CORE TERMS: election,
candidate, designee, protest, terminal, certification, yard, state
action, convention, trailer, slate, vice-president, credibility,
discharged, driver, All Writs Act, Writs Act, confidential relationship,
general election, court-appointed, post-election, unidentified,
furtherance, non-party, proceeded, delegates, return to work,
supervisor, reversal, elected
LexisNexis(R) Headnotes
Show
Headnotes
COUNSEL: LINDA IMES, New York, NY
(Leanore Barth, Adam Mitzner, Richards Spears Kibbe & Orbe, New York,
NY, of counsel), for Appellant Roadway Express, Inc.
PING C. MOY, Assistant United States Attorney for the Southern District
of New York, NY (Roger S. Hayes, United States Attorney, James L. Cott,
Assistant United States Attorney, of counsel), for Plaintiff-Appellee
United States.
PAUL ALAN LEVY, Public Citizen Litigation Group, Washington, DC, for
Appellee Leroy Ellis.
JUDGES: BEFORE: VAN GRAAFEILAND, CARDAMONE and McLAUGHLIN,
Circuit Judges: Judge Van Graafeiland writes separately under
subdivision B.
OPINIONBY: VAN GRAAFEILAND
OPINION: [*636] VAN
GRAAFEILAND, Circuit Judge:
Roadway Express, Inc. ("Roadway") appeals from the February 2, 1993
judgment of the United States District Court for the Southern District
of New York (Edelstein,
[**2] J.) and
the opinion and order incorporated therein, which invalidated the 1991
discharge of a Roadway employee named Leroy Ellis and directed payment
of $ 18,409.51 to Ellis as back wages and benefits. For the reasons set
forth in subdivision A, infra, the panel unanimously reverses. In
subdivision B, Judge Van Graafeiland, writing only for himself, sets
forth additional grounds for reversal based on his belief that the
procedure followed in the instant case violated appellant's right to due
process.
A
On June 28, 1988, the United States brought a civil RICO action against
the International Brotherhood of Teamsters ("IBT" or the "Union") and
some of its officers. The purpose of the suit, as repeatedly proclaimed
by the district court, was to rid IBT of "the hideous influence of
organized crime." Settlement negotiations were conducted and resulted
eventually in a Consent Decree aimed primarily at ensuring that the
Union's 1991 general election would be conducted in a fair, honest and
open manner. "The remedial provisions in the Consent Decree provided for
three Court-appointed officials, the Independent Administrator to
oversee its provisions, an Investigations Officer to bring
[**3] charges
against corrupt IBT members, and an Election Officer to oversee the
electoral process leading up to and including the 1991 election for
International Officers (collectively, the 'Court Officers')."
United States v. International Bhd. of Teamsters, Chauffeurs,
Warehousemen and Helpers of Am., 742 F. Supp. 94, 97 (S.D.N.Y. 1990),
modified,
931 F.2d 177 (2d Cir. 1991). n1 The Consent Decree, dated March 14,
1989, "[was] to run for a period of three years, ceasing after the IBT's
1991 elections for International Officers."
728 F. Supp. 1032, 1045.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Hereafter all citations to the decisions of this court and the
District Court for the Southern District of New York in the United
States v. IBT litigation will refer simply to volume and page number.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The 1991 general election was conducted as scheduled in December 1991,
and the results were certified by the Election Officer on January 22,
1992. Thereafter, on June 16, 1992,
[**4] the
Election Officer, responding to an election protest filed by Leroy Ellis
on September 20, 1991, held that Ellis, a successful electoral candidate
for union vice-president, had been discharged wrongfully on September
19, 1991. We hold that the Election Officer's authority to make this
decision had expired with his certification of the 1991 election results
in January.
Under § B(3)(3) of the Consent Decree, after the certification of
the 1991 election by the Elections Officer, the authority of these
three court officers ceases and their functions are taken over by
the [Independent Review Board]. On January 22, 1992, the Elections
Officer certified the 1991 election, triggering the [Independent
Review Board] phase of the Consent Decree.
No. 92-6254, slip op. at 4648 (2d Cir. July 15, 1993).
By the terms of the Consent Decree, the authority of the Elections
Officer and the Independent Administrator terminates upon
certification of the 1991 IBT election [*637]
results, except for prompt investigation of certain post-election
claims of election irregularity.
964
F.2d 180, 183.
The certification of the election results marks a point of
transition [**5] in the
Consent Decree. The termination of the Court-Appointed Officers'
authority is related to this event . . . .
803
F. Supp. 761, 768.
We reject appellees' argument that the Election Officer's authority had
not expired, which is based on their contention that because the
Election Officer did not determine Ellis' pre-election protest within
five days after he received it, as required by Article XI, 1a(4)(a) of
the Election Rules, he was entitled under Article XI, 1a(4)(b) of the
Rules to defer his ruling and treat the protest as a post-election
protest, as if it had been filed on election day. Article XI, 1b(2)
provides that "post-election protests shall only be considered and
remedied if the alleged violation may have affected the outcome of the
election." Because Ellis was elected to the vice-presidency to which he
aspired, the alleged impropriety in his discharge cannot be said to have
affected the election's outcome.
Needless to say, if, as we hold, the Election Officer acted without
authority in handing down his June 16, 1992 decision, the Independent
Administrator's purported affirmance of this decision was equally
invalid. The district court,
[**6]
therefore, erred in affirming the decision of the Independent
Administrator, and the judgment appealed from must be reversed.
B
Upon reading the Independent Administrator designee's statement in his
discussion of "PROCEDURAL SAFEGUARDS," that neither his actions nor
those of the Election Officer are circumscribed by the due process
provisions of the Federal Constitution, my reaction as a judge was one
of instinctive disbelief. In the paragraphs that follow, I will explain
why I believe my reaction was justified and why the disregard of due
process requirements herein constitutes an additional reason for
reversal.
Roadway is not La Cosa Nostra, the stated target of the government's
RICO action and the Consent Decree. It is a large interstate trucking
concern, a wholly owned subsidiary of Roadway Services, Inc., a publicly
traded company with over 6,000 shareholders. According to Moody's 1992
Transportation Manual, Roadway owns approximately 40,000 trucks,
tractors and trailers. Pursuant to the terms of its collective
bargaining agreement with IBT, Roadway has the right to discharge its
employee-drivers for cause. This is a property interest protected by the
Fifth Amendment. See
[**7]
Brock v. Roadway Express, Inc., 481 U.S. 252, 260-61, 95 L. Ed. 2d 239,
107 S. Ct. 1740 (1987).
On the night of September 18, 1991, Ellis, a Roadway driver, went to a
Burlington Northern rail yard in Cicero, Illinois to drop off one
trailer and pick up another. At about 1:45 a.m., while Robert Stein, a
Burlington Northern Terminal Manager, was leaving the terminal facility
in his car, he observed the Roadway trailer parked in the terminal yard
with the driver apparently asleep in the cab. Because trucks were not
supposed to be parked in the yard, Stein called the Assistant Terminal
Manager on his car phone and instructed him to inform Roadway of what
Stein had seen. Roadway's Driver Supervisor, with whom the Assistant
Terminal Manager talked, identified the driver as Ellis and opined that
Ellis probably was on his lunch break and would be leaving the yard
shortly. However, at approximately 3:15 a.m., Stein observed the trailer
parked in the same spot with the driver apparently still asleep. A
Burlington Northern security guard then was instructed to investigate
the matter. The guard woke Ellis and directed him to leave. Despite
Ellis' denial that he had been asleep, Roadway discharged him.
[**8] The
Government and the Independent Administrator contend that Ellis was
fired because of his campaign activities in the pending election. The
logic of this argument is questionable at best.
The Consent Decree directed that the 1991 election be conducted in three
stages: "first, at the local union level, the election of delegates
[*638] to
the international convention; second, at the convention itself, the
election of nominees by the delegates; and third, across the
international union's entire territory, the one-member, one-vote
election of the officers from among the nominees selected at the
convention."
899 F.2d 143, 144-45. The government's action was aimed at union
reform. By March 1991, sufficient delegates pledged to the candidacy of
Ron Carey, a reform candidate, had been elected in the first stage of
the election process to ensure that he and the members of his slate
would be nominated at the second stage convention to be held in June.
Carey was one of three presidential candidates nominated. Moreover, as
the date of the general election drew closer, it became apparent that
the Carey slate was gaining strength. The Carey candidates were the good
guys, the
[**9]
reformers, the seekers-after-democracy, and Ellis, as a candidate for
vice-president, was a member of that team. Ellis was a former
world-ranked heavyweight contender and a man not to be trifled with. See
Kenneth C. Crowe, Collision: How the Rank and File Took Back the
Teamsters 191 (1993). If elected to the office of vice-president, Ellis
would terminate his employment at Roadway and assume a full-time
position of authority in the Union. Under these circumstances, one
understandably might wonder why, only three months before Ellis'
election, Roadway, a legitimate business entity, would conspire with
Burlington Northern Railroad, another legitimate business entity, to
fire him.
Ellis filed grievances with a union-management grievance committee, as
provided for in Roadway's collective bargaining agreement, and also with
the NLRB and the Election Officer. Following a hearing at which Ellis
testified, the union-management committee denied his grievance. The NLRB
Regional Director, after "carefully investigating and considering" the
case, rejected Ellis' contention that he was discharged because of his
union activities, and accepted "the reasons advanced by the Employer at
the
[**10] time
of your discharge," i.e., a gross abuse of company time. The Regional
Director therefore refused to issue a complaint. The Election Officer,
however, concluded that Roadway discharged Ellis because of his union
activities as a candidate for union vice-president. This decision was
affirmed by the Independent Administrator, whose decision was affirmed
in turn by the district court. The merit of this decision was
questionable. More importantly, the manner in which it was arrived at
violated established legal principles of fair play and due process.
As above stated, the United States commenced the above-captioned action
pursuant to the civil remedies provision of the Racketeer Influenced and
Corrupt Organization Act,
18 U.S.C. § 1964. Insofar as the government is concerned, section
1964 is the civil counterpart of
18 U.S.C. § 1963, criminal RICO. "Section 1962 renders certain
conduct 'unlawful'; § 1963 and § 1964 impose consequences, criminal and
civil, for 'violations' of § 1962."
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 489, 87 L. Ed. 2d 346, 105
S. Ct. 3275 (1985). Section 1964 permits suit to be brought
[**11] by
either the government or an injured party. However, while an injured
person may receive "threefold the damages he sustains," (§ 1964(c)), in
cases such as the instant one, the government sues in its sovereign
capacity pursuant to a "compelling governmental interest" and "strong
congressional policy."
Local 1814, Int'l Longshoremen's Ass'n v. New York Shipping Ass'n, 965
F.2d 1224, 1238, 1236 (2d Cir.), cert. denied,
113 S. Ct. 406 (1992); see
United States v. Bonanno Organized Crime Family, 879 F.2d 20, 21-27 (2d
Cir. 1989).
It was in furtherance of that compelling governmental interest and
strong congressional policy that the district court adopted the Consent
Decree and has proceeded since to enforce it. See
United States v. American Cyanamid Co., 719 F.2d 558, 564 (2d Cir.
1983), cert. denied,
465 U.S. 1101, 80 L. Ed. 2d 127, 104 S. Ct. 1596 (1984). It was in
furtherance of that interest and policy that the government in case
after case has pressed for enforcement of the Decree which it had
secured, as, in fact, it is doing in the instant case. It was in
furtherance
[**12] of
that same interest and policy that the district court, urged on by the
government, has utilized the provisions of the All Writs Act,
28 U.S.C. [*639] § 1651,
to make the Consent Decree enforceable as against Roadway.
While acknowledging that the Consent Decree could not bind those who
were not parties to the settlement, see
931 F.2d 177, 185 (citing
Martin v. Wilks, 490 U.S. 755, 104 L. Ed. 2d 835, 109 S. Ct. 2180
(1989)), we have recognized that the district court could enlist the
services of the Election Officer and the Independent Administrator, as
"Court Officers", to aid it in the exercise of its jurisdiction under
the All Writs Act. Despite this recognition, however, we twice have said
that these "Court Officers" were not state actors in the constitutional
sense. See
941 F.2d at 1296 and
954 F.2d at 806-07. For several reasons, I believe that these
statements should not control our decision in the instant case.
The first case,
941 F.2d 1292, involved only the internal disciplining of union
members by the Court Officers, who were exercising
[**13]
intra-union powers delegated to them by the union's constitution as
amended, not exercising authority over an employer who was not a party
to the Consent Decree. Moreover, our statement concerning the Court
Officers' status as state actors was essentially dictum, since we
proceeded to hold that the plaintiffs' constitutional claims were
"entirely without merit."
941 F.2d at 1297.
The second case,
954 F.2d 801, unlike the first one, involved a non-party employer.
However, the panel adopted the reasoning of the panel in the first case
in holding that the Court Officers were not state actors:
"Governmental oversight of a private institution does not convert
the institution's decisions into those of the State, as long as the
decision in question is based on the institution's independent
assessment of its own policies and needs. The same reasoning applies
equally in this case."
954
F.2d at 807 (quoting
941 F.2d at 1297).
Rather than asserting that the second panel erred in relying, as did the
first panel, on the union's "independent assessment of its own policies
and needs,"
[**14] I
would treat this reasoning as inapplicable dictum and look to the
panel's actual holding which was:
We do not think that [appellant] suffered from the deprivation of
due process safeguards. . . .
Furthermore, [appellant's] claim that it was denied procedural due
process is belied by the record.
. . .
By failing to seek a stay or reversal in the district court,
[appellant] waived any due process objections that it had. . . .
Id.
Whether a person's conduct constitutes state action must be determined
on a case-by-case basis by "sifting facts and weighing circumstances."
See
Evans v. Newton, 382 U.S. 296, 299-300, 15 L. Ed. 2d 373, 86 S. Ct. 486
(1966);
Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 6 L. Ed. 2d 45,
81 S. Ct. 856 (1961);
Newsom v. Vanderbilt Univ., 653 F.2d 1100, 1113 (6th Cir. 1981).
Deciding this case on the facts presently before us, I would hold that
the conduct of the Court Officers vis-a-vis Roadway constituted state
action on the basis that the district court endowed the Officers with
"powers or functions governmental in nature."
Evans v. Newton, supra, 382 U.S. at 299; [**15] see
Shelley v. Kraemer, 334 U.S. 1, 14-15, 92 L. Ed. 1161, 68 S. Ct. 836
(1948);
Nixon v. Condon, 286 U.S. 73, 88, 76 L. Ed. 984, 52 S. Ct. 484 (1932);
Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 682, 74 L. Ed.
1107, 50 S. Ct. 451 (1930). Indeed, the Court Officers could not
have presumed to exercise the powers they did if they were not acting
"under color of law," an often used synonym for "state action." See
United States v. Price, 383 U.S. 787, 794, 16 L. Ed. 2d 267, 86 S. Ct.
1152 (1966);
Screws v. United States, 325 U.S. 91, 107-08, 89 L. Ed. 1495, 65 S. Ct.
1031 (1945). n2 However, the issue of state action is not the sole
determinative factor in the instant case.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 We note that the Election Officer summarized his report under the
heading "CONCLUSIONS OF LAW," an unusual expression for a lay person to
use.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*640] The
All Writs Act specifically requires that the district court provide
non-parties such as Roadway with procedures that are "agreeable to the
usages and principles of law." One established principle
[**16] of law
is that no person shall be deprived of his liberty or property without a
fair hearing. See
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 95 L.
Ed. 817, 71 S. Ct. 624 (1951) (Frankfurter, J., concurring).
The principle, that no man shall be deprived of his liberty or
property, except by the "law of the land," or its synonym, "due
process of law," is older than written constitutions, older even
than Runnymede; and breathes so palpably the spirit of exact
justice, that it needs no formulation in the organic law. This
principle is, however, in one form of expression or another,
incorporated into the Federal Constitution, as well as those of the
several States.
Quimby
v. Hazen, 54 Vt. 132, 138 (1881).
Moreover, the Consent Decree itself mandated that the hearing before the
Independent Administrator should be "fair and impartial," and a judicial
decree can be enforced against a non-party pursuant to the All Writs Act
only "if appropriate procedures are followed and applicable substantive
law is observed."
968 F.2d 1472 at 1476. If Roadway did not receive a fair hearing
from the Court Officers in the instant
[**17] case,
the proceedings below violated the All Writs Act and Roadway's right to
due process. See
948 F.2d 98 at 104-05.
In determining what constitutes a fair and impartial hearing, I find
Brock v. Roadway Express, Inc., supra, 481 U.S. 252, an informative
and compelling precedent. In that case, the Court reversed in pertinent
part a decision of the Secretary of Labor under section 405 of the
Surface Transportation Act of 1982,
49 U.S.C. App. § 2305, because the Labor Department's investigator
had refused to provide the employer Roadway with the names of witnesses
who assertedly supported the employee's version of events. Writing for a
four judge plurality, Justice Marshall said:
Notice of an employee's complaint of retaliatory discharge and of
the relevant supporting evidence would be of little use if an avenue
were not available through which the employer could effectively
articulate its response.
Id.
at 265.
Justices Brennan and Stevens would have gone further than the Court
plurality, who required only that the witnesses be identified so that
the
[**18]
employer could prepare a meaningful response. Both Justices would
require that where there are disputed factual questions critical to the
issue, the employer should be given an opportunity to cross-examine the
unidentified witnesses who oppose its version of the facts.
Id. at 269-70; 275-78. The position of these six Justices might
appropriately be summed up in Justice Stevens' quote from Justice
Frankfurter's concurring opinion in
Joint Anti-Fascist Refugee Comm. v. McGrath, supra, 341 U.S. at 171:
"'Secrecy is not congenial to truth-seeking.'"
481 U.S. at 277. With this brief review of the law as background, I
now summarize what happened in the instant case.
When Roadway was informed by the Election Officer on September 20, 1991
that Ellis had filed an election protest, Roadway promptly challenged
the Election Officer's jurisdiction. However, from time to time
thereafter, Roadway furnished factual information as requested by the
Regional Coordinator assigned by the Election Officer to investigate the
matter. On March 18, 1992, six months after the election protest was
filed, Roadway was
[**19]
informed by a member of the Regional Coordinator's staff that she had
testimony from a Roadway management employee that at several staff
meetings in June 1991 Roadway's relay manager, Mike Lamphere, had
expressed his opposition to the Carey slate of candidates and had
instructed his subordinates to put disciplinary pressure on Ellis. The
Regional Coordinator refused to identify the employee who furnished this
information, which Lamphere denied in a sworn affidavit. Both Ellis and
the Government concede in this court that witness identification was in
fact denied. The gross prejudice to Roadway resulting from this denial
is glaringly apparent in the report of the Election Officer.
[*641] The
Election Officer made the following factual findings concerning the
unidentified witness, upon whose testimony the Election Officer placed
"particular emphasis":
1. The witness retired from Roadway on October 25, 1991 with a
disability pension.
2. The witness has a brain tumor, and his condition is terminal.
3. The witness has no motivation for lying.
4. The witness "is no longer employed by Roadway and will not seek
reemployment by that or any other company. Given his present
physical [**20]
condition, he can have no expectation for obtaining employment or
other patronage opportunity from Mr. Ellis or the present
administration of the IBT."
5. "Given his present terminal condition, the Election Officer finds
that his only motivation is the one he gives -- wanting to come
forward with the truth before he dies."
Had Roadway been informed of the identity of this unknown witness, it
could have proven that the Election Officer's findings were without
basis in fact, indeed were based on outright falsehoods. This proof
would have shown that:
1. The witness did not resign from Roadway on October 25, 1991 with
a disability pension. He was fired on April 24, 1992 because of
chronic unexplained absences.
2. The witness did not have a fatal brain tumor, and his condition
was not terminal. A November 5, 1991 MRI scan of the witness's brain
disclosed no abnormalities whatever, the condition of the witness's
brain being described as "normal."
3. The witness had been at loggerheads with Roadway for some time
prior to the Election Officer's decision. On March 21, 1992, the
witness filed a charge with the Illinois Department of Human Rights
and the EEOC in which he [**21]
stated, among other things:
I was discriminated against and continue to be discriminated against
by the above named employer, Roadway Express ("Roadway"), and by my
supervisor Michael Lamphere ("Lamphere"), in that:
1. Since February 10, 1992, Lamphere has repeatedly refused to
permit me to return to work, despite the fact that I have supplied a
detailed medical release from my attending physician, for no other
reason than that I am the only African-American supervisor who has
protested racially discriminatory policies at Roadway.
* * *
For all these reasons, Roadway and Lamphere refused to permit me to
return to work and refused to provide any meaningful promotion
opportunity for me or for any other African-American or other
minority at Roadway.
(This charge appears to be still pending.)
4. If, as the witness swore in his EEOC challenge, he was medically
fit to return to work at Roadway, his physical condition obviously
did not preclude any expectation of employment elsewhere.
5. The witness's asserted desire to come forward with the truth
before he dies was an absurd falsehood.
If the Election Officer's above findings were true, there would have
been
[**22] no
reason to conceal the witness's identity from Roadway. Certainly the
witness would have had no reason to fear retaliation. One does not
retaliate against a dying man who has no interest in seeking employment.
The fact of the matter is that the witness was not a dying man who
harbored no grudge or vindictive feelings against Roadway.
Unfortunately, Roadway was not informed of the identity of this witness
in whom the Election Officer placed such credence until the evening of
the day preceding the hearing before the Independent Administrator. In
the Election Officer's Summary, a copy of which Roadway received on the
evening of June 23, 1992, the unidentified witness was identified for
the first time as one Wayne Johnson. Recognizing that the dispute
involved "credibility questions that are not easy to resolve," the
Election Officer stated in the Summary:
[*642]
Finally, Mr. Ellis has the benefit of unusually strong corroborating
evidence as to his claim that the real motive was Roadway's
hostility toward his political activity on behalf of the Ron Carey
slate and campaign. The testimony of former supervisor Wayne Johnson
is compelling in this regard.
* * *
The Election Officer credits [**23] Mr.
Johnson's statements over the management representatives who
contradict them.
It was doubly unfortunate from Roadway's standpoint that the Independent
Administrator hearing was not conducted before former United States
District Judge
Frederick Lacey, the
court-appointed Administrator, but was conducted by Judge Lacey's
"designee." As I have already noted, the designee commenced his
consideration of the matter with the statement that his actions were not
"circumscribed" by the due process provisions of the Constitution. This,
of course, made it easy for him to refuse to grant Roadway's request
that it be given an opportunity to submit written proof of Johnson's
lack of credibility. Completely disregarding the Election Officer's
established practice of not disclosing the names of witnesses, the
designee stated that Roadway was derelict in not challenging Johnson's
credibility at an earlier date. The designee then proceeded to accept
the Election Officer's flawed determination of Mr. Johnson's
credibility.
The designee also accepted the Election Officer's equally flawed
assertion that, because Mr. Lamphere, the terminal manager at the
Chicago Heights Roadway
[**24]
facility, had once been an assistant to a management employee at the
Burlington Northern Railroad's Cicero yard, an employee who played no
role whatever in the events concerning Ellis, a "confidential
relationship" existed between Roadway's facility and the Railroad's
facility. This demonstrated a misunderstanding of what in law
constitutes a confidential relationship. "A confidential relation exists
between two persons when one has gained the confidence of the other and
purports to act or advise with the other's interest in mind." 1 Austin
Scott, The Law of Trusts 39 (3d ed. 1967); see
Wilson-Rich v. Don Aux Assoc., Inc., 524 F. Supp. 1226, 1232 (S.D.N.Y.
1981). There is absolutely no evidence of such a relationship in the
instant case. Based upon this asserted "confidential relationship", the
designee made the wispy finding that Roadway had persuaded Burlington
Northern to join with Roadway to "set up" Ellis by letting him sleep. I
doubt very much that Judge Lacey would have applied this distorted
interpretation of the law.
The district court, which customarily has accorded great deference to
the Independent Administrator in upholding his
[**25]
decisions, has affirmed the Independent Administrator's decision in the
instant case. Because I am satisfied that Roadway did not receive from
the Election Officer and the Independent Administrator the fundamental
fairness and fair play to which it was entitled, I would hold that the
district court erred in affirming.
The reader perhaps may wonder why, since we have unanimously voted to
reverse, the writer has invested the time and effort necessary to write
additionally on his own. The answer can be found in the establishment
pursuant to the Consent Decree of an Independent Review Board to take
over the functions of the three officers whose authority terminated with
the certification of the 1991 election. See No. 92-6254, supra, slip op.
at 4648. It is reasonable to expect that the Independent Review Board
will be issuing orders in the future. When these orders affect the
rights of any person not a party to the Consent Decree, I would hope
that this court would require that the rights of that person be given
due process protection. See
Brock, supra, 481 U.S. at 258. Exercising expanded jurisdiction
under the All Writs Act is one thing. Accomplishing this result by the
[**26]
appointment of lay people who operate without regard to due process
restrictions is another.
The judgment of the district court is reversed.