IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUT NO. 05-6396

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06844736
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 28
• Document Creation Date: March 9, 2023
• Document Release Date: September 28, 2020
• Case Number: F-2016-02028
• Publication Date: December 9, 2005

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Filed Dec 9 2005
U.S. Court of Appeals
Fourth Circuit
No. 05-6396
IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
JOSE PADILLA,
PETITIONER-APPELLEE
V.
COMMANDER C.T. HANFT,
USN COMMANDER, CONSOLIDATED NAVAL BRIG,
RESPONDENT-APPELLANT
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SUPPLEMENTAL BRIEF FOR THE APPELLANT
JONATHAN S. GASSER
United States Attorney
District of South Carolina
KEVIN F. MCDONALD
Assistant United States Attorney
District of South Carolina
PAUL D. CLEMENT
Solicitor General
GREGORY G. GARRE
Deputy Solicitor General
DAVID B. SALMONS
Assistant to the Solicitor General
STEPHAN E OESTREICHER, JR.
Attorney, U.S. Department of Justice
P.O. Box 899, Ben Franklin Station
Washington, DC 20044-0899
[phone]
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TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
INTRODUCTION 1
STATEMENT 2
DISCUSSION 5
CONCLUSION 17
CERTIFICATE OF SERVICE
ADDENDUM
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TABLE OF AUTHORITIES
CASES:
Alphin v. Henson, 552 F.2d 1033 (4th Cir. 1977) 15
Ashwander v. WA, 297 U.S. 288 (1936) 8
Butler v. Academy Ins. Group, Inc., 1994 WL 483413 (4th Cir. 1994) 15
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) 12
Friedman 's, Inc. v. Dunlap, 290 F.3d 191 (4th Cir. 2002) 6, 8
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) 9, 16
Honig v. Doe, 484 U.S. 305 (1988) 12
Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) 6
Magee v. Waters, 810 F.2d 451 (4th Cir. 1987) 8
Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005) 3, 7
Padilla v. Hanfl, 389 F. Supp. 2d 678 (D.S.C. 2005) 3
Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003) 2, 3
Padilla ex rel. Newman v. Rumsfeld, 233 F. Supp. 2d 564 (S.D.N.Y. 2003) . . . 2
Rumsfeld v. Padilla, 542 U.S. 426 (2004) 3
St. Pierre v. United States, 319 U.S. 41(1943) 6, 8
Slade v. Hampton Roads Regional Jail, 407 F.3d 243 (4th Cir. 2005) 8
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Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911) 11, 12
Spencer v. Kemna, 523 U.S. 1 (1998) 6, 12, 13
United States v. Munsingwear, 340 U.S. 36(1950) 13, 14
United States v. Armstrong, 517 U.S. 456(1996) 10
US. Bancorp Mtge. Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) ... 13, 14
Valero Terrestrial Corp. V. Paige, 211 F.3d 112 (4th Cir. 2000) 14
Weinstein v. Bradford, 423 U.S. 147 (1975) 8
Williams v. Griffin, 952 F.2d 820 (4th Cir. 1991) 8
Zipfel v. Halliburton Co., 861 F.2d 565 (9th Cir. 1988) 15
CONSTITUTION, STATUTES, AND RULES:
U.S. Const. art. III 6, 8
18 U.S.C. � 2 4
18 U.S.C. � 371 4
18 U.S.C. � 956(a)(1) 4
18 U.S.C. � 2339A(a) 4
28 U.S.C. � 2106 13,14
MISCELLANEOUS:
Wright & Miller, Federal Practice & Procedure 15
iii
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No. 05-6396
IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
JOSE PADILLA,
PETITIONER-APPELLEE
V.
COMMANDER C.T. HANFT,
USN COMMANDER, CONSOLIDATED NAVAL BRIG,
RESPONDENT-APPELLANT
ON APPEAL FROM .IHE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SUPPLEMENTAL BRIEF FOR THE APPELLANT
INTRODUCTION
The Court has directed the parties to address whether, as a consequence of the
criminal charges against petitioner Jose Padilla and his impending transfer from
military to civilian custody, petitioner's habeas challenge to his military custody as
an enemy combatant is now moot and the Court should recall the mandate in this case
and vacate its opinion of September 9, 2005. For the reasons set forth below, the
habeas action is moot, and this Court would act well within its discretion to recall the
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mandate, vacate its September 9 opinion, and remand the case to the district court
with instructions to dismiss the habeas petition as moot. At a minimum, however, the
Court should grant the government's unopposed emergency transfer application.
STATEMENT
1. On June 9, 2002, the President directed the Secretary of Defense "to
receive [petitioner] from the Department of Justice and detain him as an enemy
combatant." That directive was based in part on the President's determination that
"it is in the interests of the United States that the Secretary of Defense detain
[petitioner] as an enemy combatant." Shortly thereafter, petitioner was transferred
to the control of the Secretary of Defense for military detention as an enemy
combatant.
On June 11, 2002, petitioner's counsel filed on his behalf a habeas corpus
petition in the Southern District of New York. Rejecting the government's argument
that the petition should have been filed in the District of South Carolina, the district
court found that it had jurisdiction, Padilla ex rel. Newman v. Rumsfeld, 233 F. Supp.
2d 564, 575-587 (S.D.N.Y. 2003), but ultimately concluded on the merits that the
President has legal authority to detain petitioner as an enemy combatant, id. at 587-
599.
Both the jurisdictional and authority-to-detain issues were litigated before the
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United States Court of Appeals for the Second Circuit, Padilla v. Rumsfeld, 352 F.3d
695,702-724 (2d Cir. 2003), and the Supreme Court. The Supreme Court ultimately
agreed with the government that the petition should have been filed in the District of
South Carolina, Rumsfeld v. Padilla, 542 U.S. 426, 432-450 (2004), and, having
found jurisdiction lacking, did not reach the question of the President's authority to
detain petitioner as an enemy combatant, id. at 430.
2. On July 2, 2004, petitioner filed this habeas action challenging his
detention by the military as an enemy combatant and seeking that he be released from
military custody or charged with a crime. Pet. 7, Joint Appendix (JA) 13. On
February 28, 2005, the district court granted the habeas petition on the ground that
the President lacked the authority to detain petitioner as an enemy combatant. 389
F. Supp. 2d 678. Consistent with the specific relief requested in the petition, the court
ordered the government to release petitioner or charge him with a crime. Id. at 692
&n.14.
On September 9, 2005, this Court reversed the district court's decision and held
that the President is authorized to detain petitioner militarily as an enemy combatant.
423 F.3d 386. At petitioner's request, the Court issued its mandate on October 7,
2005. On October 25, 2005, petitioner filed a petition for a writ of certiorari in the
Supreme Court. That petition is pending; the government's response is due
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December 16, 2005.1 After this Court's mandate issued, petitioner asked the district
court for an opportunity to brief several issues concerning how to proceed with a
factual challenge to petitioner's military detention as an enemy combatant.
On November 17, 2005, a federal grand jury in the District Court for the
Southern District of Florida returned a sealed indictment charging petitioner with
conspiring to murder, maim, and kidnap individuals outside of the United States, in
violation of 18 U.S.C. �� 2 and 956(a)(1) (Count One); conspiring to provide material
support to terrorists, in violation of 18 U.S.C. �� 371 and 2339A(a) (Count Two); and
providing material support to terrorists, in violation of 18 U. S.C. � 2339A(a) (Count
Three). The indictment was unsealed on November 22, 2005.
On November 20, 2005, the President determined that "it is in the interest of
the United States that [petitioner} be released from detention by the Secretary of
Defense and transferred to the control of the Attorney General for the purpose of
criminal proceedings against him." The President's Memorandum to that effect
made clear that it "supersede[d]" the President's June 9, 2002, directive to the
Secretary of Defense to detain petitioner militarily as an enemy combatant. The
Memorandum directed the Secretary of Defense to release petitioner from the control
The government intends to oppose certiorari on several grounds, including
that this habeas action is moot in light of intervening events.
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of the Department of Defense and transfer him to the control of the Attorney General
upon the request of the Attorney General. The Memorandum also provided that, upon
such transfer, the authority of the Secretary of Defense to detain petitioner pursuant
to the President's June 9, 2002, order "shall cease."
On November 22, 2005, the government filed in this Court an Unopposed
Emergency Application and Notice of Release and Transfer of Custody of Petitioner
Jose Padilla. On November 29, 2005, petitioner filed a motion in the district court to
stay further proceedings until after the Supreme Court resolves the petition for a writ
of certiorari. The district court denied that motion as moot "[i]n light of * * * the
indictment of [petitioner] on criminal charges in the Southern District of Florida."
Likewise, the court "relieved" the parties of their obligation to file briefs addressing
the question of how to proceed with the disposition of the habeas petition.
On November 30, 2005, in response to the unopposed transfer application, this
Court directed the parties to address whether, in light of the criminal charges against
petitioner and his impending transfer from military to civilian custody, the mandate
in this case should be recalled and the Court's opinion vacated.
DISCUSSION
Petitioner's habeas challenge to his military detention as an enemy combatant
is moot in light of the intervening events. Accordingly, it would be an appropriate
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exercise of this Court's discretion to recall the mandate in this case, vacate its
September 9, 2005, opinion, and remand the case to the district court with instructions
to dismiss the habeas petition as moot.
1. Under Article HI of the Constitution, federal courts lack jurisdiction to
consider cases that no longer present live controversies. See, e.g., Spencer v. Kemna,
523 U.S. 1, 7 (1998); St. Pierre v. United States, 319 U.S. 41, 42 (1943) (per curiam);
Friedman 's, Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002). "This means that,
throughout the litigation, the plaintiff 'must have suffered, or be threatened with, an
actual injury traceable to the defendant and likely to be redressed by a favorable
judicial decision.' " Spencer, 523 U.S. at 7 (quoting Lewis v. Continental Bank
Corp., 494 U.S. 472, 477 (1990)). In light of the intervening events, that fundamental
constitutional requirement is no longer satisfied in this case.
Petitioner's habeas petition is explicitly and exclusively addressed to his
detention by the militcuy "without criminal charges." Pet. 4, JA 10. In addition, each
of the claims in the petition is addressed to or necessarily dependent on petitioner's
military detention as an enemy combatant during wartime. This Court's opinion is
similarly limited to petitioner's military detention as an enemy combatant: it
addresses itself to and decides only the question of whether "the President of the
United States possesses the authority to detain militarily a citizen of this country who
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is closely associated with al Qaeda, an entity with which the United States is at war;
who took up arms on behalf of that enemy and against our country in a foreign
combat zone of that war; and who thereafter traveled to the United States for the
avowed purpose of further prosecuting that war on American soil, against American
citizens and targets." 423 F.3d at 389 (emphasis altered).
The predicate for this habeas action, however, no longer exists. On November
17, 2005, petitioner was criminally charged. In addition, on November 20, 2005, the
President determined that "it is in the interest of the United States that [petitioner] be
released from detention by the Secretary of Defense and transferred to the control of
the Attorney General for the purpose of criminal proceedings against him." The
President's November 20, 2005, Memorandum expressly "supersedes" the President's
June 9, 2002, directive to the Secretary of Defense to detain petitioner militarily as
an enemy combatant and mandates that upon petitioner's release from military
custody and transfer to the control of the Attorney General for criminal proceedings,
the authority of the military to detain petitioner as an enemy combatant provided in
the President's June 9, 2002, order "shall cease." The President's November 20,
2005, Memorandum therefore explicitly eliminates the directive that provided the
authority to detain petitioner as an enemy combatant.
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Because petitioner has been criminally charged and the President has directed
that petitioner's military detention "shall cease," petitioner has received the relief that
he sought in the petition, Pet. 7, JA 13, and this habeas action therefore no longer
meets the core jurisdictional requirements of Article III. It is settled law that "when
the claimant receives the relief he or she sought to obtain through the claim," "the
controversy is no longer live and must be dismissed as moot." Friedman 's, 290 F.3d
at 197; see also Weinstein v. Bradford, 423 U.S. 147, 148 (1975) (per curiam); St.
Pierre, 319 U.S. 42-43. Accordingly, this Court has repeatedly held that the release
or transfer of a prisoner generally moots a prisoner's claim for prospective relief�the
only type of relief sought here�based on his detention or on the conditions of his
confinement. See, e.g., Slade v. Hampton Roads Regional Jail, 407 F.3d 243, 249
(4th Cir. 2005); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991); Magee v.
Waters, 810 F.2d 451,452 (4th Cir. 1987).
Nothing counsels a different conclusion in this case. To the contrary, further
review of the habeas petition in the district court, this Court, or the Supreme Court
would be wholly imprudent in light of the extremely sensitive constitutional issues
raised by the petition. It is axiomatic that courts should avoid the resolution of
constitutional questions wherever possible. See, e.g., Ashwander v. TVA, 297 U.S.
288, 346-348 (1936) (Brandeis, J., concurring). As the Supreme Court made clear in
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Hamdi v. Rwnsfeld, 542 U.S. 507 (2004) (plurality), that principle applies with full
force to enemy-combatant cases. See id. at 539 (instructing the lower courts to
"proceed with the caution that we have indicated is necessary in this setting" by
"engaging in a [litigation] process that is both prudent and incremental").2
As reflected in the President's recent Memorandum, the Executive has
determined that the demands of national security can now be adequately satisfied by
charging petitioner criminally. The fact that those charges involve different facts
from those relied upon by the President in ordering petitioner's military detention is
not consequential. The President's authority to detain enemy combatants during
ongoing hostilities is wholly distinct from his ability to charge them for criminal
conduct. In some cases, the underlying conduct that justifies detention as an enemy
combatant could also form the basis of criminal charges; in other cases there will be
a wide variety of conduct justifying military detention, only some of which, whether
because of evidentiary issues, national security concerns, or the scope of the relevant
criminal laws, may form the basis for a criminal prosecution. The President's
2 Indeed, the sensitivity of proceeding in this case is underscored by the
briefing that petitioner requested before the district court following this Court's
decision. Petitioner seeks to have the court resolve numerous sensitive constitutional
issues concerning how to proceed with a factual challenge to petitioner's detention
as an enemy combatant. It would be particularly imprudent for a court to opine on
those novel constitutional issues in light of the fact that the President has determined
that petitioner no longer should be detained as an enemy combatant.
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decision here to terminate the military detention and prosecute petitioner for discrete
criminal conduct does not make the challenge to petitioner's military custody any less
moot.
Although the facts underlying the criminal indictment against petitioner differ
from those in the President's June 9, 2002, order, they are gravely serious offenses.
If convicted of the charges, petitioner could face life imprisonment. It is well within
the appropriate exercise of prosecutorial discretion to limit the charges in the
indictment to those that will satisfy the interests ofjustice, particularly when, as here,
narrowing the charges would avoid sensitive evidentiary issues that may implicate
core national security concerns and constitutional interests. And it should not be
surprising that the scope of information that the President as Commander in Chief
may consider in determining whether to detain an individual as an enemy combatant
during wartime is much broader than the information that the Executive might use to
form the basis for a criminal prosecution subject to the Federal Rules of Evidence.
Those types of judgments, like the decision to charge petitioner in an ongoing
criminal prosecution involving co-conspirators that is already scheduled for trial next
year, are generally committed to the discretion of the Executive. See United States
v. Armstrong, 517 U. S . 456 (1996).
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Lastly, any concern that the President could later decide, based on an
independent determination, to redesignate petitioner as an enemy combatant is
entirely speculative and thus insufficient to meet the constitutional case-or-
controversy requirement or come within the mootness exception for cases capable of
repetition yet evading review. To be clear, as evidenced by the President's November
20, 2005, Memorandum, the Secretary of Defense's authority to detain petitioner as
an enemy combatant will cease upon petitioner's transfer to the control of the
Attorney General. While it is theoretically possible that the President could
redesignate petitioner for detention as an enemy combatant�just as he could
theoretically designate criminal defendants whose conduct, either within or outside
the four corners of the indictment, would suffice to justify detention as an enemy
combatant�in that unlikely event, petitioner would have ample opportunity to
challenge any such military custody at that time.
That hypothetical scenario, moreover, would not fit within the narrow
exception to the mootness doctrine for actions that are capable of repetition yet
evading review. First coined by the Supreme Court in Southern Pacific Terminal
Company V. ICC, 219 U.S. 498, 515 (1911), the "capable of repetition yet evading
review" exception is limited to cases where: (1) the challenged action would be too
short in duration to be fully litigated prior to cessation or expiration; and (2) there is
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a reasonable expectation or "demonstrated probability" that the plaintiff will be
subject to the same action again. See Spencer, 523 U.S. at 17-18; Honig v. Doe, 484
U.S. 305, 320 n.6 (1988); City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (named
plaintiff must "make a reasonable showing that he will again be subjected to the
alleged illegality."). For these reasons, the Supreme Court has cautioned that "the
capable-of-repetition doctrine applies only in exceptional situations." Lyons, 461
U.S. at 109.
Here, petitioner could not establish either prong of the exception. As indicated,
it is entirely speculative whether petitioner would ever again face military detention
as an enemy combatant, and even if he did, there is no reason to believe that such
detention would be too brief to allow him to challenge fully that detention in court.
Indeed, if, as respondents urged at the time, petitioner had filed his habeas action in
the appropriate court in the first instance, the issues decided in this Court's
September 9, 2005, opinion not only could have been decided, but would have been
finally resolved by the Supreme Court in June of 2004. It is therefore implausible,
to say the least, to believe that any hypothetical future military detention of petitioner
would somehow evade meaningful judicial review. Cf. Spencer, 523 U.S. at 17-18
(holding that habeas petitioner "ha[d] not shown (and we doubt that he could) that the
time between parole revocation and expiration of sentence is always so short as to
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evade review. Nor has he demonstrated a reasonable likelihood that he will once
again be paroled and have that parole revoked.").
2. In light of the intervening events, there is no obstacle to this Court's
exercise of its equitable authority to recall the mandate and vacate its September 9,
2005, opinion. Under United States v. Munsingwear, 340 U.S. 36 (1950), and its
progeny, the "established practice" of appellate courts "in dealing with a civil case
* * * which has become moot while on its way to [the Supreme Court]" has been to
"vacate the judgment" if review of that judgment "was prevented through
happenstance." Id. at 39-40. Vacatur under the Munsingwear doctrine rests on the
principle that "[a] party who seeks review of the merits of an adverse ruling, but is
frustrated by the vagaries of circumstance, ought not in fairness be forced to
acquiesce in the judgment." US. Bancorp Mtge. Co. v. Bonner Mall Partnership,
513 U.S. 18,25 (1994).
The statutory authority for this "equitable tradition of vacatur," ibid., is found
in 28 U.S.C. � 2106, which provides that
[t]he Supreme Court or any other court of appellate jurisdiction may
affirm, modify, vacate, set aside or reverse any judgment, decree, or
order of a court lawfully brought before it for review, and may remand
the cause and direct the entry of such appropriate judgment, decree, or
order, or require such further proceedings to be had as may be just under
the circumstances.
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Construing Section 2106, this Court has emphasized that "the principal consideration
in determining whether the extraordinary relief of appellate vacatur is warranted is
whether the party seeking relief from the judgment caused the mootness by voluntary
action." Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 117 (4th Cir. 2000)
(quotations omitted); see U.S. Bancorp Mtge. Co., 513 U.S. at 24 ("From the
beginning we have disposed of moot cases in the manner most consonant to justice
in view of the nature and character of the conditions which have caused the case to
become moot." (quotations and ellipses omitted)).
In this case, for the reasons just described, the criminal indictment of petitioner
and the President's Memorandum directing that petitioner be released from military
custody and providing that, upon transfer to the Department of Justice, the military's
authority to detain petitioner as an enemy combatant under the President's June 9,
2002, order "shall cease" have mooted the claims set forth in the habeas petition.
Because the mooting events are not attributable to petitioner, the Executive has no
objection to this Court's vacatur of its opinion under Munsingwear. See US.
Bancorp Mtge. Co., 513 U.S. at 25; Valero Terrestrial Corp., 211 F.3d at 117.3
3 Application of the Munsingwear doctrine and recall of the mandate are
particularly appropriate in this case in light of the fact that the appeal involved an
interlocutory order. Although the case is now pending before the Supreme Court on
certiorari, the interlocutory nature of the case means that the lower courts may
continue to act in the case. Indeed, as discussed, at petitioner's request, the district
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Although this Court has cautioned that recalling the mandate "is an
extraordinary remedy that may be used only in unusual circumstances," it has also
made clear that the "well-established" and "inherent" authority to recall "may be
exercised for good cause or to prevent injustice." Butler v. Academy Ins. Group, Inc.,
1994 WL 483413, at *2 (4th Cir. 1994) (per curiam) (recalling the mandate);4 see
Alphin v. Henson, 552 F.2d 1033, 1035 (4th Cir.), cert. denied, 434 U.S. 823 (1977);
see also Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir. 1988) (recalling the
mandate and noting that "the power [to do so] falls within the discretion of the
court"). In this case, the well established equitable principles that support vacatur
also would appear to satisfy the "good cause" requirement for recall of the mandate.
See Wright & Miller, 13A Federal Practice &Procedure � 3533.10, at 435 (noting
that "generally it is appropriate for a court of appeals to vacate its own judgment if
it is made aware of events that moot the case during the time available to seek
certiorari"). That is particularly true in light of the sensitive constitutional questions
court ordered briefing on how to proceed with a factual challenge to petitioner's
enemy combatant determination. For the same reasons that the lower courts could
proceed with that inquiry while the case is pending before the Supreme Court, they
may take action to address the intervening events that have mooted the case while it
is pending before the Supreme Court.
A copy of the unpublished decision in Butler is included in the addendum
pursuant to 4th Cir. R. 28(b) and 36(c).
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implicated by petitioner's habeas challenge and the Supreme Court's directive that
courts handling such challenges engage in a "process that is both prudent and
incremental." Hamdi, 542 U.S. at 539 (plurality opinion).
In any event, regardless of whether the Court recalls its mandate and vacates
its decision, the Court should grant the government's transfer application without
further delay. The President has ordered the Secretary of Defense, upon the Attorney
General's request, to transfer petitioner to the control of the Attorney General to face
the criminal charges against him. Petitioner has consented to that transfer. And,
whatever this Court concludes is the appropriate response to the legal effect of the
intervening events discussed above, it should grant the government's unopposed
transfer application as soon as possible.
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CONCLUSION
For the foregoing reasons, the habeas petition is moot and the government has
no objection to this Court's exercise of its discretion to recall the mandate, vacate its
opinion of September 9, 2005, and remand the case with instructions to dismiss the
habeas petition as moot.
Respectfully submitted,
PAUL D. CLEMENT
Solicitor General
JONATHAN S. GASSER
United States Attorney
District of South Carolina
GREGORY G. GARRE
Deputy Solicitor General
DAVID B. SALMONS
Assistant to the Solicitor General
�STEPHAN E. OEyIIdHER, JR.
Attorney, U.S. Department of Justice
P.O. Box 899, Ben Franklin Station
Washington, DC 20044-0899
[phone]
KEVIN F. MCDONALD
Assistant United States Attorney
District of South Carolina
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CERTIFICATE OF SERVICE
In accordance with Fed. R. App. P. 25(d), the undersigned counsel of record
certifies that the foregoing Supplemental Brief for the Appellant was this day
delivered by electronic mail and by overnight mail to counsel for the petitioner-
appellee, Jose Padilla, at the following addresses:
Andrew G. Patel, Esq.
111 Broadway, 13th Floor
New York, NY 10006
[phone]
Donna R. Newman
121 W. 27th Street, Suite 1103
New York, NY 10001
[phone]
Jonathan M. Freiman
Wiggin & Dana LLP
195 Church St., P.O. Box 1832
New Haven, CT 06508
[phone]
DATED: DECEMBER 9, 2005
Michael P. O'Connell
Stirling & O'Connell
145 King Street, Suite 410
P.O. Box 882
Charleston, SC 29402
[phone]
Jenny S. Martinez
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305
[phone]
�SIEPHAN E. OES1$ICHER, JR.
Attorney, U.R. Department of Justice
P.O. Box 899, Ben Franklin Station
Washington, DC 20044-0899
[phone]
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ADDENDUM
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\Akst
36 F.3d 1091 (Table)
36 F.3d 1091 (Table), 1994 WL 483413 (4th Cir.(S.C.))
Unpublished Disposition
(Cite as: 36 F.3d 1091, 1994 WL 483413 (4th Cir.(S.C.)))
Briefs and Other Related Documents
NOTICE: THIS IS AN UNPUBLISHED
OPINION.
(The Court's decision is referenced in a "Table of
Decisions Without Reported Opinions" appearing in
the Federal Reporter. Use Fl CTA4 Rule 36 for
rules regarding the citation of unpublished
opinions.)
United States Court of Appeals, Fourth Circuit
James R. BUTLER, Plaintiff-Appellant,
V.
ACADEMY INSURANCE GROUP, INC.;
Academy Life insurance Co.; Pension Insurance
Group of America, Inc.; Pension Life Insurance
Company of America, Defendants-
Appellees.
James It. BUTLER, Plaintiff-Appellee,
V.
ACADEMY INSURANCE GROUP, INC.;
Academy Life Insurance Co.; Pension Insurance
Group of America, Inc.; Pension Life Insurance
Company of America, Defendants-
Appellants.
Nos. 92-1916, 92-1955.
Argued June 11, 1993.
Decided September 8, 1994.
Appeals from the United States District Court for
the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge. (CA-86-
2404-3-17).
D.S.C.
AFFIRMED IN PART AND REMANDED.
Page 1
Argued: Thomas C. Salane, Turner, Padger,
Graham & Lane, P.A., Columbia, SC. On brief: C.
Ansel Gantt, Jr., Allen & Gantt, Columbia, SC, for
Appellant.
Argued: James Wright Crabtree, Smathers &
Thompson, Charlotte, NC. On brief: Charles E.
Baker, Baker, Barwick, Ravenel & Bender,
Columbia, SC, for Appellees.
Before RUSSELL, Circuit Judge, and BUTZNER
and PHILLIPS, Senior Circuit Judges.
OPINION
PER CURIAM:
**1 Appellant James R. Butler ("Butler") appeals
the district court's judgment, seeking incorporation
of the court's alternate fmdings of fact into the
judgment. For the reasons stated herein, we grant
Butler's request and affirm the district court's
judgment as modified.
The facts of this complex dispute between Butler, a
former insurance agent, and his employers are
presented fully in the opinion of the district court,
Butler v. Academy Ins. Group, Inc.,
No.3:86-2404-16 (D.S.C. May 1, 1992). We
summarize them here.
Butler, a former major in the United States Army,
took a position with Academy Insurance Group
("Academy") as an insurance salesman. Academy
markets insurance policies primarily to military
personnel and their dependents. During his tenure
with Academy, Butler rose through the ranks and
eventually became the "Managing General Agent"
("MGA") for Academy's operation in Europe in
January 1982. Butler held this position until April
I, 1986, when he resigned and was replaced by
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36 F.3d 1091 (Table)
36 F.3d 1091 (Table), 1994 WL 483413 (4th Cir.(S.C.))
Unpublished Disposition
(Cite as: 36 F.3d 1091, 1994 WL 483413 (4th Cir.(S.C.)))
Monte Dennett ("Dennett").
As MGA, Butler was authorized to advance
Academy monies to agents who worked in his
territory and to recoup these funds from
commissions later earned by the agents. Pursuant
to his contract with Academy, Butler was personally
liable for those advances that he did not recover.
When Butler left the European MGA position,
questions arose concerning the extent of Butler's
liability for advances he had authorized and whether
certain commissions earned by the European agents
would be applied towards those past advances.
That controversy resulted in the instant lawsuit,
with Butler suing for unpaid commissions due him,
and Academy counterclaiming for advances made
by Butler that allegedly had not been repaid.
Butler's case was originally tried before the
Honorable Karen L. Henderson without a jury and
resulted in a judgment for Academy on its
counterclaim in the amount of $566,92233. At the
end of the trial, Judge Henderson posed certain
written questions to both sides in an attempt to
resolve the issue of damages. On initial appeal to
this court, Butler contended, among other things,
that this procedure deprived him of his right to
challenge Academy's responses. We agreed and
accordingly remanded the case to the district court
with instructions that it allow Butler to introduce
evidence and cross-examine witnesses concerning
the amount Academy was entitled to recover on its
counterclaim. Butler v. Academy Ins. Group, Inc.,
No.88-2600 (4th Cir. Oct. 25, 1990) (unpublished
disposition).
During the pendency of the first appeal, Judge
Henderson was elevated to the United States Court
of Appeals for the District of Columbia Circuit.
Butler's case was transferred to the Honorable
Joseph F. Anderson, Jr. and a bench trial on
damages was held in January 1992. Judge
Anderson, after considering the cross-examination
of Academy's "damages" witness, determined that
the accounting methodology used by Academy was
flawed in several respects. Judge Anderson thus
Page 2
ordered a full accounting of commissions earned
and credited.
**2 Upon submission of the complete accounting,
Judge Anderson held that Butler was entitled to
additional credits of principal and interest for
recruiting commissions earned on policies issued
before April 1, 1986, which were not considered in
prior accountings, and for agent debts exonerated
by Dennett and Academy. in addition, Judge
Anderson found other commission credits due
Butler which he determined were not within the
literal remand instructions of this court. [FN 1)
These additional commission credits were made the
subject of alternative findings of fact B. IA and
B.3A in his order but were not included within the
amount of the resulting judgment. Based upon the
accounting corrections, the district court entered a
judgment in favor of Butler in the amount of
$39,016.40. [FN2]
Butler now appeals to this court, contending that
we should recall the mandate we issued in Butler v.
Academy Ins. Group, Inc., No.88-2600 (4th Cir.
Oct. 25, 1990) and reform it to permit the inclusion
of the district court's alternate findings of fact
within the judgment. Academy objects to the
suggested recall and reformation of our mandate,
which would impose on it additional liability of
$383,389.46, and cross-appeals the district court's
conclusion that certain of its practices exonerated
$672515.59 (including interest) of Butler's debt.
[FN3)
H.
The power of a court of appeals to recall its
mandate in appropriate instances is
well-established. E.g., Patterson v. Crabb, 904
F.2d 1179, 1180 (7th Ch.1990); Zipfel v.
Halliburton Co., 861 F.2d 566, 565 (9th Cir.1988);
Dunion v. County of Suffolk, 748 F.2d 69, 70 (2d
Cir.1984); Dilley v. Alexander, 627 F.2d 407, 410
(D.C.Cir.1980); Nat'l Sur. Corp. v. Charles Carter
& Co., 621 F.2d 739, 741 (5th Cir.1980);
American Iron and Steel Institute v. EPA, 560 F.2d
589, 592-93 (3d Cir.1977); Alphin v. Henson, 552
F.2d 1033, 1035 (4th Cir.1977) (recognizing that
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36 F.3d 1091 (Table)
36 F.3d 1091 (Table), 1994 WL 483413 (4th Cir.(S.C.))
Unpublished Disposition
(Cite as: 36 F.3d 1091, 1994 WL 483413 (4th Cir.(S.C.)))
"in exceptional cases, we may even recall our
mandate to avoid injustice"), cert. denied, 434 U.S.
823 (1977); 16 Charles A. Wright et al., Federal
Practice and Procedure � 3938 (ed.1977). But see
Boston and Maine Corp. v. Town of Hampton, 7
F.3d 281, 282-83 (1st Cir.1993) (discussing
troubling aspects of the power to recall a mandate).
The source of this power has not been conclusively
identified. Most courts of appeals, however, have
rooted the authority to recall a mandate in the
"inherent power" of a court, American iron and
Steel, 560 F.2d at 593, and have held that it may be
exercised for good cause or to prevent injustice,
Zipfel, 861 F.2d at 567. The courts of appeals
caution, however, that this power is an
extraordinary remedy that may be used only in
unusual circumstances. E.g., Greater Boston
Television Corp. v. FCC, 463 F.2d 268, 277
(D.C.Cir.1971), cert. denied, 406 U.S. 950 (1972).
We find that the case at bar warrants the use of our
discretionary power to recall and reform our
mandate to permit inclusion of alternate finding
B.3A in the district court's judgment. In this
alternate finding, the district court found that Butler
had not received credit for recruiting commissions
earned on policies written after April 1, 1986
because Dennett had changed the agent account
numbers [FN4} when he took over as MGA in
Europe. This change resulted in the payment of
$175,544 in recruiting commissions to Dennett
rather than Butler. It was represented by Academy
in both the initial trial and appeal, however, that
Butler had received full credit for these
commissions. Judge Henderson's refusal to permit
cross-examination concerning the issue of damages
prevented discovery of the improperly credited
recruiting commissions until remand and
cross-examination of Academy's damages witness.
Given these unusual circumstances, we find that
recalling and reforming our mandate is required to
prevent the gross injustice that would otherwise
result if we allowed Academy to escape the
extensive liability discovered by the district court
on remand.
**3 Turning to alternate finding B.1A, we decline
Page 3
to exercise our authority to recall and reform our
mandate to permit the inclusion of this finding in
the district court's judgment. In this alternate
finding, the district court concluded that Academy's
direct collection efforts with respect to the accounts
of seven agents, which were settled via a
promissory note signed by Butler, prejudiced
Butler's right to proceed against those agents,
causing him a loss of $154,510.09. Butler, who
filed for bankruptcy during the pendency of the
prior appeal, seeks incorporation of this finding
primarily to avoid unnecessary relitigation of this
issue before the bankruptcy court.
Our power to recall and reform a mandate is an
extraordinary remedy that must be used sparingly so
as not to undermine the finality of judgments. We
see no reason to exercise this power here. The
parties to the initial litigation filed no claims or
counterclaims concerning the note; Butler's claims,
therefore, can be adjudicated separately with no
prejudice to either party beyond the cost of
relitigation. To exercise our power merely to spare
Butler the expense of additional litigation would, in
our view, be an abuse of that power.
For the foregoing reasons, we recall the mandate
we issued in Butler v. Academy Ins. Group, Inc.,
No.88-2600 (4th Cir. Oct. 25, 1990), and reform it
to pemait the inclusion of the district court's
alternate finding of fact B.3A within its judgment
This case is accordingly remanded to the district
court to modify its judgment to incorporate alternate
finding of fact B.3A and its attendant legal
conclusions, resulting in a $228,879.37 credit to
Butler. [FNS)
AFFIRMED IN PART AND REMANDED WITH
INSTRUCTIONS
PNI. In remanding this case to the district
court, this court instructed that
[t]he district judge should allow Butler to
introduce evidence and cross-examine
witnesses on the question whether he has
received proper credit for commissions
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36 F.3d 1091 (Table)
36 F.3d 1091 (Table), 1994 WL 483413 (4th Cir.(S.C.))
Unpublished Disposition
(Cite as: 36 F.3d 1091, 1994 WL 483413 (4th Cir.(S.C.)))
earned on policies issued prior to April I,
1986, and, if not, the amount of those
commissions. The district judge should
also make findings and decide whether the
company exonerated agents who owed
advances while at the same time charging
Butler with the exonerated advances....
Butler v. Academy Ins. Group, Inc.,
No.88-2600, slip op. at 14 (4th Cir. Oct.
25, 1990). The highlighted date
restriction led Judge Anderson to conclude
that he could not adjudicate Butler's
entitlement to post-April 1986
commissions arising from his recruitment
of the policy-writing agents. On the
chance that this court did not agree with
his literal interpretation of the remand
instructions, however, Judge Anderson
found, in alternate finding B.3A, that
Academy owed Butler $228,879.37 in
commissions from policies written after
April 1986, because Butler recruited the
agents who wrote the policies and was
contractually entitled to a recruiting
commission.
Alternate finding B.1A concerns a
promissory note Butler signed in
settlement of thirty-three of his agent
accounts. Because the note did not
become due until after the case was
remanded, no claims or counterclaims on it
were made by the parties to the initial
litigation. Judge Anderson concluded that
the note was, for that reason, beyond the
scope of the remand and declined to enter
judgment on his alternate finding that
Academy's direct collection efforts with
respect to some of the agents whose
accounts were settled via the note
prejudiced Butler's right to proceed against
those agents.
FN2. Butler moved the district court to
amend its order. Judge Anderson granted
in part and denied in part this motion.
Because the amendments Judge Anderson
made related to the alternate findings only,
Page 4
they did not affect the amount of the final
judgment.
FN3. We have reviewed Academy's
contentions in its cross-appeal and find
them to be without merit.
FN4. According to company practice,
Academy pays all compensation due an
agent into an individual escrow account
from which the agent then receives the
compensation in periodic increments.
FNS. In our remand order, we directed the
district court to "either reduce the
counterclaim or re-enter judgment for the
sum it previously found." Academy thus
contends that the district court has no
authority under our mandate to enter
judgment in favor of Butler. We agree.
We note, however, that when we remanded
the case to the district court to allow Butler
to challenge the award of damages on
Academy's counterclaim, we failed to
envision a situation where Academy would
end up owing Butler money. We see no
reason to punish Butler for the cumulative
effect of the district court's error and this
court's lack of sufficient imagination by
imposing this barrier to his recovery. We
accordingly relax this portion of our
mandate to allow the district court to enter
judgment in favor of Butler.
36 F.3d 1091 (Table), 1994 WL 483413 (4th
Cir.(S.C.)), Unpublished Disposition
Briefs and Other Related Documents (Back to
top)
� 1993 WL 13122862 (Appellate Brief)
Appellees/Cross Appellants' Reply Brief (Mar. 24,
1993)
� 1993 WL 13122861 (Appellate Brief) Reply and
Answering Brief (Mar. 15, 1993)
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36 F.3d 1091 (Table)
36 F.3d 1091 (Table), 1994 WL 483413 (4th Cir.(S.C.))
Unpublished Disposition
(Cite as: 36 F.3d 1091, 1994 WL 483413 (4th Cir.(S.C.)))
� 1993 WL 13122863 (Appellate Brief)
Appellees/Cross Appellants' Brief (Jan. 18, 1993)
� 1993 WL 13122860 (Appellate Brief) Appellant's
Brief (Jan. 13, 1993)
END OF DOCUMENT
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