PENNSYLVANIA BUREAU OF CORRECTION, PETITIONER V. UNITED STATES
MARSHALS SERVICE, ET AL.

   No. 84-489

   In the Supreme Court of the United States

   October Term, 1984

   On Writ of Certiorari to the United States Court of Appeals for the
Third Circuit

   Brief for the Federal Respondent

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
   Summary of argument
   Argument:
      Petitioner's obligation as the custodian to produce
      state prisoners in court pursuant to a writ of habeas
      corpus ad testificandum cannot be shifted to the
      United States Marshals Service
      A. As the custodian, the state is required to produce
      a state prisoner in court pursuant to a writ of
      habeas corpus ad testificandum
      B. The magistrate lacks authority to shift from
      petitioner to the federal government the obligation
      of bringing state prisoners to court
      1. The All Writs Act does not authorize the
      magistrate to require the Marshal rather
      than the state to transport state prisoners
      to court
      2. The statute governing the Marshals Service
      does not authorize the magistrate to require
      the Marshal to transport state prisoners to
      court
      3. Requiring the Marshals Service to transport
      state prisoners would impose a significant
      burden on the federal government
      C. Although petitioner is obligated to produce its
      prisoners in court, the parties to the underlying
      civil rights action may be required to provide
      reimbursement to petitioner for its expenses
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 4a-45a) is reported
at 737 F.2d 1283.  The opinions of the magistrate (Pet. App. 46a-64a;
J.A. 22a-35a) are unreported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App;  1a-3a) was entered
on June 27, 1984.  The petition for a writ of certiorari was filed on
September 24, 1984, and was granted on February 19, 1985.  The
jurisdiction of this Court rests upon 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   1. 28 U.S.C. 2241 provides in pertinent part:

         (c) The writ of habeas corpus shall not extend to a prisoner
      unless --

         (5) It is necessary to bring him into court to testify or for
      trial.

   2. 28 U.S.C. 2243 provides in pertinent part:

         The writ * * * shall be directed to the person having custody
      of the person detained.

                      * * * * *

         (The) person to whom the writ is directed shall be required
      to produce at the hearing the body of the person detained.

   3. 28 U.S.C. 1651 provides in pertinent part:

         (a) The Supreme Court and all courts established by Act of
      Congress may issue all writs necessary or appropriate in aid of
      their respective jurisdictions and agreeable to the usages and
      principles of law.

   4. 28 U.S.C. 567 provides in pertinent part:

         Under regulations prescribed by the Attorney General, each
      United States marshal shall be allowed --

         (2) the expense of transporting prisoners, including the cost
      of necessary guards and the travel and subsistence expense of
      prisoners and guards * * *.

   5. 28 U.S.C. 569 provides in pertinent part:

         (a) The United States marshal of each district is the marshal
      of the district court * * * and may, in the discretion of the
      respective courts, be required to attend any session of court.

         (b) United States marshals shall execute all lawful writs,
      process and orders issued under authority of the United States,
      * * * and command all necessary assistance to execute their
      duties.

         (c) The Attorney General shall supervise and direct United
      States marshals in the performance of public duties and
      accounting for public moneys.  Each marshal shall report his
      official proceedings, receipts and disbursements and the
      condition of his office as the Attorney General directs.

                          QUESTION PRESENTED

   Whether the magistrate erred in requiring the United States
Marshals Service to transport state prisoners to the federal
courthouse to testify in an action brought by one of the state
prisoners against county officials under 42 U.S.C. 1983.

                               STATEMENT

   1. In June 1980, Richard Garland brought suit under 42 U.S.C. 1983
against various Philadelphia County officials in the United States
District Court for the Eastern District of Pennsylvania.  In his
complaint, Garland alleged that, while in state custody on April 23,
1980, he had been beaten and harassed by the defendant deputy sheriffs
and prison guards because he was a member of the John Africa MOVE
organization in Philadelphia.  Garland contended that the alleged
incidents violated his constitutional rights, and he sought $3 million
in damages.  See J.A;  9a-19a.

   With the consent of the parties, the district court assigned the
action to a magistrate for disposition on the merits pursuant to 28
U.S.C. 636(c)(1).  See J.A. 22a n.1.  The magistrate granted Garland's
application to proceed in forma pauperis (see J.A. 20a-21a;  Order of
June 18, 1980).

   2. At the time this lawsuit was initiated, Garland was confined in
the Philadelphia County jail;  petitioner Pennsylvania Bureau of
Correction subsequently transferred him to a state prison.  See Pet.
Br. 6 n.2.  In 1981, the magistrate ordered that the warden of the
state facility produce Garland in court for conferences in the case
(see Orders of Jan. 28 and Mar. 16, 1981), and petitioner intervened
to argue that the United States Marshals Service rather than the State
must bear the responsibility for producing Garland in court (see C.A.
App. 12-22).

   In December 1982, the magistrate, acting upon Garland's petition
(see C.A. App. 23-38), granted writs of habeas corpus ad testificandum
for the production at trial of Garland and four other state prisioners
whom Garland identified as proposed witnesses (see J.A. 22a-41a).  The
writs were addressed to the state custodians of these prisoners and to
the United States Marshal;  they required that the state prison
officials transport the five state inmates from their institutions of
confinement to the county jail nearest the federal courthouse in
Philadelphia and that the United States Marshal transport the inmates
from the county jail to the federal court and maintain custody of them
during the trial (id. at 35a, 36a-41a).

   The Marshal intervened and moved for reconsideration of that
portion of the magistrate's order that directed him to transport the
state prisoners from the county jail to the federal courthouse and
guard them during trial (see C.A. App. 50-58).  On February 10, 1983,
the magistrate denied the motion to reconsider (Pet. App. 46a-65a).
The magistrate acknowledged that the historical practice in the
Eastern District of Pennsylvania was that the Marshal was not
responsible for the transportation of state prisoners in connection
with private civil rights actions (id. at 48a, 50a-51a, 56a, 58a).
Nevertheless, the magistrate concluded that 28 U.S.C. 569(b)
authorized him, in issuing a writ of habeas corpus ad testificandum,
to require the Marshal to take custody over state prisoners outside
the federal courthouse and to transport them to court (Pet. App.
51a-65a).

   3. On the Marshal's appeal from the denial of reconsideration, /1/
the court of appeals reversed in part and affirmed in part (Pet. App.
4a-45a).  /2/ Relying on its earlier decision in Story v. Robinson,
689 F.2d 1176 (3d Cir. 1982), the court of appeals held that district
courts (and therefore magistrates) have no general statutory authority
to impose upon a non-custodian the obligation to produce a prisoner in
court pursuant to a writ of habeas corpus ad testificandum, and thus
the Marshal cannot ordinarily be required to transport state prisoners
from state or county facilities to the federal courthouse.  It also
held that, as part of his responsibility for courthouse security, the
Marshal could be ordered to take custody over state prisoners while
they are in the federal court.  Finally, the court of appeals held
that, incident to that security responsibility, the Marshal could be
directed to take custody of state prisoners outside the federal
courthouse and transport them to court if the trial judge "makes a
specific finding that special security circumstances exist which
require an order that state prisoner witnesses be taken into the
Marshal's custody at a situs away from the federal courthouse (Pet.
App. 22a-23a).  Since there was no general statutory authority to
require the Marshal to transport state prisoners, and since the
magistrate had made no finding of special security circumstances in
this case, the court of appeals reversed the magistrate's order
insofar as it obligated the Marshal to assume custody of the state
prisoners outside the courthouse and transport them to court.  /3/

                          SUMMARY OF ARGUMENT

   Under settled principles, it is the obligation of the custodian to
produce its prisoners in court pursuant to a writ of habeas corpus ad
testificandum.  Such was the custodian's duty at common law, and it is
continued by the express terms of the federal habeas corpus statute.
Where a district court properly concludes that the burden and security
problems involved in the production are outweighed by the need for a
prisoner's appearance, the custodian must comply with the writ by
bringing the prisoner to court.  This responsibility is justified by
the public duty -- borne by all in furtherance of the overriding
societal interest in an effective system of justice -- to provide
evidence in one's possession regardless of expense or inconvenience.

   Without disputing these principles, petitioner contends that the
magistrate has authority to relieve it of the custodian's traditional
obligation of production and to shift that responsibility to the
United States Marshals Service.  However, the federal government is a
stranger to this litigation;  it does not have custody of the
prisoners and is not involved in the underlying civil rights action in
which the prisoners' testimony is sought.  There is no basis to impose
upon the United States the duty to assist the State in transporting
state prisoners in connection with a lawsuit under 42 U.S.C. 1983
against officials of a county of the State for acts done under color
of state law.

   In effect, petitioner's argument is an attempt to exploit the "deep
pocket" of the United States.  The issue raised presents a controversy
between the State and the federal government over the operation of the
Marshals Service and the expenditure of federal funds for the
transportation of state prisoners.  In light of principles of federal
sovereign immunity and separation of powers, the requisite authority
for the order sought by petitioner must be clearly expressed before a
court may grant such relief against the Executive Branch.

   Contrary to petitioner's contention, the All Writs Act does not
authorize the magistrate to require the Marshal rather than the state
custodian to transport state prisoners in this case.  The Act allows a
court to utilize a writ not provided for by statute if its issuance is
necessary or appropriate to the exercise of the court's jurisdiction
and agreeable with the principles and usages of law.  As illustrated
by the cases upon which petitioner relies, the Act is a residual
source of authority for courts to fill in procedural interstices not
covered by specific provisions.  Where a legal rule or doctrine
specifically addresses the matter, however, it is controlling, and the
general All Writs Act cannot be used to circumvent or contravene
otherwise applicable legal requirements.  This limitation is
especially appropriate here, since the Judiciary Act of 1789 codified
in the same section the ad testificandum writ and the all writs
provision for "other writs not specially provided for by statute."
Because the writ of habeas corpus ad testificandum constitutes the
established means for obtaining the presence of a prisoner in court,
the All Writs Act is not properly invoked in this case to displace
that traditional form of process,

   Likewise, the statute governing the Marshals Service does not
authorize the magistrate to direct the Marshal to undertake the
transportation of state prisoners.  Neither the section providing for
the Marshal to execute lawful judicial process, nor the section
allowing the Marshal to use appropriated federal funds for
transporting prisoners, is applicable here.  Those provisions do not
themselves confer authority on the courts to compel the Marshal to
act, but rather come into play only where there is an independent
source of such authority.  In the absence of some other legal basis
for imposing the transportation duty on the Marshal, these provisions
are inapposite and do not support the magistrate's order.  Indeed, the
Marshals Service, in its regulations and operating manuals, has
specifically concluded that the state and not the Marshal is
responsible for the production of state prisoners in the circumstances
of this case, and the Service's interpretation of its own authority
should be given substantial deference.

   Accordingly, the obligation to produce the requested state
prisoners in court rests on petitioner as their custodian and cannot
be shifted to the Marshal.  However, while the expenses of complying
with this obligation would fall on petitioner in the first instance,
it is possible that the parties to the underlying civil rights action
may be required to provide reimbursement to petitioner for those
expenses.  Although resolution of this issue is not necessary for the
Court's disposition of the question presented here, we outline our
preliminary analysis of this matter to make clear that rejection of
petitioner's position does not mean that it will ultimately have to
bear the costs of production.

                               ARGUMENT

 PETITIONER'S OBLIGATION AS THE CUSTODIAN TO PRODUCE STATE PRISONERS
IN COURT PURSUANT TO A WRIT OF HABEAS CORPUS AD TESTIFICANDUM CANNOT
BE SHIFTED TO THE UNITED STATES MARSHALS SERVICE

   The issue in this case is whether the United States Marshals
Service can be required to transport state prisoners to court pursuant
to a writ of habeas corpus ad testificandum in an action under 42
U.S.C. 1983.  Relying on the fact that it is not a party to the
underlying civil rights suit, petitioner contends that the magistrate
has authority to relieve it of the traditional responsibility of a
custodian for producing its prisoners in court and to impose that
obligation on the federal government rather than the State.

   However, the duty of bringing prisoners to court pursuant to the
writ and testificandum devolves upon the custodian not because of its
relation to the lawsuit in which the prisoners' testimony is sought,
but because of its control over those in its confinement.  The fact
that state officials are not parties to the litigation does not
detract from the established requirement that the state custodian
comply with the ad testificandum writ.  Contrary to petitioner's
formulation, analysis of the question presented in this case does not
depend upon the fortuity that a state official is a party.  /4/

   Nor is it correct that the State is, as petitioner seeks to portray
it, a stranger to the underlying Section 1983 action.  That litigation
concerns charges by a state prisoner against officials of a county of
the State for acts done under color of state law.  Moreover, the State
has a penal interest in the continued incarceration of the plaintiff
and those of his witnesses who are state prisoners.  Although state
officials are not party defendants, the State can scarcely be
considered to be a disinterested and remote bystander.

   Rather, it is the United States that is the true stranger to the
proceeding.  The federal government neither is the custodian of the
prisoners in question nor has any involvement in the civil rights
suit.  Its only relation to this case is that the plaintiff filed his
complaint in federal court.  But the action could equally well have
been brought in state court (see Maine v. Thiboutot, 448 U.S. 1, 3 n.1
(1980)), in which event it would be frivolous to argue that the United
States has any obligation to participate in transporting state
prisoners.  That Congress has provided a forum for the resolution of
disputes under 42 U.S.C. 1983 should hardly subject the United States
to the duty of assisting the State in transporting state prisoners in
connection with a lawsuit to which the federal government is not a
party.  The obligation to produce its prisoners in court pursuant to
the ad testificandum writ rests on petitioner as the custodian, not on
the United States Marshals Service.

 A. As The Custodian, The State Is Required To Produce A State
Prisoner In Court Pursuant To A Writ Of Habeas Corpus Ad Testificandum

   As the Court has recognized, habeas corpus encompasses a number of
different forms of writs that each serve a specific function.  See
Carbo v. United States, 364 U.S. 611, 614-615 (1961);  Ex parte
Bollman, 8 U.S. (4 Cranch) 75, 95-98 (1807) (Marshall, C.J.).
Involved in this case is the writ of habeas corpus ad testificandum --
literally, "you have the body to testify." Black's Law Dictionary 639
(5th ed. 1979).

   At common law, the writ of habeas corpus ad testificandum was used
"'to remove a prisoner, in order to * * * bear testimony, in any court
* * *.'" Ex parte Bollman, 8 U.S. (4 Cranch) at 98, quoting 3 W.
Blackstone, Commentaries *129.  "This writ is a command of the court
directing the person having custody of the person to bring the
prisoner before the court for the purpose of testifying." 4A J. Moore
& J. Lucas, Moore's Federal Practice Paragraph 30.56, at 30-82 to
30-83 (2d ed. 1983) (footnote omitted);  see also, e.g., Gilmore v.
United States, 129 F.2d 199, 202 (10th Cir.), cert. denied, 317 U.S.
631 (1942) ("(i)its object is to direct the custodian of a desired
witness who is incarcerated to bring such witness into court to give
testimony").

   The purpose of this common law writ was

      analogous to that sought to be attained by directing a subpoena
      duces tecum to the custodian of an evidential document * * *.
      "If the desired witness is confined in jail * * * (,however,) a
      subpoena would be of no avail, since he could not obey it and
      his custodian would still lack authority to bring him.
      Accordingly a writ to the custodian is necessary, ordering the
      prisoners to be brought to give testimony."

   In re Thaw, 166 F. 71, 74-75 (3d Cir. 1908);  see also 8 Wigmore on
Evidence Section 2199 (McNaughton rev. ed. 1961).

   The common law writ of habeas corpus ad testificandum was codified
in Section 14 of the Judiciary Act of 1789, ch. 20, 1 Stat. 81-82,
which provided for issuance of the writ with respect "to prisoners in
goal * * * where they * * * are necessary to be brought into court to
testify." See Ex parte Bollman, 8 U.S. (4 Cranch) at 94, 99;  Ex parte
Dorr, 44 U.S. (3 How.) 103, 105 (1845).  Statutory authorization for
the ad testificandum writ has existed since that time, and the current
habeas corpus statute provides that the writ shall "extend to a
prisoner * * * (where i)t is necessary to bring him into court to
testify * * *." 28 U.S.C. 2241(c)(5).  See United States v. Mauro, 436
U.S. 340, 357 (1978);  Barber v. Page, 390 U.S. 719, 724 (1968).

   In line with its common law antecedents, the habeas corpus statute
states that the writ "shall be directed to the person having custody
of the person detained." 28 U.S.C. 2243.  In addition, it specifically
provides that "the person to whom the writ is directed shall be
required to produce at the hearing the body of the person detained."
Ibid.  Thus, the plain language of the habeas corpus statute
recognizes the mandatory and nondelegable duty of the custodian to
bring its prisoners to court.  See also Fed.R.Civ.P. 81(a)(2) ("(t)he
writ of habeas corpus * * * shall be directed to the person having
custody of the person detained * * *");

   Fed.R.Crim.P. 15(b) (with respect to a deposition in a criminal
case, "(t)he officer having custody of a defendant shall * * * produce
him at the examination * * *").  /5/

   Issuance of a writ of habeas corpus ad testificandum is in the
discretion of the trial court.  See, e.q., Pollard v. White, 738 F.2d
1124, 1125 (11th Cir. 1984), cert. denied, No. 84-5420 (Jan. 7, 1985);
 United States, v. $64,000.00 in U.S. Currency, 722 F.2d 239, 246 (5th
Cir. 1984);  Jerry v. Francisco, 632 F.2d 252, 255-256 (3d Cir. 1980);
 see also Price v. Johnston, 334 U.S. 266, 284-285 (1948).  As these
cases indicate, among the factors to be considered are the relevance
and importance of the testimony to the litigation, the necessity to
present the evidence in the form of live testimony rather than through
an alternative method such as deposition or affidavit, and the
expense, inconvenience, and possible danger or security risk that
would be involved in transporting and guarding the prisoner.  A writ
ad testificandum will not be issued for prisoners whose presence would
be unduly burdensome or dangerous, whose evidence would not be
significant to the resolution of the lawsuit, or whose testimony would
be cumulative and repetitive.  /6/

   Where a trial court properly concludes that the burden of producing
the prisoner is outweighed by the need for the prisoner's appearance,
the custodian must comply with the writ by bringing the prisoner from
his place of confinement to the courthouse.  This duty is justified by
"the longstanding principle that "the . . . public has a right to
every man's evidence.'" Branzburg v. Hayes, 408 U.S. 665, 688 (1972)
(citations omitted).  "It is beyond dispute that there is in fact a
public obligation to provide evidence * * * and that this obligation
persists no matter how financially burdensome it may be." Hurtado v.
United States, 410 U.S. 578, 589 (1973) (footnote omitted).  The
expense incurred by the custodian in making available evidence in its
possession -- here, the prisoner himself -- represents a
responsibility that is indispensable to our system of justice;  it is
neither more nor less than a "'necessary contribution * * * to the
welfare of the public.'" Ibid;  (citation omitted).  Especially given
the custodian's penal interest in the confinement of the prisoner,
there is nothing unfair or inappropriate in charging the custodian
with this commitment.

   In light of the theory of the writ, its common law origins, and the
plain language of 28 U.S.C. 2243, it is clear that a writ of habeas
corpus and testificandum is properly addressed to the custodian of a
prisoner and that the custodian is obligated to produce the prisoner
in court pursuant to the writ.  See McGee v. Rankin, 584 F.Supp. 1202,
1205 (W.D. Ark. 1984), appeal pending sub nom.  Arkansas Dep't of
Corrections v. United States Marshals Service, No. 83-3138-WA (8th
Cir.).  Here, petitioner does not contend that a state is immune from
a federal writ of habeas corpus ad testificandum for a witness in its
custody.  Cf. Hutto v. Finney, 437 U.S. 678, 695-696 & n.24 (1978);
Edelman v. Jordan, 415 U.S. 651, 669 (1974);  Fairmont Co. v.
Minnesota, 275 U.S. 70, 74 (1927).  Nor does it contend that the writs
in this case were erroneously issued.

   However, relying on Carbo v. United States, supra, petitioner does
suggest (Pet. Br. 30-36) that the provisions in 28 U.S.C. 2243 that
direct the custodian to produce the prisoner in court do not apply to
the ad testificandum writ and are limited to the writ of habeas corpus
ad subjiciendum -- the "Great Writ" that is used to release a prisoner
from unlawful custody (see Carbo, 364 U.S. at 614-615).  Historically,
the relevant language was first adopted in the Act of Feb. 5, 1867,
ch. 28, Section 1, 14 Stat. 385-386, which authorized federal courts
to grant writs of habeas corpus ad subjiciendum on behalf of state
prisoners restrained in violation of the Constitution or laws of the
United States.  See, e.g., P. Bator, P. Mishkin, D. Shapiro & H.
Wechsler, Hart and Wechsler's The Federal Courts and the Federal
System 1425 (2d ed. 1973).  In the statutory recodification of 1875,
these provisions were integrated into the Judicial Code without
restriction and applied to all forms of the writ of habeas corpus.
Rev. Stat. Sections 755, 758 (1875 ed.).  This structure was preserved
in the 1948 recodification that is now contained in 28 U.S.C. 2243.
Act of June 25, 1948, ch. 646, Section 1, 62 Stat. 965.  See generally
Carbo, 364 U.S. at 615-619.

   Contrary to petitioner's suggestion, this history does not indicate
that the writ of habeas corpus ad testificandum is not properly
directed to the custodian.  Indeed, the very purpose of the writ is to
produce the incarcerated prisoner in court, and it is the custodian --
and only the custodian -- that, by virtue of its control over the body
of the prisoner, has the authority to comply with the order.
Moreover, the common law imposed on the custodian the duty to bring
the prisoner into court pursuant to the writ ad testificandum, and
petitioner does not argue that the provisions in Section 2243 were
intended fundamentally to alter the nature and operation of the writ.
The statutory language is consistent with the basic rationale and
common law requirements of the writ, and there is simply no basis in
the historical development of the statute to infer that it should be
read, as petitioner urges, in a way that is irreconcilably at odds
with its terms, purpose, and common law roots.  See Hart and
Wechsler's The Federal Courts and the Federal System, supra, 15 1425
(the 1867 Act "prescribed the procedure on the writ * * * (which) in
terms later applied to all cases of its use * * *").

   Nor does this Court's decision in Carbo compel a different
conclusion.  In Carbo, the Court held that the provision that "(w)rits
of habeas corpus may be granted by * * * (courts) within their
respective jurisdictions" (28 U.S.C. 2241(a)) imposes a territorial
limitation on the issuance of the Great Writ but not on the writ of
habeas corpus ad prosequendum.  In reaching this result, the Court
found from the history of the habeas corpus statute that the
territorial limitation was intended to apply exclusively to the Great
Writ (364 U.S. at 615-619), that the statute specifically so provided
until the 1948 recodification, which did not change prior law (id. at
618-619), and that this construction of the statute was consistent
with longstanding procedures and common law requirements applicable to
the writ ad presequendum (id. at 620).  Thus, in Carbo, the Court
concluded that the congressional development and common law background
of the habeas corpus act provided affirmative evidence that the
literal language of the statute should not be understood to restrict
the availability of the writ ad prosequendum.  Here, on the other
hand, the language of 28 U.S.C. 2243 is in full accord with the
purpose and common law requirements of the writ ad testificandum.
Surely nothing in Carbo forecloses the conclusion that -- consistently
with the text of Section 2243 and the rationale and common law
operation of the writ -- it is the custodian of the prisoner that is
required to comply with the writ of habeas corpus ad testificandum.

   In view of the foregoing, the writs ad testificandum in this case
were properly addressed to petitioner as the custodian of the
prisoners in question, and petitioner was obligated to produce the
prisoners in court pursuant to the writs.  The sole question presented
here is whether the magistrate erred in relieving petitioner of that
lawful obligation by imposing it instead on the federal government.
For the reasons to be discussed in Part B, the magistrate had no
authority to shift the responsibility of production to the United
States.

   However, while petitioner has the duty to comply with the writs by
producing the prisoners in court, that does not mean it must
ultimately bear the expense of that production.  Rather, as we shall
outline in Part C, it is possible that at least a portion of that cost
should be defrayed by the parties in the underlying civil rights
litigation for which the testimony of the prisoners is sought.
Regardless of any such allocation, though, there is no legal basis for
requiring the federal government rather than petitioner to comply with
the writs in the first instance by bringing the prisoners to court.

 B. The Magistrate Lacks Authority To Shift From Petitioner To The
Federal Government The Obligation Of Bringing State Prisoners To Court

   In an effort to avail itself of the "deep pocket" of the United
States (Pet. App. 9a), petitioner seeks to avoid its traditional
obligation of complying with the writ of habeas corpus ad
testificandum and to shift to the federal government the
responsibility for transporting state prisoners to court.  As Judge
Gibbons noted in the lead opinion below (id. at 10a), "(a)bsent
statutory authorization, what (petitioner) proposes is a raid in its
interest on the United States Treasury."

   The question of the authority of the magistrate to impose this
obligation on the United States Marshals Service must be analyzed in
light of general principles of sovereign immunity and separation of
powers.  The issue before the Court involves a controversy between
petitioner and the federal government over the proper functioning of
the Marshals Service and the payment of the costs of transporting
state prisoners.  Under principles of sovereign immunity, however,
petitioner cannot resort to the courts to obtain a judgment that
either would "'interfere with public administration'" of the federal
government and "'compel it to act'" or would "'expend itself on the
public treasury.'" Dugan v. Rank, 372 U.S. 609, 620 (1963) (citations
omitted).  See also, e.g., Pennhurst State School & Hospital v.
Halderman, No. 81-2101 (Jan. 23, 1984), slip op. 10-11 & n.11;  Hawaii
v. Gordon, 373 U.S. 57, 58 (1963).  /7/ Nor can these principles be
avoided by the expedient of requesting otherwise proscribed relief
against the United States incident to an underlying lawsuit to which
the government is not a party.  /8/

   Similarly, under the doctrine of separation of powers, the
judiciary does not have a roving commission to order the Executive
Branch to provide assistance to private litigants in federal court or
otherwise to act in accordance with a judge's conception of desirable
social policy.  /9/ Such an order would improperly intrude on the
operations of a co-ordinate branch of government and, in the
circumstances of this case, would constitute an undeniable attempt to
require the expenditure of federal funds in lieu of state outlays.
While Congress undoubtedly has the power to prescribe the duties of
the Marshals Service (see, e.g., 28 U.S.C. 569), a court cannot levy
responsibilities on the Marshal in the absence of affirmative legal
authorization.  As explained in the lead opinion in the court of
appeals (Pet. App. 17a), there is no basis to "permit district courts
to impose the expenses of litigation upon the Treasury of the United
States whenever that seemed to the court to be a good idea.  Both
common sense and appropriate concern for separation of powers caution
against such an arrogation of judicial power."

   In view of these considerations, we submit that a clearly expressed
source of authority is necessary for the magistrate to order the
Marshal to transport state prisoners.  See, e.g., Ruckelshaus v.
Sierra Club, 463 U.S. 680, 685-686 (1983).  It is not enough that no
provision of law prohibits the Marshal from transporting state
prisoners;  rather, there must be affirmative authorization for the
magistrate's directive to the Marshal.  See, e.g., United States v.
MacCollom, 426 U.S. 317, 321 (1976) (plurality opinion).  As we now
discuss neither of the provisions upon which petitioner relies -- the
All Writs Act (28 U.S.C. 1651) and the Marshals statute (28 U.S.C.
567, 569) -- suffices to carry its burden of showing the existence of
the requisite authority.

 1. The All Writs Act Does Not Authorize The Magistrate To Require The
Marshal Rather Than The State To Transport State Prisoners To Court

   As authority for the magistrate's order, petitioner places
principal reliance on the All Writs Act (28 U.S.C. (1651).  /10/ In
essence, petitioner asserts that the All Writs Act can be used to
obviate the established obligations of the custodian under an ad
testificandum writ by imposing on the United States Marshals Service,
as a non-party to the underlying litigation, the responsibility for
producing state prisoners in court.  Petitioner's assertion is unsound
and is unsupported by either common sense or legal precedent.  /11/

   Contrary to petitioner's argument, the courts have recognized that
the All Writs Act cannot be applied in ways that circumvent or
contravene established legal requirements.  For example, in General
Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 397, 401-402
(1982), this Court held that the All Writs Act did not authorize the
imposition of the costs of a remedial civil rights decree on parties
that were not subject to such relief under traditional standards;
emphasizing that these entities "could not be held liable to any sort
of injunctive relief based on their own conduct" (458 U.S. at 402),
the Court concluded that the "obligations (ordered by the district
court) can be imposed neither under traditional equitable authority *
* * nor under the All Writ Act" (ibid.) (footnote omitted).  See also,
e.g., Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34-35
(1980) (mandamus under All Writs Act cannot be employed to avoid final
judgment rule).  Likewise, the courts of appeals have rejected such a
use of the Act.  See, e.g., Florida Medical Ass'n v. HEW, 601 F.2d 199
(5th Cir. 1979);  Ben David v. Travisono, 495 F.2d 562 (1st Cir.
1974).  As the court explained in Florida Medical Ass'n (601 F.2d at
202), the All Writs Act does not "empower a district court to abandon
the (Federal Rules of Civil Procedure) * * * (or) to promulgate an ad
hoc procedural code whenever compliance with the Rules proves
inconvenient."

   This principle is consistent with the language and origin of the
All Writs Act.  The Act derives from Section 14 of the Judiciary Act
of 1789, 1 Stat. 81-82, which provided that

      all the * * * courts of the United States, shall have power to
      issue writs of scire facias, habeas corpus, and all other writs
      not specially provided for by statute, which may be necessary
      for the exercise of their respective jurisdictions, and
      agreeable to the principles and usages of law.

   In subsequent enactments, the provisions for writs of habeas corpus
and for all other writs were codified in separate sections (see Carbo,
364 U.S. at 615-616, 617-618) and are now found respectively in 28
U.S.C. 2241 et seq. and 28 U.S.C. 1651.  The original phrase "not
specially provided for by statute" remained in the all writs section
until the 1948 recodification of the Judicial Code, which consolidated
various provisions into Section 1651 and made "necessary changes in
phraseology" but without substantive amendment.  See H.R. Rep. 308,
80th Cong., 1st Sess. A144 (1947);  see also id. at 5.  Likewise, the
1948 revision clarified, as had previously been held (see Adams v.
United States ex rel. McCann, 317 U.S. 269, 273 (1942)), that the writ
must be necessary "or appropriate" for the exercise of a court's
jurisdiction.

   In light of its history and evident purpose, the All Writs Act is
correctly seen to be a residual source of authority to issue
appropriate writs that are not otherwise covered by law.  Where a
legal rule or doctrine specifically addresses the particular question
under consideration, it is that authority, and not the general All
Writs Act, that is applicable and controlling.  Cf. Preiser v.
Rodriquez, 411 U.S. 475, 489 (1973).  In this way, the All Writs Act
is properly restricted, in the words of the first Judiciary Act, to
"other writs not specially provided for by statute." Here, the writ of
habeas corpus ad testificandum affords a specific and historically
utilized means of obtaining the presence of a prisoner in court, and
the residual All Writs Act cannot be invoked to displace that
established form of process.

   Indeed, this limitation on the scope of the All Writs Act is
especially appropriate in cases involving the writ of habeas corpus ad
testificandum.  Given that the Judiciary Act of 1789 initially
codified the ad testificandum writ in the same section as the all
writs provision, the general authorization to issue "other writs not
specially provided for by statute" cannot be understood to allow the
circumvention of that traditional writ.  Any other interpretation
would torture the meaning of the Judiciary Act and render it
internally inconsistent.

   Moreover, the All Writs Act provides that the issuance of such
other writs be agreeable to the principles and usages of law and
necessary or appropriate for the exercise of the court's jurisdiction.
 Whatever other limitations may be imposed by these provisions, they
clearly foreclose the use of the Act to evade or defeat the
established legal requirements for the writ of habeas corpus ad
testificandum.  Invocation of the All Writs Act to that end would
ignore rather than further the salutary purposes of the statute.

   The cases cited by petitioner do not support its argument that,
under the All Writs Act, a court may shift from petitioner to the
non-party Marshal the traditional obligation of the custodian to
produce its prisoners in court pursuant to a writ of habeas corpus ad
testificandum.  Petitioner first relies (Pet. Br. 19-25) on Price v.
Johnston, 334 U.S. 266 (1948), and Harris v. Nelson, 394 U.S. 286
(1969).  In Price, the Court ruled that the All Writs Act authorized
the issuance of an order to require the custodian to bring a prisoner
to court to present oral argument on his appeal from the denial of a
petition for a writ of habeas corpus.  In Harris, the Court held that
the All Writs Act authorized a court to provide for discovery by the
parties in a habeas corpus proceeding.

   Notwithstanding petitioner's argument, the issues in those cases
stand in marked contrast to the present controversy.  Initially, we
note that the writs in Price and Harris ran against a party in the
proceeding.  Those cases did not consider the application of the All
Writs Act to a stranger to the underlying litigation.

   Furthermore, no other legal rule or doctrine addressed the issues
raised in those cases, and the All Writs Act was the only means
available to implement the given procedure in order to facilitate the
proper disposition of the lawsuit.  In Price there was no alternative
method to bring the prisoner to court for oral argument (or, since the
prisoner was not represented by counsel, for hearing argument on his
behalf at all), while in Harris no other mechanism existed for taking
discovery in a habeas corpus case.  Here, on the other hand, courts
have a traditional form of process -- the writ ad testificandum -- for
obtaining the presence of a prisoner, and thus resort to the All Writs
Act is not, as the statute requires, either necessary and appropriate
or confined to orders not otherwise provided for by law.

   Likewise, the writs in Price and Harris were consistent with other
principles of law and did not circumvent established legal
requirements.  In Price, while no form of the writ of habeas corpus
had traditionally served to bring a prisoner to court for oral
argument, such use of the All Writs Act was in accord with the
fundamental nature of the habeas corpus writ "to produce the body of a
person before a court for whatever purpose might be essential to the
proper disposition of a cause" (334 U.S. at 283);  in Harris, although
the discovery provisions in the Federal Rules of Civil Procedure were
not directly applicable in habeas corpus proceedings, use of the All
Writs Act to provide for discovery was consistent both with the
procedures under the Rules and with the recognized power of a court to
develop the facts relevant to the disposition of the cause before it
(394 U.S. at 299-300).  In the instant case, however, petitioner
invokes the All Writs Act in contravention of the established
requirements of the writ ad testificandum and thereby seeks to avoid
its traditional obligations as custodian of the prisoners in question.

   For much the same reasons, petitioner's position is also not
supported by the decision in United States v. New York Telephone Co.,
434 U.S. 159 (1977), in which the Court upheld an order under the All
Writs Act requiring the telephone company to provide assistance to the
government in utilizing a pen register.  First, contrary to
petitioner's fundamental assumption, New York Telephone does not
sanction the use of the All Writs Act whenever the issuance of a writ
would not impose an unreasonable burden.  Rather, the Court merely
recognized (434 U.S. at 171-172) that a writ otherwise authorized by
the statute would be improper if it resulted in an unreasonable
burden.

   Moreover, the subject of the writ in New York Telephone was a
private corporation, not the federal government, and therefore that
case raised none of the considerations of sovereign immunity and
separation of powers that are applicable in the present case.  In
fact, the telephone company was "a highly regulated public utility
with a duty to serve the public" (434 U.S. at 174 (footnote omitted)),
and it regularly employed pen registers for its own business purposes
(id. at 174-174).  And the company was to "be fully reimbursed at
prevailing rates, and compliance with (the court's order) required
minimal effort on * * * (its) part * * * and no disruption to its
operations." Id. at 175;  see also General Building Contractors Ass'n
v. Pennsylvania, 458 U.S. at 401.  Here, in contrast, no provision of
the magistrate's order requires petitioner to reimburse the Marshal or
ensures that the transporting of state prisoners would not interfere
with the Marshal's statutory responsibilities.

   In addition, in New York Telephone the issuance of the writ was
"necessary" (434 U.S. at 161) to "effectuate and prevent the
frustration of orders (the district court) has previously issued" (id.
at 172).  As the Court repeatedly emphasized, implementation of the
district court's pen-register order would not have been possible
absent the assistance of the telephone company (see id. at 164 n.4,
172, 174, 175 & n.23;  see also General Building Contractors Ass'n,
458 U.S. at 401);  "without the (c)ompany's assistance there is no
conceivable way in which the surveillance authorized by the (d)istrict
(c)ourt could have been successfully accomplished" (434 U.S. at 175
(footnote omitted)).  In this case, on the other hand, it was not
necessary or appropriate to direct the Marshal to transport state
prisoners in order to safeguard the trial court's processes, since
petitioner as the custodian of the prisoners could be required to
produce them pursuant to a writ of habeas corpus ad testificandum.

   Finally, in New York Telephone the All Writs Act was the exclusive
source of authority that existed for obtaining the assistance of the
telephone company.  Accordingly, issuance of the writ was not
inconsistent with or in circumvention of established legal
requirements.  Indeed, the Court noted that use of the writ was in
accordance with both the duty of citizens to provide needed aid to law
enforcement officials (434 U.S. at 175-176 n.24) and the intent of
Congress in the area of electronic surveillance and pen registers (id.
at 176-178).  Nothing in New York Telephone authorizes the All Writs
Act to be used, as petitioner seeks, to evade writs of habeas corpus
ad testificandum under 28 U.S.C. 2241 and shift from the state
custodian to the federal government the obligation of producing state
prisoners in court.

 2. The Statute Governing The Marshals Service Does Not Authorize The
Magistrate To Require The Marshal To Transport State Prisoners To
Court

   Petitioner further argues that the statute governing the Marshals
Service authorizes the magistrate to require the Marshal to transport
the state prisoners in this case.  Petitioner relies on 28 U.S.C.
569(b), which provides that "United States marshals shall execute all
lawful writs, process and orders issued under authority of the United
States * * *." /12/ As the court below correctly recognized, however,
Section 569(b) is "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" (Pet. App. 11a;  see also id. at 25a n.2 (Becker,
J., concurring)).

   If petitioner's reading of the statute were correct, courts would
have virtually unrestricted control of the operation of the Marshals
Service.  Under petitioner's view, the fact that a court issues an
order to the Marshal to carry out a specified action would necessarily
establish authorization for the order, since it could equally be said
there as here that the Marshal is simply being required to execute the
court's order in compliance with Section 569(b).  The only limitation
on the court's authority over the Marshal would be whatever limits
exist on its authority to prescribe the substantive terms of the
order;  any order that the court is empowered to enter could, if the
court chooses, be directed to the Marshal in the first instance.
Thus, just as petitioner seeks to justify the order in this case,
myriad orders now issued in litigation could, in the discretion of the
court, be imposed on the Marshal.  Such an unreasonable and circular
interpretation of the statute must be rejected.

   In support of its argument, petitioner also cites 28 U.S.C. 567(2),
which states that "(u)nder regulations prescribed by the Attorney
General, each United States marshal shall be allowed * * * the expense
of transporting prisoners, including the cost of necessary guards and
the travel and subsistence expense of prisoners and guards * * *."
/13/ However, this statute does not resolve -- indeed, it is entirely
silent on -- the issue of the Marshal's substantive authority to
transport prisoners;  it merely provides for the payment of federal
funds for expenses that the Marshal incurs in transporting prisoners
as otherwise authorized by law.  Moreover, even if the statute permits
the Marshal to use appropriated funds for the transportation of state
prisoners in the circumstances of this case, that would in no way
relieve petitioner of its traditional obligations under the ad
testificandum writ or authorize the magistrate to require the federal
treasury to bear the expense of producing the state prisoners in
court.  See Story v. Robinson, 689 F.2d 1176, 1179 (3d Cir. 1982);
McGee v. Rankin, 584 F. Supp. at 1204.  It is one thing for Congress
to appropriate funds to enable the Marshal to perform his given
functions;  it is quite another for a federal court to direct the
Marshal to expend those funds in order to satisfy a duty that the law
imposes on someone else.  And under petitioner's reading, the statute
would authorize courts to require the Marshal to transport state
prisoners even in state proceedings.  /14/

   Contrary to petitioner's argument, the Marshals Service has
construed Section 567(2) to apply only to prisoners either held in
federal custody or transported under a cooperative or
intergovernmental agreement.  See 28 C.F.R. 0.111(j) and (k).  That
construction is premised on the Marshal's authority over federal
prisoners and over other prisoners where provided by cooperative or
intergovernmental agreement.  In contrast, there is no basis for
requiring the Marshal to transport state prisoners in connection with
a civil rights action to which the federal government is not a party.

   Indeed, the Marshals Service has specifically concluded that it is
not responsible for transporting state prisoners in the circumstances
of the instant case.  The current Manual of the Marshals Service
provides:

      Traditionally, writs of habeas corpus for cases in which the
      Federal government is not a party, are executed by the
      prisoner's custodian.  If the court orders the U.S. Marshal and
      the state to produce a state prisoner, such as in the case of a
      civil rights issue, the U.S. Marshal should attempt to have the
      court amend its order so it is directed solely to the state
      custodian.  If this attempt fails the U.S. Marshal should serve
      the writ directed to him on the state custodian, inform the
      state custodian of the state's obligation to produce the
      prisoner, and make an appropriate return on the writ as
      executed.  It is the position of the Marshals Service that the
      state has the obligation to produce its state prisoners to
      Federal court once such a writ of habeas corpus is issued.

                      * * * * *

      State Prisoners in Federal Civil Cases.  The custodian of the
      prisoner is responsible for transporting and producing state or
      local prisoners in a Federal civil case.  The Federal court
      order should be directed to the state or local authority who has
      custody of the prisoner.  * * *

   U.S. Dep't of Justice, United States Marshals Manual Sections
6.1-4.c.3, 8.5-5.b (Sept. 1983).  Similarly, the Manual in effect at
the time the ad testificandum writs were issued in the present case
provided:

      It is the Marshals Service's position that in Federal civil
      rights suits filed by state prisoners against state officials
      the state should transport the prisoner to and from Federal
      Court and bear any of the prisoners having expenses.  The
      Marshals Service should not reimburse the state for any of their
      expenses.  If the Marshal is ordered to transport such
      prisoners, the United States Marshals Service Legal Counsel
      should be immediately notified.

   U.S. Dep't of Justice, United States Marshals Financial Management
Manual 340.26 (July 1, 1975) (emphasis in original).  /15/ The
Marshals Service's interpretation of its own authority is entitled to
substantial deference by the courts.  See, e.g., Board of Governors of
the Federal Reserve System v. First Lincolnwood Corp., 439 U.S. 234,
248, 251 (1978).  /16/

   For these reasons, 28 U.S.C. 567(2) and 569(b) do not support
petitioner's contention that the Marshals Service can be required to
transport the state prisoners to court in this case.  Moreover, this
conclusion is reinforced by a comparison of those statutes to other
provisions of law that do specify a role for the federal government in
the process of obtaining witnesses.  For example, 28 U.S.C. 1825
provides that the Marshal shall pay the fees both for government
witnesses in cases in which the United States is a party and for the
witnesses of a party proceeding in forma pauperis in cases under 28
U.S.C. 2255.  /17/ See also pages 40-41, infra.  In addition, Fed. R.
Crim. P. 17(b) states that with respect to a subpoena on behalf of an
indigent criminal defendant, "the costs incurred by the process and
fees of the witness so subpoenaed shall be paid in the same manner in
which similar costs and fees are paid in case of a witness subpoenaed
in behalf of the government." The Marshals Service advises us that, in
the many cases covered by these provisions, it rather than the state
has assumed the responsibility for producing state prisoners in court.
 These provisions, however, represent specific authorizations for the
involvement of the federal government and constitute particular
exceptions adopted by Congress to the general obligation of a
custodian pursuant to a writ of habeas corpus ad testificandum.  In
contrast, 28 U.S.C. 567(2) and 569(b) cannot be read to provide the
same specific and exceptional authorization for the Marshal to
transport the state prisoners in this case.  See also pages 40-41 and
note 33, infra.  Where Congress has prescribed limited exceptions as a
matter of policy, courts are not free to create additional exceptions.
 See, e.g., Block v. Community Nutrition Institution, No. 83-458 (June
4, 1984), slip op. 6;  Fedorenko v. United States, 449 U.S. 490,
512-513 (1981).

   Finally, petitioner suggests (Pet. Br. 37-38) that the expense of
producing state prisoners in court, like the expenses of providing a
judge and a courtroom, should be met by the federal government as a
necessary cost of furnishing a forum for the resolution of lawsuits
under 42 U.S.C. 1983.  However, witness expenses are not traditionally
considered to be a cost of the tribunal, but instead are customarily
borne by the parties to the litigation or by the witnesses themselves.
 See 28 U.S.C. 1821, 1920(3);  see also page 13, supra, and pages
35-36, infra.  On the other hand, the costs of a judge or a courtroom,
which are inherent features of the judicial process, are traditionally
treated as part of the administration of the system of justice (see,
e.g., Gleckman v. United States, 80 F.2d 394, 403 (8th Cir. 1935),
cert. denied, 297 U.S. 709 (1936)), and Congress in fact has made
express provision -- out of appropriations for the Judicial rather
than the Executive Branch -- to pay those expenses.  In the absence of
a similar congressional enactment applicable to state prisoners, and
in light of the custodian's established obligation to bring its
prisoners to court, petitioner's attempted analogy is unpersuasive and
affords no basis for shifting the cost of production from the state to
the federal government.

 3. Requiring The Marshals Service To Transport State Prisoners Would
Impose A Significant Burden On The Federal Government

   If Garland and his proposed witnesses were federal rather than
state prisoners, the Marshals Service would be responsible for
transporting them to court pursuant to a writ of habeas corpus ad
testificandum.  The result we urge in this case simply recognizes the
corresponding obligation of petitioner with respect to prisoners in
its custody.

   Petitioner complains (Pet. Br. 16), however, that such an
obligation would constitute a "dramatic drain on the state's financial
resources * * *." At the same time, petitioner contends (Pet. Br.
36-37) that requiring the Marshals Service to transport state
prisoners would not impose a significant burden on the federal
government.  Petitioner's argument is thus internally inconsistent and
also ignores the practicalities of the issue.

   The burden on the Marshals Service cannot be viewed in the context
of an individual case or the litigation involving a single state.
Instead, it must be considered in the aggregate on a nationwide basis.
 Given the burgeoning number of civil rights suits by state prisoners
against state or local defendants, /18/ it blinks reality for
petitioner to assert that the Marshal would not be subjected to
substantial demands and expense in transporting state prisoners.

   Moreover, the Marshals Service, no less than other units of the
federal government, is facing serious budget constraints.  /19/
Indeed, the Marshals Service advises us that there are only 21 deputy
marshals in the Eastern District of Pennsylvania and fewer than 1,000
deputy marshals in the 94 districts across the country.  The
limitations on the Marshals Service's manpower become evident in light
of the fact that the federal judicial system currently has some 500
active district judges (and 200 senior district judges) and
approximately 250 full-time magistrates (with 230 part-time
magistrates), as well as additional judges in the Bankruptcy Court,
the Claims Court, and the District of Columbia Superior Court.
Furthermore, approximately 500 federal court facilities are now in
use.  And in 1984 the Marshals Service handled more than 82,000
prisoners in connection with federal matters.  To require the Marshals
Service to transport state prisoners would divert it from the
functions that Congress has entrusted to it, including its
responsibilities for federal prisoners, the security of the federal
courthouse and court personnel, the execution of arrest warrants and
seizure of forfeited property, and numerous other duties necessary to
law enforcement and the federal court system.

   Petitioner advances an expansive view of the role of the courts,
contending that "the tools available to the judiciary must be used
creatively in order to respond to changing demands on the judicial
system" (Pet. Br. 17).  However, courts are ill-suited to assess the
foregoing considerations.  Rather, it is a policy question for
Congress whether the United States Marshals Service should transport
state prisoners to court in suits under 42 U.S.C. 1983.  /20/ A
legislative solution would allow Congress to weigh the various
competing interests -- of the federal government, the states, and the
litigants in civil rights actions -- in this era of expanding judicial
dockets and limited governmental resources at all levels;  it is
eminently a choice for Congress to make whether the funds allocated to
the Marshals Service should be spent for transporting state prisoners
in connection with Section 1983 litigation or whether they instead
would be better used to support other aspects of the federal judicial
system.  See Pet. App. 44a-45a (Becker, J., concurring).  In addition,
Congress can also consider a variety of systemic mechanisms and
alternative approaches -- such as the presentation of testimony
through depositions taken in the prison, or sending magistrates to
conduct proceedings at the prison where necessary -- to reduce the
problem of transporting prisoner witnesses.  Finally, legislation
could take account of the range of historical practices and
understandings that have been developed in light of local conditions
in the districts and divisions around the country.  /21/

   Until such time as Congress provides to the contrary, however, it
is the established obligation of the custodian to produce a prisoner
in court pursuant to a writ of habeas corpus ad testificandum.
Neither the All Writs Act nor the Marshals statute authorizes the
magistrate in this case to relieve petitioner of that obligation or to
shift to the Marshals Service the responsibility of transporting state
prisoners.  /22/

 C. Although Petitioner Is Obligated To Produce Its Prisoners In
Court, The Parties To The Underlying Civil Rights Action May Be
Required To Provide Reimbursement To Petitioner For Its Expenses

   Because the obligation to produce the requested state prisoners in
court rested on petitioner as their custodian and could not be shifted
to the United States Marshals Service, the judgment of the court of
appeals reversing the magistrate's order should be affirmed.  This is
not to say, however, that petitioner must ultimately bear the entire
cost of that production.  Rather, it is possible that the parties to
the underlying civil rights action should defray at least a portion of
those costs.  Although the Court need not resolve this issue in order
to decide the question that petitioner has presented, we think it
appropriate to outline our preliminary analysis of the issue to make
clear that a rejection of petitioner's position here does not mean
that the costs of production will necessarily be borne by petitioner
in the end.

   Since petitioner is required to bring its prisoners to court
pursuant to the ad testificandum writ, it will, in the first instance,
incur the costs of production.  In our view, the issue whether the
parties to the underlying lawsuit should reimburse petitioner for
those costs is properly analyzed by reference to the customary legal
rules for imposing witness expenses in litigation.  This analysis
proceeds along the following lines.

   1. If a non-indigent plaintiff /23/ seeks to subpoena a
non-prisoner witness to appear at trial in a federal lawsuit, he is
required to pay the witness the prescribed fees for attendance and
mileage.  See 28 U.S.C. 1821(b) and (c);  Fed. R. Civ. P. 45(c) and
(e).  In addition, a witness who is not incarcerated is entitled to a
designated subsistence allowance for necessary overnight stays.  See
28 U.S.C. 1821(d).  These witness expenses are taxable as costs to the
losing party at the conclusion of the action.  See 28 U.S.C. 1920(3);
Fed. R. Civ. P. 54(d).  Thus, as between the parties, these specified
witness expenses are generally imposed on the unsuccessful litigant.
Moreover, if a prevailing party incurs witness expenses that are not
covered by statute, the district court has a limited discretion to tax
those non-statutory costs to the losing party as well.  See, e.g.,
Farmer v. Arabian American Oil Co., 379 U.S. 227, 232, 234-235 (1964);
 Fressell v. AT & T Technologies, Inc., 103 F.R.D. 111, 112, 116 (N.D.
Ga. 1984);  Ingersoll Milling Machine Co. v. Otis Elevator Co., 89
F.R.D. 433, 435 (N.D. Ill. 1981).

   The statutory fees allowed to a witness can be significantly less
than his out-of-pocket and opportunity costs in being required to
testify.  Although Congress sought to provide fees that would "'be
reasonably fair to the average witness,'" it "'recognized that certain
witnesses will not * * * be adequately compensated.'" H.R. Rep.
95-1651, 95th Cong., 2d Sess. 3 (1978) (citations omitted).  The
amounts provided constitute "the minimally acceptable level" of
payment but are not "intended as reimbursement for lost income,
witness service being a public obligation for which the Government is
not required to provide compensation" (ibid.).  See also S. Rep.
95-756, 95th Cong., 2d Sess. 2 (1978).  In those instances in which
the statutory fees do not provide full compensation, the witness
himself must bear the remaining cost as part of his public duty to
give testimony.  See Hurtado v. United States, 410 U.S. 578, 589
(1973).

   Thus, under the rules of federal civil litigation, the expenses of
obtaining a witness to testify are generally divided among the
plaintiff, the defendant, and the witness.  Initially, the party
presenting the witness must incur the expenses specified by statute,
which are later taxed to the losing side as costs.  Any additional
witness expenses incurred by the propounding party will normally
remain its responsibility, but, in the exercise of the district
court's discretion in exceptional cases, they can be taxed in whole or
in part to the unsuccessful litigant.  Finally, to the extent that
these payments are not fully adequate, the witness himself must absorb
the cost of his appearance.

   2. Where a non-indigent plaintiff seeks the testimony of a prisoner
witness, a number of different considerations arise.  As noted above
(see pages 10-11, supra), the plaintiff must obtain a writ of habeas
corpus ad testificandum rather than a subpoena for the witness.  In
addition, because he is incarcerated and will be transported by the
custodian, the witness is not entitled to the statutory fees for
attendance, mileage, or subsistence.  /24/ And, most importantly for
present purposes, the cost of production will include those expenses
necessary to maintain custody of the prisoner and ensure his secure
transfer.

   Here, too, the general rules described above provide the proper
analytical framework.  The plaintiff, as the proponent of the witness,
can fairly be expected to bear his share of the witness expenses.  At
the least, he should contribute to the overall cost an amount
approximating what he would have had to expend if the witness were not
a prisoner -- that is, attendance fees, mileage, and subsistence.  In
addition, the court would have to decide whether the remaining
expenses should be borne by the plaintiff -- who seeks to offer the
witness's testimony as part of his case and must take his witnesses as
he finds them -- or whether a portion of those expenses should be
imposed on the state custodian -- which has a penal interest in the
continued confinement of the witness and has a public duty to produce
relevant evidence in its possession.  See United States v. $64,000.00
in U.S. Currency, 722 F.2d 239, 246-247 (5th Cir. 1984).  /25/

   3. Finally, there is the situation, which is presented in this
case, of a plaintiff proceeding in forma pauperis who seeks the
testimony of a prisoner witness.  The foregoing analysis is equally
applicable here unless the law excuses an indigent plaintiff from
those expenses of production that would otherwise be imposed on him.
/26/ Neither of the two statutes relevant to this issue establishes
such an exemption.  /27/

   First, 28 U.S.C. 1915(a), which provides for proceedings in forma
pauperis, states that a court "may authorize the commencement,
prosecution or defense of any suit * * * without prepayment of fees
and costs or security therefor * * *." If leave is granted, "(t)he
officers of the court shall issue and serve all process, and perform
all duties in such cases.  Witnesses shall attend as in other cases,
and the same remedies shall be available as are provided for by law in
other cases." 28 U.S.C. 1915 (c).  In addition, "(j)udgment may be
rendered for costs at the conclusion of the suit or action as in other
cases, but the United States shall not be liable for any of the costs
thus incurred." 28 U.S.C. 1915(e).

   As this language indicates, in forma pauperis plaintiffs may
proceed without "prepayment" of fees and costs.  While an indigent
plaintiff is thus excepted from prepaying specified expenses, nothing
releases him from liability for such expenditures at the conclusion of
the case if he is unsuccessful.  /28/ Indeed, not only must the losing
plaintiff bear his own litigation expenses, but under Section 1915(e)
he may be taxed his opponent's costs as well even where his position,
although unavailing, was not frivolous or advanced in bad faith.  /29/

   Furthermore, 28 U.S.C. 1915 does not extend to witness fees and
expenses and therefore does not impose responsibility for those
expenditures on the federal government rather than the plaintiff.  By
its terms, Section 1915(c) provides that the court shall issue and
serve all process without charge;  /30/ Section 1915(b) directs that
in certain circumstances the government shall pay for the preparation
of a transcript and the printing of the record on appeal;  and Section
1915(d) authorizes the appointment of counsel for an indigent party.
Nowhere, however, does Section 1915 refer to the expenses of producing
witnesses in court.  On the contrary, Section 1915(c) specifically
states that "(w)itnesses shall attend as in other cases, and the same
remedies shall be available as are provided for by law in other
cases." And Section 1915(e) further provides that "the United States
shall not be liable for any of the costs * * *" in the proceeding.
/31/ In light of these statutory provisions, courts have held that
Section 1915 does not "authorize() a district court to order
government payment of an indigent's witness fees and expenses." United
States Marshals Service v. Means, 741 F.2d 1053, 1056 (8th Cir. 1984)
(en banc).  /32/ Likewise, the Comptroller General has determined that
the United States cannot be required to pay an indigent plaintiff's
witness expenses in an action under 42 U.S.C. 1983.  /33/

   In addition, 28 U.S.C. 1825 does not render the United States
responsible for the witness expenses of an informa pauperis plaintiff.
 In our view, the first paragraph of Section 1825, which provides that
in cases in which the United States is a party "the United States
marshal for the district shall pay all fees of witnesses on the
certificate of the United States Attorney," is limited to the fees of
witnesses for the government.  /34/ In any event, that provision has
no application in the present case, since the United States is not a
party to the underlying Section 1983 action.

   The second paragraph of Section 1825 also does not authorize
federal payment in this case.  While that provision does direct the
Marshal to pay the fees of a witness for an indigent party, it is
explicitly confined to "proceedings * * * for a writ of habeas corpus
or * * * proceedings under (28 U.S.C.) 2255" and therefore does not
apply to a civil rights suit under 42 U.S.C. 1983.  Indeed, in
enacting this provision, Congress emphasized that witness fees for
indigent defendants in criminal prosecutions are paid by the United
States pursuant to Fed. R. Crim. P. 17(b) and that collateral habeas
corpus and Section 2255 proceedings, while technically civil, are
integrally related to a criminal case;  at the same time, however,
Congress recognized that in other situations there is no "basis to
charge the United States with witness costs in civil proceedings."
H.R. Rep. 56, 89th Cong., 1st Sess. 3 (1965), citing 39 Comp. Gen. 133
(1959);  see also S. Rep. 615, 89th Cong., 1st Sess. 3 (1965).  This
legislative history, and the absence of a comparable provision
authorizing such payment in civil suits generally, strongly reinforces
the conclusion that the United States is not liable for the witness
expenses of a plaintiff proceeding in forma pauperis in an action
under 42 U.S.C. 1983.

   Holding unsuccessful in forma pauperis plaintiffs responsible for
their witness expenses provides a measure of accountability in the
litigation process.  Otherwise,

      persons granted leave to proceed in forma pauperis have
      virtually "nothing to lose and everything to gain," and the
      purpose of Section 1915 -- equal access for the poor and the
      rich -- is distorted.  Non-indigents who contemplate litigation
      are routinely forced to decide whether their claim is "worth
      it." We see no reason to treat indigents differently in this
      respect.

   Harris v. Forsyth, 742 F.2d at 1278, quoting Flint v. Haynes, 651
F.2d at 973 (footnotes omitted).  Especially in view of the inherent
temptations for prisoners to seek to be brought to court (see pages
12-13 note 6, supra), this is a salutary and appropriate restraint in
connection with the ever-increasing number of inmate actions.

   We recognize, of course, that requiring indigent plaintiffs to
reimburse the state custodian for a portion of its transportation
costs will prove to be of little practical benefit to the state in
some cases.  But that will not always be so.  For example, if the
plaintiff prevails in the civil rights suit, he can use his damages
award to pay the portion of the expenses that are allocated to him and
not taxed to the losing defendant.  Even if the plaintiff does not
prevail in the litigation, the state will have a claim to any funds he
may subsequently obtain.  To the extent that the state is nevertheless
unable to collect reimbursement for the plaintiff's share of the
transportation expenses, that burden must be borne as part of its
public duty as custodian to produce its prisoners in court pursuant to
a writ of habeas corpus ad testificandum.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Acting Solicitor General

   RICHARD K. WILLARD

      Acting Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   MARK I. LEVY

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   CHRISTINE R. WHITTAKER

      Attorneys

   JUNE 1985

   /1/ Petitioner did not appeal the portion of the magistrate's order
requiring it to transport the state inmates from prison to the local
jail.

   /2/ Because the case had been referred to the magistrate for trial
by the consent of the parties, appellate review lay directly in the
court of appeals rather than in the district court.  See 28 U.S.C.
636(c)(3).  Since the magistrate's order to the United States Marshal
was collateral to the merits of the underlying civil rights action and
fully and finally disposed of the issue concerning transportation of
the state prisoners, the court of appeals held that it had
jurisdiction over the appeal pursuant to the collateral order doctrine
(Pet. App. 8a-9a).  Accord United States Marshals Service v. Means,
724 F.2d 642, 644-645 (1983), on reh'g en banc, 741 F.2d 1053, 1055
(8th Cir. 1984);  Wiggins v. County of Alameda, 717 F.2d 466, 467-468
(9th Cir. 1983), cert. denied sub nom. California Dep't of Corrections
v. United States, No. 83-634 (Feb. 27, 1984);  Story v. Robinson, 689
F.2d 1176, 1177-1178 (3d Cir. 1982);  Ford v. Carballo, 577 F.2d 404,
405 (7th Cir. 1978);  Ballard v. Spradley, 557 F.2d 476, 479 (5th Cir.
1977).

   We are advised that further proceedings on Garland's civil rights
action have been stayed pending resolution of the issue of compliance
with the writs of habeas corpus ad testificandum.

   /3/ The Marshal has not cross-petitioned on the security issues,
and therefore those issues are not before the Court.

   /4/ Moreover, in a number of cases involving this issue, state
officials in fact were defendants in the civil rights action.  See
Story v. Robinson, 689 F.2d 1176 (3d Cir. 1982);  Ford v. Carballo,
577 F.2d 404 (7th Cir. 1978);  Ballard v. Spradley, 557 F.2d 476 (5th
Cir. 1977).

   /5/ As the 1974 advisory committee note to Fed. R. Crim. P. 15
explains:

      In (Rule 15(b)) reference is made to the defendant in custody.
      If he is in state custody, a writ of habeas corpus ad
      testificandum (to produce the prisoner for purposes of
      testimony) may be required to accomplish his presence.

   See also Fed. R. Crim. P. 15(c) and 1974 advisory committee note
(in deposition by government or indigent defendant, government may be
ordered to pay expense of travel and subsistence for a defendant not
in custody and his attorney).

   /6/ In a related context, the Court has noted that bringing a
prisoner to court involves "opportunities for escape afforded by
travel, the cost of transportation, * * * (and) administrative
burden." Ahrens v. Clark, 335 U.S. 188, 191 (1948).  See also Braden
v. 30th Judicial Circuit Court, 410 U.S. 484, 496 (1973).  Moreover,
requests for a writ frequently represent nothing "more than a mere
desire to be freed temporarily from the confines of the prison." Price
v. Johnston, 334 U.S. at 284-285 (footnote omitted).  Thus even if the
underlying lawsuit is unsuccessful, the prisoners "will nonetheless
have obtained a short sabbatical in the nearest federal courthouse.  *
* * '(T)emporary relief from prison confinement is always an alluring
prospect, and to the hardened criminal the possibility of escape lurks
in every excursion beyond prison walls.'" Cruz v. Beto, 405 U.S. 319,
327 & n.8 (1972) (Rehnquist, J., dissenting) (citation omitted).  It
also cannot be ignored that civil rights suits by prisoners often
reflect the "fantasy which has its basis in the paranoia of prison
rather than in fact" (Harris v. Nelson, 394 U.S. 286, 300 (1969)) and
can be motivated by "(a) desire to harass officials, a hope for a
quick windfall by way of nuisance settlement, or simply a discovery of
a new way to pass the monotonous hours of incarceration." Urbano v.
Sondern, 41 F.R.D. 355, 358 (D. Conn.), aff'd, 370 F.2d 13 (2d Cir.
1966), cert. denied, 386 U.S. 1034 (1967).

   /7/ Of course, states, like other litigants, are subject to the
principles of federal sovereign immunity.  See, e.g., Block v. North
Dakota, 461 U.S. 273, 280 (1983).

   /8/ Indeed, it is the fact that the instant dispute between
petitioner and the federal government is entirely collateral to the
underlying litigation that renders the magistrate's order appealable
under the "collateral order" doctrine.  See pages 4-5 note 2, supra.

   /9/ There can be no doubt that the Marshals Service is within the
Executive Branch of the federal government.  See Pet. App. 38a-39a
(Becker, J., concurring).  The United States Marshal for each district
is appointed by the President (see 28 U.S.C. 561(a)), is subject to
the supervision and direction of the Attorney General (see, e.g., 28
U.S.C. 561(c), 562, 567, 569(c), 571(a), and (d)), and is funded
through Department of Justice appropriations (see, e.g., 28 U.S.C.
567;  Pub.L. No. 98-411, 98 Stat. 1554.

   /10/ As petitioner concedes (Pet. Br. 29 n.15), the magistrate did
not rely on the All Writs Act in issuing his order (see Pet. App.
51a-52a).  Moreover, in neither the trial court nor the court of
appeals did petitioner invoke the All Writs Act as a source of
statutory authority for the magistrate's order (see Pet. App. 13a,
15a).

   /11/ Petitioner does not identify the nature of the writ that it
contends is authorized by the All Writs Act.  It would not appear to
be in the nature of a writ of habeas corpus, since it is not, as those
writs require, addressed to the person who has custody of the body.
Moreover, since there is not mandatory duty on the part of the Marshal
to transport state prisoners, the writ would not be in the nature of
mandamus.  See, e.g., Heckler v. Ringer, No. 82-1772 (May 14, 1984),
slip op. 13;  Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 318
(1958);  United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420
(1931).  Additionally, because mandamus will lie only where there is
no alternative remedy (see, e.g., Heckler v. Ringer, slip op. 13;
Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980)), it
would not be available here in light of the ad testificandum writ for
bringing the state prisoners to court.  In these circumstances, there
is no occasion to consider the issue, discussed by petitioner (Pet.
Br. 48-50) and by the court below (Pet. App. 16a-17a, 32a-37a),
whether an otherwise appropriate writ of mandamus would be barred by
McIntire v. Wood, 11 U.S. (7 Cranch) 504 (1813), and McClung v.
Silliman, 19 U.S. (6 Wheat.) 598 (1821).  See e.g., 28 U.S.C. 1361;
Stafford v. Briggs, 444 U.S. 527, 533-534 (1980);  In re Blake, 175
U.S. 114, 119-120 (1899);  Kendall v. United States, 37 U.S. (12 Pet.)
524, 615, 617 (1838).

   /12/ See also Ford v. Allen, 728 F.2d 1369, 1370 (11th Cir. 1984);
Wiggins v. County of Alameda, 717 F.2d 466, 469 (9th Cir. 1983), cert.
denied sub nom. California Dep't of Corrections v. United States, No.
83-634 (Feb. 27, 1984);  Ballard v. Spradley, 557 F.2d 476, 481 (5th
Cir. 1977).

   /13/ See also Ford v. Allen, 728 F.2d at 1370;  Wiggins v. County
of Alameda, 717 F.2d at 469;  Ballard v. Spradley, 557 F.2d at 481.

   /14/ Courts have recognized that federal funds generally are not
authorized for the transportation of state prisoners in actions to
which the United States is not a party.  See Clark v. Hendrix, 397 F.
Supp. 966, 975 (N.D. Ga. 1975);  Diaz v. Chatterton, 229 F. Supp. 19,
22, 23 (S.D. Cal. 1964);  Urbano v. Sondern, 41 F.R.D. at 358.

   /15/ This provision is carried forward in Section 3.15-19.c.3 of
the United States Marshals Manual.

   /16/ Petitioner argues (Pet. Br. 45-46 n.19) that the 1975 Manual
obligates the Marshal either to transport state prisoners to federal
court or to reimburse the state for their transportation.  However,
the passage relied upon by petitioner relates to the production of
state prisoners in cases in which the United States Attorney in the
process of producing the prisoner;  as discussed below (see pages 29,
40, infra), 28 U.S.C. 1825 expressly provides that in cases in which
the federal government is a party, the Marshal shall pay the fees for
the government's witnesses.  Furthermore, the cited Passage cannot be
interpreted as petitioner proposes, for it is immediately followed by
the specific provision, quoted in the text above, that "in Federal
civil rights suits * * * the state should transport the (state)
prisoner to and from Federal Court and bear any of the * * *
expenses."

   /17/ 28 U.S.C. 1825 also provides for the Marshal to pay witness
fees for an indigent party challenging a state conviction in habeas
corpus cases under 28 U.S.C. 2254.

   /18/ The number of civil rights actions filed in federal court by
state prisoners against state or local defendants has increased from
2,030 in 1970 to 18,034 in 1984.  See U.S. Dep't of Justice, Bureau of
Justice Statistics, Sourcebook of Criminal Justice Statistics -- 1983,
Table 5.24, at 514;  Administrative Office of the United States
Courts, 1984 Annual Report of the Director, Table C2, at A-7.

   /19/ See, e.g., 128 Cong. Rec. H9848-H9849 & n.1, H9849-H9850,
H9852, H9853-H9854 (daily ed. Dec. 15, 1982) (amendment to Fed. R.
Civ. P. 4 on service of process by Marshal);  102 F.R.D. 423, 424, 439
(1984) (proposed amendments to Federal Admiralty Rules on service of
process by Marshal);  Joint Statement of the Chief Justice and the
Attorney General Before the Judicial Conference of the United States
(Mar. 11, 1982) (courthouse security).

   /20/ Compare, e.g., the Interstate Agreement on Detainers Act, 18
U.S.C. App. at 545-548.  In Section 2, Article V (a) and (h), the Act
specifically provides that the sending "State shall offer to deliver
temporary custody of (the requested) prisoner to the appropriate
authority in the (receiving) State * * *" and that "(f)rom the time
that (the receiving) State receives custody of a prisoner pursuant to
this agreement until such prisoners is returned to the territory and
custody of the sending State, the (receiving) State * * * shall be
responsible for the prisoner and shall also pay all costs of
transporting, caring for, keeping, and returning the prisoner."

   /21/ It might also be possible for the Marshals Service or the
Marshal in each district to enter into an agreement with a state to
provide for appropriate transportation procedures.

   /22/ If the Court concludes, contrary to our submission, that a
trial court has discretion to require the Marshal instead of the state
to undertake to transport state prisoners, that discretion should be
restricted to exceptional circumstances where considerations of safety
or security demonstrate that the Marshals Service, because of special
training, equipment, or other capability or resource, is materially
better able than the state to transport the prisoners.  This would
reflect the traditional requirements of the writ of habeas corpus ad
testificandum and would be consistent with the nature of the All Writs
Act, since the aid of the Marshal would be confined to those cases in
which it is necessary to the proper affectuation of the court's writ.
In the present case, petitioner has not contended that it could not
comply with the writ by bringing its prisoners to the courthouse.  The
transportation responsibility should not be shifted to the federal
government, as was done here, simply because of its "deep pocket" or
the supposition that it could convey the prisoners at an incrementally
lower cost than the state.

   /23/ In order to parallel the facts of the present case, this
discussion is framed in terms of a witness sought by the plaintiff.
The same analysis applies, however, whichever party offers the
witness.

   /24/ See 28 U.S.C. 1821(d)(1);  In re Grand Jury Matter, 697 F.2d
103 (3d Cir. 1982), aff'g 533 F. Supp. 401 (E.D. Pa.);  Marchese v.
United States, 453 F.2d 1268, 1270-1271 (Ct. Cl. 1972);  Meadows v.
United States Marshal, 434 F.2d 1007 (5th Cir. 1970), cert. denied,
401 U.S. 1014 (1971).

   /25/ As between the plaintiff and the custodian, the same general
analysis applies where the plaintiff is himself a prisoner and seeks
to be present for trial.  However, with respect to the taxation of
those expenses as costs if the defendant is the losing party, a
somewhat different analysis would be applicable.  Under general
principles, a party usually pays its own expenses of traveling to and
attending trial, but a district court has some discretion to tax those
expenses as non-statutory costs.  See, e.g., Hodge v. Seiler, 558 F.2d
284, 287 (5th Cir. 1977).  Accordingly, a plaintiff, even if he
prevails, may be required to bear a greater portion of such expenses
than would be appropriate in the case of witness expenses.

   /26/ See Marks v. Calendine, 80 F.R.D. 24, 31 (N.D. W. Va. 1978),
aff'd, 651 F.2d 970 (4th Cir. 1981), cert. denied, 454 U.S. 1151
(1982) (unsuccessful indigent prisoner-plaintiff in Section 1983
action ordered to bear custodian-defendant's expenses of producing
plaintiff and his prisoner-witnesses pursuant to ad testificandum
writ).

   /27/ In the absence of statutory authorization, principles of
sovereign immunity would, of course, preclude the imposition of
liability for these costs on the United States.  See, e.g., United
States v. MacCollom, 426 U.S. 317 (1976);  United States v. Chemical
Foundation Inc., 272 U.S. 1, 20 (1926).

   /28/ See, e.g., Barcelo v. Brown, 655 F.2d 458, 462 (1st Cir.
1981);  Flint v. Haynes, 651 F.2d 970 (4th Cir. 1981), cert. denied,
454 U.S. 1151 (1982), aff'g Marks v. Calendine, 80 F.R.D. 24 (N.D. W.
Va. 1978);  Partee v. Lane, 528 F. Supp. 1254, 1264-1265 (N.D. Ill.
1981);  but see Evans v. Tennessee Dep't of Corrections, 514 F.2d 283
(6th Cir. 1975).

   /29/ See, e.g., Harris v. Forsyth, 742 F.2d 1277 (11th Cir. 1984);
Flint v. Haynes, 651 F.2d at 973;  Chevrette v. Marks, 558 F. Supp.
1133, 1135 (M.D. Pa. 1983);  cf. Duhart v. Carlson, 469 F.2d 471 (10th
Cir. 1972), cert. denied, 410 U.S. 958 (1973);  see also H.R. Rep.
1079, 52d Cong., 1st Sess. 2 (1892).

   /30/ See also Fed. R. Civ. P 4(c)(2)(B)(i).

   /31/ See S. Rep. 1020, 82d Cong., 1st Sess. 17 (1951).

   /32/ See also, e.g., Johnson v. Hubbard, 698 F.2d 286, 289-290 (6th
Cir.), cert. denied, 464 U.S. 917 (1983);  Hudson v. Ingalls
Shipbuilding, 516 F. Supp. 708, 709 (S.D. Ala. 1981);  Dortly v.
Bailey, 431 F. Supp. 247, 248 (M.D. Fla. 1977);  Clark v. Hendrix, 397
F.Supp. 966, 975 (N.D. Ga. 1975);  Diaz v. Chatterton, 229 F. Supp.
19, 23 (S.D. Cal. 1964);  Andrews v. Atkins, 100 F.R.D. 762, 764, 765
(D. Kan. 1984);  Cagle v. Cox, 87 F.R.D. 467, 468 (E.D. Va.1980);
Marks v. Calendine, 80 F.R.D. at 29;  cf. Lloyd v. McKendree, 749 F.2d
705 (11th Cir. 1985);  Barcelo v. Brown, 655 F.2d at 462;  Lewis v.
Precision Optics, Inc., 612 F.2d 1074 (8th Cir. 1980);  Estep v.
United States, 251 F.2d 579, 582 (5th Cir. 1958);  Moss v. ITT
Continental Baking Co., 83 F.R.D. 624, 625-627 (E.D. Va. 1979);
Haymes v. Smith, 73 F.R.D. 572, 574 (W.D. N.Y. 1976).

   /33/ See 53 Comp. Gen. 638, 643-645 (1974);  39 Comp. Gen. 133,
138-139 (1959), overruled in part on other grounds, 59 Comp. Gen. 313
(1980);  Comp. Gen. Dec. B-139703 (June 19, 1975) (reaffirming 53
Comp. Gen. 638 (1974)).

   /34/ See United States Marshals Service v. Means, 741 F.2d at 1064
(McMillian, J., concurring in part and dissenting in part);  but see
id. at 1060-1061 (Gibson, J., concurring separately).