February 19, 1981
UNITED STATES OF AMERICA, APPELLANT
CITY OF PHILADELPHIA; WILLIAM J. GREEN, MAYOR OF PHILADELPHIA; W. WILSON GOODE, MANAGING DIRECTOR; MARVIN E. ARONSON, M.D., MEDICAL EXAMINER; G. EDWARD DESEVE, DIRECTOR OF FINANCE; MORTON B. SOLOMON, POLICE COMMISSIONER; DONALD GRAVATT, DEPUTY POLICE COMMISSIONER; ROBERT ARMSTRONG, CHIEF INSPECTOR, PHILADELPHIA POLICE DEPARTMENT (INTERNAL AFFAIRS BUREAU); GREGORE SAMBOR, CHIEF INSPECTOR, PHILADELPHIA POLICE DEPARTMENT (TRAINING BUREAU); FRANK A. SCAFIDI, CHIEF INSPECTOR, PHILADELPHIA POLICE DEPARTMENT (DETECTIVE BUREAU HEADQUARTERS UNITS); SUCCESSOR TO POSITION OF CHIEF INSPECTOR, PHILADELPHIA POLICE DEPARTMENT (DETECTIVE BUREAU FIELD OFFICES); SUCESSOR TO POSITION OF CHIEF INSPECTOR, PHILADELPHIA POLICE DEPARTMENT (STAFF SERVICES BUREAU); ROBERT WOLFINGER, CHIEF INSPECTOR, PHILADELPHIA POLICE DEPARTMENT (COMMAND INSPECTOR); SUCCESSOR TO FUNCTIONS OF CHIEF INSPECTOR, PHILADELPHIA POLICE DEPARTMENT (PATROL BUREAU SOUTH); SUCESSOR TO POSITION OF CHIEF INSPECTOR, PHILADELPHIA POLICE DEPARTMENT (COMMAND INSPECTOR); JOHN CRAIG, CHIEF INSPECTOR, PHILADELPHIA POLICE DEPARTMENT (PATROL BUREAU NORTH); JOHN MCHUGH, CHIEF INSPECTOR, PHILADELPHIA POLICE DEPARTMENT (SPECIAL PATROL BUREAU); FRANCIS X. O'SHEA, CHIEF INSPECTOR, PHILADELPHIA POLICE DEPARTMENT (COMMUNITY RELATIONS BUREAU); DAVID CORDIVARI, CAPTAIN OF THE PHILADELPHIA POLICE DEPARTMENT; DAVID OWENS, SUPERINTENDENT OF PRISONS
SUR PETITION FOR REHEARING
Before Aldisert, Van Dusen and Garth, Circuit Judges. Before Seitz, Chief Judge, and Van Dusen, Aldisert, Gibbons, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.*fn*
SUR PETITION FOR REHEARING
The petition for rehearing filed by Appellant in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
SEITZ, Chief Judge and GIBBONS, A. LEON HIGGINBOTHAM, J., and SLOVITER, Circuit Judges, would grant the petition for rehearing.
GIBBONS, Circuit Judge, dissenting from an order denying rehearing.
Rule 35 of the Federal Rules of Appellate Procedure provides that rehearing by the court in banc "will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceedings involve a question of exceptional importance." This case, in which the United States petitions for rehearing of a panel decision affirming the dismissal of its complaint, more clearly meets both criteria of Rule 35 than any of those which we have heard in banc in the eleven years of my service on this court. The panel decision is plainly inconsistent with an in banc opinion of this court filed little over a year ago, and with two prior panel opinions, one of them written by the very author of the opinion of which the United States seeks reconsideration. Moreover, it imposes on the United States a new and totally unprecedented requirement of fact rather than notice pleading in an action in which the Department of Justice seeks to enforce the provisions of a federal statute enacted pursuant to Congressional spending power. Finally, it is inconsistent with a long line of authority in the Supreme Court respecting the authority of the Department of Justice to conduct litigation in the public interest. It is flabbergasting, considering the trivial uses to which Rule 35 has been put in this court, that five votes are unavailable to authorize consideration of this case. Not only is it a case which amply satisfies the criteria of Rule 35, but the panel decision and the decisions in the district court are patently wrong.
This suit grows out of an eight-month Justice Department investigation into police brutality in Philadelphia. Following the failure of private plaintiffs in Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976), to convince the Supreme Court of a sufficient factual nexus between particular acts of brutality and official collusion in condoning the conduct of or obstructing the disciplining of police officers, and system-wide deprivations of civil rights, the Justice Department undertook to establish that connection. Its investigations into police files of citizen complaints, and review of internal police department training and disciplinary procedures revealed a pervasive pattern or practice of verbal abuse (often involving racial epithets), physical abuse, false arrests, compounding of charges to cover up false arrests or to discourage the filing of complaints, illegal searches and seizures, and unlawful detainments.
As detailed in the government's complaint and replies to defendants' interrogatories, the investigation also discovered inadequate training in the use of fire arms. The training did not attempt to discourage officers from using deadly force, with the result that innocent bystanders and fleeing persons were too often shot, 29 of them in the back. The government's investigation uncovered 290 complaints by citizens that they had been shot. The police department did not afford adequate psychological training to help officers deal with stress situations and to screen out officers with abusive tendencies. Officers were also inadequately trained to recognize victims of diabetic, epileptic and other disease-related seizures, with the result that persons in need of medical care were often locked up without medication and sometimes physically abused.
The internal investigative and disciplinary procedures, or rather lack of them, were an especial subject of investigation. The Justice Department found that the police department pressured citizen complainants and witnesses to take lie detector tests, but did not impose the tests on police officers. Statements from witnesses would often be taken in the presence of the allegedly abusive officer. Police officers would offer to drop charges if the arrestee withdrew or agreed not to file a complaint. The police department would often accept the officer's explanation of his conduct, and would compile reports justifying the officer's conduct. Compilers of these reports would discuss them with the directors of the police department internal affairs bureau, and would often alter the reports to suit the protective views of the directors. Moreover, despite complaints of brutality filed against police officers, who may or may not have been internally investigated, these officers would nonetheless receive commendations and promotions. The Justice Department further found that the police department harassed citizen critics of the police by surveillance and false arrests. Police officers critical of department practices would also be harassed.
II. THE DISTRICT COURT'S OPINIONS
The district court issued two opinions, one dismissing the bulk of the government's claims for lack of standing, the other dismissing the remainder of the complaint for failure to plead discrimination in the administration of federally funded programs with sufficient factual specificity.
In its first opinion, reported at 482 F. Supp. 1248 (E.D.Pa.1979), the district court concluded the Attorney General lacked authority, express or implied, statutory or constitutional, to initiate the greater part of its suit seeking declaratory and injunctive relief against a pattern or practice of civil rights violations.*fn1 The court reviewed the legislative history of the Civil Rights Acts of 1957, 1960 and 1964, in which amendments explicitly authorizing the Attorney General to initiate suits for injunctions were proposed but never incorporated in the bills' final versions. Relying, in the absence of direction from the Third Circuit, on decisions from the Fourth and Ninth Circuits, the court concluded that congressional failure explicitly to authorize executive branch suits for injunctions meant Congress intended to prohibit the suit.
The district court rejected the Attorney General's argument that 28 U.S.C. § 518(b), authorizing his Department to conduct in federal court any case in which the United States is interested, afforded explicit statutory authority for this suit. The court found that statute a "mere housekeeping provision," 482 F. Supp. at 1258, that could not have been intended to confer broad power to vindicate the United States' interests.
The court went on to reject any implied statutory authority to initiate the action. The Attorney General relied primarily on 18 U.S.C. §§ 241, 242, the criminal counterparts of 42 U.S.C. §§ 1983, 1985. While facially these statutes authorize no more than criminal prosecutions against civil rights violators, the government maintained that there is no effective remedy other than the Attorney General's injunctive action to prevent wide-spread civil rights violations by Philadelphia police and city officials. Lack of an effective alternate remedy, and the statutory scheme of 18 U.S.C. §§ 241, 242 and 42 U.S.C. §§ 1983, 1985, the Attorney General argued, implied statutory authority for the suit. The district court rejected these assertions, noting that effective alternative remedies through private actions existed.
The district court also rejected the Attorney General's claim of inherent executive authority to bring the suit. The court found unpersuasive the government's analogy of an implied constitutional right of action by the government from Supreme Court decisions affording private litigants an implied constitutional claim. It also dismissed the Attorney General's contention that he has inherent constitutional authority to sue to protect the United States' interests, including power to remove burdens on interstate commerce and to protect constitutional and statutory rights. The court found no authority in In re Debs, 158 U.S. 564, 15 S. Ct. 900, 39 L. Ed. 1092 (1895) (discussed infra, Part V) for the government's arguments. That case, in which the Supreme Court announced a broad Executive Branch right and duty to sue to protect the public interest, was, according to the court, limited to its facts of dire nationwide emergency. The government's allegations of burdens on interstate commerce in Philadelphia were said to be of much less magnitude than the burdens proved in Debs. The court declined to follow the ruling of the Southern District of New York in United States v. Brand Jewelers, 318 F. Supp. 1293 (S.D.N.Y.1970) (discussed infra Part V), which had upheld the Attorney General's standing to sue to enjoin wide-spread deprivations of due process.
The court also rejected the government's argument that it had standing to sue as parens patriae to protect the health and welfare of its citizens. It held that remedy to be available only when no private alternative existed. Because private enforcement alternatives were available, the court found no merit in this last argument.
The district judge then embarked on a policy discussion of the impropriety, and indeed, danger of the government's suit. In a discussion reminiscent of South Carolina's attitude toward federal revenue officers,*fn2 he stated that "the power which the Attorney General claims in this case simply is not compatible with the federal system of government envisioned by the Constitution," 482 F. Supp. at 1268. He envisioned "legions of lawyer-bureaucrats," id. at 1269, dispatched to reconnoiter and to rampage "the policy making machinery at every level of government from the village hall to the governor's mansion," id. He suggested that permitting the government's suit would encourage the Executive to take the law into its own hands, and in effect, to rewrite congressional enactments to satisfy its power-hungry tastes. Finally, the district judge argued that not only did the government's suit threaten potential executive abuse, it had in fact already resulted in abuse. The judge believed the Justice Department's tactics of investigation and prosecution of the suit catered to the press and jeopardized the reputations of former Mayor Rizzo and several high police department officials. It did not seem to occur to the court that a trial on the merits might vindicate the ex-mayor's and the police officials' reputations.
In its second opinion, reported at 482 F. Supp. 1274 (E.D.Pa.1979), the district court held the government's complaint failed to meet the "well established (rule) in this Circuit that complaints in civil rights cases must be pleaded with factual specificity." Id. at 1275. The court found the complaint contained "naked allegations" of racial discrimination in the administration of federally funded police department activities, but failed to include the requisite supporting factual averments. Moreover, the court found, the complaint was self-contradictory in its allegations of racial discrimination.
III. THE PROCEDURE BELOW
Some flavor of the attitude with which the district court received the United States' complaint may be gleaned from the court's dismissal of most of the charges without oral argument, pursuant to Rule 12(b), even though an answer had been filed, interrogatories had been served and comprehensively answered, and the defendants never made a Rule 12(b) motion to dismiss, 482 F. Supp. at 1252, n.1. The decision dismissing most of the complaint left pending a claim by the government for the enforcement of federal funding statutes. 42 U.S.C. § 2000d; 42 U.S.C. § 3766(c); 42 U.S.C. § 6727(b) and 31 U.S.C. § 1242(g). In disposing of that claim, after answer, and without reference to the contents of the government's over 800 pages of answers to interrogatories, the district court, acknowledging that a Rule 12(b) motion was in those circumstances untimely, but again acting sua sponte, granted a Rule 12(c) motion for judgment on the pleadings which the defendants never made. Since the district court proceeded sua sponte on both motions, the United States was never afforded the opportunity to argue that its answers to interrogatories cured any defects in its complaint. The panel opinion, viewing the government's complaint with the same distaste, never even mentions the highly unusual manner in which the district court proceeded.
The district court's dismissal of the government's complaint for failure to allege with sufficient factual specificity its allegations of race discrimination in the administration of federally funded police activities disregards this Circuit's decision in Rhodes v. Robinson, 612 F.2d 766 (3d Cir. 1979), directing that trial courts should not limit their consideration to the complaint when later submissions may allege the requisite facts. More importantly, the district court failed to recognize that this Circuit has applied the requirement of fact pleading in civil rights claims only against private litigants. The policy basis of that requirement, to weed out frivolous claims of irresponsible litigants, has little, if any, application to suits brought by the United States Attorney General. Finally, the district court's application of a fact pleading requirement to Justice Department pattern-or-practice suits would result in the submission of elephantine complaints, and would disembowel the Federal Rules of Civil Procedure 8(a)(2) requirement of a "short and plain statement of the claim."
A. Later Submissions
In Rhodes v. Robinson, a panel of this Circuit stated.
The purpose of the requirement of specificity in civil rights complaints is to weed out frivolous and insubstantial claims.... This purpose is not well served by limiting consideration to the complaint and ignoring later submissions that provide the necessary specificity.
612 F.2d at 727.
The government's 35 page complaint is more than a "short and plain statement." Fed.R.Civ.P. 8(a). In fifty paragraphs and many subparagraphs it comprehensively describes a pattern or practice of Philadelphia police and city officials, in the physically and verbally abusive conduct of police officers, in the inadequate, and deliberately discouraging complaints procedure, and in the failure adequately to train and discipline police officers. The complaint also alleges that these practices have a disproportionate impact, and in some instances are designed to impact disproportionately, on Blacks and Hispanics. The government's complaint details an overall procedural picture. It does not, however, specify particular names, times, places, and events. In response to defendants' interrogatories, the government filed a formidable set of answers totalling 836 pages. These answers afford overwhelming specifics as to names, dates, places, and particular acts. Many of the answers point the defendants to hundreds of citizen complaints in the police department's files.*fn3 While many of the government's answers graphically describe instances of police brutality without dividing the victims into categories by race, other answers do afford more than adequate support for the government's allegations of race discrimination.
For example, in a 79-page list of persons subjected to the practice of "cover charging" that is, the filing of additional charges by the police in order to discourage the filing of citizen complaints or in order to cover up illegal arrests*fn4 196 of the 284 events listed, or 69%, involve Blacks or Hispanics. (Not all of the persons are identified by race. Only seven of the 284 cover-charging events resulted in sentencings.) Each event lists name, date, charges, and disposition. See Third Reply to Defendants' First Set of Interrogatories, pages 1H-79H.
The government also recited specific events of physical abuse, illegal searches and seizures, and unlawful detainment. Each category of violation received several paragraphs detailing the name of the victim, the date, place, and particular facts. These paragraphs did not, on the whole, identify the victim's race. At the end of each set of paragraphs, however, the government provided a list of names and dates, and in most cases, race. These names were drawn from police files of citizens who had filed complaints with the department. The police files contain specific descriptions of each event. A review of these lists reveals a highly disproportionate impact on Blacks and Hispanics.
Number of Number of Percentage of
Complainants Black and Black and
Identified by Hispanic Hispanic
Race Complainants Complainants
Type of Complaint filed
Persons charged with assaulting
or resisting police
officer complaining of
physical abuse while in police
custodya 76 50 66%
Arrestees and prisoners
of physical abuse
while in police custodyb 96 59 61.5%
Complaints of physical abuse
to extract confessionsc 47 27 57.5%
Complaints of illegal searches
and seizuresd 15 11 73.3%
Complaints of unlawful
detainmente 26 10 61.5%
Complaints of general physical
abusef 143 89 62.2%
It should be clear from the foregoing that the government's later submissions afforded ample specificity of racially discriminatory impact. The callous disregard of the government's answers not only ill-serves the purpose of "weeding out insubstantial claims," but given the considerable substantiation the government provided in its answers, seems a willful flouting of this court's Rhodes v. Robinson ruling, and a barely-masked contempt for the civil rights guarantees the government seeks to enforce through its suit under the federal funding statutes.
B. Civil Rights Pleading Policy
This Circuit's rule requiring fact pleading in civil rights complaints may be marginally defensible as a means of weeding out frivolous complaints brought by irresponsible, and perhaps unstable, litigants.*fn5 But that policy reason, whatever its merit when applied to a private civil rights plaintiff, has no application to a complaint brought on behalf of the United States by a cabinet-level officer. In none of the cases in which this Circuit has applied the fact-pleading rule has the federal government been the plaintiff. The simplistic application of the rule to the federal government affords no justification for this extension. However distasteful some judges may find its attempt to enforce the civil rights statutes, the federal government cannot be denominated an irresponsible, unstable, frivolous or over litigious plaintiff.
In United States v. Gustin-Bacon Division, Certain-Teed Products Corp., 426 F.2d 539 (10th Cir.), cert. denied, 400 U.S. 832, 91 S. Ct. 63, 27 L. Ed. 2d 63 (1970), the Tenth Circuit rejected defendant's claim that a complaint filed by the federal government alleging violations of 42 U.S.C. § 2000e-6(a) must contain facts pleaded with greater specificity and detail than required by Fed.R.Civ.P. 8. The court held that unless Congress specifically provided otherwise, the Federal Rules of Civil Procedure govern the government's pleading requirements in an action pursuant to a statutory grant of authority.
Rule 8 of the Federal Rules of Civil Procedure was originally designed to circumvent the morass caused by the code pleading requirement of pleading facts constituting the cause of action.... To reinstate this type of pleading, even in the limited circumstances here involved, is to directly contradict the spirit and purpose of Rule 8(a) and the general concept of modern federal pleading. We find no suggestion in the Civil Rights Act of 1964 nor in the debates prior to its enactment which supports (defendants') contention that Congress intended to require the Attorney General to revert to a detailed pleading of evidentiary matters.
426 F.2d at 542.
Like the statutes at issue in Gustin-Bacon, the federal funding statutes under which the Attorney General sues in this case, 42 U.S.C.A. § 3789d (1979), 42 U.S.C. §§ 2000d, 3766, 6727 (1976), and 31 U.S.C. § 1242 (1976), contain no fact-pleading requirement. Without such a requirement, the liberal notice pleading standard of the Federal Rules and of Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), should govern the Attorney General's complaint. Under that standard, unless "no set of facts" could prove the Attorney General's allegations, the complaint should not be dismissed.
C. Effect of Application of a Fact Pleading Rule to Justice Department Pattern or Practice Suits
The complaint filed in this case was hardly insubstantial. Far from setting out the kind of scanty claims the fact pleading rule condemns, the government's hefty complaint made out a thorough description of the alleged pattern and practices of the Philadelphia Police Department and city officials depriving Philadelphians of their civil rights. For example, paragraph 31 and its eight subparagraphs describe the kinds of physical harassment to which street police officers allegedly subject Philadelphians. Paragraph 35 and its five subparagraphs describe the internal procedures through which the Department discourages citizen complaints of police abuse and insulates officers from disciplinary proceedings. Paragraph 36 and its eight subparagraphs detail ways in which the Department's Homicide Division protects its officers from criminal investigation. Similar examples abound. In a pattern or practice suit, scores or hundreds of specific events may underlie each allegation of a procedure purportedly violating the civil rights laws. To require the government to specify the underlying facts in its complaint would result in complaints hundreds of pages long. In this case, the factual specifications provided in the government's answers to defendants' interrogatories exceeded 800 pages. Had they been incorporated in the complaint, that document would have approached if not exceeded one thousand pages. A complaint of such mammoth dimensions makes a mockery of Rule 8(a). Had the government submitted such a complaint, the district court would most likely have dismissed it for prolixity.*fn6
Among the many egregious consequences of the panel's affirmance of the district court's pleading ruling, the total disregard of this court's decision in Rhodes v. Robinson and the application without policy justification of a fact-pleading rule to the United States Attorney General pale by comparison with the effect of an imposition of fact-pleading requirements to a Justice Department pattern-or-practice suit. Not only does such a rule eviscerate the notice pleading standard which Congress has shown no desire to alter with respect to government suits under civil rights statutes, see United States v. Gustin-Bacon, supra, but its practical consequences create an immeasurable burden on the Justice Department and on the federal courts. Can this Circuit really mean to impose on the federal government a requirement that it file a multi-volume complaint in order to obtain a hearing on the merits of a pattern or practice suit in a Title VII case, for example?*fn7 The panel opinion on this aspect of the case is so thoroughly inconsistent, not only with our prior decisions, but with any possibly relevant public policies, that it cries out for reconsideration by the court in banc.
V. SOURCES OF EXECUTIVE AUTHORITY TO BRING SUIT
Article II section 3 of the Constitution charges the Executive to "take care that the Laws be faithfully executed." Independent of any explicit statutory grant of authority, provided Congress has not expressly limited its authority, the Executive has the inherent constitutional power and duty to enforce constitutional and statutory rights by resort to the courts. When Federal courts have upheld executive standing without explicit congressional authority, they have looked to other provisions of the Constitution, such as the commerce clause*fn8 and the fourteenth amendment,*fn9 and to a general statutory scheme defining federal rights but lacking the specific remedy of executive suit.*fn10 In addition, 28 U.S.C. § 518(b) affords the Attorney General statutory authority to "conduct and argue any case in a court of the United States in which the United States is interested." The Supreme Court has held that this statute confers on the Executive general authority to initiate suits "to safeguard national interests."*fn11 Moreover, the Supreme Court has held that the Executive's general constitutional duty to protect the public welfare "is often of itself sufficient to give it standing in court."*fn12
A review of the caselaw construing executive authority to bring suit helps set this suit in context. Prior cases show that the district court's arguments for denying standing because of congressional inaction to afford explicit standing or because of a threat of abuse of executive power have already been rehearsed and rejected.
From the beginning of the nineteenth century, the Supreme Court has recognized the nonstatutory authority of the executive to sue to protect the United States' contractual and proprietary interests. See, e. g., Dugan v. United States, 16 U.S. (3 Wheat.) 172, 4 L. Ed. 362 (1818); United States v. Buford, 28 U.S. (3 Pet.) 12, 7 L. Ed. 585 (1830); United States v. Tingey, 30 U.S. (5 Pet.) 115, 8 L. Ed. 66 (1831); Benton v. Woolsey, 37 U.S. (12 Pet.) 27, 9 L. Ed. 987 (1838); United States v. Gear, 44 U.S. (3 How.) 120, 11 L. Ed. 523 (1845); Cotton v. United States, 52 U.S. (11 How.) 229, 13 L. Ed. 675 (1850); United States v. Hughes, 52 U.S. (11 How.) 552, 13 L. Ed. 809 (1850); Hughes v. United States, 71 U.S. (4 Wall) 232, 18 L. Ed. 303 (1866).
After the civil war, with the creation of the Justice Department, An Act to Establish the Department of Justice, 16 Stat. 162 ch. 150 (June 22, 1870), the scope of the Attorney General's statutory and nonstatutory authority to conduct litigation in which the United States had an interest expanded. The 1870 Justice Department Act, part of the Reconstruction Congress' efforts to implement and to secure enforcement of the 13th, 14th and 15th amendments, see generally, H. Cummings & C. McFarland, Federal Justice, 218-249 (1937), broadened the Attorney General's authority to appear in federal court to present the interests of the United States.*fn13
The 1870 Justice Department Act added the provision now found at 28 U.S.C. § 518(b)
When the Attorney General considers it in the interests of the United States, he may personally conduct and argue any case in a court of the United States in which the United States is interested, or he may direct the Solicitor General or any officer of the Department of Justice to do so.
16 Stat. 162, ch. 150 § 5 (1870). Whether this statute, along with other Reconstruction Era enactments, see, e. g., 17 Stat. 13 ch. 22 § 3 (1871), now at 10 U.S.C. 333 (part of the Ku Klux Klan Act, authorizing the executive to use military or "any other means" to enforce federal law), in effect creates explicit congressional authority for the executive to seek declaratory or injunctive relief in civil rights cases, is perhaps debatable. But cf. United States v. California, 332 U.S. 19, 26-28, 67 S. Ct. 1658, 1662, 91 L. Ed. 1889 (1946) (discussed infra). Nonetheless, in the vast expansion of federal law and of the activities of federal lawyers that occurred after the Civil War, the nature of suits brought by the Attorney General without explicit statutory authority also widened. The Justice Department Act, if it did not automatically grant standing (a latter-day concept with which the legislators of 1870, accustomed to practice under the Process Act, would hardly be familiar), did authorize the Attorney General, or his designees, to sue in the lower federal courts. See United States v. San Jacinto Tin Co., 125 U.S. 273, 278-79, 8 S. Ct. 850, 853, 31 L. Ed. 747 (1888).
In United States v. San Jacinto Tin Co., supra, the Attorney General sued to revoke a fraudulently obtained land patent. Although the United States had a proprietary interest in the action, for if the patent were revoked the land would have reverted to the United States, the Court's concerns focused more on protecting the integrity of the land patents scheme than on any pecuniary interest of the United States. Thus, although the Court spoke of the rights of the United States as analogous to those of a private litigant interested in the suit's subject matter, it also declared:
(I)n short, if there does not appear any obligation on the part of the United States to the public, or to any individual, or any interest of its own, it can no more sustain such an action than any private person could under similar circumstances.
125 U.S. at 286, 8 S. Ct. at 857. The analogy to private litigants is in fact imperfect, for as the Court recognized, and was to elaborate further in Bell Telephone, the Executive has a duty to the public, which no private litigant suing to enforce his property interests has.
It is important to note that this early non-statutory action afforded the Supreme Court the opportunity to reflect on, and to reject, the argument that executive resort to the courts without congressional authority threatened the balance of power among the coordinate branches of the federal government.
We are not insensible to the enormous power and its capacity for evil thus reposed in that department of the government. Since the title to all of the land in more than half of the States and Territories of the Union depends upon patents from the government of the United States, it is to be seen what a vast power is confided to the officer who may order the institution of suits to set aside every one of these patents; and if the doctrine that the United States in bringing such actions is not controlled by any statute of limitations, or governed by the rule concerning laches be sound, of which we express no opinion at present, then the evil which may result would seem to be endless as well as enormous. But it has often been said that the fact that the exercise of power may be abused is no sufficient reason for denying its existence, and if restrictions are to be placed upon the exercise of this authority by the Attorney General, it is for the legislative body which created the office to enact them.
125 U.S. at 284, 8 S. Ct. at 856.
In United States v. American Bell Telephone Co., 128 U.S. 315, 9 S. Ct. 90, 32 L. Ed. 450 (1888), the Supreme Court expanded on the public protection theme announced in San Jacinto. In this case, the United States had no pecuniary interest, for the Attorney General was suing, without Congressional authority, to revoke a fraudulently obtained inventor's patent. Unlike revocation of a land patent, revocation of an inventor's patent would not return property to the United States. Nonetheless the Court held,
The essence of the right of the United States to interfere in the present case is its obligation to protect the public from the monopoly of the patent which was procured by fraud, and it would be difficult to find language more aptly used to include this in the class of cases which are not excluded from the jurisdiction of the court by want of interest in the government of the United States.
128 U.S. at 367-68, 9 S. Ct. at 97.
One commentator has suggested that the Executive's obligation to protect the public interest in the abstract did not itself afford the Attorney General standing:
But in concluding that there was a public interest at stake entitling the Executive to bring suit, the Court did not rely on a mere assertion that such was the case. Rather, it inferred the existence of an interest from the extensive congressional activity in the patent area; and it permitted the Executive to bring suit to protect that public interest despite the absence of express statutory authority to do so because of the constitutional responsibility of the Executive to effectuate a congressionally established scheme.
Note, Nonstatutory Executive Authority to Bring Suit, 85 Harv.L.Rev. 1566, 1568 (1972). In effect, the Executive was filling in the interstices of a statutory scheme whose policy was clear. Congress' failure specifically to provide for this mode of enforcing patent policy did not prevent the Executive from taking its own steps to effect the general statutory goal of awarding a monopoly only to those inventions meeting the statutory criteria of unique originality.*fn14 Even accepting this more narrow reading of United States v. American Bell Telephone, this case falls within it, for there is a pervasive federal statutory policy protecting civil rights.
In In re Debs, 158 U.S. 564, 15 S. Ct. 900, 39 L. Ed. 1092 (1895), the Attorney General sought an injunction against the activities of Eugene V. Debs and other leaders of the Pullman railway workers. Several grounds were available to confirm the Executive's nonstatutory right to bring the suit. The Pullman strike prevented the passage of the mails through Chicago. The unanimous Court observed that the United States' proprietary interest in the mails would afford a nonstatutory right of action. 158 U.S. at 583-84, 15 S. Ct. at 905-906. The Court continued, however:
We do not care to place our decision upon this ground alone. Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assistance in the exercise of the one and the discharge of the other, and it is no sufficient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligations which it is under to promote the interest of all, and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it a standing in court.
Id. at 584, 15 S. Ct. at 906. The Court reviewed its decisions in San Jacinto and Bell Telephone, concluding:
It is obvious from these decisions that while it is not the province of the government to interfere in any mere matter of private controversy between individuals, or to use its great powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation, and concerning which the Nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties.
Id. at 586, 15 S. Ct. at 907.
Thus, the Attorney General's nonstatutory right of action derived from the constitutional duty to protect the public from injury to the general welfare. The Pullman strike impeded commerce, obstructed the highways, and in effect, represented a nuisance whose removal the executive was obliged to effect, 158 U.S. at 599, 15 S. Ct. at 912.*fn15 While one might attempt to limit Debs to its facts of extreme crisis, or to suggest that extensive congressional regulation of interstate commerce made Debs, like Bell Telephone, an example of filling in remedial interstices, see Note, Nonstatutory Executive Authority to Bring Suit, 85 Harv.L.Rev. at 1569-70, the Court's express language goes well beyond these interpretations. While in 1895 there might have been differences in the Court as to the appropriate standard of conduct,*fn16 even then the Court would not have suggested that the interests protected by the thirteenth, fourteenth and fifteenth amendments were less "entrusted to the care of the nation" than were those protected by the commerce clause.
In United States v. California, 332 U.S. 19, 67 S. Ct. 1658, 91 L. Ed. 1889 (1946), the dispute concerned legal title to oil-rich land under three-mile belt off the California shore. California maintained the Attorney General had no standing to assert the United States' claim. Invoking the inertia-as-law principle on which the district court in this case relied, California argued
that Congress has for a long period of years acted in such a way as to manifest a clear policy that the states, not the Federal Government, have legal title to the land under the three-mile belt. Although Congress has not expressly declared such a policy, (the Court) is asked to imply it from certain conduct of Congress and other governmental agencies charged with responsibilities concerning the national domain. And, in effect, (the Court is) asked to infer that Congress has by implication amended its long-existing statutes which grant the Attorney General broad powers to institute and maintain court proceedings in order to safeguard national interests.
332 U.S. at 27, 67 S. Ct. at 1662.
The "long-existing statutes" to which the Court referred are the portions of the 1870 Justice Department Act creating the Department, and authorizing the Attorney General to assert the United States' interests in federal court, now at 28 U.S.C. §§ 501, 503 & 518. United States v. California thus found clear statutory authority for the government's suit, despite the absence of more explicit authority to institute the particular suit at hand. In reply to California's standing contentions, the Court held:
(No) act of Congress has amended the statutes which impose on the Attorney General the authority and the duty to protect the Government's interests through the courts. That Congress twice failed to grant the Attorney General specific authority to file suit against California, is not a sufficient basis upon which to rest a restriction of the Attorney General's statutory authority.
Id. at 27-28, 67 S. Ct. at 1662-1663 (citations omitted). The Court's examination of the legislative history of Congress' two failures to grant express standing to the Executive to initiate a suit to confirm the United States' title, 332 U.S. at 28 n.4, 67 S. Ct. at 1663 n.4, did not lead the Court to conclude that Congressional failure to authorize the suit therefore meant Congress forbade the action. The broad statutory authority invested in the Attorney General to argue the interests of the United States supplied ample standing.*fn17
The Supreme Court's treatment of Executive standing thus outlines four grounds of the Attorney General's authority to initiate suit despite the absence of express congressional directive to bring particular kinds of actions. 28 U.S.C. § 518 affords a general statutory source of standing when the United States' interests, and particularly its federal sovereign interests, are at stake. Moreover, without referring to that statute, the Court has declared a general federal right to protect Government property, and to supply an additional remedy to effect a general statutory scheme, as well as a constitutional obligation to protect the public welfare.*fn18
More recently, the civil rights movement of the late fifties and early sixties also occasioned nonstatutory executive resort to the federal courts. Courts in the Fifth Circuit, addressing the activities of the Ku Klux Klan against the "freedom riders," and segregation in bus and airline terminals, applied the Debs precedent to hold that the Executive had a nonstatutory right of action to sue to enjoin burdens on interstate commerce. See, e. g., United States v. U. S. Klans, 194 F. Supp. 897 (M.D.Ala.1961) (Johnson, J.); United States v. City of Montgomery, 201 F. Supp. 590 (M.D.Ala.1962) (Johnson, J.); United States v. Lassiter, 203 F. Supp. 20 (W.D.La.) (3 judge court), aff'd per curiam, 371 U.S. 10, 83 S. Ct. 21, 9 L. Ed. 2d 47 (1962); United States v. City of Shreveport, 210 F. Supp. 36 (W.D.La.1962); United States v. City of Jackson, 318 F.2d 1 (5th Cir. 1963) (Wisdom, J.); United States v. Original Knights of the KKK, 250 F. Supp. 330 (E.D.La.1965) (3 judge court) (Wisdom, J.); Fla. East Coast Ry. v. United States, 348 F.2d 682 (5th Cir. 1965). See also United States v. Lynd, 301 F.2d 818 (5th Cir. 1962) (without discussion, permitting the Attorney General to bring a nonstatutory suit for an injunction to restrain Voting Rights Act violations). While some of these decisions find statutory standing under interstate commerce acts and under the Federal Aviation Act, all explicitly also ground the Attorney General's right of action in the duty to enforce the commerce clause of the Constitution.*fn19 It must be acknowledged that between 1877 and the late fifties, instances of Executive Branch civil actions to enforcement of rights protected by the post Civil War amendments cannot be found. The reason, however, is not lack of standing. Any kind of Executive Branch enforcement of those amendments was almost non-existent. The question was not lack of standing, but lack of initiative.*fn20
In United States v. Brand Jewelers, Inc., 318 F. Supp. 1293 (S.D.N.Y.1970), Judge Marvin Frankel, relying on Debs and its Fifth Circuit progeny, held that the Attorney General had nonstatutory authority to sue to enjoin the New York "sewer service" practice. Brand Jewelers and similar operations sold on credit to impecunious customers, then filed a suit to collect, employing process servers who never delivered the summons but filed an affidavit of service. Armed with the affidavit, Brand would obtain a state court default judgment, and would garnish the wages of the hapless and unnotified defendants. In addition to the burden on interstate commerce this practice engendered. Judge Frankel found the practice resulted in "large-scale denials of due process," 318 F. Supp. at 1300. The court held "the United States may maintain this action because it has standing to sue to end widespread deprivation (i. e. deprivation affecting many people) of property through "state action' without due process of law," id. at 1299. The court found the Debs principle provided
no acceptable basis in principle for distinguishing today the authority of the Attorney General to protect against large-scale burdens on interstate commerce from his authority to protect against large-scale denials of due process.
Id. at 1300.
Judge Frankel reviewed and rejected defendants' argument that the Executive's nonstatutory suit threatened abuse, and that Congress' failure to confer standing meant Congress intended to deny the Attorney General a right of action.
Defendants warn that the power claimed by the Government in this case is "overwhelming" and "awesome" a power that "can readily become a terrible engine of oppression." This is a little hyperbolic to describe the peaceable submission of the United States that it should be permitted to sue in court and pray for judgment on behalf of thousands of people alleged to have been cheated in ways that deny their constitutional rights and burden the nation's commerce. At the same time, defendants have a point when they urge that it is no small matter for anyone to have the resources of the Federal Government drawn up against him in a lawsuit. In the end, however, the potential of imaginable horrors is not a pointedly useful test. Possible abuses by the Attorney General are subject to the control of Congress. See United States v. San Jacinto Tin Co., supra, 125 U.S. 273 at 284, 8 S. Ct. 850, 31 L. Ed. 747. Still more immediately, the whole matter is in court, where the Attorney General submits for judicial judgment all questions of propriety, possible excess, scope and limit.
318 F. Supp. at 1299 (Citation omitted)
Judge Frankel continued:
It is said that Congress has on occasion given to the Attorney General power to sue for enforcement of individual rights, but has declined to grant by statute the standing now claimed: expressio unius, as the saying runs, est exclusio alterius. But the range and effectiveness of that canon are in general somewhat limited. It was available, mutatis mutandis, in Debs and other cases in the line. Cf. United States v. Bell Telephone Co., supra, 128 U.S. 315 at 334, 336, 371-373, 9 S. Ct. 90, 32 L. Ed. 450. The failure of Congress to take positive action, sometimes a matter of moment, is hardly the equivalent of a negation. It seems especially dubious to fashion a prohibition from Congressional inaction in a case like this one, where both Congress and the courts are conceded by the executive to have veto powers, on the issue of standing as well as on the merits.
318 F. Supp. at 1300. *fn21
The following year, in New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971), the Supreme Court heard and ruled on the Executive's nonstatutory action seeking an injunction against publication of the "Pentagon Papers." In his dissent, Justice Harlan argued the Court should have faced the question whether "the Attorney General is authorized to bring these suits in the name of the United States," 403 U.S. at 753, 91 S. Ct. at 2161. The rest of the court assumed the United States could sue.
VI. THE EXECUTIVE AS PLAINTIFF-INTERVENOR AND AS PARTY IN CHARGE OF THE CONDUCT OF THE SUIT
In addition to initiating suits to protect the public from "large-scale deprivations of due process," burdens on interstate commerce, and fraud, and to assert its federal sovereign interests, the Executive has successfully intervened in civil rights actions. In Faubus v. United States, 254 F.2d 797 (8th Cir. 1958), the court invited the United States' nonstatutorily authorized intervention to secure the enforcement of school desegregation orders in Little Rock, Arkansas, when the governor of that state had called out the local national guard to prevent the attendance of black children in white schools. In Bush v. Orleans Parish School Bd., 191 F. Supp. 871 (E.D.La.) (3 judge court), aff'd per curiam, 367 U.S. 908, 81 S. Ct. 1917, 6 L. Ed. 2d 1249 (1961), the Court invited the Attorney General's participation as amicus curiae. The court had already declared plaintiffs' right to attend desegregated schools, but the injunction had yet to be enforced. The court rejected defendants' argument that congressional failure, in the Civil Rights Acts of 1957 and 1960, expressly to permit the United States to initiate civil rights actions, denied the Attorney General standing to intervene, 191 F. Supp. at 876-77. In footnote the court further observed:
There is some doubt whether the mere failure of Congress to expressly authorize the Attorney General to prosecute desegregation suits strips him of that power, if the United States has an interest in the matter. See United States v. State of California, 332 U.S. 19, 28, 67 S. Ct. 1658, 1663, 91 L. Ed. 1889, in which the Supreme Court rejected a similar argument saying: "That Congress twice failed to grant the Attorney General specific authority to file suit against California, is not a sufficient basis upon which to rest a restriction of the Attorney General's statutory authority."
191 F. Supp. at 877 n.14.
Moreover, the Court held:
The absence of specific statutory authority is of itself no obstacle, for it is well settled that there is no such prerequisite to the appearance of the United States before its own courts. United States v. San Jacinto Tin Co., 125 U.S. 273, 278-285, 8 S. Ct. 850, 31 L. Ed. 747; Kern River Co. v. United States, 257 U.S. 147, 155, 42 S. Ct. 60, 66 L. Ed. 175; Sanitary Dist. of Chicago v. United States, 266 U.S. 405, 426, 45 S. Ct. 176, 69 L. Ed. 352. Nor do the statutes governing the Attorney General's participation in court proceedings contain a prohibition. See 5 U.S.C.A. §§ 309, 316 (now 28 U.S.C. §§ 501, 503, 518).
191 F. Supp. at 878.
This circuit, en banc, has recently affirmed the Attorney General's nonstatutory right of intervention in civil rights cases. In Halderman v. Pennhurst State School and Hospital, 612 F.2d 84 (3d Cir. 1979), rev'd and remanded on other grounds, 451 U.S. 1, 101 S. Ct. 1531, 67 L. Ed. 2d 694 (1981)this court reviewed and rejected the Fourth Circuit's decision in United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977), which had denied the Attorney General standing to initiate an action to enjoin civil rights violations in a state hospital for the mentally retarded. The Fourth Circuit had held that Congress' failure to afford the executive an express right of action, and the Supreme Court's decision in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952), compelled a refusal to permit the Attorney General's suit. This court held:
We do not find persuasive the Solomon court's analogy between President Truman's nonjudicial seizure of the steel mills by military force and a judicial proceeding to obtain injunctive relief enforcing legislative policies in aid of the mentally retarded. There is all the difference in the world for separation of powers purposes between a naked exercise of executive power and executive branch resort to the judicial branch for relief which Congress has not expressly prohibited. The President is, after all, charged with the responsibility to "take Care that the Laws be faithfully executed ..." U.S.Const. art. II, § 3. When, in an effort to do so, he resorts to an Article III court under a recognized grant of federal jurisdiction such as 28 U.S.C. § 1345, and that court finds no legislative prohibition against that resort, the lawsuit cannot reasonably be seen as an invasion of the powers of Congress. Before relief can be given in such a suit, one branch, the judiciary, must agree that it is authorized by the law promulgated by a third branch. If the judiciary has, in an individual case, misconstrued the law, Congress can, constitutional pronouncements aside, change the rule for the future. If Congress wishes to withhold from the executive branch the civil remedies available under the Federal Rules of Civil Procedure, it can by specific legislation say so. Thus, we find unconvincing the separation of powers argument invoked by the Solomon court to reject executive branch enforcement of federal law.
612 F.2d at 91-92. Six members of the court joined in the Halderman opinion, including one who now joins in the panel opinion expressly approving the Solomon case, which little more than a year ago we expressly disapproved! Even the dissenters in Halderman did not dissent from that part of the opinion. Although this court suggested the rationale for permitting executive intervention and the rationale for permitting executive initiation of a civil rights action might be the same, in Halderman we were not called upon to decide the latter question.
This Circuit has also construed the statutes authorizing the Attorney General's appearance in a pending federal court suit "to attend to the interests of the United States," 28 U.S.C. § 517, and to "conduct and to argue any case in a court of the United States in which the United States is interested," 28 U.S.C. § 518, to permit the Attorney General to represent a private citizen in a civil damages action implicating the United States' interests. Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976) (Aldisert, J.). In Brawer v. Horowitz, the government undertook the defense representation of a criminal informer whose testimony at a prior trial resulted in plaintiffs' conviction. Plaintiffs claimed the United States lacked legal authority to represent him, and that the United States had no interest in his defense. Pointing to 28 U.S.C. § 517, the court dismissed the first argument as "approach(ing) the frivolous," 535 F.2d at 834. As for the government's "interest" required under 28 U.S.C. § 518, the court held:
The government should not "interfere in any mere matter of private controversy." In re Debs, 158 U.S. 564, 586, 15 S. Ct. 900, 39 L. Ed. 1092. On the other hand, it plays a legitimate role where the matters involved "affect the public at large" and "are entrusted to the care of the nation." Ibid.
535 F.2d at 836. The court found the United States' interest in enforcing the criminal laws, including the protection of informers, met the Debs standard. *fn22
Thus statutory and Third Circuit caselaw authority present the following picture: when a private action implicates the United States' interests, the Attorney General may 1) intervene; and 2) take over the conduct of the litigation with respect to issues involving the United States' interests. It is difficult to perceive a qualitatively different "threat" to separation of powers, or to local autonomy, when the Attorney General intervenes and conducts the injunctive action, and when he initiates the action. Clearly, had the United States joined a class or even individual private plaintiffs in this action, the Attorney General's standing would be indisputable. To hold the absence of private plaintiffs denies the Attorney General standing seems an exercise in piercing the substance to uncover the form.*fn23
The district court did not hold that the United States lacked the requisite "interest" under 28 U.S.C. § 518. Rather, it construed the statute as "merely a housekeeping provision which pertains to the internal organization of the federal government." 482 F. Supp. at 1258. The district judge felt "such an innocuous statute," id., could not confer general statutory authority to sue to protect the United States' interests. This court's construction of § 518 in Brawer v. Horowitz, however, controverts the district court's "mere housekeeping" interpretation. This circuit has explicitly followed Debs in construing that provision. The United States' "interest" comprehends "matters ... "affect(ing) the public at large' and ... "entrusted to the care of the nation.' " Had this court found section 518 merely concerned internal Justice Department organization, it could not have advanced its broad reading of the Attorney General's statutory authority, nor sustained its holding in Brawer. Because the United States clearly has the requisite "interest" in preventing the wide-scale deprivation of due process and burdens on interstate commerce the government's complaint, alleges, it certainly has standing to bring this action.*fn24
The district court went on at some fulminating length about federal interference in local government.*fn25 The district judge found it most unseemly that the United States would seek by injunction to enforce the civil rights of residents of Philadelphia. In what might be termed an expression of the "dog pound theory," the judge envisioned massive and unwarranted federal infiltration into every level of local authority, even down to canine administration, and concluded that the "very threat" of executive action to enforce the civil rights laws "could alter the conduct of local policy makers," 481 F. Supp. at 1269. The Court did not consider whether the fourteenth amendment itself was not designed to affect local policy. Instead, the court seemed to assume that local policy should be insulated from federal law, at least when that arm of the federal government constitutionally charged with enforcing the law in fact seeks to enforce it.
There is, however, no authority for the district court's dire pronouncements. Even in its most solicitous affirmance of local autonomy, the Supreme Court, in National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), did not rule that state and local insulation from federal law extended to freedom from the application of the fourteenth amendment. 426 U.S. at 852 n.17, 96 S. Ct. at 2474 n.17. Subsequently, in Fitzpatrick v. Bitzer, 427 U.S. 445, 453 n.9, 96 S. Ct. 2666, 2670 n.9, 49 L. Ed. 2d 614, a unanimous Supreme Court made clear that National League of Cities did not insulate local government from the fourteenth amendment. This court in Usery v. Allegheny County Institution Dist., 544 F.2d 148 (3d Cir. 1976), held that under no construction does the 10th amendment limit the fourteenth. See 544 F.2d at 154-56.
The fourteenth amendment and the civil rights statutes present the threat to local authority. The Executive's injunctive action merely compounds, or perhaps makes good, that threat. It should, moreover, be emphasized that the district court's federalism discussion was, by that court's admission, dicta. See 482 F. Supp. at 1267. The court based its holding that the executive lacked standing on the 4th circuit's Solomon decision, and on the 9th circuit's parallel holding in United States v. Mattson, 600 F.2d 1295 (9th Cir. 1979). The district court rendered its decision almost two months before this circuit announced its en banc decision in Halderman. The district judge recognized the decisions of other circuits did not bind him. "Nevertheless, in the absence of contrary authority from the Supreme Court or from the Court of Appeals for the Third Circuit, the decisions of other courts of appeals are entitled to careful consideration, and are not to be lightly ignored" 482 F. Supp. at 1256 n.7. That contrary authority was forthcoming in Halderman, in which this court unequivocally rejected Solomon.*fn26 The very basis of the district court's holding on this issue is therefore undercut by a subsequent en banc decision of this court, which the panel members have brazenly ignored.
VIII. SEPARATION OF POWERS
Separation of powers afforded a second ground for the district court's bewailing of nonstatutory executive activity. Because Congress had thrice declined to grant the Attorney General explicit authority to seek an injunction, the district court concluded it must therefore have meant to prohibit such an action. For the Executive nonetheless to resort to the courts would thus represent an abuse of executive power. There are several flaws in this argument. First, as Judge Frankel observed in Brand Jewelers, and as the Supreme Court held in United States v. California, congressional failure explicitly to approve executive action does not equal congressional prohibition.*fn27
Second, Supreme Court precedent provides that the Executive has implicit statutory authority to seek an injunction to fill in the remedial interstices of a general statutory scheme. Moreover, 28 U.S.C. § 518 has been construed to confer explicit statutory authority, in the absence of a clear congressional prohibition, to initiate suits.
Third, in this Circuit, the United States would have standing to participate in this action as plaintiff-intervenor. See Halderman v. Pennhurst, supra. The United States would also have authority fully to conduct the suit, so long as the Attorney General's discretion did not prejudice the interests of the private plaintiffs an unlikely circumstance in this case. See Brawer v. Horowitz, supra.*fn28 Any greater "threat" executive initiation of suits poses to congressional prerogative is therefore rather ethereal.
Fourth, while neither the Supreme Court nor, with the exception of the Southern District of New York in Brand Jewelers, the lower federal courts, have squarely held the fourteenth amendment affords the Executive nonstatutory standing, all courts which have considered the question have held the commerce clause confers nonstatutory authority to sue to remove obstructions and burdens on interstate commerce. Neither the Supreme Court nor the federal courts perceived a threat to separation of powers in the Attorney General's suit to enforce the commerce clause. To the contrary, they saw the suit as implementing the constitutional scheme that the Executive enforce the laws. The government has alleged in its complaint in this case that the practices of Philadelphia police and city officials impose burdens on interstate commerce.*fn29 The government has had no opportunity to demonstrate the interstate commerce impact, and while a trial on the merits may fail to substantiate that claim, the claim itself afforded standing to the Attorney General.
Fifth, as this court recognized in Halderman, executive action to secure an injunction is by its nature not an overweening exercise of power. A suit for an injunction is not a naked exercise of executive authority. Unlike the steel seizure in Youngstown Sheet & Tube, the Executive can do nothing here without the concurrence of the federal judiciary. And, because the United States is in effect suing as class representative for the citizens of Philadelphia, the Executive is entitled to no more relief than would be accorded the class members. Cf. Pasadena City Bd. of Ed. v. Spangler, 427 U.S. 424, 431, 96 S. Ct. 2697, 2702, 49 L. Ed. 2d 599 (1976).
Sixth, despite its fear that this action would violate separation of powers, the district court failed to articulate a congressional purpose or intent that the Executive's nonstatutory action would undermine. What are the identifiable congressional interests this action threatens? Congress cannot intend to insulate defendants from enforcement of the fourteenth amendment. At most, Congress might prefer that Justice Department energies and resources be expended in some other way. Congress has not so declared, however, and were it to announce such an intent, an attempt to enforce it might itself implicate separation of powers. Cf. Myers v. United States, 272 U.S. 52, 47 S. Ct. 21, 71 L. Ed. 160 (1926). While the Executive may not decline to follow a congressional mandate within its proper legislative competence, see National Treasury Employees v. Nixon, 160 U.S. App. D.C. 321, 492 F.2d 587 (D.C.Cir.1974) (writ of mandamus lies for Executive's failure to grant pay adjustments required by act of Congress), it is questionable, to say the least, whether Congress may compel the Executive not to enforce the fourteenth amendment or the commerce clause. The Executive's Article II § 3 duty to enforce the laws may override certain congressionally imposed limitations on executive authority. But in any event, because Congress has not here attempted to forbid the Executive from carrying out its constitutional obligations, the question whether such an endeavor would violate separation of powers need not be reached.
Finally, the general problem of suits by the Executive to protect the public welfare should be confronted. While the potential of unbridled executive initiation of suits in the "national interest" understandably may evoke visceral fears of executive power run rampant, careful analysis of the Attorney General's action in this case reveals those fears to be baseless. It is true that phrases like "the public welfare," "the national interest," and "cases in which the United States is interested," can have a formless, and perhaps dangerously expansive quality.*fn30 Before any court upholds the exercise of executive resort to it without explicit statutory standing, however, the court should determine what kind of right the Executive is seeking to enforce. Is the Executive endeavoring to protect its contractual and proprietary rights? To fill in the remedial interstices of a statutory scheme? To enforce a judicially recognized constitutional right?*fn31 Or is the Executive instead attempting to create a new right that may conflict with statutory or judicial precedent? When, as here, the Attorney General can substantiate the "national interest" and "public welfare" by reference to clearly articulated legislative policies or judicial precedent, the danger of untoward exercise of executive power is fanciful. Thus viewed, this case does not pose a threat of limitless definition of executive authority to bring suit. In this action, the Attorney General seeks to enjoin the pattern or practice of police brutality in Philadelphia. The Attorney General can point to at least four statutes specifically enacted to prohibit concerted and official deprivations of civil rights by physical abuse, 42 U.S.C. §§ 1983 and 1985 and 18 U.S.C. §§ 241 and 242. In addition, the Attorney General has invoked a host of other statutes guaranteeing civil rights, as well as the fourteenth amendment. Thus, this action does not involve the creation of new rights conflicting with legislative and judicial precedent in the "national interest." Rather, it falls comfortably into the category of decisions upholding nonspecific statutory authority to supply a new remedy for an established scheme of rights.
IX. CORT V. ASH DOES NOT LIMIT THE ATTORNEY GENERAL'S AUTHORITY TO SUE
The panel opinion discusses at length the four factors set forth in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975), for inferring a private cause of action from the existence of a federal regulatory scheme, and concludes that each factor weighs against permitting the United States to bring this suit. For a number of reasons the panel opinion is widely off target.
The policy underlying Cort v. Ash could not have less application to this case. There, the Supreme Court was concerned with limiting the expansion of the activities of private attorneys-general. It is one thing to perceive no legislative intent to supplement the caseloads (and incomes) of private lawyers, and quite another to hold that the United States Attorney General, whose duty it is to enforce the laws, may not bring an action. Cort v. Ash defined the scope of a private attorney general's ability to enforce statutory rights; it has nothing to do with the Attorney General's authority.
Another fundamental defect in the panel's reasoning is the assumption that a private cause of action must here be implied. The plain fact is that express private civil causes of action for violation of civil rights have been on the statute books since the late 1860's. There is no need to imply them. It is on behalf of private persons within the zone of interest of those very statutes that the United States brings this lawsuit. Obviously the United States is not protected by the fourteenth amendment, by 42 U.S.C. § 1983, or indeed by those parts of the 1870's Civil Rights Acts which in codification were distributed to the criminal code. Equally obviously, Congress has provided for declaratory and injunctive relief by or on behalf of those who are protected by the fourteenth amendment and the Civil Rights Acts. The issue is not whether a cause of action may be implied, but whether the United States is an appropriate plaintiff to plead the cause of action which Congress expressly provided. Thus the panel's conclusion (slip opinion Part III-A) that the United States is not a party in the "class for whose especial benefit the statute was enacted" is a total irrelevancy. Moreover, its conclusion (Part III-B) that there is no legislative indication either to create a remedy or to deny one is simply wrong, because it ignores the express remedies which were created. The panel opinion's lengthy discussion of Cort v. Ash is an elaborate straw man, designed to divert attention from the real issue of executive authority to act as an effective class representative.
But, although the discussion of Cort v. Ash is a diversionary tactic, it is in the discussion of the third and fourth factors of the Cort v. Ash test that the essential Calhounism of the panel opinion can be seen most clearly.*fn32 The panel concludes in Part III-C that the Attorney General's suit is inconsistent with the underlying purposes of the legislative scheme the fourteenth amendment and the Civil Rights Acts observing:
We think the underlying purposes of the legislative scheme are threefold: to permit the victims of constitutional violations to obtain redress, to provide for federal criminal prosecutions of serious constitutional violations when state criminal proceedings are ineffective for the purpose of deterring violations, and to strike an appropriate balance between the protection of individual rights from state infringement and protection of state and local governments from unnecessary federal interference. Permitting this action to proceed would upset that balance and therefore would be inconsistent with the underlying purposes of the statutory scheme.
At 198 (emphasis supplied). Whatever else the fourteenth amendment and the Civil Rights Acts protect, they do not protect state and local governments from federal interference. Quite the contrary. Their very purpose is such interference. The panel's discussion in Part III-D of the fourth Cort v. Ash factor, whether the cause of action is one traditionally relegated to state law, is even further afield:
The Attorney General argues that the Federal government has a central role in protecting individuals from violations of the Constitution. This argument is facially appealing because the protection of federal rights clearly is a federal concern. However, the argument blurs the distinction between the roles of the federal courts, the federal legislature, and the federal executive. It also ignores the reverse side of the same coin: this lawsuit represents an attempt by the federal executive to intervene on a grand scale in the workings of a local government, an area that is manifestly the concern of the states and not the federal government. Federal courts must be "alert to adjust their remedies" to grant relief for invasions of federally protected rights. Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 776, 90 L. Ed. 939 (1946), but they are equally bound to give proper recognition to the principles of federalism that underlie the very structure of the Constitution, from which the federal courts and the federal Executive alike derive their authority.
At 198 (emphasis supplied). At least here the panel concedes, grudgingly, that the protection of federal rights is a federal concern. Not, apparently, a concern of the federal Executive, however. Somehow if the Attorney General asks a federal court to give the same declaratory or injunctive relief that it plainly is authorized to give in a suit by private parties, the pillars of the republic will be so shaken that "the very structure of the constitution" will be endangered. This sort of hyperbole has been often enough heard in Senate filibusters.*fn33 It has not been taken seriously there, except as a filibustering tactic, since Webster's reply to Hayne in 1829,*fn34 though it has often since been effective in delaying legislation. That it should surface in an opinion of a court that once had a reputation for deep interest in the protection of civil rights is astounding. As noted in Part VII above, the fourteenth amendment and the Civil Rights Acts are what intervene in the workings of local government. They were intended to intervene. The relief which the federal Executive seeks is nothing more than the fourteenth amendment and the Civil Rights Acts require if what is alleged in the complaint is true.
I would grant the petition for rehearing.
Judges Higginbotham and Sloviter, for the reasons expressed in this opinion, would also grant rehearing.
Because Chief Judge Seitz believes that Judge Gibbons' opinion demonstrates the existence of issues worthy of in banc consideration, he joins his dissent from the denial of the petition for rehearing in banc.