– 244 –
Oral History of
Tenth Interview
July 9, 2008
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is the Honorable Frank Q. Nebeker, Senior
Judge, District of Columbia Court of Appeals, and the interviewer is David W. Allen. The
interview took place on July 9, 2008. This is the tenth interview.
Mr. Allen: Today is July 9, 2008. This is the continuation of the oral history of
Frank Q. Nebeker. We have covered in previous sessions the Judge’s life
history and pretty much all of his professional career, including the various
courts on which he has served, his stint as Government Ethics Officer, and
the creation of the Veterans Court and his return to senior status at the D.C.
Court of Appeals, and the Judge has asked to have one more session to kind
of go back and pick up anything he’d like but in particular to focus on the
line of cases that led to the Supreme Court decision in Pulliam v. Allen in
1984 and the aftermath of that decision and Judge Nebeker’s activities with
respect to the fallout of that decision and the possible liability of events that
occur in their courtrooms. I think that’s probably enough introduction.
Judge, why don’t you take it over.
Judge Nebeker: All right. As I think I’ve discussed previously in this oral history, I spent
about 28 years with the Appellate Judges Conference Seminar Series and as
a result became quite well acquainted with the majority of the appellate
judges in the United States, plus many in Canada and Australia. During the
– 245 –
course of preparing the seminars, I met a man named Joseph R. Weisberger.
He was a Justice on the Rhode Island Supreme Court and subsequently
became its Chief Justice and, I might add, with a sterling performance
unlike many of his successors or predecessors on that court. I say that by
way of preface because when Pulliam v. Allen was decided, and what it held
was that there was no judicial immunity to bar prospective injunctive relief
against a judicial officer acting in his or her own judicial capacity, and that
was quite a shock. It came about as a result of Magistrate Pulliam, a
Virginia magistrate who had a practice of setting bail even in non-jailable
offenses, petty offenses. These two people, Allen being the initial plaintiff,
brought declaratory judgment and injunctive relief action against Pulliam
under 1983 Civil Rights Act. The District Court in Virginia enjoined the
practice. The Fourth Circuit Court of Appeals affirmed. The case went to
the Supreme Court and it affirmed, holding that there was no judicial
immunity for prospective injunctive relief against a judicial officer. Then
the issue of attorneys’ fees was broached in the case. That is, attorneys’
fees under Section 1988 of the Civil Rights Act because Allen and his
associate had succeeded in prevailing in their injunctive action and so the
Federal District Court and the Fourth Circuit agreed that under
Section 1988, the Magistrate was personally liable for attorneys’ fees, of, if
I recall correctly, they were in the neighborhood of four figures, somewhere
in the thousands of dollars.
– 246 –
Mr. Allen: Something like $7,000.
Judge Nebeker: $7,000. The Supreme Court sustained that action and Magistrate Pulliam
was held personally liable. As an aside, I might add, I’ve been informed
that the state paid the fee rather than her personally, but still the judgment
was a personal liability judgment against her. And thus began an effort by
the Appellate Judges Conference, mainly through Chief Justice Weisberger
to have Section 1988 amended to overturn this decision on personal liability
for attorneys’ fees. Justice Weisberger testified a number of times before
the Senate Judiciary Committee on this matter for years, a good ten years or
more. It never saw the light of day. The bill would be introduced, would
never be reported out. Well, during the last two years of the Clinton
administration, you recall that the Congress became controlled by the
Republicans. I was Chief Judge of the U.S. Court of Appeals for Veterans
Claims and I had asked if I could see Senator Thurman about some matters
respecting the Veterans Court. He was gracious. I went to his office and we
dealt with the problems of the Veterans Court. He then said – I won’t forget
it – he then said, “Well gentlemen, if that is all,” and he stood preparing to
escort us out. I said, “Well, Mr. Chairman, there is one other matter that has
nothing to do with the Veterans Court.” And I started to explain to him
about Pulliam v. Allen. He remembered it, and he turned to his legislative
assistant who was in the room at the same time, and said, “Whatever
happened to that bill?” The legislative assistant was nonplussed; he didn’t
– 247 –
know. It was a surprise to him that we were talking about this. I said,
“Well Mr. Chairman, I can tell you what happened. Your colleagues,
Senators Kennedy and Biden, wouldn’t let it see the light of day.” He
turned to his legislative assistant and he said, “Let’s get that bill out and get
it introduced.” Well that happened, and when it was introduced, I contacted
the legislative aide and said, “Gee, this thing is a stand-alone bill all by
itself, it’s sure going to run into trouble isn’t it?” And his aide said, “Well,
don’t worry about it. We’ll take care of it.” At the end of that
congressional session, on a consent calendar, was the Federal Courts
Improvement Act of 1996, I believe it was, and it passed the dark of night,
was signed by the President, and in it contained the amendment to
Section 1983 protecting the independence of judiciary – state judiciary
mainly – by exempting them from personal liability in the event there was a
successful injunctive action against them in their official capacity.
Mr. Allen: And Clinton signed it?
Judge Nebeker: Clinton signed it. What I do recall specifically about the effort was that
Justice Weisberger reported to the Appellate Judges Conference on
numerous occasions that there had been other actions filed against other
state judicial officers throughout the United States and that there was a real
concern for judicial independence because of the potential personal liability
of the judge. So that explains that it was more than just Pulliam v. Allen at
stake in this legislative endeavor. And as I say, I was happy to report to
– 248 –
Joe Weisberger that this little-known provision in that Federal Courts
Improvement Act was there, and he was so pleased. He credits me with it
but really I think it was his efforts that made it possible for
Senator Thurman to take the ball and run with it. And I thought that that
might be an appropriate episode, to include in this oral history.
Mr. Allen: Oh absolutely. I think it characterizes very much your career in a lot of
ways. My overall impression from these sessions is that it’s been a lovely
thing, so your personal reflections on the large issues as well as people, and
some of them behind the scenes of people you never hear about, some as
famous as Chief Justice Burger and members of his family whom you knew,
as well as putting the court together, throughout a concern with the process,
so I think this is an example of all that. The record is still open, and I think
that’s great.
Judge Nebeker: I’ve tried to edit some of the transcripts thus far. I haven’t been too
successful at it. But I’ll definitely finish it, and if I’ve left out anything that
I should’ve included, it’s probably a good idea because this is a long enough
Mr. Allen: [turned off recorder, but tape is still going – balance of Side A and Side B
are blank]