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Mckissock & Hoffman, P.C., et al. v. Marcia Waldron

August 4, 2011

MCKISSOCK & HOFFMAN, P.C., ET AL.
v.
MARCIA WALDRON, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This action was brought by a law firm, McKissock & Hoffman, PC, and J. Bruce McKissock, Esquire, who are defendants in a legal malpractice suit currently pending in the Philadelphia County Court of Common Pleas. The law firm sought the testimony of the Chief Mediator for the United States Court of Appeals for the Third Circuit as part of its defense, but the Clerk of Court denied the plaintiffs' request to depose the Mediator. The plaintiffs assert that the Clerk's denial violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq. The defendants have moved to dismiss the plaintiffs' complaint, or in the alternative, for summary judgment. The Court will grant the defendants' motion to dismiss.

I. Factual Background

The plaintiffs in this case, McKissock & Hoffman, P.C. and J. Bruce McKissock, are defendants in a legal malpractice suit currently pending in the Philadelphia County Court of Common Pleas. The malpractice suit arose out of the law firm's representation of Polymar Dynamics in a breach of contract suit against Bayer Corporation that was pending in the United States Court of Appeals for the Third Circuit. In the legal malpractice action pending in the Philadelphia County Court of Common Pleas, Polymar alleges that, during mediation, McKissock & Hoffman, P.C. committed legal malpractice by failing to advise them that they should accept a $25,000,000.00 settlement, which the mediator allegedly offered to them. See Compl. Ex. A ¶ 9. McKissock & Hoffman denies that the offer was ever made. See Compl. ¶ 18.

McKissock & Hoffman sought the testimony of the Mediator by serving him with a subpoena on October 27, 2010. See Compl. ¶ 20. On November 3, 2010, the United States Attorney's Office for the Eastern District of Pennsylvania sent a letter to counsel for McKissock & Hoffman informing them that their request did not comply with the required procedures of the Administrative Office of the United States Courts ("AOUSC"). See Compl. Ex. D. On November 4, 2010, counsel for McKissock & Hoffman sent a letter to the United States Attorney's Office that included a second request for the Mediator's testimony. See Compl. Ex. E.

On November 5, 2010, the Clerk denied McKissock & Hoffman's request to permit the Mediator to testify. The Clerk cited several reasons for her decision: (1) sovereign immunity prevents a state court from compelling the testimony of a federal employee; (2) the Mediator's testimony would be a breach of confidentiality and thus a violation of § 8(a)(11) of the subpoena regulations for the federal judiciary; and (3) a number of the other factors set forth in the subpoena regulations, specifically §§ 8(a)(1), (2), (3), (4), (9), (12), and (13), weighed against allowing the Mediator to testify. See Compl. Ex. F.

On December 6, 2010, the plaintiffs filed a complaint with this Court alleging that the Clerk, the AOUSC, and the Director of the AOUSC violated the APA. The plaintiffs argue that (1) the Clerk's decision to deny their request was arbitrary, capricious, and an abuse of discretion under the APA; and (2) the Clerk and the AOUSC lack the authority to adopt and administer subpoena regulations. See Compl. 8--12.

The defendants filed a motion to dismiss for lack of jurisdiction, or alternatively, for summary judgment. On July 26, 2011, the Court held oral argument on the defendants' motion.

II. Analysis

The defendants argue that the Court lacks subject

matter jurisdiction over this case because the Clerk and the AOUSC are part of the federal judiciary and, therefore, exempt from review under the APA.

The APA confers a general cause of action upon persons "adversely affected or aggrieved by agency action." 5 U.S.C. § 702. Congress specifically precluded judicial review of "the courts of the United States" under the APA by excluding them from the definition of "agency." Id. § 701(b)(1)(B). The issue before the Court is whether § 701(b)(1)(b) prevents judicial review of the decision of the Clerk of the Third Circuit to deny the plaintiffs' request to permit the Mediator to testify.

The majority of courts interpreting the APA have endorsed a broad interpretation of "the courts" that encompasses the entire judicial branch. For example, in In re Fidelity Mortgage Investors, 690 F.2d 35 (2d Cir. 1982), the United States Court of Appeals for the Second Circuit held that the Judicial Conference was exempt from APA review because it was part of "the courts." The Court analyzed the legislative history of the APA and concluded that "[i]f legislative history has any significance at all, it is clear that Congress intended the entire judicial branch of the Government to be excluded from the provisions of the Administrative Procedure Act." Id. at 38 (citing Wacker v. Bisson, 348 F.2d 602, 608 n. 18 (5th Cir. 1965)).*fn1

Several district courts have held that the AOUSC is exempt from judicial review under the APA because it is part of "the courts." See Novell, Inc. v. United States, 109 F. Supp. 2d 22, 26 (D.D.C. 2000) (holding that the AOUSC is part of "the courts"); Tashima v. Admin. Office of the U.S. Cts., 719 F. Supp. 881 (C.D. Cal. 1989), aff'd on other grounds, 967 F.2d 1264 (9th Cir. 1992);*fn2 Wayne Seminoff Co. v. Mecham, No. 02-2445, 2003 U.S. Dist. Lexis 5829, at *38 (E.D.N.Y. 2003) (holding that the Freedom of Information Act, which uses the same language as the APA, does not apply to the AOUSC). But see Goldhaber v. Foley, 519 F. Supp. 466, 480 (E.D. Pa. 1981) (holding that AOUSC is not exempt from the APA). These decisions are based ...


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