Hardemon v. City of Boston

First Circuit

Hardemon v. City of Boston

CourtCourt of Appeals for the First Circuit

DecidedMay 12, 1998

Docket97-2010

StatusPublished

This text of Hardemon v. City of Boston (Hardemon v. City of Boston) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hardemon v. City of Boston, (1st Cir. 1998).

Pincite

Opinion

USCA1 Opinion

United States Court of Appeals
For the First Circuit
____________________

No. 97-2010

JOSEPH HARDEMON,

Plaintiff, Appellant,

v.

CITY OF BOSTON,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]
[Hon. Joyce L. Alexander, U.S. Magistrate Judge]
____________________

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

____________________

Richard J. Fallon for appellant.

Kevin S. McDermott, Assistant Corporation Counsel, City of
Boston Law Department, with whom Merita A. Hopkins, Corporation
Counsel, and Christian Na were on brief for appellee.

____________________

May 8, 1998

____________________

Per Curiam. In this diversity jurisdiction case,
plaintiff-appellant John Hardemon appeals from an adverse decision
of a tribunal of the Boston Police Department (BPD). Defendant-
appellee is the City of Boston. In order to understand the present
posture of the case, it is necessary to follow its procedural path.
In October of 1988 Hardemon was a recruit police officer
at the Boston Police Academy. He was discharged from the academy
because of unsatisfactory character and failure to adhere to the
standard of performance required of Boston Police officers.
Hardemon sued the City in January of 1989 in the Massachusetts
Superior Court alleging breach of contract, racial discrimination,
libel, reckless infliction of emotional distress, invasion of
privacy and due process violations by the BPD. The case was
removed to the United States District Court for the District of
Massachusetts in February, 1989.
The only claim left extant for trial was a denial of
substantive due process because of the failure of the BPD to advise
Hardemon of his post-termination right to appeal. All the other
claims were waived or found by the district court to be not
triable.
In July 1992, a jury found that Hardemon had not been
informed of his right to a post-termination appeal hearing. The
district court then issued an order which in pertinent part states:
1. That, within sixty days of the date of
this order, the City of Boston shall petition
the Massachusetts Criminal Justice Training
Council to hold a hearing to consider: (a)
whether Joseph Hardemon was properly
dismissed; and (b) if so, whether he ought to
be reinstated at the first available
opportunity.

Pursuant to the court's order a BPD disciplinary hearing
was held in February 1996 before a tribunal. The tribunal decided
that the dismissal was justified and supported by a preponderance
of the evidence. Hardemon sought judicial review pursuant to Mass.
Gen. Laws ch. 249, 4 (West, 1988), which is entitled "Action in
the nature of certiorari." The parties agreed to have the matter
tried before a magistrate judge. She found that there was no legal
error in the tribunal's decision; an opinion issued on July 23,
1997.
Prior to her decision on the merits, the magistrate judge
denied the City's motion to dismiss for lack of federal
jurisdiction.
There are two issues before us: jurisdiction, and
whether the BPD tribunal erred as a matter of law in not accepting
as an exhibit a letter of recantation by the woman who brought the
initial complaint against Hardemon.
Jurisdiction
Initially we were tempted to bypass the jurisdictional
issue because the City easily prevails on the merits. See Rojas v.
Fitch, 127 F.3d 184, 187 (1st Cir. 1997), petition for cert. filed,
(U.S. Mar. 18, 1998) (No. 97-1550); Institut Pasteur v. Cambridge
Biotech Corp., 104 F.3d 489, 492 (1st Cir.), cert. denied, 117 S.
Ct. 2511 (1997); Hachikian v. FDIC, 96 F.3d 502, 506 n.4 (1st Cir.
1996); United States v. Parcel of Land with Bldg., App. and Imp.,
928 F.2d 1, 4 (1st Cir. 1991). The Supreme Court, however, has
recently issued a decision in which a plurality disapproves such an
approach. See Steel Co. v. Citizens For A Better Environment, 118
S. Ct. 1003, 1012 (1998). The various opinions in the case, read
as a whole, are not entirely clear as to whether (or to what
extent) Steel Co. undermines our earlier practice. In all events,
having noted the red flag, we see no need in this case to test the
outer limits of the Court's tolerance, and, thus, we turn to the
jurisdictional issue.
At the outset we note that diversity of citizenship is
not questioned. Hardemon was a resident of Baltimore, Maryland, at
the time the complaint was filed. The focus of the City's attack
on jurisdiction is the "amount in controversy." The City argues
that Hardemon's affidavit filed in response to the City's motion to
dismiss for lack of jurisdiction failed, as a matter of law, to
establish the requisite $50,000 amount in controversy. The City
argues that the district court erred in its reliance on Department
of Recreation and Sports of Puerto Rico v. World Boxing Ass'n, 942
F.2d 84 (1st Cir. 1991), for its finding that Hardemon's affidavit
sufficed to meet the "amount in controversy" requirement. (The
present requirement is $75,000; at the time the complaint was filed
the amount was $50,000.)
We reject this argument. There is no doubt that the
amended complaint met the "amount in controversy" requirement. The
pertinent paragraphs of the affidavit state:
6. As a result of the wrongful termination, I
have lost wages and fringe benefits, including
but not limited to vacation pay, medical
insurance coverage, tuition benefits and
separation benefits.

7. My recollection is that my monthly salary
was approximately $1,980 while I was at the
Academy.

8. It is my belief that if I had been
graduated from the Academy and had become a
full fledged police officer, that my salary
would have been increased substantially but
that in any event, I would have been earning
no less than the $1,980 which I earned monthly
while at the Academy.

9. Based on the itemized losses described
above, the total value of the financial loss
incurred as a result of the termination,
exceeds $50,000.

World Boxing Ass'n, 942 F.2d 84, was an action for
declaratory judgment. We pointed out that in such an action the
amount in controversy is measured by the value of the object of the
litigation. We held that, "[t]he amounts actually mentioned in the

Free access — add to your briefcase to read the full text and ask questions with AI

USCA1 Opinion

United States Court of Appeals

For the First Circuit

____________________

No. 97-2010

JOSEPH HARDEMON,

Plaintiff, Appellant,

v.

CITY OF BOSTON,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

[Hon. Joyce L. Alexander, U.S. Magistrate Judge]

____________________

Before

Torruella, Chief Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

____________________

Richard J. Fallon for appellant.

Kevin S. McDermott, Assistant Corporation Counsel, City of

Boston Law Department, with whom Merita A. Hopkins, Corporation

Counsel, and Christian Na were on brief for appellee.

____________________

May 8, 1998

____________________

Per Curiam. In this diversity jurisdiction case,

plaintiff-appellant John Hardemon appeals from an adverse decision

of a tribunal of the Boston Police Department (BPD). Defendant-

appellee is the City of Boston. In order to understand the present

posture of the case, it is necessary to follow its procedural path.

In October of 1988 Hardemon was a recruit police officer

at the Boston Police Academy. He was discharged from the academy

because of unsatisfactory character and failure to adhere to the

standard of performance required of Boston Police officers.

Hardemon sued the City in January of 1989 in the Massachusetts

Superior Court alleging breach of contract, racial discrimination,

libel, reckless infliction of emotional distress, invasion of

privacy and due process violations by the BPD. The case was

removed to the United States District Court for the District of

Massachusetts in February, 1989.

The only claim left extant for trial was a denial of

substantive due process because of the failure of the BPD to advise

Hardemon of his post-termination right to appeal. All the other

claims were waived or found by the district court to be not

triable.

In July 1992, a jury found that Hardemon had not been

informed of his right to a post-termination appeal hearing. The

district court then issued an order which in pertinent part states:

1. That, within sixty days of the date of

this order, the City of Boston shall petition

the Massachusetts Criminal Justice Training

Council to hold a hearing to consider: (a)

whether Joseph Hardemon was properly

dismissed; and (b) if so, whether he ought to

be reinstated at the first available

opportunity.

Pursuant to the court's order a BPD disciplinary hearing

was held in February 1996 before a tribunal. The tribunal decided

that the dismissal was justified and supported by a preponderance

of the evidence. Hardemon sought judicial review pursuant to Mass.

Gen. Laws ch. 249, 4 (West, 1988), which is entitled "Action in

the nature of certiorari." The parties agreed to have the matter

tried before a magistrate judge. She found that there was no legal

error in the tribunal's decision; an opinion issued on July 23,

1997.

Prior to her decision on the merits, the magistrate judge

denied the City's motion to dismiss for lack of federal

jurisdiction.

There are two issues before us: jurisdiction, and

whether the BPD tribunal erred as a matter of law in not accepting

as an exhibit a letter of recantation by the woman who brought the

initial complaint against Hardemon.

Jurisdiction

Initially we were tempted to bypass the jurisdictional

issue because the City easily prevails on the merits. See Rojas v.

Fitch, 127 F.3d 184, 187 (1st Cir. 1997), petition for cert. filed,

(U.S. Mar. 18, 1998) (No. 97-1550); Institut Pasteur v. Cambridge

Biotech Corp., 104 F.3d 489, 492 (1st Cir.), cert. denied, 117 S.

Ct. 2511 (1997); Hachikian v. FDIC, 96 F.3d 502, 506 n.4 (1st Cir.

1996); United States v. Parcel of Land with Bldg., App. and Imp.,

928 F.2d 1, 4 (1st Cir. 1991). The Supreme Court, however, has

recently issued a decision in which a plurality disapproves such an

approach. See Steel Co. v. Citizens For A Better Environment, 118

S. Ct. 1003, 1012 (1998). The various opinions in the case, read

as a whole, are not entirely clear as to whether (or to what

extent) Steel Co. undermines our earlier practice. In all events,

having noted the red flag, we see no need in this case to test the

outer limits of the Court's tolerance, and, thus, we turn to the

jurisdictional issue.

At the outset we note that diversity of citizenship is

not questioned. Hardemon was a resident of Baltimore, Maryland, at

the time the complaint was filed. The focus of the City's attack

on jurisdiction is the "amount in controversy." The City argues

that Hardemon's affidavit filed in response to the City's motion to

dismiss for lack of jurisdiction failed, as a matter of law, to

establish the requisite $50,000 amount in controversy. The City

argues that the district court erred in its reliance on Department

of Recreation and Sports of Puerto Rico v. World Boxing Ass'n, 942

F.2d 84 (1st Cir. 1991), for its finding that Hardemon's affidavit

sufficed to meet the "amount in controversy" requirement. (The

present requirement is $75,000; at the time the complaint was filed

the amount was $50,000.)

We reject this argument. There is no doubt that the

amended complaint met the "amount in controversy" requirement. The

pertinent paragraphs of the affidavit state:

6. As a result of the wrongful termination, I

have lost wages and fringe benefits, including

but not limited to vacation pay, medical

insurance coverage, tuition benefits and

separation benefits.

7. My recollection is that my monthly salary

was approximately $1,980 while I was at the

Academy.

8. It is my belief that if I had been

graduated from the Academy and had become a

full fledged police officer, that my salary

would have been increased substantially but

that in any event, I would have been earning

no less than the $1,980 which I earned monthly

while at the Academy.

9. Based on the itemized losses described

above, the total value of the financial loss

incurred as a result of the termination,

exceeds $50,000.

World Boxing Ass'n, 942 F.2d 84, was an action for

declaratory judgment. We pointed out that in such an action the

amount in controversy is measured by the value of the object of the

litigation. We held that, "[t]he amounts actually mentioned in the

record for airfares and hotel bills and for the services of a

handwriting expert have nothing to do with the value of the right

the Commission is seeking to vindicate in this lawsuit." Id. at

88.

The instant case is not a declaratory judgment action.

It is an action alleging wrongful termination. Secondly, the

magistrate judge did not cite to World Boxing Ass'n for the

proposition that, "Hardemon's affidavit alleging losses in backpay

satisfied his burden of demonstrating the requisite jurisdictional

amount." City's Br. at 12. We quote from the opinion below:

As a general matter, plaintiff's burden of

proving it meets the required amount in

controversy is satisfied by simply alleging

the amount in the complaint. Dep't of

Recreation & Sports of Puerto Rico v. World

Boxing Ass'n, 942 F.2d 84, 88 (1st Cir. 1991).

However, there is long standing precedent that

once diversity jurisdiction has been

challenged, the burden shifts from merely

averring the amount in controversy to

substantiating the amount in controversy. SeeGibbs v. Buck, 307 U.S. 66, 72 (1939);

Frederick v. ConAgra, 713 F. Supp. 41, 47 (D.

Mass. 1989). When faced with a motion to

dismiss, plaintiff has the burden of proving

jurisdiction "by showing that it does not

appear to legal certainty that its claim is

for less than the jurisdictional amount."

Frederick, 713 F. Supp. at 47. Plaintiff may

meet this burden by amending the pleading or

by submitting affidavits which sufficiently

substantiate the alleged amount in

controversy. Kenney v. Hoover, 909 F. Supp.

34, 36 (D.Mass. 1995).

(Emphasis added.)

World Boxing Ass'n was cited only for the proposition

that the "amount in controversy" may be satisfied by alleging it in

the complaint. It was not the court below that erred in relying on

World Boxing Ass'n but counsel for the City who misread the

district court's opinion. This error is compounded by the City's

conversion of a statement in a declaratory judgment case about the

value of the right sought into a general diversity rule that what

matters is the value of the right sought, not the amount of damages

claimed. Based on this infirm premise the City argues that,

"Hardemon's allegation of loss of back pay had nothing to do with

the right he was seeking to vindicate in his complaint to the

district court, to wit, the right to clear his name." City's Br.

at 13. But there is nothing in the complaint asserting Hardemon's

right to clear his name. Counts one through fourteen were factual

assertions and background information. There is no mention in any

of these counts that Hardemon wanted to clear his name. We quote

the balance of the complaint:

15. The actions of the Panel were arbitrary,

capricious, were not supported by substantial

evidence and relied heavily on hearsay

evidence which was not supported by competent

corroborative evidence.

16. The Panel did not have any written

guidelines or objective criteria which would

have assisted it in reaching a fair and

impartial decision based on the evidence.

Instead, the members of the Panel were

influenced by bias in favour of the defendant,

which is the employer of all of its members.

17. The decision does not reflect a careful

and impartial weighing of the evidence and is

arbitrary, capricious and against the evidence

and the substantial weight of the evidence.

WHEREFORE, plaintiff prays that an order

issue from this Honorable Court to the

defendant City of Boston, directing it to

certify to this court, a true and complete and

perfect record of all proceedings before the

Panel, together with a transcript of the

evidence and all exhibits and findings of fact

made by the Panel, to the end that any errors

of law may be determined and corrected by this

court and to enable the court to determine

whether the decision was warranted as a matter

of law upon the evidence.

Plaintiff further prays that the decision of

the Panel and of the defendant City of Boston

be quashed and reversed, that this court order

the defendant to admit the plaintiff to the

next available training class at the Academy

and grant such other and further relief as may

appear equitable and appropriate.

The City cites to a case holding, inter alia, that "a

nonpermanent municipal employee is entitled to a termination

hearing for the sole purpose of clearing his name and thereby

restoring his reputation." Grant v. Police Comm'r of Boston, 387

N.E.2d 178, 180 (Mass. App. Ct. 1979). The quote by the City from

Grant is taken out of context. The pertinent part of the opinion

reads as follows:

Termination alone is not sufficient basis

for a claim of a denial of due process

rights. . . . Due process affords protection

against damage to a person's standing and

associations in the community, and against

actions by an employer which foreclose

employment opportunities because these are

liberty interests within the reach of the

Fourteenth Amendment. . . . When these

liberty interests have been violated, a

nonpermanent municipal employee is entitled to

a termination hearing for the sole purpose of

clearing his name and thereby restoring his

reputation. A violation occurs if an employer

"creates and disseminates a false and

defamatory impression about the employee in

connection with his termination . . . ." Coddv. Velger, 429 U.S. 624, 628, 97 S. Ct. 882,

884, 51 L. Ed. 2d 92 (1977). However, because

of the limited purpose of the hearing to clear

one's name, it is a condition precedent to the

hearing that the employee deny the charges.

"If he does not challenge the substantial

truth of the material in question, no hearing

would afford a promise of achieving that

result for him." Codd, 429 U.S. at 627-28, 97

S. Ct. at 884. . . . The plaintiff's failure

to challenge the charges suggests that he does

not claim that the defendant created false

information.

Not only must there be a creation of false

information by the employer, there also must

be a dissemination of that information by the

employer before there is a depreciation of an

employee's liberty interests. . . . The

protection of liberty interests is violated

neither by the presence of adverse information

in a personnel file, standing alone . . . ,

nor by an involuntary termination that has

made future employment difficult to obtain

. . . .

Id. at 180 (citations omitted).

The analysis in Grant was based on a claim that the

termination at issue offended substantive due process because it

"damage[d] [Grant's] standing and associations in the community,

and . . . foreclose[d] employment opportunities." Id. It was

"[w]hen these liberty interests have been violated," id., that "a

nonpermanent employee is entitled to a termination hearing for the

sole purpose of clearing his name and thereby restoring his

reputation," id. Hardemon, however, alleged a procedural due

process violation on the basis of the City's failure to inform him

of his right to appeal the termination decision. He was not

seeking to clear his name on the basis of the liberty interests

recognized in Grant. Grant is of no avail to the City.

There is an additional reason why Hardemon's affidavit

relying on back pay to meet the amount in controversy requirement

was sufficient. After the jury verdict finding a substantive due

process violation, the district court ordered the City to hold a

hearing to consider whether Hardemon was properly dismissed "and

(b) if so, whether he ought to be reinstated at the first available

opportunity." Obviously, if Hardemon were reinstated he would be

entitled to back pay.

We affirm the holding of the district court that

Hardemon's affidavit sufficed to meet "the amount in controversy"

jurisdictional requirement.

In the district court, the City argued that a state

statute vesting jurisdiction in the Massachusetts Superior Court of

this type of action precluded federal jurisdiction. The City has

wisely decided not to pursue this challenge on appeal.

The Merits

The only substantive issue before us is whether it was

legal error for the BPD tribunal to refuse to accept as an exhibit

a recantation letter from Agnes Cansler dated August 31, 1990, and

whether such refusal resulted in substantial prejudice to Hardemon.

Unlike the district court we are not called upon to determine

whether the BPD tribunal's decision should be affirmed. The

magistrate judge affirmed the tribunal's refusal to reinstate

Hardemon to the Boston Police Department, ruling that, "there was

no legal error in the Tribunal's decision." Our focus is narrowed

to the sole question of whether it was legal error for the BPD

tribunal to refuse to admit the letter of recantation into

evidence. Hardemon's appeal is based solely on this issue.

In reviewing the tribunal opinion, the magistrate judge

stated:

Ms. Cansler's letter was not admitted because

its authentication was not established.4

Further, there was no evidence that the letter

was ever received by the legal department of

the Boston Police and thus could not be

considered during the investigation.

The footnote states:

4 Plaintiff contends that Ms. Cansler's

whereabouts could not be determined at the

time of the hearing.

These rulings and findings, if so they be, are not given any

deference by us.

The relevant facts are as follows. Close to midnight on

July 11, 1988, Recruit Officer Hardemon went to a house in Jamaica

Plain, Massachusetts, to support his friend Timothy Ellerbee in a

dispute with in-laws. The dispute degenerated into name-calling

and rock throwing. Agnes Cansler armed herself with a baseball bat

to defend herself from the Ellerbees. Hardemon took the baseball

bat away from her. On July 13, Agnes Cansler filed a complaint

with the police department, which stated:

About 7 p.m. there was a family dispute

involving inlaws [sic] at the home of the

complainant, which was responded to by Area E

officers. As a result of that fight, Recruit

Officer Joe Hardemon, best friend of one of

the inlaws involved earlier, Tim Ellerbe, of

2031 Columbus Ave., came to Ms. Cansler's home

with approximately 9 other B/Ms. These young

men came to continue the fight started

earlier. After James Ellerbe (Tim's brother)

pushed and hit Ms. Cansler's mother, Thelma

Harris, 61 years, Ms. Cansler picked up and

was swinging a bat in self-protection, but she

did not hit anyone with it. Some members of

the group with Recruit Officer Hardemon were

throwing bottles. Recruit Hardemon was

encouraging the group to attack Ms. Cansler by

shouting, "Why don't you Bumrush her!!!" A

neighbor called the police and several

officers from Area E responded. A black

officer spoke with Recruit Hardemon and told

him that he would see him at the Academy.

Ms. Cansler feels that Recruit Hardemon

should not have joined into this family

problem and should definately [sic] not have

taken an active part in the fight, but, as a

police officer, should have tried to calm or

prevent the incident.

(Note: as a result of this fight, Ms.

Cansler's daughter, Lasanya, 16 years,

sustained a minor injury to her face. This

was inflicted by James Ellerbe.)

The letter of recantation states:

To the Legal Department of Boston Police,

I, Agnes Cansler made a complaint about Joe

Hardemon on Boylston St. Jamaica Plain on

July 12, 1988. He was not involved in that

dispute. On 7-12-88 he was coming to visit my

sister and I thought he was coming to cause

trouble with Timothy Ellerbee and Family

because they were friends.

Someone in the crowd said Bumrush Agnes and

everybody thought Joe said it but he didn't,

it was one of the Ellerbees that said it.

I just want to inform you that we are still

speaking as friends and I think he would make

a good police officer.

If you have any questions you can call me at

(617)282-5103. The address is

5 Greenmount St. #2

Dor. MA 02125

Thank You.

Agnes Cansler

Sergeant Devlin was assigned to investigate the matter.

He found that Hardemon lied about two matters concerning Hardemon's

conduct prior to the incident itself. The BPD tribunal found that

there was ample evidence that Hardemon had made untruthful

statements to Sergeant Devlin during the investigation. The

tribunal also concluded that Hardemon was improperly involved in an

altercation involving family and friends. Agnes Cansler is the

sister of Cheryl Harris who had a relationship with Hardemon and

was the mother of his twin daughters.

Our scope of review is restricted by the issue which was

framed by Hardemon: did the BPD tribunal commit legal error on

excluding the letter of recantation? Mass. Gen. Laws Ann. ch. 30,

11(2) (West 1992) provides:

(2) Unless otherwise provided by any law,

agencies need not observe the rules of

evidence observed by courts, but shall observe

the rules of privilege recognized by law.

Evidence may be admitted and given probative

effect only if it is the kind of evidence on

which reasonable persons are accustomed to

rely in the conduct of serious affairs.

Agencies may exclude unduly repetitious

evidence, whether offered on direct

examination or cross-examination of witnesses.

(Emphasis added.)

The core finding of the BPD tribunal was:

12. Based on the findings and recommendations

of the investigation, Mr. Hardemon was

terminated from the Boston Police Department

on October 6, 1988 for becoming involved in a

situation involving family and friends

regarding the events set forth in Complaint

#4273, for untruthfulness relative to his

participation in the investigation of those

events, and for conduct unbecoming a police

officer in reference to the two aforementioned

charges.

We agree with Hardemon that the Chief Hearing Officer

excluded the exculpatory letter at the hearing on the grounds of

relevance. The BPD tribunal later gave the following reasons in

writing for excluding the letter:

First, Ms. Cansler's letter was not admitted

into evidence because its authenticity could

not be established. Furthermore, there is no

proof that the addressee, the Legal Department

of the Boston Police ever received it. In

fact, when Captain Dunford was presented with

the letter on the witness stand, he stated

that he had never seen it before.

We do not agree with Hardemon that the letter was

relevant. The letter had no bearing on the findings by Sergeant

Devlin that Hardemon had lied to Devlin during the investigation of

Hardemon's conduct on the day of the incident. Nor did the letter

state that Hardemon was not present during the altercation at

Jamaica Plain. As the City correctly points out, "[t]he issue at

the hearing was whether Hardemon was properly terminated based on

the findings from that investigation, not from the allegations by

Agnes Cansler." City's Br. at 17 (emphasis added). The letter was

tangential at best to the determination that the tribunal was

making.

But even if the letter was somehow relevant, it was

worthless as evidence. A comparison between the complaint process

and the letter makes this clear. After she filed the complaint,

Ms. Cansler was questioned by the investigating police officer

about its contents. The subsequent recantation letter did not give

the investigators any opportunity to probe her new allegations.

They could not ask her in particular why she had originally made a

police complaint that she now claims was wholly false, or why her

current version of events is any more likely to be true. The

letter was simply unreliable; it was not "the kind of evidence on

which reasonable persons are accustomed to rely in the conduct of

serious affairs." Mass Gen. Laws Ann. ch 30, 11(2).

There appears to have been no effort made to have Agnes

Cansler testify at the hearing or to take her deposition for use at

the hearing.

We rule that it was not legal error for the BPD tribunal

to exclude the recantation letter from evidence.

Judgment for the defendant. No costs for either party.

- Concurring Opinion Follows -

BOWNES, Senior Circuit Judge (concurring). I write

separately because I think that the court has brushed aside the

holding of Steel Co. v. Citizens For A Better Environment, 118 S.

Ct. 1003 (1998), and its effect on our approach to difficult

jurisdictional issues in the future. The panel says that it is

"not entirely clear as to whether (or to what extent) Steel Co.undermines our earlier practice." It is entirely clear to me that

the Court has generally prohibited our prior practice of avoiding

difficult jurisdictional issues when the case could alternatively

be resolved easily on the merits in favor of the same party.

A full understanding of the Court's view on this issue

requires a close reading of Justice O'Connor's concurrence, as well

as Justice Scalia's majority opinion.

In its majority opinion, the Court noted that several

courts of appeals

find it proper to proceed immediately to the

merits question, despite jurisdictional

objections, at least where (1) the merits

question is more readily resolved, and (2) the

prevailing party on the merits would be the

same as the prevailing party were jurisdiction

denied. . . .

We decline to endorse such an approach

because it carries the courts beyond the

bounds of authorized judicial action and thus

offends fundamental principles of separation

of powers.

118 S. Ct. at 1012 (citations and footnote omitted).

Justice O'Connor, joined by Justice Kennedy, made it

clear that she joined the majority opinion, and that she explicitly

"agree[d]" with the general rule that "federal courts should be

certain of their jurisdiction before reaching the merits of a

case." Id. at 1020 (emphasis added). But then she went on to

note, "[a]s the Court acknowledges, . . . several . . . decisions

'have diluted the absolute purity of the rule that Article III

jurisdiction is always an antecedent question.'" Id. (quoting id.at 1016). Finally, Justice O'Connor explained that she was writing

separately "to note that, in [her] view, the Court's opinion should

not be read as cataloging an exhaustive list of circumstances under

which federal courts may exercise judgment in 'reserv[ing]

difficult questions of . . . jurisdiction when the case

alternatively could be resolved on the merits in favor of the same

party.'" Id. (quoting Norton v. Matthews, 427 U.S. 524, 532

(1976)).

Reading the majority and concurring opinions in Steel Co.together, there is a Supreme Court majority in support of the

general rule that "federal courts should be certain of their

jurisdiction before reaching the merits of a case." Id. at 1020

(O'Connor, J., concurring); see id. at 1012, 1016 (majority

opinion). While this general rule is perhaps not "absolute[ly]

pur[e]," the circumstances that would warrant an exception to the

rule seem extremely rare. See Steel Co., 118 S. Ct. at 1014-15

(majority opinion); id. at 1020 (O'Connor, J., concurring). It

appears that Justices O'Connor and Kennedy would dilute the general

rule only to the extent that they believe the cases discussed in

the majority opinion, id. at 1014-15, do not exhaust the rare

circumstances in which an exception would be appropriate, id. at

1020.

I do not know what the panel expects to achieve by

casting doubt on the holding and effect of Steel Co. As Court of

Appeals judges we have a duty to follow it, not avoid it.

Cite This Page — Counsel Stack

Bluebook (online)

Hardemon v. City of Boston, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardemon-v-city-of-boston-ca1-1998.

Opinion

Related

Cite This Page — Counsel Stack