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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001. memo
U.S. Magistrate Judge William J. Haynes, Jr.; RE: DOB and POB
05/21/1998
b(6)
[partial] (1 page)
002. memo
U.S. Magistrate Judge William J. Haynes, Jr.; RE: DOB and POB
05/21/1998
b(6)
[partial] (1 page)
003. memo
U.S. Magistrate Judge William J. Haynes, Jr.; RE: DOB and POB
05/21/1998
b(6)
[partial] (1 page)
COLLECTION:
Clinton Presidential Records
Counsel Office
Sarah Wilson
OA/Box Number: 14689
FOLDER TITLE:
[William] Haynes (MD [Middle District of] Tenn. [Tennessee]) Articles [3]
2007-0561-F
db2898
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - 15 U.S.C. 552(b)]
PI National Security Classified Information [(a)(1) of the PRAJ
b(1) National security classified information |(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office |(a)(2) of the PRA
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRAJ
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA|
financial information |(a)(4) of the PRAJ
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information |(b)(4) of the FOIAJ
and his advisors, or between such advisors [a)(5) of the PRAJ
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy |(b)(6) of the FOIA]
personal privacy |(a)(6) of the PRA]
b(7) Release would disclose information compiled for law enforcement
purposes |(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells |(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001. memo
U.S. Magistrate Judge William J. Haynes, Jr.; RE: DOB and POB
05/21/1998
b(6)
[partial] (1 page)
COLLECTION:
Clinton Presidential Records
Counsel Office
Sarah Wilson
OA/Box Number: 14689
FOLDER TITLE:
[William] Haynes (MD [Middle District of] Tenn. [Tennessee]) Articles [3]
2007-0561-F
db2898
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - 15 U.S.C. 552(b)]
P1 National Security Classified Information [(a)(1) of the PRA]
b(1) National security classified information [(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA]
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute |(a)(3) of the PRAJ
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute |(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information |(b)(4) of the FOIA|
and his advisors, or between such advisors [a)(5) of the PRAJ
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy |(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions |(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells |(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
May 21, 1998
MEMORANDUM
U.S. MAGISTRATE JUDGE WILLIAM J. HAYNES, JR.
JUDICIAL CANDIDATE, MIDDLE DISTRICT OF TENNESSEE
I.
BACKGROUND
The federal District Court for the Middle District consists of only white male judges.
Press reports have suggested that the next nomination might "diversify" the bench. Magistrate
Judge Haynes, an African-American, has indicated his interest in this position. The "Napier-
Looby Bar Association," which includes many African-American attorneys, has advocated
Haynes' possible nomination. Two women, federal Bankruptcy Judge Trauger and state Circuit
Court Judge Cornelia Clark (who coordinated part of Vice-President Gore's 1988 presidential
campaign), are also under consideration. State Circuit Judge John Maddux, a former
administrative assistant to Gore, is also a candidate.
II.
BIOGRAPHICAL INFORMATION
U.S. Magistrate Judge William J. (Joe) Haynes, Jr., is a forty-eight year old African-
American man.
(b)(6)
Haynes received a Bachelor of Arts
[001]
from the College of St. Thomas Aquinas in 1970 and a Juris Doctor from Vanderbilt University
School of Law in 1973. Haynes has been a Magistrate Judge for the Middle District of
Tennessee since his appointment in December of 1984; he was reappointed in 1992 to another
eight-year term. From the time he graduated from law school until he became a magistrate,
Haynes worked in the Tennessee Attorney General's Office.¹ Before his appointment to the
Middle District, he served as the Special Deputy Assistant Attorney General for Litigation in
1984. From 1978 through part of 1984, he was the Deputy Attorney General of the Antitrust and
Consumer Protection Division. He also served briefly in 1979 as a District Attorney Pro Tem for
Shelby County. From 1977 to 1978, Haynes was a Senior Assistant Attorney General and from
1973 until 1977, he was an Assistant Attorney General for the state of Tennessee.
While serving as a magistrate, Haynes has been a Lecturer at Vanderbilt University
School of Law since 1987. From 1986 to 1990, he was also an Instructor at Southeastern
Paralegal Institute. Additionally, Haynes was a "Master Bencher" of the local Inn of Court from
1990 to 1992. He was Vice-Chair of the ABA Committee on State Antitrust Enforcement from
1989 to 1990. In 1989 he also served on the Advisory Board of the Corporate Practice Series of
BNA. Also, since 1992, he has served on the state bar association's Commission on Women and
Minorities in the Profession.
From 1983 to 1984, he was an assistant to the Honorable William M. Leech, Jr., a former
1
The local Practice & Procedure Manual of Judges and Magistrate Judges indicates
that Haynes had a "brief stint" in private practice in 1984 before his appointment but the name of
the firm or the nature of that practice is not apparent from the public records check.
Clinton Library Photocopy
Tennessee Attorney General and the Chair of the Antitrust Committee of the National
Association of Attorneys General (NAAG). During that period, he also served on the Hearing
Committee of the Tennessee Board of Professional Responsibility. From 1982 to 1984, Haynes
was a member of the Antitrust Litigation and Training Committees of NAAG. In 1983, he was
on the Board of Directors of Napier-Looby Bar Association.
Haynes was also involved in many community organizations before he became a
magistrate. For example, he was a member of the Tennessee Historical Society and the Rotary
Club of Nashville. He served on the Board of Directors of the Cumberland Museum and Science
Center (1980 to 1984), Children's House (1982 to 1984), and Opportunity House (1981 to 1983).
In 1990, Haynes was presented with a Black History Month Award by the Middle
Tennessee Federal Executives Association. In 1973, he was the recipient of the Bennet Douglas
Bell Award from Vanderbilt University. He was also named Teenager of the Year by the
Catholic Youth Organization in 1966.
III.
NOTEWORTHY CASES AND OTHER PUBLICITY
A.
Writings & Publicity
Haynes has a national reputation for his contributions to antitrust law. He has been a
speaker or a panelist at numerous local, state and federal bar association meetings. The records
check, however, did not locate the text of any of those speeches. Haynes has also written about
antitrust law. In 1993, the Practicing Law Institute published his article "Will the Answers Be
Different Under State Antitrust Laws?" In that article, he examines nearly every aspect of state
antitrust enforcement. In 1991, he was a contributing author to the second edition of Legal
Aspects of Buying and Selling. In 1989, his book State Antitrust Laws was published by BNA.
According to a summary of that book, Haynes argued that state courts are likely to handle an
increased number of antitrust cases because federal enforcement policies are more controversial
and the federal case law is increasingly unclear. This Office has not yet examined the book.
Despite Haynes lengthy public service as a high-ranking state's attorney, he has rarely spoken to
the press. This apparently occurred on only one occasion, involving a bankruptcy case related to
the World's Fair, he told a reporter that the state had filed suit in 1983 against a derelict
reservation company in order "to protect the integrity of commerce in Tennessee."
B.
Cases as a Magistrate Judge
While Haynes has been publishing his views on antitrust law, little of his work during his
fourteen years as a Magistrate Judge is available through a public records check. According to
that limited information, Haynes has had the opportunity to write a Report and Recommendation
on an antitrust issue in only one reported case. In Ford V. Stroup, No. 96-5455, 1997 WL
201560 (6th Cir. Apr. 23, 1997) (unpublished), the Sixth Circuit affirmed his decision to grant
summary judgment to the defendant on plaintiff's complaint of that the defendant physician and
his oncology practice group engaged in monopolization.
The dearth of reported cases is likely due to the fact that Haynes and the other Magistrate
Judge primarily hold hearings on procedural matters and they handle mostly preliminary matters
in about 65% of the cases filed in the Middle District. As a Magistrate Judge, Haynes reportedly
handles some civil trials and misdemeanor criminal trials, as well as most preliminary criminal
matters such as bond hearings. Indeed, less than two dozen reported cases refer to Haynes' work
as a magistrate and these relate to adoption of his R & R's or to review by the Sixth Circuit of an
adopted decision. These reported cases generally do not involve noteworthy or high-profile
matters but have involved a wide range of issues including social security benefits, Medicaid
reimbursement, prisoners' civil rights suits, habeas cases, and contract disputes. In these
reported cases, his R & R's are frequently adopted and are usually affirmed, if appealed. For
example, in a review of one of his habeas decisions, the Sixth Circuit complimented his "detailed
and well-reasoned opinion" finding that the petitioner failed to show cause and prejudice for his
failure to raise all constitutional claims in previous petitions for habeas corpus relief. Arendall V.
Morgan, No. 93-5860, 1994 WL 228270 (6th Cir. May 24, 1994) (unpublished).
In only three instances does the records check reveal that the Sixth Circuit reversed the
district court's adoption of his R & R. In one case, the Court of Appeals reversed the district
court on the ground that Haynes improperly conditioned dismissal with prejudice on the payment
of costs and fees. Tennessee Health Care Ass'n V, Commissioner, Tenn. Dep't of Health &
Human Servs., Nos. 91-5789 & 91-6220, 1992 WL 36217 (6th Cir. Feb. 26, 1992) (unpublished).
The Sixth Circuit found that the conditions imposed by Haynes were inconsistent with circuit
precedent for dismissals with prejudice under Fed. R. Civ. Proc. 41(a)(2). In another case, the
Sixth Circuit remanded a decision in which the district court had adopted Haynes' R & R
affirming the denial of social security benefits by an administrative law judge (ALJ). Barlow V.
Sullivan, No. 90-5810, 1991 WL 29215 (6th Cir. Mar. 7, 1991). In that case, the circuit court
faulted the ALJ for failing to consider statements supporting plaintiff's disability claim. In Gant
V. Dutton, No. 89-6039, 1991 WL 12 (6th Cir. 1991), the Sixth Circuit remanded a case in which
Haynes issued an R & R finding that a warden's offer to remove a prisoner from administrative
segregation and to expunge related records rendered the petitioner's claim moot. The appellate
court found that the offer did not moot the petitioner's claims because it imposed additional
conditions that the prisoner found unacceptable.
Additionally, local newspapers reported on a few cases of Haynes that were not reported
in the Westlaw® database. For example, in one sexual harassment case, Haynes is said to have
awarded $50,000 and $10,000, respectively, to two former employees of Robert S. Biscan & Co.
Haynes awarded the larger sum to a woman who was subjected to repeated sexually explicit
remarks, jokes and comments by the company president and he awarded the smaller sum to a
woman who was subject to an "isolated act of sexual harassment." In another significant case,
Haynes recommended that the city be prevented from charging fees to companies that do not use
the government's incineration plant and instead haul their garbage out of the county. There is no
indication of whether or not the R & R was adopted.
C.
Cases for the Tennessee Attorney General's Office
As an Assistant Attorney General, Haynes was listed as one of many state attorneys
cooperating in filing amici curiae briefs in four cases before the United States Supreme Court.
All four of those cases, which were decided between 1982 and 1984, involved antitrust issues.
Haynes was also attorney of record in three cases before the United States Court of
Appeals for the Sixth Circuit. He was on the brief with the state Attorney General in one of
James Earl Ray's habeas corpus petitions for relief from his conviction for assassinating Martin
Luther King, Jr. In that case, the Sixth Circuit affirmed the District Court's denial of Ray's
petition claiming ineffective assistance of counsel and challenging his guilty plea. Ray V. Rose,
535 F.2d 966 (6th Cir. 1976). When Haynes was serving as Special Deputy Attorney General in
1984, he was lead counsel and argued a case before the Sixth Circuit which involved the federal
government's appeal of a the District Court's order enjoining the Department of Transportation
from offsetting FHA grants to the state with amounts the state had recovered from bid riggers on
highway projects. In Tennessee V. Dole, 749 F.2d 331 (1984), the Sixth Circuit reversed the
injunction and remanded the case. The third case in which Haynes submitted a brief to the Sixth
Circuit involved a dismissal of a routine habeas corpus petition, which was affirmed on appeal.
In addition to his extensive work in antitrust law, Haynes is also known for his work
defending the state in a lawsuit to desegregate Tennessee's public colleges and universities.
Geier V. Blanton, 427 F. Supp. 644 (M.D. Tenn. 1977), aff'd 597 F.2d 1078 (6th Cir. 1979). The
United States Department of Justice had intervened on plaintiffs' behalf. This lengthy litigation
was initiated in 1968, and it culminated with a month-long evidentiary hearing in 1976. The
District Court recognized that defendants had made slow progress in the dismantling of a dual
system of higher education in Tennessee and ordered the merger of the white and black colleges
into a single institution under a single governing board.
Haynes was also attorney of record in twenty-four reported state appellate cases. It
appears from these cases that in his first few years at the state Attorney General's Office, Haynes
worked on numerous criminal appeals. Starting in 1977, most of Haynes' reported cases involve
civil matters, including contract claims, tax cases, discrimination suits, and antitrust issues.
Haynes was also counsel of record in twelve cases before the Supreme Court of Tennessee.
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
002. memo
U.S. Magistrate Judge William J. Haynes, Jr.; RE: DOB and POB
05/21/1998
b(6)
[partial] (1 page)
COLLECTION:
Clinton Presidential Records
Counsel Office
Sarah Wilson
OA/Box Number: 14689
FOLDER TITLE:
[William] Haynes (MD [Middle District of] Tenn. [Tennessee]) Articles [3]
2007-0561-F
db2898
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P1 National Security Classified Information |(a)(1) of the PRA]
b(1) National security classified information |(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRAJ
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRA]
an agency ((b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information [(a)(4) of the PRA]
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information [(b)(4) of the FOIA]
and his advisors, or between such advisors |a)(5) of the PRA|
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy [(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA
b(7) Release would disclose information compiled for law enforcement
purposes |(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
May 21, 1998
MEMORANDUM
U.S. MAGISTRATE JUDGE WILLIAM J. HAYNES, JR.
JUDICIAL CANDIDATE, MIDDLE DISTRICT OF TENNESSEE
I.
BACKGROUND
The federal District Court for the Middle District consists of only white male judges.
Press reports have suggested that the next nomination might "diversify" the bench. Magistrate
Judge Haynes, an African-American, has indicated his interest in this position. The "Napier-
Looby Bar Association," which includes many African-American attorneys, has advocated
Haynes' possible nomination. Two women, federal Bankruptcy Judge Trauger and state Circuit
Court Judge Cornelia Clark (who coordinated part of Vice-President Gore's 1988 presidential
campaign), are also under consideration. State Circuit Judge John Maddux, a former
administrative assistant to Gore, is also a candidate.
II.
BIOGRAPHICAL INFORMATION
U.S. Magistrate Judge William J. (Joe) Haynes, Jr., is a forty-eight year old African-
American man.
(b)(6)
Haynes received a Bachelor of Arts
[002]
from the College of St. Thomas Aquinas in 1970 and a Juris Doctor from Vanderbilt University
School of Law in 1973. Haynes has been a Magistrate Judge for the Middle District of
Tennessee since his appointment in December of 1984; he was reappointed in 1992 to another
eight-year term. From the time he graduated from law school until he became a magistrate,
Haynes worked in the Tennessee Attorney General's Office.¹ Before his appointment to the
Middle District, he served as the Special Deputy Assistant Attorney General for Litigation in
1984. From 1978 through part of 1984, he was the Deputy Attorney General of the Antitrust and
Consumer Protection Division. He also served briefly in 1979 as a District Attorney Pro Tem for
Shelby County. From 1977 to 1978, Haynes was a Senior Assistant Attorney General and from
1973 until 1977, he was an Assistant Attorney General for the state of Tennessee.
While serving as a magistrate, Haynes has been a Lecturer at Vanderbilt University
School of Law since 1987. From 1986 to 1990, he was also an Instructor at Southeastern
Paralegal Institute. Additionally, Haynes was a "Master Bencher" of the local Inn of Court from
1990 to 1992. He was Vice-Chair of the ABA Committee on State Antitrust Enforcement from
1989 to 1990. In 1989 he also served on the Advisory Board of the Corporate Practice Series of
BNA. Also, since 1992, he has served on the state bar association's Commission on Women and
Minorities in the Profession.
From 1983 to 1984, he was an assistant to the Honorable William M. Leech, Jr., a former
1
The local Practice & Procedure Manual of Judges and Magistrate Judges indicates
that Haynes had a "brief stint" in private practice in 1984 before his appointment but the name of
the firm or the nature of that practice is not apparent from the public records check.
Clinton Library Photocopy
Tennessee Attorney General and the Chair of the Antitrust Committee of the National
Association of Attorneys General (NAAG). During that period, he also served on the Hearing
Committee of the Tennessee Board of Professional Responsibility. From 1982 to 1984, Haynes
was a member of the Antitrust Litigation and Training Committees of NAAG. In 1983, he was
on the Board of Directors of Napier-Looby Bar Association.
Haynes was also involved in many community organizations before he became a
magistrate. For example, he was a member of the Tennessee Historical Society and the Rotary
Club of Nashville. He served on the Board of Directors of the Cumberland Museum and Science
Center (1980 to 1984), Children's House (1982 to 1984), and Opportunity House (1981 to 1983).
In 1990, Haynes was presented with a Black History Month Award by the Middle
Tennessee Federal Executives Association. In 1973, he was the recipient of the Bennet Douglas
Bell Award from Vanderbilt University. He was also named Teenager of the Year by the
Catholic Youth Organization in 1966.
III.
NOTEWORTHY CASES AND OTHER PUBLICITY
A.
Writings & Publicity
Haynes has a national reputation for his contributions to antitrust law. He has been a
speaker or a panelist at numerous local, state and federal bar association meetings. The records
check, however, did not locate the text of any of those speeches. Haynes has also written about
antitrust law. In 1993, the Practicing Law Institute published his article "Will the Answers Be
Different Under State Antitrust Laws?" In that article, he examines nearly every aspect of state
antitrust enforcement. In 1991, he was a contributing author to the second edition of Legal
Aspects of Buying and Selling. In 1989, his book State Antitrust Laws was published by BNA.
According to a summary of that book, Haynes argued that state courts are likely to handle an
increased number of antitrust cases because federal enforcement policies are more controversial
and the federal case law is increasingly unclear. This Office has not yet examined the book.
Despite Haynes lengthy public service as a high-ranking state's attorney, he has rarely spoken to
the press. This apparently occurred on only one occasion, involving a bankruptcy case related to
the World's Fair, he told a reporter that the state had filed suit in 1983 against a derelict
reservation company in order "to protect the integrity of commerce in Tennessee."
B.
Cases as a Magistrate Judge
While Haynes has been publishing his views on antitrust law, little of his work during his
fourteen years as a Magistrate Judge is available through a public records check. According to
that limited information, Haynes has had the opportunity to write a Report and Recommendation
on an antitrust issue in only one reported case. In Ford V. Stroup, No. 96-5455, 1997 WL
201560 (6th Cir. Apr. 23, 1997) (unpublished), the Sixth Circuit affirmed his decision to grant
summary judgment to the defendant on plaintiff's complaint of that the defendant physician and
his oncology practice group engaged in monopolization.
The dearth of reported cases is likely due to the fact that Haynes and the other Magistrate
Judge primarily hold hearings on procedural matters and they handle mostly preliminary matters
in about 65% of the cases filed in the Middle District. As a Magistrate Judge, Haynes reportedly
handles some civil trials and misdemeanor criminal trials, as well as most preliminary criminal
matters such as bond hearings. Indeed, less than two dozen reported cases refer to Haynes' work
as a magistrate and these relate to adoption of his R & R's or to review by the Sixth Circuit of an
adopted decision. These reported cases generally do not involve noteworthy or high-profile
matters but have involved a wide range of issues including social security benefits, Medicaid
reimbursement, prisoners' civil rights suits, habeas cases, and contract disputes. In these
reported cases, his R & R's are frequently adopted and are usually affirmed, if appealed. For
example, in a review of one of his habeas decisions, the Sixth Circuit complimented his "detailed
and well-reasoned opinion" finding that the petitioner failed to show cause and prejudice for his
failure to raise all constitutional claims in previous petitions for habeas corpus relief. Arendall V.
Morgan, No. 93-5860, 1994 WL 228270 (6th Cir. May 24, 1994) (unpublished).
In only three instances does the records check reveal that the Sixth Circuit reversed the
district court's adoption of his R & R. In one case, the Court of Appeals reversed the district
court on the ground that Haynes improperly conditioned dismissal with prejudice on the payment
of costs and fees. Tennessee Health Care Ass'n V, Commissioner, Tenn. Dep't of Health &
Human Servs., Nos. 91-5789 & 91-6220, 1992 WL 36217 (6th Cir. Feb. 26, 1992) (unpublished).
The Sixth Circuit found that the conditions imposed by Haynes were inconsistent with circuit
precedent for dismissals with prejudice under Fed. R. Civ. Proc. 41(a)(2). In another case, the
Sixth Circuit remanded a decision in which the district court had adopted Haynes' R & R
affirming the denial of social security benefits by an administrative law judge (ALJ). Barlow V.
Sullivan, No. 90-5810, 1991 WL 29215 (6th Cir. Mar. 7, 1991). In that case, the circuit court
faulted the ALJ for failing to consider statements supporting plaintiff's disability claim. In Gant
V, Dutton, No. 89-6039, 1991 WL 12 (6th Cir. 1991), the Sixth Circuit remanded a case in which
Haynes issued an R & R finding that a warden's offer to remove a prisoner from administrative
segregation and to expunge related records rendered the petitioner's claim moot. The appellate
court found that the offer did not moot the petitioner's claims because it imposed additional
conditions that the prisoner found unacceptable.
Additionally, local newspapers reported on a few cases of Haynes that were not reported
in the Westlaw database. For example, in one sexual harassment case, Haynes is said to have
awarded $50,000 and $10,000, respectively, to two former employees of Robert S. Biscan & Co.
Haynes awarded the larger sum to a woman who was subjected to repeated sexually explicit
remarks, jokes and comments by the company president and he awarded the smaller sum to a
woman who was subject to an "isolated act of sexual harassment." In another significant case,
Haynes recommended that the city be prevented from charging fees to companies that do not use
the government's incineration plant and instead haul their garbage out of the county. There is no
indication of whether or not the R & R was adopted.
C.
Cases for the Tennessee Attorney General's Office
As an Assistant Attorney General, Haynes was listed as one of many state attorneys
cooperating in filing amici curiae briefs in four cases before the United States Supreme Court.
All four of those cases, which were decided between 1982 and 1984, involved antitrust issues.
Haynes was also attorney of record in three cases before the United States Court of
Appeals for the Sixth Circuit. He was on the brief with the state Attorney General in one of
James Earl Ray's habeas corpus petitions for relief from his conviction for assassinating Martin
Luther King, Jr. In that case, the Sixth Circuit affirmed the District Court's denial of Ray's
petition claiming ineffective assistance of counsel and challenging his guilty plea. Ray V. Rose,
535 F.2d 966 (6th Cir. 1976). When Haynes was serving as Special Deputy Attorney General in
1984, he was lead counsel and argued a case before the Sixth Circuit which involved the federal
government's appeal of a the District Court's order enjoining the Department of Transportation
from offsetting FHA grants to the state with amounts the state had recovered from bid riggers on
highway projects. In Tennessee V. Dole, 749 F.2d 331 (1984), the Sixth Circuit reversed the
injunction and remanded the case. The third case in which Haynes submitted a brief to the Sixth
Circuit involved a dismissal of a routine habeas corpus petition, which was affirmed on appeal.
In addition to his extensive work in antitrust law, Haynes is also known for his work
defending the state in a lawsuit to desegregate Tennessee's public colleges and universities.
Geier V. Blanton, 427 F. Supp. 644 (M.D. Tenn. 1977), aff'd 597 F.2d 1078 (6th Cir. 1979). The
United States Department of Justice had intervened on plaintiffs' behalf. This lengthy litigation
was initiated in 1968, and it culminated with a month-long evidentiary hearing in 1976. The
District Court recognized that defendants had made slow progress in the dismantling of a dual
system of higher education in Tennessee and ordered the merger of the white and black colleges
into a single institution under a single governing board.
Haynes was also attorney of record in twenty-four reported state appellate cases. It
appears from these cases that in his first few years at the state Attorney General's Office, Haynes
worked on numerous criminal appeals. Starting in 1977, most of Haynes' reported cases involve
civil matters, including contract claims, tax cases, discrimination suits, and antitrust issues.
Haynes was also counsel of record in twelve cases before the Supreme Court of Tennessee.
DIDNOT
(JUDGES (HAYNES) ) OR ( (WILLIAM OR BILL) /2 HAYNES)
PRINT
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To DISPLAY these CASES press either the KWIC, FULL, CITE or SEGMTS key.
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DOCUMENT NO.
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DATE
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AND TYPE
003. memo
U.S. Magistrate Judge William J. Haynes, Jr.; RE: DOB and POB
05/21/1998
b(6)
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[William] Haynes (MD [Middle District of] Tenn. [Tennessee]) Articles [3]
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GREG COPY
May 21, 1998
MEMORANDUM
U.S. MAGISTRATE JUDGE WILLIAM J. HAYNES, JR.
JUDICIAL CANDIDATE, MIDDLE DISTRICT OF TENNESSEE
I.
BACKGROUND
WITE
The federal District Court for the Middle District consists of only white male judges.
Press reports have suggested that the next nomination might "diversify" the bench. Magistrate
Judge Haynes, an African-American, has indicated his interest in this position. The "Napier-
Looby Bar Association," which includes many African-American attorneys, has advocated
Haynes' possible nomination. Two women, federal Bankruptcy Judge Trauger and state Circuit
Court Judge Cornelia Clark (who coordinated part of Vice-President Gore's 1988 presidential
campaign), are also under consideration. State Circuit Judge John Maddux, a former
administrative assistant to Gore, is also a candidate.
II.
BIOGRAPHICAL INFORMATION
U.S. Magistrate Judge William J. (Joe) Haynes, Jr., is a forty-eight year old African-
American man.
(b)(6)
Haynes received a Bachelor of Arts [003]
from the College of St. Thomas Aquinas in 1970 and a Juris Doctor from Vanderbilt University
School of Law in 1973. Haynes has been a Magistrate Judge for the Middle District of
Tennessee since his appointment in December of 1984; he was reappointed in 1992 to another
eight-year term. From the time he graduated from law school until he became a magistrate,
Haynes worked in the Tennessee Attorney General's Office. Before his appointment to the
Middle District, he served as the Special Deputy Assistant Attorney General for Litigation in
1984. From 1978 through part of 1984, he was the Deputy Attorney General of the Antitrust and
Consumer Protection Division. He also served briefly in 1979 as a District Attorney Pro Tem for
Shelby County. From 1977 to 1978, Haynes was a Senior Assistant Attorney General and from
1973 until 1977, he was an Assistant Attorney General for the state of Tennessee.
While serving as a magistrate, Haynes has been a Lecturer at Vanderbilt University
School of Law since 1987. From 1986 to 1990, he was also an Instructor at Southeastern
Paralegal Institute. Additionally, Haynes was a "Master Bencher" of the local Inn of Court from
1990 to 1992. He was Vice-Chair of the ABA Committee on State Antitrust Enforcement from
1989 to 1990. In 1989 he also served on the Advisory Board of the Corporate Practice Series of
BNA. Also, since 1992, he has served on the state bar association's Commission on Women and
Minorities in the Profession.
From 1983 to 1984, he was an assistant to the Honorable William M. Leech, Jr., a former
1
The local Practice & Procedure Manual of Judges and Magistrate Judges indicates
that Haynes had a "brief stint" in private practice in 1984 before his appointment but the name of
the firm or the nature of that practice is not apparent from the public records check.
Clinton Library Photocopy
Tennessee Attorney General and the Chair of the Antitrust Committee of the National
Association of Attorneys General (NAAG). During that period, he also served on the Hearing
Committee of the Tennessee Board of Professional Responsibility. From 1982 to 1984, Haynes
was a member of the Antitrust Litigation and Training Committees of NAAG. In 1983, he was
on the Board of Directors of Napier-Looby Bar Association.
Haynes was also involved in many community organizations before he became a
magistrate. For example, he was a member of the Tennessee Historical Society and the Rotary
Club of Nashville. He served on the Board of Directors of the Cumberland Museum and Science
Center (1980 to 1984), Children's House (1982 to 1984), and Opportunity House (1981 to 1983).
In 1990, Haynes was presented with a Black History Month Award by the Middle
Tennessee Federal Executives Association. In 1973, he was the recipient of the Bennet Douglas
Bell Award from Vanderbilt University. He was also named Teenager of the Year by the
Catholic Youth Organization in 1966.
III.
NOTEWORTHY CASES AND OTHER PUBLICITY
A.
Writings & Publicity
Haynes has a national reputation for his contributions to antitrust law. He has been a
speaker or a panelist at numerous local, state and federal bar association meetings. The records
check, however, did not locate the text of any of those speeches. Haynes has also written about
antitrust law. In 1993, the Practicing Law Institute published his article "Will the Answers Be
Different Under State Antitrust Laws?" In that article, he examines nearly every aspect of state
antitrust enforcement. In 1991, he was a contributing author to the second edition of Legal
Aspects of Buying and Selling. In 1989, his book State Antitrust Laws was published by BNA.
According to a summary of that book, Haynes argued that state courts are likely to handle an
increased number of antitrust cases because federal enforcement policies are more controversial
and the federal case law is increasingly unclear. This Office has not yet examined the book.
Despite Haynes lengthy public service as a high-ranking state's attorney, he has rarely spoken to
the press. This apparently occurred on only one occasion, involving a bankruptcy case related to
the World's Fair, he told a reporter that the state had filed suit in 1983 against a derelict
reservation company in order "to protect the integrity of commerce in Tennessee."
B.
Cases as a Magistrate Judge
While Haynes has been publishing his views on antitrust law, little of his work during his
fourteen years as a Magistrate Judge is available through a public records check. According to
that limited information, Haynes has had the opportunity to write a Report and Recommendation
on an antitrust issue in only one reported case. In Ford V. Stroup, No. 96-5455, 1997 WL
201560 (6th Cir. Apr. 23, 1997) (unpublished), the Sixth Circuit affirmed his decision to grant
summary judgment to the defendant on plaintiff's complaint of that the defendant physician and
his oncology practice group engaged in monopolization.
The dearth of reported cases is likely due to the fact that Haynes and the other Magistrate
Judge primarily hold hearings on procedural matters and they handle mostly preliminary matters
in about 65% of the cases filed in the Middle District. As a Magistrate Judge, Haynes reportedly
handles some civil trials and misdemeanor criminal trials, as well as most preliminary criminal
matters such as bond hearings. Indeed, less than two dozen reported cases refer to Haynes' work
as a magistrate and these relate to adoption of his R & R's or to review by the Sixth Circuit of an
adopted decision. These reported cases generally do not involve noteworthy or high-profile
matters but have involved a wide range of issues including social security benefits, Medicaid
reimbursement, prisoners' civil rights suits, habeas cases, and contract disputes. In these
reported cases, his R & R's are frequently adopted and are usually affirmed, if appealed. For
example, in a review of one of his habeas decisions, the Sixth Circuit complimented his "detailed
and well-reasoned opinion" finding that the petitioner failed to show cause and prejudice for his
failure to raise all constitutional claims in previous petitions for habeas corpus relief. Arendall V.
Morgan, No. 93-5860, 1994 WL 228270 (6th Cir. May 24, 1994) (unpublished).
In only three instances does the records check reveal that the Sixth Circuit reversed the
district court's adoption of his R & R. In one case, the Court of Appeals reversed the district
court on the ground that Haynes improperly conditioned dismissal with prejudice on the payment
of costs and fees. Tennessee Health Care Ass'n V. Commissioner, Tenn. Dep't of Health &
Human Servs., Nos. 91-5789 & 91-6220, 1992 WL 36217 (6th Cir. Feb. 26, 1992) (unpublished).
The Sixth Circuit found that the conditions imposed by Haynes were inconsistent with circuit
precedent for dismissals with prejudice under Fed. R. Civ. Proc. 41(a)(2). In another case, the
Sixth Circuit remanded a decision in which the district court had adopted Haynes' R & R
affirming the denial of social security benefits by an administrative law judge (ALJ). Barlow V.
Sullivan, No. 90-5810, 1991 WL 29215 (6th Cir. Mar. 7, 1991). In that case, the circuit court
faulted the ALJ for failing to consider statements supporting plaintiff's disability claim. In Gant
V. Dutton, No. 89-6039, 1991 WL 12 (6th Cir. 1991), the Sixth Circuit remanded a case in which
Haynes issued an R & R finding that a warden's offer to remove a prisoner from administrative
segregation and to expunge related records rendered the petitioner's claim moot. The appellate
court found that the offer did not moot the petitioner's claims because it imposed additional
conditions that the prisoner found unacceptable.
Additionally, local newspapers reported on a few cases of Haynes that were not reported
in the Westlaw database. For example, in one sexual harassment case, Haynes is said to have
awarded $50,000 and $10,000, respectively, to two former employees of Robert S. Biscan & Co.
Haynes awarded the larger sum to a woman who was subjected to repeated sexually explicit
remarks, jokes and comments by the company president and he awarded the smaller sum to a
woman who was subject to an "isolated act of sexual harassment." In another significant case,
Haynes recommended that the city be prevented from charging fees to companies that do not use
the government's incineration plant and instead haul their garbage out of the county. There is no
indication of whether or not the R & R was adopted.
C.
Cases for the Tennessee Attorney General's Office
As an Assistant Attorney General, Haynes was listed as one of many state attorneys
cooperating in filing amici curiae briefs in four cases before the United States Supreme Court.
All four of those cases, which were decided between 1982 and 1984, involved antitrust issues.
Haynes was also attorney of record in three cases before the United States Court of
Appeals for the Sixth Circuit. He was on the brief with the state Attorney General in one of
James Earl Ray's habeas corpus petitions for relief from his conviction for assassinating Martin
Luther King, Jr. In that case, the Sixth Circuit affirmed the District Court's denial of Ray's
petition claiming ineffective assistance of counsel and challenging his guilty plea. Ray V. Rose,
535 F.2d 966 (6th Cir. 1976). When Haynes was serving as Special Deputy Attorney General in
1984, he was lead counsel and argued a case before the Sixth Circuit which involved the federal
government's appeal of a the District Court's order enjoining the Department of Transportation
from offsetting FHA grants to the state with amounts the state had recovered from bid riggers on
highway projects. In Tennessee V. Dole, 749 F.2d 331 (1984), the Sixth Circuit reversed the
injunction and remanded the case. The third case in which Haynes submitted a brief to the Sixth
Circuit involved a dismissal of a routine habeas corpus petition, which was affirmed on appeal.
In addition to his extensive work in antitrust law, Haynes is also known for his work
defending the state in a lawsuit to desegregate Tennessee's public colleges and universities.
Geier V. Blanton, 427 F. Supp. 644 (M.D. Tenn. 1977), aff'd 597 F.2d 1078 (6th Cir. 1979). The
United States Department of Justice had intervened on plaintiffs' behalf. This lengthy litigation
was initiated in 1968, and it culminated with a month-long evidentiary hearing in 1976. The
District Court recognized that defendants had made slow progress in the dismantling of a dual
system of higher education in Tennessee and ordered the merger of the white and black colleges
into a single institution under a single governing board.
Haynes was also attorney of record in twenty-four reported state appellate cases. It
appears from these cases that in his first few years at the state Attorney General's Office, Haynes
worked on numerous criminal appeals. Starting in 1977, most of Haynes' reported cases involve
civil matters, including contract claims, tax cases, discrimination suits, and antitrust issues.
Haynes was also counsel of record in twelve cases before the Supreme Court of Tennessee.
Page 36
16TH CASE of Level 1 printed in FULL format.
GABB LEE MITCHELL, Plaintiff-Appellant, V. WILLIAM PARKER, ATTORNEY FOR THE
DAVIDSON COUNTY POLICE DEPARTMENT; AND McGINNIS AUTO SALES,
Defendants-Appellees
No. 86-5857
COMP. OPINION HAUMES
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
!!
810 F.2d 202; 1986 U.S. App. LEXIS 33792
November 19, 1986, Filed
NOTICE: [*1] NOT RECOMMENDED FOR FULL-
The appellant appeals pro se from the district court's
TEXT PUBLICATION SIXTH CIRCUIT RULE 24
order adopting the magistrate's report and recommen-
LIMITS CITATION TO SPECIFIC SITUATIONS.
dation dismissing his 42 U.S.C. § 1983 complaint. In
PLEASE SEE RULE 24 BEFORE CITING IN A
conjunction with this appeal appellant has filed a motion
COURT IN THE SIXTH CIRCUIT. IF CITED, A
for counsel. The case has been referred to a panel of the
COPY MUST BE SERVED ON OTHER PARTIES
Court pursuant to Rule 9(a), Rules of the Sixth Circuit.
AND THE COURT. THIS NOTICE IS TO BE
Upon examination of the briefs and the record, the panel
PROMINENTLY DISPLAYED IF THIS DECISION IS
agrees unanimously that oral argument is not needed.
REPRODUCED.
Rule 34(a), Federal Rules of Appellate Procedure.
It is ORDERED that the judgment of District Court
OPINION: Before: MERRITT and WELLFORD,
Judge Thomas Higgins be affirmed for the reasons stated
Circuit Judges; and EDWARDS, Senior Circuit Judge.
in the excellent opinion of Magistrate William Haynes.
ORDER
Page 27
14TH CASE of Level 1 printed in FULL format.
Kenneth Jarrett, Plaintiff-Appellee, V. Harrison Epperly and Epperly Inc., f/k/a United Brake Systems,
Inc., Defendants-Appellants
No. 88-5762
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
AFFIRMED
896 F.2d 1013; 1990 U.S. App. LEXIS 2467
DISSENT = STILL
SUPPORTS HAYMES
February 23, 1990, Decided
SUBSEQUENT HISTORY: Rehearing Denied, April
Defendants assert several claims of error on appeal, none
12, 1989, Reported at: 1990 U.S. App. LEXIS 7106.
of which have merit.
Reported at: 1990 U.S. App. LEXIS 7106.
I. FACTS AND PROCEEDINGS BELOW
PRIOR HISTORY:
Defendant-Appellant [**2] Harrison Epperly ap-
[**1] On Appeal from the United States District Court
proached Plaintiff-Appellee Kenneth Jarrett in April,
for the Middle District of Tennessee, D.C. No. 87-00289
1976 and asked Jarrett to come to work for him. Epperly,
(Nixon, D.J.).
who operated a brake shop in Indianapolis, Indiana,
sought to open a second shop in Nashville, Tennessee, in
COUNSEL: Counsel for defendant-appellant: Mark
the name of United Brake Systems Corporation, of which
Dyer, Peter H. Curry, Boult, Cummings, Conners &
he, his spouse and his father were the sole sharehold-
Berry, Nashville, Tennessee. Gene R. Leeuw, Dean T.
ers. He was the president and controlled the day-to-day
Barnhard (argued), Klineman, Rose, Wolf & Wallack,
operations of the corporation. At the time Epperly ap-
Indianapolis, Indiana.
proached Jarrett, Jarrett was happily employed as a sales-
man of truck leases with Transport Pool of Nashville, at
Counsel for plaintiff-appellee: Alan Mark Turk (ar-
a salary of $ 9,000.00 per annum, as well as commis-
gued), Prince & Turk, Nashville, Tennessee, George W.
sions and an expense account.
Hopper, Hopper & Associates, Indianapolis, Indiana.
Epperly asked Jarrett to set up, open and manage a
JUDGES: Harry W. Wellford and David A. Nelson,
Nashville branch of United Brake, and offered him $
Circuit Judges; and Anna Diggs Taylor, District Judge.
9,100 per annum with commissions, an expense account
* Wellford, Circuit Judge, dissenting. TAYLOR,
and the use of an automobile. When Jarrett advised that
District Judge, delivered the opinion of the court, in
he was happy with his present position, Epperly made
which NELSON, Circuit Judge, joined. WELLFORD,
the further offer that, if the Nashville branch were not
Circuit Judge, (pp. 1021-1024) delivered a separate dis-
profitable after six months, it would be closed and Jarrett
senting opinion.
would be given an additional six months of severance
pay. Epperly finally offered to make Jarrett a forty-nine
* The Honorable Anna Diggs Taylor, United States
percent owner of the branch if he would take the job and
District Judge for the Eastern District of Michigan,
[**3] continuously manage it for ten years.
Southern Division, sitting by designation.
Jarrett accepted this offer, basing his acceptance in
OPINIONBY: TAYLOR
large part upon the promise of eventual ownership. He
opened the Nashville branch in the spring of 1976. The
OPINION: [*1015] TAYLOR, District Judge.
agreement between the parties was never put into writ-
This Tennessee breach of contract and fraud case is be-
ing. Both parties later testified that their relationship
had been "like father and son."
fore us on Defendant's appeal of a general jury verdict
in Plaintiff's favor, awarding compensatory damages in
In an effort to induce others to open and manage still
the amount of Seven Hundred Thousand Seven Hundred
more branches, Epperly made the same promise to sev-
Dollars ($ 700,700.00) and punitive damages of One
eral; the promise of eventual forty-nine percent own-
Hundred Twelve Thousand Dollars ($ 112,000.00).
ership in their branch. In addition, he told several of
Page 28
896 F.2d 1013, *1015; 1990 U.S. App. LEXIS 2467, **3
his employees, over the years, that he had such an oral
promissory fraud, and refused Defendants' request that
agreement with Jarrett and, over the course of the next
the jury be given special interrogatories. In addition,
ten years, he continually reassured Jarrett that he would
after trial the court denied Defendants' motion for sum-
become a forty-nine percent owner when his ten year
mary judgment. This appeal followed.
anniversary arrived.
II. DENIAL OF APPELLANTS' MOTION FOR
During his decade with United, Jarrett was offered
SUMMARY JUDGMENT
other positions and business opportunities elsewhere,
Appellants challenge the trial court's denial of their
all of which he refused, because of this opportunity
motion for summary judgment. In so doing, they rely
to become a part owner of United's Nashville branch.
upon the magistrate's report, which recommended par-
Also during this period, the company grew from two to
tial summary judgment in their favor. Any issue [**6]
twenty-three branches, with Jarrett assisting in the open-
as to the magistrate's report however, is mooted here by
ing and management of several new branches. Indeed,
the district court's de novo determination that genuine
Jarrett's responsibilities [**4] increased greatly over the
issues of fact existed, precluding summary judgment and
decade.
requiring trial. United States V. Raddatz, 447 U.S. 667,
On or about the tenth anniversary of his employment,
100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980); Mathews V.
Jarrett approached Epperly, requesting performance of
Weber, 423 U.S. 261, 96 S. Ct. 549, 46 L. Ed. 2d 483
the oral promise. Epperly acknowledged the promise
(1976).
and informed Jarrett that he would, by the end of 1986,
Whether a denial of a motion for summary judgment is
receive evidence of his forty-nine percent interest in the
appealable following a jury verdict adverse to the movant
Nashville operation.
appears to be an issue of first impression in this circuit.
Unfortunately, on December 30, 1986, Epperly sold
The better rule appears to have been recently adopted
the assets of United, including all of the assets of the
by the Ninth and Federal Circuits and is that such a de-
Nashville operation, to Echlin, Inc., for about Eleven
nial is "not properly reviewable on an appeal from the
Million One Hundred Twenty Eight Thousand Eight
final judgment entered after trial." Locricchio V. Legal
Hundred Forty Two Dollars ($ 11,128,842.00).
Services Corp., 833 F.2d 1352 (9th Cir. 1987); Glaros
V. H.H. Robertson Co., 797 F.2d 1564, 230 U.S.P.Q.
[*1016] Even after the sale, Jarrett again approached
(BNA) 393 (Fed. Cir. 1986), cert. dismissed, 479 U.S.
Epperly who, in January, 1987, promised Jarrett that he
1072, 107 S. Ct. 1262, 94L. Ed. 2d 124 (1987); Senza-
would receive that portion of the sales price correspond-
Gel Corp. V. Seiffhart, 803 F.2d 661, 231 U.S.P.Q.
ing to his forty-nine percent interest in the Nashville
(BNA) 363 (Fed. Cir. 1986). We agree with the Ninth
operation. No such payment was ever made. In fact,
and Federal Circuits and here hold that where summary
when another employee asked Epperly about his promise
judgment is denied and the movant subsequently loses
to Jarrett, Epperly replied "Forty-nine percent of what?
after a full trial on the merits, the denial of summary
Of nothing?"
judgment may not be appealed. nl
Jarrett filed suit in the United States District Court
for the Middle District of Tennessee seeking, in his first
n1 We recognize that decisions in this circuit gen-
complaint, damages for breach of an oral employment
erally state that interlocutory orders merge into the
contract and for promissory fraud. Shortly before trial,
final judgment and may be presented on appeal of
Defendant [**5] moved for summary judgment, and the
that final judgment, but we find no case which deals
magistrate recommended partial summary judgment for
specifically with the appealability of a denial of
Defendant. The trial judge refused, however, to rule on
summary judgment after a full trial on the merits.
the summary judgment motion at that time. Moreover,
Hence, we find persuasive the court's reasoning in
at the final pre-trial conference, the parties were unable
Locricchio, supra at 1359 that: "To be sure, the
to agree on a pre-trial order, due to Jarrett's request that
party moving for summary judgment suffers an in-
it include claims for fraud and deceit, constructive fraud
justice if his motion is improperly denied. This is
and fraudulent concealment, which he asserted would
true even if the jury decides in his favor. The injus-
be proven at trial. He also submitted an amended com-
tice arguably is greater when the verdict goes against
plaint which included these new theories. The district
him. However, we believe it would be even more
court chose to take the matter under advisement pending
the close of the evidence at trial.
unjust to deprive a party of a jury verdict after the ev-
idence was fully presented, on the basis of an appel-
After a six day trial, the court charged the jury as to
late court's review of whether the pleadings and af-
breach of contract, fraud, fraudulent concealment and
fidavits at the time of the summary judgment motion
Page 29
896 F.2d 1013, *1016; 1990 U.S. App. LEXIS 2467, **6
demonstrated the need for a trial. After considerable
therewith, or some other person by him thereunto law-
research, we have found no case in which a jury ver-
fully authorized.
dict was overturned because summary judgment had
been improperly denied. We hold, therefore, that
We reject Defendants' argument that the above pro-
visions bar Plaintiff's claims. The Nashville branch of
the denial of a motion for summary judgment is not
reviewable on an appeal from a final judgment en-
United did not own real estate in 1976, when Epperly
tered after a full trial on the merits." See also Holley
made the promise of forty-nine percent ownership to
Jarrett. Therefore, the contract, when made, did not
V. Northrop Worldwide Aircraft Services, 835 F.2d
concern real estate and thus was not within the Statute
1375 (11th Cir. 1988).
of Frauds. There is no evidence, in fact, that real es-
tate ever became embedded in the contract, which was
[**7]
for 49% of the ownership of an establishment putatively
[*1017] III. STANDARD OF REVIEW OF JURY
incorporated by Epperly.
VERDICTS
Plaintiff Jarrett's complaint does not allege that there
In Gold V. National Savings Bank of City of Albany,
was ever a contract for the sale [**9] of real estate.
641 F.2d 430, 434 (6th Cir. 1981), this Court acknowl-
What the plaintiff is suing on, rather, is a contract for
edged that it is bound by state law with regard to suffi-
49% of an operating business consistently identified in
ciency of the evidence in diversity cases:
the pleadings as the "Nashville operation." It was under-
In Tennessee, the rule of law with respect to appel-
stood that the Nashville operation included real estate,
to be sure, along with inventory, equipment, accounts
late review of the sufficiency of evidence is that all the
receivable and goodwill, but there was no understand-
evidence for the prevailing party must be taken as true.
ing that the defendant corporation had to own the real
Moreover, all reasonable inferences favorable to the pre-
estate rather than leasing it. If the business had never
vailing party must be made and all countervailing evi-
switched from leasing to owning, plaintiff would have
dence must be disregarded. However, it is also clear
that under Tennessee law there must be substantial and
had no ground for complaint as long as he received 49%
of the business. And if the Nashville operation had
material evidence from which the jury could have based
been separately incorporated, with plaintiff taking his
a verdict for the prevailing side. [Citations omitted].
49% through a conveyance of corporate stock, the fact
that no real estate changed hands would have made no
In this case, we find that as to all jury issues raised by
difference in any event.
Defendants, the jury had substantial and material evi-
dence on which to base its verdict for Jarrett.
We also disagree with Appellants assertion that the
contract could not be performed within one year.
IV. STATUTE OF FRAUDS
In Price V. Mercury Supply Co., 682 S.W.2d 924
Defendants contend that the Statute of Frauds barred
(Tenn. Ct.App. 1984), the Court found that Tenn. Code
enforcement of the oral agreement between these parties
Ann. § 29-2-101 (5) should be narrowly construed and
because real estate was "embedded" in the agreement
further held:
and because the promises were incapable of performance
within one year.
Mr. Price himself stated that the terms of this
contract would be for life or until he decided to retire.
The Tennessee Statute of Frauds, Tenn. [**8] Code
[**10] Thus, it could be performed within one year be-
Ann. § 29-2-101 states:
cause Mr. Price could have died or could have elected to
retire within a year after the alleged contract was made.
Writing required for action - No action shall be brought:
The fact that neither contingency occurred is not suffi-
(4) Upon any contract for the sale of lands, tenements,
cient to bring the agreement within Tenn. Code Ann. §
or hereditaments, or the making of any lease thereof for
29-2-101 (5).
a longer term than one (1) year; or,
[*1018] It is clear in the case before us that the express
(5) Upon any agreement or contract which is not to
terms of the contract render it performable within one
be performed within the space of one (1) year from the
year. If the Nashville branch had proved unprofitable af-
making thereof;
ter only six months, it would have been closed and Jarrett
would have been paid for the following six months as
unless the promise or agreement, upon which such action
severance pay for his efforts. The fact that this con-
shall be brought, or some memorandum or note thereof,
tingency did not occur is, as in Price, not sufficient to
shall be in writing, and signed by the party to be charged
Page 30
896 F.2d 1013, *1018; 1990 U.S. App. LEXIS 2467, **10
bring the agreement within the one year proscription of
included substantial travel, which took him away from
the Statute of Frauds.
his family for days at a time.
We further conclude that the jury could reasonably
More generally, under Tennessee law, a wrongdoer is
have found that the agreement survived the Statute under
not permitted to rely on the Statute of Frauds [**13] de-
the doctrines of part performance and equitable estoppel.
fense. In Interstate Company V. Bry-Block Mercantile
In Blasingame V. American Materials, Inc., 654
Co., 30 172, 175 1928), the Court held
659 (Tenn. 1983), an action remarkably similar to the
that the Statute of Frauds was "enacted for the purpose of
case before us, the plaintiff employee sued for breach of
preventing fraud, and shall not be made the instrument
an oral employment contract. The defendant employer
of shielding, protecting, or aiding the party who relies
refused to honor its promise to issue stock in the com-
upon it in the perpetration of a fraud, or in the consum-
pany [**11] despite plaintiff's having performed several
mation of a fraudulent scheme." And in Baliles V. Cities
years of employment in reliance thereon. Plaintiff had
Service Co., 578 621, 624 (Tenn. 1979), citing
suffered the detriment of leaving prior secure employ-
the 1928 Interstate decision along with a number of ear-
ment for a risky venture with defendant, taking a pay cut
lier decisions, the Tennessee Supreme Court specifically
to do so, and working for several years with repeated
discussed the doctrine of equitable estoppel and its effect
assurances that his efforts would net him twenty-five
on the Statute of Frauds:
percent of the company's stock. The Supreme Court of
Tennessee there held that plaintiff had suffered a detri-
The harshness of this rule [Statute of Frauds] has been
ment amounting to an unconscionable loss by perform-
mitigated by the application of the doctrine of equitable
ing his part of the bargain and that the employer would
estoppel in exceptional cases where to enforce the statute
be estopped from relying upon the Statute of Frauds de-
of frauds would make it an instrument of hardship and
fense.
oppression, [*1019] verging on actual fraud. [Citations
omitted].
In Appellants' attempt to distinguish Blasingame here,
it is argued that Jarrett did not suffer any detriment be-
cause United started him at one hundred dollars more
We believe that the jury had substantial and material
evidence on which to conclude that Jarrett's was one of
per year than his previous employer paid, and gave him
these exceptional cases in which application of the statute
regular salary increases thereafter. We disagree. Jarrett
would work an injustice and abet an actual fraud. We
testified that, as a district manager he was not simply
responsible for managing the Nashville branch, but had
will not disturb their finding [**14] that Jarrett detri-
mentally relied on Epperly's promises. n2
supervisory responsibility for the Tampa, Atlanta, and
Birmingham branches. He worked many more hours that
he had previously and was frequently required to be away
n2 Before citing the Interstate decision as sup-
from his family. This job, in short, was not a [**12] rou-
port for applying the equitable estoppel doctrine in
tine responsibility, as he had held with Transport Pool.
Baliles, the Tennessee Supreme Court noted that as
Thus, the jury had ample basis to conclude as it did that
a rule, "part performance of a parol contract for the
the increased compensation was based upon increased
sale of land will not take the agreement out of the
responsibilities. Indeed, the compensation might well
statute of frauds." 578 S. W.2d at 624. Because the
have been even higher, without a promise of future own-
case at bar does not involve a contract for the sale of
ership.
land, there is no need for us to consider the extent to
which the harshness of this rule might be mitigated
More fundamentally, we disagree with Defendants' as-
by the equitable estoppel doctrine if this case, like
sertion that Blasingame hinged upon the plaintiff's de-
Baliles, had involved a contract for the sale of land.
crease in pay. Rather, our view of Blasingame convinces
us that the Court based its result on the plaintiff's giving
up of the prior secure employment for a more risky situ-
Even more basic, however, with regard to the Statute
ation, as well as his full performance of very substantial
of Frauds is its inapplicability to plaintiff's tort (i.e.
services to the enterprise thereafter, prior to the defen-
fraud) claims. The jury, having granted punitive dam-
dant's breach of promise. Those elements clearly are
ages, clearly found for Jarrett on his tort claims, con-
present in the instant case. Accepting employment with
cluding that Epperly's conduct was intentional, mali-
United was a risk for Jarrett, the realization of which
cious and wanton. The application of the Statute of
was evidenced by the parties having provided for six
Frauds to the tort of fraudulent misrepresentation was
months severance if the Nashville branch were not prof-
specifically addressed by the Tennessee Court of Appeals
itable. In addition, Jarrett's responsibilities for United
in Haynes V. Cumberland Builders, Inc., 546 S.W.2d
Page 31
896 F.2d 1013, *1019; 1990 U.S. App. LEXIS 2467, **14
228 (Tenn. Ct.App. 1976). There, the Court held that
Epperly originally intended to keep his promise, but
[**15] the Statute did not preclude a claim for fraud,
changed his mind after the business expanded [*1020]
and rejected the appellant's argument to the contrary as
beyond his expectations. At trial, however, Epperly de-
"meritless". Id. at p. 231. The Court reasoned that
nied that he ever made the promise in the first instance.
the Statute of Frauds applied only to contract actions,
He never claimed at trial that he had indeed changed his
and not to tort claims. We find meritless Defendants'
mind. Even though a party's requested jury charge is
reliance on Webb v. Shultz, 184 Tenn. 235, 198 W.2d
a correct statement of the law, for the trial court to be
333 (1946). This, as well as other cases cited by
held in error for refusing the charge, it must not only
Defendants, involved claims for breach of contract, and
be legally correct, but must also be applicable to the
not tort claims for fraud. The Webb decision antedated
facts in evidence. Strickland V. City of Lawrenceburg,
the Tennessee Supreme Court's decision in Blasingame
611 S.W.2d 832, 837 (Tenn.Ct.App. 1980). No error
by more than a quarter of a century, moreover, and the
occurred.
latter decision -- which is strikingly close to the instant
Defendants next advance the argument that by permit-
case on its facts -- would control here regardless of what
ting plaintiff to proceed on the theories of fraudulent
Webb said.
concealment and actual fraud, the trial court allowed
V. JURY INSTRUCTIONS
"trial by ambush". We reject such a contention for the
reason that the prior pleadings, as well as the pre-trial
Defendant contends that the trial court erred in reject-
proceedings, were sufficient [**18] to place defendants
ing tendered instructions on the Statute of Frauds. This
on notice of these claims. The evidence in the case re-
Court has held that the failure to give a tendered in-
mained the same. Defendants show no real prejudice
struction is not error where other instructions given by
to their trial preparation effort. Accordingly, the dis-
the Court adequately address the same issue. Blackwell
trict court committed no abuse of discretion by allowing
V. Sun Electric Corp., 696 F.2d 1176, 1182-1183 (6th
these claims to go to the jury. "[A] claim of surprise
Cir. 1983); Mitroff V. Xomox Corp, 797 F.2d 271, 278
that is not borne out by the facts, or an objection to a
(6th Cir. 1986), Jones V. Consolidated Rail Corp.,
mere technical addition to the theory of the claim for
[**16] 800 F.2d 590 (6th Cir. 1986). Here, because
relief or the facts on which it is based or a change in the
the parties' agreement was undisputedly oral, the jury
nature of the defense typically will not entail sufficient
issue was whether Jarrett's partial performance of the
prejudice to warrant the denial of a motion to amend."
agreement, and his reliance thereon, brought his con-
Wright and Miller, Federal Practice and Procedure, $
tract claim within an exception to the Statute of Frauds.
1495, pp. 478-79. Even at a late stage in the proceed-
The trial court instructed the jury that, to prevail on his
ings, parties may amend their pleadings to conform to
contract claim, Jarrett had the burden of proving "that
the proofs and to the findings of fact. Brandon V. Holt,
in reliance on the promise of eventual ownership, he al-
469 U.S. 464, 105 S. Ct. 873, 83 L. Ed. 2d 878 (1985).
tered his position so far as to incur an unjust and uncon-
See also 3 J. Moore, Federal Practice P15.13[2], p. 15-
scionable injury and loss; and
[that] his actions per-
157 (2d ed. 1984) (amendment to conform to evidence
formed pursuant to the alleged promise of eventual part
may be made at any time; id., at 15-168 (Rule 15(b)
ownership are clearly referable to that promise, rather
amendment allowed "so long as the opposing party has
than to some other reason such as increases in compen-
not been prejudiced in presenting his case").
sation." Because this instruction adequately addressed
the factual dispute between the parties relevant to the
VI. WAIVER
Defendants' Statute of Frauds defense, the court did not
Appellants allege that Jarrett affirmatively waived his
err in refusing Defendants' tendered instructions.
claims because he supposedly [**19] discovered years
Moreover, even if the trial court's instructions as to
in advance of his lawsuit that Epperly did not intend
the Statute of Frauds were erroneous, any such error was
to keep his promise, and therefore should have taken
clearly harmless, inasmuch as the jury's verdict was also
prompt action to rescind the contract. To support these
based on Jarrett's fraud claims, which were not subject
contentions, Appellants rely heavily on statements made
to the Statute of Frauds defense. Haynes, [**17] supra,
by Jarrett at his deposition, inferring that he knew six
at p. 231.
or seven years before filing suit that Epperly never in-
tended to fulfill his promise. Appellants, however, ig-
We also conclude that the district court correctly de-
nore Plaintiff's affidavit and trial testimony. In his affi-
clined to instruct the jury that in a case of promissory
davit in opposition to summary judgment, Jarrett averred
fraud, the promisor has an absolute legal right to change
that the reference to six or seven years "refers to when
his mind. The facts presented at trial did not support
the Nashville branch stopped using the name United
such a charge. Defendant apparently claims here that
Page 32
896 F.2d 1013, *1020; 1990 U.S. App. LEXIS 2467, **19
Brake Systems of Tennessee" and not to any such dis-
DISSENTBY: WELLFORD
covery as Defendants claim. In addition, at trial he
testified that he did not learn that a corporation entitled
DISSENT: WELLFORD, Circuit Judge, dissenting:
United Brake Systems of Tennessee had never been set
up by Epperly, as promised, until after his ten years of
I dissent from the majority view in this case, and I
would reverse and remand the case for the reasons indi-
employment when he consulted legal counsel, who in-
cated.
formed him. Significantly, he also testified at trial that
when he approached Epperly as his tenth anniversary
As conceded by plaintiff, the alleged agreement be-
neared, Epperly promised him stock certificates repre-
tween the parties was not in writing and there was no doc-
senting forty-nine percent of the stock of the Nashville
umentary evidence [**22] establishing its precise terms.
branch. Therefore, Defendants' [**20] contention that
I find the statement by the magistrate in this case to set
Jarrett affirmatively waived his claims is not supported
forth the facts succinctly:
by the evidence and the jury had substantial and material
evidence from which to conclude the contrary.
[When] the facts are construed in a light most favorable
VII. THE GENERAL VERDICT FORM
to Jarrett, as required in consideration of this motion
for summary judgment, Jarrett, by his own testimony
Finally, Defendants object to the form of the verdict
and the testimony of other employees, has presented
submitted to the jury. They argue that it was error to
sufficient facts to establish an oral agreement between
use a general verdict form, rather than a special verdict
Jarrett and Epperly for Epperly to convey a 49% interest
in the form of interrogatories. However, the form of
in UBSI's Nashville operation upon Jarrett's successful
jury verdict is within the discretion of the trial judge,
completion of 10 years employment with Epperly and
and is not ordinarily reviewable. Lummus Industries,
UBSI. Jarrett testified that Epperly so agreed in 1976 and
Inc., V. D.M & E. Corp., 862 F.2d 267, 8 U.S.P.Q.2D
gave subsequent assurances to Jarrett in the following
(BNA) 1983 (Fed. Cir. 1988); see also Fed.R.Civ.P. 49
years. Other employees described conversations with
Commentaries ("It appears that the privilege of calling
Epperly in which Epperly acknowledged the agreement.
for a special verdict is not a right to be demanded by the
Jarrett left his prior employment to take the position and
parties but is rather a matter to be determined by judi-
declined to pursue subsequent employment offers and
cial discretion.") and Flanigan V. Burlington Northern
business ventures in reliance upon Epperly's promise.
Inc., 632 F.2d 880 (8th Cir. 1980) cert. denied, 450
Although the dollar value of these other offers are [sic]
U.S. 921, 101 S. Ct. 1370, 67 L. Ed. 2d 349 (1981)
unclear, the length of Jarrett's commitment suggests an
("The decision [*1021] whether to use a general verdict
unjust loss if the agreement were breached. To be sure,
accompanied by special interrogatories
is similarly
Epperly disputes these facts, but these factual disputes
committed to the unreviewable discretion of the trial
can not be resolved by a motion [**23] for summary
judge.' quoting 9 Wright & Miller, Federal Practice
judgment.
and Procedure, Civil § 2511, at 522 (1971). [**21]
It appears that Jarrett [sic] version of the 1976
The jury awarded compensatory and punitive dam-
agreement include [sic] a subsequent promise to convey
ages. The award of punitive damages supports the con-
the real estate on which UBSI's Nashville branch was
clusion that the jury found a species of fraud. In Adkins
located. Of course, UBSI did not acquire ownership of
V. Ford Motor Company, 446 F.2d 1105, 1108 (6th Cir.
the real estate on which its Nashville branch was located
1971), this Court held:
until 1980. However, in his deposition testimony, Jarrett
clearly states that this real estate was to be embedded in
Tennessee adheres to the rule that where more than one
the agreement.
theory of recovery is submitted to the jury, and there
STATUTE OF FRAUDS
is evidence to support one or more, but not all, of the
theories, a general verdict should be construed to be
An oral contract for sale of an interest in land is clearly
attributable to the theory or theories supported by suffi-
not enforceable in Tennessee. Blasingame V. American
cient evidence and submitted free from error. [Citations
Materials, Inc., 654.S.W.2d 659 (Tenn. 1983); Baliles V.
omitted].
Cities Service Co., 578 W.2d 621 (Tenn. 1979). It is
error to rely upon a sixty-one year old district court de-
The trial judge acted within his discretion by submitting
cision (Interstate Co. V. Bry-Block Mercantile Co., 30
the case to the jury through a general verdict form.
F.2d 172 (W.D.Tenn. 1928) to "supercede" the holding
of the Tennessee Supreme Court in this regard.
The decision of the district court is AFFIRMED.
The doctrine of partial performance, relied upon by
Page 33
896 F.2d 1013, *1021; 1990 U.S. App. LEXIS 2467, **23
plaintiff, does not change the rule on sale of real es-
this regard that defendant Epperly made false representa-
tate in Tennessee. Blasingame, supra, n. 2; Baliles,
tions in the agreement, discussed above, with the [**26]
supra. The Blasingame court specifically noted that a
idea at the outset to deceive plaintiff, because he had "no
situation where real estate is the subject matter of an
reasonable expectation of performing those promises."
oral agreement is [**24] distinguishable from a situa-
Plaintiff claims, therefore, that defendant "expected to
tion which involves the partial performance of a verbal
induce reliance" and did so, causing him "to change his
employment contract. 654 W.2d at 663.
position," and then Epperly "repudiated" the oral agree-
ment to plaintiff's "irreparable detriment." This claim
Plaintiff formally pleaded that real estate was part of
amounts to an alleged oral offer and acceptance by plain-
the alleged contract upon which he relied:
tiff and the subsequent failure on the part of defendant-
offeror to carry out the parol agreement, his part of the
[*1022] It was understood by the parties that the forty-
bargain.
nine percent (49%) of the Nashville operation, included
inventory, equipment, accounts receivable, accounts
The promissory fraud claim should not have been
payable, business goodwill and real estate.
submitted to the jury. The Tennessee Supreme Court
has not expressly recognized promissory fraud as a tort
Joint Appendix 21 and 91 (emphasis added).
in Tennessee. It has not yet found the "right" set of
facts to apply such a doctrine. Fowler V. The Happy
Plaintiff is suing for the value of real estate assets ac-
Goodman Family, 575 W.2d 496 (Tenn. 1978); Bolan
quired in 1980 and claims that since there was no real
V. Caballero, 220 Tenn. 318, 417 S. 538, 541
estate involved in 1976 when he made the oral agree-
(1967). The Tennessee Supreme Court has, neverthe-
ment, he is not barred by the Statute of Frauds. Jarrett
less, expressly held that there is no judicial remedy for
cannot escape, however, from the fact that he is nev-
breach of an oral promise within the statute of frauds
ertheless claiming an interest in real estate based on an
even if "the promise [was made] with no intention of
unenforceable oral agreement. To the extent the district
complying with it." Southern States Development Co.
court and the majority have permitted recovery for the
V. Robinson, 494 S.W.2d 777, 782 (Tenn. Ct. [**27]
value of real estate, contrary to the Tennessee Statute of
App. 1972), cert. denied, (Tenn. 1973) (quoting Webb
Frauds as construed by the Tennessee Supreme Court,
V. Shultz, 184 Tenn. 235, 198 333, 336 (1946)).
I am convinced they are in error and to this extent, at
least, I would reverse and remand for a redetermination
When enforcement of a promise is barred by the
of damages, excluding the value of real estate entirely.
Statute of Frauds, a claim for promissory fraud on that
This [**25] would be the case if the alleged oral contract
same promise is likewise barred. In the Webb decision,
were deemed to be severable giving plaintiff the bene-
the Tennessee Supreme Court stated:
fit of very considerable doubt under Womble V. Walker,
181 Tenn. 246, 181 S.W.2d 5 (1944), and Brockett V.
In Hackney V. Hackney, 27 Tenn. 452, it was held that
Pipkin, 25 Tenn. App. 1, 149 478 (1941).
the fraud which will take a case from the operation of the
statute of frauds is not fraud in making the promise with
In sum, then, I dissent from the majority's hold-
no intention of complying with it; but a fraud by which
ing that the Statute of Frauds was inapplicable to the
the reduction of it to writing is prevented, the parties
real estate assets claimed by plaintiff. The entire ba-
so intending; and the complaining party being induced
sis for plaintiff's claim is breach of an oral contract,
to believe that it has been done, and this fraud may be
an oral agreement which purportedly included and in-
perpetrated in two ways one by signing a false paper,
volved a 49% interest in Epperly's "Nashville oper-
[*1023] at the same time inducing the belief that it is
ation." The Statute of Frauds is clearly applicable to
the true one, and the other by inducing the belief that
breach of contract claims as plaintiff admits in his brief,
the paper had been signed when in fact it had not. If
citing Haynes V. Cumberland Builders, Inc., 546 S.W.2d
there was no intention of reducing the promise to writ-
228 (Tenn. Ct.App. 1976) (Appellee's Brief at 11).
ing, or if there were knowledge that though there was
Later Tennessee Supreme Court cases also make this
an intention of reducing it to writing, that this had not
clear. Plaintiff characterizes in both the complaint and
been done, the promise is void under the statute.
amended complaint that he is suing on a "breach of con-
tract" claim.
It is, therefore, clear that a false promise to sign
an instrument [**28] in the future [or to do any act in
PROMISSORY FRAUD
the future] is not such fraud as will take the case out of
The other claim asserted by Jarrett in his amended
the operation of the statute of frauds.
complaint is for promissory fraud. Plaintiff claims in
Page 34
896 F.2d 1013, *1023; 1990 U.S. App. LEXIS 2467, **28
198 S.W.2d at 336. Webb thus distinguished between
rescission of a contract and for relief based on fraudulent
fraud in the inducement -- e.g., having someone sign a
misrepresentation, a different situation from the instant
false paper -- from fraud in factum, such as the fraud
case. The Tennessee Court of Appeals in Farmers &
alleged in this case in which Jarrett alleges that Epperly
Merchants Bank V. Petty, 664 S.W.2d 77, 81 (Tenn.
had no intention of complying with the promise at the
[**30] Ct.App. 1983), recognized that the Supreme
time he made it. While fraud in the inducement will
Court of Tennessee has not adopted the doctrine of
take a case away from the operation of the Statute of
promissory fraud. In Fowler, the Supreme Court of
Frauds where there was allegedly no intention of ever
Tennessee stated:
complying with the promise, "the promise is void under
Although a minority view, the rule established by the
the statute." Id. The Webb language was quoted with
cases in this state has been that a misrepresentation of in-
approval by the Tennessee Court of Appeals in Southern
States. See 494 .W.2d at 782.
tention or a promise without intent to perform is legally
insufficient to support a claim for rescission or damages.
Southern States was decided five years after the
This rule has been adhered to in a number of decisions,
Tennessee Supreme Court discussed the theory of
including the fairly recent case of Bolan V. Caballero.
promissory fraud in Caballero, supra. Even though
the Tennessee Court of Appeals was on notice of the
Fowler, 575 S. W.2d at 498 (citations omitted).
consideration of the concept of promissory fraud by the
I would agree, therefore, with magistrate William J.
Tennessee Supreme Court in Bolan, it nevertheless rec-
Haynes, Jr. in this case that the defendants' Statute of
ognized that certain oral promises are not actionable re-
Frauds defense was sound as to "any agreement to con-
gardless of the maker's intent.
vey any interest in the UBSI-Nashville realty," and that
The district [**29] court should have been guided
the promissory fraud claim simply cannot stand under
by those decisions and recognized that submitting the
applicable Tennessee law and the facts of this case.
promissory fraud claim to the jury would be contrary to
Jarrett was never denied fair consideration during the
Tennessee law. Neither the magistrate nor the district
time he worked for defendants. He testified that he was
judge even acknowledged the existence of the Webb and
"well paid" during this period and was treated fairly
the Southern States decisions.
during the employment relationship. From the outset
The plaintiff has elected first to go forward to sue for
defendants paid plaintiff more than he had previously
a breach of contract and obtain damages for the breach.
ever been paid and he received regular [**31] and gen-
To the extent he is entitled to recover damages for the
erous raises. I find no proven basis for equitable [*1024]
oral contract (not involving real estate), plaintiff cannot
estoppel to preclude defendants' reliance on the Statute
also claim a recovery for a remedy for promissory fraud
of Frauds. See Webb, supra; Southern States, supra.
saying there was never such an agreement because de-
Giving plaintiff, then, the benefit of doubt about sev-
fendant never intended to perform it. See Dunham V.
erability of the oral agreement and about application of
Fortner Furniture Co., 1987 WL 6372 (Shelby Law No.
equitable estoppel in this situation, I would reverse and
99, 2/13/87, Tenn.Ct.App.).
remand to the district court only for a determination of
Tennessee appellate courts have not seen fit to allow
compensatory damages for the personalty value of the
a promissory fraud recovery for the type of claim made
breach of the oral contract I would also reverse and set
in this case. Brungard V. Caprice Records, Inc., 608
aside the punitive damages award entirely.
S.W.2d 585 (Tenn. Ct.App. 1980), involved a claim for
Page 11
6TH CASE of Level 1 printed in FULL format.
WILLIAM D. ARENDALL, Petitioner - Appellant, V. JACK MORGAN, WARDEN, Respondent -
Appellee.
No. 93-5860
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
1994 U.S. App. LEXIS 13387
May 24, 1994, Filed
NOTICE: [*1] NOT RECOMMENDED FOR FULL-
tenced Arendall for twenty and thirty years, respectively.
TEXT PUBLICATION. SIXTH CIRCUIT RULE 24
Arendall appealed and the Tennessee Court of Appeals
LIMITS CITATION TO SPECIFIC SITUATIONS.
affirmed his conviction. See Arendall V. State, 509
PLEASE SEE RULE 24 BEFORE CITING IN A
S. W.2d 838 (Tenn. Crim. App. 1974). The Tennessee
PROCEEDING IN A COURT IN THE SIXTH
Supreme Court denied review.
CIRCUIT. IF CITED, A COPY MUST BE SERVED ON
OTHER PARTIES AND THE COURT. THIS NOTICE
On January 27, 1984, Arendall filed a petition for
IS TO BE PROMINENTLY DISPLAYED IF THIS
post-conviction relief. On advice of counsel, however,
DECISION IS REPRODUCED.
he withdrew the petition. On August 29, 1986, Arendall
filed a pro se document seeking a recomputation of his
sentence to reflect credits for time served in federal cus-
SUBSEQUENT HISTORY: Reported in Table Case
tody. The trial court appointed counsel, held a short
Format at: 25 F.3d 1047, 1994 U.S. App. LEXIS 20954.
hearing and credited him with time served.
PRIOR HISTORY: United States District Court for the
On June 16, 1988, Arendall filed another petition for
Middle District of Tennessee. District No. 90-00045.
post-conviction relief alleging ineffective assistance of
Wiseman, Jr., District Judge.
appellate counsel. The trial court again appointed coun-
sel and Arendall amended his claim. The state filed an-
JUDGES: BEFORE: KEITH and BATCHELDER,
swers arguing Arendall failed to include his allegations
Circuit Judges, and JOINER, Senior District Judge.
*
within his 1984 and 1986 petitions, and thus waived the
right to raise the issues. After an evidentiary hearing, the
* The Honorable Charles W. Joiner, Senior United
trial court found Arendall had waived his grounds for re-
States District Judge for the Eastern District of
lief and denied his petition. [*3] Arendall appealed this
Michigan, sitting by designation.
judgment and the Tennessee Court of Criminal Appeals
affirmed. See Arendall V. State, No. 88-276-111, 1989
OPINIONBY: PER CURIAM
WL 111202, (Tenn. Crim. App., Sept. 27, 1989). The
Tennessee Supreme Court denied review.
OPINION: PER CURIAM: Petitioner William David
Arendall then filed a federal habeas petition. A fed-
Arendall ("Arendall") appeals the district court's dis-
eral magistrate judge recommended dismissing the pe-
missal of his petition for writ of habeas corpus based
tition because Arendall had procedurally defaulted and
on his failure to raise all constitutional claims within
had not shown cause and prejudice. On May 27, 1993,
prior petitions. Arendall argues the district court erred
the district court adopted the Magistrate's recommenda-
by characterizing his proceeding to amend his sentence
tion and dismissed Arendall's petition with prejudice.
as a post-conviction proceeding for the purposes of
Tennessee's waiver statute. For the reasons stated below,
II.
we AFFIRM the district court's dismissal of Arendall's
The State concedes that Arendall's voluntarily with-
petition.
drawn 1984 petition did not waive his claims. In Albert
I.
V. State, 813 S.W.2d 426 (Tenn. 1991), the Tennessee
Supreme Court held that no waiver of issues occurs un-
In 1972, a Tennessee [*2] jury convicted Arendall
til there has been a hearing on the merits. Thus, when
of two counts of armed robbery. The state court sen-
Page 12
1994 U.S. App. LEXIS 13387, *3
a petition has been withdrawn, there has been "no pro-
ceeding before a court at which the grounds alleged could
(2) There is a rebuttable presumption that any ground
have been presented." Id. at 428. See also Williams V.
for relief not raised in any such proceeding which was
State, 831 .W.2d 281, 282 (Tenn. 1992). The State
held was waived.
alleges, however, that Arendall's failure to plead his
[*5]
constitutional [*4] claims at any time during the 1986
proceeding to amend his sentence waived further review
Tenn. Code Ann. § 40-30-112(b) (1992).
of these issues.
In a detailed and well-reasoned opinion, the
For purposes of habeas review, our Circuit applies the
Magistrate applied the Maupin analysis and found: (1)
three part test set out in Maupin V. Smith, 785 F.2d
§ 40-30-112(b)(2) was the applicable procedural rule
135, 138 (6th Cir. 1986). The Maupin test directs us to
and that Arendall failed to comply with this rule; (2)
determine: (1) whether there is a state procedural rule
the Tennessee courts do enforce this procedural rule;
that is applicable to the petitioner's claim with which
and (3) because the decisions regarding Arendall's post-
the petitioner failed to comply; (2) whether the state
conviction proceedings were based solely on state law,
court actually enforced the state procedural sanction;
an adequate independent state ground existed. The
and (3) whether the state procedural forfeiture is an 'ade-
Magistrate further found that Arendall failed to demon-
quate and independent' state ground upon which the state
strate any cause for non-compliance or to show he was
can rely to foreclose review of a federal constitutional
prejudiced.
claim. Id. The state rule applicable to Arendall's case is
III.
found within the Tennessee Post-Conviction Procedure
Act which provides:
After hearing oral argument and carefully considering
the record before us, we find no error warranting rever-
(B)(1) A ground for relief is "waived" if the petitioner
sal. We, therefore, AFFIRM the dismissal of Arendall's
knowingly and understandingly failed to present it for
petition on the basis of the recommendation of United
determination in any proceeding before a court of com-
States Magistrate, William J. Haynes, Jr., as adopted by
petent jurisdiction in which the ground could have been
the district court.
presented.
Page 37
17TH CASE of Level 1 printed in FULL format.
JOHNNY WHITE, Petitioner-Appellant, V. EARNEST PELLEGRIN, COMMISSIONER; MICHAEL
DUTTON, WARDEN; and HERMAN C. DAVIS, WARDEN, Respondents-Appellees
No. 85-6041
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
803 F.2d 723; 1986 U.S. App. LEXIS 30913
September 19, 1986, Filed
NOTICE: [*1] NOT RECOMMENDED FOR FULL-
nl On January 4, 1985, the warden disagreed
TEXT PUBLICATION SIXTH CIRCUIT RULE 24
with the Segregation Review Board's recommenda-
LIMITS CITATION TO SPECIFIC SITUATIONS.
tion of White's release, merely stating "I will con-
PLEASE SEE RULE 24 BEFORE CITING IN A
sider if the records continue to be positive," and or-
COURT IN THE SIXTH CIRCUIT. IF CITED, A
dered White's continued segregation. On February
COPY MUST BE SERVED ON OTHER PARTIES
6, 1985, the Board's report simply states that While
AND THE COURT. THIS NOTICE IS TO BE
should "remain at present". These were found not
PROMINENTLY DISPLAYED IF THIS DECISION IS
to be sufficient statements of continued confinement
REPRODUCED.
to comport with due process in light of Crafton V.
Luttrell, 378 F. Supp. 521 (M.D. Tenn. 1974) and
PRIOR HISTORY: ON APPEAL FROM THE UNITED
Bills V. Henderson, 631 F.2d 1287 (6th Cir. 1982).
STATES DISTRICT COURT FOR THE MIDDLE
Recently, this court in Franklin V. Aycock, Nos. 85-
DISTRICT OF TENNESSEE.
5040 and 85-5072 (6th Cir. 1986) held that a written
statement with reasons justifying continued confine-
OPINION: BEFORE: KEITH and GUY, Circuit Judges;
ment must be afforded prisoners in administrative
and BALLANTINE, * District Judge.
segregation.
n* Honorable Thomas A. Ballantine, Jr., United
At issue in this appeal is whether petitioner was enti-
States District Court for the Western District of
tled to damages based on the finding of a due [*3] pro-
Kentucky, sitting by designation.
cess violation. We hold that Carey V. Piphus, 435 U.S.
PER CURIAM:
247 (1978) is dispositive of this case and damages are
hereby denied. Carey holds that a $ 1983 procedural due
Petitioner, Johnny White, appeals from a judgment
process claim is compensatory only if there is proof of
dismissing his prayer for damages in this § 1983 suit
actual injury. Petitioner has failed to meet this burden.
alleging due process violations. We affirm because pe-
Indeed, the district court held a hearing on September
titioner has not proven actual damages.
19, 1985, finding in an Order dated September 20, 1985,
that "there was reasonable justification for the contin-
Petitioner filed a $ 1983 complaint on January 11,
ued incarceration of the petitioner to administrative seg-
1985, alleging the conditions of confinement in adminis-
regation at the time in question." Administrative seg-
trative segregation at Tennessee State Penitentiary (TSP)
regation would have been proper even if detailed rea-
violated his constitutional rights. The case was referred
sons were given for petitioner's continued confinement.
to Magistrate William Haynes, Jr. and on May 24,
Thus, this case is analogous to Carey where the Court
1985, a report and recommendation was entered finding
held [R]espondents n2 would not be entitled to recover
procedural due process violations vis-a-vis petitioner's
damages representing the value of missed school time if
[*2] continued confinement in administrative segrega-
petitioners showed on remand 'that there was just cause
tion. Specifically, the decisions in January 1985 (by the
for the suspension[s] and that therefore [respondents]
warden) and February 1985 (by the Segregation Review
would have been suspended even if a proper hearing
Board members) did not comply with the due process
had been held.'' Id. at 252. Accordingly, the deci-
clause of the Fourteenth Amendment, nl because ade-
sion below dismissing petitioner's claim for damages is
quate reasons were not given for continued confinement.
affirmed.
Page 38
803 F.2d 723; 1986 U.S. App. LEXIS 30913, *3
n2 Respondents were students suspended from
able to join in the majority opinion because of this
school without a hearing. Respondents were al-
court's recent decision in Franklin V. Aycock, Nos.
legedly suspended for marijuana use at school.
85-5041/5072, slip op. (6th Cir. July 15, 1986). I
[*4]
do not believe the majority's analysis of the damage is-
sue squares with the sequential analysis called for by
DISSENTBY: GUY
Franklin. I would remand for further consideration in
light of Franklin.
DISSENT: GUY, Circuit Judge, dissenting. I am un-
Page 9
3RD CASE of Level 1 printed in FULL format.
BOBBY DARNELL, Plaintiff-Appellee, V. JOHN ROSSEN, individually and as Chief of Police in the
Police Department of the City of Clarksville; DANIEL BREWER, individually and as Sgt., Supervisor in
the Police Department of the City of Clarksville; CITY OF CLARKSVILLE, a municipal corporation,
Defendants, MICHAEL CAVER, individually and as police officer in the Police Department of the City
of Clarksville, Defendant-Appellant.
No. 97-5297
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
116 F.3d 187; 1997 U.S. App. LEXIS 15196; 1997 FED App. 0188P (6th Cir.)
June 25, 1997, Decided
June 25, 1997, Filed
PRIOR HISTORY: [**1] Appeal from the United States
The parties have consented to have a United States
District Court for the Middle District of Tennessee at
Magistrate Judge conduct any and all further proceedings
Nashville. No. 96-00103. William J. Haynes, Jr.,
in the above-named civil action, including entry of final
Magistrate Judge.
judgment, as provided in 28 U.S.C. § 636(c) and Rule
73(b) [**2] of the Federal Rules of Civil Procedure.
COUNSEL: For BOBBY DARNELL, Plaintiff -
It is, therefore, ORDERED that this civil action is re-
Appellee: James L. Harris, Nashville, TN.
ferred to a United States Magistrate Judge for all further
proceedings, including entry of final judgment.
For MICHAEL W. CAVER, individually and as Sgt.,
Supervisor in the Police Department of the City of
The parties have consented to appeal on the record to
Clarksville, Defendant - Appellant: David Haines,
a District Judge and, therefore, it is ORDERED that
Clarksville, TN.
any appeal taken [*188] by either party shall be to the
District Judge as provided in 28 U.S.C. $ 636(c)(4) and
JUDGES: Before: KENNEDY, GUY, and MOORE,
Rule 73(d).
Circuit Judges.
It is so ORDERED.
OPINION: [*187] OPINION
On February 19, 1997, the magistrate judge filed an or-
PER CURIAM. Defendant Michael Caver ("Caver") ap-
der rejecting, in part, defendant Caver's claim of quali-
fied immunity. On March 5, 1997, Caver filed a notice
peals an order of a magistrate judge in this civil rights
action denying, in part, his motion for summary judg-
of appeal, stating, with specific reference to the March
11, 1996 order, that the appeal was to the district court.
ment on the grounds of qualified immunity. On April 14,
On the following day, however, Caver filed an amended
1997, the clerk of this court entered an order directing
notice of appeal stating the appeal was to this court. The
Caver to show cause why his appeal should not be dis-
amended notice, which made no reference to the March
missed because the parties to the action had agreed that
11, 1996 order, resulted in the present appeal. The is-
any appeal from the magistrate judge's rulings would lie
sue before us is whether, in light of the March 11, 1996
with the district court. Caver filed a response, and the
issue is now before the court.
order, this court has jurisdiction over the appeal.
Since 1979, parties in a civil action can consent to have
This is a civil rights action in which the plaintiff al-
all proceedings, including the entry of final judgment,
leged the defendants violated various of his constitu-
conducted [**3] by a magistrate judge. 28 U.S.C. §
tional rights during an arrest. On March 11, 1996, the
636(c)(1). Although appeals normally lie with the court
district court entered the following order:
of appeals, the parties could, at the time this action was
filed, agree that an appeal would lie instead with the
Page 10
116 F.3d 187, *188; 1997 U.S. App. LEXIS 15196, **3;
1997 FED App. 0188P (6th Cir.)
district court. See 28 U.S.C. § 636(c)(4) (West 1996)
magistrate judge under § 636(c)(1) at the time of the ef-
(repealed Pub. L. 104-317, § 207 (Oct. 19, 1996)).
fective date of the new legislation. See Figueroa-Rubio
Thereafter, a further appeal to the court of appeals was
V. INS, 108 F.3d 110, 112 (6th Cir. 1997) (newly en-
available only if one of the parties petitioned for leave to
acted statute eliminating appellate jurisdiction applied
appeal the resultant decision of the district court and con-
to petition for review pending at time of effective date
sent was granted by the court of appeals. See 28 U.S.C.
of statute); Qasguargis V. INS, 91 F.3d 788, 789-90
§ 636(c)(5) (West 1996) (repealed Pub. L. 104-317, §
(6th Cir. 1996) (order), cert. denied, 137 L. Ed. 2d
207 (Oct. 19, 1996)). An attempt to appeal the mag-
215, 117'S. Ct. 1080 (1997) (same result where peti-
istrate judge's order or judgment directly to this court
tion for review was filed eight days after effective date
(thus bypassing the district court) would, under these
of statute). At the time the magistrate judge entered
circumstances, result in dismissal of the appeal. See
the order being appealed, therefore, the sole proper ap-
Stull V. Secretary, 749 F.2d 9, 10-11 (6th Cir. 1984)
pellate forum was this court. The prior designation of
(per curiam).
the district court as the appellate [**5] forum, although
properly entered into by the parties at the time of its
Congress, however, eliminated the option of an appeal
entry, had been superseded by the 1996 legislation and
to the district court in the Federal Courts Improvement
was of no further effect. Caver properly amended his
Act of 1996, Pub. L. 104-317, § 207, 104 Stat. 3847
notice of appeal to reflect that change.
(Oct. 19, 1996). As a result of that legislation, an appeal
from an order or judgment entered by a magistrate judge
The show cause order of April 14, 1997 is withdrawn
under § 636(c)(1) is now [**4] appealable only to a court
and this appeal is restored to the active docket of the
of appeals. 28 U.S.C. 636(c)(3) (West 1997). See gen-
court. The clerk shall initiate regular briefing proce-
erally 14 JAMES WM. MOORE ET AL., MOORE'S
dures. nl
FEDERAL PRACTICE § 73 App. 104 (3d ed. 1997).
Because this change is solely jurisdictional in nature and
nl We note that the only issue before the court
"takes away no substantive right but simply changes the
at this time concerns the proper appellate forum for
tribunal that is to hear the case," Landgraf V. USI Film
Caver's appeal. We do not address any jurisdictional
Products, 511 U.S. 244, 274, 1281 Ed. 2d 229, 114 S.
issues that could arise under Johnson V. Jones, 515
Ct. 1483 (1994), quoting Hallowell V. Commons, 239
U.S. 304, 115 S. Ct. 2151, 132 L. Ed. 2d 238
U.S. 506, 508, 60 L. Ed. 409, 36 S. Ct. 202 (1916),
(1995).
we conclude it is applicable to all cases pending before a
Page 23
13TH CASE of Level 1 printed in FULL format.
JONAH LOUIS GANT, Petitioner-Appellant, V. MICHAEL DUTTON, WARDEN, Respondent-Appellee
No. 89-6039
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
REMAND
1991 U.S. App. LEXIS 354
ISSUE DETERMINED T5V
January 8, 1991, Filed
HAYMES = REMANDED
NOTICE: [*1]
tion report against appellant. The report charged ap-
pellant with involvement in the instigation of a work
NOT RECOMMENDED FOR FULL-TEXT
stoppage strike and recommended his placement in in-
PUBLICATION SIXTH CIRCUIT RULE 24
voluntary administrative segregation as a consequence
LIMITS CITATION TO SPECIFIC SITUATIONS.
of his alleged conduct.
PLEASE SEE RULE 24 BEFORE CITING IN
A PROCEEDING IN A COURT IN THE SIXTH
The Involuntary Administrative Segregation Board at
CIRCUIT. IF CITED, A COPY MUST BE SERVED
Fort Pillow ("Board") conducted a hearing on January
ON OTHER PARTIES AND THE COURT. THIS
17, 1987. Appellant requested that he be given the op-
NOTICE IS TO BE PROMINENTLY DISPLAYED IF
portunity to present witnesses on his behalf and that he be
THIS DECISION IS REPRODUCED.
granted a continuance to consult with a jailhouse lawyer
and to prepare his defense. These requests were denied.
PRIOR HISTORY:
Appellant also asked that Corporal Belinda Greer re-
cuse herself from the Board for the reason that she had
On Appeal from the United States District Court for the
prior information regarding the hearing. This request
Middle District of Tennessee; No. 87-00743; Thomas
also was denied. Appellant then questioned the other
A. Higgins, Judge.
two Board members about their familiarity with proce-
dures and administrative segregation placement reports.
JUDGES: Wellford and Suhrheinrich, Circuit Judges;
Both of these Board members told Corporal Greer that
and John D. Holschuh, * District Judge. Wellford,
they did not want to hear the case because they did not
Circuit Judge, concurring.
know why the hearing was being held. Corporal Greer
* The Honorable John D. Holschuh, Chief District
requested appellant to leave the room, and in his absence
the two other members decided to sit [*3] on the Board.
Judge for the Southern District of Ohio, sitting by
designation.
Following the hearing, the Board accepted the war-
den's recommendation and ordered appellant to be
OPINIONBY: PER CURIAM
placed in the administrative segregation unit at Fort
Pillow. With respect to this order, appellant main-
OPINION: Petitioner Jonah Louis Gant appeals from the
tains that an administrative segregation placement sheet
district court's denial of his petition for writ of habeas
should have been forwarded by the Board to the war-
corpus. Finding the factual record below to be incom-
den. Appellant alleges that in his case, the placement
plete, we remand this cause to the district court on the
sheet had already been executed by the warden prior to
question of mootness.
his hearing. Appellant also states that after the hearing
he made numerous requests to consult with an inmate
I.
jailhouse lawyer regarding his proceedings. Although
Appellant was convicted in Tennessee state court in
the requests of similarly situated inmates were granted,
1985 for armed robbery and aggravated rape. He was
all of appellant's requests were denied.
sentenced to sixty years imprisonment. On January 14,
In addition to placing appellant in administrative seg-
1987, Billy Compton, the warden at Fort Pillow State
regation, the Board recommended his transfer to another
Farm ("Fort Pillow") where appellant was then [*2] in-
state prison facility. In February, 1987, appellant was
carcerated, filed an involuntary administrative segrega-
transferred from Fort Pillow to Brushy Mountain State
Page 24
1991 U.S. App. LEXIS 354, *3
Prison ("Brushy Mountain"). At Brushy Mountain ap-
that appellant had refused the offer. The magistrate fur-
pellant remained in administrative segregation due to his
ther noted [*6] that respondent offered to expunge the
earlier status at Fort Pillow.
Fort Pillow report and all references to the report from
On July 14, 1987, Otis Jones, the warden at Brushy
appellant's record. Moreover, the magistrate found that
Mountain, filed an additional involuntary administrative
there were legally sufficient reasons for appellant's con-
segregation report stating that:
tinued confinement in administrative segregation aside
from the disputed involuntary administrative segregation
Since [*4] [January] 1987 to date, inmate Gant
report.
has been involved in a work stoppage, written up for
Appellant filed objections to the magistrate's report
assault on an officer and refusing a direct order while at
and recommendations. On April 19, 1988, Judge
F.P. This behavior attitude of inmate Gant proceeded to
Higgins entered an order recommitting the action to the
make him a threat to the safe operations [sic] of the insti-
magistrate to consider whether appellant had exhausted
tution if he is released from [involuntary administrative
his state remedies and whether expungement of records
segregation at this time].
is available by way of a federal habeas corpus petition.
The Board at Brushy Mountain agreed with the warden's
The magistrate issued a second report and recommen-
dation on April 24, 1989, in which he found that ex-
report and ordered appellant's continued placement in
administrative segregation.
pungement of records is available under 28:U.S.C. §
2254 and that appellant was not required to exhaust state
Appellant was transferred from Brushy Mountain to
remedies because resort to the state courts in this case
the Tennessee State Penitentiary ("TSP") in July, 1987.
would be futile. The magistrate resubmitted his ear-
He remained in administrative segregation at TSP based
lier report and recommendation which had recommended
on his status at Brushy Mountain. While at TSP, appel-
that appellant's petition be dismissed in part as moot
lant was offered the opportunity to return to the general
and in part as frivolous. Both parties filed objections to
prison population if he signed a "behavioral contract"
the magistrate's second report and recommendation. By
in which he would agree to conduct himself in a certain
memorandum [*7] and order dated July 7, 1989, Judge
manner. Appellant refused to sign the contract on the ba-
Higgins adopted the magistrate's report and recommen-
sis that his confinement was illegal and that he intended
dation.
to remain in administrative segregation until his dispute
was resolved through litigation.
Appellant filed a notice of appeal on July 14, 1989.
On August 9, 1989, the district court authorized appel-
Appellant filed his petition for a writ of habeas corpus
lant to proceed in forma pauperis and granted a certificate
in the United States District Court for the Middle District
of probable cause. Counsel was appointed for appellant
of [*5] Tennessee, Nashville Division, on September 23,
on March 1, 1990. Following the submission of briefs
1987. He challenged the Board's actions at Fort Pillow
and oral argument, the matter is now before this Court
on various grounds, including that he had been denied
for review.
ample time to prepare a defense and the opportunity to
II.
present witnesses. Appellant sought as relief that he be
returned to the status he enjoyed prior to the Board's
Federal courts will entertain a habeas corpus peti-
action and that all references to the Fort Pillow adminis-
tion on behalf of a person if the custody violates the
trative segregation report be expunged from his record.
Constitution, laws or treaties of the United States. 28
U.S.C. § 2254(a). We review the district court's judg-
Appellant's petition was referred to United States
ment on a habeas corpus petition de novo but defer to
Magistrate William J. Haynes, Jr. to determine whether
evidence-supported state court findings of fact. Lundy
it was frivolous or malicious. After reviewing the file,
V. Campbell, 888 F.2d 467, 469 (6th Cir. 1989), cert.
the magistrate determined that an evidentiary hearing
denied, 110 S. Ct. 2212. Moreover, we review the
was necessary on the issue of frivolousness. A hear-
district court's factual findings in a habeas corpus pro-
ing was held on December 22, 1987 at which appel-
ceeding for clear error. Ray V. Rose, 535 F.2d 966,
lant appeared and testified. On January 14, 1988, the
973 n.9 (6th Cir. 1976), cert. denied, 429 U.S. 1026
magistrate issued a report and recommendation recom-
(1976).
mending that the petition be dismissed as moot as to
the claims arising from appellant's administrative segre-
A.
gation at Fort Pillow and frivolous as to all remaining
The first issue presented for review is whether appel-
claims. The magistrate noted that respondent offered to
lant properly exhausted his state remedies prior to filing
release appellant from administrative segregation, but
Page 25
1991 U.S. App. LEXIS 354, *7
his federal habeas corpus [*8] petition. Respondent has
spect to the disciplinary procedures resulting from these
elected not to pursue this issue on appeal. Therefore, we
acts. Respondent contends, and the district court agreed,
have no reason to disturb the district court's conclusion
that based on these subsequent acts appellant would have
that no clear remedy exists under Tennessee law for the
been placed in administrative segregation regardless of
claims raised by appellant.
the disputed proceedings at Fort Pillow. Yet in making
B.
his report, the warden at Brushy Mountain specifically
relied not only on the assault and the disobeying of the
The second issue presented for review is whether ap-
order, but also on appellant's alleged involvement in
pellant's petition is cognizable under 28 U.S.C. § 2254.
the work stoppage at Fort Pillow. Thus, there is a fac-
Respondent argues that Bell V. Wolfish expressly left un-
tual issue of whether appellant would have been placed
resolved the propriety of using a writ of habeas corpus
in administrative segregation at Brushy Mountain if the
to challenge conditions of confinement as apart from the
disputed report at Fort Pillow had not been a part of his
fact or length of the confinement itself. 441 U.S. 520,
prison record. We do not believe that the record below
(1979). At oral argument, however, counsel for
is sufficient to resolve this issue and, accordingly, we
respondent conceded that at least four courts of appeals
cannot say whether appellant's petition is moot.
have answered the question affirmatively. See Bostic V.
III.
Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989); DelRaine
V. Carlson, 826 2d 698, 702 (7th Cir. 1987); Boudin V.
For the foregoing reasons, we REMAND this cause to
Thomas, 732 F.2d 1107, 1111 (2d Cir. 1984); Streeter
the district court on the question of mootness for a deter-
V. Hopper, 618 1178, 1181 (5th Cir. 1980). Given
mination of whether appellant remains in administrative
our disposition of this matter, it is unnecessary for us
[*11] segregation for reasons independent of his alleged
to consider the soundness of these decisions. For our
involvement in the work stoppage at Fort Pillow. If the
purposes, then, we will assume, but not decide, that ap-
district court determines upon remand that the reasons
pellant's claims are cognizable in a federal habeas corpus
for appellant's continued confinement in administrative
petition. [*9]
segregation are not independent of this conduct, then the
district court shall proceed to the merits of appellant's
C.
petition.
The third and final issue presented for review is
whether the district court properly concluded that ap-
CONCURBY: WELLFORD
pellant's claims are moot. In making this determina-
tion, the district court partly relied on respondent's of-
CONCUR:
fer to release appellant from administrative segregation
WELLFORD, Circuit Judge, concurring.
and to expunge the disputed administrative segregation
Based on the record before us, I would conclude that
report and all references to that report from appellant's
as of July 14, 1987, petitioner Gant was properly placed
prison records. Appellant refused this offer because he
in administrative segregation at the Brushy Mountain,
would be required in return to sign a behavioral contract.
Tennessee, prison facility. Gant's transfer from Fort
We cannot agree with the district court that this condi-
Pillow to Brushy Mountain in February 1987, and again
tional offer of release and expungement moots appel-
later in 1987 to another state prison, indicates no basis
lant's claims. We note that at the time of oral argument,
of a cause of action based on a habeas corpus petition.
appellant continued to be in administrative segregation
Later Gant was transferred to the Tennessee State Prison
at a fourth facility and references to the disputed report
(TSP) at Nashville and remained in administrative seg-
had still not been expunged.
regation.
The second basis for the district court's conclusion,
This action is one for habeas corpus relief, not for
however, remains: that legally sufficient grounds exist
42 U.S.C § 1983 relief if, in fact, Gant was improperly
for appellant's continued confinement in administrative
confined in administrative segregation for alleged insti-
segregation independent of the disputed report. Such
gation of a work stoppage at Fort Pillow. This action
a basis is arguably provided by the second administra-
was brought after Gant was transferred to TSP, and we
tive segregation report filed by the warden of Brushy
are concerned in this [*12] action only with the circum-
Mountain. This report notes that appellant had been
stances of his administrative segregation at that facility.
written up for [*10] assaulting a guard and disobeying
His basis for complaint and relief is averred "malicious,
an order while still at Fort Pillow. Appellant does not
capricious, arbitrary and vindictive" action by respon-
deny that he assaulted the guard or disobeyed the order;
dents "against petitioner at the Tennessee State Main
nor does he complain of any lack of due process with re-
Prison in Nashville." Petitioner also seeks expungement
Page 26
1991 U.S. App. LEXIS 354, *12
of his Fort Pillow administrative segregation report.
inatory conditions nl were attached by respondents at
TSP to the offer to release Gant from administrative
This complaint for expungement is based upon al-
segregation, and/or to expunge any records of his Fort
leged violations by defendants of Tennessee Department
Pillow confinement (but not his Brushy Mountain con-
of Corrections policies and procedures in denying him
finement which I deem to be appropriate).
an opportunity "to marshall evidence" and "prepare a
defense" at a hearing on disciplinary charges at Fort
Pillow.
nl During oral argument Gant's counsel conceded
that he had "no problem" with any drug screen re-
Assuming that petitioner is entitled to expungement
quirements at TSP.
under a habeas corpus complaint, I would concur
in a limited remand for the district court to decide
[*13]
whether impermissible, unreasonable, and/or discrim-
Page 18
12TH CASE of Level 1 printed in FULL format.
ALBERT L. BARLOW, Plaintiff-Appellant, V. LOUIS W. SULLIVAN, M.D. SECRETARY OF HEALTH
& HUMAN SERVICES, Defendant-Appellee
No. 90-5810
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
REMAND
1991 U.S. App. LEXIS 4121
RIPS THE ALJ
NOT REALLY
March 7, 1991, Filed
HAYMES
NOTICE: [*1]
tion. Barlow requested a hearing and a hearing was held
on June 11, 1985. Administrative Law Judge Larry
NOT RECOMMENDED FOR FULL-TEXT
Creson [*2] determined that Barlow was not disabled
PUBLICATION SIXTH CIRCUIT RULE 24
because, despite his impairments, he could perform his
LIMITS CITATION TO SPECIFIC SITUATIONS.
former work as a small engine mechanic. The Appeals
PLEASE SEE RULE 24 BEFORE CITING IN
Council denied Barlow's request for review. Barlow
A PROCEEDING IN A COURT IN THE SIXTH
then filed a complaint for review in the United States
CIRCUIT. IF CITED, A COPY MUST BE SERVED
District Court for the Middle District of Tennessee. The
ON OTHER PARTIES AND THE COURT. THIS
district court remanded the claim to the Secretary for re-
NOTICE IS TO BE PROMINENTLY DISPLAYED IF
consideration in light of changes in administrative proce-
THIS DECISION IS REPRODUCED.
dures as a result of the Disability Benefits Reform Act of
1984, Pub. L. No. 98-460, $ 5, 98 Stat. 1801 (1984).
SUBSEQUENT HISTORY: Reported as Table Case at
On remand, ALJ Henry Kane held a second hearing on
927 F.2d 603, 1991 U.S. App. LEXIS 7455.
October 28, 1987. On January 28, 1988, the ALJ issued
a decision unfavorable to Barlow. The Appeals Council
PRIOR HISTORY:
denied Barlow's request for review on May 17, 1988,
and the case returned to the district court. On February
On Appeal from the United States District Court for the
13, 1990, U.S. Magistrate William J. Haynes, Jr. rec-
Middle District of Tennessee; No. 85-01092; Morton,
ommended an affirmance of the Secretary's decision. On
Judge.
February 28, 1990, Barlow's counsel filed objections to
the Magistrate's Report. On April 27, 1990, the district
JUDGES: Jones and Nelson, Circuit Judges, and Charles
court issued an order adopting the magistrate's findings
W. Joiner, Senior District Judge.
*
of fact, with minor corrections, and issued new conclu-
* The Honorable Charles W. Joiner, United States
sions of law affirming the Secretary's decision.
District Court for the Eastern District of Michigan,
Barlow was born [*3] on June 28, 1931, and was
sitting by designation.
fifty-six years old at the time of the ALJ's decision.
He attended school for only three months and is unable
OPINIONBY: PER CURIAM
to read or write. Barlow's past relevant work was as
a small engine mechanic fixing air-cooled engines for
OPINION: Plaintiff Albert L. Barlow appeals the dis-
lawnmowers and water pumps. He was last gainfully
trict court's judgment affirming the Secretary's denial of
employed on December 31, 1982, but he made two un-
Social Security disability benefits. For the reasons that
successful work attempts as a small engine mechanic in
follow, we remand for further proceedings.
1983 for two separate employers. J. App. at 85. Both of
I.
his former employers submitted statements that Barlow
was unable to work due to illness, or his inability to do
Barlow filed his applications for disability benefits on
the job. Id. at 94, 95.
November 21, 1984, alleging that he became unable to
work on December 31, 1982, due to his disability. The
In Barlow's original disability applications, he
claimed disability due to hypertension and a heart con-
applications were denied initially and upon reconsidera-
dition. However, the on remand the ALJ considered
Page 19
1991 U.S. App. LEXIS 4121, *3
Barlow's application to be based upon alleged multiple
radiculopathy, then it is my opinion that [Barlow] has
impairments including hypertension, headaches, short-
some disability to perform tasks involving lifting, han-
ness of breath, chronic lower back pain, double hernias,
dling, or carrying [*6] heavy objects. Standing for an
as well as mental impairments. Id. at 174-77.
eight hour day would also be impaired and prolonged
walking.
Barlow's primary treating physician was Dr. Barton
Wayne Warner, M.D. Dr. Warner submitted treatment
Id. at 337 (Medical Assessment). On March 12, with
records showing several visits between December 1982
the same qualifiers, Dr. Warner elaborated that Barlow
and October 1987. Barlow began seeing Dr. Warner in
would have difficulty lifting or handling objects over
December of 1982 with complaints [*4] of headaches,
fifty pounds and "probably couldn't stand for more than
chest pains and hypertension. Id. at 312. Dr. Warner
a few minutes at a time or walk very far at a time (i.e.
prescribed medication for hypertension. On January 17,
50 ft.)" Id. at 358.
1983, Dr. Warner conducted a more thorough exami-
nation of Barlow. Barlow's chest and heart exam was
Barlow was treated for his back problems in November
described as "completely unremarkable," and his elec-
and December of 1986 by Dr. Oscar T. Johns, an or-
trocardiogram was "within normal limits". Id. Barlow's
thopedic specialist. Dr. Johns noted that Barlow re-
subsequent treatment records with Dr. Warner indicate
ported back problems for twenty years and claimed that
that his chest pains and hypertension were partially con-
they were getting progressively worse. Barlow reported
trolled by medication and that Barlow's symptoms of
that he could not lift anything weighing more than ten
head and chest pain were usually exacerbated when he
pounds and that if he stood for several hours, he was
would run out of his medication. See, id. at 111-12,
unable to get up the next day. Dr. Johns' examination
310, 312. On December 5, 1984, Dr. Warner com-
revealed that Barlow's forward flexion was painful to
pleted a "Chest Pain Questionnaire" in which he indi-
thirty degrees, that he held his back rigidly, and that
cated that Barlow complained of sharp pain in his left
his straight-leg raise test and his nerve-stretch test were
anterior chest, which spread under his left arm and usu-
positive. However, he noted that Barlow's x-rays were
ally lasted a few seconds, sometimes up to a few min-
within normal limits and his gait was normal. He diag-
utes. Id. at 110. Dr. Warner noted that Barlow had
nosed mechanical low back pain and prescribed exercise
no other associated symptoms, such as nausea, vomiting
and some pain medication. Id. at 331. At [*7] a sec-
or sweating, and that there was no evidence of cardiac
ond visit, on November 20, 1986, he again diagnosed
complications which might impair his physical capacity.
mechanical low back pain and administered injections
Id.
of Depo Medrol. Id. On December 12, 1986, he saw
Barlow for the last time and said Barlow was "much im-
Dr. Warner first noted complaints of low back pain
proved" from the injection, prescribed steroids and flex-
in August 1985 Id. at 310. Dr. Warner's notes suggest
ion exercises, and advised Barlow to return as needed.
[*5] that Barlow had been having problems with his back
"for a long time" and that his visit was precipitated by
In March and May of 1987, Dr. Johns filled out
an incident in which Barlow picked up something heavy
"Medical Assessment" forms. On the March form, Dr.
and felt pain in his back and burning in his left foot. Id.
Johns stated that Barlow was "much improved" by the
Dr. Warner noted that Barlow was unable to sit at 90
injections, but that no further diagnostic work had been
degrees and that he had "slight tenderness" in his lumbar
done to determine whether Barlow had a herniated disc.
region and reduced flexibility due to pain. He diagnosed
He noted that Barlow had not returned since December
"hypertension [and] low back pain with radiculopathy"
1986 and opined that Barlow was not "a candidate for
and prescribed heat, exercise and some medication. Id.
Social Security benefits on the basis of his back at this
Dr. Warner's subsequent treatment notes in 1986 and a
time." Id. at 356. On the May form, Dr. Johns
letter concerning a 1987 examination do not make ref-
again noted that Barlow was much improved after the
erence to Barlow's back or back pain. Id. at 310, 407.
last treatment and had not returned. However, on this
At the request of the Secretary, Dr. Warner did fill out
form, he asserted that he could not determine Barlow's
"Medical Assessment" forms in January and March of
work-related activity restrictions because there were in-
1987. On both forms Dr. Warner indicated that he had
sufficient diagnostic tests as to whether Barlow had a
not seen Barlow for low back pain since August 1985,
herniated disc. Id. at 332.
and was unable to give "an up to date opinion on this
Barlow was also examined by several consultative
matter." Id. at 337, 358. However, on January 27, Dr.
examiners at the request of the Social Security [*8]
Warner stated:
Administration ("SSA"). In December of 1984, Dr.
Frank A. Perry, an internist, examined Barlow. Dr.
If the patient continues to have his low back pain with
Page 20
1991 U.S. App. LEXIS 4121, *8
Perry found that Barlow had a full range of motion in all
tential was within the 80 to 89 range. Ward reported
his joints except in his lubarsacral spine. There were no
that Barlow was consistently capable of understanding,
paravertebral muscle spasms and Barlow's gait was nor-
remembering and carrying out simple oral instructions.
mal. Dr. Perry found Barlow's chest, lungs, heart, and
Barlow reported that he still drove and did his shopping,
abdomen to be normal, and his vascular and neurological
and that he continued to perform odd jobs as they be-
exams were also normal. A resting electrocardiogram
came available. He mowed the lawn and did other house
was done and a chest x-ray taken and these were normal
and yard work during the summer. He also said that he
as well. X-rays of Barlow's back revealed a narrowing
went to town alone to take care of business and that he
of the L5-SI disc with degenerative spurring of Grade 1.
visited his relatives. While Ward found Barlow to have
Dr. Perry diagnosed hypertension without cardiomegaly
"perhaps a mild impairment" in his ability to relate to
on the chest x-ray or left ventrical hypertrophy on the
and communicate with supervisors or to compete effec-
EKG, and osteoarthritis in the lubarsacral spine. Id. at
tively, he found that Barlow should be able "to respond
121-23.
appropriately and adaptively to ordinary work pressures
and [*11] demands." Id. at 117-20.
Dr. Robert P. Graham, Jr., an internist, exam-
ined Barlow for the SSA on December 29, 1986.
On December 30, 1986, Paul Lima, a clinical psychol-
Examination findings were similar to those of Dr. Perry,
ogist, evaluated Barlow on behalf of the SSA, Barlow
although Dr. Graham felt that Barlow's back pain was
reported that he was still driving his car and grocery
due to muscle pulls rather than joint or low back pain.
shopping once per week. He also said he visited his
Dr. Graham noted that Barlow told him he experienced
mother several times per month, though he said he did
his low back pain after standing three hours. He noted
not visit with friends or neighbors. He said he was still
that Barlow reported that his chest pain and shortness of
smoking one and one half packs of cigarettes per day,
[*9] breath were increased when he walked fast or lifted
though his doctor had told him to stop. Lima found
something heavy. However, Barlow reportedly told Dr.
that Barlow was "oriented vaguely to time and place,
Graham that if he walks slowly and takes it easy, he can
[though] thoroughly to person." Id. at 328. Barlow's
walk up to half a mile. Dr. Graham diagnosed hyper-
conversation was fluent and spontaneous, his mood was
tension and a history of chest pain and low back pain.
normal, and his psychomotor activity was within nor-
In addition, Dr. Graham noted that Barlow had her-
mal limits. Testing revealed a full scale IQ score of 77.
nias, anxiety and shortness of breath, the later due to
Ward found that Barlow's ability to reason or make oc-
his cigarette smoking. Dr. Graham found that Barlow
cupational, personal or social adjustments was "poor"
had normal joint functioning in his ankles, knees and
and he attributed this to Barlow's "lack of education,
hips. As to his back, Dr. Graham found that he could
poor concept formation abilities, poor work history and
bend fifteen degrees to the right and left and five de-
[a] general dearth of social contacts. Id. at 329.
grees backward. He could also bend forty-five degrees
At the administrative hearing in October 1987, Barlow
at the waist if he kept his knees straight. Barlow also
testified that he was no longer able to do his prior work as
could do a deep knee bend and arise without holding on
a small engine mechanic because, due to chest and back
to anything. He was also able to lift a twenty-pound
pain, he no longer had the [*12] ability to lift heavy ob-
lamp without difficulty and had "no problems handling
jects or sustain his former activity. Id. at 194, 197, 202
objects, hearing, speaking, or traveling." Dr. Graham
and 216. He testified that he was only able to stand for
also found Barlow's ability to reason was "normal." Id.
at 322-24.
thirty to thirty-five minutes and that he could only walk
thirty-five to forty minutes. Id. at 203-04. He testified
Two psychological assessments were obtained in con-
that even lifting ten pounds was painful. Id. at 204. He
nection with Barlow's applications. Elliott Ward, a clin-
also complained of numbness in his legs from the hips
ical psychologist, performed a psychological evaluation
down and dizziness accompanied by headaches. Id. at
on December 14, 1984. He noted, in his statement of
210-11. He testified that he was only able to sleep three
Barlow's [*10] psychological history, that Barlow had
to four hours per night due to pain. Id. at 212. Barlow
never been hospitalized for psychiatric treatment and had
did note that he sometimes could obtain relief from his
never sought or received psychiatric treatment as an out-
symptoms with prescribed medication and Anacin. Id.
patient. Ward also noted that Barlow had reported his
at 201-02, 210. Finally, he testified that he averaged
last regular employment as a small engine mechanic had
one "bad day" per week where he was unable to get up
ended when his employer "went outta business'.' Id.
or do any activity. Id. at 213-14.
at 118. Testing revealed a full scale I.Q. score of 73,
Barlow's wife testified at the hearing and basically cor-
but Ward estimated that based on his discussions with
roborated Barlow's testimony. Id. at 221-27. Notably,
Barlow and his prior history, Barlow's intellectual po-
Page 21
1991 U.S. App. LEXIS 4121, *12
she testified that Barlow no longer did yard work like
fines "medium work" as follows: [*15] "Medium work
he used to, could not play with his grandchildren as he
involves lifting no more than 50 pounds at a time with
would like, and that she frequently heard him groan in
frequent lifting or carrying of objects weighing up to 25
the night in pain. Id. at 222, 225.
pounds." Barlow also points to Social Security Ruling
Finally, a vocational expert testified at the hearing that
83-10 which elaborates the on regulations' definition of
"medium work":
Barlow's [*13] past work as a small engine mechanic
had a "medium" exertional level and that small engine
A full range of medium work requires standing or
repair was classified as "skilled" labor. Id. at 228,
walking, off and on, for a total of approximately 6 hours
230. Most notably, the vocational expert testified that
in an 8-hour workday in order to meet the requirements
Barlow's prior employment skills were not transferable
of frequent lifting or carrying objects weighing up to 25
to other types of work because of his inability to read
pounds[.]
and write. Id. at 229-31. She also noted that his mental
impairments might make it more difficult for Barlow to
transfer his skills to other types skilled employment or
The considerable lifting required for the full range of
make a "vocational adjustment." Id. at 231-32.
medium work usually retires frequent bending or stoop-
II.
ing
Flexibility of the knees as well as the torso is
important for this activity
In most medium jobs,
Our review of a final decision by the Secretary is
being on one's feet for most of the workday is critical.
limited to determining whether the Secretary's deci-
Being able to do frequent lifting or carrying of objects
sion is supported by substantial evidence, Richardson
weighing up to 25 pounds is often more critical than
V. Perales, 402 U.S. 389, 401 (1971); Landsaw V.
being able to lift up to 50 pounds at a time.
Secretary of Health and Human Services, 803 F.2d 211,
213 (6th Cir. 1986). Where substantial evidence sup-
Plaintiff's Brief at A-48-49 (Ruling 83-10). Barlow
ports the Secretary's decision, "we may not even in-
asserts that his impairments preclude him from doing
quire whether the record could support a decision the
medium work as defined by the Secretary.
other way." Smith V. Secretary of Health and Human
Services, 893 F.2d 106, 108 (6th Cir. 1989). Substantial
The ALJ determined that taking all Barlow's impair-
evidence has been defined as "such relevant evidence as
ments into account, the evidence suggested that Barlow
was able to perform his [*16] past relevant work as a
a reasonable mind might accept as adequate to support
small engine mechanic. Without restating all of the
a conclusion'. [*14] Perales, 402 U.S. at 401 (citation
ALJ's analysis, we find that the ALJ accurately sum-
omitted).
marized the medical evidence before it. However, we
Regulations promulgated by the Secretary prescribe
are unable to determine that its decision was supported
a five-step sequential review for processing disability
by substantial evidence for two reasons.
benefits claims. See 20 C.F.R. § 404.1520 (1990); see
First, the ALJ completely failed to consider the two
also Farris V. Secretary of Health and Human Services,
statements by Barlow's former employers that he was
773 F.2d 85, 88-9 (6th Cir. 1985) (applying five-step
analysis). In this case, the Secretary reached the fourth
unable to do his former work. After the alleged onset
date of Barlow's disability on December 31, 1982, he
step in the analysis and determined that Barlow was not
was employed briefly by two small engine repair com-
disabled because he was able to perform his past rele-
vant work as a small engine mechanic. J. App. at 177
panies. Barlow's former employer Leonard W. Riley
stated:
(ALJ Decision). Once the Secretary determines that an
applicant can perform past relevant work, the applicant
[Barlow] could not stand up to work. At some times
will be found to be "not disabled" despite the applicant's
he would have to sit down in the chair and lean against
impairments. See 20 C.F.R. § 404.1520(e). Thus, our
inquiry is limited to whether the Secretary's finding that
the counter. I had to let Albert go because he could not
work very long standing up. So he was laid off
Barlow can perform his past relevant work is supported
by substantial evidence.
J. App. at 94. Former employer Rick Howse stated:
The vocational expert testified that Barlow's prior
"Albert Barlow worked at S and H Small Engine Repair
work as a small engine mechanic had an exertional level
in 1983. He was under a doctor's care and could not
of "medium," and the ALJ determined that Barlow's
work anymore due to illness." Id. at 95. While the
impairments did not preclude him from performing
Secretary is not required to discuss in its decision each
"medium" work. J. App. at 176. Section 404.1567 de-
piece of evidence in the record, see Walker V. Secretary
Page 22
1991 U.S. App. LEXIS 4121, *16
of Health and Human Services, 884 F.2d 241, 245
In Blankenship, the court noted that while a claimant's
(6th Cir. [*17] 1989) (reviewing court may examine
medical evidence may suggest that despite his pain he
all the evidence even if it has not been cited in the
could perform "medium work", this physical [*18] pain
Secretary's decision), the employer statements bear di-
taken with the claimant's mental impairments might re-
rectly on Barlow's ability to perform his prior work and
sult in disability. Id. at 1123. In making its finding
should have been considered.
that Barlow could perform his prior work, the Secretary
should have addressed the cumulative effects of Barlow's
Second, we have some concern over the completeness
mental impairments on his subjective ability to endure
of the Secretary's assessment of Barlow's credibility as
his physical pain. n2
to his pain. This court has frequently held that cred-
ibility determinations are best left to the trier of fact
and that such findings will not normally be disturbed.
n2 Barlow raised numerous additional arguments
See. e.g, Gooch V. Secretary of Health and Human
on appeal. However, after careful consideration, we
Services, 833 F.2d 589, 592 (6th Cir. 1987). However,
find these arguments to be without sufficient merit
in this case it appears that the ALJ did not consider the
to warrant separate discussion.
effects of Barlow's subjective pain in light of his men-
tal impairments. In Blankenship V. Bowen, 874 F.2d
III.
1116, 1123-24 (6th Cir. 1989), this court suggested
that a claimant's subjective mental impairments, such
For the foregoing reasons, we REMAND to the
as nervousness, anxiety, and depression must be consid-
Secretary for further proceedings consistent with this
ered in conjunction with the claimant's subjective phys-
opinion.
ical pain to determine whether the claimant is disabled.
Page 15
REVERSED
11TH CASE of Level 1 printed in FULL format.
TENNESSEE HEALTH CARE ASSOCIATION, Plaintiff-Appellant, V. COMMISSIONER,
TENNESSEE DEPARTMENT OF HEALTH AND ENVIRONMENT, Defendant-Appellee.
Nos. 91-5789, 91-6220
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
1992 U.S. App. LEXIS 3480
February 26, 1992, Filed
NOTICE: [*1] NOT RECOMMENDED FOR FULL-
Financing Administration ("HCFA") for HCFA's ap-
TEXT PUBLICATION. SIXTH CIRCUIT RULE 24
proval. Failure of state Medicaid participants to have
LIMITS CITATION TO SPECIFIC SITUATIONS.
an approved state plan could result in a loss of federal
PLEASE SEE RULE 24 BEFORE CITING IN A
financial participation to THCA's members.
PROCEEDING IN A COURT IN THE SIXTH
CIRCUIT. IF CITED, A COPY MUST BE SERVED ON
The changes in the state's Medicaid plan were pre-
OTHER PARTIES AND THE COURT. THIS NOTICE
pared in response to the district court's order in Linton
V. Commissioner of Health and Environment, No.
IS TO BE PROMINENTLY DISPLAYED IF THIS
DECISION IS REPRODUCED.
3:87-0941 (M.D. Tenn. Apr. 20, 1990). In Linton,
the district court found that defendant's Limited Bed
Certification policy violated the Medicaid Act and Title
SUBSEQUENT HISTORY: Reported as Table Case at
VI of the Civil Rights Act of 1964. THCA participated
956 F.2d 270, 1992 U.S. App. LEXIS 7804.
in Linton as amicus curiae. It was THCA's position
on October 22, 1990 when it filed this action that the
PRIOR HISTORY: On Appeal from the United States
District Court for the Middle District of Tennessee.
changes in the state Medicaid plan required by Linton
(the "Linton plan") were a material change in the state's
District No. 90-00923. John T. Nixon, District Judge
policy and, as such, federal regulations required formal
DISPOSITION: REVERSED.
submission of the Linton plan to HCFA for its review.
42 C.F.R. § 430.12(c).
JUDGES: BEFORE: KENNEDY and JONES, Circuit
On January 24, 1991, THCA received a letter from
Judges; PECK Senior Circuit Judge.
George Holland, Regional Administrator of HCFA
Region IV. As Regional Administrator, Holland has the
OPINIONBY: PER CURIAM
authority pursuant to 42 C.F.R. § 430.15 to approve
Medicaid state plan amendments. [*3] Holland's letter
OPINION: PER CURIAM: Plaintiff-appellant
stated that HCFA had reviewed the Linton plan and con-
Tennessee Health Care Association ("THCA") appeals
cluded that no formal state plan amendment was required
the order of the District Court that awards attorney's
and that the Linton plan was consistent with federal re-
fees to defendant-appellee, Commissioner of the
quirements.
Tennessee Department of Health, as a condition of
Although THCA disagreed with Holland's con-
dismissal of this action. For the reasons to follow, we
clusions, it realized that review by the Regional
REVERSE.
Administrator was the sole reason that THCA had
I.
sought to compel defendant to submit the Linton plan.
Because Holland had informally approved the Linton
THCA is an organization of over 250 health care fa-
plan, THCA concluded that further proceedings in this
cilities throughout Tennessee. THCA filed this action
under 42 U.S.C. § 1396(a) of the Medicaid Act and
action would be unproductive. THCA contacted defen-
dant's counsel and sought a voluntary dismissal of this
42 U.s.C. § 1983 for declaratory and injunctive relief
action without prejudice, which defendant refused. On
against defendant. THCA sought to compel defendant
January 28, 1991, THCA filed in the District Court
to comply with the Medicaid Act by filing changes in
a motion to dismiss under Fed. R. Civ. P. 41(a)(2)
the state's Medicaid plan [*2] with the Health Care
Page 16
1992 U.S. App. LEXIS 3480, *3
with prejudice which was opposed by defendant. In de-
sections 1981, 1982, 1983, 1985 and 1986 of this title,
fendants response to THCA's motion, defendant sought
title IX of Public Law 92-318, or title VI of the Civil
dismissal with prejudice and an assessment of costs and
Rights Act of 1964, the court, in its discretion, may al-
attorney's fees against THCA
low the prevailing party, other than the United States, a
The District Court assigned the pending motions to
reasonable attorney's fee as part [*6] of the costs.
Magistrate Judge William J. Haynes, Jr. The Magistrate
In Christiansburg Garment Co. V. EEOC, 434 U.S.
Judge issued a Report and Recommendation on May 2,
412 (1978), the Supreme Court articuiated the criteria
1991, which recommended that the District Court grant
that govern the award of attorney's fees to a prevailing
THCA's motion to dismiss upon [*4] the conditions that
defendant in a civil rights action. The Court stated:
the action be dismissed with prejudice and that THCA
pay defendant's costs and attorney's fees. The District
a district court may in its discretion award attorney's
Court adopted the Report and Recommendation on May
fees to a prevailing defendant in a Title VII case upon
24, 1991. THCA timely filed this appeal.
a finding that the plaintiffs action was frivolous, unrea-
II.
sonable, or without foundation, even though not brought
in subjective bad faith.
THCA argues that dismissal under Fed. R. Civ. P.
41(a)(2) conditioned upon payment of costs and attor-
Id. at 421. In other language the Court stated:
ney's fees was improper. We review the District Court's
order granting a dismissal under Rule 41(a)(2) for an
a plaintiff should not be assessed his opponent's at-
abuse of discretion. Andes V Versant Corp., 788 F.2d
torney's fees unless a court finds that his claim was
1033 (4th Cir. 1986); 5 Moore's Federal Practice §
frivolous, unreasonable, or groundless, or that the plain-
41.05[1]. Rule 41(a)(2) provides in pertinent part:
tiff continued to litigate after it clearly became so.
Except as provided in paragraph (1) of this subdivision
Id. at 422. The application of this standard for an award
of this rule, an action shall not be dismissed at the plain-
of attorney's fees to defendants pursuant to section 1988
tiffs instance save upon order of the court and upon such
was adopted by this Court in Tarter V. Raybuck, 742
terms and conditions as the court deems proper.
F.2d 977 (6th Cir. 1984), cert. denied 470 U.S. 1051
Unless otherwise specified in the order, a dismissal un-
(1985).
der this paragraph is without prejudice.
The Magistrate Judge concluded that THCA's filing of
In Smoot V. Fox, 353 F.2d 830 (6th Cir. 1965), cert.
this action was "unreasonable" under the Christiansburg
denied sub nom. League of Women Voters V. Smoot, 384
standard [*7] because the Magistrate Judge found that
U.S. 909 (1966), this Court held that an award of attor-
THCA's amicus curiae comments in Linton raised the is-
ney's fees is not proper when a dismissal is with preju-
sue of whether defendant must obtain HCFA's approval
dice. [*5] The Court contrasted a dismissal with preju-
of the Linton plan. The standard of review applied by
dice to a dismissal without prejudice, in which attorney's
this Court to an award of attorney's fees under section
fees are given. The Court reasoned that when the dis-
1988 is whether the District Court abused its discretion
missal is without prejudice attorney's fees are awarded
in making the award. Id. at 986. We find that the
to compensate the defendant for his expenses because the
District Court has abused its discretion and that defen-
action may be brought again. In a dismissal with preju-
dant is not entitled to an award of attorney's fees.
dice the cause of action is terminated and the defendant
We cannot conclude that THCA's claim was frivolous
will not have to defend again, so the Court found no
or without foundation. The Linton plan arguably was
reason to award attorney's fees. Id. at 833. Viewing
a material change in the state's Medicaid policy, which,
this precedent in our Circuit, we find that the District
Court abused its discretion in conditioning dismissal of
under federal regulations, would require HCFA's ap-
proval. At the time this action was filed, there had
this action upon payment of attorney's fees.
been no amendment to the state plan to incorporate the
III.
changes made by the Linton plan, and defendant had re-
fused to submit the plan to HCFA The Magistrate Judge
We further must determine whether there is statutory
found that in Linton THCA as amicus curiae raised the
authority under the Civil Rights Attorney's Fee Awards
issue of whether defendant must obtain approval of the
Act of 1976, 42 U.S.C. § 1988, for the District Court's
Linton plan prior to its implementation THCA argues
order. Section 1988 provides in pertinent part:
in its brief that the District Court never considered or
resolved the issue of whether the [*8] state plan would
In any action or proceeding to enforce a provision of
Page 17
1992 U.S. App. LEXIS 3480, *8
require amendment. In Linton, THCA's comments in-
was not a party in Linton and therefore bad no right of
cluded:
appeal.
When THCA received Holland's letter, it became clear
HCFA has not participated in the formulation of the pro-
posal. Rather, the parties alone developed the remedy an
that proceeding with this [*9] action was unproductive
merely "appraised" HCFA of the plan, leaving substan-
because HCFA had found that the state plan would not
tial gaps for HCFA's consideration at a later date
require amendment. Concern over whether the state plan
required amendment was the reason THCA had filed this
immediate implementation would therefore be contrary
to the court's order. The court cannot enter a reme-
action to compel defendant to submit the Linton plan for
dial order until HCFA's consultation has been secured
HCFA's approval. THCA attempted to dismiss this ac-
as required by the court's order.
tion as soon as it became apparent that submission of the
Linton plan to HCFA would not achieve what THCA
sought. Therefore, we find that THCA's claim was not
Defendant has not presented evidence that leads us to
conclude that the district court in Linton decided the is-
unreasonable at the time this action was filed, and when
sue of whether the Linton plan needed HCFA's approval
this action became unnecessary THCA attempted to end
in order to comply with federal regulations. If the dis-
the litigation. We hold that under the standard set forth
in Christiansburg, the District Court abused its discre-
trict court decided anything along these lines, it may
have decided that approval was not required prior to im-
tion by awarding attorney's fees to defendant.
plementation of the Linton plan. Even if the district
IV.
court had decided in Linton that the Linton plan did not
Accordingly, the order of the District Court that orders
require HCFA's approval, THCA would have to chal-
THCA to pay defendant's attorney's fees is REVERSED.
lenge this decision in a collateral proceeding. THCA
Page 39
18TH CASE of Level 1 printed in FULL format.
STATE OF TENNESSEE ex rel. WILLIAM M. LEECH, Jr., Attorney General & Reporter,
Plaintiff-Appellee, V. ELIZABETH H. DOLE, in her official capacity as Secretary, United States
Department of Transportation, R. A. BARNHART, in his official capacity as Administrator, Federal
Highway Administration, United States Department of Transportation, and E. G. OAKLEY, in his official
capacity as Division Administrator, Federal Highway Administration, United States Department of
Transportation, Defendants-Appellants
No. 83-5499
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
749 F.2d 331; 1984 U.S. App. LEXIS 16347; 1984-2 Trade Cas. (CCH) P66,318
AG.
September 20, 1984, Argued
November 29, 1984
SUBSEQUENT HISTORY: [**1]
projects. Brought by the State against federal road offi-
cials for injunctive and declaratory relief, the|principal
Petition for Rehearing En Banc Denied January 21,
1985.
questions are whether the relationship between the State
as a federal grant recipient [**2] and its federal grantor is
PRIOR HISTORY:
governed by the law of restitution or unjust enrichment
ON APPEAL from the United States District Court for
under federal common law principles and whether juris-
the Middle District of Tennessee.
diction of such issues resides exclusively in the Court of
Claims, rather than the District Courts, under the Tucker
Act. We hold that the State's claims to all the money
COUNSEL: Anthony J. Steinmeyer, Douglas Letter,
Department of Justice, Appellate Staff - Civil Division,
recovered, though outside the Tucker Act, are contrary
to applicable legal principles of unjust enrichment aris-
Washington, District of Columbia, Kenneth N.
Weinstein, Dept. of Transportation, S.W., Washington,
ing from benefits conferred by mistake; and we remand
the case to the District Court to weigh the equities of
District of Columbia, James R. Dann, Federal Highway
the parties in order to determine the precise amount of
Admin., Washington, District of Columbia, for
the State's recovery owed as restitution to the federal
Appellants.
government.
William M. Leech, Jr., Attorney General of
I.
Tennessee, Nashville, Tennessee William J. Haynes, Jr.,
for Appellee.
The process of federal highway construction funding
proceeds through several stages. Congress authorizes
JUDGES: Merritt and Jones, Circuit Judges; Bell,
a division of funds for each state according to a statu-
District Judge. *
tory formula. These funds are initially maintained in
an account called an "unprogrammed balance account"
* The Honorable Samuel H. Bell, Judge of the
United States District Court for the Northern District
administered by the Federal Highway Administration of
the Department of Transportation. In order to draw on
of Ohio, sitting by designation.
the account, the state must first have its highway pro-
OPINIONBY: MERRITT
gram approved and then later have its plans for indi-
vidual projects approved. Once a project is approved
[**3] a bookkeeping entry is made shifting the funds
OPINION: [*332] MERRITT, Circuit Judge.
into a project account. After the project is bid out by
This case is in effect a fight between the State of
the state, federal road officials must approve the award
Tennessee and the United States over damages the State
of the bid. A project agreement is then executed with
has recovered from bid riggers on federally funded road
the state. The agreement obligates the government to
Page 40
749 F.2d 331, *332; 1984 U.S. App. LEXIS 16347, **3;
1984-2 Trade Cas. (CCH) P66,318
reimburse the [*333] state for a share of the construc-
cials the information they requested regarding the settle-
tion costs -- usually ninety percent on interstate high-
ments, the federal officials computed from the informa-
way projects and seventy-five percent on most other
tion they had in their files a sum in excess of $4.5 million
projects. There are various rules regarding the lapse of
that they claimed must be set off against current high-
unexpended funds, and in recent years the Secretary has
way funds allocated to the State of Tennessee, thereby
imposed an inflation-fighting or a deficit-fighting ceil-
reducing the State's funding on current projects. The
ing on each state's expenditures in an amount less than
federal officials took the position, however, that "the
the Congressional authorization. In 1982, for example,
sums subtracted from the current billings" -- the $4.5
Congress authorized $171 million for Tennessee; but the
million setoff "can be restored to the unprogrammed
Secretary's ceiling limited Tennessee to $144 million.
balance" of funds for future [**6] highway construction
projects in Tennessee.
After the Justice Department obtained criminal con-
victions against approximately 70 firms and individuals
The federal officials now take the position that this
for bid rigging on Tennessee road projects in violation
method of handling the $4.5 million setoff will have the
of the Sherman Antitrust Act, the Tennessee Attorney
effect of reducing current year federal highway funding
General entered into settlements with some of the con-
for Tennessee road projects but will increase by precisely
tractors for approximately $12 million. The State ad-
the same amount road funds for Tennessee's use in fu-
mits that a significant portion of this amount is [**4] at-
ture years. The State disputes this contention. It claims
tributable to the contribution of the federal government
that under the Highway Act the State will have to come
to state highway projects, although the record is unclear
up with approximately twenty-five percent in matching
as to the exact amount of the settlements, the amount
funds, or $1,200,000, in order to get the benefit in fu-
so far collected and the amount attributable to the fed-
ture years of the $4.5 million that will be taken by the
eral contribution. The theory of the settlements is that
setoff from the State's settlement funds. The State fur-
the bid rigging contractors fixed the prices paid by the
ther contends that the $4.5 million setoff is expressly
State on highway projects and that the State paid high-
"subject to available obligation authority" and that it is
way construction contract prices higher than the prices
unlikely that the State will actually receive the benefit of
that otherwise would have prevailed. The federal offi-
the $4.5 million credit in future years in light [*334] of
cials would not have funded the projects, and the State
the ceilings now being imposed. The record is unclear
would not have accepted the bids, had they known that
as to the actual effect, in dollars and cents, of the $4.5
the bid prices were the result of contractor collusion.
million setoff against current funding because it is un-
clear how much of this money will be restored in future
When the State initiated its investigation, antitrust
Assistant Attorney General Litvack advised Tennessee
years.
Attorney General Leech that his office "had no interest
A stalemate occurred in the negotiations between the
in Tennessee's efforts to recover any over charges due
parties, and [**7] the State filed this action in January,
to bid rigging on federal highway construction projects"
1983. In its complaint the State claimed that the federal
and that Tennessee's efforts to recover "were matters for
government is not entitled to any portion of the settle-
the State and its officials."
ment fund and requested that the District Court enjoin
the federal defendants from taking any administrative
Despite these assurances from the Antitrust Division,
action to retrieve by setoff the federal share of such re-
in mid-1981, more than a year after the State investiga-
coveries.
tion and settlement process had begun, federal highway
[**5] officials wrote a series of letters addressed to var-
The defendants opposed the injunction on the grounds
ious Tennessee officials, including the Commissioner of
that the action is in effect a suit on a contract with the
Transportation and the Attorney General, seeking in-
United States for more than $10,000 and that under the
formation concerning settlements made for the purpose
Tucker Act only the Court of Claims has jurisdiction
of determining how much of the settlement should be
of such contract actions. On the merits the defendants
attributed to the federal share contributed to highway
argued that federal policy and common law legal prin-
projects. The State officials in response consistently
ciples of restitution require that when a state recovers
took the position that "we have researched the law in
over-charges on federal aid highway projects, the federal
this matter," and "we cannot discern any legal basis"
share of the recovered sum must be credited back to the
for the claim of the federal road officials that the fed-
projects on which the over-charges occurred. The defen-
eral government should "participate in the State antitrust
dants argued that only by such a credit could the federal
settlement fund."
share of road construction programs be kept within statu-
tory limits set out in the Highway Act, 23 U.S.C. § 120,
When State officials refused to give federal road offi-
Page 41
749 F.2d 331, *334; 1984 U.S. App. LEXIS 16347, **7;
1984-2 Trade Cas. (CCH) P66,318
and that if the State keeps the entire recovery, it will be
observed:
unjustly enriched by collecting this money twice, once
from the federal government [**8] initially as a part of
The obvious effect of this modification, subject only
the project cost and then from the bid riggers in settle-
to preclusion-of-review statutes created or retained by
ment of their over charges.
Congress, is to confer jurisdiction on Federal Courts to
After concluding that the Tucker Act constituted no
review agency action, regardless of whether the APA of
bar to its jurisdiction, the District Court held that once
its own force may serve as a jurisdictional predicate.
federal highway funds are apportioned to the states, or
alternatively, once federal road officials approve a partic-
Califano V. Sanders, 430 U.S. 99, 105, 51 L. Ed.
ular state project, the funds become state funds and are
in the nature of outright "gifts" to the states in which
2d 192, 97 S. Ct. 980 (1977). In determining
the federal government no longer has a legal interest.
whether the Court of Claims has exclusive jurisdiction
in this case, we must therefore "be careful not to sub-
The Court further held that the federal defendants have
no statutory or other authority to set off or otherwise
vert congressional objectives underlying the enactment
recover such "gifts" paid through mistake. Finally, as
of the judicial review statute by allowing the govern-
an alternative holding, the Court found that the govern-
ment to give an overly expansive scope to the notion
of claim 'founded upon' a contract." C. WRIGHT, A.
ment is equitably estopped from attempting to recover
MILLER & E. COOPER, FEDERAL PRACTICE AND
the federal share of the settlement funds because former
antitrust Assistant Attorney General Litvack had denied
PROCEDURE § 4101, at 210-11 (1978).
a federal interest in the settlement efforts. 567 F. Supp.
704.
Accordingly, the District Court enjoined the federal
n1 28 U.S.C. § 1346(a) (2) provides:
defendants from setting off the federal share of the set-
(a) The district courts shall have original juris-
tlement fund against current billings.
diction, concurrent with the United States Claims
Court, of:
II.
The federal government argues that the District Court
(2) Any other civil action or claim against the
lacked jurisdiction because [**9] the Tucker Act, par-
United States, not exceeding $10,000 in amount,
ticularly 28 U.S.C. § 1346(b) and 28 U.S.C. § 1491(a)
founded either upon the Constitution, or any Act
(2), vests exclusive jurisdiction over this suit in the
of Congress, or any regulation of an executive de-
Court of Claims. n1 While these [*335] provisions
partment, or upon any express or implied contract
could well be read as precluding District Court juris-
diction over all claims not within the $10,000 limit that
with the United States, or for liquidated or unliqui-
dated damages in cases not sounding in tort, except
could have been brought in the Court of Claims under
that the district courts shall not have jurisdiction of
28 U.S.C. § 1491(a), such a literal reading of the sub-
any civil action or claim against the United States
stantive claims encompassed by that provision has long
been rejected. Instead, "it is not every claim involving
founded upon any express or implied contract with
or invoking the Constitution, a federal statute or reg-
the United States or for liquidated or unliquidated
damages in cases not sounding in tort which are sub-
ulation which is cognizable in the Court of Claims."
ject to sections 8(g) (1) and 10(a) (1) of the Contract
Eastport Steamship Corp. V. United States, 178 Ct. Cl.
Disputes Act of 1978. For the purpose of this para-
599, 372 F.2d 1002, 1007 (1967). Exclusive Court of
graph, an express or implied contract with the Army
Claims jurisdiction is limited to suits founded on con-
tract involving more than $10,000. C. WRIGHT, A.
and Air Force Exchange Service, Navy Exchanges,
Marine Corps Exchanges, Coast Guard Exchanges,
MILLER & E. COOPER, FEDERAL PRACTICE AND
PROCEDURE § 4101, at 210 (1978). This limitation is
or Exchange Councils of the National Aeronautics
and Space Administration shall be considered an ex-
especially important in light of the 1976 amendments to
press or implied contract with the United States.
28 U.S.C. § 1331 (a), which eliminated the requirement
of a specified amount in controversy as a prerequisite to
the maintenance in District Court of an action "brought
28 U.S.C. § 1491 (a) (1) provides in part:
against the United States, any agency thereof, [**10]
or any officer or employee thereof in his official ca-
The United States Claims Court shall have ju-
pacity." Pub. L. No. 94-574, 90 Stat. 2721 (1976).
risdiction to render judgment upon any claim
n2 Interpreting this provision, the Supreme Court has
against the United States founded either upon the
Page 42
749 F.2d 331, *335; 1984 U.S. App. LEXIS 16347, **10;
1984-2 Trade Cas. (CCH) P66,318
Constitution, or any Act of Congress or any regu-
sized in United States V. Mitchell, 463 U.S. 206, 103 S.
lation of an executive department, or upon any ex-
Ct. 2961, 2968, 77 L. Ed. 2d 580 (1983), a claim is
press or implied contract with the United States, or
only cognizable under the Tucker Act if it is for money
for liquidated or unliquidated damages in cases not
damages and is based on a source of substantive law
sounding in tort.
mandating compensation by the Federal Government. It
is doubtful, therefore, whether this suit could even be
[**11]
heard by the Court of Claims, as plaintiff seeks only
n2 As further amended in 1980, § 1331 now pro-
declaratory and injunctive relief. While it is clear that a
claimant may not avoid the exclusive jurisdiction of the
vides for federal court jurisdiction of "all civil ac-
Court of Claims merely by framing a complaint to seek
tions arising under the Constitution, laws or treaties
nonmonetary relief when the result would be the equiv-
of the United States." (Pub. L. No. 96-486, 94 Stat.
alent of obtaining money damages, American Science
2369), (1980).
& Engineering, Inc. V. Califano, 571 F.2d 58, 61-
62 (1st Cir. 1978), neither does the Court of Claims
The present case is not an action upon a contract for
possess exclusive jurisdiction simply because a suit for
damages. It is rather an action for injunctive relief to
nonmonetary relief may form the basis for a later money
prevent the defendants from carrying out a policy of de-
judgment. See Beller V. Middendorf, 632 F.2d 788,
ducting under a theory of unjust enrichment amounts
799 (9th Cir. 1980), cert. denied, 452 U.S. 905, 69 L.
previously paid to the State by mistake. The Court of
Ed. 2d 405, 101 S. Ct. 3030, reh. denied, 454 U.S.
Claims does not have exclusive jurisdiction over this
1069, 102 S. Ct. 621, 70L. Ed. 2d 605 (1981); Glines
suit, because although the federal government seeks to
V. Wade, 586 F.2d 675, 681 (9th Cir. 1978). District
recoup its share of the State's recovery by refusing to
Court jurisdiction [**14] in the present case thus sup-
honor vouchers submitted by the State, the main issues
ports the Congressional policy of liberalized judicial re-
in the case sound in restitution, not contract. The Court
view animating the 1976 amendments to § 1331, while
of Claims does not have exclusive jurisdiction over a
respecting the Court of Claims' special competence and
suit merely because it raises contract related issues. See
experience in cases involving the interpretation and re-
B.K. Instrument, Inc. V. United States, 715 F.2d 713,
view of government contracts.
727 (2d Cir. 1983) (action alleging that government
III.
contract was awarded in violation of statutory proce-
dures); Megapulse, Inc. V. Lewis, 217 U.S. App. D.C.
The federal common law is the source of the legal prin-
[**12] 397, 672 F.2d 959, 968 (D.C. Cir. 1982) (Court
ciples which govern the parties' claims in this action.
of Claims did not have exclusive jurisdiction over suit
The federal common law controls rights of recovery in
by government supplier seeking to enjoin Coast Guard
disputes between the federal government and others aris-
from releasing to the public data on the product sup-
ing from legal relationships created but not fully defined
plied). Aleutco V. United States, 244 F.2d 674, 678
or delineated by federal constitutional and statutory law.
(3rd Cir. 1957) (District Court had jurisdiction over
See Clearfield Trust Co. V. United States, 318 U.S. 363,
suit for conversion brought by a purchaser of surplus
87 L. Ed. 838, 63 S. Ct. 573 (1943); Textile Workers
government materials when the Navy refused to release
Union V. Lincoln Mills, 353 U.S. 448, 1 L. Ed. 2d 972,
the goods). Courts have previously found jurisdictional
77 S. Ct. 912 (1957); Bivens V. Six Unknown Named
authority under 28 U.S.C. § 1331 to hear suits involv-
Agents of Federal Bureau of Narcotics, 403 U.S. 388,
ing the legality of impoundment of highway funds, State
29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971); Friendly,
Highway Commission of Missouri V. Volpe, 479 F.2d
In Praise of Erie -- and of the New Federal Common
1099, 1105 (8th Cir. 1973), and disbursement to state
Law, 39 N.Y.U. L. Rev. 383 (1964). The government's
education agencies of federally provided funds, People
unjust enrichment claims based on benefits conferred by
Ex Rel Bakalis V. Weinberger, 368 F. Supp. 721, 723
mistake under the Federal Highway Act and the State's
(N.D. Ill. 1973). The present suit is likewise clearly
rejection of such claims [**15] are governed, therefore,
not "grounded in contract" and therefore not subject to
by federal common law.
exclusive Court of Claims jurisdiction.
IV.
Our decision that the District Court properly exer-
Under federal common law principles, the District
cised jurisdiction over plaintiff's claim recognizes the
Court was clearly mistaken in holding that the govern-
policy of preserving the Tucker Act's limited and condi-
ment cannot take advantage of the law of restitution to
tional [*336] waiver of sovereign immunity in contract
recover grant monies paid out through mistake. The
actions. Indeed, [**13] as the Supreme Court empha-
federal share was not an outright "gift" with no strings
Page 43
749 F.2d 331, *336; 1984 U.S. App. LEXIS 16347, **15;
1984-2 Trade Cas. (CCH) P66,318
attached. It was paid to the State for particular purposes
rather than the avoidance of a transfer." Id. § 5, at
subject to definite conditions. It contemplated construc-
58.
tion contracts and valid competitive bidding.
The record before us does not contain facts that would
The earlier federal cases on this subject involve con-
allow us to balance the equities of the situation. The
tract carriers of mail, naval and other 19th Century de-
record does not show the State's costs of recovery or
fense contractor claims, and the claims of military offi-
the percentage of the recovery "generated" by the State's
cers. In Wisconsin Central R.R. Co. V. United States,
"own rightful contribution of effort, capital or skill." Id.
164 U.S. 190, 208-09, 211, 41L Ed. 399, 17S. Ct. 45
§ 1, at 23. It does not show what percent of the setoff
(1896), a mail contract case, Chief Justice Fuller reviews
money, if any, the federal defendants [**18] will, in fact,
many of the older cases on government monies similarly
return to the State in the future, i.e., the costs to the State
paid through mistake. " 'Overpayments made at one
of having the recovered money set off against current
time by mistake,'' he says, quoting earlier cases, can "
accounts but applied to future "unobligated" or "unpro-
'be corrected and properly charged against credits com-
grammed" accounts. Neither does it give us any basis
ing in afterwards'" unless 'peculiar circumstances
to determine what percentage of the settlement money
appear to make such recovery inequitable and unjust'"
the State should be permitted to retain as an incentive
(citations omitted).
to pursue on behalf of the federal government as well
as itself and recover from bid riggers the federal as well
In Grand Trunk Western [**16] Ry. Co. V. United
States, 252 U.S. 112, 120-21, 64 L. Ed. 484, 40 S. Ct.
as the state share of project costs. We, therefore, must
remand the case to the District Court to weigh and bal-
309 (1920), another mail case, Justice Brandeis, relying
ance the equities concerning the precise amount of the
on the Wisconsin Central case, reiterates the point that
federal share the state should be permitted to retain and
"it was the duty of the Postmaster General to seek to re-
the precise amount it owes to the federal government as
cover [for] over payment[s]," and he "was at liberty to
restitution. Until the District Court concludes this pro-
deduct the amount of the over payment [*337] from the
See also United States
cess, it may continue its injunction preserving the status
monies otherwise payable.
quo in effect.
V. Mead, 426 F.2d 118 (9th Cir. 1970) (applying unjust
enrichment principles arising from benefits conferred by
VI.
mistake to government payment to farmer-contractor in
It is clear that the doctrine of equitable estoppel
farm conservation program).
- based in this case on the conversation between the
V.
State Attorney General and antitrust Assistant Attorney
General Litvack -- is no bar to recovery or setoff of the
The case below was tried on a basis inconsistent with
federal share by the defendants. In the first place, the
general principles of restitution. The case was tried on
equitable estoppel argument [**19] is misplaced here be-
an all-or-nothing basis -- either the State is entitled to
cause Litvack did not specifically address the question
keep all the bid rigger money recovered or the federal
officials are entitled to a full setoff and restitution of all
of recovery of the federal share by federal road officials
under the Highway Act. He was talking about federal
of the federal share initially paid on the projects. In fact,
recovery from the bid riggers under the antitrust laws.
principles of restitution are flexible, not rigid, as Chief
Even if this were not the case, "it is well settled that
Justice Fuller indicated in the Wisconsin Central case,
the government may not be estopped on the same terms
supra. They take into account, as he said, the "peculiar
circumstances" of the situation [**17] and often require
as any other litigant." Heckler V. Community Health
Services of Crawford County, Inc., 467 U.S. 51, 104 S.
the balancing of equities. Id. Although "accountability
Ct. 2218, 2224, 81 L. Ed. 2d 42 (1984). The doc-
for benefit received is a core characteristic of restitu-
trine of equitable estoppel does not apply here, just as it
tion law," it is also true that "what constitutes a 'benefit'
did not apply in Heckler, because the only "detriment"
is at times a perplexing problem on which judgments
may differ." RESTATEMENT 2d, RESTITUTION § 1,
to the party asserting estoppel against the government
is simply its "inability to retain money that it should
Underlying Principles of Restitution, at 14, 23 (Tent.
never have received in the first place." Id. 104 S. Ct.
Draft No. 1, April, 1983). "There is an independent
at 2225. Not only must businessmen and administra-
principle that the receipt of gain is not unjust enrichment
tors, as Justice Stevens reminds us in Heckler, quoting
to the extent that the recipient generated it by his own
from Holmes, "turn square corners when they deal with
rightful contribution of effort, capital or skill." Id. "In
[*338] the government," they may not bend the govern-
application, the principle [of benefit conferred through
ment's mistake into a windfall for themselves. Id. 104
mistake] may require restitution of part of an amount
S. Ct. at 2225 quoting from Rock Island R.R. Co. V.
paid, not the whole, and may require the correction
Page 44
749 F.2d 331, *338; 1984 U.S. App. LEXIS 16347, **19;
1984-2 Trade Cas. (CCH) P66,318
United States, 254 U.S. 141, 143, 65 L. Ed. 188, 41
Accordingly, the judgment of the District Court is re-
S. Ct. 55 [**20] (1920). They may not use the govern-
versed and the case remanded for further proceedings
ment's error as an angle to enrich themselves.
consistent with this opinion.
Page 45
30TH CASE of Level 1 printed in FULL format.
JOHNNIE L. BLAKE, Petitioner-Appellant, V. ROBERT V. MORFORD, Superintendent,
Respondent-Appellee
No. 76-1639
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
563 F.2d 248; 1977 U.S. App. LEXIS 11259
A.G.
June 23, 1977, Cause Argued
October 7, 1977, Decided
PRIOR HISTORY: [**1]
court denied the petition We affirm.
APPEAL from the United States District Court for the
Appellant had been employed as a handyman by the
Western District of Tennessee.
victim and her husband. On May 8, 1973, the victim's
husband returned home from work and found his wife
DISPOSITION: The judgment of the district court is
on the floor of a guest room dead from stab wounds in
the chest. The victim's neck and hands had been cut,
affirmed.
her clothing was torn, her dress had been pulled up, and
her underclothing had been pulled down. In addition, in
COUNSEL: Johnnie L. Blake, Nashville, Tennessee,
the two days prior to the murder, the victim had cashed
Robert E. Owens, Jr., Cincinnati, Ohio, for Appellant.
checks totaling $100, but when she was found dead, her
R. A. Ashley, Jr., Attorney General of Tennessee,
purse contained only $13.
Nashville, Tennessee, William J. Haynes, Jr., for
Circumstantial evidence tied appellant to the murder.
Appellee.
Appellant admitted taking a knife, which was later dis-
covered in a culvert near the home of the victim, from
JUDGES: Edwards and Peck, Circuit Judges, and
Weinman, * Senior District Judge.
the home of his old girl friend to the victim's home.
Appellant stated that he had taken the knife because the
* Honorable Carl A. Weinman, Senior Judge,
day before the murder, he had assaulted the girl friend,
United States District Court for the Southern District
and her new boy friend was looking for him.
of Ohio, sitting by designation.
At about the time of the discovery of the body, appel-
lant visited a Samuel Starks and asked him to wash some
OPINIONBY: PECK
of his clothes because the clothes would get him into
trouble. When Starks declined, [**3] appellant burned
OPINION: [*249] PECK, Circuit Judge.
the clothes. At the time, appellant was observed to have
Appellant Blake was indicted by a Shelby County,
a scratch around his ear and another scratch on his leg.
Tennessee, grand jury on the charge that he "did un-
His trousers had on them what looked like blood spots.
lawfully, feloniously, wilfully, deliberately, premedita-
After appellant learned that police officers wanted to
tively, and of malice aforethought kill and murder Sandra
talk to him about the homicide, he fled to Florida, where
Lee Mulherin." Appellant's first trial resulted in a mis-
he used an assumed name. Appellant was arrested in
trial, but at his second trial, he was convicted by a jury of
first degree murder as charged in the indictment and was
Florida and gave statements to police officers admitting
that on the day of the murder, he had worked at the
sentenced to ninety-nine years imprisonment. The con-
viction was affirmed by the Tennessee Court of Criminal
victim's home but denying that he had killed her. The
jury at appellant's second trial, as indicated above, ac-
Appeals, and the Tennessee Supreme Court denied appel-
cepted the state's theory of the case that appellant had
lant's petition for certiorari. [**2] Appellant then filed
committed the murder.
this petition for a writ of habeas corpus. The district
Page 46
563 F.2d 248, *249; 1977 U.S. App. LEXIS 11259, **3
Appellant now is before this Court, claiming that
of the murder, constituting felony-murder. The Ohio
the State of Tennessee violated his constitutional rights.
Supreme Court had held, however, that although both
Appellant presents several grounds upon which he bases
felony-murder and premeditated murder were included
his claim that he is entitled to habeas corpus relief, nl
in the same paragraph of the then existing Ohio first
but we conclude that only one of the issues raised merits
degree murder statute, felony-murder and premeditated
discussion. n2
murder constituted separate offenses. State V. Ferguson,
175 Ohio St. 390, 195 N.E.2d 794 (1964). Under Ohio
nl Appellant raised three issues before the district
law, appellant Watson could not be convicted of the of-
fense of felony-murder unless he was indicted for that
court and on appeal. First, he contended that he was
convicted on charges not a part of the indictment.
crime. Consequently, this Court concluded [**6] that
Second, he contended that he was denied a fair and
the state trial court had permitted a constructive amend-
impartial jury of his peers because blacks and women
ment of the indictment by allowing the prosecution ef-
fectively to add a charge of felony-murder. We held
were not seated. Third, he contended that the jurors
were coerced by the state trial court to the prejudice
that, by such an amendment to the indictment, appellant
Watson had been deprived of fair notice of the criminal
of his constitutional rights by the trial judge's giving
of the "Allen charge."
charges to be brought against him in violation of the Due
Process Clause of the Fourteenth Amendment and was
[**4]
entitled to habeas corpus relief.
n2 Appellant admitted in his petition for writ of
Despite our holding in Watson, one of the appellee's
habeas corpus that he had not raised his allegation
that he was denied a fair and impartial jury and thus
arguments is that in habeas corpus proceedings, the ques-
tion of the sufficiency of an indictment does not raise a
with respect to that allegation he did not exhaust his
state remedies. Picard V. Connor, 404 U.S. 270, 30
constitutional issue. This argument has merit when the
L. Ed. 2d 438, 92 S. Ct. 509 (1971). We reject ap-
notice given in the indictment fairly but imperfectly ap-
pellant's claim that in the circumstances of this case,
prises the accused of an offense for which he is to be
tried. See Via V. Perini, 415 F.2d 1052 (6th Cir. 1969);
his constitutional rights were prejudiced by the state
Kimbro V. Bomar, 333 F.2d 755 (6th Cir. 1964). Such
trial court's action in giving the Allen charge. The
cases, however, do not involve the very different situa-
challenged instruction was given to prospective ju-
rors at the second trial in the case during voir dire
tion present in Watson V. Jago, supra, when a constitu-
and not when the jury was deadlocked after hearing
tional violation occurs because an accused is not given
proper notice in the indictment of an offense for which
the evidence. Moreover, defense counsel opened the
he is to be tried.
door to the trial judge's action when he addressed the
prospective jurors about their duties as jurors to lis-
In neither Via V. Perini, supra, nor Kimbro V. Bomar,
ten to the views of fellow jurors but did not correctly
supra, was there [**7] a failure of notice. In Via V.
state what those duties were.
Perini, the petitioner had been indicted and convicted on
two counts of breaking and entering and on one count
[*250] Appellant argues that he was denied due pro-
of assault with a deadly weapon. Petitioner's objection,
cess of law under the Fourteenth Amendment because
which was totally without merit, was that the indict-
at his state court trial he was convicted on a charge of
ment could not properly charge him with three offenses.
felony-murder when the indictment only charged first
In Kimbro V. Bomar, the petitioner was indicted for
murder in the first degree and murder in the perpetra-
degree [**5] premeditated murder. Appellant thus con-
tends that this Court's recent decision in Watson V. Jago,
tion of a robbery. The jury found the petitioner guilty
of murder in the first degree as charged in the second
558 F.2d 330 (6th Cir. 1977), mandates the reversal of
the district court.
count of the indictment. In seeking habeas corpus relief,
the petitioner alleged that the indictment was defective.
In Watson V. Jago, supra, appellant Watson was in-
This Court observed that under Tennessee law, felony-
dicted under the existing Ohio first degree murder statute
murder was first degree murder and held that whatever
for premeditated murder. At his state court trial, the
defect might have existed in the indictment, there was
prosecution, in its opening statement and through its
no constitutional error in the circumstances of the case.
presentation of witnesses, announced that it would show
Thus, appellant raises a constitutional issue by alleg-
and then attempted to establish not only that appellant
ing that he was convicted on a charge not stated in the
Watson had killed the victim with premeditation (in an
indictment. We believe, however, that the present case is
effort to prove premeditated murder), but also that ap-
not controlled by Watson V. Jago, supra. In the present
pellant Watson was engaged in a robbery at the time
Page 47
563 F.2d 248, *250; 1977 U.S. App. LEXIS 11259, **7
case, the Tennessee state court was not requested to and
murder.
did not permit a constructive amendment [**8] of the
indictment when the prosecution presented proof show-
[**10]
ing that there had been a rape and a robbery committed
In Sullivan V. State, supra, 173 Tenn. 475, 121
in the perpetration of the murder.
W.2d 535, the Tennessee Supreme Court was simply
[*251] Although the appellant was charged in the in-
applying the common law of murder to cases involving
dictment only for premeditated murder and the indict-
murder indictments stated in common law form, because
ment did not state that another felony had been commit-
"at common law there was but one kind of murder."
ted in the perpetration of the murder, the wording of the
Farmer V. State, 201 Tenn. 107, 114-15, 296 S.W.2d
indictment was in the common law form. Such a pro-
879, 883 (1956). Evidence of another felony commit-
cedure has long been permissible under Tennessee law,
ted in the perpetration of a murder was not viewed as
even with the existence of murder statutes. Campbell V.
supporting the conviction of a defendant for a separate
State, 491 W.2d 359 (Tenn. 1973); Taylor V. State, 79
offense. n4
Tenn. 708 (1883); Poole V. State, 61 Tenn. 288 (1872);
Witt V. State, 46 Tenn. 5 (1868); Bramlett V. State, 515
n4 In 1974, Tennessee amended the statutory def-
895 (Tenn. Cr. App.), cert. denied, (1974).
inition of first degree murder so as to modify what
In a case of a murder indictment stated in common law
essentially had been a codification of the common
form, the applicable Tennessee law was laid down by the
law in the prior statute. See Cook, Criminal Law in
Tennessee Supreme Court in Sullivan V. State, 173 Tenn.
Tennessee in 1974: A Critical Survey, 42 Tenn. L.
475, 121 S. W.2d 535 (1938). There the defendant was
Rev. 187, 190-92 (1975). In contrast to the common
indicted for murder, and as in the present case, the in-
law, under the present Tennessee first degree murder
dictment stated the murder charge in the common law
statute, T.C.A. § 39-2402 (Supp. 1974), felony-
form and did not charge that the homicide was com-
murder and premeditated murder appear to be sepa-
mitted in an attempt to commit one of the enumerated
rate offenses. See State V. Black, 524 W.2d 913,
[**9] felonies in the Tennessee felony-murder statute.
916-20 (Tenn. 1975). T.C.A. $ 39-2402 provides in
At trial, proof of another felony committed in the per-
pertinent part:
petration of the murder was admitted into evidence. The
An individual commits murder in the first degree
Tennessee Supreme Court held that when an indictment
if:
charges murder in the common law form, it is not neces-
sary for the indictment to charge also that the homicide
(1) he commits a willful, deliberate, malicious and
was committed in the perpetration of another crime in
premeditated killing or murder;
order to introduce proof showing that another felony
was attempted in committing the murder because from
(4) he commits a willful, deliberate and malicious
such proof, premeditation, malice, and deliberation can
killing or murder during the perpetration of any ar-
be implied. See State V. Black, 524 S. W.2d 913, 915
son, rape, robbery, burglary, larceny, kidnapping,
(Tenn. 1975). n3
aircraft piracy, or unlawful throwing, placing, or
discharging of a destructive device or bomb.
n3 The Tennessee Supreme Court in Sullivan V.
State, 173 Tenn. 475, 481-82, 121 S. 535, 537
[**11]
(1938), stated that:
Sullivan V. State, supra, 173 Tenn. 475, 121 .W.2d
At common law it was not necessary to charge in an
535, was recently followed by the Tennessee Court of
indictment for murder that the murder was commit-
Criminal Appeals in Tosh V. State, 527 S. W.2d 146
ted in the perpetration of another crime, in order to
(Tenn. Cr. App.), cert. denied, (1975), which rejected
introduce proof showing that a felony was attempted
an argument very similar to that raised by appellant in
in committing it; it was sufficient to charge murder
the present case. The conclusion follows that it was
in the common form, and then, upon proof that it
proper for the evidence of the rape and robbery to be
was committed in the perpetration of a felony, mal-
admitted at appellant's trial in order to prove premedita-
ice, deliberation, and premeditation were implied.
tion and thereby support appellant's conviction of first
degree murder as charged in the indictment. There was
In Watson V. Jago, 558 F.2d 330 (6th Cir. 1977),
no constructive amendment of the indictment because
by contrast, the evidence of an attempted robbery
appellant was tried and convicted for the offense stated
was intended to prove the separate offense of felony-
in the indictment.
Page 48
563 F.2d 248, *251; 1977 U.S. App. LEXIS 11259, **11
[*252] We hold that appellant was not deprived of fair
an identity of offenses in felony-murder and first de-
notice of the criminal charges to be brought against him.
gree murder as charged in the indictment because the
n5 Appellant was not tried and convicted on a charge not
same evidence would be required to prove the two
made in the indictment. Rather, appellant's indictment
offenses. State V. Black, supra, 524 S. W.2d at 916-
effectively advised him that under Tennessee law, proof
20; Duchac V. State, 505 S. W.2d 237 (Tenn. 1973),
that another felony committed in the perpetration of the
cert. denied, 419 U.S. 877, 95 S. Ct. 141, 42 L.
murder could be admissible evidence, from which pre-
Ed. 2d 117 (1974).
meditation could be implied, to convict him under the
indictment. While Watson V. Jago, supra, reaffirmed
Nor was counsel for appellant Blake deprived of
the principle [**12] that a person is entitled to fair noti-
sufficient time to prepare a defense. In the present
fication of an offense for which he is to be tried, Watson
case, appellant's counsel knew that under the indict-
is inapposite to the present case because appellant Blake
ment, Tennessee law would permit at trial the ad-
received such notice.
mission of evidence of another felony committed in
the perpetration of the murder in order to prove pre-
meditation, and there was no question that the mur-
n5 The present case also does not involve the
der with which appellant was charged took place in
double jeopardy implications contained in Watson V.
the perpetration of a rape and robbery. In Watson
Jago, supra. In that case, appellant Watson's con-
V. Jago, supra, it was at trial that counsel for ap-
viction for second degree murder would not have
pellant Watson was first apprised that the State of
precluded his being tried and convicted for felony-
Ohio would be seeking the conviction of his client
murder. Watson V. Jago, supra, 558 F.2d at 339,
for felony-murder, and it had not been clear that a
n. 7; Lowther V. Maxwell, 347 F.2d 941 (6th Cir.
robbery attempt at the time of the murder had taken
1965); State V. Trocodaro, 40 Ohio App. 2d 50,
place. While appellant Watson's counsel mounted
317 N.E.2d 418 (1973). Yet, appellant Watson had
an extremely effective defense against the felony-
essentially been tried for felony-murder when being
murder charge notwithstanding the lack of fair no-
tried for premeditated murder. In the present case,
tice, in the present case appellant Blake's counsel
appellant Blake's conviction for murder as charged in
had fair notice of the criminal charge and thus could
the indictment would preclude another trial and con-
not have been prejudiced for lack of sufficient time
viction for felony-murder. The proof of the rape and
to prepare a defense.
robbery supported the conviction of appellant Blake
because premeditation was implied from that proof.
[**13]
Thus, there would be, for double jeopardy purposes,
The judgment of the district court is affirmed.
Page 49
32ND CASE of Level 1 printed in FULL format.
James Earl Ray, Petitioner-Appellant, V. J. H. Rose, Warden, Respondent-Appellee
No. 75-1795
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
535 F.2d 966; 1976 U.S. App. LEXIS 11430
February 3, 1976, Argued
A.G.
May 10, 1976, Decided
PRIOR HISTORY: [**1]
meticulously examining him as to whether the plea was
voluntarily and understandingly made, accepted the plea
Appeal from the United States District Court for the
and imposed a sentence of 99 years imprisonment -- a
Western District of Tennessee.
sentence agreed upon after plea bargaining. Immediately
thereafter, Ray wrote to Judge Battle and requested per-
DISPOSITION: The judgment of the district court is
mission to withdraw his plea and to stand trial. Judge
AFFIRMED.
Battle died on March 31, 1969, without acting on Ray's
request. Ray unsuccessfully sought post-conviction re-
COUNSEL: James Hiram Lesar, N.W., Washington,
lief in the state courts. His habeas corpus petition filed in
District of Columbia, Bernard Fensterwald, Jr., N.W.,
the United States District Court for the Middle District
Washington, District of Columbia, Robert I. Livingston,
of Tennessee was denied without evidentiary hearing.
Memphis, Tennessee, for Appellant.
Ray V. Rose, 373 F. Supp. 687 (M.D. Tenn. 1973).
This [*968] Court, Ray V. Rose, 491 F.2d 285 (6th
R. A. Ashley, Attorney General of Tennessee,
Cir.), cert. denied, 417 U.S. 936, 41 L. Ed. 2d 240,
Nashville, Tennessee, William J. Haynes, Jr., for
94 S. Ct. 2650 (1974), reversed the district court and
Appellee.
remanded the case for a "full-scale judicial inquiry" into
Ray's allegations.
JUDGES: Phillips, Chief Judge, and Celebrezze and
Miller, * Circuit Judges.
The facts in this case are set forth in detail in the dis-
trict court's opinion concluding that Ray was not entitled
* Judge Miller concurred in this opinion prior to
to relief and dismissing the petition. Ray V. Rose, 392 F.
his death on April 12, 1976.
Supp. 601 [**3] (W.D. Tenn. 1975). n1 Therefore, we
OPINIONBY: PER CURIAM
will undertake to summarize only those facts pertinent
to the two primary issues before us.
OPINION: [*967] James Earl Ray appeals from the de-
nial of his petition for habeas corpus following an evi-
nl Because the court ruled on remand that Federal
dentiary hearing in the district court. Two primary con-
Rule of Civil Procedure 45 applied to the case and
stitutional issues were raised at the hearing and are be-
that subpoenas would therefore not be issued to per-
fore us on appeal: (1) whether Ray received effective
sons living outside the district more than 100 miles
assistance of counsel in the state criminal proceeding in
from the place of hearing, Percy Foreman, Ray's sec-
which he was indicted for the murder of Dr. Martin
ond attorney, and William Bradford Huie, a writer
Luther King, Jr., and (2) whether Ray intelligently and
with whom Ray and his attorneys had entered into
voluntarily pleaded guilty to the charge.
various contracts, and several other important wit-
nesses did not testify at the hearing. However,
Ray entered his plea of guilty to the charge in the
Criminal Court of Shelby County, Tennessee, on March
Foreman and Huie gave depositions prior to the hear-
ing. This ruling of the district court also meant that
[**2] 10, 1969. Judge Preston Battle, after carefully
Ray had to rely on voluntary compliance with discov-
advising Ray as to the consequences of his plea and
ery orders to a large extent. Most of those persons
Page 50
535 F.2d 966, *968; 1976 U.S. App. LEXIS 11430, **3
to whom such orders were issued did not voluntarily
ceive 40% of the money Ray received from Huie was
comply.
amended to limit the amount to be received [**6] by
Hanes to $20,000. Ray testified that he made the re-
Dr. King was assassinated in Memphis on April 4,
quest in order to have funds to appeal the case or to
1968. Ray's indictment for the slaying followed on May
institute post-conviction proceedings.
7, 1968. He was arrested in London on June 8, 1968,
After the three-party agreement was entered into, Huie
and was returned [**4] to Memphis on July 19, 1968.
signed a contract with Cowles Communications, Inc., to
While Ray was awaiting extradition in London,
write a series of three articles about Ray for Look maga-
he contacted attorney Arthur Hanes of Birmingham,
zine. This contract was amended by an instrument dated
Alabama, and asked Hanes to represent him. Before
March 17, 1969, to reduce the monetary value of the Ray
Hanes visited Ray, Hanes was contacted by William
story because of Ray's guilty plea. The district court
Bradford Huie, a writer, about the possibility of Ray's
found that, despite the date of the [*969] amendment,
selling his story to finance his defense. Hanes and his
it was drafted prior to the plea because the amendment
son, Arthur Hanes, Jr., also an attorney, met with Ray
stated that it was expected that Ray would plead guilty
in London in July, 1968. On July 5, 1968, Ray signed
on or about March 10. The amendment also provided
two agreements on the advice of Hanes. One of these
that Huie would obtain from Hanes and Percy Foreman,
Ray's second attorney, articles of 1000 words for which
gave Hanes complete power of attorney to act for Ray.
The other, furnished by Huie, assigned to Hanes 40% of
Cowles would pay them each $1000. The first two arti-
cles under this contract appeared in Look in November
all monies that Ray would receive as a result of a subse-
1968. n3 The third Look article was published in April,
quent agreement with Huie and gave Hanes authority to
1969, along with the articles by Hanes and Foreman. n4
act as exclusive agent and attorney for Ray in handling
of contracts, negotiations, and other matters relating to
sale of any information.
n3 When the articles were written, it was thought
that the trial would begin November 12, 1968.
After extradition, n2 Hanes, Huie, and Ray entered
[**7]
into an agreement dated July 8, 1968, whereby Huie was
given exclusive rights to receive information on Ray's
n4 Hanes' article was entitled "For Conspiracy"
participation in the King assassination. The agreement
and Foreman's article was "Against Conspiracy."
stated that its purpose was to establish the truth regard-
Both attorneys contended that the articles as pub-
ing the assassination. It provided that Hanes and Ray
lished differed considerably from the drafts they had
would each receive [**5] 30% of gross receipts of all
written. Huie's first two articles indicated that he felt
literary works while Huie would receive 40%. Huie
that a conspiracy to kill King existed while his third
also was given power to execute contracts for the sale
article indicated that he believed Ray had acted alone.
of his book and other rights to Ray's story. Huie agreed
There is evidence that Ray believed that the Huie ar-
to furnish, at quarterly intervals, statements reflecting
ticles were damaging to his case. Hanes, however,
all transactions and to give Ray and Hanes copies of all
regarded this publicity as favorable because the first
contracts entered into by him. The district court found
two articles furthered the conspiracy theory.
that Huie did not comply with either of these two latter
provisions. The agreement was accompanied by a letter
Huie also entered into a contract with Dell Publishing
from Huie dated July 8, setting forth a schedule of cash
Company regarding the publication of a non-fiction
payments to be made to Hanes and Ray until Ray had
book. By the terms of the agreement, Dell could pub-
been in jail five months. Ray and Hanes both indicated
lish the book no sooner than four weeks after the last
that they entered into these agreements to provide funds
Look article or, at the latest, on or after March 5, 1969.
for Ray's defense.
This agreement was also amended after the guilty plea
was entered to reduce the amount to be paid by Look.
The Dell contract provided that no proceeds could be
n2 Hanes and Huie signed the three-party agree-
used directly or indirectly for Ray's benefit. Huie was
ment on July 8. Ray did not execute the agreement
either unaware of this provision or was ready [**8] to
until August 1, 1968.
violate it when the book produced any royalties. Ray
did not know of either the Cowles or Dell contract until
the hearing in district court.
In September 1968, at Ray's request, the July 5 agree-
ment between Hanes and Ray whereby Hanes was to re-
Because of restrictions on who could visit Ray in the
Page 51
535 F.2d 966, *969; 1976 U.S. App. LEXIS 11430, **8
Shelby County jail, Huie obtained his information by an
The court found that Foreman did fail to associate ex-
exchange of letters or from a list of questions by Huie
perienced Tennessee counsel in the case as Ray alleged,
which Ray would answer in his own handwriting. First
but considered this irrelevant since the public defender's
Hanes and later Foreman carried the information and
appointment made experienced local counsel available;
questions back and forth between Huie and Ray. Huie
furthermore, a Memphis State University Law School
made an investigation to verify much of the information
professor gave Foreman some advice on Tennessee law
he received from Ray. Although Huie gave information
and there was no money to hire other counsel. The
from his investigation to Ray's attorneys, the attorneys
court also found that Foreman did not refuse to attempt
did not consider Huie a hired investigator for Ray's de-
to halt adverse pretrial publicity despite Ray's urgings.
fense. The district court found that Hanes hired a private
Rather, the court found that the publicity had tapered
investigator named Renfro Hayes to do the investiga-
off when Foreman entered the case and that Ray did not
tory work which Hanes and his son did not do and thus
urge Foreman to take action in this regard. [**11]
rejected Ray's allegation that Hanes refused to hire a
private investigator. Huie promised that he would not
Two days after Foreman was hired, he had Ray sign
publish before Ray's trial anything about Ray's activi-
over to him the alleged murder weapon and a white
Mustang found in Atlanta. By an agreement dated
ties in the latter part of March, 1968, and Ray testified
December 6, 1968, and signed by Ray on January 29,
at the hearing that Huie kept the promise.
1969, Hanes was released from the contract with Ray
The district court also rejected several of Ray's allega-
and Huie and Ray was given Hanes' 30% share. On
tions in regard to Hanes' [**9] representation of Ray by
February 3, 1969, Ray assigned all of his rights to the
finding that: (1) Hanes did not refuse to request a contin-
Huie proceeds to Foreman. On March 9, 1969, the day
uance because the contract with Huie provided that Ray
before the guilty plea, Foreman reassigned to Ray all
must go to trial within a certain number of days, (2)
the royalties due from Huie in excess of $165,500 n5
Hanes did not reject Ray's desire to testify or state that
"if the plea is entered and the sentence accepted and no
Ray's testimony would reveal information which could
embarrassing circumstances take place in the court
be sold, and (3) Hanes did not allow Huie to dictate the
manner in which the criminal case would be tried.
Toward the end of Hanes' representation of Ray, Ray's
n5 According to Foreman, the $165,500 included
brother Jerry visited Huie in Huntsville, Alabama, and
$150,000 for his fee, $15,000 for expenses, and
erroneously reported to James Earl Ray that Huie was
$500 for a cash advance to Jerry Ray, James Earl
trying to bribe James Earl not to take the stand. The
Ray's brother for the purpose of hiring a new attor-
district court found that Ray never seriously considered
ney for James Earl. The district court found that the
taking such a bribe and that, in any event, the alleged
fee would be unreasonable if there were money to
bribe was not a factor in the guilty plea.
pay it.
Trial for Ray was set for November 12, 1968. On
November 10, 1968, Ray fired Hanes because, as he
There was considerable conflict in the proof as to when
testified, he felt Hanes was working for Huie and not
Foreman first discussed the [**12] possibility of a guilty
for Ray. Ray's brothers and Percy Foreman, a well-
plea with Ray and the court did not make any findings as
known Texas attorney, who had come to talk to Ray at
to the time of such discussions. The court did, however,
the instance of Ray's brothers, both urged Ray to fire
find that Foreman wrote a letter to Ray dated February
Hanes. At the time Hanes was fired, Ray hired Foreman
13, 1969, which contained an analysis of the case and
to handle his defense. At the time he was hired, [**10]
Foreman's recommendations. In the letter Foreman ex-
Foreman took the position that he would not get involved
pressed his opinion that there was a "little more than a
with Huie or any other writers until after the [*970] trial.
99 per cent chance" of a death penalty verdict and a "100
per cent chance of a guilty verdict." He also stated in the
Foreman obtained a continuance to prepare for trial
and the case was re-set for March 3, 1969. Later,
letter that he would consider it "one of the great accom-
Foreman advised the court that he could not be ready
plishments" of his career if he could save Ray's life by a
negotiated plea. Foreman had Ray acknowledge receipt
for trial on that date. The court refused to change the
of the letter by signing a copy of it, but Ray did not sign
date and ordered the public defender to be ready to take
the letter until sometime after the day it was delivered.
over the defense if necessary. Ray did not approve the
appointment and refused to talk to the public defender.
The court found that most of Ray's allegations regard-
Later Foreman obtained a continuance until April 7.
ing Foreman's inducement of the guilty plea were not
supported by the proof. Specifically, the court found
Page 52
535 F.2d 966, *970; 1976 U.S. App. LEXIS 11430,
that Foreman did not advise Ray, even if innocent, to
there was no conspiracy involved in King's murder.
plead guilty; that Foreman suggested to Ray that Ray
would be better off financially with a guilty plea, but
Huie paid Hanes $30,000 and Foreman $10,000 to
be applied to their expenses and fees. n6 Hanes and
that this statement did not influence Ray in his decision;
Foreman also each received $1000 for their articles in
that Foreman did not advise Ray to plead guilty because
Look.
he [**13] would be pardoned by John J. Hooker, Jr.,
who would be the next governor of Tennessee; and that
Foreman did not attempt to persuade Ray to plead guilty
n6 Huie received $67,000 in gross royalties. He
by telling him that the prosecution was prepared to bribe
gave 10% to his agent and $40,000 to Hanes and
a key witness against Ray, by saying that Foreman would
Foreman.
exercise less than his best efforts if Ray insisted on a
trial, or by telling Ray that Judge Battle would not al-
Based on testimony of Victor Timkin, general counsel
low him to change attorneys and that Foreman would not
withdraw. In addition, the court found that Foreman's
of Bantam Books, the district court found that the guilty
plea, in lieu of trial, substantially reduced the amount
advice did not cause Ray reasonably to believe that he
of prospective income from literary royalties to Ray and
had no alternative to a guilty plea since he could have
his attorneys.
gone to trial with the public defender.
The court rejected Ray's allegation that neither Hanes
By letter to Foreman dated February 18, 1969, Ray
nor Foreman made any active investigation of the case.
gave Foreman written authorization to negotiate a guilty
It found that both of Ray's attorneys made adequate in-
plea for a term of years. The letter was drafted and
vestigations and were aware of weaknesses in the state's
prepared [*971] by Foreman for Ray's signature. The
case.
letter stated that Foreman and Ray agreed that it was
impossible to controvert certain incriminating facts and
The court found that, while some of the procedures
believed that a trial would result in a guilty verdict with a
used in screening of Ray's mail, reproduction of his
sentence of life, ninety-nine years, or the electric chair.
[**16] letters, and monitoring of his conversations in jail
Ray testified that he did not believe that there was a
were improper, they did not prevent him from commu-
chance of the death penalty even though he signed this
nicating with his attorneys or cause any actual prejudice
[**14] letter. He also testified that when he signed the
to the rights of Ray.
letter, he gave Foreman a written list of reasons why he
Ray first argues that his guilty plea was not voluntar-
should not plead guilty. The district court did not make
ily and intelligently made because Foreman pressured
a finding as to whether the list actually existed.
him into pleading guilty against his will. Ray contends
The district court found that Foreman met with mem-
that Foreman made him believe that Judge Battle would
bers of Ray's family and urged them to encourage Ray
not permit him to change attorneys again and, unless
to plead guilty, but that they did not do so. Therefore,
he pleaded guilty, he had no alternative but to go to
the court said, Foreman's conduct in this regard did not
trial with Foreman, whom he could not trust, or the
induce the guilty plea. The court also found that Ray's
Public Defender, whom he thought incapable of han-
health did not deteriorate while he was in the Shelby
dling a case of this nature. As evidence that the plea
County jail to the extent that he was unable to resist
was not voluntary, Ray relies heavily upon the March
pressure to plead guilty.
9 letters from Foreman to Ray agreeing to reassign to
Ray all his rights to income under the Huie contracts,
After Foreman and the Attorney General had agreed
conditioned upon the guilty plea being entered "without
to a guilty plea, the Attorney General's office prepared
any unseemly conduct" on Ray's part in court.
a set of stipulations representing those facts which the
state said it could prove. Among the stipulations was
Considering "all of the relevant circumstances" sur-
one which stated that Ray had fired the shot which killed
rounding Ray's plea, Brady V. United States, 397 U.S.
Dr. King. Ray approved these stipulations in slightly
742, 749, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970), we
modified form without any challenge to the stipulation
agree with the district court that the plea was entered vol-
that he had committed the murder. The stipulations were
untarily and knowingly. As stated, Judge Battle [**17]
presented at Ray's guilty plea hearing and Ray acknowl-
very carefully questioned Ray as to the voluntariness of
edged that he agreed with the stipulations. He also stated
his plea before it was accepted on March 10, [*972]
that he disagreed with [**15] Foreman's representation
1969. n7 Ray specifically denied at that time that any
that Ray agreed with Attorney General Ramsey Clark
one had pressured him to plead guilty. His responses and
and FBI Director J. Edgar Hoover who had said that
actions in court reveal that he was fully aware of what
Page 53
535 F.2d 966, *972; 1976 U.S. App. LEXIS 11430, **17
was occurring. n8 The February 18 letter authorizing
standingly made and entered by you?
Foreman to negotiate a guilty plea supports the finding
Answer: Yes, sir.
that the plea was voluntary. Other evidence showed that
Ray had pleaded guilty to two prior felonies, that his IQ
The Court: Is this plea of guilty on your part the
was in the bright normal range, and that Foreman had
free act of your free will made with your full knowl-
carefully explained to him the consequences of his plea.
edge and understanding of its meaning and conse-
Indeed Ray does not seriously contend on appeal that
quences?
he did not understand the nature and consequences of
Answer: Yes, sir.
his plea. Nor does he argue that his health deteriorated
to such an extent that he was unable to resist pressure
[**18]
to plead guilty or to make an intelligent choice to enter
such a plea.
n8 After the plea was entered, Ray expressed his
opinion that he could not agree with theories that
there had been no conspiracy and further reaffirmed
n7 A portion of the exchange between Ray and
his desire to plead guilty in the following exchange:
Judge Battle was as follows:
Ray: Your Honor, I would like to say something,
The Court: You are entering a plea of guilty to
I don't want to change anything that I have said, but
murder in the first degree as charged in the in-
I just want to enter one other thing. The only thing
dictment as a compromise and settling your case
I have to say is that I can't agree with Mr. Clark.
on an agreed punishment of 99 years in the State
Penitentiary. Is that what you want to do?
Foreman: Ramsey Clark.
Answer: Yes, I do.
The Court: Mr. who?
The Court: Is this what you want to do?
Ray: Mr. J. Edgar Hoover. I agree with all these
stipulations, and I am not trying to change anything.
Answer: Yes, sir.
The Court: You don't agree with whose theories.
The Court: Do you understand that you are waiv-
ing which means you are giving up a formal trial by
Ray: Mr. Canale's, Mr. Clark's and Mr. J. Edgar
your plea of guilty although the laws of this State
Hoover's about the conspiracy. I don't want to add
require the prosecution to present certain evidence
something on that I haven't agreed to in the past.
to a jury in all cases on pleas of guilty to murder in
Foreman: I think that what he said is that he
the first degree by your plea of guilty you are also
doesn't agree with Ramsey Clark that Ramsey Clark
waiving
[the Court explains Ray's rights in
is right or that J. Edgar Hoover is right. I didn't
great detail]
Has anything besides this sentence
argue that as evidence in this case. I simply stated
of 99 years in the Penitentiary been promised to you
that underwriting the statement of General Canale
to get you to plead guilty? Has anything else been
that they had made the same statement. You are not
promised to you by anyone?
required to agree with it all.
Answer: No, it has not.
The Court: You still, your answers to these ques-
The Court: Has any pressure of any kind by any-
tions that I asked you would still be the same? Is
one in any way been used on you to get you to plead
that correct?
guilty?
Ray: Yes, sir.
Answer: No, no one in any way.
The Court: There is nothing in these questions
The Court: Are you pleading guilty to murder in
that I have asked you in your answer to them you
the first degree in this case because you killed Dr.
change none of them at all. In other words you are
Martin Luther King under circumstances that would
pleading guilty to and taking 99 years. I think the
make you legally guilty of murder in the first degree
main question that I want to ask you is this: Are
under the law as explained to you by your lawyer?
you pleading guilty to murder in the first degree in
this case because you killed Dr. Martin Luther King
Answer: Yes, legally yes.
under such circumstances that it would make you
The Court: Is this plea of guilty to murder in the
legally guilty of murder in the first degree under the
first degree with an agreed punishment of 99 years
law as explained to you by your lawyer (the defen-
in the State Penitentiary free, voluntarily and under-
dant indicated in the affirmative). Your answer is
Page 54
535 F.2d 966, *972; 1976 U.S. App. LEXIS 11430,
still yes? All right sir, that is all you may swear the
ularities of the attorneys Hanes and Foreman and
jury.
the potential and limited actual conflicts of interest
did not cause Ray to plead guilty involuntarily. By
[**19]
Ray's own testimony he was not concerned about
Acceptance of Ray's arguments in regard to the volun-
money except insofar as it was necessary to provide
funds for his various successive court proceedings.
tariness of the plea would require us to reverse findings
Furthermore, there is no proof to show that sizeable
of the district court regarding the contents of Foreman's
monies were forthcoming or that the various per-
discussions with Ray. As we have noted earlier, the court
sons involved were reasonably entitled to anticipate
found that Ray simply had not proved that Foreman
the receipt of sizeable sums of money by virtue of a
[*973] made many of the statements attributed to him
guilty plea. Additionally there is nothing to suggest
by Ray in urging him to plead guilty. Further, the court
that Ray was persuaded to plead guilty on March 10
found that Foreman had not succeeded in getting Ray's
to meet a publication deadline. Such was not the
family to pressure him to plead guilty. Finally, the court
case. 392 F. Supp. at 620."
found that Ray did not reasonably believe that he had no
alternative to a guilty plea. We have carefully examined
[**21]
the record in this case and have determined that these
findings of the district court are not clearly erroneous.
In regard to Foreman's March 9 letters, we are unable
n9
to view these letters as an indication that the plea was
involuntary. Ray argues that he entered this agreement
only because he no longer trusted Foreman and needed
n9 The clearly erroneous standard is the proper
the money he would receive under the Huie contracts to
standard for review of factual findings of the district
pay a new lawyer to reopen his case. We have already
court in a habeas corpus proceeding. See Monnich
noted that most of the factual bases of Ray's allegation
V. Kropp, 408 F.2d 356 (6th Cir. 1969). Moreover,
that Foreman induced him to plead guilty by undermin-
this is the proper standard where the evidence in-
ing Ray's trust in his attorney and making Ray believe
cludes depositions and other written evidence, as in
he had no alternative to a guilty plea were not established
the instant case. See United States Steel V. Fuhrman,
at the hearing. Further, Ray's testimony that he pleaded
407 F.2d 1143, 1145-46 (6th Cir. 1969).
guilty because he anticipated trying to reopen his case
at a later date is at best highly implausible. It is more
[**20]
likely that he simply reasoned that a shrewd attorney
In addition, we do not view the fact that Foreman was
might find a way to overturn his conviction regardless
to receive a certain sum of money under the amended
of the voluntariness of the plea.
Cowles contract if Ray pleaded guilty as a factor that
We turn to Ray's second major contention on this ap-
rendered the plea involuntary. In view of Timkin's tes-
peal: that he was denied effective assistance of counsel.
timony that the contracts would have produced more
The standard in this Circuit for determining whether a
money had the case gone to trial, the fact that the Dell and
defendant has received effective assistance of counsel re-
Cowles contracts themselves were amended to reduce the
quires that a defendant have counsel "reasonably likely
amounts payable to Huie after the plea, and other evi-
to render and rendering effective assistance." Beasley
dence indicating that Foreman's motive in urging Ray
[**22] V. United States, 491 F.2d 687, 696 (6th Cir.
to plead guilty was avoidance of the death penalty, it
1974). Ray argues that this standard was not met by
seems highly improbable that Foreman was influenced
the attorneys representing him because (1) his attorneys
to urge Ray to plead guilty by the prospect of receiving
had a conflict of interest depriving him of effective as-
this money. This potential conflict of interest then was
sistance, (2) his attorneys failed to investigate the case
not a factor which caused Ray to enter the plea. See
adequately, (3) Foreman's advice to plead guilty was in-
Dukes V. Warden, 406 U.S. 250, 32 L. Ed. 2d 45, 92
competent, and (4) Ray's relationship with his attorneys
S. Ct. 1551 (1972). Further, the evidence does not sup-
while he was in jail was interfered with by surveillance,
port any contention that Ray pleaded guilty in order to
mail interception, and delivery of [*974] Ray's mail and
receive money under the contracts. n10
privileged attorney-client communications to the prose-
cution.
n10 In regard to the effect of the conflict of interest
The contractual arrangements involving Ray, his at-
on the guilty plea, the district court said:
torneys, and Huie clearly placed the attorneys in a po-
"However, based upon the total proof, the irreg-
tential conflict of interest situation. Further, as the dis-
Page 55
535 F.2d 966, *974; 1976 U.S. App. LEXIS 11430, **22
trict court pointed out, the contract is a violation of
44 L. Ed. 2d 87 (1975).
Disciplinary Rule 5-104(B) of the Code of Professional
Responsibility of the American Bar Association, which
was adopted after Ray entered his plea. Despite our
nll Most cases which adopt a per se rule that a de-
disapproval of such a fee arrangement, however, its ex-
fendant is denied effective assistance of counsel any
istence does not necessarily mean that Ray was denied
time his attorney has a conflict of interest and which
effective assistance of counsel.
require no showing of prejudice involve joint rep-
resentation of co-defendants. Although this Circuit
In Glasser V. United States, 315 U.S. 60, 68-76, 86L.
has not adopted a per se rule in joint representation
Ed. 680, 62 S. Ct. 457 (1941), the Supreme Court dis-
cases, we feel there is less justification for applica-
cussed [**23] the issue of denial of effective assistance
tion of a per se rule in this case than there would be
of counsel in a conflict of interest situation. The Court
in the joint representation situation.
said in Glasser that it was unnecessary to determine the
precise degree of prejudice sustained by the defendant
as a result of the conflict of interest. Glasser, supra
After carefully examining the record in this case and
at 75-76. However, the opinion, in discussing specific
the findings of the district court, we conclude that Ray
examples of prejudice suffered by Glasser and in con-
has not sustained his burden of showing that he was prej-
cluding that his representation "was not as effective as it
udiced in any way as a result of the contractual arrange-
might have been" had there been no conflict of interest,
ments with Huie. Hanes was mindful that his obligation
makes clear that there must be a showing of some actual
was solely to represent Ray and the district court's find-
prejudice. This Court has so interpreted Glasser and has
ings indicate that Hanes did not allow Huie to influence
required a showing of actual prejudice in a conflict of
his conduct in representing Ray. Nor was Ray preju-
interest situation. See United States V. Berriel, 371 F.2d
diced by [**26] certain events which occurred due to the
587 (6th Cir. 1967), cert. denied, 390 U.S. 907, 19
existence of the contracts during Hanes' representation
L. Ed. 2d 875, 88 S. Ct. 830 (1968); United States
of Ray. These events included the possibly damaging
V. Burkeen, 355 F.2d 241 (6th Cir. 1966); Harris V.
publicity of the Huie articles in Look, Huie's testify-
Thomas, 341 F.2d 560 (6th Cir. 1965); Craig V. United
ing before the grand jury about information received
States, 217 F.2d 355 (6th Cir. 1954). Other courts con-
from Ray, and Huie's alleged attempt to bribe Ray not
sidering situations in which denial of effective assistance
to testify. While these events might have caused some
of counsel due to a conflict of interest situation has been
[*975] prejudice to Ray had he decided to go to trial, on
alleged have similarly required a showing of some actual
this record there is no showing of actual prejudice. Ray
prejudice. [**24] See United States V. Mari, 526 F.2d
does not claim that any of these occurrences discouraged
117 (2d Cir. 1975); United States V. Wisniewski, 478
him from going to trial or influenced him to plead guilty.
F.2d 274 (2d Cir. 1973); United States V. Alberti, 470
Similarly, Ray was not prejudiced by Foreman's conflict
of interest. As we have discussed earlier, Foreman's ad-
F.2d 878, 881 (2d Cir. 1972), cert. denied, 411 U.S.
919, 36 L. Ed. 2d 311, 93 Ct. 1557 (1973); Ford V.
vice to Ray to plead guilty was not motivated by any
desire on Foreman's part to receive money under the
United States, 126 U.S. App. D.C. 346, 379 F.2d 123
(D.C. Cir. 1967). Cf. United States V. Jeffers, 520
contracts with Huie or by any urgings of Huie.
F.2d 1256 (7th Cir.) cert. denied, 423 U.S. 1066, 96
We further note that Ray was fully aware of the poten-
S. Ct. 805, 46 L. Ed. 2d 656, 44 U.S.L. W. 3399 (U.S.
tial conflict of interest in the Huie-Hanes-Ray contrac-
Jan. 13, 1976); United States V. Nadaline, 471 F.2d
tual relationship. While we do not reach the question
340 (5th Cir.), cert. denied, 411 U.S. 951, 36 L. Ed.
of whether Ray waived any objection to the conflict of
2d 414, 93 S. Ct. 1924 (1973). But see United States
interest, n12 Ray's awareness of the conflict, the full
ex rel. Hart V. Davenport, 478 F.2d 203, 210 (3d Cir.
disclosure made to him by Hanes, and the warning that
1973) (requiring only a "showing of a possible conflict
[**27] he received from Foreman about such arrange-
of interest or prejudice, however remote"); Walker V.
ments at the time Foreman was hired strengthen our con-
United States, 422 F.2d 374 (3d Cir.), cert. denied, 399
viction that Ray was not prejudiced by the conflicts of
U.S. 915, 26 L. Ed. 2d 573, 90 S. Ct. 2219 (1970).
interest.
nll While we have found no case dealing with precisely
the type of conflict of interest involved here, we con-
sider the principles applicable to conflicts of other types
n12 There is authority which suggests that any
waiver of a conflict of interest must be made ex-
apposite here. Cf. United States V. McCord, 166 U.S.
App. D.C. 1, 509 F.2d 334, 352 [**25] n. 64 (D.C.
pressly and in a courtroom proceeding similar to that
Cir. 1974), cert. denied, 421 U.S. 930, 95 S. Ct. 1656,
required when a defendant pleads guilty. See United
States V. Garcia, 517 F.2d 272 (5th Cir. 1975).
Page 56
535 F.2d 966, *975; 1976 U.S. App. LEXIS 11430, **27
hearing that they considered the advice to plead guilty
Ray has also failed to show that he was denied effec-
sound. Even Hanes, who hoped for an acquittal, admit-
tive assistance of counsel by inadequate investigation of
ted he had discussed the possibility of a [*976] guilty
the case by his attorneys. Several different investiga-
[**30] plea with Ray. We think it clear in this case that
tions of the case were conducted that of Hanes and his
the advice which Ray received was "within the range of
son, and their investigator Hayes, Huie's investigation,
competence demanded of attorneys in criminal cases."
See McMann V. Richardson, 397 U.S. 759, 771, 25 L.
Foreman's investigation, and the investigation of the
public defender's office. Evidence produced at hearing
Ed. 2d 763, 90 S. Ct. 1441 (1970); Stout V. United
showed that numerous witnesses had been interviewed
States, 508 F.2d 951, 953 (6th Cir. 1975). As the
and that Ray's attorneys were aware of weaknesses in
Supreme Court said in McMann, supra, in discussing
the State's case. Hanes' investigation of the case and his
the performance required of attorneys in a guilty plea
situation:
preparation for it was quite extensive. Foreman set up
[**28] an office and lived in Memphis for a time while
As we said in Brady V. United States, ante, at 756-757,
he made his investigation. In addition, Foreman had
the decision to plead guilty before the evidence is in fre-
the benefit of all the other investigations. This Court
quently involves the making of difficult judgments. All
has recognized that a defendant is not denied effective
the pertinent facts normally cannot be known unless wit-
assistance of counsel even if his attorney conducts no in-
nesses are examined and cross-examined in court. Even
dependent investigation of his own but merely receives
then the truth will often be in dispute. In the face of
and relies upon a prior attorney's work product in go-
unavoidable uncertainty, the defendant and his counsel
ing to trial. See Price V. Perini, 520 F.2d 807 (6th Cir.
must make their best judgment as to the weight of the
1975) (per curiam); Berry V. Cowan, 497 F.2d 1274 (6th
State's case.
397 U.S. at 769.
Cir. 1974). We agree with the district court that Ray did
***
not show that the investigation was inadequate or below
the standards usually required of a criminal lawyer of
It is no denigration of the right to trial to hold that
ordinary skill.
when the defendant waives his state court remedies and
admits his guilt, he does so under the law then existing;
Ray has also failed to establish his third basis for con-
tending that he was denied effective assistance of counsel
further, he assumes the risk of ordinary error in either
his or his attorney's assessment of [**31] the law and
-- that he was given incompetent advice by Foreman to
facts. 397 U.S. at 774.
plead guilty. Ray argues that the advice that there was
"overwhelming evidence" against him and a 100 per cent
chance of a guilty verdict was incompetent. In this argu-
Finally, we reject Ray's contention that he was denied
ment he relies on the Hanes' view that they had a chance
effective assistance of counsel by surveillance, intercep-
of obtaining an acquittal due to (1) the lack of a credible
tion of mail, and delivery of attorney-client communi-
eyewitness, (2) Ray's representation to them that he did
cations to the prosecution. We do not believe that the
not kill [**29] Dr. King, (3) the inconclusive nature of
government actions in the circumstances of this case re-
the ballistics evidence, and (4) testimony of witnesses
quire us to overturn Ray's guilty plea. Ray was unable to
who said the shot came from the parking lot or nearby
show that mail inspection, surveillance, or interception
bushes rather than the bathroom window of the room-
of privileged communications affected the preparation
ing house where Ray was staying. Ray also argues that
of his defense or prejudiced him in any way. Nor was
the advice that there was a 99 per cent chance of Ray's
there any evidence to indicate that government receipt of
receiving the death penalty was incompetent because,
any information contributed to Ray's decision to enter
based on statistics for Shelby County, there was a slim
the guilty plea. We further observe that Ray was specif-
chance of execution even if Ray had been convicted. We
ically informed by Judge Battle that in pleading guilty
cannot view Foreman's advice to Ray as incompetent un-
he was waiving his right to object to the denial of his
der the circumstances of this case. Hanes had identified
motions relating to surveillance and consultation with
certain weaknesses in the State's case, but the State's
his attorney. In light of these factors and the Supreme
case was still quite strong. As the district court noted,
Court's opinion in Tollett V. Henderson, 411 U.S. 258,
the weaknesses "are by no means of the sensational na-
267, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973), we find
ture which would explode the state's case, particularly
that Ray is not entitled to have his conviction overturned
in light of the substantial incriminating evidence pertain-
on this ground.
ing to Ray's presence in Memphis on April 4, 1968, and
We have considered Ray's other contentions and find
his carefully contrived concealment and flight after the
them to be without merit. [**32]
murder." Several attorneys testified at the evidentiary
Page 57
535 F.2d 966, *976; 1976 U.S. App. LEXIS 11430, **32
The judgment of the district court is
AFFIRMED.
Page 35
15TH CASE of Level 1 printed in FULL format.
JAMES H. JONES, Plaintiff-Appellant, V. WILLIAM JONES; TIM SEXTON; TOM HARNEY; RETHA
BOWLINGS; WILLIAM HAYNES; CHARLIE JONES; HERMAN C. DAVIS; THOMAS MAY; LARRY
SWEAT, Defendants-Appellees
No. 88-5541
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
875 F.2d 864; 1989 U.S. App. LEXIS 6956
May 18, 1989, Filed
NOTICE: NOT RECOMMENDED FOR FULL-TEXT
Department of Corrections, discriminated against him
PUBLICATION SIXTH CIRCUIT RULE 24 LIMITS
on the basis of his race, retaliated against him for exer-
CITATION TO SPECIFIC SITUATIONS. PLEASE SEE
cising his right to free speech and access to the courts,
RULE 24 BEFORE CITING IN A PROCEEDING
deprived him of his right to a fair disciplinary hearing
IN A COURT IN THE SIXTH CIRCUIT. IF CITED,
and conspired to deprive him of his rights. The parties
A COPY MUST BE SERVED ON OTHER PARTIES
consented pursuant to 28 U.S.C. § 636(c) to the magis-
AND THE COURT. THIS NOTICE IS TO BE
trate entering a final decision. Summary judgment was
PROMINENTLY DISPLAYED IF THIS DECISION IS
entered for defendant Norris. The magistrate permitted
REPRODUCED.
the case to proceed to trial as to the remaining defen-
dants. A directed verdict was entered for the defendants
PRIOR HISTORY:
and plaintiff appealed.
On Appeal from the United States District Court for
A directed verdict may be granted only when the ev-
the Eastern District of Tennessee, No. 87-00532
idence [*2] is viewed in the light most favorable to the
party against whom it is made and it is clear that rea-
OPINION: BEFORE: MARTIN and BOGGS, Circuit
sonable men could come to but one conclusion from the
Judges; and CONTIE, Senior Circuit Judge.
evidence. Coffy V. Multi-County Narcotics Bureau, 600
F.2d 570, 579 (6th Cir. 1979). A review of the record
ORDER
indicates that the district court did not err in its decision
This case has been referred to a panel of the court
granting a directed verdict in that plaintiff failed to prove
pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon
the various elements to prevail on his claims as stated in
examination of the briefs of the parties and the motion for
Magistrate Murrian's memorandum opinion filed May
appointment of counsel, this panel unanimously agrees
11, 1988.
that oral argument is not needed. Fed. R. App. P.
It is ORDERED that the motion for counsel be denied
34(a).
and the judgment of the district court affirmed. Rule
Plaintiff's complaint and amended complaints al-
9(b)(5), Rules of the Sixth Circuit.
leged that the defendants, employees of the Tennessee
Page 6
1ST CASE of Level 1 printed in FULL format.
RAY SEAY, Plaintiff-Appellant, V. WILLIAM BROWN; UNITED STATES OF AMERICA; UNITED
STATES POSTAL SERVICE; OFFICE OF PERSONNEL MANAGEMENT; MAIN POST OFFICE,
BROADWAY, including but not limited to the Postmaster or Chief Officer, the Chief Officer of Personnel,
all persons in personnel or Postmaster's Office, and unknown employees of the above, each individually
and in their official capacities; WILLIAM J. HAYNES, JR., United States Magistrate Judge,
Defendants-Appellees.
No. 96-6594
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
1997 U.S. App. LEXIS 25580
September 12, 1997, Filed
NOTICE: [*1] NOT RECOMMENDED FOR FULL-
OPINION: ORDER
TEXT PUBLICATION. SIXTH CIRCUIT RULE 24
LIMITS CITATION TO SPECIFIC SITUATIONS.
Ray Seay, proceeding pro se, moves for a writ of man-
PLEASE SEE RULE 24 BEFORE CITING IN A
damus on appeal from a district [*2] court order dismiss-
PROCEEDING IN A COURT IN THE SIXTH
ing his suit filed as a Bivens-type action, see Bivens V. Six
Unknown Named Agents of Fed. Bureau of Narcotics,
CIRCUIT. IF CITED, A COPY MUST BE SERVED ON
403 U.S. 388, 390-97, 29L. Ed. 2d 619, 91 S. Ct. 1999
OTHER PARTIES AND THE COURT. THIS NOTICE
IS TO BE PROMINENTLY DISPLAYED IF THIS
(1971). This case has been referred to a panel of the
DECISION IS REPRODUCED.
court pursuant to Rule 9(a), Rules of the Sixth Circuit.
Upon examination, this panel unanimously agrees that
SUBSEQUENT HISTORY: Reported in Table Case
oral argument is not needed. Fed. R. App. P. 34(a).
Format at: 124 F.3d 199, 1997 U.S. App. LEXIS 30690.
This is one of many actions filed by Seay arising
out of his discontent with the decision of the United
PRIOR HISTORY: Middle District of Tennessee. 96-
States Postal Service (USPS) not to reinstate him in his
00032. Higgins. 9-30-96.
job. Specifically, Seay alleged that pursuant to a settle-
ment agreement which he entered into with the USPS
DISPOSITION: Motion for a writ of mandamus denied,
in October, 1987, he was entitled to be reinstated after
and the district court's order affirmed.
he had been on disability leave for an extended period
of time. Among other things, the agreement provided
COUNSEL:
that Seay would be placed on disability retirement, with
RAY SEAY, Plaintiff - Appellant, Pro se, Hudson, FL.
the caveat that he would be entitled to restoration rights
with the USPS if he was found to be partially or fully
For WILLIAM BROWN, UNITED STATES OF
recovered.
AMERICA, UNITED STATES POSTAL SERVICE,
OFFICE OF PERSONNEL MANAGEMENT, MAIN
On March 8, 1996, the USPS denied Seay's request to
be restored to duty under the settlement agreement. The
POST OFFICE, BROADWAY, including but not lim-
ited to the Postmater or Chief Officer, the Chief Officer
USPS stated that it refused to restore Seay to a position
because he had received a judgment of conviction [*3]
of Personnel, all persons in personnel or Postmaster's
in a Florida state court for grand theft. While the USPS
Office, and unknown employees of the above, and un-
noted that the Florida court deferred the adjudication of
known employees of the above, each individually and in
guilty pending Seay's successful completion of his sen-
their official capacities, Defendants - Appellees: Robert
tence, it also noted that he was found guilty of criminal
C. Watson, Asst. U.S. Attorney, Office of the U.S.
contempt in that case.
Attorney, Nashville, TN.
Seay filed a timely appeal with the Merit Systems
JUDGES: Before: MERRITT, JONES, and NORRIS,
Protection Board (MSPB) on April 10, 1996. He subse-
Circuit Judges.
quently withdrew his appeal on August 12, 1996, which
Page 7
1997 U.S. App. LEXIS 25580, *3
the MSPB has stated it will not reinstate absent unusual
ing, the USPS [*5] or the appellant may then petition
circumstances. In the present action, Seay sought rein-
the MSPB for an administrative review of the decision.
statement and damages.
5 C.F.R. §§ 1201.113 and 1201. 114. Once the MSPB
has rendered its decision after a de novo review, the
The defendants moved to dismiss pursuant to Fed.
R. Civ. P. 12(b)(1) and 12(b)(6) based on their con-
employee may seek judicial review in the United States
Court of Appeals for the Federal Circuit. 5 U.S.C. §
tentions that the district court lacked jurisdiction over
Seay's claims and that the individual defendants are pro-
7703. Appeals of employment decisions of the MSPB
tected by absolute and qualified immunity. Seay failed
may only be brought in the Federal Circuit unless the
employee also alleges a valid discrimination claim. See
to respond to the motion within the time required by the
Romain V. Shear,, 799 F.2d 1416, 1421 (9th Cir. 1986)
district court. The district court granted the defendants'
(per curiam), cert. denied, 481 U.S. 1050, 95 L. Ed.
motion to dismiss in an order entered September 30,
2d 840, 107 S. Ct. 2183 (1987).
1996. Reconsideration was denied in an order entered
November 17, 1996. This timely appeal followed
In this case, Seay voluntarily dismissed his appeal
from the MSPB and instituted a suit in the district
This court reviews the district court's dismissal of
court. Accordingly, he failed to exhaust his administra-
Seay's complaint for lack of subject matter jurisdiction
de novo. [*4] Gafford V. General Elec. Co., 997
tive remedies. Where a plaintiff has failed to exhaust his
administrative remedies, the court lacks subject matter
F.2d 150, 155 (6th Cir. 1993). Upon review, we con-
clude that the district court properly dismissed the com-
jurisdiction. See Jacobs V. Federal Deposit Ins. Corp.,
638 F. Supp. 214, 214 (E.D. Tenn. 1986).
plaint for lack of subject matter jurisdiction. Disputes
concerning employment decisions of the USPS are gov-
Upon further review, we conclude that the district
erned by the statutory procedures contained in the Postal
court properly concluded that Magistrate Judge Haynes
Reorganization Act (PRA), 39 U.S.C. $ 1001 et seq.
was entitled to absolute immunity. Apart from the fact
See Harper V. Frank, 985 F.2d 285, 288-92 (6th Cir.
that Seay has offered nothing to support his allegation
1993). The PRA "provides a comprehensive scheme
against Magistrate Judge Haynes, [*6] there is no doubt
for employment relations within the USPS, and as such
that acts pertaining to discovery and other pretrial mat-
it preempts recourse to other possible statutory bases
ters are judicial in nature. See Mann V. Conlin, 22 F.3d
for federal district court jurisdiction." Kroll V. United
100, 104 (6th Cir.), cert. denied, 513 U.S. 870, 130 L.
States, 58 F.3d 1087, 1089 (6th Cir. 1995) (per curiam).
Ed. 2d 126, 115 S. Ct. 193 (1994). Thus, Magistrate
Judge Haynes did not act in the clear absence of all juris-
Once the USPS denied Seay his request for reinstate-
diction, and is entitled to judicial immunity. See Stump
ment, Seay was required to exhaust his administrative
V. Sparkman, 435 U.S. 349, 355-56, 55 L. Ed. 2d 331,
remedies prior to seeking federal judicial review. Seay's
98 S. Ct. 1099 (1978).
recourse lay in the detailed appellate procedures set out
in 5 U.S.C. § 7701. That provision states that an em-
Finally, Seay's motion for a writ of mandamus lacks
ployee who is dissatisfied with an employment decision
merit.
may have his appeal heard by the MSPB or by the appel-
Accordingly, the motion for a writ of mandamus is
late judge to whom the MSPB refers the case. 5 U.S.C.
denied, and the district court's order is affirmed. Rule
§ 7701(b). If either party is dissatisfied with the find-
9(b)(3), Rules of the Sixth Circuit.
Page 8
2ND CASE of Level 1 printed in FULL format.
RAY SEAY, Plaintiff-Appellant, V. WILLIAM BROWN; UNITED STATES OF AMERICA; UNITED
STATES POSTAL SERVICE; OFFICE OF PERSONNEL MANAGEMENT; MAIN POST OFFICE,
BROADWAY, including but not limited to the Postmaster or Chief Officer, the Chief Officer of Personnel,
all persons in personnel or Postmaster's Office, and unknown employees of the above, each individually
and in their official capacities; WILLIAM J. HAYNES, JR., United States Magistrate Judge,
Defendants-Appellees.
No. 96-6594
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
124 F.3d 199; 1997 U.S. App. LEXIS 30690
September 12, 1997, Filed
NOTICE: [*1] DECISION WITHOUT PUBLISHED
Reported in Full-Text Format at: 1997 U.S. App. LEXIS
OPINION
25580.
PRIOR HISTORY: Middle District of Tennessee. 96-
OPINION: Motion for a writ of mandamus denied, and
00032. Higgins. 9-30-96.
the district court's order affirmed.
Page 13
7TH CASE of Level 1 printed in FULL format.
LINDA RAWLINGS, Plaintiff-Appellant, V. SCOTT LITTLETON, M.D.; LONNIE LYLES; PEGGY
NUNN; MARY KUCHUNBAUM; DAUN ANDREWS; RANDY KIMBROUGH; PAMELA BEATY;
RICK DORSEY; JUDY GLASS; PAT GUTHRIE; DENNIS MINIX; MARY ROSS: ERNIE SMALL
BUDDY TURNER; MARGARET FREEMAN; THOMAS R. LEWIS, Judge; BILL HAYNES;
?
MARGARET YOUNG; JO ANN COLEMAN; BILL ANDREWS; MICHAEL MOORE; GARY
EHLING; MADENA BASHAM; KENNETH ROYSE; THERESA NELSON; BOB RATHBAUM;
NOT HIM
BECKY MILLER; JOHNNY WATTS; JOHN HOYLE; MARGARET ROBBINS; JOHN CHILDRESS;
JO ANN FARINA; GARY DRAKE; CHARLES BAKER; SUZANNE PASH; CATHY REEVES,
Defendants-Appellees.
No. 93-5223
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
1994 U.S. App. LEXIS 9703
April 28, 1994, Filed
NOTICE: [*1] NOT RECOMMENDED FOR FULL-
has been referred to a panel of the court pursuant to Rule
TEXT PUBLICATION. SIXTH CIRCUIT RULE 24
9(a), Rules of the Sixth Circuit. Upon examination, this
LIMITS CITATION TO SPECIFIC SITUATIONS.
panel unanimously agrees that oral argument [*2] is not
PLEASE SEE RULE 24 BEFORE CITING IN A
needed. Fed. R. App. P. 34(a).
PROCEEDING IN A COURT IN THE SIXTH
CIRCUIT. IF CITED, A COPY MUST BE SERVED ON
Rawlings originally filed six complaints, three of
OTHER PARTIES AND THE COURT. THIS NOTICE
which also named Rawlings's son as a plaintiff. The
IS TO BE PROMINENTLY DISPLAYED IF THIS
complaints against numerous defendants, which the dis-
DECISION IS REPRODUCED.
trict court consolidated, arose out of court proceedings
resulting in the removal of Rawlings's son from her
home and his placement in the Rivendell Youth Center
SUBSEQUENT HISTORY: Reported in Table Case
and the Dessie Scott Children's Home in Pine Ridge,
Format at: 23 F.3d 408, 1994 U.S. App. LEXIS 17626.
Kentucky. In a typewritten statement of claim attached
PRIOR HISTORY: United States District Court for the
to each of the six separate complaints, Rawlings alleged
that she has not been allowed to visit her son for almost
Western District of Kentucky. District No. 92-00094.
one year and that she has not been provided family ther-
Heyburn, II, District Judge.
apy that would prepare her for her son's return to her
DISPOSITION: Affirmed.
home; that Social Services has hidden wrongdoings by
Dessie Scott Children's Home; and that her son has had
medical problems, has been denied medical attention,
JUDGES: BEFORE: MERRITT, Chief Judge;
and has lost a total of 57 pounds while in the custody of
KENNEDY and NELSON, Circuit Judges.
Social Services. Rawlings alleged additional claims such
OPINION: ORDER
as medical malpractice, defamation of character, black-
mail, lost wages, assault charges on behalf of her son,
Linda Rawlings appeals a district court order dismiss-
and filing false incident reports. She sought injunctive
ing her civil rights action filed pursuant to 42 U.S.C.
and monetary relief.
§ 1983. The defendants have filed various motions to
dismiss. Rawlings has filed a motion for a restraining
On July 8, 1992, the district court dismissed the [*3]
allegations on behalf of Rawlings's son. The court held
order, and the defendants have responded. Rawlings
has also filed a motion to supplement the record and
that a parent who is not an attorney could not repre-
sent the interests of her minor children. See Meeker
a motion to produce records. The defendants also re-
V. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (per
quest attorney's fees for the expense of responding to
curiam); Lawson V. Edwardsburg Public School, 751
Rawlings's motion to supplement the record. The case
F. Supp. 1257, 1258 (W.D. Mich. 1990); Pierce V.
Page 14
1994 U.S. App. LEXIS 9703, *3
Stinson, 493 F. Supp. 609, 611 (E.D. Tenn. 1979). The
the district court that Rawlings cannot represent the in-
court also ordered Rawlings to amend her complaint to
terests of her minor son in this case. The district court
allege facts sufficient to state a legal theory of recovery
ruled that a parent who is not an attorney could [*5]
cognizable under § 1983.
not represent the interests of her minor children. We
Rawlings filed an amended complaint on July 24,
note that a parent, if appointed next friend, could sue
1992, and the defendants filed various motions to dis-
on her minor child's behalf. See Fed. R. Civ. P. 17(c).
However, there is no indication from the record that
miss. In separate memorandum opinions and orders en-
tered December 21, 1992, and February 3, 1993, the
Rawlings was appointed next friend in this case.
district court dismissed the complaint against the vari-
Upon review, we conclude that the dismissal of
ous defendants for failure to state a claim upon which
Rawlings's suit was proper as Rawlings undoubtedly can
relief may be granted.
prove no set of facts in support of her claims that would
Initially, we address the defendants' motions to dis-
entitle her to relief. Meador V. Cabinet for Human
miss Rawlings's appeal. First, contrary to the defen-
Resources, 902 F.2d 474, 475 (6th Cir.), cert. denied,
498 U.S. 867, 112 L. Ed. 2d 145, 111 S. Ct. 182
dants' claim, Rawlings properly perfected an appeal. A
(1990); Dana Corp. V. Blue Cross & Blue Shield Mut.,
mistake in designating the judgment appealed from is not
always fatal as long as the intent to appeal from [*4] a
900 F.2d 882, 885 (6th Cir. 1990). A pleading which
sets forth a claim for relief shall contain "a short and
specific ruling can be fairly inferred by probing the no-
tice. Sanabria V. United States, 437 U.S. 54, 57 n.21,
plain statement of the claim showing that the pleader is
57 L. Ed. 2d 43, 98 S. Ct. 2170 (1978). In this case,
entitled to relief." Fed. R. Civ. P. 8(a)(2). While the
it can be fairly inferred that Rawlings intended to ap-
Federal Rules of Civil Procedure do not require a plain-
peal the decision of the district court dismissing her case
tiff to set out in detail the facts underlying the claim, the
against all defendants. Accordingly, Rawlings properly
plaintiff must provide sufficient allegations to give the
perfected an appeal from the district court's decision in
defendants fair notice of the claims against [*6] them.
its entirety.
See Leatherman V. Tarrant County Narcotics, 122L. Ed.
2d 517, 113 S. Ct. 1160, 1163 (1993). Here, Rawlings
Second, contrary to the defendants' claim, the Sixth
failed to set forth any allegations in her complaints to
Circuit docket sheet reflects that Rawlings did file a mo-
support a legal theory of recovery cognizable under §
tion to proceed in forma pauperis in the Sixth Circuit
1983.
on March 1, 1993, well before the March 22, 1993,
Accordingly, the motions to dismiss are denied, the
deadline. The motion to proceed in forma pauperis was
motion for injunctive relief is denied, the request for
denied in an order filed May 10, 1993, and Rawlings
paid the filing fee on May 14, 1993. Thus, the defen-
attorney's fees is denied, the motion to supplement the
dants' claim on this point must fail.
record is denied, the motion to produce records is de-
nied, and the district court's order dismissing Rawlings's
We will only address the dismissal of Rawlings's
six complaints is affirmed. Rule 9(b)(3), Rules of the
claims. We need not address the purported claims as-
Sixth Circuit.
serted on Rawlings's son's behalf because we agree with
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"ocrText": "FOIA Number:\n2007-0561-F\nFOIA\nMARKER\nThis is not a textual record. This is used as an\nadministrative marker by the William J. Clinton\nPresidential Library Staff.\nCollection/Record Group:\nClinton Presidential Records\nSubgroup/Office of Origin:\nCounsel Office\nSeries/Staff Member:\nSarah Wilson\nSubseries:\nOA/ID Number:\n14689\nFolderID:\nFolder Title:\n[William] Haynes (MD. [Middle District of] Tenn. [Tennessee]) Articles [3]\nStack:\nRow:\nSection:\nShelf:\nPosition:\nS\n114\n7\n11\n3\nWithdrawal/Redaction Sheet\nClinton Library\nDOCUMENT NO.\nSUBJECT/TITLE\nDATE\nRESTRICTION\nAND TYPE\n001. memo\nU.S. Magistrate Judge William J. Haynes, Jr.; RE: DOB and POB\n05/21/1998\nb(6)\n[partial] (1 page)\n002. memo\nU.S. Magistrate Judge William J. Haynes, Jr.; RE: DOB and POB\n05/21/1998\nb(6)\n[partial] (1 page)\n003. memo\nU.S. Magistrate Judge William J. Haynes, Jr.; RE: DOB and POB\n05/21/1998\nb(6)\n[partial] (1 page)\nCOLLECTION:\nClinton Presidential Records\nCounsel Office\nSarah Wilson\nOA/Box Number: 14689\nFOLDER TITLE:\n[William] Haynes (MD [Middle District of] Tenn. [Tennessee]) Articles [3]\n2007-0561-F\ndb2898\nRESTRICTION CODES\nPresidential Records Act - [44 U.S.C. 2204(a)]\nFreedom of Information Act - 15 U.S.C. 552(b)]\nPI National Security Classified Information [(a)(1) of the PRAJ\nb(1) National security classified information |(b)(1) of the FOIA]\nP2 Relating to the appointment to Federal office |(a)(2) of the PRA\nb(2) Release would disclose internal personnel rules and practices of\nP3 Release would violate a Federal statute [(a)(3) of the PRAJ\nan agency [(b)(2) of the FOIA]\nP4 Release would disclose trade secrets or confidential commercial or\nb(3) Release would violate a Federal statute [(b)(3) of the FOIA|\nfinancial information |(a)(4) of the PRAJ\nb(4) Release would disclose trade secrets or confidential or financial\nP5 Release would disclose confidential advice between the President\ninformation |(b)(4) of the FOIAJ\nand his advisors, or between such advisors [a)(5) of the PRAJ\nb(6) Release would constitute a clearly unwarranted invasion of\nP6 Release would constitute a clearly unwarranted invasion of\npersonal privacy |(b)(6) of the FOIA]\npersonal privacy |(a)(6) of the PRA]\nb(7) Release would disclose information compiled for law enforcement\npurposes |(b)(7) of the FOIA]\nC. Closed in accordance with restrictions contained in donor's deed\nb(8) Release would disclose information concerning the regulation of\nof gift.\nfinancial institutions [(b)(8) of the FOIA]\nPRM. Personal record misfile defined in accordance with 44 U.S.C.\nb(9) Release would disclose geological or geophysical information\n2201(3).\nconcerning wells |(b)(9) of the FOIA]\nRR. Document will be reviewed upon request.\nWithdrawal/Redaction Marker\nClinton Library\nDOCUMENT NO.\nSUBJECT/TITLE\nDATE\nRESTRICTION\nAND TYPE\n001. memo\nU.S. Magistrate Judge William J. Haynes, Jr.; RE: DOB and POB\n05/21/1998\nb(6)\n[partial] (1 page)\nCOLLECTION:\nClinton Presidential Records\nCounsel Office\nSarah Wilson\nOA/Box Number: 14689\nFOLDER TITLE:\n[William] Haynes (MD [Middle District of] Tenn. [Tennessee]) Articles [3]\n2007-0561-F\ndb2898\nRESTRICTION CODES\nPresidential Records Act - [44 U.S.C. 2204(a)]\nFreedom of Information Act - 15 U.S.C. 552(b)]\nP1 National Security Classified Information [(a)(1) of the PRA]\nb(1) National security classified information [(b)(1) of the FOIA]\nP2 Relating to the appointment to Federal office [(a)(2) of the PRA]\nb(2) Release would disclose internal personnel rules and practices of\nP3 Release would violate a Federal statute |(a)(3) of the PRAJ\nan agency [(b)(2) of the FOIA]\nP4 Release would disclose trade secrets or confidential commercial or\nb(3) Release would violate a Federal statute |(b)(3) of the FOIA]\nfinancial information [(a)(4) of the PRA]\nb(4) Release would disclose trade secrets or confidential or financial\nP5 Release would disclose confidential advice between the President\ninformation |(b)(4) of the FOIA|\nand his advisors, or between such advisors [a)(5) of the PRAJ\nb(6) Release would constitute a clearly unwarranted invasion of\nP6 Release would constitute a clearly unwarranted invasion of\npersonal privacy |(b)(6) of the FOIA]\npersonal privacy [(a)(6) of the PRA]\nb(7) Release would disclose information compiled for law enforcement\npurposes [(b)(7) of the FOIA]\nC. Closed in accordance with restrictions contained in donor's deed\nb(8) Release would disclose information concerning the regulation of\nof gift.\nfinancial institutions |(b)(8) of the FOIA]\nPRM. Personal record misfile defined in accordance with 44 U.S.C.\nb(9) Release would disclose geological or geophysical information\n2201(3).\nconcerning wells |(b)(9) of the FOIA]\nRR. Document will be reviewed upon request.\nMay 21, 1998\nMEMORANDUM\nU.S. MAGISTRATE JUDGE WILLIAM J. HAYNES, JR.\nJUDICIAL CANDIDATE, MIDDLE DISTRICT OF TENNESSEE\nI.\nBACKGROUND\nThe federal District Court for the Middle District consists of only white male judges.\nPress reports have suggested that the next nomination might \"diversify\" the bench. Magistrate\nJudge Haynes, an African-American, has indicated his interest in this position. The \"Napier-\nLooby Bar Association,\" which includes many African-American attorneys, has advocated\nHaynes' possible nomination. Two women, federal Bankruptcy Judge Trauger and state Circuit\nCourt Judge Cornelia Clark (who coordinated part of Vice-President Gore's 1988 presidential\ncampaign), are also under consideration. State Circuit Judge John Maddux, a former\nadministrative assistant to Gore, is also a candidate.\nII.\nBIOGRAPHICAL INFORMATION\nU.S. Magistrate Judge William J. (Joe) Haynes, Jr., is a forty-eight year old African-\nAmerican man.\n(b)(6)\nHaynes received a Bachelor of Arts\n[001]\nfrom the College of St. Thomas Aquinas in 1970 and a Juris Doctor from Vanderbilt University\nSchool of Law in 1973. Haynes has been a Magistrate Judge for the Middle District of\nTennessee since his appointment in December of 1984; he was reappointed in 1992 to another\neight-year term. From the time he graduated from law school until he became a magistrate,\nHaynes worked in the Tennessee Attorney General's Office.¹ Before his appointment to the\nMiddle District, he served as the Special Deputy Assistant Attorney General for Litigation in\n1984. From 1978 through part of 1984, he was the Deputy Attorney General of the Antitrust and\nConsumer Protection Division. He also served briefly in 1979 as a District Attorney Pro Tem for\nShelby County. From 1977 to 1978, Haynes was a Senior Assistant Attorney General and from\n1973 until 1977, he was an Assistant Attorney General for the state of Tennessee.\nWhile serving as a magistrate, Haynes has been a Lecturer at Vanderbilt University\nSchool of Law since 1987. From 1986 to 1990, he was also an Instructor at Southeastern\nParalegal Institute. Additionally, Haynes was a \"Master Bencher\" of the local Inn of Court from\n1990 to 1992. He was Vice-Chair of the ABA Committee on State Antitrust Enforcement from\n1989 to 1990. In 1989 he also served on the Advisory Board of the Corporate Practice Series of\nBNA. Also, since 1992, he has served on the state bar association's Commission on Women and\nMinorities in the Profession.\nFrom 1983 to 1984, he was an assistant to the Honorable William M. Leech, Jr., a former\n1\nThe local Practice & Procedure Manual of Judges and Magistrate Judges indicates\nthat Haynes had a \"brief stint\" in private practice in 1984 before his appointment but the name of\nthe firm or the nature of that practice is not apparent from the public records check.\nClinton Library Photocopy\nTennessee Attorney General and the Chair of the Antitrust Committee of the National\nAssociation of Attorneys General (NAAG). During that period, he also served on the Hearing\nCommittee of the Tennessee Board of Professional Responsibility. From 1982 to 1984, Haynes\nwas a member of the Antitrust Litigation and Training Committees of NAAG. In 1983, he was\non the Board of Directors of Napier-Looby Bar Association.\nHaynes was also involved in many community organizations before he became a\nmagistrate. For example, he was a member of the Tennessee Historical Society and the Rotary\nClub of Nashville. He served on the Board of Directors of the Cumberland Museum and Science\nCenter (1980 to 1984), Children's House (1982 to 1984), and Opportunity House (1981 to 1983).\nIn 1990, Haynes was presented with a Black History Month Award by the Middle\nTennessee Federal Executives Association. In 1973, he was the recipient of the Bennet Douglas\nBell Award from Vanderbilt University. He was also named Teenager of the Year by the\nCatholic Youth Organization in 1966.\nIII.\nNOTEWORTHY CASES AND OTHER PUBLICITY\nA.\nWritings & Publicity\nHaynes has a national reputation for his contributions to antitrust law. He has been a\nspeaker or a panelist at numerous local, state and federal bar association meetings. The records\ncheck, however, did not locate the text of any of those speeches. Haynes has also written about\nantitrust law. In 1993, the Practicing Law Institute published his article \"Will the Answers Be\nDifferent Under State Antitrust Laws?\" In that article, he examines nearly every aspect of state\nantitrust enforcement. In 1991, he was a contributing author to the second edition of Legal\nAspects of Buying and Selling. In 1989, his book State Antitrust Laws was published by BNA.\nAccording to a summary of that book, Haynes argued that state courts are likely to handle an\nincreased number of antitrust cases because federal enforcement policies are more controversial\nand the federal case law is increasingly unclear. This Office has not yet examined the book.\nDespite Haynes lengthy public service as a high-ranking state's attorney, he has rarely spoken to\nthe press. This apparently occurred on only one occasion, involving a bankruptcy case related to\nthe World's Fair, he told a reporter that the state had filed suit in 1983 against a derelict\nreservation company in order \"to protect the integrity of commerce in Tennessee.\"\nB.\nCases as a Magistrate Judge\nWhile Haynes has been publishing his views on antitrust law, little of his work during his\nfourteen years as a Magistrate Judge is available through a public records check. According to\nthat limited information, Haynes has had the opportunity to write a Report and Recommendation\non an antitrust issue in only one reported case. In Ford V. Stroup, No. 96-5455, 1997 WL\n201560 (6th Cir. Apr. 23, 1997) (unpublished), the Sixth Circuit affirmed his decision to grant\nsummary judgment to the defendant on plaintiff's complaint of that the defendant physician and\nhis oncology practice group engaged in monopolization.\nThe dearth of reported cases is likely due to the fact that Haynes and the other Magistrate\nJudge primarily hold hearings on procedural matters and they handle mostly preliminary matters\nin about 65% of the cases filed in the Middle District. As a Magistrate Judge, Haynes reportedly\nhandles some civil trials and misdemeanor criminal trials, as well as most preliminary criminal\nmatters such as bond hearings. Indeed, less than two dozen reported cases refer to Haynes' work\nas a magistrate and these relate to adoption of his R & R's or to review by the Sixth Circuit of an\nadopted decision. These reported cases generally do not involve noteworthy or high-profile\nmatters but have involved a wide range of issues including social security benefits, Medicaid\nreimbursement, prisoners' civil rights suits, habeas cases, and contract disputes. In these\nreported cases, his R & R's are frequently adopted and are usually affirmed, if appealed. For\nexample, in a review of one of his habeas decisions, the Sixth Circuit complimented his \"detailed\nand well-reasoned opinion\" finding that the petitioner failed to show cause and prejudice for his\nfailure to raise all constitutional claims in previous petitions for habeas corpus relief. Arendall V.\nMorgan, No. 93-5860, 1994 WL 228270 (6th Cir. May 24, 1994) (unpublished).\nIn only three instances does the records check reveal that the Sixth Circuit reversed the\ndistrict court's adoption of his R & R. In one case, the Court of Appeals reversed the district\ncourt on the ground that Haynes improperly conditioned dismissal with prejudice on the payment\nof costs and fees. Tennessee Health Care Ass'n V, Commissioner, Tenn. Dep't of Health &\nHuman Servs., Nos. 91-5789 & 91-6220, 1992 WL 36217 (6th Cir. Feb. 26, 1992) (unpublished).\nThe Sixth Circuit found that the conditions imposed by Haynes were inconsistent with circuit\nprecedent for dismissals with prejudice under Fed. R. Civ. Proc. 41(a)(2). In another case, the\nSixth Circuit remanded a decision in which the district court had adopted Haynes' R & R\naffirming the denial of social security benefits by an administrative law judge (ALJ). Barlow V.\nSullivan, No. 90-5810, 1991 WL 29215 (6th Cir. Mar. 7, 1991). In that case, the circuit court\nfaulted the ALJ for failing to consider statements supporting plaintiff's disability claim. In Gant\nV. Dutton, No. 89-6039, 1991 WL 12 (6th Cir. 1991), the Sixth Circuit remanded a case in which\nHaynes issued an R & R finding that a warden's offer to remove a prisoner from administrative\nsegregation and to expunge related records rendered the petitioner's claim moot. The appellate\ncourt found that the offer did not moot the petitioner's claims because it imposed additional\nconditions that the prisoner found unacceptable.\nAdditionally, local newspapers reported on a few cases of Haynes that were not reported\nin the Westlaw® database. For example, in one sexual harassment case, Haynes is said to have\nawarded $50,000 and $10,000, respectively, to two former employees of Robert S. Biscan & Co.\nHaynes awarded the larger sum to a woman who was subjected to repeated sexually explicit\nremarks, jokes and comments by the company president and he awarded the smaller sum to a\nwoman who was subject to an \"isolated act of sexual harassment.\" In another significant case,\nHaynes recommended that the city be prevented from charging fees to companies that do not use\nthe government's incineration plant and instead haul their garbage out of the county. There is no\nindication of whether or not the R & R was adopted.\nC.\nCases for the Tennessee Attorney General's Office\nAs an Assistant Attorney General, Haynes was listed as one of many state attorneys\ncooperating in filing amici curiae briefs in four cases before the United States Supreme Court.\nAll four of those cases, which were decided between 1982 and 1984, involved antitrust issues.\nHaynes was also attorney of record in three cases before the United States Court of\nAppeals for the Sixth Circuit. He was on the brief with the state Attorney General in one of\nJames Earl Ray's habeas corpus petitions for relief from his conviction for assassinating Martin\nLuther King, Jr. In that case, the Sixth Circuit affirmed the District Court's denial of Ray's\npetition claiming ineffective assistance of counsel and challenging his guilty plea. Ray V. Rose,\n535 F.2d 966 (6th Cir. 1976). When Haynes was serving as Special Deputy Attorney General in\n1984, he was lead counsel and argued a case before the Sixth Circuit which involved the federal\ngovernment's appeal of a the District Court's order enjoining the Department of Transportation\nfrom offsetting FHA grants to the state with amounts the state had recovered from bid riggers on\nhighway projects. In Tennessee V. Dole, 749 F.2d 331 (1984), the Sixth Circuit reversed the\ninjunction and remanded the case. The third case in which Haynes submitted a brief to the Sixth\nCircuit involved a dismissal of a routine habeas corpus petition, which was affirmed on appeal.\nIn addition to his extensive work in antitrust law, Haynes is also known for his work\ndefending the state in a lawsuit to desegregate Tennessee's public colleges and universities.\nGeier V. Blanton, 427 F. Supp. 644 (M.D. Tenn. 1977), aff'd 597 F.2d 1078 (6th Cir. 1979). The\nUnited States Department of Justice had intervened on plaintiffs' behalf. This lengthy litigation\nwas initiated in 1968, and it culminated with a month-long evidentiary hearing in 1976. The\nDistrict Court recognized that defendants had made slow progress in the dismantling of a dual\nsystem of higher education in Tennessee and ordered the merger of the white and black colleges\ninto a single institution under a single governing board.\nHaynes was also attorney of record in twenty-four reported state appellate cases. It\nappears from these cases that in his first few years at the state Attorney General's Office, Haynes\nworked on numerous criminal appeals. Starting in 1977, most of Haynes' reported cases involve\ncivil matters, including contract claims, tax cases, discrimination suits, and antitrust issues.\nHaynes was also counsel of record in twelve cases before the Supreme Court of Tennessee.\nWithdrawal/Redaction Marker\nClinton Library\nDOCUMENT NO.\nSUBJECT/TITLE\nDATE\nRESTRICTION\nAND TYPE\n002. memo\nU.S. Magistrate Judge William J. Haynes, Jr.; RE: DOB and POB\n05/21/1998\nb(6)\n[partial] (1 page)\nCOLLECTION:\nClinton Presidential Records\nCounsel Office\nSarah Wilson\nOA/Box Number: 14689\nFOLDER TITLE:\n[William] Haynes (MD [Middle District of] Tenn. [Tennessee]) Articles [3]\n2007-0561-F\ndb2898\nRESTRICTION CODES\nPresidential Records Act - [44 U.S.C. 2204(a)]\nFreedom of Information Act - [5 U.S.C. 552(b)]\nP1 National Security Classified Information |(a)(1) of the PRA]\nb(1) National security classified information |(b)(1) of the FOIA]\nP2 Relating to the appointment to Federal office [(a)(2) of the PRAJ\nb(2) Release would disclose internal personnel rules and practices of\nP3 Release would violate a Federal statute [(a)(3) of the PRA]\nan agency ((b)(2) of the FOIA]\nP4 Release would disclose trade secrets or confidential commercial or\nb(3) Release would violate a Federal statute [(b)(3) of the FOIA]\nfinancial information [(a)(4) of the PRA]\nb(4) Release would disclose trade secrets or confidential or financial\nP5 Release would disclose confidential advice between the President\ninformation [(b)(4) of the FOIA]\nand his advisors, or between such advisors |a)(5) of the PRA|\nb(6) Release would constitute a clearly unwarranted invasion of\nP6 Release would constitute a clearly unwarranted invasion of\npersonal privacy [(b)(6) of the FOIA]\npersonal privacy [(a)(6) of the PRA\nb(7) Release would disclose information compiled for law enforcement\npurposes |(b)(7) of the FOIA]\nC. Closed in accordance with restrictions contained in donor's deed\nb(8) Release would disclose information concerning the regulation of\nof gift.\nfinancial institutions [(b)(8) of the FOIA]\nPRM. Personal record misfile defined in accordance with 44 U.S.C.\nb(9) Release would disclose geological or geophysical information\n2201(3).\nconcerning wells [(b)(9) of the FOIA]\nRR. Document will be reviewed upon request.\nMay 21, 1998\nMEMORANDUM\nU.S. MAGISTRATE JUDGE WILLIAM J. HAYNES, JR.\nJUDICIAL CANDIDATE, MIDDLE DISTRICT OF TENNESSEE\nI.\nBACKGROUND\nThe federal District Court for the Middle District consists of only white male judges.\nPress reports have suggested that the next nomination might \"diversify\" the bench. Magistrate\nJudge Haynes, an African-American, has indicated his interest in this position. The \"Napier-\nLooby Bar Association,\" which includes many African-American attorneys, has advocated\nHaynes' possible nomination. Two women, federal Bankruptcy Judge Trauger and state Circuit\nCourt Judge Cornelia Clark (who coordinated part of Vice-President Gore's 1988 presidential\ncampaign), are also under consideration. State Circuit Judge John Maddux, a former\nadministrative assistant to Gore, is also a candidate.\nII.\nBIOGRAPHICAL INFORMATION\nU.S. Magistrate Judge William J. (Joe) Haynes, Jr., is a forty-eight year old African-\nAmerican man.\n(b)(6)\nHaynes received a Bachelor of Arts\n[002]\nfrom the College of St. Thomas Aquinas in 1970 and a Juris Doctor from Vanderbilt University\nSchool of Law in 1973. Haynes has been a Magistrate Judge for the Middle District of\nTennessee since his appointment in December of 1984; he was reappointed in 1992 to another\neight-year term. From the time he graduated from law school until he became a magistrate,\nHaynes worked in the Tennessee Attorney General's Office.¹ Before his appointment to the\nMiddle District, he served as the Special Deputy Assistant Attorney General for Litigation in\n1984. From 1978 through part of 1984, he was the Deputy Attorney General of the Antitrust and\nConsumer Protection Division. He also served briefly in 1979 as a District Attorney Pro Tem for\nShelby County. From 1977 to 1978, Haynes was a Senior Assistant Attorney General and from\n1973 until 1977, he was an Assistant Attorney General for the state of Tennessee.\nWhile serving as a magistrate, Haynes has been a Lecturer at Vanderbilt University\nSchool of Law since 1987. From 1986 to 1990, he was also an Instructor at Southeastern\nParalegal Institute. Additionally, Haynes was a \"Master Bencher\" of the local Inn of Court from\n1990 to 1992. He was Vice-Chair of the ABA Committee on State Antitrust Enforcement from\n1989 to 1990. In 1989 he also served on the Advisory Board of the Corporate Practice Series of\nBNA. Also, since 1992, he has served on the state bar association's Commission on Women and\nMinorities in the Profession.\nFrom 1983 to 1984, he was an assistant to the Honorable William M. Leech, Jr., a former\n1\nThe local Practice & Procedure Manual of Judges and Magistrate Judges indicates\nthat Haynes had a \"brief stint\" in private practice in 1984 before his appointment but the name of\nthe firm or the nature of that practice is not apparent from the public records check.\nClinton Library Photocopy\nTennessee Attorney General and the Chair of the Antitrust Committee of the National\nAssociation of Attorneys General (NAAG). During that period, he also served on the Hearing\nCommittee of the Tennessee Board of Professional Responsibility. From 1982 to 1984, Haynes\nwas a member of the Antitrust Litigation and Training Committees of NAAG. In 1983, he was\non the Board of Directors of Napier-Looby Bar Association.\nHaynes was also involved in many community organizations before he became a\nmagistrate. For example, he was a member of the Tennessee Historical Society and the Rotary\nClub of Nashville. He served on the Board of Directors of the Cumberland Museum and Science\nCenter (1980 to 1984), Children's House (1982 to 1984), and Opportunity House (1981 to 1983).\nIn 1990, Haynes was presented with a Black History Month Award by the Middle\nTennessee Federal Executives Association. In 1973, he was the recipient of the Bennet Douglas\nBell Award from Vanderbilt University. He was also named Teenager of the Year by the\nCatholic Youth Organization in 1966.\nIII.\nNOTEWORTHY CASES AND OTHER PUBLICITY\nA.\nWritings & Publicity\nHaynes has a national reputation for his contributions to antitrust law. He has been a\nspeaker or a panelist at numerous local, state and federal bar association meetings. The records\ncheck, however, did not locate the text of any of those speeches. Haynes has also written about\nantitrust law. In 1993, the Practicing Law Institute published his article \"Will the Answers Be\nDifferent Under State Antitrust Laws?\" In that article, he examines nearly every aspect of state\nantitrust enforcement. In 1991, he was a contributing author to the second edition of Legal\nAspects of Buying and Selling. In 1989, his book State Antitrust Laws was published by BNA.\nAccording to a summary of that book, Haynes argued that state courts are likely to handle an\nincreased number of antitrust cases because federal enforcement policies are more controversial\nand the federal case law is increasingly unclear. This Office has not yet examined the book.\nDespite Haynes lengthy public service as a high-ranking state's attorney, he has rarely spoken to\nthe press. This apparently occurred on only one occasion, involving a bankruptcy case related to\nthe World's Fair, he told a reporter that the state had filed suit in 1983 against a derelict\nreservation company in order \"to protect the integrity of commerce in Tennessee.\"\nB.\nCases as a Magistrate Judge\nWhile Haynes has been publishing his views on antitrust law, little of his work during his\nfourteen years as a Magistrate Judge is available through a public records check. According to\nthat limited information, Haynes has had the opportunity to write a Report and Recommendation\non an antitrust issue in only one reported case. In Ford V. Stroup, No. 96-5455, 1997 WL\n201560 (6th Cir. Apr. 23, 1997) (unpublished), the Sixth Circuit affirmed his decision to grant\nsummary judgment to the defendant on plaintiff's complaint of that the defendant physician and\nhis oncology practice group engaged in monopolization.\nThe dearth of reported cases is likely due to the fact that Haynes and the other Magistrate\nJudge primarily hold hearings on procedural matters and they handle mostly preliminary matters\nin about 65% of the cases filed in the Middle District. As a Magistrate Judge, Haynes reportedly\nhandles some civil trials and misdemeanor criminal trials, as well as most preliminary criminal\nmatters such as bond hearings. Indeed, less than two dozen reported cases refer to Haynes' work\nas a magistrate and these relate to adoption of his R & R's or to review by the Sixth Circuit of an\nadopted decision. These reported cases generally do not involve noteworthy or high-profile\nmatters but have involved a wide range of issues including social security benefits, Medicaid\nreimbursement, prisoners' civil rights suits, habeas cases, and contract disputes. In these\nreported cases, his R & R's are frequently adopted and are usually affirmed, if appealed. For\nexample, in a review of one of his habeas decisions, the Sixth Circuit complimented his \"detailed\nand well-reasoned opinion\" finding that the petitioner failed to show cause and prejudice for his\nfailure to raise all constitutional claims in previous petitions for habeas corpus relief. Arendall V.\nMorgan, No. 93-5860, 1994 WL 228270 (6th Cir. May 24, 1994) (unpublished).\nIn only three instances does the records check reveal that the Sixth Circuit reversed the\ndistrict court's adoption of his R & R. In one case, the Court of Appeals reversed the district\ncourt on the ground that Haynes improperly conditioned dismissal with prejudice on the payment\nof costs and fees. Tennessee Health Care Ass'n V, Commissioner, Tenn. Dep't of Health &\nHuman Servs., Nos. 91-5789 & 91-6220, 1992 WL 36217 (6th Cir. Feb. 26, 1992) (unpublished).\nThe Sixth Circuit found that the conditions imposed by Haynes were inconsistent with circuit\nprecedent for dismissals with prejudice under Fed. R. Civ. Proc. 41(a)(2). In another case, the\nSixth Circuit remanded a decision in which the district court had adopted Haynes' R & R\naffirming the denial of social security benefits by an administrative law judge (ALJ). Barlow V.\nSullivan, No. 90-5810, 1991 WL 29215 (6th Cir. Mar. 7, 1991). In that case, the circuit court\nfaulted the ALJ for failing to consider statements supporting plaintiff's disability claim. In Gant\nV, Dutton, No. 89-6039, 1991 WL 12 (6th Cir. 1991), the Sixth Circuit remanded a case in which\nHaynes issued an R & R finding that a warden's offer to remove a prisoner from administrative\nsegregation and to expunge related records rendered the petitioner's claim moot. The appellate\ncourt found that the offer did not moot the petitioner's claims because it imposed additional\nconditions that the prisoner found unacceptable.\nAdditionally, local newspapers reported on a few cases of Haynes that were not reported\nin the Westlaw database. For example, in one sexual harassment case, Haynes is said to have\nawarded $50,000 and $10,000, respectively, to two former employees of Robert S. Biscan & Co.\nHaynes awarded the larger sum to a woman who was subjected to repeated sexually explicit\nremarks, jokes and comments by the company president and he awarded the smaller sum to a\nwoman who was subject to an \"isolated act of sexual harassment.\" In another significant case,\nHaynes recommended that the city be prevented from charging fees to companies that do not use\nthe government's incineration plant and instead haul their garbage out of the county. There is no\nindication of whether or not the R & R was adopted.\nC.\nCases for the Tennessee Attorney General's Office\nAs an Assistant Attorney General, Haynes was listed as one of many state attorneys\ncooperating in filing amici curiae briefs in four cases before the United States Supreme Court.\nAll four of those cases, which were decided between 1982 and 1984, involved antitrust issues.\nHaynes was also attorney of record in three cases before the United States Court of\nAppeals for the Sixth Circuit. He was on the brief with the state Attorney General in one of\nJames Earl Ray's habeas corpus petitions for relief from his conviction for assassinating Martin\nLuther King, Jr. In that case, the Sixth Circuit affirmed the District Court's denial of Ray's\npetition claiming ineffective assistance of counsel and challenging his guilty plea. Ray V. Rose,\n535 F.2d 966 (6th Cir. 1976). When Haynes was serving as Special Deputy Attorney General in\n1984, he was lead counsel and argued a case before the Sixth Circuit which involved the federal\ngovernment's appeal of a the District Court's order enjoining the Department of Transportation\nfrom offsetting FHA grants to the state with amounts the state had recovered from bid riggers on\nhighway projects. In Tennessee V. Dole, 749 F.2d 331 (1984), the Sixth Circuit reversed the\ninjunction and remanded the case. The third case in which Haynes submitted a brief to the Sixth\nCircuit involved a dismissal of a routine habeas corpus petition, which was affirmed on appeal.\nIn addition to his extensive work in antitrust law, Haynes is also known for his work\ndefending the state in a lawsuit to desegregate Tennessee's public colleges and universities.\nGeier V. Blanton, 427 F. Supp. 644 (M.D. Tenn. 1977), aff'd 597 F.2d 1078 (6th Cir. 1979). The\nUnited States Department of Justice had intervened on plaintiffs' behalf. This lengthy litigation\nwas initiated in 1968, and it culminated with a month-long evidentiary hearing in 1976. The\nDistrict Court recognized that defendants had made slow progress in the dismantling of a dual\nsystem of higher education in Tennessee and ordered the merger of the white and black colleges\ninto a single institution under a single governing board.\nHaynes was also attorney of record in twenty-four reported state appellate cases. It\nappears from these cases that in his first few years at the state Attorney General's Office, Haynes\nworked on numerous criminal appeals. Starting in 1977, most of Haynes' reported cases involve\ncivil matters, including contract claims, tax cases, discrimination suits, and antitrust issues.\nHaynes was also counsel of record in twelve cases before the Supreme Court of Tennessee.\nDIDNOT\n(JUDGES (HAYNES) ) OR ( (WILLIAM OR BILL) /2 HAYNES)\nPRINT\nYour search request has found 2,684 CASES through Level 1.\nTo DISPLAY these CASES press either the KWIC, FULL, CITE or SEGMTS key.\nTo MODIFY your search request, press the M key (for MODFY) and then the ENTER\nkey.\nFor further explanation, press the H key (for HELP) and then the ENTER key.\nWithdrawal/Redaction Marker\nClinton Library\nDOCUMENT NO.\nSUBJECT/TITLE\nDATE\nRESTRICTION\nAND TYPE\n003. memo\nU.S. Magistrate Judge William J. Haynes, Jr.; RE: DOB and POB\n05/21/1998\nb(6)\n[partial] (1 page)\nCOLLECTION:\nClinton Presidential Records\nCounsel Office\nSarah Wilson\nOA/Box Number: 14689\nFOLDER TITLE:\n[William] Haynes (MD [Middle District of] Tenn. [Tennessee]) Articles [3]\n2007-0561-F\ndb2898\nRESTRICTION CODES\nPresidential Records Act - [44 U.S.C. 2204(a)]\nFreedom of Information Act - [5 U.S.C. 552(b)]\nPI National Security Classified Information [(a)(1) of the PRA]\nb(1) National security classified information [(b)(1) of the FOIA]\nP2 Relating to the appointment to Federal office [(a)(2) of the PRA]\nb(2) Release would disclose internal personnel rules and practices of\nP3 Release would violate a Federal statute [(a)(3) of the PRAJ\nan agency [(b)(2) of the FOIA]\nP4 Release would disclose trade secrets or confidential commercial or\nb(3) Release would violate a Federal statute [(b)(3) of the FOIA]\nfinancial information [(a)(4) of the PRA]\nb(4) Release would disclose trade secrets or confidential or financial\nP5 Release would disclose confidential advice between the President\ninformation [(b)(4) of the FOIA]\nand his advisors, or between such advisors [a)(5) of the PRA]\nb(6) Release would constitute a clearly unwarranted invasion of\nP6 Release would constitute a clearly unwarranted invasion of\npersonal privacy [(b)(6) of the FOIA]\npersonal privacy [(a)(6) of the PRA|\nb(7) Release would disclose information compiled for law enforcement\npurposes |(b)(7) of the FOIA]\nC. Closed in accordance with restrictions contained in donor's deed\nb(8) Release would disclose information concerning the regulation of\nof gift.\nfinancial institutions |(b)(8) of the FOIA]\nPRM. Personal record misfile defined in accordance with 44 U.S.C.\nb(9) Release would disclose geological or geophysical information\n2201(3).\nconcerning wells |(b)(9) of the FOIA]\nRR. Document will be reviewed upon request.\nGREG COPY\nMay 21, 1998\nMEMORANDUM\nU.S. MAGISTRATE JUDGE WILLIAM J. HAYNES, JR.\nJUDICIAL CANDIDATE, MIDDLE DISTRICT OF TENNESSEE\nI.\nBACKGROUND\nWITE\nThe federal District Court for the Middle District consists of only white male judges.\nPress reports have suggested that the next nomination might \"diversify\" the bench. Magistrate\nJudge Haynes, an African-American, has indicated his interest in this position. The \"Napier-\nLooby Bar Association,\" which includes many African-American attorneys, has advocated\nHaynes' possible nomination. Two women, federal Bankruptcy Judge Trauger and state Circuit\nCourt Judge Cornelia Clark (who coordinated part of Vice-President Gore's 1988 presidential\ncampaign), are also under consideration. State Circuit Judge John Maddux, a former\nadministrative assistant to Gore, is also a candidate.\nII.\nBIOGRAPHICAL INFORMATION\nU.S. Magistrate Judge William J. (Joe) Haynes, Jr., is a forty-eight year old African-\nAmerican man.\n(b)(6)\nHaynes received a Bachelor of Arts [003]\nfrom the College of St. Thomas Aquinas in 1970 and a Juris Doctor from Vanderbilt University\nSchool of Law in 1973. Haynes has been a Magistrate Judge for the Middle District of\nTennessee since his appointment in December of 1984; he was reappointed in 1992 to another\neight-year term. From the time he graduated from law school until he became a magistrate,\nHaynes worked in the Tennessee Attorney General's Office. Before his appointment to the\nMiddle District, he served as the Special Deputy Assistant Attorney General for Litigation in\n1984. From 1978 through part of 1984, he was the Deputy Attorney General of the Antitrust and\nConsumer Protection Division. He also served briefly in 1979 as a District Attorney Pro Tem for\nShelby County. From 1977 to 1978, Haynes was a Senior Assistant Attorney General and from\n1973 until 1977, he was an Assistant Attorney General for the state of Tennessee.\nWhile serving as a magistrate, Haynes has been a Lecturer at Vanderbilt University\nSchool of Law since 1987. From 1986 to 1990, he was also an Instructor at Southeastern\nParalegal Institute. Additionally, Haynes was a \"Master Bencher\" of the local Inn of Court from\n1990 to 1992. He was Vice-Chair of the ABA Committee on State Antitrust Enforcement from\n1989 to 1990. In 1989 he also served on the Advisory Board of the Corporate Practice Series of\nBNA. Also, since 1992, he has served on the state bar association's Commission on Women and\nMinorities in the Profession.\nFrom 1983 to 1984, he was an assistant to the Honorable William M. Leech, Jr., a former\n1\nThe local Practice & Procedure Manual of Judges and Magistrate Judges indicates\nthat Haynes had a \"brief stint\" in private practice in 1984 before his appointment but the name of\nthe firm or the nature of that practice is not apparent from the public records check.\nClinton Library Photocopy\nTennessee Attorney General and the Chair of the Antitrust Committee of the National\nAssociation of Attorneys General (NAAG). During that period, he also served on the Hearing\nCommittee of the Tennessee Board of Professional Responsibility. From 1982 to 1984, Haynes\nwas a member of the Antitrust Litigation and Training Committees of NAAG. In 1983, he was\non the Board of Directors of Napier-Looby Bar Association.\nHaynes was also involved in many community organizations before he became a\nmagistrate. For example, he was a member of the Tennessee Historical Society and the Rotary\nClub of Nashville. He served on the Board of Directors of the Cumberland Museum and Science\nCenter (1980 to 1984), Children's House (1982 to 1984), and Opportunity House (1981 to 1983).\nIn 1990, Haynes was presented with a Black History Month Award by the Middle\nTennessee Federal Executives Association. In 1973, he was the recipient of the Bennet Douglas\nBell Award from Vanderbilt University. He was also named Teenager of the Year by the\nCatholic Youth Organization in 1966.\nIII.\nNOTEWORTHY CASES AND OTHER PUBLICITY\nA.\nWritings & Publicity\nHaynes has a national reputation for his contributions to antitrust law. He has been a\nspeaker or a panelist at numerous local, state and federal bar association meetings. The records\ncheck, however, did not locate the text of any of those speeches. Haynes has also written about\nantitrust law. In 1993, the Practicing Law Institute published his article \"Will the Answers Be\nDifferent Under State Antitrust Laws?\" In that article, he examines nearly every aspect of state\nantitrust enforcement. In 1991, he was a contributing author to the second edition of Legal\nAspects of Buying and Selling. In 1989, his book State Antitrust Laws was published by BNA.\nAccording to a summary of that book, Haynes argued that state courts are likely to handle an\nincreased number of antitrust cases because federal enforcement policies are more controversial\nand the federal case law is increasingly unclear. This Office has not yet examined the book.\nDespite Haynes lengthy public service as a high-ranking state's attorney, he has rarely spoken to\nthe press. This apparently occurred on only one occasion, involving a bankruptcy case related to\nthe World's Fair, he told a reporter that the state had filed suit in 1983 against a derelict\nreservation company in order \"to protect the integrity of commerce in Tennessee.\"\nB.\nCases as a Magistrate Judge\nWhile Haynes has been publishing his views on antitrust law, little of his work during his\nfourteen years as a Magistrate Judge is available through a public records check. According to\nthat limited information, Haynes has had the opportunity to write a Report and Recommendation\non an antitrust issue in only one reported case. In Ford V. Stroup, No. 96-5455, 1997 WL\n201560 (6th Cir. Apr. 23, 1997) (unpublished), the Sixth Circuit affirmed his decision to grant\nsummary judgment to the defendant on plaintiff's complaint of that the defendant physician and\nhis oncology practice group engaged in monopolization.\nThe dearth of reported cases is likely due to the fact that Haynes and the other Magistrate\nJudge primarily hold hearings on procedural matters and they handle mostly preliminary matters\nin about 65% of the cases filed in the Middle District. As a Magistrate Judge, Haynes reportedly\nhandles some civil trials and misdemeanor criminal trials, as well as most preliminary criminal\nmatters such as bond hearings. Indeed, less than two dozen reported cases refer to Haynes' work\nas a magistrate and these relate to adoption of his R & R's or to review by the Sixth Circuit of an\nadopted decision. These reported cases generally do not involve noteworthy or high-profile\nmatters but have involved a wide range of issues including social security benefits, Medicaid\nreimbursement, prisoners' civil rights suits, habeas cases, and contract disputes. In these\nreported cases, his R & R's are frequently adopted and are usually affirmed, if appealed. For\nexample, in a review of one of his habeas decisions, the Sixth Circuit complimented his \"detailed\nand well-reasoned opinion\" finding that the petitioner failed to show cause and prejudice for his\nfailure to raise all constitutional claims in previous petitions for habeas corpus relief. Arendall V.\nMorgan, No. 93-5860, 1994 WL 228270 (6th Cir. May 24, 1994) (unpublished).\nIn only three instances does the records check reveal that the Sixth Circuit reversed the\ndistrict court's adoption of his R & R. In one case, the Court of Appeals reversed the district\ncourt on the ground that Haynes improperly conditioned dismissal with prejudice on the payment\nof costs and fees. Tennessee Health Care Ass'n V. Commissioner, Tenn. Dep't of Health &\nHuman Servs., Nos. 91-5789 & 91-6220, 1992 WL 36217 (6th Cir. Feb. 26, 1992) (unpublished).\nThe Sixth Circuit found that the conditions imposed by Haynes were inconsistent with circuit\nprecedent for dismissals with prejudice under Fed. R. Civ. Proc. 41(a)(2). In another case, the\nSixth Circuit remanded a decision in which the district court had adopted Haynes' R & R\naffirming the denial of social security benefits by an administrative law judge (ALJ). Barlow V.\nSullivan, No. 90-5810, 1991 WL 29215 (6th Cir. Mar. 7, 1991). In that case, the circuit court\nfaulted the ALJ for failing to consider statements supporting plaintiff's disability claim. In Gant\nV. Dutton, No. 89-6039, 1991 WL 12 (6th Cir. 1991), the Sixth Circuit remanded a case in which\nHaynes issued an R & R finding that a warden's offer to remove a prisoner from administrative\nsegregation and to expunge related records rendered the petitioner's claim moot. The appellate\ncourt found that the offer did not moot the petitioner's claims because it imposed additional\nconditions that the prisoner found unacceptable.\nAdditionally, local newspapers reported on a few cases of Haynes that were not reported\nin the Westlaw database. For example, in one sexual harassment case, Haynes is said to have\nawarded $50,000 and $10,000, respectively, to two former employees of Robert S. Biscan & Co.\nHaynes awarded the larger sum to a woman who was subjected to repeated sexually explicit\nremarks, jokes and comments by the company president and he awarded the smaller sum to a\nwoman who was subject to an \"isolated act of sexual harassment.\" In another significant case,\nHaynes recommended that the city be prevented from charging fees to companies that do not use\nthe government's incineration plant and instead haul their garbage out of the county. There is no\nindication of whether or not the R & R was adopted.\nC.\nCases for the Tennessee Attorney General's Office\nAs an Assistant Attorney General, Haynes was listed as one of many state attorneys\ncooperating in filing amici curiae briefs in four cases before the United States Supreme Court.\nAll four of those cases, which were decided between 1982 and 1984, involved antitrust issues.\nHaynes was also attorney of record in three cases before the United States Court of\nAppeals for the Sixth Circuit. He was on the brief with the state Attorney General in one of\nJames Earl Ray's habeas corpus petitions for relief from his conviction for assassinating Martin\nLuther King, Jr. In that case, the Sixth Circuit affirmed the District Court's denial of Ray's\npetition claiming ineffective assistance of counsel and challenging his guilty plea. Ray V. Rose,\n535 F.2d 966 (6th Cir. 1976). When Haynes was serving as Special Deputy Attorney General in\n1984, he was lead counsel and argued a case before the Sixth Circuit which involved the federal\ngovernment's appeal of a the District Court's order enjoining the Department of Transportation\nfrom offsetting FHA grants to the state with amounts the state had recovered from bid riggers on\nhighway projects. In Tennessee V. Dole, 749 F.2d 331 (1984), the Sixth Circuit reversed the\ninjunction and remanded the case. The third case in which Haynes submitted a brief to the Sixth\nCircuit involved a dismissal of a routine habeas corpus petition, which was affirmed on appeal.\nIn addition to his extensive work in antitrust law, Haynes is also known for his work\ndefending the state in a lawsuit to desegregate Tennessee's public colleges and universities.\nGeier V. Blanton, 427 F. Supp. 644 (M.D. Tenn. 1977), aff'd 597 F.2d 1078 (6th Cir. 1979). The\nUnited States Department of Justice had intervened on plaintiffs' behalf. This lengthy litigation\nwas initiated in 1968, and it culminated with a month-long evidentiary hearing in 1976. The\nDistrict Court recognized that defendants had made slow progress in the dismantling of a dual\nsystem of higher education in Tennessee and ordered the merger of the white and black colleges\ninto a single institution under a single governing board.\nHaynes was also attorney of record in twenty-four reported state appellate cases. It\nappears from these cases that in his first few years at the state Attorney General's Office, Haynes\nworked on numerous criminal appeals. Starting in 1977, most of Haynes' reported cases involve\ncivil matters, including contract claims, tax cases, discrimination suits, and antitrust issues.\nHaynes was also counsel of record in twelve cases before the Supreme Court of Tennessee.\nPage 36\n16TH CASE of Level 1 printed in FULL format.\nGABB LEE MITCHELL, Plaintiff-Appellant, V. WILLIAM PARKER, ATTORNEY FOR THE\nDAVIDSON COUNTY POLICE DEPARTMENT; AND McGINNIS AUTO SALES,\nDefendants-Appellees\nNo. 86-5857\nCOMP. OPINION HAUMES\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\n!!\n810 F.2d 202; 1986 U.S. App. LEXIS 33792\nNovember 19, 1986, Filed\nNOTICE: [*1] NOT RECOMMENDED FOR FULL-\nThe appellant appeals pro se from the district court's\nTEXT PUBLICATION SIXTH CIRCUIT RULE 24\norder adopting the magistrate's report and recommen-\nLIMITS CITATION TO SPECIFIC SITUATIONS.\ndation dismissing his 42 U.S.C. § 1983 complaint. In\nPLEASE SEE RULE 24 BEFORE CITING IN A\nconjunction with this appeal appellant has filed a motion\nCOURT IN THE SIXTH CIRCUIT. IF CITED, A\nfor counsel. The case has been referred to a panel of the\nCOPY MUST BE SERVED ON OTHER PARTIES\nCourt pursuant to Rule 9(a), Rules of the Sixth Circuit.\nAND THE COURT. THIS NOTICE IS TO BE\nUpon examination of the briefs and the record, the panel\nPROMINENTLY DISPLAYED IF THIS DECISION IS\nagrees unanimously that oral argument is not needed.\nREPRODUCED.\nRule 34(a), Federal Rules of Appellate Procedure.\nIt is ORDERED that the judgment of District Court\nOPINION: Before: MERRITT and WELLFORD,\nJudge Thomas Higgins be affirmed for the reasons stated\nCircuit Judges; and EDWARDS, Senior Circuit Judge.\nin the excellent opinion of Magistrate William Haynes.\nORDER\nPage 27\n14TH CASE of Level 1 printed in FULL format.\nKenneth Jarrett, Plaintiff-Appellee, V. Harrison Epperly and Epperly Inc., f/k/a United Brake Systems,\nInc., Defendants-Appellants\nNo. 88-5762\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\nAFFIRMED\n896 F.2d 1013; 1990 U.S. App. LEXIS 2467\nDISSENT = STILL\nSUPPORTS HAYMES\nFebruary 23, 1990, Decided\nSUBSEQUENT HISTORY: Rehearing Denied, April\nDefendants assert several claims of error on appeal, none\n12, 1989, Reported at: 1990 U.S. App. LEXIS 7106.\nof which have merit.\nReported at: 1990 U.S. App. LEXIS 7106.\nI. FACTS AND PROCEEDINGS BELOW\nPRIOR HISTORY:\nDefendant-Appellant [**2] Harrison Epperly ap-\n[**1] On Appeal from the United States District Court\nproached Plaintiff-Appellee Kenneth Jarrett in April,\nfor the Middle District of Tennessee, D.C. No. 87-00289\n1976 and asked Jarrett to come to work for him. Epperly,\n(Nixon, D.J.).\nwho operated a brake shop in Indianapolis, Indiana,\nsought to open a second shop in Nashville, Tennessee, in\nCOUNSEL: Counsel for defendant-appellant: Mark\nthe name of United Brake Systems Corporation, of which\nDyer, Peter H. Curry, Boult, Cummings, Conners &\nhe, his spouse and his father were the sole sharehold-\nBerry, Nashville, Tennessee. Gene R. Leeuw, Dean T.\ners. He was the president and controlled the day-to-day\nBarnhard (argued), Klineman, Rose, Wolf & Wallack,\noperations of the corporation. At the time Epperly ap-\nIndianapolis, Indiana.\nproached Jarrett, Jarrett was happily employed as a sales-\nman of truck leases with Transport Pool of Nashville, at\nCounsel for plaintiff-appellee: Alan Mark Turk (ar-\na salary of $ 9,000.00 per annum, as well as commis-\ngued), Prince & Turk, Nashville, Tennessee, George W.\nsions and an expense account.\nHopper, Hopper & Associates, Indianapolis, Indiana.\nEpperly asked Jarrett to set up, open and manage a\nJUDGES: Harry W. Wellford and David A. Nelson,\nNashville branch of United Brake, and offered him $\nCircuit Judges; and Anna Diggs Taylor, District Judge.\n9,100 per annum with commissions, an expense account\n* Wellford, Circuit Judge, dissenting. TAYLOR,\nand the use of an automobile. When Jarrett advised that\nDistrict Judge, delivered the opinion of the court, in\nhe was happy with his present position, Epperly made\nwhich NELSON, Circuit Judge, joined. WELLFORD,\nthe further offer that, if the Nashville branch were not\nCircuit Judge, (pp. 1021-1024) delivered a separate dis-\nprofitable after six months, it would be closed and Jarrett\nsenting opinion.\nwould be given an additional six months of severance\npay. Epperly finally offered to make Jarrett a forty-nine\n* The Honorable Anna Diggs Taylor, United States\npercent owner of the branch if he would take the job and\nDistrict Judge for the Eastern District of Michigan,\n[**3] continuously manage it for ten years.\nSouthern Division, sitting by designation.\nJarrett accepted this offer, basing his acceptance in\nOPINIONBY: TAYLOR\nlarge part upon the promise of eventual ownership. He\nopened the Nashville branch in the spring of 1976. The\nOPINION: [*1015] TAYLOR, District Judge.\nagreement between the parties was never put into writ-\nThis Tennessee breach of contract and fraud case is be-\ning. Both parties later testified that their relationship\nhad been \"like father and son.\"\nfore us on Defendant's appeal of a general jury verdict\nin Plaintiff's favor, awarding compensatory damages in\nIn an effort to induce others to open and manage still\nthe amount of Seven Hundred Thousand Seven Hundred\nmore branches, Epperly made the same promise to sev-\nDollars ($ 700,700.00) and punitive damages of One\neral; the promise of eventual forty-nine percent own-\nHundred Twelve Thousand Dollars ($ 112,000.00).\nership in their branch. In addition, he told several of\nPage 28\n896 F.2d 1013, *1015; 1990 U.S. App. LEXIS 2467, **3\nhis employees, over the years, that he had such an oral\npromissory fraud, and refused Defendants' request that\nagreement with Jarrett and, over the course of the next\nthe jury be given special interrogatories. In addition,\nten years, he continually reassured Jarrett that he would\nafter trial the court denied Defendants' motion for sum-\nbecome a forty-nine percent owner when his ten year\nmary judgment. This appeal followed.\nanniversary arrived.\nII. DENIAL OF APPELLANTS' MOTION FOR\nDuring his decade with United, Jarrett was offered\nSUMMARY JUDGMENT\nother positions and business opportunities elsewhere,\nAppellants challenge the trial court's denial of their\nall of which he refused, because of this opportunity\nmotion for summary judgment. In so doing, they rely\nto become a part owner of United's Nashville branch.\nupon the magistrate's report, which recommended par-\nAlso during this period, the company grew from two to\ntial summary judgment in their favor. Any issue [**6]\ntwenty-three branches, with Jarrett assisting in the open-\nas to the magistrate's report however, is mooted here by\ning and management of several new branches. Indeed,\nthe district court's de novo determination that genuine\nJarrett's responsibilities [**4] increased greatly over the\nissues of fact existed, precluding summary judgment and\ndecade.\nrequiring trial. United States V. Raddatz, 447 U.S. 667,\nOn or about the tenth anniversary of his employment,\n100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980); Mathews V.\nJarrett approached Epperly, requesting performance of\nWeber, 423 U.S. 261, 96 S. Ct. 549, 46 L. Ed. 2d 483\nthe oral promise. Epperly acknowledged the promise\n(1976).\nand informed Jarrett that he would, by the end of 1986,\nWhether a denial of a motion for summary judgment is\nreceive evidence of his forty-nine percent interest in the\nappealable following a jury verdict adverse to the movant\nNashville operation.\nappears to be an issue of first impression in this circuit.\nUnfortunately, on December 30, 1986, Epperly sold\nThe better rule appears to have been recently adopted\nthe assets of United, including all of the assets of the\nby the Ninth and Federal Circuits and is that such a de-\nNashville operation, to Echlin, Inc., for about Eleven\nnial is \"not properly reviewable on an appeal from the\nMillion One Hundred Twenty Eight Thousand Eight\nfinal judgment entered after trial.\" Locricchio V. Legal\nHundred Forty Two Dollars ($ 11,128,842.00).\nServices Corp., 833 F.2d 1352 (9th Cir. 1987); Glaros\nV. H.H. Robertson Co., 797 F.2d 1564, 230 U.S.P.Q.\n[*1016] Even after the sale, Jarrett again approached\n(BNA) 393 (Fed. Cir. 1986), cert. dismissed, 479 U.S.\nEpperly who, in January, 1987, promised Jarrett that he\n1072, 107 S. Ct. 1262, 94L. Ed. 2d 124 (1987); Senza-\nwould receive that portion of the sales price correspond-\nGel Corp. V. Seiffhart, 803 F.2d 661, 231 U.S.P.Q.\ning to his forty-nine percent interest in the Nashville\n(BNA) 363 (Fed. Cir. 1986). We agree with the Ninth\noperation. No such payment was ever made. In fact,\nand Federal Circuits and here hold that where summary\nwhen another employee asked Epperly about his promise\njudgment is denied and the movant subsequently loses\nto Jarrett, Epperly replied \"Forty-nine percent of what?\nafter a full trial on the merits, the denial of summary\nOf nothing?\"\njudgment may not be appealed. nl\nJarrett filed suit in the United States District Court\nfor the Middle District of Tennessee seeking, in his first\nn1 We recognize that decisions in this circuit gen-\ncomplaint, damages for breach of an oral employment\nerally state that interlocutory orders merge into the\ncontract and for promissory fraud. Shortly before trial,\nfinal judgment and may be presented on appeal of\nDefendant [**5] moved for summary judgment, and the\nthat final judgment, but we find no case which deals\nmagistrate recommended partial summary judgment for\nspecifically with the appealability of a denial of\nDefendant. The trial judge refused, however, to rule on\nsummary judgment after a full trial on the merits.\nthe summary judgment motion at that time. Moreover,\nHence, we find persuasive the court's reasoning in\nat the final pre-trial conference, the parties were unable\nLocricchio, supra at 1359 that: \"To be sure, the\nto agree on a pre-trial order, due to Jarrett's request that\nparty moving for summary judgment suffers an in-\nit include claims for fraud and deceit, constructive fraud\njustice if his motion is improperly denied. This is\nand fraudulent concealment, which he asserted would\ntrue even if the jury decides in his favor. The injus-\nbe proven at trial. He also submitted an amended com-\ntice arguably is greater when the verdict goes against\nplaint which included these new theories. The district\nhim. However, we believe it would be even more\ncourt chose to take the matter under advisement pending\nthe close of the evidence at trial.\nunjust to deprive a party of a jury verdict after the ev-\nidence was fully presented, on the basis of an appel-\nAfter a six day trial, the court charged the jury as to\nlate court's review of whether the pleadings and af-\nbreach of contract, fraud, fraudulent concealment and\nfidavits at the time of the summary judgment motion\nPage 29\n896 F.2d 1013, *1016; 1990 U.S. App. LEXIS 2467, **6\ndemonstrated the need for a trial. After considerable\ntherewith, or some other person by him thereunto law-\nresearch, we have found no case in which a jury ver-\nfully authorized.\ndict was overturned because summary judgment had\nbeen improperly denied. We hold, therefore, that\nWe reject Defendants' argument that the above pro-\nvisions bar Plaintiff's claims. The Nashville branch of\nthe denial of a motion for summary judgment is not\nreviewable on an appeal from a final judgment en-\nUnited did not own real estate in 1976, when Epperly\ntered after a full trial on the merits.\" See also Holley\nmade the promise of forty-nine percent ownership to\nJarrett. Therefore, the contract, when made, did not\nV. Northrop Worldwide Aircraft Services, 835 F.2d\nconcern real estate and thus was not within the Statute\n1375 (11th Cir. 1988).\nof Frauds. There is no evidence, in fact, that real es-\ntate ever became embedded in the contract, which was\n[**7]\nfor 49% of the ownership of an establishment putatively\n[*1017] III. STANDARD OF REVIEW OF JURY\nincorporated by Epperly.\nVERDICTS\nPlaintiff Jarrett's complaint does not allege that there\nIn Gold V. National Savings Bank of City of Albany,\nwas ever a contract for the sale [**9] of real estate.\n641 F.2d 430, 434 (6th Cir. 1981), this Court acknowl-\nWhat the plaintiff is suing on, rather, is a contract for\nedged that it is bound by state law with regard to suffi-\n49% of an operating business consistently identified in\nciency of the evidence in diversity cases:\nthe pleadings as the \"Nashville operation.\" It was under-\nIn Tennessee, the rule of law with respect to appel-\nstood that the Nashville operation included real estate,\nto be sure, along with inventory, equipment, accounts\nlate review of the sufficiency of evidence is that all the\nreceivable and goodwill, but there was no understand-\nevidence for the prevailing party must be taken as true.\ning that the defendant corporation had to own the real\nMoreover, all reasonable inferences favorable to the pre-\nestate rather than leasing it. If the business had never\nvailing party must be made and all countervailing evi-\nswitched from leasing to owning, plaintiff would have\ndence must be disregarded. However, it is also clear\nthat under Tennessee law there must be substantial and\nhad no ground for complaint as long as he received 49%\nof the business. And if the Nashville operation had\nmaterial evidence from which the jury could have based\nbeen separately incorporated, with plaintiff taking his\na verdict for the prevailing side. [Citations omitted].\n49% through a conveyance of corporate stock, the fact\nthat no real estate changed hands would have made no\nIn this case, we find that as to all jury issues raised by\ndifference in any event.\nDefendants, the jury had substantial and material evi-\ndence on which to base its verdict for Jarrett.\nWe also disagree with Appellants assertion that the\ncontract could not be performed within one year.\nIV. STATUTE OF FRAUDS\nIn Price V. Mercury Supply Co., 682 S.W.2d 924\nDefendants contend that the Statute of Frauds barred\n(Tenn. Ct.App. 1984), the Court found that Tenn. Code\nenforcement of the oral agreement between these parties\nAnn. § 29-2-101 (5) should be narrowly construed and\nbecause real estate was \"embedded\" in the agreement\nfurther held:\nand because the promises were incapable of performance\nwithin one year.\nMr. Price himself stated that the terms of this\ncontract would be for life or until he decided to retire.\nThe Tennessee Statute of Frauds, Tenn. [**8] Code\n[**10] Thus, it could be performed within one year be-\nAnn. § 29-2-101 states:\ncause Mr. Price could have died or could have elected to\nretire within a year after the alleged contract was made.\nWriting required for action - No action shall be brought:\nThe fact that neither contingency occurred is not suffi-\n(4) Upon any contract for the sale of lands, tenements,\ncient to bring the agreement within Tenn. Code Ann. §\nor hereditaments, or the making of any lease thereof for\n29-2-101 (5).\na longer term than one (1) year; or,\n[*1018] It is clear in the case before us that the express\n(5) Upon any agreement or contract which is not to\nterms of the contract render it performable within one\nbe performed within the space of one (1) year from the\nyear. If the Nashville branch had proved unprofitable af-\nmaking thereof;\nter only six months, it would have been closed and Jarrett\nwould have been paid for the following six months as\nunless the promise or agreement, upon which such action\nseverance pay for his efforts. The fact that this con-\nshall be brought, or some memorandum or note thereof,\ntingency did not occur is, as in Price, not sufficient to\nshall be in writing, and signed by the party to be charged\nPage 30\n896 F.2d 1013, *1018; 1990 U.S. App. LEXIS 2467, **10\nbring the agreement within the one year proscription of\nincluded substantial travel, which took him away from\nthe Statute of Frauds.\nhis family for days at a time.\nWe further conclude that the jury could reasonably\nMore generally, under Tennessee law, a wrongdoer is\nhave found that the agreement survived the Statute under\nnot permitted to rely on the Statute of Frauds [**13] de-\nthe doctrines of part performance and equitable estoppel.\nfense. In Interstate Company V. Bry-Block Mercantile\nIn Blasingame V. American Materials, Inc., 654\nCo., 30 172, 175 1928), the Court held\n659 (Tenn. 1983), an action remarkably similar to the\nthat the Statute of Frauds was \"enacted for the purpose of\ncase before us, the plaintiff employee sued for breach of\npreventing fraud, and shall not be made the instrument\nan oral employment contract. The defendant employer\nof shielding, protecting, or aiding the party who relies\nrefused to honor its promise to issue stock in the com-\nupon it in the perpetration of a fraud, or in the consum-\npany [**11] despite plaintiff's having performed several\nmation of a fraudulent scheme.\" And in Baliles V. Cities\nyears of employment in reliance thereon. Plaintiff had\nService Co., 578 621, 624 (Tenn. 1979), citing\nsuffered the detriment of leaving prior secure employ-\nthe 1928 Interstate decision along with a number of ear-\nment for a risky venture with defendant, taking a pay cut\nlier decisions, the Tennessee Supreme Court specifically\nto do so, and working for several years with repeated\ndiscussed the doctrine of equitable estoppel and its effect\nassurances that his efforts would net him twenty-five\non the Statute of Frauds:\npercent of the company's stock. The Supreme Court of\nTennessee there held that plaintiff had suffered a detri-\nThe harshness of this rule [Statute of Frauds] has been\nment amounting to an unconscionable loss by perform-\nmitigated by the application of the doctrine of equitable\ning his part of the bargain and that the employer would\nestoppel in exceptional cases where to enforce the statute\nbe estopped from relying upon the Statute of Frauds de-\nof frauds would make it an instrument of hardship and\nfense.\noppression, [*1019] verging on actual fraud. [Citations\nomitted].\nIn Appellants' attempt to distinguish Blasingame here,\nit is argued that Jarrett did not suffer any detriment be-\ncause United started him at one hundred dollars more\nWe believe that the jury had substantial and material\nevidence on which to conclude that Jarrett's was one of\nper year than his previous employer paid, and gave him\nthese exceptional cases in which application of the statute\nregular salary increases thereafter. We disagree. Jarrett\nwould work an injustice and abet an actual fraud. We\ntestified that, as a district manager he was not simply\nresponsible for managing the Nashville branch, but had\nwill not disturb their finding [**14] that Jarrett detri-\nmentally relied on Epperly's promises. n2\nsupervisory responsibility for the Tampa, Atlanta, and\nBirmingham branches. He worked many more hours that\nhe had previously and was frequently required to be away\nn2 Before citing the Interstate decision as sup-\nfrom his family. This job, in short, was not a [**12] rou-\nport for applying the equitable estoppel doctrine in\ntine responsibility, as he had held with Transport Pool.\nBaliles, the Tennessee Supreme Court noted that as\nThus, the jury had ample basis to conclude as it did that\na rule, \"part performance of a parol contract for the\nthe increased compensation was based upon increased\nsale of land will not take the agreement out of the\nresponsibilities. Indeed, the compensation might well\nstatute of frauds.\" 578 S. W.2d at 624. Because the\nhave been even higher, without a promise of future own-\ncase at bar does not involve a contract for the sale of\nership.\nland, there is no need for us to consider the extent to\nwhich the harshness of this rule might be mitigated\nMore fundamentally, we disagree with Defendants' as-\nby the equitable estoppel doctrine if this case, like\nsertion that Blasingame hinged upon the plaintiff's de-\nBaliles, had involved a contract for the sale of land.\ncrease in pay. Rather, our view of Blasingame convinces\nus that the Court based its result on the plaintiff's giving\nup of the prior secure employment for a more risky situ-\nEven more basic, however, with regard to the Statute\nation, as well as his full performance of very substantial\nof Frauds is its inapplicability to plaintiff's tort (i.e.\nservices to the enterprise thereafter, prior to the defen-\nfraud) claims. The jury, having granted punitive dam-\ndant's breach of promise. Those elements clearly are\nages, clearly found for Jarrett on his tort claims, con-\npresent in the instant case. Accepting employment with\ncluding that Epperly's conduct was intentional, mali-\nUnited was a risk for Jarrett, the realization of which\ncious and wanton. The application of the Statute of\nwas evidenced by the parties having provided for six\nFrauds to the tort of fraudulent misrepresentation was\nmonths severance if the Nashville branch were not prof-\nspecifically addressed by the Tennessee Court of Appeals\nitable. In addition, Jarrett's responsibilities for United\nin Haynes V. Cumberland Builders, Inc., 546 S.W.2d\nPage 31\n896 F.2d 1013, *1019; 1990 U.S. App. LEXIS 2467, **14\n228 (Tenn. Ct.App. 1976). There, the Court held that\nEpperly originally intended to keep his promise, but\n[**15] the Statute did not preclude a claim for fraud,\nchanged his mind after the business expanded [*1020]\nand rejected the appellant's argument to the contrary as\nbeyond his expectations. At trial, however, Epperly de-\n\"meritless\". Id. at p. 231. The Court reasoned that\nnied that he ever made the promise in the first instance.\nthe Statute of Frauds applied only to contract actions,\nHe never claimed at trial that he had indeed changed his\nand not to tort claims. We find meritless Defendants'\nmind. Even though a party's requested jury charge is\nreliance on Webb v. Shultz, 184 Tenn. 235, 198 W.2d\na correct statement of the law, for the trial court to be\n333 (1946). This, as well as other cases cited by\nheld in error for refusing the charge, it must not only\nDefendants, involved claims for breach of contract, and\nbe legally correct, but must also be applicable to the\nnot tort claims for fraud. The Webb decision antedated\nfacts in evidence. Strickland V. City of Lawrenceburg,\nthe Tennessee Supreme Court's decision in Blasingame\n611 S.W.2d 832, 837 (Tenn.Ct.App. 1980). No error\nby more than a quarter of a century, moreover, and the\noccurred.\nlatter decision -- which is strikingly close to the instant\nDefendants next advance the argument that by permit-\ncase on its facts -- would control here regardless of what\nting plaintiff to proceed on the theories of fraudulent\nWebb said.\nconcealment and actual fraud, the trial court allowed\nV. JURY INSTRUCTIONS\n\"trial by ambush\". We reject such a contention for the\nreason that the prior pleadings, as well as the pre-trial\nDefendant contends that the trial court erred in reject-\nproceedings, were sufficient [**18] to place defendants\ning tendered instructions on the Statute of Frauds. This\non notice of these claims. The evidence in the case re-\nCourt has held that the failure to give a tendered in-\nmained the same. Defendants show no real prejudice\nstruction is not error where other instructions given by\nto their trial preparation effort. Accordingly, the dis-\nthe Court adequately address the same issue. Blackwell\ntrict court committed no abuse of discretion by allowing\nV. Sun Electric Corp., 696 F.2d 1176, 1182-1183 (6th\nthese claims to go to the jury. \"[A] claim of surprise\nCir. 1983); Mitroff V. Xomox Corp, 797 F.2d 271, 278\nthat is not borne out by the facts, or an objection to a\n(6th Cir. 1986), Jones V. Consolidated Rail Corp.,\nmere technical addition to the theory of the claim for\n[**16] 800 F.2d 590 (6th Cir. 1986). Here, because\nrelief or the facts on which it is based or a change in the\nthe parties' agreement was undisputedly oral, the jury\nnature of the defense typically will not entail sufficient\nissue was whether Jarrett's partial performance of the\nprejudice to warrant the denial of a motion to amend.\"\nagreement, and his reliance thereon, brought his con-\nWright and Miller, Federal Practice and Procedure, $\ntract claim within an exception to the Statute of Frauds.\n1495, pp. 478-79. Even at a late stage in the proceed-\nThe trial court instructed the jury that, to prevail on his\nings, parties may amend their pleadings to conform to\ncontract claim, Jarrett had the burden of proving \"that\nthe proofs and to the findings of fact. Brandon V. Holt,\nin reliance on the promise of eventual ownership, he al-\n469 U.S. 464, 105 S. Ct. 873, 83 L. Ed. 2d 878 (1985).\ntered his position so far as to incur an unjust and uncon-\nSee also 3 J. Moore, Federal Practice P15.13[2], p. 15-\nscionable injury and loss; and\n[that] his actions per-\n157 (2d ed. 1984) (amendment to conform to evidence\nformed pursuant to the alleged promise of eventual part\nmay be made at any time; id., at 15-168 (Rule 15(b)\nownership are clearly referable to that promise, rather\namendment allowed \"so long as the opposing party has\nthan to some other reason such as increases in compen-\nnot been prejudiced in presenting his case\").\nsation.\" Because this instruction adequately addressed\nthe factual dispute between the parties relevant to the\nVI. WAIVER\nDefendants' Statute of Frauds defense, the court did not\nAppellants allege that Jarrett affirmatively waived his\nerr in refusing Defendants' tendered instructions.\nclaims because he supposedly [**19] discovered years\nMoreover, even if the trial court's instructions as to\nin advance of his lawsuit that Epperly did not intend\nthe Statute of Frauds were erroneous, any such error was\nto keep his promise, and therefore should have taken\nclearly harmless, inasmuch as the jury's verdict was also\nprompt action to rescind the contract. To support these\nbased on Jarrett's fraud claims, which were not subject\ncontentions, Appellants rely heavily on statements made\nto the Statute of Frauds defense. Haynes, [**17] supra,\nby Jarrett at his deposition, inferring that he knew six\nat p. 231.\nor seven years before filing suit that Epperly never in-\ntended to fulfill his promise. Appellants, however, ig-\nWe also conclude that the district court correctly de-\nnore Plaintiff's affidavit and trial testimony. In his affi-\nclined to instruct the jury that in a case of promissory\ndavit in opposition to summary judgment, Jarrett averred\nfraud, the promisor has an absolute legal right to change\nthat the reference to six or seven years \"refers to when\nhis mind. The facts presented at trial did not support\nthe Nashville branch stopped using the name United\nsuch a charge. Defendant apparently claims here that\nPage 32\n896 F.2d 1013, *1020; 1990 U.S. App. LEXIS 2467, **19\nBrake Systems of Tennessee\" and not to any such dis-\nDISSENTBY: WELLFORD\ncovery as Defendants claim. In addition, at trial he\ntestified that he did not learn that a corporation entitled\nDISSENT: WELLFORD, Circuit Judge, dissenting:\nUnited Brake Systems of Tennessee had never been set\nup by Epperly, as promised, until after his ten years of\nI dissent from the majority view in this case, and I\nwould reverse and remand the case for the reasons indi-\nemployment when he consulted legal counsel, who in-\ncated.\nformed him. Significantly, he also testified at trial that\nwhen he approached Epperly as his tenth anniversary\nAs conceded by plaintiff, the alleged agreement be-\nneared, Epperly promised him stock certificates repre-\ntween the parties was not in writing and there was no doc-\nsenting forty-nine percent of the stock of the Nashville\numentary evidence [**22] establishing its precise terms.\nbranch. Therefore, Defendants' [**20] contention that\nI find the statement by the magistrate in this case to set\nJarrett affirmatively waived his claims is not supported\nforth the facts succinctly:\nby the evidence and the jury had substantial and material\nevidence from which to conclude the contrary.\n[When] the facts are construed in a light most favorable\nVII. THE GENERAL VERDICT FORM\nto Jarrett, as required in consideration of this motion\nfor summary judgment, Jarrett, by his own testimony\nFinally, Defendants object to the form of the verdict\nand the testimony of other employees, has presented\nsubmitted to the jury. They argue that it was error to\nsufficient facts to establish an oral agreement between\nuse a general verdict form, rather than a special verdict\nJarrett and Epperly for Epperly to convey a 49% interest\nin the form of interrogatories. However, the form of\nin UBSI's Nashville operation upon Jarrett's successful\njury verdict is within the discretion of the trial judge,\ncompletion of 10 years employment with Epperly and\nand is not ordinarily reviewable. Lummus Industries,\nUBSI. Jarrett testified that Epperly so agreed in 1976 and\nInc., V. D.M & E. Corp., 862 F.2d 267, 8 U.S.P.Q.2D\ngave subsequent assurances to Jarrett in the following\n(BNA) 1983 (Fed. Cir. 1988); see also Fed.R.Civ.P. 49\nyears. Other employees described conversations with\nCommentaries (\"It appears that the privilege of calling\nEpperly in which Epperly acknowledged the agreement.\nfor a special verdict is not a right to be demanded by the\nJarrett left his prior employment to take the position and\nparties but is rather a matter to be determined by judi-\ndeclined to pursue subsequent employment offers and\ncial discretion.\") and Flanigan V. Burlington Northern\nbusiness ventures in reliance upon Epperly's promise.\nInc., 632 F.2d 880 (8th Cir. 1980) cert. denied, 450\nAlthough the dollar value of these other offers are [sic]\nU.S. 921, 101 S. Ct. 1370, 67 L. Ed. 2d 349 (1981)\nunclear, the length of Jarrett's commitment suggests an\n(\"The decision [*1021] whether to use a general verdict\nunjust loss if the agreement were breached. To be sure,\naccompanied by special interrogatories\nis similarly\nEpperly disputes these facts, but these factual disputes\ncommitted to the unreviewable discretion of the trial\ncan not be resolved by a motion [**23] for summary\njudge.' quoting 9 Wright & Miller, Federal Practice\njudgment.\nand Procedure, Civil § 2511, at 522 (1971). [**21]\nIt appears that Jarrett [sic] version of the 1976\nThe jury awarded compensatory and punitive dam-\nagreement include [sic] a subsequent promise to convey\nages. The award of punitive damages supports the con-\nthe real estate on which UBSI's Nashville branch was\nclusion that the jury found a species of fraud. In Adkins\nlocated. Of course, UBSI did not acquire ownership of\nV. Ford Motor Company, 446 F.2d 1105, 1108 (6th Cir.\nthe real estate on which its Nashville branch was located\n1971), this Court held:\nuntil 1980. However, in his deposition testimony, Jarrett\nclearly states that this real estate was to be embedded in\nTennessee adheres to the rule that where more than one\nthe agreement.\ntheory of recovery is submitted to the jury, and there\nSTATUTE OF FRAUDS\nis evidence to support one or more, but not all, of the\ntheories, a general verdict should be construed to be\nAn oral contract for sale of an interest in land is clearly\nattributable to the theory or theories supported by suffi-\nnot enforceable in Tennessee. Blasingame V. American\ncient evidence and submitted free from error. [Citations\nMaterials, Inc., 654.S.W.2d 659 (Tenn. 1983); Baliles V.\nomitted].\nCities Service Co., 578 W.2d 621 (Tenn. 1979). It is\nerror to rely upon a sixty-one year old district court de-\nThe trial judge acted within his discretion by submitting\ncision (Interstate Co. V. Bry-Block Mercantile Co., 30\nthe case to the jury through a general verdict form.\nF.2d 172 (W.D.Tenn. 1928) to \"supercede\" the holding\nof the Tennessee Supreme Court in this regard.\nThe decision of the district court is AFFIRMED.\nThe doctrine of partial performance, relied upon by\nPage 33\n896 F.2d 1013, *1021; 1990 U.S. App. LEXIS 2467, **23\nplaintiff, does not change the rule on sale of real es-\nthis regard that defendant Epperly made false representa-\ntate in Tennessee. Blasingame, supra, n. 2; Baliles,\ntions in the agreement, discussed above, with the [**26]\nsupra. The Blasingame court specifically noted that a\nidea at the outset to deceive plaintiff, because he had \"no\nsituation where real estate is the subject matter of an\nreasonable expectation of performing those promises.\"\noral agreement is [**24] distinguishable from a situa-\nPlaintiff claims, therefore, that defendant \"expected to\ntion which involves the partial performance of a verbal\ninduce reliance\" and did so, causing him \"to change his\nemployment contract. 654 W.2d at 663.\nposition,\" and then Epperly \"repudiated\" the oral agree-\nment to plaintiff's \"irreparable detriment.\" This claim\nPlaintiff formally pleaded that real estate was part of\namounts to an alleged oral offer and acceptance by plain-\nthe alleged contract upon which he relied:\ntiff and the subsequent failure on the part of defendant-\nofferor to carry out the parol agreement, his part of the\n[*1022] It was understood by the parties that the forty-\nbargain.\nnine percent (49%) of the Nashville operation, included\ninventory, equipment, accounts receivable, accounts\nThe promissory fraud claim should not have been\npayable, business goodwill and real estate.\nsubmitted to the jury. The Tennessee Supreme Court\nhas not expressly recognized promissory fraud as a tort\nJoint Appendix 21 and 91 (emphasis added).\nin Tennessee. It has not yet found the \"right\" set of\nfacts to apply such a doctrine. Fowler V. The Happy\nPlaintiff is suing for the value of real estate assets ac-\nGoodman Family, 575 W.2d 496 (Tenn. 1978); Bolan\nquired in 1980 and claims that since there was no real\nV. Caballero, 220 Tenn. 318, 417 S. 538, 541\nestate involved in 1976 when he made the oral agree-\n(1967). The Tennessee Supreme Court has, neverthe-\nment, he is not barred by the Statute of Frauds. Jarrett\nless, expressly held that there is no judicial remedy for\ncannot escape, however, from the fact that he is nev-\nbreach of an oral promise within the statute of frauds\nertheless claiming an interest in real estate based on an\neven if \"the promise [was made] with no intention of\nunenforceable oral agreement. To the extent the district\ncomplying with it.\" Southern States Development Co.\ncourt and the majority have permitted recovery for the\nV. Robinson, 494 S.W.2d 777, 782 (Tenn. Ct. [**27]\nvalue of real estate, contrary to the Tennessee Statute of\nApp. 1972), cert. denied, (Tenn. 1973) (quoting Webb\nFrauds as construed by the Tennessee Supreme Court,\nV. Shultz, 184 Tenn. 235, 198 333, 336 (1946)).\nI am convinced they are in error and to this extent, at\nleast, I would reverse and remand for a redetermination\nWhen enforcement of a promise is barred by the\nof damages, excluding the value of real estate entirely.\nStatute of Frauds, a claim for promissory fraud on that\nThis [**25] would be the case if the alleged oral contract\nsame promise is likewise barred. In the Webb decision,\nwere deemed to be severable giving plaintiff the bene-\nthe Tennessee Supreme Court stated:\nfit of very considerable doubt under Womble V. Walker,\n181 Tenn. 246, 181 S.W.2d 5 (1944), and Brockett V.\nIn Hackney V. Hackney, 27 Tenn. 452, it was held that\nPipkin, 25 Tenn. App. 1, 149 478 (1941).\nthe fraud which will take a case from the operation of the\nstatute of frauds is not fraud in making the promise with\nIn sum, then, I dissent from the majority's hold-\nno intention of complying with it; but a fraud by which\ning that the Statute of Frauds was inapplicable to the\nthe reduction of it to writing is prevented, the parties\nreal estate assets claimed by plaintiff. The entire ba-\nso intending; and the complaining party being induced\nsis for plaintiff's claim is breach of an oral contract,\nto believe that it has been done, and this fraud may be\nan oral agreement which purportedly included and in-\nperpetrated in two ways one by signing a false paper,\nvolved a 49% interest in Epperly's \"Nashville oper-\n[*1023] at the same time inducing the belief that it is\nation.\" The Statute of Frauds is clearly applicable to\nthe true one, and the other by inducing the belief that\nbreach of contract claims as plaintiff admits in his brief,\nthe paper had been signed when in fact it had not. If\nciting Haynes V. Cumberland Builders, Inc., 546 S.W.2d\nthere was no intention of reducing the promise to writ-\n228 (Tenn. Ct.App. 1976) (Appellee's Brief at 11).\ning, or if there were knowledge that though there was\nLater Tennessee Supreme Court cases also make this\nan intention of reducing it to writing, that this had not\nclear. Plaintiff characterizes in both the complaint and\nbeen done, the promise is void under the statute.\namended complaint that he is suing on a \"breach of con-\ntract\" claim.\nIt is, therefore, clear that a false promise to sign\nan instrument [**28] in the future [or to do any act in\nPROMISSORY FRAUD\nthe future] is not such fraud as will take the case out of\nThe other claim asserted by Jarrett in his amended\nthe operation of the statute of frauds.\ncomplaint is for promissory fraud. Plaintiff claims in\nPage 34\n896 F.2d 1013, *1023; 1990 U.S. App. LEXIS 2467, **28\n198 S.W.2d at 336. Webb thus distinguished between\nrescission of a contract and for relief based on fraudulent\nfraud in the inducement -- e.g., having someone sign a\nmisrepresentation, a different situation from the instant\nfalse paper -- from fraud in factum, such as the fraud\ncase. The Tennessee Court of Appeals in Farmers &\nalleged in this case in which Jarrett alleges that Epperly\nMerchants Bank V. Petty, 664 S.W.2d 77, 81 (Tenn.\nhad no intention of complying with the promise at the\n[**30] Ct.App. 1983), recognized that the Supreme\ntime he made it. While fraud in the inducement will\nCourt of Tennessee has not adopted the doctrine of\ntake a case away from the operation of the Statute of\npromissory fraud. In Fowler, the Supreme Court of\nFrauds where there was allegedly no intention of ever\nTennessee stated:\ncomplying with the promise, \"the promise is void under\nAlthough a minority view, the rule established by the\nthe statute.\" Id. The Webb language was quoted with\ncases in this state has been that a misrepresentation of in-\napproval by the Tennessee Court of Appeals in Southern\nStates. See 494 .W.2d at 782.\ntention or a promise without intent to perform is legally\ninsufficient to support a claim for rescission or damages.\nSouthern States was decided five years after the\nThis rule has been adhered to in a number of decisions,\nTennessee Supreme Court discussed the theory of\nincluding the fairly recent case of Bolan V. Caballero.\npromissory fraud in Caballero, supra. Even though\nthe Tennessee Court of Appeals was on notice of the\nFowler, 575 S. W.2d at 498 (citations omitted).\nconsideration of the concept of promissory fraud by the\nI would agree, therefore, with magistrate William J.\nTennessee Supreme Court in Bolan, it nevertheless rec-\nHaynes, Jr. in this case that the defendants' Statute of\nognized that certain oral promises are not actionable re-\nFrauds defense was sound as to \"any agreement to con-\ngardless of the maker's intent.\nvey any interest in the UBSI-Nashville realty,\" and that\nThe district [**29] court should have been guided\nthe promissory fraud claim simply cannot stand under\nby those decisions and recognized that submitting the\napplicable Tennessee law and the facts of this case.\npromissory fraud claim to the jury would be contrary to\nJarrett was never denied fair consideration during the\nTennessee law. Neither the magistrate nor the district\ntime he worked for defendants. He testified that he was\njudge even acknowledged the existence of the Webb and\n\"well paid\" during this period and was treated fairly\nthe Southern States decisions.\nduring the employment relationship. From the outset\nThe plaintiff has elected first to go forward to sue for\ndefendants paid plaintiff more than he had previously\na breach of contract and obtain damages for the breach.\never been paid and he received regular [**31] and gen-\nTo the extent he is entitled to recover damages for the\nerous raises. I find no proven basis for equitable [*1024]\noral contract (not involving real estate), plaintiff cannot\nestoppel to preclude defendants' reliance on the Statute\nalso claim a recovery for a remedy for promissory fraud\nof Frauds. See Webb, supra; Southern States, supra.\nsaying there was never such an agreement because de-\nGiving plaintiff, then, the benefit of doubt about sev-\nfendant never intended to perform it. See Dunham V.\nerability of the oral agreement and about application of\nFortner Furniture Co., 1987 WL 6372 (Shelby Law No.\nequitable estoppel in this situation, I would reverse and\n99, 2/13/87, Tenn.Ct.App.).\nremand to the district court only for a determination of\nTennessee appellate courts have not seen fit to allow\ncompensatory damages for the personalty value of the\na promissory fraud recovery for the type of claim made\nbreach of the oral contract I would also reverse and set\nin this case. Brungard V. Caprice Records, Inc., 608\naside the punitive damages award entirely.\nS.W.2d 585 (Tenn. Ct.App. 1980), involved a claim for\nPage 11\n6TH CASE of Level 1 printed in FULL format.\nWILLIAM D. ARENDALL, Petitioner - Appellant, V. JACK MORGAN, WARDEN, Respondent -\nAppellee.\nNo. 93-5860\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\n1994 U.S. App. LEXIS 13387\nMay 24, 1994, Filed\nNOTICE: [*1] NOT RECOMMENDED FOR FULL-\ntenced Arendall for twenty and thirty years, respectively.\nTEXT PUBLICATION. SIXTH CIRCUIT RULE 24\nArendall appealed and the Tennessee Court of Appeals\nLIMITS CITATION TO SPECIFIC SITUATIONS.\naffirmed his conviction. See Arendall V. State, 509\nPLEASE SEE RULE 24 BEFORE CITING IN A\nS. W.2d 838 (Tenn. Crim. App. 1974). The Tennessee\nPROCEEDING IN A COURT IN THE SIXTH\nSupreme Court denied review.\nCIRCUIT. IF CITED, A COPY MUST BE SERVED ON\nOTHER PARTIES AND THE COURT. THIS NOTICE\nOn January 27, 1984, Arendall filed a petition for\nIS TO BE PROMINENTLY DISPLAYED IF THIS\npost-conviction relief. On advice of counsel, however,\nDECISION IS REPRODUCED.\nhe withdrew the petition. On August 29, 1986, Arendall\nfiled a pro se document seeking a recomputation of his\nsentence to reflect credits for time served in federal cus-\nSUBSEQUENT HISTORY: Reported in Table Case\ntody. The trial court appointed counsel, held a short\nFormat at: 25 F.3d 1047, 1994 U.S. App. LEXIS 20954.\nhearing and credited him with time served.\nPRIOR HISTORY: United States District Court for the\nOn June 16, 1988, Arendall filed another petition for\nMiddle District of Tennessee. District No. 90-00045.\npost-conviction relief alleging ineffective assistance of\nWiseman, Jr., District Judge.\nappellate counsel. The trial court again appointed coun-\nsel and Arendall amended his claim. The state filed an-\nJUDGES: BEFORE: KEITH and BATCHELDER,\nswers arguing Arendall failed to include his allegations\nCircuit Judges, and JOINER, Senior District Judge.\n*\nwithin his 1984 and 1986 petitions, and thus waived the\nright to raise the issues. After an evidentiary hearing, the\n* The Honorable Charles W. Joiner, Senior United\ntrial court found Arendall had waived his grounds for re-\nStates District Judge for the Eastern District of\nlief and denied his petition. [*3] Arendall appealed this\nMichigan, sitting by designation.\njudgment and the Tennessee Court of Criminal Appeals\naffirmed. See Arendall V. State, No. 88-276-111, 1989\nOPINIONBY: PER CURIAM\nWL 111202, (Tenn. Crim. App., Sept. 27, 1989). The\nTennessee Supreme Court denied review.\nOPINION: PER CURIAM: Petitioner William David\nArendall then filed a federal habeas petition. A fed-\nArendall (\"Arendall\") appeals the district court's dis-\neral magistrate judge recommended dismissing the pe-\nmissal of his petition for writ of habeas corpus based\ntition because Arendall had procedurally defaulted and\non his failure to raise all constitutional claims within\nhad not shown cause and prejudice. On May 27, 1993,\nprior petitions. Arendall argues the district court erred\nthe district court adopted the Magistrate's recommenda-\nby characterizing his proceeding to amend his sentence\ntion and dismissed Arendall's petition with prejudice.\nas a post-conviction proceeding for the purposes of\nTennessee's waiver statute. For the reasons stated below,\nII.\nwe AFFIRM the district court's dismissal of Arendall's\nThe State concedes that Arendall's voluntarily with-\npetition.\ndrawn 1984 petition did not waive his claims. In Albert\nI.\nV. State, 813 S.W.2d 426 (Tenn. 1991), the Tennessee\nSupreme Court held that no waiver of issues occurs un-\nIn 1972, a Tennessee [*2] jury convicted Arendall\ntil there has been a hearing on the merits. Thus, when\nof two counts of armed robbery. The state court sen-\nPage 12\n1994 U.S. App. LEXIS 13387, *3\na petition has been withdrawn, there has been \"no pro-\nceeding before a court at which the grounds alleged could\n(2) There is a rebuttable presumption that any ground\nhave been presented.\" Id. at 428. See also Williams V.\nfor relief not raised in any such proceeding which was\nState, 831 .W.2d 281, 282 (Tenn. 1992). The State\nheld was waived.\nalleges, however, that Arendall's failure to plead his\n[*5]\nconstitutional [*4] claims at any time during the 1986\nproceeding to amend his sentence waived further review\nTenn. Code Ann. § 40-30-112(b) (1992).\nof these issues.\nIn a detailed and well-reasoned opinion, the\nFor purposes of habeas review, our Circuit applies the\nMagistrate applied the Maupin analysis and found: (1)\nthree part test set out in Maupin V. Smith, 785 F.2d\n§ 40-30-112(b)(2) was the applicable procedural rule\n135, 138 (6th Cir. 1986). The Maupin test directs us to\nand that Arendall failed to comply with this rule; (2)\ndetermine: (1) whether there is a state procedural rule\nthe Tennessee courts do enforce this procedural rule;\nthat is applicable to the petitioner's claim with which\nand (3) because the decisions regarding Arendall's post-\nthe petitioner failed to comply; (2) whether the state\nconviction proceedings were based solely on state law,\ncourt actually enforced the state procedural sanction;\nan adequate independent state ground existed. The\nand (3) whether the state procedural forfeiture is an 'ade-\nMagistrate further found that Arendall failed to demon-\nquate and independent' state ground upon which the state\nstrate any cause for non-compliance or to show he was\ncan rely to foreclose review of a federal constitutional\nprejudiced.\nclaim. Id. The state rule applicable to Arendall's case is\nIII.\nfound within the Tennessee Post-Conviction Procedure\nAct which provides:\nAfter hearing oral argument and carefully considering\nthe record before us, we find no error warranting rever-\n(B)(1) A ground for relief is \"waived\" if the petitioner\nsal. We, therefore, AFFIRM the dismissal of Arendall's\nknowingly and understandingly failed to present it for\npetition on the basis of the recommendation of United\ndetermination in any proceeding before a court of com-\nStates Magistrate, William J. Haynes, Jr., as adopted by\npetent jurisdiction in which the ground could have been\nthe district court.\npresented.\nPage 37\n17TH CASE of Level 1 printed in FULL format.\nJOHNNY WHITE, Petitioner-Appellant, V. EARNEST PELLEGRIN, COMMISSIONER; MICHAEL\nDUTTON, WARDEN; and HERMAN C. DAVIS, WARDEN, Respondents-Appellees\nNo. 85-6041\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\n803 F.2d 723; 1986 U.S. App. LEXIS 30913\nSeptember 19, 1986, Filed\nNOTICE: [*1] NOT RECOMMENDED FOR FULL-\nnl On January 4, 1985, the warden disagreed\nTEXT PUBLICATION SIXTH CIRCUIT RULE 24\nwith the Segregation Review Board's recommenda-\nLIMITS CITATION TO SPECIFIC SITUATIONS.\ntion of White's release, merely stating \"I will con-\nPLEASE SEE RULE 24 BEFORE CITING IN A\nsider if the records continue to be positive,\" and or-\nCOURT IN THE SIXTH CIRCUIT. IF CITED, A\ndered White's continued segregation. On February\nCOPY MUST BE SERVED ON OTHER PARTIES\n6, 1985, the Board's report simply states that While\nAND THE COURT. THIS NOTICE IS TO BE\nshould \"remain at present\". These were found not\nPROMINENTLY DISPLAYED IF THIS DECISION IS\nto be sufficient statements of continued confinement\nREPRODUCED.\nto comport with due process in light of Crafton V.\nLuttrell, 378 F. Supp. 521 (M.D. Tenn. 1974) and\nPRIOR HISTORY: ON APPEAL FROM THE UNITED\nBills V. Henderson, 631 F.2d 1287 (6th Cir. 1982).\nSTATES DISTRICT COURT FOR THE MIDDLE\nRecently, this court in Franklin V. Aycock, Nos. 85-\nDISTRICT OF TENNESSEE.\n5040 and 85-5072 (6th Cir. 1986) held that a written\nstatement with reasons justifying continued confine-\nOPINION: BEFORE: KEITH and GUY, Circuit Judges;\nment must be afforded prisoners in administrative\nand BALLANTINE, * District Judge.\nsegregation.\nn* Honorable Thomas A. Ballantine, Jr., United\nAt issue in this appeal is whether petitioner was enti-\nStates District Court for the Western District of\ntled to damages based on the finding of a due [*3] pro-\nKentucky, sitting by designation.\ncess violation. We hold that Carey V. Piphus, 435 U.S.\nPER CURIAM:\n247 (1978) is dispositive of this case and damages are\nhereby denied. Carey holds that a $ 1983 procedural due\nPetitioner, Johnny White, appeals from a judgment\nprocess claim is compensatory only if there is proof of\ndismissing his prayer for damages in this § 1983 suit\nactual injury. Petitioner has failed to meet this burden.\nalleging due process violations. We affirm because pe-\nIndeed, the district court held a hearing on September\ntitioner has not proven actual damages.\n19, 1985, finding in an Order dated September 20, 1985,\nthat \"there was reasonable justification for the contin-\nPetitioner filed a $ 1983 complaint on January 11,\nued incarceration of the petitioner to administrative seg-\n1985, alleging the conditions of confinement in adminis-\nregation at the time in question.\" Administrative seg-\ntrative segregation at Tennessee State Penitentiary (TSP)\nregation would have been proper even if detailed rea-\nviolated his constitutional rights. The case was referred\nsons were given for petitioner's continued confinement.\nto Magistrate William Haynes, Jr. and on May 24,\nThus, this case is analogous to Carey where the Court\n1985, a report and recommendation was entered finding\nheld [R]espondents n2 would not be entitled to recover\nprocedural due process violations vis-a-vis petitioner's\ndamages representing the value of missed school time if\n[*2] continued confinement in administrative segrega-\npetitioners showed on remand 'that there was just cause\ntion. Specifically, the decisions in January 1985 (by the\nfor the suspension[s] and that therefore [respondents]\nwarden) and February 1985 (by the Segregation Review\nwould have been suspended even if a proper hearing\nBoard members) did not comply with the due process\nhad been held.'' Id. at 252. Accordingly, the deci-\nclause of the Fourteenth Amendment, nl because ade-\nsion below dismissing petitioner's claim for damages is\nquate reasons were not given for continued confinement.\naffirmed.\nPage 38\n803 F.2d 723; 1986 U.S. App. LEXIS 30913, *3\nn2 Respondents were students suspended from\nable to join in the majority opinion because of this\nschool without a hearing. Respondents were al-\ncourt's recent decision in Franklin V. Aycock, Nos.\nlegedly suspended for marijuana use at school.\n85-5041/5072, slip op. (6th Cir. July 15, 1986). I\n[*4]\ndo not believe the majority's analysis of the damage is-\nsue squares with the sequential analysis called for by\nDISSENTBY: GUY\nFranklin. I would remand for further consideration in\nlight of Franklin.\nDISSENT: GUY, Circuit Judge, dissenting. I am un-\nPage 9\n3RD CASE of Level 1 printed in FULL format.\nBOBBY DARNELL, Plaintiff-Appellee, V. JOHN ROSSEN, individually and as Chief of Police in the\nPolice Department of the City of Clarksville; DANIEL BREWER, individually and as Sgt., Supervisor in\nthe Police Department of the City of Clarksville; CITY OF CLARKSVILLE, a municipal corporation,\nDefendants, MICHAEL CAVER, individually and as police officer in the Police Department of the City\nof Clarksville, Defendant-Appellant.\nNo. 97-5297\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\n116 F.3d 187; 1997 U.S. App. LEXIS 15196; 1997 FED App. 0188P (6th Cir.)\nJune 25, 1997, Decided\nJune 25, 1997, Filed\nPRIOR HISTORY: [**1] Appeal from the United States\nThe parties have consented to have a United States\nDistrict Court for the Middle District of Tennessee at\nMagistrate Judge conduct any and all further proceedings\nNashville. No. 96-00103. William J. Haynes, Jr.,\nin the above-named civil action, including entry of final\nMagistrate Judge.\njudgment, as provided in 28 U.S.C. § 636(c) and Rule\n73(b) [**2] of the Federal Rules of Civil Procedure.\nCOUNSEL: For BOBBY DARNELL, Plaintiff -\nIt is, therefore, ORDERED that this civil action is re-\nAppellee: James L. Harris, Nashville, TN.\nferred to a United States Magistrate Judge for all further\nproceedings, including entry of final judgment.\nFor MICHAEL W. CAVER, individually and as Sgt.,\nSupervisor in the Police Department of the City of\nThe parties have consented to appeal on the record to\nClarksville, Defendant - Appellant: David Haines,\na District Judge and, therefore, it is ORDERED that\nClarksville, TN.\nany appeal taken [*188] by either party shall be to the\nDistrict Judge as provided in 28 U.S.C. $ 636(c)(4) and\nJUDGES: Before: KENNEDY, GUY, and MOORE,\nRule 73(d).\nCircuit Judges.\nIt is so ORDERED.\nOPINION: [*187] OPINION\nOn February 19, 1997, the magistrate judge filed an or-\nPER CURIAM. Defendant Michael Caver (\"Caver\") ap-\nder rejecting, in part, defendant Caver's claim of quali-\nfied immunity. On March 5, 1997, Caver filed a notice\npeals an order of a magistrate judge in this civil rights\naction denying, in part, his motion for summary judg-\nof appeal, stating, with specific reference to the March\n11, 1996 order, that the appeal was to the district court.\nment on the grounds of qualified immunity. On April 14,\nOn the following day, however, Caver filed an amended\n1997, the clerk of this court entered an order directing\nnotice of appeal stating the appeal was to this court. The\nCaver to show cause why his appeal should not be dis-\namended notice, which made no reference to the March\nmissed because the parties to the action had agreed that\n11, 1996 order, resulted in the present appeal. The is-\nany appeal from the magistrate judge's rulings would lie\nsue before us is whether, in light of the March 11, 1996\nwith the district court. Caver filed a response, and the\nissue is now before the court.\norder, this court has jurisdiction over the appeal.\nSince 1979, parties in a civil action can consent to have\nThis is a civil rights action in which the plaintiff al-\nall proceedings, including the entry of final judgment,\nleged the defendants violated various of his constitu-\nconducted [**3] by a magistrate judge. 28 U.S.C. §\ntional rights during an arrest. On March 11, 1996, the\n636(c)(1). Although appeals normally lie with the court\ndistrict court entered the following order:\nof appeals, the parties could, at the time this action was\nfiled, agree that an appeal would lie instead with the\nPage 10\n116 F.3d 187, *188; 1997 U.S. App. LEXIS 15196, **3;\n1997 FED App. 0188P (6th Cir.)\ndistrict court. See 28 U.S.C. § 636(c)(4) (West 1996)\nmagistrate judge under § 636(c)(1) at the time of the ef-\n(repealed Pub. L. 104-317, § 207 (Oct. 19, 1996)).\nfective date of the new legislation. See Figueroa-Rubio\nThereafter, a further appeal to the court of appeals was\nV. INS, 108 F.3d 110, 112 (6th Cir. 1997) (newly en-\navailable only if one of the parties petitioned for leave to\nacted statute eliminating appellate jurisdiction applied\nappeal the resultant decision of the district court and con-\nto petition for review pending at time of effective date\nsent was granted by the court of appeals. See 28 U.S.C.\nof statute); Qasguargis V. INS, 91 F.3d 788, 789-90\n§ 636(c)(5) (West 1996) (repealed Pub. L. 104-317, §\n(6th Cir. 1996) (order), cert. denied, 137 L. Ed. 2d\n207 (Oct. 19, 1996)). An attempt to appeal the mag-\n215, 117'S. Ct. 1080 (1997) (same result where peti-\nistrate judge's order or judgment directly to this court\ntion for review was filed eight days after effective date\n(thus bypassing the district court) would, under these\nof statute). At the time the magistrate judge entered\ncircumstances, result in dismissal of the appeal. See\nthe order being appealed, therefore, the sole proper ap-\nStull V. Secretary, 749 F.2d 9, 10-11 (6th Cir. 1984)\npellate forum was this court. The prior designation of\n(per curiam).\nthe district court as the appellate [**5] forum, although\nproperly entered into by the parties at the time of its\nCongress, however, eliminated the option of an appeal\nentry, had been superseded by the 1996 legislation and\nto the district court in the Federal Courts Improvement\nwas of no further effect. Caver properly amended his\nAct of 1996, Pub. L. 104-317, § 207, 104 Stat. 3847\nnotice of appeal to reflect that change.\n(Oct. 19, 1996). As a result of that legislation, an appeal\nfrom an order or judgment entered by a magistrate judge\nThe show cause order of April 14, 1997 is withdrawn\nunder § 636(c)(1) is now [**4] appealable only to a court\nand this appeal is restored to the active docket of the\nof appeals. 28 U.S.C. 636(c)(3) (West 1997). See gen-\ncourt. The clerk shall initiate regular briefing proce-\nerally 14 JAMES WM. MOORE ET AL., MOORE'S\ndures. nl\nFEDERAL PRACTICE § 73 App. 104 (3d ed. 1997).\nBecause this change is solely jurisdictional in nature and\nnl We note that the only issue before the court\n\"takes away no substantive right but simply changes the\nat this time concerns the proper appellate forum for\ntribunal that is to hear the case,\" Landgraf V. USI Film\nCaver's appeal. We do not address any jurisdictional\nProducts, 511 U.S. 244, 274, 1281 Ed. 2d 229, 114 S.\nissues that could arise under Johnson V. Jones, 515\nCt. 1483 (1994), quoting Hallowell V. Commons, 239\nU.S. 304, 115 S. Ct. 2151, 132 L. Ed. 2d 238\nU.S. 506, 508, 60 L. Ed. 409, 36 S. Ct. 202 (1916),\n(1995).\nwe conclude it is applicable to all cases pending before a\nPage 23\n13TH CASE of Level 1 printed in FULL format.\nJONAH LOUIS GANT, Petitioner-Appellant, V. MICHAEL DUTTON, WARDEN, Respondent-Appellee\nNo. 89-6039\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\nREMAND\n1991 U.S. App. LEXIS 354\nISSUE DETERMINED T5V\nJanuary 8, 1991, Filed\nHAYMES = REMANDED\nNOTICE: [*1]\ntion report against appellant. The report charged ap-\npellant with involvement in the instigation of a work\nNOT RECOMMENDED FOR FULL-TEXT\nstoppage strike and recommended his placement in in-\nPUBLICATION SIXTH CIRCUIT RULE 24\nvoluntary administrative segregation as a consequence\nLIMITS CITATION TO SPECIFIC SITUATIONS.\nof his alleged conduct.\nPLEASE SEE RULE 24 BEFORE CITING IN\nA PROCEEDING IN A COURT IN THE SIXTH\nThe Involuntary Administrative Segregation Board at\nCIRCUIT. IF CITED, A COPY MUST BE SERVED\nFort Pillow (\"Board\") conducted a hearing on January\nON OTHER PARTIES AND THE COURT. THIS\n17, 1987. Appellant requested that he be given the op-\nNOTICE IS TO BE PROMINENTLY DISPLAYED IF\nportunity to present witnesses on his behalf and that he be\nTHIS DECISION IS REPRODUCED.\ngranted a continuance to consult with a jailhouse lawyer\nand to prepare his defense. These requests were denied.\nPRIOR HISTORY:\nAppellant also asked that Corporal Belinda Greer re-\ncuse herself from the Board for the reason that she had\nOn Appeal from the United States District Court for the\nprior information regarding the hearing. This request\nMiddle District of Tennessee; No. 87-00743; Thomas\nalso was denied. Appellant then questioned the other\nA. Higgins, Judge.\ntwo Board members about their familiarity with proce-\ndures and administrative segregation placement reports.\nJUDGES: Wellford and Suhrheinrich, Circuit Judges;\nBoth of these Board members told Corporal Greer that\nand John D. Holschuh, * District Judge. Wellford,\nthey did not want to hear the case because they did not\nCircuit Judge, concurring.\nknow why the hearing was being held. Corporal Greer\n* The Honorable John D. Holschuh, Chief District\nrequested appellant to leave the room, and in his absence\nthe two other members decided to sit [*3] on the Board.\nJudge for the Southern District of Ohio, sitting by\ndesignation.\nFollowing the hearing, the Board accepted the war-\nden's recommendation and ordered appellant to be\nOPINIONBY: PER CURIAM\nplaced in the administrative segregation unit at Fort\nPillow. With respect to this order, appellant main-\nOPINION: Petitioner Jonah Louis Gant appeals from the\ntains that an administrative segregation placement sheet\ndistrict court's denial of his petition for writ of habeas\nshould have been forwarded by the Board to the war-\ncorpus. Finding the factual record below to be incom-\nden. Appellant alleges that in his case, the placement\nplete, we remand this cause to the district court on the\nsheet had already been executed by the warden prior to\nquestion of mootness.\nhis hearing. Appellant also states that after the hearing\nhe made numerous requests to consult with an inmate\nI.\njailhouse lawyer regarding his proceedings. Although\nAppellant was convicted in Tennessee state court in\nthe requests of similarly situated inmates were granted,\n1985 for armed robbery and aggravated rape. He was\nall of appellant's requests were denied.\nsentenced to sixty years imprisonment. On January 14,\nIn addition to placing appellant in administrative seg-\n1987, Billy Compton, the warden at Fort Pillow State\nregation, the Board recommended his transfer to another\nFarm (\"Fort Pillow\") where appellant was then [*2] in-\nstate prison facility. In February, 1987, appellant was\ncarcerated, filed an involuntary administrative segrega-\ntransferred from Fort Pillow to Brushy Mountain State\nPage 24\n1991 U.S. App. LEXIS 354, *3\nPrison (\"Brushy Mountain\"). At Brushy Mountain ap-\nthat appellant had refused the offer. The magistrate fur-\npellant remained in administrative segregation due to his\nther noted [*6] that respondent offered to expunge the\nearlier status at Fort Pillow.\nFort Pillow report and all references to the report from\nOn July 14, 1987, Otis Jones, the warden at Brushy\nappellant's record. Moreover, the magistrate found that\nMountain, filed an additional involuntary administrative\nthere were legally sufficient reasons for appellant's con-\nsegregation report stating that:\ntinued confinement in administrative segregation aside\nfrom the disputed involuntary administrative segregation\nSince [*4] [January] 1987 to date, inmate Gant\nreport.\nhas been involved in a work stoppage, written up for\nAppellant filed objections to the magistrate's report\nassault on an officer and refusing a direct order while at\nand recommendations. On April 19, 1988, Judge\nF.P. This behavior attitude of inmate Gant proceeded to\nHiggins entered an order recommitting the action to the\nmake him a threat to the safe operations [sic] of the insti-\nmagistrate to consider whether appellant had exhausted\ntution if he is released from [involuntary administrative\nhis state remedies and whether expungement of records\nsegregation at this time].\nis available by way of a federal habeas corpus petition.\nThe Board at Brushy Mountain agreed with the warden's\nThe magistrate issued a second report and recommen-\ndation on April 24, 1989, in which he found that ex-\nreport and ordered appellant's continued placement in\nadministrative segregation.\npungement of records is available under 28:U.S.C. §\n2254 and that appellant was not required to exhaust state\nAppellant was transferred from Brushy Mountain to\nremedies because resort to the state courts in this case\nthe Tennessee State Penitentiary (\"TSP\") in July, 1987.\nwould be futile. The magistrate resubmitted his ear-\nHe remained in administrative segregation at TSP based\nlier report and recommendation which had recommended\non his status at Brushy Mountain. While at TSP, appel-\nthat appellant's petition be dismissed in part as moot\nlant was offered the opportunity to return to the general\nand in part as frivolous. Both parties filed objections to\nprison population if he signed a \"behavioral contract\"\nthe magistrate's second report and recommendation. By\nin which he would agree to conduct himself in a certain\nmemorandum [*7] and order dated July 7, 1989, Judge\nmanner. Appellant refused to sign the contract on the ba-\nHiggins adopted the magistrate's report and recommen-\nsis that his confinement was illegal and that he intended\ndation.\nto remain in administrative segregation until his dispute\nwas resolved through litigation.\nAppellant filed a notice of appeal on July 14, 1989.\nOn August 9, 1989, the district court authorized appel-\nAppellant filed his petition for a writ of habeas corpus\nlant to proceed in forma pauperis and granted a certificate\nin the United States District Court for the Middle District\nof probable cause. Counsel was appointed for appellant\nof [*5] Tennessee, Nashville Division, on September 23,\non March 1, 1990. Following the submission of briefs\n1987. He challenged the Board's actions at Fort Pillow\nand oral argument, the matter is now before this Court\non various grounds, including that he had been denied\nfor review.\nample time to prepare a defense and the opportunity to\nII.\npresent witnesses. Appellant sought as relief that he be\nreturned to the status he enjoyed prior to the Board's\nFederal courts will entertain a habeas corpus peti-\naction and that all references to the Fort Pillow adminis-\ntion on behalf of a person if the custody violates the\ntrative segregation report be expunged from his record.\nConstitution, laws or treaties of the United States. 28\nU.S.C. § 2254(a). We review the district court's judg-\nAppellant's petition was referred to United States\nment on a habeas corpus petition de novo but defer to\nMagistrate William J. Haynes, Jr. to determine whether\nevidence-supported state court findings of fact. Lundy\nit was frivolous or malicious. After reviewing the file,\nV. Campbell, 888 F.2d 467, 469 (6th Cir. 1989), cert.\nthe magistrate determined that an evidentiary hearing\ndenied, 110 S. Ct. 2212. Moreover, we review the\nwas necessary on the issue of frivolousness. A hear-\ndistrict court's factual findings in a habeas corpus pro-\ning was held on December 22, 1987 at which appel-\nceeding for clear error. Ray V. Rose, 535 F.2d 966,\nlant appeared and testified. On January 14, 1988, the\n973 n.9 (6th Cir. 1976), cert. denied, 429 U.S. 1026\nmagistrate issued a report and recommendation recom-\n(1976).\nmending that the petition be dismissed as moot as to\nthe claims arising from appellant's administrative segre-\nA.\ngation at Fort Pillow and frivolous as to all remaining\nThe first issue presented for review is whether appel-\nclaims. The magistrate noted that respondent offered to\nlant properly exhausted his state remedies prior to filing\nrelease appellant from administrative segregation, but\nPage 25\n1991 U.S. App. LEXIS 354, *7\nhis federal habeas corpus [*8] petition. Respondent has\nspect to the disciplinary procedures resulting from these\nelected not to pursue this issue on appeal. Therefore, we\nacts. Respondent contends, and the district court agreed,\nhave no reason to disturb the district court's conclusion\nthat based on these subsequent acts appellant would have\nthat no clear remedy exists under Tennessee law for the\nbeen placed in administrative segregation regardless of\nclaims raised by appellant.\nthe disputed proceedings at Fort Pillow. Yet in making\nB.\nhis report, the warden at Brushy Mountain specifically\nrelied not only on the assault and the disobeying of the\nThe second issue presented for review is whether ap-\norder, but also on appellant's alleged involvement in\npellant's petition is cognizable under 28 U.S.C. § 2254.\nthe work stoppage at Fort Pillow. Thus, there is a fac-\nRespondent argues that Bell V. Wolfish expressly left un-\ntual issue of whether appellant would have been placed\nresolved the propriety of using a writ of habeas corpus\nin administrative segregation at Brushy Mountain if the\nto challenge conditions of confinement as apart from the\ndisputed report at Fort Pillow had not been a part of his\nfact or length of the confinement itself. 441 U.S. 520,\nprison record. We do not believe that the record below\n(1979). At oral argument, however, counsel for\nis sufficient to resolve this issue and, accordingly, we\nrespondent conceded that at least four courts of appeals\ncannot say whether appellant's petition is moot.\nhave answered the question affirmatively. See Bostic V.\nIII.\nCarlson, 884 F.2d 1267, 1269 (9th Cir. 1989); DelRaine\nV. Carlson, 826 2d 698, 702 (7th Cir. 1987); Boudin V.\nFor the foregoing reasons, we REMAND this cause to\nThomas, 732 F.2d 1107, 1111 (2d Cir. 1984); Streeter\nthe district court on the question of mootness for a deter-\nV. Hopper, 618 1178, 1181 (5th Cir. 1980). Given\nmination of whether appellant remains in administrative\nour disposition of this matter, it is unnecessary for us\n[*11] segregation for reasons independent of his alleged\nto consider the soundness of these decisions. For our\ninvolvement in the work stoppage at Fort Pillow. If the\npurposes, then, we will assume, but not decide, that ap-\ndistrict court determines upon remand that the reasons\npellant's claims are cognizable in a federal habeas corpus\nfor appellant's continued confinement in administrative\npetition. [*9]\nsegregation are not independent of this conduct, then the\ndistrict court shall proceed to the merits of appellant's\nC.\npetition.\nThe third and final issue presented for review is\nwhether the district court properly concluded that ap-\nCONCURBY: WELLFORD\npellant's claims are moot. In making this determina-\ntion, the district court partly relied on respondent's of-\nCONCUR:\nfer to release appellant from administrative segregation\nWELLFORD, Circuit Judge, concurring.\nand to expunge the disputed administrative segregation\nBased on the record before us, I would conclude that\nreport and all references to that report from appellant's\nas of July 14, 1987, petitioner Gant was properly placed\nprison records. Appellant refused this offer because he\nin administrative segregation at the Brushy Mountain,\nwould be required in return to sign a behavioral contract.\nTennessee, prison facility. Gant's transfer from Fort\nWe cannot agree with the district court that this condi-\nPillow to Brushy Mountain in February 1987, and again\ntional offer of release and expungement moots appel-\nlater in 1987 to another state prison, indicates no basis\nlant's claims. We note that at the time of oral argument,\nof a cause of action based on a habeas corpus petition.\nappellant continued to be in administrative segregation\nLater Gant was transferred to the Tennessee State Prison\nat a fourth facility and references to the disputed report\n(TSP) at Nashville and remained in administrative seg-\nhad still not been expunged.\nregation.\nThe second basis for the district court's conclusion,\nThis action is one for habeas corpus relief, not for\nhowever, remains: that legally sufficient grounds exist\n42 U.S.C § 1983 relief if, in fact, Gant was improperly\nfor appellant's continued confinement in administrative\nconfined in administrative segregation for alleged insti-\nsegregation independent of the disputed report. Such\ngation of a work stoppage at Fort Pillow. This action\na basis is arguably provided by the second administra-\nwas brought after Gant was transferred to TSP, and we\ntive segregation report filed by the warden of Brushy\nare concerned in this [*12] action only with the circum-\nMountain. This report notes that appellant had been\nstances of his administrative segregation at that facility.\nwritten up for [*10] assaulting a guard and disobeying\nHis basis for complaint and relief is averred \"malicious,\nan order while still at Fort Pillow. Appellant does not\ncapricious, arbitrary and vindictive\" action by respon-\ndeny that he assaulted the guard or disobeyed the order;\ndents \"against petitioner at the Tennessee State Main\nnor does he complain of any lack of due process with re-\nPrison in Nashville.\" Petitioner also seeks expungement\nPage 26\n1991 U.S. App. LEXIS 354, *12\nof his Fort Pillow administrative segregation report.\ninatory conditions nl were attached by respondents at\nTSP to the offer to release Gant from administrative\nThis complaint for expungement is based upon al-\nsegregation, and/or to expunge any records of his Fort\nleged violations by defendants of Tennessee Department\nPillow confinement (but not his Brushy Mountain con-\nof Corrections policies and procedures in denying him\nfinement which I deem to be appropriate).\nan opportunity \"to marshall evidence\" and \"prepare a\ndefense\" at a hearing on disciplinary charges at Fort\nPillow.\nnl During oral argument Gant's counsel conceded\nthat he had \"no problem\" with any drug screen re-\nAssuming that petitioner is entitled to expungement\nquirements at TSP.\nunder a habeas corpus complaint, I would concur\nin a limited remand for the district court to decide\n[*13]\nwhether impermissible, unreasonable, and/or discrim-\nPage 18\n12TH CASE of Level 1 printed in FULL format.\nALBERT L. BARLOW, Plaintiff-Appellant, V. LOUIS W. SULLIVAN, M.D. SECRETARY OF HEALTH\n& HUMAN SERVICES, Defendant-Appellee\nNo. 90-5810\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\nREMAND\n1991 U.S. App. LEXIS 4121\nRIPS THE ALJ\nNOT REALLY\nMarch 7, 1991, Filed\nHAYMES\nNOTICE: [*1]\ntion. Barlow requested a hearing and a hearing was held\non June 11, 1985. Administrative Law Judge Larry\nNOT RECOMMENDED FOR FULL-TEXT\nCreson [*2] determined that Barlow was not disabled\nPUBLICATION SIXTH CIRCUIT RULE 24\nbecause, despite his impairments, he could perform his\nLIMITS CITATION TO SPECIFIC SITUATIONS.\nformer work as a small engine mechanic. The Appeals\nPLEASE SEE RULE 24 BEFORE CITING IN\nCouncil denied Barlow's request for review. Barlow\nA PROCEEDING IN A COURT IN THE SIXTH\nthen filed a complaint for review in the United States\nCIRCUIT. IF CITED, A COPY MUST BE SERVED\nDistrict Court for the Middle District of Tennessee. The\nON OTHER PARTIES AND THE COURT. THIS\ndistrict court remanded the claim to the Secretary for re-\nNOTICE IS TO BE PROMINENTLY DISPLAYED IF\nconsideration in light of changes in administrative proce-\nTHIS DECISION IS REPRODUCED.\ndures as a result of the Disability Benefits Reform Act of\n1984, Pub. L. No. 98-460, $ 5, 98 Stat. 1801 (1984).\nSUBSEQUENT HISTORY: Reported as Table Case at\nOn remand, ALJ Henry Kane held a second hearing on\n927 F.2d 603, 1991 U.S. App. LEXIS 7455.\nOctober 28, 1987. On January 28, 1988, the ALJ issued\na decision unfavorable to Barlow. The Appeals Council\nPRIOR HISTORY:\ndenied Barlow's request for review on May 17, 1988,\nand the case returned to the district court. On February\nOn Appeal from the United States District Court for the\n13, 1990, U.S. Magistrate William J. Haynes, Jr. rec-\nMiddle District of Tennessee; No. 85-01092; Morton,\nommended an affirmance of the Secretary's decision. On\nJudge.\nFebruary 28, 1990, Barlow's counsel filed objections to\nthe Magistrate's Report. On April 27, 1990, the district\nJUDGES: Jones and Nelson, Circuit Judges, and Charles\ncourt issued an order adopting the magistrate's findings\nW. Joiner, Senior District Judge.\n*\nof fact, with minor corrections, and issued new conclu-\n* The Honorable Charles W. Joiner, United States\nsions of law affirming the Secretary's decision.\nDistrict Court for the Eastern District of Michigan,\nBarlow was born [*3] on June 28, 1931, and was\nsitting by designation.\nfifty-six years old at the time of the ALJ's decision.\nHe attended school for only three months and is unable\nOPINIONBY: PER CURIAM\nto read or write. Barlow's past relevant work was as\na small engine mechanic fixing air-cooled engines for\nOPINION: Plaintiff Albert L. Barlow appeals the dis-\nlawnmowers and water pumps. He was last gainfully\ntrict court's judgment affirming the Secretary's denial of\nemployed on December 31, 1982, but he made two un-\nSocial Security disability benefits. For the reasons that\nsuccessful work attempts as a small engine mechanic in\nfollow, we remand for further proceedings.\n1983 for two separate employers. J. App. at 85. Both of\nI.\nhis former employers submitted statements that Barlow\nwas unable to work due to illness, or his inability to do\nBarlow filed his applications for disability benefits on\nthe job. Id. at 94, 95.\nNovember 21, 1984, alleging that he became unable to\nwork on December 31, 1982, due to his disability. The\nIn Barlow's original disability applications, he\nclaimed disability due to hypertension and a heart con-\napplications were denied initially and upon reconsidera-\ndition. However, the on remand the ALJ considered\nPage 19\n1991 U.S. App. LEXIS 4121, *3\nBarlow's application to be based upon alleged multiple\nradiculopathy, then it is my opinion that [Barlow] has\nimpairments including hypertension, headaches, short-\nsome disability to perform tasks involving lifting, han-\nness of breath, chronic lower back pain, double hernias,\ndling, or carrying [*6] heavy objects. Standing for an\nas well as mental impairments. Id. at 174-77.\neight hour day would also be impaired and prolonged\nwalking.\nBarlow's primary treating physician was Dr. Barton\nWayne Warner, M.D. Dr. Warner submitted treatment\nId. at 337 (Medical Assessment). On March 12, with\nrecords showing several visits between December 1982\nthe same qualifiers, Dr. Warner elaborated that Barlow\nand October 1987. Barlow began seeing Dr. Warner in\nwould have difficulty lifting or handling objects over\nDecember of 1982 with complaints [*4] of headaches,\nfifty pounds and \"probably couldn't stand for more than\nchest pains and hypertension. Id. at 312. Dr. Warner\na few minutes at a time or walk very far at a time (i.e.\nprescribed medication for hypertension. On January 17,\n50 ft.)\" Id. at 358.\n1983, Dr. Warner conducted a more thorough exami-\nnation of Barlow. Barlow's chest and heart exam was\nBarlow was treated for his back problems in November\ndescribed as \"completely unremarkable,\" and his elec-\nand December of 1986 by Dr. Oscar T. Johns, an or-\ntrocardiogram was \"within normal limits\". Id. Barlow's\nthopedic specialist. Dr. Johns noted that Barlow re-\nsubsequent treatment records with Dr. Warner indicate\nported back problems for twenty years and claimed that\nthat his chest pains and hypertension were partially con-\nthey were getting progressively worse. Barlow reported\ntrolled by medication and that Barlow's symptoms of\nthat he could not lift anything weighing more than ten\nhead and chest pain were usually exacerbated when he\npounds and that if he stood for several hours, he was\nwould run out of his medication. See, id. at 111-12,\nunable to get up the next day. Dr. Johns' examination\n310, 312. On December 5, 1984, Dr. Warner com-\nrevealed that Barlow's forward flexion was painful to\npleted a \"Chest Pain Questionnaire\" in which he indi-\nthirty degrees, that he held his back rigidly, and that\ncated that Barlow complained of sharp pain in his left\nhis straight-leg raise test and his nerve-stretch test were\nanterior chest, which spread under his left arm and usu-\npositive. However, he noted that Barlow's x-rays were\nally lasted a few seconds, sometimes up to a few min-\nwithin normal limits and his gait was normal. He diag-\nutes. Id. at 110. Dr. Warner noted that Barlow had\nnosed mechanical low back pain and prescribed exercise\nno other associated symptoms, such as nausea, vomiting\nand some pain medication. Id. at 331. At [*7] a sec-\nor sweating, and that there was no evidence of cardiac\nond visit, on November 20, 1986, he again diagnosed\ncomplications which might impair his physical capacity.\nmechanical low back pain and administered injections\nId.\nof Depo Medrol. Id. On December 12, 1986, he saw\nBarlow for the last time and said Barlow was \"much im-\nDr. Warner first noted complaints of low back pain\nproved\" from the injection, prescribed steroids and flex-\nin August 1985 Id. at 310. Dr. Warner's notes suggest\nion exercises, and advised Barlow to return as needed.\n[*5] that Barlow had been having problems with his back\n\"for a long time\" and that his visit was precipitated by\nIn March and May of 1987, Dr. Johns filled out\nan incident in which Barlow picked up something heavy\n\"Medical Assessment\" forms. On the March form, Dr.\nand felt pain in his back and burning in his left foot. Id.\nJohns stated that Barlow was \"much improved\" by the\nDr. Warner noted that Barlow was unable to sit at 90\ninjections, but that no further diagnostic work had been\ndegrees and that he had \"slight tenderness\" in his lumbar\ndone to determine whether Barlow had a herniated disc.\nregion and reduced flexibility due to pain. He diagnosed\nHe noted that Barlow had not returned since December\n\"hypertension [and] low back pain with radiculopathy\"\n1986 and opined that Barlow was not \"a candidate for\nand prescribed heat, exercise and some medication. Id.\nSocial Security benefits on the basis of his back at this\nDr. Warner's subsequent treatment notes in 1986 and a\ntime.\" Id. at 356. On the May form, Dr. Johns\nletter concerning a 1987 examination do not make ref-\nagain noted that Barlow was much improved after the\nerence to Barlow's back or back pain. Id. at 310, 407.\nlast treatment and had not returned. However, on this\nAt the request of the Secretary, Dr. Warner did fill out\nform, he asserted that he could not determine Barlow's\n\"Medical Assessment\" forms in January and March of\nwork-related activity restrictions because there were in-\n1987. On both forms Dr. Warner indicated that he had\nsufficient diagnostic tests as to whether Barlow had a\nnot seen Barlow for low back pain since August 1985,\nherniated disc. Id. at 332.\nand was unable to give \"an up to date opinion on this\nBarlow was also examined by several consultative\nmatter.\" Id. at 337, 358. However, on January 27, Dr.\nexaminers at the request of the Social Security [*8]\nWarner stated:\nAdministration (\"SSA\"). In December of 1984, Dr.\nFrank A. Perry, an internist, examined Barlow. Dr.\nIf the patient continues to have his low back pain with\nPage 20\n1991 U.S. App. LEXIS 4121, *8\nPerry found that Barlow had a full range of motion in all\ntential was within the 80 to 89 range. Ward reported\nhis joints except in his lubarsacral spine. There were no\nthat Barlow was consistently capable of understanding,\nparavertebral muscle spasms and Barlow's gait was nor-\nremembering and carrying out simple oral instructions.\nmal. Dr. Perry found Barlow's chest, lungs, heart, and\nBarlow reported that he still drove and did his shopping,\nabdomen to be normal, and his vascular and neurological\nand that he continued to perform odd jobs as they be-\nexams were also normal. A resting electrocardiogram\ncame available. He mowed the lawn and did other house\nwas done and a chest x-ray taken and these were normal\nand yard work during the summer. He also said that he\nas well. X-rays of Barlow's back revealed a narrowing\nwent to town alone to take care of business and that he\nof the L5-SI disc with degenerative spurring of Grade 1.\nvisited his relatives. While Ward found Barlow to have\nDr. Perry diagnosed hypertension without cardiomegaly\n\"perhaps a mild impairment\" in his ability to relate to\non the chest x-ray or left ventrical hypertrophy on the\nand communicate with supervisors or to compete effec-\nEKG, and osteoarthritis in the lubarsacral spine. Id. at\ntively, he found that Barlow should be able \"to respond\n121-23.\nappropriately and adaptively to ordinary work pressures\nand [*11] demands.\" Id. at 117-20.\nDr. Robert P. Graham, Jr., an internist, exam-\nined Barlow for the SSA on December 29, 1986.\nOn December 30, 1986, Paul Lima, a clinical psychol-\nExamination findings were similar to those of Dr. Perry,\nogist, evaluated Barlow on behalf of the SSA, Barlow\nalthough Dr. Graham felt that Barlow's back pain was\nreported that he was still driving his car and grocery\ndue to muscle pulls rather than joint or low back pain.\nshopping once per week. He also said he visited his\nDr. Graham noted that Barlow told him he experienced\nmother several times per month, though he said he did\nhis low back pain after standing three hours. He noted\nnot visit with friends or neighbors. He said he was still\nthat Barlow reported that his chest pain and shortness of\nsmoking one and one half packs of cigarettes per day,\n[*9] breath were increased when he walked fast or lifted\nthough his doctor had told him to stop. Lima found\nsomething heavy. However, Barlow reportedly told Dr.\nthat Barlow was \"oriented vaguely to time and place,\nGraham that if he walks slowly and takes it easy, he can\n[though] thoroughly to person.\" Id. at 328. Barlow's\nwalk up to half a mile. Dr. Graham diagnosed hyper-\nconversation was fluent and spontaneous, his mood was\ntension and a history of chest pain and low back pain.\nnormal, and his psychomotor activity was within nor-\nIn addition, Dr. Graham noted that Barlow had her-\nmal limits. Testing revealed a full scale IQ score of 77.\nnias, anxiety and shortness of breath, the later due to\nWard found that Barlow's ability to reason or make oc-\nhis cigarette smoking. Dr. Graham found that Barlow\ncupational, personal or social adjustments was \"poor\"\nhad normal joint functioning in his ankles, knees and\nand he attributed this to Barlow's \"lack of education,\nhips. As to his back, Dr. Graham found that he could\npoor concept formation abilities, poor work history and\nbend fifteen degrees to the right and left and five de-\n[a] general dearth of social contacts. Id. at 329.\ngrees backward. He could also bend forty-five degrees\nAt the administrative hearing in October 1987, Barlow\nat the waist if he kept his knees straight. Barlow also\ntestified that he was no longer able to do his prior work as\ncould do a deep knee bend and arise without holding on\na small engine mechanic because, due to chest and back\nto anything. He was also able to lift a twenty-pound\npain, he no longer had the [*12] ability to lift heavy ob-\nlamp without difficulty and had \"no problems handling\njects or sustain his former activity. Id. at 194, 197, 202\nobjects, hearing, speaking, or traveling.\" Dr. Graham\nand 216. He testified that he was only able to stand for\nalso found Barlow's ability to reason was \"normal.\" Id.\nat 322-24.\nthirty to thirty-five minutes and that he could only walk\nthirty-five to forty minutes. Id. at 203-04. He testified\nTwo psychological assessments were obtained in con-\nthat even lifting ten pounds was painful. Id. at 204. He\nnection with Barlow's applications. Elliott Ward, a clin-\nalso complained of numbness in his legs from the hips\nical psychologist, performed a psychological evaluation\ndown and dizziness accompanied by headaches. Id. at\non December 14, 1984. He noted, in his statement of\n210-11. He testified that he was only able to sleep three\nBarlow's [*10] psychological history, that Barlow had\nto four hours per night due to pain. Id. at 212. Barlow\nnever been hospitalized for psychiatric treatment and had\ndid note that he sometimes could obtain relief from his\nnever sought or received psychiatric treatment as an out-\nsymptoms with prescribed medication and Anacin. Id.\npatient. Ward also noted that Barlow had reported his\nat 201-02, 210. Finally, he testified that he averaged\nlast regular employment as a small engine mechanic had\none \"bad day\" per week where he was unable to get up\nended when his employer \"went outta business'.' Id.\nor do any activity. Id. at 213-14.\nat 118. Testing revealed a full scale I.Q. score of 73,\nBarlow's wife testified at the hearing and basically cor-\nbut Ward estimated that based on his discussions with\nroborated Barlow's testimony. Id. at 221-27. Notably,\nBarlow and his prior history, Barlow's intellectual po-\nPage 21\n1991 U.S. App. LEXIS 4121, *12\nshe testified that Barlow no longer did yard work like\nfines \"medium work\" as follows: [*15] \"Medium work\nhe used to, could not play with his grandchildren as he\ninvolves lifting no more than 50 pounds at a time with\nwould like, and that she frequently heard him groan in\nfrequent lifting or carrying of objects weighing up to 25\nthe night in pain. Id. at 222, 225.\npounds.\" Barlow also points to Social Security Ruling\nFinally, a vocational expert testified at the hearing that\n83-10 which elaborates the on regulations' definition of\n\"medium work\":\nBarlow's [*13] past work as a small engine mechanic\nhad a \"medium\" exertional level and that small engine\nA full range of medium work requires standing or\nrepair was classified as \"skilled\" labor. Id. at 228,\nwalking, off and on, for a total of approximately 6 hours\n230. Most notably, the vocational expert testified that\nin an 8-hour workday in order to meet the requirements\nBarlow's prior employment skills were not transferable\nof frequent lifting or carrying objects weighing up to 25\nto other types of work because of his inability to read\npounds[.]\nand write. Id. at 229-31. She also noted that his mental\nimpairments might make it more difficult for Barlow to\ntransfer his skills to other types skilled employment or\nThe considerable lifting required for the full range of\nmake a \"vocational adjustment.\" Id. at 231-32.\nmedium work usually retires frequent bending or stoop-\nII.\ning\nFlexibility of the knees as well as the torso is\nimportant for this activity\nIn most medium jobs,\nOur review of a final decision by the Secretary is\nbeing on one's feet for most of the workday is critical.\nlimited to determining whether the Secretary's deci-\nBeing able to do frequent lifting or carrying of objects\nsion is supported by substantial evidence, Richardson\nweighing up to 25 pounds is often more critical than\nV. Perales, 402 U.S. 389, 401 (1971); Landsaw V.\nbeing able to lift up to 50 pounds at a time.\nSecretary of Health and Human Services, 803 F.2d 211,\n213 (6th Cir. 1986). Where substantial evidence sup-\nPlaintiff's Brief at A-48-49 (Ruling 83-10). Barlow\nports the Secretary's decision, \"we may not even in-\nasserts that his impairments preclude him from doing\nquire whether the record could support a decision the\nmedium work as defined by the Secretary.\nother way.\" Smith V. Secretary of Health and Human\nServices, 893 F.2d 106, 108 (6th Cir. 1989). Substantial\nThe ALJ determined that taking all Barlow's impair-\nevidence has been defined as \"such relevant evidence as\nments into account, the evidence suggested that Barlow\nwas able to perform his [*16] past relevant work as a\na reasonable mind might accept as adequate to support\nsmall engine mechanic. Without restating all of the\na conclusion'. [*14] Perales, 402 U.S. at 401 (citation\nALJ's analysis, we find that the ALJ accurately sum-\nomitted).\nmarized the medical evidence before it. However, we\nRegulations promulgated by the Secretary prescribe\nare unable to determine that its decision was supported\na five-step sequential review for processing disability\nby substantial evidence for two reasons.\nbenefits claims. See 20 C.F.R. § 404.1520 (1990); see\nFirst, the ALJ completely failed to consider the two\nalso Farris V. Secretary of Health and Human Services,\nstatements by Barlow's former employers that he was\n773 F.2d 85, 88-9 (6th Cir. 1985) (applying five-step\nanalysis). In this case, the Secretary reached the fourth\nunable to do his former work. After the alleged onset\ndate of Barlow's disability on December 31, 1982, he\nstep in the analysis and determined that Barlow was not\nwas employed briefly by two small engine repair com-\ndisabled because he was able to perform his past rele-\nvant work as a small engine mechanic. J. App. at 177\npanies. Barlow's former employer Leonard W. Riley\nstated:\n(ALJ Decision). Once the Secretary determines that an\napplicant can perform past relevant work, the applicant\n[Barlow] could not stand up to work. At some times\nwill be found to be \"not disabled\" despite the applicant's\nhe would have to sit down in the chair and lean against\nimpairments. See 20 C.F.R. § 404.1520(e). Thus, our\ninquiry is limited to whether the Secretary's finding that\nthe counter. I had to let Albert go because he could not\nwork very long standing up. So he was laid off\nBarlow can perform his past relevant work is supported\nby substantial evidence.\nJ. App. at 94. Former employer Rick Howse stated:\nThe vocational expert testified that Barlow's prior\n\"Albert Barlow worked at S and H Small Engine Repair\nwork as a small engine mechanic had an exertional level\nin 1983. He was under a doctor's care and could not\nof \"medium,\" and the ALJ determined that Barlow's\nwork anymore due to illness.\" Id. at 95. While the\nimpairments did not preclude him from performing\nSecretary is not required to discuss in its decision each\n\"medium\" work. J. App. at 176. Section 404.1567 de-\npiece of evidence in the record, see Walker V. Secretary\nPage 22\n1991 U.S. App. LEXIS 4121, *16\nof Health and Human Services, 884 F.2d 241, 245\nIn Blankenship, the court noted that while a claimant's\n(6th Cir. [*17] 1989) (reviewing court may examine\nmedical evidence may suggest that despite his pain he\nall the evidence even if it has not been cited in the\ncould perform \"medium work\", this physical [*18] pain\nSecretary's decision), the employer statements bear di-\ntaken with the claimant's mental impairments might re-\nrectly on Barlow's ability to perform his prior work and\nsult in disability. Id. at 1123. In making its finding\nshould have been considered.\nthat Barlow could perform his prior work, the Secretary\nshould have addressed the cumulative effects of Barlow's\nSecond, we have some concern over the completeness\nmental impairments on his subjective ability to endure\nof the Secretary's assessment of Barlow's credibility as\nhis physical pain. n2\nto his pain. This court has frequently held that cred-\nibility determinations are best left to the trier of fact\nand that such findings will not normally be disturbed.\nn2 Barlow raised numerous additional arguments\nSee. e.g, Gooch V. Secretary of Health and Human\non appeal. However, after careful consideration, we\nServices, 833 F.2d 589, 592 (6th Cir. 1987). However,\nfind these arguments to be without sufficient merit\nin this case it appears that the ALJ did not consider the\nto warrant separate discussion.\neffects of Barlow's subjective pain in light of his men-\ntal impairments. In Blankenship V. Bowen, 874 F.2d\nIII.\n1116, 1123-24 (6th Cir. 1989), this court suggested\nthat a claimant's subjective mental impairments, such\nFor the foregoing reasons, we REMAND to the\nas nervousness, anxiety, and depression must be consid-\nSecretary for further proceedings consistent with this\nered in conjunction with the claimant's subjective phys-\nopinion.\nical pain to determine whether the claimant is disabled.\nPage 15\nREVERSED\n11TH CASE of Level 1 printed in FULL format.\nTENNESSEE HEALTH CARE ASSOCIATION, Plaintiff-Appellant, V. COMMISSIONER,\nTENNESSEE DEPARTMENT OF HEALTH AND ENVIRONMENT, Defendant-Appellee.\nNos. 91-5789, 91-6220\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\n1992 U.S. App. LEXIS 3480\nFebruary 26, 1992, Filed\nNOTICE: [*1] NOT RECOMMENDED FOR FULL-\nFinancing Administration (\"HCFA\") for HCFA's ap-\nTEXT PUBLICATION. SIXTH CIRCUIT RULE 24\nproval. Failure of state Medicaid participants to have\nLIMITS CITATION TO SPECIFIC SITUATIONS.\nan approved state plan could result in a loss of federal\nPLEASE SEE RULE 24 BEFORE CITING IN A\nfinancial participation to THCA's members.\nPROCEEDING IN A COURT IN THE SIXTH\nCIRCUIT. IF CITED, A COPY MUST BE SERVED ON\nThe changes in the state's Medicaid plan were pre-\nOTHER PARTIES AND THE COURT. THIS NOTICE\npared in response to the district court's order in Linton\nV. Commissioner of Health and Environment, No.\nIS TO BE PROMINENTLY DISPLAYED IF THIS\nDECISION IS REPRODUCED.\n3:87-0941 (M.D. Tenn. Apr. 20, 1990). In Linton,\nthe district court found that defendant's Limited Bed\nCertification policy violated the Medicaid Act and Title\nSUBSEQUENT HISTORY: Reported as Table Case at\nVI of the Civil Rights Act of 1964. THCA participated\n956 F.2d 270, 1992 U.S. App. LEXIS 7804.\nin Linton as amicus curiae. It was THCA's position\non October 22, 1990 when it filed this action that the\nPRIOR HISTORY: On Appeal from the United States\nDistrict Court for the Middle District of Tennessee.\nchanges in the state Medicaid plan required by Linton\n(the \"Linton plan\") were a material change in the state's\nDistrict No. 90-00923. John T. Nixon, District Judge\npolicy and, as such, federal regulations required formal\nDISPOSITION: REVERSED.\nsubmission of the Linton plan to HCFA for its review.\n42 C.F.R. § 430.12(c).\nJUDGES: BEFORE: KENNEDY and JONES, Circuit\nOn January 24, 1991, THCA received a letter from\nJudges; PECK Senior Circuit Judge.\nGeorge Holland, Regional Administrator of HCFA\nRegion IV. As Regional Administrator, Holland has the\nOPINIONBY: PER CURIAM\nauthority pursuant to 42 C.F.R. § 430.15 to approve\nMedicaid state plan amendments. [*3] Holland's letter\nOPINION: PER CURIAM: Plaintiff-appellant\nstated that HCFA had reviewed the Linton plan and con-\nTennessee Health Care Association (\"THCA\") appeals\ncluded that no formal state plan amendment was required\nthe order of the District Court that awards attorney's\nand that the Linton plan was consistent with federal re-\nfees to defendant-appellee, Commissioner of the\nquirements.\nTennessee Department of Health, as a condition of\nAlthough THCA disagreed with Holland's con-\ndismissal of this action. For the reasons to follow, we\nclusions, it realized that review by the Regional\nREVERSE.\nAdministrator was the sole reason that THCA had\nI.\nsought to compel defendant to submit the Linton plan.\nBecause Holland had informally approved the Linton\nTHCA is an organization of over 250 health care fa-\nplan, THCA concluded that further proceedings in this\ncilities throughout Tennessee. THCA filed this action\nunder 42 U.S.C. § 1396(a) of the Medicaid Act and\naction would be unproductive. THCA contacted defen-\ndant's counsel and sought a voluntary dismissal of this\n42 U.s.C. § 1983 for declaratory and injunctive relief\naction without prejudice, which defendant refused. On\nagainst defendant. THCA sought to compel defendant\nJanuary 28, 1991, THCA filed in the District Court\nto comply with the Medicaid Act by filing changes in\na motion to dismiss under Fed. R. Civ. P. 41(a)(2)\nthe state's Medicaid plan [*2] with the Health Care\nPage 16\n1992 U.S. App. LEXIS 3480, *3\nwith prejudice which was opposed by defendant. In de-\nsections 1981, 1982, 1983, 1985 and 1986 of this title,\nfendants response to THCA's motion, defendant sought\ntitle IX of Public Law 92-318, or title VI of the Civil\ndismissal with prejudice and an assessment of costs and\nRights Act of 1964, the court, in its discretion, may al-\nattorney's fees against THCA\nlow the prevailing party, other than the United States, a\nThe District Court assigned the pending motions to\nreasonable attorney's fee as part [*6] of the costs.\nMagistrate Judge William J. Haynes, Jr. The Magistrate\nIn Christiansburg Garment Co. V. EEOC, 434 U.S.\nJudge issued a Report and Recommendation on May 2,\n412 (1978), the Supreme Court articuiated the criteria\n1991, which recommended that the District Court grant\nthat govern the award of attorney's fees to a prevailing\nTHCA's motion to dismiss upon [*4] the conditions that\ndefendant in a civil rights action. The Court stated:\nthe action be dismissed with prejudice and that THCA\npay defendant's costs and attorney's fees. The District\na district court may in its discretion award attorney's\nCourt adopted the Report and Recommendation on May\nfees to a prevailing defendant in a Title VII case upon\n24, 1991. THCA timely filed this appeal.\na finding that the plaintiffs action was frivolous, unrea-\nII.\nsonable, or without foundation, even though not brought\nin subjective bad faith.\nTHCA argues that dismissal under Fed. R. Civ. P.\n41(a)(2) conditioned upon payment of costs and attor-\nId. at 421. In other language the Court stated:\nney's fees was improper. We review the District Court's\norder granting a dismissal under Rule 41(a)(2) for an\na plaintiff should not be assessed his opponent's at-\nabuse of discretion. Andes V Versant Corp., 788 F.2d\ntorney's fees unless a court finds that his claim was\n1033 (4th Cir. 1986); 5 Moore's Federal Practice §\nfrivolous, unreasonable, or groundless, or that the plain-\n41.05[1]. Rule 41(a)(2) provides in pertinent part:\ntiff continued to litigate after it clearly became so.\nExcept as provided in paragraph (1) of this subdivision\nId. at 422. The application of this standard for an award\nof this rule, an action shall not be dismissed at the plain-\nof attorney's fees to defendants pursuant to section 1988\ntiffs instance save upon order of the court and upon such\nwas adopted by this Court in Tarter V. Raybuck, 742\nterms and conditions as the court deems proper.\nF.2d 977 (6th Cir. 1984), cert. denied 470 U.S. 1051\nUnless otherwise specified in the order, a dismissal un-\n(1985).\nder this paragraph is without prejudice.\nThe Magistrate Judge concluded that THCA's filing of\nIn Smoot V. Fox, 353 F.2d 830 (6th Cir. 1965), cert.\nthis action was \"unreasonable\" under the Christiansburg\ndenied sub nom. League of Women Voters V. Smoot, 384\nstandard [*7] because the Magistrate Judge found that\nU.S. 909 (1966), this Court held that an award of attor-\nTHCA's amicus curiae comments in Linton raised the is-\nney's fees is not proper when a dismissal is with preju-\nsue of whether defendant must obtain HCFA's approval\ndice. [*5] The Court contrasted a dismissal with preju-\nof the Linton plan. The standard of review applied by\ndice to a dismissal without prejudice, in which attorney's\nthis Court to an award of attorney's fees under section\nfees are given. The Court reasoned that when the dis-\n1988 is whether the District Court abused its discretion\nmissal is without prejudice attorney's fees are awarded\nin making the award. Id. at 986. We find that the\nto compensate the defendant for his expenses because the\nDistrict Court has abused its discretion and that defen-\naction may be brought again. In a dismissal with preju-\ndant is not entitled to an award of attorney's fees.\ndice the cause of action is terminated and the defendant\nWe cannot conclude that THCA's claim was frivolous\nwill not have to defend again, so the Court found no\nor without foundation. The Linton plan arguably was\nreason to award attorney's fees. Id. at 833. Viewing\na material change in the state's Medicaid policy, which,\nthis precedent in our Circuit, we find that the District\nCourt abused its discretion in conditioning dismissal of\nunder federal regulations, would require HCFA's ap-\nproval. At the time this action was filed, there had\nthis action upon payment of attorney's fees.\nbeen no amendment to the state plan to incorporate the\nIII.\nchanges made by the Linton plan, and defendant had re-\nfused to submit the plan to HCFA The Magistrate Judge\nWe further must determine whether there is statutory\nfound that in Linton THCA as amicus curiae raised the\nauthority under the Civil Rights Attorney's Fee Awards\nissue of whether defendant must obtain approval of the\nAct of 1976, 42 U.S.C. § 1988, for the District Court's\nLinton plan prior to its implementation THCA argues\norder. Section 1988 provides in pertinent part:\nin its brief that the District Court never considered or\nresolved the issue of whether the [*8] state plan would\nIn any action or proceeding to enforce a provision of\nPage 17\n1992 U.S. App. LEXIS 3480, *8\nrequire amendment. In Linton, THCA's comments in-\nwas not a party in Linton and therefore bad no right of\ncluded:\nappeal.\nWhen THCA received Holland's letter, it became clear\nHCFA has not participated in the formulation of the pro-\nposal. Rather, the parties alone developed the remedy an\nthat proceeding with this [*9] action was unproductive\nmerely \"appraised\" HCFA of the plan, leaving substan-\nbecause HCFA had found that the state plan would not\ntial gaps for HCFA's consideration at a later date\nrequire amendment. Concern over whether the state plan\nrequired amendment was the reason THCA had filed this\nimmediate implementation would therefore be contrary\nto the court's order. The court cannot enter a reme-\naction to compel defendant to submit the Linton plan for\ndial order until HCFA's consultation has been secured\nHCFA's approval. THCA attempted to dismiss this ac-\nas required by the court's order.\ntion as soon as it became apparent that submission of the\nLinton plan to HCFA would not achieve what THCA\nsought. Therefore, we find that THCA's claim was not\nDefendant has not presented evidence that leads us to\nconclude that the district court in Linton decided the is-\nunreasonable at the time this action was filed, and when\nsue of whether the Linton plan needed HCFA's approval\nthis action became unnecessary THCA attempted to end\nin order to comply with federal regulations. If the dis-\nthe litigation. We hold that under the standard set forth\nin Christiansburg, the District Court abused its discre-\ntrict court decided anything along these lines, it may\nhave decided that approval was not required prior to im-\ntion by awarding attorney's fees to defendant.\nplementation of the Linton plan. Even if the district\nIV.\ncourt had decided in Linton that the Linton plan did not\nAccordingly, the order of the District Court that orders\nrequire HCFA's approval, THCA would have to chal-\nTHCA to pay defendant's attorney's fees is REVERSED.\nlenge this decision in a collateral proceeding. THCA\nPage 39\n18TH CASE of Level 1 printed in FULL format.\nSTATE OF TENNESSEE ex rel. WILLIAM M. LEECH, Jr., Attorney General & Reporter,\nPlaintiff-Appellee, V. ELIZABETH H. DOLE, in her official capacity as Secretary, United States\nDepartment of Transportation, R. A. BARNHART, in his official capacity as Administrator, Federal\nHighway Administration, United States Department of Transportation, and E. G. OAKLEY, in his official\ncapacity as Division Administrator, Federal Highway Administration, United States Department of\nTransportation, Defendants-Appellants\nNo. 83-5499\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\n749 F.2d 331; 1984 U.S. App. LEXIS 16347; 1984-2 Trade Cas. (CCH) P66,318\nAG.\nSeptember 20, 1984, Argued\nNovember 29, 1984\nSUBSEQUENT HISTORY: [**1]\nprojects. Brought by the State against federal road offi-\ncials for injunctive and declaratory relief, the|principal\nPetition for Rehearing En Banc Denied January 21,\n1985.\nquestions are whether the relationship between the State\nas a federal grant recipient [**2] and its federal grantor is\nPRIOR HISTORY:\ngoverned by the law of restitution or unjust enrichment\nON APPEAL from the United States District Court for\nunder federal common law principles and whether juris-\nthe Middle District of Tennessee.\ndiction of such issues resides exclusively in the Court of\nClaims, rather than the District Courts, under the Tucker\nAct. We hold that the State's claims to all the money\nCOUNSEL: Anthony J. Steinmeyer, Douglas Letter,\nDepartment of Justice, Appellate Staff - Civil Division,\nrecovered, though outside the Tucker Act, are contrary\nto applicable legal principles of unjust enrichment aris-\nWashington, District of Columbia, Kenneth N.\nWeinstein, Dept. of Transportation, S.W., Washington,\ning from benefits conferred by mistake; and we remand\nthe case to the District Court to weigh the equities of\nDistrict of Columbia, James R. Dann, Federal Highway\nthe parties in order to determine the precise amount of\nAdmin., Washington, District of Columbia, for\nthe State's recovery owed as restitution to the federal\nAppellants.\ngovernment.\nWilliam M. Leech, Jr., Attorney General of\nI.\nTennessee, Nashville, Tennessee William J. Haynes, Jr.,\nfor Appellee.\nThe process of federal highway construction funding\nproceeds through several stages. Congress authorizes\nJUDGES: Merritt and Jones, Circuit Judges; Bell,\na division of funds for each state according to a statu-\nDistrict Judge. *\ntory formula. These funds are initially maintained in\nan account called an \"unprogrammed balance account\"\n* The Honorable Samuel H. Bell, Judge of the\nUnited States District Court for the Northern District\nadministered by the Federal Highway Administration of\nthe Department of Transportation. In order to draw on\nof Ohio, sitting by designation.\nthe account, the state must first have its highway pro-\nOPINIONBY: MERRITT\ngram approved and then later have its plans for indi-\nvidual projects approved. Once a project is approved\n[**3] a bookkeeping entry is made shifting the funds\nOPINION: [*332] MERRITT, Circuit Judge.\ninto a project account. After the project is bid out by\nThis case is in effect a fight between the State of\nthe state, federal road officials must approve the award\nTennessee and the United States over damages the State\nof the bid. A project agreement is then executed with\nhas recovered from bid riggers on federally funded road\nthe state. The agreement obligates the government to\nPage 40\n749 F.2d 331, *332; 1984 U.S. App. LEXIS 16347, **3;\n1984-2 Trade Cas. (CCH) P66,318\nreimburse the [*333] state for a share of the construc-\ncials the information they requested regarding the settle-\ntion costs -- usually ninety percent on interstate high-\nments, the federal officials computed from the informa-\nway projects and seventy-five percent on most other\ntion they had in their files a sum in excess of $4.5 million\nprojects. There are various rules regarding the lapse of\nthat they claimed must be set off against current high-\nunexpended funds, and in recent years the Secretary has\nway funds allocated to the State of Tennessee, thereby\nimposed an inflation-fighting or a deficit-fighting ceil-\nreducing the State's funding on current projects. The\ning on each state's expenditures in an amount less than\nfederal officials took the position, however, that \"the\nthe Congressional authorization. In 1982, for example,\nsums subtracted from the current billings\" -- the $4.5\nCongress authorized $171 million for Tennessee; but the\nmillion setoff \"can be restored to the unprogrammed\nSecretary's ceiling limited Tennessee to $144 million.\nbalance\" of funds for future [**6] highway construction\nprojects in Tennessee.\nAfter the Justice Department obtained criminal con-\nvictions against approximately 70 firms and individuals\nThe federal officials now take the position that this\nfor bid rigging on Tennessee road projects in violation\nmethod of handling the $4.5 million setoff will have the\nof the Sherman Antitrust Act, the Tennessee Attorney\neffect of reducing current year federal highway funding\nGeneral entered into settlements with some of the con-\nfor Tennessee road projects but will increase by precisely\ntractors for approximately $12 million. The State ad-\nthe same amount road funds for Tennessee's use in fu-\nmits that a significant portion of this amount is [**4] at-\nture years. The State disputes this contention. It claims\ntributable to the contribution of the federal government\nthat under the Highway Act the State will have to come\nto state highway projects, although the record is unclear\nup with approximately twenty-five percent in matching\nas to the exact amount of the settlements, the amount\nfunds, or $1,200,000, in order to get the benefit in fu-\nso far collected and the amount attributable to the fed-\nture years of the $4.5 million that will be taken by the\neral contribution. The theory of the settlements is that\nsetoff from the State's settlement funds. The State fur-\nthe bid rigging contractors fixed the prices paid by the\nther contends that the $4.5 million setoff is expressly\nState on highway projects and that the State paid high-\n\"subject to available obligation authority\" and that it is\nway construction contract prices higher than the prices\nunlikely that the State will actually receive the benefit of\nthat otherwise would have prevailed. The federal offi-\nthe $4.5 million credit in future years in light [*334] of\ncials would not have funded the projects, and the State\nthe ceilings now being imposed. The record is unclear\nwould not have accepted the bids, had they known that\nas to the actual effect, in dollars and cents, of the $4.5\nthe bid prices were the result of contractor collusion.\nmillion setoff against current funding because it is un-\nclear how much of this money will be restored in future\nWhen the State initiated its investigation, antitrust\nAssistant Attorney General Litvack advised Tennessee\nyears.\nAttorney General Leech that his office \"had no interest\nA stalemate occurred in the negotiations between the\nin Tennessee's efforts to recover any over charges due\nparties, and [**7] the State filed this action in January,\nto bid rigging on federal highway construction projects\"\n1983. In its complaint the State claimed that the federal\nand that Tennessee's efforts to recover \"were matters for\ngovernment is not entitled to any portion of the settle-\nthe State and its officials.\"\nment fund and requested that the District Court enjoin\nthe federal defendants from taking any administrative\nDespite these assurances from the Antitrust Division,\naction to retrieve by setoff the federal share of such re-\nin mid-1981, more than a year after the State investiga-\ncoveries.\ntion and settlement process had begun, federal highway\n[**5] officials wrote a series of letters addressed to var-\nThe defendants opposed the injunction on the grounds\nious Tennessee officials, including the Commissioner of\nthat the action is in effect a suit on a contract with the\nTransportation and the Attorney General, seeking in-\nUnited States for more than $10,000 and that under the\nformation concerning settlements made for the purpose\nTucker Act only the Court of Claims has jurisdiction\nof determining how much of the settlement should be\nof such contract actions. On the merits the defendants\nattributed to the federal share contributed to highway\nargued that federal policy and common law legal prin-\nprojects. The State officials in response consistently\nciples of restitution require that when a state recovers\ntook the position that \"we have researched the law in\nover-charges on federal aid highway projects, the federal\nthis matter,\" and \"we cannot discern any legal basis\"\nshare of the recovered sum must be credited back to the\nfor the claim of the federal road officials that the fed-\nprojects on which the over-charges occurred. The defen-\neral government should \"participate in the State antitrust\ndants argued that only by such a credit could the federal\nsettlement fund.\"\nshare of road construction programs be kept within statu-\ntory limits set out in the Highway Act, 23 U.S.C. § 120,\nWhen State officials refused to give federal road offi-\nPage 41\n749 F.2d 331, *334; 1984 U.S. App. LEXIS 16347, **7;\n1984-2 Trade Cas. (CCH) P66,318\nand that if the State keeps the entire recovery, it will be\nobserved:\nunjustly enriched by collecting this money twice, once\nfrom the federal government [**8] initially as a part of\nThe obvious effect of this modification, subject only\nthe project cost and then from the bid riggers in settle-\nto preclusion-of-review statutes created or retained by\nment of their over charges.\nCongress, is to confer jurisdiction on Federal Courts to\nAfter concluding that the Tucker Act constituted no\nreview agency action, regardless of whether the APA of\nbar to its jurisdiction, the District Court held that once\nits own force may serve as a jurisdictional predicate.\nfederal highway funds are apportioned to the states, or\nalternatively, once federal road officials approve a partic-\nCalifano V. Sanders, 430 U.S. 99, 105, 51 L. Ed.\nular state project, the funds become state funds and are\nin the nature of outright \"gifts\" to the states in which\n2d 192, 97 S. Ct. 980 (1977). In determining\nthe federal government no longer has a legal interest.\nwhether the Court of Claims has exclusive jurisdiction\nin this case, we must therefore \"be careful not to sub-\nThe Court further held that the federal defendants have\nno statutory or other authority to set off or otherwise\nvert congressional objectives underlying the enactment\nrecover such \"gifts\" paid through mistake. Finally, as\nof the judicial review statute by allowing the govern-\nan alternative holding, the Court found that the govern-\nment to give an overly expansive scope to the notion\nof claim 'founded upon' a contract.\" C. WRIGHT, A.\nment is equitably estopped from attempting to recover\nMILLER & E. COOPER, FEDERAL PRACTICE AND\nthe federal share of the settlement funds because former\nantitrust Assistant Attorney General Litvack had denied\nPROCEDURE § 4101, at 210-11 (1978).\na federal interest in the settlement efforts. 567 F. Supp.\n704.\nAccordingly, the District Court enjoined the federal\nn1 28 U.S.C. § 1346(a) (2) provides:\ndefendants from setting off the federal share of the set-\n(a) The district courts shall have original juris-\ntlement fund against current billings.\ndiction, concurrent with the United States Claims\nCourt, of:\nII.\nThe federal government argues that the District Court\n(2) Any other civil action or claim against the\nlacked jurisdiction because [**9] the Tucker Act, par-\nUnited States, not exceeding $10,000 in amount,\nticularly 28 U.S.C. § 1346(b) and 28 U.S.C. § 1491(a)\nfounded either upon the Constitution, or any Act\n(2), vests exclusive jurisdiction over this suit in the\nof Congress, or any regulation of an executive de-\nCourt of Claims. n1 While these [*335] provisions\npartment, or upon any express or implied contract\ncould well be read as precluding District Court juris-\ndiction over all claims not within the $10,000 limit that\nwith the United States, or for liquidated or unliqui-\ndated damages in cases not sounding in tort, except\ncould have been brought in the Court of Claims under\nthat the district courts shall not have jurisdiction of\n28 U.S.C. § 1491(a), such a literal reading of the sub-\nany civil action or claim against the United States\nstantive claims encompassed by that provision has long\nbeen rejected. Instead, \"it is not every claim involving\nfounded upon any express or implied contract with\nor invoking the Constitution, a federal statute or reg-\nthe United States or for liquidated or unliquidated\ndamages in cases not sounding in tort which are sub-\nulation which is cognizable in the Court of Claims.\"\nject to sections 8(g) (1) and 10(a) (1) of the Contract\nEastport Steamship Corp. V. United States, 178 Ct. Cl.\nDisputes Act of 1978. For the purpose of this para-\n599, 372 F.2d 1002, 1007 (1967). Exclusive Court of\ngraph, an express or implied contract with the Army\nClaims jurisdiction is limited to suits founded on con-\ntract involving more than $10,000. C. WRIGHT, A.\nand Air Force Exchange Service, Navy Exchanges,\nMarine Corps Exchanges, Coast Guard Exchanges,\nMILLER & E. COOPER, FEDERAL PRACTICE AND\nPROCEDURE § 4101, at 210 (1978). This limitation is\nor Exchange Councils of the National Aeronautics\nand Space Administration shall be considered an ex-\nespecially important in light of the 1976 amendments to\npress or implied contract with the United States.\n28 U.S.C. § 1331 (a), which eliminated the requirement\nof a specified amount in controversy as a prerequisite to\nthe maintenance in District Court of an action \"brought\n28 U.S.C. § 1491 (a) (1) provides in part:\nagainst the United States, any agency thereof, [**10]\nor any officer or employee thereof in his official ca-\nThe United States Claims Court shall have ju-\npacity.\" Pub. L. No. 94-574, 90 Stat. 2721 (1976).\nrisdiction to render judgment upon any claim\nn2 Interpreting this provision, the Supreme Court has\nagainst the United States founded either upon the\nPage 42\n749 F.2d 331, *335; 1984 U.S. App. LEXIS 16347, **10;\n1984-2 Trade Cas. (CCH) P66,318\nConstitution, or any Act of Congress or any regu-\nsized in United States V. Mitchell, 463 U.S. 206, 103 S.\nlation of an executive department, or upon any ex-\nCt. 2961, 2968, 77 L. Ed. 2d 580 (1983), a claim is\npress or implied contract with the United States, or\nonly cognizable under the Tucker Act if it is for money\nfor liquidated or unliquidated damages in cases not\ndamages and is based on a source of substantive law\nsounding in tort.\nmandating compensation by the Federal Government. It\nis doubtful, therefore, whether this suit could even be\n[**11]\nheard by the Court of Claims, as plaintiff seeks only\nn2 As further amended in 1980, § 1331 now pro-\ndeclaratory and injunctive relief. While it is clear that a\nclaimant may not avoid the exclusive jurisdiction of the\nvides for federal court jurisdiction of \"all civil ac-\nCourt of Claims merely by framing a complaint to seek\ntions arising under the Constitution, laws or treaties\nnonmonetary relief when the result would be the equiv-\nof the United States.\" (Pub. L. No. 96-486, 94 Stat.\nalent of obtaining money damages, American Science\n2369), (1980).\n& Engineering, Inc. V. Califano, 571 F.2d 58, 61-\n62 (1st Cir. 1978), neither does the Court of Claims\nThe present case is not an action upon a contract for\npossess exclusive jurisdiction simply because a suit for\ndamages. It is rather an action for injunctive relief to\nnonmonetary relief may form the basis for a later money\nprevent the defendants from carrying out a policy of de-\njudgment. See Beller V. Middendorf, 632 F.2d 788,\nducting under a theory of unjust enrichment amounts\n799 (9th Cir. 1980), cert. denied, 452 U.S. 905, 69 L.\npreviously paid to the State by mistake. The Court of\nEd. 2d 405, 101 S. Ct. 3030, reh. denied, 454 U.S.\nClaims does not have exclusive jurisdiction over this\n1069, 102 S. Ct. 621, 70L. Ed. 2d 605 (1981); Glines\nsuit, because although the federal government seeks to\nV. Wade, 586 F.2d 675, 681 (9th Cir. 1978). District\nrecoup its share of the State's recovery by refusing to\nCourt jurisdiction [**14] in the present case thus sup-\nhonor vouchers submitted by the State, the main issues\nports the Congressional policy of liberalized judicial re-\nin the case sound in restitution, not contract. The Court\nview animating the 1976 amendments to § 1331, while\nof Claims does not have exclusive jurisdiction over a\nrespecting the Court of Claims' special competence and\nsuit merely because it raises contract related issues. See\nexperience in cases involving the interpretation and re-\nB.K. Instrument, Inc. V. United States, 715 F.2d 713,\nview of government contracts.\n727 (2d Cir. 1983) (action alleging that government\nIII.\ncontract was awarded in violation of statutory proce-\ndures); Megapulse, Inc. V. Lewis, 217 U.S. App. D.C.\nThe federal common law is the source of the legal prin-\n[**12] 397, 672 F.2d 959, 968 (D.C. Cir. 1982) (Court\nciples which govern the parties' claims in this action.\nof Claims did not have exclusive jurisdiction over suit\nThe federal common law controls rights of recovery in\nby government supplier seeking to enjoin Coast Guard\ndisputes between the federal government and others aris-\nfrom releasing to the public data on the product sup-\ning from legal relationships created but not fully defined\nplied). Aleutco V. United States, 244 F.2d 674, 678\nor delineated by federal constitutional and statutory law.\n(3rd Cir. 1957) (District Court had jurisdiction over\nSee Clearfield Trust Co. V. United States, 318 U.S. 363,\nsuit for conversion brought by a purchaser of surplus\n87 L. Ed. 838, 63 S. Ct. 573 (1943); Textile Workers\ngovernment materials when the Navy refused to release\nUnion V. Lincoln Mills, 353 U.S. 448, 1 L. Ed. 2d 972,\nthe goods). Courts have previously found jurisdictional\n77 S. Ct. 912 (1957); Bivens V. Six Unknown Named\nauthority under 28 U.S.C. § 1331 to hear suits involv-\nAgents of Federal Bureau of Narcotics, 403 U.S. 388,\ning the legality of impoundment of highway funds, State\n29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971); Friendly,\nHighway Commission of Missouri V. Volpe, 479 F.2d\nIn Praise of Erie -- and of the New Federal Common\n1099, 1105 (8th Cir. 1973), and disbursement to state\nLaw, 39 N.Y.U. L. Rev. 383 (1964). The government's\neducation agencies of federally provided funds, People\nunjust enrichment claims based on benefits conferred by\nEx Rel Bakalis V. Weinberger, 368 F. Supp. 721, 723\nmistake under the Federal Highway Act and the State's\n(N.D. Ill. 1973). The present suit is likewise clearly\nrejection of such claims [**15] are governed, therefore,\nnot \"grounded in contract\" and therefore not subject to\nby federal common law.\nexclusive Court of Claims jurisdiction.\nIV.\nOur decision that the District Court properly exer-\nUnder federal common law principles, the District\ncised jurisdiction over plaintiff's claim recognizes the\nCourt was clearly mistaken in holding that the govern-\npolicy of preserving the Tucker Act's limited and condi-\nment cannot take advantage of the law of restitution to\ntional [*336] waiver of sovereign immunity in contract\nrecover grant monies paid out through mistake. The\nactions. Indeed, [**13] as the Supreme Court empha-\nfederal share was not an outright \"gift\" with no strings\nPage 43\n749 F.2d 331, *336; 1984 U.S. App. LEXIS 16347, **15;\n1984-2 Trade Cas. (CCH) P66,318\nattached. It was paid to the State for particular purposes\nrather than the avoidance of a transfer.\" Id. § 5, at\nsubject to definite conditions. It contemplated construc-\n58.\ntion contracts and valid competitive bidding.\nThe record before us does not contain facts that would\nThe earlier federal cases on this subject involve con-\nallow us to balance the equities of the situation. The\ntract carriers of mail, naval and other 19th Century de-\nrecord does not show the State's costs of recovery or\nfense contractor claims, and the claims of military offi-\nthe percentage of the recovery \"generated\" by the State's\ncers. In Wisconsin Central R.R. Co. V. United States,\n\"own rightful contribution of effort, capital or skill.\" Id.\n164 U.S. 190, 208-09, 211, 41L Ed. 399, 17S. Ct. 45\n§ 1, at 23. It does not show what percent of the setoff\n(1896), a mail contract case, Chief Justice Fuller reviews\nmoney, if any, the federal defendants [**18] will, in fact,\nmany of the older cases on government monies similarly\nreturn to the State in the future, i.e., the costs to the State\npaid through mistake. \" 'Overpayments made at one\nof having the recovered money set off against current\ntime by mistake,'' he says, quoting earlier cases, can \"\naccounts but applied to future \"unobligated\" or \"unpro-\n'be corrected and properly charged against credits com-\ngrammed\" accounts. Neither does it give us any basis\ning in afterwards'\" unless 'peculiar circumstances\nto determine what percentage of the settlement money\nappear to make such recovery inequitable and unjust'\"\nthe State should be permitted to retain as an incentive\n(citations omitted).\nto pursue on behalf of the federal government as well\nas itself and recover from bid riggers the federal as well\nIn Grand Trunk Western [**16] Ry. Co. V. United\nStates, 252 U.S. 112, 120-21, 64 L. Ed. 484, 40 S. Ct.\nas the state share of project costs. We, therefore, must\nremand the case to the District Court to weigh and bal-\n309 (1920), another mail case, Justice Brandeis, relying\nance the equities concerning the precise amount of the\non the Wisconsin Central case, reiterates the point that\nfederal share the state should be permitted to retain and\n\"it was the duty of the Postmaster General to seek to re-\nthe precise amount it owes to the federal government as\ncover [for] over payment[s],\" and he \"was at liberty to\nrestitution. Until the District Court concludes this pro-\ndeduct the amount of the over payment [*337] from the\nSee also United States\ncess, it may continue its injunction preserving the status\nmonies otherwise payable.\nquo in effect.\nV. Mead, 426 F.2d 118 (9th Cir. 1970) (applying unjust\nenrichment principles arising from benefits conferred by\nVI.\nmistake to government payment to farmer-contractor in\nIt is clear that the doctrine of equitable estoppel\nfarm conservation program).\n- based in this case on the conversation between the\nV.\nState Attorney General and antitrust Assistant Attorney\nGeneral Litvack -- is no bar to recovery or setoff of the\nThe case below was tried on a basis inconsistent with\nfederal share by the defendants. In the first place, the\ngeneral principles of restitution. The case was tried on\nequitable estoppel argument [**19] is misplaced here be-\nan all-or-nothing basis -- either the State is entitled to\ncause Litvack did not specifically address the question\nkeep all the bid rigger money recovered or the federal\nofficials are entitled to a full setoff and restitution of all\nof recovery of the federal share by federal road officials\nunder the Highway Act. He was talking about federal\nof the federal share initially paid on the projects. In fact,\nrecovery from the bid riggers under the antitrust laws.\nprinciples of restitution are flexible, not rigid, as Chief\nEven if this were not the case, \"it is well settled that\nJustice Fuller indicated in the Wisconsin Central case,\nthe government may not be estopped on the same terms\nsupra. They take into account, as he said, the \"peculiar\ncircumstances\" of the situation [**17] and often require\nas any other litigant.\" Heckler V. Community Health\nServices of Crawford County, Inc., 467 U.S. 51, 104 S.\nthe balancing of equities. Id. Although \"accountability\nCt. 2218, 2224, 81 L. Ed. 2d 42 (1984). The doc-\nfor benefit received is a core characteristic of restitu-\ntrine of equitable estoppel does not apply here, just as it\ntion law,\" it is also true that \"what constitutes a 'benefit'\ndid not apply in Heckler, because the only \"detriment\"\nis at times a perplexing problem on which judgments\nmay differ.\" RESTATEMENT 2d, RESTITUTION § 1,\nto the party asserting estoppel against the government\nis simply its \"inability to retain money that it should\nUnderlying Principles of Restitution, at 14, 23 (Tent.\nnever have received in the first place.\" Id. 104 S. Ct.\nDraft No. 1, April, 1983). \"There is an independent\nat 2225. Not only must businessmen and administra-\nprinciple that the receipt of gain is not unjust enrichment\ntors, as Justice Stevens reminds us in Heckler, quoting\nto the extent that the recipient generated it by his own\nfrom Holmes, \"turn square corners when they deal with\nrightful contribution of effort, capital or skill.\" Id. \"In\n[*338] the government,\" they may not bend the govern-\napplication, the principle [of benefit conferred through\nment's mistake into a windfall for themselves. Id. 104\nmistake] may require restitution of part of an amount\nS. Ct. at 2225 quoting from Rock Island R.R. Co. V.\npaid, not the whole, and may require the correction\nPage 44\n749 F.2d 331, *338; 1984 U.S. App. LEXIS 16347, **19;\n1984-2 Trade Cas. (CCH) P66,318\nUnited States, 254 U.S. 141, 143, 65 L. Ed. 188, 41\nAccordingly, the judgment of the District Court is re-\nS. Ct. 55 [**20] (1920). They may not use the govern-\nversed and the case remanded for further proceedings\nment's error as an angle to enrich themselves.\nconsistent with this opinion.\nPage 45\n30TH CASE of Level 1 printed in FULL format.\nJOHNNIE L. BLAKE, Petitioner-Appellant, V. ROBERT V. MORFORD, Superintendent,\nRespondent-Appellee\nNo. 76-1639\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\n563 F.2d 248; 1977 U.S. App. LEXIS 11259\nA.G.\nJune 23, 1977, Cause Argued\nOctober 7, 1977, Decided\nPRIOR HISTORY: [**1]\ncourt denied the petition We affirm.\nAPPEAL from the United States District Court for the\nAppellant had been employed as a handyman by the\nWestern District of Tennessee.\nvictim and her husband. On May 8, 1973, the victim's\nhusband returned home from work and found his wife\nDISPOSITION: The judgment of the district court is\non the floor of a guest room dead from stab wounds in\nthe chest. The victim's neck and hands had been cut,\naffirmed.\nher clothing was torn, her dress had been pulled up, and\nher underclothing had been pulled down. In addition, in\nCOUNSEL: Johnnie L. Blake, Nashville, Tennessee,\nthe two days prior to the murder, the victim had cashed\nRobert E. Owens, Jr., Cincinnati, Ohio, for Appellant.\nchecks totaling $100, but when she was found dead, her\nR. A. Ashley, Jr., Attorney General of Tennessee,\npurse contained only $13.\nNashville, Tennessee, William J. Haynes, Jr., for\nCircumstantial evidence tied appellant to the murder.\nAppellee.\nAppellant admitted taking a knife, which was later dis-\ncovered in a culvert near the home of the victim, from\nJUDGES: Edwards and Peck, Circuit Judges, and\nWeinman, * Senior District Judge.\nthe home of his old girl friend to the victim's home.\nAppellant stated that he had taken the knife because the\n* Honorable Carl A. Weinman, Senior Judge,\nday before the murder, he had assaulted the girl friend,\nUnited States District Court for the Southern District\nand her new boy friend was looking for him.\nof Ohio, sitting by designation.\nAt about the time of the discovery of the body, appel-\nlant visited a Samuel Starks and asked him to wash some\nOPINIONBY: PECK\nof his clothes because the clothes would get him into\ntrouble. When Starks declined, [**3] appellant burned\nOPINION: [*249] PECK, Circuit Judge.\nthe clothes. At the time, appellant was observed to have\nAppellant Blake was indicted by a Shelby County,\na scratch around his ear and another scratch on his leg.\nTennessee, grand jury on the charge that he \"did un-\nHis trousers had on them what looked like blood spots.\nlawfully, feloniously, wilfully, deliberately, premedita-\nAfter appellant learned that police officers wanted to\ntively, and of malice aforethought kill and murder Sandra\ntalk to him about the homicide, he fled to Florida, where\nLee Mulherin.\" Appellant's first trial resulted in a mis-\nhe used an assumed name. Appellant was arrested in\ntrial, but at his second trial, he was convicted by a jury of\nfirst degree murder as charged in the indictment and was\nFlorida and gave statements to police officers admitting\nthat on the day of the murder, he had worked at the\nsentenced to ninety-nine years imprisonment. The con-\nviction was affirmed by the Tennessee Court of Criminal\nvictim's home but denying that he had killed her. The\njury at appellant's second trial, as indicated above, ac-\nAppeals, and the Tennessee Supreme Court denied appel-\ncepted the state's theory of the case that appellant had\nlant's petition for certiorari. [**2] Appellant then filed\ncommitted the murder.\nthis petition for a writ of habeas corpus. The district\nPage 46\n563 F.2d 248, *249; 1977 U.S. App. LEXIS 11259, **3\nAppellant now is before this Court, claiming that\nof the murder, constituting felony-murder. The Ohio\nthe State of Tennessee violated his constitutional rights.\nSupreme Court had held, however, that although both\nAppellant presents several grounds upon which he bases\nfelony-murder and premeditated murder were included\nhis claim that he is entitled to habeas corpus relief, nl\nin the same paragraph of the then existing Ohio first\nbut we conclude that only one of the issues raised merits\ndegree murder statute, felony-murder and premeditated\ndiscussion. n2\nmurder constituted separate offenses. State V. Ferguson,\n175 Ohio St. 390, 195 N.E.2d 794 (1964). Under Ohio\nnl Appellant raised three issues before the district\nlaw, appellant Watson could not be convicted of the of-\nfense of felony-murder unless he was indicted for that\ncourt and on appeal. First, he contended that he was\nconvicted on charges not a part of the indictment.\ncrime. Consequently, this Court concluded [**6] that\nSecond, he contended that he was denied a fair and\nthe state trial court had permitted a constructive amend-\nimpartial jury of his peers because blacks and women\nment of the indictment by allowing the prosecution ef-\nfectively to add a charge of felony-murder. We held\nwere not seated. Third, he contended that the jurors\nwere coerced by the state trial court to the prejudice\nthat, by such an amendment to the indictment, appellant\nWatson had been deprived of fair notice of the criminal\nof his constitutional rights by the trial judge's giving\nof the \"Allen charge.\"\ncharges to be brought against him in violation of the Due\nProcess Clause of the Fourteenth Amendment and was\n[**4]\nentitled to habeas corpus relief.\nn2 Appellant admitted in his petition for writ of\nDespite our holding in Watson, one of the appellee's\nhabeas corpus that he had not raised his allegation\nthat he was denied a fair and impartial jury and thus\narguments is that in habeas corpus proceedings, the ques-\ntion of the sufficiency of an indictment does not raise a\nwith respect to that allegation he did not exhaust his\nstate remedies. Picard V. Connor, 404 U.S. 270, 30\nconstitutional issue. This argument has merit when the\nL. Ed. 2d 438, 92 S. Ct. 509 (1971). We reject ap-\nnotice given in the indictment fairly but imperfectly ap-\npellant's claim that in the circumstances of this case,\nprises the accused of an offense for which he is to be\ntried. See Via V. Perini, 415 F.2d 1052 (6th Cir. 1969);\nhis constitutional rights were prejudiced by the state\nKimbro V. Bomar, 333 F.2d 755 (6th Cir. 1964). Such\ntrial court's action in giving the Allen charge. The\ncases, however, do not involve the very different situa-\nchallenged instruction was given to prospective ju-\nrors at the second trial in the case during voir dire\ntion present in Watson V. Jago, supra, when a constitu-\nand not when the jury was deadlocked after hearing\ntional violation occurs because an accused is not given\nproper notice in the indictment of an offense for which\nthe evidence. Moreover, defense counsel opened the\nhe is to be tried.\ndoor to the trial judge's action when he addressed the\nprospective jurors about their duties as jurors to lis-\nIn neither Via V. Perini, supra, nor Kimbro V. Bomar,\nten to the views of fellow jurors but did not correctly\nsupra, was there [**7] a failure of notice. In Via V.\nstate what those duties were.\nPerini, the petitioner had been indicted and convicted on\ntwo counts of breaking and entering and on one count\n[*250] Appellant argues that he was denied due pro-\nof assault with a deadly weapon. Petitioner's objection,\ncess of law under the Fourteenth Amendment because\nwhich was totally without merit, was that the indict-\nat his state court trial he was convicted on a charge of\nment could not properly charge him with three offenses.\nfelony-murder when the indictment only charged first\nIn Kimbro V. Bomar, the petitioner was indicted for\nmurder in the first degree and murder in the perpetra-\ndegree [**5] premeditated murder. Appellant thus con-\ntends that this Court's recent decision in Watson V. Jago,\ntion of a robbery. The jury found the petitioner guilty\nof murder in the first degree as charged in the second\n558 F.2d 330 (6th Cir. 1977), mandates the reversal of\nthe district court.\ncount of the indictment. In seeking habeas corpus relief,\nthe petitioner alleged that the indictment was defective.\nIn Watson V. Jago, supra, appellant Watson was in-\nThis Court observed that under Tennessee law, felony-\ndicted under the existing Ohio first degree murder statute\nmurder was first degree murder and held that whatever\nfor premeditated murder. At his state court trial, the\ndefect might have existed in the indictment, there was\nprosecution, in its opening statement and through its\nno constitutional error in the circumstances of the case.\npresentation of witnesses, announced that it would show\nThus, appellant raises a constitutional issue by alleg-\nand then attempted to establish not only that appellant\ning that he was convicted on a charge not stated in the\nWatson had killed the victim with premeditation (in an\nindictment. We believe, however, that the present case is\neffort to prove premeditated murder), but also that ap-\nnot controlled by Watson V. Jago, supra. In the present\npellant Watson was engaged in a robbery at the time\nPage 47\n563 F.2d 248, *250; 1977 U.S. App. LEXIS 11259, **7\ncase, the Tennessee state court was not requested to and\nmurder.\ndid not permit a constructive amendment [**8] of the\nindictment when the prosecution presented proof show-\n[**10]\ning that there had been a rape and a robbery committed\nIn Sullivan V. State, supra, 173 Tenn. 475, 121\nin the perpetration of the murder.\nW.2d 535, the Tennessee Supreme Court was simply\n[*251] Although the appellant was charged in the in-\napplying the common law of murder to cases involving\ndictment only for premeditated murder and the indict-\nmurder indictments stated in common law form, because\nment did not state that another felony had been commit-\n\"at common law there was but one kind of murder.\"\nted in the perpetration of the murder, the wording of the\nFarmer V. State, 201 Tenn. 107, 114-15, 296 S.W.2d\nindictment was in the common law form. Such a pro-\n879, 883 (1956). Evidence of another felony commit-\ncedure has long been permissible under Tennessee law,\nted in the perpetration of a murder was not viewed as\neven with the existence of murder statutes. Campbell V.\nsupporting the conviction of a defendant for a separate\nState, 491 W.2d 359 (Tenn. 1973); Taylor V. State, 79\noffense. n4\nTenn. 708 (1883); Poole V. State, 61 Tenn. 288 (1872);\nWitt V. State, 46 Tenn. 5 (1868); Bramlett V. State, 515\nn4 In 1974, Tennessee amended the statutory def-\n895 (Tenn. Cr. App.), cert. denied, (1974).\ninition of first degree murder so as to modify what\nIn a case of a murder indictment stated in common law\nessentially had been a codification of the common\nform, the applicable Tennessee law was laid down by the\nlaw in the prior statute. See Cook, Criminal Law in\nTennessee Supreme Court in Sullivan V. State, 173 Tenn.\nTennessee in 1974: A Critical Survey, 42 Tenn. L.\n475, 121 S. W.2d 535 (1938). There the defendant was\nRev. 187, 190-92 (1975). In contrast to the common\nindicted for murder, and as in the present case, the in-\nlaw, under the present Tennessee first degree murder\ndictment stated the murder charge in the common law\nstatute, T.C.A. § 39-2402 (Supp. 1974), felony-\nform and did not charge that the homicide was com-\nmurder and premeditated murder appear to be sepa-\nmitted in an attempt to commit one of the enumerated\nrate offenses. See State V. Black, 524 W.2d 913,\n[**9] felonies in the Tennessee felony-murder statute.\n916-20 (Tenn. 1975). T.C.A. $ 39-2402 provides in\nAt trial, proof of another felony committed in the per-\npertinent part:\npetration of the murder was admitted into evidence. The\nAn individual commits murder in the first degree\nTennessee Supreme Court held that when an indictment\nif:\ncharges murder in the common law form, it is not neces-\nsary for the indictment to charge also that the homicide\n(1) he commits a willful, deliberate, malicious and\nwas committed in the perpetration of another crime in\npremeditated killing or murder;\norder to introduce proof showing that another felony\nwas attempted in committing the murder because from\n(4) he commits a willful, deliberate and malicious\nsuch proof, premeditation, malice, and deliberation can\nkilling or murder during the perpetration of any ar-\nbe implied. See State V. Black, 524 S. W.2d 913, 915\nson, rape, robbery, burglary, larceny, kidnapping,\n(Tenn. 1975). n3\naircraft piracy, or unlawful throwing, placing, or\ndischarging of a destructive device or bomb.\nn3 The Tennessee Supreme Court in Sullivan V.\nState, 173 Tenn. 475, 481-82, 121 S. 535, 537\n[**11]\n(1938), stated that:\nSullivan V. State, supra, 173 Tenn. 475, 121 .W.2d\nAt common law it was not necessary to charge in an\n535, was recently followed by the Tennessee Court of\nindictment for murder that the murder was commit-\nCriminal Appeals in Tosh V. State, 527 S. W.2d 146\nted in the perpetration of another crime, in order to\n(Tenn. Cr. App.), cert. denied, (1975), which rejected\nintroduce proof showing that a felony was attempted\nan argument very similar to that raised by appellant in\nin committing it; it was sufficient to charge murder\nthe present case. The conclusion follows that it was\nin the common form, and then, upon proof that it\nproper for the evidence of the rape and robbery to be\nwas committed in the perpetration of a felony, mal-\nadmitted at appellant's trial in order to prove premedita-\nice, deliberation, and premeditation were implied.\ntion and thereby support appellant's conviction of first\ndegree murder as charged in the indictment. There was\nIn Watson V. Jago, 558 F.2d 330 (6th Cir. 1977),\nno constructive amendment of the indictment because\nby contrast, the evidence of an attempted robbery\nappellant was tried and convicted for the offense stated\nwas intended to prove the separate offense of felony-\nin the indictment.\nPage 48\n563 F.2d 248, *251; 1977 U.S. App. LEXIS 11259, **11\n[*252] We hold that appellant was not deprived of fair\nan identity of offenses in felony-murder and first de-\nnotice of the criminal charges to be brought against him.\ngree murder as charged in the indictment because the\nn5 Appellant was not tried and convicted on a charge not\nsame evidence would be required to prove the two\nmade in the indictment. Rather, appellant's indictment\noffenses. State V. Black, supra, 524 S. W.2d at 916-\neffectively advised him that under Tennessee law, proof\n20; Duchac V. State, 505 S. W.2d 237 (Tenn. 1973),\nthat another felony committed in the perpetration of the\ncert. denied, 419 U.S. 877, 95 S. Ct. 141, 42 L.\nmurder could be admissible evidence, from which pre-\nEd. 2d 117 (1974).\nmeditation could be implied, to convict him under the\nindictment. While Watson V. Jago, supra, reaffirmed\nNor was counsel for appellant Blake deprived of\nthe principle [**12] that a person is entitled to fair noti-\nsufficient time to prepare a defense. In the present\nfication of an offense for which he is to be tried, Watson\ncase, appellant's counsel knew that under the indict-\nis inapposite to the present case because appellant Blake\nment, Tennessee law would permit at trial the ad-\nreceived such notice.\nmission of evidence of another felony committed in\nthe perpetration of the murder in order to prove pre-\nmeditation, and there was no question that the mur-\nn5 The present case also does not involve the\nder with which appellant was charged took place in\ndouble jeopardy implications contained in Watson V.\nthe perpetration of a rape and robbery. In Watson\nJago, supra. In that case, appellant Watson's con-\nV. Jago, supra, it was at trial that counsel for ap-\nviction for second degree murder would not have\npellant Watson was first apprised that the State of\nprecluded his being tried and convicted for felony-\nOhio would be seeking the conviction of his client\nmurder. Watson V. Jago, supra, 558 F.2d at 339,\nfor felony-murder, and it had not been clear that a\nn. 7; Lowther V. Maxwell, 347 F.2d 941 (6th Cir.\nrobbery attempt at the time of the murder had taken\n1965); State V. Trocodaro, 40 Ohio App. 2d 50,\nplace. While appellant Watson's counsel mounted\n317 N.E.2d 418 (1973). Yet, appellant Watson had\nan extremely effective defense against the felony-\nessentially been tried for felony-murder when being\nmurder charge notwithstanding the lack of fair no-\ntried for premeditated murder. In the present case,\ntice, in the present case appellant Blake's counsel\nappellant Blake's conviction for murder as charged in\nhad fair notice of the criminal charge and thus could\nthe indictment would preclude another trial and con-\nnot have been prejudiced for lack of sufficient time\nviction for felony-murder. The proof of the rape and\nto prepare a defense.\nrobbery supported the conviction of appellant Blake\nbecause premeditation was implied from that proof.\n[**13]\nThus, there would be, for double jeopardy purposes,\nThe judgment of the district court is affirmed.\nPage 49\n32ND CASE of Level 1 printed in FULL format.\nJames Earl Ray, Petitioner-Appellant, V. J. H. Rose, Warden, Respondent-Appellee\nNo. 75-1795\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\n535 F.2d 966; 1976 U.S. App. LEXIS 11430\nFebruary 3, 1976, Argued\nA.G.\nMay 10, 1976, Decided\nPRIOR HISTORY: [**1]\nmeticulously examining him as to whether the plea was\nvoluntarily and understandingly made, accepted the plea\nAppeal from the United States District Court for the\nand imposed a sentence of 99 years imprisonment -- a\nWestern District of Tennessee.\nsentence agreed upon after plea bargaining. Immediately\nthereafter, Ray wrote to Judge Battle and requested per-\nDISPOSITION: The judgment of the district court is\nmission to withdraw his plea and to stand trial. Judge\nAFFIRMED.\nBattle died on March 31, 1969, without acting on Ray's\nrequest. Ray unsuccessfully sought post-conviction re-\nCOUNSEL: James Hiram Lesar, N.W., Washington,\nlief in the state courts. His habeas corpus petition filed in\nDistrict of Columbia, Bernard Fensterwald, Jr., N.W.,\nthe United States District Court for the Middle District\nWashington, District of Columbia, Robert I. Livingston,\nof Tennessee was denied without evidentiary hearing.\nMemphis, Tennessee, for Appellant.\nRay V. Rose, 373 F. Supp. 687 (M.D. Tenn. 1973).\nThis [*968] Court, Ray V. Rose, 491 F.2d 285 (6th\nR. A. Ashley, Attorney General of Tennessee,\nCir.), cert. denied, 417 U.S. 936, 41 L. Ed. 2d 240,\nNashville, Tennessee, William J. Haynes, Jr., for\n94 S. Ct. 2650 (1974), reversed the district court and\nAppellee.\nremanded the case for a \"full-scale judicial inquiry\" into\nRay's allegations.\nJUDGES: Phillips, Chief Judge, and Celebrezze and\nMiller, * Circuit Judges.\nThe facts in this case are set forth in detail in the dis-\ntrict court's opinion concluding that Ray was not entitled\n* Judge Miller concurred in this opinion prior to\nto relief and dismissing the petition. Ray V. Rose, 392 F.\nhis death on April 12, 1976.\nSupp. 601 [**3] (W.D. Tenn. 1975). n1 Therefore, we\nOPINIONBY: PER CURIAM\nwill undertake to summarize only those facts pertinent\nto the two primary issues before us.\nOPINION: [*967] James Earl Ray appeals from the de-\nnial of his petition for habeas corpus following an evi-\nnl Because the court ruled on remand that Federal\ndentiary hearing in the district court. Two primary con-\nRule of Civil Procedure 45 applied to the case and\nstitutional issues were raised at the hearing and are be-\nthat subpoenas would therefore not be issued to per-\nfore us on appeal: (1) whether Ray received effective\nsons living outside the district more than 100 miles\nassistance of counsel in the state criminal proceeding in\nfrom the place of hearing, Percy Foreman, Ray's sec-\nwhich he was indicted for the murder of Dr. Martin\nond attorney, and William Bradford Huie, a writer\nLuther King, Jr., and (2) whether Ray intelligently and\nwith whom Ray and his attorneys had entered into\nvoluntarily pleaded guilty to the charge.\nvarious contracts, and several other important wit-\nnesses did not testify at the hearing. However,\nRay entered his plea of guilty to the charge in the\nCriminal Court of Shelby County, Tennessee, on March\nForeman and Huie gave depositions prior to the hear-\ning. This ruling of the district court also meant that\n[**2] 10, 1969. Judge Preston Battle, after carefully\nRay had to rely on voluntary compliance with discov-\nadvising Ray as to the consequences of his plea and\nery orders to a large extent. Most of those persons\nPage 50\n535 F.2d 966, *968; 1976 U.S. App. LEXIS 11430, **3\nto whom such orders were issued did not voluntarily\nceive 40% of the money Ray received from Huie was\ncomply.\namended to limit the amount to be received [**6] by\nHanes to $20,000. Ray testified that he made the re-\nDr. King was assassinated in Memphis on April 4,\nquest in order to have funds to appeal the case or to\n1968. Ray's indictment for the slaying followed on May\ninstitute post-conviction proceedings.\n7, 1968. He was arrested in London on June 8, 1968,\nAfter the three-party agreement was entered into, Huie\nand was returned [**4] to Memphis on July 19, 1968.\nsigned a contract with Cowles Communications, Inc., to\nWhile Ray was awaiting extradition in London,\nwrite a series of three articles about Ray for Look maga-\nhe contacted attorney Arthur Hanes of Birmingham,\nzine. This contract was amended by an instrument dated\nAlabama, and asked Hanes to represent him. Before\nMarch 17, 1969, to reduce the monetary value of the Ray\nHanes visited Ray, Hanes was contacted by William\nstory because of Ray's guilty plea. The district court\nBradford Huie, a writer, about the possibility of Ray's\nfound that, despite the date of the [*969] amendment,\nselling his story to finance his defense. Hanes and his\nit was drafted prior to the plea because the amendment\nson, Arthur Hanes, Jr., also an attorney, met with Ray\nstated that it was expected that Ray would plead guilty\nin London in July, 1968. On July 5, 1968, Ray signed\non or about March 10. The amendment also provided\ntwo agreements on the advice of Hanes. One of these\nthat Huie would obtain from Hanes and Percy Foreman,\nRay's second attorney, articles of 1000 words for which\ngave Hanes complete power of attorney to act for Ray.\nThe other, furnished by Huie, assigned to Hanes 40% of\nCowles would pay them each $1000. The first two arti-\ncles under this contract appeared in Look in November\nall monies that Ray would receive as a result of a subse-\n1968. n3 The third Look article was published in April,\nquent agreement with Huie and gave Hanes authority to\n1969, along with the articles by Hanes and Foreman. n4\nact as exclusive agent and attorney for Ray in handling\nof contracts, negotiations, and other matters relating to\nsale of any information.\nn3 When the articles were written, it was thought\nthat the trial would begin November 12, 1968.\nAfter extradition, n2 Hanes, Huie, and Ray entered\n[**7]\ninto an agreement dated July 8, 1968, whereby Huie was\ngiven exclusive rights to receive information on Ray's\nn4 Hanes' article was entitled \"For Conspiracy\"\nparticipation in the King assassination. The agreement\nand Foreman's article was \"Against Conspiracy.\"\nstated that its purpose was to establish the truth regard-\nBoth attorneys contended that the articles as pub-\ning the assassination. It provided that Hanes and Ray\nlished differed considerably from the drafts they had\nwould each receive [**5] 30% of gross receipts of all\nwritten. Huie's first two articles indicated that he felt\nliterary works while Huie would receive 40%. Huie\nthat a conspiracy to kill King existed while his third\nalso was given power to execute contracts for the sale\narticle indicated that he believed Ray had acted alone.\nof his book and other rights to Ray's story. Huie agreed\nThere is evidence that Ray believed that the Huie ar-\nto furnish, at quarterly intervals, statements reflecting\nticles were damaging to his case. Hanes, however,\nall transactions and to give Ray and Hanes copies of all\nregarded this publicity as favorable because the first\ncontracts entered into by him. The district court found\ntwo articles furthered the conspiracy theory.\nthat Huie did not comply with either of these two latter\nprovisions. The agreement was accompanied by a letter\nHuie also entered into a contract with Dell Publishing\nfrom Huie dated July 8, setting forth a schedule of cash\nCompany regarding the publication of a non-fiction\npayments to be made to Hanes and Ray until Ray had\nbook. By the terms of the agreement, Dell could pub-\nbeen in jail five months. Ray and Hanes both indicated\nlish the book no sooner than four weeks after the last\nthat they entered into these agreements to provide funds\nLook article or, at the latest, on or after March 5, 1969.\nfor Ray's defense.\nThis agreement was also amended after the guilty plea\nwas entered to reduce the amount to be paid by Look.\nThe Dell contract provided that no proceeds could be\nn2 Hanes and Huie signed the three-party agree-\nused directly or indirectly for Ray's benefit. Huie was\nment on July 8. Ray did not execute the agreement\neither unaware of this provision or was ready [**8] to\nuntil August 1, 1968.\nviolate it when the book produced any royalties. Ray\ndid not know of either the Cowles or Dell contract until\nthe hearing in district court.\nIn September 1968, at Ray's request, the July 5 agree-\nment between Hanes and Ray whereby Hanes was to re-\nBecause of restrictions on who could visit Ray in the\nPage 51\n535 F.2d 966, *969; 1976 U.S. App. LEXIS 11430, **8\nShelby County jail, Huie obtained his information by an\nThe court found that Foreman did fail to associate ex-\nexchange of letters or from a list of questions by Huie\nperienced Tennessee counsel in the case as Ray alleged,\nwhich Ray would answer in his own handwriting. First\nbut considered this irrelevant since the public defender's\nHanes and later Foreman carried the information and\nappointment made experienced local counsel available;\nquestions back and forth between Huie and Ray. Huie\nfurthermore, a Memphis State University Law School\nmade an investigation to verify much of the information\nprofessor gave Foreman some advice on Tennessee law\nhe received from Ray. Although Huie gave information\nand there was no money to hire other counsel. The\nfrom his investigation to Ray's attorneys, the attorneys\ncourt also found that Foreman did not refuse to attempt\ndid not consider Huie a hired investigator for Ray's de-\nto halt adverse pretrial publicity despite Ray's urgings.\nfense. The district court found that Hanes hired a private\nRather, the court found that the publicity had tapered\ninvestigator named Renfro Hayes to do the investiga-\noff when Foreman entered the case and that Ray did not\ntory work which Hanes and his son did not do and thus\nurge Foreman to take action in this regard. [**11]\nrejected Ray's allegation that Hanes refused to hire a\nprivate investigator. Huie promised that he would not\nTwo days after Foreman was hired, he had Ray sign\npublish before Ray's trial anything about Ray's activi-\nover to him the alleged murder weapon and a white\nMustang found in Atlanta. By an agreement dated\nties in the latter part of March, 1968, and Ray testified\nDecember 6, 1968, and signed by Ray on January 29,\nat the hearing that Huie kept the promise.\n1969, Hanes was released from the contract with Ray\nThe district court also rejected several of Ray's allega-\nand Huie and Ray was given Hanes' 30% share. On\ntions in regard to Hanes' [**9] representation of Ray by\nFebruary 3, 1969, Ray assigned all of his rights to the\nfinding that: (1) Hanes did not refuse to request a contin-\nHuie proceeds to Foreman. On March 9, 1969, the day\nuance because the contract with Huie provided that Ray\nbefore the guilty plea, Foreman reassigned to Ray all\nmust go to trial within a certain number of days, (2)\nthe royalties due from Huie in excess of $165,500 n5\nHanes did not reject Ray's desire to testify or state that\n\"if the plea is entered and the sentence accepted and no\nRay's testimony would reveal information which could\nembarrassing circumstances take place in the court\nbe sold, and (3) Hanes did not allow Huie to dictate the\nmanner in which the criminal case would be tried.\nToward the end of Hanes' representation of Ray, Ray's\nn5 According to Foreman, the $165,500 included\nbrother Jerry visited Huie in Huntsville, Alabama, and\n$150,000 for his fee, $15,000 for expenses, and\nerroneously reported to James Earl Ray that Huie was\n$500 for a cash advance to Jerry Ray, James Earl\ntrying to bribe James Earl not to take the stand. The\nRay's brother for the purpose of hiring a new attor-\ndistrict court found that Ray never seriously considered\nney for James Earl. The district court found that the\ntaking such a bribe and that, in any event, the alleged\nfee would be unreasonable if there were money to\nbribe was not a factor in the guilty plea.\npay it.\nTrial for Ray was set for November 12, 1968. On\nNovember 10, 1968, Ray fired Hanes because, as he\nThere was considerable conflict in the proof as to when\ntestified, he felt Hanes was working for Huie and not\nForeman first discussed the [**12] possibility of a guilty\nfor Ray. Ray's brothers and Percy Foreman, a well-\nplea with Ray and the court did not make any findings as\nknown Texas attorney, who had come to talk to Ray at\nto the time of such discussions. The court did, however,\nthe instance of Ray's brothers, both urged Ray to fire\nfind that Foreman wrote a letter to Ray dated February\nHanes. At the time Hanes was fired, Ray hired Foreman\n13, 1969, which contained an analysis of the case and\nto handle his defense. At the time he was hired, [**10]\nForeman's recommendations. In the letter Foreman ex-\nForeman took the position that he would not get involved\npressed his opinion that there was a \"little more than a\nwith Huie or any other writers until after the [*970] trial.\n99 per cent chance\" of a death penalty verdict and a \"100\nper cent chance of a guilty verdict.\" He also stated in the\nForeman obtained a continuance to prepare for trial\nand the case was re-set for March 3, 1969. Later,\nletter that he would consider it \"one of the great accom-\nForeman advised the court that he could not be ready\nplishments\" of his career if he could save Ray's life by a\nnegotiated plea. Foreman had Ray acknowledge receipt\nfor trial on that date. The court refused to change the\nof the letter by signing a copy of it, but Ray did not sign\ndate and ordered the public defender to be ready to take\nthe letter until sometime after the day it was delivered.\nover the defense if necessary. Ray did not approve the\nappointment and refused to talk to the public defender.\nThe court found that most of Ray's allegations regard-\nLater Foreman obtained a continuance until April 7.\ning Foreman's inducement of the guilty plea were not\nsupported by the proof. Specifically, the court found\nPage 52\n535 F.2d 966, *970; 1976 U.S. App. LEXIS 11430,\nthat Foreman did not advise Ray, even if innocent, to\nthere was no conspiracy involved in King's murder.\nplead guilty; that Foreman suggested to Ray that Ray\nwould be better off financially with a guilty plea, but\nHuie paid Hanes $30,000 and Foreman $10,000 to\nbe applied to their expenses and fees. n6 Hanes and\nthat this statement did not influence Ray in his decision;\nForeman also each received $1000 for their articles in\nthat Foreman did not advise Ray to plead guilty because\nLook.\nhe [**13] would be pardoned by John J. Hooker, Jr.,\nwho would be the next governor of Tennessee; and that\nForeman did not attempt to persuade Ray to plead guilty\nn6 Huie received $67,000 in gross royalties. He\nby telling him that the prosecution was prepared to bribe\ngave 10% to his agent and $40,000 to Hanes and\na key witness against Ray, by saying that Foreman would\nForeman.\nexercise less than his best efforts if Ray insisted on a\ntrial, or by telling Ray that Judge Battle would not al-\nBased on testimony of Victor Timkin, general counsel\nlow him to change attorneys and that Foreman would not\nwithdraw. In addition, the court found that Foreman's\nof Bantam Books, the district court found that the guilty\nplea, in lieu of trial, substantially reduced the amount\nadvice did not cause Ray reasonably to believe that he\nof prospective income from literary royalties to Ray and\nhad no alternative to a guilty plea since he could have\nhis attorneys.\ngone to trial with the public defender.\nThe court rejected Ray's allegation that neither Hanes\nBy letter to Foreman dated February 18, 1969, Ray\nnor Foreman made any active investigation of the case.\ngave Foreman written authorization to negotiate a guilty\nIt found that both of Ray's attorneys made adequate in-\nplea for a term of years. The letter was drafted and\nvestigations and were aware of weaknesses in the state's\nprepared [*971] by Foreman for Ray's signature. The\ncase.\nletter stated that Foreman and Ray agreed that it was\nimpossible to controvert certain incriminating facts and\nThe court found that, while some of the procedures\nbelieved that a trial would result in a guilty verdict with a\nused in screening of Ray's mail, reproduction of his\nsentence of life, ninety-nine years, or the electric chair.\n[**16] letters, and monitoring of his conversations in jail\nRay testified that he did not believe that there was a\nwere improper, they did not prevent him from commu-\nchance of the death penalty even though he signed this\nnicating with his attorneys or cause any actual prejudice\n[**14] letter. He also testified that when he signed the\nto the rights of Ray.\nletter, he gave Foreman a written list of reasons why he\nRay first argues that his guilty plea was not voluntar-\nshould not plead guilty. The district court did not make\nily and intelligently made because Foreman pressured\na finding as to whether the list actually existed.\nhim into pleading guilty against his will. Ray contends\nThe district court found that Foreman met with mem-\nthat Foreman made him believe that Judge Battle would\nbers of Ray's family and urged them to encourage Ray\nnot permit him to change attorneys again and, unless\nto plead guilty, but that they did not do so. Therefore,\nhe pleaded guilty, he had no alternative but to go to\nthe court said, Foreman's conduct in this regard did not\ntrial with Foreman, whom he could not trust, or the\ninduce the guilty plea. The court also found that Ray's\nPublic Defender, whom he thought incapable of han-\nhealth did not deteriorate while he was in the Shelby\ndling a case of this nature. As evidence that the plea\nCounty jail to the extent that he was unable to resist\nwas not voluntary, Ray relies heavily upon the March\npressure to plead guilty.\n9 letters from Foreman to Ray agreeing to reassign to\nRay all his rights to income under the Huie contracts,\nAfter Foreman and the Attorney General had agreed\nconditioned upon the guilty plea being entered \"without\nto a guilty plea, the Attorney General's office prepared\nany unseemly conduct\" on Ray's part in court.\na set of stipulations representing those facts which the\nstate said it could prove. Among the stipulations was\nConsidering \"all of the relevant circumstances\" sur-\none which stated that Ray had fired the shot which killed\nrounding Ray's plea, Brady V. United States, 397 U.S.\nDr. King. Ray approved these stipulations in slightly\n742, 749, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970), we\nmodified form without any challenge to the stipulation\nagree with the district court that the plea was entered vol-\nthat he had committed the murder. The stipulations were\nuntarily and knowingly. As stated, Judge Battle [**17]\npresented at Ray's guilty plea hearing and Ray acknowl-\nvery carefully questioned Ray as to the voluntariness of\nedged that he agreed with the stipulations. He also stated\nhis plea before it was accepted on March 10, [*972]\nthat he disagreed with [**15] Foreman's representation\n1969. n7 Ray specifically denied at that time that any\nthat Ray agreed with Attorney General Ramsey Clark\none had pressured him to plead guilty. His responses and\nand FBI Director J. Edgar Hoover who had said that\nactions in court reveal that he was fully aware of what\nPage 53\n535 F.2d 966, *972; 1976 U.S. App. LEXIS 11430, **17\nwas occurring. n8 The February 18 letter authorizing\nstandingly made and entered by you?\nForeman to negotiate a guilty plea supports the finding\nAnswer: Yes, sir.\nthat the plea was voluntary. Other evidence showed that\nRay had pleaded guilty to two prior felonies, that his IQ\nThe Court: Is this plea of guilty on your part the\nwas in the bright normal range, and that Foreman had\nfree act of your free will made with your full knowl-\ncarefully explained to him the consequences of his plea.\nedge and understanding of its meaning and conse-\nIndeed Ray does not seriously contend on appeal that\nquences?\nhe did not understand the nature and consequences of\nAnswer: Yes, sir.\nhis plea. Nor does he argue that his health deteriorated\nto such an extent that he was unable to resist pressure\n[**18]\nto plead guilty or to make an intelligent choice to enter\nsuch a plea.\nn8 After the plea was entered, Ray expressed his\nopinion that he could not agree with theories that\nthere had been no conspiracy and further reaffirmed\nn7 A portion of the exchange between Ray and\nhis desire to plead guilty in the following exchange:\nJudge Battle was as follows:\nRay: Your Honor, I would like to say something,\nThe Court: You are entering a plea of guilty to\nI don't want to change anything that I have said, but\nmurder in the first degree as charged in the in-\nI just want to enter one other thing. The only thing\ndictment as a compromise and settling your case\nI have to say is that I can't agree with Mr. Clark.\non an agreed punishment of 99 years in the State\nPenitentiary. Is that what you want to do?\nForeman: Ramsey Clark.\nAnswer: Yes, I do.\nThe Court: Mr. who?\nThe Court: Is this what you want to do?\nRay: Mr. J. Edgar Hoover. I agree with all these\nstipulations, and I am not trying to change anything.\nAnswer: Yes, sir.\nThe Court: You don't agree with whose theories.\nThe Court: Do you understand that you are waiv-\ning which means you are giving up a formal trial by\nRay: Mr. Canale's, Mr. Clark's and Mr. J. Edgar\nyour plea of guilty although the laws of this State\nHoover's about the conspiracy. I don't want to add\nrequire the prosecution to present certain evidence\nsomething on that I haven't agreed to in the past.\nto a jury in all cases on pleas of guilty to murder in\nForeman: I think that what he said is that he\nthe first degree by your plea of guilty you are also\ndoesn't agree with Ramsey Clark that Ramsey Clark\nwaiving\n[the Court explains Ray's rights in\nis right or that J. Edgar Hoover is right. I didn't\ngreat detail]\nHas anything besides this sentence\nargue that as evidence in this case. I simply stated\nof 99 years in the Penitentiary been promised to you\nthat underwriting the statement of General Canale\nto get you to plead guilty? Has anything else been\nthat they had made the same statement. You are not\npromised to you by anyone?\nrequired to agree with it all.\nAnswer: No, it has not.\nThe Court: You still, your answers to these ques-\nThe Court: Has any pressure of any kind by any-\ntions that I asked you would still be the same? Is\none in any way been used on you to get you to plead\nthat correct?\nguilty?\nRay: Yes, sir.\nAnswer: No, no one in any way.\nThe Court: There is nothing in these questions\nThe Court: Are you pleading guilty to murder in\nthat I have asked you in your answer to them you\nthe first degree in this case because you killed Dr.\nchange none of them at all. In other words you are\nMartin Luther King under circumstances that would\npleading guilty to and taking 99 years. I think the\nmake you legally guilty of murder in the first degree\nmain question that I want to ask you is this: Are\nunder the law as explained to you by your lawyer?\nyou pleading guilty to murder in the first degree in\nthis case because you killed Dr. Martin Luther King\nAnswer: Yes, legally yes.\nunder such circumstances that it would make you\nThe Court: Is this plea of guilty to murder in the\nlegally guilty of murder in the first degree under the\nfirst degree with an agreed punishment of 99 years\nlaw as explained to you by your lawyer (the defen-\nin the State Penitentiary free, voluntarily and under-\ndant indicated in the affirmative). Your answer is\nPage 54\n535 F.2d 966, *972; 1976 U.S. App. LEXIS 11430,\nstill yes? All right sir, that is all you may swear the\nularities of the attorneys Hanes and Foreman and\njury.\nthe potential and limited actual conflicts of interest\ndid not cause Ray to plead guilty involuntarily. By\n[**19]\nRay's own testimony he was not concerned about\nAcceptance of Ray's arguments in regard to the volun-\nmoney except insofar as it was necessary to provide\nfunds for his various successive court proceedings.\ntariness of the plea would require us to reverse findings\nFurthermore, there is no proof to show that sizeable\nof the district court regarding the contents of Foreman's\nmonies were forthcoming or that the various per-\ndiscussions with Ray. As we have noted earlier, the court\nsons involved were reasonably entitled to anticipate\nfound that Ray simply had not proved that Foreman\nthe receipt of sizeable sums of money by virtue of a\n[*973] made many of the statements attributed to him\nguilty plea. Additionally there is nothing to suggest\nby Ray in urging him to plead guilty. Further, the court\nthat Ray was persuaded to plead guilty on March 10\nfound that Foreman had not succeeded in getting Ray's\nto meet a publication deadline. Such was not the\nfamily to pressure him to plead guilty. Finally, the court\ncase. 392 F. Supp. at 620.\"\nfound that Ray did not reasonably believe that he had no\nalternative to a guilty plea. We have carefully examined\n[**21]\nthe record in this case and have determined that these\nfindings of the district court are not clearly erroneous.\nIn regard to Foreman's March 9 letters, we are unable\nn9\nto view these letters as an indication that the plea was\ninvoluntary. Ray argues that he entered this agreement\nonly because he no longer trusted Foreman and needed\nn9 The clearly erroneous standard is the proper\nthe money he would receive under the Huie contracts to\nstandard for review of factual findings of the district\npay a new lawyer to reopen his case. We have already\ncourt in a habeas corpus proceeding. See Monnich\nnoted that most of the factual bases of Ray's allegation\nV. Kropp, 408 F.2d 356 (6th Cir. 1969). Moreover,\nthat Foreman induced him to plead guilty by undermin-\nthis is the proper standard where the evidence in-\ning Ray's trust in his attorney and making Ray believe\ncludes depositions and other written evidence, as in\nhe had no alternative to a guilty plea were not established\nthe instant case. See United States Steel V. Fuhrman,\nat the hearing. Further, Ray's testimony that he pleaded\n407 F.2d 1143, 1145-46 (6th Cir. 1969).\nguilty because he anticipated trying to reopen his case\nat a later date is at best highly implausible. It is more\n[**20]\nlikely that he simply reasoned that a shrewd attorney\nIn addition, we do not view the fact that Foreman was\nmight find a way to overturn his conviction regardless\nto receive a certain sum of money under the amended\nof the voluntariness of the plea.\nCowles contract if Ray pleaded guilty as a factor that\nWe turn to Ray's second major contention on this ap-\nrendered the plea involuntary. In view of Timkin's tes-\npeal: that he was denied effective assistance of counsel.\ntimony that the contracts would have produced more\nThe standard in this Circuit for determining whether a\nmoney had the case gone to trial, the fact that the Dell and\ndefendant has received effective assistance of counsel re-\nCowles contracts themselves were amended to reduce the\nquires that a defendant have counsel \"reasonably likely\namounts payable to Huie after the plea, and other evi-\nto render and rendering effective assistance.\" Beasley\ndence indicating that Foreman's motive in urging Ray\n[**22] V. United States, 491 F.2d 687, 696 (6th Cir.\nto plead guilty was avoidance of the death penalty, it\n1974). Ray argues that this standard was not met by\nseems highly improbable that Foreman was influenced\nthe attorneys representing him because (1) his attorneys\nto urge Ray to plead guilty by the prospect of receiving\nhad a conflict of interest depriving him of effective as-\nthis money. This potential conflict of interest then was\nsistance, (2) his attorneys failed to investigate the case\nnot a factor which caused Ray to enter the plea. See\nadequately, (3) Foreman's advice to plead guilty was in-\nDukes V. Warden, 406 U.S. 250, 32 L. Ed. 2d 45, 92\ncompetent, and (4) Ray's relationship with his attorneys\nS. Ct. 1551 (1972). Further, the evidence does not sup-\nwhile he was in jail was interfered with by surveillance,\nport any contention that Ray pleaded guilty in order to\nmail interception, and delivery of [*974] Ray's mail and\nreceive money under the contracts. n10\nprivileged attorney-client communications to the prose-\ncution.\nn10 In regard to the effect of the conflict of interest\nThe contractual arrangements involving Ray, his at-\non the guilty plea, the district court said:\ntorneys, and Huie clearly placed the attorneys in a po-\n\"However, based upon the total proof, the irreg-\ntential conflict of interest situation. Further, as the dis-\nPage 55\n535 F.2d 966, *974; 1976 U.S. App. LEXIS 11430, **22\ntrict court pointed out, the contract is a violation of\n44 L. Ed. 2d 87 (1975).\nDisciplinary Rule 5-104(B) of the Code of Professional\nResponsibility of the American Bar Association, which\nwas adopted after Ray entered his plea. Despite our\nnll Most cases which adopt a per se rule that a de-\ndisapproval of such a fee arrangement, however, its ex-\nfendant is denied effective assistance of counsel any\nistence does not necessarily mean that Ray was denied\ntime his attorney has a conflict of interest and which\neffective assistance of counsel.\nrequire no showing of prejudice involve joint rep-\nresentation of co-defendants. Although this Circuit\nIn Glasser V. United States, 315 U.S. 60, 68-76, 86L.\nhas not adopted a per se rule in joint representation\nEd. 680, 62 S. Ct. 457 (1941), the Supreme Court dis-\ncases, we feel there is less justification for applica-\ncussed [**23] the issue of denial of effective assistance\ntion of a per se rule in this case than there would be\nof counsel in a conflict of interest situation. The Court\nin the joint representation situation.\nsaid in Glasser that it was unnecessary to determine the\nprecise degree of prejudice sustained by the defendant\nas a result of the conflict of interest. Glasser, supra\nAfter carefully examining the record in this case and\nat 75-76. However, the opinion, in discussing specific\nthe findings of the district court, we conclude that Ray\nexamples of prejudice suffered by Glasser and in con-\nhas not sustained his burden of showing that he was prej-\ncluding that his representation \"was not as effective as it\nudiced in any way as a result of the contractual arrange-\nmight have been\" had there been no conflict of interest,\nments with Huie. Hanes was mindful that his obligation\nmakes clear that there must be a showing of some actual\nwas solely to represent Ray and the district court's find-\nprejudice. This Court has so interpreted Glasser and has\nings indicate that Hanes did not allow Huie to influence\nrequired a showing of actual prejudice in a conflict of\nhis conduct in representing Ray. Nor was Ray preju-\ninterest situation. See United States V. Berriel, 371 F.2d\ndiced by [**26] certain events which occurred due to the\n587 (6th Cir. 1967), cert. denied, 390 U.S. 907, 19\nexistence of the contracts during Hanes' representation\nL. Ed. 2d 875, 88 S. Ct. 830 (1968); United States\nof Ray. These events included the possibly damaging\nV. Burkeen, 355 F.2d 241 (6th Cir. 1966); Harris V.\npublicity of the Huie articles in Look, Huie's testify-\nThomas, 341 F.2d 560 (6th Cir. 1965); Craig V. United\ning before the grand jury about information received\nStates, 217 F.2d 355 (6th Cir. 1954). Other courts con-\nfrom Ray, and Huie's alleged attempt to bribe Ray not\nsidering situations in which denial of effective assistance\nto testify. While these events might have caused some\nof counsel due to a conflict of interest situation has been\n[*975] prejudice to Ray had he decided to go to trial, on\nalleged have similarly required a showing of some actual\nthis record there is no showing of actual prejudice. Ray\nprejudice. [**24] See United States V. Mari, 526 F.2d\ndoes not claim that any of these occurrences discouraged\n117 (2d Cir. 1975); United States V. Wisniewski, 478\nhim from going to trial or influenced him to plead guilty.\nF.2d 274 (2d Cir. 1973); United States V. Alberti, 470\nSimilarly, Ray was not prejudiced by Foreman's conflict\nof interest. As we have discussed earlier, Foreman's ad-\nF.2d 878, 881 (2d Cir. 1972), cert. denied, 411 U.S.\n919, 36 L. Ed. 2d 311, 93 Ct. 1557 (1973); Ford V.\nvice to Ray to plead guilty was not motivated by any\ndesire on Foreman's part to receive money under the\nUnited States, 126 U.S. App. D.C. 346, 379 F.2d 123\n(D.C. Cir. 1967). Cf. United States V. Jeffers, 520\ncontracts with Huie or by any urgings of Huie.\nF.2d 1256 (7th Cir.) cert. denied, 423 U.S. 1066, 96\nWe further note that Ray was fully aware of the poten-\nS. Ct. 805, 46 L. Ed. 2d 656, 44 U.S.L. W. 3399 (U.S.\ntial conflict of interest in the Huie-Hanes-Ray contrac-\nJan. 13, 1976); United States V. Nadaline, 471 F.2d\ntual relationship. While we do not reach the question\n340 (5th Cir.), cert. denied, 411 U.S. 951, 36 L. Ed.\nof whether Ray waived any objection to the conflict of\n2d 414, 93 S. Ct. 1924 (1973). But see United States\ninterest, n12 Ray's awareness of the conflict, the full\nex rel. Hart V. Davenport, 478 F.2d 203, 210 (3d Cir.\ndisclosure made to him by Hanes, and the warning that\n1973) (requiring only a \"showing of a possible conflict\n[**27] he received from Foreman about such arrange-\nof interest or prejudice, however remote\"); Walker V.\nments at the time Foreman was hired strengthen our con-\nUnited States, 422 F.2d 374 (3d Cir.), cert. denied, 399\nviction that Ray was not prejudiced by the conflicts of\nU.S. 915, 26 L. Ed. 2d 573, 90 S. Ct. 2219 (1970).\ninterest.\nnll While we have found no case dealing with precisely\nthe type of conflict of interest involved here, we con-\nsider the principles applicable to conflicts of other types\nn12 There is authority which suggests that any\nwaiver of a conflict of interest must be made ex-\napposite here. Cf. United States V. McCord, 166 U.S.\nApp. D.C. 1, 509 F.2d 334, 352 [**25] n. 64 (D.C.\npressly and in a courtroom proceeding similar to that\nCir. 1974), cert. denied, 421 U.S. 930, 95 S. Ct. 1656,\nrequired when a defendant pleads guilty. See United\nStates V. Garcia, 517 F.2d 272 (5th Cir. 1975).\nPage 56\n535 F.2d 966, *975; 1976 U.S. App. LEXIS 11430, **27\nhearing that they considered the advice to plead guilty\nRay has also failed to show that he was denied effec-\nsound. Even Hanes, who hoped for an acquittal, admit-\ntive assistance of counsel by inadequate investigation of\nted he had discussed the possibility of a [*976] guilty\nthe case by his attorneys. Several different investiga-\n[**30] plea with Ray. We think it clear in this case that\ntions of the case were conducted that of Hanes and his\nthe advice which Ray received was \"within the range of\nson, and their investigator Hayes, Huie's investigation,\ncompetence demanded of attorneys in criminal cases.\"\nSee McMann V. Richardson, 397 U.S. 759, 771, 25 L.\nForeman's investigation, and the investigation of the\npublic defender's office. Evidence produced at hearing\nEd. 2d 763, 90 S. Ct. 1441 (1970); Stout V. United\nshowed that numerous witnesses had been interviewed\nStates, 508 F.2d 951, 953 (6th Cir. 1975). As the\nand that Ray's attorneys were aware of weaknesses in\nSupreme Court said in McMann, supra, in discussing\nthe State's case. Hanes' investigation of the case and his\nthe performance required of attorneys in a guilty plea\nsituation:\npreparation for it was quite extensive. Foreman set up\n[**28] an office and lived in Memphis for a time while\nAs we said in Brady V. United States, ante, at 756-757,\nhe made his investigation. In addition, Foreman had\nthe decision to plead guilty before the evidence is in fre-\nthe benefit of all the other investigations. This Court\nquently involves the making of difficult judgments. All\nhas recognized that a defendant is not denied effective\nthe pertinent facts normally cannot be known unless wit-\nassistance of counsel even if his attorney conducts no in-\nnesses are examined and cross-examined in court. Even\ndependent investigation of his own but merely receives\nthen the truth will often be in dispute. In the face of\nand relies upon a prior attorney's work product in go-\nunavoidable uncertainty, the defendant and his counsel\ning to trial. See Price V. Perini, 520 F.2d 807 (6th Cir.\nmust make their best judgment as to the weight of the\n1975) (per curiam); Berry V. Cowan, 497 F.2d 1274 (6th\nState's case.\n397 U.S. at 769.\nCir. 1974). We agree with the district court that Ray did\n***\nnot show that the investigation was inadequate or below\nthe standards usually required of a criminal lawyer of\nIt is no denigration of the right to trial to hold that\nordinary skill.\nwhen the defendant waives his state court remedies and\nadmits his guilt, he does so under the law then existing;\nRay has also failed to establish his third basis for con-\ntending that he was denied effective assistance of counsel\nfurther, he assumes the risk of ordinary error in either\nhis or his attorney's assessment of [**31] the law and\n-- that he was given incompetent advice by Foreman to\nfacts. 397 U.S. at 774.\nplead guilty. Ray argues that the advice that there was\n\"overwhelming evidence\" against him and a 100 per cent\nchance of a guilty verdict was incompetent. In this argu-\nFinally, we reject Ray's contention that he was denied\nment he relies on the Hanes' view that they had a chance\neffective assistance of counsel by surveillance, intercep-\nof obtaining an acquittal due to (1) the lack of a credible\ntion of mail, and delivery of attorney-client communi-\neyewitness, (2) Ray's representation to them that he did\ncations to the prosecution. We do not believe that the\nnot kill [**29] Dr. King, (3) the inconclusive nature of\ngovernment actions in the circumstances of this case re-\nthe ballistics evidence, and (4) testimony of witnesses\nquire us to overturn Ray's guilty plea. Ray was unable to\nwho said the shot came from the parking lot or nearby\nshow that mail inspection, surveillance, or interception\nbushes rather than the bathroom window of the room-\nof privileged communications affected the preparation\ning house where Ray was staying. Ray also argues that\nof his defense or prejudiced him in any way. Nor was\nthe advice that there was a 99 per cent chance of Ray's\nthere any evidence to indicate that government receipt of\nreceiving the death penalty was incompetent because,\nany information contributed to Ray's decision to enter\nbased on statistics for Shelby County, there was a slim\nthe guilty plea. We further observe that Ray was specif-\nchance of execution even if Ray had been convicted. We\nically informed by Judge Battle that in pleading guilty\ncannot view Foreman's advice to Ray as incompetent un-\nhe was waiving his right to object to the denial of his\nder the circumstances of this case. Hanes had identified\nmotions relating to surveillance and consultation with\ncertain weaknesses in the State's case, but the State's\nhis attorney. In light of these factors and the Supreme\ncase was still quite strong. As the district court noted,\nCourt's opinion in Tollett V. Henderson, 411 U.S. 258,\nthe weaknesses \"are by no means of the sensational na-\n267, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973), we find\nture which would explode the state's case, particularly\nthat Ray is not entitled to have his conviction overturned\nin light of the substantial incriminating evidence pertain-\non this ground.\ning to Ray's presence in Memphis on April 4, 1968, and\nWe have considered Ray's other contentions and find\nhis carefully contrived concealment and flight after the\nthem to be without merit. [**32]\nmurder.\" Several attorneys testified at the evidentiary\nPage 57\n535 F.2d 966, *976; 1976 U.S. App. LEXIS 11430, **32\nThe judgment of the district court is\nAFFIRMED.\nPage 35\n15TH CASE of Level 1 printed in FULL format.\nJAMES H. JONES, Plaintiff-Appellant, V. WILLIAM JONES; TIM SEXTON; TOM HARNEY; RETHA\nBOWLINGS; WILLIAM HAYNES; CHARLIE JONES; HERMAN C. DAVIS; THOMAS MAY; LARRY\nSWEAT, Defendants-Appellees\nNo. 88-5541\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\n875 F.2d 864; 1989 U.S. App. LEXIS 6956\nMay 18, 1989, Filed\nNOTICE: NOT RECOMMENDED FOR FULL-TEXT\nDepartment of Corrections, discriminated against him\nPUBLICATION SIXTH CIRCUIT RULE 24 LIMITS\non the basis of his race, retaliated against him for exer-\nCITATION TO SPECIFIC SITUATIONS. PLEASE SEE\ncising his right to free speech and access to the courts,\nRULE 24 BEFORE CITING IN A PROCEEDING\ndeprived him of his right to a fair disciplinary hearing\nIN A COURT IN THE SIXTH CIRCUIT. IF CITED,\nand conspired to deprive him of his rights. The parties\nA COPY MUST BE SERVED ON OTHER PARTIES\nconsented pursuant to 28 U.S.C. § 636(c) to the magis-\nAND THE COURT. THIS NOTICE IS TO BE\ntrate entering a final decision. Summary judgment was\nPROMINENTLY DISPLAYED IF THIS DECISION IS\nentered for defendant Norris. The magistrate permitted\nREPRODUCED.\nthe case to proceed to trial as to the remaining defen-\ndants. A directed verdict was entered for the defendants\nPRIOR HISTORY:\nand plaintiff appealed.\nOn Appeal from the United States District Court for\nA directed verdict may be granted only when the ev-\nthe Eastern District of Tennessee, No. 87-00532\nidence [*2] is viewed in the light most favorable to the\nparty against whom it is made and it is clear that rea-\nOPINION: BEFORE: MARTIN and BOGGS, Circuit\nsonable men could come to but one conclusion from the\nJudges; and CONTIE, Senior Circuit Judge.\nevidence. Coffy V. Multi-County Narcotics Bureau, 600\nF.2d 570, 579 (6th Cir. 1979). A review of the record\nORDER\nindicates that the district court did not err in its decision\nThis case has been referred to a panel of the court\ngranting a directed verdict in that plaintiff failed to prove\npursuant to Rule 9(a), Rules of the Sixth Circuit. Upon\nthe various elements to prevail on his claims as stated in\nexamination of the briefs of the parties and the motion for\nMagistrate Murrian's memorandum opinion filed May\nappointment of counsel, this panel unanimously agrees\n11, 1988.\nthat oral argument is not needed. Fed. R. App. P.\nIt is ORDERED that the motion for counsel be denied\n34(a).\nand the judgment of the district court affirmed. Rule\nPlaintiff's complaint and amended complaints al-\n9(b)(5), Rules of the Sixth Circuit.\nleged that the defendants, employees of the Tennessee\nPage 6\n1ST CASE of Level 1 printed in FULL format.\nRAY SEAY, Plaintiff-Appellant, V. WILLIAM BROWN; UNITED STATES OF AMERICA; UNITED\nSTATES POSTAL SERVICE; OFFICE OF PERSONNEL MANAGEMENT; MAIN POST OFFICE,\nBROADWAY, including but not limited to the Postmaster or Chief Officer, the Chief Officer of Personnel,\nall persons in personnel or Postmaster's Office, and unknown employees of the above, each individually\nand in their official capacities; WILLIAM J. HAYNES, JR., United States Magistrate Judge,\nDefendants-Appellees.\nNo. 96-6594\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\n1997 U.S. App. LEXIS 25580\nSeptember 12, 1997, Filed\nNOTICE: [*1] NOT RECOMMENDED FOR FULL-\nOPINION: ORDER\nTEXT PUBLICATION. SIXTH CIRCUIT RULE 24\nLIMITS CITATION TO SPECIFIC SITUATIONS.\nRay Seay, proceeding pro se, moves for a writ of man-\nPLEASE SEE RULE 24 BEFORE CITING IN A\ndamus on appeal from a district [*2] court order dismiss-\nPROCEEDING IN A COURT IN THE SIXTH\ning his suit filed as a Bivens-type action, see Bivens V. Six\nUnknown Named Agents of Fed. Bureau of Narcotics,\nCIRCUIT. IF CITED, A COPY MUST BE SERVED ON\n403 U.S. 388, 390-97, 29L. Ed. 2d 619, 91 S. Ct. 1999\nOTHER PARTIES AND THE COURT. THIS NOTICE\nIS TO BE PROMINENTLY DISPLAYED IF THIS\n(1971). This case has been referred to a panel of the\nDECISION IS REPRODUCED.\ncourt pursuant to Rule 9(a), Rules of the Sixth Circuit.\nUpon examination, this panel unanimously agrees that\nSUBSEQUENT HISTORY: Reported in Table Case\noral argument is not needed. Fed. R. App. P. 34(a).\nFormat at: 124 F.3d 199, 1997 U.S. App. LEXIS 30690.\nThis is one of many actions filed by Seay arising\nout of his discontent with the decision of the United\nPRIOR HISTORY: Middle District of Tennessee. 96-\nStates Postal Service (USPS) not to reinstate him in his\n00032. Higgins. 9-30-96.\njob. Specifically, Seay alleged that pursuant to a settle-\nment agreement which he entered into with the USPS\nDISPOSITION: Motion for a writ of mandamus denied,\nin October, 1987, he was entitled to be reinstated after\nand the district court's order affirmed.\nhe had been on disability leave for an extended period\nof time. Among other things, the agreement provided\nCOUNSEL:\nthat Seay would be placed on disability retirement, with\nRAY SEAY, Plaintiff - Appellant, Pro se, Hudson, FL.\nthe caveat that he would be entitled to restoration rights\nwith the USPS if he was found to be partially or fully\nFor WILLIAM BROWN, UNITED STATES OF\nrecovered.\nAMERICA, UNITED STATES POSTAL SERVICE,\nOFFICE OF PERSONNEL MANAGEMENT, MAIN\nOn March 8, 1996, the USPS denied Seay's request to\nbe restored to duty under the settlement agreement. The\nPOST OFFICE, BROADWAY, including but not lim-\nited to the Postmater or Chief Officer, the Chief Officer\nUSPS stated that it refused to restore Seay to a position\nbecause he had received a judgment of conviction [*3]\nof Personnel, all persons in personnel or Postmaster's\nin a Florida state court for grand theft. While the USPS\nOffice, and unknown employees of the above, and un-\nnoted that the Florida court deferred the adjudication of\nknown employees of the above, each individually and in\nguilty pending Seay's successful completion of his sen-\ntheir official capacities, Defendants - Appellees: Robert\ntence, it also noted that he was found guilty of criminal\nC. Watson, Asst. U.S. Attorney, Office of the U.S.\ncontempt in that case.\nAttorney, Nashville, TN.\nSeay filed a timely appeal with the Merit Systems\nJUDGES: Before: MERRITT, JONES, and NORRIS,\nProtection Board (MSPB) on April 10, 1996. He subse-\nCircuit Judges.\nquently withdrew his appeal on August 12, 1996, which\nPage 7\n1997 U.S. App. LEXIS 25580, *3\nthe MSPB has stated it will not reinstate absent unusual\ning, the USPS [*5] or the appellant may then petition\ncircumstances. In the present action, Seay sought rein-\nthe MSPB for an administrative review of the decision.\nstatement and damages.\n5 C.F.R. §§ 1201.113 and 1201. 114. Once the MSPB\nhas rendered its decision after a de novo review, the\nThe defendants moved to dismiss pursuant to Fed.\nR. Civ. P. 12(b)(1) and 12(b)(6) based on their con-\nemployee may seek judicial review in the United States\nCourt of Appeals for the Federal Circuit. 5 U.S.C. §\ntentions that the district court lacked jurisdiction over\nSeay's claims and that the individual defendants are pro-\n7703. Appeals of employment decisions of the MSPB\ntected by absolute and qualified immunity. Seay failed\nmay only be brought in the Federal Circuit unless the\nemployee also alleges a valid discrimination claim. See\nto respond to the motion within the time required by the\nRomain V. Shear,, 799 F.2d 1416, 1421 (9th Cir. 1986)\ndistrict court. The district court granted the defendants'\n(per curiam), cert. denied, 481 U.S. 1050, 95 L. Ed.\nmotion to dismiss in an order entered September 30,\n2d 840, 107 S. Ct. 2183 (1987).\n1996. Reconsideration was denied in an order entered\nNovember 17, 1996. This timely appeal followed\nIn this case, Seay voluntarily dismissed his appeal\nfrom the MSPB and instituted a suit in the district\nThis court reviews the district court's dismissal of\ncourt. Accordingly, he failed to exhaust his administra-\nSeay's complaint for lack of subject matter jurisdiction\nde novo. [*4] Gafford V. General Elec. Co., 997\ntive remedies. Where a plaintiff has failed to exhaust his\nadministrative remedies, the court lacks subject matter\nF.2d 150, 155 (6th Cir. 1993). Upon review, we con-\nclude that the district court properly dismissed the com-\njurisdiction. See Jacobs V. Federal Deposit Ins. Corp.,\n638 F. Supp. 214, 214 (E.D. Tenn. 1986).\nplaint for lack of subject matter jurisdiction. Disputes\nconcerning employment decisions of the USPS are gov-\nUpon further review, we conclude that the district\nerned by the statutory procedures contained in the Postal\ncourt properly concluded that Magistrate Judge Haynes\nReorganization Act (PRA), 39 U.S.C. $ 1001 et seq.\nwas entitled to absolute immunity. Apart from the fact\nSee Harper V. Frank, 985 F.2d 285, 288-92 (6th Cir.\nthat Seay has offered nothing to support his allegation\n1993). The PRA \"provides a comprehensive scheme\nagainst Magistrate Judge Haynes, [*6] there is no doubt\nfor employment relations within the USPS, and as such\nthat acts pertaining to discovery and other pretrial mat-\nit preempts recourse to other possible statutory bases\nters are judicial in nature. See Mann V. Conlin, 22 F.3d\nfor federal district court jurisdiction.\" Kroll V. United\n100, 104 (6th Cir.), cert. denied, 513 U.S. 870, 130 L.\nStates, 58 F.3d 1087, 1089 (6th Cir. 1995) (per curiam).\nEd. 2d 126, 115 S. Ct. 193 (1994). Thus, Magistrate\nJudge Haynes did not act in the clear absence of all juris-\nOnce the USPS denied Seay his request for reinstate-\ndiction, and is entitled to judicial immunity. See Stump\nment, Seay was required to exhaust his administrative\nV. Sparkman, 435 U.S. 349, 355-56, 55 L. Ed. 2d 331,\nremedies prior to seeking federal judicial review. Seay's\n98 S. Ct. 1099 (1978).\nrecourse lay in the detailed appellate procedures set out\nin 5 U.S.C. § 7701. That provision states that an em-\nFinally, Seay's motion for a writ of mandamus lacks\nployee who is dissatisfied with an employment decision\nmerit.\nmay have his appeal heard by the MSPB or by the appel-\nAccordingly, the motion for a writ of mandamus is\nlate judge to whom the MSPB refers the case. 5 U.S.C.\ndenied, and the district court's order is affirmed. Rule\n§ 7701(b). If either party is dissatisfied with the find-\n9(b)(3), Rules of the Sixth Circuit.\nPage 8\n2ND CASE of Level 1 printed in FULL format.\nRAY SEAY, Plaintiff-Appellant, V. WILLIAM BROWN; UNITED STATES OF AMERICA; UNITED\nSTATES POSTAL SERVICE; OFFICE OF PERSONNEL MANAGEMENT; MAIN POST OFFICE,\nBROADWAY, including but not limited to the Postmaster or Chief Officer, the Chief Officer of Personnel,\nall persons in personnel or Postmaster's Office, and unknown employees of the above, each individually\nand in their official capacities; WILLIAM J. HAYNES, JR., United States Magistrate Judge,\nDefendants-Appellees.\nNo. 96-6594\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\n124 F.3d 199; 1997 U.S. App. LEXIS 30690\nSeptember 12, 1997, Filed\nNOTICE: [*1] DECISION WITHOUT PUBLISHED\nReported in Full-Text Format at: 1997 U.S. App. LEXIS\nOPINION\n25580.\nPRIOR HISTORY: Middle District of Tennessee. 96-\nOPINION: Motion for a writ of mandamus denied, and\n00032. Higgins. 9-30-96.\nthe district court's order affirmed.\nPage 13\n7TH CASE of Level 1 printed in FULL format.\nLINDA RAWLINGS, Plaintiff-Appellant, V. SCOTT LITTLETON, M.D.; LONNIE LYLES; PEGGY\nNUNN; MARY KUCHUNBAUM; DAUN ANDREWS; RANDY KIMBROUGH; PAMELA BEATY;\nRICK DORSEY; JUDY GLASS; PAT GUTHRIE; DENNIS MINIX; MARY ROSS: ERNIE SMALL\nBUDDY TURNER; MARGARET FREEMAN; THOMAS R. LEWIS, Judge; BILL HAYNES;\n?\nMARGARET YOUNG; JO ANN COLEMAN; BILL ANDREWS; MICHAEL MOORE; GARY\nEHLING; MADENA BASHAM; KENNETH ROYSE; THERESA NELSON; BOB RATHBAUM;\nNOT HIM\nBECKY MILLER; JOHNNY WATTS; JOHN HOYLE; MARGARET ROBBINS; JOHN CHILDRESS;\nJO ANN FARINA; GARY DRAKE; CHARLES BAKER; SUZANNE PASH; CATHY REEVES,\nDefendants-Appellees.\nNo. 93-5223\nUNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT\n1994 U.S. App. LEXIS 9703\nApril 28, 1994, Filed\nNOTICE: [*1] NOT RECOMMENDED FOR FULL-\nhas been referred to a panel of the court pursuant to Rule\nTEXT PUBLICATION. SIXTH CIRCUIT RULE 24\n9(a), Rules of the Sixth Circuit. Upon examination, this\nLIMITS CITATION TO SPECIFIC SITUATIONS.\npanel unanimously agrees that oral argument [*2] is not\nPLEASE SEE RULE 24 BEFORE CITING IN A\nneeded. Fed. R. App. P. 34(a).\nPROCEEDING IN A COURT IN THE SIXTH\nCIRCUIT. IF CITED, A COPY MUST BE SERVED ON\nRawlings originally filed six complaints, three of\nOTHER PARTIES AND THE COURT. THIS NOTICE\nwhich also named Rawlings's son as a plaintiff. The\nIS TO BE PROMINENTLY DISPLAYED IF THIS\ncomplaints against numerous defendants, which the dis-\nDECISION IS REPRODUCED.\ntrict court consolidated, arose out of court proceedings\nresulting in the removal of Rawlings's son from her\nhome and his placement in the Rivendell Youth Center\nSUBSEQUENT HISTORY: Reported in Table Case\nand the Dessie Scott Children's Home in Pine Ridge,\nFormat at: 23 F.3d 408, 1994 U.S. App. LEXIS 17626.\nKentucky. In a typewritten statement of claim attached\nPRIOR HISTORY: United States District Court for the\nto each of the six separate complaints, Rawlings alleged\nthat she has not been allowed to visit her son for almost\nWestern District of Kentucky. District No. 92-00094.\none year and that she has not been provided family ther-\nHeyburn, II, District Judge.\napy that would prepare her for her son's return to her\nDISPOSITION: Affirmed.\nhome; that Social Services has hidden wrongdoings by\nDessie Scott Children's Home; and that her son has had\nmedical problems, has been denied medical attention,\nJUDGES: BEFORE: MERRITT, Chief Judge;\nand has lost a total of 57 pounds while in the custody of\nKENNEDY and NELSON, Circuit Judges.\nSocial Services. Rawlings alleged additional claims such\nOPINION: ORDER\nas medical malpractice, defamation of character, black-\nmail, lost wages, assault charges on behalf of her son,\nLinda Rawlings appeals a district court order dismiss-\nand filing false incident reports. She sought injunctive\ning her civil rights action filed pursuant to 42 U.S.C.\nand monetary relief.\n§ 1983. The defendants have filed various motions to\ndismiss. Rawlings has filed a motion for a restraining\nOn July 8, 1992, the district court dismissed the [*3]\nallegations on behalf of Rawlings's son. The court held\norder, and the defendants have responded. Rawlings\nhas also filed a motion to supplement the record and\nthat a parent who is not an attorney could not repre-\nsent the interests of her minor children. See Meeker\na motion to produce records. The defendants also re-\nV. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (per\nquest attorney's fees for the expense of responding to\ncuriam); Lawson V. Edwardsburg Public School, 751\nRawlings's motion to supplement the record. The case\nF. Supp. 1257, 1258 (W.D. Mich. 1990); Pierce V.\nPage 14\n1994 U.S. App. LEXIS 9703, *3\nStinson, 493 F. Supp. 609, 611 (E.D. Tenn. 1979). The\nthe district court that Rawlings cannot represent the in-\ncourt also ordered Rawlings to amend her complaint to\nterests of her minor son in this case. The district court\nallege facts sufficient to state a legal theory of recovery\nruled that a parent who is not an attorney could [*5]\ncognizable under § 1983.\nnot represent the interests of her minor children. We\nRawlings filed an amended complaint on July 24,\nnote that a parent, if appointed next friend, could sue\n1992, and the defendants filed various motions to dis-\non her minor child's behalf. See Fed. R. Civ. P. 17(c).\nHowever, there is no indication from the record that\nmiss. In separate memorandum opinions and orders en-\ntered December 21, 1992, and February 3, 1993, the\nRawlings was appointed next friend in this case.\ndistrict court dismissed the complaint against the vari-\nUpon review, we conclude that the dismissal of\nous defendants for failure to state a claim upon which\nRawlings's suit was proper as Rawlings undoubtedly can\nrelief may be granted.\nprove no set of facts in support of her claims that would\nInitially, we address the defendants' motions to dis-\nentitle her to relief. Meador V. Cabinet for Human\nmiss Rawlings's appeal. First, contrary to the defen-\nResources, 902 F.2d 474, 475 (6th Cir.), cert. denied,\n498 U.S. 867, 112 L. Ed. 2d 145, 111 S. Ct. 182\ndants' claim, Rawlings properly perfected an appeal. A\n(1990); Dana Corp. V. Blue Cross & Blue Shield Mut.,\nmistake in designating the judgment appealed from is not\nalways fatal as long as the intent to appeal from [*4] a\n900 F.2d 882, 885 (6th Cir. 1990). A pleading which\nsets forth a claim for relief shall contain \"a short and\nspecific ruling can be fairly inferred by probing the no-\ntice. Sanabria V. United States, 437 U.S. 54, 57 n.21,\nplain statement of the claim showing that the pleader is\n57 L. Ed. 2d 43, 98 S. Ct. 2170 (1978). In this case,\nentitled to relief.\" Fed. R. Civ. P. 8(a)(2). While the\nit can be fairly inferred that Rawlings intended to ap-\nFederal Rules of Civil Procedure do not require a plain-\npeal the decision of the district court dismissing her case\ntiff to set out in detail the facts underlying the claim, the\nagainst all defendants. Accordingly, Rawlings properly\nplaintiff must provide sufficient allegations to give the\nperfected an appeal from the district court's decision in\ndefendants fair notice of the claims against [*6] them.\nits entirety.\nSee Leatherman V. Tarrant County Narcotics, 122L. Ed.\n2d 517, 113 S. Ct. 1160, 1163 (1993). Here, Rawlings\nSecond, contrary to the defendants' claim, the Sixth\nfailed to set forth any allegations in her complaints to\nCircuit docket sheet reflects that Rawlings did file a mo-\nsupport a legal theory of recovery cognizable under §\ntion to proceed in forma pauperis in the Sixth Circuit\n1983.\non March 1, 1993, well before the March 22, 1993,\nAccordingly, the motions to dismiss are denied, the\ndeadline. The motion to proceed in forma pauperis was\nmotion for injunctive relief is denied, the request for\ndenied in an order filed May 10, 1993, and Rawlings\npaid the filing fee on May 14, 1993. Thus, the defen-\nattorney's fees is denied, the motion to supplement the\ndants' claim on this point must fail.\nrecord is denied, the motion to produce records is de-\nnied, and the district court's order dismissing Rawlings's\nWe will only address the dismissal of Rawlings's\nsix complaints is affirmed. Rule 9(b)(3), Rules of the\nclaims. We need not address the purported claims as-\nSixth Circuit.\nserted on Rawlings's son's behalf because we agree with"
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