County of Monroe v. State of Florida

• Decision Date: 04 May 1982
• Docket Number: D,No. 738,738
• Citation: 678 F.2d 1124
• Parties: COUNTY OF MONROE, Plaintiff-Appellant, v. STATE OF FLORIDA and State of New York, Defendants-Appellees, and Metropolitan Dade County, Florida, Defendant. ockets 79-7745, 81-7229.
• Court: U.S. Court of Appeals — Second Circuit

Page 1124

678 F.2d 1124

COUNTY OF MONROE, Plaintiff-Appellant, v. STATE OF FLORIDA and State of New York, Defendants-Appellees, and Metropolitan Dade County, Florida, Defendant.

No. 738, Dockets 79-7745, 81-7229.

United States Court of Appeals, Second Circuit.

Submitted April 13, 1981.

Decided May 4, 1982.

Nira T. Kermisch, Rochester, N. Y. (John D. Doyle, County Atty., Monroe County, Rochester, N. Y., of counsel), for plaintiff-appellant.

Martin S. Friedman, Asst. Atty. Gen., Tallahassee, Fla. (Jim Smith, Atty. Gen. of State of Fla., Tallahassee, Fla., of counsel), for appellee State of Fla.

William J. Kogan, Asst. Sol. Gen., Albany, N. Y. (Robert Abrams, Atty. Gen. of State of N. Y., Jeremiah Jochnowitz, Asst. Sol. Gen., Albany, N. Y.), for appellee State of N. Y.

Before MANSFIELD, NEWMAN, Circuit Judges, and SIFTON, District Judge. ^*

MANSFIELD, Circuit Judge:

The County of Monroe in the State of New York appeals from an order of the District Court for the Northern District of New York, entered by the late Judge Harold P. Burke, dismissing for lack of jurisdiction the County's claims against the states of Florida and New York for the recovery of expenses incurred by the County in apprehending, holding and extraditing a fugitive from the State of Florida. The district court dismissed the action against the State of Florida for lack of jurisdiction and dismissed the action against the State of New York on several grounds, including failure of the plaintiff to allege any federal cause of action against the State, the State's Eleventh Amendment immunity and the lack of diversity of citizenship between plaintiff and the State. We affirm the decision of the district court as to the State of New York but reverse as to the State of Florida.

The suit arises out of the demand by the State of Florida upon the State of New York for extradition of one Jerry Michael Davis under the Federal Extradition Act, 18 U.S.C. §§ 3181 et seq. (hereinafter the "Act"). Section 3182 authorizes the executive authority of any state to make a demand of the executive authority of any other state for the return of a fugitive. The section sets forth the procedures for making that demand and places a duty on the state on which demand is made to apprehend, secure and deliver the fugitive to the demanding state. Section 3195 provides in relevant part that "(a)ll costs or expenses incurred in any extradition proceeding in apprehending, securing, and transmitting a fugitive shall be paid by the demanding authority."

On September 14, 1977, the Governor of the State of Florida, pursuant to a request from the Sheriff of Dade County, signed and properly executed a demand for the extradition of one Jerry Michael Davis who was wanted in Metropolitan Dade County. The demand was forwarded to Governor Carey of the State of New York who, on October 3, 1977, executed a warrant addressed to the Sheriff of the County of Monroe instructing the Sheriff to apprehend Davis and deliver him to a Sergeant Rencke of Miami, Florida. On November 2, 1977, Davis was duly arrested by the Rochester Police Department and placed in the Sheriff's custody. On November 8, 1977, while in the custody of the Sheriff, Davis became ill and was taken to Rochester General Hospital where he underwent major surgery. Davis remained in the hospital until December 21, 1977, and was delivered to the Florida authorities on February 3, 1978.

The County of Monroe incurred heavy expenses in its efforts to comply with Florida's demand for extradition. The cost of Davis' medical care amounted to $7,841.85, for which the County was liable since New York law requires the Sheriff to pay the medical expenses incurred by all prisoners in his custody. The County sustained the additional expenses of $7,747.14 for providing a 24-hour-a-day guard service while Davis was in the hospital. The County requested the State of New York, the State of Florida and Metropolitan Dade County to

pay the expenses of $15,588.99, but they each refused. Thereupon the County commenced this action, invoking federal jurisdiction under § 3195. On October 1, 1979, the late Judge Harold P. Burke dismissed the County's claims against the States of Florida and New York for failure to state a claim and for lack of personal jurisdiction over the State of Florida, from which the County sought to appeal. By order dated June 30, 1980, we dismissed the appeal for lack of jurisdiction, since the complaint remained outstanding against the defendant Metropolitan Dade County which was served, appeared and filed an answer, but retained jurisdiction pending the entry by the district court on remand of a certification order pursuant to Rule 54(b) of the Fed.R.Civ.P., which was signed by the district court on March 6, 1981. ¹

DISCUSSION

In order to maintain this action, the County must establish that 18 U.S.C. § 3195 creates a federal cause of action against the states of Florida and New York and, if so, that it is not barred by the Eleventh Amendment.

Although § 3195 does not expressly provide for a cause of action, one may be implied against the State of Florida under the standards announced in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Transamerica Mortgage Advisors, Inc. v. Lewis, 440 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Universities Research Ass'n v. Coutu, 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981); California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981); Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981). What must ultimately be determined is whether Congress intended to create the private remedy asserted. Transamerica, supra, 400 U.S. at 15-16, 100 S.Ct. at 245; Redington, supra, 442 U.S. at 568, 99 S.Ct. at 2485; Cannon, supra, 441 U.S. at 688, 99 S.Ct. at 1952; Texas Industries, Inc., supra, 451 U.S. at 639, 101 S.Ct. at 2066. To discern that intent we begin with the language of the statute itself. Id.

The plain language of § 3195 expressly states that the demanding authority shall pay all costs and expenses arising out of its demand for extradition. Monroe County, the entity which, in compliance with the request of the demanding authority (Florida) incurred the expenses of apprehending, securing and delivering up the fugitive, is clearly within the class of persons which the statute was designed to protect. See Cannon, 441 U.S. at 688, 99 S.Ct. at 1952. As in Transamerica, the "statutory language itself fairly implies a right to specific and limited relief in a federal court." 440 U.S. at 18, 100 S.Ct. at 246. By specifically providing that the demanding authority shall be liable for costs, § 3195 by its terms contemplates that a claim may be asserted against it by the party incurring the costs necessitated by compliance with its demand.

The legislative history of § 3195, though sparse, buttresses that view. The predecessor of § 3195 was first enacted as part of the Act of 1793 Respecting Fugitives From Justice. See Ch. 7, § 1, 1 Stat. at L. 302 (Feb. 12, 1793), which gave effect to and established the procedures for enforcing the language of Art. IV, § 2, Clause 2 of the Constitution. E.g., Innes v. Tobin, 240 U.S. 127, 130-31, 36 S.Ct. 290, 291, 60 L.Ed. 562 (1916); see 2 Moore on Extradition and Interstate Rendition, 840 et seq. (1891). Clause 2 of Art. IV, § 2 of the Constitution provides:

"A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the Crime."

Shortly after ratification of the Constitution, however, it was determined that the constitutional provision was not self-executing, since it failed to specify the authority upon whom the demand is to be made, the form of the demand, the methods to be pursued in recovering the fugitive or the liability for the costs incurred. These problems were the subject of an exhaustive report prepared by Edmund Randolph, the then Attorney General of the United States. ² The report reads in relevant part:

"To deliver up is an acknowledged Federal duty; and the law couples with it the right of using all incidental means in order to discharge it. I will not inquire here how far these incidental means, if opposed to the constitution and laws of Virginia, ought, notwithstanding, to be exercised; because McGuire and his associates may be surrendered without calling upon any public officer of that State. Private persons may be employed, and clothed with a special authority. The attorney-general agrees that a law of the United States might so ordain; and wherein does a genuine distinction consist between a power deducible from the Constitution, as incidental to a duty imposed by that Constitution, and a power given by Congress as auxiliary to the execution of such a duty? Money, indeed, must be expended; and a State may suspend its exertions until the preliminary proofs are adduced. I cannot undertake to foresee whether the expending State will be reimbursed. If the Constitution will uphold such a claim, it will, doubtless, be enforced. If it will not, it must be remembered that that instrument was adopted with perfect free will." Reprinted in 2 Moore, supra at 844-45 (emphasis added).

We know little of the legislative history of the Act of 1793 since the congressional debates of neither the Senate nor the House were then published. However, Congress responded directly to Randolph's concern about costs by expressly requiring in what is now § 3195 that the demanding state pay all costs of apprehending, securing and transmitting the fugitive. ³ Since there is no other remedy...