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SELTZER v. FOLEY

December 8, 1980

Norma SELTZER and Margarita Torres-Cartagena, Plaintiffs,
v.
William E. FOLEY et al., Defendants



The opinion of the court was delivered by: POLLACK

The plaintiffs seek a declaratory judgment and an injunction against the Director of the Administrative Office of the United States Courts to prevent him from certifying Spanish/English interpreters for the United States Courts on the basis of the written examinations he utilizes to determine the qualifications of applicants for such certification. The nub of plaintiffs' claim is that the examination administered, tests applicants on language proficiency unrelated to anything encountered normally in a courtroom by bilingual interpreters, uses inaccurate and invalid criteria and fails to take into consideration the statutory obligation to consider "education, training and experience". Plaintiffs, two independent consultants, who have for many years performed Spanish/English interpreting services to the satisfaction of judges and lawyers, have taken the written examination twice and failed to pass it.

An application for a temporary restraining order was denied on November 14, 1978 and a hearing for a preliminary injunction as well as a trial of the merits has been held. *fn1" The Director presented evidence which established that the test was soundly formulated by experts, suitable for the statutory purposes sought to be achieved and rationally related thereto and fairly administered; that in carrying out his statutory mandate under the Court Interpreters Act of 1978, 28 U.S.C. § 1827, et seq., his procedure was neither arbitrary nor capricious.

 At the conclusion of the hearing and trial, the Court made basic findings of fact pursuant to Rule 52(a) on the substance of the claims and denied the requested injunction and ordered the complaint to be dismissed and judgment entered pursuant to Rule 58, leaving it to a later supplement and opinion to be filed to deal with other matters.

 Jurisdiction

 At the threshold, the Director moved to dismiss this suit for lack of subject matter and personal jurisdiction. The relief sought herein is neither certification nor money damages, but only a declaration that the Director's actions have not comported with the statute, an injunction undoing the certifications made to date under the examinations conducted and a mandatory injunction to establish a new certification program in conformity with the Act.

 Judicial immunity and sovereign immunity urged by the government against proceeding with this suit, appear to be inapplicable concepts here. There is no real interference with or questioning of any judicial function or act. Moreover, even as to judges, it has been held in numerous cases, that immunity does not extend to injunctive relief. Person v. Association of the Bar of the City of New York, 554 F.2d 534, 537 (2d Cir. 1977). Sovereign immunity has two exceptions which could apply in this case if the terms of the complaint could be factually sustained. "Those exceptions are (1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void." Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 1006, 10 L. Ed. 2d 15 (1962).

 Plaintiffs' allegations in the complaint that a government official had acted unconstitutionally to deprive them of a liberty interest and of procedural due process, thereby raised a substantial federal question within the subject matter jurisdiction of the federal courts. 28 U.S.C. § 1331 (Supp.1980); Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946). *fn2"

 The government further contended that there is an absence of personal jurisdiction over the Director and that 28 U.S.C. § 1391(e) does not avail plaintiffs herein to establish the Southern District of New York as a permissible venue for this suit. The government relied by analogy on Liberation News Service v. Eastland, 426 F.2d 1379, 1384 (2d Cir. 1970), a suit against 10 United States Senators and the Senate Committee's Chief Counsel, none residents of New York. The Court of Appeals concluded that Congress intended Section 1391(e) to apply only to the executive branch. The Court stated:

 
The officers and employees of the United States who were made reachable by § 1391(e) were the same types of officers or employees who could be compelled to perform a duty to the plaintiff under § 1361. (Id. at 1384).

 The government argued that this holding that Section 1391(e) is inapplicable to congressional officials applies also to officials of the judiciary as was held by the Fifth Circuit in Duplantier v. United States, 606 F.2d 654, 661 (5th Cir. 1979). In that case a suit was dismissed for lack of personal jurisdiction as to the Judicial Ethics Committee of the Judicial Conference, Judge Edward Allen Tamm, the committee chairman and clerks of all United States courts, on the ground that Section 1391(e) is inapplicable to such judicial personnel who were performing a "judicial administrative function".

 The response of the plaintiffs to the holding in Duplantier was two-fold. They called attention to the fact that the Fifth Circuit nonetheless permitted the suit to be continued against the United States and the Attorney General for a ruling on the merits. Plaintiffs said that a ruling rejecting personal jurisdiction under § 1391(e) "would likely be fatal to plaintiffs' lawsuit because plaintiffs' limited resources make pursuit of the action in Washington unlikely."

 The second point made by plaintiffs on the issue of personal jurisdiction was that the role of the Director and his office is purely administrative and non-judicial.

 It cannot fairly be urged that we are not dealing with an arm of the judiciary. The office of which Mr. Foley is the Director is the "Administrative Office of the United States Courts"; it was so constituted and entitled by the Congress, 28 U.S.C. §§ 601, 604. The interpreters who are to be certified by the Director are to be used "in courts of the United States". 28 U.S.C. § 1827(a). The interpreters certified are not divorced from direct involvement in the disposition by the courts of their judicial business. Clearly the Director is called upon to perform a judicial administrative function in certifying interpreters for the disposition of judicial business by the federal courts, in the same sense of judicial administration that the designee of the Judicial Conference of the United States, Judge Tamm, performed his function in developing reporting forms and promulgating necessary regulations and receiving the financial reports of members of the federal judiciary, pursuant to the Ethics in Government Act of 1978, 28 U.S.C.App. I, § 301 et seq.

 The objection of the government of lack of personal jurisdiction of the Director was, during the trial, withdrawn and waived but solely for the purposes of this suit and without prejudice in any other matter.

 The Propriety of the Certification Procedure

 Plaintiffs' challenge to the Court interpreters certification procedure falls into three areas:

 
(1) they attack the decision to screen out candidates based on the first part of the test, the written proficiency test;
 
(2) they attack the written examination itself as designed to test archaic and esoteric matters that do not confront bilingual interpreters in federal court proceedings; and
 
(3) they assert that certain individuals improperly received preferred treatment and status.

 The Statute Involved

 Passed in 1978, the Act sought to systematize the selection and appointment of Court Interpreters and directed the Administrative Office to devise a certification procedure;

 
(a) The Director of the Administrative Office of the United States Courts shall establish a program to facilitate the use of interpreters in courts of the United States.
 
(b) The Director shall prescribe, determine, and certify the qualifications of persons who may serve as certified interpreters in courts of the United States in bilingual proceedings and proceedings involving the hearing impaired (whether or not also speech impaired), and in so doing, the Director shall consider the education, training, and experience of those persons. The Director shall maintain a current master list of all interpreters certified by the Director and shall report annually on the frequency of requests for, and the use and effectiveness of, interpreters. The Director shall prescribe a schedule of fees for services rendered by interpreters.

 28 U.S.C. § 1827.

 The procedure which the Director followed in prescribing, determining and certifying the qualifications of persons who may serve as certified interpreters in courts of the United States in bilingual proceedings was substantially the following.

 Mr. Jon Leeth, the Chief of the Court Interpreters Unit of the Director's office, undertook a broad scale study of the problem of interpreting needs of the federal courts. The purpose was to identify the manner in which interpreting was being conducted, the capabilities in use, the needs of the ...


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