Opinion
Civil Action No. 01-2573 Section "T"(5)
October 16, 2001
Before this Court is a Motion to Alter or Amend Judgment by the Defendant, John Ashcroft, in his capacity as Attorney General, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. This cause came for hearing on October 10, 2001, without oral argument. The Court, having studied the legal memoranda and exhibits submitted by the parties, the record, and the applicable law, is fully advised on the premises and ready to rule
ORDER AND REASONS
A. BACKGROUND
On August 23, 2001, this Court granted the Plaintiff's Motion for a Preliminary Injunction enjoining the Defendant, John D. Ashcroft, Attorney General of the United States, his agents, employees, assigns, and all persons acting in concert or participating with him from enforcing the following provision of the plea agreement in United States v. Barbecue of New Orleans. Inc., Criminal Action No. 01-153 "T"(5):
Further, the defendant agrees that the subjects will take all reasonable steps to prohibit the introduction of infant pacifiers or any object in the shape of a pacifier, objects that glow, including but not limited to glow sticks and flashing rings, vapor rub products and vapor inhalers, dust masks or masks of any description by any person entering a concert or an event where an admission is charged or at the State Palace Theater, 1108 Canal Street, New Orleans, Louisiana 70112.United States v. Barbecue of New Orleans. Inc., Plea Agreement, page 2.
On September 7, 2001, the Defendant filed this Motion to Alter or Amend Judgment. In its memorandum in support of its motion, the Defendant addresses two issues; 1) Barbeque of New Orleans, Inc.'s Business policy is not State Action; and 2) The August 23, 2001, Order Violates Separation of Power Principles.
B. THE ACTIONS OF THE GOVERNMENT IN CONJUNCTION WITH BARBEQUE OF NEW ORLEANS, INC. CONSTITUTE STATE ACTION.
In its first argument, the Defendant correctly notes that this Court was persuaded by Carlin Communications, Inc. v. Mountain States Telephone and Telegraph Company, 827 F.2d 1291 (9th Cir. 1987), when making its decision on the Preliminary Injunction. The Defendant argues that even under the Carlin decision, the actions of the Government in conjunction with the actions of the private actor in the instant case cannot be construed as "state action" because the private actor in this case has voluntarily agreed to the restrictions set forth in the plea agreement. In support of this argument, the Defendants attached the sworn affidavit of Frank Desalvo, corporate agent and attorney of Barbeque of New Orleans, Inc., which states that Barbeque of New Orleans, Inc. had imposed the same restrictions of the plea agreement on its own, and that the corporation intends to continue these restrictions.
See Transcript of Preliminary Injunction, at page 44-45.
However, in this case, the Plaintiffs have not requested that the Court require Barbeque of New Orleans, Inc. to lift any of its self-imposed restrictions. Rather, the relief requested and granted by this Court, enjoining enforcement of designated provisions of the plea agreement inUnited States v. Barbecue, was tailored to address only the plea agreement and the state action itself. It did not address any policies privately implemented by Barbeque of New Orleans, Inc. or by the managers of the State Palace Theater.
The government's attempt to characterize Barbeque of New Orleans, Inc.'s proposal of the terms in the plea negotiations as "voluntary" is irrelevant to the question of state action in this case. As this Court has already recognized, the Supreme Court has stated that "even assuming . . . that the manager would have acted as he did independently of the existence of the ordinance"; simply by "commanding a particular result," the state has so involved itself that it could not claim the conduct had actually occurred as a result of private choice. C. THE COURT'S AUGUST 23, 2001, ORDER DOES NOT VIOLATE SEPARATION OF POWERS PRINCIPLES.
See Transcript of Preliminary Injunction at 45; Peterson v. City of Greenville, 373 U.S. 244, 248 (1963); Carlin, 827 F.2d at 1297 (quoting Peterson).
In support of its argument that the August 23, 2001, order violates the Separation of Powers Principles, the Defendant cites United States v. Cox, 342 F.2d 167 (5th Cir. 1965). In Cox, the Fifth Circuit held that a court could not compel federal prosecutors to sign a grand jury indictment and initiate prosecution. The Court reasoned that "the affixing or withholding of the signature is a matter of executive discretion which cannot be coerced or reviewed by the courts."
Cox at 172.
The holding in Cox does not suggest that officers of the executive branch cannot be enjoined from enforcing the provisions of a plea agreement. The Cox holding is limited to the affixing or withholding of a signature by a Government attorney, and therefore is inapplicable in this case.
Accordingly,
IT IS ORDERED that the Motion to Alter or Amend Judgment by the Defendant, John Ashcroft, in his capacity as Attorney General, be and the same is hereby DENIED.