On Appeal from the United States District Court for the Eastern District of Pennsylvania.
Gibbons and Becker, Circuit Judges and Atkins, District Judge.*fn*
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
The United States Marshals Service, an intervenor, appeals from an order of a United States Magistrate in a pending civil action, denying the intervenor's motion for reconsideration of an order directing the United States Marshal for the Eastern District of Pennsylvania to transport a state prisoner witness from the nearest county jail to the United States Courthouse in Philadelphia and to maintain custody of that prisoner while he is in the federal courthouse. The underlying civil action is within the subject matter jurisdiction of the district court, and is assigned for trial before a United States Magistrate by consent of the parties. 28 U.S.C. § 636(c)(1). The Marshals Service contends that the district court, and hence the United States Magistrate, lacked statutory authority to enter the order appealed from. The Bureau of Corrections, Commonwealth of Pennsylvania, the Sheriff of Philadelphia County, and the City of Philadelphia, which have also intervened, defend the order. We hold that the district court, and thus the magistrate, has statutory authority to direct the United States Marshal to maintain custody of a state prisoner witness in the federal courthouse while he is there in connection with judicial proceedings, but lacks such authority to direct the Marshal to transport that prisoner between the county jail and the federal courthouse.
This dispute, between the United States Marshals Service and the Pennsylvania corrections officials as to who must bear the expense of transporting and maintaining secure custody over state prisoners required as witnesses in civil proceedings in the federal courts, is entirely collateral to the underlying action. The Magistrate's order disposes of the dispute fully and finally. Review of final orders in cases tried by consent of the parties before United States Magistrates lies directly to this court.*fn1 28 U.S.C. § 636(c)(3). Thus we have appellate jurisdiction. Story v. Robinson, 689 F.2d 1176, 1177 (3d Cir. 1982).
At issue in this appeal is the authority of a United States District Court to shift the burden of expense in responding to unquestionably lawful federal civil process from the Commonwealth of Pennsylvania to the United States Treasury. The Commonwealth understandably prefers that federal taxpayers bear that burden, and since the United States is often seen as the ultimate deep pocket target, that preference has a plausible appeal. But the United States has not conferred on the federal judiciary any authority to lay hands on its Treasury. To the contrary, the Constitution provides that "no Money shall be drawn from the Treasury, but in Consequence of appropriations made by Law. . . ." Art. I, Sec. 9, cl. 7. Absent statutory authorization, what the Commonwealth proposes is a raid in its interest on the United States Treasury.
This court has dealt with the contention advanced on behalf of the Commonwealth, the County and the City in the recent past. In Story v. Robinson, 689 F.2d 1176 (3d Cir. 1982), the Commonwealth and Allegheny County appealed, as intervenors, from a writ of habeas corpus ad testificandum directing that state prisoner witnesses be transported from state prisons to a county jail near the federal courthouse in Pittsburgh. The Commonwealth objected to transporting the prisoners without reimbursement by the United States, and urged on us several statutes which might authorize the district court to qualify the writ by a reimbursement condition. The first statute relied upon was 28 U.S.C. § 569(b), which instructs the Marshals to "execute all lawful writs, process and orders executed under the authority of the United States. . . ." We held that this statute was not a separate source of judicial authority to issue writs, process and orders, but only a source of the Marshals' duty to execute them when they have been issued pursuant to some other source of authority. 689 F.2d at 1179. A second statute was 28 U.S.C. § 571, which authorizes the United States Marshal to act as disbursing officer for the United States Attorney and for federal court personnel. We held that this statute conferred no authority to relieve state custodians of the financial burden of complying with federal process. 689 F.2d at 1179. A third statute relied on by the Commonwelath was 28 U.S.C. § 567(2), which provides that each United States Marshal shall be allowed "the expense of transporting prisoners. . . ." We held that this statute was no authority, at least absent some intergovernmental agreement, see 28 C.F.R. § 0.111(j) (1983), for relieving the Commonwealth of such expense. Id. Finally, the Commonwealth relied on 28 U.S.C. § 1651. We rejected the Commonwealth's contention that this statute required the grant of the motion to impose the entire cost of compliance with the writs of habeas corpus ad testificandum on someone other than the state custodian. 689 F.2d at 1180.
In the instant case, neither in the district court nor before this court did the Commonwealth and its subdivisions rely upon section 1651 as authority for an order directed to the United States Marshal.*fn2 Technically, the question is open, for while Story v. Robinson rejected the contention that section 1651 required an order that the cost of producing prisoner witnesses must be assumed by the Marshals Service, it did not decide whether the section nevertheless authorized such an order as a matter of discretion. No party has briefed that question, but since such a construction of section 1651 might arguably justify the order appealed from, we address it.
A construction of the All Writs Act as a grant of authority to transfer to the United States Treasury the expense of compliance with witness process is unsupportable. None of the authorities construing section 1651 interpret it as a grant of authority for the issuance of an order compelling a non-party Executive branch officer to satisfy the obligation of state custodians to respond to witness process. United States v. New York Telephone Co., 434 U.S. 159, 54 L. Ed. 2d 376, 98 S. Ct. 364 (1977), on which the Commonwealth relied in Story v. Robinson, supra, involves the authority of the district court to direct process to non-parties who are so situated that their cooperation is essential to the exercise of its jurisdiction otherwise attaching. The Marshals ...