Filed 10/15/13 Pickett v. 99 Cents Only Stores CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE

SHELLEY PICKETT,                                                     B246394

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC473038)
         v.

99 CENTS ONLY STORES,

         Defendant and Appellant.

         APPEAL from an order of the Superior Court of the County of Los Angeles,
Ernest M. Hiroshige, Judge. Affirmed.
         Munger, Tolles & Olson, Malcolm A. Heinicke, Katherine M. Forster, Puneet K.
Sandhu, and Esther H. Sung for Defendant and Appellant.
         Lynch, Gilardi & Grummer, Arif Virji and Gary M. Ittig for Plaintiff and
Respondent.
                                    INTRODUCTION

       Defendant and appellant 99 Cents Only Stores (defendant) appeals from the trial
court’s order denying its motion to compel plaintiff and respondent Shelley Pickett
(plaintiff) to arbitrate her individual claim brought pursuant to the Private Attorney
General Act of 2004 (PAGA).1 According to defendant, notwithstanding our decision to
the contrary in Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489 (Brown), the
Federal Arbitration Act (9 U.S.C. § 1 et seq. (FAA)) and recent United States Supreme
Court authority interpreting it, required plaintiff to arbitrate her individual PAGA claim
pursuant to the terms of her arbitration agreement and to forego pursuit of the
representative PAGA claim pleaded in her complaint.
       For the reasons set forth in this opinion and in the two concurring opinions, we
affirm the trial court’s order denying defendant’s motion to compel arbitration.

                  FACTUAL AND PROCEDURAL BACKGROUND

       A.     PAGA Complaint
       Plaintiff filed a representative action against defendant asserting a cause of action
under the PAGA for alleged Labor Code violations and a derivative request for an
injunction to prohibit future violations. Plaintiff sought penalties on behalf of herself, as
an aggrieved employee, as well as all current and former employees of defendant,2 to

1
       The PAGA is codified in Labor Code sections 2698 through 2699.5. That
statutory scheme authorizes actions by aggrieved employees on their own behalf and on
behalf of current or former employees to recover civil penalties from employers for
Labor Code violations. All further statutory references are to the Labor Code unless
otherwise indicated.

2
        Plaintiff emphasized that she was not seeking “class remedies or class
certification.”

                                              2
address defendant’s alleged violations of the Labor Code, specifically defendant’s
violations of section 1198 and Wage Order 7-2001, section 14.
       Plaintiff alleged that she was currently employed by defendant as a cashier who
regularly operated a cash register at a check-out counter area and that “[defendant was]
a California corporation with over two hundred (200) stores in California, including
stores in Los Angeles, California. [T]hese stores throughout California appear[ed]
generally similar in that there [was] ample space behind each counter/cashier area to
allow for a stool or seat. There [was] nothing in the layout of the stores or in the
activities performed by the employees operating the cash registers and manning the
counters which . . . preclude[ed] the use of seats. [Defendant’s] cashiers spen[t] a very
substantial portion, and in many instances most, of their working time behind these
counters.”
       In addition, plaintiff alleged that “Wage Order 7-2001, which covers businesses in
the ‘mercantile industry,’ such as [defendant] states: ‘All working employees shall be
provided with suitable seats when the nature of the work reasonably permits the use of
seats.’ Id., Section 14(a). [Defendant] failed to provide its cashiers, including plaintiff,
with seats, despite the fact that the nature of cashier work reasonably permit[ed] the use
of seats.”
       Plaintiff concluded that she was “an aggrieved employee, in that she was
employed by [defendant] and was not provided with a seat, in violation of Labor Code
section 1198 and Wage Order 7-2001, Section 14,” and that she was seeking on behalf of
herself and defendant’s other current and former cashiers “penalties against [defendant]
under Lab[or] Code section 2699(f),[3] plus reasonable attorneys’ fees and costs . . . .”

3
         Section 2699, subdivision (f) provides in pertinent part: “(f) For all provisions of
this code except those for which a civil penalty is specifically provided, there is
established a civil penalty for a violation of these provisions, as follows: [¶] . . . [¶] (2)
If, at the time of the alleged violation, the person employs one or more employees, the
civil penalty is one hundred dollars ($100) for each aggrieved employee per pay period
for the initial violation and two hundred dollars ($200) for each aggrieved employee per
pay period for each subsequent violation. . . .”

                                              3
       B.     Motion to Compel Arbitration
       In response to plaintiff’s complaint, defendant filed, inter alia, a motion to compel
arbitration of plaintiff’s individual PAGA claim. Citing to the United States Supreme
Court decisions in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010) 559 U.S.
662 and AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __, 131 S.Ct. 1740 (AT&T),
defendant argued that under the FAA, the trial court was required to enforce the
arbitration clause in plaintiff’s employment agreement4—which required arbitration of
plaintiff’s individual claims and was silent concerning representative claims—strictly
according to its terms. According to defendant, because the arbitration agreement did not
mention arbitration of representative claims, such as plaintiff’s representative PAGA
claim, it implicitly provided for arbitration of individual claims only. Although
defendant acknowledged the majority holding in Brown, supra, 197 Cal.App.4th 489 that
PAGA claims are outside the principles of the FAA and the Supreme Court decisions
applying it, defendant asserted that Brown was wrongly decided as contrary to AT&T,
supra, 131 S.Ct. 1740 and several federal district court decisions5 that have followed
AT&T and rejected the holding in Brown.

4
       In pertinent part, the arbitration clause in plaintiff’s employment agreement
provided: “The Company and the undersigned Employee hereby agree that any dispute
with any party . . . that may arise from or in connection with Employee’s employment
with the Company or the termination of Employee’s employment with the Company must
be submitted for resolution by mandatory, binding arbitration.”
5
        In addition to citing several federal district court cases that rejected the reasoning
of the majority opinion in Brown, defendant also cited to the Court of Appeal’s decision
in Iskanian v. CLS Transportation Los Angeles, LLC (2012) 206 Cal.App.4th 949 (review
granted Sept. 19, 2012, S204032), notwithstanding that the California Supreme Court had
granted review of that decision and it was therefore not citable as precedent. (California
Rules of Court, rule 8.1105(e)(1).) Our Supreme Court defined the issues for review in
Iskanian as follows: “Petition for review after the Court of Appeal affirmed an order
granting a motion to compel arbitration and dismissing class claims. This case presents
the following issues: (1) Did AT&T[, supra, 131 S.Ct. 1740], impliedly overrule Gentry
v. Superior Court (2007) 42 Cal.4th 443 with respect to contractual class action waivers
in the context of non-waivable labor law rights? (2) Does the high court’s decision

                                              4
       Plaintiff opposed the motion arguing, inter alia, that principles of stare decisis
required the trial court to follow the majority decision in Brown, supra, 197 Cal.App.4th
489 and deny the motion to compel arbitration. According to plaintiff, because the
California Supreme Court denied the defendant’s petition for review in Brown and
granted the plaintiff’s petition for review in Iskanian v. CLS Transportation Los Angeles,
LLC, supra, 206 Cal.App.4th 949, Brown was the only binding precedent on the issue
and it fully supported the denial of the motion.

       C.     Hearing on Petition to Compel Arbitration
       Prior to the hearing on defendant’s petition to compel individual arbitration, the
trial court issued a tentative ruling denying the motion. Following oral argument on the
motion, the trial court entered the tentative ruling as its final order on the motion. In
pertinent part, that order provided as follows: “Plaintiff’s complaint alleges a sole cause
of action for civil penalties and attorney fees under the [PAGA]. In its motion,
Defendant moves to compel ‘Plaintiff to arbitrate her claims on an individual basis.’ In
other words, Defendant ‘seeks arbitration of Plaintiff’s individual claims only.’ . . . [¶]
Thus, Defendant has not moved to compel arbitration of Plaintiff’s representative or class
claims. A plaintiff may not bring a PAGA claim as an individual claim, but rather only
‘as the proxy or agent of the state’s labor law enforcement agencies.’ (Reyes v. Macy’s,
Inc. (2011) 202 Cal.App.4th 1119, 1123-24; see also Brown[, supra,] 197 Cal.App.4th
489, 501-502.) ‘Because the PAGA claim is not an individual claim, it was not within
the scope of Defendant’s request that individual claims be submitted to arbitration . . . .’
(Reyes, supra, at 1123-24.) [¶] Assuming Plaintiff could bring an individual PAGA
claim, then the motion must be denied under Brown, supra. The Court cannot compel
arbitration of Plaintiff’s representative claims pursuant to Stolt-Nielsen S.A. v.
AnimalFeeds International Corp.[, supra, 559 U.S. 662]. Thus, as Defendant essentially
concedes by arguing that the ‘Court is not required to follow Brown,’ the Brown decision

permit arbitration agreements to override the statutory right to bring representative claims
under the [PAGA]? (3) Did defendant waive its right to compel arbitration?”

                                              5
compels a finding that the arbitration agreement is unenforceable as against public policy
or unconscionable insofar as it applies to Plaintiff’s sole PAGA claim. The Iskanian case
cited by Defendant has no precedential authority as review has been granted by the
California Supreme Court. . . . [¶] The motion to compel Plaintiff’s individual claims is
denied.”
       Defendant filed a timely notice of appeal from the trial court’s order denying
defendant’s motion to compel individual arbitration.

                                      DISCUSSION

       A.     Standard of Review
       “In reviewing an order denying a motion to compel arbitration, we review the trial
court’s factual determinations under the substantial evidence standard, and we review
issues of law de novo. (Robertson v. Health Net of California, Inc. (2005) 132
Cal.App.4th 1419, 1425 [34 Cal.Rptr.3d 547].)” (Duick v. Toyota Motor Sales. U.S.A.,
Inc. (2011) 198 Cal.App.4th 1316, 1320.) “The trial court’s resolution of disputed facts
will be upheld if supported by substantial evidence, but if there is no disputed extrinsic
evidence, the trial court’s decision on the arbitrability determination is reviewed de novo.
(Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1283 [63 Cal.Rptr.3d 787]; Nyulassy v.
Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1277 [16 Cal.Rptr.3d 296].)” (Suh
v. Superior Court (2010) 181 Cal.App.4th 1504, 1511.) In this case, there are no
disputed issues of fact. Therefore, the issue here is one of law that we review de novo.

       B.     Analysis
       The trial court denied defendant’s motion to compel individual arbitration on two
alternative grounds: (1) because, as the court held in Reyes v. Macy’s, Inc., supra, 202
Cal.App.4th at pages 1123-1124, a plaintiff employee may not bring an individual PAGA
claim, there were no individual claims pleaded in the complaint that were subject to
arbitration; or (2) assuming plaintiff could bring an individual claim under the PAGA, the

                                             6
arbitration agreement was unenforceable as against public policy under Brown, supra,
197 Cal.App.4th 489.
       As to the trial court’s first ground for denying the motion—no individual claims
under the PAGA—it is unnecessary to determine whether the trial court was correct,
because even assuming plaintiff could bring an individual claim under the PAGA, the
trial court was bound as a matter of law to follow the majority decision in Brown, supra,
197 Cal.App.4th 489 (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455), which held that an arbitration agreement that would impede an aggrieved employee
from pursuing a representative action under the PAGA, as an agent for the state’s labor
enforcement agencies, is unenforceable as against public policy.
       In Brown, supra, 197 Cal.App.4th 489, the majority began its analysis of the
PAGA issue with a discussion of the decision in Franco v. Athens Disposal Co., Inc.
(2009) 171 Cal.App.4th 1277 (Franco I).6 In that case, the Court of Appeal determined,
inter alia, that the express waiver of PAGA representative claims in the arbitration clause
before it was unconscionable, relying on the California Supreme Court’s decision in
Gentry v. Superior Court, supra, 42 Cal.4th 443. According to the court in Franco,
efforts to “nullify the PAGA and preclude [the plaintiff] from seeking civil penalties on
behalf of other current and former employees, that is, performing the core function of a
private attorney general . . . impedes Gentry’s goal of ‘comprehensive[ly] enforce[ing]’ a
statutory scheme through imposition of “‘statutory sanctions’” and ‘fines.’ [Citations.]
[And] the prohibition of private attorneys general is invalid.” (Franco, supra, 171
Cal.App.4th at p. 1303.)
       As for the effect of the Supreme Court’s decision in AT&T, supra, 131 S.Ct. 1740
on the PAGA issue, the majority in Brown, supra, 197 Cal.App.4th 489, explained that

6
       It should be noted that the same court that issued the opinion in Franco I, supra,
171 Cal.App.4th 1277 published a second opinion in a subsequent appeal in the same
case—Franco v. Arakelian Enterprises, Inc. (2012) 211 Cal.App.4th 314 (Franco II). On
February 13, 2013, the California Supreme Court, in Case No. S207760, granted review
in Franco II, pending disposition of a related issue in Iskanian v. Arakelian Enterprises,
Inc., S204032.

                                             7
the “United States Supreme Court in AT&T, supra, 563 U.S. __ [131 S.Ct. 1740] did not
specifically address whether California state law applicable to waivers of statutory
representative actions—which actions are a means to enforce state labor laws for the
benefit of the public—was preempted by the FAA. We recognize that the United States
Supreme Court has held that the FAA preempts certain California statutory dispute
resolution mechanisms (see Preston v. Ferrer (2008) 552 U.S. 346 [169 L.Ed.2d 917,
128 S.Ct. 978] [FAA preempts California Talent Agencies Act (§§ 1700.44, subd. (a),
1700.45) granting the Labor Commissioner exclusive jurisdiction to decide issue that
parties agreed to arbitrate and imposing prerequisites to enforcement of arbitration
agreement that are not applicable to contracts generally]; Perry v. Thomas, [(1987)] 482
U.S. 483 [FAA preempted former § 229 that provides action for collection of wages may
be maintained “without regard to the existence of any private agreement to arbitrate”];
Southland Corp. v. Keating (1984) 465 U.S. 1 [79 L.Ed.2d 1, 104 S.Ct. 852] [provisions
of California’s Franchise Investment Law (Corp. Code, § 31512) that require judicial
consideration of claims is preempted by the FAA]) and that class actions, unless agreed
to, may impermissibly interfere with arbitration provided for by the FAA. (AT&T, supra,
563, U.S. at pp. __, __ [131 S.Ct. at pp. 1750-1752].) [¶] But United States Supreme
Court authority does not address a statute such as the PAGA, which is a mechanism by
which the state itself can enforce state labor laws, because the employee suing under the
PAGA ‘does so as the proxy or agent of the state’s labor law enforcement agencies.’
(Arias [v. Superior Court (2009)] 46 Cal.4th [969,] 986.) And, even if a PAGA claim is
subject to arbitration, it would not have the attributes of a class action that the AT&T case
said conflicted with arbitration, such as class certification, notices, and opt-outs. Until
the United States Supreme Court rules otherwise, we continue to follow what we believe
to be California law.” (Brown, supra, 197 Cal.App.4th at pp. 502-503.)
       Based on the foregoing reasoning, the majority in Brown, supra, 197 Cal.App.4th
489 concluded that the “recent decision of the United States Supreme Court in
AT&T[, supra,] 131 S.Ct. 1740, holding that California decisional law invalidating class
action waivers in consumer arbitration agreements is preempted by the [FAA], does not

                                              8
apply to representative actions under the PAGA, and thus the trial court correctly ruled
that the waiver of [the] plaintiff’s right to pursue a representative action under the PAGA
was not enforceable under California law.” (Id. at p. 494.)
       Defendant argues that under the FAA, the arbitration agreement should be read to
waive implicitly representative PAGA claims because it requires arbitration of plaintiff’s
individual PAGA claim only and is silent as to representative claims. (See Stolt-Neilson
S.A. v. AnimalFeeds International Corp., supra, 559 U.S. at pp. 681-684 [holding that it
would be inconsistent with the FAA to impose class arbitration proceedings on parties
who had entered arbitration agreements that were silent on the issue of classwide
arbitration].) By, in effect, prohibiting plaintiff from pursuing her representative PAGA
claim, the agreement here—as the agreement in Brown, supra, 197 Cal.App.4th 489,
which explicitly waived representative PAGA claims—runs afoul of the public policy
underlying the PAGA. Thus, under Brown, the arbitration agreement was, as the trial
court correctly concluded, unenforceable.
       As noted, AT&T, supra, 131 S.Ct. 1740 concerned FAA preemption of state law
that would preclude arbitration in class actions. It did not deal with a statute such as
PAGA that is a unique representative action which is, in effect, a law enforcement
proceeding to protect the public. The same distinction applies to the United States
Supreme Court decision in American Express Co. v. Italian Colors Restaurant (2013) __
U.S. __, 133 S.Ct. 2304.
       One federal court has noted, “The California Court of Appeal, in Brown,
comprehensively and persuasively discussed the reasons why class action waivers
contained in arbitration agreements may not be used to divest plaintiffs of their right to
bring representative actions under PAGA.” (Plows v. Rockwell Collins, Inc. (C.D. Cal.
2011) 812 F.Supp.2d 1063, 1070; see also Gonzalez v. Millard Mall Services, Inc. (S.D.
Cal. 2012) 281 F.R.D. 455, 469; Cunningham v. Leslie’s Poolmart, Inc. (C.D. Cal. 2013)
[2013 U.S. DIST. LEXIS 90256].) That reasoning should apply a fortiorari to an
arbitration clause compelling a plaintiff employee to arbitrate her individual claim under
PAGA and thereby precluding her pursuit of a representative PAGA claim.

                                              9
       Defendant asserts that plaintiff has not established the unconscionability of the
agreement in question. The issue, however, is not one of unconscionability, but rather
whether an agreement to arbitrate can eviscerate a state statute allowing a private citizen
to act as a private attorney general to protect the public. Any such agreement is contrary
to the public policy underlying the state statute and, as such, unenforceable.
       Contrary to defendant’s assertion, the trial court, in ruling on the motion to compel
arbitration, did not have the discretion to ignore our holding in Brown, supra, 197
Cal.App.4th 489—i.e., AT&T, supra, 131 S.Ct. 1740 does not apply to representative
PAGA claims—and instead follow the rulings in certain federal district court cases that
have rejected the majority holding in Brown. As noted, under the doctrine of stare
decisis, the trial court was bound to follow the majority holding in Brown, regardless of
whether certain federal trial courts have declined to follow that decision. (Auto Equity
Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455; Foley v. Interactive Data Corp.
(1988) 47 Cal.3d 654, 690, fn. 28 [state “[t]rial courts are of course bound by the
decisions of the Court of Appeal”].)
       Notwithstanding defendant’s suggestion that we should defer any decision in this
case until after the California Supreme Court decides Iskanian v. CLS Transportation Los
Angeles, LLC, supra, 206 Cal.App.4th 949, we have determined that we should resolve
this appeal on the merits. Unless our Supreme Court grants review in this case, plaintiff’s
case should not be suspended for an indefinite period of time.
                                       DISPOSITION

       The order denying defendant’s motion to compel arbitration of plaintiff’s
individual PAGA claim is affirmed. Plaintiff is awarded costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                                  MOSK, J.

                                             10
       I concur in the judgment. In my view the outcome of this case is controlled by the
decision in EEOC v. Waffle House, Inc. (2002) 534 U.S. 279, 293-298 (EEOC). In
EEOC, the Equal Opportunity Employment Commission (the commission) pursued a
discrimination claim on behalf of an aggrieved former employee. The former employee
signed an arbitration agreement with the defendant, Waffle House, Inc. The United
States Supreme Court refused to enforce the arbitration agreement because the
commission was not a signatory to it. (Id. at pp. 293-295.)
       Here, the gravamen of the Labor Code Private Attorneys General Act of 2004 (the
act) cause of action is a claim on behalf of the State of California (the state). (Arias v.
Superior Court (2009) 46 Cal.4th 969, 986; Thurman v. Bayshore Transit Management,
Inc. (2012) 203 Cal.App.4th 1112, 1125.) Seventy-five percent of the penalties are paid
to the state. The act has as its purpose the enforcement of the state’s labor laws. As in
EEOC, the state is not a signatory to the arbitration agreement. Hence, the Federal
Arbitration Act does not require the claims for penalties payable to the state be arbitrated.
Other than the potential payments to plaintiff discussed below, the essence of the
complaint is the enforcement of the state’s labor laws and payment to it.
       Defendant did not request to arbitrate the issue of the percent of penalties to be
paid to plaintiff, Shelley Pickett, under Labor Code sections 2699, subdivisions (g)(1)
and (i). In addition, there was no effort by defendant in the trial court to arbitrate the
potential amount of attorney fees payable to plaintiff. (Lab. Code, § 2699, subd. (g)(1).)
If these matters are arbitrable, this would necessarily involve a severance of issues which
is sometimes part of the arbitral process. (Daniels v. Sunrise Senior Living, Inc. (2013)
212 Cal.App.4th 674, 687; Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399,
1409.) At oral argument, defense counsel agreed defendant was not seeking to parse out
individual issues but asserted the entirety of the dispute must be arbitrated. (Such makes
excellent litigation sense--no fiscal purpose would be served by arbitration of narrow
issues concerning plaintiff’s former employment status, attorney fees and a percentage of
penalties.) The issue of potential severance of issues concerning the rights of plaintiff to
attorney fees and a portion of the penalties has been forfeited. (Pearson Dental Supplies,
Inc. v. Superior Court (2010) 48 Cal.4th 665, 681; Moncharsh v. Heily & Blase (1992) 3
Cal.4th 1, 30-31; Tutti Mangia Italian Grill, Inc. v. American Textile Maintenance Co.
(2011) 197 Cal.App.4th 733, 740; Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th
489, 498, fn. 4; Jones v. Jacobson (2011) 195 Cal.App.4th 1, 19, fn. 12; Countrywide
Financial Corp. v. Bundy (2010) 187 Cal.App.4th 234, 264; see Doers v. Golden Gate
Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.) Finally, for the foregoing reasons, it
is unnecessary to address any other issues concerning the Federal Arbitration Act.

                                          TURNER, P. J.

                                             2
       I respectfully concur. There was only one cause of action filed pursuant to the
Private Attorneys General Act (PAGA). Defendant’s motion to compel arbitration of that
claim took the position that plaintiff was “compelled to arbitrate individually.” However,
there is no “individual” claim in a PAGA action. (Reyes v. Macy’s Inc. (2011) 202
Cal.App.4th 1119, 1123; Machado v. M.A.T. & Sons Landscape, Inc. (E.D.Cal., July 23,
2009, No. 2:09-cv-00459 JAM JFM) 2009 U.S.Dist. Lexis 63414, p. *6; see also Lab.
Code, § 2699, subd. (a) [PAGA action is to be brought by “employee on behalf of
himself or herself and other current or former employees”].) Defendant could not compel
arbitration of a non-existent claim.

                                         KUMAR, J.*


384 F.2d 235
Frazier EATON, Appellant,v.UNITED STATES of America, Appellee.
No. 21574.
United States Court of Appeals Ninth Circuit.
October 23, 1967.
Rehearing Denied November 30, 1967.

1
Frazier Eaton, in pro. per.

2
Eugene G. Cushing, U. S. Atty., Seattle, Wash., for appellee.

3
Before CHAMBERS and MERRILL, Circuit Judges, and JAMESON, District Judge.

JAMESON, District Judge:

4
Appellant was found guilty by a jury of the sale and concealment of narcotics as charged in a seven count indictment. Upon the filing of a second offender information, he was sentenced to 15 years imprisonment on April 22, 1963, and is now in custody under that sentence.

5
On September 6, 1966, appellant filed a motion to vacate sentence pursuant to Section 2255 of Title 28 U.S.C. The motion was denied without a hearing on September, 7, 1966. This appeal followed.1

6
Appellant alleged in his motion and here contends that through fraud and deceit of his retained counsel he was deprived of (1) a material and principal witness for his defense, and (2) his constitutional right to have compulsory process for obtaining witnesses in his favor.

7
Eaton's defense was entrapment. One George E. Carter, a Narcotics Enforcement Officer, was subpoenaed, but not called, by the Government. Eaton's counsel also had a subpoena issued for Carter, which was returned unexecuted at the request of counsel. Eaton's affidavit in support of his motion recites that he was assured by his counsel that Carter would be called as a witness and that counsel had subpoenaed Carter; that he did not learn of his counsel's action in arranging for the issuance of a subpoena and then having it returned unexecuted until the reading of the trial court's order dated August 10, 1964, ancillary to another criminal case.2

8
Eaton alleged in his motion that his "whole defense was dependent upon the testimony of George E. Carter, to sustain the defense of entrapment". In his brief in this court he argues that Carter's testimony "might well have tipped the scale in appellant's favor, as it would have gone to the heart of the case"; and that "appellant had but one defense, entrapment", and his counsel "had informed the court that it was necessary to have all persons available in court to sustain such defense".

9
There is no allegation in the motion or statement in appellant's brief as to what Carter would have testified if called as a witness. No facts are alleged to sustain an inference that the testimony would have been favorable to appellant. On the contrary, it seems more probable that appellant's retained counsel decided that Carter should not be called because his testimony would be adverse.

10
It is well settled that a motion under section 2255 is properly denied without a hearing where it states "only bald legal conclusions with no supporting factual allegations". Sanders v. United States, 1962, 373 U.S. 1, 19, 83 S.Ct. 1068, 1079, 10 L.Ed.2d 148. This rule has been applied in at least two cases based on failure to subpoena or call a material witness.

11
In Adams v. United States, 1955, 95 U.S.App.D.C. 354, 222 F.2d 45, 47, appellant contended that his trial counsel was incompetent in that he had failed to subpoena a material witness. In holding that a hearing under section 2255 was not required, the court said: "As to the absent witness, appellant does not say what the substance of his testimony would have been, asserting merely that it would have established his innocence. Thus, on the face of the record, appellant's present allegations — even if true — would not sustain his claim that he was not given a fair trial and that his sentence should be set aside".

12
In Steele v. United States, 10 Cir. 1966, 362 F.2d 536, 537, appellant contended that a factual issue was raised by a statement in his hand-written petition "that a named person, if called as a witness, would testify that the premises on which (an) unregistered still was found and seized was not in the petitioner's possession and control". After pointing out that there was nothing in the pleadings or statement to indicate that the witness "was unavailable at the trial of the case, that the nature of his testimony was unknown, or that it was suppressed in any way", the court said: "It was not incumbent upon the court to conduct an evidentiary hearing on the mere chance that, if called, the witness would testify to any facts which would substantially affect the regularity or integrity of the jury trial pursuant to which petitioner was sentenced".

13
It is true of course that an accused has the right under the Sixth Amendment to "compulsory process for obtaining witnesses in his favor". He is entitled also to "effective aid in the preparation and trial of his case. * * * This does not mean that trial counsel's every mistake in judgment, error in trial strategy, or misconception of the law would deprive the accused of a constitutional right". Determining whether due process has been met requires a decision as to whether "in all the attending circumstances there was a denial of fundamental fairness". Brubaker v. Dickson, 9 Cir. 1962, 310 F.2d 30, 37.

14
Alleged misconduct or incompetence of counsel may, in a proper case, raise issues of fact which require hearing. Jones v. Huff, 1945, 80 U.S.App. D.C. 254, 152 F.2d 14. Here, however, there is no allegation or statement to show either (1) what the substance of Carter's testimony would have been, or (2) that appellant made any attempt, through inquiry of Carter, appellant's counsel, or otherwise, to ascertain what Carter would have testified had he been called as a witness. No facts have been alleged from which it might reasonably be inferred that Carter's testimony would have been favorable to the accused on the issue of entrapment. The facts of the alleged entrapment which Carter might have been expected to corroborate are not set forth. Appellant's surmises and conclusions are insufficient to support his contention that he was deprived of due process or that his retained counsel was either incompetent or guilty of fraud or deceit.

15
Judgment affirmed.

Notes:

1
 On September 14, 1966, appellant wrote the sentencing court a letter requesting that the order of September 7, 1966, be rescinded and that he be given a hearing or in the alternative that the court prepare findings of fact and conclusions of law. The request was denied by letter dated November 17, 1966

2
 It appears from appellee's brief, not questioned in appellant's reply, that the order of August 10, 1964, was issued in a section 2255 proceeding in another case in which Eaton contended that the Government had concealed the whereabouts of Carter by failing to subpoena him as a witness and thereby deprived Eaton of the opportunity of calling him. In rejecting this contention the trial court called attention to the fact that both the Government and defendant had subpoenaed Carter, but defendant's subpoena "was returned unexecuted at the request of his retained counsel"


987 A.2d 830 (2009)
IN RE K.G.
No. 1240 EDA 2009.
Superior Court of Pennsylvania.
October 9, 2009.
Affirmed.


461 So.2d 658 (1984)
STATE of Louisiana in the Interest of Shawanda Lynette COX.
No. KJ 84 0695.
Court of Appeal of Louisiana, First Circuit.
December 28, 1984.
Writ Denied March 15, 1985.
*659 V. Patrick Bella, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee State of La.
Michael Mitchell, Baton Rouge, for defendant-appellant Shawanda Lynette Cox.
Before COLE, CARTER and LANIER, JJ.
LANIER, Judge.
On January 16, 1984, Shawanda Lynette Cox, a juvenile, was taken into custody for being a delinquent child in East Baton Rouge Parish, Louisiana. A detention hearing was held in the juvenile court for East Baton Rouge Parish on January 18, 1984, at which time the court appointed defense counsel and ordered Cox to be held in pre-adjudication detention unless she posted a $50,000 bond. On January 27, 1984, the State filed a petition charging Cox with being a delinquent child, a child in need of supervision and a child in need of care by committing aggravated assault and attempted felony theft in violation of La. R.S. 14:37 and 14:27 and 67, respectively. Cox, through her counsel, denied the allegations of the petition. On April 2, 1984, an adjudicatory hearing was held on the charges. Cox was adjudicated a delinquent child on the aggravated assault charge. The court found her not guilty of attempted theft and dismissed that charge. On *660 April 16, 1984, a dispositional hearing was held. The court ordered Cox committed to the custody of the Louisiana Department of Corrections for a period not to exceed six months, with credit for time served commencing April 16, 1984.[1] Counsel for Cox made a motion for a suspensive appeal. The court granted a devolutive appeal which was lodged in this court on June 4, 1984.

FACTS
On January 16, 1984, Chandler Willis was the owner and operator of the Willis-Liggett Drugstore located at 409 Riverside Mall in East Baton Rouge Parish, Louisiana. At approximately 5:00 p.m., Willis was "checking out" the cash register when he heard the distinctive sound of the door of his safe hitting the safe casing in the back office of the store. Willis looked toward the back office and observed a black male and a black female leaving the office and walking toward the front of the store. Willis confronted the pair and attempted to block their passage out of the store. After the male unsuccessfully tried to get by Willis, the female pulled a pistol out of her jacket. Willis stepped back and the male passed by him. As the male was leaving the store, the female moved in front of Willis and he grabbed the pistol and took it away from the female. The female ran out of the store and Willis pursued her. Willis caught the female at the street, brought her back inside the store and held her until the police arrived.

STANDARD FOR APPELLATE REVIEW OF FACTS IN JUVENILE MATTERS
The courts of appeal of Louisiana have appellate jurisdiction of all matters appealed from juvenile courts. La. Const. of 1974, art. V, § 10(A)(2); La.C.J.P. art. 97 et seq. The scope of appellate review by the courts of appeal in juvenile matters extends to both the law and the facts. La. Const. of 1974, art. V, § 10(B).
In civil matters the scope of appellate review by the courts of appeal of Louisiana extends to the law and the facts, just as in juvenile matters. La. Const. of 1974, art. V, § 10(B). The standard for appellate review of facts in civil matters is set forth in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) and Canter v. Koehring Company, 283 So.2d 716 (La.1973). When reviewing the facts in a civil matter, an appellate court may not disturb reasonable evaluations of credibility and reasonable inferences of fact of a district court. However, even though an appellate court determines there is a reasonable factual basis for the findings of the district court, the appellate court has latitude to evaluate the overall weight of the evidence to determine if the factual conclusions of the district court are clearly wrong.
The scope of appellate review of the courts of appeal of Louisiana in criminal cases extends only to questions of law. La. Const. of 1974, art. V, § 10(B). However, in State v. Mathews, 375 So.2d 1165 (La.1979), a majority of the Louisiana Supreme Court determined that the United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Under the Jackson standard, all evidence must be considered in the light most favorable to the prosecution and all reasonable *661 findings of the trier of fact involving conflicts in the testimony (credibility), the weight of the evidence and the inferences drawn from the basic facts must be accepted by an appellate court. However, determinations of the credibility of witnesses is a matter of the weight of the evidence and not its sufficiency. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). A determination of the weight of the evidence is a question of fact. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983). Since the weight of the evidence is a question of fact, this court has no appellate jurisdiction to review it in appeals in criminal cases. State v. Williams, 452 So.2d 234 (La.App. 1st Cir.1984), writ not considered, 456 So.2d 161 (La.1984), reconsideration not considered, 458 So.2d 471 (La.1984).
The evidentiary elements considered in making a Jackson review are the same as an Arceneaux review: weight, credibility (an element of weight) and inferences. Under the Jackson standard, these elements must be considered in the light most favorable to the prevailing party, the prosecution. Under the Arceneaux standard, the appellate court is not required to consider the three elements in the light most favorable to the prevailing party but must accept reasonable evaluations of credibility and reasonable inferences and may determine if the overall weight of the evidence is clearly wrong. A review under the Arceneaux standard is broader in scope than a review under the Jackson standard. State in Interest of Cason, 438 So.2d 1130 (La. App. 2nd Cir.1983).
A review of the jurisprudence shows that some appellate courts have reviewed juvenile delinquency adjudications under the Arceneaux standard, some have reviewed them under the Jackson standard[2] and some have reviewed them under both. State in Interest of Racine, 433 So.2d 243 (La.App. 1st Cir.1983), writ denied, 440 So.2d 151 (La.1983). See also State v. Redd, 445 So.2d 126 (La.App. 2nd Cir.1984) and Cason, 438 So.2d at 1131-1132. The Arceneaux review is clearly a review of facts because it involves determinations of reasonable inferences, reasonable credibility findings and overall weight evaluation.
Is a Jackson review one of fact or one of law?[3] At least two legal authorities and the Louisiana Supreme Court in dictum have indicated that a Jackson review of the sufficiency of the evidence is a question of law. Baker, Developments in the Law, 1982-1983: Criminal Law, 44 La.L.Rev. 279 (1983); Joseph, Developments in the Law, 1982-1983: Postconviction Procedure, 44 La.L.Rev. 477 (1983); State v. Cheatwood, 458 So.2d 907 (La.1984); State v. Moran, 400 So.2d 1359, 1363 at fn. 4 (La.1981). If a Jackson review is a question of law, and if we only conducted that review in a juvenile delinquency matter, would we be abdicating our constitutional jurisdiction and duty to review questions of fact in such cases? Or, should we review the sufficiency of the evidence as a question of law under the Jackson standard and the weight of the evidence as a question of fact under the Arceneaux standard? Since the Arceneaux standard is broader in scope than the Jackson standard, would an Arceneaux review necessarily include a Jackson review? Since the evidentiary elements of each standard are the same (weight, credibility and inferences), how can one be a question of law and the other a question of fact?
La. Const. of 1921, art. VII, § 10 established the appellate jurisdiction of the Louisiana Supreme Court, in part, as follows: "In criminal matters, its appellate jurisdiction extends to questions of law only." To determine jurisdiction under this provision, the Louisiana Supreme Court defined a question of law as "where there is no evidence at all upon some essential element of the crime". A question of fact was defined *662 as "the sufficiency of the evidence". State v. Vines, 245 La. 977, 162 So.2d 332 (1964) and the cases cited therein.
La. Const. of 1974, art. V, § 5(C) established the appellate jurisdiction of the Louisiana Supreme Court, in part, as follows: "In criminal matters, its appellate jurisdiction extends only to questions of law." In explaining this constitutional prohibition against appellate review of facts in criminal cases at the Constitutional Convention of 1973, the chairman of the Judiciary Committee observed that "[i]n criminal matters however the appellate jurisdiction is restricted to questions of law. This is also the present law in our Constitution and is continued without substance." 6 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, page 721 on August 15, 1973. The Constitutional Convention of 1973 kept a verbatim record of its proceedings, in part, to aid the courts in interpreting constitutional provisions. 5 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, pages 67-73 on January 13, 1973. On numerous occasions, the courts have referred to convention records to determine the meaning of constitutional provisions. State v. Ruple, 426 So.2d 249, 254 (La.App. 1st Cir.1983). To determine jurisdiction under this constitutional provision, the Louisiana Supreme Court defined a question of law as "only where there is no evidence at all to support an essential element of the crime". The "sufficiency of the evidence" was considered a question of fact over which the court had no jurisdiction. State v. Tennant, 352 So.2d 629 (La.1977) and the cases cited therein; Ruple, 426 So.2d at 255. This jurisprudence has not been expressly overruled. If this jurisprudence is changed, it will effect a substantial amendment of the Louisiana Constitution of 1974 without a vote of the people as required by Article 13 thereof.
Effective July 1, 1982, the Courts of Appeal of Louisiana were invested with appellate jurisdiction in criminal cases triable by a jury (except death penalty cases). La. Const. of 1974, art. V, § 10(A)(3). The jurisdiction of courts of appeal was established, in part, in La. Const. of 1974, art. V, § 10(B) as follows:
Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts. In criminal cases its appellate jurisdiction extends only to questions of law.

(Emphasis added).
The language about criminal appellate jurisdiction being limited to questions of law is almost identical to that used in La. Const. of 1921, art. VII, § 10 and La. Const. of 1974, art. V, § 5(C). It is a well established rule of constitutional construction that where a constitutional provision similar or identical to that contained in a prior constitution is adopted, it is presumed such provision was adopted with the construction previously placed on it by the jurisprudence. State v. Schneller, 199 La. 811, 7 So.2d 66 (1942); Kuhn v. Louisiana Highway Commission, 174 La. 990, 142 So. 149 (1932); State v. Glenn, 153 La. 147, 95 So. 534 (1923); Brasseaux v. Vermilion Parish Police Jury, 361 So.2d 35 (La.App. 3rd Cir.1978), writ denied, 363 So.2d 535 (La.1978); 16 C.J.S., Constitutional Law, § 35. Thus, it would appear that for purposes of determining our constitutional jurisdiction questions of sufficiency of evidence (as determined in a Jackson review) are questions of fact.
If the Jackson sufficiency of evidence review presents a question of law, then juvenile matters (where we have jurisdiction over questions of law and fact) must be evaluated under both the Jackson and the Arceneaux standards by an appellate court to perform its constitutional duty to review the law and the facts. In such a situation (and because an Arceneaux review is broader than a Jackson review), it is theoretically possible that the evidence would be sufficient under Jackson but insufficient under Arceneaux. However, if a Jackson review involves a question of fact, then juvenile matters must be evaluated *663 under the Jackson standard or the Arceneaux standard, but not both.

SUFFICIENCY OF PROOF
When the State charges a child with a delinquent act, it has the burden of proving each element of the offense beyond a reasonable doubt. La.C.J.P. art. 73. Cox was adjudicated a delinquent child for committing an aggravated assault in violation of La.R.S. 14:37. An aggravated assault is defined in La.R.S. 14:37 as "an assault committed with a dangerous weapon." An assault, as charged herein, is defined in La.R.S. 14:36 as "the intentional placing of another in reasonable apprehension of receiving a battery." A dangerous weapon, as charged herein, is defined in La.R.S. 14:2(3) as an "instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm." The elements of the offense, as charged in the petition, are: (1) on January 16, 1984, Shawanda Lynette Cox, a juvenile; (2) in East Baton Rouge Parish; (3) with the requisite criminal intent; (4) placed Chandler Willis in reasonable apprehension of receiving a battery; and (5) the reasonable apprehension of receiving a battery was produced by a dangerous weapon.
Mary Ann Cox, the juvenile's grandmother, testified that her address was 534 South 18th Street in Baton Rouge. She had physical custody of the juvenile because the juvenile's mother "had her turned over to me because she's in St. Gabriel". The juvenile was born on November 3, 1969, and was 14 years of age. The juvenile's father, John Starks, did not have legal custody of her.
Chandler Willis testified that he was the owner of the Willis-Liggett Drugstore located at 409 Riverside Mall in East Baton Rouge Parish. On January 16, 1984, at approximately 5:00 p.m., he was at the rear of his store checking out his cash register. The only people in that area of the store were himself and his father, who was at the prescription counter. Willis heard the sound of his safe door hitting the safe casing in the back office of the store. He looked toward the office and saw a black male and a black female walking toward the front from the direction of the office. Willis confronted the pair and asked what they were doing. He suspected they had been in the safe and blocked their passage to try to question them. The male tried to push his way past Willis, and the female pulled a gun out of her jacket and pointed it at him. He stepped back and the man walked past him. The girl got in front of him, holding the gun pointed to the front of her (not at him) and he "grabbed the pistol in her hand and wrestled her down, took the gun away from her" and she got up and ran out. Willis ran after her, caught her and brought her back in the store. The police were then called. On re-entering the store, Willis found the petty cash bag he kept in the safe on the floor where he had the struggle with the female. Prior to the struggle, the cash bag was kept in the safe. Willis opened the bag and everything was intact. The bag had approximately $360 in it. A gun (State-1) was shown to Willis, and he identified it as looking like the one he took from the female. Willis was unable to identify Cox as the female involved in this incident.
Rosalind Sheppard testified that she worked for the Liggett Drugstore. When asked about the incident, she said she observed a girl come in the store looking for cards. This girl also looked at the liquor. The girl was with a man and another girl. The girl went to the back of the store. She later saw Willis talking to "them". She observed that the girl had a gun, but it was not pointed at anyone when she observed it. Sheppard positively identified Cox several times as the girl with the gun. Sheppard saw Cox over a period of about ten or fifteen minutes that day. Sheppard saw Willis go after Cox and saw Willis bring her back into the store.
Detective Randall Moran of the Armed Robbery Division of the Baton Rouge Police Department testified that he received a complaint about 5:10 or 5:15 p.m. on January 16, 1984. Pursuant to the complaint, he went to Liggett's Drugstore on Riverside *664 in East Baton Rouge Parish. When he arrived, Cox was being detained by Willis. He arrested her and she identified herself as Shawanda Cox. Moran took a pistol into custody from Willis and identified the pistol (State-1) at the trial. The pistol was a Raven Arms Model P-25 .25 caliber pistol with Serial # 631409. The pistol and its clip were introduced into evidence, but neither contained bullets. Moran also seized a knife and a scabbard from Cox.
Cox contends that the proof is insufficient because there was no showing that Willis was placed in reasonable apprehension of receiving a battery. Cox contends the pistol was never actually pointed at Willis; however, Willis specifically testified it was. The court accepted Willis' testimony on this point. The court inferred from the fact that Willis grabbed the gun and took it from Cox after she pointed it at him that he was in apprehension of receiving a battery. This is a reasonable inference. In addition, after Cox pulled the gun and pointed it at Willis, he backed away from the male and allowed him to pass. It also could be reasonably inferred from this fact that Willis was in reasonable apprehension of receiving a battery.
Cox contends that the proof is not sufficient because the gun was not loaded and, thus, there is no showing that it was a dangerous weapon. This contention is without merit. State v. Johnston, 207 La. 161, 20 So.2d 741 (1944); State v. Connors, 432 So.2d 308 (La.App. 5th Cir.1983); cf. State v. Bonier, 367 So.2d 824 (La.1979).
Cox contends that the proof is insufficient that she was the offender in the incident because Willis could not identify her and because Sheppard's identification was uncertain. The juvenile court judge found as a fact that the identification of the juvenile as the offender was sufficient. A review of the facts set forth above shows that this contention is without merit.
There is sufficient evidence in the record to support the juvenile court's adjudication of delinquency under either a Jackson or an Arceneaux review.[4]Cf. State in Interest of Cortez, 319 So.2d 496 (La.App. 4th Cir.1975), writ denied, 323 So.2d 132 (La. 1975).

DECREE
For the foregoing reasons, the adjudication of delinquency and the disposition are affirmed.
AFFIRMED.
NOTES
[1]  Counsel for Cox made a motion for credit for time served from the date of original detention (January 16, 1984), but the court denied it. Counsel for Cox then took a supervisory writ to this court from that ruling, which was denied on May 10, 1984. On June 8, 1984, the Louisiana Supreme Court granted a writ giving Cox credit for all time served. State in Interest of Cox, 450 So.2d 1318 (La.1984). The district court judgment was amended to reflect this ruling on June 12, 1984. On September 14, 1984, a request by the State for a rehearing on this ruling was denied. State in Interest of Cox, 456 So.2d 163 (La.1984).
[2]  The State and Cox both argue this case under the Jackson standard.
[3]  See the discussion about the distinction between questions of law and fact in the concurring opinion in State v. Ruple, 426 So.2d 249 (La.App. 1st Cir.1983).
[4]  Since the evidence satisfies both standards of review, it is not necessary to answer the questions posed in this opinion. When we are confronted with a case where the result under Arceneaux is different than that under Jackson, we will be forced to decide.


                                                                                Opinions of the United
2009 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

3-4-2009

USA v. Richardson
Precedential or Non-Precedential: Precedential

Docket No. 07-4409

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"USA v. Richardson" (2009). 2009 Decisions. Paper 1631.
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                               PRECEDENTIAL
      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
               _______________

                    No: 07-4409
                  _______________

             DARVIN E. RICHARDSON,

                           Appellant

                           v.

          UNITED STATES OF AMERICA
               _______________

On Appeal from the District Court of the Virgin Islands
               (D.C. No. 07-cr-00018)
  Chief District Judge: Honorable Curtis V. Gómez
                  _______________

              Argued December 8, 2008

Before: FISHER, JORDAN, and STAPLETON, Circuit
                    Judges.

               (Filed : March 04, 2009 )
                  _______________
Thurston T. McKelvin
Jesse A.Gessin [ARGUED]
Federal Public Defender’s Office
P.O. Box 1327
51B Kongens Gade
Charlotte Amalie ,St. Thomas
 USVI , 00804-1327
       Counsel for Appellant

Anthony J. Jenkins
Ishmael A. Meyers, Jr. [ARGUED]
United States Attorney’s Office
5500 Veterans Building , Suite #260
Charlotte Amalie, St Thomas
USVI 00802-6924
      Counsel for Appellee
                     _______________

                OPINION OF THE COURT
                    _______________

JORDAN, Circuit Judge.

       Darvin E. Richardson appeals from a judgment of
conviction on one count of illegal re-entry after deportation,
in violation of 8 U.S.C. § 1326(a) and (b)(2). Richardson
contends that the District Court wrongly decided that he could
not collaterally challenge his prior deportation. For the
reasons that follow, we will affirm.

                              2
I.     Background

        Richardson was arrested on November 30, 1989, in St.
Thomas, after attempting to smuggle marijuana onto the
island aboard a commercial flight. He subsequently pled
guilty to one count of Importation of a Controlled Substance,
in violation of 21 U.S.C. § 952, and one count of Possession
of a Controlled Substance Aboard an Aircraft Arriving in the
United States, in violation of 21 U.S.C. § 955. He was
sentenced to four months imprisonment on each count, the
terms to run concurrently, and three years of probation. At
the time of judgment, Richardson had been lawfully admitted
for permanent residency in the United States for almost ten
years and he claimed to have children who were U.S. citizens.

      Upon entry of the criminal judgment in March of 1990,
Richardson was released for time served. Two months later,
in May of 1990, the government initiated deportation
proceedings, serving Richardson with an Order to Show
Cause, Notice of Hearing, and Warrant for Arrest of Alien.

        On May 21, Richardson, then unrepresented by
counsel, signed a waiver (the “May Waiver”) in which he
stipulated to the charges against him, accepted deportability,
requested immediate departure to St. Kitts, and waived his
right to appeal the deportation order. That stipulation was
voided, however, when Hans Burgos, an attorney for the
United States Immigration and Naturalization Service (“INS”)
in Puerto Rico, crossed out and initialed key paragraphs in it.
After speaking with Richardson, Burgos had become
convinced that Richardson “was not aware, nor was he well

                               3
informed, of the consequences of signing the stipulation.”
(App. at 23.)

         The next day, May 22, David Iverson entered his
appearance as counsel for Richardson and, soon thereafter, on
June 19, Richardson again signed a waiver (the “June
Waiver”). It was identical in content to the May Waiver.
Richardson says that he does not recall either Iverson or an
immigration judge explaining to him the effect of the waiver.
A Mr. R. Ortiz, an INS attorney, signed the June Waiver on
behalf of the United States.1 The document does not contain a
signature line for Richardson’s counsel and Iverson did not
sign it.

      The United States Department of Justice sent
Richardson a letter, which is dated June 22, 1990, (the
“Deportation Letter”) and contains the following paragraph:

      Should you wish to return to the United States
      you must write this office or the American
      Consular Office nearest your residence abroad
      as to how to obtain permission to return after
      deportation. By law ... any deported person who
      within five years returns without permission is
      guilty of a felony. If convicted he may be
      punished by imprisonment of not more than two
      years and/or a fine of not more than $1,000.00.

      1
          Mr. Ortiz’s first name does not appear in the record.

                                4
(App. at 27.) On or about the same day, Richardson was
deported to St. Kitts.

        Some seventeen years later, Richardson tried to return
to St. Thomas. On March 6, 2007, he flew to the island but
was detained at the airport when he showed his valid British
passport and his name triggered an alert that he had
previously been convicted of a controlled substances violation
and had been deported. According to Richardson, the mother
of his children had wrongly informed him that he could
legally enter the Virgin Islands without having obtained the
Attorney General’s consent. On April 4, he was indicted on
one count of unlawful entry into the United States, in
violation of 8 U.S.C. § 1326(a) and (b)(2).

        Richardson filed a motion to dismiss the indictment.
In particular, he collaterally attacked his deportation; he
claimed that the United States Sentencing Guidelines
pertaining to § 1326(b)(2) are unconstitutional; and he argued
that the government should be collaterally estopped from
charging him under § 1326(a) because of representations that
it had made in the Deportation Letter. The District Court held
a series of hearings on the motion. Neither Iverson nor any
INS attorneys who worked on the matter testified as to what
had transpired during Richardson’s deportation proceedings.
On June 22, 2007, the District Court denied Richardson’s
motion to dismiss,2 concluding that he could not collaterally

      2
       The court entered an amended order on June 25 in
which it corrected a mistake as to Richardson’s birthday but

                              5
attack his deportation and that his challenge to the Sentencing
Guidelines and his collateral estoppel argument had to await
later proceedings. Richardson appeals only the conclusion
that he cannot press a collateral attack of his deportation.

II.    Discussion 3

        At the heart of Richardson’s appeal is his claim that the
June Waiver is not valid because it was not intelligently
executed. Not only does Richardson contest the validity of
the June Waiver, he also claims that, by presuming it to be
valid, the District Court improperly shifted the burden of
proof as to waiver from the government to him. Richardson
contends that he is permitted to collaterally challenge his

made no substantive changes. We review that amended order
for purposes of this opinion.
       3
         The District Court of the Virgin Islands had
jurisdiction over this case pursuant to 18 U.S.C. § 3231 and
48 U.S.C. § 1612(a). We have jurisdiction pursuant to 28
U.S.C. § 1291. We review de novo the District Court’s
determination that Richardson may not collaterally challenge
his deportation. United States v. Charleswell, 456 F.3d 347,
351 (3d Cir. 2006) (citing United States v. Torres, 383 F.3d
92, 95 (3d Cir. 2004)). The District Court’s factual findings
are reviewed for clear error while we exercise plenary review
over its interpretations of law. Charleswell, 456 F.3d at 351
(citing United States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002)).

                               6
deportation because, first, he is exempted from any
requirement regarding exhaustion of administrative remedies,
second, the District Court’s determination that he waived his
right to judicial review is erroneous, and, third, his
deportation proceeding was fundamentally unfair. Because
Richardson’s collateral attack on his deportation is premised
on the invalidity of the June Waiver, we address at the outset
the threshold issues of whether the District Court improperly
placed the burden of proving invalidity on Richardson and
whether the June Waiver is valid. Then we turn to the merits
of Richardson’s collateral attack.

       A.     The June Waiver Was Intelligently Executed
              and is Valid

        We have not before addressed whether the government
has the burden of proving the validity of a written waiver in
an immigration proceeding or whether the burden falls on the
alien to prove that the waiver is invalid. We do so now and
conclude that the burden is properly placed on the alien.

        An alien validly waives his rights associated with a
deportation proceeding only if he does so voluntarily and
intelligently. See United States v. Mendoza-Lopez, 481 U.S.
828, 840 (1987) (“Because the waivers of their rights to
appeal were not considered or intelligent, respondents were
deprived of judicial review of their deportation proceeding.”);
United States v. Sosa, 387 F.3d 131, 136 (2d Cir. 2004)
(waiver of right to administrative review of deportation will
bar collateral review under 8 U.S.C. § 1326(d) only when it is
voluntary and intelligent); c.f. United States v. Muro-Inclan,

                               7
249 F.3d 1180, 1183 (9th Cir. 2001) (Section 1326(d)’s
exhaustion requirement “cannot bar collateral review of a
deportation proceeding when the waiver of right to an
administrative appeal did not comport with due process.”).
However, such appellate rights and administrative remedies
can be waived, and one way to signify a knowing and
intelligent waiver is a written document to that effect. Other
circuit courts, as well as the District Court here, have
exercised the presumption that, when there is a written
waiver, the waiver is valid, thereby implicitly placing the
burden on the alien of proving any claim that the waiver was
invalid. C.f. United States v. Martinez-Rocha, 337 F.3d 566
(6th Cir. 2003) (considering appellant’s evidence that his
waiver was unintelligent); United States v. Rangel de
Aguillar, 308 F.3d 1134, 1137 (10th Cir. 2002) (“[Appellant]
presented no evidence to demonstrate ... that the waiver she
gave was not knowing and voluntary.”).4

       Contrary to Richardson’s suggestion, we do not regard
the result reached here by the District Court as in conflict with
the decision of the Ninth Circuit Court of Appeals in United

       4
        The government would have us draw the same
inference from United States v. Encarnacion-Galvez, 964
F.2d 402, 406 (5th Cir. 1992). However, such an
interpretation would be inappropriate as that court was merely
reciting the government’s argument that “[appellant] failed to
show ... that his waiver ... [was] unknowing and
unintelligent,” rather than endorsing a theory of burden
allocation. 964 F.2d at 406.

                               8
States v. Lopez-Vasquez, 1 F.3d 751, 753-54 (9th Cir. 1993).
In any event, we find ourselves unpersuaded by the rationale
of that case. The Lopez-Vasquez Court held that “the
government bears the burden of proving the waiver,” id., and
that evidence of a mass, silent waiver was insufficient alone
to carry that burden. The waiver at issue in Lopez-Vasquez
was neither written nor individual. There, the immigration
judge asked, “Gentlemen, if any of you do not understand
about appeal, or if you have any questions about appeal,
please stand now so that I can talk to you.” Id at 753. After
no one in the assembled group rose, the judge continued, “If
any of you want to appeal your case to the higher court, ...
please stand so that I can talk with you about that.” Id.
Again, no one rose. In rejecting the government’s argument
that the waiver was knowing and intelligent, the Court
focused upon the particular risks created by such mass silent
waivers:

      The immigration judge made no effort to
      determine whether Lopez-Vasquez individually
      wished to waive his right to appeal, and the
      mass waiver by silence made it impossible to
      determine whether he made a voluntary and
      intelligent decision to do so. Mass silent waiver
      creates a risk that individual detainees will feel
      coerced by the silence of their fellows. The
      immigration judge’s directive that to preserve
      the right to appeal a detainee must stand up “so
      that I can talk to you about that” did nothing to
      lessen this risk. Indeed, it tended to stigmatize
      detainees who wished to appeal and to convey a

                              9
       message that appeal was disfavored and
       contingent upon further discussion with the
       immigration judge.

Id. at 754. Given this focus on the risk inherent in the
particular process before it, we are not confident that the
Lopez-Vasquez Court would have found a signed, written
waiver which expressly acknowledged the required
understanding, insufficient to carry the government’s initial
burden of proof and shift that burden to the alien.

       Moreover, in reaching its conclusion in Lopez-
Vasquez, the Court relied on the Supreme Court’s discussion
of waiver in Brewer v. Williams, 430 U.S. 387 (1977), a case
reviewing a criminal proceeding on a petition for habeas
corpus. However, in a dissent from the order denying
rehearing en banc in Lopez-Vasquez, Judge O’Scannlain and
six other judges of the Ninth Circuit correctly pointed out that
reliance on Brewer is misplaced in the immigration context
and that the Lopez-Vasquez opinion is thus logically flawed.
See id. at 758.

       The Lopez-Vasquez panel drew a false parallel between
the nature of the right protected by the Supreme Court in
Brewer and that at issue in a waiver of administrative
remedies and appellate rights in a deportation proceeding.
Brewer concerned a right “indispensable to the fair
administration of our adversary system of criminal justice[,]”
430 U.S. at 398, namely a criminal defendant’s right to
counsel, and, given the constitutional foundation of that right,
the Supreme Court placed the heavy burden of demonstrating

                               10
any waiver of it on the government. Id. at 398-402. In Lopez-
Vasquez, the dispute involved, as it does here, an alien’s
waiver of a “statutory right to judicial review of the result of a
civil deportation proceeding.” Lopez-Vasquez, 1 F.3d at 758
(O’Scannlain, J., dissenting from denial of rehearing en banc)
(original emphasis). We have long recognized that
deportation proceedings are civil in nature and that the rights
and protections afforded to the defendant are therefore
decidedly different from those available in the criminal
context. See Torres, 383 F.3d at 103 (“[T]he procedural
protections accorded to [aliens] in that context [i.e. removal
proceedings] measure less than the panoply available to a
criminal defendant.”). There is no sound basis to equate
either the kind of rights or the nature of the proceedings at
issue in Brewer with those at issue in Lopez-Vasquez, and the
Lopez-Vasquez per curiam opinion suggests none. Nor, for
that matter, does Richardson. We therefore reject his
insistence that the burden of proof described in Brewer “is no
different in the context of deportations.”

       On the contrary, there is a distinction between
fundamental constitutional rights – including the right to
counsel at issue in Brewer – and rights granted by statutes,
such as the administrative and appellate rights at issue here.
See Northern Pipeline Const. Co. v. Marathon Pipe Line Co.,
458 U.S. 50, 83 (1984) (acknowledging line of cases for
“recognition of a critical difference between rights created by
federal statute and rights recognized by the Constitution”).
Indeed, even when constitutional rights are at stake, not all
waivers are judged by the same standard. See Schneckloth v.
Bustamonte, 412 U.S. 218, 235 (1973) (“Our cases do not

                               11
reflect an uncritical demand for a knowing and intelligent
waiver in every situation where a person has failed to invoke
a constitutional protection.”). The placement of the burden of
proof, like the standard for waiver, can be variable and
contingent on the source of the right in play. See Northern
Pipeline, 458 U.S. at 84 (Where Congress has created a right,
“it clearly has the discretion, in defining that right, to create
presumptions, or assign burdens of proof”).

        It may be helpful to begin by recognizing that, in the
first instance, the burden of proving waiver in this case was
on the government and that it carried its burden by producing
the written waiver signed by Richardson. Richardson’s
decision to contest that waiver required more of him than his
mere assertion that the waiver should not count. It required
him to provide reasons and supporting evidence to explain
why the waiver should not be given effect. In sum, we
conclude that, when challenging the validity of a written
waiver of rights in a deportation proceeding, the alien bears
the burden of proving that the waiver is invalid.5 Since

       5
        Section 1326(d) plainly states that an alien may not
challenge a deportation order’s validity unless he or she
“demonstrates” that all three statutory prerequisites are
satisfied, one of which is exhaustion of any administrative
remedies. Therefore, the statutory language supports placing
the burden of proof on the alien to demonstrate that a written
waiver of rights is invalid where, as here, the alien argues that
he or she is exempted from exhausting any administrative
remedies.

                               12
Richardson had that burden with respect to the June Waiver,
we turn to whether he has carried it.

        Richardson contends that the June Waiver was invalid
because he was not notified of his administrative remedies
prior to signing it. As proof, he relies heavily on the notation
that INS attorney Burgos made when voiding the May
Waiver, the notation saying that Richardson had not been
“aware” or “well informed” of the consequences of signing
that stipulation. Richardson also attacks the June Waiver
because his attorney did not sign it, and because the
Immigration Judge allegedly failed to inform him that he
might be eligible for discretionary relief under section 212(c)
of the Immigration and Naturalization Act (“INA”), 8 U.S.C.
§ 1182(c) (1995) (repealed by Illegal Immigrant Reform and
Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208,
Div. C, § 304(b), 1996 U.S.C.C.A.N. (110 Stat.) 3009-597).
None of those arguments is sufficient.

       First, Burgos’s cancellation of the May Waiver shows
at most only what Richardson knew in May, not what he had

       Given the civil nature of deportation proceedings, an
alien seeking to demonstrate the invalidity of a written waiver
will be held to a “preponderance of the evidence” standard.
See United States v. Martinez-Amaya, 67 F.3d 678, 682 n.5
(8th Cir. 1995) (“[A]pplication of a ‘preponderance of the
evidence’ standard of proof to an alien’s collateral attack
upon a prior deportation seems appropriate to us, in light of
the fact that a deportation proceeding is civil in nature.”).

                               13
learned by June. In the intervening month, he was
represented by counsel and had further interactions with INS
officials who presumably were aware of and not eager to
replicate the defects their colleague Mr. Burgos had
discovered in the May Waiver. It is entirely possible that
Richardson was fully informed in June and simply decided
that he wished to return to St. Kitts. As conceded by his
counsel at oral argument, that possibility is as likely as any
other explanation for his decision to sign the June Waiver,
and, once we place the burden of proof on Richardson, his
argument on this front fails.

       Next, Richardson contends that the June Waiver should
have been signed by his counsel, and we agree that would
have been the better course, but that does not mean the waiver
is invalid. The omission of a signature line for an attorney of
record betrays a less than careful approach to memorializing
the parties’ agreement, but it is not an error of constitutional,
statutory, or even regulatory dimension.

        Finally, with regard to the Immigration Judge’s failure
to inform Richardson of potential relief under § 212(c), we
have clearly stated before that “there is no constitutional right
to be informed of possible eligibility for discretionary relief.”
Bonhometre v. Gonzales, 414 F.3d 442, 448 n.9 (3d Cir.
2005) (citing Torres, 383 F.3d at 105-06).6

       6
        We also note that even when an alien satisfies the
objective criteria for relief under § 212(c) – meaning that (1)
he is the spouse, parent, or child of a U.S. citizen or lawful

                               14
       B.     Richardson May Not Collaterally Attack His
              Deportation.

       Having determined that Richardson has not proven his
waiver to be invalid, we turn to his final contention on this
appeal, that his deportation is subject to collateral attack.
“Fundamental precepts of due process provide an alien
subject to illegal re-entry prosecution under 8 U.S.C. § 1326
with the opportunity to challenge the underlying removal
order under certain circumstances.” Charleswell, 456 F.3d at
351. To mount a collateral challenge to his deportation, an
alien must prove that, first, he “exhausted any administrative
remedies that may have been available to seek relief against
the [deportation] order;” second, “the deportation proceedings
at which the order was issued improperly deprived the alien of
the opportunity for judicial review;” and, third, “the entry of
the order was fundamentally unfair.” 8 U.S.C. § 1326(d)
(2008) (codifying Mendoza-Lopez, 481 U.S. at 835-37
(1987)). Richardson bears the burden of proof as to each
element of that tripartite test, see Torres, 383 F.3d at 99, but
he has not carried it as to any part.

permanent resident; (2) deportation would result in extreme
hardship to that spouse, parent, and/or child; (3) the alien’s
admission would not undermine national welfare or security –
relief is ultimately granted only at the discretion of the
Attorney General.

                              15
              1.     Exhaustion of Administrative
                     Remedies

        Richardson does not contend that he has exhausted his
administrative remedies as required by § 1326, but rather that
he is exempted from the exhaustion requirement. He claims
exemption on three bases: that the June Waiver was invalid;
that the ineffective assistance of his counsel rose to the level
of a due process violation; and that the INS lawyers created a
conflict of interest by communicating with him. However,
none of those contentions is supported by the record. First, as
already discussed, nothing in the record undermines the facial
validity of the June Waiver. As to Richardson’s second
claim, he has failed to produce any evidence that would
permit us to conclude that his counsel was ineffective by Fifth
Amendment standards.7 Similarly, while Richardson
contends that INS attorneys created a conflict of interest by

       7
         Because the Sixth Amendment right to counsel is
inapplicable in immigration proceedings, the question is
whether Richardson’s counsel was so ineffective as to violate
his Fifth Amendment due process rights. See Xu Yong Lu v.
Ashcroft, 259 F.3d 127, 130 (3d Cir. 2001). We note that it is
unclear whether ineffective assistance of counsel constitutes
an exception to the exhaustion requirement of § 1326. More
broadly, we have yet to determine whether the exhaustion
requirement is prudential, and therefore subject to exception,
or jurisdictional. Because we conclude that Richardson has
failed to produce evidence that his counsel was ineffective,
we do not reach either of those issues.

                               16
directly informing him of his rights despite his having been
represented by counsel, there is no proof in the record to
support that or any other allegation of a conflict.

              2.     Opportunity for Meaningful Judicial
                     Review

        Likewise, Richardson’s claim that he was denied
meaningful judicial review of his deportation proceedings
because his counsel was not informed of Richardson’s own
intent to sign the June Waiver is unsupported by the record.
Richardson correctly points out that a failure to notify counsel
that counsel’s client is facing removal proceedings has been
found to deprive the represented alien of meaningful judicial
review. See United States v. Dorsett, 308 F. Supp. 2d 537,
543-44 (D.V.I. 2003) (due process violated where clerical
error resulted in notice being provided to incorrect counsel).
However, Richardson has not shown that the INS failed to
notify his counsel of the immigration proceedings. Moreover,
in contradiction to his contention that his attorney was not
notified about the June Waiver, Richardson concedes in his
briefing that it is “unclear” whether Mr. Iverson was given
notice. In short, Richardson has not proven that he was
deprived of the opportunity for meaningful judicial review.

              3.     Fundamental Unfairness

       To establish that a deportation proceeding was
fundamentally unfair, an alien must show both that there was
a fundamental defect in the proceeding and that the defect
caused him prejudice. See Charleswell, 456 F.3d at 358. An

                               17
alien can show that the proceedings had a fundamental defect
by demonstrating either that he was deprived of a substantive
liberty or property interest or that the INS violated procedural
protections “such that the proceeding is rendered
fundamentally unfair.” Id. at 360. Nothing in Richardson’s
deportation proceedings constitutes a flaw of that nature.
While Richardson raises a litany of purported procedural
defects, all bearing on whether he was adequately informed of
his rights to a hearing or administrative appeal, the issues
raised are plainly covered by the June Waiver. Because the
June Waiver is effective, those procedural defects cannot
serve as the basis for a claim of fundamental unfairness.
Further, Richardson’s contention that his deportation
proceeding was fundamentally unfair because he was not
informed of his eligibility for § 212(c) relief is belied by our
holding in Torres, in which we concluded that, because there
is no due process right to be informed of the possibility of
discretionary relief, a failure to inform does not render a
deportation proceeding fundamentally unfair. See 383 F.3d at
106.8

       8
        We acknowledge that it is an open issue in this
Circuit whether an alien can demonstrate prejudice by
showing that there is a reasonable likelihood that relief under
§ 212(c) would have been granted by the Attorney General,
had the alien been adequately informed. However, we need
not reach the issue of whether Richardson has demonstrated
prejudice because we have already determined both that there
was no fundamental defect in the deportation proceedings and
that Richardson has failed to meet his burden on either the

                               18
III.   Conclusion

       Richardson has failed to meet his burden of
demonstrating that the June Waiver was invalid and has
further failed to demonstrate the prerequisites for collaterally
attacking his deportation. We therefore will affirm the
judgment and conviction entered by the District Court.

exhaustion or opportunity-for-judicial-review prongs of the
collateral attack inquiry laid out in § 1326(d).

                               19


618 F.Supp. 1458 (1985)
Sr. Barbara REITER, Plaintiff,
v.
CENTER CONSOLIDATED SCHOOL DISTRICT NO. 26-JT., Defendant.
Civ. A. No. 85-K-975.
United States District Court, D. Colorado.
October 11, 1985.
*1459 Brian A. Jeffrey, Evergreen, Colo., for plaintiff.
William J. McCarren, Peter M. Eggleston, Cogswell & Wehrle, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER
KANE, District Judge.
This is a civil rights action under Title VII, 42 U.S.C. § 2000e et seq. and 42 U.S.C. §§ 1983 and 1985. Plaintiff, Sister Barbara Reiter, alleges that defendant, Center Consolidated School District, refused to renew her employment contract because of her gender, religion, participation in another Title VII complaint, and association with the Hispanic community. Defendant has filed an answer denying liability and setting forth five defenses. In a minute order, I stated that the defenses raised jurisdictional questions, and defenses 1, 3, 4, and 5 would be treated as motions to dismiss. The school district has filed a memorandum stating that it is pursuing only two of the defenses at this time: (1) lack of subject matter jurisdiction under Title VII over plaintiff's claim of discrimination based on her association with the Hispanic community, and (2) plaintiff's claim under 42 U.S.C. § 1985 fails to state a claim upon which relief can be granted. For the reasons that follow, I decline to dismiss plaintiff's claim of employment discrimination based on her association with the Hispanic community. Plaintiff's §§ 1983 and 1985 claims, however, are dismissed.

I
Title VII of the Civil Rights Act of 1964 prohibits discriminatory employment practices based on an individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). The Act also prohibits discriminatory employment practices based on an individual's participation in another Title VII investigation, proceeding, or hearing. Id. § 2000e-3.
Plaintiff alleges discrimination in employment based on her "close association with the Spanish citizens of the district." Before I can entertain this claim, I must determine whether Title VII prohibits discriminatory employment practices based on an individual's association with people of a particular national origin.
*1460 I have not found any Tenth Circuit decisions that discuss whether Title VII prohibits discriminatory employment practices based on an individual's association with people of a particular race or national origin. Most courts in other jurisdictions that have considered the issue hold that Title VII prohibits discriminatory employment practices based on an individual's association with people of a different race. See Whitney v. Greater New York Corp. of Seventh-Day Adventists, 401 F.Supp. 1363 (S.D.N.Y.1975); Gresham v. Waffle House Inc., 586 F.Supp. 1442 (N.D.Ga.1984); Clark v. Louisa County School Board, 472 F.Supp. 321 (E.D.Va.1979); Holiday v. Belle's Restaurant, 409 F.Supp. 904 (W.D. Pa.1976). The underlying rationale in these cases is that the plaintiff was discriminated against on the basis of his race because his race was different from the race of the people he associated with. For example, in Whitney, the court held that a white plaintiff who alleged that he was discriminated against because of his association with his Negro friends stated a cause of action under Title VII. Other examples include cases where courts hold that discriminatory employment practices based on an individual's interracial marriage are prohibited under Title VII. See Gresham, 586 F.Supp. 1442; Clark, 472 F.Supp. 321; Holiday, 409 F.Supp. 904.
In at least two decisions, the EEOC has found that reasonable cause existed to believe that an employer violated Title VII by discharging an employee because of his or her association with people of a different race. EEOC decision 71-1902, 3 Fair Empl. Prac.Cas. 1244 (1971); EEOC Decision 71-909, 3 Fair Empl.Prac.Cas. 269 (1970). These decisions indicate that the EEOC interprets Title VII as prohibiting discriminatory employment practices based on an individual's association with people of a particular race or national origin. I am required to give great deference to the EEOC's interpretations of Title VII. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 210, 93 S.Ct. 364, 367, 34 L.Ed.2d 415 (1972); Griggs v. Duke Power Co., 401 U.S. 424, 433, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). In light of these judicial and administrative decisions, I hold that discriminatory employment practices based on an individual's association with people of a particular race or national origin are prohibited under Title VII.[1]

II
Defendant contends that I lack subject matter jurisdiction over this claim because plaintiff did not allege national origin discrimination in her Charge of Discrimination filed with the EEOC and the EEOC did not investigate or conciliate plaintiff's charge of national origin discrimination.
Title VII establishes a detailed procedure to be followed by a person who feels that he has been the victim of an unlawful employment practice. See 42 U.S.C. § 2000e-5. A charge of discrimination must first be filed with the Colorado Civil Rights Commission (CCRC). Id. § 2000e-5(c). After a certain period of time, a charge must then be filed with the Equal Employment Opportunity Commission (EEOC). Id. § 2000e-5(e). The EEOC must investigate the charge and determine whether reasonable cause exists to believe that the charge is true. Id. § 2000e-5(b). In determining whether reasonable cause exists, the EEOC must accord substantial weight to final findings and orders made *1461 by state or local authorities. Id. If the EEOC determines that reasonable cause exists to believe that the charge is true, the EEOC must try to eliminate the alleged unlawful employment practice by conference, conciliation, and persuasion. Id.
When determining the proper scope of a Title VII complaint, a court must balance two competing values. On the one hand, the purpose of the detailed procedure is "to provide an opportunity for nonjudicial and nonadversary resolution of claims". Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 372-73, 99 S.Ct. 2345, 2349, 60 L.Ed.2d 957 (1979). On the other hand, the purpose of Title VII is to safeguard rights of persons "untutored in the technicalities of the law and who may not ... be able to fully articulate their grievances or be aware of the full panopoly of discriminatory practices against them...." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970).
In attempting to reach an accommodation between these two values, courts have offered various formulations to test the adequacy of the EEOC charge. Some courts have used a "like or related test," others have looked to the scope of a reasonable EEOC investigation based on the charge, and some have suggested that the two tests are the same. See Hubbard v. Rubbermaid, Inc., 436 F.Supp. 1184, 1188 (D.Md.1977) and cases cited therein. Regardless of what formulation is employed, "the most important considerations are whether the defendant had sufficient notice from the administrative charge of the alleged kinds and areas of discrimination and whether the administrative agencies and employers involved had an opportunity to work on a conciliation agreement for voluntary compliance in the challenged areas." Metcalf v. Omaha Steel Castings Co., 507 F.Supp. 679, 685 (D.Neb.1981) (citing Jiron v. Sperry Rand Corp. (Sperry-Univac), 423 F.Supp. 155, 159 (D.Utah 1975)); National Organization for Women v. Sperry Rand Corp., 457 F.Supp. 1338, 1343 (D.Conn.1978).
For example, in Latino v. Rainbo Bakers, Inc., 358 F.Supp. 870 (D.Colo.1973), the plaintiff did not allege sexual discrimination in her charge to the EEOC. Judge Arraj held that he had subject matter jurisdiction over the claim, because the EEOC had investigated sex discrimination, and had an opportunity to secure voluntary compliance. In addition, the defendant was notified of the alleged violation and could have voluntarily corrected it before the EEOC notified the plaintiff of her right to sue in court. On the other hand, in Fix v. Swinerton & Walberg Co., 320 F.Supp. 58 (D.Colo.1970), Judge Chilson declined to entertain a claim of religious discrimination because a charge of religious discrimination had never been presented to the EEOC, and the Commission had not considered or passed upon the issue.
In this case, the CCRC found that plaintiff's charge "should be amended to include the allegation that the refusal to rehire was based on her perceived association with the Hispanic community group, La Frontera, ..." Therefore, the CCRC's finding notified the EEOC of possible discrimination based on plaintiff's association with the Hispanic community. Consequently, the EEOC was permitted to seek voluntary compliance through conciliation. In addition, CCRC's finding notified defendant of what it was allegedly doing wrong. Therefore, defendant could have voluntarily corrected the alleged wrong-doing before the EEOC notified plaintiff of her right to sue in court. Accordingly, I hold that I have subject matter jurisdiction under Title VII over plaintiff's claim that she was discriminated against because of her association with the Hispanic community.[2]

*1462 III
Defendant contends that plaintiff's § 1985 claim should be dismissed for failure to state a claim upon which relief can be granted because she has not alleged that two or more parties conspired against her. I need not address this issue, however, because plaintiff's §§ 1983[3] and 1985[4] claims are dismissed sua sponte. These claims are dismissed because Title VII provides the exclusive remedy for defendant's alleged discriminatory acts.
In Novotny, 442 U.S. 366, 99 S.Ct. 2345, the Supreme Court held that "deprivation of a right created by Title VII cannot be the basis for a cause of action under 42 U.S.C. § 1985(3)." Id. at 378, 99 S.Ct. at 2352. The Court reasoned that such a § 1985(3) action would avoid the comprehensive procedural and remedial purposes of Title VII. Id. at 375-76, 99 S.Ct. at 2350-51. Following a similar analysis, I held that a § 1983 claim cannot be based on deprivation of a right created by Title VII. Tafoya v. Adams, 612 F.Supp. 1097, 1102 (D.Colo.1985). I noted, however, that a plaintiff "may assert violations of other statutes, such as ... § 1983, along with a Title VII claim in the same judicial proceeding as long as the other claims are independent and not based on violations of rights set forth in Title VII." Id. at 1102-03; see also Day v. Wayne County Board of Auditors, 749 F.2d 1199, 1204 (6th Cir.1984); Rivera v. City of Wichita Falls, 665 F.2d 531, 534 n. 4 (5th Cir.1982). Thus, I must determine whether plaintiff's §§ 1983 and 1985 claims are independent and not based on violations of rights set forth in Title VII.
In Novotny, 442 U.S. 366, 99 S.Ct. 2345, the plaintiff alleged that he was terminated because of his support for female employees. The Supreme Court held that the allegation did not involve two independent rights. In Tafoya, 612 F.Supp. 1097, the plaintiff alleged that he was terminated in retaliation for filing a previous discrimination charge and for other discriminatory reasons. I held that the plaintiff's § 1983 claim was not independent of his Title VII claim.[5]
In this case, plaintiff alleges employment discrimination based on her gender, religion, participation in another Title VII complaint, and association with the Hispanic community. Such discriminatory practices are prohibited under Title VII. 42 U.S.C. §§ 2000e-2, 2000e-3; see part I supra. Plaintiff also alleges that she has been deprived of freedom of speech, academic freedom and freedom of association in violation of §§ 1983 and 1985. These claims, *1463 however, are based on defendant's allegedly discriminatory acts which are prohibited under Title VII. Thus, plaintiff's §§ 1983 and 1985 claims are not independent of her Title VII claim. Title VII, therefore, constitutes the exclusive remedy in this case. Accordingly, plaintiff's §§ 1983 and 1985 claims are dismissed.
IT IS THEREFORE ORDERED THAT:
1. Defendant's motion to dismiss plaintiff's claim of discrimination based on her association with the Hispanic community for lack of subject matter jurisdiction under Title VII is DENIED.
2. Plaintiff's §§ 1983 and 1985 claims are dismissed.
NOTES
[1]  I note that in Ripp v. Dobbs Houses, Inc., 366 F.Supp. 205 (N.D.Ala.1973), the court held that a white plaintiff who alleged that he was discriminated against because of his social attitudes toward blacks and his association with them did not state a cause of action under Title VII. The court reasoned that the plaintiff did not explicitly allege that he was discriminated against because of his race. I disagree with this decision. A person who believes he has been the victim of discriminatory employment practices should not have to plead a charge of discrimination with such particularity. See Fed.R.Civ.Pro. 8(a); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Sanchez, 431 F.2d 455 (5th Cir.1970). Since the Act involves "a lay-initiated proceeding," Jenkins v. United Gas Corp., 400 F.2d 28, 30 n. 3 (5th Cir.1968), "it would be out of keeping with the Act to import common-law pleading niceties to [the charge of discrimination] or in turn to hog-tie the subsequent lawsuit to any such concepts." Id.
[2]  Defendant argues that the EEOC did not conciliate this claim, and, therefore, it should be dismissed. An actual attempt at conciliation, however, is not a jurisdictional prerequisite to a private suit. Johnson v. Seaboard Air Line Railroad Co., 405 F.2d 645, 652 (4th Cir.1968); Hubbard, 436 F.Supp. at 1189; Belcher v. Bassett Furniture Industries, Inc., 376 F.Supp. 593, 597 (W.D.Va.1974).
[3]  42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
[4]  42 U.S.C. § 1985(3) provides in relevant part:

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
[5]  A distinguishable case is Owens v. Rush, 654 F.2d 1370, (10th Cir.1981). There, the plaintiff claimed that the defendants unlawfully conspired against him and discharged him from his position in retaliation for helping his wife file an EEOC complaint. The Tenth Circuit held that the case was different from Novotny, because the plaintiff alleged deprivation of rights secured to him by the Constitution, in addition to deprivation of rights created by Title VII, whereas the plaintiff in Novotny attempted to assert only a Title VII claim through § 1985(3). Id. at 1380. Another factor that may have influenced the Tenth Circuit's decision is that the plaintiff had no substantive right conferred on him by Title VII because of a statutory exception. See id. at 1370.