# Mallard v. United States District Court for Southern District of Iowa

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## Concurring Opinion

    Kennedy

## Dissenting Opinion

    Stevens
United States Supreme Court
490 U.S. 296
Mallard v. United States District Court for Southern District of Iowa
No. 87-1490 Argued: Feb. 28, 1989. --- Decided: May 1, 1989
Syllabus
Petitioner Mallard, an attorney recently admitted to practice before the District Court, was selected to represent indigent inmates in their suit in that court against prison officials under 42 U.S.C. § 1983. After a Magistrate denied his motion to withdraw, he appealed to the District Court, contending that forcing him to represent indigent inmates in a complex action requiring trial skills he did not possess would compel him to violate his ethical obligation to take on only those cases he could handle competently and would exceed the court's authority under 28 U.S.C. § 1915(d), which provides that federal courts may "request" an attorney to represent any person claiming in forma pauperis status. The court upheld the Magistrate's decision, ruling, inter alia, that § 1915(d) empowers federal courts to make compulsory appointments in civil actions. The Court of Appeals denied without opinion Mallard's petition for a writ of mandamus to compel the District Court to allow his withdrawal.
Held:
1. Section 1915(d) does not authorize a federal court to require an unwilling attorney to represent an indigent litigant in a civil case. The section's operative term is "request," which bespeaks an intent not to authorize mandatory appointments of counsel. The fact that § 1915(c)-which was adopted at the same time as § 1915(d)-imposes mandatory duties on court officers and witnesses in in forma pauperis cases demonstrates that Congress knew how to require service when it deemed compulsory service appropriate. The conclusion that § 1915(d) evinces a desire to permit attorneys to decline representation of indigent litigants if in their view their personal, professional, or ethical concerns bid them do so is bolstered by the fact that Congress, when it passed § 1915(d) in 1892, was aware of, but chose not to replicate, the language of various state statutes providing for the "appointment" or "assignment" of counsel in in forma pauperis proceedings; by the fact that no reported pre-1892 American or English decision held that a lawyer could be sanctioned for declining representation without compensation; and by the fact that other pre- and post-1892 federal statutes providing for court-ordered representation specify that the court could "assign" or "appoint" attorneys, rather than merely "request" that they serve. Contrary to respondents' assertion, construing § 1915(d) to allow courts to ask but not compel lawyers to represent indigent litigants does not render the section a nullity on the theory that statutory authorization is unnecessary for a court simply to ask, since the section may meaningfully be read to legitimize a court's equest and therefore to confront a lawyer with an important ethical decision. Pp. 300-308.
2. Mallard discharged his burden of proving that he was entitled to a writ of mandamus, and the Court of Appeals erred when it denied his application. In resting its decision solely on § 1915(d), the District Court plainly acted beyond its "jurisdiction." In addition, Mallard had no alternative remedy available to him. Moreover, the principal reasons for this Court's reluctance to condone use of the writ-the undesirability of making a district court judge a litigant and the inefficiency of piecemeal appellate litigation-are not present here. Pp. 308-310.
3. Respondent's contention that the federal courts possess inherent authority to require lawyers to serve will not be considered by this Court, since the lower courts did not invoke such authority in reaching their decisions. P. 310.
Reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. ----. STEVENS, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined, post, p. ----.
John E. Mallard, Fairfield, Iowa, for petitioner.
Gordon E. Allen, for respondents.
Justice BRENNAN delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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