Shadow Judges: Staff Attorney Adjudication of Prisoner Claims

Katherine MacFarlane, University of Idaho College of Law


Prisoners bring over twenty percent of the civil cases filed in federal district courts, predominantly seeking redress for violations of their civil rights, or release from prison under habeas corpus. Because most prisoners (around ninety-three percent) proceed pro se in their federal civil litigation, they are already at a disadvantage. The deck is stacked against prisoner plaintiffs in other systemic ways. Local rules, general orders, and even district courts’ job postings suggest that when a plaintiff is a pro se prisoner the plaintiff is denied an Article III judge. Judicial tasks that must be performed in prisoners’ cases, from administration to adjudication, are delegated to nonjudicial staff. As a result, in the very same federal courthouse, prisoners’ cases are decided by a court employee who works as part of the court’s “pro se staff,” while all other plaintiffs’ cases are decided by an Article III judge (or at least a magistrate judge, if they consent). The Supreme Court’s 2015 Wellness International Network v. Sharif decision drew attention to delegation of Article III claims to non-Article III judges in the bankruptcy realm. In that case, the Court rigorously considered the impact of the structural error caused by delegation to judges who do not enjoy fixed salaries or life tenure. But delegation of the judicial power in the prisoner litigation context is still hiding in plain sight.

This Article is the first to investigate the scope of the delegation to pro se staff and to consider corresponding separation of powers concerns. Local procedure that delegates this deciding judicial power to pro se staff has gone too far. Local procedure crafts rules for prisoner litigation that conflict with federal law, effectively denying access to an Article III judge. When federal courts overreach in this manner, their rulemaking exceeds the limited rulemaking authority Congress has delegated to the judiciary. This local procedure also violates federal policy, which generally disfavors allowing nonjudicial actors to perform judicial tasks.

This Article concludes with recommendations about how to solve the delegation problem. The strongest solution would be to eliminate the local procedures in question and the pro se staff they create. Congress would be required to address the issue directly and nationwide by creating, or not, additional procedure for prisoner litigation. A more moderate approach would publicize the identity of pro se staff as well as the nature of the work the staff undertakes and would allow for a review procedure similar to that afforded to litigants who proceed in front of magistrate judges. Either proposal would bring pro se staff out of the shadows of federal litigation.