*1 201(b) mainte- right the individual seaman’s to Fed.R.Evid. permits a court to judicial requires only collective take notice of a if nance. It that the fact it is “not to subject reasonable “express dispute in bargaining agreement include an that it is (1) generally either effect, known within the maintenance. terri- referencé” to jurisdiction torial the trial court or long bargain- parties as the a collective capable of ready accurate and determina- ing agreement formally designate some resort to sources whose accuracy rate, figure daily as a nominal maintenance reasonably questioned.” cannot be even the a disabled seaman cannot recover in district court reviewed a inexpensive lodging. cost of food and Rutherford finding of recent per number cases $8.00 incongruities A number of and inequities day inadequate awarding higher be and holding. majority’s result from maintenance amounts based actual ex- example, For seamen with favorable bar- penses. See id. at 1370. Based on these gaining agreements mainte- that contain no authorities, the district court concluded would be receive nance terms entitled to that is now generally recognized “it that lodging cost of their food and when full day per longer is no $8.00 a sufficient sum ill, injured or while those with less favor- lodging a seaman to secure and three agreements bargaining specify a able that meals.” Id. The district court therefore nominal maintenance rate would receive appropriately judicial took notice that a inadequate only that maintenance. Or un- maintenance rate of per day in $8.00 San working ion seamen non-union seamen and inadequate. Francisco is I thus Id. con- employer might differ- for the same receive clude that the seaman is not bound premise ent maintenance rates. Since the provision maintenance collective bar- underlying is that maintenance seamen gaining agreement. I affirm would improvident their unable or unions are too district court. protect seamen’s interests ade- disabled quately, it is anomalous for this court to
rubberstamp any bargained-for amount
long as it is labelled “maintenance.”
I approach find the district court’s bar, following
case at its decision in Ruth- Inc., Service, Sea-Land America, UNITED STATES of erford F.Supp. (N.D.Cal.1983), sound. Plaintiff-Appellant, that Rutherford permitted challenge seaman should LEE, al, Kenneth A. et bargained-for maintenance if he can rate Defendants-Appellees, “inadequate pro- demonstrate it is lodging vide food with [him] quality he kind and would have received Magistrate Bert S. Tokairin and the according vessel aboard ... to his [his] United States District Court For (i.e., recuperated circumstances where he Hawaii, Appellees. the District of ...).” 1374. If a Id. at seaman cannot through Nos. 85-1047 85-1056. bargained-for demonstrate that the mainte- Appeals, Court of nance rate falls below this minimal thresh- Ninth Circuit. old, repudiate then courts should not bargained-for long rate. As mainte- as the Argued and Submitted Nov. 1985. parties nance rate on which the have April Decided agreed equals or minimum exceeds this adequacy, threshold of treat should legitimate
it as a of collective bar-
gaining not be that should disturbed. *3 DePue, Justice, Atty., Dept, F.
John D.C., Washington, plaintiff-appellant. for Schutter, Mills, David C. Priscilla L. Hon- olulu, Hawaii, defendants-appellees. for FLETCHER, SKOPIL, Before ALARCON, Judges. Circuit FLETCHER, Judge: Circuit appeals from the dis- The United States prosecu- trict court’s refusal to entertain of commit- tions civilians accused on Air ting misdemeanor traffic offenses the Air Force bases in Hawaii because prosecute military being imposed of- know of the sanctions does not also Force upon personnel court. Air Force service offenders or federal fenders whether the violators were at all policy prosecuting civilian violat- has a punished. Because of through potential in federal court the U.S. Attor- ors discrepancy prosecution in the Office, retaining jurisdiction or han- over ney’s but dling of cases as military traffic personnel prosecution defendants, the policy of this Military Justice the Uniform Code violators, that all court continues traffic (UCMJ). In Force’s opposition the Air military, whether civilian or must policy, the district court has a prosecuted in the same or none tribunal prose- traffic offenders must be all on-base at all. or none at all. cuted federal Affidavit of Harold Fong M. at attach- in re- government contends that Magistrate’s ment to U.S. Memorandum prosecutions fusing of civil- to entertain Interlocutory *4 Opposition United States’ offenders, impermissi- court ian (Jan. 10, 1985). Appeal prosecutorial bly with discretion. interfered Attorney In the met December argues that opposition, In the district court possibili- with court officials to discuss the impermissi- policy Air Force constitutes the ty changing policy. the The Air Force prosecution, selective and that the court ble punished military traffic offenders exclu- authority the supervise inherent retains UCMJ, sively pros- under the but justice. desired of criminal We re- administration civilian in ecute traffic offenders district verse remand. change court. When the court declined to policy, Attorney its informa- the U.S. filed FACTUAL BACKGROUND charging a tions federal district court the U.S. District for the driving with number civilians drunken policy re- District Hawaii established a on an Air installation in violation of Force lating to offenses on mili- traffic committed 291-4, Hawaii Rev.Stat. a federal offense § tary other federal enclaves. Un- bases and Act, the Assimilative Crimes policy, civilians who commit traffic der Acting in 13.1 accordance with U.S.C. § military bases referred offenses be policy, Magistrate district the court’s prosecution only if to the district court for “RE- Tokairin ordered that the cases’be military prosecuted are also offenders MANDED to the Air Force of the Office Judge explained Fong district court. Chief Judge disposition.” Staff Advocate policy the basis for the follows: government The filed “Interlocu- then an in- The court has determined it to be Appeal of the tory Pursuant to Rule 7 herently unfair for a in the serviceman Misde- Rules of for the Trial of Procedure Air Force a who commits similar offense Magistrates meanors United Before States subjected to the [to] in the a Writ of Mandamus or Alternative penal provisions as civil- same that of the Directed The Honora- and/or Prohibition handling The “in ian. Air Force house” Tokairin, Magis- ble Bert S. pro- of its own offenders often Magis- trate for the District of Hawaii.” adjudication. non-criminal vide^] counsel, Tokairin, represented by trate discrepancy This a civil- obvious between opposition appeal. filed an to the adjudication ian of a traffic offense handling govern- the Air vio- court denied the Force the same district application lates the sense for a writ of mandamus court’s of fairness ment’s equal present appeal. Under Air treatment. the and dismissed the 1985). Lee, (D.Hawaii system Force F.Supp. the district court would defendant, Lee, charged § One Kenneth A. U.S.C. 701. The was in violation of 18 applies reentry upon military with has that its unlawful installa- indicated offenses, accept willing U.S.C. and that it §. violation of 18 and unlaw- to traffic possession jurisdiction offenses. ful of a identification card over non-traffic ap- by judge court, court first addressed merits of the made of the district could peal, appealed by and held that the Force’s differen- government or defend- law, tial treatment of civilian and traf- any provision ant under shall be prosecu- fic offenders constituted selective subject appeal to an judge to a of the tion, process. a denial of due The court app. district court.” 18 U.S.C. at application denied the for a writ of manda- Title 18 U.S.C. 3731 states in mus, finding requirements for a part:. “In appeal a criminal case writ had not been met and that issuance of United States appeals shall lie to a court of public injury. would work a Ad- the writ decision, judgment, from a or order of a dressing jurisdiction, the issue of the court dismissing an indictment or magistrate’s held that order was not information.” The issue here is whether appeal to the district court be- magistrate’s “Order of Remand” was charges cause the order did not dismiss the in fact an dismissing order the informa- the civilian defendants but rather tions. the cases tó “remanded” Force. purposes For determining ap if The court further that even “ pealability order, of an judge’s ‘the trial appealable, order were characterization of his own action affirm, cannot finding court would the order not ” control classification of the action.’ erroneous as a matter of law. Scott, government timely appeal filed a 57 L.Ed.2d (quot court, represented this court. The district Jorn, ing *5 counsel, by Answering filed an Brief. 7, 7, 547, 478 n. 91 S.Ct. n. 27 553 L.Ed.2d Harlan, J.)). (opinion 543 of The ANALYSIS court should instead focus on the effect of govern- The district court denied the ruling the placed rather than the label mandamus, application ment’s for a of writ Supply United States v. Martin Linen it. magistrate’s and held that the order was Co., 585, (5th Cir.1976), 534 F.2d 587 n. 3 appealable. similarly not The district court 564, aff'd, 430 U.S. 1349, 97 S.Ct. 51 appeal argues this court lacks (1977). L.Ed.2d 642 An order which is appellate jurisdiction. We first address “ ‘tantamount to the dismissal of an indict jurisdictional questions these before turn- appealable ment’ therefore under sec [is] ing to the merits of the claim of selective 3731, though a labeled dismissal.” prosecution. Tranowski, 668, 702 F.2d (7th Cir.1983) (quoting 670 Reviewability Magistrate’s A. The the of Esposito, 6,10 (7th Cir.1973), cert. 492 F.2d by the District Order denied, 1135, 879, 414 94 U.S. S.Ct. 38 disposing In of the informations filed — denied, cert. (1974)), L.Ed.2d 760 offenders, the civilian traffic the -, 3586, (1984). 104 884 S.Ct. 82 L.Ed.2d magistrate issued a one-sentence Order of “IT Remand: IS HEREBY ORDERED that bar, magistrate In the case at following cases are REMANDED to ruling his labeled an “Order of Remand” Judge the Air Force Office of the Staff and stated that the “cases are REMAND disposition.” Advocate for When the ED to the Air Force of the Office Staff government appeal, filed an Judge disposition.” for How Advocate judge magistrate’s held that order was ever, the term “remand” does not accurate appeal, a of that writ ly of describe the treatment mandamus was not warranted. means “to send the cases. “Remand” 7(a) sending appellate court by Rule of the Rules of Procedure for back. The court out of the Trial of Misdemeanors Before United of the cause back to the same came, having Magistrates provides part: purposes “A which it for some magistrate which, decision or order a if further action taken on it there.” Black’s 956 1979) following (5th (citing by magistrate conviction is re- 1162 ed. Dictionary
Law
viewable).
the Vir-
Amalgamated Workers Union of
Virgin Islands
v.
Oil
gin Islands
Hess
provides
1291
an
Title U.S.C. §
Cir.1973)).
540,
(3d
n. 1
F.2d
Corp., 478
appeal.
for
alternative basis
Under
Attorney initially filed
cases
these
The U.S.
1291,
“final decisions” of
district
that the
district
Given
in federal
court.
appealable
ap
are
to the courts of
not come to the district
cases did
Supreme
peal.
Court has
that the
tribunal, they
not be
could
from another
finality requirement
given
should be
a
Al-
any
other tribunal.
“remanded”
than
technical construc
practical rather
re-
though
magistrate purported to
Gillespie
tion.
v. United States Steel
Force,
cases
mand the
308, 310,
Corp., 379 U.S.
85 S.Ct.
prosecute
jurisdiction these
Force had no
(1964).
A final decision is
in a
court.
civilian traffic offenders
litigation
generally one which ends
267,
258,
Parker, 395
O’Callahan
nothing more for the court to do.
leaves
1687,
L.Ed.2d 291
States,
324 U.S.
Catlin United
was
magistrate’s remand order
L.Ed. 911
65 S.Ct.
of the informations.
in effect a dismissal
Weingartner v. Union Oil Co. of Califor
thereby
government
foreclosed
was
Cir.1970),
nia,
(9th
431 F.2d
cert.
prosecuting
in federal court.
from
the cases
denied,
459, 27
dismis
The order was “tantamount
(1971). Similarly,
[a]
L.Ed.2d
an order
sal,”
therefore had it been issued
effectively
party
sends
out of court
which
appeal-
it
have been
judge,
would
appealable. Herrington
County
Tranowski,
appeals.
court of
able
(9th Cir.1983).
Sonoma,
F.2d
by a
Having
at 670.
been issued
if
appeal
purposes
A decision is final
appealable to the
magistrate,
it was thus
appeal
obtaining
is the
method
7(a)
of the Rules
Rule
Jury Proceedings,
re
review.
Grand
Procedure
the Trial Misdemeanors
(6th Cir.),
F.2d
cert. dis
Magistrates.
Before United States
missed,
*6
Reviewability
the
B. The
District
of
bar,
case
the district
In the
at
Denying the Writ
Judge’s Decision
effectively
the
judge’s decision
terminated
Appeal
Dismissing the
litigation, sending
parties
district court
the
above,
U.S.C.
As discussed
appeal
out of federal court. An
appeal a
permits
government
the
§
government’s
is the
avenue
court
dismissing
order
an informa
“re
obtaining
magistrate’s
of
review
order,
judge denied
In his
the district
tion.
judge’s
mand” of the cases and the district
government’s application for a writ
appeal. Section 1291 thus
dismissal of the
government’s
dismissed the
mandamus and
jurisdictional basis for
provides a second
magistrate’s
appeal. Like
“Order
appeal.
Remand,”
ruling effec
judge’s
bases,
government
To cover
also
all
from
tively
government
foreclosed
may
juris-
assume
suggests that this court
offenders in federal
prosecuting the civilian
Act,
All
the Writs
28.U.S.C.
diction under
is,
appeals
appeal
An
to the court
court.
1651(a),
treating
appeal
peti-
a
§
therefore,
proper under
See Unit
We need not
for a
of mandamus.
writ
(1st
25,
Forcellati,
v.
610 F.2d
ed States
that issue.
reach
Cir.1979)(appeal
from
will lie
conviction),
affirming
judgment
a
The District Court’s Claim Selec-
C.
denied,
445 U.S.
100 S.Ct.
rt.
ce
tive Prosecution
unjustifiable standard such reli- cial system and exclusive military jus- ” classification,’ gion, arbitrary or other tice, require is too obvious to extensive including protected the exercise of statu- discussion; military organization no can tory rights. and constitutional discipline function without strict and reg- (citations omitted). Id. imper To establish unacceptable ulation that would be in a prosecution, selective setting____ missible defendant similarly must show others situated prosecuted have not been and that special status of the has prosecution impermissible is based on an required, the Constitution has contem- Wayte, motive. created, plated, Congress has and this — (9th. Cir.1983), aff'd, long recognized systems has two
-, justice, to some parallel: extent one military person- for civilians and one for In the case at bar it is not the defendant nel. but rather the district court which makes prosecution.
the claim of selective Without Wallace, Chappell any raising defense motion a claim of selec- 303-04, 2362, 2365, 2367, *7 prosecution, magistrate tive and the (1983). Military L.Ed.2d personnel judge sponte district sua refused to enter- charged military with offenses on a instal judge tain these cases. The district subject military jurisdiction lation are to that “the distinction between treatment of courts-martial. Rel may by and be tried military personnel sought civilians and now Commandant, ford unsupported by any the Air Force is (1971). Civil justifiable contrary basis and is to the De- ians, however, military are not to partment policy of Defense for achieve- Parker, jurisdiction. O’Callahan impartial judicial ment of determinations.” 89 S.Ct. statement, making eonclusory this how- Covert, Reid v. L.Ed.2d 291 ever, judge analyze the district failed to 1, 40-41, 1222, 1242-43, requisite prosecu- two elements of selective (1957). L.Ed.2d 1148 tion. military’s special The status and Supreme discipline support effective the Air
The
Court has stated:
need for
the district
right
punish military traffic of We REVERSE
court’s dismis-
Force’s
government’s appeal
despite the
sal of
from
the UCMJ
fact
fenders under
military
prosecute
also
ci
“Order of Remand.” We RE-
cannot
that
sup
facts
MAND the cases
under the UCMJ. These
court to
vilians
military
informations
for
port
that
and civil
reinstate the
and
further
the conclusion
“similarly
proceedings
opinion.
with this
not
situ
consistent
ian traffic offenders are
“people in
They are not
similar
ated.”
SKOPIL,
Judge, concurring,
Circuit
Attorney
circumstances.” See
General of
Inc.,
People,
v. The Irish
agree
possess appellate jurisdiction
I
we
(D.C.Cir.1982),
cert. de
under either 18 U.S.C. 3731
or 28
§
nied,
agree
I
also
U.S.C.
there
prong
The first
of the
impermissible
prosecution
was no
selective
impermissible
for
selective
two-prong
Nevertheless,
test
in
I
sepa-
these cases.
write
prosecution is therefore
met.
my
rately to voice
concern that
the Air
refusing
policy
per-
Force’s
to refer its
proof
prong, requiring
The second
in
prosecution
sonnel for
federal court vio-
prosecution
an
was based on
un
that the
spirit Department
lates at least
race, religion,
as
justifiable standard such
policies
Defense
and creates an unfortu-
arbitrary
such
classification
or other
impression
unnecessary disparate
nate
penalize
of constitutional
desire
exercise
military
civilians
treatment between
rights, is
satisfied.
likewise not
personnel accused of identical crimes.
policy indicates that the sole criteri
Force’s
1980, Department
deciding
prosecute
of Defense In-
on
whether
Until
struction,
(Nov. 7, 1978)
Inst.
or in federal court was
of
DoD
6055.4
the UCMJ
-
provided
or a
that all traffic violations occur-
fender’s status
either
civilian
ring
military
must be re-
military
member. The distinction
on
installations
service
magistrate
or
personnel
ferred to United States
to a
between
magistrate.
“unjustifiable
nor
or
An amendment
standard”
an
state
local
neither
Rather,
provided that
“arbitrary
policy
it arises
to that
such referrals
classification.”
military’s
policy
status and
made.
amended
never-
special
from the
need
Army,
such
are
discipline.
fact that
theless makes clear that
referrals
impartial judicial
“in
Corps prosecute all traf
the interest of
Navy, and Marine
made
in
court does
in
and effective law enforce-
fic offenders
district
determination
(amended
policy
treating
the Air
DoD Inst. 6055.4
June
validate
Force’s
ment.”
directive,
1980).
the Air
differently.
Despite civilian and
offenders
impermissible
personnel
no
Force has decided its
should be
There was thus
motive
exclusively
pros punished
under the Uniform
involved the
Force’s decision
Reg.
Military
See AF
in district court.
Code
Justice.
ecute
civilians
(Nov. 1, 1982). I
110-15
share the district
empha-
in its
The district court
decision
appears to
no
concern that there
court’s
potential discrepancy
penalties
sized the
justifiable
for that decision. See
basis
imposed
civilian and
offenders
Lee,
F.Supp.
The court
two different tribunals.
ex-
(D.Hawaii 1985).
pressed
that
prosecuted
concern
civilians
fines,
recognized
pow
have
court often incur
increased We
broad
premiums,
regulate civilian life
suspen-
possess
insurance
license
ers
*8
large part inapplicable
to the
sion,
personnel might
may
while Air Force
es-
be
military.
Army,
adjudication completely.
cape criminal
Watkins United
Cir.1983),
687,
(9th
citing
However,
military’s
special
need for
721 F.2d
690
296,
Wallace, 462 U.S.
logically encompasses
right Chappell
discipline
penalties,
they
impose
its own
whether
S.Ct.
regulated by
Military
life are
harsher or more lenient than
and civilian
be viewed as
distinct.
justice, parallel but
imposed
systems
civilians.
two
on
those
Watkins,
Nevertheless,
requires report the Air Force to to the host moving
state all violations and infractions “statutory
of motor vehicle laws if authori-
ty recipro- exists within the host state for suspension driving
cal and revocation of
privileges.” explains The Air Force it is technically required report because TATUM, Plaintiff-Appellant, James L. incompatibility between the state and military “point” systems. words, In other CHRISTENSEN, Robert Force contends that because there Defendant-Appellee. symmetry does not exist between point systems, and state the Air Force re- 85-5790, Nos. 85-6132. provide reports fuses to the state with Appeals, by military personnel traffic violations Ninth Circuit. spe- base. I find the Air Force’s rationale Additionally, Army, Navy cious. Submitted Feb. 1986.* “incompatibility” Marines have solved this April Decided by simply agreeing point sys- to the state’s tem. dispute
I do not there exists concurrent
jurisdiction of federal and
* 34(a); 3(f). panel unanimously agrees Fed.R.App.P. This that this case is ment. 9th Cir.R. appropriate argu- for submission without oral