Daniel A. Batterman, Esq. v. William J. Leahy, Esq.

Of the Federal Circuit, sitting by designation. *
Of the District of Puerto Rico, sitting by designation. **
United States Court of Appeals
For the First Circuit
No. 07-2653
DANIEL A. BATTERMAN, ESQ.,
Plaintiff, Appellant,
v.
WILLIAM J. LEAHY, ESQ.; PATRICIA A. WYNN, ESQ.;
MARGARET T. WINCHESTER, ESQ.; and WILLIAM E. SHAY, ESQ.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin and Dyk, Circuit Judges, *
and Dominguez, District Judge. **
Daniel A. Batterman, pro se, with whom Law Offices of Daniel
A. Batterman, Robert C. Horgan and Law Offices of Robert C. Horgan
were on brief for appellant.
Sarah M. Joss, Assistant Attorney General, Trial Division,
with whom Martha Coakley, Attorney General, was on brief for
appellees.
October 15, 2008

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BOUDIN, Circuit Judge. Daniel A. Batterman, a Boston
attorney, brought suit in federal district court against several
individuals associated with the Committee for Public Counsel
Services ("CPCS"). The district court stayed proceedings,
insisting that Batterman resolve his claims, or at least his
leading claim, in state court. Batterman now appeals. The
background events are as follows.
Batterman, a sole practitioner, says that in 1998 he
agreed with CPCS to represent indigent children and parents in
state court juvenile or family matters and thereafter served as
counsel in many CPCS care and protection cases. CPCS is the
Massachusetts state agency that administers the Massachusetts
Children and Family Law Program and compensates attorneys such as
Batterman who accept assignments to represent indigent parties.
See Mass. G.L. c. 211D, § 12. Compensation for this work is fixed
by CPCS' Assigned Counsel Manual, which lays out the billing and
review procedures.
In August 2002, Batterman was appointed to represent two
infant twins who were in the temporary custody of the Department of
Social Services. One of the children died of dehydration soon
after moving to a new foster home, and Batterman represented the
surviving twin in challenging the Department's placement of that
twin. A seven-week trial ensued, and Batterman submitted
timesheets and billing records to CPCS for reimbursement.

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To make an extremely long story short--Batterman's
complaint in the district court is over 100 pages--a prolonged
dispute arose over Batterman's reimbursement requests: Batterman
sought to withdraw from the state proceeding involving the
surviving twin on the ground that he had not been paid; CPCS made
some payments to him for fiscal 2004 but denied others; and when
Batterman submitted new invoices for work in the case completed in
fiscal 2005, CPCS disallowed some of the requested amount and gave
Batterman notice that his three biggest CPCS cases would be audited
by the audit and oversight unit.
Although the CPCS announced the audit on January 7, 2005,
apparently it is still not finished. Batterman claims that CPCS
has de facto revoked his CPCS certification and that he has
suffered grievously from CPCS's disallowances and delays. On
February 20, 2007, sixteen months after receiving assurances that
the audit would be completed promptly, Batterman filed the present
suit against four individuals then associated with CPCS: Chief
Counsel William J. Leahy; his deputy, Patricia A. Wynn; Margaret T.
Winchester, Co-Director of the Children and Family Law Program; and
William E. Shay, Audit Counsel.
The extremely long complaint, in the teeth of the
requirement that claims be set forth concisely, Fed. R. Civ. P.
8(a), is 105 pages followed by attachments, contains nearly seventy
pages of factual recitation. It sets forth twenty-four counts for

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relief under state law and federal civil rights laws, and it seeks
injunctive and declaratory relief, compensatory damages of over a
quarter million dollars, attorneys' fees and unspecified punitive
damages. It contains, as the lawyers say, everything up to and
including the kitchen sink.
About half the claims purport to rest on federal
constitutional law, most importantly, the due process clause of the
Fourteenth Amendment. In particular, Batterman attacks a provision
in the payment manual restricting reimbursable billable hours to
1800 hours in any fiscal year (or 1850 in some years). He also
labels unconstitutional (1) various of the fee reductions imposed
on him, (2) his supposed suspension from new CPCS appointments, (3)
CPCS's failure to provide him help in the infant's case and (4)
CPCS's conduct and delay in completing the audit. The state law
claims range from fraud to civil conspiracy, negligence and chapter
93A, Mass. Gen. Laws ch. 93A, § 2, 11.
The defendants moved to dismiss, urging that the
complaint did not meet pleading rules and asserting various
substantive defects in individual counts. At a hearing on July 18,
2007, the district judge said that the case "might be resolved as
a matter of state law" and implicated "matters that ought be
wrestled with in the first instance by the courts of the
Commonwealth." The judge then sua sponte invoked Pullman

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abstention and ordered the case "administratively closed." See
R.R. Comm'n of Tex. v. Pullman, 312 U.S. 496 (1941).
The court then allowed further briefing but did not alter
its determination to abstain, instead giving Batterman 90 days to
file a state law suit. This court granted Batterman's motion to
stay the 90-day time limit pending this appeal. Batterman now
assails the district court's reliance on Pullman and seeks
reversal. CPCS defendants, seemingly with clenched teeth, defend
the district court's decision to invoke Pullman while also making
clear that they view Batterman's attack on the 1800 hour
compensation limit as frivolous.
On this appeal, a threshold jurisdictional issue arises
since the district court's "administrative closure" is effectively
a record-keeping entry but not a formal judgment disposing of all
claims under the final judgment statute. 28 U.S.C. § 1291 (2000).
However, the final judgment rule is nothing if not malleable; and
under Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712-15
(1996), abstention in favor of a potential state court suit while
the federal action remains in limbo is a permissible basis for an
immediate appeal.
That, alas, is the only easy part of the case. A
kitchen-sink complaint, unless dismissed for some central
jurisdictional or pleading flaw, is likely to be hard slogging,
requiring that counts be worked through one by one. Here, the

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district court's attention was drawn to the first count of the
complaint, attacking the 1800-hour limitation; but that count is
one of many and even if Pullman abstention were suitable for that
count, some of the other counts in Batterman's complaint, which are
substantively quite different, could not even arguably be resolved
by Pullman although they might be deferred.
In all events, Pullman abstention does not apply in this
case. Pullman abstention serves to "avoid federal-court error in
deciding state-law questions antecedent to federal constitutional
issues." Arizonans for Official English v. Arizona, 520 U.S. 43,
76 (1997). Under the doctrine, declining to exercise jurisdiction
is warranted where (1) substantial uncertainty exists over the
meaning of the state law in question, and (2) settling the question
of state law will or may well obviate the need to resolve a
significant federal constitutional question. See Ford Motor Co. v.
Meredith Motor Co., 257 F.3d 67, 71 (1st Cir. 2001).
Although the district court did not explicitly state that
the cap was its focus or specify the nature of the state law issue
that concerned it, both are fairly apparent from context. In his
bench ruling, the district judge referred only to one issue, the
annual cap on reimbursement, which the judge described as "a very
significant matter." Batterman said that the cap was
unconstitutional; the defendants seemingly took the position that

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under state law there was no "property interest" that could trigger
the due process clause.
Under Supreme Court precedent, whether there is a
property interest turns largely on state law. See Bd. of Regents
v. Roth, 408 U.S. 564, 577 (1972); PFZ Properties, Inc. v.
Rodriguez, 928 F.2d 28, 30 (1st Cir. 1991). In all likelihood,
the district court believed that a negative answer–i.e.,that no
property right exists under state law--might moot the federal
question of whether the hours cap violates the federal
constitution. More broadly, as another comment of the district
judge made clear, Batterman's federal law suit appeared to the
judge to be primarily a fight about reimbursement of counsel under
a state scheme and so could be best handled by state courts.
The problem with Pullman abstention here is that the
lawfulness of the cap does not present a significant federal
constitutional issue. There may well be a property interest under
state law comprising an attorney's right to be compensated pursuant
to the manual for work done under the CPCS program--although there
is a possible qualification later to be noted concerning in what
court relief should be sought. But the 1800 hour cap is an
explicit limitation in the manual and this makes the constitutional
claim hopeless.
The CPCS program is at best a commitment to compensate
assigned counsel for work voluntarily undertaken on terms set forth

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A lawyer accepting indigent criminal defense work under the 1
CJA program in federal court is limited by statute to a
comparatively modest hourly rate and there is a presumptive cap on
total compensation; although the number of hours can be exceeded by
permission of the court, the per hour cap--which can be equally
harsh in its consequences--cannot be exceeded. 18 U.S.C. §
3006A(d) (2000). Cf. Boivin v. Black, 225 F.3d 36, 41-46 (1st Cir.
2000) (upholding the constitutionality of the Prison Litigation
Reform Act's cap on attorneys' fees).
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by the CPCS; the terms of the commitment include the explicit
limitations in the manual; and any lawyer who takes on such
representation--as Batterman voluntarily did--knows what to expect
in terms of billing and review procedures. There is no right under
state law, property or otherwise, to be paid more than the cap and
so no federal constitutional issue is presented by CPCS's refusal
to do so. Indeed, federal appointment practice has similar
limitations.1
Further, there is no ambiguity with respect to state law
that requires clarification. Under Massachusetts law, assigned
attorneys do not have any entitlement to receive wages for hours
billed over the annual cap on reimbursable hours. See Machado v.
Leahy, 17 Mass. L. Rptr. 263, *8 (Mass. Super. 2004). The manual
is equally explicit on this point. See Assigned Counsel Manual 15
(2005); Assigned Counsel Manual 5:9-10 (1999). "Where there is no
ambiguity in the state statute, the federal court should not
abstain but should proceed to decide the federal constitutional
claim." Wisconsin v. Constantineau, 400 U.S. 433 (1971).

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Batterman's oversized complaint makes clear his contrary
theory: that because he has an ethical duty under state law to
provide zealous representation and that may require more than 1800
hours, the state has a duty to compensate him for whatever hours
are required and that any contract to the contrary is
unconscionable and against public policy. But every lawyer takes
on compensation risks including the possibility that a court may
not let him out of a case even if the client runs short of funds.
See Model Rules of Prof'l Conduct R. 1.16(c); see also Machado, 17
Mass. L. Rptr. at *7 (finding no legal compulsion "where plaintiffs
voluntarily subject themselves to known obligations").
The defendants, who did not propose Pullman abstention,
suggest that somehow Pullman abstention can be justified with
respect to the other constitutional challenges in the complaint.
But their brief makes no serious effort to make out a case for
abstention under Pullman by showing how clarification of a state
law would avoid the need to address such challenges, nor do
defendants invoke any of the other categories of abstention created
by the Supreme Court. See Sevigny v. Emplrs. Ins. of Wausau, 411
F.3d 24, 26 n.2 (1st Cir. 2005).
Conceivably, the district judge or the defendants could
have built an arguable case for abstention as to certain of the
other counts based on Burford abstention, Burford v. Sun Oil Co.,
319 U.S. 315 (1943), which permits abstention where federal law

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A lawyer disappointed by CPCS reimbursement decisions is 2
apparently able to seek judicial review of CPCS's conduct through
an action in certiorari, see Mass. GL. ch. 249 § 4. In fact, other
Massachusetts attorneys have challenged CPCS deductions as takings
and due process violations. See Lewis v. Committee for Public
Counsel Services, 739 N.E.2d 706 (Mass. App. Ct. 2000); Committee
for Public Counsel Services v. Lookner, 716 N.E.2d 690 (Mass. App.
Ct. 1999); Machado, 17 Mass. L. Rptr. at *7-*8.
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suits would unduly disrupt specialized state administrative
schemes. See Chemerinsky, Federal Jurisdiction § 12.2.3 (5th ed.
2007). For CPCS fee disputes, there is an administrative process
with judicial review in state court. But neither the district 2
judge nor the defendants have invoked Burford, and the doctrine's
scope and application are far from straightforward.
Finally, no single abstention doctrine, or probably any
combination of them, would justify abstention for all of the
counts. This is not to say that many (or any) of Batterman’s
counts are promising or even colorable. It is rather that, short
of throwing the case out for pleading violations (which could
perhaps then be remedied anyways), there is no way to avoid claim
by claim analysis, at least of the federal claims.
So our remand will mean more work, if the case is not
settled, but perhaps less than meets the eye. Batterman's
remaining asserted federal law claims center primarily around
several different and reasonably distinct concerns:
Cthat various disallowances or other
calculations in Batterman's reimbursement
requests were wrongly decided, handled with

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Hoffman v. City of Warwick, 909 F.2d 608, 616 (1st Cir. 1990) 3
(quoting Foley v. Carter, 526 F.Supp. 977, 985 (D.D.C.1981). See
also Jordan Hosp., Inc. v. Shalala, 276 F.3d 72, 78 (1st Cir. 2002)
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procedural unfairness, and unreasonably
delayed;
Cthat he has wrongly been excluded from taking
on any new CPCS cases which he describes as a
confiscation of his alleged entitlement to
provide such services;
Cthat the audit process against him is attended
by various procedural and evidentiary mis-
steps and has been unreasonably delayed.
It is open to question whether the last two of these
concerns give rise to any kind of constitutional or other federal
law claim: it is not evident why Batterman would have any protected
interest in the assignment of cases or how the delay in the
auditing has aggrieved him since so far no new disallowance has
apparently been adopted. Admittedly, the merits of these claims
have not been briefed, but the heart of the federal claims may lie
in the first of the three areas.
As to that, Batterman may well have a state-law property
right to reimbursement due to him under the manual--if any is due--
which would be susceptible to federal protection. This court has
said: "The right to a salary for work performed at the rate
admittedly effective during the period when the work was performed
is a right or property interest, a legitimate entitlement which
qualifies for protection against governmental interference under
the Due Process Clause of the Fifth Amendment." But the extent of 3

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(assuming, without deciding, "a legitimate property interest in
receiving reimbursement payments").
Williamson County v. Hamilton Bank, 473 U.S. 172, 192-96 4
(1985); Parratt v. Taylor, 451 U.S. 527 (1981); Chemerinsky,
Federal Jurisdiction, supra, § 8.4, 499 ("In non-civil rights
litigation, a plaintiff must exhaust state administrative remedies
. . . .").
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this right is far from clear, and it cannot be that every
calculational error or delay in payment under a state contract
results in a federal constitutional violation.
Moreover, there may be another problem. Burford aside,
there is no automatic requirement that state remedies be exhausted
for traditional civil rights claims brought under section 1983 or
allied statutes. Guerro v. Mulhearn, 498 F.2d 1249, 1252 (1st Cir.
1974). But where property interests are at stake rather than
personal liberties, something like an exhaustion doctrine has
developed in certain circumstances--the premise being that no
deprivation exists where state law provides an adequate remedy.
Examples are eminent domain takings or deprivation of property in
prisons.4
Of course, this assumes a real rather than a nominal
remedy, and endless delay might, as with ordinary exhaustion,
provide an escape. Cf. Safeway Stores v. Brown, 138 F.2d 278, 280
(Emer. Ct. App. 2000). But this in turn poses the question whether
a supplicant might not also be required to seek mandamus from the
state court to compel agency action unduly delayed. And--

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Massachusetts law may provide such a remedy. Trust Insurance
Company v. Commissioner of Insurance, 724 N.E.2d 710, 714 (Mass.
App. Ct. 2000). The defendants doubtless have some explaining to
do as to the delay; the question is, to whom in the first instance?
No exhaustion or like requirement exists as to
Batterman's main state-law claims but, if the federal claims were
disposed of on the papers, the district court would likely decline
to exercise pendent jurisdiction over the state-law claims, 28
U.S.C. § 1367 (2000). And some of the state claims or remedies
sought may be vulnerable to qualified immunity defenses or, where
effectively for money due properly from the state, to possible
Eleventh Amendment objections. This is a case that could probably
be pared rapidly down to size.
In all events, Batterman’s attack on the cap is meritless
and his present hope of a vast monetary recovery may well be
dubious. At the same time, he may be owed something under the
manual and an agency cannot easily explain why it takes years for
it to decide about reimbursement for past work. Both sides ought
to consider whether this case can be resolved by discussion and
without further litigation.
The district court's decision abstaining on grounds of
Pullman abstention is vacated and the matter remanded for further
proceedings consistent with this decision. Each side will bear its
own costs on this appeal.

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It is so ordered.

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