text:
    David JOHNSTON, Individually and as representative of the estate of Richard J. Johnston; Gloria Johnston, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 95-50269.
    United States Court of Appeals, Fifth Circuit.
    June 13, 1996.

      Walter L. Boyaki, John Gregory Mundie, Miranda & Boyaki, El Paso, TX, for plaintiffs-appellants.
    Karen B. Norris, James William Jennings, Jr., Assistant U.S. Attorneys, Office of the United States Attorney, San Antonio, TX, James H. DeAtley, Austin, TX, John Walter Caldwell, Jr., El Paso, TX, for defendantappellee.
    Before POLITZ, Chief Judge, and JONES and BENAVIDES, Circuit Judges.
   BENAVIDES, Circuit Judge:

This is a wrongful death suit brought under the Federal Tort Claims Act (“FTCA”). 28 U.S.C. § 1346(b). The district court dismissed the lawsuit for lack of jurisdiction on the basis that the wrongful death action accrued prior to death and was therefore barred by the two-year FTCA statute of limitations. Because we hold as a matter of federal law that a wrongful death claim cannot accrue prior to death, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On June 4, 1990, Richard Johnston had coronary artery bypass surgery at Brooke Army Medical Center. Dr. Greg Bowman was the primary surgeon. Following surgery, Johnston experienced respiratory difficulty requiring use of a respirator. On June 19, 1990, a fluoroscopy of Johnston’s diaphragm suggested that he had a condition called bilateral phrenic nerve apraxia as a result of injury to his phrenic nerve. Dr. Bowman told Johnston’s wife, Gloria Johnston, that her husband’s phrenic nerve had been damaged in the earlier surgery and that treatment would be necessary at a different facility. On July 11, 1990, Johnston was transferred to Ven-Care South Texas Hospital. At Ven-Care, Johnston developed pneumonia and died on July 18,1990.

On July 17, 1992, one day shy of the two-year anniversary of Johnston’s death, his son, David Johnston, filed an administrative claim with the Government. Subsequently, Gloria and David Johnston sued the Government for wrongful death under the FTCA alleging medical malpractice by the physicians at Brooke Army Medical Center. Prior to trial, the Government moved to dismiss the suit for lack of subject matter jurisdiction on the grounds that the claim accrued, at the latest, on July 11, 1990. As such, the Government maintained the Johnstons’ claim was barred by the two-year FTCA statute of limitations. The district court agreed and dismissed the suit. This appeal ensued.

DISCUSSION

Congress enacted the FTCA as a limited waiver of the sovereign immunity of the United States. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979). Subject to some exceptions, the United States is liable in tort for certain damages caused by the negligence of any employee of the Government “if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b); see Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir.1995) (en banc). While substantive state law determines whether a cause of action exists, federal law determines when that claim accrues. Quinton v. United States, 304 F.2d 234, 235 (5th Cir.1962). A two-year statute of limitations from the accrual date then applies for FTCA claims. 28 U.S.C. § 2401(b). However, neither the FTCA nor section 2401(b) explains when a cause of action “accrues.”

The position of the parties is clear. The Johnstons posit that their wrongful death action accrued at death. Initially, they argue that they have a wrongful death claim under Texas law. Noting that federal law controls accrual, the Johnstons contend that while Texas state law might allow for predeath accrual, federal law does not. Consequently, the FTCA two-year statute of limitations began to run on July 18, 1990, the date of Richard Johnston’s death. Accordingly, their claim was timely filed- on July 17, 1992.

While not disputing that accrual of an FTCA claim is a federal question, the Government maintains that we must look to Texas law to determine the nature of the Johnstons’ cause of action. Turning to Texas law, the Government contends that under the facts of this case no liability would exist for a private person in Texas. First, the Government notes that under Texas law, a wrongful death action is a derivative suit. As such, the Johnstons possess only the claim that Richard Johnston had at the time of his death. Richard Johnston’s claim was a health care liability claim. Relying on recent Texas Supreme Court authority, the Government maintains that a wrongful death claim premised on medical malpractice accrues on the date of the negligent act. See Baptist Memorial Hosp. Sys. v. Arredondo, 922 S.W.2d 120, 121 (Tex.1996); Bala v. Maxwell 909 S.W.2d 889, 892-93 (Tex.1995). The Government concludes that because under the Texas accrual date no liability would be imposed on a private person, there can be no liability for the United States under the FTCA

Thus, we are squarely presented with the question: When, as a matter of federal law, does a wrongful death claim pursued under the FTCA accrue? In answering this troublesome question, we are guided by our own jurisprudence on accrual and the experience of our sister circuits. Our task is complicated by the seemingly incongruous fact that under Texas state law certain wrongful death claims can accrue prior to death.

We begin our analysis with our seminal case on accrual under the FTCA—Quinton v. United States. The facts of Quinton are simple. On May 17, 1956, Quinton’s wife, while under care at a military hospital, was negligently administered RH positive blood when her correct type was RH negative. The plaintiffs did not learn of this error until three years later in June 1959 during the wife’s pregnancy. In August 1960, Quinton filed his FTCA action alleging that the negligent treatment caused his wife to give birth to a stillborn child and prevented her from safely bearing other children. Quinton, 304 F.2d at 235. Similar to our instant case, the state law in question held that a medical malpractice claim accrued when the alleged negligence took place. The Government, arguing that state law controlled accrual, moved to dismiss on limitations grounds; the district court agreed and dismissed the suit.

On appeal, faced with whether state or federal law determined accrual of a medical malpractice claim pursued under the FTCA, we held that federal law must govern. Our rule was clear:

[Fjederal law determines when the period of limitations contained in Section 2401(b) commences to run (i.e., federal law determines when a “claim accrues” within the meaning of Section 2401(b)), even though we look to state law to determine whether any claim has accrued against the Government which would enable the claimant to sue under the Tort Claims Act. In other words, we look to state law to determine whether the 'plaintiffs action is premature, but to federal law to determine whether the action is stale. If the plaintiff has a cause of action against the Government under state law, federal law then controls as to whether the plaintiff has timely instituted his suit to recover on that cause of action.

Id. at 239-40 (emphasis added). Therefore, under Quinton, state law identifies whether the plaintiff has a cause of action or not. If a cause of action exists, federal law controls when the claim accrues and when the two-year FTCA limitations period begins to run.

Our rationale for adopting this rule guides us today. When Congress adopted the two-year limitations statute, it clearly and unequivocally manifested its intention to have a single limitations period govern ail claims asserted against the United States under the FTCA. Id. at 236. This provides the FTCA claimant with a fixed period of time to institute suit, regardless of where the acts giving rise to liability occurred. Relying on state accrual dates would seriously frustrate the clear congressional policy underlying the federal limitations period. We explained:

Obviously, if the various states’ rules could severally determine when a claim accrued against the Government under Section 2401(b), the uniformity which Congress sought by enacting that section would be, for all practical purposes, a goal impossible of attainment. Differing state rules as to when a particular tort claim accrues would necessarily produce diverse decisions as to the effect of Section 2401(b). The mere alteration by a state of its rule as to the accrual of a particular claim would alter Section 2j01(b) just as effectively as if Congress itself had formally amended that section. Thus, acceptance of the Government’s view would permit the states to do indirectly what Congress clearly forbids them to do directly by increasing or decreasing their statutes of limitations on particular claims; and, contrary to the express purpose of Section 2401(b), claimants under the Tort Claims Act would have varying periods within which to bring suit against the Government depending solely on where their claims arose.

Id. at 236 (emphasis added). Hence we identified two laudable goals in answering questions of accrual of FTCA claims: uniformity and equity. It is in the light of these considerations that we review the judgment of the district court.

Faced with the clear holding of Quinton, both the Government and the Johnstons agree that accrual is a federal question; they disagree, however, on what the answer should be in this case. While the issue of accrual of a wrongful death claim is one of first impression for us, our sister circuits have already grappled with this thorny problem.

The Seventh Circuit addressed the issue in Fisk v. United States, 657 F.2d 167 (7th Cir.1981). Fisk was negligently injected with radiopaque dye in 1950. Twenty-two years later, exploratory surgery revealed calcific scarring in his neck caused by the dye. Fisk was later diagnosed with artery disease caused by the dye-induced scarring. In 1976, he submitted his administrative claim based on the 1950 malpractice. In 1979 Fisk died from the dye-induced injuries; his widow amended the cause of action for wrongful death and won at trial. Fisk, 657 F.2d at 169. On appeal, the Government contended that when the same events give rise to both a malpractice and wrongful death claim, federal law establishes that the date upon which the malpractice claim accrued also governs the wrongful death claim.

The Seventh Circuit disagreed. The court held that when a state statute creates an independent cause of action for wrongful death, “it cannot accrue for FTCA purposes until the date of the death which gives rise to the action.” Id. at 171. This decision was informed by several factors. Initially, the court agreed with Quinton that the accrual question is a federal one. Id. at 170. In answering this federal question, the court looked at the underlying state cause of action and noted that the Indiana wrongful death statute created an independent cause of action for wrongful death. After identifying a state cause of action, the court noted that “in an ‘ordinary’ wrongful death action under the FTCA, the federal rule is that the cause of action accrues upon the date of death.” Id. The court was unwilling to waiver from this rule. One rationale used by the court was equity:

To hold that a claim for wrongful death somehow accrues before the date of death would place the class protected by the statute in the legally untenable position of speculating about hypothetical or potential future injuries, for the damages awarded survivors under the wrongful death act, which include funeral and burial expenses, are not identical with those available in a personal injury action to the one actually injured, and remain indeterminate until death has occurred.

Id. at 171. Likewise, the court relied on uniformity. In response to the Government’s position, similar to its position today, that some states bar a wrongful death action when a personal injury action based on the same acts of negligence would have lapsed, the court stated that a rule that a wrongful death claim cannot accrue for FTCA purposes until the date of death “will promote that uniformity of result that § 2401(b) was designed to protect.” Id. at 173.

While Fisk most squarely addresses the accrual question facing us today, other circuits have also analyzed the accrual of wrongful death claims under different factual contexts. The most frequently encountered issue of wrongful death accrual is when a plaintiff seeks to extend the period in which to file suit by contending that a wrongful death claim accrues at some point after death when the cause of death is known. Under these circumstances the circuits are split as to whether a discovery rule should be extended to wrongful death claims under the FTCA. This position has been summarily rejected by some courts, often with the simple holding that “a claim for wrongful death accrues upon the date of death.” Kington v. United States, 396 F.2d 9, 12 (6th Cir.), cert. denied, 393 U.S. 960, 89 S.Ct. 396, 21 L.Ed.2d 373 (1968); see Garrett v. United States, 640 F.2d 24, 26 (6th Cir.1981) (rejecting claim that wrongful death accrues upon release of autopsy report); see also Marbley v. United States, 620 F.Supp. 811, 812 (D.D.C.1985); Gallick v. United States, 542 F.Supp. 188, 191 (M.D.Pa.1982). In contrast, the Ninth Circuit holds that the discovery rule is applicable to wrongful death claims. See In re Swine Flu Prods. Liab. Litig., 764 F.2d 637, 640 (9th Cir.1985). Significantly, the discovery rule is applied only to extend the period in which a plaintiff can file suit, not pretermit a claim by finding pre-death accrual.

Another category of wrongful death accrual cases involve comatose decedents such as in Washington v. United States, 769 F.2d 1436 (9th Cir.1985). In 1967, Beatrice Washington was admitted into an Air Force base hospital for delivery of her baby. When Air Force physicians injected her with a spinal anesthetic, she lapsed into a coma where she remained until her death fourteen years later. Her husband filed a FTCA wrongful death suit in 1983. Applying New York law, under which a wrongful death action can only be brought if the decedent had a viable cause of action at the time of death, the district court found the action time-barred because Washington’s personal injury claim expired two years into her coma. Washington, 769 F.2d at 1437. The Ninth Circuit reversed holding that ‘Washington’s cause of action did not accrue until her death.” Id. at 1439. This holding was premised on the fact that Mrs. Washington was never aware of her injury or its cause; therefore, she had a viable personal injury action at the time of her death. Consequently, the Washingtons’ wrongful death action was timely because it was filed within the two-year FTCA statute of limitation.

In sum, each of the other circuits addressing the accrual question have done so under different factual circumstances. Nonetheless, despite the varying factual contexts, every circuit that has addressed the accrual of wrongful death claims has reached the same conclusion: A wrongful death claim cannot accrue before death for FTCA purposes. When uniformity is a guiding principle of the federal question of accrual, this fact cannot be ignored.

While accrual is undeniably a federal question, an examination of Texas law concerning wrongful death is nonetheless worthwhile. As a threshold matter, Texas law must create a cause of action for the Johnstons to pursue. Only if a cause of action is recognized by state law do we reach the accrual question. In other words, as we said in Quinton, state law determines if the Johnston’s claim is premature.

Texas has a wrongful death statute. See Tex.Civ.Prac. & Rem.Code Ann. §§ 71.001-011 (West 1986). It provides a statutory cause of action for damages arising from a negligently inflicted injury that causes an individual’s death. Id. § 71.002. This cause of action may be brought by the surviving spouse, children or parents. Id. § 71.004. A wrongful death action in Texas is a derivative suit because the Texas Wrongful Death Statute allows a cause of action “only if the individual injured would have been entitled to bring an action for the injury if he had lived.” Id. § 71.003(a). As such, the right to maintain a wrongful death action is entirely derivative of the decedent’s right to have sued for his own injuries immediately prior to his death. Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 347 (Tex.1992).

Clearly, the Johnstons’ wrongful death claim was not premature. Applying Texas law, they have a wrongful death claim because Richard Johnston had a cause of action at the time of his death that the Johnstons could later assert under the Texas Wrongful Death Statute and the FTCA. The Johnstons’ claim is premised on allegations of medical malpractice stemming from the negligent severing of Richard Johnston’s phrenic nerve. Had Richard Johnston survived, his claim was a health care liability claim as defined by Texas statute. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 1.03(a)(4) (West Supp.1996). At the time of his death, Richard Johnston had a cause of action. Consequently, under the Texas Wrongful Death Statute, Gloria and David Johnston have the statutory state law claim that Richard Johnston had at the time of his death.

Because Texas state law recognizes a cause of action for wrongful death, it is informative, yet not controlling, to also examine Texas law on accrual of such a claim. In general, “[a] person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person.” Tex.Civ. Prac. & Rem.Code Ann. § 16.003(b) (West 1986). Despite this explicit language on accrual, a different accrual date is recognized under Texas law if the wrongful death claim is premised on medical malpractice. When a wrongful death action is based on medical malpractice, the Texas Medical Liability and Insurance Improvement Act controls. Baptist Memorial, 922 S.W.2d at 121. Section 10.01of the Act provides that health care liability claims must be filed within two years from the alleged negligent act. Tex.Rev.Civ. Stat.Ann. art 4590i, § 10.01 (West Supp. 1996). Therefore, section 10.01 dictates that this type of wrongful death claim accrues, not at death, but at the time the negligence took place. Baptist Memorial, 922 S.W.2d at 121; Bala, 909 S.W.2d at 892-93. The Texas Supreme Court explained:

By including [section 10.01], the Legislature unequivocally expressed its intent that, when the time limitations of section 10.01 conflict with another law, section 10.01 governs. A wrongful death plaintiff suing on a medical negligence theory therefore does not necessarily have two full years from the time of death to bring a lawsuit. Rather, the statute of limitations expires at the same time it would have for the decedent, two years after the negligence occurred.

Bala, 909 S.W.2d at 892-93. Thus under the accrual and limitations period of section 10.01, a wrongful death claim premised on medical negligence can be time-barred before two years from the date of death.

Section 10.01 represents a state legislative determination to start the limitations clock running at the time of the alleged negligence. The purpose of section 10.01 was to alleviate a perceived medical malpractice insurance crisis by adopting an absolute two-year limitations period. Id. at 892. Significantly, section 10.01 is purely a statute of limitations provision. See Tex.Rev.Civ.Stat.Ann. art 4590i, subchapter J (West Supp.1996) (entitled “statute of limitations”). Plaintiffs like the Johnstons have a cause of action under Texas law. It is, however, subject to a limitations defense based upon the accrual date and limitations period of section 10.01. What the Texas legislature has done is precisely what we foreshadowed in Quinton. The legislature, by tinkering with the accrual date of one class of wrongful death claims, has in effect shortened the period in which such plaintiffs can bring suit in Texas. Should a Texas legislative action with respect to a statute of limitations be able to alter the federal limitations period? While Texas is free to fashion its accrual date and relevant statute of limitations as its sees fit, as a matter of federal law, we must determine if a similar rule is consistent with the remedial purpose of the FTCA, uniformity, and equity.

The FTCA is a limited waiver of the sovereign immunity of the United States. In adopting the FTCA, Congress created new liability that beforehand did not exist. To have defined all the tort rules under which liability could be established would have been an almost impossible undertaking. Quinton, 304 F.2d at 237. However, the matter of limitations was a simple one that Congress could easily determine for itself. Congress has set the limitations period at two years. “[W]e should not take it upon ourselves to extend the waiver beyond that which Congress intended. Neither, however, should we assume the authority to narrow the waiver that Congress intended.” Kubrick, 444 U.S. at 117-18, 100 S.Ct. at 357 (citations omitted).

If we were to adopt the Government’s position in this case, the Johnstons would not have two full years to pursue their claim. By geographic fortuity, the Government would escape liability. This is inconsistent with both the goals of uniformity and equity that must guide this Court on matters of accrual. In contrast, a determination that a wrongful death claim cannot accrue prior to death supports these goals.

As to uniformity, every circuit that has addressed the issue of accrual of wrongful death claims, albeit under different factual contexts, has concluded that wrongful death claims do not accrue prior to death. Similarly, the federal government recognizes the same accrual date with wrongful death claims asserted under other federal statutes. See Reading Co. v. Koons, 271 U.S. 58, 62-63, 46 S.Ct. 405, 406-07, 70 L.Ed. 835 (1926) (wrongful death claim under FELA accrues at death); Phillips v. Heine, 984 F.2d 489, 491 (D.C.Cir.) (wrongful death claim under Death on the High Seas Act accrues at death), cert. denied, — U.S. -, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993). Louisiana and Mississippi both set accrual of wrongful death claims at time of death. See Taylor v. Giddens, 618 So.2d 834, 840 (La.1993); Gentry v. Wallace, 606 So.2d 1117, 1120 (Miss.1992). Even Texas would recognize accrual at date of death for every wrongful death claim premised on negligent acts other than medical malpractice. See Tex.Civ.Prae. & Rem.Code Aim. § 16.003(b) (West 1986). The interest of uniformity clearly points toward a rule that accrual cannot occur prior to the date of death.

Likewise, equity guides this Court. Implicit in a wrongful death action is a wrongful death. It is the most basic fact of which a wrongful death plaintiff must be aware. Quite simply, until there is a death, regardless of its underlying cause, there can be no wrongful death action. And as an equitable consideration, we are reticent to hold that a wrongful death action accrues pre-death, requiring some would-be plaintiffs to speculate in a macabre fashion as to the fate of their loved-ones and file premature suits for wrongful death based upon this speculation. We refuse to sanction such an illogical and inequitable rule.

CONCLUSION

We hold today, as a matter of federal law, that a wrongful death claim cannot accrue prior to death. In so doing, we reject the accrual date employed under Texas state law that wrongful death claims premised on medical negligence accrue prior to death. Such a rule would ignore the clear congressional expression that every plaintiff have two full years to prosecute an FTCA claim, undermine uniformity in accrual dates, and serve as an affront to the equitable remedial purpose of the FTCA. The judgment of the district court is REVERSED and REMANDED.

      . The phrenic nerve is the nerve that stimulates movement in the diaphragm. A diagnosis of "bilateral phrenic nerve apraxia” indicates that the phrenic nerve was injured resulting in inability to use the diaphragm to pump oxygen in and out of the lungs.

      . The Johnstons also argue on appeal that the Government’s motion to dismiss for lack of subject matter jurisdiction was untimely under the district court's scheduling order. This point is meritless. It is well-settled that subject matter jurisdiction can be raised at any time or even sua sportte by the court. FTCA time limitations are jurisdictional. Houston v. United States Postal Serv., 823 F.2d 896, 902 (5th Cir.1987), cert. denied, 485 U.S. 1006, 108 S.Ct. 1470, 99 L.Ed.2d 699 (1988).

      . The commentators recognize the importance of these goals as well:
      The reliance on federal law in considering the accrual question is a salutary development. If the federal courts in litigation under the Tort Claims Act are not bound by state law, they are free to fashion a federal rule that more fully accords with a balancing of equities, is in keeping with the remedial purposes of the statute waiving immunity and the policies underlying statutes of limitations, and one which will apply uniformly.

        2 Lester J. Jayson, Handling Federal Tort Claims: Administrative and Judicial Remedies § 14.03[1], at 14-22 (1995).

      . The commentators have also been highly critical of the Government’s position. See, e.g., David L. Abney, For Whom the Statute Tolls: Medical Malpractice Under the Federal Tort Claims Act, 61 Notre Dame L.Rev. 696, 718-720 (1986) (describing the Government’s position as misconstruing both Kubrick and the tort of wrongful death).

      . Pre-Fisk, at least one district court also directly addressed the question. In Wolfenbarger v. United States, 470 F.Supp. 943, 944 (E.D.Tenn.1979), the decedent was treated at a VA hospital in March 1975; he died on May 17, 1975. The administrative tort claim was filed on May 14, 1977. In finding the administrative claim timely, the district court held that "[a] wrongful death claim accrues under the Federal Tort Claims Act on the date of the death." Id. Post-Fisk, another district court has specifically adopted the reasoning of Fisk and held that a wrongful death claim premised on medical malpractice does not accrue until death. See Natale v. United States, No. 82 Civ. 8184-CSH, 1985 WL 2155, at *2-3 (S.D.N.Y. July 26, 1985).

      . We recognize that on the facts of this case, a private person might escape liability from the Johnstons' wrongful death claim, provided the party raised a state law limitations defense. This does not, as the Government suggests, create a situation contrary to the FTCA or our en banc opinion in Johnson v. Sawyer. It was never contemplated that there would be perfect symmetry between all FTCA claims and their nonFTCA counterparts. This is especially true when dealing with state statutes of limitations. For example, in Louisiana a one-year prescriptive period governs wrongful death claims. See Taylor v. Giddens, 618 So.2d 834, 841 (La.1993). Obviously, under the two-year FTCA limitations period the United States is exposed to liability' where a private person in Louisiana is not.

      . The Texas Supreme Court has held that as a matter of substantive state law, there is no wrongful death action to accrue if the decedent’s underlying claim expires, for whatever reason,
        prior to his death. See Russell, 841 S.W.2d at 348. That situation is not present here. Richard Johnston was injured on June 19, 1990. His allegedly negligent treatment ended, at the latest on July 11, 1990. He died one week later on July .18, 1990. Immediately prior to his death, Richard Johnston had a viable claim.


source: Caselaw Access Project

author: POLITZ, Chief Judge:

license: Public Domain

text:
    Thomas M. SMITH, Petitioner, v. UNITED STATES RAILROAD RETIREMENT BOARD, Respondent.
    No. 95-60433
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    June 14, 1996.

      Chriss Doss, Chriss H. Doss & Associates, Birmingham, AL, for petitioner.
    Catherine C. Cook, Steven A Bartholow, Glen L. Bower, Chairman, Kelli D. Johnson, United States Railroad Retirement Fund, Chicago, IL, for respondent.
    Before POLITZ, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit Judges.
   POLITZ, Chief Judge:

Thomas M. Smith petitions for review of the decision of the Railroad Retirement Board affirming a hearing officer’s finding that Smith is not entitled to an annuity because he is not disabled from all regular employment. For the reasons assigned we grant the petition for review, reverse the Board’s decision, and remand for a setting of the proper annuity and such other relief as may be appropriate.

Background

Smith worked for Southern Pacific Railroad as a railway car inspector from June 1974 until October 1991, inspecting rail ears and performing heavy maintenance. He left Southern Pacific’s employ in September 1991 after injuring himself while closing a rail car door. He was diagnosed as suffering from ankylosing spondylitis, a chrome progressive and debilitating disease which fuses the spine and causes rigidity of the cervical, thoracic, and lumbar vertebrae. He also suffered from hypertension and chest pains.

In August 1992 Smith filed an application for a disability annuity with the Railroad Retirement Board. His application was denied and he appealed to the Board’s Bureau of Hearings and Appeals. At a hearing Smith testified about his work experience, medical history, and daily activities. Medical reports were filed. A vocational expert testified that a significant number of jobs existed in the national economy which could be performed by a person whose residual functional capacity was described as follows:

Walking or standing up to two hours in a work day, not more than 15 minutes at a time; sitting up to 6 hours in a workday, not more than 25-30 minutes at a time, the person can sit or stand at his option, lifting no more than 15 pounds; weak grip so he can not use hand tools and reduced alertness so as to preclude being around moving machinery.

In his written decision the hearing officer ostensibly found, on the basis of the evidence presented at the hearing and information included in the administrative record, that Smith was not entitled to an annuity, even though he had a severe impairment, because a significant number of jobs which he could perform existed in the national economy.

On appeal the Railroad Retirement Board affirmed, adopting the decision of the hearing officer. Smith timely petitioned for review.

Analysis

Section 2(a)(l)(v) of the Railroad Retirement Act of 1974 provides, in relevant part, that an individual who has completed ten years of service shall be entitled to an annuity, upon application, if a permanent physical or mental condition renders him unable to engage in any regular employment.

An employee ... is disabled for any regular employment if he or she is unable to do any substantial gainful activity because of a medically determinable physical or mental impairment which meets the duration requirement defined in § 220.28[] ... To meet this definition of disability, a claimant must have a severe impairment, which makes him or her unable to do any previous work or other substantial gainful activity which exists in the national economy[] To determine whether a claimant is able to do any other work, the Board considers a claimant’s residual functional capacity, age, education and work experience.

We review findings of the Board to determine whether they are supported by substantial evidence. “Evidence is substantial if it consists of ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ”

The hearing officer reviewed and relied on certain evidence, set forth in his written decision, in making his findings and reaching his conclusion. A December 1993 report by Smith’s family physician, Dr. James M. Caskey, informed that: (1) lifting and carrying are not affected by the impairment but the maximum Smith can lift or carry is one-third of an eight hour day; (2) standing and walking are affected by the impairment and Smith can stand and walk “on and off for twenty minute periods” and he can stand and walk without interruption for twenty minutes; and (3) sitting is not affected by the impairment. The hearing officer’s decision then refers to a functional capacity assessment conducted in December 1993 and a report of a February 1994 examination in which Smith complained of chest pains in addition to his back pain.

Finally, the decision discusses Dr. Caskey’s report of March 1994. In the March report Dr. Caskey advises that: (1) lifting and carrying are affected by the impairment, Smith can only lift and carry ten pounds, and lifting and carrying can account only for one-third of an eight-hour day; (2) standing and walking are affected by the impairment and Smith can only stand and walk four hours a day with only one hour uninterrupted; and (3) sitting is affected by the impairment and Smith can sit only two hours a day, limited to only one hour uninterrupted. In addition, Dr. Caskey’s opinion concerning the frequency with which Smith may climb, balance, and kneel changed from the earlier report of “occasionally” to “never.”

We entertain no doubt that the decision of the Board which adopted the hearing officer’s decision must be reversed with judgment rendered in favor of Smith and the matter must be remanded for computation of the annuity to which Smith is entitled. The critical finding for the Board’s conclusion, the finding that Smith may sit up to six hours in a workday of eight hours, is without support in the record. The only reference to Smith’s ability to sit for six hours in a day comes from an April 1993 report from a medical consultant who never examined Smith. That report lends little to the essential assessment herein. Dr. Caskey’s March 1994 report states unequivocally that sitting is affected by the impairment and that Smith can sit for only two hours in an eight-hour day. The record evidence abundantly establishes that Smith is disabled and qualified to receive an annuity.

The petition for review is GRANTED, the decision of the Board is REVERSED, and the matter is REMANDED to the Board for computation and award of the proper annuity and such other relief as may be appropriate herein.

      . “Residual functional capacity is what the claimant can do despite his or her limitations.” 20 C.F.R. § 220.120(a)(1) (1995).

      . 45 U.S.C. § 231a(a)(1)(v).

      . 20 C.F.R. § 220.28 (1995) provides: "Unless the claimant's impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months.”

      . Work exists in the national economy when it exists in significant numbers either in the region where the claimant lives or in several other regions of the country. 20 C.F.R. § 220.131 (1995).

      . 20 C.F.R. § 220.26 (1995). The regulations further set forth the method by which the Board shall determine whether a claimant is disabled for any regular employment. See 20 C.F.R. § 220.100 (1995).

      . Elzy v. Railroad Retirement Board, 782 F.2d 1223 (5th Cir.1986).

      . Id. at 1224 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)).

      . The hearing officer did not discuss in detail any other evidence, notably including the letter from the Board's consulting physician, Dr. J.S. Todd, who found Smith “totally and permanently disabled from any gainful employment.”

      . See Nelson v. Heckler, 712 F.2d 346 (8th Cir.1983). Nelson is a Social Security disability benefits case. We often rely on such cases in interpreting disability issues arising under the Railroad Retirement Act. Harris v. Railroad Retirement Board, 3 F.3d 131 (5th Cir.1993). We find no indication that the hearing officer relied on this report for it is not mentioned in his decision.


author: PER CURIAM:

text:
    Derrick RAY, Plaintiff-Appellant, v. GLIDDEN COMPANY, Defendant-Appellee.
    No. 95-11162
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    June 14, 1996.

      Stephen J. Gugenheim, Rubin & Gugenheim, Dallas, TX, for plaintiff-appellant.
    Michael V. Abcarian, Winstead, Sechrist & Minick, Dallas, TX, John David Smart, Arter, Hadden, Johnson & Bromberg, Dallas, TX, for defendant-appellee.
    Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
   PER CURIAM:

In this action under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (ADA), Derrick Ray challenges a summary judgment that, inter alia, he did not have the requisite ADA disability. We AFFIRM.

I.

Ray was employed by the Glidden Company as a lift truck operator (LTO), was diagnosed in March 1992 as having avascular necrosis, went on leave from work for over one year, and underwent surgeries to replace his hips and shoulders. Sandy Davis, Glidden’s Human Resources Manager, wrote several letters to Ray’s physicians to determine if and when he would be able to return to work.

In March 1993, Dr. Burkhead informed Davis by letter that Ray would be able to perform parts of his job, such as forklift driving and housekeeping duties, but he had “concerns about [Ray] ever being able to get back to the order picking [portion of the] job”. (“Order picking” requires continuous manual lifting of containers weighing on average 44-56 pounds.) Dr. Burkhead stated that, if Ray’s job could be modified so that he could stay in the five to ten pound lifting criteria, or if someone could pick the orders for him, Ray would otherwise be able work as an LTO. Ray was terminated effective March 31,1993.

In June 1993, a professional worksite analysis performed by the Volunteers for Medical Engineering of Texas, Inc., determined that it was not feasible to modify Ray’s job to accommodate the ten-pound lifting restriction. And, in her affidavit in support of summary judgment, Davis stated that there were no vacant positions that Ray could have filled after his employment was terminated and that he never asked to be considered for any position other than as LTO.

Ray filed this ADA action in October 1994. In November 1995, the district court granted Glidden’s motion for summary judgment.

II.

The threshold question is whether Ray had the requisite ADA “disability”. Summary judgment is proper if, among other things, the nonmovant fails to establish the existence of an element essential to his case and on which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

The ADA defines “disability” under three alternatives:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). Ray claims that he satisfies each of the alternatives.

Obviously, Ray had an impairment. The ADA does not define “substantially limits” and “major life activities”. But, regulations promulgated by the EEOC under the ADA define both. “Major life activities” is so defined as “functions such as earing for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working”. 29 C.F.R. § 1630.2(i). “Other major life activities could include lifting, reaching, sitting, or standing.” Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 n. 7 (5th Cir.1995).

A

For his claim of disability under § 12102(2)(A), Ray maintains only that he was substantially limited in his ability to perform the major life activities of lifting and reaching. To determine whether a person is substantially limited in a major life activity other than working, we look to whether that person can perform the normal activities of daily living. Dutcher, 53 F.3d at 726. In his affidavit, Dr. Burkhead opined that, although Ray would be unable to lift 44-56 pound containers continuously all day, he would be able to do so for one to three and one-half hours per day. As a result, applying the 29 C.F.R. § 1630.2(j) definition of “substantially limited”, he opined that Ray “was significantly restricted as to the condition, manner and duration under which he could perform manual tasks such as lifting and reaching as compared to the condition, manner or duration under which the average person in the general population could perform those same manual tasks”.

But, Ray can lift and reach as long as he avoids heavy lifting. Dutcher makes clear that inability to perform that discrete task does not render a person substantially limited in a major life activity. 53 F.3d at 726.

B.

Next, Ray claims under § 12102(2)(B) that Dr. Burkhead’s aforementioned’March 1993 letter constitutes “a record of such an impairment”. Athough, as noted, Ray does not claim that his impairment substantially limited his major life activity of working, he claims nevertheless for subpart B purposes that this letter “must have suggested ... that Ray was substantially impaired in his ability to lift and/or work”. The letter, however, is insufficient to establish a record of an impairment that substantially limits a major life activity, because it indicates only that Ray was unable to perform continuous, heavy lifting. “The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630(j)(3)(i); Dutcher, 53 F.3d at 727. Likewise, inability to perform heavy lifting does not render a person substantially limited in the major activities of lifting or working. Id at 726-27.

C.

Finally, Ray contends under § 12102(2)(C) that Glidden “regarded” him as having the requisite ADA impairment. Again, although Ray does not claim he was substantially limited in working, he asserts for subpart C purposes that Glidden regarded him as “having an impairment which substantially limited his ability to lift, reach and/or work”. Glidden presented evidence that it terminated Ray’s employment solely because his medical condition prevented him from returning to work as an LTO. Ray neither suggests he was denied another job because of a belief that his condition would prevent him from performing adequately nor counters Glidden’s evidence that no other jobs were available when his employment was terminated. Based on the record, a reasonable juror could not find that, under the ADA, Glidden “regarded” Ray as having an impairment that substantially limited a major life activity.

III.

In sum, Ray’s impairment does not satisfy any of the three alternatives for having the requisite “disability” under the ADA Accordingly, the judgment is

AFFIRMED.

      . Section 1630.2(j)(l)(ii) defines substantially limited as ‘‘[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity”.


author: WISDOM, Circuit Judge: JERRY E. SMITH, Circuit Judge,

text:
    Artelia M. SCOTT, Plaintiff-Appellant, v. George E. MOORE, individually and as an employee of Killeen Police Department, et al., Defendants-Appellees.
    No. 93-8603.
    United States Court of Appeals, Fifth Circuit.
    June 17, 1996.
    Order on Rehearing July 17, 1996.

      Bobby R. Taylor and Mónita Rose Johnson, Austin, TX, for appellant.
    Diane C. Van Helden, Barish & Van Helden, Austin, TX, for appellees.
    Before POLITZ, Chief Judge, and WISDOM and SMITH, Circuit Judges.
   WISDOM, Circuit Judge:

Plaintiffiapp ellant, Artelia M. Scott, appeals the summary judgment dismissal of her 42 U.S.C. § 1983 inadequate staffing claim against the City of Killeen, Texas (“the City”), and its Chief of Police, Francis L. Giaeomozzi. Because we conclude that a material fact issue remains in dispute, we VACATE and REMAND to the district court for further proceedings.

I. FACTS AND PROCEEDINGS

The plaintiff/appellant, Artelia Scott, was arrested on December 31, 1988, for public intoxication, assault, and resisting arrest. She was taken to the Killeen City Jail, processed by the female jailer on duty at that time, and placed in a holding cell to await arraignment. When the female jailer’s shift ended, she was relieved by a male jailer, defendant George Moore. At that time, Moore was the only correctional officer on duty. Over the course of his eight hour shift, Moore repeatedly entered Scott’s cell and sexually assaulted her. Scott was unable to report the incidents until she was released from custody on January 2, 1989, because Moore followed her to the phone and stood next to her during her three telephone calls to her mother.

When Chief Giaeomozzi received Scott’s complaint against Moore, he asked Scott to give a statement to the police and take a he detector test. Scott agreed to do so. After the results indicated that Scott was telling the truth, Giaeomozzi transferred the matter to the criminal investigation division, and placed Moore on administrative leave. Moore resigned four days later, and subsequently pleaded guilty to criminal charges.

Scott filed suit in state court against Moore, the City, and Chief Giaeomozzi, alleging various state and federal constitutional claims. Moore subsequently declared bankruptcy and was dismissed from the suit after the bankruptcy proceeding discharged Scott’s claim against him. The City and Giaeomozzi removed the case to federal court, where they filed their first motion for summary judgment. Scott did not file a response, and the district court granted the motion. On appeal, this court affirmed the district court’s grant of summary judgment on all grounds except inadequate staffing of the jail, as both the defendants’ motion and the district court’s ruling failed to address this aspect of Scott’s suit.

After remand, the City and Giaeomozzi filed a second motion for summary judgment on the issue of inadequate staffing. The district court granted the motion. Scott filed a timely notice of appeal of this decision.

II. DISCUSSION

A. Standard of Review

We review a grant of summary judgment de novo, applying the same standards as those that govern the district court’s determination. Summary judgment may be granted only if the court, viewing the facts and inferences in the light most favorable to the non-moving party, determines that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party must demonstrate by competent evidence that no issue of material fact exists. The non-moving party then has the burden of showing the existence of a specific factual issue which is disputed. If any element of the plaintiffs case lacks factual support, a district court should grant a defendant’s motion for summary judgment.

B. Scott’s § 1983 Claim:

We first examine the allegations in Scott’s complaint to determine a context for examining the facts and inferences in the record. Specifically, Scott alleges that “the City and Giacomozzi failed to provide proper and adequate staffing of the City jail by having only one individual on duty, and/or by not having a female member present when female prisoners are confined.” She further alleges that the defendants/appellees “knew or should have known that the inadequate and improper staffing created an unsafe and uncontrolled situation for abuse and assaults of people confined in the jail.”

Section 1983 provides that, “[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects or causes to be subjected, any ... person within the jurisdiction [of the United States] to the deprivation of any rights ... secured by the Constitution and laws, shall be liable to the party injured.” Therefore, an actionable § 1983 claim must allege a deprivation of rights secured by the Constitution by a person acting under color of state law.

Although municipalities are “persons” within the meaning of § 1983, they may only be held liable if the constitutional harm suffered was the result of an “official policy, custom, or pattern.” Municipalities may not be held liable under either a theory of respondeat superior or vicarious liability. They also may not be held liable under § 1983 for mere negligence in oversight. Nonetheless, prison officials may not ignore obvious dangers to inmates.

Therefore, in order to hold a municipality liable, a plaintiff must show that his or her constitutional deprivation was caused by the city’s adoption of (or failure to adopt) the particular policy, and that such action went beyond mere negligent protection of the plaintiffs constitutional rights. That is, an alleged inadequacy in a municipal policy must amount to “an intentional choice, not merely an unintentionally negligent oversight”.

In sum, proper analysis of a § 1983 claim against a municipality requires three determinations. First, we must decide if the City promulgated “an official policy, practice, or custom,” which could subject it to § 1983 liability. Next, we determine if the policy can be linked to a constitutional violation. And finally, we must ascertain if the municipality’s action (or inaction) extended beyond mere negligent oversight of the plaintiffs constitutional rights.

1. The Existence of an “Official Policy”

This court has defined an “official policy” for the purposes of § 1983 liability to be either: 1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or 2) a persistent widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. We find that the facts of this case present an “official policy” under the second of these definitions.

The City’s Code of Ordinances vests Chief Giacomozzi, as Chief of Police, with administrative and policy-making authority. Therefore, Giaeomozzi’s acts or omissions as policy-maker for the jail may subject both him and the city to § 1983 liability. While acting under his policy making authority, Giacomozzi issued “General Order MSC-1-78,” (“the General Order”) consisting of rules relating to the management and administration of the City jail. These rules mandate in relevant part that male personnel dealing with female prisoners should search the female prisoner’s coats or outer garments, but may not frisk them or conduct a pat-down search unless there is a strong probability of finding a weapon. In addition, female prisoners booked into the jail must be “thoroughly and completely searched” by female personnel with the jailer remaining nearby, then placed in a cell separated from male prisoners. And finally, the regulations provide that “[a]nytime a prisoner is released from his or her cell for any reason other than release from custody, the prisoner shall be searched upon release from and return to the cell.” The General Order does not regulate the number of jailers needed to staff the jail.

Appellant Scott conceded at oral argument that this policy is constitutional as written. Therefore, the General Order is not an actionable “official policy” under the first definition of that term. Scott contends, however, that there is an “unofficial” staffing policy which is actionable under the second definition of “official policy.” We agree.

Since the late 1970’s the City jail has been staffed by four jailers, with one jailer working each of four shifts: a.m., p.m., day, and relief. At the time of Scott’s detention, two male and two female employees filled these positions. Thus, a female detainee would necessarily be guarded by a single male jailer at some time during a twenty-four hour period. This staffing arrangement made it difficult, if not impossible, for the City jailers to follow the mandates of the General Order. Yet, this conflict between the written General Order and the day-today staffing procedures existed for at least ten years before Scott’s detention. In this situation, we conclude that the consistent custom or “unofficial policy” of having only one unsupervised male jailer present when a female detainee is in the jail constitutes an “official policy” for the purposes of § 1983 liability.

2. Existence of a Constitutional Violation:

The next step in our § 1983 analysis is to determine if Scott’s complaint alleges a constitutional deprivation. The sexual assault on Scott while she was a pre-trial detainee is not covered by the Eighth Amendment, as the Eighth Amendment’s prohibition against “cruel and unusual punishment” applies only to convicted prisoners and not to pretrial detainees like Scott. It is clear however, that pretrial detainees are Constitutionally entitled to at least as great a protection in their detention as are convicted prisoners. This right arises from the substantive protections of the Due Process Clause of the Fourteenth Amendment, which protects an individual’s liberty interest in bodily integrity. Although the Supreme Court has expressed a general reluctance to expand the concept of substantive due process in § 1988 claims, it has concluded that the government owes a duty to care for those whom have already been deprived of their liberty before the alleged constitutional violation occurs. In such cases, “the Due Process Clause of its own force requires that conditions of confinement satisfy certain minimal standards for pretrial detainees.”

In this case, by detaining Scott on criminal charges, the City had already deprived Scott of her liberty when the alleged violation of her Constitutional rights stemming from Moore’s sexual assault occurred. The City therefore had a constitutional obligation under the Fourteenth Amendment to provide Scott with minimal levels of safety and security. Scott’s claim of inadequate staffing challenges the adequacy of the levels of safety and security given to pretrial detainees in the City’s jail. Therefore, Scott’s claim properly alleges a constitutional violation.

3. Did the City’s Actions Extend beyond Negligent Oversight of Scott’s Rights?

Finally, we address whether the City’s and Giacomozzi’s failure to adequately staff the jail or to adopt a written policy on adequate staffing for the jail extends beyond mere negligent oversight of Scott’s constitutional rights. Resolution of this issue requires us to examine this court’s recent en banc decision in Hare v. City of Corinth, MS.

In Hare, this court attempted to clarify the divergent case law on the different standards used to measure pre-trial detainees’ constitutional rights to medical care and protection from harm. The en banc court concluded there should be no distinction between cases involving the right to medical care and those involving the right to be protected from harm. The court did find a distinction, however, between cases involving episodic acts and omissions by jail officials, and cases involving general conditions, practices and restrictions of confinement. In eases involving episodic acts or omissions by jail officials, the court held that liability attaches only if the officers involved were subjectively and “deliberately indifferent” to the prisoner’s rights. This high level of scrutiny insures that municipalities will not be held liable for mere negligence, but will instead only answer for intentional violations of prisoners rights.

In contrast, in cases involving the general conditions of confinement, there is an automatic assumption that the practice in question was intentional. Therefore, in such cases, the proper standard is whether the practice in question was “reasonably related to a legitimate governmental purpose”. When this test is properly applied, it is the functional equivalent of the subjective “deliberate indifference” standard applied to the episodic acts of prison officials.

In the present case, the staffing procedures in question qualify as a general condition of confinement. We therefore need not inquire into Chief Giacomozzi’s subjective intent in allowing a single male jailer to guard female prisoners in such a manner that he would by necessity have to violate the existing General Order. We need only inquire whether the practice was reasonably related to a legitimate government goal.

It is our conclusion that a reasonable factual dispute exists on this point, thereby precluding summary judgment. The defendants have offered only financial considerations as an explanation for the staffing policy at the Killeen City Jail. Although financial considerations may reasonably concern a municipality, such concerns may not trump the constitutional rights of individuals who are left at the mercy of the municipality. Furthermore, the record does not reflect how often the City detains female prisoners, or how difficult it would be to provide for an additional female staff member during those times.

In addition, the unofficial staffing policy at the Killeen City jail does not appear to serve a reasonable safety goal, and actually contradicts the official safety measures set forth in the General Order. Because the General Order reflects common concerns about the safety and privacy of female inmates, the decision to contradict the mandates of the General Order can actually be interpreted as a sign of deliberate disregard of the constitutional rights of female prisoners.

It is our opinion that a reasonable jury could find that the unofficial staffing policy at the Killeen City Jail resulted in a violation of Scott’s constitutional rights, and that the City’s actions in allowing such inadequate staffing went beyond negligent oversight of those rights. Therefore, we VACATE the district court’s grant of summary judgment on Scott’s § 1983 claim of inadequate staffing, and REMAND for further proceedings.

JERRY E. SMITH, Circuit Judge,

dissenting:

In what amounts to social engineering by judicial fiat, the panel majority has decided that as a matter of constitutional imperative, the city must maintain a minimum of two male guards, or at least one female guard, in its jail whenever a female detainee is present. Béeause there is no showing — even remotely — of a constitutional violation by the city, and because the summary judgment evidence does not support a finding of deliberate indifference, I respectfully dissent.

I.

My first disagreement is over the standard we use to determine municipal liability. Both sides treat this as a controversy over inadequate staffing and analyze the city’s conduct under the deliberate indifference standard. Erroneously, however, the majority applies the reasonable relationship standard of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

A.

Deliberate indifference is the proper standard for assessing municipal liability when the custom at issue is one of inadequate staffing. See Colle v. Brazos County, 981 F.2d 237, 245-46 (5th Cir.1993); Rhyne v. Henderson County, 973 F.2d 386, 393-94 (5th Cir.1992). The custom challenged in this case is one of providing staffing that is inadequate to protect female detainees from sexual assaults. The plaintiffs challenge to this custom is that the city’s failure to adopt a different policy — i.e., to require the presence of additional guards — caused her injury. “The Supreme Court has held that municipal failure to adopt a policy does not constitute such an intentional choice unless it can be said to have been ‘deliberately indifferent.’ ” Id. at 392.

Treating this case as one about conditions of confinement is a misapplication of Hare v. City of Corinth, 74 F.3d 633 (5th Cir.1996) (en banc). The majority concludes, without explanation, that the city’s custom of allowing a single male to guard a female detainee is a condition of confinement. At a high level of generality, this could be so, in the sense that one of the conditions in the jail is a lack of extra guards. But, at that level of generality, the omission that led to the suicide in Hare also could be called a “condition of confinement”: A condition in the jail was the lack of a guard to watch over the suicidal detainee.

The problem with the majority’s approach is that it ignores both the common-sense understanding of “conditions of confinement” and the reasons articulated in Hare for distinguishing those conditions from episodic acts or omissions. In Hare, this court carefully distinguished episodic acts or omissions from conditions of confinement. We did so because a pretrial detainee has a due process right to be free from punishment, and a hardship amounts to punishment when there is an intent to punish. See Wolfish, 441 U.S. at 538, 99 S.Ct. at 1873 (“A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.”) (emphasis added).

When asking whether a jailer intended to punish a detainee, the reasonable relationship test works comfortably in “jail condition cases,” because intent can be presumed in the form of the challenged condition, practice, rule, or restriction. Hare, 74 F.3d at 644. Thus, when the hardship of which the detainee complains is the very act of imposing a condition, practice, rule, or restriction, the only question is whether there is a reasonable relationship to a legitimate state interest. In the case of episodic acts or omissions, on the other hand, the reasonable relationship test is more difficult to apply, as intent cannot be presumed.

The lesson of Hare is that a condition of confinement is a condition, practice, rule, or restriction that itself is the wrong of which the detainee complains. The common-sense interpretation of a “condition of confinement” includes the number of bunks in a cell, the number of showers and meals per day, and even a policy of daily beatings. The intent to impose the hardship can be presumed from the existence of the policy.

Here, the wrong of which the plaintiff complains is the sexual assaults; the policy she attacks is the lack of additional staffing. One cannot infer an intent to cause the wrong merely from the existence of the challenged policy. Certainly, if the city’s policy were the complained-of disability (such as in a double-bunking case), the standard for municipal and jailer liability theoretically could merge. In this ease, it should not.

B.

A failure to adopt a policy can be deliberately indifferent when it is obvious that the likely consequence of not adopting a policy will be a deprivation of constitutional rights. City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989). The plaintiff relies on the affidavit of Charles Craig, an expert on jail policy, who averred that his experience showed him that a prison should have female officers to prevent sexual assaults, or that male officers should be supervised when allowed access to female inmates. He concluded that a failure to have two guards or a female guard could not be justified.

The record also establishes that the city has followed the same staffing procedures since the late 1970’s, yet no incident such as this has transpired. Jailers were subjected to a number of background checks, including a polygraph test, and the city limited contact between male and female jailers in order to minimize the possibility of sexual misconduct. The jail is located on the first floor of the police department, in the patrol division area, and a patrol duty sergeant would periodically check on jail personnel. More than one hundred uniformed police officers in the building had unlimited access to the jail at all times.

There is no jury question as to whether the failure to have additional staffing amounts to deliberate indifference. The city took numerous precautions to safeguard the safety of female detainees, including the requirements of the General Order and the extensive background checks of the jailers. See Rhyne, 973 F.2d at 393 (finding that the existence of a policy — albeit an inadequate one — demonstrated that the municipality was not indifferent, in the literal sense of the word). A patrol sergeant was assigned to monitor the jail and would periodically stop by to check on jail personnel.

In summary, Craig’s testimony does not establish that the city policymakers faced an obvious risk and were consciously indifferent to it. At most, the evidence could be construed to show that the jail might have been better managed, or even that Giacomozzi was not prescient in failing to consider the risk that well-trained jailers would, without warning, assault a female detainee.

II.

Even assuming that the “reasonable relationship” test should apply to this case, there is no jury question as to whether the city’s custom was reasonably related to a legitimate government interest. I find the majority’s conclusions surprising; the opinion can be supported only by misunderstanding the summary judgment evidence and by failing to apply the deference that Wolfish demands.

The reasonable relationship test is a highly deferential test that, as the majority acknowledges, should be no different, in result, from the deliberate indifference standard. As this court has explained,

The “reasonably related to a valid penological [interest] standard” never purported to allow recovery for mere negligence. To the contrary, this test is deferential to jail rulemaking; it is in essence a rational basis test of the validity of jail rules. That is, asking whether a rule is reasonably related to a legitimate governmental objective is much like asking whether a legislative enactment has any rational basis, except in the context of jail administration the legislative purpose is a given — typically a penological or administrative purpose. Violation of the Bell test requires acts or omissions not too distant from a standard of arbitrary and capricious conduct.

Hare, 74 F.3d at 646. In Wolfish, the Court articulated the deference courts must accord prison officials:

“The problems that arise in the day-to-day operations of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. ‘Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters’ ”

441 U.S. at 547-48, 99 S.Ct. at 1878-79 (citations omitted); see also Block v. Rutherford, 468 U.S. 576, 584-85, 104 S.Ct. 3227, 3231-32, 82 L.Ed.2d 438 (1983) (reaffirming the deferential standard of Wolfish).

When applying the Wolfish test, we must take, as a given, that the city’s policy is based on a penological purpose and must ask whether the policy at issue is reasonably related to that end. Hare, 74 F.3d at 646. In this case, the question is whether the city’s policies are reasonably related to the goal of providing a safe detention center for female detainees. In other words, do the alleged deficiencies with the city’s policies prove that those policies were arbitrary and capricious?

The custom at issue is broader than that which the majority describes. The majority is correct that it is a custom to have four guards — two of whom are women — and to split their duties into four shifts over a twenty-four-hour period. The policy also includes provisions to protect female detainees from some types of sexual molestation. Additionally, the city requires substantial background cheeks of its applicants.

The plaintiff has failed to show the existence of facts demonstrating that the city’s custom was arbitrary and capricious. The city took precautions to protect the safety of female inmates and made a decision to staff its jails based on limited financial resources. There is no evidence demonstrating that, objectively, such a policy generally would fail to protect pretrial detainees. In fact, the evidence demonstrated that for ten years, the city had not received any complaints of sexual assaults. The city’s choice may not have been perfect, but it was not unconstitutional. See Wolfish, 441 U.S. at 542 n. 25, 99 S.Ct. at 1876 n. 25 (“Governmental action does not have to be the only alternative or even the best alternative for it to be reasonable, to say nothing of constitutional.”).

“Courts must be mindful that these injuries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.” Id. at 539, 99 S.Ct. at 1874. I respectfully dissent.

Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

ORDER

July 17, 1996

BY THE COURT:

A majority of the judges in active service having determined, on the court’s own motion, to rehear this case en banc,

IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The Clerk -will specify a briefing schedule for the filing of supplemental briefs.

      . Scott v. Moore, 987 F.2d 771, No. 92-8284 (5th Cir., March 3, 1993) (unpublished) (per curiam).

      . Wattman v. International Paper Co., 875 F.2d 468, 474 (5th Cir.1989).

      . Fed.R.Civ.P. 56(c).

      . Isquith v. Middle South Utilities., Inc., 847 F.2d 186, 198-99 (5th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988).

      . Celotex Corp. v. Catrett, 477 U.S. 317, 321-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

      . Id.

      . Collins v. City of Harker Heights, TX, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).

      . 42 U.S.C. § 1983 (emphasis added).

      . Daniels v. Williams, 474 U.S. 327, 329-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986); Evans v. City of Marlin, 986 F.2d 104, 107 (5th Cir.1993), disagreed with on other grounds, Hare v. City of Corinth, MS, 74 F.3d 633 (5th Cir.1996).

      . Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690-94, 98 S.Ct. 2018, 2035-37, 2039, 56 L.Ed.2d 611 (1978).

      . Oklahoma City v. Tuttle, 471 U.S. 808, 817, 105 S.Ct. 2427, 2433, 85 L.Ed.2d 791 (1985); Monell, 436 U.S. at 691, 98 S.Ct. at 2036; Doe v. Taylor Indep. School Dist., 15 F.3d 443, 452 (5th Cir.) (en banc), cert. denied, - U.S. -, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994).

      . Rhyne v. Henderson Cty., 973 F.2d 386, 392 (5th Cir.1992) (citing, City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989)).

      . Farmer v. Brennan, - U.S. -, -, 114 S.Ct. 1970, 1973, 128 L.Ed.2d 811 (1994).

      . Hare v. City of Corinth, MS, 74 F.3d 633 (5th Cir.1996); Colle v. Brazos Cty., TX, 981 F.2d 237, 246 (5th Cir.1993) (concluding that “the ultimate question is whether Brazos County adopted policies creating an obvious risk that pretrial detainees’ constitutional rights would be violated"); Rhyne, 973 F.2d at 392 ("while the municipal policy maker's failure to adopt a precaution can be the basis for § 1983 liability, such omission must amount to an intentional choice, not merely an unintentionally negligent oversight.”).

      . Id.

      . Monell, 436 U.S. at 690-94, 98 S.Ct. at 2035-37.

      . Id.

      . Hare, 74 F.3d at 643, Colle, 981 F.2d at 246; Rhyne, 973 F.2d at 392.

      . Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984).

      . Id.

      . The General Order contains only three references to staffing: 1) "[t]he Jailer shall be the booking officer when on duty;” 2) ”[i]n the absence of an on-duty Jailer, the assigned desk officer shall assume the overall duties and responsibilities of the jailer;” and 3) “the arresting officer shall book his or her own prisoner if the desk officer is not available”.

      . Webster, 735 F.2d at 841.

      . For example, if a female prisoner has to leave her cell while a single male jailer is on duty, the jailer will have to violate either the rule that the prisoner be searched both upon exiting and reentering her cell, or the rule that all searches of female prisoners be done by a female employee. In this case, Scott left her cell a least three times to use the telephone.

      . See Monell, 436 U.S. at 691, 98 S.Ct. at 2036 (a "permanent and well settled” custom may provide basis for imposing liability on a municipality) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 168, 90 S.Ct. 1598, 1614, 26 L.Ed.2d 142 (1970)); Webster, 735 F.2d at 841, (defining "official policy" as including a "persistent widespread practice of city officials and employees, which although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy”).

      . Collins, 503 U.S. at 120, 112 S.Ct. at 1066.

      . Ingraham v. Wright, 430 U.S. 651, 671, n. 40, 97 S.Ct. 1401, 1412, n. 40, 51 L.Ed.2d 711 (1977).

      . See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983).

      . Partridge v. Two Unknown Police Officers of the City of Houston, 791 F.2d 1182, 1186 (5th Cir.1986).

        . Collins, 503 U.S. at 125, 112 S.Ct. at 1068.

      . Id. at 126-27, 112 S.Ct. at 1069-70.

      . Id. at 127, 112 S.Ct. at 1070.

      . 74 F.3d 633 (5th Cir.1996).

      . Id. at 643.

      . Id.

      . Id. at 643, adopting the standard set forth in Farmery. Brennan, - U.S. -, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

      . Id.

      . Id. at 645.

      . Id. at 640, adopting the standard se forth in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

      . Id. at 643.

      . Id.

      . See, DeShaney v. Winnebago Cty. Dep’t of Social Services, 489 U.S. 189, 198, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249 (1989) (recognizing that “when the state takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being”).

      . In fact, the deposition testimony of Chief Giacomozzi indicates that the officer in charge of the jail had the discretion to call extra officers from the Killeen City Police Department to the jail in times of need. Yet, inexplicably, this procedure has never been used.

      . Hare, 74 F.3d at 645 ("Asking about the rationality of the relationship between an official’s episodic acts or omissions and a legitimate governmental objective begs the underlying question whether that official had the requisite mental state to establish his liability as a perpetrator of the particular act or omission, not as a dispenser of intended conditions or restrictions.”).

      . See, e.g. Murphy v. Walker, 51 F.3d 714 (7th Cir.1995) (treating shackling and revocation of telephone, television, and cigarette privileges as a condition of confinement); Collazo-Leon v. U.S. Bureau of Prisons, 51 F.3d 315 (1st Cir.1995) (treating disciplinary segregation and denial of telephone and visitation privileges as a condition of confinement); United States v. Millan, 4 F.3d 1038 (2d Cir.1993) (treating length of pre-trial detention as a condition of confinement), cert. denied, — U.S. -, 114 S.Ct. 1375, 128 L.Ed.2d 51, and cert. denied, - U.S. -, 114 S.Ct. 1386, 128 L.Ed.2d 60 (1994); Hause v. Vaught, 993 F.2d 1079 (4th Cir.1993) (treating restriction on mail privileges as a condition of confinement), cert. denied, - U.S. -, 114 S.Ct. 702, 126 L.Ed.2d 668 (1994); Brogsdale v. Barry, 926 F.2d 1184 (D.C.Cir.1991) (treating overcrowding as a condition of confinement); Lyons v. Powell, 838 F.2d 28 (1st Cir.1988) (treating 22-23 hour confinement and placement of mattress on the floor as a condition of confinement); Fredericks v. Huggins, 711 F.2d 31 (4th Cir.1983) (treating policy of refusing detainees access to drugs for rehabilitation as a condition of confinement); Lareau v. Manson, 651 F.2d 96 (2d Cir.1981) (treating overcrowding as a condition of confinement).

      . I pause to point out that Hare dealt with the question of when a detainee’s constitutional rights have been violated. As the court pointed out, determining the existence of a constitutional violation is only the first step in determining municipal liability for that violation. Hare, 74 F.3d at 649 n. 4.
      In the case of an omission or episodic act, the existence of a constitutional violation would be determined by the subjective deliberate indifference standard. Municipal liability for that violation would be determined under the objective deliberate indifference standard.
      We separate the two issues: the existence of a constitutional violation simpliciter and a municipality’s liability for that violation. Different versions of the deliberate indifference test govern the two inquiries. Our opinion in this case makes clear that to prove an underlying constitutional violation in an individual or episodic acts case, a pre-trial detainee must establish that an official acted with subjective deliberate indifference. Once the detainee has met this burden, she has proved a violation of her rights under the Due Process Clause. To succeed in holding a municipality accountable for that due process violation, however, the detainee must show that the municipal employee's act resulted from a municipal policy or custom adopted or maintained with objective deliberate indifference to the detainee's constitutional rights.

        Id.

      If a non-policymaker imposed a condition of confinement on a detainee, see, e.g., Bryer v. Creati, 915 F.2d 1556 (1st Cir.1990) (unpublished) (applying condition-of-confinement analysis where a police officer left open a window during freezing weather), the reasonable relationship test would be used to determine whether the detainee's constitutional rights had been violated. To determine municipal liability for the violation, the objective deliberate indifference test would be used, because a policymaker did not promulgate a policy of imposing that condition of confinement.
      The majority has assumed that when a policymaker creates the condition of confinement, the standards for determining the underlying constitutional violation and municipal liability are the same. Because I disagree with the majority that this is a case about conditions of confinement, I do not address that contention. See generally Roman v. Jeffes, 904 F.2d 192, 197-98 (3d Cir.1990) (applying the reasonable relationship test to determine whether a policy of limiting a detainee to one bag of possessions during a transfer violated his constitutional rights, but applying the objective deliberate indifference standard to determine whether the municipality was liable for promulgating the rule).

      . Even if the district court relied on an incorrect legal standard, the plaintiff has waived any challenge to that error. The district court granted summary judgment under the deliberate indifference standard, and plaintiff has not challenged the use of that standard. Instead, she has consistently argued that there is a material fact issue on the question of deliberate indifference.
      The majority's reliance on Hare is misplaced. The reasonable relationship test predated Hare. If the plaintiff believed that the district court applied the wrong standard, she should have raised that argument on appeal. That the en banc court limited the applicability of the reasonable relationship test hardly justifies an exception to the waiver rule. The plaintiff was on notice that the reasonable relationship test existed, and she has not argued that it should apply to this case.

      . There is no evidence that Chief Giacomozzi has ever had any complaints of sexual assault by a jailer or any related type of complaint prior to the incident at issue here.

      . The City subjected Moore, the perpetrator of this incident, to a background investigation, medical examination and polygraph test as a condition of his employment. In addition, Moore had been previously employed as a commissioned police officer, without incident, for four years prior to his employment with the jail. He was trained in the official policies of jail management by experienced jailers.

      . General Order MSC-1-78 ("the General Order”), which regulates the management of the city jail, prohibits male personnel from frisking or conducting a pat-down search of a female prisoner. It also requires that a female be searched by female personnel. Moreover, anytime a prisoner is released from her cell for any reason, the General Order requires that she be searched upon release from and return to the cell. Finally, the policy allows for additional staffing by commissioned officers of the police department when the holding facility's population is large or if a difficult prisoner is in custody.
      The majority claims that the staffing policy made it inevitable that the General Order would be disregarded. I find nothing in the record to support such a conclusion or inference. The majority bases its conclusion on the fact that the four jailers could not possibly follow the General Order. What the majority fails to consider is that the jail is located where the jailers could easily call for a uniformed officer to assist them when a female detainee is hooked and searched.

        . See also Wolfish, 441 U.S. at 542, 99 S.Ct. at 1875 (citing rational basis cases to support the use of a reasonable relationship test); id. at 586, 99 S.Ct. at 1898 (Stevens J., dissenting) ("In short, a careful reading of the Court's opinion reveals that it has attenuated the detainee’s constitutional protection against punishment into nothing more than a prohibition against irrational classifications or barbaric treatment. Having recognized in theory that the source of that protection is the Due Process Clause, the Court has in practice defined its scope in the far more permissive terms of equal protection and Eighth Amendment analysis.”).


author: PER CURIAM: GARWOOD, Circuit Judge, with whom WIENER and EMILIO M. GARZA, Circuit Judges,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kevin Glenn RAWLS, Defendant-Appellant.
    No. 95-50861
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    June 17, 1996.

      Richard L. Durbin, Jr., Asst. U.S. Attorney, Joan E.T. Stearns, Office of the United States Attorney, San Antonio, TX, for plaintiff-appellee.
    Kevin Glenn Rawls, Lewisburg, PA, pro se.
    Before GARWOOD, WIENER and EMILIO M. GARZA, Circuit Judges.
   PER CURIAM:

Plaintiff-Appellant Kenneth Glenn Rawls is a federal prisoner serving a sentence imposed following conviction by a jury for possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a) (count one), and acquisition of a firearm by knowingly making a false written statement, in violation of § 922(a)(6) (count two). Seeking relief through 28 U.S.C. § 2255, Rawls filed a motion to vacate, set aside, or correct his sentence, which motion was denied by the district court. For the reasons set forth below, we affirm.

I

FACTS AND PROCEEDINGS

When Rawls was convicted on counts one and two, the government sought an enhanced sentence under 18 U.S.C. § 924(e)(1), on the basis of Rawls’ two burglary convictions grounded in different occurrences on the same date, and a conviction for robbery committed three years thereafter. As a result, Rawls was sentenced to an enhanced sentence totaling 188 months of imprisonment, a total period of supervised release of five years, a $1500 fine, and a $100 special assessment. In his unsuccessful direct appeal to this court, Rawls argued that (1) the district court abused its discretion in admitting purported hearsay testimony during the trial; (2) the evidence was insufficient to prove that he knowingly made a false statement in connection with his acquisition of the firearm; (3) his constitutional rights were violated by the court’s use of the preponderanee-of-theevidenee standard for the government’s burden of proof for enhancement of his sentence under § 924(e)(1); and (4) the enhancement under that section was improper because the two burglaries, committed on the same date, could not be deemed “separate occurrences.”

In his § 2255 motion, Rawls insists that § 922(g)(1) is unconstitutional for exceeding the authority of Congress under the Commerce Clause, and is unconstitutional as applied to him under the facts of this case. He also urges that he had ineffective assistance of counsel and that he should receive a three level downward adjustment for acceptance of responsibility. For good measure, Rawls urges that his two prior burglary offenses should have been counted as only one offense under the authority of U.S.S.G. § 4A1.2, that pre-indictment delay violated his due process rights, and that his Fourth Amendment rights were violated. The district court denied the § 2255 motion and this appeal ensued.

II

ANALYSIS

Relying in large part on United States v. Lopez, — U.S. -, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Rawls argues that Congress exceeded its authority to regulate commerce when it enacted § 922(g)(1). That section, however, has been held to be constitutional under the Commerce Clause. United States v. Wallace, 889 F.2d 580, 583 (5th Cir.1989), cert. denied, 497 U.S. 1006, 110 S.Ct. 3243, 111 L.Ed.2d 753 (1990). In Lopez, the Supreme Court affirmed our holding that 18 U.S.C. § 922(q), which purported to criminalize possession of a firearm within a specified proximity to a school, exceeded the power of Congress to legislate under the Commerce Clause because “[t]he possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.” Lopez, — U.S. at -, -, 115 S.Ct. at 1626, 1634. Central to the Court’s holding in Lopez was the fact that § 922(q) contained “no jurisdictional element which would ensure, through a ease-by-case inquiry, that the firearm possession in question affects interstate commerce.” Id. at -, 115 S.Ct. at 1631.

We have not, since Lopez, considered its effect on the constitutionality of § 922(g)(1). Other circuits addressing the issue since Lopez have concluded that the Court’s reasons for holding § 922(q) unconstitutional are inapplicable to § 922(g)(1). See United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir.1995); United States v. Bell, 70 F.3d 495, 498 (7th Cir.1995); United States v. Shelton, 66 F.3d 991, 992 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1364, 134 L.Ed.2d 530 (1996); United States v. Hanna, 55 F.3d 1456, 1462 & n. 2 (9th Cir.1995); United States v. Collins, 61 F.3d 1379, 1383-84 (9th Cir.), cert. denied, — U.S. -, 116 S.Ct. 543, 133 L.Ed.2d 446 (1995); United States v. Bolton, 68 F.3d 396, 400 (10th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996). Today we join all other circuits that have considered the issue post-Lopez and hold that neither the holding in Lopez nor the reasons given therefor constitutionally invalidate § 922(g)(1).

Rawls also argues that § 922(g)(1) is unconstitutional as applied to him. More specifically, he points out that when he was arrested no interstate activity was occurring. He contends that, as such, he was not involved in an enterprise engaged in interstate or foreign commerce, so his possession of the firearm “had no connection to channels or instrumentalities of interstate commerce.” This argument too is unavailing.

Section 922(g)(1) makes it unlawful for a person who has been convicted of a felony “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” The “in or affecting commerce” element can be satisfied if the firearm possessed by a convicted felon had previously traveled in interstate commerce. United States v. Fitzhugh, 984 F.2d 143, 146, cert. denied, — U.S. -, 114 S.Ct. 259, 126 L.Ed.2d 211 (1993) (“[A] convicted felon’s possession of a firearm having a past connection to interstate commerce violates § 922(g).”); Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977) (concluding that Congress did not intend to require any more than the minimal nexus that, at some time, the firearm had been in interstate commerce). As we noted on direct appeal, an ATF weapons expert testified at Rawls’ trial that the revolver he possessed was manufactured in Massachusetts, so that the revolver’s presence in Texas had to result from transport in interstate commerce. This evidence is sufficient to establish a past connection between the firearm and interstate commerce. See Fitzhugh, 984 F.2d at 146. We hold that § 922(g)(1) is not unconstitutional as applied to Rawls.

As for the other issues urged by Rawls in this appeal, it suffices that we have reviewed the record and considered the legal arguments raised by the parties in their briefs to this court, and are satisfied that no reversible error has been committed, and that Rawls is-entitled to no relief, in connection with his claims regarding the counting of prior crimes and ineffective assistance of counsel. The remaining claims asserted by Rawls in his § 2255 motion have not been raised on appeal and are thus deemed abandoned. Hobbs v. Blackburn, 752 F.2d 1079, 1083 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985). For the foregoing reasons, the rulings of the district court culminating in the denial of Rawls’ § 2255 motion are, in all respects,

AFFIRMED.

GARWOOD, Circuit Judge, with whom WIENER and EMILIO M. GARZA, Circuit Judges,

join, specially concurring:

I concur, with these added observations. If the matter were res nova, one might well wonder how it could rationally be concluded that mere possession of a firearm in any meaningful way concerns interstate commerce simply because the firearm had, perhaps decades previously before the charged possessor was even born, fortuitously traveled in interstate commerce. It is also difficult to understand how a statute construed never to require any but such a per se nexus could “ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” United States v. Lopez, — U.S. -, -, 115 S.Ct. 1624, 1631, 131 L.Ed.2d 626 (1995). However, the opinion in Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), dealing with the predecessor to section 922(g), requires us to affirm denial of relief here. While Scarborough addresses only questions of statutory construction, and does not expressly purport to resolve any constitutional issue, the language of the opinion and the affirmance of the conviction there carry a strong enough implication of constitutionality to now bind us, as an inferior court, on that issue in this essentially indistinguishable case, whether or not the Supreme Court will ultimately regard it as a controlling holding in that particular respect. Nothing in Lopez expressly purports to question Scarborough, and indeed it is not even cited in Lopez. Moreover, section 922(g) at issue here, unlike section 922(q) at issue in Lopez, does expressly require some nexus to interstate commerce, thus importantly reflecting that Congress was exercising that delegated power and not merely functioning as if it were the legislative authority of a unitary state. Lopez refused to “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States” and, though recognizing that “[t]he broad language” in some of its prior opinions “has suggested the possibility of additional expansion,” nevertheless “decline[d] here to proceed any further.” Id. at -, 115 S.Ct. at 1634. It is not for us to say that following what seems to be implicit in Scarborough is to proceed “further” down the road closed by Lopez. In any event, this panel is bound by our post-Lopez decision in United States v. Segeada, No. 95-40430, 74 F.3d 1237 (5th Cir. Nov. 30, 1995) (unpublished), holding section 922(g)(1) constitutional.

      . In United States v. Segeada, No. 95-40430, 74 F.3d 1237 (5th Cir. Nov. 30, 1995) (unpublished), we held, without discussion, that the defendant’s assertion that § 922(g)(1) was unconstitutional did not constitute reversible error.

      . As neither party has requested oral argument, this special concurrence is consistent with summary calendar disposition.

      . See, for example, the following from Scarborough where the Court observed: "... we see no indication that Congress intended to require any more than the minimal nexus that the firearm have been, at some time, in interstate commerce.” Id. at 575, 97 S.Ct. at 1969 (footnote omitted).