author: SCOTT O. WRIGHT, Chief Judge.

text:
    Walter J. BLAIR, Petitioner, v. Bill ARMONTROUT, Warden of the Missouri State Penitentiary, Respondent, and William H. Webster, Attorney General of the State of Missouri, Additional Respondent.
    No. 85-0155-CV-W-5.
    United States District Court, W.D. Missouri, W.D.
    Aug. 8, 1985.
    See also, D.C., 604 F.Supp. 723.
    Bernard Rhodes, Gage & Tucker, Kansas City, Mo., for petitioner.
    Office of the Attorney General, Jefferson City, John B. Williams, Jay D. Haden, Office of the County Counselor, Kansas City, Mo., for respondents.
   ORDER

SCOTT O. WRIGHT, Chief Judge.

Pending before the Court is Petitioner Walter Blair’s motion to disqualify the Attorney General’s Office of the State of Missouri from representing the Respondents in this federal habeas corpus action pursuant to 28 U.S.C. § 2254. Blair challenges the constitutionality of his conviction on capital murder and subsequently imposed death sentence. Blair contends that disqualification is required by virtue of the fact that his former attorney who represented Petitioner in connection with his state post-conviction remedies is now employed as an Assistant Attorney General with the Criminal Division of the Attorney General’s Office. For the following reasons, Blair’s motion will be granted, and the Office of the Attorney General is disqualified from all subsequent participation in this action.

I. Factual Background

The facts relevant to the Petitioner’s motion are not disputed by the parties. Blair was convicted of capital murder on January 14, 1981, in the Circuit Court of Jackson County, Missouri. On October 17, 1980, Blair was sentenced to death. At trial, Blair was represented by two private attorneys, Phillip Schwarz and Gerald Handley, who were appointed by the Court. Handley and Schwarz represented Blair on his direct appeal to the Missouri Supreme Court, which affirmed Blair’s conviction and sentence. See State v. Blair, 638 S.W.2d 739 (Mo. en banc 1982). Following the Missouri Supreme Court’s affirmance, the Jackson County Circuit Court on September 27, 1982 appointed Gary L. Gardner, an assistant public defender for Jackson County, to represent Blair. On December 6, 1982, Blair filed a petition for certiorari with the United States Supreme Court which was signed by Gardner as counsel of record. Although the certiorari petition also bore the names of Handley and Schwarz, Gardner had assumed the primary role as counsel for Blair. The State was represented on direct appeal in the certiorari proceeding by John Morris, an assistant attorney general.

Following the denial of the certiorari petition by the United States Supreme Court, Gardner was the sole counsel for Blair in his Rule 27.26 proceeding before the Jackson County Circuit Court. During the course of the Rule 27.26 proceeding, Gardner met with Blair, corresponded with Blair concerning factual and legal issues related to the case, took the deposition of the trial prosecutor, and submitted briefing and presented evidence at the Rule 27.26 hearing. The State was represented by the Jackson County Prosecutor’s Office in connection with the Rule 27.26 proceeding.

Blair’s Rule 27.26 motion was denied by the Circuit Court on July 7, 1983. Thereafter, Gardner represented Blair on the appeal of the denial of the Rule 27.26 motion, and filed a brief with the Missouri Court of Appeals for the Western District. The State was again represented by counsel Morris on the appeal. On July 31,1984, the denial of Blair’s Rule 27.26 motion was affirmed. Blair v. State, 683 S.W.2d 269 (Mo.App.W.D.1984) (unpublished memorandum opinion). Following that affirmance, Gardner filed a motion on Blair’s behalf with the Western District Court of Appeals requesting a rehearing or, in the alternative, a transfer. That motion was filed on August 8, 1984, and apparently was Gardner’s final official act as Blair’s counsel.

Gardner left the Jackson County Public Defender’s office on August 31, 1984, and commenced employment as an Assistant Attorney General for the State of Missouri on September 1, 1984. Gardner initially was assigned to the criminal appeals unit of the Criminal Division, and in that capacity Gardner briefed and argued state felony appeals in cases other than those arising out of Jackson County. In February of 1985, Gardner was transferred to the litigation unit of the Criminal Division, which represents law enforcement state agencies in federal and state civil actions.

Following Gardner’s withdrawal as counsel for Blair, the motion for rehearing or for transfer was denied by the Western District Court of Appeals on October 2, 1984. Thereafter, the Missouri Supreme Court denied the subsequent application for transfer on January 15, 1985. Blair was represented in this application by Sean O’Brien, an assistant public defender. On February 11, 1985, Blair filed a pro se petition for a writ of habeas corpus. On February 26, 1985, this Court appointed Bernard Rhodes as counsel for Blair on habeas corpus review.

In their response to the motion to disqualify, Respondents assert that Counsel Morris, as Chief Counsel of the Criminal Division, has authority over Gardner but does not directly supervise Gardner’s cases or activities. By affidavit, Counsel Morris states that he and Gardner have not discussed any confidential matter of any kind in connection with Blair’s litigation, nor has Gardner discussed the case with anyone in the Attorney General’s office.

II. Analysis

Blair contends that the disqualification of the Attorney General’s office is required pursuant to Canons 4 and 9 of the Code of Professional Responsibility. See Mo.Sup. Ct.R. 4. According to Canon 4, a lawyer should preserve the confidences and secrets of a client. Canon 9 states that a lawyer should avoid even the appearance of impropriety. Blair does not suggest that Gardner has acted improperly or unethically; rather, Blair contends that the appearance of impropriety would arise if the Attorney General’s office is allowed to defend this habeas corpus litigation with Blair’s former counsel now employed as an Assistant Attorney General. In response, the Attorney General argues that no client confidences have been shared, and that government legal offices are not subject to vicarious disqualification simply because a staff member is ineligible to participate in a ease.

In support of its argument, the Attorney General relies on ABA Formal Opinion 342, published at 62 ABA Journal 517 (1976), and quoted in United States v. Caggiano, 660 F.2d 184,190 (6th Cir.1981). According to Formal Opinion 342, where a lawyer leaves a private practice for government service, other lawyers in the government office need not be disqualifed from handling matters in which their new associate was involved in his former practice. See Caggiano, 660 F.2d at 190. In Caggiano, the Sixth Circuit stated that the rationale for Formal Opinion 342 was “[tjhere is, of course, quite a difference in the relationship between law partners and associates in private law firms and lawyers representing the government. The ABA Committee on Professional Ethics recognized there are substantial reasons against treating the government as a private enterprise in its Formal Opinion 342____” 660 F.2d at 190.

Initially, the Court notes that although Formal Opinion 342 is instructive and entitled to some persuasive value, it remains the ultimate responsibility of the District Court to supervise the members of its bar in light of applicable law. See Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 605 (8th Cir.1977). “The dispatch of this duty is discretionary in nature and the finding of the district court will be upset only upon a showing that an abuse of discretion has taken place.” Id. “Rigid rules [applicable to the canons of the Code of Professional Responsibility] can be sterile and lacking in universal application.” State of Arkansas v. Dean Foods Products, Co., Inc., 605 F.2d 380, 383 (8th Cir.1979). Thus, the Court may not be satisfied in merely ending its inquiry with a pro se application of Formal Opinion 342. Rather, the Court must consider controlling case law, and “the interest of society in the orderly administration of justice, ... the interest of clients in candid consultation and choice of counsel, and ... the interest of the legal system in its reputational soul.” Id. “In determining whether to disqualify counsel for conflict of interest, the trial court is not to weigh the circumstances ‘with hair-splitting nicety' but, in the proper exercise of its supervisory power over the members of the bar and with a view of preventing ‘the appearance of impropriety,’ to resolve all doubts in favor of disqualification.” United States v. Clark-son, 567 F.2d 270, 273 n. 3 (4th Cir.1977), quoting Gas-A-Tron of Arizona v. Union Oil Co., 534 F.2d 1322, 1324-25 (9th Cir. 1976); United States v. Trafficante, 328 F.2d 117, 120 (5th Cir.1964).

The Court first notes that the Eighth Circuit has expressly rejected the proposition that there is a valid reason for distinguishing between private firms and government offices for purposes of disqualification analysis. As stated by the Eighth Circuit in Dean Foods, “[n]o practical reason exists for differentiating, with respect to disqualification, between a private firm and a group of attorneys and staff members of a state Attorney General’s office actively involved in a particular suit, (cite omitted). Though a state would appear to have a special interest in and responsibility for compliance with ethical standards by all lawyers it licenses, we have not taken that interest and responsibility into account here.” Dean Foods, 605 F.2d at 387 n. 10. Thus, it is clear that the law in this circuit directly conflicts with the rationale supporting Formal Opinion 342, issued three years prior to the Eighth Circuit’s opinion in Dean Foods. In Dean Foods, the Eighth Circuit applied Canon 9’s prohibition against the appearance of impropriety and held that the trial court abused its discretion in failing to disqualify certain staff members of the state Attorney General’s office who had actively worked with an assistant Attorney General who had previously represented a former client who was the target of a state anti-trust suit. Id. at 387. In its decision, the Eighth Circuit expressly did not decide whether the entire Attorney General’s staff should be disqualified because such relief was not requested. Id. at n. 9.

At least one Missouri state court, however, has addressed the issue and has concluded that an entire prosecutorial office should be disqualified. In State v. Croka, 646 S.W.2d 389, 393 (Mo.App.W.D.1983), the Missouri Court of Appeals for the Western District of Missouri reversed defendant Croka’s conviction for second degree murder on the grounds that the trial court erred in overruling a motion to disqualify the Saline County prosecutor’s office where one of the defendant’s court-appointed attorneys subsequently joined the prosecutor’s office during the course of the criminal prosecution. The appointed counsel, Gary Busker, had served as Croka’s defense counsel during a period of time which included Croka’s preliminary hearing. Thereafter, Busker withdrew from Croka’s representation due to his appointment as an assistant prosecuting attorney for Saline County. Croka then moved for the disqualification of the prosecutor’s office based on Busker’s prior representation. “Inexplicably, the trial court overruled the motion.” Id. at 392. In reversing, the Court of Appeals noted that “Busker acquired knowledge about the case from Croka while acting as his appointed counsel. When Busker joined the prosecutor’s office, that office was thereby disqualified from prosecuting the case irrespective of the assumed facts that Busker revealed no confidences and did not himself participate in the prosecution. The disqualification does not result from information acquired and used to Croka’s detriment, but because [the prosecutor’s] office was placed in position where continued involvement would create the appearance of impropriety.” Id. at 393. Thus, the holding in Croka makes it clear that Missouri courts have implicitly rejected the substance of Formal Opinion 342 based on the rationale that the appearance of impropriety can be cured only by disqualification of the entire prosecutorial office. Moreover, the reasoning of the Croka court is consistent with and a logical extension of the Eighth Circuit’s assertion in Dean Foods that there is no reason to differentiate, for disqualification purposes, between a private firm and a state attorney general’s office.

There is considerable authority for disqualification of an entire legal office without regard to whether the other office member had actually been exposed to confidential information presumptively possessed by the attorney who formerly represented the adverse interest. See Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir.1976). In the instant case, the attorney-client relationship that existed between Gardner and Blair created an irrefutable presumption that confidences were disclosed by the client to the attorney. Fred Weber, Inc., 566 F.2d at 608. Furthermore, Gardner’s presumed access to confidential information results in the imputation of that information to others in his office. Id. Thus, “[confidential information possessed by one attorney may or may not have been shared with other members of the firm, but the firm as a whole is disqualified whether or not its other members were actually exposed to the information.” Troné v. Smith, 621 F.2d 994, 999 (9th Cir.1980). Given “the presumed interplay among lawyers who practice together, the rule applies not only to individual attorneys, but also requires disqualification of the entire firm as well as all employees thereof.” United States v. Kitchin, 592 F.2d 900, 904 (5th Cir.1979) (trial court properly granted prosecution’s motion to disqualify criminal defendant’s counsel because associate of defendant’s attorney had been actively involved on behalf of prosecution at early stage of criminal proceeding). Thus, the scope of the disqualification properly extends to the Attorney General’s office as a whole under Canon 4.

In addition to the prohibition of Canon 4 against sharing client confidences, the injunction of Canon 9 against the appearance of impropriety can be the sole basis for disqualification. Canon 9 “relates to the entire spectrum of lawyer conduct. That no unethical or untoward, act may have occurred is implicit in the Canon’s emphasis on ‘appearance.’ The conduct under scrutiny must, therefore, be evaluated in an ‘eye of the beholder’ context, and the lawyer must be disqualified when an actual appearance of evil exists, though there be no proof of actual evil.” Fred Weber, Inc., 566 F.2d at 609. The Court emphasizes that there is no suggestion that client confidences have actually been shared in this case, and has complete confidence that all counsel of record in this case have avoided and will continue to avoid improper activity. However, the requirement of Canon 9 that “a lawyer avoid even the appearance of impropriety reflects the bar’s concern that some conduct which is in fact ethical may appear to the layman as unethical and thereby could erode public confidence in the judicial system or the legal profession.” Woods v. Covington City Bank, 537 F.2d 804, 813 (5th Cir.1976). “[Cjonscious of the need to keep both the public and the private segments of the profession above suspicion, courts have disqualified attorneys under the appearance of evil doctrine even though the record was free of any evidence of wrongdoing.” Id.

Conclusion

The Court is compelled to note that “public trust in the confidence with which an attorney receives potential evidence from a client would soon disappear if the lawyer were permitted to establish the same fiduciary relationship with an adverse party.” United States v. Kitchin, 592 F.2d at 904. “That concern is even greater in a case involving the public’s interest in the prosecution of alleged criminal acts as opposed to civil litigation.” Id.

The same public interest also exists in habeas corpus actions, particularly those challenging convictions resulting in death sentences, because habeas corpus is the only federal vehicle for collateral attack against a state criminal conviction, and because habeas corpus actions directly protect the most valued rights and are of fundamental importance under the constitutional scheme. See Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977). “For a former prosecutor to be associated with the lawyer who represents a person he earlier helped prosecute, even if only at the embryonic state, would likely provoke suspicion and distrust of the judicial process.” Kitchin, 592 F.2d at 904. Similarly, public suspicion would also arise where an attorney is now associated with an office which is representing the state in a habeas corpus action filed by the attorney’s former client who was represented by that attorney during the course of the former client’s direct appeal and state collateral review of his conviction and death sentence. It is fundamental that the public, as well as criminal defendants, should be confident that offices of county prosecutors and the state Attorney General will not be allowed to hire a criminal defendant’s former defense counsel and thereafter represent the state in opposing the defendant’s appeal or habeas corpus petition. Although the Court is confident that Counsel Gardner and the members of the Attorney General’s office would take every step necessary to avoid any actual impropriety, the Court “cannot impart this same confidence on the public by Court order.” Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1387 n. 1 (2nd Cir. 1976). Because the appearance of impropriety cannot be cured by guarantees of Gardner’s disassociation with this action, the so-called “Chinese wall” approach to the problem is not sufficient. Thus, the Court concludes that the disqualification of the Attorney General’s office is also required under Canon 9.

Accordingly, it is hereby

ORDERED that the Petitioner’s motion to disqualify the Missouri Attorney General’s office from further participation in this suit is granted. It is further

ORDERED that the Respondents obtain substitute counsel, and that substitute counsel enter an appearance within twenty (20) days of this order. It is further

ORDERED that substitute counsel for Respondents file an answer to the petition for habeas corpus relief within thirty (30) days after the entry of appearance. It is further

ORDERED that all other proceedings in this case are stayed pending entry of appearance by substitute counsel for Respondents.

      . In Dean Foods, the Eighth Circuit expressed its concern about the fairness of a "double imputation" analysis. 605 F.2d at 387. No similar concerns exist in this case because Gardner is presumed to have received client confidences, without the application of the imputation theory-

        . The Court notes that the respondents have questioned the propriety of this Court’s former law clerk participating as co-counsel for the petitioner. It would appear that any relief requested in this regard must be issued in response to a motion for recusal. See United States v. Hollister, 746 F.2d 420, 425-26 (8th Cir.1984). Respondents have not filed such a motion, and the Court expresses no views as to the merits of the issue.


source: Caselaw Access Project

author: RICE, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. UNITED STATES CURRENCY AND COIN: $558,110.00, Defendant.
    No. C 3-84-948.
    United States District Court, S.D. Ohio, W.D.
    Aug. 8, 1985.

      Robert C. Brichler, Asst. U.S. Atty., Cincinnati, Ohio, for plaintiff.
    Jeffrey E. Froelich, Dayton, Ohio, for intervenor, Robert Layman.
    Martin S. Piñales, Cincinnati, Ohio, Stanley Z. Greenberg, Dayton, Ohio, for defendant, William E. Stepp.
    Lawrence T. Burick, Dayton, Ohio, for intervenor, J.B. Payne.
   DECISION AND ENTRY SUSTAINING IN PART AND CONDITIONALLY OVERRULING IN PART PLAINTIFF’S MOTIONS TO STRIKE PLEADINGS OF CLAIMANTS AND TO DISMISS CLAIMANTS AS A PARTIES; FURTHER PROCEDURES ORDERED

RICE, District Judge.

In this civil forfeiture action, the United States Government seeks a Court order decreeing the forfeiture of $558,110 which was seized from the residence of William Elias Stepp (Stepp), during the course of a criminal investigation, pursuant to a search warrant, on March 22, 1984.

Pursuant to notice as required by law, three persons have filed a claim for the money in the form of an answer to the Government’s Complaint and/or an intervening complaint, to wit:

(1) J.B. Payne, whose motion to intervene in this action (Doc. # 7) was sustained by the Court (Doc. # 16), and who has filed an answer and crossclaim (Doc. # 19) as a judgment creditor of Stepp from whose premises the money was seized. Payne seeks an order of this Court directing an amount of the money seized paid to him sufficient to satisfy his judgment against Stepp.

(2) William Elias Stepp, who filed his answer (Doc. # 8), denying any criminal implication concerning his possession of the money seized from his premises, who seeks an order of the Court, after hearing upon the merits, dismissing the Government’s complaint for forfeiture and returning the money to him. Stepp sets up his right to possession of the money seized.

(3) Robert Layman, whose motion to intervene in this action (Doc. # 9), was sustained by the Court (Doc. # 10) and whose intervening complaint (Doc. #11) alleges that he has an interest in the money as a judgment creditor of Stepp. Layman prays for an order of this Court awarding him the amount he seeks sufficient to satisfy that judgment.

The Plaintiff has filed the following, in response to these claims asserting an interest in the money seized:

(1) With reference to the claims of Payne and Layman, the Government has filed a motion to strike Payne’s answer and cross-claim and to dismiss him as a party (Doc. # 22) and a motion to strike Layman’s complaint and to dismiss him as a party (Doc. # 23). Each of said motions sets forth the grounds that said Claimants had failed to file a proper claim within the meaning of the applicable law and, additionally, that Payne and Layman, as judgment creditors of Stepp, lacked standing to assert a claim in this civil forfeiture action. It is the Government’s contention that only the owner of the property in question, (as opposed to judgment creditors of the owner) have standing under the. law to challenge the forfeiture of money or property allegedly used in violation of federal law. The Government further contends that one with merely an equitable interest in the property (such as a judgment creditor) must apply either to the Secretary of the Treasury or the Attorney General of the United States (depending upon the statute used to seek forfeiture of the property) for remission of the penalty, because a lienholder is not entitled to intervene (or to set up a claim) for remission or mitigation in judicial proceedings.

(2) With reference to the claim of Stepp, the Government has moved to strike his answer and to dismiss him as a party (Doc. # 24), contending that he has failed to file a proper claim as required by law. In addition, the Government alleges that he lacks standing to assert a claim in this civil forfeiture action, because only owners of the res have standing to challenge its forfeiture and Stepp has failed to either allege or to demonstrate a specific property interest in the seized property. Further, the Government contends that, although he might have a fifth amendment right not to state the nature of his interest, such a claim cannot prevent the Court from ordering that the Claimant allege a specific property interest in the fugitive property, or risk its forfeiture. United States v. Sanger 24' Spectra Boat, 738 F.2d 1043, 1047 (9th Cir.1984).

The motions of the Plaintiff are well taken in part and not well taken in part and same are, therefore, sustained in part and overruled in part, pursuant to the following non-exclusive observations:

(1) None of the “Claimants” has filed a proper claim stating an interest in the property as is required by the applicable law.

The provisions of 21 U.S.C. § 881(b) and (d) require application of the Supplemental Rules for Certain Admiralty and Maritime Claims (Supplemental Rules) and the procedures for enforcement of customs claims to such forfeitures. See, e.g., 19 U.S.C. §§ 1608, 1615. Any person seeking to participate in the forfeiture action must first file a claim stating an interest in the property, pursuant to 19 U.S.C. § 1608 and the supplemental rules for certain Admiralty and Maritime claims, Rule C(6). 19 U.S.C. § 1608 requires the filing of a claim within twenty days from the date of the first publication of the notice of seizure (in the captioned cause, the filing of the complaint). Supplemental Rule C(6) requires, in pertinent part:

The claim shall be verified on oath or solemn affirmation; and shall state the interest in the property by virtue of which the Claimant demands its restitution and the right to defend the action. If a claim is made on behalf of the person entitled to possession by an agent, bailor, or attorney, it shall state that he is duly authorized to make the claim.

Although each of the Claimants’ responsive pleadings was filed with this Court within the twenty day period of time set forth in 19 U.S.C. § 1608, none of the pleadings sets forth a claim as required by statute and the Supplemental Rules. For example, none of the “claims” was verified on oath or affirmation, and although said claims were filed by the Claimants’ attorneys, none of said “claims” stated that the attorney was duly authorized to make the claim. However, this and other shortcomings in the “claims” could have been and, perhaps, can yet be cured with an amendment. United States v. 1982 Sanger 24' Spectra Boat, supra.

(2) Since the filing of such a claim is a jurisdictional prerequisite not only to the Claimants being allowed to participate in the forfeiture action, but also to their being allowed to contest probable cause for the seizure and, if necessary, to assert his/their claim, it is clear that none of the three “Claimants” is a proper party to this litigation, at this time; nor will they ever be such proper parties, unless this Court were to allow an amendment to his/their claim, and unless such an amended claim set forth the type of claim recognized by law in forfeiture proceedings. In this litigation, the Court will not allow an amendment, as to the claims of the Intervenors Layman and Payne, since such an amendment would be futile. A court will not allow an amendment to a “claim” unless a claimant can assert that type of interest in the property sought to be forfeited that is recognized by law. As will be discussed, infra, the Court will allow an amendment to the “claim” of Stepp.

(3) Although the Claimants are correct that the question of standing does not ordinarily arise until such time, if ever, as the Government has proven probable cause for the seizure (19 U.S.C. § 1615), such a rule does not prevent this Court from reviewing the sufficiency of a Claimant’s claim, in the light of the relevant statutes. Upon motion of the Plaintiff, the Court has reviewed the sufficiency of said claims and has found them wanting, at present.

(4) Claimant Stepp has not asserted an interest in the currency. To the extent that Claimant seeks to rely on the fifth amendment to state an interest in the currency, same is not sufficient. Although the fifth amendment is applicable to forfeiture proceedings, United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971); United States v. U.S. Currency, 626 F.2d 11 (6th Cir.1980), the fifth amendment does not shield a claimant from the requirement that he or she establish standing to challenge the forfeiture by alleging and proving a valid property interest in the seized property. See, e.g., Baker v. United States, 722 F.2d 517 (9th Cir.1983); United States v. 1982 Sanger 2f Spectra Boat, supra.

However, the Court is not convinced that Claimant Stepp does nothing more than erect a fifth amendment shield to protect him from the requirement that he state what interest he has in the currency. For instance, in its libel (Doc. # 1), the Plaintiff alleges that the currency which is the subject of this forfeiture action was seized from Stepp’s residence. Stepp admits this fact. See Doc. # 8. Furthermore, in his memorandum in opposition to Plaintiff’s motion to strike (Doc. # 29), Stepp requests that the Court allow him an opportunity to amend his answer if the Court concludes that he must make a declaration of ownership. Under these circumstances, this Court cannot say that an amended claim by Stepp would be futile. Therefore, the Court conditionally overrules the Plaintiff’s motion to strike Stepp’s answer, and the Court will allow the filing of an amended claim by Stepp. Such an amended claim must be filed within twenty (20) days of the entry of this Decision and must conform to Supplemental Rule C(6), be verified and set forth the interest Stepp has in the currency. In the event that such an amended claim is not filed within twenty days, the Court will sustain Plaintiff’s motion to strike Stepp’s answer and order same stricken.

(5) For reasons that follow, the Court concludes that allowing Intervenors Payne and Layman to amend their claims, by verifying same under oath, would be futile, because they have not asserted a sufficiently protectable interest in the currency to establish standing to challenge its forfeiture.

In United States v. Five Hundred Thousand Dollars, 730 F.2d 1437 (11th Cir. 1984), the court restated the familiar test for courts to employ in ascertaining whether a person has standing to challenge a forfeiture.

“[A] party seeking to challenge the government’s forfeiture of money or property used in violation of federal law must first demonstrate an interest in the seized item sufficient to satisfy the court of its standing to contest the forfeiture.” United States v. $364,960.00 in U.S. Currency, 661 F.2d 319, 326 (5th Cir. Unit B 1981); see also, United States v. Currency Totaling $48,318.08, 609 F.2d 210, 213-14 (5th Cir.1980). One must claim an ownership or possessory interest in the property seized. United States v. $15,500.00, 558 F.2d 1359, 1361 (9th Cir.1977). The burden of establishing standing in forfeiture proceedings is on the claimant. See United States v. $364,960.00 in U.S. Currency, 661 F.2d at 326.

730 F.2d at 1439 (footnote omitted). See also, United States v. 1982 Sanger 24' Spectra Boat, supra (lesser property interest than ownership, such as possession can create standing); United States v. One 1945 Douglas C-54 Aircraft, 647 F.2d 864 (8th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1002, 71 L.Ed.2d 294 (1982).

In United States v. Five Hundred Thousand Dollars, the court held that one Fernandez, who assertedly paid out $900,000 in pesos on representations that certain certified checks had been paid to his account, did not have standing to challenge the forfeiture of the funds which were to be used to pay the certified checks. The court reasoned that Fernandez did not have a sufficient interest in the funds to satisfy the requirement because he alleged neither an ownership, nor a possessory interest in either the funds or the certified checks. 730 F.2d at 1438-39. In United States v. One 1945 Douglas C-54 Aircraft, the court concluded that placing title to an airplane in one person’s name did not give that person an ownership interest so as to support standing when the actual incidents of ownership, dominion and control over the airplane, were exercised by another. 647 F.2d at 866-67.

Conflicting private interests in property in non-diversity actions are to be determined by state law, even where the United States is a party. Wallis v. PanAmerican Petroleum Corporation, 384 U.S. 63, 86 S.Ct. 1301, 16 L.Ed.2d 369 (1966); United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966). Under Ohio law, the rights of judgment creditors are set forth in Ohio Revised Code Chapters 2327, 2329, 2331 and 2333. Under Ohio law, a judgment creditor has the right to enforce his judgment through the attachment and sale of both the real and personal property of the judgment debtor. The judgment creditor is entitled to conduct various proceedings in aid of execution (debtor’s examination, attachment, garnishment, et cetera) and to challenge any conveyance made by the judgment debtor of the property which is subject to the certificate of judgment filed with the County Recorder’s Office.

In short, under Ohio law, judgment creditors have many rights regarding a judgment debtor’s property. Nonetheless, the Court does not consider the combination of all of these rights to be sufficient to give standing to these Intervenors. They have neither ownership nor a possessory interest in the currency. They have no more than a right to take advantage of certain state procedures in order to execute against any part or all of Claimant Stepp’s property. In this Court’s opinion, a person must have a specific interest in the actual property seized, such as a mortgage or recorded security agreement, in order to have standing to challenge the forfeiture. The general equitable lien of the judgment creditor is not such an interest.

Notwithstanding the foregoing, Intervenors Payne and Layman are not without a remedy merely because this Court has concluded that they do not have standing to challenge the forfeiture of the currency in question. The Intervenors may apply to the Attorney General, under 19 U.S.C. § 1618, for remission of the seized currency. See 21 U.S.C. § 881(d). See also, United States v. One 1976 Porsche 911S, 670 F.2d 810, 813 (9th Cir.1979). However, this Court has no power to grant remission. United States v. One 1961 Cadillac, 337 F.2d 730 (6th Cir.1964). Moreover, the Attorney General may exercise broad discretion in determining whether to remit a forfeiture which is unreviewable by any court. See, e.g., United States v. One 1979 Oldsmobile-Cutlass Supreme, 589 F.Supp. 477 (N.D.Ga.1984); Devito v. United States Dept. of Justice, 520 F.Supp. 127 (E.D.Pa.1981).

Based on the foregoing, the Court sustains the Plaintiffs motions to strike the complaints of Intervenors Layman and Payne.

WHEREFORE, based upon the aforesaid, this Court concludes that none of the Claimants has perfected his claim through the procedures required by law. Accordingly, at present, there are no claimants to the currency. Moreover, amendments to their claims by Intervenors Payne and Layman would be futile, for the reasons aforesaid. However, an amendment by Claimant Stepp would not necessarily be futile; therefore, Claimant Stepp is granted leave to file an amended claim, in conformity with Supplemental Rule C(6), within twenty days of the entry of this Decision.

In the event that Claimant Stepp fails to file an amended claim, as directed, the Court will sustain the Plaintiffs motion to strike Claimant Stepp’s answer. Counsel for the Plaintiff will be directed to file a motion for summary judgment, setting forth his client’s entitlement to the forfeiture of the funds in question, not later than twenty (20) days from date of receipt of notice that the Court has sustained Plaintiff’s motion to strike Claimant Stepp’s answer. Should Claimant Stepp file such an amended claim, the Plaintiff will have ten (10) days following said filing within which to renew its motion to strike his answer/claim. If said motion is sustained, the Plaintiff will have twenty (20) days following said ruling within which to file a motion for summary judgment; if overruled, or if such a motion to strike is not filed, a conference call will be convened between the Court, counsel for the Government and counsel for the Claimant Stepp in order to establish procedures for the resolution of this litigation.

Trial on the merits of the captioned cause, before a duly empaneled jury, heretofore set for the week of May 27, 1985, has been cancelled.

      . Parenthetically, the assertion that Stepp was the owner of the property from where the currency was seized is not sufficient in and of itself to give him standing to challenge the forfeiture of the currency. United States v. United States Currency Amounting to the Sum of Thirty Thousand Eight Hundred Dollars ($30,800.00), 555 F.Supp. 280 (E.D.N.Y.), aff'd, 742 F.2d 1444 (2d Cir.1983) ("United States v. $30,800.00"). See also, United States v. Fifteen Thousand Five Hundred Dollars, 558 F.2d 1359 (9th Cir.1977) (Owner of a safety deposit box, from which currency was seized, does not have standing to challenge forfeiture of currency absent a claim of an ownership or possessory interest in the seized currency.). In United States v. $30,800.00, supra, the Court held that a person from whose apartment certain currency was seized did not have standing to challenge the forfeiture merely because of his status as "owner" of the apartment. This Court concurs with the statement of the Ninth Circuit in United States v. Fifteen Thousand Five Hundred Dollars, that in order to have standing to challenge a forfeiture, " [i]t is not sufficient to have claimed merely an interest in the premises in which the contraband was found." 558 F.2d at 1361.

      . In United States v. One 1961 Cadillac Hardtop Automobile, 207 F.Supp. 693 (E.D.Tenn.1962), the court allowed intervention by a corporate entity that had a lien on the automobile which was the subject of the forfeiture action therein, concluding “the right to intervene in a judicial proceeding for the determination of the issues relating to forfeitures for narcotic violations extends to any person or party having a legally recognized interest in the [property], whether he is owner or lienholder, and whether that interest is legal or equitable in nature.” This Court does not consider the holding in One 1961 Cadillac Hardtop Automobile to be contrary to the conclusion reached herein. Unlike the Intervenors herein, it appears that the lienholder in One 1961 Cadillac Hardtop Automobile had a lien on specific property, the automobile in question, as opposed to the situation herein, where the Intervenors, as judgment creditors, have at best an equitable interest in all of Stepp’s property. Such an equitable interest is not sufficient to give them standing to challenge the present forfeiture action. Cf. United States v. One 1980 Cadillac Eldorado, 603 F.Supp. 853 (E.D.N.Y.1985) (Legal title holder of automobile may not challenge forfeiture when all of the incidents of ownership reside in another.).


author: ROY, District Judge.

text:
    MARJAK, INC. d/b/a Video Unlimited, Plaintiff, v. Joe COWLING, Mayor of the City of Stamps, in his individual and official capacity; Martin Herman, Buster Brazell, Curtis Jones, B.T. Owen, Thurman Teague, and Frank Scroggins, City Council Members of the City of Stamps, in their individual and official capacities; City of Stamps, Arkansas; and Lynn Robertson, Defendants.
    No. TX-C-85-4050.
    United States District Court, W.D. Arkansas, Texarkana Division.
    Aug. 12, 1985.

      John Wesley Hall, Jr., Little Rock, Ark., for plaintiff.
    Winston Bryant, North Little Rock, Ark., for defendant City of Stamps.
    Mary McKinnon, El Dorado, Ark., for individual defendant Lynn Robertson.
   MEMORANDUM OPINION

ROY, District Judge.

On December 12, 1983, the City Council of Defendant City of Stamps, Arkansas, adopted Ordinance No. 323, entitled “An ordinance prohibiting the sale of obscene literature within the City of Stamps, Arkansas, setting penalties therefore and other purposes.” The ordinance provides, in pertinent part:

Section 1: Hereafter, the sale, offer for sale, distribution, attempted distribution or public exhibition of obscene materials shall be a misdemeanor.
Section 2: Any person, upon conviction of a violation of the provisions of Section 1 herein, shall be subject to a fine of not less than One Hundred Dollars ($100.00) and not more than One Thousand Dollars ($1,000.00), or a term of imprisonment for not less than thirty (30) days nor more than six (6) months, or both such fine and imprisonment.
Section 3: Definitions — the following words, terms and phrases used in this ordinance shall, for the purposes of this ordinance, have the meanings respectively ascribed to them in this section:
(a) “Obscene” means that to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interest.
(b) “Material” means any book, pamphlet, magazine, periodical, newspaper, picture magazine, comic book, novel, film, videotape or other printed, written or recorded matter. It does not include written, printed or recorded material used by or in any recognized religious, scientific or education institution.

On March 11, 1985, Plaintiff opened a store in the City of Stamps for the rental and sale of movies on video cassettes to the public. The store was visited by Defendant Robertson on April 4 or April 5, 1985, at which time he inspected some videos and their containers. Defendant Robertson discussed Ordinance No. 323 with the store manager and left a copy of it with her. Defendant Robertson went back to the store on April 8, 1985, and asked if certain kinds of tapes would be removed from the shelves. When advised that no tapes would be removed, he informed the manager that he would take further action.

Defendant Robertson rented a copy of “Girls of Penthouse” and presented brief portions of it to the City Council for their review at their regular meeting on that same date. Defendant Robertson also mentioned 21 other titles as being either obscene or questionable. Subsequently, the City Council voted five to zero, with Defendant Scroggins abstaining, to direct City Attorney Michael Surguine to write to Plaintiff’s attorney advising him that those tapes should not be rented or sold.

By letter dated April 9, 1985, Mr. Surguine informed Plaintiff’s attorney that “the council voted 5-0, with one abstaining, to notify your client that the obscene videos be removed within 30 days. This letter will serve as such notice.” The letter set out the titles of the 22 tapes found to be objectionable by Defendant Robertson.

On April 22,1985, Plaintiff instituted this action seeking declaratory and injunctive relief and compensatory and punitive damages. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1343(3) and (4), the jurisdictional counterpart to 42 U.S.C. § 1983, and 28 U.S.C. §§ 2201 and 2202.

Pending before the Court is Plaintiff’s Motion for Partial Summary Judgment, to which all Defendants have responded. Plaintiff requests that the ordinance be declared unenforceable on the dual grounds that it is unconstitutional on its face due to vagueness and that it is preempted by Ark.Stat.Ann. § 41-3585-3585.8. (Supp.1983).

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All facts must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of all reasonable inferences to be drawn from the facts. Howard v. Russell Stover Candies, Inc., 649 F.2d 620 (8th Cir.1981). It must not be granted unless the moving party “has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances.” Bellflower v. Pennise, 548 F.2d 776, 777 (8th Cir.1977).

On consideration of the admitted facts in the pleadings and the briefs and memoranda of counsel, the Court finds that it should not abstain from consideration of the case, that Plaintiff has standing to challenge the ordinance, that Plaintiff’s cause presents a justiciable controversy, and that the ordinance is hopelessly vague and overbroad and therefore unconstitutional. An order will be entered in accordance with this Opinion and Plaintiff allowed to proceed with its claim for damages from Defendants.

I. ABSTENTION

Defendants contend that this Court should refrain from ruling upon the constitutionality of the ordinance under the abstention doctrine set out in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and further developed in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) and Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). These cases delineate the following factors to which the federal courts must look in determining whether abstention is appropriate: first: whether the case presents a constitutional issue which might be mooted by a state court determination on pertinent state law; second, whether the suit touches upon a sensitive area of state policy the import of which transcends the outcome of the instant case; and third, whether obstruction or restraint of state proceedings would be without substantial justification.

These factors must be viewed in the light that the federal district courts should be reluctant to abstain from cases properly before them.

The doctrine of absention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order of the parties to repair to state court would clearly serve an important countervailing interest.

County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S.Ct. 1060, 1062-1063, 3 L.Ed.2d 1163 (1959). “That First Amendment rights of expression are at stake makes abstention all the more inappropriate.” Spokane Arcades, Inc. v. Brockett, 631 F.2d 135, 137 (9th Cir.1980).

Applying the Pullman considerations to the case at bar, we must decide whether a decision of this Court as to the constitutionality of the ordinance might be mooted or otherwise affected by a different, yet equally lawful, holding of the state courts. “An important factor in the Court’s consideration of abstention under the Pullman doctrine is the relative clarity or ambiguity of the state law in question.” Wild Cinemas of Little Rock, Inc. v. Bentley, 499 F.Supp. 655, 659 (E.D.Ark.1980). In that case, the issue was overbreadth, not vagueness, so the Court chose not to abstain. However, although vagueness in a particular statute may increase the possibility of a different interpretation by the state courts, “the dispositive issue is whether the procedures are capable of a construction that could avoid the constitutional issues.” Spokane Arcades, Inc., supra, 631 F.2d at 137. No saving construction is possible in the instant ease, so abstention based on this factor would be inappropriate.

Nor does the second Pullman consideration require abstention here. Certainly, the definition and regulation of obscenity is of significant concern to the State of Arkansas, as is the protection of the First Amendment rights of its citizens. However, through its enactment of Ark.Stat. Ann. § 41-3585-3585.8, the State has established clear guidelines pertaining to obscenity and effectively resolved these issues. As the State has fully addressed the problem, it cannot be said that our decision in this action will in any way interfere with the formulation or implementation of state policy.

Finally, as there is not now and never has been any criminal proceeding under the ordinance, the third factor is simply not applicable here. Accordingly, the Court finds that abstention would be inappropriate in this matter.

II. STANDING AND RIPENESS

Defendants also contend that, as Plaintiff has not been prosecuted under the ordinance, Plaintiff lacks proper standing to mount a challenge to it and, therefore, Plaintiff’s cause should be dismissed on the grounds that it does not present an actual case or controversy to the Court.

In Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982), the Supreme Court identified the following requirements that a plaintiff must meet in order to have standing: first, plaintiff must allege an actual or threatened injury as a result of conduct of the defendant; second, the injury alleged by the plaintiff must be fairly traceable to the action of the defendant that is challenged in the lawsuit; and, third, the injury alleged by plaintiff must be likely to be redressed by a favorable decision of the court.

Clearly, sufficient facts have been articulated by Plaintiff, and admitted by Defendants, to satisfy all the requirements. The letter of April 9, 1985, from City Attorney Surguine to Plaintiffs attorney was a thinly-veiled threat of prosecution under the ordinance if the 22 named tapes were not removed from Plaintiff’s shelves within 30 days. Plaintiff claims the threat of prosecution has not only infringed upon its First Amendment rights, but it has also spawned unfavorable publicity which has caused Plaintiff to suffer financial losses. Certainly, the relief sought herein would redress Plaintiff’s alleged injuries. Plaintiff has sufficient standing to bring this cause.

Defendants’ argument that there has not been a sufficiently serious threat of enforcement of the ordinance also raises a question as to the “ripeness” of Plaintiff’s claim — that is, whether it presents an actual case or controversy to the Court as required by Article III of the Constitution. The Court finds that the letter of April 9, 1985, constituted a sufficient threat of enforcement and prosecution to make this case ripe for adjudication. As noted in Wild Cinemas, supra, 499 F.Supp. at 660, “We think it beyond question that plaintiff need not subject itself to prosecution or arrest in order to present a justiciable controversy.”

III. VAGUENESS

The long-running struggle of our courts to settle the persistent problem of obscenity is well-known to even the most casual observers of our legal system. The Court sees little value in undertaking yet another lengthy analysis of the development of our obscenity law. Suffice it to say that the standard presently applicable is that which was enunciated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Under the three-prong test established in Miller, a finding of obscenity must be predicated upon affirmative answers to the following questions:

(a) whether the average person, applying contemporary community standards would find the work, taken as a whole, appeals to prurient interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The ordinance in question fails to satisfy two of the three components of the tripartite test of Miller, for it states no requirement that the material depict any kind of sexual conduct or that the material must lack any serious literary, artistic, political, or scientific value. All the ordinance requires is that the material “appeals to prurient interest.” No definition of “prurient interest” is included in the ordinance; however, the term has been discussed or defined by a number of courts. See e.g., Roth v. United States, 354 U.S. 476, 487 n. 20, 77 S.Ct. 1304,1310 n. 20,1 L.Ed.2d 1498 (1957); Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1026 (5th Cir.1981), cert. denied, 455 U.S. 913, 102 S.Ct. 1264, 71 L.Ed.2d 453 (1982). Regardless of the precise definition ascribed to “prurient interest,” as drafted the ordinance is susceptible to an interpretation that could subject one to criminal prosecution for the mere depiction of nude, or even partially-nude, persons, or fully-clothed persons striking provocative poses.

The Supreme Court has noted:
Under the holdings announced today, no one will be subjected to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct specifically defined by the regulating state law, as written or construed.

Miller, supra, 413 U.S. at 27, 93 S.Ct. at 2616. It has also been stated that “nudity alone is not enough to make material legally obscene under the Miller standards.” Jenkins v. Georgia, 418 U.S. 153, 161, 94 S.Ct. 2750, 2755, 41 L.Ed.2d 642 (1974). Although some statutes omitting one or two details of the Miller tests have been given a saving construction, see, e.g., Red Bluff Drive-In, Inc., supra, the omission from the ordinance of the requirement that the material depict “hard core” sexual conduct renders it too vague and overbroad to pass constitutional muster. It would seem impossible for one to know what the limits of expression are under the ordinance. To allow this ordinance to stand could expose many to prosecution for the sale or exhibition of otherwise protected materials. At the very least, it would have a significant “chilling effect” on the exercise of certain First Amendment rights within the City of Stamps, Arkansas.

“[A] statute which sweeps within its ambit a broad range of expression protected by the First Amendment should be struck down on its face.” United States v. Grace, 461 U.S. 171, 187, 103 S.Ct. 1702, 1712, 75 L.Ed.2d 736 (1983). To the extent that the ordinance fails to adequately set out ascertainable standards of permissible expression, it is too vague; and, to the extent that it criminalizes the sale, distribution or exhibition of protected materials, the ordinance is overbroad. Accordingly, under precedents heretofore established by the United States Supreme Court and the Eighth Circuit Court of Appeals, the Court is compelled to find that Ordinance No. 323 of the City of Stamps, Arkansas, is unconstitutional and therefore unenforceable.

In light of its finding that the ordinance is unconstitutional, the Court need not address Plaintiffs contention that the ordinance is pre-empted by Ark.Stat.Ann. § 41-3585-3585.8. An order shall be entered in accordance with this Opinion and Plaintiffs cause shall proceed upon its claim for damages.

      . The Supreme Court has also noted the requirement of ascertaining whether a “concrete case or controversy” is present when considering abstention. Moore v. Sims, 424 U.S. at 428, 99 S.Ct. at 2380. This factor will be discussed under "ripeness.”


author: CLARKSON S. FISHER, Chief Judge.

text:
    EDUCATIONAL TESTING SERVICE, Plaintiff, v. John KATZMAN, and the Princeton Review, Inc., Defendants.
    Civ. A. No. 85-3768.
    United States District Court, D. New Jersey.
    Aug. 16, 1985.
    See also, D.C., 631 F.Supp. 550.

      McCarter & English, Newark, N.J. by John L. McGoldrick, and Wilmer, Cutler & Pickering, New York City by John Rounsaville, Howard P. Wilens and Carol F. Lee, for plaintiff.
    Greenberg, Dauber & Epstein, Newark, N.J. by Linda Harvey, and Gordon, Hurwitz, Buowsky, Weitzen, Shalove & Wein, New York City by Allan R. Freedman and Madonna M. Malin, for defendants.
   OPINION

CLARKSON S. FISHER, Chief Judge.

Plaintiff Educational Testing Service (“ETS”) seeks a preliminary injunction enjoining any misuse of its confidential test questions by defendants John Katzman and The Princeton Review, Inc. Having considered the materials submitted and the arguments made by the parties and based on the findings outlined below, plaintiffs application is granted.

ETS is a non-profit corporation engaged in the development and administration of educational testing programs. The results of ETS’ tests are used primarily for college admissions purposes. John Katzman is the president and sole shareholder of The Princeton Review, Inc. Katzman and The Princeton Review, are engaged in the business of offering courses, for a fee, to coach persons who plan to take the Scholastic Achievement Test (“SAT”) or Achievement Tests offered by ETS.

ETS has alleged that Katzman and The Princeton Review have, by their actions, compromised the integrity of its tests by destroying the security of certain test questions. Specifically, ETS claims that defendant’s have obtained copies of certain “secure” ETS test materials developed and copyrighted by ETS. A “secure test” is one that ETS has not disclosed to the public except during a supervised examination. A “secure question” is any question and its answer options which is included in a test form. Further, ETS claims that defendants or their agents have registered for and attended ETS test administrations for the purpose of obtaining secure questions and that defendants have reproduced unauthorized copies of secure test materials for distribution to their students. ETS maintains that the defendants’ actions give rise to causes of action for copyright infringement; breach of a 1983 Agreement between the parties; and a violation of ETS’ common law rights.

Defendants have not denied their possession of certain secure ETS test materials and their explanations regarding test taking by employees are, at the very least, subject to further proofs.

The Third Circuit has identified four factors which must be examined before a preliminary injunction is issued. “[T]he moving party must generally show (1) a reasonable probability of eventual success in the litigation, and (2) that the movant will be irreparably injured pendente lite if relief is not granted. Moreover, while the burden rests upon the moving party to make these two requisite showings, the district court should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest.” Constructors Ass’n. of Western Pennsylvania v. Kreps, 573 F.2d 811 (3d Cir.1978).

Based on the information provided thus far it appears that ETS is likely to prevail on the merits of its copyright and contract claims. ETS has presented evidence which should enable it to prove an infringement by the defendants including certain copyright registration certificates. Furthermore, defendants’ actions appear to have breached the 1983 Agreement between these parties. This agreement, dated May 2, 1983, purported to resolve the issues currently in dispute.

ETS has demonstrated that it will suffer irreparable injury unless defendants are restrained in their actions pending final disposition of this matter. In addition, to the irreparable injury which is presumed whenever a copyright infringement occurs, Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1254 (3d Cir.1983), cert. dismissed, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984), the Fall 1985 testing process which is currently underway would be severely disrupted by premature disclosure of secure test questions. Such disclosure could result in invalidation of certain test scores and thereby undermine the integrity and reputation of ETS and its tests in the eyes of colleges and students.

The balancing of potential harm to interested third persons, including defendants, weighs in favor of this application. The Court can see no harm which will befall defendants’ legitimate operations by granting the preliminary relief sought. At the same time, those students who have not had the benefit of defendants’ course will be disadvantaged if plaintiff’s allegations are borne out. Also, defendants own students could potentially be harmed if ETS is forced to cancel their scores.

Lastly, the interest of the public at large will not be adversely affected by the granting of this injunction. In fact, the public will benefit from the protection of the integrity of a testing system which is integral to college admissions.

In connection with this application, defendants have moved to dismiss this action for improper venue and lack of personal jurisdiction. Although, I note that jurisdiction probably exists, this matter is subject to further proofs and should properly be considered by Judge Barry.

An Order accompanies this opinion. No costs.

ORDER

This matter having been opened to the court by McCarter & English, attorneys for plaintiff Educational Testing Service on an application for preliminary injunctive relief against defendants John Katzman and Princeton Review, Inc., and such application having been opposed by counsel for the defendants, Greenberg, Dauber & Epstein;

IT IS on this 16th day of August, 1985;

ORDERED, that pursuant to Federal Rules of Civil Procedure 65(a), the defendants, John Katzman and Princeton Review, Inc. and their respective officers, agents, servants, employees, and all other persons acting in concert with them, are preliminarily enjoined during the pendency of this action from:

(1) copying, duplicating, distributing, selling, adapting, publishing, reproducing, renting, leasing, offering or otherwise transferring or communicating in any manner, orally or in written, printed, photographic or other form, including any communication in any class or other presentation, any questions, or any other information obtained directly from any of Educational Testing Service’s copyrighted secure tests;

(2) registering for and attending as a test candidate or otherwise any administration of any Educational Testing Service test, except for bona fide purposes of admission or licensure, and, as to any such person attending an Educational Testing Service test for such bona fide purposes, from disclosing any information regarding a secure test question to the defendants, their officers, agents, representatives, employees, servants, persons who take their coaching courses, and all persons acting in concert with any of the defendants;

(3) attending any administration of any Educational Testing Service test as a proctor, supervisor, or other test center employee; and

(4) altering, modifying, mutilating, removing, storing, secreting, tampering with, destroying or otherwise disposing of (A) any test forms or other materials that contain any questions that is a copy of or derived from any secure test questions contained in an Educational Testing Service copyrighted secure test; (B) any copies of Achievement Test book 3DCB3; and (C) any documents, writing or other materials identifying for the period December 1,1984 to July 30, 1985, any persons who were enrolled in the coaching courses of defendants, and the dates of their enrollment.


author: WEINER, District Judge.

text:
    Shirley A. LOJESKI v. Richard BOANDL, et al.
    Civ. A. No. 84-3591.
    United States District Court, E.D. Pennsylvania.
    Aug. 23, 1985.
    John R. Crayton, Doylestown, Pa., for plaintiff.
    Rachel Shao, Asst. U.S. Atty., for defendant.
   MEMORANDUM OPINION AND ORDER

WEINER, District Judge.

On January 23, 1985, after trial, this court issued a memorandum opinion and order granting judgment to plaintiff, Shirley A. Lojeski, in the amount of sixty-seven thousand dollars ($67,000.00) against defendants Richard Boandl and George Jess-up. On March 26, 1985, we granted the motion of the defendants to alter or amend the judgment on the basis of the amount awarded, and we entered a new judgment for plaintiff and against the defendants in the amount of thirty-seven thousand five hundred dollars ($37,500.00). Presently before this court is plaintiff’s Application for Attorney’s Fees (“Application”), pursuant to 26 U.S.C. § 7430, in the amount of thirteen thousand eight hundred ninety-two dollars and sixty-four cents ($13,892.64). For the reasons which follow, we grant plaintiffs Application; however, we reduce the amount of the fee to $4,768.00 plus expenses of $1,836.64, a total of $6,604.64.

In civil proceedings involving tax issues, Congress has expressly provided that a party may be awarded attorney’s fees against the United States. Section 7430 provides in pertinent part:

(a) In general. — In the case of any civil proceeding which is—
(1) brought by or against the United States in connection with the determination, collection, or refund of any tax, interest, or penalty under this title, and
(2) brought in a court of the United States (including the Tax Court and the United States Claims Court), the prevailing party may be awarded a judgment for reasonable litigation costs incurred in civil proceeding.

Defendants argue that plaintiff is not entitled to counsel fees because she failed to name either the United States or the Internal Revenue Service as a party in the proceedings. In addition, defendants claim that the plaintiff has failed to establish that she was the prevailing party.

Plaintiff, however, argues that although her action was initiated against defendants Boandl, et al., it was “in substance an action against the Internal Revenue Service and the United States government” and thus, within the scope of § 7430, because the defendants have been given “access to the vast resources of the federal government at no personal cost” and “[t]he Internal Revenue Service has agreed to pay the personal judgments rendered against the United States.” (Plaintiff’s Application, p. 2).

In this court's Memorandum Opinion and Order dated March 26, 1985, we held that defendants’ sovereign immunity defense was inappropriate since suit was initiated against defendants in their individual capacities and not against the federal government. In that action involving issues of liability and damages, there existed no express statute permitting suit against the United States; however, this is not the case with the issues sub judice. Section 7430 expressly authorizes payment of attorney’s fees by the United States in civil proceedings brought by or against the United States. In view of the explicit language of the statute and the intent of Congress in enacting this Section, we can only conclude that plaintiff’s Application has been properly initiated pursuant to § 7430. Congress intended that the awarding of fees under 26 U.S.C. § 7430 will deter abusive actions and overreaching by the Internal Revenue Service and will enable individual taxpayers to vindicate their rights regardless of their economic circumstances. Kaufman v. Egger, 584 F.Supp. 872, 879 (D.Me.1984) quoting H.R.Rep. No. 404, 97th Cong., 2nd Sess. 16 (1982). Therefore, we must conclude that for purposes of reviewing an application for attorney’s fees under section 7430, the action sub judice is, indeed, one against the United States, in furtherance of the stated and unambiguous intentions of Congress.

Before a party may be awarded attorney’s fees and expenses pursuant to § 7430, that party must have met several criteria. First, all administrative remedies made available by the Internal Revenue Service must be exhausted prior to the pursuit of civil action. 26 U.S.C. § 7430(b)(2). Compliance with this requirement is not at issue in this case since an administrative review was conducted regarding the activities which precipitated the underlying action.

Second, the party seeking relief must have prevailed in the earlier action. If the parties are not in agreement as to which party prevailed, the court must make the determination. 26 U.S.C. § 7430(c)(2)(B). Section 7430(c)(2)(A) facilitates this determination, providing that:

(A) in general. — the term “prevailing party” means any party to any proceeding described in subsection (a) (other than the United States or any creditor of the taxpayer involved) which—
(i) establishes that the position of the United States in the civil proceeding was unreasonable, and
(ii) (I) has substantially prevailed with respect to the amount in controversy, or
(II) has substantially prevailed with respect to the most significant issue or set of issues presented. 26 U.S.C. § 743(c)(2)(A).

Clearly, plaintiff has “substantially prevailed” with respect to the most significant issue[s] presented, those of liability and damages resulting from the constitutional violations suffered at the hands of defendants. However, questions arise with regard to the initial requirement that plaintiff establish that “... the position of the United States in the civil proceeding was unreasonable____” 26 U.S.C. § 7430(c)(2)(A). Congress failed to elaborate on this direction as to whether “position in the civil proceeding” refers to the government’s position at litigation or to its prelitigation stance. As a result of this ambiguity, there are differing interpretations advanced by the parties sub judice. Plaintiff contends that the Internal Revenue Service agents acted unreasonably in seizing plaintiff’s property. Defendants’ liability with regard to this violation has already been established. Plaintiff further contends that defendants compounded this unreasonable behavior by vigorously defending these clear violations of her constitutional rights. In addition, plaintiff asserts that these actions on the part of the defendants constitute defendants’ “position in the civil proceeding”, and that this “position” of the defendants is clearly “unreasonable” within the meaning of § 7430. Thus, plaintiff has concluded that “position in the civil proceeding” includes both the prelitigation and litigation stances of the defendants.

Defendants, however, aver that the “position of the United States in the proceeding” refers to their “actions or position in prosecuting or defending the litigation and not the actions upon which the litigation is based.” (Defendants’ memorandum of law in opposition to plaintiff’s Application for Attorney’s Fees, pp. 4-5). Defendants conclude, therefore, that their “position” was, indeed, reasonable.

“The legislative history of § 7430 reveals that Congress intended the term ‘civil proceeding’ to include ‘proceedings to enforce a summons, jeopardy assessments, wrongful levies and interpleaders.’ ” H.R.Rep. 97-404, supra quoted in Kaufman, 584 F.Supp. 872, 877 (D.Me.1984). Section 7430(c)(3) states that “civil proceeding” includes civil actions, but that does not make the statement as an exclusive definition of the term. The statute requires that plaintiff establish that the “position of the United States in the civil proceeding was unreasonable”; thus, we must determine to which “position” the standard of reasonableness is to be applied, and also whether the plaintiff has established this “position” to be unreasonable, as directed by § 7430(c)(2)(A)(i).

The court in Randazzo v. United States Dept. of Treasury I.R.S., 581 F.Supp. 1235 (W.D.Pa.1984) considered a similar application for attorney’s fees pursuant to § 7430. Recognizing the complete absence of case law addressing the interpretation of § 7430, that court turned to comparable statutes. One such statute is § 2412 of the Equal Access to Justice Act, 28 U.S.C. § 2412, which operates according to similar standards in an effort to determine what action by the United States would be considered unreasonable. As a result, that court concluded that pursuant to § 7430, the reasonableness of the government’s position could be determined “by examining not only the facts as revealed in the trial transcript, but also by analyzing the conduct of the parties which culminated in the court action.” Randazzo at 1236-38, quoted in Kaufman 584 F.Supp. at 879.

Since March, 1984, when the Randazzo case was decided, two subsequent cases have emerged: Kaufman v. Egger, supra and Feinberg v. United States of America, No. 84-3220, slip op. (E.D.Pa. Mar. 1,1985). Their congruent interpretations of § 7430 provide sufficient guidance for this court in our determination of the case sub judice and render unnecessary any discussion of § 2412 and the recent plethora of case law in the third circuit dealing with that section.

Kaufman dealt with a situation in which the Internal Revenue Service had failed to comply with its own procedures and regulations resulting in damages to plaintiffs, and a Stipulation for an Entry of Judgment for the plaintiffs was filed by the parties. The Kaufman court premised their discussion on the following: that “... where Defendants’ Stipulation to a judgment in Plaintiffs’ favor implies an admission of the Defendant’s wrongdoing, it is necessary to determine whether that guilt was predicated upon the unreasonableness of the Defendants’ conduct, or some other factor.” Kaufman at 878. If the stipulation to judgment by the government was induced by the unreasonableness of its prelitigation conduct, then a court could conclude that this prelitigation position was as unfairly burdensome to the plaintiffs as an unreasonable litigation position would have been, and thus justify an award to plaintiffs via § 7430. Id.

In Kaufman, the court recognized that the defendants’ willingness to stipulate to a judgment which was largely against them indicated “at least a belated knowledge of their wrongdoing.” Kaufman at 879. The court went on to state that defendants’ action, therefore, implied “that although Defendants violated the law, they hoped that the forcefulness of their improper method ... would go unchallenged____” Id. When plaintiffs did challenge the government’s action, it quickly conceded the dispute. The court concluded that for it to hold “that the Defendants’ position was reasonable merely because they stipulated to entry of a judgment against them would be to exhibit an unrealistic view of the facts.” Id. Such a finding would imply that when the IRS engages in reprehensible and illegal conduct which forces the innocent taxpayer to incur costly legal fees, the victim, rather than the perpetrator, shall bear the penalty for the IRS’s misconduct. Id. Such an encouragement would be obviously contrary to the congressional intent underlying the statute. Id. Where defendants’ unreasonable actions forced plaintiff to seek court relief, it is only equitable that defendants, rather than plaintiff, should have to bear the costs that their conduct generated. Id.

Similarly, in Feinberg the government agreed to a stipulation of an entry of judgment in favor of plaintiff. However, in that instance it was due to the discovery of additional evidence. Thus, the government’s concession was not based on any perceived violations of its own procedures as with Kaufman, but rather, as a result of evidentiary matters. Since the government’s concession in Feinberg could not be construed to be an admission of unreasonable action, the district court directed its attention to the government’s litigation stance, and found that the government had not acted unreasonably within the meaning of § 7430.

However, the case sub judice more closely resembles Kaufman and can be resolved by applying the rationale utilized by that court. The instant case involves a situation similar to that in Kaufman in that the defendants’ actions were not authorized by the internal operating procedures of the IRS. Although defendants, in the case sub judice, did not concede the dispute, a bench trial determined defendants’ liability with regard to the violations alleged by plaintiff in her complaint and upon which the original action was commenced.

Defendants assert that their position in the litigation, asserting immunity from suit and failure on the part of plaintiff to state a claim upon which relief could be granted, was not unreasonable. The defendants argue that the “position of the United States” refers to the government’s actions in prosecuting or defending the litigation and not the underlying action. The defendants rely on ease law interpreting § 2412 of the EAJA. We have disregarded such reliance on these cases in light of the recent Kaufman and Feinberg decisions, which directly interpret § 7430 and guide this court to an equitable and justified resolution of the case sub judice. The concerns identified and discussed in Kaufman are identical to those in the case sub judice. Here, as in Kaufman, plaintiff was forced to initiate court action to challenge the government’s unauthorized seizure of her property. As in Kaufman the violations suffered by the plaintiff sub judice were the result of actions committed by defendant contrary to its own internal IRS procedures. To focus attention on the government’s position in the actual litigation rather than its prelitigation stance in an effort to defeat plaintiff’s application for attorney’s fees would create an inequitable result, in that an innocent taxpayer, the victim, would bear the penalty for the IRS’s misconduct. This would undoubtedly be contrary to the intentions of Congress in enacting § 7430. Thus, we reiterate the conclusion of the Kaufman court that where defendants’ unreasonable actions forced plaintiff to seek court relief, it is only equitable that defendants, rather than plaintiff should have to bear the costs that their conduct generated. Kaufman at 879.

Thus, plaintiff has established that she is a prevailing party in keeping with § 7430 and therefore, plaintiff’s Application for Attorneys Fees is granted.

In this circuit, the calculation of such an award is governed by the dictates of Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973) (Lindy I) and Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir.1976) (en banc) {Lindy II).

Under these cases, the first item to be determined is the “lodestar” which consists of two factors: hours of service and the hourly rate of compensation. As noted in Lindy, “[t]he value of the attorney’s time is generally reflected in his normal billing rate.” 487 F.2d 161, 167. The determination as to whether an hourly rate is reasonable is made “by taking into account such factors as the attorney’s legal reputation, status and the nature of activity which the attorney performed.” Meisel v. Kremens, 80 F.R.D. 419, 421 (E.D.Pa.1978). Two other factors must then be considered to determine the actual fee award: the contingent nature of success and the quality of the attorney’s work as reflected by the complexity and novelty of the issues presented, the judge’s observations and the amount of recovery obtained. Lindy I, 487 F.2d 161, 168.

We shall first consider the hours of service rendered by plaintiff’s counsel in representing plaintiff in her action for relief. As this court stated in Hinckley v. E. I. duPont deNemours and Co., 583 F.Supp. 11, 13 (E.D.Pa.1983), “[t]he reasonable number of hours is a question of fact to be determined by the court. And the burden is on counsel to file adequately documented applications for fees detailing the time spent for each task. Those who fail to meet that burden do so at their own risk.” (citations omitted). We find from plaintiff’s itemization set forth in Exhibit “A” attached to the Application that an excessive amount of time is alleged for the services performed. We shall make the necessary adjustments.

Plaintiff’s attorney lists eleven and one-half (11.5) hours on 7/11/84, 11/13/84 and 3/5/85 for research of the Bivens actions and T.E.F.R.A. We find that three (3) hours is sufficient and reasonable time to satisfactorily complete this research in light of plaintiff’s attorney’s skill and experience, and shall reduce that time accordingly.

The four (4) hours spent in the preparation of the complaint 7/16/84 and 7/17/84 are excessive since the issues were not of a complex nature. We shall reduce that time to two (2) hours.

Plaintiff’s attorney lists a conference with his client on 7/19/84 immediately pri- or to filing the complaint without explanation of the necessity for the conference. That conference was unnecessary and we shall not allow that time since any facts which the plaintiff could provide her attorney were probably provided during the first conference between them on 7/5/84, which time we have allowed.

The one and one-tenth (1.1) hours listed for the final review and preparation of the amended complaint on 7/20/84 and 7/23/84 are not reasonable and shall be excluded. No explanation is given for the necessity of preparing an amended complaint.

The four (4) hours listed for legal research and preparation of Answer to Motion to Dismiss on October 10, 1984, for pre-trial conference of two (2) hours on October 12, 1984 and for four (4) hours of research on I.R.S. manuals on October 19, 1984 are excessive. We shall reduce that total of ten (10) hours to five (5) hours because we find that five (5) hours is adequate time to perform the above services.

Many of the conferences listed by plaintiffs attorney were either unexplained, unnecessary or conducted over too lengthy a time period without adequate justification. We shall, therefore, make the following adjustments with regard to each of the conferences, and itemize each reduction to reach a more reasonable amount of hours worked.

Plaintiff’s Court’s Date Service Claim Findings

10/20/84 Conference with client 3.0 and client’s accountant 1.0

10/27/84 Conference with client 2.5 0

11/01/84 Conference with client 1.0 and Thomas Treadway 0

11/02/84 Preparation of deposi- 7.3 2.3

-11/05/84 tions of IRS personnel

11/10/84 Conference with client 2.5 and Thomas Treadway 0

11/13/84 Conference with client 1.5 and Thomas Treadway 0

11/17/84 Conference with client 3.0 and Thomas Treadway 0

11/19/84 Conference with 2.0 Thomas Sumter, Esq. 1.0

11/20/84 Conference with client 2.5 and Thomas Treadway 0

11/21/84 Conference with Olive 2.0 Solomon _ 0

TOTAL 27.3 4.3

Of the twenty seven and three tenths hours (27.3) requested, we find that four and three tenths (4.3) hours should be included in awarding plaintiffs attorney’s fees.

In addition to these reductions, we find that plaintiff’s attorney has overstated the amount of time necessary for an attorney of his experience to competently complete various legal documents. For this reason, we make the following adjustments:

Plaintiff’s Court’s Date Service Claim Findings

11/14/84 Preparation of pre-trial 8.0 2.0 memo, Findings of Fact, Conclusions of Law

11/15/84 Preparation of Answer 3.0 1.0 to Motion to Dismiss

2/12/85 Preparation of Answer 11.5 1.0

& 2/14/85 to Motion to Amend Judgment__

TOTAL 22.5 4.0

Thus, we reduce the twenty-two and five tenths (22.5) hours as requested by plaintiff’s attorney to four (4) hours.

Finally, the amount of hours spent in preparing for the trial is clearly unreasonable in light of the relatively uncomplicated issues put before this Court. Therefore, we reduce the listed 38 hours to 5 hours for trial preparation.

Although plaintiff’s attorney requested compensation for one hundred fifty and seven tenths (150.7) hours, we reduce the amount to fifty nine and six tenths hours (59.6) in light of the adjustments discussed above. We conclude that this amount is reasonable and just.

The other component of the lodestar is the hourly rate. Plaintiff’s attorney requests a fee of Eighty Dollars ($80.00) per hour. The important determination is what constitutes a reasonable hourly fee in light of all the circumstances of the litigation, See Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208, 1217 (3d Cir. 1978), and what is reasonable considering the attorney’s “experience, knowledge and legal talent.” Lindy II 540 F.2d 102, 117. Given these criteria, we find Eighty Dollars ($80.00) to be reasonable hourly rate for plaintiff’s attorney’s services.

Having determined the reasonable number of plaintiff’s attorney’s services to be fifty-nine and six tenths (59.6) hours and the hourly rate to be Eighty dollars ($80.00), the lodestar figure for plaintiff’s attorney is Four Thousand Seven Hundred Sixty-Eight Dollars ($4,768.00).

By taking into consideration the contingent nature of success and the quality of the attorney’s work, we grant plaintiffs attorney the sum of $4,768.00 as reasonable attorney’s fees.

Finally, plaintiff also seeks costs of One Thousand Eight Hundred Thirty-Six Dollars and Sixty-Four Cents for additional expenses incurred with regards to filing and postage fees and costs of depositions and witnesses.

Exhibit B

Expenses Amount

Filing fee $ 60.00

Postage 51.39

Deposition Costs 1,525.25

Witness Fee 200.00

TOTAL $1,836.64

We find the expenses to be reasonable and award plaintiff’s attorney the full amount requested.


author: DUMBAULD, Senior District Judge.

text:
    H. Cree COLLINS and Darlene Collins, his wife, Plaintiffs, v. UNITED STATES of America, DEPARTMENT OF the ARMY, and United States of America Corp of Engineers of the Department of the Army, Defendants.
    Civ. A. No. 85-0080.
    United States District Court, W.D. Pennsylvania.
    Aug. 29, 1985.

      J. Alan Johnson, U.S. Atty., for defendants.
    Seymour A. Sikov, Sikov and Love, P.A., Pittsburgh, Pa., for plaintiffs.
   OPINION

DUMBAULD, Senior District Judge.

The instant complaint was filed January 10, 1985. The serious injury to husband-plaintiff H. Cree Collins occurred January 13, 1983. The complaint invokes the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The statute of limitations is two years. 28 U.S.C. § 2401(b). The action is therefore timely filed if a letter of May 3, 1983 from plaintiffs’ counsel to Army Corps of Engineers suffices to satisfy the requirement of prior presentation to the appropriate Federal agency, as required by 28 U.S.C. § 2675(a).

The complaint names as defendants “United States of America, Department of the Army” and “United States of America, Corps of Engineers of the Department of the Army.” It does not otherwise name the United States as a defendant. Nor does it allege that the Army and its Corps of Engineers are entities entitled to sue or be sued in their own name. Defendants move to dismiss under 28 U.S.C. § 2679(a) which provides that the authority of an agency to be sued under its own name shall not extend to suit on claims cognizable under 28 U.S.C. § 1346(b).

We deny this motion, since the complaint clearly invokes the Tort Claims Act, and does not allege that the named defendants may be sued under their own names. Each named defendant seems to be described as a subheading of the “United States.” Department of the Army is alleged to have “as one of its Departments” the Corps of Engineers. We conclude that this is an unartful way of suing the United States, and for clarity of the record permit plaintiff to amend for this purpose.

More serious is the notion that plaintiffs’ “claim” was not “presented” to and denied by the appropriate Federal agency, so as to satisfy § 2675(a), and hence that by virtue of that section the Court lacks jurisdiction. This section is jurisdictional. Bialowas v. U.S., 443 F.2d 1047, 1049 (C.A. 3, 1971); Tucker v. U.S. Postal Service, 676 F.2d 954, 959 (C.A. 3, 1982). The purpose of presentation is to permit the agency to know whether it has authority to settle under 28 U.S.C. § 2672 or must have the approval of the Attorney General. Ibid., at 1050.

Plaintiffs argue that since Collins was seriously injured it was obvious that the limit of $25,000 was exceeded and that the Attorney General’s consideration could await filing of the complaint and efforts to settle the court case. This is true, but the language of § 2675(a) is plain that an action “shall not be instituted upon a claim” [italics supplied] unless presentation is made. No reference to the quantum of damages is made here. Perhaps in some cases the government might be able to wear down the claimant by subjecting him to the “primary jurisdiction” procedure before the agency. Some weight is given to plaintiffs’ contention by the reliance upon Congressional intent set forth in Tucker v. U.S. Postal Service, 676 F.2d 954, 958 (C.A. 3, 1982). The Court there views the purpose of presentation as being to notify the government of its potential liability and give it the opportunity to investigate and respond by settlement or defense.

Presentation under § 2675 and § 2672 are therefore separate and independent procedures. Hence, as held in Tucker, failure to present proof and evidentiary detail, which the government seeks to elicit in its form 95 which it seems to regard as the only adequate mode of “presentation,” is not fatal to the claimant's court action.

Nevertheless it seems that this reasoning also undercuts the statement in Tucker, 676 F.2d at 959, that a presentation under § 2675 must place a value on the claim. It would seem that value is a negotiable item, often not immediately determinable by either side until after discovery is completed, and that the object of the settlement procedure itself is to reach a satisfactory determination of the value of the claim. Hence this requirement could at most be nothing but a plaintiff’s “demand” and not a material substantive component of the notice. Its only function is to apprise the agency whether it has authority to settle by itself or must consult the Attorney General. We are constrained to believe that the provisions of form 95 which call for evidentiary detail and a dollar figure are wanting in statutory authority, and that the May 3, 1983, letter may not be rejected as a proper “presentation” of a “claim” for that reason.

But what, if anything, else is there in that letter which does justify considering it as the presentation of a claim? On scrutiny the following appear:

(1) It identifies, and describes the circumstances of an “accident” or “incident” (both words are used) as the result of which Collins “sustained serious injuries.”

(2) It notifies the agency that a law firm has been “retained” to make “an appropriate inquiry” into the incident.

(3) It requests a copy of the Engineers’ investigation report concerning the incident.

(4) It requests “appropriate forms” if anything in writing is needed [in the context of the letter, the defendants are probably right in arguing that this refers to FOIA forms rather than Form 95-type forms].

(5) As stated above, it alleges that Collins sustained serious injuries.

What inference would a target defendant draw upon receipt of such a letter?

Would it not be that it would be prudent to consult a legal adviser and concert preparation of a defense, and perhaps formulate settlement proposals [the injuries were obviously serious — the victim was rendered mentally incompetent and unable to communicate]?

When a lawyer is retained by an accident victim, the reason for gathering data and making “appropriate inquiry” is normally as a prelude to litigation, unless the circumstances are such as to exculpate the target defendant.

That the objective of plaintiffs’ counsel was simply the advancement of science or protection of public safety by promoting OSHA-type legislation was highly improbable.

That conclusion would be as improbable as that when a man took a woman to a hotel room they went thither to say a paternoster. [See Lord Stowell’s remark in Loveden v. Loveden, 2 Haggard Consistory Repts. 1, 24 (1810) ].

More likely the purpose of seeking the FOIA report was to obtain evidence fixing liability on the government for a large sum of money (“adequate” damages).

These circumstances seem sufficient to constitute a “claim” when presented to the government agency involved.

The question of admiralty jurisdiction has been argued. For completeness, by way of dictum, we would hold that this case could properly belong to admiralty jurisdiction since the work was done under water, on a navigable river, of traditionally maritime character, and the injury occurred by reason of the movement of a vessel into the lock in the course of navigation. However, 28 U.S.C. § 2679(b) may be viewed as providing am exclusive statutory remedy for personal injury or death caused by negligence of government employees, thus superseding the operation or admiralty jurisdiction in that type of case. Cf. Mograne v. States Marine Lines, 398 U.S. 375, 394-95, 90 S.Ct. 1772, 1784-85, 26 L.Ed.2d 339 (1970). Since the same Court would try the case without a jury under either theory (and subject to the same statute of limitations) the point seems unimportant.

We therefore conclude that the plaintiffs’ case is properly in court. Defendants’ motion to dismiss is denied.

      . § 2674 imposes liability upon the United States "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 1346(b) gives the District Court exclusive jurisdiction.

      . If it does not satisfy § 2675(a) the action cannot be refiled de novo but is now barred. We accept the rule as stated by Judge Wood in Steele v. U.S., 599 F.2d 823, 826 (C.A. 7, 1979), that "when the injury coincides with the negligent act and some damage is discernible at the time, the cause of action accrues and the statute of limitation begins to run immediately. Because the injury is apparent, it is the duty of the victim of the tort to discover the negligent acts and file a claim within two years of the injury.” It was obvious that Collins had been seriously injured. Proof of negligence was all that was lacking. Plaintiffs’ attorney sought to procure this by invoking the Freedom of Information Act procedure.