author: PAINE, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Robert S. LIUZZO, Defendant.
    No. 84-6104 CR-Paine.
    United States District Court, S.D. Florida.
    May 14, 1985.

      Robert J. Lehner, Dept. of Justice, Miami, Fla., for the Government.
    Alan S. Ross, Miami, Fla., for defendant Liuzzo.
   ORDER

PAINE, District Judge.

This cause is before the Court on the Government’s notice of its intent to seek the introduction of certain 404(b) evidence in the trial of the Defendant on Count 19, and upon Defendant’s motion to dismiss. Various replies and responses to replies have been submitted relative to each of these motions and the Court has considered each, in detail, in forming the ruling below.

Initially, the Court will announce its ruling denying the motion to dismiss the indictment. That motion is bottomed on the theory that the continued prosecution on Count 19 is, in essence, Governmental misconduct in light of the jury verdict acquitting Liuzzo as to Counts 1 through 7. That contention is wholly without merit.

The Government has announced its intention to introduce three incidents of what it contends are “similar acts” evidence relative to the Defendant’s intent to commit the crime charged in Count 19 of the indictment. It should be noted at the outset that Count 19 charges the Defendant with a conspiracy violation. 18 U.S.C. § 371. It was the alleged purpose of this conspiracy to obstruct justice by attempting to make false charges against Sgt. Andrew Grieco, one of the officers investigating the charges which resulted in the instant indictment. Specifically, the Government charges that Liuzzo conspired to coerce a witness, Liberetta Bruno, to falsely accuse Grieco of the use and distribution of marijuana. The defense to these charges will apparently be that the accusations were true and that they were brought to light not for the purposes of obstructing and discrediting the grand jury investigation, but rather for the purpose of bringing the criminal conduct of a law enforcement officer to light. “The intent to which the government will urge the jury is the intent to obstruct, impede, and influence the due administration of justice.” (Government’s subrejoinder, filed April 10, 1985).

Specifically, the Government seeks to introduce the following alleged transactions:

1. That from on or about the end of 1977 to the beginning of 1978 Liuzzo accepted $20,000.00 from Harry Hill in return for providing protection and information relative to Hill’s narcotic smuggling ring.
2. That in or about January 1978 Liuzzo accepted $27,000.00 from Lester Grochowski in return for Liuzzo’s promise to obtain the release of an airplane and fingerprints of one of Grochowski’s compatriots involved in a drug smuggling operation.
3. That in November, 1980 Liuzzo provided information to one Al Palange relative to an ongoing investigation of Palange’s drug smuggling activities by the Pompano Beach Police Department and the DEA.

The Government asserts that these acts are probative of the Defendant’s intent to obstruct justice as alleged in Count 19 of the instant indictment. The theory is that the acceptance of these bribes shows that Liuzzo previously had an intent to obstruct justice. This Court cannot agree that the acts sought to be introduced are similar enough to the one charged in this indictment to allow their admission under rule 404(b).

To be sure, the acts sought to be introduced show some tangental intent to obstruct justice. The same intent, however, could be found in misprison of a felon, or in aiding and abetting a felon after the commission of a crime. While it is true that the “similar acts” evidence need not be identical to the act charged in the indictment, there must be sufficient similarity to insure its probative value will outweigh the prejudice that will inevitably be suffered by the Defendant by its introduction. U.S. v. Trevino, 565 F.2d 1317 (5th Cir.1978).

An analogy can be drawn to situations where a party attempts to seek introduction of prior crimes under F.R.Evid. 609(a) dealing with the introduction of convictions involving dishonesty or false statement, regardless of the punishment. Taken to its extreme the term “dishonesty” could be construed to include any crime, as a criminal act is the antithesis of the acts of an “honest” person. In other words, Jean Valjean’s act of stealing a loaf of bread should not be used in a subsequent trial for pickpocketing. Although “dishonest”, the stealing of the bread does not fall within the realm of a crime dealing with dishonesty of the purposes of F.R.Evid. 404(b).

Similary, although taken in its extreme the act of accepting a bribe could be construed to be the “obstruction of justice”, it can hardly be said that the act of taking a bribe and the alleged attempt to influence a grand jury witness are similar. Certainly, both may be said to “obstruct justice”, but if that theory were accepted, virtually every crime which seeks to violate our criminal laws would be an instance of “obstruction of justice”. If Liuzzo is guilty of the similar acts sought to be introduced, the Government, or in this instance the State, should charge him with bribery under the appropriate statute. To allow the introduction of these alleged acts in the trial of Count 19 of this indictment risks the sever prejudice against the Defendant in order to allow the Government to argue a tenuous theory of intent. Accordingly, it is

ORDERED and ADJUDGED that the Defendant’s motion to dismiss Count 19 of the indictment is denied. It is further,

ORDERED and ADJUDGED that the Government’s motion to allow the introduction of 404(b) evidence is denied.


source: Caselaw Access Project

author: WINDER, District Judge.

license: Public Domain

text:
    Elias GOMEZ-GRANADOS, Plaintiff, v. Richard SMITH, Officer in Charge of the Salt Lake City Office of the United States Immigration and Naturalization Service, or his successor, Defendant.
    Civ. No. C-84-0205W.
    United States District Court, D. Utah, C.D.
    May 14, 1985.

      Joseph H. Gallegos, Michael R. Sciumbato, Salt Lake City, Utah, for plaintiff.
    Joseph W. Anderson, Asst. U.S. Atty., Salt Lake City, Utah, for defendant.
   MEMORANDUM DECISION AND ORDER

WINDER, District Judge.

This matter is before the court on the parties’ cross-motions for summary judgment. Joseph H. Gallegos and Michael R. Sciumbato, representing the plaintiff, and Joseph W. Anderson, representing the defendant, argued before this court on April 10, 1985. Both parties submitted memoranda. The court has given careful consideration to the parties’ written and oral arguments and various authorities cited therein but is mindful that a review of an agency’s determination must be limited to the record. Now being fully advised, the court renders the following memorandum decision and order.

Background

The issue presented by these motions concerns whether a “substantial” violation of the conditions of a delivery bond has occurred. The facts of this matter are not disputed by the parties. On September 2, 1982, Ruben Gomez-Granados, (“Ruben”) an alleged alien, was served with an Order to Show Cause, Notice of Hearing and Warrant for Arrest of an Alien by the United States Immigration and Naturalization Service (“INS”). A bond of $3,000 was set in order to procure Ruben’s release. On September 3, 1982, the plaintiff, Elias, posted the Immigration Bond in the required amount. The conditions of the bond required that Ruben be produced to an immigration officer upon each and every request of that officer until deportation proceedings were terminated or until Ruben was accepted for detention or deportation. On December 27, 1982, notice was forwarded to the plaintiff, as the obligor, demanding surrender of Ruben on January 13, 1983. The plaintiff received that notice on December 30, 1982. Ruben was also notified of the hearing by notice which he received on December 30, 1982. Ruben then secured counsel, Joseph H. Gallegos, to represent him at the hearing. On January 6, 1983, Mr. Gallegos filed by mail an Entry of Appearance as attorney with the INS. At the same time, he filed a written motion for a continuance of the hearing, stating that he had two other matters set for hearing or trial on January 13,1983. A cover letter accompanying the motion and entry of appearance requested that the INS advise Gallegos if there were any questions concerning the matter or the motion for continuance. These documents were mailed on January 6, 1983, but were not received by the INS until January 11, 1983. Assuming that the continuance would be granted, neither Mr. Gallegos nor Ruben appeared at the hearing on January 13, 1983. Mr. Gallegos did not call the INS to double-check on the continuance. On January 13, 1983, the immigration judge wrote a letter to Mr. Gallegos, informing him that the Immigration Court’s practice was not to grant a continuance without either the respondent or his attorney appearing and moving for one on the record. Neither Ruben nor Gallegos had prior notice of this “practice” nor was there any written indication of there being such a practice or rule. The letter also gave notice of a possible breach of bond and advised Mr. Gallegos that he could contact the officer in charge concerning the matter. On April 13, 1983, a notice of the breach of the bond was mailed to the plaintiff. The plaintiff appealed the decision of the breach to the INS commissioner on April 25, 1983. That appeal was denied on January 4,1984. The plaintiff then filed this action for declaratory relief claiming that no substantial violation of the bond conditions occurred and requesting that the INS be restrained from disposing of the $3,000.

Discussion

An INS regulation, 8 C.F.R. § 103.6(e), provides that a delivery bond may be forfeited if there has been a “substantial violation of the stipulated conditions.” The addition of the word “substantial” to the regulation in 1974, (see 39 F.R. 12334 (April 5, 1974)) indicates that not every violation will necessarily result in forfeiture. Determining whether a violation is “substantial” requires consideration of such factors as the extent of the breach, whether it was intentional or accidental on the part of the alien, whether it was in good faith and whether the alien took steps to make amends or put himself in compliance. International Fidelity Ins. Co. v. Crosland, 490 F.Supp. 446 (S.D.N.Y.1980); see also Bahramizadeh v. United States I.N.S., 717 F.2d 1170 (7th Cir.1983); Matter of Allied Fidelity Insurance Co., Interim Decision 2972 (1984).

The Commissioner in the instant case found that “the failure of the alien to appear was intentional, that counsel made an unwarranted assumption that his motion for a continuance would be granted and that the pendency of such a request excused the alien from appearance.” Accordingly, the Commissioner found the breach to be substantial. While recognizing that an administrative agency or officer’s interpretation of a regulation should be shown “great deference,” Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965) this court finds that the Commissioner’s interpretation of the term “substantial” in 8 C.F.R. § 103.6(3) is inconsistent with the regulation. The violation of the terms of the bond in the present case occurred solely because the alien’s attorney assumed that it was reasonable to expect a continuance to be granted when he had entered a notice of appearance, mailed a request for a continuance seven days in advance, and had requested a reply should one not be granted. He did not receive any indication that the continuance would not be granted and so informed the alien and the plaintiff that it would not be necessary for them to appear at the hearing. There is no indication in the record that the plaintiff or alien in any way intended to evade his responsibilities to be present at the January 13th hearing nor intended to be absent when the INS next scheduled one. Plaintiff’s breach was made in good faith as he relied on the advice of counsel that he need not produce the alien as the hearing would be continued. Nor would it have been appropriate for the alien to have appeared alone without his retained counsel.

The government cites the case of Matter of Arbelaez-Naranjo, Interim Decision 2942 (1983) in support of its contention that the breach was substantial. In Naranjo, the alien failed to appear at a scheduled 9:00 a.m. hearing. At 10:00 a.m. after the time for the scheduled hearing had passed, counsel for the obligor called to inform the INS attorney that the alien would not appear that day. Later that morning, counsel again explained that alien was ill. Arrangements were made with counsel and the INS for a hearing to be rescheduled for that afternoon at 2:00 p.m. Again, the alien did not appear. At about 4:30 p.m., counsel informed the court that he and the alien were ready to appear but by then the trial judge had departed. The alien and attorney appeared the next morning at the court but did not present a physician’s note excusing the absence. The Regional Commissioner in Naranjo determined that these facts showed that a substantial breach had occurred. The instant circumstances contrast sharply with those of Naranjo however. Here, the alien’s attorney mailed a request for a continuance to the INS seven days in advance of the hearing date. The INS received the request two days before the hearing date and had adequate advance notice of a legitimate reason for the failure of the alien and counsel to appear. There was no written policy or rule that would have informed the attorney of the trial court’s practice regarding the granting of continuance. Nor did the INS inform the attorney of the court’s practice, despite the attorney’s clear request to be notified if there was any problem with the continuance. The defendant notes that counsel could have attempted to check with the court before the hearing date to determine if continuance had been granted. Counsel’s failure to do so, however, was not the kind of negligent error or bad faith or intentional conduct that should result in plaintiff’s forfeiture of the bond. The plaintiff, after all, did not produce the alien because of the advice of counsel. A finding that the breach here was substantial would erase the distinction between a “substantial” violation and simply a “violation” and would leave unanswered the question of what would constitute an “unsubstantial” violation. “Not every violation need be substantial especially if trivial, accidental or incurred in good faith.” International Fidelity Ins. Co. v. Crosland, 717 F.2d at 1174.

Accordingly,

IT IS HEREBY ORDERED and declared that no substantial violation of the bond conditions occurred and the bond in the amount of $3,000 remains in full force.


author: STANLEY S. HARRIS, District Judge.

text:
    Caralyn BLAKE, Plaintiff, v. The AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS, Defendant.
    Civ. A. No. 84-1155.
    United States District Court, District of Columbia.
    May 15, 1985.

      Lawrence J. Sherman, Washington, D.C., for plaintiff.
    William F. Causey, Washington, D.C., for defendant.
   MEMORANDUM OPINION AND ORDER

STANLEY S. HARRIS, District Judge.

I. FACTS

The plaintiff is a black female who was employed by the defendant in August 1981 as a secretary. Following her suspension on June 30, 1982, and her ultimate termination on July 13, 1982, she filed charges of racial discrimination and retaliation with both the Equal Employment Opportunity Commission (EEOC) and the District of Columbia Office of Human Rights (OHR). She alleges that the termination was a result of her absences from work which she characterizes as substantial but legitimate due to major surgery, illness, and a family death. On August 24, 1984, the OHR issued a determination in which it found that there was probable cause to believe that the defendant had committed unlawful discriminatory employment practices. The plaintiff thereafter withdrew her complaint from the OHR and elected to seek redress through the judicial process. See D.C.Code § 1-2556 (1981). A right-to-sue notice was issued by the EEOC on January 20, 1984.

This suit was filed on April 13, 1984. The plaintiff seeks declaratory and equitable relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; compensatory and punitive damages based on Title I of the Civil Rights Act of 1866, 42 U.S.C. § 1981; and relief under the District of Columbia Human Rights Act (DCHRA), D.C.Code § 1-2556. A common law claim of breach of contract also is asserted.

The defendant has filed a somewhat simplistically styled “Motion To Strike Jury Demand.” It is predicated on the contention that plaintiff’s claims under the DCHRA and § 1981 are time-barred. The Court next is urged to decline to exercise pendent jurisdiction over the local law claim for breach of contract, since the sole federal claim at issue would be under Title VII. Title VII carries no right to a jury trial, so the plaintiff would have no remaining claim by which she is entitled to a jury trial.

II. STATUTE OF LIMITATIONS

A. DISTRICT OF COLUMBIA HUMAN RIGHTS ACT

Under the DCHRA, a person may seek redress for unlawful discriminatory practices through administrative proceedings by filing a complaint with the OHR pursuant to § l-2544(a). That statute specifies a orie-year limitation period. Alternatively, a person may file suit in a court of competent jurisdiction under § 1-2556(a). Although there is no statutory limitations period established for judicial relief, it is settled law that the one-year time limitation applicable to administrative proceedings under § 1-2544 is applicable to actions at law as well. Davis v. Potomac Electric Power Co., 449 A.2d 278, 281 (D.C.1982).

The plaintiff’s complaint was filed in this court one year and nine months following her discharge, well beyond the statutory period. She argues, however, that the mere existence of a one-year limitation period does not foreclose her claims under the DCHRA. She contends that tolling principles should be read into the Act to suspend the running of the statute of limitations during the pendency of her administrative action, which she began four months after her discharge.

The Supreme Court read tolling principles into Title VII, the federal counterpart to DCHRA, when it held that compliance with the filing period was not a jurisdictional prerequisite to filing a Title VII suit, but rather was subject to tolling when equity required. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 1135, 71 L.Ed.2d 234 (1982). Although Zipes involved the time limit for filing a charge of discrimination with the EEOC under Title VII, its reasoning extends to the limitation for filing suit after withdrawing from the administrative process under the DCHRA. By plaintiff’s filing of charges with the OHR, the particular purpose of filing, i.e., prompt notice to the defendant employer, was satisfied. Similarly, the other purposes of statutes of limitation in discrimination cases would not be frustrated by tolling. Statutes of limitations are designed to ensure fairness to defendants by protecting against “stale claims in which the defense is hampered by lost evidence, faded memories, and disappearing witnesses, and to avoid unfair surprise.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 473, 95 S.Ct. 1716, 1726, 44 L.Ed.2d 295 (1975) (Marshall, J., concurring in part and dissenting in part). See also Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945). Here the defendant had an opportunity to — and did — defend at the agency level against the same discrimination claims now asserted in this litigation. Furthermore, relevant evidence was compiled and preserved by both parties through administrative records, thereby mitigating the danger of impermanent evidence which is characteristic of discrimination cases.

The situation of a withdrawn timely administrative complaint and a subsequent attempt to sue after the expiration of the one-year limitation period was dealt with in Jones v. Management Partnership, Inc., 32 FEP Cases 639 (D.D.C.1983). There, Judge Flannery found that the employee’s suit was not barred by her previous administrative filing with the OHR where it was withdrawn after the OHR found probable cause but before a hearing could be held. Id. at 640-41. That did not help the plaintiff in Jones, however, for without considering the possibility of tolling the statute during the pendency of the administrative action, Judge Flannery found that her action at law was barred for untimely filing. Under that ruling, a plaintiff alleging discrimination who wished to preserve her judicial remedy would either have to withdraw her administrative complaint within one year regardless of its stage of resolution, which would be a waste of resources, or would have to look solely to the courts since the two remedial procedures cannot run concurrently. The policy in support of conciliation and voluntary compliance through administrative proceedings in the DCHRA would be short-circuited by excessive technicality. Therefore, although the DCHRA statute of limitations is applicable, the Court concludes that it was suspended during the pendency of the plaintiffs administrative action and that portion of plaintiffs claim is not time-barred.

B. SECTION 1981

“Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under § 1981, the controlling period would ordinarily be the most appropriate one provided by state law.” Johnson v. Railway Express Agency, Inc., 421 U.S. at 462, 95 S.Ct. at 1721. In other words, “[t]he applicable period of limitations is derived from that which the State would apply if the action had been brought in a state court.” Id. at 469, 95 S.Ct. at 1724 (Marshall, J., concurring in part and dissenting in part). In this case, the plaintiffs claims of employment discrimination under § 1981 are identical to those presented under the DCHRA. Once the one-year period was extended to actions at law under Davis, it became applicable to actions at law under § 1981 as the most analogous limitations period.

Previous decisions have held that the general residuary statute of limitations would apply. D.C.Code § 12-301(8). The first case to so hold, Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 (D.C.Cir.1973), was decided prior to the enactment of any specifically analogous limitations period under District of Columbia law. After the enactment of the DCHRA, the United States Court of Appeals for the District of Columbia Circuit noted that the three-year residuary limitations period applied to § 1981, but it did so without explicit consideration of the DCHRA. Gordon v. National Youth Work Alliance, 675 F.2d 356, 358 n. 1 (D.C.Cir.1982).

On the district court level, two judges have held that the general three-year limitation period applied. In the first case, Judge Flannery rejected the trend of authority in other jurisdictions and declined to apply the one-year period. Jones v. Management Partnership, Inc., 32 FEP at 641. The decision was based on a New York case, Seymore v. Reader’s Digest Ass’n, Inc., 493 F.Supp. 257 (S.D.N.Y.1980). This Court respectfully concludes that such reliance was inappropriate. While the New York court could characterize the one-year period found in their local statute as part of a “comprehensive administrative scheme” and therefore inapplicable to the judicial remedy of § 1981, the one-year period of the DCHRA already has been held to apply to the DCHRA’s judicial remedy, which is a remedial measure not available in New York. Furthermore, the New York court distinguished its local statute as dealing only with employment discrimination, in contrast to the broader purposes of § 1981. Id. at 266. Here, the DCHRA’s measures extend beyond employment discrimination in § 1-2512, to real estate transactions in § 1-2515, to public accommodations in § 1-2519, and to educational institutions in § 1-2520.

The next opinions, written by Judge June L. Green, adopted Judge Flannery’s reasoning. See Hughes v. Chesapeake & Potomac Telephone Co., 583 F.Supp. 66 (D.D.C.1983); Covert v. Washington Hilton Hotel, 33 FEP Cases 660 (D.D.C.1983). For the same reasons, this Court respectfully concludes that those decisions are not persuasive.

One judge on this court has taken the contrary view. In Parker v. B & O Railroad Co., 555 F.Supp. 1182, 1187-88 (D.D. C.1983), decided immediately after the District of Columbia Court of Appeal’s opinion in Davis v. Potomac Electric Power Co., Judge Harold Greene found that the one-year period should apply to § 1981 once it had been held applicable to judicial proceedings under the DCHRA. The trend of authority in other jurisdictions has been to apply the limitations period of state anti-discrimination statutes to Civil Rights Act claims rather than general limitation statutes. This is in keeping with the Supreme Court’s opinion in Runyon v. McCrary, 427 U.S. 160, 180, 96 S.Ct. 2586, 2599, 49 L.Ed.2d 415 (1976), which implied that the limitation period of a state statute which specifically governed civil rights suits should apply, rather than a more general provision.

Finally, in the Supreme Court’s most recent consideration of the applicable state statute of limitations period for § 1981, it was held that Maryland’s general three-year statute of limitations, rather than its six-month provision for filing administrative complaints, governs § 1981 claims in Maryland. See Burnett v. Grattan, — U.S. -, 104 S.Ct. 2924, 2933, 82 L.Ed.2d 36 (1984). That decision, however, explicitly was based on the lack of a private cause of action under Maryland law and the inherent differences between administrative actions and actions at law. Once the District of Columbia Court of Appeals held that a one-year period is proper for both types of action, the differences which were present in Burnett v. Grattan no longer may be deemed to be controlling.

Thus, this Court concludes that the plaintiff’s § 1981 claim, like her DCHRA claim, is subject to the local one-year statute of limitations. In contrast to the tolling of the statute of limitations to which the plaintiff is entitled for her DCHRA claim pending her administrative proceeding, her § 1981 claim is not subject to tolling. In Johnson v. Railway Express Agency, Inc., supra, the Supreme Court held that the plaintiff’s untimely filed § 1981 claims were time-barred despite the timely filing of a Title VII complaint based on the same facts. The Court found that the plaintiff had slept on his § 1981 rights since he could have filed his § 1981 action at any time after his cause of action accrued, it being a remedy separate and independent of Title VII. 421 U.S. at 466, 95 S.Ct. at 1723. Section 1981 is similarly separate from the DCHRA and, unlike the judicial remedy provided in the DCHRA, a claim under it could have been filed at any time and could be pursued concomitantly with the administrative remedy under DCHRA. Therefore, the plaintiff’s § 1981 claim is time-barred.

III. PENDENT JURISDICTION AND RIGHT TO A JURY TRIAL

On January 25, 1985, the plaintiff’s motion for leave to amend the complaint was granted, thereby adding 28 U.S.C. § 1332 as an independent jurisdictional basis (diversity) for the plaintiff’s common law breach of contract claim. Therefore, the case will go forward on this claim as well as on the claims under Title VII and the DCHRA. Pendent jurisdiction over the state law claims need not be exercised.

Common law claims for breach of contract carry with them a right to a jury trial. See Eller v. Houston’s Restaurants, 35 FEP Cases 1801, 1802 (D.D.C.1984). The plaintiff is entitled to a jury trial on this claim.

CONCLUSION

The plaintiff’s claim under the DCHRA is not time-barred. Her claim under § 1981 must be dismissed as untimely. Diversity jurisdiction has been established for the plaintiffs claims under the DCHRA and the common law of the District of Columbia. Therefore, there is an independent basis for a jury trial.

In accordance with the foregoing and upon consideration of the defendant’s motion to strike jury demand, the opposition thereto, the supplemental memoranda, and the plaintiff’s amended complaint, it hereby is

ORDERED, that the motion is denied. It hereby further is

ORDERED, that the plaintiff’s claim under 42 U.S.C. § 1981 is dismissed.

SO ORDERED.

      . See Newsweek Magazine v. D.C. Comm’n on Human Rights, 376 A.2d 777, 788 (D.C.1977). See also Jones v. Management Partnership, Inc., 32 FEP Cases 639, 641 (D.D.C.1983).

      . See Brown v. Capitol Hill Club, 425 A.2d 1309 (D.C.1981). In contrast, a case alleging Title VII and § 1981 claims may run under one statute in an administrative forum and under the other in a judicial forum at the same time. This point was considered decisive in ruling against tolling the statute for a § 1981 claim raised long after a Title VII claim was brought for administrative resolution. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465-66, 95 S.Ct. 1716, 1722-23, 44 L.Ed.2d 295 (1975).

      . Section 12-301 provides in pertinent part:
      Except as otherwise specifically provided by law, actions for the following purposes may not be brought after the expiration of the period specified below from the time the right to maintain the action accrues:
      ******
      (8) for which a limitation is not otherwise specially prescribed — 3 years; ...

      . See Burns v. Sullivan, 619 F.2d 99, 105-07 (1st Cir.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980); Erdmann v. Board of Education, 541 F.Supp. 388, 395 (D.N.J.1982); Davis v. Sears, Roebuck & Co., 29 FEP Cases 1341, 1344 (D.Mass.1982), aff'd, 708 F.2d 862 (1st Cir.1983); Lay v. Bethlehem Steel, 542 F.Supp. 9, 10 (D.Md.), aff’d, 681 F.2d 814 (4th Cir.1982); Brice v. Crown Cork & Seal Co., 28 FEP Cases 1821, 1822 (D.Md.1982); McGill v. General Electric Co., 524 F.Supp. 1126, 1128-29 (D.Md.1981).


author: VIETOR, Chief Judge.

text:
    Jack THOMSEN, Plaintiff, v. UNITED PARCEL SERVICE, INC.; and Local 710, International Brotherhood of Teamsters, Defendants.
    Civ. No. 84-113-D-2.
    United States District Court, S.D. Iowa, Davenport Division.
    May 15, 1985.
    W. Michael Shinkle, Davenport, Iowa, for plaintiff.
    Albert L. Harvey, Des Moines, Iowa, for defendant United Parcel Service.
    Gerald J. Meehan, Rock Island, Ill., for defendant Local 710.
   MEMORANDUM OPINION AND RULING ON MOTION FOR SUMMARY JUDGMENT

VIETOR, Chief Judge.

The court has before it a motion for summary' judgment submitted by defendant Local 710, International Brotherhood of Teamsters. Plaintiff has filed a resistance to the motion and the matter is fully submitted.

This action is brought under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Plaintiff claims that defendant United Parcel Service, Inc. discharged him in violation of the collective bargaining agreement governing his employment and that his union, defendant Local 710, breached its duty of fair representation in the ensuing grievance proceedings.

In support of its motion, the union contends that plaintiffs suit is barred by the six month limitations period applicable to hybrid section 301-fair representation claims under DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). The union’s first basis for this contention is that “the newly filed complaint was not filed until September 17, 1984.” This contention is not supported by the facts. There is no “newly filed complaint.” New summonses were issued by the clerk of court on September 17, 1984, but the only complaint on file is the original complaint filed June 18, 1984, which is within six months of January 19, 1984, the date plaintiff’s claim arose.

The union’s second basis for its contention that plaintiff’s suit is time barred is that the union was not served within the six month limitations period. In federal suits to enforce federal rights, the general rule is that limitations periods are tolled by the filing of a complaint. See Fed.R.Civ.P. 3 (“A civil action is commenced by filing a complaint with the court.”); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1056 (1969). However, the union argues that under the rule of DelCostello the six month limitations period is not tolled until the plaintiff has both filed and served his complaint. This is the conclusion reached by two panels of the United States Court of Appeals for the Eleventh Circuit. Simon v. Kroger Co., 743 F.2d 1544 (11th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2155, 85 L.Ed.2d 511 (1985); Howard v. Lockheed-Georgia Co., 742 F.2d 612 (11th Cir.1984).

This court respectfully disagrees with the determinations of the Eleventh Circuit. In DelCostello, the Court borrowed the six month limitations period provided in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), for making charges of unfair labor practices to the National Labor Relations Board. Section 10(b) provides that its limitation period is not tolled until a charge is filed with the Board and served on the employer. The Court did not state whether it was borrowing the tolling provision of section 10(b) along with its limitations period. However, the analysis in which the Court engaged gives no indication that its purpose extended beyond discovery of the appropriate length of time within which to commence a hybrid section 301-fair representation action: “[W]e are applying a statute of limitations to a different cause of action ... because it is the most suitable source for borrowing to fill a gap in federal law.” DelCostello, 103 S.Ct. at 2293 n. 21. The “gap” existed because the duty of fair representation claim was created by judicial interpretations of the National Labor Relations Act; the section 10(b) limitations period for bringing unfair labor practice charges was selected simply because it provides “a closer analogy than available state statutes” to a fair representation claim. DelCostello, 103 S.Ct. at 2294.

This court recognizes that limitations periods and tolling provisions are closely related. However, that is not a sufficient reason to deviate from the general rule that in a federal suit to enforce a federal right, the filing of a complaint tolls the limitations period. Following the general rule promotes uniformity among suits brought in federal court. Moreover, the tolling provision of section 10(b) was designed for administrative proceedings. Requiring service to toll the limitations period is not necessary in suits in federal courts because of Rule 4(a), Fed.R.Civ.P., which provides that “[ujpon the filing of the complaint the clerk shall forthwith issue a summons and deliver the summons to the plaintiff or the plaintiff’s attorney, who shall be responsible for prompt service of the summons and a copy of the complaint.” Another consideration that weighs against adoption of the section 10(b) service requirement is the rule followed when a state limitations period is borrowed for a federal cause of action: tolling upon filing applies even if the state’s law requires service on the defendant to toll its limitations period. Jackson v. Duke, 259 F.2d 3, 6 (5th Cir.1958); Bomar v. Keyes, 162 F.2d 136 (2d Cir.), cert. denied, 332 U.S. 825, 68 S.Ct. 166, 92 L.Ed. 400 (1947); 2 J. Moore & J. Lucas, Moore’s Federal Practice, 113.07[4-3-2] (2d ed. 1985).

In a dissent from the denial of certiorari in Simon v. Kroger Co., Justice White, joined by Justices Brennan and Marshall, notes another reason for rejecting the service requirement of section 10(b):

In practical effect, the Eleventh Circuit’s ruling shortens the 6-month period by the amount of time necessary of [sic] effect service under the Federal Rules. Section 10(b) does not have a similar impact in administrative proceedings, in which service is accomplished merely by placing a copy of the charge in the mail. Compare Fed.Rule Civ.Proc. 4 with 29 CFR § 102.113(a) (1984).

Simon v. Kroger Co., — U.S. at -, 105 S.Ct. at 2156. The dissenters also observe that the adoption of the section 10(b) tolling provision to hybrid actions was implicitly rejected in Smith v. General Motors Corp., 747 F.2d 372 (6th Cir.1984), and Williams v. E.I. du Pont de Nemours Co., 581 F.Supp. 791 (M.D.Tenn.1983).

This court concludes that the service requirement contained in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), is not applicable to a judicial action presenting a section 301-fair representation claim. Plaintiff commenced this action within the six month limitation period when he filed his complaint. Fed.R.Civ.P. 3. Therefore, the motion for summary judgment is denied.

The court is of the opinion that this order denying defendant Local 710’s motion to dismiss involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b).

      . In its order dated February 27, 1985, the court ordered that defendant's motion to dismiss be treated as one for summary judgment. Plaintiff’s subsequently filed resistance incorporates his resistance to the motion to dismiss.


author: MOYE, Chief Judge.

text:
    LOCAL 1316, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Plaintiff, v. SUPERIOR CONTRACTORS AND ASSOCIATES, INC., Defendant.
    Civ. A. No. C84-309A.
    United States District Court, N.D. Georgia, Atlanta Division.
    May 15, 1985.

      James T. Langford, Jacobs and Lang-ford, Atlanta, Ga., for plaintiff.
    Ronald L. Mason, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., for defendant.
   ORDER

MOYE, Chief Judge.

The above-captioned labor management relations action is before the Court on numerous motions: (1) the plaintiffs motion to dismiss and for summary judgment, (2) the defendant’s Superior Contractors and Associates, Inc. (Superior), motion to amend its counterclaim, (3) the plaintiff’s motion to amend its complaint, (4) the plaintiff’s motion to compel discovery, and (5) Superior’s motion to have its trial brief included in the pretrial order. The plaintiff invokes the jurisdiction of this Court pursuant to 29 U.S.C.A. § 185 (West 1978) and principles of pendent jurisdiction.

This action arises out of the Plant Scherer construction project, which Georgia Power Company began more than ten years ago. Representatives for Georgia Power Company and the plaintiff signed an agreement on September 25, 1974, designated the Plant Scherer Project Agreement (Scherer Agreement). The Scherer Agreement was to cover all construction work for the building of a four-unit, coal-fired electric generating plant. Georgia Power Company hired Superior as the general contractor for the project.

The plaintiff refers men to the job site through its hiring hall. This controversy began after Superior hired electricians who were travelers, i.e., members of other locals, or who were not members of any union at a time when the plaintiff was unable to refer sufficient personnel. Once on the job site, the nonunion personnel and travelers were victims of a harrassment campaign, which the plaintiff allegedly orchestrated.

In the first half of 1983, Superior suffered a slowdown in work and conducted a reduction in force. On May 9, 1983, the plaintiff filed a grievance concerning the way Superior conducted the layoff. The basis of the grievance was that Superior would not agree to lay off travelers and nonunion employees before union members. On October 4, 1983, the plaintiff requested arbitration of this grievance; when Superior declined, this lawsuit ensued. The essence of the plaintiff's complaint is that Superior has, by contract, agreed to adopt a different layoff procedure than that utilized. The plaintiff further contends that Superior agreed to arbitrate this sort of dispute. The plaintiff therefore seeks to compel arbitration. This contention is grounded on the Inside Working Agreement Between Local Union No. 1316, International Brotherhood of Electrical Workers (IBEW) and the Georgia Chapter of the National Electrical Contractors Association, Inc. (N.E.C.A. contract), which the plaintiff asserts is incorporated by reference in the collective bargaining agreement between Superior and the plaintiff, i.e., the Scherer Agreement.

Superior has filed a counterclaim, which the plaintiff initially moved to dismiss, alleging various claims under Georgia law. Prior to filing its counterclaim, Superior filed three charges with the National Labor Relations Board (NLRB) alleging that the plaintiff’s activities were unfair labor practices within the meaning of section 8 of the National Labor Relations Act (NLRA or Act). Following the counterclaim, a fourth charge was filed. The first and second charges were filed in 1982 and generally allege that the plaintiff engaged in- unfair labor practices within the meaning of section 8(b) of the NLRA. The third charge is dated March 12, 1984 and alleges that the plaintiff engaged in unfair labor practices within the meaning of section 8(b)(1)(A) and (2) of the NLRA by, among other things, “filing a lawsuit in Federal Court seeking to compel arbitration. In the arbitration, the Union would seek to have Superior discharge all traveling employees in violation of their rights under the Act.” Deposition of Ronald A. Lanier, Exhibit 11. To date, it appears that the NLRB considered only one of the charges valid, and it does not pertain directly to the subject matter of this lawsuit. The Regional Director’s letter of April 6, 1984, to Superior included the following language: “The investigation [by the NLRB] ... disclosed insufficient evidence of unlawful motivation in the filing of the suit [by the plaintiff under section 301 of the Act to compel arbitration of its grievance]. Rather, there appeared to be arguable merit to the Union’s claim that the local agreement provision regarding layoffs was applicable and therefore arbitrable.” Deposition of Ronald A. Lanier, Exhibit 12. Upon motion for reconsideration, the Office of Appeals stated in its letter that it would not depart from its earlier decision. Id. Exhibit 16.

For the reasons set forth below, the Court grants the plaintiff’s motion for summary judgment ordering arbitration and dismissing Superior’s state law claims. Remaining for consideration then, is Superi- or’s claim for violation of section 301 of the Act, stated in its amendment to its counterclaim.

ARBITRABILITY

The plaintiff asks this Court to establish that it has a legal right to arbitrate its grievance concerning the layoff procedure. The Court’s function, in suits brought to compel arbitration under section 301 of the Act, is limited to a determination of whether the recalcitrant party agreed to arbitrate .the grievance. E.g., United Textile Workers, Local 120 v. Newberry Mills, Inc., 315 F.2d 217, 218 (4th Cir.), cert. denied, 375 U.S. 818, 84 S.Ct. 54, 11 L.Ed.2d 53 (1963). Superior contends that the Court’s authority to review the contract entered into between the parties to determine whether a dispute is arbitrable is well established. While this may be the general rule, it is subject to exception:

The weight of authority supports the rule that a court should compel arbitration of the arbitrability issue where the collective bargaining agreement contains a standard arbitration clause, the parties have not clearly excluded the arbitrability issue from arbitration, and deciding the issue would entangle the court in interpretation of substantive provisions of the collective bargaining agreement and thereby involve consideration of the merits of the dispute.

CWA v. Western Electric Co., 751 F.2d 203, 206 (7th Cir.1984).

The collective bargaining agreement at issue between the parties is the Scherer Agreement, which provides for a grievance and arbitration procedure as follows:

ARTICLE IX. Grievance Procedure
Any question arising out of, and during the term of, this Agreement involving its interpretation and application, other than general wage rates, ... shall be handled by the grievance and arbitration procedures as follows:
If the dispute cannot be settled [informally] within ten (10) days, it shall be referred to an Impartial Arbitrator for settlement____ The impartial arbitrator shall have only jurisdiction and authority to determine the meaning, application of, or compliance with the provisions of this Agreement and shall not have jurisdiction or authority to add or detract from or alter in any way, such provisions.

Plaintiff’s complaint, Exhibit 1, at 13.

The plaintiff contends that this dispute requires arbitration because the NECA contract is incorporated by reference in the Scherer Agreement. The plaintiff’s argument is meritless because the Scherer Agreement was executed and entered into between the parties on September 25, 1974, whereas the NECA contract was not executed until August 31, 1979. Affidavit of Morgan Bowen, filed December 24, 1984. It is settled that “an instrument may incorporate by reference only the terms of an instrument already in existence.” Bricklayers International Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017, 1029 (5th Cir.1975).

The Scherer Agreement contemplates the existence of supplementary local area agreements, since these are mentioned at various points throughout. The Scherer Agreement allows for subsequent modifications in the following language: “This agreement shall not be amended or supplemented except by mutual consent of parties hereto reduced to writing and duly signed by each.” Plaintiffs complaint, Exhibit 1 at 26. A union and an- employer may assent to modification of existing collective bargaining agreements, even without an express provision to that effect. See Piggly Wiggly Operators’ Warehouse, Inc. v. Piggly Wiggly Operators’ Warehouse Independent Truck Drivers Union, Local 1, 611 F.2d 580, 584 (5th Cir.1980). In addition, “[i]t is well settled that a union and employer’s adoption of a labor contract is not dependent on the reduction to writing of their intention to be bound____ Instead, what is required is conduct manifesting an intention to abide by the terms of an agreement.” NLRB v. Haberman Construction Co., 641 F.2d 351, 355-56 (5th Cir.1981) (citations and footnote omitted). The modification clause in the Scherer Agreement quoted above is not dispositive on the question of whether the parties might have effected a modification by some other means. An oral modification, for example, of a collective bargaining agreement may occur notwithstanding a provision requiring any modification to be in writing. Certified Corp. v. Hawaii Teamsters and Allied Workers, Local 996, 597 F.2d 1269, 1271 (9th Cir.1979) (citing with approval Watson v. International Brotherhood of Teamsters, 399 F.2d 875, 879 (5th Cir.1968)). It is arguable that Superior intended to be bound by the NECA contract. Compare Affidavit of Tom Garner, Exhibit A-A to Superior’s brief in response to the plaintiff’s motion for summary judgment, filed January 24, 1985, with Affidavit of Morgan Bowen, filed December 24, 1984. This question should be referred to an arbitrator.

Superior further contends that arbitration cannot be ordered because the contract provision on which the termination procedure is based is illegal on its face. Superior’s contention is that conduct of the referral procedure in the NECA contract constitutes an unfair labor practice in violation of section 8(b)(1)(A) and (2) of the NLRA. The proper forum for this kind of question is ordinarily before the NLRB, to which the Federal court must defer as having exclusive initial jurisdiction over whether an activity constitutes an “unfair labor practice” under the NLRA. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). The federal court does not normally dispose of such issues unless the labor law questions appear as “collateral issues” in suits brought under “independent federal remedies,” such as the antitrust laws. Connell Construction Co. v. Plumbers & Steamfitters Local No. 100, 421 U.S. 616, 626, 95 S.Ct. 1830, 1837, 44 L.Ed.2d 418 (1974). But Superior contends that the Supreme Court’s opinion in Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982), requires this Court to determine whether the referral procedure in the NECA contract is violative of the NLRA without deferring to the primary jurisdiction of the NLRB.

In Mullins, the Court found a purchased coal-hot-cargo clause in a collective bargaining agreement void and unenforceable under section 8(e) of the NLRA (and sections 1 and 2 of the Sherman Act), notwithstanding the “primary jurisdiction” of the NLRB over the question of what is or is not an unfair labor practice. The Court said that “a federal court has a duty to determine whether a contract violates federal law before enforcing it.” Id. at 83, 102 S.Ct. at 859. The Court’s holding was premised in part on the statutory mandate of the NLRA: “Section 8(e) provides not only that ‘it shall be an unfair labor practice’ to enter an agreement containing a hot-cargo clause, but also that ‘any contract or agreement entered into heretofore or hereafter containing [a hot-cargo clause] shall be to such extent unenforcible [sic] and void.’ ” Id. at 84, 102 S.Ct. at 860 (alterations in original).

Superior asks the Court to apply the Mullins logic at some distance from its original analytical foundation. In the instant case the federal court would not be enforcing the NECA contract clause at issue, but compelling arbitration of the enforceability question. The illegality defense in this case rests on whether the referral procedure constitutes an unfair labor practice. This differs from a contract clause that is unquestionably void at its inception and unenforceable by federal courts. The Supreme Court’s discussion of the legislative history of section 8(e) is instructive:

It was enacted to close a loophole created by Carpenter v. NLRB, 357 U.S. 93 [78 S.Ct. 1011, 2 L.Ed.2d 1186] (1958) (Sand Door). There the Court held that the existence of a hot-cargo clause was not a defense to an unfair labor practice charge brought by a union against an employer, emphasizing that observance of the clause was not unlawful. ‘Section 8(e) was designed to plug this gap in the legislation by making the “hot cargo” clause itself unlawful.’

Id. The contract clause in the case sub judice arguably provides a basis for an unfair labor practice charge; it is not per se unlawful by statutory fiat. This case is thus distinguishable from Mullins: the Court said that “[w]hile only the Board may provide affirmative remedies for unfair labor practices, a court may not enforce a contract provision which violates § 8(e).” Id. 455 U.S. at 86, 102 S.Ct. at 861; see Mo-Kan Teamsters Pension Fund v. Creason, 716 F.2d 772, 775 (10th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 716, 79 L.Ed.2d 178 (1984). There is no clear statutory basis for a finding that the NECA contract referral provision is illegal. Superior asks the Court to accept as controlling a decision from the Tenth Circuit Court of Appeals regarding a similar contract provision. Superior relies on Robertson v. NLRB, 597 F.2d 1331 (10th Cir.1979), for the proposition that the IBEW referral group classifications in the NECA contract are facially illegal. In Robertson, the exclusive hiring hall contract provision in issue gave preference to individuals who had previously worked with employers having engaged in collective bargaining agreements with the IBEW local. Robertson reversed that part of a NLRB decision in which this contract provision was found not to violate section 8(b)(1)(A) and (2) of the NLRA. The Robertson court found that the referral provision gave preference to applicants who previously worked for employers who had collective bargaining agreements with the union. The Court also found the provision did not fall within the exception stated by section 8(f)(4) of the Act. In holding that the union and employer had engaged in an unfair labor practice, the Court of Appeals said:

We are persuaded that the opportunity for pressures to join the union, including that exerted by an agency shop, is greater when working for a unionized employer than when working for a non union employer and that such pressures are a foreseeable consequence of the discrimination in favor of applicants who have worked for a unionized employer. We are also persuaded by the obvious inconsistency between an employee’s right under section 7 of the [NLRA] ... (secured by sections 8(a)(1) and 8(b)(1)(A)) to refrain from collective bargaining and the requirement in an exclusive hiring hall contractual arrangement that he work under a collective bargaining agreement in order to secure preference in referral from the hiring hall when he is out of a job and seeking employment.

Id. at 1336-37.

The NECA contract referral provision provides in relevant part that Group I applicants have “four or more years’ experience in the trade ... [and] have been employed for a period of at least one year in the last four years under a collective bargaining agreement between the parties to this agreement [the NECA and Local 1316].” The contract further provides that Group III applicants have “two or more years’ experience in the trade ... [and] have been employed for at least six months in the last three years in the trade under a collective bargaining agreement between the parties to this Agreement.” Plaintiff’s complaint, Exhibit 2, at 10. The NECA contract provision is thus directly analogous to that at issue in Robertson. The Court declines, however, to reach the issue decided in Robertson, believing that deferral to arbitration is the appropriate avenue in this context. See Carey v. General Electric Co., 315 F.2d 499, 512 (2d Cir.1963), cert. denied, 377 U.S. 908, 84 S.Ct. 1162, 12 L.Ed.2d 179 (1964) (“We cannot construct a framework of legal principles governing arbitration on the theory that the arbitrator is ignorant or oblivious of the pronouncements of the Board and the Courts.”); Paramount Bag Manufacturing Co. v. Rubberized Novelty and Plastic Fabric Worker’s Union, Local 98, 353 F.Supp. 1131, 1138 (E.D.N.Y.1973).

COUNTERCLAIM

Superior’s counterclaim sets forth several claims under Georgia law that the plaintiff originally moved to dismiss for failure to state a claim and now urges is subject to its motion for summary judgment. Counts one and two of this counterclaim allege that the plaintiff has tortiously interfered with the contractual relationship between Superior and its employees and interfered with Superior’s business. Count three alleges that the plaintiff’s actions have violated Georgia’s “right-to-work” law.

A. The Business Torts

The plaintiff contends that the doctrine of labor law preemption deprives the Court of jurisdiction over the subject matter of the pendent claims and mandates summary judgment as a matter of law. The parties agree that the general test for preemption and deference to the exclusive competence of the NLRB is stated in Garmon, 359 U.S. at 244, 79 S.Ct. at 779: “When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield.”

The plaintiff argues that Superior’s allegations regarding tortious interference under state law constitute unfair labor practices within the meaning of section 8 of the NLRA, 29 U.S.C.A. §§ 158(b)(1) and (2) (West 1973), and are therefore preempted.

The weight of authority is in accord with this view, holding that business torts fail to provide sufficiently substantial state concerns to overcome the doctrine of preemption, see e.g., Mobile Mechanical Contractors Association, Inc. v. Carlough, 664 F.2d 481 (5th Cir.1981 (Unit B), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 850 (1982) (union strike to obtain trust funds prohibited by NLRA, which Act preempted state claim for tortious interference). The Supreme Court has held that under certain facts state claims for tortious interference based on union activities could be entertained notwithstanding federal concurrent jurisdiction.

[T]he Supreme Court held that the state tort of wrongful interference with a lawful business relationship was not preempted where the picketing involved physical obstruction of a plant entrance and threats of violence. The Court carefully noted that only damages resulting from these activities could be awarded, as opposed to damages resulting from the strike and picketing themselves.

Id. at 489 & n. 12 (referring to UAW v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1957)). It is plain from subsequent Supreme Court decisions that UAW v. Russell, which involved “mass picketing and threats of violence,” 356 U.S. at 638, 78 S.Ct. at 935, sets forth a narrow exception to the general rule that such claims are preempted. In this regard, the Supreme Court’s analysis in Local 926, International Union of Operating Engineers v. Jones, 460 U.S. 669, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983), is applicable. That case involved a supervisor whose claim under Georgia law for tortious interference by the union with his contractual relationships was held preempted. The Court first reviewed its established preemption analysis: First, it must be determined whether the conduct alleged to be the basis of state regulation or liability is arguably within the purview of the NLRA. Second, if the disputed activity constitutes only a “peripheral concern” of the NLRA or “touches on interests deeply rooted in local feeling and responsibility,” this shows that the congressional intent was not to deprive the state of authority to regulate. Finally, if the local interest is thus deeply rooted, the court must balance potential injury to the comprehensive regulatory scheme of the NLRA and the significance of the cause of action to the state for the protection of its citizens. Id., 103 S.Ct. at 1459. In short, if a state court can provide relief without interfering with federal labor policy, it is permitted to act in order to safeguard significant state concerns. Falls Stamping and Welding Co. v. International Union, UAW, 744 F.2d 521, 523 (6th Cir.1984) (citing Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977)).

The Jones Court then noted that its prior decision in Iron Workers v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646 (1963), holding a common-law tort action for interference with an employment contract preempted, assisted the disposition of Jones. “Perko’s discharge arguably violated the proscription of § 8(b)(1)(A) against a union interfering with the protected rights of employees and that of § 8(b)(2) against causing an employer to discriminate against an employee contrary to § 8(a)(3).” Jones, 103 S.Ct. at 1459.

This discussion applies with equal force here. As in Perko, the allegedly tortious conduct falls within the regulatory ambit of the NLRA, namely, 29 U.S.C.A. §§ 158(b)(1) and (2) (West 1973). The conduct does not extend to deeply rooted local interests requiring an independent basis of protection, such as characterized, Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 301-05, 97 S.Ct. 1056, 1064-66, 51 L.Ed.2d 338 (1977) (permitting state claim for intentional infliction of emotional distress) or Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966) (permitting state claim for defamation). In these cases, the Supreme Court was careful to set limits on its stated principle:

[W]e reiterate that concurrent state court jurisdiction cannot be permitted where there is a realistic threat of interference with the federal regulatory scheme____ Simply stated, it is essential that the state tort be either unrelated to [the unfair labor practice] or a function of the particularly abusive manner in which [it] ... is accomplished____

Farmer, 430 U.S. at 305, 97 S.Ct. at 1066. The proper conditions are not present to permit extending the preemption doctrine exceptions to include the plaintiffs allegedly tortious conduct. That the NLRB has declined to pursue Superior’s charges of unfair labor practices does not alter this fact. And although Superior asserts that punitive damages would not be available to it if the NLRB alone had jurisdiction of this case, this does not provide a basis for a contrary holding — such an argument was squarely rejected in Garmon, 359 U.S. at 246-47, 79 S.Ct. at 780. Accordingly, the Court holds that Superior’s claims of tortious interference are preempted under the NLRA, and that summary judgment on this issue must be granted for the plaintiff as a matter of law.

B. Georgia’s Right-to-Work Law

In general, a state right-to-work law may be enforced: section 14(b) of the NLRA, 29 U.S.C.A. § 164(b) (West 1978), provides that “[n]othing in this sub-chapter shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any state or territory in which such execution or application is prohibited by state or territorial law.” Pendent jurisdiction cannot be expanded to include activities not governed by a contract between the parties however, because the authority conferred under section 164(b) to the states to forbid the execution or application of agreements requiring membership in a labor organization “begins only with actual negotiation and execution” of such agreements. Retail Clerks International Association Local 1625 v. Schermerhom, 375 U.S. 96, 105, 84 S.Ct. 219, 223, 11 L.Ed.2d 179 (1963). “Absent such an agreement,” and the record shows none in existence, “conduct arguably an unfair labor practice would be a matter for the National Labor Relations Board under Garmon. ” Id. In consequence, the Court holds that Superior’s claim based on violation of Georgia’s right-to-work laws is preempted by the NLRA; summary judgment on this issue must be granted to the plaintiff as a matter of law.

REMAINING MOTIONS

A. Motion to Amend Reply to Counterclaim

(1) The plaintiff’s amendment sets forth a defense that the defendant’s counterclaim is barred by the applicable statute of limitations. Because of the Court’s disposition of Superior’s counterclaim, the plaintiff’s motion to amend is moot.

B. Motion to Amend Complaint

The plaintiff moves for leave to amend its complaint to include the following amendment to its prayer for relief: “6. Back pay, compensatory damages, and exemplary damages under the authority of the court or the arbitrator.” Superior argues that if arbitration is ordered, the merits of the dispute and thus the question of what damages are to be awarded are questions solely for the arbitrator to decide. The court’s inquiry in this context is limited to whether arbitration should be ordered. The motion to amend is therefore denied.

C. Motion to Amend Counterclaim

Superior seeks to amend its counterclaim pursuant to Rules 13(f) and 15(a) to add a claim that the plaintiff has violated section 301 of the NLRA and the terms of the collective bargaining agreement by attempting to discriminate against employees who are not members of the plaintiff union. Superior observes that no further discovery will be occasioned by this amendment. Leave for such amendments is to be freely given under the Rules, and the plaintiff has not opposed this motion or indicated that it would be prejudiced by it. Superior’s motion to amend its counterclaim is granted.

D. Motion to Compel

The plaintiff’s motion to compel discovery is moot.

In sum, the Court GRANTS the plaintiff’s motion for summary judgment on the issue of arbitration and with respect to Superior’s state law claims. In addition, the plaintiff’s motion to amend its reply to Superior’s counterclaim is MOOT, the plaintiff’s motion to compel production of documents is MOOT, the Court GRANTS Superior’s motion to amend its counterclaim and GRANTS Superior’s unopposed motion to include its trial brief in the pretrial order.

      . The plaintiff makes much of a letter of assent Mr. Ronald A. Lanier, Vice President of Superi- or, signed on Superior’s behalf authorizing the "Georgia Chapter NECA as its collective bargaining representative for all matters contained in or pertaining to the current approved inside labor agreement between the Georgia Chapter NECA and Local Union 1316, IBEW.” Plaintiff’s supplementary brief in support of summary judgment, filed December 24, 1984, Exhibit A. Although the signature sheet on which the plaintiff relies authorizes the Georgia Chapter NECA as collective bargaining representative, it does not reflect Superior’s intent to modify the Scherer Agreement by including the terms of the NECA contract. The NECA contract states that it “shall apply to all firms who sign a letter of assent to be bound by this Agreement.” Plaintiff's complaint, Exhibit 2, at 1. The letter of assent Mr. Lanier signed does not demonstrate Superior’s "assent to be bound”; it merely demonstrates Superior’s assent to have a representative negotiate such agreements.

      . A hot-cargo provision is a clause in a collective bargaining agreement wherein an employer agrees to stop handling the products of, or stop doing business with, another employer.

      . It is perhaps more appropriate for a court to examine this question once an arbitrator’s decision has been made. Any claim that the plaintiff's suit compels illegality would be moot if the arbitrator were to rule against the union.

      . The Robertson court described the exclusive hiring hall arrangement in that case as establishing referral groups as follows:
      In order to qualify for Group I status (first priority), an applicant is required, inter alia, to ‘have been employed for a period of at least one (1) year in the last four (4) years under a collective bargaining agreement between the parties to this Addendum.’ To qualify for Group III status (third party), an applicant is required, inter alia, to ‘have been employed for at least six (6) months in the last three (3) years in the trade under a collective bargaining agreement between the parties to this addendum.’
      597 F.2d at 1333.

      . The NLRB position on this issue is contrary to that stated in Robertson. Interstate Electric Co. and IBEW, Local 354, 227 N.L.R.B. 291 (1977); Bechtel Power Corp. and IBEW, Local 322, 229 N.L.R.B. 84 (1977), rev'd, Robertson, 597 F.2d 1331 (199). Superior has, in addition, introduced evidence which need not be considered here suggesting that the NECA contract provision was illegally applied.

      . The Court might under other circumstances decline to exercise pendent jurisdiction. In the case sub judice, however, the operative events out of which the state claims arise occurred in 1982, and the applicable limitations period is two years. " ‘That a plaintiffs state law claims will be time-barred if dismissed is certainly a factor, if not a determinative factor, a district court should consider in deciding whether to maintain jurisdiction over pendent state claims.’ ’’ Henson v. Columbus Bank and Trust Co., 651 F.2d 320, 325 (5th Cir.1981) (Unit B) (quoting Pharo v. Smith, 625 F.2d 1226, 1227 (5th Cir.1980)).

      . This section reads as follows:
      (b) It shall be an unfair labor practice for a labor organization or its agents—
      (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own .rules with respect to the acquisition or retention of membership therein____
      (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership____

        Id.

      . The same must be said of United Construction Workers v. Laburnum Construction Corp., 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954), on which the Russell Court relied and which Superior cites in support of its position.


author: SAROKIN, District Judge.

text:
    Edward TAYLOR, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 83-80.
    United States District Court, D. New Jersey.
    May 16, 1985.

      Freeman & Bass by Constance J. Kosuda, Newark, N.J., for plaintiff.
    W. Hunt Dumont, U.S. Atty. by Judy Sello and Paul J. Dillon, Newark, N.J., for defendant.
   OPINION

SAROKIN, District Judge.

This court has previously suggested that the Equal Access to Justice Act be utilized as a means of deterring the indifference displayed by the Department of Health and Human Services to court precedent as well as to the suffering and humiliation of those to whom benefits have been wrongfully denied. Merli v. Heckler, 600 F.Supp. 249 (D.N.J.1984). If this avenue of recovery is available to counsel, it is incumbent upon counsel to pursue it or justify the failure to do so. Otherwise, the net award to claimants may be needlessly reduced. Applications for counsel fees are subject to analysis based upon the quality of the services performed and the result achieved. Failure to seek fees from the government, rather than the client, clearly affects both the quality of counsel’s performance and the result achieved, particularly if there is a substantial likelihood that the government could be held responsible for the payment of those fees.

Accordingly, in every such application counsel should be required: 1) to advise the client of his or her right to contest the amount of the fee, and 2) to explain that in counsel’s opinion no other means for recovery of said fee is available, and the grounds for such opinion.

By imposing these requirements upon counsel, the court will be assured that successful claimants will be advised of the claim for fees from them and their right to contest such fees. Further, the court and the client will be assured that other avenues to collect such fees have been exhausted or cannot be for certain valid and stated reasons.

Because of the importance of not eroding the recovery by Social Security claimants in these matters, counsel fees should not be permitted to reduce the amount actually received except as a last resort. It is unfortunate enough that the multitude of these claims are wrongfully denied, causing untold anguish and deprivation in the interim, but to unnecessarily reduce the award further where counsel fees could be obtained elsewhere would serve only to compound the wrongs suffered in these matters.

This matter is before the court on the application of plaintiff’s counsel for an award of attorney’s fees equal to twenty-five per cent of the back benefits paid to plaintiff pursuant to the Opinion and Order of the court dated July 23, 1984. The fee requested amounts to $8,214.50. Counsel documents seventy (70) hours of work on this case, thus requesting a fee of $117.00 per hour. The government has objected to this fee, arguing that only those hours representing work performed before the court are properly encompassed by this application. It recommends authorization of a $4,000.00 fee for such services, and the filing of a separate application for the remainder before the Social Security Administration.

Counsel served his notice of motion for fees upon plaintiff by certified mail, return receipt requested, on January 4, 1985. See Aff. of Paulette L. Jones (1/4/85) ¶¶ 1-2. The court has received no opposition to counsel’s request from plaintiff.

Title 42 U.S.C. § 406(b)(1) states, in pertinent part:

Whenever a court renders a judgment favorable to a claimant under this sub-chapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 per cent of the total of past-due benefits to which the claimant is entitled by reason of such judgment ...

This section embodies “the sound policy of providing claimants with adequate representation ...,” Reid v. Heckler, 735 F.2d 757, 760 (3d Cir.1984), and thus enhances the substantive rights of Social Security claimants. This does not, however, mean that attorneys’ requests for fees should be rubber-stamped. Indeed, the district court has an affirmative obligation to determine the reasonableness of the fee requested by an attorney.

While the lawyer is entitled to a reasonable compensation for the services rendered to him in the judicial proceeding, these benefits are provided for the support and maintenance of the claimant and his dependents and not for the enrichment of members of the bar. Routine approval of the statutory maximum should be avoided in all cases. In a great majority of cases, perhaps, a reasonable fee will be much less than the statutory maximum.

Lewis v. Secretary of Health and Human Services, 707 F.2d 246, 248 (6th Cir.1983) (emphasis in original), quoting Redden v. Celebrezze, 370 F.2d 373, 376 (4th Cir.1966). See also MacDonald v. Weinberger, 512 F.2d 144, 146-47 (9th Cir.1975); Fenix v. Finch, 436 F.2d 831, 836 (8th Cir.1971); McKittrick v. Gardner, 378 F.2d 872 (4th Cir.1967); Eustache v. Secretary of the Department of Health and Human Services, 601 F.Supp. 176, 178 (E.D.N.Y.1985); Burris v. Heckler, 598 F.Supp. 573, 574-75 (N.D.Texas 1984); Stiltner v. Califano, 470 F.Supp. 261, 262 (E.D.Tenn.1977). Thus, the court is to consider, for example, the time and labor required; the novelty and difficulty of the questions posed; the skill required; the customary fee charged; whether the fee is contingent or fixed; the time limitations imposed upon the attorney; the amount involved and result attained; the experience, reputation and ability of the attorney; the nature and length of the professional relationship with the client; and awards in similar cases. Blankenship v. Schweiker, 676 F.2d 116, 117-18 (4th Cir.1982), citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974); McKittrick v. Gardner, supra. See also Burris v. Heckler, supra, 598 F.Supp. at 574-75. See generally 20 C.F.R. § 404.-1725(b) (listing factors considered by the Secretary in reaching a determination as to fee).

The court scrutinizes applications such as these with particular care because the interests of the attorney and his or her client “are inherently in conflict” in Social Security cases. Lewis, supra, 707 F.2d at 251, quoting Moore v. Califano, 471 F.Supp. 146 (S.D.W.Va.1979). Of course, such conflict peaks at the point at which the attorney requests a fee to be deducted, dollar-for-dollar, from the award of back benefits to which the claimant is entitled. Moreover, having entered into a contingent fee arrangement for services culminating in a result in his or her favor, a claimant is unlikely to challenge the attorney’s fee requested, as long as it is in accord with such agreement. As stated by one court,

... in most Social Security cases ... entitlement to benefits constitute^] the sole issue in the case; the proper method of computation of benefits [is usually] not disputed. In such cases there is generally a much less direct correlation between the size of the claimant’s recovery and the lawyer’s skill, effort or effectiveness than there is in, say, most personal injury cases. See McKittrick v. Gardner, supra, [378 F.2d] at 874. Moreover, we are not overly impressed by [counsel’s] observation that [plaintiff] has not objected to the size of the award. As the court noted in McKittrick, supra, at 874, the least competent and diligent attorney “may be the quickest to declare to the client, T won your case.’ Such a claimant is unlikely to object to an allowance of a fee in accordance with his contingent fee arrangement, for, rightly or wrongly, he will usually give the lawyer all of the credit for the success in winning an award of benefits for him.”

Lewis, supra, 707 F.2d at 248. See also Eustache, supra, 601 F.Supp. at 178, citing Modica v. Secretary of Health and Human Services, 581 F.Supp. 39 (E.D.N.Y.1984) (court would not treat the contingency agreement as a factor in setting fees under section 406(b)(1)). However, the conflict between attorney and client in Social Security cases exists well before the point at which the attorney’s fee is set. Because such fee is based upon a percentage of the back benefits received,

... the dilatory lawyer is given a premium; the prompt, effective lawyer who moves expeditiously is penalized. The regrettable delays in the final adjudication of these claims, in large measure, may be unavoidable, but they should not be compounded by incentives for procrastination and delaying tactics on the part of a claimant’s attorney____ while most lawyers are conscientious, statutes need not encourage those who are not completely so to be less conscientious in the expeditious prosecution of the claims of their clients.

McKittrick, supra, 378 F.2d at 874. See also Redden, supra, 370 F.2d at 376. Hence, even during the course of litigation, the interests of counsel and client diverge: while the latter understandably desires the quickest possible resolution of the matter in his or her favor, section 406(b) may encourage some counsel to prolong the matter in order to increase the size of the award from which the fee is drawn.

There are two solutions to this conundrum. The first and most obvious is embodied in the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”), which provides for attorney’s fees to be paid not out of the pocket of the claimant, but by the government, in cases in which its position was not “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). “It is settled law in [the Third] Circuit that the Equal Access to Justice Act applies to judicial review actions brought pursuant to the Social Security Act, 42 U.S.C. § 405(g)(1982).” Tressler v. Heckler, 748 F.2d 146, 148 (3d Cir.1984) (citing authorities). See also Wolverton v. Heckler, 726 F.2d 580, 582 (9th Cir.1984) (the existence of section 406(b) does not preclude an award of fees under the EAJA). Indeed, the purpose of the EAJA was “to remove the financial barrier faced by individuals litigating valid claims against the government,” thus encouraging individuals to contest injustices, in furtherance of the public interest, rather than endure them. Brown v. Secretary of Health and Human Services, 747 F.2d 878, 880 (3d Cir.1984) (citing legislative history). As such, the law in this circuit favors Social Security claimants in cases such as these: the government bears the heavy burden of making “a ‘strong showing’ that its position was substantially justified,” Tressler, supra, 748 F.2d at 150, quoting Natural Resources Defense Council v. United States Environmental Protection Agency, 703 F.2d 700, 712 (3d Cir.1983). See generally Washington v. Heckler, 756 F.2d 959, 961 (3d Cir.1985). Such showing cannot be based upon “some evidence,” Tressler, supra, 748 F.2d at 150, and can never be made where “the government’s legal position clearly offends established precedent,” Washington, supra, 756 F.2d at 962, or where there was “no reasonable basis in fact” for the Secretary’s denial of plaintiff’s claim for benefits. Dennis v. Heckler, 756 F.2d 971, 976 (3d Cir.1985). Thus, although the EAJA purports to be “a middle ground between an automatic award of fees to a prevailing party and an award made only when the government’s position was frivolous,” Washington, supra, 756 F.2d at 961, quoting Dougherty v. Lehman, 711 F.2d 555, 563 (3d Cir.1983), “the bottom line seems to be that [the Court of Appeals] always reverse[s] denials of attorney’s fees.” Washington, supra, 756 F.2d at 968 (Aldisert, C.J., concurring). The reason, of course, is that the decisions of the Secretary of Health and Human Services are so often lacking in substantial justification, either in fact or for failure to follow well-settled legal precedent. See generally Wier v. Heckler, 734 F.2d 955, 956-57 (3d Cir.1984). Indeed, this court has suggested that

... one way to stem this tide and alter what has been described as the government’s policy of “informal non-acquiescence,” is to require the government and not the claimants to pay counsel fees in these matters. Under the present system the government has nothing to lose by putting these persons through the agony of the appellate process even if it must ultimately pay the benefits found to be due. Hopefully, by imposing counsel fees on the government, this cruel and inhuman policy and the blatant contempt for judicial decisions will end.

Merli v. Heckler, supra, 600 F.Supp. at 251.

The court believes that more frequent invocation of the EAJA will have an additional salutary effect: it will ameliorate the conflict of interest between attorney and client. If fees come from the government and are based upon the number of hours actually worked rather than upon some statutorily-mandated-contingency percentage, counsel will be much more likely to seek the expeditious processing of their clients’ claims, rather than to be tempted to allow the amount upon which their fee is based to multiply merely by the passage of time. Moreover, they will avoid even confronting their client in the adversary situation created by section 406(b), for the interests of attorney and client will always overlap. Hence, the EAJA creates all the right incentives, and avoids the problems which the court here faces. Indeed, the court believes that, in cases in which the EAJA applies, because the government’s position was not substantially justified, attorneys must make applications under the Act. If they do not, as here, it is highly appropriate to reduce the fee award ultimately entered, and in this case and all future cases, the court will so reduce such awards, by an amount to be determined. The rationale for this holding is clear under the caselaw discussed earlier. See supra at 1257-1258. First, to diminish a claimant’s past-due benefits by up to twenty-five per cent where the amount so lost could or should have been paid by the government directly affects the “result attained.” Second, the failure to make an EAJA application where one was appropriate directly calls into question the “ability of the attorney.” And third, the attorney’s willingness to create a situation of conflict with his or her client sheds light on “the nature ... of the professional relationship with the client,” revealing such nature to be less than it ought to be.

Hence, attorneys should be on notice that from this point forward, they act at their peril, rather than at the peril of their clients, when they move for fees pursuant to section 406(b). In so holding, the court seeks to diminish the frequency with which the situation it here faces now recurs, and to vindicate the purposes of the EAJA in so doing. It does not, in any way, mean to chill the enthusiasm or decrease the frequency with which attorneys choose to represent Social Security claimants, and it does not believe its ruling will have such result. Indeed, it will not, so long as attorneys first utilize the EAJA where it is appropriate and then section 406(b) where it is not. And, of course, the filing of an EAJA application does not preclude a subsequent filing under section 406(b).

The second solution to the conundrum here presented is far simpler, but equally as important. There is no question but that, when making section 406(b) applications, attorneys are required to give notice to their clients as to the existence of such application. See 20 C.F.R. § 404.-1725(a)(7); Robinson v. Secretary of Health, Education and Welfare, 456 F.Supp. 876, 878 (E.D.Mich.1978) (“Basic fairness requires that when an attorney claims to be entitled to money that would otherwise go to that attorney’s client, the attorney should be required to notify the client of his claim.”); Moore v. Califano, 471 F.Supp. 146, 148-49 (S.D.W.Va.1979). See also Clark v. Schweiker, 652 F.2d 399, 403 (5th Cir.1981) (Secretary must inform claimant of statutory right to counsel, paid for by fee in conformity with § 406(b)(1)). Generally, section 406(b) applications are therefore served upon a claimant. However, the court believes that such applications do not adequately inform claimants of their rights. The court has been in the practice of writing letters to claimants, informing them of their right to oppose such fee requests. Henceforth, however, the court will require that enhanced notice be given as part of counsel’s fee application to the client informing:

(1) that the client may object to the fee imposed either in person or by letter; and

(2) that counsel has chosen to make application under section 406(b) rather than under the EAJA and why (or that application under EAJA has been made and denied).

Such notice is to be filed with the court.

Future fee applications under section 406(b) are to be governed by these notice requirements, which requirements are made necessary by the adversary nature of the respective positions of counsel and client, as well as by the confusion which most Social Security claimants must feel when confronted by a fee application such as the one here at issue, and indeed, by the entire disability determination process. The due process clause requires no less. See generally Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 313-20, 70 S.Ct. 652, 656-60, 94 L.Ed. 865 (1950).

This court has occasion, time after time, to reverse determinations of the Secretary of Health and Human Services, and to require the payment of disability benefits to claimants. The Equal Access to Justice Act allows counsel to be paid, without depriving claimants of monies owing them. The court believes that it ought, therefore, be used more frequently and whenever the circumstances warrant. If counsel choose to seek payment out of funds otherwise intended for the benefit of the client, they should be required to notify the client and justify the failure to maximize the award to the client rather than deplete it. If they cannot justify it, the fee accordingly awarded should reflect their less than completely successful efforts on behalf of their clients. After compliance with the foregoing, the court will consider the merits of counsel’s application consistent with this Opinion.

      . The court does not here express a final opinion as to the appropriate amount of fees in this case. It does, however, note that the $117.00/hour fee requested by counsel is the highest fee it has yet been asked to approve in a Social Security case. The court also notes that the brief filed by counsel in this matter failed to argue several legal and many factual matters which ultimately became the basis for the court’s July 24, 1984 Opinion and Order granting benefits to plaintiff. Nor did counsel cite to the court the leading authorities in the Third Circuit by which this court is bound. Nor, after the court described the government's actions in this matter as “unlawful and callous behavior” and "an affront to the statute, to the notion of separation of powers, and to the principles of humanity that ought to guide all governmental decision making,” does counsel, apparently, find this an appropriate case in which to apply for EAJA fees from the government. In setting the fee ultimately awarded, this is a factor which the court cannot help but take into account. On the other hand, however, the court also disagrees with the government’s position, insofar as it argues that counsel cannot here make application under section 406(b) for fees earned in administrative hearings before the Secretary. The Court of Appeals for the Third Circuit has expressly left the issue of whether it is proper to do so open. Reid v. Heckler, supra, 735 F.2d at 761 n. 3. However, the court believes that the weight of authority allows counsel for a claimant who has obtained a judgment from the district court ordering the Secretary to grant benefits, to request fees for both the services rendered before the Secretary and those rendered before the court. See, e.g., Webb v. Richardson, 472 F.2d 529, 535, 36 (6th Cir.1972); Kemp v. Schweiker, 587 F.Supp. 778 (W.D.Pa.1984) Courter v. Heckler, 577 F.Supp. 892 (S.D.Ohio 1984); Ruzicka v. Heckler, 562 F.Supp. 499 (N.D.Ill.1983). See also Dawson v. Finch, 425 F.2d 1192, 1194 (5th Cir.), cert. denied, 400 U.S. 830, 91 S.Ct. 60, 27 L.Ed.2d 60 (1970), citing Hearings on H.R. 6675 Before the Senate Committee on Finance, 89th Cong., 1st Sess. at 512-13. Those precedents to the contrary are based upon cases in which the district court remanded the matter to the Secretary. In such a situation, the claimant has prevailed before two different tribunals and it is accordingly a reasonable reading of § 406(b) to require the fees arising from the administrative proceeding to be determined by the Secretary and those from the district court proceeding by the court. See, e.g., Morris v. Social Security Administration, 689 F.2d 495 (4th Cir.1982); MacDonald v. Weinberger, supra; Whitehead v. Richardson, 446 F.2d 126 (6th Cir.1971); Fenix v. Finch, supra, 436 F.2d at 838; Gardner v. Menendez, 373 F.2d 488 (1st Cir.1967). Here, the court ordered that benefits be granted. It thus has jurisdiction to award attorney’s fees for the entirety of the prosecution of plaintiff’s disability claim. Indeed, to do otherwise would be inefficient and engender unnecessary litigation.

      . Indeed, the court will recommend the adoption of a formal rule to this effect.

      . EAJA petitions may be filed up until thirty days after the government’s right to appeal has lapsed. Taylor v. United States, 749 F.2d 171 (3d Cir.1984). Section 406(b) applications are not time-limited. Moreover, it should be noted that the time spent on even erroneous EAJA applications ought to be reflected in a section 406(b) award, since such application will reflect positively on counsel’s desire to achieve the best possible result for his or her client.