author: DONALD S. RUSSELL, Circuit Judge: PAYNE, District Judge,

text:
    Christine FISHBECK; Brian Horton; the Libertarian National Committee; the West Virginia Libertarian Party, Plaintiffs-Appellants, and Karl Hess, Plaintiff, v. Ken HECHLER, Secretary of State, Defendant-Appellee.
    No. 95-1951.
    United States Court of Appeals, Fourth Circuit.
    Argued May 6, 1996.
    Decided June 3, 1996.

      ARGUED: Robert Milton Bastress, Jr., West Virginia University College of Law, Morgantown, West Virginia, for Appellants. Daynus Jividen, Office of the Attorney General of West Virginia, Charleston, West Virginia, for Appellee.
    Before DONALD S. RUSSELL and MICHAEL, Circuit Judges, and PAYNE, United States District Judge for the Eastern District of Virginia, sitting by designation.
   Affirmed by published opinion. Judge DONALD S. RUSSELL wrote the majority opinion, in which Judge MICHAEL joined. Judge PAYNE wrote a dissenting opinion.

OPINION

DONALD S. RUSSELL, Circuit Judge:

The state and national Libertarian Party and two of its members challenge West Virginia’s primary-election-eve deadline for filing nominating petitions as an unconstitutional restriction on access to the ballot.

In 1992, the Libertarian Party (the “Party”) sought to place Karl Hess on the general election ballot in West Virginia as the Party’s candidate for governor. Because the Party had not accumulated one percent of the vote in the preceding gubernatorial election, West Virginia election law required the party to submit a nominating petition endorsed by a number of registered voters equal to one percent of the total voter turnout in the preceding gubernatorial election. W. Va. Code §§ 3-1-8 and 3-5-23. West Virginia law requires candidates for offices other than president or vice-president to submit such nominating petitions no later than the day preceding the primary, which is held on the second Tuesday in May. W. Va.Code §§ 3-5-1 and 3-5-24. West Virginia law also prohibits a registered voter who signs a nominating petition from voting in the next primary election. W. Va.Code § 3-5-23(c).

On or around March 1, 1992, the Party began its petition drive to collect the 6,533 signatures required to place Hess on the ballot. On May 11, 1992, the day before the 1992 primary election, the Party filed its petition with 11,159 signatures supporting Hess’ candidacy. The Secretary of State, Ken Heehler, subsequently declared 6,704 of the submitted signatures to be invalid. Of these, 2,574 signators were rejected because they had voted in the primary. The Secretary of State accepted only 4,455 signatures supporting Hess’ candidacy and thus disqualified the Libertarian Party from access to the 1992 gubernatorial ballot.

Upon learning in late July that it did not have enough signatures to place Hess on the ballot, the Party immediately restarted its ballot drive. Brian Horton, who had coordinated the failed petition drive, was replaced by two of the Party’s national directors. On August 3, 1992, the Party filed 4,821 additional signatures. The Secretary of State found only 2,202 of these additional signatures to be valid, but these signatures, in addition to 4,455 valid signatures submitted on May 11, were sufficient to meet the one-percent requirement. The Secretary of State, however, did not place Hess on the 1992 gubernatorial ballot because the Libertarian Party had not filed the requisite number of signatures by the day before the primary election.

On August 8, 1992, the plaintiffs filed this action in the United States District Court for the Southern District of West Virginia. The plaintiffs challenge West Virginia’s primary-eve deadline for filing nominating petitions as an unconstitutional restriction on access to the ballot. The plaintiffs do not challenge West Virginia’s requirement that registered voters choose between signing a nominating petition and voting in the primary election. Instead, they argue that the primary-eve filing deadline, in light of the forced-choice provision, is unconstitutional.

When considering a challenge to a state election law, a court must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiffs seek to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule....” Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983). In doing so, the corut must consider “the extent to which those interests make it necessary to burden the plaintiffs rights.” Id. The Court has stated:

[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized, when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” [Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992).] But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. [Anderson, 460 U.S. at 788, 103 S.Ct. at 1570.]

Burdick v. Takushi, 504 U.S. 428, 432-36, 112 S.Ct. 2059, 2063-64, 119 L.Ed.2d 245 (1992).

In a previous case, the district court considered and upheld the constitutionality of West Virginia’s primary-eve filing deadline. The district court held that “the burdens placed upon the challengers under West Virginia election laws are not great” and that ‘West Virginia has an important interest in requiring third party and independent candidates to demonstrate a modicum of community support before placing their names on its general election ballot.” Socialist Workers Party v. Hechler, 696 F.Supp. 190, 201-02 (S.D.W.Va.1988). On appeal, we affirmed the portion of the district court’s decision upholding the constitutionality of the primary-eve filing deadline. Socialist Workers Party v. Hechler, 890 F.2d 1303, 1305-07 (4th Cir.1989), cert. denied, 495 U.S. 932, 110 S.Ct. 2173, 109 L.Ed.2d 502 (1990).

In the instant ease, the Libertarian Party provided the district court with historical data of minor party access to the ballot in West Virginia throughout this century. To summarize, their evidence demonstrated that minor parties placed numerous candidates on the ballot for congressional and state offices in the election years before 1937. Between 1937 and 1980, no minor party candidate for Congressional or state office gained access to the ballot, and since 1980, only a handful of minor party candidates have been placed on the ballot. The plaintiffs correlated this historical data with the various changes in West Virginia’s election laws over the same period of time in an attempt to demonstrate that the primary-eve filing deadline is a severe burden on minor parties’ ability to gain access to the ballot.

In reviewing this historical evidence, we found that several facts undermined the conclusion that the Libertarian Party wanted us to draw. In 1932 and 1936, West Virginia election law included the same restrictions as the current code. In those years, West Virginia held its primary on the second Tuesday in May, and it imposed the primary-eve filing deadline and the forced-choice provision. Despite these restrictions, several dozen minor party candidates gained access to the ballot for congressional and statewide offices in 1932 and 1936. In 1984, furthermore, West Virginia suspended its primary-eve filing deadline, and minor party candidates could file nominating petitions as late as August. Despite the suspension of the deadline, only one minor party candidate gained access to the ballot for congressional and statewide offices, a decrease from the four minor candidates who gained access to the ballot for congressional and statewide offices in 1982, when West Virginia enforced the primary-eve filing deadline. If the primary-eve filing deadline was a severe burden on ballot access, as the plaintiffs claim, we would have expected to see far fewer minor party candidates on the ballot in the 1932 and 1936 elections and an explosion of minor party candidates in 1984. The plaintiffs’ historical evidence appears to demonstrate just the opposite.

The district court carefully analyzed the record submitted by the plaintiffs and held that West Virginia’s primary-eve filing deadline is not a severe restriction on minor parties’ access to the ballot, and it again upheld the constitutionality of the primary-eve filing deadline. After examining the record, considering the parties’ briefs, and hearing oral argument, we affirm on the thorough reasoning of the district court. See Hess v. Hechler, 925 F.Supp. 1140 (S.D.W.Va.1995).

AFFIRMED.

PAYNE, District Judge,

dissenting:

In Anderson, v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), the Supreme Court held that in evaluating restrictions imposed by the states on access to election ballots, the principal concern of the courts “is with the tendency of [those] ballot access restrictions ‘to limit the field of candidates from which voters might choose.’ ” Id. at 786, 103 S.Ct. at 1569 (quoting Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972)). Anderson underscored the acknowledgement made in Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) that “ ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’ ” Id. at 788, 103 S.Ct. at 1569 (quoting Storer v. Brown, 415 U.S. at 730, 94 S.Ct. at 1279).

The Court, in Anderson, also emphasized that challenges to specific provisions of state election laws cannot be resolved by application of any “litmus-paper test” but that “[i]n-stead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation.” Id. at 789, 103 S.Ct. at 1570. To that end, the Court instructed that:

It [the court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the state as justifications for the burden imposed by' its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiffs rights.

Id. at 789, 103 S.Ct. at 1570. After conducting that tripartite inquiry, “[t]he constitutionality of the challenged restriction is then to be made on the basis of a necessarily hard evaluative judgment of the relative weight of state interests and voters’ rights.” Cromer v. South Carolina, 917 F.2d 819, 823 (4th Cir.1990).

As the Supreme Court explained in Storer, the inevitable question for judgment becomes:

[I]n the context of [the state’s] politics, could a reasonably diligent independent candidate be expected to satisfy the signature requirements, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot? Past experience will be a helpful, if not always an unerring, guide: it will be one thing if independent candidates have qualified with some regularity and quite a different matter if they have not.

Storer v. Brown, 415 U.S. at 742, 94 S.Ct. at 1285 (emphasis added); see also Mandel v. Bradley, 432 U.S. 173, 177, 97 S.Ct. 2238, 2241, 53 L.Ed.2d 199 (1977) (emphasizing that this is the appropriate inquiry in the court’s analysis of the burden faced by potential candidates).

More recently, in Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), the Supreme Court prescribed a sliding scale analysis, pursuant to which:

[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions ” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions.

Burdick v. Takushi, 504 U.S. at 432-36, 112 S.Ct. at 2063-64 (citations omitted) (emphasis added).

I respectfully submit that, when considered within the foregoing framework and in light of this Court’s decision in Cromer v. South Carolina, 917 F.2d 819 (4th Cir.1990), the ballot access restrictions at issue here are severe and the interests proffered by the state are either constitutionally insignificant, not narrowly tailored, or both. For those reasons, I respectfully dissent.

A. The Severity Of the Burden

The majority opinion accurately summarizes the essential history and present status of the lack of success that minority parties and independent candidates have encountered in attempting to achieve access to the West Virginia general ballot. The district court’s opinion provides further details of that history consistent with that summary recitation. Nonetheless, to assess the severity of the burden imposed by the challenged West Virginia restrictions, it is helpful to augment the majority opinion’s discussion somewhat by referring to the findings of the district court.

It appears that the parties agree generally with the findings of the district court respecting the number of third party and independent candidates who actually appeared on the ballots of West Virginia over the years. Further, an examination of the record confirms that the findings made by the district court in that regard are fully supported by the record. Hence, it is appropriate briefly to summarize the findings of the district court.

1. From 1923 to 1932, the state conducted, alternatively, May and August primaries (held in May during presidential election years and on the first Tuesday in August of all other years). Independent and minor party candidates could gain access to the general election ballot through the petitioning process. The filing date for nominating positions was either 20 days after the primary or 30 days before the primary (depending upon an interpretation of conflicting code provisions) (J.A. 80-81).
2. In the four elections conducted between 1923 and 1931, there were 15 minor party candidates for state legislature, 17 for statewide offices and 7 for the United States Congress. Of these 39 candidates, 34 gained access to the ballot in presidential election years when the primary was held in May while only 5 were on the ballot in the off years when the primary was in August. (J.A. 81).
3. State law changed in 1932 respecting the process of obtaining nomination through the certification process. The primary date was moved to the second Tuesday in May for presidential election years and remained on the first Tuesday in August for non-presidential election years. The forced choice provision remained in effect as previously. (J.A. 81-82).
4. In the three elections held between 1932 and 1937, there were 35 candidates for the state legislature, 24 for statewide offices, 18 for United States Congress, and 5 for President. Seventy-seven candidates thus gained access to the ballot during that period. (J.A 82).
5. From 1937 to 1963, 18 elections were held. No independent or minor party candidate appeared on the general election ballot for any statewide office in any of the 13 elections in this 26 year period. Only one presidential candidate was on the ballot during that period, Henry Wallace, in 1948. (J.A. 83-84).
6. From 1964 through the election of 1978, the nonpresidential year primary was moved to May so that all primary elections occurred on the second Tuesday in May. Eight elections were held during that 14 year period, but no independent or minor party candidate appeared on the general election ballot for any state office and only one presidential candidate, George Wallace, in 1968, was on the ballot. (J.A. 84).
7. In 1978 the primary date was moved from the second Tuesday in May to the first Tuesday in June, effective 1980. (J.A. 84).
8. The certification process remained the same and there were no legislative changes until 1985. However, the West Virginia Supreme Court of Appeals decided West Virginia Libertarian Party v. Manchin, 165 W.Va. 206, 270 S.E.2d 634 (1980) which invalidad ed a number of the West Virginia voting law restrictions. In the next election, that of 1982, the forced choice provision and the primary eve filing deadline remained. However, in that year 4 minor party candidates succeeded in having their names placed on the ballot: two for the state legislature; one for the United States House of Representatives; and one for the United States Senate (J.A. 86).
9. As a result of the decision in Anderson v. Celebrezze, the June primary eve filing deadline was suspended. All candidates, therefore, had until August to file nominating certificates. Three minor party candidates for president were given access to the ballot for the 1984 election and one minor party candidate appeared on the ballot for United States Senate. No independent or minor party candidates were placed on the ballot for the state legislature or other statewide offices that year, however. (J.A. 86-87).
10. In 1985, the legislature changed the primary date from the first Tuesday in June to the second Tuesday in May, where it remains today. There were other legislative changes in 1985 and 1986; however, in the period between the last legislative changes in 1986 through the date of the district court’s decision in March 1995, there were four elections. Three independent or minor party candidates for president gained access to the ballot, one in 1988 and two in 1992. In 1986 and 1988, no independent or minor party candidate, however, appeared on the general election ballot as a nominee for either the state legislature, a statewide office or United States Congress. In 1990 and in 1992, there was one independent candidate for the state legislature. A second independent candidate for the state legislature qualified in 1992 but withdrew for unknown reasons. A third independent candidate paid the filing fee for state senate but did not appear on the ballot. (J.A. 88-89).

In sum, in the many elections since 1937 in which a spring filing deadline was in effect, only four candidates for president and vice-president and eight candidates for state offices have been successful in gaming access to the ballot. Of the eight candidates who did obtain access to the ballot for state office, only one was running for a statewide office. (J.A 48-51, ¶¶ 33-44).

Based on this historical data and the legislative changes made over time, the district court concluded that “the almost total lack of independent and minor party candidates on the general election ballots in the period between 1938 and 1980 was attributable to external forces.” On the other hand, the district court concluded that “[t]he data starting in 1984 thus suggests that a May filing deadline imposes some burden on independent and minor party candidates” (J.A 94) and that:

[i]t may similarly be said that the prohibition against both signing a nominating certificate and voting in the primary hindered the ability of the Libertarian Party to garner the signatures necessary for Hess by the May primary eve filing deadline [in 1992], It is reasonable to assume that many voters are reluctant to forego voting in the primary, particularly when the primary may be the decisive race for certain offices and their decision must in many instances be made before the positions of the major political party candidates are crystallized.

(J.A. 94). Then, in comparing signatures obtained by the Libertarian Party before the May 1992 primary and afterward, the district court reached the conclusion that “it follows that the forced choice provision appears to have hindered his [Hess’] ability to gain access to the ballot [in 1992].” (J.A. 94-95).

Finally, the district court concluded, once again on the basis of historical statistics and the history of changes in state election law, that “it cannot be said that under the current statutory framework, it is only rarely that an independent or minor party candidate succeeds in getting on the ballot when forced to meet a May primary eve filing deadline.” (J.A 93).

Notwithstanding the thoughtful analysis of the legislative evolution and historical data conducted by the district court, I am forced to conclude that the historical, statistical information since 1944, and particularly in the last decade, points strongly to the conclusion that West Virginia’s restrictions on ballot access results in a severe restriction and, more to the point, that the principal impediment to access is the combined effect of the primary eve filing deadline and the forced choice provision because, when those provisions have been absent, third party and independent candidates have achieved a measure of success in obtaining access to the ballot not demonstrated while those restrictions were in effect.

Indeed, a fair summary of the historical and statistical evidence, especially since 1984, is that, except when the ballot access provisions here challenged have been suspended or do not apply (as in the case of presidential elections), there have been no third party or independent candidates on West Virginia’s ballot for state offices and only a scant few for congressional offices. Further, third party and independent candidates in presidential elections achieved ballot access when those measures were suspended and have enjoyed regular access in the elections since the filing date for petitions in presidential elections was moved to August.

Additionally, there is substantial evidence of a non-historical, nonstatistical nature which demonstrates that the ballot access provisions here challenged have had, and continue to have, a severe effect. For exam-pie, the undisputed evidence is that West Virginia is the only state which combines primary eve filing with a forced choice provision. Also, the expert evidence of Richard Winger (stipulated by the parties as an expert who edits the publication entitled “Ballot Access News” and serves as a consultant on federal and state election law) recites that West Virginia’s ballot access laws make it the most inaccessible state in the country for third party and independent candidates. He also testified that, during the period of 1944 through the date of his affidavit, “no other state has had as few third party or independent candidates on the ballot for state office or for Congress as West Virginia.” Finally, William Redpath, the Nationwide Ballot Access Chair for the Libertarian Party, testified that, in his experience, West Virginia was the most difficult state in the country in which to qualify candidates for state offices. He demonstrated the truth of this assertion by showing the favorable results his party achieved in other states without the unique combination of restrictions here at issue.

This non-historical, non-statistical evidence appears not to have been taken into account in assessing the severity of the challenged ballot access restriction. That evidence, however, assumes particular importance in this ease because, as noted previously in footnote 1, the records which would show the pool of third party and independent aspirants who did not achieve ballot access over the years had been destroyed and was not available for comparison with the data demonstrating the dearth of third party and independent candidates. It is difficult, therefore, to ascribe dispositive significance to the statistical evidence related to that period. Moreover, the heart of the data upon which the district court’s opinion relies, namely, the relative success which third party and independent candidates had in accessing the ballot in 1932-1936, is relatively antiquated. Thus, the more contemporary analysis, manifested in the evidence given by these individuals, should be given credence.

Nor is it persuasive that the number of third party and independent candidates who achieved ballot access decreased from four in 1982 to one in 1984 when the primary eve deadline was moved to August because of the decision in Anderson. This decrease is not significant because the number of third-party and independent candidates in both of those years was so small in absolute terms when compared to the large number of possible statewide offices. Furthermore, considering the history of adversity encountered by third parties reflected in the record, I cannot take much comfort in positing that the one time suspension of the early deadline in 1984 should have produced more candidates than it actually did.

I respectfully submit that the effect of the historical, statistical data considered in perspective of the foregoing expert and firsthand evidence is sufficient to establish the existence of a severe restriction on ballot access, thereby necessitating the showing of a compelling state interest which, as discussed later, the state has not demonstrated.

At a minimum, the plaintiffs’ evidence was sufficient to shift the burden of going forward on the issue of severity to the Secretary of State, who failed to offer evidence to rebut the plaintiffs’ demonstration of severity, relying instead on speculative assertions that the admitted dearth of third party and independent candidates on West Virginia’s ballots, over a protracted period of time, was caused by other factors such as the general lack of interest in third parties during and after the Roosevelt era, the dominance of the Democratic Party in West Virginia, and the effect of various legislative changes. Considering the admonition of the Supreme Court in Anderson v. Celebrezze, that a court confronted with constitutional challenges to specific provisions of the state’s election law “must resolve such a challenge by an analytical process that parallels its work in ordinary litigation,” it cannot be said that the assertions made by the Secretary of State satisfies his obligation to meet the plaintiffs’ proof with proof under the familiar, now settled, principles of current summary judgment jurisprudence.

It also appears that the severity analysis was heavily influenced by the conclusion that “the Libertarian Party’s own lack of diligence contributed to its failure to meet the May filing deadline.” (J.A. 95). That conclusion, in turn, appears to be based:

(1) on the fact that the initial coordinator for the Libertarian Party’s pre-May petition drive had no previous experience;
(2) on the fact that 23% of the petitions submitted in May were invalidated as the result of a settlement agreement between the Libertarian Party and the Secretary of State respecting the alleged failure of the party’s solicitors to inform individuals from whom they solicited signatures, in accordance with state law, that they could not sign the petition and vote in the primary; and
(3) on the view that the Libertarian Party experienced an unsatisfactory validation rate compared to other candidates.

To the extent that the lack of diligence rationale is predicated on the inexperience of Horton, I respectfully submit that inexperience is not a lack of diligence. To the extent that the lack of diligence rationale is based on the results of the settlement agreement, I respectfully submit that the record is too insubstantial to permit an inference of non-diligence from the mere fact of settlement of a dispute over whether certain information was or was not given by the party’s solicitors. To the extent that inadequate diligence is founded on the assessment that the Libertarian Party’s validation rate was 30% to 40% lower than any group other than the Socialist Workers Party, I respectfully submit that it is without significance because, as the plaintiffs point out, the only other statewide petitioning effort in the 1992 election, which was more successful than the Libertarians, was that of Ross Perot who was placed on the ballot as a presidential candidate and those petitions were not due until August.

However, there is a more fundamental difficulty with the reliance on the plaintiffs’ purported lack of diligence in assessing the severity of the ballot restrictions. The concept of a “reasonably diligent candidate” comes from language in Storer v. Brown, where, in preface to its articulation of the requirements for assessing the severity of the state restriction, the Supreme Court explained that the inevitable judgment in ballot access cases was whether a reasonably diligent independent candidate could be expected to satisfy the challenged requirements. Storer v. Brown, 415 U.S. at 742, 94 S.Ct. at 1285. That statement simply establishes an objective standard against which to assess what could be achieved in the face of the ballot access restrictions at issue in a particular case. It does not, I respectfully submit, permit the use of a subjective standard in conducting the severity analysis because a lack of reasonable diligence would permit even the most egregious restrictions to survive and that is not, I think, what Storer intended. Nor is it consistent with the Court’s instruction that the primary concern in ballot access cases is the rights of the voter because a heavy focus on a specific candidate’s actual diligence precludes or,- at least distorts, the inquiry on the primary concern that permits consideration of a candidate’s diligence only in an objective sense.

Moreover, to consider the “reasonably diligent candidate” language in Storer as the ultimate determining factor, or even as a significant determining factor in the severity analysis, is to overlook the critical question which is whether independent or third party candidates have qualified with some regularity. As the Supreme Court directed in both Storer v. Brown and Mandel v. Bradley, that is the critical inquiry. Here, the record demonstrates convincingly that third party and independent candidates have not qualified with regularity, but have met with some of the greatest lack of success in the country. That, at a minimum, suggests that Horton’s inexperience had little, if anything, to do with the matter. Nor, is there merit to the contention of the Secretary of State that lack of diligence before the primary is proved by the fact that post-primary solicitations produced the requisite number of signatures in only two weeks. To the contrary, that only goes to show that it is easier to obtain signatures after the primary.

Finally, the severity analysis was based, in significant part, on the conclusion that there were several causes for the dearth of third party and independent candidates in addition to the combined effect of the primary eve filing deadline and the forced choice provision. The analysis seems to proceed from the premise that severity will obtain only where the challenged restrictions are solely responsible for the lack of ballot access. (J.A. 91-92). This approach, however, shifted the focus of decision to the question of causation in a way that required the plaintiffs to show that the principal, if not the sole, cause of the demonstrated dearth was the challenged provisions.

That approach, however, is inconsistent with the requirements of Anderson and Burdick because it requires more than the showing of a severe burden. Here, the undisputed record shows a lack of success, almost unique in the country. And, the plaintiffs produced substantial statistical evidence that the dismal showing took place when the challenged provisions were in effect, while showing also that the success factor was significantly different when the challenged restrictions did not apply (either by actual suspension or generally in the case of presidential elections). They also produced opinion evidence from Winger and Redpath that the disparate effect was produced by the challenged provisions. That, I respectfully submit, is sufficient to prove a severe burden.

B. The Asserted State Interests In Maintaining The Challenged Restrictions

The second part of the analysis requires assessment of West Virginia’s asserted interests in maintaining the May filing deadline. The three justifications offered to support the need for that deadline fail to justify it, under either the “important” state interest analysis which was followed by the district court, or under the “strict scrutiny” standard which, for the reasons set forth in Part A above, is warranted by the severity of the burden those restrictions impose.

In making the required determination, the court must first “identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.” Anderson, 460 U.S. at 789, 103 S.Ct. at 1570. After identifying those interests, “the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” Id. (emphasis added).

Under this standard, the rigorousness of the court’s inquiry into the propriety of the state’s restriction turns upon the extent of the burden placed upon a reasonably diligent candidate’s ability to gain access to the ballot. Burdick, 504 U.S. 428, 112 S.Ct. 2059. Where an election law places a severe burden on a reasonably diligent candidate’s access to the ballot, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Id. However, even where the regulation “imposes only reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters to choose their candidate, the state must still demonstrate that it has “important” regulatory interests sufficient to justify the restrictions. Id. Finally, even where a state interest is shown, whether compelling or important, the restriction must not be unnecessarily restrictive. Anderson v. Celebrezze, 460 U.S. at 806, 103 S.Ct. at 1579.

1. Ensuring A Modicum Of Support

First, the primary eve filing deadline has been justified on the ground that it insures that candidates on the election ballot have demonstrated at least “a modicum of support.” That interest, of course, has been identified by the Supreme Court as the fundamental interest which any state has in promulgating regulations that govern the administration of elections. As the Court explained:

the State has the undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with the names of frivolous candidates.

Anderson, 460 U.S. at 788 n. 9, 103 S.Ct. at 1570 n. 9 (citations omitted).

While the May 1 filing deadline may contribute in some way to ensure that third-party and independent candidates demonstrate a showing of support before the state permits their appearance on the ballot, the restriction cannot be said to be either “necessary” or “narrowly tailored” to serve this interest. Since 1984 when Anderson was decided, West Virginia has operated successfully under a requirement that third party and independent presidential candidates must file petitions on August 1. History shows that this has adequately served the state’s interest in avoiding a ballot “encumbered” by insignificant candidates. The state has neither asserted otherwise nor offered any reason why an August 1 deadline would not equally serve the state’s interest in requiring state candidates to show a “modicum of support.” Under such a circumstance, the Supreme Court has admonished that:

[E]ven when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty. “Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.

Anderson, 460 U.S. at 806, 103 S.Ct. at 1579 (citations omitted). Accordingly, where, as here, there are two approaches which equally serve the legitimate interests of the state, and one of those methods is less burdensome upon the exercise of a basic constitutional right, the more burdensome approach, if adopted by the state, is not constitutionally permissible.

2. Equal Treatment

Second, the May filing deadline has been justified on the ground that it serves to place all candidates upon “equal footing” by equally exposing them to the scrutiny of the public eye and to negative campaigns put forth by other candidates who emerge from the May primaries. While the state may have an interest in promoting such equal treatment, reliance on the May 1 filing date to achieve that end is substantially undercut by other provisions of West Virginia’s code which effectively serve that interest without impermissibly burdening the plaintiffs as does the May 1 deadline. West Virginia Code § 3-5-23(a) provides:

Group of citizens having no party organization may nominate candidates for public office otherwise than by conventions or primary elections. In such case, the candidate or candidates, jointly or severally, shall file a declaration with the secretary of state if the office is to be filled by the voters of more than one county, or with the clerk of the circuit court of the county if the office is to be filled by the voters of one county or political subdivision thereof; such declaration to filed at least thirty days prior to the time of filing the certificate provided by section twenty four [§ 3-5-2Jp] of this article.

(Emphasis added.) As a consequence of this section, potential third party and independent candidates must step into the public forum well before the May primary and, although it is not certain that they will ultimately appear on the ballot, they will, nevertheless, be known as potential candidates by the public, the media, and their adversaries. Thus, any supposed strategic advantages which may inure to third party or independent candidates as a result of the institution of a deadline after the May primary, are eliminated by virtue of the equally effective, but far less restrictive, statutory control present in § 3-5-23 which already serves to foreclose those potential problems. Moreover, there has been no showing that the August date for filing in presidential elections has resulted in the adverse consequences apprehended, but not shown, by the state.

3. Voter Education

Finally, the May filing deadline also has been held out to serve the state interest in ensuring that voters are in a position to cast their ballot in an informed and intelligent manner. “There can be no question about the legitimacy of the State’s interest in fostering informed and educated expressions of the popular mil in a general election.” Anderson, 460 U.S. at 796, 103 S.Ct. at 1574. However, for the reasons set forth above, it would appear that an individual’s declaration of candidacy under § 3-5-23 would still serve to let the public know of the individual’s intent to run and would provide to voters an adequate opportunity to thoughtfully consider the candidate’s views and thereby cast an informed vote even if the filing deadline for petitions in nonpresidential elections was moved to August.

Furthermore, the Supreme Court has recognized that the effect of the drastic changes in communications technology, the literacy rate, and the degree to which citizens are informed about events and issues lessen the need for the state to provide broad protections to ensure voter education. Anderson, 460 U.S. at 796-97, 103 S.Ct. at 1573-74 Indeed, in Dunn v. Blumstein, 405 U.S. 330, 358, 92 S.Ct. 995, 1011, 31 L.Ed.2d 274 (1972) the Court rejected the rationale posited by the state to justify a statute requiring residence in the state for a year and in the county for three months as a prerequisite to voter registration because:

Given modem communications, and given the clear indication that campaign spending and voter education occur largely during the month before an election, the State cannot seriously maintain that it is ‘necessary’ to reside for a year in the State and three months in the county in order to be knowledgeable about congressional, state, or even purely local elections.

(Emphasis added.) The recent decision of this Court in Cromer v. South Carolina, 917 F.2d 819 (4th Cir.1990), reinforces this view. There, the Court held that while “no constitutional maximum or minimum has been developed,” a decent interval for voter education is about 60 to 90 days before a general election. Id. at 825. “Beyond that period, some other interest would seem to be needed to justify an earlier declaration of independent candidacy.” Id.

Here, the state has failed to offer any reason why the period from August to November is insufficient to allow voters to learn about the candidates and to cast a vote on an informed basis. Consequently, in light of both Supreme Court precedent and this Court’s decision in Cromer, this justification for the May filing deadline fails to outweigh the constitutional burden it creates. Hence, it is constitutionally impermissible.

For the foregoing reasons, I would strike the challenged provisions of West Virginia’s ballot access restriction law.

      . The plaintiffs are the Libertarian Party National Committee; the West Virginia Libertarian Party; Brian Horton, the West Virginia Libertarian Party Chairman, the coordinator of the West Virginia Libertarian Party's petition drive in 1992, and the Libertarian Party’s candidate for West Virginia State Auditor in 1992; and Christine Fishbeck, a member of the Libertarian Party. Karl Hess, the Libertarian Party’s candidate for West Virginia governor in 1992 was originally a plaintiff; he died in 1994.

      . Nominating petitions for candidates for president or vice-president must be submitted by August 1 in the year of the election. W. Va.Code § 3-5-23(a).

      .Under West Virginia law, persons soliciting signatures for a nominating petition must inform each potential signator that signing the petition disqualifies him or her from participating in the primary election. W. Va.Code § 3-5-23(c). After the Secretary of State received complaints that the Party's solicitors were not always informing prospective signators of their disqualification from voting in the primary, Hess agreed to allow the Secretary of State to void all signators who subsequently voted in the 1992 primary.

      . Before undertaking that exposition, it is appropriate to note that, because many of the records respecting the filings made over time by third parties and independent candidates were destroyed accidentally by the state, the plaintiff was unable to compile an analysis which compared the data of the total number of those who have filed a notice that they intended to seek access to the ballot with those who have been placed on the ballot. Additionally, although it was possible theoretically for the plaintiffs to search the records of the various county courthouses in West Virginia for filing information, the burden of that undertaking was beyond the reach of the plaintiffs' resources. In any event, it is doubtful that a plaintiff is required to go to that extent.

      . The district court correctly concluded, contrary to the assertion of the Secretary of State, that the decision of this Court in Socialist Workers Party v. Hechler, 890 F.2d 1303 (4th Cir.1989), does not control the facts presented by this case because the plaintiffs here presented a factual record not before the Court in Socialist Workers Party.

      . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986).

      . That is not to say that a lack of diligence is always irrelevant. See Socialist Workers Party v. Hechler, 890 F.2d 1303 (4th Cir.1989). Those circumstances are not present here, however.


source: Caselaw Access Project

author: WILKINSON, Chief Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arnold L.H. AMBERS, Jr., a/k/a Heavy, Defendant-Appellant.
    No. 95-5464.
    United States Court of Appeals, Fourth Circuit.
    Argued April 5, 1996.
    Decided June 3, 1996.

      ARGUED: John F. McGarvey, Richmond, Virginia, for Appellant. John A Horn, Law Intern, University of Virginia School of Law, Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Jean B. Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee.
    Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and BUTZNER, Senior Circuit Judge.
   Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge MICHAEL and Senior Judge BUTZNER joined.

OPINION

WILKINSON, Chief Judge:

Appellant Arnold L.H. Ambers, Jr. was convicted of conspiracy to possess and distribute crack cocaine, and was sentenced to 248 months in prison. On appeal, Ambers asserts that the district court abused its discretion by barring him from discussing the operation of the Sentencing Guidelines when cross-examining government witnesses. He also challenges his sentence, alleging that he should have received a downward departure under 18 U.S.C. § 3553(b), and that enhancing his sentence based on a prior conviction violated the Double Jeopardy Clause. We affirm in all respects.

I.

On September 8,1994, a grand jury indicted Ambers and several other individuals of conspiracy to possess and distribute crack cocaine. 21 U.S.C. § 841(a)(1). Trial began on February 13, 1995. During his opening statement, Ambers’ counsel called into question the motivation of several government witnesses who were to testify after having executed plea agreements:

They will be testifying because they are getting something out of it, and the something that anybody who is charged in these eases is going to get out of it is the hope of what is called a 5K1.
Now, when someone is charged with conspiracy, that carries ten to life. Under the facts as presented by the United States Attorney’s office, what the majority of these people are going to be coming in at is over 1.5 kilograms of crack cocaine. That is what is called Level 38. Now, Level 38____

The government objected at this point, and the district judge instructed Ambers’ counsel that “I’m not going to permit you to argue penalty.”

The judge clarified his position in a conference in chambers. “[T]he defense is certainly entitled to show that there is a serious potential penalty afflicting or potentially afflicting these witnesses,” he advised. He thus thought it “proper to inquire about whether they’re facing a serious penalty, and serious in terms of time in prison, so on,” including “the fact that the penalty is ten years to life.” But, he cautioned, “[wje’re not going into the Sentencing Guidelines at all,” because such a discussion would only confuse the jury.

During the trial, the government sought to establish that Ambers supplied crack cocaine to a large distribution ring in Fluvanna County, Virginia. Several law enforcement officers described Ambers’ role in the drug conspiracy. The government also presented the testimony of thirteen witnesses who had executed plea agreements, many of whom were co-conspirators. Some testified that they had bought crack cocaine from Ambers, others that they had seen Ambers sell crack cocaine, and others that they had heard that Ambers supplied crack cocaine to local dealers.

In his cross-examination of these witnesses, Ambers’, counsel asked whether they hoped to gain favorable sentencing treatment as a result of their testimony. He questioned several about the nature of their plea agreements, including the minimum and maximum penalties for their offenses. He also asked about provisions in their plea agreements allowing for a reduced sentence under U.S.S.G. § 5K1.1 for providing “substantial assistance” to the government. In addition, Ambers’ counsel introduced into evidence the plea agreements of seven of the witnesses.

On February 16, 1995, the jury found Ambers guilty of conspiring to distribute crack cocaine. The sentencing hearing was held on May 26. The applicable range under the Sentencing Guidelines for Ambers’ offense was 235 to 292 months in prison. Ambers, though, had a prior conviction in 1989 for possession of cocaine with intent to distribute, and was thus subject to a minimum sentence under 21 U.S.C. § 841(b)(1)(A) of 240 months. The district judge imposed a sentence of 248 months. Ambers appeals both his conviction and his sentence.

II.

Ambers’ first claim is that the district judge improperly prevented him from questioning government witnesses about the precise effect of the Sentencing Guidelines on their pending sentences. Consequently, Ambers alleges, he was unable to sufficiently expose a possible motivation for their testimony. We disagree. A district court’s restrictions on cross-examination are reviewed for abuse of discretion. See United States v. Piche, 981 F.2d 706, 716 (4th Cir.1992), cert. denied, 508 U.S. 916, 113 S.Ct. 2356, 124 L.Ed.2d 264 (1993). Here, the district court acted within the scope of its considerable discretion in fashioning the reach of Ambers’ cross-examination.

To be sure, “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). Nevertheless, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986); see United States v. Morsley, 64 F.3d 907, 918 n. 10 (4th Cir.1995) (commenting on “the broad latitude afforded a trial judge in controlling cross-examination”), cert. denied, — U.S. -, 116 S.Ct. 749, 133 L.Ed.2d 697 (1996).

These same principles hold true when cross-examination pertains to the motivation of a witness testifying for the govermnent. Based on the sorts of concerns mentioned above, trial judges have sometimes exercised their broad discretion to limit inquiry into the potential sentences faced by a cooperating witness. See United States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir.1995) (upholding restriction of cross-examination on penalty witness would have faced had government not dropped charges); United States v. Nelson, 39 F.3d 705, 707-09 (7th Cir.1994) (upholding restriction of cross-examination on penalty witness would have faced without executing plea agreement); Brown v. Powell, 975 F.2d 1 (1st Cir.1992) (same), cert. dismissed, 506 U.S. 1073, 113 S.Ct. 1035, 122 L.Ed.2d 179 (1993); United States v. Dadanian, 818 F.2d 1443, 1449 (9th Cir.1987) (same), modified on other grounds, 856 F.2d 1391 (1988).

The critical question, we have observed, is whether the defendant is allowed an opportunity to examine a witness “ ‘subjective understanding of his bargain with the government,’ ” “for it is this understanding which is of probative value on the issue of bias.” Hoover v. Maryland, 714 F.2d 301, 305, 306 (4th Cir.1983). Here, Ambers had ample freedom to explore the government witnesses’ subjective motive for testifying. His counsel asked the witnesses whether they were testifying to gain a reduced sentence, quizzed them about their understanding of the substantial assistance reduction under U.S.S.G. § 5K1.1, questioned them about their plea agreements, and asked them about the penalties they faced. He also requested that they read from their plea agreements and entered several of the agreements into evidence. In his closing argument, Ambers’ counsel asserted: “Every one of those witnesses had an absolute motive to lie. Every one of them knew the scenario. Every one of them knew what ultimately had to be said to get that substantial assistance motion, and every one of them did it.”

The sole restriction imposed on Ambers was on examining precisely how a witness’ potential sentencing reduction fit into the structure of the Sentencing Guidelines. He could not explain, for instance, that a witness facing a sentence of ten years to life was being treated as a “Level 38” offender. This limitation was simply meant to avoid distracting the jury with a technical analysis of the Guidelines, an analysis that would shed little light on a witness’ subjective understanding of his plea agreement. Such grounds for controlling cross-examination are appropriate. Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435 (allowing restrictions designed to prevent “confusion of the issues” and “repetitive” questioning). When faced with identical circumstances, the Second Circuit ruled:

We also reject the contention that the trial court erred when it barred the questioning of cooperating witnesses as to what effect the Guidelines would have on their sentences. The court permitted cross-examination of those witnesses as to their plea agreements, the statutory maximum sentences they faced, and the benefits they hoped to gain from cooperation. The court was well within its discretion in ruling that the vagaries of Guidelines calculations were not a proper subject for cross-examination.

United States v. Rosa, 11 F.3d 315, 336 (2d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994).

We agree with this reasoning. To entitle defense counsel to explore the intricacies of the Guidelines scheme on cross-examination might do much to confuse lay jurors and little to enlighten them. The district court allowed Ambers abundant opportunity to explore the motivation of the government witnesses in testifying. The court plainly did not abuse its discretion in preventing Ambers from delving into the details of the Sentencing Guidelines.

III.

In his second assignment of error, Ambers asserts that he should have received a downward departure in his sentence under 18 U.S.C. § 3553(b). That provision authorizes departure where “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b); see U.S.S.G. § 5K2.0. Ambers bases his argument on the Commission’s recent recommendation that Congress abolish the sentencing distinction in the Guidelines between crack and powder cocaine, a recommendation that Congress has since rejected. See Pub.L. No. 104-38, 109 Stat. 334 (1995). The Commission’s proposal, Ambers contends, illustrates that it had failed to consider the appropriateness of the crack-powder distinction when initially drafting the Guidelines.

Ambers’ claim fails for many reasons. Simply because the Commission proposes a revision does not mean that it failed adequately to consider the existing policy; the Commission did consider the crack-powder distinction when formulating the Guidelines. See United States v. Alton, 60 F.3d 1065, 1068-69 (3d Cir.), cert. denied, — U.S. -, 116 S.Ct. 576, 133 L.Ed.2d 500 (1995). And at any rate, the broad issue of proper sentencing levels for crack cocaine offenses does not involve the sort of individual, case-specific mitigating circumstance justifying a departure under 18 U.S.C. § 3553(b). See United States v. Bynum, 3 F.3d 769, 775 (4th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1105, 127 L.Ed.2d 416 (1994). Finally, Congress has rejected the Commission’s recommendation to abolish the crack-powder distinction, voting instead to preserve the higher sentences for crack-related crimes. Pub.L. No. 104-38, 109 Stat. 334 (1995). And “every appellate court that has considered the matter has held that the impact of the guideline treatment of crack cocaine is not a proper ground for downward departures.” Alton, 60 F.3d at 1070; see Bynum, 3 F.3d at 769, 774-75. For these reasons, Ambers plainly does not qualify for a downward departure under 18 U.S.C. § 3553(b).

IV.

Ambers also challenges his sentence on double jeopardy grounds. His argument stems from the use of his 1989 conviction to subject him to the mandatory minimum sentence prescribed by 21 U.S.C. § 841(b)(1)(A). The prior offense, Ambers observes, was one of the overt acts supporting the conspiracy charge against him. Use of that same offense to enhance his sentence under the mandatory minimum statute, Ambers asserts, amounts to punishing him twice for the same conduct, in violation of double jeopardy principles.

This argument, however, misconceives the nature of a conspiracy offense. A conspiracy is a distinct crime from the overt acts that support it. See United States v. Felix, 503 U.S. 378, 389-92, 112 S.Ct. 1377, 1384-86, 118 L.Ed.2d 25 (1992); United States v. Bayer, 331 U.S. 532, 542, 67 S.Ct. 1394, 1399, 91 L.Ed. 1654 (1947) (“the same overt acts charged in a conspiracy count may also be charged and proved as substantive offenses”). As a result, “prosecution of a defendant for conspiracy, where certain of the overt acts relied upon by the Government are based on substantive offenses for which the defendant has been previously convicted, does not violate the Double Jeopardy Clause.” Felix, 503 U.S. at 380-81, 112 S.Ct. at 1380.

Enhancing the sentence for conspiracy because of a prior conviction, where one of the overt acts supporting the conspiracy resulted in the prior conviction, likewise presents no double jeopardy problem. The enhancement increases the sentence for the current offense (conspiracy), not the sentence for the distinct, prior offense: “Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes which are common place in state criminal laws, do not change the penalty imposed for the earlier conviction.” Nichols v. United States, — U.S. -, -, 114 S.Ct. 1921, 1927, 128 L.Ed.2d 745 (1994); see Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258-59, 92 L.Ed. 1683 (1948). Based on this logic, the Supreme Court has consistently rejected double jeopardy challenges to sentencing schemes that enhance a defendant’s sentence because of a prior conviction. Witte v. United States, — U.S. -, -, 115 S.Ct. 2199, 2206, 132 L.Ed.2d 351 (1995).

The application of 21 U.S.C. § 841(b)(1)(A) against Ambers thus does not punish him twice for the same offense. His conspiracy offense and his prior offense are distinct crimes. The statute simply increases the sentencing range for his current conviction based on a distinct, prior offense, the sort of penalty enhancement that presents no double jeopardy issue.

y.

For the foregoing reasons, the judgment in this ease is

AFFIRMED.

       Some of the questions Ambers' counsel asked of various witnesses include: "I think you said you're here today trying to help yourself; correct?” ... "So you do expect to gain something out of your testimony for this?”; “And you agreed to give truthful testimony in the hopes of receiving a 5K1?”; "Within that plea agreement it indicates that if you cooperate with the government, you will receive what’s called ... a 5K1 motion; is that correct?”; "[P]art of why you’re here today is to get what's called a 5K1 motion; is that correct?”; “[D]o you understand what a 5K1 motion is?”; "[Y]ou read over your plea agreement; is that correct? ... And when [the U.S. Attorney] was asking you whether or not you expected to get something out of this, you were made aware of what the ... penalties are here?”; "The minimum mandatory and maximum penalties for this offense [are] ... ten to life; is that correct?”; "[Y]ou testified here today that you had hopes that someone would be lenient on you as far as time; is that correct?”


author: WILKINS, Circuit Judge:

text:
    Larry Jerome BROOKS, Plaintiff-Appellant, v. CITY OF WINSTON-SALEM, NORTH CAROLINA; M.N. Barker, individually and as a City Police Officer, Defendants-Appellees.
    No. 94-7063.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 31, 1996.
    Decided June 3, 1996.

      ARGUED: Romallus Olga Murphy, Sr., Greensboro, North Carolina, for Appellant. Ursula Marie Henninger, Womble, Carlyle, Sandridge & Rice, P.L.L.C., Winston-Salem, North Carolina, for Appellees. ON BRIEF: Gusti W. Frankel, Womble, Carlyle, Sandridge & Rice, P.L.L.C., Winston-Salem, North Carolina, .for Appellees.
    Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.
   Affirmed in part, reversed in part, and remanded for farther proceedings by published opinion. Judge WILKINS wrote the opinion, in which Judge NIEMEYER and Judge MICHAEL joined.

OPINION

WILKINS, Circuit Judge:

Larry Jerome Brooks brought this action pursuant to 42 U.S.CA. § 1983 (West 1994), seeking monetary damages for alleged violations of his rights under the Fourth, Fifth, and Fourteenth Amendments in connection with his arrest and prosecution on state criminal charges. Concluding that Brooks’ action was barred by the applicable statute of limitations, the magistrate judge entered judgment in favor of Appellees, the City of Winston-Salem, North Carolina, and the arresting officer, M.N. Barker, in his individual and official capacities. We affirm in part, reverse in part, and remand for further proceedings.

I.

Brooks was arrested on charges of kidnapping, rape, and other sexual offenses on June 28, 1989. He vigorously asserted his innocence and offered to submit to polygraph and DNA testing. The charges against him were ultimately dismissed by a state prosecuting attorney on February 18, 1991. Almost three years later, on February 17, 1994, Brooks filed this lawsuit. His first cause of action charged that Officer Barker violated his rights under the Fourth and Fourteenth Amendments by illegally seizing him without probable cause and his rights under the Fifth and Fourteenth Amendments by depriving him of liberty without due process of law. He further maintained that Officer Barker should have attempted to have the criminal proceedings terminated after he knew or should have known that Brooks had not committed the offenses. His second cause of action charged that the City maintained policies of failing to adequately train, supervise, and control officers in investigation and arrest procedures.

The magistrate judge granted Appellees’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), reasoning that Brooks’ action was time barred because he had not filed it within three years of the date of his arrest. Brooks appeals, claiming that his action was timely with respect to Officer Barker because it was filed within three years of the date the charges were dismissed.

II.

We review de novo the decision of the lower court to grant a motion to dismiss pursuant to Rule 12(b)(6), recognizing that dismissal is inappropriate unless, accepting as true the well-pleaded facts in the complaint and viewing them in the light most favorable to the plaintiff, “it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.” Mylan Lab., Inc. v. Matkari, 7 F.3d 1130, 1134 & n. 4 (4th Cir.1993) (internal quotation marks omitted), cert. denied, — U.S. -, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994). Although a motion pursuant to Rule 12(b)(6) invites an inquiry into the legal sufficiency of the complaint, not an analysis of potential defenses to the claims set forth therein, dismissal nevertheless is appropriate when the face of the complaint clearly reveals the existence of a meritorious affirmative defense. Richmond, F. & P. R.R. v. Forst, 4 F.3d 244, 250 (4th Cir.1993). See generally 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 352 (1990) (“A complaint showing that the statute of limitations has run on the claim is the most common situation in which the affirmative defense appears on the face of the pleading,” rendering dismissal appropriate.)

The parties agree that because the state limitations period governing a claim for damages for personal injuries applies to a § 1983 action, regardless of the allegations in the complaint, the three-year statute of limitations set forth in N.C.Gen.Stat. § 1-52(5) (1995) controls. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985); National Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1161— 62 & n. 2 (4th Cir.1991), cert. denied, 504 U.S. 931, 112 S.Ct. 1997, 118 L.Ed.2d 593 (1992). Thus, the first question before us is when the limitations period began to run.

Although the applicable state statute of limitations supplies the length of the limitations period in a § 1983 action, the time of accrual of the cause of action is a matter of federal law. Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 955 (4th Cir.1995) (en banc), cert. denied, — U.S. -, 116 S.Ct. 1273, 134 L.Ed.2d 219 (1996). “Under federal law a cause of action accrues when the plaintiff possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action.” Id. In order to determine when a claimant possessed sufficient facts to know or have reason to know of the alleged injury, we may look to the common-law cause of action most closely analogous to the constitutional right at stake as an “‘appropriate starting point.’” Heck v. Humphrey, — U.S. -, - - -, 114 S.Ct. 2364, 2370-71, 129 L.Ed.2d 383 (1994) (quoting Carey v. Piphus, 435 U.S. 247, 258, 98 S.Ct. 1042, 1049, 55 L.Ed.2d 252 (1978)); Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir.1995).

Viewed in the light most favorable to Brooks, his complaint alleges that his seizure was unreasonable and that he was deprived of due process, in violation of the Fourth and Fourteenth Amendments, because his arrest was not supported by probable cause and because his prosecution was continued after it was apparent that he was innocent. These claims are analogous to two common-law causes of action — false arrest and malicious prosecution. Heck, — U.S. at -, 114 S.Ct. at 2371. At common law, allegations that a warrantless arrest or imprisonment was not supported by probable cause advanced a claim of false arrest or imprisonment. See id.; Calero-Colon, 68 F.3d at 3-4; Singer v. Fulton County Sheriff, 63 F.3d 110, 117 (2d Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996). A claim of false arrest permitted the recovery of damages from “ ‘the time of detention up until issuance of process or arraignment, but not more.’” Heck, — U.S. at -, 114 S.Ct. at 2371 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 119, at 888 (5th ed. 1984)); Calero-Colon, 68 F.3d at 4; Singer, 63 F.3d at 117. However, allegations that an arrest made pursuant to a warrant was not supported by probable cause, or claims seeking damages for the period after legal process issued, are analogous to the common-law tort of malicious prosecution. Heck, — U.S. at -, 114 S.Ct. at 2371; Calero-Colon, 68 F.3d at 4; Singer, 63 F.3d at 117. Because the allegations contained in Brooks’ complaint do not specify whether his arrest was made pursuant to a warrant, we consider the timeliness of Brooks’ claims under both scenarios.

A.

The magistrate judge apparently viewed Brooks’ § 1983 complaint as alleging an unlawful warrantless arrest and held that such a claim accrued on the date of his arrest. We agree that this was the appropriate time of accrual of Brooks’ claim to the extent that it charges a warrantless arrest unsupported by probable cause. There is no question that on the day of his arrest Brooks knew or should have known both of the injury resulting from his allegedly illegal seizure and who was responsible for any injury. See Nasim, 64 F.3d at 955. This conclusion accords with the decisions of the other courts of appeals that have addressed the question. See Davis v. Ross, 995 F.2d 137, 138 (8th Cir.1993) (per curiam); Johnson v. Johnson County Comm’n Bd., 925 F.2d 1299, 1300-01 (10th Cir.1991); Rose v. Bartle, 871 F.2d 331, 350-51 (3d Cir.1989); McCune v. City of Grand Rapids, 842 F.2d 903, 906 (6th Cir.1988); Mack v. Varelas, 835 F.2d 995, 999-1000 (2d Cir.1987); Davis v. Harvey, 789 F.2d 1332, 1333 n. 1 (9th Cir.1986); Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir.1971).

Brooks asserts, however, that the recent Supreme Court decision in Heck v. Humphrey, - U.S. -, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), dictates a different conclusion. Under Heck, Brooks maintains, a cause of action alleging an unconstitutional seizure accomplished by a warrantless arrest without probable cause does not accrue until the criminal proceedings against the accused are terminated in his favor.

In Heck, the Supreme Court held:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus....

Id. at -, 114 S.Ct. at 2372 (footnote omitted). The Court explained that this holding meant that a § 1983 cause of action seeking monetary damages attributable to a conviction or sentence and raising challenges that necessarily would implicate the validity of a plaintiff’s conviction or sentence does not accrue until that conviction or sentence is reversed, etc. Id. at 2372-74.

We do not read Heck to compel a conclusion that all claims of unconstitutional seizure accrue only upon a termination of the criminal proceedings favorable to the § 1983 plaintiff. Heck did not purport to address the accrual of a § 1983 cause of action for damages resulting from actions that would not implicate the validity of a conviction or sentence. And, a charge that probable cause for a warrantless arrest was lacking, and thus that the seizure was unconstitutional, would not necessarily implicate the validity of a subsequently obtained conviction — at least in the usual case. See Simpson v. Rowan, 73 F.3d 134, 135-36 (7th Cir.1995); cf. Heck, — U.S. at - n. 6, 114 S.Ct. at 2372 n. 6 (setting forth an example of a claim of unconstitutional warrantless seizure that necessarily would implicate the validity of a conviction and thus would not accrue until the conviction is set aside or other favorable termination of the criminal proceeding is obtained). Further, as the Heck Court specifically explained, a § 1983 action that would not render a conviction or sentence invalid and that seeks to recover damages other than those resulting from conviction or sentence was cognizable and could proceed, assuming no other bar to the action was present, even though the plaintiffs conviction or sentence had not been reversed. Id. at - & n. 7, 114 S.Ct. at 2372 & n. 7. We gather that if such claims properly may go forward, despite the lack of a disposition of the criminal charges that is favorable to the § 1983 plaintiff, then these claims must have accrued.

In sum, we do not read Heck as altering the general rule that a § 1983 claim seeking damages for an allegedly unconstitutional warrantless arrest accrues when the plaintiff knows or should know of the injury—except in the limited circumstances, not present here, when a § 1983 plaintiffs success on a claim that a warrantless arrest was not supported by probable cause necessarily would implicate the validity of the plaintiffs conviction or sentence. See Simpson, 73 F.3d at 136; Wells v. Bonner, 45 F.3d 90, 95 (5th Cir.1995); Woods v. Candela, 47 F.3d 545, 546 (2d Cir.) (per curiam), cert. denied, — U.S. -, 116 S.Ct. 54, 133 L.Ed.2d 18 (1995). Thus, to the extent that Brooks’ complaint may be read to allege an unconstitutional warrantless arrest, his claim is time barred.

B.

Viewed in the light most favorable to Brooks, the allegations in his complaint may also be construed as seeking monetary damages, occurring after the issuance of process or arraignment, for an unconstitutional seizure that was accomplished pursuant to a warrant and was prolonged after Officer Barker knew or should have known Brooks was innocent. Because § 1983 actions seeking damages for unconstitutional arrest or confinement imposed pursuant to legal process—claims most analogous to the common-law tort of malicious prosecution—must allege and prove a termination of the criminal proceedings favorable to the accused, such claims do not accrue until a favorable termination is obtained. Heck, — U.S. at -, 114 S.Ct. at 2371; Morrison v. Jones, 551 F.2d 939, 940-41 (4th Cir.1977); accord Simpson, 73 F.3d at 136 n. 4; Calero-Colon, 68 F.3d at 3-4; Singer, 63 F.3d at 117-18. Consequently, the claim against Officer Barker is not time barred to the extent that Brooks alleges that his arrest warrant—applied for and executed by Officer Barker— was not supported by probable cause or that the officer continued the prosecution after he knew or should have known that Brooks was innocent.

III.

Having concluded that Brooks’ § 1983 malicious prosecution claims are not time barred, we turn to consider whether these allegations state a claim upon which relief may be granted.

A.

Brooks first asserts that Officer Barker violated his rights under the Fourth Amendment by unreasonably seizing his person—allegations that, as noted above, are broad enough to encompass a claim that legal process issued without probable cause. The Fourth Amendment prohibits law enforcement officers from making unreasonable seizures, and seizure of an individual effected without probable cause is unreasonable. See Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 1871-73, 104 L.Ed.2d 443 (1989). Thus, Brooks’ allegations that Officer Barker seized him pursuant to legal process that was not supported by probable cause and that the criminal proceedings terminated in his favor are sufficient to state a § 1983 malicious prosecution claim alleging a seizure that was violative of the Fourth Amendment.

B.

Brooks next charges that Officer Barker’s failure to attempt to terminate the criminal proceedings after it became clear that Brooks was innocent deprived him of his constitutional rights under the Fourth and Fourteenth Amendments. We conclude that these allegations fail to state a claim upon which relief may be granted.

As we recently explained, the Due Process Clause of the Fourteenth Amendment does not provide protection in this area. Taylor v. Waters, 81 F.3d 429, 435-36 (4th Cir.1996). The Supreme Court has rejected the proposition that a defendant possesses a liberty interest in avoiding prosecution upon less than probable cause. Id. at 436 (recognizing that a majority of the Supreme Court has rejected the existence of substantive due process protection in this area). And, the Fourth Amendment provides all of the pretrial process that is constitutionally due to a criminal defendant in order to detain him prior to trial. Id. at 435-36. Thus, Brooks’ claim that Officer Barker failed to attempt to have the criminal proceedings terminated after it became apparent that Brooks was not the perpetrator fails to state a claim upon which relief may be granted.

Furthermore, the Fourth Amendment “requires that arrests be made based upon probable cause and that a neutral and detached judicial officer evaluate probable cause as a condition of significant pretrial restraint of liberty.” Id. at 436. Once a pretrial seizure has been rendered reasonable by virtue of a probable cause determination by a neutral and detached magistrate, the continuing pretrial seizure of a criminal defendant — either by detention or by bond restrictions — is reasonable. See id. Therefore, Officer Barker’s failure to attempt to have the criminal charges against Brooks dismissed after a determination of probable cause had been made by a neutral detached magistrate did not render Brooks’ continuing pretrial seizure unreasonable under the Fourth Amendment. Consequently, this claim does not allege the deprivation of any right guaranteed by the Fourth Amendment.

IV.

To summarize, we hold that the magistrate judge properly dismissed as time barred Brooks’ § 1983 claim for monetary damages to the extent that it was based upon an allegedly unconstitutional warrantless arrest. The court, however, erred in concluding that Brooks’ action was untimely to the extent that his complaint alleged an unconstitutional arrest accomplished pursuant to a warrant, an unconstitutional initiation of legal process, and an unconstitutional failure to terminate the prosecution. Nevertheless, because we conclude Brooks’ allegations fail to state a § 1983 claim for a violation of his rights under the Fifth and Fourteenth Amendments, the Rule 12(b)(6) dismissal of these causes of action must be affirmed. And, to the extent that Brooks alleges that Officer Barker failed to attempt to dismiss the criminal charges after it became clear that Brooks was innocent, his complaint also fails to state a § 1983 claim alleging a violation of the Fourth Amendment. Brooks’ allegations that his arrest was effected pursuant to a warrant that was not based upon probable cause, or that the legal proceedings against him were not initiated upon probable cause, does state a claim upon which relief may be granted; a remand for further proceedings with respect to this claim is required. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS.

      . The parties consented to submission of the case to a magistrate judge for final resolution. See 28 U.S.C.A. § 636(c) (West 1993).

        . Brooks offers no argument concerning the accrual of his § 1983 action against the City, and therefore we deem him to have abandoned this portion of his appeal. See 11126 Baltimore Blvd., Inc. v. Prince George's County, Md., 58 F.3d 988, 993 n. 7 (4th Cir.) (en banc), cert. denied, - U.S. -, 116 S.Ct. 567, 133 L.Ed.2d 492 (1995). Consequently, we affirm the dismissal of Brooks’ allegations against the City.

      . In the wake of the Heck decision, two courts of appeals have ruled that § 1983 actions for unconstitutional warrantless arrest did not accrue until the plaintiffs' resulting convictions were overturned. See Wells, 45 F.3d at 94-95; Woods, 47 F.3d at 546. However, these courts did not announce results contrary to the one we reach today because in both decisions the courts ruled that proof of the invalidity of the arrest in the § 1983 action necessarily would have implicated the validity of the conviction. Wells, 45 F.3d at 95; Woods, 47 F.3d at 546.

      . For convenience, we refer to these claims as Brooks’ § 1983 malicious prosecution claims.

      . We recognize that actual malice is an element of a malicious prosecution claim at common law. See, e.g., Calero-Colon, 68 F.3d at 3 n. 5. And, common-law principles “provide the appropriate starting point for” determining the elements of § 1983 actions. Heck, — U.S. at -, 114 S.Ct. at 2370 (internal quotation marks omitted). However, the Supreme Court has indicated that the reasonableness of a seizure under the Fourth Amendment should be analyzed from an objective perspective. See Graham, 490 U.S. at 396-97, 399, 109 S.Ct. at 1871-73, 1873 ("The Fourth Amendment inquiry is one of ‘objective reasonableness’ under the circumstances, and subjective concepts like ‘malice’ and ‘sadism’ have no proper place in that inquiry.”). Thus, we conclude that the subjective state of mind of the defendant, whether good faith or ill will, is irrelevant in this context. Id. at 397, 109 S.Ct. at 1872-73.

      . The decision of this court in Gay v. Wall, 761 F.2d 175, 178-79 (4th Cir.1985), does not compel a different conclusion. In Gay, this court distinguished Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), and stated that despite the existence of probable cause at the time of Gay’s arrest, a showing that officers continued to detain him in custody after they knew him to be innocent deprived Gay of due process. Gay, 761 F.2d at 178-79. The reasoning of Gay — that a defendant is deprived of substantive due process by continued prosecution in the absence of probable cause — was rejected by the Supreme Court in Albright v. Oliver. Taylor, 81 F.3d at 436 (citing Albright v. Oliver, 510 U.S. 266, - - -, 114 S.Ct. 807, 810-14, 127 L.Ed.2d 114 (1994) (plurality); id. at - - -, 114 S.Ct. at 819-22 (Souter, J., concurring in judgment)).

      .Of course, the judicial determination of probable cause does not “break[ ] the causal chain between the application for the warrant and the improvident arrest" if the officer who sought the warrant did not possess probable cause. Malley v. Briggs, 475 U.S. 335, 344 n. 7, 106 S.Ct. 1092, 1097 n. 7, 89 L.Ed.2d 271 (1986).

      . Brooks fails to state a claim under the Fifth Amendment because he “has not alleged any conduct on the officer's part that even arguably is governed by that amendment.” Taylor, 81 F.3d at 437 n. 6.

      . We express no opinion concerning the merits, or Officer Barker's entitlement to qualified immunity, limiting our decision merely to the conclusion that these allegations state a claim upon which relief may be granted and are not time barred.


author: PER CURIAM:

text:
    Ken GRIFFITH, doing business as Mr. Fashion; Rene Griffith, doing business as Mr. Fashion; Plaintiffs-Appellants, v. LEVI STRAUSS & CO., Defendant-Appellee.
    No. 95-50216
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit
    Jan. 24, 1996.

      Robert A. Skipworth, Ainsa, Skipworth, Martinez & Driscoll, El Paso, TX, for Ken and Rene Griffith, plaintiffs-appellants.
    Gregory Stewart Gilchrist, Legal Strategies Group, Emeryville, CA, for Levi Strauss & Co., defendant-appellee.
    Before JOLLY, JONES and STEWART, Circuit Judges.
   PER CURIAM:

The appellants were retail merchants for Levi Strauss & Co. (“Levi”). Levi requires its retailers to abide by its “distribution policy,” wMch provides that retailers may not sell Levi products to other resellers. Under that policy, Levi “reserved the right to terminate [its] business relationship” with a retailer “if goods supplied to you by [Levi] are transferred from an approved to an unapproved location.” Levi terminated its relationsMp with the appellants after they sold Levi products on a wholesale basis.

The appellants filed a lawsuit claiming damages for lost profits arising from Levi’s failure to inform them that its distribution policy forbidding wholesale marketing allowed for an exception at the United States-Mexico .Border (the “Border Exception”) where the appellants were located. More specifically, appellants’ claim is that Levi’s failure to apprise them of the Border Exception deprived them of profits they could have made during their relationsMp with Levi by selling on a wholesale basis as well as on a retail one. The appellants alleged misrepresentations by Levi, in violation of § 17.46(b)(12) of the Texas Deceptive Trade Practices Act (“DTPA”), as well as a breach of the duty of good faith in the performance of a contract under Texas contract law, see Tex.Bus. & Comm.Code Ann. § 1.20B. The district court concluded that “the Border Exception is not part of the Plaintiffs alleged contract,” and dismissed the appellants’ suit for failure to state a claim under which relief can be granted.

In order to withstand dismissal, the appellants on appeal allege, in addition to the claims rejected by the district court, that Levi’s failure to inform them of the Border Exception constitutes negligent misrepresentation and a misrepresentation as to the sponsorship, characteristics or benefits of goods or services, see DTPA § 17.46(b)(5), and violates the DTPA’s “catch-all” deceptive practices provision, see DTPA § 17.46(b).

Our review of the record, the briefs of the parties, and the order of dismissal of the district court, convince us that the appellants claims of breach of the duty of good faith and misrepresentation under DTPA § 17.46(b)(12) are fatally flawed. Both claims require that any false representation or breach of duty occur within the framework of an agreement between Levi and the appellants. In this case, the contract between the appellants and Levi did not incorporate or reference the Border Exception. As such, there was simply no term of a contract between the appellants and Levi that was misrepresented, nor was there any term of the contract with respect to which there was a breach of a contractual duty on the part of Levi.

We further find that the claims the appellants plead for the first time on appeal are equally meritless. Consumers have a private cause of action under the DTPA only with respect to acts that are specifically enumerated in section 17.46. As such, the appellants’ “catch-all” deceptive practice claim must fail. See DTPA § 17.50. Appellants claim under DTPA § 17.46(b)(5), concerning sponsorship or characteristics of goods or services, also fails because this type of claim protects consumers. Any misrepresentation by Levi, therefore, must pertain to goods or services that Levi has sold to the appellants. See Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex.1980). In the relationship between Levi and the appellants here, the appellants have sold their services as retailers to Levi; Levi has sold nothing to the appellants.

Finally, the appellants’ negligent misrepresentation claim also fails. Appellants essentially claim that Levi represented that its distribution policy forbids all sales of Levi products on a wholesale basis, and that this representation is false because Levi permitted some retailers, pursuant to the Border Exception, to sell on this basis without termination. We disagree. Levi’s description of its distribution policy cannot be false because Levis’s reservation of the right to terminate accounts violating the policy specifically allows Levi the option not to terminate such accounts. See Allied Bank of Texas v. Plaza DeVille Assocs., 733 S.W.2d 566, 570-71 (Tex.App. San Antonio 1987, writ ref'd n.r.e., reh’g overruled).

In short, the appellants’ attempt to use the DTPA, Texas contract law and the law of negligent misrepresentation to obtain the benefit of a bargain they never made with Levi must fail. Consequently, the judgment of the district court dismissing this complaint is

AFFIRMED.

      . Appellants do not allege that Levi’s termination of their relationship violated the express terms of the distribution policy or that it breached the terms of their agreement with Levi.