ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Gibbons, Weis and Sloviter, Circuit Judges.
The Commonwealth of Pennsylvania, intervenor, and the County of Allegheny, intervening appellant, appeal from a February 3, 1982 order of the District Court for the Western District of Pennsylvania, 531 F. Supp. 627, concerning the production of state prisoners for testimony in a civil action pending in that court. That order provides that the state custodian will be in compliance with writs of habeas corpus ad testificandum for such prisoners if at his expense he transports the prisoners to the state custodial institution nearest the federal courthouse. It directs that the United States Marshal be responsible for transporting the prisoners to and from that custodial institution for court appearances. The United States Marshal is also an intervenor, and the appellee in this appeal. The Commonwealth contends that the entire responsibility for and expense of production of state prisoners for testimony in a federal civil action should be imposed upon the United States Marshal. A second order, dated February 12, 1982, designates the Allegheny County Jail as the nearest state custodial institution for trials at Pittsburgh. Allegheny County contends that, whether or not the Commonwealth custodian is responsible for production of the prisoners, the burden of housing them while they are in Pittsburgh should not have been imposed on it. We affirm.
The orders appealed from were entered in a pending civil action which has not yet resulted in a final judgment. The Commonwealth contends, however, that the order from which it appeals is a final order within 28 U.S.C. § 1291. Since it fully resolves a dispute between the Commonwealth and the United States Marshal Service, we agree that it is a final order collateral to the main action. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). A prior panel of this court granted Allegheny County's motion for leave to intervene in the appeal. Thus both appellants are properly before us.
The trial court's opinion discloses that until October 1981 it was the historical practice in the Western District of Pennsylvania for the Commonwealth to transport a state prisoner whose testimony was required in a federal court to the jail nearest the federal courthouse. The Commonwealth would then notify the United States Marshal, who assumed the responsibility for transporting the prisoner to the federal courthouse, maintaining custody and returning him to state custody when his presence was no longer required. In October 1981 the United States Marshal Service, faced with severe budgetary limitations, intervened in this action and requested the court to direct its orders for the production of prisoner witnesses directly to the Commonwealth custodian. The Commonwealth responded by intervening and urging that it be relieved of all responsibility for their production.*fn1 After full briefing and argument, in which the Attorney General appeared for the Commonwealth, the court entered the orders appealed from. Allegheny County was not separately represented in the District Court, and the Attorney General joined with it in moving for intervention in this court. Although the Marshal Service sought to be relieved entirely from responsibility for state prisoner witnesses, it has not cross-appealed. Thus the limited question before us is whether the court erred in holding that state custodians must respond to writs of habeas corpus ad testificandum at least to the extent of bringing the required witnesses to the county jail nearest the federal courthouse and informing the Marshal Service that they are available for court appearances.
The form of the order disposes of the Allegheny County appeal. The County is in no way aggrieved by it. It merely states that delivery to the county jail shall be deemed to be compliance with writs of habeas corpus ad testificandum. It does not direct the county officials to accept state prisoners for that or any other purpose. If the Commonwealth finds itself powerless to compel Allegheny County to cooperate (a contingency which seems, to say the least, remote) then the Commonwealth custodians will have to respond to writs of habeas corpus ad testificandum in some other manner. It will not be able to rely upon the February 3, 1982 order. Nor does the February 12, 1982 order, clarifying that of February 3 by specific reference to the Allegheny County Jail, impose any obligation on the County. It is not a party aggrieved by either order.
The Commonwealth, however, is aggrieved by the trial court's denial of its motion to be relieved from any obligation to respond to a writ of habeas corpus ad testificandum except by delivering the prisoner to a United States Marshal at the place of confinement. It contends that the trial court lacks authority to impose any other duty on its custodians.
The Commonwealth concedes, as it must, that read together, 28 U.S.C. § 2241(c)(5), the habeas corpus statute, and 28 U.S.C. § 1651(a), the All Writs Act, give federal courts authority to issue writs of habeas corpus ad testificandum to compel the attendance of prisoner witnesses. It contends, however, that this undoubted power is circumscribed by a rule, of unspecified origin, that the court cannot compel a non-party at its own expense to transport prisoners. There is no such rule.
Witnesses required for civil proceedings in the federal courts are subject to compulsory process. Fed. R. Civ. P. 45(e). The only limitation, other than geographic, is that the witness be tendered the fees and mileage specified by statute. Fed. R. Civ. P. 45(c); 28 U.S.C. § 1821. The fees are modest, and attendance frequently imposes serious financial burdens on witnesses. They must nevertheless respond without compensation, for in our society the court's need for witness testimony is recognized as an ample justification for imposing such a burden. If, therefore, the witnesses in question were not in state custody, their testimony would be compellable by subpoena. Because they are in state custody, subpoena process, which runs only to the witness, cannot be effective. The only effective process will be one which runs to the custodian.
The problem is hardly a new one. In section 14 of the Judiciary Act of 1789 Congress authorized the federal courts "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." The authority to issue writs of habeas corpus was limited by a proviso that it would extend only to prisoners in federal custody, but that proviso was itself qualified by an exception for prisoners "necessary to be brought into court to testify." 1 Stat. 73, 81-2. Thus at the outset of their existence the federal courts were granted the express authority to issue writs of habeas corpus ad testificandum for the production of state prisoners. The provisions of section 14 of the 1789 Act, carried forward, are now codified at 28 U.S.C. § 1651(a) and 28 U.S.C. § 2241(c)(5). See, e.g., United States v. Hayman, 342 U.S. 205, 221, 96 L. Ed. 232, 72 S. Ct. 263 (1952); Price v. Johnston, 334 U.S. 266, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948); Adams v. U.S. ex rel. McCann, 317 U.S. 269, 274, 87 L. Ed. 268, 63 S. Ct. 236 (1942). At no time has that authority ever been qualified by a requirement that the respondent custodian, state or federal, be compensated for compliance with the writ.
The Commonwealth urges that 28 U.S.C. § 569(b) is such a qualification. That statute provides that "United States marshals shall execute all lawful writs, process and orders issued under authority of the United States." The United States marshals have had that duty since 1789. 1 Stat. 73, 87. The United States Marshal Service urges, we think correctly, that this obligation arises with respect to a writ of habeas corpus only when a custodian refuses to obey a writ. The fact that Congress has from the beginning provided for Executive Branch enforcement of ...