author: SAROKIN, District Judge.

text:
    Anthony J. GALIOTO, Plaintiff, v. The DEPARTMENT OF the TREASURY, BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, Defendant.
    No. Civ. A. 84-2045.
    United States District Court, D. New Jersey.
    Feb. 7, 1985.

      Bianchi & Casale by Michael A. Casale, Nutley, N.J., for plaintiff.
    W. Hunt Dumont, U.S. Atty. by Peter R. Ginsberg, Asst. U.S. Atty., Newark, N.J., for defendant.
   OPINION

SAROKIN, District Judge.

INTRODUCTION

In a society which persists and insists in permitting its citizens to own and possess weapons, it becomes necessary to determine who may and who may not acquire them. At issue in this matter is a statute reminiscent of the Dark Ages, which permits a person convicted of a crime to purchase a gun under certain circumstances, but denies that same right to a person once committed for mental illness no matter what the circumstances. Apparently one who has been convicted of a crime can be relieved of the stigma arising from such a conviction, but a commitment for mental illness renders one permanently disqualified. The statute thus implies that mental illness is incurable, and that those persons with a history of mental illness who have never committed a crime are deemed more likely to commit one in the future than those persons who have actually done so in the past. If persons with criminal records are permitted to purchase and possess weapons after meeting certain standards, certainly persons who have conquered past mental illness are entitled to the same consideration and rights. To impose a perpetual and permanent ban against anyone who has ever been committed for mental illness, no matter how ancient the commitment or how complete the cure, is to elevate superstition over science and unsupported fear over equal protection and due process. Accordingly, the court finds this provision of the subject statute to be unconstitutional.

The instant motion has been brought by defendant to dismiss plaintiffs complaint or, in the alternative, for summary judgment. A party moving for summary judgment cannot prevail unless there exists no genuine issue of material fact and the party is entitled to judgment as a matter of law. Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 95 (3d Cir.1982). When the court has determined upon undisputed facts that the non-moving party, rather than the movant, is entitled to judgment as a matter of law, “it is well within the district court’s discretion to enter summary judgment for the non-moving party.” Selected Risks Ins. Co. v. Bruno, 555 F.Supp. 590 (M.D.Pa.1982) rev’d on other grounds, 718 F.2d 67 (3d Cir.1983); see also 6 Moore’s Federal Practice, ¶ 56.-12 (2d ed.1984).. Such is the case here. The defendant Bureau of Alcohol, Tobacco, and Firearms (Bureau), asks the court to grant summary judgment in its favor on the grounds that the plaintiff has no entitlement to relief under 18 U.S.C. § 925(c), pursuant to which the plaintiff sues. Instead, the court finds that section 925(c) and the related statutory provisions in 18 U.S.C. § 921 et seq, are invalid as infringements upon the plaintiff’s right to due process as guaranteed by the fifth amendment to the United States Constitution.

FACTS

Plaintiff Anthony Galioto is a 57-year-old longstanding resident of West Orange, New Jersey. Galioto served in the Armed Forces from 1951 to 1953, was honorably discharged, and has since held a position as an engineer with the New York and New Jersey Port Authority. Plaintiff’s Memorandum of Law, Exh.D. In 1971, having had no prior history of mental illness, Galioto suffered an acute mental breakdown and voluntarily entered Fair Oaks Hospital in Summit, New Jersey. Plaintiff’s Mem., Exh. B. He was diagnosed as having suffered an acute schizophrenic episode with paranoid features. Galioto remained hospitalized for twenty-three days from May 11 to June 4, 1971.

During Galioto’s hospital stay, when Galioto expressed his intention to leave, his physician, Dr. R.G. Alvarez, sought to have him committed. On May 31, 1971, the Essex County Juvenile and Domestic Relations Court entered a final order of commitment. Galioto was released five days later, after Dr. Alvarez determined that Galioto’s condition had improved. There is no evidence that Galioto was ever again hospitalized for mental illness.

Ten years after this hospitalization, Galioto applied to the Superior Court of New Jersey, Essex County, Law Division, for an order granting him a firearms purchase identification card pursuant to New Jersey Statute Annotated 2C:58-3(b), which order was granted on April 27,1981. Thereafter, in October, 1982, plaintiff attempted to purchase a firearm at Ray’s Sport Shop in North Plainfield, New Jersey. Ray’s Sport Shop refused to sell any firearm to plaintiff when he responded “yes” to a question on a standard Bureau questionnaire asking: “Have you ever been adjudicated mentally defective or have you ever been committed to a mental institution?” 18 U.S.C. § 922(d)(4) makes it unlawful for a licensed dealer in firearms “to sell ... any firearm ... to any person knowing or having reasonable cause to believe that such person ... has been adjudicated as a mental defective or has been committed to any mental institution.”

A few days after said refusal, Galioto applied to the defendant Bureau in Washington, D.C., for a release from firearms disability pursuant to 18 U.S.C. § 925(c). Papers submitted by plaintiff included a certification from Dr. Alvarez, the physician who had sought Galioto’s commitment in 1971, to the effect that Galioto was no longer suffering from any mental disability that would interfere with his handling of firearms. Section 925(c), under which Galioto sought relief from his firearm disability, provides in pertinent part:

A person who has been convicted of a crime punishable for a term exceeding one year (other than a crime involving the use of a firearm or other weapon or a violation of this chapter or of the National Firearms Act) may make application to the Secretary for relief from the disabilities imposed by Federal laws with respect to the acquisition ... of firearms and incurred by reason of such conviction, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding such conviction, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

There is no equivalent provision establishing a mechanism by which a former mental patient can seek relief from the firearms disabilities imposed upon him by federal law. By letter dated April 13, 1984, the Director of the Bureau of Alcohol, Tobacco, and Firearms, Stephen E. Higgins, denied plaintiff’s application for relief from firearms disability, asserting that Galioto was “subject to Federal firearms disability because of his commitment.” Exhibit A to Complaint.

The Bureau argues in support of its motion that it was powerless to release Galioto from disability under section 925(c), because that section allows for a release from disability only for those disabled due to criminal convictions, not those disabled as a result of past commitment to a mental institution. Sections 922(d)(4) and (h)(4), according to the Bureau, create a permanent and irreversible disability for anyone ever committed to a mental institution, without regard to the length of the commitment, the length of the interval between the commitment and the proposed firearms purchase, the source or severity of the original illness, the improvement of the person subject to the disability, the evolution of medical knowledge about the illness for which the former patient was committed, or the propriety and correctness of the commitment in the first instance.

DISCUSSION

I. Issues of Fact

Plaintiff has contended, in defense of this motion, that there remains a disputed issue of fact which ought to preclude summary judgment. He argues that the Director’s decision to deny plaintiff relief rested on two factual determinations: “(1) that plaintiff had been committed to a mental institution and (2) that plaintiff was discharged on a determination other than a finding that he was competent.” Plaintiff’s Mem. at 3; also Exh. A to Complaint. Plaintiff argues that the Director would or should have released plaintiff from his disability had he found that plaintiff’s commitment was “factually erroneous,” that is, that plaintiff “was not mentally ill at the time of his commitment or alternatively that he was subsequently discharged based on a finding of mental competence.” Plaintiff’s Mem. at 5. Plaintiff does not argue that his commitment was, in fact, “erroneous,” but notes that it was of short duration. The Bureau maintains, on the other hand, that the fact of plaintiff’s commitment alone is enough to disable him permanently, whether or not that commitment was erroneous. It notes in any event that plaintiff was prescribed medication upon his discharge, indicating that he was not wholly “competent” at that time.

The court finds no issue of fact raised here that should preclude summary judgment in favor of the plaintiff. The Bureau has taken the position that it is powerless under sections 922 and 925 to release plaintiff from his disability even if it were shown as a matter of fact that plaintiff’s commitment was indeed erroneous, or for any other reason. This interpretation is entitled to some, albeit limited, deference as an indication of the intended “meaning” of the statute. Columbia Gas Transmission Corp. v. F.P.C., 530 F.2d 1056, 1059 (D.C.Cir.1976) (deference given to agency’s determination of meaning of statute in light of agency expertise); Erickson Air Crane Co. of Washington, Inc. v. United States, 731 F.2d 810, 814 (Fed.Cir.1984) (“legal interpretations by tribunals having expertise are helpful [to reviewing court]”). Moreover, the Bureau presents a plausible argument that the statute is to be read literally, relying on Dickerson v. New Banner Institute, 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983) (state expunction of conviction did not relieve plaintiff of firearms disability under literal terms of 18 U.S.C. §§ 921 et seq., imposing disability based on fact of conviction), and that section 925 simply does not give it authority to relieve plaintiff of his disability, whatever the circumstances surrounding his commitment or thereafter. In general, a court should avoid reaching a constitutional question when an issue can be resolved as a matter of statutory interpretation. See, e.g., United States v. Security Industrial Bank, 459 U.S. 70, 103 S.Ct. 407, 411, 74 L.Ed.2d 235 (1982); Railroad Comm’n v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Here, however, where the statutory interpretation of the agency is well-founded and where the plaintiff has not submitted evidence to demonstrate that he comes within the exception to the statute which he urges, it is not necessary to prolong these proceedings in anticipation of further proofs in order to avoid confronting the patent constitutional defect in section 921, et seq. The purpose of summary judgment is “to eliminate a trial in cases in which it is unnecessary and would only cause delay and expense.” Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).

2. Issues of Law — The Statute’s Infirmity Under the Fifth Amendment

It is well settled that the due process clause of the fifth amendment includes an equal protection component. See, e.g., Nat’l Black Police Ass’n, Inc. v. Velde, 712 F.2d 569, 580 (D.C.Cir.1983), cert. denied, _ U.S. _, 104 S.Ct. 2180, 80 L.Ed.2d 562 (1984). Federal government action violates the equal protection component of the due process clause when it treats similarly situated groups differently without a substantial or compelling government interest, if the groups are suspect or “quasi-suspect” classes entitled to enhanced scrutiny, or a fundamental right is involved, or if it acts without a rational basis, where the groups are not suspect classes and no fundamental right is implicated. Plyler v. Doe, 457 U.S. 202, 216-18, 102 S.Ct. 2382, 2394-95, 72 L.Ed.2d 786 (1982). A legislative classification is treated as “suspect” when it is

more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law.

Id. at 216-17 n. 14, 102 S.Ct. at 2394 n. 14. Certain groups, although not “suspect,” are deserving of a higher level of scrutiny than is accorded most legislative classifications. Differential treatment of these groups must be justified by a “substantial” state interest, because the groups have been historically “subjected to unique disabilities on the basis of stereotyped characteristics not truly corresponding to the attributes of [their] members.” J. W. v. City of Tacoma, Wash., 720 F.2d 1126, 1129 (9th Cir.1983). The Supreme Court has extended such enhanced scrutiny thus far to classifications by sex, Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), by legitimacy of birth, Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978), and by lawfulness of presence within the United States, Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). See also United States v. Cohen, 733 F.2d 128 (D.C.Cir.1984).

This court concludes that persons with histories of mental illness are a quasi-suspect class deserving of intensified “intermediate” scrutiny; that is, any statute treating them differentially must be related to a “substantial” governmental interest. Even if persons with histories of mental illness are not a quasi-suspect class deserving of heightened scrutiny, the provisions of 18 U.S.C. § 921 et seq. are simply not rational to the extent that they treat former mental patients differently vis a vis convicted criminals, in that they permanently deprive former mental patients of the opportunity to demonstrate changed circumstances which warrant the removal of the disqualification. The court determines that they violate not only plaintiffs right to equal protection, but his right to substantive due process as well.

A. Former Mental Patients as a Quasi-Suspect Class

The Supreme Court has expressly reserved judgment on the question of whether or not the mentally ill are deserving of heightened scrutiny. Schweiker v. Wilson, 450 U.S. 221, 229, 231 n. 13, 101 S.Ct. 1074, 1080, 1081 n. 13, 67 L.Ed.2d 186 (1981). The Ninth Circuit has found former mental patients to be a “quasi-suspect” class entitled to “intermediate” scrutiny, however. J.W. v. City of Tacoma, 720 F.2d 1126 (9th Cir.1983). In City of Tacoma, the Ninth Circuit recognized that “constitutional concerns are heightened by any classification scheme singling out former mental patients for differential treatment because of the possibility that the scheme will implement “inaccurate and stereotypic fears” about former mental patients. Id. at 1130-31.

The Third Circuit has not spoken directly on this issue. In its recent decision, Cospito v. Heckler, 742 F.2d 72 (3d Cir.1984), the court applied a “rational basis” test in analyzing the claims of a group of mental patients who had lost certain federal benefits when the psychiatric hospital in which they were being treated lost its accreditation. The patients contended that “psychiatric hospitals will lose federal benefits more readily than a general hospital if deaccredited by JCAH [an accrediting agency], since such accreditation apparently does not affect in any way a general hospital’s participation in Medicare or Medicaid ... whereas a psychiatric hospital must either be JCAH accredited, or else certified under the ‘distinct part’ survey in order to qualify,” and that this amounted to discrimination against the mentally ill. Id at 83. In applying only minimal scrutiny, the Third Circuit carefully noted the Supreme Court’s reservation of “the question of whether legislation expressly classifying mental patients as a discrete group must be examined under any enhanced standard of scrutiny,” Id. n. 19 (emphasis supplied), however. This court concludes from this note that the Third Circuit, like the Supreme Court, has reserved judgment on the question of what level of scrutiny to apply to legislation that explicitly singles out mental patients or those with a history of psychiatric hospitalizations for differential treatment. In the opinion of this court, the Third Circuit would not automatically apply a rational basis test if presented with these facts, particularly in light of the Ninth Circuit’s holding in Tacoma, supra (striking down zoning regulation that treated group homes for former mental patients differently than other group homes). This court is persuaded by the Ninth Circuit’s holding that former mental patients do constitute a quasi-suspect class for fourteenth amendment purposes, but the court does not rest its decision on that ground.

B. Application of the Rational Basis Test

The question of whether or not persons with a history of mental illness should be afforded enhanced scrutiny when singled out for differential treatment is not critical in this constitutional challenge to 18 U.S.C. § 921 et seq., because, even under a rational basis test, this statute is defective under both equal protection and substantive due process theories.

The court first notes its agreement with plaintiff’s observation that the Supreme Court has not already decided this question in the dicta from Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), which is emphasized by defendant. In that case, holding that a state court’s expunction of a criminal conviction would not automatically release a convict of his firearm disability under 18 U.S.C. § 921 et seq., the Court stated that

[t]he imposition, by §§ 922(g)(4) and (h)(4), of continuing disability on a person who “has been” adjudicated a mental defective or committed to a mental institution is particularly instructive. A person adjudicated as a mental defective may later be adjudged competent, and a person committed to a mental institution may later be deemed cured and released. Yet Congress made no exception for subsequent curative events. The past adjudication or commitment disqualifies. Congress obviously felt that such a person, though unfortunate, was too much of a risk to be allowed firearms privileges____ In the face of this fact, we cannot believe that Congress intended to have a person convicted of a firearms felony under state law become eligible for firearms automatically because of a state expunction for whatever reason.

Id. 103 S.Ct. at 993. In this passage, the Court referred to section 922’s explicit treatment of persons with histories of psychiatric commitments simply in order to support its statutory interpretation of the import of an expunction under section 921 et seq. Possible constitutional infirmities in collateral clauses of the statute were not the focus of the Court. Significantly, as plaintiff has noted, the Court took special notice of the fact that “Congress carefully crafted a procedure for removing ... disabilities [of convicts] in appropriate cases,” id. 103 S.Ct. at 995, and cited section 925(c), the very relief statute which the plaintiff has tried unsuccessfully to have applied to him. Arguably, the Court felt free to dwell solely on questions of statutory interpretation because o/this “escape clause” in the statutory sections with which it was concerned. It is the absence of this procedure for escape from disability for former mental patients, particularly in light of its availability for convicts, that creates the constitutional infirmity with which we are concerned here.

The failure of the statute to provide former mental patients with the opportunity to contest their firearm disability is irrational in two ways that offend the due process and equal protection components of the fifth amendment. First, the statute offends the equal protection rights of former mental patients by treating them differently than others similarly situated, viz, ex-convicts, without any logical justification for doing so. Second, the statute offends the due process rights of these individuals because it deprives them permanently and without any rational basis of the opportunity to demonstrate that they are no longer, or never were, incapable of handling firearms safely.

1. Equal Protection

Sub-sections (d)(4) and (h)(4) prohibit sales of firearms to, or purchases of firearms by, any person

(1) who is under indictment for, or who has been convicted in any court of, a crime punishable for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to marijuana or any depressant or stimulant drug ... or narcotic drug; or
(4) who has been adjudicated as a mental defective or who has been committed to any mental institution.

Of these, only ex-convicts and former psychiatric patients are classed according to a past occurrence in their lives which might raise a presumption that they would be incapable of handling firearms safely in the future. All of the other classes of individuals are subject to present infirmities which are obviously direct indications that they might not be trustworthy with weapons. The statutory scheme allows the subject of a past conviction to show his reformation, in section 925, but does not allow the same opportunity to the subjects of a past commitment proceeding. Thus, out of all of the categories of individuals disabled from purchasing firearms, only the former mental patients are permanently disabled on the basis of a past event that may or may not be an indicator of their present ability to handle firearms, with no opportunity to establish that, in fact, they are now capable of safe handling.

There is no rational basis for thus singling out mental patients for permanent disabled status, particularly as compared to convicts. While, as noted below, this court objects to presumptively barring any individual based on a past event from the opportunity to prove that he or she should be released from disability, rational analysis suggests that, if anything, the bar would be more logically applied to convicts than to former mental patients, rather than vice versa. First, the bar has a punitive aspect which may be appropriate for one who has been duly convicted of a crime, but not for an innocent former mental patient. See Plyler v. Doe, supra, 457 U.S. at 220, 102 S.Ct. at 2396 (“legal burdens should bear some relationship to individual responsibility or wrongdoing”). Second, individuals who are convicts have demonstrated that they are capable of criminal activity by actually committing the crime for which they were convicted, cf., Jones v. United States, 463 U.S. 354, 103 S.Ct. 3043, 3049, 77 L.Ed.2d 694 (1983) (“[t]he fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness”); former mental patients have not, by virtue of that status, indicated anything more than that they at one time were adjudged to have a propensity for disruptive activity. Third, the committed patient who is released, as was Galioto, shortly after his commitment, may not have the same incentive to appeal the commitment as a convicted felon, so the propriety of the initial commitment may never be fully explored. The initial commitment proceeding is likely to be much more emergent than a criminal proceeding as well, if the proceeding is begun only upon a patient’s seventy-two-hour notice of intention to leave, pursuant to New Jersey Statute Annotated 30:4-46 (hospital must discharge voluntarily admitted patient within seventy-two hours of request to leave absent commitment). Moreover, the commitment proceeding is likely to have fewer procedural safeguards (e.g., no right to a jury, N.J.Stat.Ann. 30:4-42; “clear and convincing” burden of proof rather than “beyond a reasonable doubt”). This last point is particularly disturbing in light of the studies cited by plaintiff, Mem. at 12, to the effect that commitment proceedings are replete with erroneous factual findings.

In sum, permanent disability is more appropriately accorded to convicts, if anyone, than to former mental patients. The only “rational” reason for failing to provide persons with psychiatric histories the opportunity to contest their disability must be based on some “archaic and stereotypic notions”, Tacoma, 720 F.2d at 1129, citing Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723, 102 S.Ct. 3331, 3335, 73 L.Ed.2d 1090 (1982), that mental illness is always, in every instance, permanent and incurable. This ignores expanding knowledge about the causes of mental illnesses, their reversibility and treatment.

2. Substantive Due Process

The statute is unconstitutional not only because it treats former mental patients differently from and inferior to convicts, but also because it presumptively denies former mental patients the opportunity to establish that they no longer present the danger against which the statute was intended to guard. The statute in effect creates an irrebuttable presumption that one who has been committed, no matter the circumstances, is forever mentally ill and dangerous. An irrebuttable presumption violates the due process rights of the individual against whom it is applied unless it is “at least rationally related to a legitimate state objective.” Malmed v. Thornburgh, 621 F.2d 565, 575, 578 (3d Cir.), cert. denied, 449 U.S. 955, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980); see also Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (unconstitutional to presume that all unwed fathers are unfit as parents); Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir.1977) (unconstitutional to presume blind teacher not competent to teach English in public schools). This court does not question that the regulation of purchases and sales of firearms for the safety of the public is a legitimate, indeed substantial, state objective. But the application of an irrebuttable presumption against ownership of firearms by former mental patients is not a rational means of achieving that objective. Cf. Hetherton v. Sears, Roebuck & Co., 652 F.2d 1152 (3d Cir.1981) (“[wjhile it may be true that [the state] could ban the sale of all deadly weapons, it does not follow that the state, having abrogated its power to effect a total ban,” can regulate sale of weapons in an irrational manner).

The statute in question is irrational because, without any good faith extrinsic justification, such as administrative cost, it relies on psychiatric evidence introduced in one proceeding to impose a burden on an individual, and then refuses to accept the same evidence when the individual seeks to have the burden removed. At the outset, the court notes that the government has never questioned in this litigation the feasibility of affording relief proceedings to former mental patients. Indeed, given that the statutory scheme under examination here allows for relief from disability in cases involving convicts, the government cannot in good faith contend that its refusal to allow relief in the case of former mental patients is based on a concern over the expense of the relief procedure or its administrative feasibility. Neither does the relief procedure contemplated here implicate the concerns of repose and economy underlying the judicial principles of res judicata and collateral estoppel. The relief proceeding is not aimed at relitigating the issues litigated at the previous commitment hearing, but focuses on present circumstances, and on an ongoing civil disability independent of the original commitment.

Absent any rationale of economy or efficiency, the court can find no rationale for the statute but an archaic, stigmatizing, unreasoning fear of the mentally ill. As noted previously, “[[legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually.” Plyler, 457 U.S. at 216 n. 14, 102 S.Ct. at 2394 n. 14. In plaintiff Galioto’s case, the very physician who certified he should be committed, Dr. Alvarez, has now certified that Galioto is competent to handle a firearm. Indeed, the state courts that committed Galioto have now issued him a firearm identification card. Even if these events should not automatically relieve Galioto of his disability, cf. Dickerson, supra, they indicate that Congress’ concerns in creating the disability for certain higher risk firearm purchasers no longer obtain in Galioto’s case. The statute, however, permanently forecloses Galioto from challenging that disability.

Even the very evidence, namely, psychiatric opinion, which was responsible for the stigmatic label in the first instance, cannot erase this mark. The court appreciates the “fallibility of psychiatric diagnosis”, Addington v. Texas, 441 U.S. 418, 429, 99 S.Ct. 1804, 1811, 60 L.Ed.2d 323 (1979), and the fact that “some in the psychiatric community are of the view that clinical predictions as to whether a person would or would not commit violent acts in the future are ‘fundamentally of very low reliability’ and that psychiatrists possess no special qualifications for making such forecasts.’ ” Estelle v. Smith, 451 U.S. 454, 472, 101 S.Ct. 1866, 1878, 68 L.Ed.2d 359 (1981) (citations omitted). But the shortcomings of psychiatry cannot excuse the failure to afford a former mental patient a hearing on his current mental competence for the purpose of overcoming a civil disability, where the government has been satisfied to rely on psychiatric evidence in imposing the disability in the first instance. That failure amounts to a denial of due process.

CONCLUSION

The court does not today find it irrational to prohibit former mental patients generally from the purchase of firearms. The court finds rather that such a general prohibition is irrational and unconstitutional, if it does not include some provision for the granting of relief from disability to former mental patients in appropriate cases. As the defendant has noted, this court does not have the power to “create a review procedure for people in plaintiff’s category,” Defendant’s Reply Mem. at 9, because “[t]hat would be a legislative function.” The court can only declare those provisions of 18 U.S.C. § 921 et seq. which have been used to deprive plaintiff of his ability to purchase a firearm, without affording him any opportunity to contest that disability, to be void as violative of the fifth amendment of the United States Constitution.

The court does not mean to suggest by this opinion that all former sufferers of mental illness should be permitted to own firearms. But, rather, if Congress has determined that there are circumstances under which former criminals can own and possess weapons and a means is provided to establish such entitlement, former mental patients are entitled to no less. To hold otherwise is to implicitly declare that mental illness is incurable and that all those who have once suffered from it forever remain a danger to society. Such a conclusion is repugnant to our principles and is contradicted by the multitude of such persons who now live among us without incident. The anguish caused by mental illness is great enough without the imprimatur of a lifetime stigma embossed by congressional action.

Because the holding of the court in this matter will create a void in an area which clearly requires governmental control and regulation, the court, on its own motion, will stay the effective date of its order for a period of 120 days, so as to afford to Congress an opportunity to correct the constitutional infirmities found to exist in the present legislation and to accord to former mental patients the rights, dignity and due process to which they are entitled.

      . Another subsection of section 922, section 922(h)(4), makes it unlawful for “any person ... who has been adjudicated as a mental defective or who has been committed to any mental institution ... to receive any firearm ... which has been shipped or transported in interstate or foreign commerce.”

      . Firearm disabilities equivalent to those imposed on persons who have been adjudicated mentally defective or committed to a mental institution are imposed on persons who have "been convicted in any court of ... a crime punishable by imprisonment for a term exceeding one year." §§ 922(d)(1) and 922(h)(1).

      . The court has serious doubt whether an applicant could collaterally attack such a commitment in this type of a proceeding, even if appropriate means were provided to seek relief.

      . The Court has recently granted certiorari on the question of whether the mentally retarded are a "quasi-suspect" class entitled to enhanced scrutiny. City of Cleburne v. Cleburne Living

        Center, _ U.S. _, 105 S.Ct. 427, 83 L.Ed.2d 354 (1984); see also "Subject Matter Summary of Cases Recently Filed,” 53 U.S.L.W. 3343-44 (Nov. 6, 1984).

      . Prior to Schweiker, in which the Supreme Court expressly reserved judgment on the standard of review for classifications of the mentally ill as a discrete group, the Third Circuit applied a rational basis test in evaluating the constitutionality of a state statute setting differential time limits for benefits for hospitalization in mental as opposed to general hospitals. See Doe v. Colautti, 592 F.2d 704 (3d Cir.1979). The court relied on the Supreme Court’s summary affirmance in Legion v. Weinberger, 414 U.S. 1058, 94 S.Ct. 564, 38 L.Ed.2d 465 (1973), aff'g Legion v. Richardson, 354 F.Supp. 456 (S.D.N.Y.1973) (three-judge court), in which the court below employed a rational basis test to uphold a limitation on the number of days of Medicaid and Medicare coverage for psychiatric as opposed to general hospitalizations for patients over 65. The explicit reservation of judgment in Schweiker, noted in Cospito, indicates that none of these cases supports the proposition that express classifications of individuals according to their history of psychiatric treatment are inevitably subject only to a rational basis analysis.

      . The parties have applied only a rational basis analysis.

      . Defendant also cites a 1983 decision from the District of South Carolina as having considered this issue. United States v. Jones, 569 F.Supp. 395 (D.S.C.1983). Again, this court must note its agreement with the plaintiff that the Jones court did not address the procedural infirmity this court finds in the statute. In Jones, the defendant, a former mental patient, was not seeking to have her disability removed so that she could purchase a firearm; she was instead under indictment for having purchased a firearm without any release from the statutory disability, a purchase she had accomplished by falsifying information about her prior hospitalizations. Presented with those facts, the Jones court found that it was not irrational "to prohibit persons within the category of 18 U.S.C. § 922(d)(4) from purchasing and/or receiving firearms." 569 F.Supp. at 399. This court does not disagree with that conclusion. But to conclude that it is rational to prohibit former mental patients in general from purchasing or receiving firearms is not to conclude that it is rational to deny individual former mental patients the opportunity to seek relief from this general disability with a showing that they are responsible enough to handle a firearm safely and legally, particularly when such an opportunity is afforded ex-convicts.

      . Section 925(c) does exclude convicts whose past convictions were for firearms-related offenses from its relief provisions, but such past convictions might rationally be considered good indicators of a potential for future firearms abuse, in contrast to a mere general finding of mental illness in the past.

      . An individual may be committed in New Jersey if "there is believed to exist in the patient a diagnosed mental illness of such degree and character that the person, if discharged, will probably imperil life, person, or property.” N.J. Stat.Ann. 30:4-48. Thus, one without violent tendencies toward people may be committed on the belief that he will likely "imperil ... property-”


source: Caselaw Access Project

author: CHARLES SCHWARTZ, Jr., District Judge.

license: Public Domain

text:
    Mary Dell Tinsley FRANCESKI v. PLAQUEMINES PARISH SCHOOL BOARD, Raymond Shetley and Frederick Deiler.
    Civ. A. No. 83-5332.
    United States District Court, E.D. Louisiana.
    Feb. 7, 1985.

      Nathan Greenberg of Greenberg & Dallam, Gretna, La., for plaintiff.
    Robert E. Tarcza, H. Sloan McCloskey of Baldwin & Haspel, New Orleans, La., for all defendants.
    Frederick R. Bott of Deutsch, Kerrigan & Stiles, New Orleans, La., for third party defendant Pacific Employers Ins. Co.
   ORDER AND REASONS

CHARLES SCHWARTZ, Jr., District Judge.

This matter came before the Court on the motion of defendants, Plaquemines Parish School Board (the Board), Raymond Shetley and Frederick Deiler, for summary judgment. Following oral argument, and considering the record, the memoranda and the law applicable to this case, the Court grants the motion for the reasons set forth below.

Plaintiff was hired in 1975 as Supervisor of Special Education for Plaquemines Parish by the School Board. During the events giving rise to this suit, Shetley was superintendent and Deiler was president of the Board. The Louisiana Attorney General issued an opinion that plaintiff was not tenured under the Louisiana Teacher’s Tenure Act. Opinion No. 78-1634. Thereafter, Shetley informed plaintiff by letter of May 22, 1980 that she would not be re-hired for the next school term. On May 29, 1980, plaintiff filed suit in the State District Court contending that she was a tenured teacher and demanding an injunction against her dismissal pending a tenure hearing in compliance with L.S.A.-R.S. 17:443. Both petitions were granted. A tenure hearing was set in compliance with the court order. Plaintiff was given fifteen days notice, a list of witnesses, their expected testimony, and a list of charges against her. At the tenure hearing, plaintiff was represented by counsel at all times and was allowed to introduce evidence into the record of the proceedings. The Board voted to dismiss plaintiff at the close of the tenure hearing. However, the Board did not vote on the individual charges, contrary to statutory requirements.

Plaintiff appealed to the state district court and introduced additional testimony on her behalf. The court ruled that plaintiff was to be reinstated. On the appeal of the Board, the Louisiana Fourth Circuit Court of Appeal affirmed the district court’s decision and ruled that the School Board had violated the Louisiana Teacher’s Tenure Law in failing to vote on the individual charges. Writs were denied by the Louisiana Supreme Court. Plaintiff was reinstated with back pay. The Board claimed no offset for interim monetary compensation collected and/or earned by plaintiff during the course of the proceedings described above.

Plaintiff instituted the present litigation under 42 U.S.C. §§ 1983 and 1985, alleging violation of her civil rights, based on the foregoing facts. In this suit, plaintiff claims damages for attorney’s fees and costs relative to the reinstatement proceedings, as well as for mental anguish, damage to reputation and the like. Defendants move to move for summary judgment on the grounds that (1) they are protected by qualified immunity, (2) there is an adequate state remedy, and (3) there was no violation of due process. At the hearing of this motion, defendants’ motion was granted as unopposed as to plaintiff’s claim under § 1985.

With regard to the individual defendants, Shetley and Deiler, the Court finds that the doctrine of qualified immunity is a bar to plaintiff’s claims. A plaintiff seeking damages for violation of constitutional or statutory rights must show that these rights were clearly established at the time of the conduct at issue, in order to overcome a defendant official’s qualified immunity. Davis v. Scherer, _ U.S. _, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Officials sued for constitutional violations do not lose their qualified immunity merely because their conduct violated some statutory or administrative provisions. Id. Thus, plaintiff’s argument that she was initially terminated without a hearing and that, thereafter, the vote taken at the hearing was improper, has no bearing on the immunity issue, although the Board’s actions violated the requirements of the Louisiana Teachers Tenure Act, L.S.A.-R.S. § 17:441, et seq.

As a matter of law, the right to a pretermination hearing under the circumstances of the instant case was not clearly established in the Fifth Circuit at the time of the conduct at issue. Id. As the Supreme Court stated in Davis:

Appellee contends that ... the federal constitutional right to a pre-termination hearing or a prompt post-termination hearing was well established in the Fifth Circuit at the time of the conduct in question. As the District Court recognized in rejecting appellee’s contention, Weisbrod v. Donigan, 651 F.2d 334 (CA5 1981), is authoritative precedent to the contrary. The Court of Appeals in that case found that the State had violated no clearly established due process right when it discharged a civil service employee without any pretermination hearing. Id. 104 S.Ct. at 3018. (Emphasis in original.)

Moreover, plaintiff does not contest that (1) the opinion of the Attorney General, issued prior to her initial termination was that plaintiff was not a tenured teacher, (2) the subsequent hearing was conducted in accordance with law, with the exception of the failure of the Board to vote on the individual charges, (3) the vote was overturned by the state court.

Plaintiff has failed to assert a clearly established right which was violated. In this regard, the instant case is indistinguishable from Davis v. Scherer, supra, which is dispositive on the issue of qualified immunity.

Additionally, absent a claim for conspiracy under § 1985, it appears that plaintiff’s claims against the individual defendants, Shetley and Deiler, have prescribed, as plaintiff alleges no particular acts on the part of the said individuals which occurred within the one year prescriptive period for civil rights claims.

As further grounds for this motion, defendants assert that plaintiff had an adequate state law remedy, thus, precluding pursuit of her claims herein. As a matter of law, a claim for deprivation of civil rights will not lie if there is an adequate state law remedy. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). The remedy provided by state law is adequate if it “could have fully compensated” the complainant for the loss suffered. Id. at 544, 101 S.Ct. at 1917. Even though the state remedy may not provide all the relief available under the civil rights statute, the requirements of due process may still be satisfied. Id.

The dismissal of teachers is governed by the Louisiana Teacher’s Tenure Act, L.S.A.-R.S. § 17:441, et seq. The Act provides a state remedy which is sufficient to satisfy the requirements of due process and to compensate plaintiff for any injury sustained. In fact, plaintiff utilized this statutory scheme to obtain, (1) a pre-termination hearing, (2) an appeal to the state courts, (3) reinstatement, and (4) back pay. Plaintiff did not seek attorneys fees and damages for mental anguish at the state court level.

Plaintiff argues that the adequate state remedy concept has been limited by subsequent Supreme Court decisions and does not foreclose a due process claim grounded on an alleged intentional deprivation of property. Logan v. Zimmerman Brush Co., 445 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); McCrae v. Hankins, 720 F.2d 863 (5th Cir.1983). The elements of procedural due process, with regard to discharged public employees having a protected interest in continued employment, include notice of such termination, and an opportunity to be heard prior to termination. Jones v. Orleans Parish School Board, 679 F.2d 32 (5th Cir.1982). However, plaintiffs arguments as to the inadequacy of the state remedy are without merit, since, based upon the uncontested facts, plaintiff has not stated a cause of action for an intentional deprivation of due process. Indeed, were we to reach the issue of whether plaintiff has stated a cause of action for any violation of due process, we would be compelled to find that she has not. Based upon the facts of this case, it is clear that plaintiff was provided with notice and hearing, as well as the relief which she requested at the state court level.

Accordingly, and for the foregoing reasons, it is ordered that the motion of defendants for summary judgment be and it is hereby granted.

      . Qualified immunity is not a defense on the claim against the Board. Municipal entities do not enjoy the tradition of immunity as do independent public officials. Owen v. City of Independence, 445 U.S. 622 (1980).


author: POLOZOLA, District Judge.

text:
    Melissa LINDER v. LIBERTY MUTUAL INSURANCE COMPANY.
    Civ. A. No. 84-806-B.
    United States District Court, M.D. Louisiana.
    Feb. 7, 1985.

      Richard L. McGimsey, Baton Rouge, La., for plaintiff.
    Paul Marks, Jr., Baton Rouge, La., for defendant.
   POLOZOLA, District Judge.

This matter is before the Court on the motion of the plaintiff, Melissa Linder, to remand this action to the Twenty First Judicial District Court for the Parish of Livingston, State of Louisiana. In addition, the defendant, Renie T. Lee, has filed a motion to dismiss the action against him for failure to state a claim for which relief can be granted. Alternatively, Lee seeks to have this Court review its prior order which granted leave to the plaintiff to amend her complaint to join Lee as a defendant.

The plaintiff initially filed this suit in the Twenty First Judicial District Court for the Parish of Livingston, State of Louisiana. Liberty Mutual Insurance Company (Liberty) thereafter filed a petition for removal pursuant to 28 U.S.C. § 1441. Liberty, in its petition for removal, asserted that this Court had jurisdiction based upon the diversity of the parties. 28 U.S.C. § 1332. On October 25, 1984, this Court permitted the plaintiff to file an amended complaint joining Renie T. Lee as a defendant.

The plaintiff contends that this action should be remanded to state court because this Court lacks subject matter jurisdiction. The basis of this contention is that complete diversity, as required by Strawbridge v. Curtiss, 3 Cranch 267, 7 U.S. 267, 2 L.Ed. 435 (1806), is lacking because the plaintiff and the recently joined defendant, Renie T. Lee, are both domiciled in Louisiana.

28 U.S.C. § 1447(c) provides that “[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.” Section 1447(c) governs the remand of an action after its removal to federal court. IMFC Professional, ETC v. Latin Am. Home Health, 676 F.2d 152 (5th Cir.1982) and In re Merrimack Mutual Fire Ins. Co., 587 F.2d 642 (5th Cir.1978). Section 1447(c) requires a two step analysis to determine if a case should be remanded to state court.

Initially, the court must determine whether the case “was removed improvidently and without jurisdiction.” IMFC Professional ETC, 676 F.2d at 156. To determine if the removal was initially proper, a court must consider the pleadings as they exist at the time of removal. In re Carter, 618 F.2d 1093 (5th Cir.1980), cert denied 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981) and Wamp v. Chattanooga Housing Authority, 384 F.Supp. 251 (E.D.Tenn.1974), affirmed 527 F.2d 595 (6th Cir.1975), cert. denied 425 U.S. 992, 96 S.Ct. 2203, 48 L.Ed.2d 816 (1976). In the present case, the plaintiff was a citizen of Louisiana at the time of removal and the only defendant, Liberty, a citizen of the State of Massachusetts. Thus, at the time of removal there was complete diversity between the parties and the amount in controversy exceeded $10,000. Therefore, the Court finds that the removal was proper at the time this case was originally removed to this court.

The Court must also decide whether remand is necessitated by post-removal events. In In re Merrimack Mutual Fire Ins. Co., supra, the Fifth Circuit held that 1447(c) permits an examination of post removal events to determine, whether a case should be remanded. Merrimack, 587 F.2d at 645-46. In expanding the Merrimack rationale, the Fifth Circuit later held that when a court must determine whether to remand a removed case, it must use the same analysis that is used to determine whether to dismiss a case initially filed in a district court. IMFC Professional ETC, 676 F.2d at 157. This holding, however, was specifically limited to “whether jurisdiction once conferred is lost.” 676 F.2d at 157, note 6. The IMFC case then listed those subsequent developments that would or would not affect a court’s prior existing jurisdiction. In the latter category, the Court expressly pointed to Merrimack as standing for the proposition that the addition of a non-diverse party could divest a federal court of its jurisdiction IMFC Professional ETC, 676 at 157. In the Merrimack case, the Fifth Circuit again rejected the argument it initially rejected in Jett v. Zink, 362 F.2d 723, 726 (5th Cir.1966), cert. denied, 385 U.S. 987, 87 S.Ct. 600, 17 L.Ed.2d 448 (1966), that “the right to remove depends upon the case disclosed by the pleadings when the petition for removal is filed and that the subsequent addition of new parties is not to be considered on a motion to remand.” See 587 F.2d at 646. In Jett v. Zink, supra, the Fifth Circuit stated that the law was settled in diversity cases that an indispensable party must be joined even if such a joinder would destroy diversity jurisdiction. Jett v. Zink, 362 F.2d at 726. See also Baltimore and Ohio Railroad v. City of Parkersburg, 268 U.S. 35, 45 S.Ct. 382, 69 L.Ed. 834 (1925) and Niles-Bement-Pond Co. v. Iron Moulders Union, 254 U.S. 77, 41 S.Ct. 39, 65 L.Ed. 145 (1920). In addition, the question of fraudulent joinder or the joinder of improper parties to defeat federal jurisdiction has been addressed by the courts. See, e.g., Jett v. Zink, supra, Covington v. Indemnity Ins. Co. of N.A., 251 F.2d 930 (5th Cir.1958), cert. denied 357 U.S. 921, 78 S.Ct. 1362, 2 L.Ed.2d 1365 (1958) and Chevron U.S.A., Inc. v. Aguillard, 496 F.Supp. 1038 (M.D.La.1980). Federal jurisdiction may not be defeated by a fraudulent joinder of a party. See, Covington v. Indemnity Ins. Co. of N.A. and Chevron U.S.A., Inc. v. Aguillard, supra. The test for determining whether there has been a fraudulent joinder is set forth in Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 177 (5th Cir.1968). The Court must determine “whether there is arguably a reasonable basis for predicting that state law might impose liability on the facts involved.” 391 F.2d at 177.

When considering plaintiffs motion to remand in this case, the Court must also consider the motion of the defendant, Renie T. Lee, to dismiss the complaint for failure to state a claim upon which relief can be granted. In the alternative, Lee has filed a motion to have the Court review its decision which allowed the plaintiff to amend her complaint to add Lee as a defendant. Lee’s motion was filed on December 17, 1984, and was properly noticed for hearing on January 4, 1985. Under the Local General Rules for the Middle District of Louisiana, specifically rule 5(B)(3), each party opposing a motion shall deliver a copy of his opposition to the Court no later than noon on the Monday preceding the day of the hearing. The plaintiff has filed no opposition to the motion of Lee to dismiss for failure to state a claim against him for which relief could be granted. The absence of any opposition is sufficient grounds for the Court to grant the motion by default under Local Rule 5(B)(3). Thus, the Court must and does presume that the plaintiff has no opposition to Lee’s motion to dismiss. Therefore, the Court will grant the motion of Lee to dismiss.

Since the Court has dismissed the complaint against Lee, who was the only non-diverse defendant, the Court must deny the plaintiff’s motion to remand which was based upon the premise that the addition of Lee as a defendant destroyed diversity. The record is now clear that there is complete diversity between the parties.

Therefore:

IT IS ORDERED that the motion of the defendant, Renie T. Lee, to dismiss the complaint for failure to state a claim upon which relief could be granted be, and it is hereby GRANTED.

IT IS FURTHER ORDERED that the motion of the plaintiff, Melissa Linder, to remand this action to the Twenty First Judicial District Court, in and for the Parish of Livingston, State of Louisiana, be, and it is hereby DENIED.


author: ARONOVITZ, District Judge.

text:
    Peter R. FITZPATRICK, Petitioner, v. Louie L. WAINWRIGHT, Jim Smith, Respondent.
    No. 84-8204-Civ.
    United States District Court, S.D. Florida.
    Feb. 7, 1985.
    Margaret Good, Esq. and Lorrie Robinson, Asst. Public Defenders, West Palm Beach, Fla., for petitioner.
    James P. McLane, Asst. Atty. Gen., West Palm Beach, Fla., for respondent.
   ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

ARONOVITZ, District Judge.

Petitioner Peter R. Fitzpatrick, here represented by the Public Defender, Fifteenth Judicial Circuit of Florida, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254. He attacks his convictions on four counts involving the sale of unregistered securities, four counts of fraud, and four counts of grand theft entered on September 29,1982 after jury trial in the Circuit Court for the Fifteenth Judicial Circuit of Florida, Palm Beach County.

Petitioner has raised two issues as follows:

1. (a) Whether he was deprived of his Sixth and Fourteenth Amendment right to counsel by being tried without counsel in the absence of a knowing and intelligent waiver of counsel; and,
(b) By being compelled to proceed without counsel in the absence of a determination that he could afford to retain counsel.
2. Whether he was deprived of his Sixth and Fourteenth Amendment right to counsel by being sentenced without counsel without inquiry by the Court as to his ability to retain counsel.

These issues were raised on direct appeal, and the conviction was affirmed, per curiam, without opinion, Fitzpatrick v. State, 447 So.2d 1367 (Fla. 4 Dist. 1984). The Petitioner has therefore exhausted available state remedies.

Petitioner contends that during the eighteen-month period from the filing of the Information until appointment of counsel for appeal, that the trial court never actually conducted an “indigency” hearing wherein inquiry could and should have been made about his solvency and ability to retain private counsel, or his eligibility for court-appointed counsel. He further contends that the term “indigency” or “indigent” was never explained to him until post-sentencing when thereafter, for purposes of appeal, the trial judge did conduct such an indigency hearing for the first time, found the Petitioner to be indigent, and thereupon appointed the Public Defender to represent Petitioner on appeal. He further urges that there was not a knowing, intelligent, and voluntary waiver of right to counsel, resulting in his enforced pro se representation by the court and the state at trial.

The state responds that the record shows Petitioner’s “affirmative acquiescence” to proceed to trial pro se and without the benefit of such an indigency hearing; that .the record fails to show that his acquiescence was not sufficiently intelligent to amount to an effective waiver of his right to counsel.

The United States Magistrate found and recommended in her Report, Page 23, that:

“The record reveals that this petitioner was highly educated and a sophisticated securities broker who knowingly and voluntarily waived his right to counsel and chose to represent himself, both at trial and at sentencing. When that course failed, he had second thoughts and deeided to accept counsel. A trial judge, however, is not required to do more than explain the right to appointment of counsel, in the absence of any indication by a defendant that he cannot afford a lawyer and wants one appointed. Government of the Canal Zone v. Peach, 602 F.2d 101 (5 Cir.1979), cert. denied, 444 U.S. 952 [100 S.Ct. 426, 62 L.Ed.2d 322] (1979).”

As to those findings not inconsistent with any set forth herein, this Court accepts and adopts the findings of the United States Magistrate as to events which occurred during the eighteen-month period, but specifically rejects the United States Magistrate’s conclusions of law drawn therefrom and sustains the Objections thereto of the Petitioner, for the reasons hereinafter more fully stated.

ADDITIONAL FINDINGS

This Court hereby makes certain additional findings to those set forth in the Magistrate’s Report as hereinafter noted:

On December 16, 1981, in moving to withdraw from representing Petitioner, Mr. Weissman (his retained counsel) informed the Court that he and the prosecutor [Oliver Harris] would like to get Petitioner a Public Defender. Weissman told the Court he didn’t “think [Fitzpatrick] can afford counsel anymore”. (TR-10). An additional hearing not mentioned in the Magistrate’s Report was held on January 6, 1982. Petitioner appeared with an attorney, Leon St. John. (SRII-2-8). Mr. St. John told the Court that he had just read the fourteen count Indictment and spoken with Mr. Harris. St. John had not spoken with Petitioner since St. John had become aware of how “intricate the case is”. (SRII-3). Due to the nature of the charge and Petitioner’s significant defenses, the cost to Petitioner was going to be “significant”. (SRII-2-4). Petitioner did not have liquid assets but hoped to pay St. John within a week. St. John said a continuance to prepare for trial would be necessary in any event and the case was reset.

On April 1, 1982, the state filed a Motion to Compel Defendant to Retain Counsel or to Proceed Pro Se. (TR-775-778). The grounds for this motion were that Petitioner was deliberately refusing to retain counsel in order to delay trial proceedings. This Motion was filed by a new Assistant State Attorney who had not been present at any of the previous status check hearings. The Motion made no mention that Petitioner had said on several previous occasions that he was trying to get enough money to pay a lawyer, that Petitioner and St. John had indicated a substantial amount of retainer money was required, that the state had acquiesced in Weissman’s statement on December 16, 1981, of Petitioner’s need to get a Public Defender, and that the state had only recently suggested on February 26, 1983, that a Public Defender was one of the possibilities in this case.

On May 3, 1982, when Petitioner asked about the state’s suggestion that he could have a court-appointed attorney, the Court did not inform Petitioner of his right to counsel if he could not afford counsel, but rather, the Court told Petitioner that he had to be “indigent”. (TR-18-C). The Court made no inquiry into Petitioner’s financial condition nor did the Court tell Petitioner the meaning of the legal term “indigency”. On May 3, 1982, the Court signed an Order compelling Petitioner to retain counsel by May 28,1982, or proceed pro se. (TR-786). Before signing the order, the Court did not make any inquiry required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), advise Petitioner of the dangers of self-representation, nor determine if Petitioner was aware of the complexities of the case. On May 28, 1982, Petitioner appeared without counsel and announced, “I am here to comply with the Order, Your Honor, which says that I don’t have an attorney, I am to proceed pro se”. (TR-39).

On the second day of trial, as the complexities in the case surfaced, Petitioner stated, “I have to get a lawyer”. (TR-434). Petitioner’s lack of understanding of the meaning of self-representation due to the Court’s failure to inquire as required by Faretta v. California before compelling Petitioner to proceed pro se, and Petitioner’s lack of understanding of the meaning of the term “indigency”, is also revealed by the Petitioner’s begging the Court to postpone closing arguments because he was totally confused. This colloquy ensued:

[Ms. Suarez-Murias] Mr. Fitzpatrick has had the opportunity to engage counsel. He has never told this — and I asked him specifically during one of the many hearings: Do you need a Public Defender, are you, you know, are you indigent, and he never made a motion to that effect, Your Honor.
I suggest that he has had the opportunity to hire one of the very many competent attorneys in Palm Beach or anywhere else, Your Honor.
He has chosen that, and I suggest that at this point the chips have to fall where they may.
MR. HARRIS: He made one final comment, Your Honor, he also told the jury he did not need an attorney because the case was not complicated.
THE DEFENDANT: Can I answer?
THE COURT: Yes.
THE DEFENDANT: Your Honor, that doesn’t make any sense, at all. I don’t know anything about the law. So, I thought this case wasn’t complex. I think that’s my answer to that.
Now, as far as Miss Suarez-Murias reading off a whole list of reasons: I had plenty of time, I could have declared myself indigent, I thought upon until last Thursday, Your Honor, that I would have representation. I could not get — I could not make the necessary financial arrangements that would — that would satisfy the attorney involved.—
So, therefore, rather than ask for a lawyer last Friday and get myself in more trouble because you said to me no more continuances, I said, not knowing anything about how complex this was, I asked for, for the case to be tried.
Now, as far as all the notices I assumed that when the time came I would have counsel and they would take care of that.
But, too, as I say, I don’t think that argument holds: I have had plenty of time. If I had been talking to legal — to lawyers and getting ready to go, but I never discussed this with a lawyer, Your Honor, because the funds were always the question.
Now, when you get right down to it, as I say, this is a very — whatever one of a hundred cases for a man who is defending himself in this type of case, I am not asking for anything other than to for a half a day to, I think, compose myself.
I do not have the witnesses. I said I got some problems personally, I have not been able to — this thing here is — I am up to my eyes in a week, and I need to just have this, you know, treat this thing like another case — let me finish, — have the State treat this like another case, I don’t think it’s fair to say I had plenty of time.
I spent my time trying to hire lawyers and seek financial arrangements. I have not discussed this thing.

(TR-580-582).

At the post-trial hearing of October 7, 1982, while informing Petitioner of his right to appointed appellate counsel and a hearing to determine his indigency, the Court for the first time equated the standard of indigency with an ability to afford counsel. The Court said:

[The Court] ... if you are unable to make some arrangements with Mr. Hackney, I will hear you again on that, on the question of whether or not you are indigent at that point where you cannot afford to hire a lawyer. I will hear you again on the appeal side of it.
To which Petitioner responded:
I understand that, Your Honor. I wish you would have done that before.

(TR-746).

The trial court never made a factual finding that the Petitioner was financially able to retain counsel until post-sentencing and for appellate counsel purposes, when the finding was to the effect that he was indigent and unable to retain private counsel.

Fitzpatrick was repeatedly told he had to be “indigent” to be entitled to court-appointed counsel. The meaning of the legal term “indigency” was never explained to Petitioner. Fitzpatrick’s statements at sentencing show that he did not understand the legal meaning of the term “indigency”. Before sentencing, Fitzpatrick said he could not properly claim to be “indigent”, that he had been unable to secure private counsel because of a liquidity problem and that if liquidity was a ground, he would like an attorney. (TR-711). He was not afforded an attorney at sentencing, nor an indigency hearing to determine whether he qualified for appointed counsel, at sentencing.

This Court further finds, contrary to the United States Magistrate, that throughout the proceedings, Fitzpatrick indicated a desire for counsel and that he was trying to make arrangements to employ counsel. The record shows that Fitzpatrick was making repeated efforts to secure private counsel, encountered financial difficulties meeting the substantial fees required, could not make enough money or free up family money to pay for an attorney. The record shows more than an indication that Fitzpatrick wanted counsel; it demonstrates his attempts to secure counsel and his request about a court-appointed attorney on May 3, 1982.

CONCLUSIONS OF LAW

The seminal case of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) established the right of an indigent defendant in a criminal prosecution in state court to have counsel appointed for him by reason of Sixth and Fourteenth Amendment rights. The right to be furnished counsel does not depend on a request. Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971); Carnley v. Cochran, 369 U.S. 507, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). This right to counsel may be waived, but such a waiver is not valid unless the defendant has been informed of his right to appointed counsel and then intelligently and understanding^ rejects the offer in clear and unmistakable language. United States v. Cohen, 419 F.2d 1124 (8th Cir.1969). In that case the Eighth Circuit pointed out that:

“... The court did not inquire of appel- ■ lant at this proceeding whether he was able to retain counsel, apparently standing upon its earlier assumption that appellant was not in fact an indigent.”

Id. at 1126.

“As we have shown, the appellant clearly indicated at arraignment that he was unable to employ private counsel because his existing assets were then ‘committed’. At that juncture, the district court was under a duty to make further inquiry, by whatever means appropriate, into appellant’s financial condition in order to satisfactorily determine whether his apparent assets in the form of an unspecified interest in real estate so exceeded his outstanding liabilities that could in fact afford to employ an attorney____ [Emphasis supplied].
... The assumption of adequate liquidity from appellant’s bald statement of T am buying some land’, coupled with the court’s personal knowledge of land values in the area of appellant’s acreage, is not sufficiently ‘appropriate inquiry’ to ensure the appellant’s Sixth Amendment rights. In light of the uncontroverted showing of appellant’s indigency in this court, ‘the record does not convincingly show that there was adequate inquiry into the question of [appellant’s] financial ability to retain counsel, * * *.’ Wood v. United States, 389 U.S. [20] at 20-21, 88 S.Ct. [3] at 4 [19 L.Ed.2d 20 (1967)].”

Id. at 1127.

The Fifth Circuit has recognized that a defendant’s Sixth Amendment rights may not be used by a defendant in order to delay or postpone trial. United States v. Fowler, 605 F.2d 181 (5th Cir.1980), and United States v. Silva, 611 F.2d 78 (5th Cir.1980). However, in Fowler, the District Judge had carefully advised the defendant of his right to counsel, had elicited considerable testimony from him about his financial condition, and had made a factual finding that the defendant was financially able to retain counsel. Id. at 183. No such inquiry was made of Petitioner by the trial judge in the instant case and no such inquiry appears in the record prior to appointment of appellate counsel. Silva, supra, involved the denial of the last minute request for a continuance to retain counsel in lieu of already appointed Public Defender, and the issue there was the right of choice of counsel. There is no such issue here involved. Government of the Canal Zone v. Peach, 602 F.2d 101 (5th Cir.1979), cited in the Magistrate’s Report, involved a confession suppression issue under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and the Court there observed: “This is not a case where a defendant was required to plead or go to trial without the assistance of counsel”. Id. at 105. Also, the Magistrate in that case made inquiry into Peach’s financial ability to employ an attorney and at no time did Peach require or indicate to the Magistrate that he wanted an attorney appointed, nor did he make any effort to call any private attorneys while in custody although given an opportunity to do so. See also, Anaya v. Baker, 427 F.2d 73 (10th Cir.1970).

This is not a case in which the Defendant made a knowing, intelligent and voluntary waiver of his right to court-appointed counsel. He was never afforded the hearing necessary to determine such right to court-appointed counsel. In effect, the order of the trial court directed him to retain counsel or to proceed pro se to trial. There is not a sufficient factual basis in this record to conclude that this Defendant knowingly, intelligently and voluntarily chose to represent himself {pro se) after an appropriate explanation of the dangers of self-representation. This case simply does not fall into that category of circumstances. Similarly, it can be said and this Court finds that there was not a knowing, intelligent and voluntary waiver of counsel and a knowing and intelligent determination by the Defendant to proceed by self-representation at trial or at sentencing without counsel.

Florida Rules of Criminal Procedure 3.111(d) provides, in part:

(1) The failure of a defendant to request appointment of counsel or his announced intention to plead guilty shall not, in itself, constitute a waiver of counsel at any state of the proceedings.
(2) A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into accused comprehension of that offer and his capacity to make that' choice intelligently and understanding^ has been made.
(3) No waiver shall be accepted where it appears that the defendant is unable to make an intelligent and understanding choice because of his mental condition, age, education, experience, the nature or complexity of the case, or other factors.

See also, Florida Statutes Sections 27.51 and 27.52 (1983) setting forth the duties of a Public Defender to represent indigent or insolvent defendants and the method of determination of indigency. The Florida Court failed to follow its own rules and statutes here. Standing alone, and in and of itself, this would not necessarily constitute a basis for Federal Habeas Corpus relief. However, here the failure to observe state procedures grounded on Sixth and Fourteenth Amendment rights was so gross and obvious as to rise to the level of a denial of a fundamental right to representation of counsel under the Sixth and Fourteenth Amendments. This conclusion is separate and independent of the conclusions otherwise reached in this ruling by this Court that, separate and apart from failure to conform to state law, the fundamental Sixth and Fourteenth Amendment rights of this Petitioner were violated and rose to the extent as to deny him a fair trial. The Petitioner is therefore in custody in violation of the Constitution and laws of the United States.

This Court has carefully reviewed the entire court record of proceedings in state courts and in this federal court proceeding, and has likewise heard oral argument by respective counsel upon the Petitioner’s Objections to the Report of the United States Magistrate. Accordingly, it is

ORDERED and ADJUDGED that Peter R. Fitzpatrick’s Petition for Writ of Habeas Corpus be, and the same is hereby GRANTED, provided, however, that if the State of Florida grants the Petitioner a new trial to commence WITHIN ONE HUNDRED TWENTY (120) DAYS HERE-FROM, then this ruling shall be for naught. During the interim, the state and/or trial court may consider the advisability of a proceeding initiated at Petitioner’s request, to allow him liberty on bond pending retrial.

      . A fourteen count Information herein was filed on June 19, 1981; Defendant/Petitioner surrendered December 3, 1981 with private counsel who later withdrew; trial commenced June 1, 1982; sentencing hearing was held September 29, 1982; and a hearing was held October 7, 1982 wherein Defendant/Petitioner was informed of his right to appointed appellate counsel, and a hearing held to determine his indigency, resulting in appointment of appellate counsel.

      . Supplemental Record on Appeal, Volume II, pages 2 through 8.

      . And separately and apart therefrom, as previously noted, the Court did not hold an “indigency” hearing.


author: ZIEGLER, District Judge.

text:
    David A. NOBERS, Robert R. Campbell, Jr., Gasper P. Porto, and Gary T. Weekly, individually and on behalf of themselves and all others similarly situated, Plaintiffs, v. CRUCIBLE, INC., a corporation and Colt Industries, Inc., a corporation, Defendants.
    Civ. A. 84-1822.
    United States District Court, W.D. Pennsylvania.
    Feb. 8, 1985.

      Thomas H.M. Hough, Pittsburgh, Pa., for plaintiffs.
    William H. Powderly, III, Pittsburgh, Pa., for defendants.
   MEMORANDUM OPINION

ZIEGLER, District Judge.

(1) Plaintiffs, former supervisors and managers at the Midland, Pennsylvania steel mill of defendant, Crucible, Inc., now known as Colt Industries Operating Corporation (CIOC), seek damages for alleged breach of express and implied contracts. Defendants are CIOC, a Delaware corporation with its principal place of business in New York, and Colt Industries, Inc. (Colt), a Pennsylvania corporation also headquartered in New York. CIOC is a wholly owned subsidiary of Colt. Named plaintiffs, two Pennsylvania citizens and two citizens of Ohio, brought this action individually and as class representatives of similarly situated former supervisors and managers at the Midland plant. According to the complaint, when plaintiffs left their bargaining unit in order to accept promotions as supervisors, they were promised permission to return to the union if they were laid off. However, when layoffs actually took place, defendants refused to allow their return to the bargaining unit.

(2) The instant civil action is related to previous litigation in this court in which plaintiffs filed suit against defendants, and others, based on Section 301 of The Labor Management Relations Act. Nobers, et al. v. Crucible, Inc., et al., No. 82-1846 (W.D.Pa.1982), aff'd mem. 722 F.2d 733 (3d Cir.1983). The operative events are identical but the claims in the earlier suit arose under the collective bargaining agreement and certain federal statutes. We granted defendants’ motion for summary judgment and the Court of Appeals affirmed by judgment order dated October 13, 1983.

(3) This action was originally filed in the Court of Common Pleas of Beaver County, Pennsylvania, on June 28, 1984. Defendants removed to this court by a petition filed on July 26, 1984. See 28 U.S.C. § 1441. Plaintiffs now move for remand to state court and Colt moves for dismissal for failure to state a claim upon which relief can be granted.

(4) Because the motions for remand and dismissal are interdependent, we will discuss each in concert. Plaintiffs allege lack of subject-matter jurisdiction under 28 U.S.C. § 1332 because Pennsylvania citizens, specifically Nobers, Porto and Colt, are present on both sides of the action. Complete diversity is therefore lacking, according to plaintiffs. Colt counters that it has been fraudulently joined for the purpose of destroying diversity and to maintain the action in state court.

(5) In removal cases, the defendant bears the burden of establishing the existence of federal jurisdiction. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). Where, as here, defendants assert “fraudulent joinder,” they also have the burden of demonstrating the alleged “fraud.” Id. Fraudulent joinder must be established by clear and convincing evidence. Parks v. New York Times, Co., 308 F.2d 474, 478 (5th Cir.1962), cert. denied, 376 U.S. 949, 84 S.Ct. 964, 11 L.Ed.2d 969 (1964). See also Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921). Thus, defendants’ burden to preserve removal is a heavy one. Miller v. Firestone Tire & Rubber Co., 581 F.Supp. 36 (W.D.Pa.1984).

(6) The “fraudulent joinder” of a non-diverse defendant cannot defeat the right of removal. Wilson, supra, 257 U.S. at 97, 42 S.Ct. at 37. “Fraudulent joinder” is established when the claim alleged against the non-diverse defendant could not possibly impose liability under the applicable state law and the facts alleged. B., Inc., supra, 663 F.2d at 550; Miller, supra, 581 F.Supp. at 37; Buchanan v. Delaware Valley News, 571 F.Supp. 868, 870 (E.D.Pa.1983); Newman v. Forward Lands, Inc., 418 F.Supp. 134, 136 (E.D.Pa.1976). Stated differently, the cause of action cannot be “colorable,” 14 Wright & Miller § 3723; assert an “arguably reasonable basis” for imposing liability, Tedder v. F.M.C. Corp., 590 F.2d 115, 117 (5th Cir.1979); or “conceivably” allow recovery, Dailey v. Elicker, 447 F.Supp. 436, 438 (D.Colo.1978). In this context, “fraudulent” is a term of art and not intended to impugn the integrity of a plaintiff or counsel. Newman, supra, 418 F.Supp. at 136; 14 Wright & Miller § 3723. Therefore the intent or motive of a plaintiff in joining a non-diverse defendant is immaterial. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 189, 52 S.Ct. 84, 87, 76 L.Ed. 233 (1931). Our determination of whether Colt has been fraudulently joined must be made on the basis of the record at the time the petition for removal was presented. Westmoreland Hospital Association v. Blue Cross of Western Pennsylvania, 605 F.2d 119, 124 (3d Cir.1979), cert. denied, 444 U.S. 1077, 100 S.Ct. 1025, 62 L.Ed. 759 (1980).

(7) At the outset we are confronted with the question whether Colt is possibly liable on the claims for breach of express and implied employment contracts. We find that the claims are not colorable. Plaintiffs have failed to allege that they were ever employed by Colt. Paragraph 55 of the complaint pleads, rather, that Crucible, Inc., now represented by its successor in interest, CIOC, was plaintiffs’ sole employer:

The named Plaintiffs and all other members of the class similarly situated are former supervisors and managerial employees of Defendant, Crucible, Inc., who prior to promotion to a supervisory or managerial position had been employed in classifications included in a collective bargaining unit with Defendant, Crucible, Inc., and who have been continuously employed by Defendant, Crucible, Inc., for a minimum of twenty years.

Therefore, since Colt never employed plaintiffs it is clear that no contract of employment existed between them. Plaintiffs’ assertion that Crucible acted “in concert” with and “at the direction of” Colt is insufficient to support contractual liability against Colt. See paragraphs 34 and 39 of complaint.

(8) Colt could possibly incur liability on the alleged employment contracts if the corporate separateness was disregarded. A parent company, like any stockholder, is not normally liable for contractual obligations of a subsidiary, even if that corporation is its wholly-owned subsidiary. George A. Davis, Inc. v. Camp Trails Co., 447 F.Supp. 1304, 1307 (E.D.Pa.1978). Such liability occurs only by application of the “alter ego” theory to pierce the corporate veil. Publicker Industries, Inc. v. Roman Ceramics Corp., 603 F.2d 1065, 1069 (3d Cir.1979). The veil should be pierced “when the court must prevent fraud, illegality, or injustice, or when recognition of the corporate entity would defeat public policy or shield someone from liability for a crime.” Zubik v. Zubik, 384 F.2d 267, 272 (3d Cir.1967), cert. denied, 390 U.S. 988, 88 S.Ct. 1183, 19 L.Ed.2d 1291 (1968). The Court of Appeals has enunciated relevant factors to consider in applying this test:

[FJailure to observe corporate formalities, non-payment of dividends, the insolvency of the debtor corporation at the time, siphoning of funds of the corporation by the dominant stockholder, non-functioning of other officers or directors, absence of corporate records, and the fact that the corporation is merely a facade for the operations of the dominant stockholder or stockholders.

United States v. Pisani, 646 F.2d 83, 88 (3d Cir.1981). Gross undercapitalization is also a factor. Id. These requirements are “demanding” and require “specific, unusual circumstances.” American Bell, Inc. v. Federation of Telephone Workers of Pennsylvania, 736 F.2d 879, 886 (3d Cir.1984).

(9) Plaintiffs have failed to allege any of the factors, which might support the treatment of Colt and CIOC as alter egos. This is not surprising because Crucible, Inc. was an independent, fully-functioning corporation before being acquired by Colt. Furthermore, the allegations of joint action are not sufficient to justify piercing the corporate veil. Consequently, Colt and CIOC must be regarded as separate and independent corporations as a matter of law.

(10) Case law is in accord. In DuSesoi v. United Refining Co., 540 F.Supp. 1260 (W.D.Pa.1982), the parent company approached the plaintiff and conducted discussions leading to an offer of employment. Since the agreed salary went beyond the pay scale of the parent company, an employment contract was signed between the plaintiff and the wholly-owned subsidiary. The plaintiff thus became an employee of the subsidiary. Id. at 1264. The district court dismissed the breach of employment contract claims against the parent, refusing to pierce the corporate veil or find the parent company liable for the contractual obligations of its subsidiary. Id. at 1266. See also George A. Davis, Inc., supra (parent company not liable for contractual obligations of wholly-owned subsidiary). Given the lack of allegations to support piercing the corporate veil, and the precept that a parent corporation is not liable for the contracts of a subsidiary, we hold that plaintiffs have no colorable claim against Colt for breach of the alleged employment contacts. We turn now to the question whether plaintiffs have stated a colorable claim sounding in tort.

(11) As noted earlier, plaintiffs allege that Crucible acted “in concert” with and “at the direction of” Colt. See complaint at paragraphs 34, 39 and 48. Although the claims are labeled “Assumpsit — express contract” and “Assumpsit — implied contract,” a generous reading of the complaint arguably suggests a tort action against Colt, possibly for inducing breach of contract or interference with contractual relations. Moreover, the parties have addressed the removability of a tort action in their briefs.

(12) Absent certain limited exceptions, which we will discuss, the assertion of a tort claim against Colt destroys complete diversity, and requires remand under 28 U.S.C. § 1447(c). Congress has provided that an action is removable “only if none of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought.” 28 U.S.C. § 1441(b). Thus, the doctrine of “fraudulent joinder” would not be available. Defendants rejoin, however, that the case might properly be heard in federal court through the doctrine of ancillary jurisdiction, or because the tort claim is a separate and independent cause of action pursuant to 28 U.S.C. § 1441(c). Plaintiffs counter that the lack of complete diversity requires remand to state court.

(13) The Supreme Court addressed 28 U.S.C. § 1441(c) in American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). The Court noted that § 1441(c) was intended to abridge the right of removal under previous statutes, and articulated the following test:

[WJhere there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c).

Id. 341 U.S. at 10, 14, 71 S.Ct. at 538, 540. The Court concluded that the plaintiff had failed to meet the test; the district court was without original jurisdiction due to want of diversity; and remand was required.

(14) In Mayflower Industries v. Thor Corp., 184 F.2d 537 (3d Cir.1950), cert. denied 341 U.S. 903, 71 S.Ct. 610, 95 L.Ed. 1342 (1951), the Thor corporation terminated its relationship with the plaintiff, its exclusive New Jersey distributor, and simultaneously entered into a distributorship agreement with Teldisco. The plaintiff, a New Jersey corporation, brought an action for breach of contract against Thor, an Illinois corporation, and asserted a tort claim against Teldisco, a New Jersey corporation. The Court of Appeals held that both claims arose from a “single economic injury” and did not constitute separate and independent causes of action under § 1441(c). Id. at 539. The court ordered remand to state court. Although defendants contend that Mayflower is not controlling because it predates Finn, we find that the holding is harmonious with the “single wrong” test of Finn. Mayflower commands that we find no separate and independent claims or causes of action. The “single wrong” alleged by plaintiffs is the refusal to return them to their former bargaining units at the time they were placed on layoff status, and defendants’ reliance on 28 U.S.C. § 1441(c) is misplaced.

(15) Colt further contends that we have ancillary jurisdiction over the entire case in order to preserve our judgment in the Nobers litigation at No. 82-1846 (W.D.Pa.1982). No authority is cited by defendant, and our research has failed to uncover any case in which removal was permitted on the basis of ancillary jurisdiction. The reason is clear; the removal procedure set forth at 28 U.S.C. § 1446(b) requires that the initial pleading in the state court set forth the basis for removal. See La Chemise LaCoste v. Alligator Co., 506 F.2d 339, 344 (3d Cir.1974) cert. denied 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94 (1975). The instant complaint alleges only state law claims in contract and tort. No basis for removal can be ascertained from the face of the complaint. As the Supreme Court declared in Gully v. First National Bank, 299 U.S. 109, 113, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936), the federal question must be disclosed upon the face of the complaint, unaided by the answer or the petition for removal. Although ancillary jurisdiction differs from federal question jurisdiction, we believe that Gully applies here as well.

(16) Indeed, the proper method for protecting a federal judgment jeopardized by a state court action is well-established. A defendant should plead res judicata as an affirmative defense to the state court action. In extraordinary circumstances, the defendant may bring a separate federal action to enjoin the state court proceeding pursuant to the Anti-Injunction Act, 28 U.S.C. § 2283. The Act specifically authorizes injunctions to stay state court proceedings in order to protect or effectuate the judgments of a federal court. Only at this point does ancillary jurisdiction come into play in order to provide a basis for hearing the injunction action. Southwest Airlines Co. v. Texas International Airlines, Inc., 546 F.2d 84, 90 (5th Cir.1977), cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed. 93 (1977). However, given concerns of comity, federalism, and a proper reluctance to interfere in the business of a coexisting judicial system, the grant of an injunction is the exception rather than the rule. Delta Air Lines, Inc. v. McCoy Restaurants, Inc., 708 F.2d 582, 585 (11th Cir.1983). Doubts should be resolved in favor of the state court litigation. Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 297, 90 S.Ct. 1739, 1748, 26 L.Ed.2d 234 (1970).

(17) Plaintiffs have alleged claims for breach of contract and tort as new bases for redressing what appears to be the same grievance asserted in the previous action, namely, the refusal to return them to their bargaining unit at the time of layoff. Res judicata or claim preclusion bars relitigation of not only those issues actually decided, but also litigation of new grounds for recovery which could have been asserted in the initial action. 18 Wright & Miller § 4407; see Delta Air Lines, supra, at 586. In order to aid efficient disposition of this issue on remand, a transcript of our findings and order in the first Nobers litigation is attached. We add in conclusion that we are at a loss to explain the failure of plaintiffs to include the instant claims as pendent claims in the original action in this court.

(18) Other case authority indicates that the use of ancillary jurisdiction is improper. Ancillary jurisdiction does not extend beyond the claims asserted in one action. Redding Ford v. California State Board of Equalization, 722 F.2d 496, 498 (9th Cir.1983), cert. denied, _ U.S. _, 105 S.Ct. 84, 83 L.Ed.2d 31 (1984); see Ambromovage v. United Mine Workers of America, 726 F.2d 972, 989 n. 48 (3d Cir.1984) (“[Ajncillary jurisdiction” traditionally refers to federal jurisdiction over claims other than those of plaintiff). Employing ancillary jurisdiction, as urged by defendant, would also offend the Supreme Court’s ruling in Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). The Court disavowed ancillary jurisdiction where the plaintiff’s nonfederal claim against the third party defendant destroyed complete diversity. Id., 437 U.S. at 376-77, 98 S.Ct. at 2403-05. The Court emphasized that neither the convenience of litigants nor considerations of judicial economy could justify ancillary jurisdiction over the plaintiff’s cause of action against a nondiverse party. Id. at 377, 98 S.Ct. at 2404. Given the foregoing, it is clear that ancillary jurisdiction is not available here.

(19) Since neither § 1441(c) nor the doctrine of ancillary jurisdiction authorize federal jurisdiction over a tort claim against Colt, the presence of Colt destroys complete diversity, and the right of removal under 28 U.S.C. § 1441(b). Field v. Volkswagenwerk AG, 626 F.2d 293 (3d Cir.1980) and Publicker Industries, Inc. v. Roman Ceramics Corp., 603 F.2d 1065 (3d Cir.1979) are not to the contrary. There the district court had original jurisdiction. Here we have none. In sum, since we are without original jurisdiction, the action must be remanded to state court pursuant to 28 U.S.C. § 1447(c).

A written order will follow granting the motion of plaintiffs to remand.