author: OBERDORFER, District Judge.

text:
    J.A. WEINBERG, Jr., et al., Plaintiffs, v. Marion S. BARRY, et al., Defendants.
    Civ. A. No. 83-2701.
    United States District Court, District of Columbia.
    Jan. 30, 1985.
    Final Order and Judgment March 7, 1985.

      William W. Taylor, III, Douglas C. Herbert, Zuckerman, Spaeder, Moore, Taylor & Kolker, Washington, D.C., for plaintiffs.
    Robert J. Harlan, Jr., Asst. Corp. Counsel, Acting Chief, Litigation Section, Community Development Div., Jonathan L. Farmer, Asst. Corp. Counsel, Washington, D.C., for defendants.
   MEMORANDUM

OBERDORFER, District Judge.

Plaintiffs are trustees for the beneficial owners of a property in downtown Washington that was improved in 1922 by the erection of a combination theater and office building known as the Warner Building. Defendants are, in addition to the Mayor of the District of Columbia, the Joint Committee on Landmarks of the National Capital (“Joint Committee”), and the District of Columbia Historic Preservation Review Board (“Review Board” or “Board”). In recent years these agencies have, seriatim, been responsible for the designation of properties as historic landmarks within the District of Columbia. See infra at 2-4. Intervenor is Don’t Tear It Down, Inc. (“DTID”), a non-profit corporation interested in the preservation of District of Columbia landmarks.

The successive tenures of the Joint Committee and the Review Board in dealing with historic landmark preservation in the District of Columbia started with the Joint Committee — an inter-governmental agency under the sponsorship of the Mayor of the District of Columbia and two federal agencies, the National Capital Planning Commission, see 40 U.S.C. § 71a, and the Commission on Fine Arts, see 40 U.S.C. § 104. See A & G Limited Partnership v. Joint Committee on Landmarks, 449 A.2d 291, 292 (D.C.1982). In 1968, the Commissioner of the District of Columbia, the National Capital Planning Commission, and the Commission on Fine Arts entered into “an executive agreement authorizing the Joint Committee to act as the State Review Board of the District of Columbia in order for the District to ‘qualify for participation in the federal historic preservation program instituted under the National Historic Preservation Act of 1966 [6 U.S.C. §§ 470 et seq. (1982) (“federal act”) ].’ ” Id. (quoting La-timer v. Joint Committee on Landmarks, 345 A.2d 484, 485 (D.C.1975) (footnote omitted)). This arrangement was renewed in 1972, 1974, 1978, and 1980. See id.; see also Complaint U II14-20; Answer 11 9.

.On December 27, 1978, the District of Columbia enacted the District of Columbia Historic Landmark and Historic District Preservation Act, D.C.Code 1981, §§ 5-1001 et seq. (“D.C. act”) (1981 & 1984 Cum. Supp.), which came into effect shortly thereafter, see id. §§ l-233(c)(l); 5-1015. The D.C. act provided that

“Any body which functions as the District of Columbia State Review Board pursuant to the Act of October 15, 1966 (16 U.S.C. § 470 et seq.) as of the effective date of this chapter, shall function as the Review Board pursuant to this section until a Review Board is established and its members nominated by the Mayor and confirmed by the Council of the District of Columbia pursuant to this section.”

Id. § 5-1003(a). Beginning in early 1979, thus, the Joint Committee served as professional review board not only for the purposes of the federal act, but for the implementation of the D.C. act as well. See A & G Limited Partnership v. Joint Committee on National Landmarks, supra.

Subsequently, on May 6, 1983, the District of Columbia finally established the District of Columbia Historic Preservation Review Board (“Review Board”) pursuant to D.C.Code § 5-1003(a). Complaint ¶ 34; Answer 1115. On May 9, 1983, the Mayor submitted nominations for membership on the Review Board to the District of Columbia City Council, and on July 21, 1983, the City Council confirmed the Mayor's nominees. Complaint 11 34; Answer It 15. On July 21, 1983, accordingly, landmark designation authority under the federal act and D.C. act passed to the Review Board as the successor agency to the Joint Committee, see D.C.Code § 5-1003(a), and thus it is the Review Board that has implemented the statutes within the District of Columbia since that time.

As in many jurisdictions, buildings within the District of Columbia may generally be altered or demolished only upon application by an owner for a permit (“permit application”) and approval of the permit by the appropriate D.C. agency (i.e., the District of Columbia Department of Licenses, Investigations, and Inspections, see Mayor’s Order No. 78-42 (February 17, 1978) [“Department of Licenses”]). See D.C.Code § 5-426. In the absence of historic landmark designation, permits may be issued without requiring the permit applicant to make any special showing generated by history-related concerns. Landmark designation under the D.C. act, however, has the effect of requiring the owner of a designated property to persuade the Mayor of the District of Columbia — as a prerequisite to issuance of a permit — that alteration or demolition of the property is “necessary in the public interest” or that failure to effect the alteration or demolition would result in “unreasonable economic hardship” to the owner. D.C.Code §§ 5-1004(e), 5 — 1005(f).

In addition, there are three procedural aspects of the D.C. act that are of particular relevance to this action. First, although landmark applications may be filed, under applicable regulations, only by certain specific classes of parties, those classes include any third-party organizations, such as intervenor, “which include[ ] among [their] purposes the promotion of historic preservation in the District of Columbia.” Procedures for the Designation of Historic Landmarks and Historic Districts § 310.30, reprinted in Plaintiff’s Motion for Summary Judgment, Appendix G. Second, the D.C. act provides that the mere filing of an application for landmark designation of a property (“landmark application”) automatically requires that the property be treated as a landmark pending the resolution of the application. Id. § 5-1002(6)(B). Such an application, thus, automatically requires the owner of the property to make the special showing of public interest or economic hardship required by the D.C. act in order to obtain a permit for alteration or demolition of the building. Finally, the filing of a permit application for alteration or demolition of the property also allows an owner of property for which a landmark application has been filed to protect himself from protracted uncertainty as to the status of his property. Specifically, the statute provides that where a landmark-application with respect to any property has been filed and is pending, and a permit application is also filed, the agency implementing the D.C. act

will determine within 90 days of receipt of [the permit] application ... whether to list such property [as a historic landmark], and any property not so listed will not be considered a historic landmark

D.C.Code § 5-1002(6)(B).

In this statutory context, intervenor DTID, on April 6, 1981, filed an application with the Joint Committee for the designation of the exterior of the Warner Theatre as an historic landmark. On November 24, 1982, intervenor filed a second application seeking to designate as a landmark the interior portion of the building as well.

Whfle the landmark application with respect to the exterior of the building was still pending, plaintiffs, on November 26, 1982, filed with the Department of Licenses an application for a permit to alter a portion of the exterior — namely, the doorway. At almost the same time, on November 30, 1982, the Joint Committee held a hearing on the exterior landmark application filed by DTID. Subsequently, on December 30, 1982, the Department of Licenses approved the November 26, 1982 permit application and granted the permit to alter the doorway but it did so, contrary to the requirements of D.C.Code § 5-1004, without the permit application having been reviewed by the Joint Committee or the Mayor.' The Joint Committee reached a final decision as to the landmark application only on May 18, 1983, when it issued an opinion that the Warner Theatre exterior facade was a landmark.

As to DTID’s November 24, 1982 application to designate the interior of the Warner Building as a landmark, no action has ever been taken either by the Joint Committee or by its successor, the Review Board. The landmark application remains pending. No permit applications have in the interim been filed to alter or demolish the interior of the building.

Plaintiffs commenced this action with a fourteen count, thirty-seven page complaint asserting that defendants have acted unlawfully and unconstitutionally to cause, and to threaten to cause, irreparable injury to plaintiffs. The complaint alleges that tile 1981 landmark application with respect to the exterior of the building and the 1983 Joint Committee opinion designating the exterior of the building as a landmark immediately and irreparably damaged plaintiffs by depriving them of the use and enjoyment of their property, and diminishing its value. The injury is allegedly effected or threatened by the D.C. statute as applied because it subjects alterations or modification of the building to the aesthetic judgment of the Joint Committee and/or the Review Board, with relief available only if, in the judgment of the Mayor, modification or alteration is “necessary in the public interest” or preclusion of such modification or alteration would result in the imposition of “undue economic hardship” on the owner.

Plaintiffs also allege that the pending 1982 landmark application with respect to the interior of the building burdens plaintiffs’ use of the building’s interior (by making modification of it subject to special, onerous review procedures), diminishes the building’s commercial value, and “forces plaintiffs to maintain at their own expense a wholly private portion of the building, its interior, as a public landmark.” Complaint at 11.

The plaintiffs challenge the D.C. statute on numerous grounds. They argue, for example, that the D.C. statute is constitutionally invalid because it delegated governmental powers to what plaintiffs contend was a private body (the Joint Committee), and because it allows any property to be temporarily designated as a landmark without any process, merely upon the filing of an application for designation. The complaint further challenges both the final designation of the exterior of the Warner Building and the temporary designation of the building’s theater interior as an unconstitutional taking of plaintiffs’ private property without just compensation.

On a statutory level, plaintiffs assert several pendent claims under District of Columbia law. The complaint challenges the continuing validity of the exterior designation because the Joint Committee failed to determine within 90 days after receiving a permit application for modification of the exterior whether to designate the exterior as a landmark, as required by D.C.Code § 5-1002(6)(B). In addition, the plaintiffs complain that the Joint Committee was, under the governing statute, improperly constituted. Finally, the complaint alleges that the Joint Committee’s exterior designation decision was not supported by the evidence, and violated the D.C. Administrative Procedures Act.

Plaintiffs have alleged and adequately demonstrated a threat of injury to the value of their property which gives them standing. See Warth v. Seldin, 422 U.S. 490, 499-501, 504, 95 S.Ct. 2197, 2205-2207, 2208, 45 L.Ed.2d 343 (1975). The matter is now before the Court on cross-motions for summary judgment.

I. Exterior of the Warner Building.

With respect to the exterior of the Warner Building, the landmark designation must be set aside on statutory grounds arising from plaintiffs’ pendent claims under District of Columbia law. Section 5-1002(6)(B) specifically provides that when a landmark application as to any property is pending, the entity implementing the D.C. Act “will determine within 90 days of receipt of an application [for a permit to alter or demolish the property] ... whether to list such property, and any property not so listed will not be considered a historic landmark ...” This mechanism for triggering prompt disposition of an application is supported by strong policy considerations. Indeed, if the statute permitted action on landmark applications for which a permit application was also pending to be unreasonably delayed, the statute might well be vulnerable to challenge on well-established constitutional and administrative law grounds. Cf. Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 79-80 (D.C.Cir.1984); Southern National Bank v. Austin, 582 S.W.2d 229, 238-39 (Tex.Civ.App.1979). Indeed, defendants themselves argue that the imposition of landmark status immediately upon the filing of a landmark application “cannot be held unconstitutional” in part because the 90-day decision mechanism “provid[es] building owners with a timely opportunity to contest the designation.” Defendant’s Opposition to Plaintiff’s Motion at 50.

In this case, intervenor filed a landmark application with respect to the Warner Building exterior on April 6, 1981. Plaintiff, in turn, filed- — on November 26, 1982 —a permit application with the D.C. Department of Licenses to modify the Warner Building’s doorway. The Joint Committee’s decision to designate the exterior as a landmark, however, was not promulgated until May 18, 1983 — far more than 90 days after the permit application was filed.

Defendants claim that the 90 day period was never triggered in this case because — through administrative oversight — the permit application filed with the appropriate D.C. licensing agency was allegedly never transmitted to or “received” by the Joint Committee. Id. at 54. Defendants themselves admit, however, that the mechanism by which owners can force a decision on a landmark application within 90 days provides property owners with an important protection, the absence of which could well undermine the constitutional validity of the Act. See id. at 44, 50. Defendants, thus, cannot be heard to argue that this protective feature of the statutory scheme can be eviscerated by agency mismanagement for which defendants are responsible.

Defendants also contend essentially that even if the 90 day period was triggered, it was tolled by the fact that the permit application (which addressed at least part of the exterior, namely, the doorway) was in fact granted — although without review by the Joint Committee or the Mayor as required by the D.C. act — by the Department of Licenses on December 30, 1982. Again, however, defendants cannot be heard to argue that this important statutory device for accelerating landmark decisions can be short-circuited by the defendant’s deliberate or inadvertant departure from the statutory scheme. The fact that the permit was actually granted might moot the case if the only interest at issue were the doorway. But the landmark designation overhangs the entire exterior. The permit process is the only statutory avenue available to an owner within the provisions of the D.C. act to precipitate prompt consideration of a landmark application and review of any decision about it. The failure of the Joint Committee in this case to address the issue within 90 days clears the way for routine processing of future permit applications with respect to the exterior, insofar as they might be affected by the April 6, 1981 landmark application.

Thus, it is apparent that the Joint Committee’s designation of the exterior of the plaintiffs’ property was untimely and unlawful. Unless and until another landmark application with respect to the Warner Building exterior is filed, any future applications for permits to alter or demolish the exterior of the Warner Building may be filed with, considered by, and acted on by the Department of Licenses without any referral to the Review Board or the Office of the Mayor for consideration of the public interest or degree of economic hardship. As suggested, however, this ruling does not preclude further appropriate action by the Review Board pursuant to the D.C. act on any subsequent or renewed landmark application with respect to the exterior of the Warner Building. The parties have not addressed, and therefore this ruling does not determine, the validity of any further landmark application or designation, or its effect upon some future permit application.

In view of this disposition, there is no occasion to address the several other issues raised by plaintiffs with respect to the exterior of the building.

II. Interior of the Warner Building.

Plaintiffs’ challenge to the present effect of the D.C. act on the status of the interior of the building comes before the Court in a different posture, in that plaintiffs have not filed any permit application triggering the statutory 90-day review cycle. Nor has the Review Board or its predecessor issued any decision on intervenor’s pending landmark application with respect to the interi- or. Instead, DTID’s November 24, 1982 application to designate the interior of the Warner Building as a landmark remains simply pending before the Review Board. Plaintiffs complain merely that the pending landmark application has had the effect of subjecting the interior of the Warner Building to the provisions of the D.C. Act pending resolution of the application.

The burden imposed by the temporary designation of the interior of the Warner Building while DTID’s landmark application remains pending is not negligible. Nonetheless, this interim burden does not rise to constitutional proportions, and the process by which it was imposed is similarly free of constitutional defect. First, the automatic imposition of landmark status on the interior of the Warner Theater upon the filing of the November 24, 1982 landmark application by DTID does not constitute an impermissible delegation. A third-party landmark application merely places the property in question on the Review Board’s (or, previously, the Joint Committee’s) docket. The interim designation of the building pending the Review Board’s actual decision on the landmark application is effected on the authority of the Board, albeit at the instance of the landmark applicant. If the Board thereafter fails to act within the requisite 90 days after a permit application is filed, there would be no interference with any destruction or modification pursuant to permit. Thus, although third-parties such as DTID may choose to initiate the process, it is the Review Board that is implementing the D.C. act. As the Supreme Court ruled in New Motor Vehicle Board of California v. Orrin W. Fox Co., 439 U.S. 96, 108-09, 99 S.Ct. 403, 411-12, 58 L.Ed.2d 361 (1978): “an otherwise valid regulation is not rendered invalid simply because those who the regulation is designed to safeguard may elect to forego its protection.” Conversely, filing an application merely invokes the temporary, predecisional protection afforded to a qualified applicant by operation of law. Compare Grendel's Den, Inc. v. Goodwin, 495 F.Supp. 761, 765 & n. 8 (D.Mass.1980) (permanent effect of third-party application invalid), aff'd on rehearing, 662 F.2d 102 (1981) (en banc), aff'd sub nom, Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982).

Second, the imposition of landmark status for the period until the Review Board acts on a pending landmark application (or until 90 days passes without a decision following the filing of a permit. application) does not violate plaintiffs’ due process rights. As described earlier, the 90-day decision mechanism allows plaintiffs themselves to trigger a prompt hearing (pursuant to applicable regulations) and a timely and reviewable final decision on the landmark application. On this record, the economic interests at stake do not outweigh the public purpose of the landmark restrictions during the temporary designation period sufficiently to require a prior hearing. It is well established that even Social Security disability benefits may be cut off before a hearing, without violating due process principles. Mathews v. Eldridge, 424 U.S. 319, 340-50, 96 S.Ct. 893, 905-10, 47 L.Ed.2d 18 (1976). That precedent makes it difficult to accept plaintiffs’ contention that temporary designation pending a hearing and designation decision that is not unreasonably delayed violates constitutional due process principles.

Third, the application of the D.C. act during the period prior to a final designation decision by the Review Board does not constitute an unconstitutional taking any more than would a temporary (not to mention a permanent) zoning change. See Agins v. Tiburon, 447 U.S. 255, 262-63 & n. 9, 100 S.Ct. 2138, 2142-43, & n. 9, 65 L.Ed.2d 106 (1980). The D.C. act itself articulates the strong public interest in historically significant property. At the same time, the burden imposed by the D.C. act during the pendency of a landmark application is susceptible to the owner’s own control, in that its duration can be limited as described above through the filing of a permit application by the owner himself. Plaintiffs themselves, thus, have the power to expedite consideration of the Warner Building interior landmark application, and can in this fashion limit the duration of the burden imposed by the interim landmark designation.

Plaintiffs report, moreover, that the theater interior of the Warner Building is presently being leased out commercially, Plaintiff’s Statement of Material Facts 1196, which indicates that the property during this interim does have some economic use, if possibly not the most lucrative one. See 900 G Street Associates v. Department of Housing and Urban Development, 430 A.2d 1387, 1390-91 (D.C.1981). Having filed no permit application, the owners of the Warner Building cannot plausibly contend that the interim landmark designation of the building’s interior has unconstitutionally deprived them of all viable economic uses of the property during the interim period. See id; Agins v. Tiburon, supra, 447 U.S. at 262-63 & n. 9, 100 S.Ct. at 2142-43 & n. 9. Accordingly, with respect to the interim designation of the Warner Building interior, no unconstitutional taking can be found. See generally id.; Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926).

In reaching this conclusion the Court has not overlooked the possibility that plaintiffs’ purpose is to clear the landmark designation solely to enhance the merchantability of the property, and that they have not filed a permit application because they have no interest in demolishing or remodeling the building on their own account. As noted, the permit process is the only means provided by the D.C. act itself for precipitating the Review Board’s action on a landmark application. But even in the absence of a permit application, the failure by the Joint Committee and the Review Board to reach any determination with respect to the interior landmark application — despite the passage of over two years since November 24, 1982, when the interior landmark application was filed — raises serious questions about the reasonableness of the pace of the designation process. The D.C. Administrative Procedure Act, D.C.Code §§ 1-1501 et seq., which governs actions by District of Columbia agencies, generally parallels the federal Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., and apparently would apply to actions taken by the Review Board, see A & G Limited Partnership v. Joint Committee on Landmarks, supra, 449 A.2d at 293. Our Court of Appeals has recently announced the specific criteria which, under federal law, will govern judicial intervention where an agency has unreasonably delayed a decision to the detriment of person or property. See Telecommunications Research and Action Center v. FCC, supra. Under such standards, plaintiffs here might well be able to obtain an order declaring that the Review Board’s handling of the interior landmark application has been “unreasonably delayed” as a matter of administrative law, compare 5 U.S.C. § 706(1), with D.C.Code § 1-1510(a)(2), and requiring the Review Board to reach a final decision promptly. Cf. Telecommunications Research and Action Center, supra. However, the plaintiffs have conspicuously failed to address these criteria here or ask for judicial relief tailored to the delay. Plaintiffs are therefore not entitled to such relief under this Court’s jurisdiction. Today’s disposition of the matter does not, on the other hand, preclude or prejudice plaintiffs’ access to the courts of the District of Columbia for relief under the D.C. Administrative Procedure Act, applying principles announced in Telecommunications.

Should the plaintiffs file a permit application with respect to the interior, and should the Review Board subsequently grant the pending landmark application with respect to the interior or delay action by more than ninety days, plaintiffs would then be free to seek judicial intervention (as well as review before the Mayor). Until such time as the Review Board has passed on the pending interior landmark application — either at their own initiative or upon the plaintiffs’ filing of a permit application— any further efforts by plaintiffs to challenge the application of the D.C. act to the interior of the Warner Building will be premature.

Meanwhile, as to those aspects of the complaint challenging the pending application to designate the interior of the Warner Theater as an historical landmark, plaintiffs’ Motion for Summary Judgment should be denied and defendants’ Cross-Mo-' tion for Summary Judgment should be granted.

With respect to the entry of a final order on the pending motions, the parties should — on or before February 7,1985 — exchange and then submit for the Court’s consideration proposed orders consistent with the rulings set out in this memorandum. In order to maintain the status quo until defendants and intervenor have an opportunity to determine their future course of action, in light of the public interest in this matter, and after balancing the relative harm to the parties from maintenance of the status quo, each party’s proposed order shall provide for a stay of its effective date for a period during which any of the parties may appeal the Order or take any appropriate administrative action with reference to this matter. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977). Pending filing of the proposed orders and entry of a final Order by the Court, the parties shall maintain the status quo, particularly with respect to any alteration or demolition of the Warner Building.

FINAL ORDER OF JUDGMENT

Pursuant to the Memorandum and Order of January 30, 1985, the parties have submitted proposed orders on their summary judgment motions. In consideration of those proposed orders, the cross-motions for summary judgment, the pleadings, and the entire record herein, and for the reasons set forth in the Memorandum of January 30, 1985, it is this 7th day of March, 1985, hereby

ORDERED, ADJUDGED, and DECREED: that plaintiffs’ motion for summary judgment as to Count VIII ■ of the amended complaint, insofar as it extends to the exterior of the Warner Building, is GRANTED; and it is further

ORDERED, ADJUDGED, and DECLARED: that the May 18, 1983 decision of the Joint Committee on Landmarks of the National Capital (“Joint Committee”) designating the exterior of the Warner ■Building as a “landmark” under the District of Columbia Historic Landmark and Historic District Preservation Act, D.C. Code 1981, §§ 5-1001 et seq. (1981 & 1984 Cum.Supp.) (“D.C. Preservation Act”) was UNTIMELY and UNLAWFUL because the decision was delayed beyond the 90-day period established by D.C.Code 1981, § 5-1002(6)(B). Unless and until another landmark application with respect to the exteri- or of the Warner Building is filed, any future applications for permits to alter or demolish the exterior of the Warner Building shall be filed with, considered by, and acted upon by the District of Columbia Department of Licenses, Investigations, and Inspections (“Department of Licenses”) without any referral to the District of Columbia Historic Preservation Review Board (“Review Board”) or the Office of the Mayor for consideration of the “public interest” or of any “unreasonable économic hardship” pursuant to D.C.Code §§ 5-1004(e) and 5-1005(f). This ruling does not preclude further appropriate action by the Review Board pursuant to the D.C. Preservation Act on any subsequent or renewed landmark application with respect to the exterior of the Warner Building. Nor does this ruling determine the validity or invalidity of any further landmark application or designation, or its effect upon some future permit application, with respect to the exterior of the Warner Building. And it is further

ORDERED, ADJUDGED, and DECREED: that the remainder of plaintiffs’ amended complaint, to the extent that it seeks relief with respect to the exterior of the Warner Building, is dismissed as MOOT; and it is further

ORDERED, ADJUDGED, and DECREED: that plaintiffs' motion for summary judgment as to Count VIII of the amended complaint, insofar as it extends to the interior of the Warner Building, is DENIED; and it is further

ORDERED, ADJUDGED, and. DECREED: that plaintiffs’ motion for summary judgment as to Counts III, IV, and V of the amended complaint, to the extent that they extend to the interim designation of the interior of the Warner Building, is DENIED; and it is further

ORDERED, ADJUDGED, and DECREED: that defendants’ cross-motion for summary judgment as to Counts III, IV, and V of the amended complaint, to the extent that they extend to the interim designation of the interior of the Warner Building, is GRANTED; and it is further

ORDERED, ADJUDGED, and DECLARED: that the grant of summary-judgment in favor of defendants on Counts III, IV, and V is not intended to preclude any remedies that might be available against any action or inaction by the Joint Committee or the Review Board under the D.C. Administrative Procedure Act, D.C. Code §§ 1-1501 et seq., see Memorandum of January 30,1985, at 13 n. 10, 18-19; and it is further

ORDERED, ADJUDGED, and DECREED: that to the extent that the amended complaint seeks a ruling as to any final landmark designation by the Review Board with respect to the interior of the Warner Building, it is hereby DISMISSED as premature; and it is further

ORDERED, ADJUDGED, and DECREED: that, it appearing on the undisputed material facts adduced by the parties that plaintiffs are not entitled to any further relief on the merits as to any remaining aspect of the amended complaint, this action should be, and is hereby, DISMISSED; and it is further

ORDERED: that the effect of this Order is hereby STAYED for a period of 30 days during which any of the parties may appeal this Order or take any appropriate administrative action with reference to this matter; and it is further

ORDERED: that, in light of the public interest and after balancing the relative harm to the parties from the maintenance of the status quo, the plaintiffs shall maintain the status quo with respect to any alteration or demolition of the Warner Building until such time as the stay herein expires or is modified by further order.

ORDER

On March 4, 1985, plaintiffs filed a motion to reconsider and modify the Memorandum of January 30, 1985, on the grounds that, allegedly, plaintiffs recently learned that an application for a permit to install a fire alarm system in the interior theater portion of the Warner Building was filed by the lessee of the theater portion on November 8, 1985. The lessee is not a plaintiff in this action. See Memorandum of January 30, 1985 at 14. Compare id. at 396-397 & nn. 9-10. Accordingly, it is this 7th day of March, 1985, hereby

ORDERED: that plaintiffs’ Motion to Reconsider and Modify Opinion on Summary Judgment in Light of Newly Discovered Evidence should be, and is hereby, DENIED.

      . Although the Court has not heretofore ruled on DTID’s Motion to Intervene, DTID has — since the motion was filed — been allowed fully to participate in all hearings in this action as amicus curiae. Without ruling on DTID’s claim that it is entitled to intervention as of right pursuant to Fed.R.Civ.P. 24(a), the accompanying Order will grant DTID’s motion for permissive intervention pursuant to Fed.R.Civ.P. 24(b). Considering all the circumstances of this case, DTID’s Motion to Intervene was not untimely. Given that the Warner Theater landmark applications at issue in this action were filed by DTID, and that DTID’s aim in seeking intervention is to defend the validity of its own applications and the subsequent status of the Warner Theater against plaintiffs’ challenges, it is clear that common questions of law and fact exist between the main action and the defense that DTID seeks to assert. In light of the fact that DTID has agreed to be bound by the record up to this point, see Memorandum in Support of Motion to Intervene at 17, the intervention "will not unduly delay or prejudice the adjudication of the rights of the original parties." Fed.R. Civ.P. 24(b).

      . There is some ambiguity as to the scope of the November 26, 1982 permit application. Plaintiffs describe the permit application as one "to make alterations to an entrance area of the Warner Building.” Statement in Support of Plaintiffs’ Motion for Summary Judgment at 27 (emphasis added). See also id. at 66 (referring to November 26, 1982 permit as one "to alter an entrance area of the Warner Building____”) (emphasis added). Defendants, on the other hand, state that the November 26, 1982 application was "an application for an alteration permit for the doorway of the Warner Building." Defendant’s Opposition to Plaintiffs’ Motion at 5 (emphasis added); id. at 54 (same language).
      These factual assertions, despite their lack of specificity, make clear that the desired alteration would have affected some, but not all, of the exterior of the Warner Building. It may thus be concluded that the November 26, 1982 permit application did trigger the 90-day decision period contained in D.C.Code § 5-1002(6)(B) with respect to the April 6, 1981 DTID application to have the exterior of the Warner Building designated a landmark. See Application Form: Historic Landmark Designation No. 81-3, § 310.22 (filed by DTID on April 6, 1981, to have the exterior of the Warner Building designated a landmark) (referring, in the description of the property to be designated, to various ”entrance[s]” to the Warner Building), reprinted in Plaintiff’s Motion for Summary Judgment, Appendix B.
      At the same time, the parties' factual assertions — even those by plaintiffs alone — fail to establish that the desired alteration of the "entrance area” would also have affected the interi- or of the Warner Building. Plaintiffs describe the November 24, 1982 DTID landmark application as covering the “theater portion of the interior1’ of the Warner Building. Plaintiffs’ Statement of Material Facts ¶ 69 (emphasis added); see also Complaint ¶ 29 (same language). Defendants also describe the November 24, 1982 landmark application as covering the “theater portion" of the Warner Building. Defendants' Statement of Material Facts ¶ 37. In the absence of any facts tending to suggest that the November 26, 19S2 "entrance area” permit application would have affected the theater portion of the interior of the Warner Building, there is no basis for a finding in a summary judgment context that the permit application triggered the 90-day decision provision in D.C. Code § 5-1002(6)(B) with respect to the interior landmark application.

      . See supra note 2.

      . Several of these pendent claims are reiterated as if they were also federal law violations. The disposition of the case on the pendent claims makes it unnecessary to reach any federal claim with respect to the exterior that may be lurking in the pleadings. See National Senior Citizens Law Center v. Legal Services Corporation, 751 F.2d 1391, 1395 (D.C.Cir.1985).

      . The complaint also suggests that the November 26, 1982 permit application to modify the exterior triggered the 90 day decision requirement contained in D.C.Code § 5-1002(6)(B) with respect to the interior landmark application as well. See Complaint at 26-27. As is evident from the factual findings set forth supra at note 2, there is no basis on this record for such a proposition, and thus there is no occasion to consider plaintiffs’ claim that the interim designation has expired by operation of the 90-day rule.

      . As noted, the Court has granted the motion of amicus Don’t Tear It Down, Inc., to intervene. See supra note 1.

      . In the exchange of pleadings on these motions, plaintiffs’ counsel have filed a 73-page statement of law and authority, defendants have responded with a 60-page memorandum, and plaintiffs have submitted a further memorandum of 39 pages.

      . The Court, thus, does not pass on plaintiffs’ federal constitutional claims with respect to the exterior designation. Federal courts are admonished to avoid ruling on constitutional questions "if there is also present some other ground upon which the case [or any portion of it] may be disposed of.” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); see New York City Transit Authority v. Beazer, 440 U.S. 568, 582, 99 S.Ct. 1355, 1364, 59 L.Ed.2d 587 (1979).

      . The D.C. act by its terms imposes no duty upon the property owner in such a case to transmit the permit application to the Joint Committee or Review Board. In this case, however, there is evidence in the record that is not disputed by defendants that plaintiffs made a wholly sufficient effort independently to notify the Joint Committee of the pendency of their permit application, by sending a letter to that effect to the Chairman of the Joint Committee on or about December 22, 1982. See Plaintiffs’ Consolidated Opposition and Reply, Appendix 1. Even if the 90-day cycle were deemed to have been triggered on that date, the Joint Committee’s May 18, 1983 decision on the landmark application would still have fallen outside the statutory period.

      . This interpretation of the statute is adopted in part because, as noted supra at 10-11, serious questions regarding the constitutionality of the act would be raised if the District of Columbia could in this fashion deprive property owners of the only apparent method provided for in the D.C. act by which owners might trigger a prompt decision by the appropriate agency on a pending landmark application. Cf. United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 368-70, 91 S.Ct. 1400, 1404-05, 28 L.Ed.2d 822 (1971); Loveday v. FCC, 707 F.2d 1443, 1459 n. 24 (D.C.Cir.1983). At the same time, nothing in this memorandum is intended to preclude any remedies that might be available against any action or inaction by the Joint Committee or the Review Board under the D.C. Administrative Procedure Act, D.C.Code §§ 1-1501 et seq.

      . Intervenor has expressed concern during the hearings in this matter that plaintiffs allegedly intend in further proceedings to press the argument that, once the 90-day decision period has been triggered, failure by the Joint Committee or the Review Board to reach a decision within the requisite 90 days thereafter renders the property in question immune — in perpetuity — from landmark designation under the D.C. act. In the instant case, however, no such subsequent effort to apply for or grant landmark status upon a property is before the Court. Neither has this issue been addressed in any of the briefs submitted in this matter. Thus, there is no occasion to address, or issue any ruling as to, the effect or validity under the D.C. act of any subsequent landmark application that might be filed by any party with respect to the Warner Building’s exterior.

      . Defendants and intervenor contend that the mere filing of a landmark application has no effect on the interests of the affected building’s owner. This argument, however, ignores the plain fact that even the filing of a landmark application can have and in this case apparently did have at least some effect on the market value of the owner’s property. Neither defendants nor intervenor dispute plaintiffs’ representations that the imposition of interim landmark status on the exterior of the Warner Building played a role in the disruption of a commercial arrangement to sell the Warner Building in 1982. See Statement in Support of Plaintiffs’ Motion for Summary Judgment at 9-10; cf. Citizens Committee to Save Historic Rhodes Tavern v. District of Columbia Department of Housing and Urban Development, 432 A.2d 710, 718 (D.C.1981) cert. denied, 454 U.S. 1054, 102 S.Ct. 599, 70 L.Ed.2d 590 (1981).

      . See infra at 399.

      . Plaintiffs may be reluctant to press for a decision by the Review Board because of concern as to the result.


source: Caselaw Access Project

author: SHAPIRO, District Judge.

license: Public Domain

text:
    Rose ARRIGO v. Margaret M. HECKLER, Secretary of Health and Human Services.
    Civ. A. No. 82-1211.
    United States District Court, E.D. Pennsylvania.
    Jan. 30, 1985.

      Jonathan M. Stein, Richard Weishaupt, Community Legal Services, Philadelphia, Pa., for plaintiff.
    Richard Schweiker by Rachel Shao, Asst. U.S. Atty., Philadelphia, Pa., for defendant.
   MEMORANDUM and ORDER

SHAPIRO, District Judge.

This is an action to review a final decision of the Secretary of Health and Human Services (“Secretary”). The parties have filed cross-motions for summary judgment. Only the onset date of claimant’s conceded disability is at issue.

On August 14, 1980, claimant filed an application for supplemental security income that alleged disability because of calcified tendonitis of the shoulder and degenerative joint disease of the hand and knees from September, 1979. After denial of the claim initially and on reconsideration, a hearing was held before Administrative Law Judge Eisenberg. In a decision on August 24, 1981, the Administrative Law Judge (“AU”) evaluated claimant's impairments and her complaints of pain and concluded that she was not disabled. The decision was made final by the Appeals Council. Claimant appealed the determination to this court. In a Memorandum and Order dated March 31, 1983, this court remanded the case to the Secretary. The court concluded that the AU had improperly relied on his own lay opinion of the claimant’s pain in contradiction of a doctor’s report of record. The court stated that, “[wjithout a medical opinion on the significance of plaintiff’s pain, the AU could not properly conclude that plaintiff’s complaints were inconsistent with or disproportionate to the medical evidence.” Memorandum at 7.

Following remand, on June 16, 1983, AU Eisenberg again denied claimant’s benefits on the evidence of record without referring claimant for medical testing and without affording claimant a further hearing. This recommended decision was adopted by the Appeals Council on September 15, 1983. Claimant again appealed her denial of benefits to this court. On February 6, 1984, this court remanded the case to the Secretary for a supplemental hearing and for a re-evaluation of the medical evidence regarding pain by a different AU reassigned to the case. New medical evidence was received from a psychiatrist, Gino Grosso, M.D., at a supplemental hearing on June 26, 1984 before AU Chernock. In his decision of July 10, 1984, AU Chernock concluded that claimant was disabled due to mental impairments as of July 15, 1983. Claimant now appeals this determination of the onset date of disability. She argues that the proper onset date is the date of application, April 14, 1980.

In determining whether the AU properly established July, 1983 as the onset date of claimant’s disability, the court does not determine the matter de novo but must decide whether the finding is adequately supported by substantial evidence on the record. See 42 U.S.C. § 405(g). The court agrees with claimant’s contention that the AU’s finding is not supported by substantial evidence.

Raymond Stein, M.D., an orthopedic surgeon who had examined claimant for the Secretary, testified at claimant’s supplemental hearing. According to the AU’s opinion, Dr. Stein testified that Mrs. Arrigo had “pain of an extrinsic nature” and also acknowledged that she had orthopedic problems which “could account for some pain” (Tr. 151); claimant was unable to work due to her “progression of pain perception, sensitivity, and reaction.” Id. Dr. Stein explained that claimant had reached this stage “as few as three or as many as five years” before June, 1984. This testimony corroborated a March 8, 1984 statement by claimant’s treating physician, Anthony D. LoBianco, D.O., that he had observed “increasing anxiety and depression because of the continual pain” since the time that he began observing her in April, 1979. (Tr. 252). Other reports by Anthony S. Tornay, M.D., a psychiatrist; Gino Grosso, M.D., a psychiatrist; and Benjamin Goodnick, Ph.D., a psychologist, also presented a history of chronic anxiety disorder.

In rejecting the opinions of these medical experts, the AU again improperly substituted his own lay opinion for that of medical experts. Under well-established case law in the Third Circuit, it is impermissible for an AU to make a medical judgment contrary to the evidence of record. See, e.g., Smith v. Schweiker, 671 F.2d 789, 793 (3d Cir.1982). The AU is required to explain his rejection of medical evidence that conflicts with his findings of fact. Cotter v. Harris, 642 F.2d 700 (3d Cir.1981). Here the AU ignored these medical opinions even though there was no evidence to contradict a finding of mental disability as early as 1980.

The opinion of Dr. LoBianco, claimant’s treating physician, could not be rejected unless the AU pointed to other substantial and convincing medical evidence of record; Rossi v. Califano, 602 F.2d 55 (3d Cir.1979). AU Chernock in rejecting the evidence of the treating physician, as well as the evidence of his own consultative examiner, relied on the previous AU’s observation that, “[tjhere was nothing in the claimant’s demonstrated mental capabilities, her demeanor, or in her testimony suggesting mental disability.” (Tr. 153). The AU’s own lay observations much less his adoption of the lay observations of another AU, cannot constitute substantial evidence in the face of contrary medical evidence. Lewis v. Califano, 616 F.2d 73 (3d Cir.1980). This applies to lay observations about mental as well as physical conditions. Kelly v. Railroad Retirement Board, 625 F.2d 486 (3d Cir.1980).

In establishing July, 1983 as the onset date of disability, the AU relied on a medical report of Dr. Harold Polan, which the AU assumed was prepared in July, 1983. The AU noted that this was the first report “to indicate that claimant’s mental problem is functionally significant.” (Tr. 153). However, the AU completely disregarded the fact that Dr. Polan’s report stated that claimant had been receiving medication for nine months prior to the date of the report. AU Chernock also chose to ignore uncontradicted medical evidence suggesting a lengthy history of psychiatric disorders. Because the AU chose the onset date based on arbitrary assumptions and did not adequately justify his rejection of competent medical evidence to the contrary, his finding of July, 1983 as the onset date is not supported by substantia] evidence in the record. There being no basis for further remand, the court reverses the AU’s determination of the onset date and orders that benefits be paid as of August 14, 1980, the date of application.


author: CONABOY, District Judge.

text:
    Lloyd Lorenzo MANLEY, Petitioner, v. Joseph RYAN, Warden S.C.I. Dallas, Pennsylvania, et al., Respondent.
    Civ. No. 84-1385.
    United States District Court, M.D. Pennsylvania.
    Jan. 31, 1985.
    Arthur L. Gutkin, Norristown, Pa., for petitioner.
    Deputy Atty. Gen., Francis Filipi, Harrisburg, Pa., for respondent.
   MEMORANDUM AND ORDER

CONABOY, District Judge.

We have received the Report of Magistrate Raymond J. Durkin in the above-captioned matter. The Magistrate’s Report includes a recommendation as to the proper disposition of this case. The Petitioner has filed exceptions to the Magistrate’s Report. We have considered these exceptions, the Magistrate’s Report, and the case file in reaching our decision.

This is a habeas corpus action pursuant to 28 U.S.C. § 2254. Petitioner alleges that he is illegally incarcerated at the State Correctional Institution at Dallas, Pennsylvania. Petitioner claims that Pennsylvania did not meet the requirements of the Speedy Trial Clause of the 6th Amendment to the U.S. Constitution in the manner in which he was prosecuted.

Petitioner was convicted of robbery, theft, and reckless endangerment in the Court of Common Pleas for Lackawanna County on December 1, 1978. That conviction was vacated on speedy trial grounds per Order of the Pennsylvania Superior Court on September 26, 1980. The Commonwealth appealed.. The Supreme Court of Pennsylvania elected to hear the appeal and reinstated the Petitioner’s conviction per its opinion of December 30, 1983.

Magistrate Durkin recommended that the instant petition be dismissed due to the fact that, as initially presented, it presented both exhausted and unexhausted claims. Such mixed petitions are susceptible to dismissal under the doctrine of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Counsel for Petitioner moved for an extension of time to file exceptions to the Magistrate’s Report and also for leave to amend the original petition to delete those claims which have yet to be exhausted in the Pennsylvania Courts. We granted both motions. Therefore, we have jurisdiction to consider this amended petition since it incorporates only the aforementioned speedy trial argument which, of course, raises a federal question.

We need not consider the trial record. The case was tried to a jury and the Petitioner does not challenge the efficacy of the verdict. The only issue Petitioner brings before us is the 6th Amendment speedy trial question previously mentioned. We must look to Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for guidance. Barker, supra, postulates a balancing test to determine whether the 6th Amendment right to a speedy trial has been abridged. The four factors to be considered in this balance are: a) the length of delay; 2) the reason for delay; c) the Defendant’s assertion of his right; and d) prejudice to the Defendant. Before subjecting the facts surrounding Manley’s prosecution to this four factor analysis, we think it wise to posit an important principle. The 6th Amendment right to a speedy trial is fundamental and demands zealous protection. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). It is also one of the more nebulous rights possessed by American citizens. In Barker, supra, 407 U.S. at 521, 92 S.Ct. at 2187, the Supreme Court in a unanimous opinion delivered by Justice Powell held:

... the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate.

The Barker Court went on to emphasize a concept first enunciated in Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950 (1905):

the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.

It is from this framework that we must analyze Petitioner Manley’s application for writ of habeas corpus. He claims infringement of a fundamental right. It is, however, an imprecisely delineated right which must be weighed against the significant interest of society in punishing lawbreakers. With these competing interests in mind we apply the Barker approach to this petition.

The first factor to be weighed in the Barker balance is the length of delay between arrest and trial. In this case 288 days elapsed between the Petitioner’s arrest and the onset of trial. Suffice it to say that, depending upon the circumstances of a case, times greatly in excess of 288 days have been ruled permissible from the prosecution’s standpoint and delays much briefer than 288 days could conceivably trigger a speedy trial issue. It is apparent that the length of delay aspect of the Barker balance is of marginal utility due to the inherent ambiguity of the word speedy.

The second factor, the reason for delay, is of utmost importance in this case. The record demonstrates that this case was called to trial on May 30, 1978, a full six months before trial of this matter was finally had. On that day Petitioner, who had initially retained private counsel, appeared without benefit of counsel and informed the trial court that he was indigent. This revelation caused the Commonwealth to seek a continuance. This continuance went unopposed by Petitioner and also unsigned by the trial judge. This development sparked a claim that Pennsylvania had ignored the criteria of its own Speedy Trial Act, Rule 1100 of the Pennsylvania Rules of Criminal Procedure. We need not address this controversy since the final authority on how Pennsylvania law is to be interpreted, the Pennsylvania Supreme Court, has ruled that the prosecution complied with the requirements of Rule 1100. We must deal with the more amorphous question whether Pennsylvania’s allowance for delay in this case was too lenient to comport with the Speedy Trial Clause of the 6th Amendment. Our view of the situation that developed in this case is that Petitioner was at least as responsible for the delay of his trial as was the Commonwealth.

The third factor to be considered in the Barker analysis is the assertion by the accused of his right to speedy trial. We find it significant that Petitioner did not assert this right until September 21, 1978, some 38 days after the date on which the strictest construction of Rule 1100 would have mandated the beginning of trial. This Court would be more receptive to Petitioner’s application were there some record that he had asserted this right contemporaneously with the Commonwealth’s motion for extension of time to commence trial. The fact that Petitioner did not oppose the Commonwealth’s motion persuades this Court of the likelihood that he was totally unconcerned with asserting the right to speedy trial. It was only after the Public Defender realized that the Commonwealth’s motion had never been acted upon that the right to speedy trial came to be so dear to Petitioner. His conduct before that point in appearing for a scheduled trial without counsel and electing not to oppose the Commonwealth’s motion for continuance was more suggestive of a desire to delay trial as long as possible. Petitioner simply failed to continually and vigorously assert his right to speedy trial which, had he done so, would have provided considerable evidentiary support for his cause under the terms of United States ex rel. Stukes v. Shovlin, 464 F.2d 1211, 1214 (1972). Our conclusion, therefore, is that Petitioner’s assertion of his right came too little and too late to tip this factor of the Barker balance in his favor.

The final factor to be considered is the degree of prejudice to the accused in having his trial delayed. Petitioner’s objection to the Magistrate’s Report makes much of the fact that “the most important factor which the (Barker) Court discusses is the prejudice to the Defendant with regard to his failure to receive a speedy trial.” Apart from our conviction that Petitioner has not demonstrated from the record that he was unduly prejudiced by the delay in this case, we note that the United States Supreme Court has rejected the notion that the 6th Amendment right to a speedy trial is primarily intended to prevent prejudice to the defense caused by the passage of time. United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696 (1981). So, prejudice to the defense is to be accorded no more weight in terms of Barker analysis than any of the factors we have previously considered. That understood, we turn to Petitioner’s allegations of prejudice. He alleges herein that his defense ws impaired in that he was unable to maintain contact with persons who would have provided him with an alibi. However, it seems to this Court that any such impairment was a result of the fact that Petitioner was ineligible for bail due to the lodging of parole violator detainers against him in the wake of his arrest. His inability to remain in contact with these potential witnesses, then, was less a result of a speedy trial problem than of previous escapades in Petitioner’s life.

In summation, mindful of our determination that a fundamental right was implicated in this application, we have endeavored to “engage in a difficult and sensitive balancing process” as the law requires. We find: a) that the delay between arrest and trial in this case was not of such duration as to state a clear case that a speedy trial violation occurred; b) that said delay was caused substantially by Petitioner’s own laxness in securing counsel and in failing to oppose the Commonwealth’s motion for an extension of time; and c) that Petitioner failed to vigorously assert his 6th Amendment rights. We find, all factors considered, that Petitioner’s 6th Amendment right to a speedy trial was not violated in this case. An appropriate Order shall issue.

ORDER

AND NOW, this 31st day of January, 1985, IT IS HEREBY ORDERED THAT:

1. Petitioner’s application for a writ of habeas corpus on grounds of a violation of his fundamental right to a speedy trial is denied.

2. Judgment in Respondents’ favor is hereby entered and the Clerk of Courts is directed to close this case.

      . See Finney v. Wainwright, 434 F.2d 1001, certiorari denied 401 U.S. 962, 91 S.Ct. 967, 28 L.Ed.2d 245 (1970). Also, U.S. ex rel. Orsini v. Reincke, 286 F.Supp. 974, affirmed 397 F.2d 977, certiorari denied 393 U.S. 1050, 89 S.Ct. 689, 21 L.Ed.2d 692 (1968).

      . We note that it is highly unlikety that Petitioner Manley was unaware of the 6th Amendment rights he might assert since it is not inaccurate to characterize him as a career criminal with a history of criminal behavior stretching back to the 1940’s.

      . Docket Item Number 7 at page 3.

      . Barker, supra, 407 U.S. at 533, 92 S.Ct. at 2193.


author: RICE, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Robert L. PRICKETT, Defendant.
    No. CR-3-83-33.
    United States District Court, S.D. Ohio, W.D.
    Feb. 5, 1985.

      James A. Wilson, Asst. U.S. Atty., Dayton, Ohio, for plaintiff.
    Daniel O’Brien, Dayton, Ohio, for defendant.
   DECISION AND ENTRY UPHOLDING APPLICATION OF AMENDED FEDERAL RULE OF EVIDENCE 704(b)

RICE, District Judge.

On October 12, 1984, the Comprehensive Crime Control Act of 1984 (the “Act”), Pub.L. 98-473, 98 Stat. 1837, was signed into law by President Reagan. Among the many changes in federal law made by the Act was the enactment of the following new provision, 18 U.S.C. § 20, pertaining to the insanity defense:

§ 20. Insanity Defense
(a) Affirmative Defense. — It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
(b) Burden of Proof. — The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

18 U.S.C. § 20 (1984). This statutory codification of the insanity defense not only narrows substantially the definition of insanity, which had evolved from case law, to be employed by the federal courts, but provides for the first time that a defendant is to have the burden of proving the insanity defense by clear and convincing evidence.

In addition to this provision in the Act as to the insanity defense, Congress enacted a new limitation upon the scope of expert testimony admissible at trial on the issue of a defendant’s assertion of the insanity defense. At the time of the Act’s passage, Rule 704 of the Federal Rules of Evidence provided that “[tjestimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Fed.R. of Evid. 704 (1975). Section 406 of Title IV of the Act proceeded to amend Rule 704 so that it now reads:

Rule 704. Opinion on ultimate issue
(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

The legislative history of Rule 704 as amended explains the relationship of the new Rule 704(b) to the codification of the insanity defense in 18 U.S.C. § 20 as follows:

The purpose of this amendment is to eliminate the confusing spectacle of competing expert witnesses testifying to directly contradictory conclusions as to the ultimate legal issue to be found by the trier of fact. Under this proposal, expert psychiatric testimony would be limited to presenting and explaining their diagnoses, such as whether the defendant had a severe mental disease or defect and what the characteristics of such a disease or defect, if any, may have been.

H. Rep. No. 98-1030, 98th Cong., 2d Sess. 224, 232, U.S.Code Cong. & Admin.News 1984, p. 1. This and other relevant portions of the legislative history make it clear that while under Rule 704(b) an expert may testify as to the defendant’s severe mental disease or defect and the characteristics of such a condition, he or she is not to offer the jury a conclusion as to whether said condition rendered the defendant “unable to appreciate the nature and quality or the wrongfulness of his acts.” 18 U.S.C. § 20 (1984). Rather, under Rule 704(b), the latter is an "ultimate issue” to be determined solely by the jury on the basis of the evidence presented. See, H.Rep. No. 98-1030, 98th Cong., 2d Sess. at 224-25, 227, and 233.

In the instant case, Defendant has given the Court notice, pursuant to Fed.R. Crim.P. 12.2, that he intends to rely upon the defense of insanity and that he intends to introduce expert testimony as to his mental condition at the time of his alleged crimes which bears upon the issue of his guilt. As the crimes alleged in the Grand Jury’s indictment of Defendant occurred prior to October 12, 1984, the question presented is whether application to the evidence in this case of newly-enacted Fed.R. of Evid. 704(b) violates the prohibition of Article I, Section 9 of the United States Constitution against ex post facto laws. The Court’s conclusion is that application of the new Rule 704(b) to the expert testimony introduced in the instant case will not work a violation of the ex post facto clause.

In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), petitioner argued that the application of Florida’s newly-amended death-sentencing procedure, which permitted for the first time judicial review of the jury’s determination to impose the death penalty, constituted an ex post facto law. The Supreme Court, relying on its earlier decision in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), observed that a change in the law which is procedural is not ex post facto, even though it may work to the disadvantage of the Defendant. 432 U.S. at 292, 97 S.Ct. at 2297. In finding the change in Florida law procedural and not an ex post facto law, the Supreme Court held:

The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute.

432 U.S. 294, 97 S.Ct. 2298 (citing Hopt v. Utah, 110 U.S. 574, 589-590, 4 S.Ct. 202, 209-210, 28 L.Ed. 262 (1884)).

The requisites for finding procedural changes not to be ex post facto laws can be even more fully understood through reference to the cases cited in Dobbert. At issue in Beazell v. Ohio, 269 U.S. at 167, 46 S.Ct. at 68, was a statutory change in the mode of criminal trials which allowed joint trials for co-defendants in felony cases instead of the separate trials provided for by previous law. The Supreme Court first noted that a statute which, after indictment, enlarged the class of permissible witnesses at defendant’s second trial had not been found an ex post facto law in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). It then observed that a statute changing the rules of evidence after an indictment so as to render admissible against the accused evidence previously held inadmissible had similarly been upheld over an ex post facto challenge. Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898). Gleaning from these and like cases the rule that “statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage” are permissible, the Beazell court found no ex post facto violation in the statutory change before it. 269 U.S. at 170-71, 46 S.Ct. at 68-69.

The new Rule 704(b) of the Federal Rules of Evidence has no impact upon the crimes for which the instant Defendant has been indicted or for the punishment prescribed by Congress for said crimes. Nor does Rule 704(b) change the quantity or degree of proof necessary to establish Defendant’s guilt. See, United States v. Williams, 475 F.2d 355, 356-57 (D.C.Cir.1973). While the new Rule 704(b) may work to disadvantage Defendant in his introduction of expert testimony as to his mental condition at the time of his alleged offenses, the Supreme Court has made it clear that such a disadvantage stemming from a procedural change in the law, which this Court finds the new Rule 704(b) to be, does not in and of itself signal an ex post facto law.

The Court concludes that application of the newly-amended Rule 704(b) to expert testimony introduced in the instant case does not violate Article I, Section 9’s prohibition against ex post facto laws. The parties in the instant case have agreed, however, that the ex post facto clause does prevent the statutory insanity defense of 18 U.S.C. § 20 to control Defendant’s invocation of the insanity defense herein. As such, the case law in this Circuit as it existed on October 12, 1984 is the substantive law applicable to Defendant’s insanity defense, since the offenses for which the Defendant has been charged occurred prior to that date. Given the differences between the judicial definition of insanity and the narrower definition of the defense provided by 18 U.S.C. § 20, it remains for this Court to determine the impact which Rule 704(b) will have upon the introduction of expert testimony bearing on the broader judicial conception of the insanity defense.

The law in the Sixth Circuit provides that a jury shall find the Defendant to have lacked criminal responsibility if, at the time of the alleged criminal conduct, the Defendant, as a result of mental illness, lacked substantial capacity either to know the wrongfulness of his conduct or to conform his conduct to the requirements of the law which he is charged with violating. United States v. Campbell, 675 F.2d 815, 820 (6th Cir.1982), cert. den., 459 U.S. 850, 103 S.Ct. 112, 74 L.Ed.2d 99 (1982); United States v. Smith, 404 F.2d 720, 727 (6th Cir.1968). In the legislative history of amended Rule 704(b), Congress indicated its belief that the “ultimate issues” about which experts were allowed to testify under the original, unamended version of Rule 704 included the following: “[Wjhether or not the defendant was in his opinion ‘insane,’ ‘sane,’ lacked the capacity to distinguish ‘right from wrong,’ or lacked the capacity to ‘conform his behavior to the requirement of law.’ ” H.Rep. No. 98-1030, 98th Cong., 2d Sess. at 227. Accord: Feguer v. United States, 302 F.2d 214, 241-42 (8th Cir.1962), cert. den., 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110 (1962) (definition of “ultimate issues” with respect to insanity defense prior to enactment of Federal Rules of Evidence).

The Court has already considered the strictures which Rule 704(b) places upon expert testimony as to ultimate issues with respect to a defendant’s mental state or condition, and the Congressional view as to what type of expert testimony is permissible with respect to the formulation of the insanity defense now contained in 18 U.S.C. § 20. In light of the conception of “ultimate issues” noted above and this Congressional reading of Rule 704(b), the Court concludes that expert testimony in the instant case may address the mental illness of Defendant and the characteristics, if any, of that mental illness. Expert testimony may not be introduced, however, with respect to an expert’s inference or opinion that, at the time of the alleged crimes, Defendant was (1) sane; (2) insane; (3) lacked substantial capacity to know the wrongfulness of his conduct; or (4) lacked substantial capacity to conform his conduct to the requirements of the law which he is charged with violating.

      . Article I, Section 9 provides: "No Bill of Attainder or ex post facto Law shall be passed."

      . The Court finds noteworthy the observation contained in the legislative history that newly-amended Rule 704(b) was fashioned to preclude “ultimate opinion psychiatric testimony" on the mental state of the Defendant in a wide variety of contexts besides the insanity defense. The Congressional drafters noted specifically that the Defendant’s lack of predisposition to commit a violation of the law, an element of the defense of entrapment, is an "ultimate issue” upon which expert testimony may not be entertained under the new Rule 704(b). H.Rep. No. 98-1030, 98th Cong., 2d Sess. at 233.
      Should, as has been indicated to the Court, a defense of entrapment become relevant to the instant case, the Court will follow the legislature’s intent and preclude expert opinion upon the question of whether Defendant lacked the predisposition to commit a crime. Expert testimony, if necessary, would seem to be permissible under Rule 704(b) insofar as it focuses upon inducement by law enforcement officials in the form of persuasion, fraudulent representation, coercion and, the like, as well as evidence of Defendant’s personal background, prior conduct of a character similar to that at issue at trial, and so forth. It would then remain solely for the jury to determine whether, based on the evidence presented, Defendant lacked the predisposition to commit a violation of the law.


author: SWEET, District Judge.

text:
    UNITED STATES of America, v. Ronald BROWN, Defendant.
    No. 84 Cr. 800 (RWS).
    United States District Court, S.D. New York.
    Feb. 6, 1985.

      Rudolph W. Giuliani, U.S. Atty., S.D.' N.Y., New York City, for U.S.; Michael Kellogg, Asst. U.S. Atty., New York City, of counsel.
    Stolar Alterman Wagner & Boop, P.C., New York City, for defendant; Martin R. Stolar, New York City, of counsel.
   OPINION

SWEET, District Judge.

Defendant Ronald Brown (“Brown”) was found guilty on December 20, 1984 by a jury of conspiring to sell heroin in violation of 21 U.S.C. § 846. He now moves this court to set aside the verdict and to order a new trial pursuant to Fed.Rules of Crim.P. 29(c) and 33. For the following reason, the motion is denied.

Facts

This case arises out of Operation Pres-' sure Point. The facts of this case come from the testimony of Police Officer Grimbal (“Grimbal”). He was the undercover agent who was on duty at approximately 7:30 in the evening on October 9, 1984 at 115th Street and 8th Avenue in Harlem. He was engaged in a buy operation and after he drove to the site he exited his car and “approached a male standing on the corner of 115th Street and 8th Avenue.” He asked him for “D.”

Explaining that D was a street term for heroin, Grimbal testified that person who he approached who was standing alone was Gregory Valentine (“Valentine”). Valentine was reported to respond by asking the officer how much he wanted. At that point the officer said “a joint.” In defining a “joint,” Grimbal said “a joint, as opposed to a joint of marijuana which is a cigarette of marijuana, is a term for a Harlem quarter or $40.00 worth of heroin.”

Valentine asked Grimbal who he knew around the area, and Grimbal asked Valentine “Do you know Scott?” Valentine said no and it was at this point that the defendant Brown came up to the conversation. Valentine said to Brown “he wants a joint, but I don’t know him” and Brown said, after looking at Grimbal, “He looks okay to me.”

At that point Valentine is reported to have said “Okay, but I am going to leave it somewhere and you can pick it up.” Brown, without prompting, then said, according to Grimbal, “You don’t have to do that. Just go and get it for him. He looks alright to me. I will wait right here.”

Although no money was shown or displayed and no money was talked about, Valentine then said “Okay. Come on with me around to the hotel.” Grimbal then followed him to the hotel at 300 West 116th Street where he was told to sit on a car and to give Valentine a few minutes to go and get the drugs. At that point Valentine asked for the money and Grimbal gave him $40.00. Valentine also said, “You are going to take care of me for doing this for you, throw some dollars my way?” Grimbal responded “Yeah.”

Valentine went into the hotel and then came back a few minutes later. They then returned to 115th Street and 8th Avenue. Valentine placed a Newport cigarette box on the hood of a nearby parked car, walked away and watched while Grimbal went over to pick up the cigarette box and removed a glassine envelope containing what proved to be heroin.. Grimbal removed the glassine, put $5.00 of prerecorded “tip” money inside the box and walked away. As he walked away Valentine asked him whether or not he had taken care of him and Grimbal responded that he had. Valentine then went over to the cigarette box and took the $5.00 that was in it.

Valentine and Brown were subsequently taken into custody and Brown was charged with conspiracy to sell heroin in violation of 21 U.S.C. § 846 and aiding and abetting the sale of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A). At the trial, the prosecution offered Grimbal as an expert in the sales of narcotics in Harlem on the basis that he was able to testify that such sales “typically involve more than one person.”

Characterizing the transaction on trial as a typical one, Grimbal testified that the role of Brown in the transaction was, in his opinion, “a steerer.” When asked why he had such an opinion, Grimbal testified: “Because I believe that if it wasn’t for his approval, the buy would not have gone down.” The jury found Brown guilty on the count of conspiracy but was unable to reach a verdict on the aiding and abetting count and a mistrial was declared on that count.

In his motion, Brown argues that the expert testimony of Grimbal as to street-level narcotics sales was improperly admitted and, therefore, constituted prejudicial error and, alternatively, that there was insufficient evidence to support the jury verdict and that, in judging the sufficiency of the evidence, the court should not consider the expert testimony of Grimbal.

Admissibility of Officer Grimbal’s Testimony

It is settled law in the Second Circuit that an undercover agent, properly qualified as an expert, may supplement his personal observations with expert testimony as to the conduct of street-level narcotics sales. “The subject of the expert testimony here, i.e., the clandestine manner in which drugs are bought and sold, is unlikely to be within the knowledge of the average layman.” United States v. Carson, 702 F.2d 351, 369 (2d Cir.1983). See United States v. Young, 745 F.2d 733, 760 (2d Cir.1984).

Grimbal’s testimony as to the division of responsibility in a typical street sale of heroin and his opinion as to the role of Brown in the sale on October 9,1984 fell within the ambit of permissible expert testimony. United States v. Carson, supra, 702 F.2d at 369 (“it was proper for the agents to recount their observations and render an opinion based on them”); United States v. Young, supra, 745 F.2d at 760 (“Such opinions are admissible both under rule 702 as expert opinions and under Rule 701 as lay opinions based on perceived events”). As to Brown’s suggestion that Grimbal was not qualified as an expert witness, I found at trial that Grimbal was properly qualified as an expert by training and experience. Once that determination was made, the weight to be accorded his testimony was a matter for the jury to decide. The jury was instructed as to the weight to be accorded to the testimony of an expert, and the defendant made no objection to those instructions.

I find that the expert testimony of Grimbal was properly admitted and there are no grounds for setting aside the verdict or granting a new trial on that basis.

Sufficiency of the Testimony

Brown maintains that the expert testimony offered by the government is insufficient to sustain the verdict which was rendered. He contends that the jury substituted the expert opinion of Grimbal for evidence in the case, and that without the expert testimony there is no objective evidence involving Brown in the transaction. He suggests that the only way to account for the jury being unable to agree on the aiding and abetting charge in the indictment is that they substituted Grimbal’s testimony for the facts of the case. Brown relies on the case of United States v. Santiago, slip op. (S.D.N.Y. Dec. 3, 1984), in which the Honorable Constance Baker Motley granted a defendant’s motion for a judgment of acquittal on the grounds that the jury gave undue weight to a police officer’s expert testimony.

A defendant advancing a claim based on insufficiency of the evidence bears a very heavy burden. United States v. Carson, 702 F.2d 351, 361 (2d Cir.1983); United States v. Losada, 674 F.2d 167, 173 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). As the Second Circuit stated in Carson:

Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979); United States v. Barnes, 604 F.2d 121, 157 (2d Cir.1979), cert. denied, 446 U.S. 907 [100 S.Ct. 1833, 64 L.Ed.2d 260] (1980). In making this determination, we must view the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80 [62 S.Ct. 457, 469, 86 L.Ed. 680] (1942), and construe all permissible inferences in its favor, United States v. Dazzo, 672 F.2d 284, 288 (2d Cir.), cert. denied, [459 U.S. 836], 103 S.Ct. 81 [74 L.Ed.2d 77] (1982).

702 F.2d at 361.

In Santiago, Judge Motley held that this burden was met where the only evidence on which a jury could have relied to find the defendant guilty of aiding and abetting was the testimony of the police officer that the defendant was acting as a lookout. There the officer testified that the defendant was approached by his co-defendant immediately after the co-defendant had told the officer that he would have to speak with his partner before carrying out a drug deal. The two had a brief conversation out of the officer’s earshot, then returned and walked with the officer around the corner. At that point the co-defendant, after telling the officer to get his money ready, again approached the defendant who was a few feet away and then left to go around the corner. While he was gone, the defendant remained on the street and periodically looked at the undercover officer. The Court ruled that there was no evidence that the defendant saw any drugs or negotiations or that he heard anything said between his co-defendant and the officer; the officer never heard the defendant make any statement. Judge Motley noted that while knowledge and intent can be established by inference from circumstantial evidence, “[a]t the very least, there must be enough evidence in the record for the jury to rationally choose to believe the government’s story of the case and harbor no reasonable doubt in so doing.” Slip op. at 7. The Court concluded that the only evidence that the defendant knew that there was a drug deal happening or actually participated in the transaction came from the speculation of the officer that he was acting as lookout. Because the Court held that it is impermissible to allow speculation, “however grounded in experience, to substitute for evidence of knowledge and intent,” it granted the motion for acquittal. Id.

In the case at hand, I conclude that there was enough evidence independent of Grimbal’s speculation as to the nature of Brown’s role to justify the jury’s finding of conspiracy. Specifically, the evidence allows the inference that Brown expressly approved the sale of heroin to Grimbal. Valentine, dissatisfied with GrimbaTs statement of who he knew on the street, appealed to Brown: “This guy wants to buy a joint, but I don’t know him.” Brown expressed no surprise at the appeal, surveyed Grimbal, and told Valentine: “He looks all right to me.” The jury could infer from that portion of the interchange that Brown knew that Valentine was selling heroin and that Brown, despite that knowledge, was willing to help Valentine by offering advice and encouragement.

In response to Brown’s statement, Valentine turned to Grimbal and said: “Okay, but I’m going to leave it somewhere and you can pick it up.” Brown then interjected: “You don’t have to do that. Just go and get it for him. He looks all right to me. I will wait right here.” From this interchange, the jury could infer that Brown knew the location of Valentine’s source of heroin (he said “Go get it for him,” not “Give it to him”) and that that knowledge indicated some sort of prior understanding between the two. The jury could further infer an agreement from the fact that Valentine did precisely what Brown told him to do, i.e., he went to get the heroin and sold it to Grimbal.

In sum, there was sufficient evidence independent of GrimbaTs testimony for the jury to find, in accordance with the court’s instructions, that “the minds of [Valentine and Brown] met in an understanding way, and that they agreed ... to work together in furtherance of the unlawful scheme alleged in the indictment____” Jury instructions at 8. The jury’s inability to reach a verdict on the substantive count does not necessarily imply that the jury substituted GrimbaTs evidence for its own judgment.

As Judge Newman noted in his concurring opinion in United States v. Young, supra:

If the observed actions of a defendant do not establish a prima facie case, I do not believe that an expert’s opinion that his actions are criminal may carry the prosecution’s proof above the requisite line. It is one thing to permit a jury- to weigh that opinion in considering an otherwise adequate case; it is quite another matter to let that opinion salvage an otherwise insufficient case.

745 F.2d at 766 (Newman, J., concurring). The evidence in this case was sufficient to establish a prima facie case irrespective of GrimbaTs expert testimony. And drawing inferences from that evidence, the jury could properly conclude that Brown was guilty of conspiracy. Thus, GrimbaTs expert testimony was not necessary to “salvage an otherwise insufficient case.” It was merely another factor for the jury to weigh “in considering an otherwise adequate case.”

For the reasons discussed above, the defendant’s motion for a new trial or a judgment of acquittal is denied.

IT IS SO ORDERED.


author: PENCE, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Kenneth A. LEE, Defendant. UNITED STATES of America, Plaintiff, v. Rhonda WATSON, Defendant. UNITED STATES of America, Plaintiff, v. George M. ILAE, Defendant. UNITED STATES of America, Plaintiff, v. Enrilo D. UGALDE, Defendant. UNITED STATES of America, Plaintiff, v. Daniel J. COEN, Defendant. UNITED STATES of America, Plaintiff, v. John C. HOUCK, Defendant. UNITED STATES of America, Plaintiff, v. Heidemarie JOACQUIN, Defendant. UNITED STATES of America, Plaintiff, v. Clifford M. SHUE, Jr., Defendant. UNITED STATES of America, Plaintiff, v. Angela P. SOTO, Defendant. UNITED STATES of America, Plaintiff, v. Fernando LARONAL, Defendant. STATES of America, Plaintiff, v. L. ROBINSON, Defendant. UNITED STATES of America, Plaintiff, v. Roger L. DAVIS, Defendant.
    Cr. Nos. 84-00586, 84-02439, 84-02674, 84-03036, 84-03037, 84-03144, 84-03287, 84-03399, 84-03400, 84-03409 to 84-03411.
    United States District Court, D. Hawaii.
    Feb. 7, 1985.

      Daniel A. Bent, U.S. Atty., Mark J. Bennett, Asst., U.S. Atty., Honolulu, Hawaii for plaintiff.
    Kenneth Lee, pro se.
    Hayden Aluli, Asst. Federal Public Defender, Honolulu, Hawaii, for defendant Rhonda Watson.
    Heidemarie Joaquin, pro se.
    Clifford M. Shue, Jr., pro se.
    Angela P. Soto, pro se.
    Fernando Laronal, pro se.
    Thomas Robinson, pro se.
    Roger L. Davis, pro se.
    Rand Amen, Honolulu, Hawaii, for defendant George M. Ilae.
    Enrilo P. Ugalde, pro se.
    Daniel Coen, pro se.
    John C. Houck, pro se.
   DECISION

PENCE, District Judge.

This case involves the prosecution of civilians who allegedly violated vehicular traffic regulations on United States Air Force bases in Hawaii. The United States (Air Force) seeks to prosecute civilians through the United States District Court and to prosecute its military personnel through Air Force procedures. The United States District Court of Hawaii maintains a policy of accepting jurisdiction over traffic regulation cases occurring on military bases only if no distinction is made between its jurisdiction over, civilians and Air Force personnel on base.

Pursuant to the District Court’s above policy, and because the Air Force insisted on retaining jurisdiction over its Air Force personnel, United States Magistrate Bert S. Tokairin refused to hear the civilian traffic cases emanating from the Air Force Base, remanding those cases to the Air Force' Office of the Staff Judge Advocate. The Air Force now seeks a writ of mandamus and prohibition ordering Magistrate Tokairin to hear its civilian traffic cases and prohibiting him from making similar orders in the future. Alternatively, the Air Force seeks an appeal of Magistrate Tokairin’s Order remanding the cases. For the reasons stated below, the writ is DENIED and the appeal is DISMISSED.

I. Due Process

Due process under the Fifth Amendment of the United States Constitution includes freedom from selective prosecution based on an unjustifiable, arbitrary standard. United States v. Steele, 461 F.2d 1148, 1151 (9th Cir.1972) (selective prosecution for failure to complete federal census could not be based on exercise of free speech). Once evidence is presented that creates a strong inference of discriminatory prosecution, the government has the burden of showing that the selection process rests upon some valid ground. United States v. Steele, supra, 461 F.2d at 1152.

Here, the Air Force seeks to separate violators of its traffic regulations into two groups, civilian and military personnel. Civilians would be subject to prosecution in the District Court, which may and often does result in fines, an increase in automobile insurance premiums, and the suspension of a driver’s license. On the other hand, Air Force personnel, under the procedures of its own Office of the Staff Judge Advocate, might escape criminal adjudication completely. Disparate treatment of civilians and military personnel would result because the District Court would not know of the sentences or sanctions imposed upon military personnel, and would be unable to impose similar sentences upon civilians.

While such a disparity in adjudication might be valid in some situations, the Air Force has not offered any justification here. Negating the Air Force’s contentions, the Department of Defense (DoD) policy indicates that a distinction for traffic violations is unwarranted. 32 C.F.R. § 1290.5 (1984) states:

DoD Instruction 6055.4 requires that all traffic violations occurring on DoD installations be referred to the appropriate United States Magistrate, or State or local system magistrate, in the interest of impartial judicial determination and effective law enforcement. Exceptions will be made only for those rare violations in which military discipline is the paramount consideration, or where the Federal court system having jurisdiction has notified the PLFA commander it will not accept certain offenses for disposition. (Emphasis added.)

Thus, the distinction between treatment of civilians and military personnel now sought by the Air Force is unsupported by any justifiable basis and is contrary to the Department of Defense policy for achievement of impartial judicial determinations. The distinction now sought by the Air Force would deny civilians on its bases due process of law.

II. Writ of Mandamus

A writ of mandamus is an extraordinary remedy that is only granted in limited situations. A court will consider:

(1) whether the party seeking a writ has no other adequate means, such as direct appeal, to attain the relief he desires; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the [magistrate’s] order is clearly erroneous as a matter of law; (4) whether the [magistrate’s] order is an oft repeated error or manifests persistent disregard for the federal rules; and (5) whether the [magistrate’s] order raises new and important problems or issues of law of first impression.

City of Las Vegas v. Foley, 747 F.2d 1294, 1296 (9th Cir.1984) (quoting In re Cement Antitrust Litigation, 688 F.2d 1297, 1301 (9th Cir.1982), affd., 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983)).

First, the Air Force here does have other means to enforce traffic regulations against civilians. It may refer traffic violations to state or city magistrates, may refer all of its traffic violations to the United States District Court, or may retain jurisdiction for itself. Second, since the Air Force has other remedies available, the Air Force would not suffer irreparable damage by the denial of the writ. Third, and most important, Magistrate Tokairin’s order was not erroneous as a matter of law. If Magistrate Tokairin had attempted arbitrarily to distinguish the prosecutions of civilians merely because they were non-military, he would have violated the civilians’ right to due process. Fourth, Magistrate Tokairin was following the policy of the court, not disregarding it. And fifth, Magistrate Tokairin’s order did not raise new or important problems or issues of law, but, rather, enforced the civilians’ right to due process. Thus, mandamus is not warranted here.

Moreover, a writ of mandamus is an equitable remedy which a court, in its sound discretion, may refuse to grant where the remedy would work a public injury. United States ex rel. Greathouse v. Dern, 289 U.S. 352, 360, 53 S.Ct. 614, 617, 77 L.Ed. 1250 (1933). Here, the public would be injured if this court allowed the Air Force to prosecute civilians selectively, denying them due process, and impairing the administration of impartial justice. This court therefore refuses to issue a writ of mandamus and prohibition ordering Magistrate Tokairin to hear the Air Force’s civilian traffic cases in District Court and prohibiting him from issuing similar orders in the future.

III. Appeal

The Air Force alternatively requests that its motion for the issuance of the writ of mandamus be considered an appeal of Magistrate Tokairin’s order remanding the cases. 18 U.S.C. § 3401(a) (1984) provides a magistrate designated by the district court with jurisdiction to try persons accused of committing misdemeanors. United States v. Byers, 730 F.2d 568 (9th Cir.), cert. denied, — U.S. -, 105 S.Ct. 333, 83 L.Ed.2d 270 (1984). The Rules of Procedure for the Trial of Misdemeanors before United States Magistrates, promulgated in 1980 by the United States Supreme Court pursuant to 18 U.S.C. § 3402 (1969), reprinted in 18 U.S.C. 112 (1984 Supplement), governs the appeal of the magistrate’s orders in misdemeanor cases. Rule 7(a) provides that, inter alia, a decision or order by a magistrate is subject to appeal to the district court if a similar order by a judge of the district court would be subject to appeal.

The Air Force cites 18 U.S.C. § 3731 (1984) to show that Magistrate Tokairin’s order to remand the cases would be subject to appeal if it had been made by a district court. 18 U.S.C. § 3731 concerns orders dismissing an indictment or information and orders suppressing evidence, neither of which is relevant here. Magistrate Tokairin’s order did not dismiss the charges against the civilians, but rather remanded their cases back to the Air Force.

Moreover, even if Magistrate Tokairin’s order were subject to appeal, Rule 7(e) provides that “The scope of appeal shall be the same as on an appeal from a judgment of a district court to a court of appeals.” This court would find that Magistrate Tokairin did not err as a matter of law, and would affirm his order.

The Air Force also cites 28 U.S.C. § 636 (1984) to show that an appeal is justified. 28 U.S.C. § 636 provides that a party may serve and file written objections to a magistrate’s findings and recommendations, and that a district court shall make a de novo determination of those findings and recommendations. 28 U.S.C. § 636, however, only applies to pretrial matters, posttrial relief, and prison conditions.

IV. Conclusion

The Air Force’s Motion for a Writ of Mandamus is DENIED and its “appeal” is DISMISSED.