*1 pay calculating backpay for award. mination of the backpay Title VII award salary payment of this was found on salary adjusted based Crabtree’s compliance Equal Pay the district court to be violation of the with the Act. Equal Pay argues Act. Crabtree liability. AFFIRMED as to REVERSED backpay Title VII award should be based and REMANDED for a recalculation of higher salary which deter- damages in opinion. accordance with this paid she should mined have been Equal Pay Act.
The district court indicated that it de-
clined to base the Title VII award on the
adjusted salary because Crabtree’s com- plaint alleged separate two causes of ac- Percy DOBARD, Leo tion, one under Title VII and one under the Petitioner-Appellant, Equal Pay Act. The Title VII count com- plained only discharge, of unlawful not of v. salary agree violations. We with Crabtree JOHNSON, Warden, W.E. Holman the district court’s reliance on what Institution, Correctional recognized the court itself “nicety as a Respondent-Appellee. pleading” violates the admonition of Fed.R. No. 84-7281. 8(f) pleadings Civ.P. that all construed be United States Appeаls, Court of justice. so as to do substantial Eleventh Circuit. While the district court has discre Jan. 1985. tion to decide whether backpay, to award § 2000e-5(g), “that decision is Rehearing and Rehearing En Banc guided by meaningful standards and sub Denied Feb. 1985. ject thorough appellate review.” Brown Co., Mfg. A.J. Gerrard 715 F.2d (11th Cir.1983) (en banc). The Su preme Paper Court stated in Albemarle
Co.,
“given finding of unlawful discrimina
tion, backpay only should be denied for which, applied
reasons if generally, would statutory pur frustrate the central
poses eradicating discrimination
throughout economy making per injuries
sons whole through suffered
past discrimination.” provisions sex discrimination harmony
of Title VII must be read in Equal Pay Act. Orr v. Frank R. Son, Inc.,
MacNeill &
Cir.)
cert. dismissed
(1975). Basing
backpay award under Title on a salary VII Equal Pay
found to violate the Act would ignore purpose making both Title VII’s Clark, Judge, dissenting filed whole for economic victims losses suffered opinion. through past discrimination and the re quirement Title Equal Pay VII and the harmony.
Act be read in We therefore
remand to the district court for a redeter- *2 Knowles, Tuscaloosa, Ala., Jr.,
Ralph I.
Friedman, Davis,
Wardwell,
Barry
Polk &
D.C.,
Washington,
petitioner-appellant.
Carnes,
Gen.,
Edward
Atty.
Asst.
Mont-
Ala.,
gomery,
for respondent-appellee.
GODBOLD,
Before
Judge,
Chief
CLARK,
Judge,
*,
and THOMAS
Judge.
District
GODBOLD,
Judge:
Chief
(1982)
Under 28 U.S.C.
a state
petition for
prisoner may file a
habeas cor
pus
judicial
in
district in which
in
custody
he is in
or
the district which
held that convicted and sen
the court was
fil-
provision permitting
tenсed him.1 The
*
Thomas,
two or more
court of a State which contains
U.S. Dis-
Daniel Holcombe
Honorable
Alabama,
districts,
application may
Judge
Federal
for the Southern District of
trict
designation.
sitting by
court for the district
be filed in the district
custody
person
wherein such
is in
2241(d):
the district within which the
1. Sec.
district court for
court was held which convicted and
State
(d)
application
habe-
Where an
for a writ of
sentenced
and each of such district
him
custody
person
is made
courts shall have concurrent
judgment
State
and sentence of a
tricts,
ing in
conviction
the district of
and sen
either district court is the court of
tence was added
amendment
1966.2 conviction and sentence within the meaning
of Sec.
power
and has
to entertain
is an Alabama death-sentenced
Petitioner
on its merits or transfer
it.
prisoner who was convicted and sentenced
murdering
police
to death for
officer.
opinion
accompanying
his
the transfer
pretrial publicity
Because
venue for
Judge
order District
Acker of the Northern
*3
petitioner’s triаl
transferred
was
from the District
procedural
described the unusual
county
state court in the
of indictment to
petitioner’s
circumstances of
case. The
adjoining county,
the state court in an
and murder for which Dobard was convicted
petitioner was tried and convicted in the
and sentenced to death occurred in Sumter
adjoining county. Some of the incidents of County, located in the Northern District.
sentencing were,
sense,
the physical
in
Dobard was indicted in the Circuit Court of
done in one
in
county, some
the other. The
County,
Sumter
pretrial
and numerous
mo
county of indictment is located in the feder-
tions were filed
heard in
and
that court.
Alabama,
al Northern District of
the coun-
pretrial publicity,
Because of
the state cir
ty
in
of trial and
the
conviction
federal
judge,
cuit
ruling from the
in
bench Sumter
Southern District of Alabama. These facts County, transferred
trial
the
of the case to
questions:
raise two substantive
where
Marengo
County,
Court
locat
petitioner
petition
could
file a federal
ined
the Southern District.3
provision
habеas
under the
of Sec.
All files pertaining to the case were sent
permits filing
in the federal
to the
Marengo
Circuit Court of
County.
district in
prisoner
which the
was convicted
pretrial
Various
motions were heard in
sentenced,
and
could the
and what
court of
County,
Sumter
but counsel have stipulated
filing
petition?
do with the
that after the transfer of the case all or-
custody
Petitioner is in
state
feder-
ders
were entered
the Circuit Court of
al Southern District of Alabama. He filed
Marengo County.
After
trial and con-
in
his federal habеas
the Northern
Marengo County
viction in
sentencing
judge
District. The
district
the North-
hearing required by Alabama law to be
District,
ern
whether
uncertain
his court
held
judge
before the
was heard
Sumter
had
as the
and venue
district of
County
and
orally
was there
sen-
sentence,
conviction and
declined to decide
tenced
judge signed
to death. The
whether his court had
to enter-
sentencing order
in Marengo.
while
Do-
tain the merits of the
and instead
bard’s motion for a
trial was
new
received
transferred
to the
the case
Southern Dis-
by thе circuit clerk in
and
Sumter
then sent
trict,
unquestionably
where
the case could
on
Marengo.
to be
hearing
filed
on
upon place
be entertained
of custody.
based
the new trial motion was conducted in Sum-
appeal,
Petitioner filed a notice of
con-
ter.
tending that
court
the district
could not
Under
peculiar
these
circumstances the
transfer
determining
the case
first
without
judge
district
question
was
faced
whether it
had
decide the
whether
the Northern District or
merits. We hold that where
substantial
incidents of
Southеrn
conviction and sentence
District was the district
are
where
judicial
divided between
two
dis- Dobard was convicted and sentenced within
application.
county.
entertain the
The district
Code of Alabama
12-11-1.
application
for the district
such an
wherein
is
The circuit courts of the counties are divided
filed in the
of its
exercise
discretion and in
into
Sec. 12-11-2.
circuits.
Id.
Unless
justice
appli-
furtherance of
law,
provided by
otherwise
each circuit court
hearing
cation to the other district court for
county
сounty.
meets at the
of its
courthouse
and determination.
County
Marengo
Id. Sec. 12-11-3.
and
Sumter
(and
County
county)
a third
are in the Seven
89-590,
2. P.L.
80 Stat. 811.
Circuit,
12-11-2,
teenth Judicial
Sec.
and the
id.
3. The transfer
one court
was from
to another.
judge.
circuit has one
Sec. 12-17-20.
Id.
In Alabama there
circuit court
for each
is a
Although appar
transfer order.
Acker’s
or whether both
meaning of Sec.
the district of
court has
ently
expressly
treated as
no
ruled on
might be
districts
sentence,
neither
or whether
and
conviction
transfer orders under
whether
Sеc.
be.
district could
final,
fairly consistently
courts have
are
brought
transfer orders
held
potential
recognized
Judge Acker
generally
or
other statutes
final
these unusual facts
problem presented
purpose
appeal.
Stelly
ders for
He held:
his concerns.
and voiced
Co., 431
Employers
National Insurance
interesting
presents
this case
While
Cir.1970),
1253-54
cert. de
F.2d
and
concerning jurisdiction
questions
venue,
opine
Stelly
Dredging
v. Bauer
tempts the Court to
nied sub nom.
peculiar
Co.,
under this
set
27 L.Ed.2d
its
circumstances,
purpose would be
no
(1971),
held that a case transferred
we
pro-
were allowed to
served if this cause
1404(a)(1982)4
in
Sec.
under 28 U.S.C.
un-
Such a decision
ceed in this Court.
terlocutory. See also Matter Macon
*4
subjected
appel-
to
doubtedly would be
Venture,
Uplands
624 F.2d
26-27
delay which would
and the
late review
Cir.1980).
recently
Third
has
The
pe-
process.
both
accompany that
What
non
ruled that
these
conveniens
forum
deserve
respondent want and
titioner and
exception
do not fall within the
ar
orders
hearing and decision
speedy,
is
ticulated Cohen v.
Industrial
Beneficial
it
This
finds that
on the merits.
Court
Corp.,
69
93
Loan
337 U.S.
this
at least
jurisdiction
has
over
(1949).5
Corp.
L.Ed. 1528
Coastal Steel
purpose of transfer and
for the limited
Ltd.,
F.2d
Tilghman
v.
Wheelabrator
709
certainly
District
that the Southern
—
Cir.),
denied,
(3d
cert.
U.S.
to hear the
jurisdiction and venue
both
—,
(1983),
7.
735 F.2d at
We
pеtitioner
433.
stated
final
still
that:
properly challenge
has means available to
order,
moving
transfer
such as
the transferee
reasoning
Stelly
per
find the
[w]e
to be
raising
court
retransfer or
the matter on
suasive for transfer orders under Sec. 1631
appeal
judgment.
after final
where the transfer is from one district court
Id.
to another
here
....
is not
court,
day
simply
denied his
but is
rele
Moreover,
8.
even if the district court had decid-
gated
pursuing
his claim in another district
ed the
issue and had determined
complaint
court.
If his
about thе transfer is
District,
did lie in the Northern
improperly
characterized
court below
justice
in the furtherance of
court would
falling
his claim as
under 28 U.S.C. Sec.
power, subject
have the
to review for abuse of
alleged,
rather than
as he
Secs. 2241 and 2243
discretion, to transfer the case to the Southern
point
he
will be free to raise that
jurisdiction.
District
appeal
as a court of
pursue
concurrent
it on
after
transferee court and
courts, each
two
pursu
and conviction between
Furthermore,
to transfer
an order
district, obvious-
separate
de
federal
2241(d)
lying
first
in a
made without
ant to Sec.
changes
has
Yet
situation.
ly
or not the district
the usual
ciding
is not
whether
pursuant
of the case is
venue,
hear the merits
made
jurisdiction to
or other transfers
interlocutory
order.
law,
occur,
particularly
nonreviewable
cases
do
to state
distinguishing
justification for
There is no
publicity. Inevita-
involving excessive trial
orders under Sees.
between
located
will be to courts
bly some transfers
2241(d),
jurisdic
and 1631 where
Indeed,
districts.
in other
answered, and
question
tional
been
will often
concept
publicity
of undue
under Sec.
where
transfer orders
transfer to a court a considera-
necessitate
is not reached.
both situations
the issue
beyond the
away and
reach of
ble distance
pursuant
are
to statute.
transfer orders
publicity.
therefore,
becomes,
question
saying
that if
no hesitation
We have
orders are authorized
the transfer
whether
Congress
thought
had
the matter it
about
justified
whether
by statute but
rejected
have
out of hand
notion
would
ques
And it is that
by thе circumstances.
incidents of conviction and sen
that where
tion,
court’s deci
of the district
the wisdom
tence are divided between two federal dis
under Secs.
to transfer a case
sion
tricts,
an
neither district would be
available
2241(d),
consistently treat
that we
place
as the
of conviction and sen
forum
interlocutory. “It is
as nonreviewable
Likewise,
equally certain
tence.
we are
any order could be less
hard to see how
Congress
not have had in mind
would
merely transfers an
than one which
‘final’
a “divided incidеnt” case would fall
from
district to another
action for trial
one
jurisdictional
the kind of
snarl that has
into
judicial system....”
Stelly,
in the federal
uncertainty
in this case because of
arisen
at 1253.
supra,
respective
of the status of the
districts
appellate
no
conclude that we have
We
(or situses) of conviction ánd sen
the situs
appeal
and the
must be dis-
jurisdiction,
Congress
Nor would
have intended
tence.
missed.
preliminary litigation to de
that there be
effort to obtain review of
Petitioner’s
district has the most con
termine which
plena
to rule on its
district court’s refusal
possibili
the case. All of these
tacts with
concept
ry jurisdiction fits better within
*6
concept
ties are antithetical to the
of habe
treat
appeal,
than of
and we
of mandamus
remedy,
plain, speedy
as as a
and efficient
appeal
supporting
and
docu
the notice of
appellate
enjoying priority in both trial and
petition
a
for mandamus. Do
ments as
§§ 2243, 2248; App.
courts.
order, it
complains that the transfer
bard
¶ (a)(3),
One,
Rules.
Eleventh Circuit
See
by a court
appealable,
not
was entered
self
Lycoming County
Lehman v.
Chil
also
the
power
the
to enter
order
that lacked
Agency, 458 U.S.
102
dren’s Services
until it determined that it had
unless and
(1982); Hensley
9. While we do not rest our decision on this to the court to ground, 2241(d). Tubman, alternative Ayala we that at least one F.Supp. note Sec. 366 juris- cоurt has held that a without (E.D.N.Y.1973). district court 2241(d) diction under the Sec. county. in seeking corpus He was sentenced habeas ei- option of the in county, where he confined all of which occurred the North- district is in the ther sentencing the court District of Alabama. The state court district where ern or the § 2241(d). In adjoining U.S.C. en- trial of the case to is located. transferred amendments, Congress ex- acting jury Marengo County these where the verdict of the substantial advan- plicitly recognized in Marengo County is guilty was returned. cases resolvеd in having these tages Clearly of Alabama. District of the Southern originally imposed the which juris- has District of Alabama the Northern near- or in the court located confinement for writ of habeas of a diction underlying controver- est the site of the and un- circumstances corpus under these added) (emphasis sy. clearly, Dobard is the statute. Just der filing option by the statute of his given Court the v. 30th Judicial Circuit Braden of 484, 497, Northern District of Kentucky, habeas omitted). (footnotes in L.Ed.2d 443 The district court erred not Alabama. § 1404(a), statute, jurisdiction. The unlike U.S.C. I considering whether it had following direction to the district case to that court with would return the courts: there directions that it consider whether justice the district wherein in furtherance of
The district court for were reasons in exercise application is filed in why such an case should not be retained in furtherance of its discretion and of Northern District of Alabama. application to justice may transfer in majority I think the errs its treatment hearing and other district court for to right prisoner this vital of a have his determination. сase heard in the district nearest where § 2241(d). The district court normally thus where crime occurred and discretion, did not exercise its this case did corpus, be. Habeas the witnesses would in furtherance of consider what was technically proceeding is although a civil option un- and denied his justice criminal practical purposes all a matter. petition in the statute to file the der the Therefore, this, case, although a civil is not This was District of Alabama. Northern properly compared to the broadеr discre any explanation, exercise of done without permitted to district court to transfer tion discretion, stating reasons for transfer- 1404(a) case for the convenience a Section misplaced fear that ring it other than some the district court’s parties. of the Here case. might not have of the it requirement discretion is bounded accompanying report of the Senate prisoner has the first election and that the Bill No. 3576 which became subsec- Senate sound reasons for the court must havе (d) 2241 states the follow- tion of Section transferring the venue of a Section 2254 ing: Because, out, majority points case. as the legislation proposed of the purpose is not an imme the district court’s decision custody under a person allow appealable order1 and because a re diate sentence a state judgment and viewing court will be reluctant to overturn of habeas petition for a writ decision an otherwise error free habeas court of the district federal district grounds imprоper transfer solely on the state court was held within which venue, particular court has a the district him. and sentenced convicted these motions ly heavy to consider burden Cong., 2d 89th Sess. S.Rep. No. Wright, Feder generally with care. See Cong. (1966), reprinted in 1966 U.S.Code 347, p. 282- al Practice and Procedure 2968, 2969. Ad.News & major greatly concerned 83. I am *8 in the coun ity opinion, apparently first committing charged with Dobard was gives the dis- County try problem, and was indicted to consider crime Sumter Inns, Inc., However, Services, Quinta La Motor 1. we do have to return Inc. v. Cir.1982). a writ mandamus to correct an F.2d 987 n. 9 Roofing & Sheet Metal abuse of discretion. See trict court unbounded discretion to transfer
2241 cases in the same manner trans- 1404(a)
fer Section cases. majority
goes beyond the intent Congress. For
these reasons I dissent. America,
UNITED STATES of
Plaintiff-Appellee, TAYLOR, Defendant-Appellant.
Michael
No. 84-8409
Non-Argument Calendar. Appeals,
United States Court of
Eleventh Circuit.
Jan. 1985. Baum, Atlanta, Ga.,
Stanley M. for de- fendant-appellant.