author: CLARKE, Senior District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ronald Sherrill WILKERSON, Defendant-Appellant.
    No. 95-5321.
    United States Court of Appeals, Fourth Circuit.
    Argued March 4, 1996.
    Decided May 24, 1996.

      ARGUED: Ronnie Monroe Mitchell, Harris, Mitchell & Hancox, Fayetteville, North Carolina, for Appellant. David J. Cortes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Raleigh, North Carolina, for Appellee.
    Before LUTTIG, Circuit Judge, CHAPMAN, Senior Circuit Judge, and CLARKE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
   Affirmed by published opinion. Senior Judge CLARKE wrote the opinion, in which Judge LUTTIG and Senior Judge CHAPMAN joined.

OPINION

CLARKE, Senior District Judge:

Ronald Sherrill Wilkerson was convicted by jury of two counts of bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and two counts of using a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c). In this appeal, he challenges (1) the in-eourt eyewitness identifications which he claims were tainted by prior suggestive photographic lineups and (2) the trial judge’s exclusion of exculpatory hearsay statements. Because the admission of the eyewitnesses’ in-court identifications was not plainly erroneous and because the trial judge did not abuse his discretion in excluding the hearsay statements, we affirm.

I

When the sufficiency of evidence to support a conviction is challenged, the relevant facts are viewed in the light most favorable to the government. Accordingly, the facts are as follows.

On March 7, 1994, Wilkerson entered the Centura Bank in Fayetteville, North Carolina, wearing a mask and carrying a satchel in one hand and ah automatic pistol in the other. He told one customer to “get down on the floor, this is a robbery.” He then approached the head teller, Julie Webb, pointed the gun at her, and handed the satchel over with instructions to fill it with large bills. She told him that she did not have the keys to her teller station, whereupon Wilkerson told her to get them. While Webb went to retrieve the keys, Wilkerson gave the satchel to another teller, Cynthia Barker, saying “fill it up.” Barker complied with Wilkerson’s request, placing approximately $750 in the bag. Upon her return, Webb deposited another $1500 in the satchel. Wilkerson then walked out the front door and headed towards his waiting car. Barker followed him to the door in order to lock the bank. As she reached the door, she saw Wilkerson take off his mask. He turned and looked at her, thus giving her the opportunity to see both the front and side of his face.

Two customers in the drive-through teller lane saw the robbery and also saw Wilkerson without his mask on. One of these eyewitnesses, Steven Daniels, pulled in front of the getaway car and saw Wilkerson’s face, making eye contact with Wilkerson a number of times. The other eyewitness, Carl Pollick, also saw Wilkerson remove his mask. Both Pollick and Daniels chased Wilkerson’s car. They described it as a gray or silver Camaro-like sports ear with grates on the back window. Daniels only chased Wilkerson for a short time, but Pollick continued the chase, attempting to get a license plate number. The license plate had been flipped over, however. After Pollick lost sight of the car, he remained in the neighborhood, searching for it. Within three to five minutes, he spotted a car which he believed to be the getaway car. This time, the license plate was visible, and, when Wilkerson stopped at a gas station, Pollick wrote down the plate number.

Based upon the license number, the police were able to identify Wilkerson as the owner of the car, but were unable to apprehend Wilkerson. The police did, however, show Daniels and Barker a photographic lineup containing Wilkerson’s photo on March 21, 1994. Although neither of them positively identified Wilkerson, Barker stated that he looked familiar to her and Daniels picked Wilkerson’s photo as the person who looked like the bank robber. There is no evidence in the record concerning the other pictures in the lineup.

Wilkerson was still at large on May 13, 1994. On that day, the Branch Manager of the State Bank of Fayetteville, John McFay-den, saw Wilkerson drive up to the bank wearing a gorilla mask. Wilkerson walked into the bank carrying a Coleman cooler, a pistol visible in his front pocket. He demanded money in large bills; two tellers, Tammy Laughner and Cynthia Landry, handed over money from their cash drawers. Some of the money Landry gave Wilkerson was bait money whose serial numbers had been recorded. Upon returning to his car, Wilkerson removed his mask and looked back at McFayden and Laughner. On May 17,1994, four days later, both McFayden and Laughner looked at the photographic lineup and stated that Wilkerson’s photo closely resembled the robber.

On May 24, 1994, two FBI agents spotted Wilkerson, and after a slow-speed pursuit, began questioning him about his whereabouts on the dates of the two robberies. Wilkerson provided an alibi for the time of each robbery; however, these were later discredited. The agents requested and received Wilkerson’s permission to search the car. Under the driver’s seat, they found a black plastic case containing 20 five dollar bills. The agents randomly selected some of these bills and found that the serial numbers matched the bait money numbers provided by the State Bank of Fayetteville. Wilkerson was not arrested at this time.

On June 2, 1994, Wilkerson and his aunt went to the Centura Bank to make a deposit. Barker became upset when she saw Wilkerson, believing him to be the bank robber, and called the police. Wilkerson, however, was not arrested until August 26, 1994, following a call to the FBI from McFayden, who had spotted and identified Wilkerson in the lobby of a Holiday Inn.

At trial, Barker and Daniels identified Wilkerson in court as the individual who robbed the Centura Bank on March 7, 1994. McFayden and Laughner also made in-eourt identifications. Other evidence presented at trial included Wilkerson’s possession of the bait money, Pollick’s statement about the license plate number, the discrediting of Wilkerson’s alibis, and Wilkerson’s girlfriend’s testimony concerning a cooler of money he had shown her the evening of the second robbery. In addition, FBI agent Parker testified regarding the search of Wilkerson’s car and the discovery of the cash under the car seat. On cross-examination, the trial judge refused to allow Parker to be questioned about the statements Wilkerson had made after the search of his car implicating his cousin.

II

Wilkerson first contends that the trial court erred by allowing the eyewitnesses to identify Wilkerson at trial as the robber of the Centura Bank and the State Bank of Fayetteville. He claims that this violated his due process rights because the in-court identifications were tainted by the prior suggestive photographic lineups.

A motion to suppress evidence should be raised prior to trial. Fed R.Crim. P. 12(b)(3). Wilkerson failed to do so. Furthermore, although Wilkerson’s attorney did object to the introduction of the prior photographic lineup identifications at trial, he did not do so on the basis of the suggestiveness of the lineup. Instead, he objected to the eyewitnesses testifying about the photographic lineups at trial because they had not positively identified Wilkerson at the time of the lineups. Because Wilkerson’s objection to the admission of the photographic lineup evidence on appeal is not the same as his objection at trial, the standard of review is one of plain error. Fed.R.Crim.P. 52(b); see also United States v. Adam, 70 F.3d 776, 780 (4th Cir.1995) (plain error standard applies where appellant did not object to statements made at trial); United States v. Brewer, 1 F.3d 1480, 1434 (4th Cir.1993) (plain error standard used “where counsel fails to adequately present and preserve an objection on the record”). We find no error in the admission of the in-court identifications.

The Supreme Court has outlined a two-step analysis for determining whether identification testimony is admissible. First, the defendant must establish that the photographic lineup procedure was impermissibly suggestive. Manson v. Brathwaite, 432 U.S. 98, 110, 97 S.Ct. 2243, 2251, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Second, even if the procedure was suggestive, the in-court identification is valid if it was reliable. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; Biggers, 409 U.S. at 199, 93 S.Ct. at 382; Willis v. Garrison, 624 F.2d 491, 493 (4th Cir.1980). The factors the court may consider in measuring reliability include: (1) the witness’ opportunity to view the perpetrator at the time of the crime; (2) the witness’ degree of attention at the time of the offense; (3) the accuracy of the witness’ prior description of the perpetrator; (4) the witness’ level of certainty when identifying the defendant as the perpetrator at the time of the confrontation; and (5) the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382-83. These factors are weighed against the “corrupting effect of the suggestive identification itself.” Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253. Courts may also consider other evidence of the defendant’s guilt when assessing the reliability of the in-court identification. See, e.g., United States v. Lau, 828 F.2d 871, 875 (1st Cir.1987) (court relies on fact that one defendant had license to fly the plane in question, another was nearby the site where the transaction occurred, and the witness used the defendants’ correct names when first describing them to the authorities, to support the reliability of the witness’ identification of the defendants), cert. denied, 486 U.S. 1005, 108 S.Ct. 1729, 100 L.Ed.2d 194 (1988); United States v. DiTommaso, 817 F.2d 201, 214 n. 17 (2d Cir.1987) (even if the identification was unreliable, error was harmless where evidence as a whole was overwhelming); United States v. Bell, 812 F.2d 188, 193 (5th Cir.1987) (identification may be reliable in the context of all the circumstances and evidence).

In this case, Wilkerson has failed to establish that the photographic lineup was impermissibly suggestive. The lineup was not made a part of the appellate record, the district court has not ruled on the issue, and the only evidence of suggestibility is Wilkerson’s bare assertion that the other photos did not look like the perpetrator as described by the witnesses. Consequently, Wilkerson fails the first part of the analysis.

Furthermore, assuming arguendo that the photographic array was impermissibly suggestive, Wilkerson’s argument would still fail because the in-court identifications were reliable. All the witnesses saw Wilkerson’s face in broad daylight while their full attention was focused on him. The witnesses’ prior descriptions were fairly accurate. The witnesses who identified Wilkerson at trial were positive of their in-eourt identification. In addition, it is unlikely that the photos had a corrupting effect on the in-court identifications. None of the witnesses positively identified Wilkerson from the photographic lineup, perhaps due to the poor quality of the photos as described by both parties. There was no evidence that the photos were shown repeatedly to the witnesses or that the police emphasized Wilkerson’s photo. See Simmons, 390 U.S. at 383, 88 S.Ct. at 971 (danger of misidentification is heightened if defendant’s picture is emphasized or recurs in lineup). Under these circumstances, we cannot say that “there is a substantial likelihood of irreparable misidentification.” Id. at 384, 88 S.Ct. at 971. Finally, the fact that two of the witnesses, Barker and McFayden, upon observing Wilkerson in public, were so certain that he was the bank robber that they called the authorities, also lends substantial support to the reliability of the identifications. Accordingly, because Wilkerson has failed to show both that the photographic lineup was impermissibly suggestive and that the witnesses’ testimony was unreliable, Wilkerson’s due process rights were not violated by the in-court identifications.

Ill

Wilkerson also alleges that the district court erred in prohibiting him from eliciting, on cross-examination of Agent Parker, exculpatory statements he had made explaining how he had acquired the bait money. Wilkerson claims that the trial judge should have allowed in this testimony under the rule of completeness. A trial judge’s evidentiary decisions are reviewed for abuse of discretion. United States v. Hassan El, 5 F.3d 726, 731 (4th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1374, 128 L.Ed.2d 50 (1994).

The common-law doctrine of completeness has been partially codified in Rule 106 of the Federal Rules of Evidence. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72, 109 S.Ct. 439, 450-51, 102 L.Ed.2d 445 (1988). The rule applies only to writings or recorded statements, not to conversations. Fed.R.Evid. 106, advisory committee notes; United States v. Bigelow, 914 F.2d 966, 972 (7th Cir.1990), cert. denied, 498 U.S. 1121, 111 S.Ct. 1077, 112 L.Ed.2d 1182 (1991). Thus, Wilkerson’s reliance on the rule is misplaced. Furthermore, when the rule does apply, its purpose is to prevent a party from misleading the jury by allowing into the record relevant portions of the excluded testimony which clarify or explain the part already received. United States v. Ricks, 882 F.2d 885, 893 (4th Cir.1989), cert. denied, 493 U.S. 1047, 110 S.Ct. 846, 107 L.Ed.2d 841 (1990); Merrick v. Mercantile-Safe Deposit & Trust Co., 855 F.2d 1095, 1103-04 (4th Cir.1988); United States v. Jamar, 561 F.2d 1103, 1108 (4th Cir.1977). In this case, during direct examination Agent Parker testified that the agents found a black case containing some of the bait money while searching Wilkerson’s car. No other testimony about any portions of a conversation between the agents and Wilkerson regarding that particular cache of money was introduced. Thus, the rule of completeness, if it applied to oral conversations, would not have applied here where there was no partially introduced conversation that needed clarification or explanation.

The evidentiary rules which properly govern the admissibility of Wilkerson’s exculpatory statements are contained within the hearsay rule and the exceptions thereto. See Fed.R.Evid. 801, 802, 803, and 804. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.Evid. 801(c). Admissions by a party-opponent are not considered hearsay and therefore can be admitted against that party. Fed.R.Evid. 801(d)(2). Thus, during direct examination, the government could have introduced inculpatory statements made by Wilkerson. The rules do not, however, provide an exception for self-serving, exculpatory statements made by a party which are being sought for admission by that same party. See Fed.R.Evid. 803-804. Moreover, even if, as Wilkerson claims, Rule 106 had applied to this testimony, it would not render admissible the evidence which is otherwise inadmissible under the hearsay rules. See United States v. Woolbright, 831 F.2d 1390, 1395 (8th Cir.1987) (neither Rule 106 or Rule 611 authorizes a court to admit unrelated hearsay when that hearsay does not fall within one of the exceptions to the hearsay rule). Consequently, because the exculpatory statement in question here was pure hearsay and no exception enumerated in the rules permit its introduction, the trial judge did not abuse his discretion in prohibiting its admission.

IV

Wilkerson’s counsel has filed a brief pursuant to Anders v. California) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel has requested this Court to review the record for any basis for appeal that he may have over looked. In accordance with Anders, we have examined the record and have found no basis for appeal.

V

Finding no error in either the admission of the in-court identifications or the trial court’s exclusion of exculpatory hearsay statements, Wilkerson’s conviction is

AFFIRMED.

      . Later, a comprehensive comparison revealed that 18 of the 20 bills matched the bait money inventory list.

      . The trial judge instructed counsel that inconsistent statements went to the probative value of the testimony and should be discredited by counsel through cross-examination.

      . During oral argument, Wilkerson’s attorney claimed that the photos were of poor quality and that only one of the photos, the one of Wilkerson, resembled the perpetrator as described by the witnesses. The government agreed that the photos were of poor quality, but stated that the individuals in the photos were similar in appearance.

      . The rule provides that:
      [w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
      Fed.R.Evid. 106.


source: Caselaw Access Project

author: WILKINS, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Michael John GOOSSENS, Defendant-Appellee.
    No. 95-5520.
    United States Court of Appeals, Fourth Circuit.
    Argued March 6, 1996.
    Decided May 28, 1996.

      ARGUED: William Graham Otis, Senior Litigation Counsel, Alexandria, Virginia, for Appellant. Elizabeth Doyle Teare, Surovell, Jackson, Colten & Dugan, P.C., Fairfax, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Andrew G. McBride, Assistant United States Attorney, Vincent L. Gambale, Assistant United States Attorney, Alexandria, Virginia, for Appellant. William B. Reiehhardt, Surovell, Jackson, Colten & Dugan, P.C., Fairfax, Virginia, for Appellee.
    Before WIDENER and WILKINS, Circuit Judges, and CHAPMAN, Senior Circuit Judge.
   Vacated and remanded with instructions by published opinion. Judge WILKINS wrote the opinion, in which Judge WIDENER and Senior Judge CHAPMAN joined.

OPINION

WILKINS, Circuit Judge:

Michael John Goossens pled guilty to one count of knowing possession of three or more materials depicting minors engaged in sexually explicit conduct. See 18 U.S.C.A. § 2252(a)(4)(B) (West Supp.1996). In imposing sentence, the district court departed downward from the applicable guideline range based on a finding that Goossens suffered from diminished mental capacity that contributed to his offense. See United States Sentencing Commission, Guidelines Manual, § 5K2.13, p.s. (Nov.1994). The Government appeals the sentence imposed, asserting that the district court erred in departing downward on this basis. See 18 U.S.CA § 3742(b)(3) (West Supp.1996). We agree. Consequently, we vacate the sentence imposed by the district court and remand for resentencing in accordance with this opinion.

I.

Using his home computer and modem, Goossens accessed computer bulletin boards located outside Virginia that distributed computer files containing high quality visual images that may be displayed on a computer screen or printed onto paper. Goossens downloaded numerous files depicting child pornography from these databases onto his computer. Thereafter, he encrypted many of these files using a computer program prohibiting access without a password known only to him. Law enforcement authorities became aware of Goossens’ activities after examining the records of a company operating one such bulletin board and obtained a search warrant for his home, resulting in the seizure of myriad examples of child pornography on various mediums.

Soon afterward, Goossens entered a plea agreement under which he would admit his guilt for one count of possession of child pornography in violation of 18 U.S.CA § 2252(a)(4)(B) and agree to the entry of an order of forfeiture for specified property connected to the offense. The agreement also contemplated that Goossens would cooperate fully with an investigation of additional criminal activity by other individuals. In exchange, if Goossens’ assistance to law enforcement efforts proved substantial in the Government’s view, it would seek a downward departure from the applicable guideline range pursuant to U.S.S.G. § 5K1.1, p.s.

Goossens waived indictment and proceeded to enter his plea. As a condition upon his release from custody following the entry of his guilty plea, the district court ordered Goossens to cease his active cooperation in investigative operations. The result of this prohibition was that Goossens was unable to assist the Government personally or to participate in an operation planned by the United States Customs Service. The parties subsequently requested that the district court allow Goossens to resume his active cooperation with law enforcement officials. Admitting that he was motivated, at least in part, by a desire to qualify for a reduced sentence, Goossens communicated his willingness to assist the Government and his desire for an opportunity “to turn this large negative into a small positive.” JA. 44. The Government, in turn, maintained that the secretive and tightknit network surrounding the distribution of child pornography made investigation difficult absent the assistance of undercover operatives and that Goossens’ cooperation presented a unique opportunity to penetrate these networks. Moreover, the Government expressed its concern with what it perceived to be a blanket policy of the district judge to routinely impose this prohibition as a condition of release, noting that it was “not aware of a single case on any fact pattern” in which the judge had permitted a defendant to actively cooperate while subject to any type of court-sponsored supervision. JA 41. Nevertheless, the district court refused to lift the ban.

The presentence report calculated Goos-sens’ base offense level to be 13. See U.S.S.G. § 2G2.4(a). Adjusting upward by two levels for possession of ten or more items of child pornography, see U.S.S.G. § 2G2.4(b)(2), and downward by two levels for his acceptance of responsibility, see U.S.S.G. § 3E 1.1(a), the presentence report recommended that Goossens’ adjusted offense level was also 13. Combined with a Criminal History Category I, his adjusted offense level rendered a guideline range of 12-18 months imprisonment. U.S.S.G. Ch. 5, Pt. A The presentence report identified no mitigating or aggravating factors warranting departure from this range.

Although neither party objected to the proposed findings or calculations contained in the presentence report, Goossens' requested that the district court depart downward from the applicable guideline range. His sole reason for the request was that the order imposed by the district court prohibiting him from further participation in the undercover investigation prevented him from qualifying for a departure based on substantial assistance. This circumstance, he asserted, was not one that was considered adequately by the Sentencing Commission in formulating the guidelines.

Apparently viewing the motion as a request for a departure pursuant to § 5K1.1 based on substantial assistance, the district court declined to depart on the basis requested by Goossens. Expressing disapproval with the Government’s decision not to request a § 5K1.1 departure — because in the district judge’s view the defendant had complied fully with the plea agreement — the court noted that, absent a request by the Government, a departure on that ground was not authorized.

Then, with no advance notice to the Government and with no request from Goossens, the district court announced its sua sponte decision to depart downward pursuant to U.S.S.G. § 5K2.13, p.s. on the basis of diminished mental capacity. Supporting its departure decision in large part with a report submitted by a psychologist Goossens had retained, the court explained that Goos-sens had been diagnosed as suffering from an anxiety disorder and “from some mal-adapted strategies that have never been addressed before.” J.A. 99. The court reasoned that the departure was appropriate because the report had concluded “that this conduct is a result of some deep-seated, long-term, psychological problems” and because “[t]here is no question that this conduct is deviant behavior.” J.A. 94. And, it further found that Goossens had no prior record, had not committed a violent crime, was gainfully employed in a lucrative position with a prominent company, posed no threat to the community, and was not a pedophile. Noting that the imposition of a period of incarceration likely would result in Goossens losing his employment and his home, as well as preventing him from paying a fine, the district court imposed a sentence of three years supervised probation, the first six months of which were to be served under house arrest with electronic monitoring. The Government appeals.

II.

The Government maintains that the district court erred in departing downward pursuant to U.S.S.G. § 5K2.13, p.s. on the basis of diminished mental capacity. In reviewing a sentence imposed pursuant to a departure from the applicable guideline range, we apply well-established principles. See, e.g., United States v. Hummer, 916 F.2d 186, 192 (4th Cir.1990) (reviewing sentence above guideline imprisonment range), cert. denied, 499 U.S. 970, 111 S.Ct. 1608, 113 L.Ed.2d 670 (1991); United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990) (reviewing sentence below guideline imprisonment range). We first examine de novo the statement of reasons offered by the district court to determine whether it identified a factor not adequately considered by the Sentencing Commission in formulating the applicable guideline range. We then review the sufficiency of the evidence to support the stated factor under a clearly erroneous standard. Next, we consider whether the district court abused its discretion in determining that the factor is sufficiently important such that a sentence outside the guideline range should result and that the extent of departure is reasonable. Hummer, 916 F.2d at 192.

Section 5K2.13, p.s. provides;

If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant’s criminal history does not indicate a need for incarceration to protect the public.

Since the Sentencing Commission identified diminished mental capacity as an appropriate basis for departure, this ground satisfies the first step in our inquiry. See United States v. Glick, 946 F.2d 335, 338 (4th Cir.1991).

We turn, then, to review for clear error the factual findings of the district court supporting the diminished mental capacity departure. The Government argues that the findings by the sentencing court that Goos-sens was suffering from a significantly reduced mental capacity and that this reduced mental capacity contributed to the offense were clearly erroneous.

In assessing the meaning to be accorded to the § 5K2.13, p.s. requirement that a defendant’s mental capacity be “significantly reduced,” we recognize that the Sentencing Commission has concluded that a defendant’s mental or emotional condition is “not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.” U.S.S.G. § 5H1.3, p.s. Judged against this background, we agree with the other courts of appeals that have addressed this issue that in order for a defendant’s mental condition to be considered “a significantly reduced mental capacity” within the meaning of § 5K2.13, p.s., the defendant must have been unable to process information or to reason. See United States v. Johnson, 979 F.2d 396, 400-01 (6th Cir.1992); see also United States v. Cantu, 12 F.3d 1606, 1512-13 (9th Cir.1993) (“In everyday language, ‘reduced mental capacity’ refers to a lack of full intellectual functioning.... [It] comprehends both organic dysfunction and behavioral disturbances that impair the formations of reasoned judgments.”); United States v. Hamilton, 949 F.2d 190, 193 (6th Cir.1991) (per curiam) (noting that a defendant who “was able to absorb information in the usual way and to exercise the power of reason” was not suffering from diminished mental capacity); United States v. Philibert, 947 F.2d 1467, 1471-72 (11th Cir.1991) (holding evidence that defendant “suffer[ed] from severe mental illness, including paranoid delusions” was sufficient to permit departure based on diminished mental capacity).

The present record provides no evidence to support a conclusion that Goossens’ ability to process information or to reason was substantially impaired. Instead, all of the evidence before the district court indicated that Goossens “displayed considerable mental agility in his professional and personal affairs, both legal and illicit.” Johnson, 979 F.2d at 401. The psychological report, on which the district court wholly relied, diagnosed Goossens as suffering from an Axis I “Dysthymic Disorder” (i.e., anxiety) and a “Generalized Anxiety Disorder.” J.A. 80. It described Goossens as:

a man of above average intellectual capacity, with no signs of psychosis or gross organic dysfunction. However, there are signs that he is suffering from an emotional disorder at this time. This disorder is negatively effecting [sic] the way he feels, thinks, relates, and behaves towards the world about him. These maladaptive strategies result from repetitive negative reinforcing experiences to which this man has been exposed. As such, they narrow his available repertoire of responses to particular behavioral strategies which have become controlling. The result of this maladaptive approach to life is that he perpetuates existing dilemmas, provokes new predicaments, and sets into motion self-defeating sequences with others.

J.A. 77. This report nowhere concludes that Goossens’ problems “impair[ed] the formation of reasoned judgments,” Cantu, 12 F.3d at 1513, or prevented him from processing information when he committed the offenses, see Johnson, 979 F.2d at 401. Cf. United States v. Webb, 49 F.3d 636, 639 (10th Cir.) (psychiatric reports documenting history of psychiatric problems, including dysthymia, did “not address or lead to the conclusion that defendant suffered from significantly reduced mental capacity”) (internal quotation marks omitted), cert. denied, — U.S.-, 116 S.Ct. 121, 133 L.Ed.2d 71 (1995); United States v. Gentry, 925 F.2d 186, 188 (7th Cir.1991) (psychiatric testimony that defendant suffered from emotional problems but not mental illness did not support departure for diminished mental capacity).

Further, all of the other information concerning Goossens that was presented to the district court indicates a high level of mental functioning on his part. For example, Goos-sens was employed in a responsible position and was conscious enough of the illegality of his conduct to enciypt the pornographic material on his computer to avoid detection. Cf. United States v. Sammoury, 74 F.3d 1341, 1346 (D.C.Cir.1996) (concluding evidence that defendant’s offense required extensive planning and that defendant had exercised sound judgment in other matters was sufficient to support finding by district court that defendant did not suffer from a reduced mental capacity); Johnson, 979 F.2d at 401 (reversing diminished mental capacity departure in part on the basis that defendant, who was a bank vice president, demonstrated mental agility in professional affairs).

Moreover, even if Goossens suffered from diminished mental capacity, no evidence supports a conclusion that it contributed in any degree to the commission of the offense. At no point did the psychiatric report attribute any causative connection between the emotional problems it diagnosed and the offense to which Goossens admitted guilt. See Glick, 946 F.2d at 339 (“Diminished capacity need not be the sole cause of the offense to justify a departure, but should ‘comprise[] a contributing factor in the commission of the offense.’”) (alteration in original) (quoting United States v. Ruklick, 919 F.2d 95, 97-98 (8th Cir.1990)).

In sum, the record does not support the finding of the district court that Goossens suffered from a significantly reduced mental capacity that contributed to his offense. Accordingly, we conclude that the district court erred in departing downward from the applicable guideline range on that basis.

III.

Goossens argues that if the departure was erroneously granted on the basis of diminished mental capacity, we should nevertheless affirm the sentence because the district court erred in refusing to depart on the basis set forth in his motion seeking a downward departure — namely, that the order of the district court prohibiting his active cooperation with law enforcement officials, and depriving him of the opportunity to qualify for a substantial assistance departure, was not a factor that was considered adequately by the Sentencing Commission in formulating the guidelines and, therefore, was an appropriate basis for a departure pursuant to U.S.S.G. § 5K2.0. Of course, since the district court denied Goossens’ request to depart on this ground, we cannot conclude that the district court would have imposed the same sentence on this ground had it recognized that a departure on the basis of diminished mental capacity was not authorized. Under these circumstances, Goossens’ sentence may not be affirmed because it was imposed in violation of law. See 18 U.S.C.A. § 3742(f) (West Supp.1996); cf. Williams v. United States, 503 U.S. 193, 202-03, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341 (1992) (holding that when an appellate court concludes that one basis for departure is unlawful, it must vacate and remand for resentenc-ing under § 3742(f) unless it determines that the district court would have imposed the same sentence on a legitimate basis). Nevertheless, for the benefit of the court on remand, we address the prohibition on Goos-sens’ active cooperation with law enforcement authorities and the appropriateness of departing downward from the properly calculated guideline range on the basis of this prohibition.

The authority of a district court to release a defendant following his conviction and prior to imposition or execution of sentence is governed by 18 U.S.C.A. § 3143 (West Supp. 1996). This statute delineates the circumstances under which a district court properly may permit the release of a person during this period. Generally speaking, an individual must be detained following conviction unless a “judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c).” 18 U.S.C.A. § 3143(a)(1). Such a finding permits the release of the convicted individual subject to conditions imposed by the district court. Section 3142(c) prescribes the conditions upon release that a judicial pfficer may impose if it finds that they are necessary to “reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.CA. § 3142(c)(1)(B) (West Supp.1996). This statutory provision specifies a number of conditions — e.g., requirements that the defendant maintain employment or seek psychiatric treatment — and also sets forth a general provision supplying discretion to the judicial officer to impose “any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community.” Id.

Following Goossens’ plea of guilty, the district court authorized his release on a personal recognizance bond, subject to delineated terms and conditions. After imposing a number of standard conditions, the district court stated:

Now, one thing, in terms of whether the defendant is doing any cooperation or not, certainly testimonial cooperation and debriefing is valuable and will certainly be looked at.
I don’t permit defendants who are on bond under Court control to be actively out on the street working or making contacts or doing anything like that.
I mean, anyone who’s engaged in illegal activity, this defendant should have nothing to do with them in any capacity. I’m sure everybody understands that’s the way we are going to work this.
I assume if there has been anything like that going on, it’s been completed. I don’t want to hear any more about it than that.

Transcript of Plea Proceedings in United States v. Goossens, No. 95-102-A (Mar. 3, 1995), at 30-81. Although the district court did not attempt to justify the imposition of the condition at that time, in denying the parties’ joint request that the prohibition be lifted so that Goossens could continue to cooperate, it reasoned that “any continued involvement of this defendant with the pornography world will be counterproductive to his ultimate rehabilitation.” J.A. 37. Responding to the argument that the imposition of the prohibition on active cooperation would deprive Goossens of the opportunity to qualify for a § 5K1.1 motion for a downward departure based upon substantial assistance, the district court opined:

This is an artificial argument arising from a very rigid policy of the prosecutor’s office which fails to credit defendants for good faith testimonial cooperation. By insisting that defendants do more than submit to debriefings, grand jury testimony and trial testimony in order to qualify for a U.S.S.G. § 5K1.1 or [Federal Rule of Criminal Procedure] 35(b) motion, the prosecutor’s office creates the dilemma in which this defendant finds himself.

J.A. 37-38. Expanding on its reasoning for the prohibition at the sentencing hearing, the district court indicated a belief that it was inappropriate to place the imprimatur of court approval on a criminal investigation and that a defendant’s active cooperation increased the difficulties associated with monitoring the defendant’s conduct and with completing the presentence investigation. Moreover, while denying that it had an absolute blanket policy of imposing this prohibition, it noted that it had a “strong policy” in favor of its imposition in all cases and was able to point to only one instance in which it had elected not to prohibit a defendant from active cooperation with law enforcement authorities. J.A. 88-92. With respect to Goossens participation, the court again referenced the opinion that it was in his best interest to begin the rehabilitation process and that this interest was not overridden by an overwhelming need on the part of the Government for the cooperation.

The district court committed a clear abuse of discretion by imposing the prohibition on cooperation with law enforcement officials as a condition of Goossens’ release. Although we have difficulty imagining factual circumstances in which the imposition of such a condition might be appropriate, we do not foreclose the possibility that such a condition might in some extraordinary circumstances properly be imposed by a district court when truly necessary to assure a defendant’s appearance or to protect the public safety. There is no. genuine argument, however, that the condition was necessary in this instance. Indeed, the district court did not even attempt to justify its imposition on this basis. Instead, the court based its decision on its view of what would best benefit the rehabilitation of the defendant, a factor that is conspicuously absent among those specified in § 3142(c)(1)(B).

Furthermore, in so doing, the district court improperly frustrated Goossens’ desire to cooperate in order to qualify for more favorable sentencing treatment and the Government’s legitimate hope that he would aid in law enforcement authorities’ investigative efforts. See United States v. Vargas, 925 F.2d 1260, 1265 (10th Cir.1991) (holding that “inflexible practice” by district court of refusing to permit criminal defendants to cooperate was error); United States v. French, 900 F.2d 1300, 1302 (8th Cir.1990) (same). Both Congress and the Sentencing Commission have recognized the importance of defendants’ cooperation with law enforcement by establishing provisions affording defendants with the potential to qualify for more lenient sentencing for federal criminal offenses if they provide substantial assistance to law enforcement authorities in investigating or prosecuting other criminal offenders. See 18 U.S.C.A. § 3553(e) (West Supp.1996); 28 U.S.C.A. § 994(n) (West 1993); U.S.S.G. § 5K1.1; Fed.R.Crim.P. 35(b). And, the broad discretion to determine whether to move for a downward departure based on substantial assistance has been vested in the Government, subject only to constitutional or self-imposed restraints. See Wade v. United States, 504 U.S. 181, 184-86, 112 S.Ct. 1840, 1843-44, 118 L.Ed.2d 524 (1992). We categorically reject the conclusion of the district court that the Government somehow created the dilemma in which Goossens was placed. Rather, the problem unquestionably arose from the insistence of the district court in imposing itself in matters that are not properly within its province — apart from an extraordinarily rare situation in which such a condition legitimately might be considered necessary to assure the defendant’s appearance before the court or the safety of the community. That said, we turn to consider whether, given the error in imposing the prohibition on Goossens’ active cooperation, the district court erred in its consideration of his request for a downward departure on that basis.

When a district court recognizes that it possesses the authority to depart, its refusal to do so is not appealable. United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, 498 U.S. 819, 111 S.Ct. 65, 112 L.Ed.2d 39 (1990). But, the record discloses unmistakably that the sentencing court did not consider and decline to depart on the actual basis suggested by Goossens for the departure. Goossens recognized that he was not entitled to a departure based on substantial assistance because the Government had not filed a motion requesting a departure on that ground. Rather, Goossens requested that the district court recognize that the Sentencing Commission had not considered a situation in which a district court would affirmatively prohibit a defendant from voluntarily engaging in conduct through which he would seek to qualify for a departure based on substantial assistance.

We agree that the Sentencing Commission did not consider the possibility that a district court might affirmatively prohibit a defendant from cooperating with law enforcement authorities in an effort to qualify for a departure based upon substantial assistance. And, it is undisputed that Goossens was so prohibited by the district court in this instance. Accordingly, we conclude that on remand the district court should determine whether, under the circumstances of this case, this factor is sufficiently important such that a sentence outside the guideline range should result. In weighing whether the facts presented by situations such as this warrant a sentence outside the guideline range, a court should consider whether a defendant’s cooperation likely would have been such that the Government would have moved for a departure based upon substantial assistance had the defendant’s cooperation not been foreclosed improperly. Further, if the district court determines that a sentence outside the guideline range is appropriate, it must also determine the appropriate extent of the departure.

VACATED AND REMANDED WITH INSTRUCTIONS

      . The Government first asserts that the district court erred in departing without furnishing notice of its intention to do so. This position clearly is correct. When neither the presentence report nor the parties’ prehearing submissions identify a given basis for departure, a district court must provide the parties with notice before departing on that basis. Burns v. United States, 501 U.S. 129, 138-39, 111 S.Ct. 2182, 2187-88, 115 L.Ed.2d 123 (1991); United States v. Maddox, 48 F.3d 791, 799 (4th Cir.1995).

      . The Government does not challenge the findings of the district court that Goossens' offense was nonviolent, that any diminished capacity he suffered did not result from the voluntary consumption of drugs, or that his criminal history did not indicate that incarceration was needed to protect the public.

      . Section 3143(a)(2) requires that persons convicted of offenses specified in § 3142(f)(l)(A)-(C) be detained unless the court makes the same finding and concludes that either "there is a substantial likelihood that a motion for acquitted or new trial will be granted” or the Govem-mentis attorney recommends that the individual not receive a sentence of imprisonment. And, individuals for whom no term of imprisonment will be recommended by the applicable guideline need not be detained. See 18 U.S.C.A. § 3143(a)(1).

      . Here, Goossens agreed to cooperate fully with law enforcement authorities, was in fact fully cooperating, and this cooperation was interrupted by the unjustified action of the district court against the express objection of both Goossens and the Government.


author: LAY, Senior Circuit Judge:

text:
    Stephen M. ALSTON, Jr., Plaintiff-Appellant, v. MCI COMMUNICATIONS CORPORATION; MCI Services Marketing, Incorporated; MCI Sales, Incorporated, Defendants-Appellees, and Alan S. Miller, Party in Interest.
    No. 95-1722.
    United States Court of Appeals, Fourth Circuit.
    Argued April 5, 1996.
    Decided May 28, 1996.
    ARGUED: Meldon Stonewall Hollis, Jr., Hollis & Associates, P.A., Baltimore, Maryland, for Appellant. Alexander Neal Barkus, Hunton & Williams, Washington, DC, for Appellee. ON BRIEF: Joanne Ochsman, MCI Communications Corporation, Washington, DC, for Appellees.
    Before RUSSELL and MOTZ, Circuit Judges, and LAY, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
   Dismissed by published opinion. Senior Judge LAY wrote the opinion, in which Judge RUSSELL and Judge MOTZ joined.

OPINION

LAY, Senior Circuit Judge:

Steven M. Alston, an African-American male, appeals from the grant of summary judgment in favor of MCI Telecommunications, Inc. (“MCI”) on his allegation that MCI racially discriminated against him when it terminated him in violation of 42 U.S.C. § 2000e-2(a) and 42 U.S.C. § 1981. The district court granted summary judgment to MCI on the basis that Alston faded to produce any direct or circumstantial evidence that would provide a material issue of fact relating to his claim of racial discrimination. We find this court lacks jurisdiction to review the merits asserted on appeal because the plaintiff failed to file a timely notice of appeal. We therefore dismiss the appeal for lack of jurisdiction.

JURISDICTION

The district court entered judgment for the defendant on December 30,1994. On January 12,1995, Alston moved to extend the period of time to file a motion to alter or amend the judgment. On January 13, 1995, the district court granted Alston’s motion, extending the period to January 23, 1995. Alston filed his motion to alter or amend the judgment, under Rule 59(e) of the Federal Rules of Civil Procedure, on January 24, 1995. The district court denied this motion on the merits on February 16, 1995. Alston filed his notice of appeal on March 17, 1995.

Under the Federal Rules of Appellate Procedure, a party must file a notice of appeal with the district court clerk “within 30 days after the date of entry of the judgment or order appealed from[.]” Fed.R.App.P. 4(a)(1). This time limitation is “ ‘mandatory and jurisdictional.’ ” Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960)). The thirty-day time period is deferred, however, if the party makes a “timely motion” under Rule 59(e) or other specified rules. See Fed. R.App.P. 4(a)(4). The thirty-day period may also be extended by the district court up to an additional thirty days if the party properly requests an extension of time from the district court “upon a showing of excusable neglect or good cause[.]” Fed.R.App.P. 4(a)(5).

A Rule 59(e) motion to alter or amend the judgment “shall be served not later than 10 days after entry of the judgment.” Fed. R.Civ.P. 59(e) (1995). Under the Federal Rules of Civil Procedure, the ten-day time period does not include Saturdays, Sundays, or legal holidays. Fed.R.Civ.P. 6(a). Thus, in order to file a timely Rule 59(e) motion, Alston was required to file his motion by January 17,1995. However, Alston failed to do so, presumably because the district court, on January 13, 1995, granted him an extension of time to file his Rule 59(e) motion to alter or amend the judgment until January 23,1995.

It is clear, however, that the district court was without power to enlarge the time period for filing a Rule 59(e) motion. See Fed. R.Civ.P. 6(b) (“[The district court] may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), 60(b), and 74(a), except to the extent and under the conditions stated in them.”). Thus, the district court’s order extending the time to file the motion to alter or amend the judgment was not authorized under the Federal Rules of Civil Procedure. The thirty-day time period for filing the notice of appeal could not be deferred on the basis of the district court’s order or Alston’s belated Rule 59(e) motion. See Fed.R-App.P. 4(a)(4). As a result, Alston was required to file his notice of appeal within thirty days of December 30, 1994 to obtain appellate jurisdiction, but did not do so until March 17, 1995. Under the plain language of the rules, we lack jurisdiction to hear Alston’s appeal.

The Supreme Court has recognized, however, a limited “unique circumstances” exception to this jurisdictional bar that allows a court of appeals to hear an untimely appeal “where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done.” See Osterneck v. Ernst & Whinney, 489 U.S. 169, 178, 179, 109 S.Ct. 987, 992-93, 993, 103 L.Ed.2d 146 (1989) (construing the rule of Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964)); cf. Myers v. Stephenson, 748 F.2d 202, 205 (4th Cir.1984) (a failure to make a timely motion for an extension of time under Fed.R.App.P. 4(a)(5) does not necessarily bar appellate jurisdiction if the appellant failed to file a timely motion for an extension of time because the district court, sua sponte, incorrectly treated his otherwise belated notice of appeal as a motion for an extension of time, and granted the motion). We reject the application of the “unique circumstances” doctrine in this case. Alston does not make a showing that he relied on an affirmative assurance by the district court that his Rule 59(e) motion was sufficiently timely to preserve his appeal. Alston missed the district court’s extended deadline for filing a Rule 59(e) motion by one day, and thus should have been aware that his Rule 59(e) motion was not timely even within the terms of the district court’s order. In these circumstances, we lack appellate jurisdiction and thus dismiss the appeal.

APPEAL DISMISSED FOR LACK OF JURISDICTION.

      . Alston did not make a motion for an extension of time to file his appeal under Fed.R.App.P. 4(a)(5).

      . Rule 59(e) was amended December 1, 1995, to require a motion to “be filed no later than 10 days after entry of the judgment.” Nothing in the record suggests Alston's motion was served on any day other than the day on which it was filed, and thus this change is not relevant to this appeal.

      . The district court entered judgment on December 30, 1994, a Friday. Alston's ten-day period did not include six weekend days (December 31, January 1, January 7, January 8, January 14, and January 15) or two legal holidays (January 2 and January 16). The ten-day period for Alston to file his motion thus expired on January 17, 1995. See Fed.R.Civ.P. 6(a).

      . At least two circuits have questioned the ongoing vitality of the “unique circumstances" doctrine. See, e.g., Pinion v. Dow Chem., U.S.A., 928 F.2d 1522, 1529-30 (11th Cir.), cert. denied, 502 U.S. 968, 112 S.Ct. 438, 116 L.Ed.2d 457 (1991); Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1363 (3d Cir.1990).


author: NIEMEYER, Circuit Judge:

text:
    Theodore Whitmore STANLEY; Kevin Barber, minor, by his father and next friend Jesse Barber; Patrick Barber, minor, by his father and next friend Jesse Barber; Bryan Barber, minor, by his father and next friend Jesse Barber; Lurlean Bess Mack, minor, by J.W. Mack, her grandfather and next friend; Brian Franklin, minor, by his mother and next friend Joyce Franklin; Jay Franklin, minor, by his mother and next friend Joyce Franklin; United States of America, Plaintiffs, v. DARLINGTON COUNTY SCHOOL DISTRICT, a public body corporate, Defendant-Appellee, v. The STATE OF SOUTH CAROLINA; the Department of Education for the State of South Carolina; the Board of Education for the State of South Carolina; William P. Beckham, III, In Official Capacity as Member of the State Board of Education; Samuel M. Greer, In Official Capacity as Member of the State Board of Education; Joseph Peeler Stabler, Colonel, In Official Capacity as Member of the State Board of Education; Cleveland Sellars, In Official Capacity as Member of the State Board of Education; Austin Floyd, In Official Capacity as Member of the State Board of Education; Julian B. Wright, In Official Capacity as Member of the State Board of Education; Brenda K. Vernon, In Official Capacity as Member of the State Board of Education; Earl Bostick, Sr., In Official Capacity as Member of the State Board of Education; Maxie Duke, In Official Capacity as Member of the State Board of Education; Laura M. Fleming, In Official Capacity as Member of the State Board of Education; Frank M. Hart, In Official Capacity as Member of the State Board of Education; Beth Pinson, In Official Capacity as Member of the State Board of Education; W. Gregory Horton, In Official Capacity as Member of the State Board of Education; Robert W. Owen, In Official Capacity as Member of the State Board of Education; Ruby Matthews, In Official Capacity as Member of the State Board of Education; Celia Gettys, In Official Capacity as Member of the State Board of Education; Thomas E. McInville, In Official Capacity as Member of the State Board of Education; David M. Beasley, In His Official Capacity as Governor of the State of South Carolina; Barbara S. Nielsen, In Her Official Capacity as State Superintendent of Education for the State of South Carolina, Defendants-Appellants, and David M. Beasley, In His Official Capacity as Chairman of the State Budget and Control Board; South Carolina Budget and Control Board; Grady L. Patterson, Jr., In Official Capacity as Member of the State Budget and Control Board for the State of South Carolina; Earle E. Morris, Jr., In Official Capacity as Member of the State Budget and Control Board for the State of South Carolina; James M. Waddell, Jr., In Official Capacity as Member of the State Budget and Control Board for the State of South Carolina; William D. Boan, In Official Capacity as Member of the State Budget and Control Board for the State of South Carolina, Defendants. Theodore Whitmore STANLEY; Kevin Barber, minor, by his father and next friend Jesse Barber; Patrick Barber, minor, by his father and next friend Jesse Barber; Bryan Barber, minor, by his father and next friend Jesse Barber; Lurlean Bess Mack, minor, by J.W. Mack, her grandfather and next friend; Brian Franklin, minor, by his mother and next friend Joyce Franklin; Jay Franklin, minor, by his mother and next friend Joyce Franklin; United States of America, Plaintiffs, v. DARLINGTON COUNTY SCHOOL DISTRICT, a public body corporate, Defendant-Appellant, v. The STATE OF SOUTH CAROLINA; the Department of Education for the State of South Carolina; the Board of Education for the State of South Carolina; William P. Beckham, III, In Official Capacity as Member of the State Board of Education; Samuel M. Greer, In Official Capacity as Member of the State Board of Education; Joseph Peeler Stabler, Colonel, In Official Capacity as Member of the State Board of Education; Cleveland Sellars, In Official Capacity as Member of the State Board of Education; Austin Floyd, In Official Capacity as Member of the State Board of Education; Julian B. Wright, In Official Capacity as Member of the State Board of Education; Brenda K. Vernon, In Official Capacity as Member of the State Board of Education; Earl Bostick, Sr., In Official Capacity as Member of the State Board of Education; Maxie Duke, In Official Capacity as Member of the State Board of Education; Laura M. Fleming, In Official Capacity as Member of the State Board of Education; Frank M. Hart, In Official Capacity as Member of the State Board of Education; Beth Pinson, In Official Capacity as Member of the State Board of Education; W. Gregory Horton, In Official Capacity as Member of the State Board of Education; Robert W. Owen, In Official Capacity as Member of the State Board of Education; Ruby Matthews, In Official Capacity as Member of the State Board of Education; Celia Gettys, In Official Capacity as Member of the State Board of Education; Thomas E. McInville, In Official Capacity as Member of the State Board of Education; David M. Beasley, In His Official Capacity as Governor of the State of South Carolina; Barbara S. Nielsen, In Her Official Capacity as State Superintendent of Education for the State of South Carolina, Defendants-Appellees, and David M. Beasley, In His Official Capacity as Chairman of the State Budget and Control Board; South Carolina Budget and Control Board; Grady L. Patterson, Jr., In Official Capacity as Member of the State Budget and Control Board for the State of South Carolina; Earle E. Morris, Jr., In Official Capacity as Member of the State Budget and Control Board for the State of South Carolina; James M. Waddell, Jr., In Official Capacity as Member of the State Budget and Control Board for the State of South Carolina; William D. Boan, In Official Capacity as Member of the State Budget and Control Board for the State of South Carolina, Defendants.
    Nos. 95-1827,95-1828.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 6, 1995.
    Decided May 28, 1996.

      ARGUED: James Emory Smith, Jr., Assistant Deputy Attorney General, Columbia, South Carolina, for Appellants. Alfred A. Lindseth, Sutherland, Asbill & Brennan, Atlanta, Georgia, for Appellee. ON BRIEF: Charles Molony Condon, Attorney General, Treva G. Ashworth, Deputy Attorney General, Columbia, South Carolina; George C. Le-ventis, General Counsel, State Department of Education, Columbia, South Carolina, for Appellants. John M. Milling, Darlington, South Carolina, for Appellee.
    Before WIDENER and NIEMEYER, Circuit Judges, and BUTZNER, Senior Circuit Judge.
   Reversed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WIDENER and Senior Judge BUTZNER joined.

OPINION

NIEMEYER, Circuit Judge:

In 1962, seven black students filed this class action on behalf of all black students in Darlington County, South Carolina, against the Darlington County School District to compel desegregation of the county’s public schools. The case was initially resolved in 1970 by the district court’s entry of an order mandating implementation of a plan to desegregate the School District. The court retained jurisdiction to oversee the plan’s implementation.

After the United States intervened on behalf of the plaintiffs in 1990, contending that the School District was violating the 1970 order, the School District sought to join the State of South Carolina as an additional defendant. The School District demanded that the State “be adjudged jointly and severally hable” with it for “any lingering effects of the former dual school system in Darlington County.” The district court granted the School District’s motion to join the State and, following trial, ordered the State to participate jointly with the School District in desegregating the schools and to “pay 15% of the capital costs and operating expenses of the desegregation remedies” entered in the case. On appeal, the State contends that it is not liable to the School District for any contribution, and on its crossappeal, the School District contends that the State should contribute at least 50% to the desegregation costs.

Because neither the original plaintiffs nor the United States ever sued the State of South Carolina, we conclude that the only claim made against the State in this case is one for contribution by the School District. And because a federal court has no jurisdiction to adjudicate a contribution claim filed against a state by one of its political subdivisions, we reverse the district court’s imposition of liability on the State of South Carolina to pay for any of the remedial costs.

I

The original plaintiffs filed this class action in May 1962 against the Darlington County School District and its trustees, the Darling-ton County Board of Education, and the superintendent of the School District (collectively, the “School District”), challenging the constitutionality of the School District’s racially segregated educational system. In July 1964, the district court enjoined the School District from discriminating on the basis of race and ordered implementation of a plan. Following further litigation over the adequacy of the initial plan, the issue was resolved by entry of an order dated February 5, 1970, which was modified in 1973 (as modified, the “1970 Order”), finding the county’s dual system in violation of the Constitution and ordering implementation of a revised desegregation plan. Under the 1970 Order, the School District was required to reassign students and faculty, to make changes in curriculum and vocational programs, to pair schools, and to upgrade facilities and services. The district court retained jurisdiction to oversee the plan’s implementation.

In 1983, the plaintiffs challenged the adequacy of the School District’s implementation efforts, but withdrew their challenge in 1985 when they concluded that they could not prove noneompliance. In 1990, however, the United States moved to intervene as an additional plaintiff to challenge the School District’s compliance with the 1970 Order, and the district court granted that motion in August 1991. The United States alleged in its “complaint-in-intervention” that “[njineteen years after implementation of the 1970 Court Order, the schools in the [School District] remain segregated and racially identifiable.” It alleged that the School District was pursuing policies and practices designed to frustrate implementation of the 1970 Order, including: assigning students to schools and hiring principals and faculty in a manner that perpetuated segregation, failing to enforce students’ attendance at schools in their zones of residence, refusing to pair schools to promote integration, offering an inferior curriculum and school facility at the predominantly black Mayo High School, and failing to implement a majority-to-minority student transfer program. The United States requested an injunction prohibiting racial discrimination in the operation of the Darlington County public schools and ordering implementation of a plan that would eliminate the vestiges of segregation in the county school system.

Eighteen months after the district court permitted the United States to intervene against the School District, the School District filed a motion under Federal Rule of Civil Procedure 19(a) to join the State of South Carolina and its agencies and personnel involved in public education (collectively, the “State”) as additional defendants. It also sought to file a “cross-claim” against the State. In its motion to join the State, the School District contended that without the State’s joinder, “complete relief cannot be accorded among those already parties to this action.” And it argued that the State, “which created the dual school system in the first place, has the same affirmative obligation as the Local District to eliminate any remaining vestiges.”

The United States opposed the School District’s motion on the ground that the School District “has failed to provide a single example of how the State has impeded the District’s compliance with this Court’s order and federal law since 1970.” The plaintiffs expressed both uncertainty about the State’s responsibility for the School District’s failure to comply with the 1970 Order and concern that joining the State would delay resolution of the case.

Notwithstanding the plaintiffs’ reservations, the district court granted the School District’s motion to join the State as a code-fendant and permitted the School District to file a “cross-claim” against the State. The court explained, “[I]f we are required to impose a remedy to correct the alleged racial discrimination, it is necessary to have all the potential players before this court.” While the School District served its “cross-claim” on the State, neither the original plaintiffs nor the United States amended its complaint to name the State as a defendant or to demand relief from the State.

In May 1994, the original plaintiffs, the United States, and the School District reached agreement on the terms of a consent order, which the district court approved and entered (the “1994 Consent Order”), to implement the 1970 Order and to desegregate the Darlington County school system. In the 1994 Consent Order, the School District stipulated that it had “not fully complied with the [1970] desegregation order and federal law in this case, and that vestiges of the prior dual system remain in the Darlington County School District.” The order requires the School District to alter its student assignment practices; to assign principals on a nondiscriminatoiy basis; to allocate faculty and staff to achieve a racial composition at each school within ten percentage points of the district-wide average; to provide public transportation on a nondiscriminatory basis; to modify the curriculum to enhance the transition to desegregated schools; and to offer extracurricular activities on a nondiscriminatory basis. The order also includes a timetable for implementation and imposes reporting requirements. The State did not participate in the settlement negotiations and is not a party to the 1994 Consent Order.

The School District’s case against the State proceeded to trial, after which the district court concluded, in findings of fact, conclusions of law, and an order dated March 1, 1995, that “the State has done little or nothing ... to eliminate the vestiges of the dual school system created and perpetuated by them, despite an affirmative duty to do so.” The court detailed how, during the 1950’s and 1960’s, the State created regulatory mechanisms for constructing a dual school system and resisted implementing changes required by Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The court observed that although the State’s resistance to school desegregation “had largely ceased by the early 1970’s,” State officials “did little after 1970 to eliminate the remaining vestiges of the former dual school system.” The State “never promoted desegregation with anything approaching the degree of energy and involvement it brought to the mission of preserving segregation.” Accordingly, the district court concluded that “the State must participate with the [School] District in remedying the vestiges of segregation.”

The district court’s March 1, 1995, order directed the State to “participate jointly with the District in the desegregation remedies set forth in the [1994] Consent Order and this Order,” to “provide all transportation services and facilities necessary to accomplish the desegregation measures in the [1994] Consent Order and this Order,” and to pay “15% of the capital costs and operating expenses of the desegregation remedies contained in the [1994] Consent Order and this Order.” The order also required that the State Department of Education make available the services of its consultants and staff to help the School District implement a magnet program at Mayo High School.

On appeal, the State challenges the district court’s order insofar as it imposes liability on the State for 15% of the costs of the relief granted to the plaintiffs on their claims against the School District. And on its cross-appeal, the School District contends that the district court erred in failing to require the State to bear a greater percentage of the desegregation costs.

II

The State contends that the School District lacks standing to sue the State because the School District is a political subdivision of the State and that the State’s allocation of governmental expenses is an internal issue of “governmental structuring and money.” Moreover, the State argues, the School District cannot represent students who are already parties to this action. The State argues further that because the School District has had full power and authority to desegregate the Darlington County public schools since at least 1970, any vestiges of segregation are attributable solely to the School District’s failure to take remedial actions. Finally, the State advances an Eleventh Amendment immunity defense on the ground that the School District “essentially seeks damages.”

The School District, on the other hand, contends that since at least 1970 the State has had an affirmative duty to desegregate the Darlington County public schools and that the State could not discharge that duty by merely abandoning its prior discrimination and delegating to a subordinate entity the powers necessary to achieve desegregation. While the School District acknowledges that the 1970 Order imposed upon it complete responsibility for desegregating the Darlington County public schools, it argues that the State’s failure to take an active role in dismantling the dual system left the State’s continuing obligations unfulfilled. The School District maintains farther that under Milliken v. Bradley, 438 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), the district court had the equitable power to apportion the costs of desegregation between it and the State as joint tortfeasors. Indeed, the School District contends in its cross-appeal that rather than the 15% that the district court assigned to the State in its March 1, 1995, order, the State should bear at least 50% of the costs of desegregating the Darlington County public schools. In response to the State’s Eleventh Amendment defense, the School District insists that it seeks only “prospective injunctive relief.”

At the.outset of our discussion of the issues presented by this appeal, it is important to recognize that illegal segregation was for many years the policy of both the State of South Carolina and the Darlington County School District. All parties to this litigation acknowledge that fact.

We also recognize that both the State and the School District could have been sued to remedy the constitutional violations. Because the Fourteenth Amendment imposes direct responsibility on a state to ensure equal protection of the laws “to any person within its jurisdiction,” a state’s delegation to a political subdivision of the power necessary to remedy the constitutional violation does not absolve the state of its responsibility to ensure that the violation is remedied. Even if a state gives its local school districts the power and means to remedy segregation, it can still be sued by the students in those districts for its failure to take steps to dismantle a dual educational system that it created. See Missouri v. Jenkins, 495 U.S. 33, 37, 110 S.Ct. 1651, 1655-56, 109 L.Ed.2d 31 (1990); Milliken, 433 U.S. at 288-91, 97 S.Ct. at 2761-63. Interested plaintiffs may sue both a state and its local school districts for violations of the Fourteenth Amendment, and a federal district court, presented with such a case, has the equitable power to apportion between the state and the local school districts liability for remedying those violations. See Milliken, 433 U.S. at 289, 97 S.Ct. at 2761-62 (decree to share future costs of desegregation fits within “prospective-compliance exception” to Eleventh Amendment); see also Missouri, 495 U.S. at 54, 110 S.Ct. at 1664-65 (§ 1983 authorizes courts to apportion costs of complying with desegregation remedy among state and local tortfeasors).

Thus, if after joining the State as an additional defendant, the original plaintiffs or the United States had asserted claims against the State, established precedent would have permitted the School District to benefit from the possibility that the district court would apportion the costs of future compliance between the State and the School District. And the State’s Eleventh Amendment defense, its delegation defense, and its argument that it was not the principal tortfeasor could properly have been rejected under Mil-liken and its progeny.

But neither the original plaintiffs nor the United States asserted claims against the State, and therefore this case does not fall under the Milliken line of cases. When the original plaintiffs filed suit in 1962, they named only the School District as defendant; they did not sue the State. Moreover, the 1970 Order, which required implementation of a specific plan to end segregation in Darlington County, was not directed at the State. The Order imposed obligations only on the School District. And over the years following entry of the 1970 Order, there was never any indication that the School District could not comply with that order. In fact, the district court stated in its 1995 Order that it found no reason why the School District did not satisfy the 1970 Order.

And when the United States intervened in 1990, it did so, not to challenge the adequacy of the 1970 Order—an order which the original plaintiffs, the School District, and the district court had already deemed capable of affording complete relief—but solely to redress the School District’s noncompliance with that order. Therefore, the United States did not name the State as an additional defendant.

The plaintiffs’ subsequent actions confirm that their decision not to sue the State was not inadvertent. When the School District filed its motion to join the State as an additional defendant, the original plaintiffs and the United States opposed the motion. The United States argued, “[t]he [School] District has failed to provide a single example of how the State has impeded the district’s compliance with the court’s order and federal law since 1970.” Moreover, after the district court granted the School Districts motion to join the State as a defendant, neither the original plaintiffs nor the United States amended their complaints to name the State as a defendant. Instead, they settled their claims with a Consent Order, obtaining complete redress from the School District only. Furthermore, the plaintiffs did not participate in the trial of the School District’s “cross-claim” against the State. They expressed no concern as to how the costs of desegregation required by the 1994 Consent Order would be allocated between the State and the School District. Finally, when the State and the School District noticed then-appeals to this court, the United States moved to be dismissed from the proceedings. In its motion, the United States characterized these appeals as focusing solely on the allocation between the State and the School District of the responsibility for desegregation and argued, “Since the only issue now raised by the school district’s cross-appeal concerns its cross-claim against the State, and since the appeal thus involves no issues arising from the United States’ litigation against the school district, the United States should be dismissed as a party to the appeal.” We granted the request and dismissed both the original plaintiffs and the United States from these appeals.

Recognizing that the plaintiffs did not assert claims against the State and seeking to compel the State to participate in the costs of remedying segregation in Darlington County, the School District filed a motion to add the State as defendant under Federal Rule of Civil Procedure 19(a) and to file its “cross-claim” against the State. In its motion, the School District expressed its purpose of forcing the State to become a defendant directly liable on the plaintiffs claims and stated that it was not seeking contribution by way of a third-party claim against the State.

The federal rules, however, do not authorize a defendant to compel an unwilling plaintiff to assert a claim against a second defendant. See Muir v. United States Steel Corp., 41 F.R.D. 428, 430 (E.D.Pa.1967). The most that the defendant can do is argue that complete relief cannot be afforded without joinder of the second defendant. See Fed.R.Civ.P. 19(a). If the court agrees, the plaintiff is given the choice of amending its complaint to name the “indispensable” second defendant or suffering dismissal of the complaint. See Fed.R.Civ.P. 19(b); Window Glass Cutters League v. American St. Gobain Corp., 428 F.2d 353 (3d Cir.1970) (upholding dismissal where plaintiff refused to join indispensable party); Muir, id.

The School District contends that the district court found that the State was an indispensable party by granting the School District’s Rule 19(a) motion. If, however, the district court did find that the State was an indispensable party and the plaintiffs refused to amend their complaints to add the State, the district court would have been forced to dismiss the ease. See Fed.R.Civ.P. 19(b). But the district court did not view the case that way.

When the district court granted the School District’s motion under Federal Rule of Civil Procedure 19(a), it did so for two reasons. First, it granted the motion to cover the possibility that it would need the State as a party to effect a remedy beyond that already granted by the 1970 Order. The court stated, “[I]f we are required to impose a remedy to correct the alleged racial discrimination, it is necessary to have all the potential players before this court.” The court could not, however, make the finding that complete relief could not be effected “among those already parties,” see Fed.R.Civ.P. 19(a)(1), because the plaintiffs had already received complete relief in the 1970 Order to which the State was not a party. Second, the court granted the Rule 19(a) motion on the erroneous belief that the need to afford relief to the School District on its “cross-claim” against the State supported Rule 19 joinder:

The cross-claim will seek an order that, in the event the [School District] is adjudged liable and ordered to remedy the alleged racial discrimination, this court should adjudge the State jointly and severally liable thereby requiring the State to participate in whatever action is necessary to remedy the discrimination.
This court is unable at this time to determine if the claims against the State have merit; however, other states in similar circumstances to South Carolina have been defendants in recent school desegregation lawsuits.

Thus, despite the district court’s grant of the School District’s self-styled Rule 19(a) motion, it apparently treated the School District’s motion as a Rule 20 motion for permissive joinder or a request for leave to file a third-party complaint against the State under Rule 14.

The district judge who later tried the case likewise interpreted the Rule 19(a) order entered in this case as one allowing the School District to assert a third-party claim for contribution. She stated at a hearing in April 1994:

Now, there are a lot of references throughout the case to this cross-claim. And I’ll just tell you that I don’t believe it’s a cross-claim. I believe it’s a third-party complaint. But it’s called a cross-claim in here.
As I understand it, the State defendants were not defendants initially. They were only brought in by virtue of a claim over by a defendant making that a third-party claim rather than a cross-claim.

From all of these circumstances, we conclude that, in granting the School District’s motion to join the State, the district court simply considered it prudent, but not necessary, to join the State so that it might fashion appropriate equitable relief. Indeed, the court never indicated that it expected the plaintiffs to amend their complaints, nor compelled the plaintiffs to assert claims against the State. Certainly, the School District could not require the unwilling plaintiffs to sue the State. Cf. Aiken County v. BSP Div. of Envirotech Corp., 866 F.2d 661, 668-69 (4th Cir.1989) (district court abused its discretion in amending plaintiffs complaint sua sponte to include direct claim against third-party defendant when plaintiff never asserted such claim). We also conclude that the district court intended to facilitate the School District’s effort to assert a claim of its own against the State.

Because, in the end, the plaintiffs never stated a claim against the State, the School District’s “cross-claim” can only be interpreted as a traditional claim for contribution. And although the School District denominated its pleading against the State a “cross-claim,” it is more accurately denominated a third-party claim. Compare Fed. R.Civ.P. 13(g) (“Cross-Claim Against Co Party”) and Fed.R.Civ.P. 13(h) (“Joinder of Additional Parties”) with Fed.R.Civ.P. 14 (“Third-Party Practice”); see also 6 Wright, Miller, Kane, Federal Practice and Procedure §§ 1434r-35 (2d ed.1990).

In an effort to overcome these procedural difficulties and to impose on the State direct liability to the individual plaintiffs, the School Dis triet purported to sue the State, not only on its own behalf, but also “on behalf of the black and white children residing in the Local District.” But the School District never explained how it could represent a class, the victimized portion of which was already litigating against the School District in the same action. The School District would have been required to promote the very claim it was resisting. Such a conflict is disqualifying. Cf. Bradley v. School Bd., 338 F.Supp. 67, 230 (E.D.Va.1972) (“Obviously in some cases school boards resist and in others they press for relief by means of desegregation. In the latter case it is much the preferable course to preserve the adversary context ... by granting a school board standing, if no plaintiff, to sue on behalf of its students”), rev’d on other grounds, 462 F.2d 1058 (4th Cir.1972), aff'd sub nom. School Bd. v. State Bd. of Educ., 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973). The district court’s conclusion that the School District was entitled to sue the State “on behalf of the children in the district” does not compel a different result, because the district court’s conclusion is consistent with its characterization of the School District’s “cross-claim” as a third-party claim for contribution, a claim on which the School District shares the interests of its constituent taxpayers.

In sum, had the original plaintiffs or the United States prosecuted a claim against the State, the district court could have exercised its equitable power to apportion its prospective remedy between the School District and the State. Because neither the plaintiffs nor the United States pursued any claim against the State, however, the district court could not apportion the costs of its remedy between the School District and the State. Any apportionment of costs in this case can be attributed only to the School District’s “cross-claim” against the State for contribution, to which we now turn.

Ill

The School District bases its contribution claim against the State on the contention that both the State and the School District were constitutional tortfeasors. In its prayer for relief, the School District requested that the “State Defendants jointly and severally be adjudged liable to remedy any lingering effects of the former dual school system in Darlington County which the Court may find in accordance with the requirements of the Constitution and the laws of the United States.”

The School District’s contribution claim raises significant state law issues, including: whether a state has a duty of contribution to a political subdivision that it created and can abolish; whether liability for contribution may be imposed on a passive tortfeasor where the principal cause of injury is the active conduct of the party seeking contribution; whether a political subdivision of a state can sue the state against its will; and whether any court can allocate legislatively appropriated funds among a state’s departs ments and political subdivisions. As complex and intriguing as these questions may be, we can find no authority that empowers a federal court to resolve them.

While the Fourteenth Amendment empowers federal courts to address a state’s equal protection violations, it does not provide any basis for a contribution claim by a political subdivision against the state that created it. It would be an unfathomable intrusion into a state’s affairs — and a violation of the most basic notions of federalism— for a federal court to determine the allocation of a state’s financial resources. The legislative debate over such allocation is uniquely an exercise of state sovereignty.

A long recognized attribute of state sovereignty is the state’s power to create political subdivisions as a convenience in exercising its power. And just as a state may create political subdivisions, it may also abolish them or, more drastically, determine the extent of their financing with public tax dollars.

The State, therefore, at its pleasure may modify or withdraw all [of a municipality’s] powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the State is supreme....

City of Trenton v. New Jersey, 262 U.S. 182, 186, 43 S.Ct. 534, 536, 67 L.Ed. 937 (1923) (quoting Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79, 28 S.Ct. 40, 46, 52 L.Ed. 151 (1907)). A state’s sovereign powers to create, abolish, and fund political subdivisions are not constrained by the Fourteenth Amendment; the political subdivision is not a “person” protected by the Amendment. As the Supreme Court explained in City of Trenton, “The power of the State, unrestrained by the ... Fourteenth Amendment, over the rights and property of [political subdivisions] held and used for ‘governmental purposes’ cannot be questioned.” Id. at 188, 43 S.Ct. at 537; see also Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 638, 4 L.Ed. 629 (1819); Harris v. Angelina County, 31 F.3d 331, 340 (5th Cir.1994) (“[W]e can think of few greater intrusions on state sovereignty than requiring a state to respond, in federal court, to a claim for contribution brought by one of its own counties”); Kelley v. Metropolitan County Bd. of Educ., 836 F.2d 986, 998 (6th Cir.1987) (“Federal courts may not be called upon, in the first instance, ‘to adjudicate what is essentially an internal dispute between two local governmental entities, one of which is asserting unconstitutional conduct on the part of the other’”) (quoting South Macomb Disposal Auth. v. Township of Washington, 790 F.2d 500, 507 n. 1 (6th Cir.1986) (Engel, J., concurring)), cert. denied, 487 U.S. 1206, 108 S.Ct. 2848, 101 L.Ed.2d 885 (1988).

The plaintiffs’ interest in this case was to remedy the unconstitutional, racially discriminatory policies of the State and its political subdivisions in creating and maintaining a dual system of public education in Darlington County. To that end, they could have sued the State and any responsible agencies of the State. And a federal court, in the exercise of its equitable powers, could have remedied the violations by allocating among the defendants in any proportion the prospective costs of implementing its injunctive decree. But when interested persons and the federal government chose to sue only the School District and, through that process, obtained complete relief, the plaintiffs’ interest in this case was satisfied. Thereafter, no federal court had jurisdiction to involve itself further in the internal affairs of state government and apportion the costs of providing the ordered relief among the state’s departments and political subdivisions. Cf. Hayward v. Clay, 573 F.2d 187, 190 (4th Cir.), cert. denied, 439 U.S. 959, 99 S.Ct. 363, 58 L.Ed.2d 351 (1978) (while state’s power over its municipal corporations may be nearly absolute, federal courts may adjudicate claim that state’s exercise of power violates the Equal Protection Clause).

Accordingly, insofar as it imposes liability on the State of South Carolina to pay for part of the desegregation remedies imposed by the district court, the judgment of the district court is reversed. Otherwise, we do not disturb the judgment.

IT IS SO ORDERED.

      . For the same reason that the School District may not represent its school children for substantive constitutional remedies, it may not represent them for alleged unlawful discrimination under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1701 et seq.

        . While this rationale might not, per se, preclude a political subdivision from suing a state under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, for its discriminatory allocation of federal funds, we hold that the statute in any event provides no such authorization. Nowhere in Title VI do we find any indication of a congressional intent to authorize a political subdivision of a state to sue the state itself. See United States v. Alabama, 791 F.2d 1450, 1456 (11th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 144 (1987). But see Hudson Valley Freedom Theater, Inc. v. Heimbach, 671 F.2d 702 (2d Cir.) (nonprofit corporation may sue political subdivision of state under Title VI), cert. denied, 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 110 (1982).


author: HAMILTON, Circuit Judge: BUTZNER, Senior Circuit Judge,

text:
    James O’CONNOR, Plaintiff-Appellant, v. CONSOLIDATED COIN CATERERS CORPORATION, Defendant-Appellee. Equal Employment Opportunity Commission, Amicus Curiae.
    No. 94-1214.
    United States Court of Appeals, Fourth Circuit.
    June 5, 1996.
    George Daly, Sharon Samek, George Daly, P.A., Charlotte, North Carolina; for Appellant. James Bernard Spears, Jr., Jacob J. Modla, Haynsworth, Baldwin, Johnson & Greaves, P.A., Charlotte, North Carolina, for Appellee. James R. Neely, Jr., Deputy General Counsel, Gwendolyn Young Reams, Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, Barbara L. Sloan, Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae.

      Before HAMILTON and LUTTIG, Circuit Judges, and BUTZNER, Senior Circuit Judge.
   OPINION

HAMILTON, Circuit Judge:

This age discrimination in employment case is before us on remand from the United States Supreme Court. See O’Connor v. Consolidated Coin Caterers Corp., — U.S. -, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). The Court granted certiorari in part in O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542 (4th Cir.1995) (O’Connor I), see O’Connor v. Consolidated Coin Caterers Corp., — U.S.-, 116 S.Ct. 472, 133 L.Ed.2d 401 (1995), to decide the following question: whether, assuming Title VII’s McDonnell Douglas framework is applicable to claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A §§ 621-634 (West 1985 & Supp.1994), an ADEA plaintiff need show that he was replaced by someone outside the age group protected by the ADEA in order to establish a prima facie case in a non-reduetion-in-force context. Concluding that a plaintiff nee/d not, the Court reversed our holding to the contrary. The Court then remanded the ease to us for further proceedings consistent with its opinion. On remand, we have considered whether James O’Connor (O’Connor), now relieved of the burden of establishing that he was replaced by someone outside the protected class (i.e. under forty years of age) in order to establish a prima facie case under the McDonnell Douglas burden-shifting proof scheme, has proffered sufficient evidence to withstand Consolidated Coin Caterers Corporation’s (Consolidated Coin) motion for summary judgment. We conclude that he has not. Accordingly, we affirm.

I.

The facts of this ease and our standard of review are ably set forth in O’Connor I and, therefore, do not warrant repeating here. See O’Connor I, 56 F.3d at 543-545. We, thus, move directly to analyzing whether, in light of the Court’s opinion, O’Connor’s proffered evidence of age discrimination can withstand Consolidated Coin’s motion for summary judgment. Our analysis considers this question under the burden-shifting proof scheme articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in the non-reduction-in-foree context and the reduction-in-force context, and under ordinary standards of proof by direct and indirect evidence.

Under the burden-shifting proof scheme, once a plaintiff establishes a prima facie ease of discrimination, a presumption of discrimination arises and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged employment decision. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-08, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). If the employer carries this burden of production, the presumption “drops out of the picture,” id. at 510-11, 113 S.Ct. at 2749, and the plaintiff bears the ultimate burden of proving both that the employer’s asserted reason was pretextual and that the plaintiffs age was the true reason for the challenged employment decision. Id. at 515-17, 113 S.Ct. at 2752.

We first hold that O’Connor cannot prevail on his ADEA claim in the non-reduetion-in-force context under the burden-shifting proof scheme articulated for Title VII cases in McDonnell Douglas. O’Connor fails to meet the third element of the prima facie case — at the time of discharge, the plaintiff was performing his job at a level that met his employer’s legitimate expectations. See Mitchell v. Data General Corp., 12 F.3d 1310, 1315 (4th Cir.1993). In reaching this conclusion, we rely on our express reasoning in O’Connor I for our conclusion there that O’Connor failed to meet the nearly identical element in the reduction-in-force context. In O’Connor I, after discussion of the evidence, we concluded that O’Connor failed to meet the third element of the prima facie ease under the McDonnell Douglas proof scheme in the reduction-in-force context — the plaintiff was performing at a level substantially equivalent to the lowest level of those of the group retained. O’Connor I, 56 F.3d at 547. There, we recognized that the third element in the reduction-in-foree context demanded that O’Connor proffer essentially the same evidence necessary to satisfy the third element of the prima face case in the non-reduction-in-force context. See id.

Next, we hold that O’Connor cannot prevail on his ADEA claim in the reduction-in-force context under the burden-shifting proof scheme articulated for Title VII cases in McDonnell Douglas because, for the reasons stated in O’Connor I, he fails to meet the third element necessary to establish a prima facie case. See Mitchell, 12 F.3d at 1315.

Even assuming arguendo that O’Con-nor established a prima facie ease of age discrimination, after reviewing the evidence, we conclude that he did not meet his ultimate burden of proving that Consolidated Coin’s asserted reason was pretextual and that his age was the true reason for its challenged employment decision. In O’Connor I, we explained the infirmities with respect to O’Connor’s direct evidence in section III.A and his indirect evidence in section II.B. See id at 546-50. The same reasoning applies here with equal force.

Finally, for the reasons stated in O’Connor I, we hold that O’Connor cannot survive Consolidated Coin’s motion for summary judgment under his proffer of direct and indirect evidence. See id.

II.

In conclusion, we affirm the district court’s grant of summary judgment in favor of Consolidated Coin.

AFFIRMED.

BUTZNER, Senior Circuit Judge,

dissenting:

After the Supreme Court reversed and remanded this case, both parties requested leave to file supplemental briefs and to present oral argument. Their requests, I believe, are reasonable. For reasons stated in Part II of my separate opinion, see O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 551 (4th Cir.1995) (Butzner, J., concurring in part and dissenting in part), I dissent from the disposition of this case by summary judgment. The evidence recounted in Part II of my separate opinion creates a genuine issue of material fact that should be decided by trial.