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.
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."
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.
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
Persons charged with assaulting
physical abuse while in police