Of the Federal Circuit, sitting by designation. *

Of the District of Puerto Rico, sitting by designation. **

United States Court of Appeals

For the First Circuit

No. 07-2653

DANIEL A. BATTERMAN, ESQ.,

Plaintiff, Appellant,

v.

WILLIAM J. LEAHY, ESQ.; PATRICIA A. WYNN, ESQ.;

MARGARET T. WINCHESTER, ESQ.; and WILLIAM E. SHAY, ESQ.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Boudin and Dyk, Circuit Judges, *

and Dominguez, District Judge. **

Daniel A. Batterman, pro se, with whom Law Offices of Daniel

A. Batterman, Robert C. Horgan and Law Offices of Robert C. Horgan

were on brief for appellant.

Sarah M. Joss, Assistant Attorney General, Trial Division,

with whom Martha Coakley, Attorney General, was on brief for

appellees.

October 15, 2008
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BOUDIN, Circuit Judge. Daniel A. Batterman, a Boston

attorney, brought suit in federal district court against several

individuals associated with the Committee for Public Counsel

Services ("CPCS"). The district court stayed proceedings,

insisting that Batterman resolve his claims, or at least his

leading claim, in state court. Batterman now appeals. The

background events are as follows.

Batterman, a sole practitioner, says that in 1998 he

agreed with CPCS to represent indigent children and parents in

state court juvenile or family matters and thereafter served as

counsel in many CPCS care and protection cases. CPCS is the

Massachusetts state agency that administers the Massachusetts

Children and Family Law Program and compensates attorneys such as

Batterman who accept assignments to represent indigent parties.

See Mass. G.L. c. 211D, § 12. Compensation for this work is fixed

by CPCS' Assigned Counsel Manual, which lays out the billing and

review procedures.

In August 2002, Batterman was appointed to represent two

infant twins who were in the temporary custody of the Department of

Social Services. One of the children died of dehydration soon

after moving to a new foster home, and Batterman represented the

surviving twin in challenging the Department's placement of that

twin. A seven-week trial ensued, and Batterman submitted

timesheets and billing records to CPCS for reimbursement.
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To make an extremely long story short--Batterman's

complaint in the district court is over 100 pages--a prolonged

dispute arose over Batterman's reimbursement requests: Batterman

sought to withdraw from the state proceeding involving the

surviving twin on the ground that he had not been paid; CPCS made

some payments to him for fiscal 2004 but denied others; and when

Batterman submitted new invoices for work in the case completed in

fiscal 2005, CPCS disallowed some of the requested amount and gave

Batterman notice that his three biggest CPCS cases would be audited

by the audit and oversight unit.

Although the CPCS announced the audit on January 7, 2005,

apparently it is still not finished. Batterman claims that CPCS

has de facto revoked his CPCS certification and that he has

suffered grievously from CPCS's disallowances and delays. On

February 20, 2007, sixteen months after receiving assurances that

the audit would be completed promptly, Batterman filed the present

suit against four individuals then associated with CPCS: Chief

Counsel William J. Leahy; his deputy, Patricia A. Wynn; Margaret T.

Winchester, Co-Director of the Children and Family Law Program; and

William E. Shay, Audit Counsel.

The extremely long complaint, in the teeth of the

requirement that claims be set forth concisely, Fed. R. Civ. P.

8(a), is 105 pages followed by attachments, contains nearly seventy

pages of factual recitation. It sets forth twenty-four counts for
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relief under state law and federal civil rights laws, and it seeks

injunctive and declaratory relief, compensatory damages of over a

quarter million dollars, attorneys' fees and unspecified punitive

damages. It contains, as the lawyers say, everything up to and

including the kitchen sink.

About half the claims purport to rest on federal

constitutional law, most importantly, the due process clause of the

Fourteenth Amendment. In particular, Batterman attacks a provision

in the payment manual restricting reimbursable billable hours to

1800 hours in any fiscal year (or 1850 in some years). He also

labels unconstitutional (1) various of the fee reductions imposed

on him, (2) his supposed suspension from new CPCS appointments, (3)

CPCS's failure to provide him help in the infant's case and (4)

CPCS's conduct and delay in completing the audit. The state law

claims range from fraud to civil conspiracy, negligence and chapter

93A, Mass. Gen. Laws ch. 93A, § 2, 11.

The defendants moved to dismiss, urging that the

complaint did not meet pleading rules and asserting various

substantive defects in individual counts. At a hearing on July 18,

2007, the district judge said that the case "might be resolved as

a matter of state law" and implicated "matters that ought be

wrestled with in the first instance by the courts of the

Commonwealth." The judge then sua sponte invoked Pullman
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abstention and ordered the case "administratively closed." See

R.R. Comm'n of Tex. v. Pullman, 312 U.S. 496 (1941).

The court then allowed further briefing but did not alter

its determination to abstain, instead giving Batterman 90 days to

file a state law suit. This court granted Batterman's motion to

stay the 90-day time limit pending this appeal. Batterman now

assails the district court's reliance on Pullman and seeks

reversal. CPCS defendants, seemingly with clenched teeth, defend

the district court's decision to invoke Pullman while also making

clear that they view Batterman's attack on the 1800 hour

compensation limit as frivolous.

On this appeal, a threshold jurisdictional issue arises

since the district court's "administrative closure" is effectively

a record-keeping entry but not a formal judgment disposing of all

claims under the final judgment statute. 28 U.S.C. § 1291 (2000).

However, the final judgment rule is nothing if not malleable; and

under Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712-15

(1996), abstention in favor of a potential state court suit while

the federal action remains in limbo is a permissible basis for an

immediate appeal.

That, alas, is the only easy part of the case. A

kitchen-sink complaint, unless dismissed for some central

jurisdictional or pleading flaw, is likely to be hard slogging,

requiring that counts be worked through one by one. Here, the
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district court's attention was drawn to the first count of the

complaint, attacking the 1800-hour limitation; but that count is

one of many and even if Pullman abstention were suitable for that

count, some of the other counts in Batterman's complaint, which are

substantively quite different, could not even arguably be resolved

by Pullman although they might be deferred.

In all events, Pullman abstention does not apply in this

case. Pullman abstention serves to "avoid federal-court error in

deciding state-law questions antecedent to federal constitutional

issues." Arizonans for Official English v. Arizona, 520 U.S. 43,

76 (1997). Under the doctrine, declining to exercise jurisdiction

is warranted where (1) substantial uncertainty exists over the

meaning of the state law in question, and (2) settling the question

of state law will or may well obviate the need to resolve a

significant federal constitutional question. See Ford Motor Co. v.

Meredith Motor Co., 257 F.3d 67, 71 (1st Cir. 2001).

Although the district court did not explicitly state that

the cap was its focus or specify the nature of the state law issue

that concerned it, both are fairly apparent from context. In his

bench ruling, the district judge referred only to one issue, the

annual cap on reimbursement, which the judge described as "a very

significant matter." Batterman said that the cap was

unconstitutional; the defendants seemingly took the position that
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under state law there was no "property interest" that could trigger

the due process clause.

Under Supreme Court precedent, whether there is a

property interest turns largely on state law. See Bd. of Regents

v. Roth, 408 U.S. 564, 577 (1972); PFZ Properties, Inc. v.

Rodriguez, 928 F.2d 28, 30 (1st Cir. 1991). In all likelihood,

the district court believed that a negative answer–i.e.,that no

property right exists under state law--might moot the federal

question of whether the hours cap violates the federal

constitution. More broadly, as another comment of the district

judge made clear, Batterman's federal law suit appeared to the

judge to be primarily a fight about reimbursement of counsel under

a state scheme and so could be best handled by state courts.

The problem with Pullman abstention here is that the

lawfulness of the cap does not present a significant federal

constitutional issue. There may well be a property interest under

state law comprising an attorney's right to be compensated pursuant

to the manual for work done under the CPCS program--although there

is a possible qualification later to be noted concerning in what

court relief should be sought. But the 1800 hour cap is an

explicit limitation in the manual and this makes the constitutional

claim hopeless.

The CPCS program is at best a commitment to compensate

assigned counsel for work voluntarily undertaken on terms set forth
A lawyer accepting indigent criminal defense work under the 1

CJA program in federal court is limited by statute to a

comparatively modest hourly rate and there is a presumptive cap on

total compensation; although the number of hours can be exceeded by

permission of the court, the per hour cap--which can be equally

harsh in its consequences--cannot be exceeded. 18 U.S.C. §

3006A(d) (2000). Cf. Boivin v. Black, 225 F.3d 36, 41-46 (1st Cir.

2000) (upholding the constitutionality of the Prison Litigation

Reform Act's cap on attorneys' fees).

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by the CPCS; the terms of the commitment include the explicit

limitations in the manual; and any lawyer who takes on such

representation--as Batterman voluntarily did--knows what to expect

in terms of billing and review procedures. There is no right under

state law, property or otherwise, to be paid more than the cap and

so no federal constitutional issue is presented by CPCS's refusal

to do so. Indeed, federal appointment practice has similar

limitations.1

Further, there is no ambiguity with respect to state law

that requires clarification. Under Massachusetts law, assigned

attorneys do not have any entitlement to receive wages for hours

billed over the annual cap on reimbursable hours. See Machado v.

Leahy, 17 Mass. L. Rptr. 263, *8 (Mass. Super. 2004). The manual

is equally explicit on this point. See Assigned Counsel Manual 15

(2005); Assigned Counsel Manual 5:9-10 (1999). "Where there is no

ambiguity in the state statute, the federal court should not

abstain but should proceed to decide the federal constitutional

claim." Wisconsin v. Constantineau, 400 U.S. 433 (1971).
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Batterman's oversized complaint makes clear his contrary

theory: that because he has an ethical duty under state law to

provide zealous representation and that may require more than 1800

hours, the state has a duty to compensate him for whatever hours

are required and that any contract to the contrary is

unconscionable and against public policy. But every lawyer takes

on compensation risks including the possibility that a court may

not let him out of a case even if the client runs short of funds.

See Model Rules of Prof'l Conduct R. 1.16(c); see also Machado, 17

Mass. L. Rptr. at *7 (finding no legal compulsion "where plaintiffs

voluntarily subject themselves to known obligations").

The defendants, who did not propose Pullman abstention,

suggest that somehow Pullman abstention can be justified with

respect to the other constitutional challenges in the complaint.

But their brief makes no serious effort to make out a case for

abstention under Pullman by showing how clarification of a state

law would avoid the need to address such challenges, nor do

defendants invoke any of the other categories of abstention created

by the Supreme Court. See Sevigny v. Emplrs. Ins. of Wausau, 411

F.3d 24, 26 n.2 (1st Cir. 2005). 

Conceivably, the district judge or the defendants could

have built an arguable case for abstention as to certain of the

other counts based on Burford abstention, Burford v. Sun Oil Co.,

319 U.S. 315 (1943), which permits abstention where federal law
A lawyer disappointed by CPCS reimbursement decisions is 2

apparently able to seek judicial review of CPCS's conduct through

an action in certiorari, see Mass. GL. ch. 249 § 4. In fact, other

Massachusetts attorneys have challenged CPCS deductions as takings

and due process violations. See Lewis v. Committee for Public

Counsel Services, 739 N.E.2d 706 (Mass. App. Ct. 2000); Committee

for Public Counsel Services v. Lookner, 716 N.E.2d 690 (Mass. App.

Ct. 1999); Machado, 17 Mass. L. Rptr. at *7-*8.

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suits would unduly disrupt specialized state administrative

schemes. See Chemerinsky, Federal Jurisdiction § 12.2.3 (5th ed.

2007). For CPCS fee disputes, there is an administrative process

with judicial review in state court. But neither the district 2

judge nor the defendants have invoked Burford, and the doctrine's

scope and application are far from straightforward.

Finally, no single abstention doctrine, or probably any

combination of them, would justify abstention for all of the

counts. This is not to say that many (or any) of Batterman’s

counts are promising or even colorable. It is rather that, short

of throwing the case out for pleading violations (which could

perhaps then be remedied anyways), there is no way to avoid claim

by claim analysis, at least of the federal claims. 

So our remand will mean more work, if the case is not

settled, but perhaps less than meets the eye. Batterman's

remaining asserted federal law claims center primarily around

several different and reasonably distinct concerns:

Cthat various disallowances or other

calculations in Batterman's reimbursement

requests were wrongly decided, handled with
Hoffman v. City of Warwick, 909 F.2d 608, 616 (1st Cir. 1990) 3

(quoting Foley v. Carter, 526 F.Supp. 977, 985 (D.D.C.1981). See

also Jordan Hosp., Inc. v. Shalala, 276 F.3d 72, 78 (1st Cir. 2002)

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procedural unfairness, and unreasonably

delayed;

Cthat he has wrongly been excluded from taking

on any new CPCS cases which he describes as a

confiscation of his alleged entitlement to

provide such services;

Cthat the audit process against him is attended

by various procedural and evidentiary missteps and has been unreasonably delayed.

It is open to question whether the last two of these

concerns give rise to any kind of constitutional or other federal

law claim: it is not evident why Batterman would have any protected

interest in the assignment of cases or how the delay in the

auditing has aggrieved him since so far no new disallowance has

apparently been adopted. Admittedly, the merits of these claims

have not been briefed, but the heart of the federal claims may lie

in the first of the three areas.

As to that, Batterman may well have a state-law property

right to reimbursement due to him under the manual--if any is due--

which would be susceptible to federal protection. This court has

said: "The right to a salary for work performed at the rate

admittedly effective during the period when the work was performed

is a right or property interest, a legitimate entitlement which

qualifies for protection against governmental interference under

the Due Process Clause of the Fifth Amendment." But the extent of 3
(assuming, without deciding, "a legitimate property interest in

receiving reimbursement payments").

Williamson County v. Hamilton Bank, 473 U.S. 172, 192-96 4

(1985); Parratt v. Taylor, 451 U.S. 527 (1981); Chemerinsky,

Federal Jurisdiction, supra, § 8.4, 499 ("In non-civil rights

litigation, a plaintiff must exhaust state administrative remedies

. . . ."). 

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this right is far from clear, and it cannot be that every

calculational error or delay in payment under a state contract

results in a federal constitutional violation.

Moreover, there may be another problem. Burford aside,

there is no automatic requirement that state remedies be exhausted

for traditional civil rights claims brought under section 1983 or

allied statutes. Guerro v. Mulhearn, 498 F.2d 1249, 1252 (1st Cir.

1974). But where property interests are at stake rather than

personal liberties, something like an exhaustion doctrine has

developed in certain circumstances--the premise being that no

deprivation exists where state law provides an adequate remedy.

Examples are eminent domain takings or deprivation of property in

prisons.4

Of course, this assumes a real rather than a nominal

remedy, and endless delay might, as with ordinary exhaustion,

provide an escape. Cf. Safeway Stores v. Brown, 138 F.2d 278, 280

(Emer. Ct. App. 2000). But this in turn poses the question whether

a supplicant might not also be required to seek mandamus from the

state court to compel agency action unduly delayed. And--
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Massachusetts law may provide such a remedy. Trust Insurance

Company v. Commissioner of Insurance, 724 N.E.2d 710, 714 (Mass.

App. Ct. 2000). The defendants doubtless have some explaining to

do as to the delay; the question is, to whom in the first instance?

No exhaustion or like requirement exists as to

Batterman's main state-law claims but, if the federal claims were

disposed of on the papers, the district court would likely decline

to exercise pendent jurisdiction over the state-law claims, 28

U.S.C. § 1367 (2000). And some of the state claims or remedies

sought may be vulnerable to qualified immunity defenses or, where

effectively for money due properly from the state, to possible

Eleventh Amendment objections. This is a case that could probably

be pared rapidly down to size.

In all events, Batterman’s attack on the cap is meritless

and his present hope of a vast monetary recovery may well be

dubious. At the same time, he may be owed something under the

manual and an agency cannot easily explain why it takes years for

it to decide about reimbursement for past work. Both sides ought

to consider whether this case can be resolved by discussion and

without further litigation.

The district court's decision abstaining on grounds of

Pullman abstention is vacated and the matter remanded for further

proceedings consistent with this decision. Each side will bear its

own costs on this appeal.
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It is so ordered.