author: FEIKENS, Chief Judge.

text:
    John M. ABICK, James R. Bradley, John B. Carruthers, Gerald Clancy, Isadore Coles, Ruth Cotten, Lucius C. Daniel, Jr., Charles W. David, Raymond C. De Ryck, Bruce Goldsmith, Richard A. Hentscehl, Calvin C. Hopkins, Lloyd Jackson, Raymond Kay, John J. Kiritsis, Edward B. Lewand, Phillip Mullen, Steve Radulovich, Elmer Raskin, Clay Reeves, Francis D. Ryan, George L. Van Antwerp, Jr., Bernard Vessels, Richard Viecelli, Julius Watson, Edward Wojtowicz, Charmie Currie, Robert Eston, Thornton Jackson, James Kinnard, Alfonso Newkirk, Robert Perry, Theodis Poole, Robert Ruhl, William Shuford, Raymond Sikora, Ernest Solomon, and Jeramia Weatherly, Plaintiffs, v. STATE OF MICHIGAN, Chief Justice G. Mennen Williams, Justice Dorothy Comstock Riley, Justice Charles L. Levin, Justice James L. Ryan, Justice James H. Brickley, Justice Michael F. Cavanagh, Justice Patricia J. Boyle, and State Judiciary Council, jointly and severally, Defendants.
    No. 85-CV-70470-DT.
    United States District Court, E.D. Michigan, S.D.
    April 30, 1985.

      Sue E. Radulovich, Ronald P. Sandler, Detroit, Mich., for plaintiffs.
    Merry A. Rosenberg, George H. Weller, Asst. Atty. Gen., Lansing, Mich., for defendants.
   OPINION

FEIKENS, Chief Judge.

This action is brought by certain bailiffs (“plaintiffs”) for the State of Michigan who allege that the new Michigan Court Rules violate their constitutional rights. Specifically, they claim that by authorizing persons other than bailiffs to serve process, the Rules deprive plaintiffs of a property interest without due process of law or just compensation. I conclude that defendants are immune from suit by virtue of the Eleventh Amendment and legislative immunity, and that plaintiffs were not deprived of a protected property interest. Accordingly, defendants’ motion to dismiss is granted.

I. FACTS

The facts can be stated succinctly. Plaintiffs are bailiffs of the District Court for the 36th Judicial District for the State of Michigan. M.C.L.A. § 600.8322(1) provides that “[a] bailiff shall hold office until death, retirement, resignation, or removal from office by the court for misfeasance or malfeasance in office.”

Plaintiffs’ compensation is governed by M.C.L.A. § 600.8322(6), which specifies that full-time bailiffs shall receive an annual salary of $20,000, and part-time bailiffs shall receive a pro rata portion of this amount “based on that portion of a full-time bailiff’s workload to be assigned to the bailiff.” This salary is supplemented by fees that bailiffs charge for serving process. M.C.L.A. § 600.8322(6). Plaintiffs allege that this fee for service “resulted in an average payment in 1980 of $39,-000 to each Bailiff as well as a contribution to a pension plan.” Plaintiff’s Motion for a Preliminary Injunction, p. 2.

The dispute in this case centers on who is authorized to serve process. M.C.L.A. § 600.8321(1) provides that “[cjivil process in the district court shall be served by a sheriff, deputy sheriff or a court officer appointed by the judges of the court for such purpose.... ” Subsection two adds that “[ujnder rules of the supreme court, any other person may serve any process or order of the district court which does not require the seizure, attachment or garnishment of property or the arrest of a person.” M.C.L.A. § 600.8321(2). This statutory grant of authority to the Court to issue rules supplements the power conferred by Article 6, Section 5, of the Michigan Constitution: “The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state.”

Prior to March 1, 1985, a Michigan District Court Rule, D.C.R. 103, specified that with the exception of service requiring seizure, attachment or garnishment of property, or arrest, “[pjrocess in civil actions may be served by any person under or pursuant to § 8321(1) of the Revised Judicature Act and by any other person of suitable age and discretion who is not a party nor an officer of a corporate party upon leave of court.” This rule was superseded by the new Michigan Court Rules, which were promulgated by the Michigan Supreme Court and became effective on March 1, 1985. Rule 2.103 allows process in civil actions to be served “by any legally competent adult who is not a party or an officer of a corporate party” (again, with the exception of service involving seizure, attachment, garnishment or arrest). The only difference in the new rule that is relevant to this dispute is that leave of court is no longer required before legally competent adults can serve process.

Plaintiffs argue that this change has caused them great hardship. They allege that under D.C.R. 103, persons other than bailiffs were rarely authorized by courts to serve process. They further allege that because leave of court is no longer required, such persons now routinely serve process. According to plaintiffs, service of process by bailiffs has diminished over 95% and, presumably, there has been a corresponding decline in the fee-for-service portion of their compensation. I must assume that these allegations are true for purposes of this motion.

In this action, plaintiffs sue the State of Michigan, the State Judiciary Council and the individual Justices of the Michigan Supreme Court. Plaintiffs contend that they have a constitutionally protected property interest in serving process exclusively, and that by expanding the class of persons authorized to serve process the new rules deprive them of this property interest. Plaintiffs ask that Rule 2.103 be declared unconstitutional and that defendants be enjoined from enforcing it.

II. DISCUSSION

A. Eleventh Amendment Immunity of the State and State Judiciary Council

It is well established that the Eleventh Amendment immunizes the State and its agencies from a suit for declaratory or injunctive relief unless the State “has consented to the filing of such a suit.” Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3057, 57 L.Ed.2d 1114 (1978). Plaintiffs accept this as the general rule, but argue that the State has consented to this suit. Plaintiffs bear a heavy burden in advancing this claim, for waiver of Eleventh Amendment immunity will be found “only where stated ‘by the most- express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’ ” Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909)).

Plaintiffs suggest that the State’s consent to suit in federal court may be found in M.C.L.A. §§ 600.6419(1), 600.6440. Section 600.6419(1) states that “[ejxcept as provided in section 6440, the jurisdiction of the court of claims as conferred upon it by this chapter over claims and demands against the state or any of its departments, commissions, boards, institutions, arms or agencies shall be exclusive.... ” Section 600.6440 provides that “[n]o claimant may be permitted to file claim in said court against the state nor any department, commission, board, institution, arm or agency thereof who has an adequate remedy upon his claim in the federal courts.... ”

The very argument now advanced by plaintiffs was considered and rejected by the United States Court of Appeals for the Sixth Circuit in Copper S.S. Co. v. State of Michigan, 194 F.2d 465 (6th Cir.1952). The Court held that “there was no intention in creating the Court of Claims to enlarge or extend the existing jurisdiction of the federal courts over the State or any of its departments, commissions or agencies.” 194 F.2d at 468.

Plaintiffs assert that the decision in Oliver v. Kalamazoo Board of Education, 73 F.R.D. 30 (W.D.Mich.1976), rev’d on other grounds, 576 F.2d 714 (6th Cir.1978), supports their position. While the Court in Oliver did find a waiver of sovereign immunity, that waiver was inferred from M.C.L.A. § 388.1007, which explicitly authorized suits against the State Board of Education. The Court did not hold that M.C.L.A. § 600.6440 waived the State’s sovereign immunity; it merely indicated that this statute did not conflict with the explicit waiver in M.C.L.A. § 388.1007. In light of the Court’s conclusion that M.C. L.A. § 600.6440 was “totally irrelevant” to the suit before it, 73 F.R.D. at 36, the Oliver case obviously does not support plaintiffs' contention.

Alternatively, plaintiffs argue that waiver may be found in State constitutional and statutory provisions authorizing courts to determine just compensation when private property is taken for a public use. MICH. Const. Art. 10 § 2; M.C.L.A. §§ 213.51-213.75. At most, these provisions might waive immunity in suits in which there is a property interest and that interest is converted to a public use—conditions that are not present here. Furthermore, the ambiguity of the State’s “consent” is increased by the fact that the provisions relied on by plaintiffs do not expressly authorize federal court actions.

In sum, I cannot find in these provisions the “express language” or “overwhelming implication” that Edelman indicates are prerequisites to a State’s waiver of Eleventh Amendment immunity. I therefore conclude that the State of Michigan and the State Judiciary Council are protected from suit by their sovereign immunity and the claims against them must be dismissed.

B. Legislative Immunity of the Individual Justices ■

Defendants argue that the remaining defendants, the individual Supreme Court Justices, are protected from suit by legislative immunity. A similar claim was considered in Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980), where a plaintiff attempted to enjoin Virginia Supreme Court Justices from enforcing a disciplinary rule against attorney advertising. The United States Supreme Court held that because the Justices claimed inherent power to regulate the Bar and were “exercising the State’s entire legislative power with respect to regulating the Bar, ... its members are the State’s legislators for the purpose of issuing the Bar Code. Thus the Virginia Court and its members are immune from suit when acting in their legislative capacity.” 446 U.S. at 734, 100 S.Ct. at 1976. More specifically, the Court indicated that “[i]f the sole basis for [plaintiffs’] § 1983 action against the Virginia Court and its chief justice were the issuance of, or failure to amend, the challenged rules, legislative immunity would foreclose suit against [the defendants].” 446 U.S. at 734, 100 S.Ct. at 1976.

The Court went on to find, however, that the Justices were liable insofar as they were acting in their enforcement capacity, and left open the question of whether they could be sued for acts in their judicial capacity. The Court observed that the Justices had inherent authority to enforce the disciplinary rules as well as statutory authority to discipline, suspend and disbar attorneys. 446 U.S. at 737, 100 S.Ct. at 1977. Based on this enforcement authority, the Court concluded that “the Virginia Court and its members were proper defendants in a suit for declaratory and injunctive relief, just as other enforcement officers and agencies were.” 446 U.S. at 736, 100 S.Ct. at 1977 (footnote omitted).

It is evident that in promulgating the rule in dispute here the Justices were acting in a legislative capacity. The Justices acted pursuant to their inherent authority to supervise the courts and the State Constitution’s delegation of authority to enact rules governing practice and procedure. Hence, as in Consumers Union, the Justices “are the State’s legislators” for purposes of adopting these rules. 446 U.S. at 734, 100 S.Ct. at 1976. Consumers Union clearly teaches that legislative immunity forecloses suit against the Justices for “the issuance of, or failure to amend, the challenged rules.” 446 U.S. at 734, 100 S.Ct. at 1976.

Plaintiffs seek to avoid this bar by arguing that the Justices may be sued in their enforcement capacity. The plaintiffs have not, however, pointed to any acts of enforcement that the Justices have undertaken or may undertake at any time in the future. On the contrary, the rule at issue is permissive, not proscriptive; no enforcement is necessary for it to be effectuated. The only action required of the Justices was the formulation and issuance of the rule, and Consumers Union holds that this action is protected by legislative immunity.

I conclude that plaintiffs have failed to allege any conduct by the individual defendants that would not fall within the cloak of legislative immunity. Accordingly, the claims against these defendants must also be dismissed.

C. Plaintiffs’ Alleged “Property Interest”

I turn finally to plaintiffs’ claim that they have a protected property interest. Ordinarily I would not address this question, having already decided that the case must be dismissed on jurisdictional grounds. In this case, however, I am loath to dismiss this federal constitutional claim solely on the basis of what one might argue are close jurisdictional questions. To do so would force plaintiffs to seek judicial relief in the state courts, where their rights would be determined by the Michigan Supreme Court, a defendant in this action. From a pragmatic point of view, the layman may be at a loss to understand the fairness of such a result. Consequently, in the unusual circumstances of this case, I think it is necessary to discuss the merits of plaintiffs’ claims. .

The starting point in determining whether plaintiffs have a protected property interest is the analytical framework explained in Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). In Roth, the Supreme Court indicated that:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it....
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

In this case, plaintiffs are not simply arguing that they have a property interest in their jobs as bailiffs, for no plaintiff has been discharged from this position. Instead, plaintiffs claim that by permitting other persons to serve process, the State effectivély caused a substantial diminution in plaintiffs’ position. Hence, the essence of plaintiffs’ claim is that their property interest includes the right to serve process exclusively.

In predicating their case on such a claim, plaintiffs grasp at the thinnest of threads. Plaintiffs suggest that the sources of this right are M.C.L.A. § 600.8321 and D.C.R. 103, which preceded the new rule. The statute, however, explicitly authorizes the Supreme Court to adopt rules permitting any person to serve process, and D.C.R. 103 allowed any person of suitable age to serve process with leave of court. Hence, if the entitlement asserted by plaintiffs is to be found, its source must be the requirement that persons other than bailiffs could serve process only with leave of court: this requirement is the only relevant difference between the old rule and the new rule.

It cannot seriously be thought that such a requirement gave plaintiffs an entitlement to serve process to the exclusion of all others. The “leave of court” requirement simply empowered a court to accommodate reasonably the interests of the parties to litigation as well as the judiciary’s interests; there is no indication that it was intended for plaintiffs’ benefit. See Ash v. Board of Education, 699 F.2d 822, 826 (6th Cir.1983). Nor did it constitute any sort of guarantee that others would not serve process; this decision was left to the discretion of the Court. In short, it clearly did not create the entitlement claimed by plaintiffs.

In support of this conclusion it should be added that even if the rules had only authorized plaintiffs to serve process, plaintiffs can point to no language even hinting that this was a right that would exist in perpetuity. On the contrary, the State Constitution permits the Supreme Court to modify, amend and simplify these rules as needed. See Ash, 699 F.2d at 826 (holding that statutory requirement that wages be specified in contract did “not contain any restrictions on the Board’s right to adopt an amended school calendar with an attendant reduction in the teachers’ salaries due to their participation in an illegal strike,” and therefore did “not provide the plaintiffs with a protected property interest”).

The Court is aware that the change in the court rules may cause a substantial hardship to plaintiffs and result in disappointed expectations. This, unfortunately, will often be the case when the legislature or the courts modify rules or regulations in a manner that diminishes, or even eliminates, the responsibilities of some individuals. But such individuals cannot find relief in ambiguous, discretionary, or impermanent statutory authorizations that do not remotely purport to create an entitlement. Instead, they must seek relief from the Legislature, or perhaps in this case the Michigan Supreme Court. To reiterate the teachings of Roth: “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. No such entitlement can be found in this case. The absence of a protected property interest independently warrants the dismissal of plaintiffs’ complaint.

III. CONCLUSION

Defendants’ motion to dismiss is granted. An appropriate order may be submitted.

      . The reasons that plaintiffs do not have a cognizable "property interest” are explained infra.

      . This Court has repeatedly indicated its concern to plaintiffs that they were not suing the proper defendants. On March 11, 1985 plaintiffs were given leave to amend their complaint, but they failed to add any new defendants. Subsequently, the Court specifically asked the parties to submit briefs indicating whether the individual defendants have any enforcement powers that may be enjoined. Nevertheless, plaintiffs have neither added defendants who are more directly involved in the administration and execution of the rule, nor indicated what specific enforcement powers the Justices possess that are relevant to Rule 2.103 and may be exercised.

      . In an earlier proceeding, I indicated my intention to abstain in this case, so that the issue of whether plaintiffs had a property interest under state law could be certified to the Michigan . Supreme Court. I subsequently decided that this would be inappropriate for the pragmatic reason indicated in text, and also because resolution of the jurisdictional issues was required before a decision could be made on abstention.

      . There are additional reasons why consideration of plaintiffs’ alleged property interest is warranted. First, the existence of this property interest is inextricably part of defendants’ jurisdictional argument, see note 1 supra, and thus its resolution is required. Second, plaintiffs’ claim to a property interest is arguably so insubstantial that it should be addressed as an independent jurisdictional basis for dismissal. See Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776-77, 90 L.Ed. 939 (1946).

      . There are some additional limitations, but they are not relevant to this dispute.

      . Plaintiffs also suggest two other sources of the entitlement they claim. First, they point to M.C.L.A. § 600.8322(1), which provides that ”[a]ll process issued by the district court in civil actions shall be rotated among the bailiffs pursuant to rules adopted by the court.” It is apparent that the language "all process” in this provision refers to all process that is served by bailiffs, for § 600.8321(2) expressly permits some process to be served by persons other than bailiffs. This conclusion is dictated by the cardinal rule of statutory constructions that "[d]if-ferent portions of the same statute should be read and interpreted consistently with each other, avoiding conflicts.” United States v. Stauffer Chemical Co., 684 F.2d 1174, 1186 (6th Cir.1982); aff’d, 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984).
      Plaintiffs have also made passing reference to their "understanding.” However, plaintiffs point to no promises, representations or other facts that might support such an understanding. It is clear that a unilateral expectation is insufficient, and plaintiffs have made no specific allegations that would permit this Court to infer anything more than this.


source: Caselaw Access Project

author: McLAUGHLIN, District Judge.

license: Public Domain

text:
    UNITED STATES of America, v. Alice MICHELSON, Defendant.
    No. 84-CR-578(S-2).
    United States District Court, E.D. New York.
    April 30, 1985.

      Raymond J. Dearie, U.S. Atty. for the E.D. of N.Y., Jane Simkin Smith, Asst. U.S. Atty., Brooklyn, N.Y. (Carol B. Amon, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for plaintiff.
    Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City (Leonard B. Boudin, Judith Levin, Betty St. Clair, New York City, of counsel), for defendant.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

Defendant is charged in a three-count indictment with conspiracy to transmit to the Soviet Union, information relating to the national defense, 18 U.S.C. § 794, aiding and abetting Soviet agents in an attempt to receive classified information, 50 U.S.C. § 783(c); 18 U.S.C. § 2, and acting as an agent of the Soviet Union without notifying the Secretary of State. 18 U.S.C. § 1951. For purposes of the issue now before the Court, the first count charges a capital offense, notwithstanding the government’s disclaimer of any intention to seek the death penalty. See United States v. Kostadinov, 721 F.2d 411, 412 (2d Cir.1983).

Defendant has moved for the third time for an Order releasing her on bail pending trial. The two previous applications were denied on December 28, 1984 and March 5, 1985. Because of the sequence of events in this case, and the timing and effect of the Bail Reform Act of 1984 (the “Act”), 18 U.S.C. § 3141 et seq., a somewhat detailed chronology is required.

Facts

Defendant was arrested on October 1, 1984 at John F. Kennedy Airport in this district. She was arraigned on a complaint before Magistrate Caden on October 2, 1984, charged with conspiracy to commit espionage, the crime now charged in Count One of the Indictment. He remanded defendant after finding, in accordance with United States v. Kostadinov, 572 F.Supp. 1547 (S.D.N.Y.), aff'd, 721 F.2d 411 (2d Cir.1983), that defendant posed a risk of flight. Defendant was not prepared at that time to make a bail application.

Defendant was indicted on October 10, 1984 for the offense charged in the complaint. On October 12, 1984, prior to defendant’s arraignment on the Indictment, the Act went into effect. At defendant’s arraignment before Magistrate Chrein on October 18, 1984, the Magistrate, with defendant’s consent, referred the question of bail to this Court. The government took no position and, most significantly, did not seek a detention hearing as provided for in the Act. 18 U.S.C. § 3142(f).

The bail question lay dormant for several months, during which defendant was arraigned, without any discussion of bail, on the first of two superseding indictments. Finally, on December 28, 1984, defendant made her first application to this Court for bail, premising her argument squarely on the Act. Transcript of Dec. 28, 1984, at 6-15. In opposition, the government for the first time, requested a detention hearing in accordance with the Act.

After hearing counsel’s arguments, the Court weighed the factors enumerated in § 3142(g) of the Act. These include the nature and circumstances of the offense, the weight of the government’s evidence, and defendant’s history, character, family ties, and length of residence in the community. Also considered was defendant’s claim that the German Democratic Republic, and its Acting Ambassador to the United States, would guarantee defendant’s presence in Court when necessary prior to trial. Although not suggesting any lack of bona fides on the part of the Acting Ambassador, the Court found “by clear and convincing evidence that no condition or combination of conditions set forth in [the Act] would reasonably assure the appear-anee of the defendant at this point.” Transcript of Dec. 28, 1984 at 36.

Several months later, on March 1, 1985, defendant was arraigned on a second superseding indictment, and made her second bail application to this Court. At this juncture, defendant for the first time suggested that, given the dates of the offenses charged (pre-Act), and the effective date of the Act, the old bail statutes should be applied. The Court adhered to its previous ruling and concluded that it was immaterial to the decision which bail statute governed:“Comparison of the new statute, 18 U.S.C. § 3142, with the old, 18 U.S.C. §§ 3146(b), 3148 (repealed October 12, 1984), demonstrates that the factors to be considered in ordering release or detention are the same.” Memorandum and Order of Mar. 5, 1985 at 2 n. 1.

Finally, on April 15, 1985, defendant made this, her third, bail application. Taking an understandably pragmatic approach to the problem, defendant has renewed her earlier claim that the Act applies, and seeks solace from the Second Circuit’s recent decision in United States v. Payden, 759 F.2d 202 (2d Cir.1985).

Discussion

Payden presented the Second Circuit with facts similar to those now before the Court. On the date the Act became effective, October 12, 1984, Payden was incarcerated on narcotics charges in lieu of $250,000 bail. Five days later Payden was arraigned on a superseding indictment; the government did not seek a detention hearing at that time. On October 31, 1984, the government first moved for preventive detention under the Act.

Section 3142(f) of the Act governs when a detention hearing is to be held: “The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the government, seeks a continuance.” 18 U.S.C. § 3142(f). The Payden Court held that by not seeking a detention hearing at the October 17, 1984 arraignment, defendant’s first post-Act appear-anee before a judicial officer, the government had forfeited its right to take advantage of the Act’s detention provisions. United States v. Payden, supra, at 204-205.

Defendant’s situation in this case is strikingly similar to that of Payden. When the Act became effective, defendant was incarcerated without bail and had just been indicted. Her arraignment took place six days after the Act went into effect. It is undisputed that the government did not seek detention at that arraignment, or five days later at defendant’s first appearance before this Court.

Applying Payden to this case, it is obvious the government has not complied with the “first appearance” requirement of § 3142(f). As of October 18, 1984, therefore, the date defendant was arraigned, the government lost its right to a detention hearing under the Act. The question remains, however: what consequences ensue?

Defendant suggests that because the Act was violated, this Court must now set appropriate conditions of pretrial release. That, however, is not the remedy dictated by Payden: “[We] remand for reconsideration in accordance with the bail laws under which the court was effectively operating at the time of Payden’s arraignment.” United States v. Payden, supra, at 205 (footnote omitted). This Court, therefore, will apply to defendant’s latest bail application the laws under which the Magistrate was “effectively operating” at defendant’s arraignment on October 18, 1984; that is, the old bail statutes governing pretrial release in capital cases.

Prior to its repeal, 18 U.S.C. § 3148 provided that a person charged with a capital offense “shall be treated in accordance with section 3146 unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community.” 18 U.S.C. § 3148 (repealed October 12, 1984). Nobody suggests that defendant poses a danger to any person or to the community; the controversy centers on whether she presents a risk of flight.

Section 3146(b) of the old bail act directs a court considering what conditions, if any, will reasonably assure appearance to consider

the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused’s family ties, employment, financial resources, character and mental condition, the length of this residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.

18 U.S.C. § 3146(b) (repealed October 12, 1984). In ruling on defendant’s December, 1984 bail application under the Act, this Court considered those same factors. Transcript of Dec. 28, 1984 at 33-36. Those are also the factors Magistrate Ca-den considered at defendant’s pre-Act arraignment on the criminal complaint, and which were discussed in United States v. Kostadinov, 572 F.Supp. 1547 (S.D.N.Y.), aff'd, 721 F.2d 411 (2d Cir.1983).

Defendant claims that, as a collateral consequence of the government’s failure to comply with the Act, this Court may not now consider any information not available to the government and proffered as of October 18, 1984. See United States v. Resek, 602 F.Supp. 1126 (S.D.N.Y.1985). Assuming without admitting that Resek was right, this Court will consider only information available to it on October 18, 1984.

The defendant also suggests that the Court cannot consider any findings made by Magistrate Caden at the October 2, 1984 arraignment oh the complaint. The basis for this argument is that prior to its repeal by the Act, 18 U.S.C. § 3141 denied bail jurisdiction to Magistrates in all capital cases. There is, however, sufficient information available for this Court to rule on defendant’s present application, independent of the Magistrate’s findings. This information consists of the affidavit of David Major in support of the criminal complaint, and in the data contained in the October 18, 1984 report from the Pretrial Services Agency.

The Major affidavit and the Pretrial Services report establish that defendant is charged with conspiracy to commit espionage, a capital offense. The evidence against her is strong, consisting mostly of conversations among a United States Army officer and defendant’s unindicted co-conspirators, surveillance evidence, and taped conversations. Defendant is a citizen of East Germany who claimed to have been on her first trip to the United States at the time of her arrest. She admitted to the Pretrial Services Agency that she has no close relatives, friends or family ties in the United States, although her moving papers refer to a cousin in Texas.

In support of her present application, defendant once again relies on the assurances of the East German Ambassador, Dr. Gerhard Herder, that he will guarantee defendant’s appearance in Court. Defendant also suggests that she will sign a personal recognizance bond, and that Dr. Herder will sign an appearance bond as Ambassador and on behalf ot he German Democratic Republic. Finally, defendant contends that because another East German national charged with espionage, Professor Zehe, was released to the custody of Ambassador Herder and appeared when required, she too merits the same treatment. United States v. Zehe, 601 F.Supp. 196 (D.Mass.1985).

Although there is no doubt as to the bona fides of Ambassador Herder, this Court remains convinced by a preponderance of the evidence that no condition or combination of conditions will reasonably assure defendant's appearance when required. The word of Ambassador Herder, however sincere, is not sufficient. As was pointed out by the district court in Kostadi-nov, Ambassadors serve at the pleasure of their government. Additionally, it is defendant, not Ambassador Herder, who is charged with espionage and who will be imprisoned if convicted. See United States v. Kostadinov, supra, 572 F.Supp. at 1552-53. Finally, it is significant that there is no extradition treaty between the United States and East Germany that would give reasonable assurance to the Court that defendant could be returned to the United States if she fled to her homeland.

Accordingly, defendant’s third application for pretrial release is denied.

SO ORDERED.

      . This is actually the fourth time the issue of bail has been addressed in this case. The first time was at defendant’s arraignment on the complaint, on October 2, 1984.

      . The Bail Reform Act requires that if a defendant is to be detained prior to trial because he is a danger to the community, the government must make such a showing by "clear and convincing evidence." 18 U.S.C. § 3142(f). No standard is specified for detention based on risk of flight; this Court chose to- apply the "clear and convincing" standard in its decision on December 28, 1984. The Second Circuit has recently held that the standard to be applied in risk of flight cases, under both the old and new Acts, is proof by a preponderance of the evidence. United States v. Chimurenga, 760 F.2d 400, 405-406 (2d Cir.1985).


author: VUKASIN, District Judge.

text:
    Lynette ROGERS, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, et al., Defendants.
    No. C-83-0719 JPV.
    United States District Court, N.D. California.
    April 30, 1985.

      Albin E. Danell, San Jose, Cal., for plaintiff.
    Debra Seymour, Asst. U.S. Atty., San Francisco, Cal., for defendants.
   AMENDED ORDER DENYING PLAINTIFF’S MOTION FOR CHANGE OF VENUE AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

VUKASIN, District Judge.

FACTS

Plaintiff, a former employee of the Veterans Administration ["VA”], seeks by this action to compel the alteration of certain purportedly erroneous records stemming from her repeated disability claims. She was initially hired by the VA as a staff nurse in 1968, and over a period of time was promoted to the position of Head Nurse for the Medical and Dermatology Ward. She subsequently encountered numerous on-the-job difficulties, resulting in reassignment to her former staff nurse position in 1972, then to a clerical position in 1973, and, ultimately, in her 1975 termi: nation. Rogers filed her first disability claim under the Federal Employees’ Compensation Act [“FECA”], 5 U.S.C. § 8101 et seq. in March, 1973, following her first reassignment, taking extended sick leave at the same time. In her applications for disability benefits she claimed she suffered from continual stress and hypertension due to actions taken against her by supervisors at the VA — actions which she claimed were in the nature of harassment, intimidation, and coercion.

The Office of Workers’ Compensation Programs [“OWCP”] processed plaintiff’s claims in accordance with Department of Labor [“DOL”] regulations set forth at 20 C.F.R. Part 10. In the course of this processing, evidence was obtained both from Rogers and from relevant VA personnel; plaintiff was also examined by a specialist in internal medicine, who furnished his findings for the OWCP’s consideration. Cf 20 C.F.R. § 10.130. On October 31, 1974, and June 2, 1975, the OWCP Director rejected Rogers’ claim for disability compensation, ruling that she had failed to establish that her disorders were employment related. Pursuant to 5 U.S.C. § 8124(b) and 20 C.F.R.. § 10.131, plaintiff then requested a hearing to present additional evidence in support of her claims. This was held before Hearing Representative Robert P. Duggan on March 18, 1976. Based upon the evidence submitted for his consideration, the Hearing Representative on October 20, 1978, affirmed the earlier Order finding that plaintiffs disorders were of a pre-existing nature, and therefore not attributable to her employment.

Rogers thereafter commenced this action under the Privacy Act of 1974, 5 U.S.C. § 552a,. seeking to compel the DOL to amend certain records it compiled in the course of processing her disability claim under FECA. Plaintiff contends, that it was the inaccuracy of these records which caused her to be denied disability benefits to which she was otherwise entitled. Plaintiff also seeks statutory damages from the DOL on the grounds that the agency maintained in its files “factually erroneous information” detrimental to her. Cf 5 U.S.C. § 552a(g)(4).

Plaintiff has now moved for a change of venue to the San Jose Division of this District; defendant has filed a cross-motion for summary judgment, or, in the alternative, dismissal of the complaint.

DISCUSSION

Plaintiff seeks the following specific amendment/expungement of relevant file materials:

(a)Amendment of the OWCP decisions of October 31, 1974, and June 2, 1975, to reflect that the actions taken against her by her supervisors at the VA were not standard disciplinary actions;
(b) Amendment of the physician’s diagnosis to the extent she disagreed with it;
(c) Expungement of a certain narrative relating to plaintiff’s performance at the VA, furnished by her former supervisor; and
(d) Recission of Hearing Representative Duggan’s decision to the extent that it relies upon the foregoing evidence.

The Privacy Act allows for the amendment of factual or historical errors. It is not, however, a vehicle for amending the judgments of federal officials or of other parties as those judgments are reflected in records maintained by federal agencies. Blevins v. Plummer, 613 F.2d 767, 768 (9th Cir.1980). Moreover, it may not be employed as a skeleton key for reopening consideration of unfavorable federal agency decisions.

The amendments sought by plaintiff in the documents described in (a) and (d) are thus disallowed. These documents reflect agency judgment — not factual or historical errors — and are thus not subject to amendment under the Privacy Act. Further, Rogers’ proposed amendment/expungement of the documents described in (b) and (c) will also be denied. Both the report reflecting the medical diagnosis of plaintiff and the report of plaintiff’s supervisor are among the most relevant records evaluated by the OWCP in making an award determination, and normally will be an issue in quasi-judicial proceedings such as those below. See 20 C.F.R. §§ 10.130-10.150, 501.1-501.13.

The Office of Management and Budget, the agency charged by Congress with responsibility for implementing the Privacy Act, specifically addressed considerations of this nature in the guidelines it promulgated pursuant to Section 6 of the Act:

[Tjhese provisions for amending records are. not intended to permit the alteration of evidence presented in the course of judicial, quasi-judicial, or quasi-legislative proceedings. Any changes in such records should be made only through the established procedures consistent with the adversary process. These provisions are not designed to permit collateral attack upon that which has already been the subject of a judicial or quasi-judicial action. For example, these provisions are not designed to permit an individual to challenge a conviction for a criminal offense received in another forum or to reopen the assessment of a tax liability, but the individual would be able to challenge the fact that conviction or liability has been inaccurately recorded in his records.

Note foil. 5 U.S.C. § 552a; 40 Fed.Reg. 28958 (July 9, 1975); Turner v. Department of Army, 447 F.Supp. 1207, 1212 n. 17 (D.D.C.1978). Mindful of this, the Court must of necessity find that the evidence to which plaintiff objects is not subject to collateral attack — and so may not properly be amended — under provisions of the Privacy Act. Defendant’s motion for summary judgment must therefore be granted.

IT IS SO ORDERED.

      . Because the Court hereby grants defendant’s motion for summary judgment, plaintiff’s motion for change of venue is moot.

      . Agency regulations promulgated pursuant to a specific congressional authority are presumptively valid and are entitled to great deference. Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 854-855, 28 L.Ed.2d 158 (1971).


author: BENSON, Chief Judge.

text:
    Jeanice LITTLE, Plaintiff, v. DEVILS LAKE-SIOUX MANUFACTURING CORPORATION, Defendant.
    Civ. No. A2-84-134.
    United States District Court, D. North Dakota, Northeastern Division.
    April 30, 1985.
    Karen Wills, Kuchera, Stenehjem & Wills, Grand Forks, N.D., for plaintiff.
    Bruce E. Bohlman, Bruce E. Bohlman, Ltd., Grand Forks, N.D., for defendant.
   MEMORANDUM AND ORDER

BENSON, Chief Judge.

Defendant Devils Lake Sioux Manufacturing Corporation has moved for summary judgment in the above-entitled matter.

Background

Plaintiff Jeanice Little alleges in her complaint that Defendant discriminated against her by reason of her race, in violation of Title VII, 42 U.S.C. § 2000e et seq. Plaintiff, a Caucasian female, alleges she was wrongfully discharged from her job as an assembler after an altercation with a fellow employee of Defendant. Plaintiff alleges she was denied her right to an internal grievance conference following her discharge, although Native American employees are regularly given this opportunity in accordance with Defendant’s policy.

Defendant contends this court does not have subject matter jurisdiction over Plaintiffs claims. Plaintiff originally filed an employment discrimination complaint with the Equal Employment Opportunity Commission (EEOC) on December 6, 1983. The EEOC dismissed the complaint on March 28, 1984, for lack of jurisdiction.

Facts

Plaintiff is a Caucasian female who resides in Devils Lake, North Dakota. Defendant is a corporation organized and existing under the laws of the State of North Dakota, and it is located on the Devils Lake Sioux Indian Reservation at Fort Totten, North Dakota. The Devils Lake Sioux Tribe owns 51% of the common stock of Defendant, and the remaining stock is owned by the Brunswick Corporation of Skokie, Illinois.

Defendant has been primarily involved since its organization with the performance of government procurement contracts for the United States Department of Defense. Defendant participates in small business minority set aside programs under 15 U.S.C. § 637, and it was primarily engaged in the performance of such government contracts from May 1979 to May 1983, the dates of Plaintiffs employment.

Defendant has not presented any evidence to show that it actually publicized, printed, or posted any policy by which Native Americans would be given preference in relation to its employment practices. The Chairman of the Board of Directors of Defendant states in an affidavit filed with the court, however, that “[t]he publicly announced employment practice of the corporation is to give preferential treatment to American Indians living on or near the Devils Lake Sioux Indian Reservation.” Plaintiff has presented portions of Defendant’s employee handbook, which provides that Defendant gives its “wholehearted support to the principle of Equal Opportunity Employment.”

Discussion

The issue before the court is whether the alleged acts of Defendant fall within the exclusion of Title VII in 42 U.S.C. § 2000e-2(i). Section 2000e-2(i) provides:

Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian reservation with respect to any publicly announced employment practice of such business or enterprise under which a preferential treatment is given to any individual because he is an Indian living on or near a reservation.

42 U.S.C. § 2000e-2(i) (emphasis added).

Defendant contends the above exclusion applies in this case, and it has a “publicly announced employment practice” of preferring American Indians by virtue of the provisions of 25 U.S.C. § 450e. Section 450e(b) provides in relevant part:

Any contract, subcontract, grant, or subgrant pursuant to this Act, sections 452 to 457 of this title, or any other Act authorizing Federal contracts with or grants to Indian organizations or for the benefit of Indians, shall require that to the greatest extent feasible—
(1) preferences and opportunities for training and employment in connection with the administration of such contracts or grants shall be given to Indians ....

25 U.S.C. § 450e(b) (emphasis added).

Defendant is an “Indian organization,” within the meaning of 25 U.S.C. § 450e(b), because 51% of the corporation is owned by the Devils Lake Sioux Indian Tribe. See 25 U.S.C. § 1452(e) (“economic enterprise” defined for purposes of the Indian Financing Act of 1974, 25 U.S.C. ch. 17, as any Indian-owned commercial, industrial, or business activity established for the purpose of profit, provided that such Indian ownership constitutes not less than 51% of the enterprise). In addition, Defendant was primarily engaged in the performance of government contracts during the years of Plaintiffs employment. Therefore, the requirements of 25 U.S.C. § 450e(b) apply to the government contracts performed by Defendant, and Defendant is thus required to give preference in training and employment to Indians in connection with the administration of the government contracts.

The Tenth Circuit has given section 2000e-2(i) a broad scope. See Livingston v. Ewing, 601 F.2d 1110, 1114 (10th Cir.), cert. denied, 444 U.S. 870, 100 S.Ct. 147, 62 L.Ed.2d 95 (1979) (interpretation of “employment practice” within meaning of 2000e-2(i)). In so doing the Tenth Circuit stated:

To give it such a narrow effect would thwart the entire effort and not allow the Indians to develop as entrepreneurs, and it would place them in a position of having to compete with Anglo businessmen and employ competitive practices, and would tend to sacrifice the educational and cultural object.

601 F.2d at 1114.

Plaintiff relies on a 1973 decision in which the EEOC found the preferential hiring of a Native American teacher’s aide was an unlawful employment practice because of the absence of a public announcement regarding the employer’s policy of preference at the time the teacher’s aide position was advertised. EEOC Decision 74-26, 2 Emp.Prac. Guide § 16398 (1973). The EEOC has now found, however, that subject matter jurisdiction was lacking in the present case.

This court holds the present case falls within the exclusion to Title VII in 42 U.S.C. § 2000e-2(i). The statutory preference requirement in 25 U.S.C. § 450e(b), in conjunction with the Chairman of the Board’s statement that Defendant had a publicly announced employment practice of giving preferential treatment to American Indians, are sufficient to meet the “publicly announced employment practice” element of the exclusion. There is no genuine issue as to any material fact in this case and Defendant is entitled to judgment as a matter of law.

IT IS ORDERED judgment be entered for the dismissal of the complaint and cause of action without costs.


author: WILLIAM C. CONNER, District Judge:

text:
    Anthony COOK, Plaintiff, v. The CITY OF NEW YORK; Edward I. Koch, Mayor; New York City Police Department; Police Officer Paul Amundson; Police Officer Ervon Ludvig; New York City Department of Corrections; Warden Vernon Baines, Bronx House of Detention for Men; Corrections Captain J. Lesser; Corrections Officer J. Rosado; Mario Merola, Bronx County District Attorney; Laurence Lebowitz, Assistant District Attorney, Defendants.
    No. 83 Civ. 1857 (WCC).
    United States District Court, S.D. New York.
    May 1, 1985.

      Anthony Cook, pro se.
    Frederick A.O. Schwarz, Jr., Corp. Counsel for City of New York,- New York City, for defendants; Antonia Levine, Robert Li-gansky, Asst. Corp. Counsels, New York City, of counsel.
   WILLIAM C. CONNER, District Judge:

Plaintiff Anthony Cook (“Cook”), an inmate at the Green Haven Correctional Facility, brought this pro se action under 42 U.S.C. § 1983 against various police and corrections officers alleging that they violated his constitutional rights while he was being held at the Bronx House of Detention for Men pending trial. In particular, Cook alleges that these officials unlawfully seized a telephone/address book from his cell without a valid search warrant. He contends that this seizure deprived him of (1) his Fourth Amendment right to be free from unreasonable searches and seizures; (2) his Fourteenth Amendment right not to be deprived of his property without due process of law; (3) his Eighth Amendment right to be free of cruel and unusual punishment; and .(4) his Sixth Amendment right to compulsory process, since the address book contained the names and addresses of witnesses he intended to call at his trial.

In an Opinion and Order dated January 5, 1984, familiarity with which is presumed, this Court denied a motion by defendants to dismiss plaintiff’s complaint. See Cook v. City of New York, 578 F.Supp. 179 (S.D.N.Y.1984). At that time, I ruled that while prison officials need not secure a search warrant before making a search of a prisoner’s cell, such a search could, under some circumstances, violate the Fourth Amendment. I did not address the sufficiency of plaintiff’s Sixth, Eighth, and Fourteenth Amendment claims because defendants presented no arguments with respect to them. Defendants have now renewed their motion to dismiss the Fourth Amendment claim in light of the recent Supreme Court decision, Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and have moved to dismiss the other claims as well. For the .reasons stated below, defendants’ motion is granted.

A. Cook’s Fourth and Fourteenth Amendment Claims

In Hudson v. Palmer, an inmate brought a § 1983 suit against a corrections officer who had made a warrantless search of the inmate’s cell and, in the process, destroyed some of the inmate’s personal belongings. The Supreme Court held that the defendant was entitled to summary judgment because: (1) an inmate has no reasonable expectation of privacy in his prison cell entitling him to Fourth Amendment protection, 104 S.Ct. at 3200, and (2) an unauthorized intentional deprivation of an inmate’s property does not constitute a violation of the due process clause if a meaningful postdeprivation remedy for the loss is available under state law. Id. 104 S.Ct. at 3203. Hudson clearly disposes of Cook’s Fourth and Fourteenth Amendment claims.

First, with respect to the search and seizure issue, the facts of this case are closely similar to those of Hudson. The only arguable difference between the two cases is that Cook was a pre-trial detainee at the time of the alleged violation, while the inmate in Hudson was a convicted prisoner. This difference, however, is not significant. The Supreme Court’s reasoning in Hudson that “[a] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order,” 104 S.Ct. at 3201, cannot be limited to institutions housing convicted persons. “Security and internal order” must also be maintained in institutions holding persons awaiting trial. Thus, I conclude that the holding and reasoning of Hudson bar Cook’s Fourth Amendment claim here.

Hudson also bars Cook's Fourteenth Amendment due process claim since Cook has a meaningful postdeprivation remedy for the alleged loss of his address book. Defendants have denied taking Cook’s book, and therefore it would appear pointless for Cook to pursue the procedures set out in § 435-4.0 of the Administrative Code of the City of New York, which provides for the recovery of items deposited with the police property clerk. However, Cook does have a state law cause of action against defendants for negligence, replev-in, or conversion which could fully compensate him for his alleged property loss. Accordingly, I conclude that Cook has a meaningful postdeprivation remedy, see Parratt v. Taylor, 451 U.S. 527, 543-44, 101 S.Ct. 1908, 1916-17, 68 L.Ed.2d 420 (1981), and that his due process claim must therefore be dismissed.

B. Cook’s Eighth Amendment Claim

Cook’s cruel and unusual punishment claim is similarly without merit. It is well-settled that a governmental act does not constitute an Eighth Amendment violation unless it is “barbarous” or “shocking to the conscience.” Sostre v. McGinnis, 442 F.2d 178, 191 (2d Cir.1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972). Cook’s claim that his address book was illegally seized does not even approach this standard. Therefore, his Eighth Amendment claim must be dismissed.

C. Cook’s Sixth Amendment Claim

Plaintiff’s Sixth Amendment claim must be dismissed as well. As I mentioned above, Cook contends that defendants violated his Sixth Amendment right of compulsory process because the address book they allegedly seized contained the names and addresses of witnesses he intended to call at his trial. In effect, Cook claims that the seizure of his address book precluded him from producing necessary, and by implication exculpatory, witnesses.

Notwithstanding Cook’s decision to style this action as one for monetary damages under 42 U.S.C. § 1983, his Sixth Amendment claim can only be construed as a challenge to the validity of his state court conviction. Accordingly, it is well established that Cook’s sole federal remedy is to petition for a writ of habeas corpus. See Carter v. Newburgh Police Dep’t, 523 F.Supp. 16, 19 (S.D.N.Y.1980), and the numerous cases cited therein. Of course, a federal court may not entertain a habeas corpus petition unless the petitioner first exhausts his state court remedies. Cook evidently has not presented his Sixth Amendment claim to the state courts, and therefore, even if I could convert this action for damages into a petition for a writ of habeas corpus, I could not entertain this claim now.

For the reasons stated above, defendants’ motion to dismiss the complaint is granted, and the Clerk of the Court is directed to enter judgment in favor of defendants.

SO ORDERED.

      . I note that plaintiffs conviction appears to have been entered on a guilty plea. Thus, he may have waived any right to raise his Sixth Amendment claim in a subsequent habeas corpus petition. See Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). Therefore, Cook may have no federal remedy for the alleged violation, but I need not and do not address that issue.


author: GENE CARTER, District Judge.

text:
    IRVIN L. YOUNG FOUNDATION, INC., Plaintiff, v. Evelyn C. DAMRELL, personal representative of the Estate of Frank Damrell, Defendant.
    Civ. No. 82-242-B.
    United States District Court, D. Maine.
    May 1, 1985.

      David Smart, Portsmouth, N.H., John A. Macoul, Salem, N.H., Herbert L. Schultz, Lawrence, Mass., for plaintiff.
    Jay S. Blumenkopf, John A. Graustein, Drummond Woodsum Plimpton & Mac-Mahon, P.A., Portland, Me., William W. Logan, Soule & Soule, Wiscasset, Me., for defendant.
   MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

This action, commenced on November 12, 1982, seeks enforcement of a Massachusetts State Court default judgment in the amount of $148,511.19 (including prejudgment interest) rendered against Frank Damrell, the original Defendant in this action. Pursuant to an ex parte motion by Plaintiff, Irvin L. Young Foundation, Inc., accompanied by the affidavit of Plaintiff’s counsel, the Magistrate issued an order on November 12, 1982 attaching, in the amount of $150,000, Maine real estate owned in joint tenancy by Frank Damrell and Evelyn Coates Damrell at the time the suit was commenced. The Defendant answered the complaint on December 8, 1982, but did not move, at that time, pursuant to D.Me.R. 14(f), for dissolution or modification of the attachment.

On March 28, 1983 Plaintiff moved for summary judgment in the amount of $148,-533.69, plus $33,073.51 in judgment interest accruing from the entry of judgment in the Massachusetts action on February 1, 1980 to the commencement of this action, as well as interest and costs incurred since the commencement of this action. Defendant objected to ' the motion and, on April 7, 1983, moved (1) to stay proceedings in this action until disposition of a motion for relief from judgment in the Massachusetts court which had rendered the judgment; (2) to continue the hearing on the motion for summary judgment until after June 20, 1983, following the completion of discovery in accordance with the Court’s deadline; and (3) to dissolve the ex parte attachment.

Although a hearing date of June 22, 1983 was set for the pending motions, prior to that date the Magistrate, upon agreement of counsel, granted Defendant’s motion to continue the hearing until resolution of the pending Massachusetts proceedings wherein Defendant had sought relief from judgment. On April 12, 1984, hearing was had before the Magistrate on Plaintiff's motion for summary judgment, Defendant’s motion to stay, Defendant’s request for continuance of the hearing on the motion for summary judgment, and Plaintiff’s motion to add Evelyn C. Damrell, the personal representative of the estate of Frank Dam-rell (Mr. Damrell being then deceased), as a party Defendant.

The Magistrate, upon learning that Defendant had taken no action to bring the Massachusetts motion on for hearing, vacated his June 17, 1983 order of continuance and on May 31,1984 issued his Report of Hearings on Motions. On June 18, 1984 Defendant filed objections to (1) the Magistrate’s order denying Defendant’s motion for stay; (2) the Magistrate’s order denying Defendant’s motion to dissolve the ex parte attachment; (3) the Magistrate’s order denying Defendant’s request for continuance of the hearing on the motion for summary judgment; and (4) the Magistrate’s recommended decision granting summary judgment for Plaintiff. On June 21, 1984 the Court granted Defendant’s motion of June 18, 1984 for an extension of time in which to file a memorandum in support of these objections.

Motion For Summary Judgment

In support of its motion for summary judgment, Plaintiff has submitted, inter alia, a copy of the Massachusetts judgment, attested in accordance with the requirements of 28 U.S.C. § 1738, and an affidavit of Plaintiffs president, Mrs. Irvin L. Young, stating that the Massachusetts judgment issued on February 1, 1980 remains unsatisfied. The original Defendant admitted in his answer that the judgment remains unsatisfied.

In opposition to the motion for summary judgment, Defendant has submitted, inter alia, the affidavit of Frank K. Damrell, now deceased, which contains the following averments: Acting in his capacity as president and treasurer of Eastern Tag and Label Corporation [ETLC], Frank K. Dam-rell executed three promissory notes in favor of Plaintiff. In April 1975, the Plaintiff commenced the Massachusetts action on those notes; and upon being served with process in the Massachusetts action Dam-rell referred the matter to an attorney, John Q. Irwin, Esquire, in the belief that he (Damrell) was not personally liable on the notes. Damrell was never advised of the proceedings in the Massachusetts action. Although Irwin was notified of the default judgment, Damrell did not learn of the Massachusetts default judgment against him until the commencement of the present action in this Court. Damrell also states that Irwin, without Damrell’s knowledge or consent, agreed to a dismissal of the Massachusetts action against ETLC, leaving Damrell as the sole Defendant in that action. In addition, he avers that Irwin was suspended from the practice of law at the time of the default judgment.

The “full faith and credit” statute, 28 U.S.C. § 1738, requires that this Court accord the Massachusetts judgment “the same full faith and credit ... as [it has] by law or usage in' the courts of [Massachusetts].” This rule is not without limitation however. Full faith and credit will not be given if the Court which rendered the judgment did not have jurisdiction of the parties or the subject matter. Underwriters National Assurance Co. v. North Carolina Life and Accident and Health Insurance Guaranty Assoc., 455 U.S. 691, 704-05, 102 S.Ct. 1357, 1365-66, 71 L.Ed.2d 558 (1982). Also, a judgment rendered in violation of due process is not entitled to full faith and credit. See Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1027-29 (5th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983).

Although there is no claim that the Massachusetts court was without either personal or subject matter jurisdiction, Defendant asserts that the judgment violates due process and that it is therefore void. In support of this claim Defendant asserts that Damrell was “unaware that the Massachusetts case was still pending against him personally and was never notified that the Massachusetts case was scheduled for trial. Moreover, he was never notified that a default or default judgment had been entered against him in that case.” Defendant’s Memorandum of April 11, 1983, at 23. Defendant also argues that there can be “no doubt” that the Massachusetts action against Damrell in his individual capacity was meritless, and that, therefore, the default judgment was “wrongfully and fraudulently obtained.”

For the most part, the Defendant’s argument and affidavits are directed to the merits of the underlying cause of action in th,e Massachusetts case and to the motion for relief from judgment, under Mass.R. Civ.P. 60(b)(6), currently pending in the Massachusetts court. The issue before this Court is whether the Massachusetts judgment, which remains in full effect, is entitled to full faith and credit in the present action.

Initially it is necessary to determine whether the Rule 60(b)(6) motion pending in the Massachusetts Court affects the finality of the February 1, 1980 judgment. Mass.R. Civ.P. 60(b) is identical to Fed.R. Civ.P. 60(b). Both provide that “[a] motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.” Thus, the pending Massachusetts motion for relief from default judgment does not preclude enforcement of that judgment in the present action. See 7 J. Moore and J. Lucas, Moore’s Federal Practice U 60.29 (2d Ed.1983).

The basis for Defendant’s due process challenge to the Massachusetts judgment is Damrell’s failure to receive notice that: 1) the case was still pending against him in his individual capacity; 2) the case was scheduled for trial; and 3) a default judgment had been entered against him. But there is no contention that Damrell’s counsel of record in the Massachusetts action did not receive proper notice of the proceedings. Indeed, Defendant maintains that Damrell’s attorney received a copy of the default judgment but that counsel never advised the decedent Damrell. The crux of Defendant’s due process argument is that the attorney failed to protect Dam-rell’s interests and did not keep Damrell advised of the progress of the suit. It is also asserted that Damrell’s attorney was suspended from the practice of law at the time the default judgment was entered on February 1, 1980.

In a Florida federal court action brought to enforce a California state court judgment, the Fifth Circuit summarized the applicable due process principles as follows:

The due process requirements in a civil case where only property interests are at stake are, of course, much less stringent than in a criminal case involving life and liberty interests. Thus ordinarily all that due process requires in a civil case is proper notice and service of process and a court of competent jurisdiction; procedural irregularities during the course of a civil case, even serious ones, will not subject the judgment to collateral attack. See Windsor v. McVeigh, 93 U.S. [(3 Otto)] 274, 23 L.Ed. 914 (1876) .... However, “a departure from established modes of procedure can render the judgment void,” Windsor, supra, 93 U.S. at 283, where the procedural defects are of sufficient magnitude to constitute a violation of due process, or, as sometimes more circularly put, where the defects are “so unfair as to deprive the ... proceedings of vitality,” Eagles v. U.S., 329 U.S. 304, 314, 67 S.Ct. 313, 319, 91 L.Ed. 308 (1946), or where the procedural irregularities are serious enough to be deemed “jurisdictional,” Yale v. National Indemnity Co., 602 F.2d 642, 644 (4th Cir.1979)....

Fehlhaber v. Fehlhaber, 681 F.2d at 1027.

First, Defendant contends that there was a meritorious defense to the Massachusetts action and that Plaintiff’s counsel in that action (who is also Plaintiff’s counsel in this action) knew of this defense but pursued a default judgment nevertheless. The existence of a meritorious defense might be a necessary, though not sufficient, predicate for relief from the default judgment under Mass.R.Civ.P. 60(b)(6), as it is under Fed.R.Civ.P. 60(b)(6). See American Metals Service Export Co. v. Ahrens Aircraft, 666 F.2d 718 (1st Cir.1981). Defendant, however, has pointed to no authority, nor can the Court find any, to support the argument that a default judgment was “improperly obtained,” and thus invalid, because the underlying claim was meritless. See Milliken v. Meyer, 311 U.S. 457, 462, 61. S.Ct. 339, 342, 85 L.Ed. 278 (1940) [full faith and credit precludes inquiry into merits].

' In support of her due process argument Defendant points to Bass v. Hoagland, 172 F.2d 205 (5th Cir.), cert. denied, 359 U.S. 816, 70 S.Ct. 57, 94 L.Ed. 494 (1949). In Bass a default judgment from the Kansas federal district court was denied enforcement in the Eastern District of Texas by the Fifth Circuit. In Bass the Defendant, whose attorney had previously withdrawn from the case, failed to appear for the trial. The Bass holding, which has been subject to criticism, See Note, Extending Collateral Attack: An Invitation to Repetitious Litigation, 59 Yale L.J. 345, 348-51 (1950), has recently been limited by the Fifth Circuit to its particular facts:

In Bass, we found that the trial court had erred in entering default judgment for the full amount of the claim where the defendant had no notice of default and no opportunity to present evidence on the amount of damages. Id. at 209-10. Although we held there that the Defendant had been denied due process, we have recently had occasion to clarify that holding. In Fehlhaber v. Fehlhaber, 681 F.2d 1015 (5th Cir.1982) cert. denied, — U.S. -, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983), we pointed out that our finding in Bass that due process had been denied resulted from the combined circumstances of that case: the right to a jury trial was denied though demanded; default was entered solely as a result of Bass’ attorney’s failure to appear for trial; Bass was never provided with any notice of the default (which apparently was entered sua sponte by the Court); the Court found notice had been fraudulently withheld by the opposing party for 2Vi years after entry of judgment; and finally, no trial or evidence was heard as to the amount of damages. Bass, supra, 172 F.2d at 208-09.

Williams v. New Orleans Public Service, Inc., 728 F.2d 730, 735 (5th Cir.1984). It is also notable that Bass did not involve the “full faith and credit” statute, 28 U.S.C. § 1738, and essentially amounted to one federal court examining the circumstances surrounding the issuance of a judgment by another federal court. Indeed, one of the bases for refusing enforcement of the judgment in Bass was that the notice and hearing provisions of Fed.R.Civ.P. 55(6) were not complied with. Bass, supra, 172 F.2d 208-09.

Defendant does not point to any procedural irregularities in the Massachusetts action. Unlike the situation in Bass, all of Defendant’s complaints are directed at the conduct of Damrell’s attorney, not at the procedures of the Massachusetts court.

A point meriting somewhat closer attention is Defendant’s claim that Damrell’s attorney, John A. Irwin, was suspended from the practice of law on August 3, 1978 and remained suspended until February 27, 1980, a few weeks after the judgment of February 1, 1980. The final disciplinary order of August 14, 1979 permitted Irwin to petition for reinstatement after August 31, 1979; however, he did not seek reinstatement until December 31, 1979.

Although on September 14, 1984, the Court ordered briefing on this unusual question, no authority has been presented by Defendant, and none has been discovered by the Court, to support her claim that a court denies due process by sending notices to a party’s attorney of record where that attorney has been suspended during the pendency of a suit. As Defendant appears to acknowledge, it was the attorney’s responsibility to notify his client and the court of his suspension. Massachusetts Supreme Judicial Court Rule 4:01 § 17. Defendant also acknowledges that it is the suspended attorney’s duty to pass on notices to the client. Defendant’s Memorandum of January 3, 1985, at 4. To accept Defendant’s argument — that Damrell was denied due process because he was not advised of the suspension and because the Massachusetts court’s notices were provided to the suspended attorney rather than to Damrell personally — would penalize Plaintiff for the deficient performance of defense counsel. It would also penalize Plaintiff for Damrell’s own admitted failure to communicate with his attorney between 1975, when the Massachusetts action was commenced, and the commencement of this action on the judgment in November of 1982. While Defendant may have an action against Damrell’s attorney, no due process violation has been shown.

Given the narrowly circumscribed parameters for refusing to give full faith and credit to a state court judgment, see Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, the lack of any dispute as to Defendant’s notice of the Massachusetts suit, and the absence of authority or compelling reason for finding a due process violation by the Massachusetts Court in continuing to communicate notices to Damrell through his attorney of record even after that attorney’s suspension, the Court concludes that Defendant has not asserted an adequate basis on which to deny enforcement of the Massachusetts judgment. To hold otherwise would permit the Defendant to benefit from Damrell’s total abdication of any responsibility for keeping apprised of the progress of the Massachusetts suit and Defendant’s own apparent dilatoriness in pursuing to hearing a 60(b) challenge to the judgment in the issuing court, where Defendant’s contentions concerning Irwin’s misconduct and the other circumstances surrounding the entry of the default judgment might properly be explored.

In support of its motion for summary judgment, Plaintiff has filed an appropriately attested copy of the Massachusetts judgment and affidavits confirming that the judgment is in full force and effect and remains unsatisfied. Defendant’s affidavits, though arguably supporting a claim for relief from judgment in the Massachusetts Court, do not raise a genuine issue as to any fact material to the enforceability of the Massachusetts judgment in this Court. Therefore, upon its de novo review of the Plaintiff’s motion for summary judgment, the Court concludes that the Plaintiff is entitled to summary judgment.

Objection To Magistrate’s Order

In addition to reporting his recommended decision on Plaintiff’s motion for summary judgment, in his May 31, 1984 Report of Hearing on Motions the Magistrate ruled on a number of other pretrial matters. Because these other matters were “not dispositive of a claim or defense of a party,” a notice of appeal of the Magistrate’s rulings thereon was required to be filed “within 10 days after the entry of the order.” Fed.R.Civ.P. 72(a). See Jacobsen v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, 594 F.Supp. 583 (D.Me.1984). Defendant filed objections, which the Court will treat as a notice of appeal, on June 18, 1984, 18 days after the entry of the Magistrate’s report. No enlargement of time in which to file the notice of appeal, pursuant to Fed.R.Civ.P. 6(b),' was sought by Defendant. Defendant’s appeal from the Magistrate’s disposition of Defendant’s motion to stay, motion to dissolve ex parte attachment, and request for continuance of the hearing on the motion for summary judgment were not timely, filed; therefore, there is no entitlement to review by this Court under Rule 72(a). Moreover, the Court having determined that Plaintiff’s motion for summary judgment should be granted, the Defendant’s motion to stay and motion to dissolve ex parte attachment are thereby mooted.

Conclusion

Accordingly, the Magistrate’s Recommended Decision on Plaintiffs Motion for Summary Judgment is ACCEPTED; Defendant’s appeal from the Magistrate’s nondispositive pretrial orders is DISMISSED as untimely and, alternatively, as moot; Plaintiff’s Motion for Summary Judgment is GRANTED; and the Clerk is directed to enter judgment for the Plaintiff in the amount of One Hundred Forty-eight Thousand Five Hundred Thirty-three Dollars and Sixty-nine Cents ($148,533.69), plus interest at the rate of eight percent (8%) per annum from February 1, 1980 to the date of this judgment.

So ORDERED.

      . Frank Damrell stated that he learned of the Massachusetts judgment against him when, in November 1982, he was served with the complaint in this enforcement action. Although five months after the commencement of this suit he moved for relief from the Massachusetts judgment, that motion has not yet been heard nor, apparently, has Defendant sought a hearing on that motion. No reason is offered by the Defendant for her delay in pursuing the motion in the Massachusetts court during the almost two and one-half years that this action has been pending.

      . Damrell’s statements concerning Irwin’s actions in the Massachusetts case and Irwin's suspension from the practice of law do not appear to be made on personal knowledge as required by Fed.R.Civ.P. 56(e). However, the Damrell affidavit is accompanied by a copy of the Order of Dismissal (of the claim against ETLC) in the Massachusetts action, as well as a copy of the Order of Temporary Suspension (In re John A. Irwin) dated August 31, 1978 and a copy of the Memorandum of Decision and Judgment (In re John A. Irwin) dated August 14, 1979. Although Damrell’s statements arguably are hearsay and may be inadmissible at trial, plaintiff has not objected to the Court’s consideration of those statements. Instead, plaintiff argues, and the Court agrees, that Irwin’s conduct in the Massachusetts action does not affect the enforceability of the as-yet unaltered Massachusetts judgment.

      . Defendant has not sought equitable relief from this Court independent of the relief now sought from the Massachusetts Court, nor would such a request, based on the alleged negligence of one’s own counsel, be within the scope of the Court's "independent and substantive equitable jurisdiction.” See Indian Head National Bank v. Brunelle, 689 F.2d 245, 250 (1st Cir.1982).

      . Defendant Frank Damrell attests: "I do not recall being served personally in that case, although I do believe I recall being served as an officer of the ETLC.” Damrell Affidavit, ¶ 9. Since Defendant was served with process in some capacity, it was incumbent upon him or his attorney to discover in which capacity and, if appropriate, to challenge the. sufficiency of that service. Moreover, Defendant’s assertion that he was not aware that he was being sued in his individual capacity falls far short of a claim that he did not in fact receive due notice of the action against him.

      . There is no assertion that either the Massachusetts Court or opposing counsel in the Massachusetts action was aware of the suspension of Irwin. Compare Bass v. Hoagland, supra, 172 F.2d at 209 [due process violation where, inter alia, notice of trial was sent only to attorney who had withdrawn from the case]. In her most recent memorandum Defendant asserts for the first time that the Massachusetts Court rendering the judgment in question must have known of Attorney Irwin’s suspension because spch notice is always provided by the Massachusetts Supreme Judicial Court. Section 17(5) provides that notification of suspension or disbarment will be provided to the Clerk of each Massachusetts Court in which the Board "has reason to believe the disciplined attorney has been engaged in practice." The rule does not mandate that all courts be informed, so there is no reason to assume that the issuing court in this case was necessarily one in which the Board had reason to believe Irwin had been engaged in practice. No proof in the form of affidavit or otherwise has been offered that the Court rendering the Massachusetts judgment was actually notified of the attorney's suspension.

      . § 17. Action by Disbarred or Suspended Attorneys
      (1)A disbarred or suspended attorney shall take action (a) to notify all his clients of his disbarment or suspension and his consequent inability to act as an attorney after the effective date of his disbarment or suspension; (b) to notify each client who is involved in pending litigation or administrative proceedings^] and the attorney or attorneys for each adverse party in such matter or proceeding, of his disbarment or suspension and consequent inability to act as an attorney after the effective date of his disbarment or suspension; (c) to advise each client promptly to substitute another attorney or attorneys in his place or to seek legal advice elsewhere; and (d) to give such other notice of the court's action as the court may direct in the public interest.
      (2) Whenever the court deems it necessary, it may appoint (at the expense of the disbarred or suspended attorney or at public expense) a commissioner to take appropriate action in lieu of, or in addition to, the action directed in subsection (1) of this section.
      (3) It shall be the responsibility of the disbarred or suspended attorney to give notice of the disbarment or suspension forthwith to each court or agency in which he appears for any party. Any notice of the disbarment or suspension thus given to the court or agency (or to the attorney or attorneys for an adverse party) shall state the place of residence of the client of the disbarred or suspended attorney, and shall identify the particular proceeding.
      (4) Unless the court orders otherwise, orders imposing suspension or disbarment shall be effective thirty days after entry. The disbarred or suspended attorney, after entry of the disbarment or suspension order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. During the period from the entry date of the order and its effective date, however, he may wind up and complete, on behalf of any client, all matters which were pending on the entry date.
      (5) The Board shall promptly transmit a copy of the order of suspension or disbarment to the Clerk of each court in the Commonwealth, State or Federal, in which it has reason to believe the disciplined attorney has been engaged in practice. ...
      (Emphasis added.)

      .In addition to complaining of a lack of personal notice of matters occurring in the proceedings, Defendant points to Irwin’s conduct in agreeing to a dismissal of claims against the corporate codefendant in the Massachusetts action on September 20, 1979. This action was taken before the order of suspension of August 31, 1978 and became effective twenty days later. See Massachusetts Supreme Judicial Court Rule 4:01 § 17(4).

      . Plaintiff seeks judgment in the amount of the Massachusetts judgment (plus costs), as well as judgment interest from the date of that judgment, February 1, 1980, to the date of the filing of the complaint in this action, November 12, 1982, at the Massachusetts judgment interest rate of 8%, see Mass.Gen.Laws Ann. ch. 235, § 8 and ch. 231, § 6C (amended 1980). Although it seems clear that the Massachusetts judgment interest rate (which is less than the Maine rate) is applicable to the period from the entry of the judgment to the filing of the present action, cf. Knight v. Barnes, 182 F.Supp. 383, 384 (S.D.Cal.1960) [there can be no dispute that rate of the state of rendition applied from the entry of judgment until the registration of the judgment in the District of California court], neither party has addressed the question of whether prejudgment interest in this case should be awarded at the rate provided in the Maine prejudgment interest statute, 14 M.R.S.A. § 1602 (Supp.1983), or at the Massachusetts judgment interest rate. However, inasmuch as the rate in either case would be 8%, the Court need not decide this question. The Plaintiff is entitled to a judgment in the amount of the judgment (plus costs) and interest at the rate of 8% from the date of the Massachusetts judgment to the date of this judgment.

      . It is arguable that the motion for summary judgment, a dispositive motion, could not properly be granted without the Court reviewing the Magistrate’s order denying Defendant’s request tor a continuance of the hearing on the motion for summary judgment. However, the Court has reviewed the Magistrate's disposition of this request and the Court agrees that the April 7, 1983 request that the hearing on the motion for summary judgment be continued until after June 20, 1983 was mooted by reason of the fact that the hearing was held almost ten months later, on April 14, 1984. Moreover, Defendant failed to provide the Magistrate with an affidavit under Rule 56(f) or with any specific reason for a further continuance, other than his desire to attempt further discovery. In view of the foregoing, the Magistrate’s denial of the request for continuance was not "clearly erroneous or contrary to law,” Fed.R.Civ.P. 72(a), but represented a sound exercise of judicial discretion.


text:
    LIONEL LEISURE, INC. v. WAREHOUSE EMPLOYEES UNION LOCAL 169 OF PHILADELPHIA, PENNSYLVANIA.
    Civ. A. No. 84-5834.
    United States District Court, E.D. Pennsylvania.
    May 2, 1985.

      Ross Van Denbergh, of Ehmann & Baldwin, Philadelphia, Pa., for plaintiff.
    Samuel L. Spear, Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

JOSEPH S. LORD, III, Senior District Judge.

Defendant union represents warehouse-men employed by the plaintiff. The parties have entered into a collective bargaining agreement (“C.B.A.”). In late April, 1984, one of the plaintiffs facilities was closed and Linda Ryan, along with other employees, was transferred to plaintiffs main warehouse where her husband works as a warehouseman in another department. On May 4, 1984, Ms. Ryan was terminated for violating the employer’s policy forbidding related employees from working at the same location. The union maintained that Ms. Ryan was fired without just cause in violation of Article XI(a) of the C.B.A. Pursuant to the C.B.A., the dispute was heard by an arbitrator who ruled that Ms. Ryan was discharged without just cause and ordered her immediate reinstatement with back pay less any unemployment compensation she had received.

Plaintiff has filed suit seeking an order vacating the arbitration award and declaring that the award exceeded the arbitrator’s contractual authority and failed to draw its essence from the agreement. Defendant has counterclaimed seeking enforcement of the award plus attorney’s fees. The parties have filed cross motions for summary judgment. For the following reasons plaintiff’s motion will be denied and defendant’s motion will be granted as to all issues except for attorney’s fees.

The scope of judicial review of a labor arbitrator’s award is severely limited. An arbitrator’s award must be enforced “so long as it draws its essence from the collective bargaining agreement.” United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). The Third Circuit has defined the concept of when a labor arbitrator’s award draws its essence from a collective bargaining agreement as follows:

[W]e hold that a labor arbitrator’s award ... ‘draw[s] its essence from [a] collective bargaining agreement’ if the interpretation can in any rational way be derived from the agreement, viewed in the light of its language, its context, and any other indicia of the parties’ intention; only where there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop, may a reviewing court disturb the award. .

Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir.1969).

Two sections of the parties’ C.B.A. were considered relevant by the arbitrator. Article Y, the contract’s management rights clause, states that “the right to ... maintain discipline and efficiency and require employees to observe rules and regulations not inconsistent with this AGREEMENT ... are rights vested exclusively in the Company.” Article XI(a) states that the “EMPLOYER shall not discharge or suspend any employee without just cause.”

The arbitrator found that the employer showed “a prima facie violation of a long standing company policy which, at all times pertinent hereto, prohibited related employees from working at the same location.” However, the arbitrator also found that since the policy had been applied in an inconsistent fashion and without proper notice to the grievant, it could not be used to justify discharging Ms. Ryan.

Both Ms. Ryan and her shop steward testified that they had never heard about the policy. The company failed to produce “a single shred of evidence” that rank-and-file employees had been informed of the company’s anti-nepotism policy. The written formulations of the policy that were allegedly distributed to managerial and supervisory employees, did not state the penalty for violating the policy or the gravity of such an offense. As the arbitrator aptly concluded, “[i]t is axiomatic that while an Employer has the right to establish reasonable rules to insure the effective functioning of its operations, employees are entitled to adequate notice of the Company’s regulations and the penalty that will be imposed for violation [sic].”

Moreover, the arbitrator found that the policy was applied in a discriminatory manner. The company currently employs related individuals in the same location who have not been discharged. There was no evidence that the company was planning to terminate any of these employees.

I therefore find that the arbitrator’s award draws its essence from the collective bargaining agreement and must be enforced. The defects in the employer’s application of its anti-nepotism policy found by the arbitrator make his conclusion that Ms. Ryan was terminated without just cause perfectly rational. There is also nothing irrational in the arbitrator’s finding that the just cause for discharge clause should be read as modifying the relevant sections of the management rights clause. The management rights clause clearly states that the employer’s rules and regulations must be consistent with the rest of the agreement. The just cause for discharge clause is part of the agreement and it was rational for the arbitrator to conclude that the employer’s arbitrary and discriminatory invocation of a vague policy to justify this termination was inconsistent with the concept of just cause. Indeed, a contrary finding by the arbitrator could not have been rationally derived from the contract’s language and the law of the shop.

Defendant’s motion for attorney’s fees, however, will be denied. “[A] court may assess attorneys’ fees ... when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons _’” Alyeska Pipeline Serv. v. The Wilderness Soc., 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975). There is no evidence that plaintiff’s behavior falls into any of the above categories.

An appropriate order follows.