercised that authority "in a manner
infringing constitutional limits." Id. at 887. Looking to the
second Larson exception, the court held that the Director did not
enjoy sovereign immunity in that particular instance. Id. Given
the absence of any allegation of unconstitutionality in this case,
the court's holding in Tashima is of no utility here.

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the election was "ultra vires his authority and therefore may be

made the object of specific relief." Larson, 337 U.S. at 689.

This argument misapprehends the reach of the first Larson

exception. While that exception demands that government officials

adhere to Congress's general game plan as they carry out their

duties, it does not demand that they play a perfect game. Once

Congress decides to delegate certain powers and duties to an

official and does not expressly limit that authority, the official

is afforded a margin of error in carrying out that general mandate.

As Larson itself teaches, a mere claim that an official has erred

in the exercise of a delegated power is not enough to bring the

action out from behind the protective shield of sovereign immunity.

Id. at 695. Put another way, an official's actions within the

sphere of his or her delegated authority are not stripped of

immunity even if those actions are based on an incorrect reading of

the law or a mistaken assessment of the facts. Id. What counts is

that "the officer making the decision was empowered to do so."

Id.; see also Kennedy v. Rabinowitz, 318 F.2d 181, 183 n.9 (D.C.

Cir. 1963) (refusing to hear a claim against the Attorney General

on sovereign immunity grounds because "[a]t most, appellees' claim

is that appellant has erred, or will err, in construing the law" as

he exercised valid delegated power), aff'd on other grounds, 376

U.S. 605 (1964). When an officer acts erroneously, yet still

within the scope of his statutory power, the error is rightly

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attributed to the sovereign, not the individual, and sovereign

immunity bars judicial scrutiny unless there has been an explicit

waiver of that immunity. Doehla Greeting Cards, Inc. v.

Summerfield, 227 F.2d 44, 47 (D.C. Cir. 1955).

The question, then, is not whether the Director made a

mistake in construing the term "takes office," but, rather, whether

the Director's action, even if legally erroneous, was beyond the

scope of his statutory authority. We conclude that it was not.

Congress explicitly gave the Director the general power

to "[r]egulate and pay annuities" to certain heirs of qualifying

judicial officers. 28 U.S.C. § 604(a)(7). Withal, Congress

imposed some express limitations on the Director's ability to

exercise that general power. For example, the JSAS, by its terms,

restricts the class of potential annuitants to widows, widowers,

children, and former spouses of judicial officers. Id. § 376(h),

(s)-(t). Thus, if the Director chose to pay out an annuity to,

say, a judicial officer's cousin, the Director would be acting

outside the scope of his statutory authority and would be subject

to suit under the first Larson exception. At the same time,

however, the JSAS reserved certain discretionary functions to the

Director, giving him explicit authority, for instance, to determine

JSAS issues anent dependency and disability. See id. § 376(i)(1).

While the statute is explicit in granting or denying the

Director the authority to make determinations in some instances, it

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does not clearly articulate whether the Director has the authority

to exercise discretion at every potential decision point. When the

question of authority to act is unclear because there has been no

express limitation of that authority, Larson gives the benefit of

the doubt to the government officer.

An integral part of the Director's general mandate to

regulate and pay annuities to certain heirs of qualifying judicial

officers entails determining which judicial officers qualify to

participate in the program. While section 376 provides some

guiding parameters relative to that determination, it, like many

statutes, contains some ambiguous terms and does not explicitly

prescribe the Director's actions in determining whether to accept

every attempted election. In those instances in which the

statutory language is incomplete or unclear, the Director must

continue to administer the program in the manner that he believes

best comports with Congress's intent and the guidelines embedded in

the statutory scheme.

The phrase "takes office" falls within one such open

area. The district court's careful analysis and the parties'

cogent arguments persuasively suggest that the statute is less than

pellucid as to whether the Director, in dealing with judicial

officers who are appointed for fixed terms (i.e., magistrate judges

and bankruptcy judges) should admit only newly appointed judges or

should allow reappointed judges a second chance to opt into the

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system. There is room for debate — and this room precludes a

finding that the Director is expressly prohibited from rejecting

elections of reappointed judges. It follows inexorably that the

Director was authorized to determine the timeliness of the

appellant's attempted election. Consequently, the first Larson

exception does not apply.

In sum, the Director's rejection of the appellant's

election, if an error at all, was an error of law in the

performance of a function of the sovereign. Since the appellant

has pointed to no valid waiver of sovereign immunity applicable

thereto, the district court was without jurisdiction to determine

whether, as a matter of law, the Director's decision was correct.

See Larson, 337 U.S. at 695 (concluding that sovereign immunity

bars suits challenging a government official's decision, even if

that decision was "based on an incorrect decision as to law or

fact, if the officer making the decision was empowered to do so").

We need go no further. In accordance with the foregoing,

we vacate the dismissal of the action on the merits and remand for

the entry of an order dismissing the action, without prejudice, for

want of subject-matter jurisdiction.3

So Ordered.

3
The appellant has not sought monetary relief under either the
Tucker Act, 28 U.S.C. § 1491, or the Little Tucker Act, id. §
1346(a)(2), so it is unnecessary for us to consider whether a suit
could be brought against the government under one of these statutes
and, thus, surmount the sovereign immunity barrier.

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