ALETA A. TRAUGER, District Judge.
On December 16, 2014, the Magistrate Judge issued a Report and Recommendation ("R & R") (Docket No. 39), which recommends that (1) the Motion to Dismiss (Docket No. 20) filed by Defendant Lucien C. Geise ("Geise") be granted, and (2) the two pending Motions for Temporary Restraining Order filed by pro se Plaintiff Louie E. Johnston, Jr. ("Johnston") be terminated as moot. Johnston has filed Objections (Docket No. 40), to which Geise has filed a Response in opposition. (Docket No. 41). For the following reasons, the court will overrule the Objections, accept and adopt the R & R, grant the Motion to Dismiss, and terminate the Motions for Temporary Restraining Order as moot.
When a magistrate judge issues a report and recommendation regarding a dispositive pretrial matter, the district court must review de novo any portion of the report and recommendation to which a specific objection is made. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir.2001); Massey v. City of Ferndale, 7 F.3d 506, 510 (6th Cir.1993). Objections must be specific; an objection to the report in general is not sufficient and will result in waiver of further review. See Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995).
Johnston is a Tennessee resident. He describes himself as a "Constitutionalist Author/Historian who invested substantial personal time and resources since 2010 working with hundreds of [s]tate [l]egislators in 28[s]tates to author [l]egslation involving [d]ual [s]overeignty issues." (Docket No. 1 at p. 1.) Johnston claims to have a "Constitutionalist expert reputation with [l]egislators." (Id.) Johnston has published books entitled "THE Christian Nation Revolution, Regeneration" and "States are Sovereign ... sometimes they have to act like it" that together include a number of proposed state laws based upon theories of state resistance to federal authority. (Id. at pp. 1, 11-12.) Johnston claims to have spoken to "citizens groups in multiple states," to have appeared on "radio broadcasts nationally," and to have appeared on "television programs broadcast on multiple networks, including Fox," to speak about "God and [c]ountry, Constitutionalist content." (Id.) Johnston is not in any way a member of, or employed by, any branch of the Tennessee state government. (Id., passim.)
Geise is the Executive Director of the Fiscal Review Committee ("FRC") of the Tennessee General Assembly.
Johnston authored a piece of legislation intended to "codify[ ][s]tate grievances regarding 10 specific unconstitutional elements of the [Patient Protection and Affordable Care Act], aka Obamacare, perceived harmful to [s]tate citizens." (Docket No. 1 at p. 8.) The legislation achieved its goals by means of "state interposition," which is described by Johnston as "an honorable legal resistance to perceived [f]ederal tyranny" and "not yielding to Federal encroachment or tyranny." (Id.) Under the theory of interposition, a state "interposes" itself between the federal government and the people of that state by taking action to prevent the implementation of a federal law that the state considers unconstitutional and also criminalizes attempts to interfere with the state's interposition efforts.
Johnston's proposed legislation was introduced in the Tennessee Senate by State Senator Jim Summerville (SB2450) and in the Tennessee House by Representative Susan Lynn (HB2440). (Id. at p. 7.) The bills did not refer to Johnston. (See Docket No. 1, Exs. 1, 2, 22, 23.)
Johnston disagreed with the estimate contained in the Fiscal Note. Johnston believed that state interposition by Tennessee was "honorable" and "legal" and that Geise was ignoring "[s]tate [i]nterposition to resolve specific perceived illegal acts of the [f]ederal [g]overnment as a basic Constitutional right." (Id. at p. 21.) Johnston further believed that no financial penalties or losses were likely, given various Tennessee laws and court rulings. (Id.) In short, Johnston believed Geise (1) "[knew] better," (2) had "crossed the line personally," (3) had submitted a "fraudulent" Fiscal Note to deprive Tennessee of "the Republican form of government guaranteed by the U.S. Constitution in Article IV, Section 4," and (4) was "approv[ing] the [f]ederal invasion" of Tennessee. (Id. at pp. 9-10, 21.) Johnston advised Geise and the members of the CLC of the perceived errors in the Fiscal Note, but Geise did not correct it. (Id. at pp. 3, 5, 9-10, 18, 21-22.) Johnston and Geise both testified before the CLC. (Id. at pp. 9-10, 15.) Certain Senators called the Fiscal Note "ridiculous." (Id. at p. 15.) Johnston's bill failed in the CLC. (Id. at p. 3.)
In addition, Johnston has filed two Motions for Temporary Restraining Order in this action. The first was contemporaneously filed with the Complaint on July 3, 2014. (Docket No. 2.) In it, Johnston sought (1) the same injunctive relief requested in the Complaint concerning certification of future fiscal notes based on "possibilities or contingencies," and (2) removal of any such information from the Fiscal Note. (Id.) The second, filed on August 27, 2014, is duplicative of the first. (Docket No. 31.)
"Rule 12(b)(1) motions to dismiss... generally come in two varieties: a facial attack or a factual attack." Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir.2007). When a Rule 12(b)(1) motion contests subject matter jurisdiction factually, such as questioning whether a party has standing to sue, the court must "weigh the evidence" in order to determine whether it has power to hear the case. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.2004); IPXpharma, LLC v. Millennium Pharm., Inc., No. 3:14-cv-1545, 2014 WL 6977662, at *4 (M.D.Tenn. Dec. 9, 2014). When the facts are disputed, "[t]he district court has broad discretion to consider affidavits, documents outside the complaint, and to even conduct a limited evidentiary hearing if necessary." Cooley v. United States, 791 F.Supp. 1294, 1298 (E.D.Tenn.1992), aff'd sub nom., Myers v. United States, 17 F.3d 890 (6th Cir.1994). The court can do so without converting the motion into a motion for summary judgment. Id. When this occurs, no presumptive truth applies to a plaintiff's factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). In the end, the party asserting jurisdiction always bears the burden of establishing jurisdiction. Sun Entm't Corp. v. Music World Music, LLC, No. 3:11-00625, 2012 WL 2812681, at *1 (M.D.Tenn. July 10, 2012).
Geise makes several arguments in support of the Motion to Dismiss. First, Geise contends that the Eleventh Amendment and the doctrine of sovereign immunity bar Johnston's claims against Geise in his official capacity as a state government official. (Docket No. 21 at pp. 6-7.) Second, Geise argues that Johnston's federal claims against Geise in his individual capacity
Johnston's Response to the Motion to Dismiss begins with a lengthy discussion of the concept of state interposition and its proposed application in Tennessee. (Docket No. 30 at pp. 15.) Johnston repeatedly accuses Geise of "fraudulent" activities in connection with the Fiscal Note, and he suggests that the core issues at the motion to dismiss stage are Geise's "incontrovertible" malicious acts. (Id. at pp. 6-10.) Johnston's Response is at times incomprehensible, and he repeatedly claims to have conclusively "proved" his case. (Id. at pp. 19.) Johnston fails to address any of the primary legal arguments made in support of the Motion to Dismiss. (Id.)
In the R & R, the Magistrate Judge found that, to the extent plaintiff brings claims against Geise in his official capacity, such suits are barred by the Eleventh Amendment and the doctrine of sovereign immunity. (Docket No. 39 at p. 7.) Regarding claims against Geise in his individual capacity, the Magistrate Judge found that there is no subject matter jurisdiction because Johnston does not meet the minimum constitutional requirements of standing.
The Magistrate Judge discussed two other alleged injuries — reputational damage and loss of donations and other support — and concluded that, even if these qualified as injuries-in-fact, Johnston fails to allege facts sufficient to establish the causation and redressability aspects of standing. (Id. at p. 6.) The Magistrate Judge found this to be true because (1) the Complaint does not allege that the harm to Johnston's reputation or decreases in support were caused by the purportedly "fraudulent" aspects of the Fiscal Note, and (2) even if causation were assumed, Johnston cannot show how a favorable decision from the court would redress his injury because the interposition bill's passage would depend upon the actions of other parties. (Id.) Finally, the Magistrate Judge found that, even if Johnston had a redressable past injury, Johnston's request for injunctive relief could not survive either (1) sovereign immunity or (2) a lack of standing resulting from an absence
Accordingly, the Magistrate Judge recommended that (1) the Motion to Dismiss be granted under Rule 12(b)(1), (2) all federal claims be dismissed for lack of standing, (3) jurisdiction over Johnston's remaining state law claims be declined, and (4) the Motions for Temporary Restraining Order be terminated as moot. (Id. at p. 9.)
The Objections are far from a model of clarity. Because the plaintiff is proceeding pro se, the court liberally construes the Objections as follows.
Johnston generally objects to the Magistrate Judge's conclusions concerning standing. (Docket No. 40 at pp. 1-3.) Johnston argues that he had demonstrated injury-in-fact because he has been "denied due process to present his [b]ill for fair consideration by the state legislature, to fully vet the [b]ill in due process, to obtain debate, harness the intellectual capital of all Tennessee [s]tate [l]egislators, to produce the strongest [b]ill fully vetted to the [s]tate [l]egislators in both [h]ouses for their votes of approval or disapproval accordingly." (Id. at pp. 1-2.) Johnston contends that this injury-in-fact is "in no way diminished by the collateral injury to all citizens of Tennessee." (Id. at p. 2.) In addition, Johnston argues that both (1) "loss of book sales" and "speaking engagement credibility," and (2) lost value of "considerable personal investments" in advocating for the interposition bill, are sufficient injuries to confer standing. (Id.)
Johnston also objects to the findings of the Magistrate Judge as to lack of causation and redressability. (Id.) Johnston contends that his alleged injuries are "caused solely by the denial of due process and violation of Constitution and [c]ivil [r]ights due solely to the [f]raudulent Fiscal Note caused solely by [Geise] personally." (Id.) As to redressability, Johnston makes contradictory arguments. On the one hand, Johnston argues that his claims "do not hinge whatsoever on passage of a Bill." (Id.) On the other hand, Johnston contends that, upon his victory in this lawsuit, Tennessee legislators will "beyond any reasonable doubt" pass the interposition bill, thereby "permit[ting] redressability of injury." (Id. at 4.)
Johnston also takes issue with the Magistrate Judge's observation that it is difficult to find any reputational injury to Johnston. Johnston contends that the Magistrate Judge "ignored totally the numerous, incontrovertible, unchallenged, [sic] documentation specifically in Plaintiff Exhibits PROVING [Geise's] [f]raudulent Fiscal Note in writing to [Geise] and openly copied to every member of the [CLC], who openly agreed on video that the Fiscal Notes had no other purpose than to kill the [b]ill, denying Plaintiff due process as stated previously herein ab initio, ad infinitum."
Based upon the Objections, the court has independently considered the pending Motion to Dismiss and evaluated whether the allegations of the Complaint are sufficient to establish standing.
Article III of the Constitution gives the federal courts jurisdiction only over "cases and controversies," of which the component of standing is an "essential and unchanging part." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A party seeking to invoke the court's jurisdiction must establish the necessary standing to sue before the court may consider the merits of that party's cause of action. Whitmore v. Arkansas, 495 U.S. 149, 154, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). A plaintiff is required to show standing to sue at each stage in the litigation. Lujan, 504 U.S. at 561-62, 112 S.Ct. 2130. The standing inquiry invokes both constitutional and prudential limitations on federal court jurisdiction. Id. at 573-74, 112 S.Ct. 2130; Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To establish standing under the Constitution, a plaintiff must show that: (1) he has suffered an "injury in fact" that is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by the relief requested. Gaylor v. Hamilton Crossing CMBS, 582 Fed.Appx. 576, 579-80 (6th Cir.2014) (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; Klein v. U.S. Dep't of Energy, 753 F.3d 576, 579 (6th Cir. 2014)); see also Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). These mandatory minimum constitutional requirements — commonly known as (1) injury-in-fact, (2) causation, and (3) redressability — apply in every case.
The Supreme Court has also held that, based upon co-extensive prudential standing principles, an alleged injury that is "a generalized grievance shared in substantially equal measure by all or a large class of citizens" does not constitute a specific injury-in-fact that warrants the exercise of a federal court's subject matter jurisdiction. Warth, 422 U.S. at 499, 95 S.Ct. 2197. Thus, "a plaintiff raising only a generally available grievance about government... and seeking relief that no more directly and tangibly benefits him than it does the public at large ... does
Applying these principles, the court finds that Johnston's alleged injuries fail to meet the constitutional and prudential requirements necessary to establish standing. Johnston does not allege any action taken against him. Neither the interposition bill considered by the Tennessee legislature nor the Fiscal Note make any reference to Johnston. As such, Johnston is not himself a particular victim of the actions of which he complains. Rather, the alleged violations are generalized grievances concerning governmental actions purportedly taken to the detriment of the Tennessee citizenry. Indeed, there is no allegation sufficient to establish that the primary relief sought by Johnston — forcing Geise to correct the Fiscal Note — would address an injury to Johnston, as opposed to one of the general public.
Moreover, the Complaint as a whole fundamentally concerns the general legislative process in Tennessee. Johnston's core allegation — repeated many times throughout the Complaint and the Objections — is that
Furthermore, the fact that Johnston may have invested personal resources into working for passage of the interposition bill does not transform a fundamentally generalized grievance into a personal one. Because passage of a bill is subject to the whims of the political process, that alone is not a protected interest that can be the subject of an injury-in-fact. Indeed, Johnston has no particular right to passage of the interposition bill, just as other citizens have no particular right to the passage of other legislation. The failure of a piece of legislation does not, by itself, cause an injury that confers standing on supporters of that legislation.
The court also notes that, even if Johnston's lost investments of time and energy were somehow to constitute an injury-in-fact, Johnston could not overcome a lack of redressability. Redressability is lacking where it depends on "the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict." Lujan, 504 U.S. at 562, 112 S.Ct. 2130. Here, the interposition bill authored by Johnston had been introduced by legislators under their own names. The bill was under consideration by legislators in the CLC. Even if the court were to order Geise to correct the Fiscal Note, the future of the interposition bill would be in the hands of independent legislators not before this court — individuals whose actions the court cannot control or predict. There is no guarantee that the interposition bill would pass out of committee, pass one or both houses of the Tennessee legislature, or be signed into law by the Tennessee governor. But whatever the eventual outcome, the future of the bill would "hinge on the response ... of others."
The court agrees with the Magistrate Judge that only two alleged injuries-in-fact require additional discussion. Specifically, Johnston alleges that Geise's certification of the "fraudulent" Fiscal Note caused Johnston to suffer (1) injury to his reputation and (2) loss of donations or other financial support (e.g., book sales). (See Docket No. 1, pp. 11-12.) Setting aside the fact that these allegations are of the most vague nature, and assuming them to be true for purposes of the Motion to Dismiss, these allegations do not meet the causation requirement of standing. Johnston
After a de novo review of the issues, the court finds that the Objections offer no basis in fact or law to disturb the Magistrate Judge's R & R.
For these reasons, the court finds as follows:
It is so
JOE B. BROWN, United States Magistrate Judge.
Before the court are Mr. Louie E. Johnston, Jr.'s (Plaintiff's) two motions for a temporary restraining order (TRO) filed July 3, 2014 and August 27, 2014 (Does. 2; 31). Also before the court is Mr. Lucien D. Geise's (Defendant's) motion to dismiss for failure to state a claim and for lack of jurisdiction with a supporting attachment filed August 5, 2014 (Does. 20; 21). For the reasons explained below, the Magistrate Judge
Plaintiff, proceeding pro se, is a Tennessee resident and author of a Tennessee state legislative bill, Senate Bill 2450/ House Bill 2440 (the bill). The bill, if enacted, would codify grievances regarding elements of the federal Patient Protection and Affordable Care Act (PPACA) for the purpose of state interposition (Does. 1, pp. 7-8; 1-1, pp. 4-12). Plaintiff defines interposition as an "honorable process of codifying grievances with supporting legal positions" that the state can commence instead of filing a federal lawsuit (Doe. 1, p. 8). Under such interposition, the state would defend the status quo (and not implement any offending federal statute) until all the grievances are resolved through negotiations or a judicial ruling on the merits of the grievances (Doe. 1, p. 8). In this case, the bill would also make it a crime to interfere with the state's interposition of the PPACA, presumably by implementing or enforcing the PPACA in Tennessee, until the specified grievances are addressed or resolved (Doc. 1, p. 8).
Defendant is the Executive Director of the fiscal review committee for the Tennessee General Assembly and is responsible for certifying fiscal notes on all general bills (Doe. 20, p. 1). TENN.CODE ANN. § 3-2-107 requires that a fiscal note be attached to all general bills brought before the General Assembly that "shall, if possible, include an estimate in dollars of the anticipated change in revenue, expenditures, or fiscal liability under the provisions of the bill or resolution." The fiscal review committee obtained potential fiscal impact information on the bill from numerous executive departments (Doc. 20, p. 3). Defendant certified a fiscal note that included an estimate of penalties exceeding $32 billion should the federal government find Tennessee noncompliant with federal law based on the process of interposition under the bill (Doc. 1-1, pp. 14-18). Plaintiff, however, disagreed with this estimate, believing that no penalties would be possible or likely given U.S. Supreme Court rulings and the Tennessee Health Freedom Act of 2011 (Doc. 1, p. 21). Plaintiff advised Defendant of the perceived errors in the fiscal note, but Defendant did not correct the original fiscal note (Does. 1, pp. 9-10; 20, p. 1). Plaintiff claims that the
Plaintiff sues for compensatory and punitive damages (Doc. 1, p. 13) under various federal constitutional provisions (Article IV, Sec. 4; and the First, Ninth, Tenth and Fourteenth Amendments) and federal statutes (18 U.S.C. §§ 1018, 1343; 28 U.S.C. §§ 1343, 4101; 42 U.S.C. §§ 1983, 1985-86; 47 U.S.C. § 230), as well as under Tennessee constitutional provisions and statutes, alleging civil rights violations, fraud, and defamation (Doc. 1, pp. 6, 17-44, 54-57). Plaintiff also seeks immediate injunctive relief to prevent Defendant from certifying fiscal notes based on conjecture (Doc. 1, pp. 6, 54). The District Judge referred this case to the Magistrate Judge by the Order dated July 15, 2014 (Doc. 7). Defendant moves to dismiss the complaint for lack of subject-matter jurisdiction and failure to state a claim (Doc. 20, p. 2). Therefore, the matter is properly before the court.
If a party lacks constitutional standing, then the court should dismiss the claim for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 607 (6th Cir.2007) (citation omitted) ("If Plaintiffs cannot establish constitutional standing, their claims must be dismissed for lack of subject matter jurisdiction.").
The power of federal courts to hear and decide cases is defined by Article III of the U.S. Constitution and by federal statutes pursuant to Article III. Importantly, the doctrine of Article III standing requires that (1) "the plaintiff must have suffered an `injury in fact"; (2) "there must be a causal connection between the injury and ... the challenged action of the defendant"; and (3) "it must be `likely'..., that the injury will be `redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citation omitted). Plaintiff bears the burden of proving that he has standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130. While, at this stage, "general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (citation omitted).
Overall, Plaintiff's injuries are insufficient to establish standing. Most of the injuries that Plaintiff alleges are insufficient to satisfy even the existence of an injury-in-fact. For example, Plaintiff argues that he has been denied due process of law because the bill, which would achieve due process in Tennessee, was not passed due to Defendant's "fraudulent" fiscal note (Doc. 1, pp. 9; 18; 21). Putting aside issues of causation and redressability, this injury is a generalized injury, shared by all the citizens of Tennessee, and is insufficient to establish the injuryin-fact element of standing. See Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130 ("[A] plaintiff raising only a generally available grievance about government ..., and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy."). In fact, Plaintiff admits that these injuries are shared by all citizens when he complains that the Defendant's "fraudulent" fiscal notes are "killing legislation, depriving Plaintiff, Legislators,
Similarly, Plaintiff argues that the "fraudulent" fiscal note will further injure him as he is in the process of proposing similar legislation in twenty-eight state legislatures, and he believes that Tennessee's failure to pass the bill will result in other states doing the same (Doc. 1, p. 11). Again, putting aside issues of causation and redressability,
In addition, Plaintiff argues that he has lost considerable personal investments through hundreds of hours in time and effort spent educating Tennessee legislators on the bill (Doc. 1, p. 12). Although this injury is specific to Plaintiff, it is again not sufficient to satisfy the requirements of standing. The passage of a bill is not a legally protected interest. People invest in supporting proposed bills every day, and the mere fact that the bill fails to pass does not grant these individuals standing.
In the end, there are only two injuries cited by Plaintiff that warrant further discussion. Plaintiff argues that Defendant's fraudulent fiscal note caused Plaintiff to suffer: (1) reputational damage and (2) loss of donations and other support (Doc. 1, pp. 11-12). Plaintiff has not specified any broadcast cancellations nor has he pointed to specific decreases in donation support, but, for the purposes of this Report and Recommendation (R & R), the Magistrate Judge assumes that Plaintiff's statements regarding these injuries are true at this stage.
However, even if the court recognizes these particularized injuries and assumes that Plaintiff can allege sufficient facts to demonstrate them, Plaintiff still fails to establish causation and redressability. For one, Plaintiff does not show that the harm to his reputation and the decreases in support were caused by the "fraudulent" aspects of Defendant's fiscal note.
Finally, even if we assume that it was Defendant's "fraudulent" fiscal note that caused donors and other supporters to view the bill as unlikely to pass, then Plaintiff would still have to show how a favorable decision from this court would redress his injuries. Even without a "fraudulent" fiscal note, Plaintiff's bill might still fail, as the bill's passage is dependent on the actions of third parties, such as the committee members who decide whether to move the bill forward and ultimately the state legislators who vote on the bill. In essence, the redressability of Plaintiff's injuries "hinge[s] on the response... of others" and the existence of this element of standing will depend on "the unfettered choices made by independent actors not before the courts and
Because Plaintiff does not meet the constitutional minimum requirements of standing, his entire claim must be dismissed for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
Defendant cites additional grounds on which the claim should be dismissed. Because the Magistrate Judge finds that the entire claim must be dismissed for lack of subject-matter jurisdiction, this R & R does not discuss these additional grounds in detail. Instead, this R & R makes a few observations below.
For the reasons explained above, the Magistrate Judge
Under Rule 72(b), Fed.R.Civ.P., the parties have fourteen (14) days from service of this R & R within which to file with the District Court any written objections to the proposed findings and recommendations made herein. Any party opposing shall have fourteen (14) days from receipt of any objections filed regarding this R & R within which to file a response to said objections. Failure to file specific objections within fourteen (14) days of receipt of this R & R may constitute a waiver of further appeal of this R & R. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986).
