     Case: 13-11415      Document: 00512831768         Page: 1    Date Filed: 11/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-11415
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               November 10, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

JOYCE SIMMONS, ET AL

              Defendants




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:13-CV-66


Before KING, GRAVES, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:*
       This civil restitution case brought by the United States comes to us on
interlocutory appeal or, alternatively, on petition for mandamus. In a previous
action, Defendant Joyce Simmons was convicted of preparation of false tax
returns and, as part of her sentence, was ordered to pay over $28 million in
criminal restitution to the Internal Revenue Service. The government brought
the underlying action to enforce that judgment and to void allegedly fraudulent


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 13-11415      Document: 00512831768         Page: 2    Date Filed: 11/10/2014



                                      No. 13-11415
transfers of property that threatened to interfere with its right to recovery.
The complaint names five defendants: Joyce Simmons; Joyce’s brother, Eugene
Simmons; Joyce’s daughter, D.M. (a minor); Kerry Lynn James, as natural
parent of D.M.; and Wells Fargo Bank, which had its own lien on one of the
properties at issue.
       D.M. is currently unrepresented in this matter. James, as next friend of
D.M., appeared pro se and filed an answer on behalf of D.M. After holding a
hearing at which the district court questioned James, the court concluded “that
James would not provide sufficient legal representation to D.M. . . . as her next
friend or in any other capacity.” The court further concluded “that for D.M. to
be afforded adequate legal representation in this action, the court would be
required to appoint an attorney as a guardian ad litem to represent her in
defense of the claims being made against her.”                    The court noted its
disinclination to appoint a guardian ad litem for D.M. absent an assurance that
the guardian ad litem would be appropriately compensated. The court stated
that it “would expect [the government] to commit to make payment of such . . .
fees and expenses.” 1 Thus, on September 4, 2013, the court issued a stay,
which was to remain in effect “until such time as the court has received
satisfactory assurance from [the government] that a guardian ad litem
appointed by the court . . . would be adequately compensated.” The court cited
a civil forfeiture case in which a similar situation arose and in which the
government agreed to pay for a guardian ad litem.
       The government then moved to lift the stay and to appoint pro bono
counsel for D.M. The government explained that it did not have the statutory



       1The district court noted, however, that “[s]uch a commitment . . . would not prevent
[the government] from seeking an order requiring a defendant other than D.M. to reimburse
[the government] for all or some part of whatever payment it might make for [such] fees and
expenses.”
                                             2
    Case: 13-11415      Document: 00512831768   Page: 3   Date Filed: 11/10/2014



                                 No. 13-11415
authority to pay for a guardian ad litem in this circumstance, distinguishing
the forfeiture case cited by the district court.      It also proposed several
alternative solutions for funding the guardian ad litem—appointment of an
attorney from the Northern District of Texas’s Pro Bono Civil Panel,
appointment of a pro bono attorney from the Family Court Services of Tarrant
County, and the use of Criminal Justice Act (“CJA”) funds to compensate an
appointed attorney. In an order denying the government’s motion, the district
court determined that it was required to appoint a guardian ad litem for D.M.
pursuant to Federal Rule of Civil Procedure 17(c), rejected the government’s
suggested solutions, and rejected the notion that the government would be
unable to pay for a guardian ad litem’s fees. The district court therefore
refused to lift the stay.
      We must first address whether we have jurisdiction to hear this appeal.
The government primarily contends that we have jurisdiction pursuant to the
collateral order doctrine. However, a prerequisite to jurisdiction under that
doctrine is that the district court’s order “‘conclusively determine the disputed
question.’” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 171 (5th
Cir. 2009) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).
It is not true, as the government asserts, that “[t]he district court’s order
conclusively determines that the government must fund” the guardian ad
litem. Rather, the district court only required that the government provide
“satisfactory assurance” that the guardian ad litem would be adequately
compensated. Thus, the district court did not “conclusively determine” who
would pay.
      The government’s alternative argument that a writ of mandamus is
warranted has more merit. “A writ of mandamus may issue only if (1) the
petitioner has no other adequate means to attain the desired relief; (2) the
petitioner has demonstrated a right to the issuance of a writ that is clear and
                                       3
    Case: 13-11415     Document: 00512831768     Page: 4   Date Filed: 11/10/2014



                                  No. 13-11415
indisputable; and (3) the issuing court, in the exercise of its discretion, is
satisfied that the writ is appropriate under the circumstances.” In re Dean,
527 F.3d 391, 394 (5th Cir. 2008) (internal quotation marks and citation
omitted). “These hurdles, however demanding, are not insuperable.” Cheney
v. U.S. Dist. Court, 542 U.S. 367, 381 (2004). We have held that “[m]andamus
is appropriate to correct the grant of a stay which amounts to a clear abuse of
discretion.” S. Pac. Transp. Co. v. San Antonio, 748 F.2d 266, 270 (5th Cir.
1984). Indeed, although “mandamus is an extraordinary remedy, not to be
granted lightly,” it may be appropriate where “petitioners challenge . . . a stay,
potentially of lengthy duration, [because] there is no interruption with ongoing
proceedings below.” In re Ramu Corp., 903 F.2d 312, 317–18 (5th Cir. 1990).
      Assuming, without deciding, that we have authority to issue a writ of
mandamus, we nonetheless decline at this time to exercise our discretion to do
so. See In re Dean, 527 F.3d at 394. We are confident that the district court
will take the necessary steps to move this case forward. D.M. is unrepresented;
thus, under Rule 17(c)(2), the district court must appoint a guardian ad litem
or “issue another appropriate order” to protect her interests. Fed. R. Civ. P.
17(c)(2). Our decision in Gaddis outlines the discretion of the district court to
decide whether a guardian ad litem is necessary and, if so, to appoint an
appropriate guardian ad litem. Gaddis v. United States, 381 F.3d 444, 454–55
(5th Cir. 2004) (en banc). As to methods of compensation, we announced only
the following:
      [U]nder Rule 17(c), the district courts have inherent authority and
      discretion to determine . . . [w]hether the compensation payable to
      the guardian ad litem will be treated (1) as a court cost to be
      taxable against the nonprevailing party or (2) as an expense to be
      payable out of any funds recovered by or payable to the minor or
      incompetent person on whose behalf the guardian ad litem was
      appointed.
Id. at 455.
                                        4
     Case: 13-11415       Document: 00512831768          Page: 5     Date Filed: 11/10/2014



                                       No. 13-11415
       In light of this absence of controlling authority or guidance for interim
payments, 2 the district court and the government may profitably explore
various options. Any guardian ad litem whom the district court appoints might
serve pro bono pending the outcome of the litigation, at which time the
guardian ad litem’s fees may be taxed against the nonprevailing party under
Federal Rule of Civil Procedure 54(d). See Gaddis, 381 F.3d at 459. The
guardian ad litem can advise D.M. and the district court about the need for
D.M. to have separate counsel, and could retain counsel for D.M. and arrange
for payment from the proceeds of the property, or locate pro bono counsel, or
assist in finding another solution. See Gibbs v. Gibbs, 210 F.3d 491, 506 (5th
Cir. 2000) (“The guardian ad litem is frequently not an attorney and if legal
services are required, he must seek and employ counsel.” (internal quotation
marks and citations omitted)).             Alternatively, D.M.’s representative may
function both as a guardian ad litem and as an attorney ad litem, though only
his fees for work as a guardian ad litem will be taxable as costs under Rule
54(d). See Gaddis, 381 F.3d at 459 (“[W]here the same person acts in the
capacities as both a minor’s guardian ad litem and as his attorney ad litem,
only the person’s expenses in the former role are taxable as costs under Fed.
R. Civ. P. 54(d).” (internal quotation marks and citations omitted)).
       We therefore DENY the petition for writ of mandamus without prejudice
to the government’s right to file another petition should the current impasse
fail to be resolved, either leading to an indefinite stay or, oppositely, leading to



       2 The dissent faults us and the district court for failing to identify caselaw on payment
for guardians ad litem, but to grant mandamus, even if a payment order were before us, the
burden is on petitioner to show clear and indisputable error. See In re Dean, 527 F.3d at 394;
see generally Cheney v. U.S. Dist. Court, 542 U.S. 367, 380–81 (2004) (mandamus, as “one of
the most potent weapons in the judicial arsenal,” must be “reserved for really extraordinary
causes . . . amounting to a judicial usurpation of power or a clear abuse of discretion;” burden
is on petitioners to show “clear and indisputable” entitlement) (internal quotation marks and
citations omitted).
                                               5
    Case: 13-11415   Document: 00512831768    Page: 6   Date Filed: 11/10/2014



                               No. 13-11415
a payment order which the government demonstrates exceeds the court’s
authority. Any future petitions for writ of mandamus will be directed to this
panel.




                                     6
     Case: 13-11415       Document: 00512831768          Page: 7     Date Filed: 11/10/2014



                                       No. 13-11415
KING, Circuit Judge, dissenting:
       I respectfully dissent. We should grant the Government’s petition for a
writ of mandamus.
       The district court has effectively imposed an indefinite stay of this
matter, halting proceedings until the Government agrees to pay for its
adversary’s guardian ad litem. 1 It has refused to lift the stay in spite of the
Government’s consistent position that it lacks the statutory authority to make
such a payment. The district court cited no authority for the proposition that
the Government can agree to pay for a guardian ad litem in this situation.
Instead, the district court relied on the Government’s agreement to pay
guardian ad litem fees in a separate case involving “forfeiture of real property
in which . . . minors had legal interests.” But, as the Government pointed out
below, there is a fund specifically allocated for such expenses in civil forfeiture
cases. See 28 U.S.C. § 524(c)(1)(A) (establishing fund for “the payment . . . of
any . . . necessary expense incident to the . . . forfeiture . . . of . . . property”).
Neither the district court nor the majority has identified any provision
allowing the Government to expend funds on guardian ad litem fees in non-
forfeiture cases such as the one at hand. See 31 U.S.C. § 1341(a)(1)(A) (“An
officer or employee of the United States Government . . . may not . . . make or
authorize an expenditure or obligation exceeding an amount available in an
appropriation or fund for the expenditure or obligation . . . .”). 2


       1  The district court purported to allow the Government to propose alternative
solutions for compensating the ad litem. However, the court discarded the Government’s
various proposals—for example, the appointment of an attorney from the Northern District
of Texas’s Pro Bono Civil Panel or the appointment of a pro bono attorney from the Family
Court Services of Tarrant County—without meaningfully explaining why the proposed
solutions were inadequate. I cannot believe that in the Dallas-Fort Worth area there is no
competent attorney willing to take on the representation either pro bono or with the
possibility of being paid from the proceeds of sale of some of the property at issue.
       2 This issue is complicated further by the district court’s insistence that the guardian

ad litem in this case function at least in part as an attorney—by, for example, conducting
                                              7
     Case: 13-11415       Document: 00512831768          Page: 8     Date Filed: 11/10/2014



                                       No. 13-11415
       We therefore have the authority to issue a writ of mandamus which, as
the majority notes, is warranted where “petitioners challenge . . . a stay,
particularly of lengthy duration.” In re Ramu Corp., 903 F.2d 312, 317–18 (5th
Cir. 1990) (“[D]iscretionary stays . . . will be reversed when they are
immoderate or of an indefinite duration.” (internal citation and quotation
marks omitted)). On the assumption that the court has the power to issue a
writ, the majority nonetheless exercises its discretion to deny the petition. In
so doing, the majority only invites the district court to prolong the current
impasse. Based on my review of the record, I do not share the majority’s
confidence that this impasse will be resolved absent our intervention. In the
meantime, the Government represents that “[l]ocal government entities have
commenced various proceedings to collect delinquent taxes on the parcels of
real property at issue” and “[i]f the taxes are not paid, such proceedings could
culminate in a foreclosure sale of the properties.” Time is therefore of the
essence. Accordingly, I would grant the Government’s petition and issue a writ
of mandamus ordering the district court to lift the stay and appoint a guardian
ad litem to represent D.M.—as the district court and the majority agree is
necessary. For these reasons, I respectfully dissent.




“[l]egal research,” and “fil[ing] . . . motions.” As the Government points out, “[e]xcept to the
extent it has waived its immunity, the Government is immune from claims for attorney’s
fees.” Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983) (noting that such waivers “must
be construed strictly in favor of the sovereign” (internal citation and quotation marks
omitted)).

                                               8
