S. Myron KLARFELD, Plaintiff-Appellant, v. UNITED STATES of America; United States District Court; United States Marshal, Defendants-Appellees.
No. 89-56315
United States Court of Appeals, Ninth Circuit
Submitted Dec. 7, 1990. Decided Sept. 13, 1991.
583
* The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).
With this understanding of TAPAA‘s scheme, we now come to a cоnsideration of the Limitation Act. Simply stated, the Limitation Act is contrary to every goal of TAPAA. It allows vessel owners virtually to eliminate liability for catastrophic damages. Application of the Limitation Act to any aspect of TAPAA would frustrate completely TAPAA‘s comprehensive remedial nature. Congress, in enacting TAPAA, was clearly concerned about the ability of existing laws tо compensate innocent victims of a disastrous trans-Alaska oil spill.9 We can only conclude that TAPAA was designed to supersede any conflicting law; by TAPAA‘s nature, it was intended to become the controlling statute with regard to trans-Alaska oil. TAPAA‘s scheme, including both the strict liability and negligence principles, was intended to operate without limitation. Because this scheme is in irreconсilable conflict with the Limitation Act, we hold that TAPAA implicitly repealed the Limitation Act with regard to the transportation of trans-Alaska oil.
Our finding that TAPAA repealed the Limitation Act must be supported by the clear and manifest intent of Congress. Radzanower, 426 U.S. at 154, 96 S.Ct. at 1993. We find such intent in this case. There is no ambiguity as to the nature of the remedial scheme Congress enacted in TAPAA, and that scheme simply cannot work if the Limitаtion Act is allowed to operate concurrently. The Limitation Act is contrary to every aspect of TAPAA, and therefore, with regard to the transportation of trans-Alaska oil, it must be deemed implicitly repealed.
CONCLUSION
The district court‘s dismissal of Trinidad‘s complaint pursuant to
James R. Sullivan, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appеllees.
Before BROWNING, PREGERSON and LEAVY, Circuit Judges.
PER CURIAM:
S. Myron Klarfeld appeals pro se the district court‘s order dismissing his complaint for failure to state a claim. Klarfeld contends the district court erred by dismissing the complaint without leave to amend. We reverse and remand.
FACTS AND PRIOR PROCEEDINGS
In his complaint, Klarfeld, an attorney, alleges that on or about April 12, 1989, he
identified himself as an attorney and explained thаt he would rather be searched by the hand metal detector than to take off his shoes and have to walk several yards in his stocking feet to gain entrance to the Courthouse. [Klarfeld] was then informed by the guard: “If you want to get into the Courthouse you will have to take off your shoes and place them on the conveyor!! You could have a gun there.” [Klarfeld] begrudgingly complied and had to walk several yards over a dirty floor in his stocking feet, much to the amusement of the guard and onlookers, in order to gain entrance to the Courthouse to conduct his business.
Complaint at 3 (emphasis in original). The guard then placed Klarfeld‘s shoes on the conveyor belt, whereupon it was discovered that a metal shank in the arch of the shoes had been setting the alarm off. Klаrfeld then entered the Courthouse without further incident.
Klarfeld wrote a note to the Chief Judge of the Central District of California and complained about the security procedures at the Courthouse, but received no response. Klarfeld then brought suit on April 25, 1989, seeking injunctive and declaratory relief. Klarfeld sought to enjoin the defendants from requiring him to remove his shoes and walk in his stocking feet in order to gain entrance to the United States Courthouse. Klarfeld also claimed that his rights were violated by the fact that courthouse personnel were not required to comply with the same security procedures. The district court dismissed the action with prejudice for failure to state a claim. Klarfeld timely appeals.
Klarfeld contends the district court erred by dismissing his complaint without leave to amend. Klarfeld asserts that he raised valid constitutional claims as to whether the courthouse search procedures were reasonable, and whether the search procedures discriminated against lawyers.
DISCUSSION
Standard of Review
We review de novo a district court‘s dismissal of an action for failure to state a claim. Pau v. Yosemite Park & Curry Co. 928 F.2d 880, 886 (9th Cir.1991). We must accept all material allеgations in the complaint as true and construe them in the light most favorable to Klarfeld. See NL Indus. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). Dismissal is appropriate only if the plaintiff “can prove no set of facts in support of his claim which would entitle him to relief.” Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987) (internal quotations and citations omitted).
We review a denial of leave to amend for an abuse of discretion. Saul v. United States, 928 F.2d 829, 843 (9th Cir.1991). If a complaint is dismissed for failure to state a claim, leave to amend should be granted “unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Schreiber Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986). However, a district court does not err in denying leave to amend where the amendment would be futile. Reddy v. Litton Indus., 912 F.2d 291, 296 (9th Cir.1990), petition for cert. filed (U.S. July 15, 1991) (No. 91-95).
Analysis
We first consider Klarfeld‘s contention that he raised a valid constitutional claim that his fourth amendment right to be free from unreasonable searches and seizures was violated by security procedures in effect at the United States District Court in Los Angeles. We note that Klarfeld does not challenge the constitutionality of the search procedures on their face. Instead, Klarfeld challenges the reasonableness of the search policy that required him to remоve his shoes and walk several yards over a dirty floor in order to gain entry to the Courthouse.
Under the fourth amendment, a search of private property without proper consent is unreasonable in all but “certain carefully defined classes of cases” unless it has been authorized by a valid search warrant. Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1730-31, 18 L.Ed.2d 930 (1967). Among the “carefully defined classes of сases” for which no warrant is needed are administrative searches. United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1243 (9th Cir.1989). Under the so-called “administrative search” exception, a limited warrantless search of a person seeking to enter sensitive facilities is lawful if “conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime.” Id. (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir.1973)). Nonetheless, “[t]o pass constitutional muster, an administrative search must meet the Fourth Amendment‘s standard of reasonableness.” Davis, 482 F.2d at 910.
In McMorris v. Alioto, 567 F.2d 897 (9th Cir.1978), a case very similar to this one, we held that courthouse security procedures in the San Francisco Hall of Justice, including the use of a magnetometer, fell into the category of permissiblе administrative searches. Id. at 900-01. Taking judicial notice of threats of violence directed at courthouses that had given rise to an urgent need for protective measures, we concluded that security measures that included a pat-down search as a secondary search procedure were reasonable under the fourth amendment. Id. at 900.
Here, Klarfeld contends that the search policy that required him to remove his shoes in order to gain entry to the Courthouse was unreasonable. We disagree. Voluntarily removing one‘s shoes in order to gain entry into a courthouse is far less intrusive than the pat-down search that was expressly approved of in McMorris.1 Thus, requiring Klarfeld to remove his shoes was not unreasonable. If Klarfeld‘s claim were limited to this argument, we wоuld be inclined to affirm the district court‘s dismissal of this claim and hold that Klarfeld can prove no set of facts in support of it.
However, Klarfeld does not argue that the removal of his shoes, in and of itself, was unreasonable. Rather, he alleges that the method of search was unnecessarily intrusive, since a hand-held magnetometer was available and would have enabled the marshаls to determine whether he was carrying a weapon without the removal of his shoes. He further contends that the search was unreasonable because the marshals required him to walk without shoes for an unnecessarily long distance over a dirty floor before passing through the metal detector in order to gain entry into the courthouse, exposing him to embarrassment and the ridicule of onlookers.
In McMorris we emphasized that the method of search used was “less offensive
Klarfeld also contends that he raised a valid constitutional claim that he was discriminated against as a member of a class (attorneys) because the courthouse security procedures in еffect at the United States District Court in Los Angeles required him and other attorneys to remove their shoes and walk several yards over a dirty floor when the magnetometer was activated, while those who worked in the courthouse, e.g., police officers, court personnel, and judges, were not required to do so upon presentation of their employee badges. Klarfeld asserts that the FBI‘s failure to afford attorneys the opportunity to undergo background checks and receive security clearances similar to those provided courthouse employees discriminates against attorneys as a class. We agree with the district court‘s interpretation of this argument as an equal protection argument.
A classification scheme is permissible under the equal protection obligation imposed by the
Here, the only distinction between courthouse personnel аnd others is that courthouse personnel are not required to pass through the metal detector a second time if they display their employee identification badges. This security scheme is rationally related to a legitimate governmental purpose, viz., the protection of the Courthouse from violence.2 See McMorris, 567 F.2d at 900. Courthouse personnel in Los Angeles are subjected to lеss scrutiny because they are required to undergo an extensive background check by the FBI.3 To implement such a procedure for all attorneys, or simply those who might want to enter the courthouse at some time, would result in a severe administrative burden out of all proportion to the benefit of foregoing a second trip through the magnetometer. Such precautionary measures are not at all irrational.
Accordingly, we hold that Klarfeld can prove no set of facts consistent with his claim that the security procedures in effect at the Courthouse discriminated against lawyers. However, because we cannot say that Klarfeld can prove no set of facts consistent with his claim that his fourth amendment rights were violated by the requirement that he wаlk several yards over a dirty floor, we reverse and remand the district court‘s dismissal of Klarfeld‘s complaint.
REVERSED AND REMANDED.
The parties shall bear their own costs on appeal.
PREGERSON, Circuit Judge, concurring in the result.
I vote to reverse but on different grounds. Appellant S. Myron Klarfeld, Attorney at Law, does not challenge the government‘s need to search persons seek
As the per curiam opinion correctly points out, we have held that certain administrative searches are valid without a search warrant. United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1243 (9th Cir.1989). But administrative searches nevertheless “must meet the Fourth Amendment‘s standard of reasonableness.” United States v. Davis, 482 F.2d 893, 910 (9th Cir.1973). “To meet thе test of reasonableness, an administrative screening must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.” Id.
Requiring Klarfeld to remove his shoes and walk through the magnetometer a third time was not “as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.” Davis, 482 F.2d at 910. A less intrusive method of “searching” Klarfeld was readily available that would have satisfied the administrative need for the search. After Klarfeld was asked by the guard to remove his shoes, he specifically requested that the guard check him with a hand held metal detector, a device that would have detected any dangerous weapons. The guard ignored Klarfeld‘s request and insisted that Klarfeld remove his shoes and walk through the magnetometer a third time.
I also do not agree with the per curiam opinion‘s statement that the search at issue here was “far less intrusive” than a pat-down search because Klarfeld “voluntarily” removed his shoes. Klarfeld‘s action was not voluntary. To fulfill his professional responsibilities as an attorney and gain entry into the federal courthouse, Klarfeld had no choice but to comply with the guard‘s requests.
The per curiam oрinion dismisses Klarfeld‘s equal protection argument by stating that courthouse personnel carrying identifi
Moreover, Klarfeld, as a member of the California Bar, also had undergone a background check. To be admitted to the State Bar of California, attorneys are subjected to a rigorous application and approval process. The application procedure requires a candidate for admission to submit a detailed biographical account of his оr her past, including all past addresses since the age of sixteen, all past employment since age eighteen, and any criminal violations. The applicant is also required to provide fingerprints. See Committee of Bar Examiners of the State Bar of California, Rules Regulating Admission to Practice Law In California (1990) [hereinafter “Committee Rules“].
Every California bar applicаnt has the burden of proving that he or she possess good moral character. Committee Rules at 33-34. “Good moral character” includes “honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, knowledge of the laws of the state and the nation and respect for the rights of others and for the judicial process.” Id. at 34. Thus for an applicant to be admitted to the California bar, the Committee of Bar Examiners must determine that he or she possesses the good moral character required of an officer of the court.
In sum, requiring Klarfeld to remove his shoes and walk through the magnetometer a third time amounted to an overly intrusive administrative search that unnecessarily demeaned an officer of the court deemed to possess gоod moral character.1
Notes
H.R.Conf.Rep. No. 624, 93rd Cong., 1st Sess. 28-29 (1973), U.S.Code Cong. & Admin.News 1973, 2417, 2523, 2530.Under the Limitation of Liability Act of 1851, the owner of vessel is entitled to limit his liability for property damage caused by the vessel.... It is therefore quite possible for injured parties to go uncompensated if a vessel and its cargo are totally lost.... [T]he Conferees concluded that existing maritime law would not provide adequate compensation to all victims in the event of the kind of catastrophe that might occur. Consequently, the Conferees established a rule of strict liability for damages from discharges of the oil transported through the Trans-Alaska Pipeline up to $100,000,000.