author: WILLIAM C. CONNER, District Judge:

text:
    Freddy TAVAREZ, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 Civ. 1691 (WCC).
    United States District Court, S.D. New York.
    June 14, 1985.

      Community Law Offices, New York City (Robert S. Herbst, New York City, of counsel), for plaintiff.
    Rudolph W. Giuliani, U.S. Atty. for Southern Dist. of New York, New York City (Mark S. Sochaczewsky, Sp. Asst. U.S. Atty., Annette H. Blum, Regional Atty., Region II, and Susan D. Baird, Sp. Asst. Regional Atty., Office of Gen. Counsel, Dept, of Health and Human Services, New York City, of counsel), for defendant.
   OPINION AND ORDER

WILLIAM C. CONNER, District Judge:

Plaintiff Freddy Tavarez (“Tavarez”) seeks an award of costs and attorney’s fees from the Secretary of Health and Human Services (“the Secretary”) for legal expenses incurred in his ultimately successful effort to secure Supplemental Security Income (“SSI”) benefits. Tavarez relies on § 204(a) of the Equal Access to Justice Act (“EAJA” or “the Act”), 28 U.S.C. § 2412, which provides, inter alia, that in a suit brought against the United States, the court shall award costs and reasonable attorney’s fees to a private prevailing party unless “the position of the United States was substantially justified or ... special circumstances make an award unjust.” Id. § 2412(d)(1)(A).

The Government does not deny that Tavarez is a prevailing party as that term has been construed, but it contends that he is not entitled to attorney’s fees because the Secretary’s position in the litigation was substantially justified. The Government also objects to the large amount sought here — $24,149.00 in attorney’s fees and $4,359.85 in costs.

Background

Before addressing the merits of this motion, it is necessary to review the history of this case in order to put the pertinent issues in context. Tavarez first filed for SSI benefits on May 24, 1982. The Secretary denied that application on October 14,1982. Two weeks later, Tavarez requested that the Secretary reconsider her decision, but his claim was again denied on March 3, 1983. On March 11, 1983, Tavarez requested a hearing to review the Secretary’s decision, and on June 16, 1983, such a hearing was held before an administrative law judge (“AU”).

The AU heard testimony from Tavarez and received into evidence various medical records and reports. On July 19, 1983, he issued a decision. He found that “[t]he medical evidence establishes that the claimant has Hansen’s disease,” more commonly known as leprosy, “but he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.” (Tr. at 16). The AU also found that Tavarez had the residual functional capacity to perform work that does not involve heavy lifting and carrying or extended walking or standing. (Id.) He found that Tavarez’s past work as a sewing machine operator did not involve those activities and concluded that Tavarez was therefore not “disabled” as defined in the Social Security Act. (Id.) The Appeals Council approved the AU’s decision on January 10, 1984, thereby making it the final decision of the Secretary.

On March 9, 1984, Tavarez commenced an action in this Court pursuant to 42 U.S.C. § 1383(c)(3) to obtain review of the Secretary’s determination. After receiving two sixty-day extensions from Tavarez, the Secretary finally filed her answer on September 17, 1984. She denied that Tavarez was entitled to benefits, and stated that her decision was correct and in accordance with applicable law and regulations. Def’t Answer at 4. On October 18, 1984, Tavarez notified the Secretary that he would soon move for judgment on the pleadings pursuant to Rule 12(c), F.R.Civ.P. On November 13, 1984, Tavarez filed his motion papers and a supporting memorandum of law. The Secretary requested an extension of time to respond to the motion, which the Court granted.

On December 14, 1984, the Secretary informed Tavarez that the Appeals Council had agreed on that day to grant him SSI benefits and to pay him back benefits from the original date of his application. Accordingly, it became unnecessary for the Government to respond to the motion; instead, counsel for the parties executed a stipulation of remand on December 20, 1984, which the Court endorsed on January 2, 1985.

Discussion

The court of appeals has established clear rules for reviewing fee applications under the EAJA. It has held that in determining whether the Government’s “position” was substantially justified, a court should examine only the Government’s position in litigation and not its actions during the underlying administrative proceedings. Dubose v. Pierce, 761 F.2d 913, 917 (2d Cir.1985); Boudin v. Thomas, 732 F.2d 1107, 1115-16 (2d Cir.1984). Obviously, in cases such as this one, where litigation is commenced to review an administrative action, the Government’s position in the litigation is often the same as in the administrative proceedings. Nonetheless, the focus of the inquiry should be on the Government’s litigation posture.

The test of whether the. Government’s position was substantially justified is essentially one of reasonableness. Dubose, at 918. The Government bears the burden of demonstrating the justification for its position, id., and it must make a strong showing to meet that burden. Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1085 (2d Cir.1983). However, the Government cannot automatically convert an unjustified position into a substantially justified one simply by settling the lawsuit. Id. Instead, the court must assess the Government’s position in the full course of the litigation. Id.

The Secretary’s position for most of this litigation was the one pleaded in her answer — that her decision was correct and in accordance with the applicable law and regulations. I trust that before filing its answer, the Government reviewed the administrative record to make certain that the Secretary’s determination was indeed in accordance with the applicable law. The Government certainly had ample opportunity to conduct such a review — it waited almost six months to file its answer. After a review of the record, it should have been apparent to the Government that the Secretary’s decision was unsupportable because the AU had clearly applied the wrong standard and had acted contrary to substantial evidence in deciding that Tavarez was not disabled.

Regulations promulgated by the Secretary provide categorical definitions for some disabilities. Under 20 C.F.R. § 416.-920(d), an individual is by definition disabled if he has an impairment that meets the duration requirement and that is listed in Appendix 1 to Subpart P. Section 10.02 of Appendix 1 lists as an impairment: “Hansen’s disease (leprosy). As active disease or consider as ‘under a disability’ while hospitalized.”

The AU concluded that Tavarez’s condition did not meet the standard of § 10.02 even though he conceded that Tavarez had Hansen’s disease. He indicated that he rejected Tavarez’s claim because “[a]ll evidence indicates that claimant’s condition is controlled with medication and he has not been rehospitalized since 1979.” (Tr. at 16.) However, the relevant issue with respect to § 10.02 is not whether the disease is “controlled,” but whether it is “active.” The regulation makes no suggestion whatsoever that the capacity of medication to control an active case is an appropriate consideration. Thus, the AU clearly applied the wrong standard in determining that Tavarez’s condition was not a listed Appendix 1 impairment.

Moreover, the AU completely ignored specific evidence that Tavarez’s condition was indeed active. Dr. William R. Levis, Director of Hansen’s Disease at Bayley Seton Hospital on Staten Island, was Tavarez’s treating physician. In response to a questionnaire, Dr. Levis stated that Tavarez had an “active” case of Hansen’s disease:

Q. 1. Does Mr. Tavarez currently have an active case of Hansen’s disease?
A. 1. Yes.
jjs sH tH s¡* sH
Q. l.b. Can it ever be completely cured?
A. l.b. Activity can be controlled, but residual loss of sensation will persist.

(Tr. at 188). In these answers, Dr. Levis clearly distinguished between the terms “active” and “controlled,” and did not suggest that Tavarez’s case was not active merely because it could be controlled. Dr. Levis’s conclusion that Tavarez’s condition was active was also supported by laboratory reports. In referring to these reports in his answers to the questionnaire, Dr. Levis stated: “A.11. ‘B1 + 3’ Bacillus Index of 3+ indicates a significant number of micro bacterium lepra are in the tissue. This indicates that [the] patient has reactivated.” (Tr. at 191; emphasis added).

Dr. Levis’s opinion that Tavarez had active Hansen’s disease was not controverted by any other medical expert. Indeed, none of the other physicians who examined Tavarez in connection with his claim addressed the status of his Hansen’s disease or performed any laboratory tests relating to the disease. It is settled law that in the absence of substantial contradictory evidence, the opinion of the claimant’s treating physician is binding on the Secretary. Donato v. Secretary of HHS, 721 F.2d 414, 419 (2d Cir.1983); Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir.1980). Thus, since the ALJ’s finding that Tavarez was not disabled necessarily implies that the disease was not active, the AU acted contrary to substantial evidence.

For all of these reasons, the Government should have realized that the Secretary’s decision was not correct and not in accordance with the applicable law. Perhaps the Government could be excused if these issues had been buried deep within the administrative record, but they were not. Indeed, on page five of the administrative record begins a seven-page brief from Tavarez’s previous attorney to the Appeals Council urging that it reverse the ALJ’s decision. Counsel raised all of the issues I have discussed and more, and cited the relevant case law. Therefore, the Government was put on early notice that there were serious questions as to the propriety of the Secretary’s decision. Before filing its answer, the Government should have taken the opportunity to assess these issues; I am confident that if it had, it would have immediately remanded the case for further consideration.

The Government nonetheless argues that its litigation position was substantially justified because eventually it did voluntarily remand the case to the Secretary. The Government contends that this ease is analogous to Operating Engineers Local Union No. 3 v. Bohn, 541 F.Supp. 486 (D.Utah 1982), affd, 737 F.2d 860 (10th Cir.1984), where the court refused to award EAJA fees because the Government conceded that plaintiff had been wronged.

However, there is a critical difference between that case and this one. In Bohn, the Government capitulated nine days after the plaintiff filed its complaint, and thus plaintiff was required to expend little effort in litigating its claim. In this action on the other hand, the Government did not agree to a voluntary remand until six months had elapsed and Tavarez had prepared and filed his motion for judgment on the pleadings. While the Government is to be commended for the voluntary remand, the fact remains that it should have remanded the case immediately upon a review of the administrative record. For the reasons I have discussed, I can only conclude that the Government’s litigation position was not substantially justified. Accordingly, Tavarez is entitled to his costs and reasonable attorney’s fees.

As mentioned earlier, Tavarez seeks $24,149.00 in attorney’s fees. His pro bono counsel, Robert Herbst, has averred that he and four other attorneys working with him put in a total of 294.5 hours on this case. Herbst Decl. at Appendix A; Herbst Supp. Decl. at j| 2. Herbst requests compensation for his services and his colleagues’ services at $82.00 per hour. He bases that figure on the $75.00 per hour maximum rate authorized by the EAJA plus a $7.00 per hour cost of living increase. See 28 U.S.C. § 2412(d)(2)(A).

While I do not doubt the veracity of Herbst’s claim that he and the other attorneys working on this case actually spent 294.5 hours on it, I cannot conclude that it was reasonable to do so. As can be seen from the discussion above, this case was not difficult and the issues presented were not complex. Moreover, I cannot understand why so many hours were spent researching the legal issues in this case since, as I have mentioned, Tavarez’s previous attorney had already prepared a fine brief on them. Even if this prior brief had not been written, an experienced attorney should have been able to litigate this case effectively, up to the point of settlement, with an expenditure of no more than approximately one-third the number of hours claimed.

The Government has raised additional objections to the fee application as well. I have carefully considered those objections and conclude that Herbst and his associates should have spent no more than 100 hours in litigating both the merits of the case and this fee application.

As noted, Herbst requests compensation at the statutory maximum rate of $75.00 per hour plus a $7.00 per hour cost of living increase. Herbst and his colleagues are associates at a major New York law firm and their services are usually billed at a rate substantially higher than $75.00 per hour. Herbst Decl. at jfj[ 3-7. In addition, they have worked on numerous pro bono matters while serving of counsel to the Volunteer Division of the Legal Aid Society’s Community Law Offices. Id. Accordingly, I find that their experience and credentials warrant awarding the maximum statutory rate.

Herbst also seeks an additional $7.00 per hour cost of living increase. While the EAJA permits a court to adjust upward the $75.00 per hour maximum rate, I decline to do so here because no basis has been offered for the cost of living increase. If there was a rational basis for the $7.00 per hour figure, it should have been included in Herbst’s affidavit. Therefore, for all of the reasons above, I award Tavarez fees for 100 hours of work at $75.00 per hour, for a total of $7,500.00.

Tavarez also seeks costs in the amount of $4,359.95 for such items as the expense of three research assistants, word processing costs, and photocopying costs. The EAJA directs that costs should be awarded as enumerated in 28 U.S.C. § 1920. 28 U.S.C. § 2412(a).

I have reviewed the costs requested and conclude that most are unrecoverable. I decline to award costs for the three research assistants, even though I ordinarily encourage the use of paralegals whenever possible. In this case there was a limited amount of work to be done, and in light of the extraordinary number of hours Herbst and his colleagues spent on the case, I cannot see why the additional services of research assistants were necessary. I also decline to award the expenses of word processing since they are not recoverable under § 1920. United States v. Bedford, 548 F.Supp. 748, 753 (S.D.N.Y.1982). Finally, photocopying expenses are recoverable under § 1920 only to the extent that the copies were furnished to the Court or to opposing counsel. Beech Cinema, Inc. v. Twentieth Century-Fox Film Corp., 480 F.Supp. 1195, 1198 (S.D.N.Y.1979), affd, 622 F.2d 1106 (2d Cir.1980). Therefore, I have limited the award of costs to $50.00.

Conclusion

Plaintiffs motion for costs and attorney’s fees is granted. The United States is directed to pay plaintiff $50.00 in costs and $7,500.00 in attorney’s fees.

SO ORDERED.

      . The abbreviation “Tr.” refers to the page number in the administrative record filed as part of the Government’s answer.

      . This Court relies heavily on attorneys who provide pro bono representation to indigent plaintiffs with meritorious claims. The reduction of the fees requested should in no respect be deemed a disparagement of counsel’s able and dedicated service, nor a discouragement of others who volunteer their assistance to deserving litigants who could not otherwise afford them.


source: Caselaw Access Project

author: SPRIZZO, District Judge:

license: Public Domain

text:
    Joseph J. MAHONEY, Plaintiff, v. The UNITED STATES of America and the Secretary of the Navy, Defendants.
    No. 83 Civ. 3869 (JES).
    United States District Court, S.D. New York.
    June 14, 1985.
    Lester Lichter, White Plains, N.Y., for plaintiff.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendants; Frederick M. Lawrence, Asst. U.S. Atty., Mark S. Pearlstein, LT., JAGC, USNR, Office of the Judge Advocate Gen., Litigation Div., Alexandria, Va., of counsel.
   SPRIZZO, District Judge:

OPINION & ORDER

FACTS

This is an action for correction of military records brought pursuant to 10 U.S.C. § 1552 (1982). Plaintiff Joseph J. Mahoney served in the United States Marine Corps from October 6, 1953 until May 24, 1956. Mahoney received a bad conduct discharge as a result of a general court-martial (“GCM”) conviction on March 10, 1955. The GCM found Mahoney guilty on two specifications of desertion and one count of failure to obey a lawful order.

The evidence before the GCM was as follows. Mahoney, without authorization, twice departed from his duty station at Quantico, Virginia, and remained away from his duty station for protracted periods of time, 54 and 142 days respectively. Each absence was terminated by Mahoney’s arrest (in Yonkers, New York), and each arrest took place far from Mahoney’s duty station, but near to another duty station (Brooklyn, New York) to which Mahoney could have returned. During the periods of his absence from duty in 1954, Ma-honey was found to be living with an unmarried civilian female in Yonkers, New York. At the time, this woman was pregnant with a child whom both plaintiff and she believed she had conceived with Mahoney in May of 1954. At his court-martial, both plaintiff and this woman testified that Mahoney had secured civilian employment during the period of his second prolonged absence from duty. See Ex. A to Defendant’s Notice of Motion (certified copy of the complete record of Mahoney’s court-martial) at 10, 37-41; see also Ex. B to Verified Complaint at 1.

At the time of plaintiff’s conviction, authorized punishment for his offenses included dishonorable discharge, confinement for a period of up to six years, total forfeiture of pay, and reduction in pay to the lowest pay grade, E-l. See Exec.Order No. 10214, 3 C.F.R. 408 (1951), reprinted in Manual for Courts-Martial, United States (1951), at § 127c. Plaintiff received instead a bad conduct discharge, forfeiture of all pay and allowances for eighteen months, confinement for a period of eighteen months, and a reduction of pay grade to level E-l. See Verified Complaint at 1 “Eighth”; Ex. A to Verified Complaint.

Mahoney’s sentence by the GCM was approved by the Commandant Third Naval District (the convening authority) on March 24, 1955. See Ex. A to Defendants’ Notice of Motion at 8-9, 56. In accordance with Article 66 of the Uniform Code of Military Justice, ch. 169, art. 66, 64 Stat. 107, 128-29 (1950) (current version at 10 U.S.C. § 866 (1982)), the conviction was reviewed and affirmed by the Navy Board of Review on April 26, 1955. On August 8, 1955, plaintiff elected to waive an opportunity for restoration to duty. See Ex. B to Verified Complaint at 1. On May 24, 1956, Mahoney received a bad conduct discharge from the Marine Corps. See id.

On November 12, 1982, Mahoney applied to the Board for Correction of Naval Records (“BCNR”) for corrective action with regard to his conviction and sentence. Specifically, Mahoney “applied ... for an Honorable Discharge and incidental relief for remission of the forfeitures.” See Verified Complaint at U “Ninth.” On March 15, 1983, the BCNR met in executive session to consider Mahoney’s application and denied the application on March 21, 1983. See id. at (| “Ninth”; see also Ex. B to Verified Complaint at 1.

On May 19, 1983, Mahoney filed the instant suit pursuant to 10 U.S.C. § 1552. Defendants United States of America (“USA”) and Secretary of the Navy (“Secretary”) have moved for dismissal of the complaint pursuant to Fed.R.Civ.P. 12(b)(1), or alternatively for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff Ma-honey has cross-moved for summary judgment.

DISCUSSION

The plaintiff contends that, upon the record of the GCM and upon his application to the BCNR, the action of the BCNR was “arbitrary, capricious, was not supported by substantia] evidence, and was unconstitutional.” See Verified Complaint at j[ “Tenth.” Plaintiff alleges:

The Board acted on the basis of findings of fact not supported by evidence of record, in that there is no evidence to show intent on plaintiff’s part to desert the service, the Board relying on length of absence and part-time janitorial work performed by the plaintiff, while disregarding much more cogent evidence that plaintiff considered his absences temporary to alleviate a temporary situation.
The Board also disregarded the complete absence of proof on the part of the government at the General Court-Martial of any intent to desert.

See id. at j[ “Eleventh.”

Defendants contend that plaintiff’s claim is barred by the applicable statute of limitations and/or by the doctrine of laches. Defendants further contend that this Court does not have jurisdiction over the subject matter of this action, and also move for summary judgment on the ground that the BCNR’s decision should be upheld under the agency review standard of 5 U.S.C. § 706.

Defendants argue that the present action is governed by the six-year statute of limitations applicable to all actions commenced against the United States. See 28 U.S.C. § 2401(a) (1982). They contend that under 28 U.S.C, § 2401 a claim for illegal discharge from the armed forces accrues at the time of discharge; see, e.g., Cowhig v. Marsh, 693 F.2d 234, 235 (1st Cir.1982), cert. denied, 460 U.S. 1092, 103 S.Ct. 1793, 76 L.Ed.2d 359 (1983); Brewster v. Secretary of the Army, 489 F.Supp. 85, 87 (E.D.N.Y.1980), and that plaintiffs claim thus accrued when he was discharged on May 24, 1956. However, the Court need not reach the merits of these limitations and laches arguments. Since the BCNR considered plaintiffs case on the merits, this Court will review the BCNR’s determination under section 706 of the Administrative Procedure Act, 5 U.S.C. § 706.

Counsel for all parties agree that the proper standard of review under 5 U.S.C. § 706 is whether the action of the BCNR, which denied plaintiff’s claims for corrective and monetary relief, was arbitrary, capricious, or unsupported by the evidence. See Miskill, supra note 3, at 1489.

The Court finds that the decision of the BCNR was neither arbitrary, nor capricious, nor unsupported by the evidence presented to it. There was ample evidence which supported both the findings by the GCM and the punishment it imposed. That evidence established that plaintiff twice departed from his duty station, that both such absences were terminated by plaintiff’s arrest, that each arrest occurred hundreds of miles from plaintiff’s duty station, that each time he was arrested, plaintiff was found to be living with an unmarried civilian female who was pregnant with plaintiff’s child, and that Mahoney had undertaken at least part-time employment during his absence from duty. See Ex. B to Verified Complaint. The inference of an intent to desert arising from that evidence was not only rational, but virtually compelling.

The BCNR also considered the fact that Mahoney disobeyed a lawful order and that he rejected an opportunity for reinstatement to duty, and concluded that insufficient evidence existed to substantiate plaintiffs allegation that a combination of a congenital brain malformation and stress contributed to his offenses. The BCNR also considered “all mitigating and equitable factors,” including Mahoney’s personal problems, youth and immaturity at the time of his offenses, his excellent post-service adjustment, and his otherwise unblemished military record. See id.

This evidence, which was and is not disputed by plaintiff, provides more than adequate support for the BCNR’s decision. In view of that evidence and of the Court’s limited powers of review, the BCNR’s decision to deny plaintiff’s application for an upgraded discharge and incidental monetary relief must be upheld. See Matlovich v. Secretary of the Air Force, 591 F.2d 852, 857 (D.C.Cir.1978); Miskill, supra.

Defendants’ motions to dismiss are denied. Defendants’ motion for summary judgment dismissing the complaint is granted. Plaintiff’s cross-motion for summary judgment is denied. The complaint in the above-captioned action is dismissed.

It is SO ORDERED.

      . The specifications upon which Mahoney was tried were presented as follows:
      Charge I: Violation of the Uniform Code of Military Justice, Article 85.

        Specification 1: In that Joseph J. Mahoney, private first class, U.S. Marine Corps, Marine Barracks, U.S. Naval Base, New York, Brooklyn, New York, did, at or about 0600 hours, on or about 7 June 1954, without proper authority and with intent to remain away therefrom permanently, absent himself from his organization, to wit: Baker Company, Schools Demonstration Troops, Marine Corps Schools, located at Quantico, Virginia, and did remain so absent in desertion until he was apprehended by civil authorities at or about 2230 hours, on or about 31 July 1954, and was subsequently delivered at or about 2300 hours, on or about 31 July 1954.

        Specification 2: In that Joseph J. Mahoney ... did, at or about 0056 hours, on or about 4 August 1954, without proper authority and with intent to remain away therefrom permanently, absent himself from his organization ... located at Quantico, Virginia, and did remain so absent in desertion until he was apprehended by civil authorities at or about 0030 hours, on or about 24 December 1954, and was subsequently delivered at or about 0200 hours, on or about 24 December 1954. Charge II: Violation of the Uniform Code of Military Justice, Article 92.

        Specification: In that Joseph J. Mahoney ..., having knowledge of a lawful order issued by the Commanding Officer, Marine Barracks, U.S. Naval Base, New York, Brooklyn, New York, to report to the Commanding Officer, Baker Company, Schools Demonstration Troops, Marine Corps Base, Quantico, Virginia, not later than 0055 hours, 4 August 1954, an order which it was his duty to obey, did, at Quantico, Virginia, at or about 0056 hours, on or about 4 August 1954, fail to obey the same.
      Mahoney entered a plea of “not guilty" to each of the specifications contained in Charge I and to Charge I, and a plea of "guilty” to the specification contained in Charge II and to Charge II. See Ex. A to Defendants’ Notice of Motion.

      . The Navy Board of Review was the predecessor to the current U.S. Navy-Marine Corps Court of Military Review.

      . Counsel for plaintiff conceded at oral argument that this Court is without jurisdiction to directly review the findings of the GCM with respect to plaintiffs discharge. Such review may only be undertaken by an appropriate board of review, established by the Secretary of the Navy pursuant to 10 U.S.C. § 1553, and ‘‘[a] motion or request for review must be made within 15 years after the date of the discharge or dismissal." See 10 U.S.C. § 1553(a). No correction may be made by the BCNR unless the claimant files a request therefor before October 26, 1961, or within three years after he discovers the [alleged] error or injustice, whichever is later, unless the Correction Board, in the "interest of justice,” excuses the failure to timely file. See 10 U.S.C. § 1552(b). Even if this Court were to have the power to directly review the GCM's decision, such review would clearly be time-barred under 28 U.S.C. § 2401(a). See Miskill v. Lehman, 566 F.Supp. 1486, 1489 (D.D.C.1983). However, since the BCNR did consider plaintiffs claims on the merits, the Court will assume that in the interest of justice, the BCNR implicitly excused the untimeliness of plaintiffs claim, which was filed with the BCNR well beyond the fifteenth anniversary of plaintiffs discharge. See Kaiser v. Secretary of the Navy, 525 F.Supp. 1226, 1230 (D.Colo.1981).
      To the extent that the jurisdictional predicate for any of plaintiffs monetary claims is the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491 (1982), those claims would be barred by the applicable six-year statute of limitations. See 28 U.S.C. § 2401; see also United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1357 (5th Cir.1972). However, to the extent that plaintiff seeks monetary relief in the form of military salary payments and the like which have remained forfeit due to the allegedly improper failure of the BCNR to correct his military records, this Court has jurisdiction to decide those claims. Section 1552(c) of Title 10 of the United States Code provides, in pertinent part:
      The department concerned may pay ... a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section the amount is found to be due the claimant on account of his ... service____
      Congress clearly contemplated payment of money damages for successful claimants in corrective actions, as is reflected in the Senate report on the bill, adding the payment provision to 10 U.S.C. § 1552:
      The purpose of the proposed legislation, as amended, is to authorize the Secretaries ... to make certain payments which become due as a result of action taken by the respective Boards for the Correction of Records ----”
      S.Rep. No. 923, 82d Cong., 1st Sess., reprinted in 1951 U.S.Code Cong. & Ad.Serv. 2469, 2469.

      . Contrary to the impression created by defendants’ papers, the issue of the applicability of time bars to actions for the correction of military records is not susceptible of easy resolution. See Kaiser, supra (and cases cited therein).

      . Given that Mahoney had served only eight months of his enlistment prior to his first lengthy departure from his duty station, from which point he was continually in a desertion or confinement status until his discharge, which he accepted instead of the offer for restoration to active duty status, see Ex. B to Verified Complaint, the BCNR’s decision was hardly "arbitrary and capricious."


author: CALDWELL, District Judge.

text:
    Sandra BRADERMAN, Plaintiff, v. PENNSYLVANIA HOUSING FINANCE AGENCY, Commonwealth of Pennsylvania, et al., Defendants.
    Civ. A. No. 84-1244.
    United States District Court, M.D. Pennsylvania.
    June 18, 1985.
    As Amended June 25, 1985.
    See also 598 F.Supp. 834.
    Greg Knight, Tive, Hetrick & Pierce, P.C., Harrisburg, Pa., for plaintiff.
    Gregory R. Neuhauser, Dist. Atty. Gen., Harrisburg, Pa., for defendants.
   MEMORANDUM

CALDWELL, District Judge.

I. Introduction.

Defendants, Pennsylvania Housing Finance Agency (PHFA), Harold Dunbar, PHFA’s former chief counsel, and Trudy Baum, PHFA’s Director of Personnel, have filed a motion for summary judgment. Based upon the recent United States Supreme Court decision in Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), defendants contend that plaintiff, Sandra Braderman’s, civil rights claims under 42 U.S.C. § 1983 are barred by the two year Pennsylvania statute of limitations for personal injury actions. See 42 Pa.C.S. § 5524. Conceding that the affect of the Wilson decision would be to bar her federal claims by application of that state statutory section, see Knoll v. Springfield Township School District, 763 F.2d 584, (3d Cir.1985) (deciding on remand from the Supreme Court that 42 Pa.C.S. § 5524 applies to 42 U.S.C. § 1983 actions), plaintiff argues that the decision should not be applied retroactively. She also contends that, in any event, application of the “discovery rule,” adopted by Pennsylvania in determining when the limitations period for personal injuries has run, leads to the conclusion that her civil rights claims are timely under Wilson.

II. Discussion.

Braderman’s section 1983 claims are based upon her discharge from her position as a legal secretary at PHFA in alleged violation of her First Amendment right to freedom of association and her Fourteenth Amendment right to due process. Her complaint, also making state constitutional and state law claims for relief, was filed on September 19, 1984, and alleges that she was fired on August 7, 1981. (Complaint, 8, 25). In Wilson v. Garcia, supra, the Supreme Court held that all section 1983 actions would be governed by the state statute of limitations applicable to personal injury actions. Hence, it would appear that Braderman’s claim is time barred because she filed her complaint approximately three years and two weeks after her discharge and one year and two weeks after the Pennsylvania limitations period for personal injury claims had run. See 42 Pa.C.S. § 5524.

Plaintiff argues, however, that when she filed her complaint, it was timely under the law then in effect in the Third Circuit. Under the test set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), for determining when a decision should be applied retroactively, she contends that Wilson should not be applied to bar her claim. Conversely, defendants contend that the general rule requires the court to apply the law in effect at the time of its decision. See Perez v. Dana Corporation, 718 F.2d 581 (3d Cir.1983). They request summary judgment on the federal claims and dismissal of the state claims for lack of pendent jurisdiction since the federal claims are barred. To apply the Chevron test we must do the following:

First, we must determine whether the decision establishes “a new principle of law, either by overruling clear past precedent on which the litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Chevron, 404 U.S. at 106, 92 S.Ct. at 355. Second, we must look to the prior history of the decision in question, and to its purpose and effect, to ascertain “whether retrospective operation will further or retard its operation.” Id. at 106-07, 92 S.Ct. at 355-356 (quoting Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965)); Marino v. Bowers, 657 F.2d 1363, 1365 (3d Cir.1982). Third, we must weigh “the inequity imposed by retroactive application.” Chevron, 404 U.S. at 107, 92 S.Ct. at 355.

Perez, supra, at 585 (3d Cir.1983).

A. The Chevron Test.

1. Wilson’s Change From Prior Law.

Plaintiff contends that Wilson established a new principle of law which overruled clear past precedent in the Third Circuit. She cites Knoll v. Springfield Township School District, 699 F.2d 137 (3d Cir. 1983), cert. granted, — U.S. -, 104 S.Ct. 3571, 82 L.Ed.2d 870 (1984), vacated, — U.S. -, 105 S.Ct. 2065, 85 L.Ed.2d 275 (1985), on remand, 763 F.2d 584, (3d Cir.1985) and Fitzgerald v. Larson, 741 F.2d 32 (3d Cir.1984), to support her claim that the law of the Third Circuit prior to Wilson clearly gave her six years from the accrual of her cause of action to bring suit.

We disagree. The Third Circuit Court of Appeals noted in Knoll itself that:

Review of the new Pennsylvania limitations schema, however, fails to reveal any provision expressly applicable to claims for the torts of wrongful discharge or interference with eontractural or economic rights, [citations omitted]. Further, courts considering these torts have ascertained the applicable limitations period by reference to the two residuary provisions of the limitations scheme — the six-month and the six-year statutes of limitations — which control only when the nature of the dispute falls outside one of the more specific limitations provisions. Compare Clyde v. Thornburgh, 533 F.Supp. 279 (E.D.Pa.1982) (six-month limitations period applicable to § 1983 action) with Riddick v. Cuyler, [523 F.Supp. 258] (E.D.Pa.1981) (six-year limitations period applicable to § 1983 action).

Id. at 141.

Thus, prior to the time of the Knoll decision, there was no clear rule of law dealing with the limitations period for. civil rights actions arising from the wrongful discharge of public employees.

Further, as noted by the court of appeals in Smith v. City of Pittsburgh, 764 F.2d 188, (3d Cir.1985), holding that Wilson applied retroactively to bar the plaintiffs section 1983 claim of a racially motivated discharge:

Smith filed his suit in March 1982. As of that time, this court had not chosen the appropriate Pennsylvania statute of limitations for a claim of unconstitutional termination of employment without due process. Moreover, the district courts in this circuit were thoroughly divided on the question both before and throughout the period between Smith’s termination and his filing of this suit. Several decisions applied the two-year Pennsylvania personal injury limitation now applicable to all § 1983 actions. See Kelly v. City of Philadelphia, 552 F.Supp. 574, 577 (E.D.Pa.1982), affd mem., 725 F.2d 668 (3d Cir.1983); Mazur v. Department of Revenue, 516 F.Supp. 1328, 1332 (M.D.Pa.1981), affd mem., 681 F.2d 807 (3d Cir.1982); West v. Williamsport Area Community College, 492 F.Supp. 90, 98 (M.D.Pa.1980); Eubanks v. Clarke, 434 F.Supp. 1022, 1029-30 (E.D.Pa.1977). Some applied, in whole or in part, a six-month residuary limit established by 42 Pa.Cons.Stat.Ann. § 5522(b)(1) for claims against state officers not covered by another limitation period. Cf. Clyde v. Thornburgh, 533 F.Supp. 279, 286 (E.D.Pa.1982) (applying six-month limit to discharge for violation of First Amendment rights); Kelly v. City of Philadelphia, 552 F.Supp. at 577 (applying six-month rule to portion of procedural due process claim and two-year rule to remainder). We have discovered only one published district court opinion that assumes that the appropriate limitation was six years. See Yatzor v. Allen, 365 F.Supp. 875, 876 (W.D.Pa.1973).

Id., at 194-195.

Plaintiff, of course, could argue that this was pre-Knoll law but the Supreme Court granted certiorari in Knoll and plaintiff should therefore have anticipated, as events proved, that the Court might reverse it. In regard to Fitzgerald, supra, that case, decided on August 20, 1984, approximately one month before plaintiff filed her complaint, is simply too late for plaintiff to claim reliance upon it to preserve a cause of action accruing on August 7, 1981. We conclude that plaintiff could not have justifiably relied on case law decided prior to Wilson that she had six years within which to file her complaint. Accordingly, plaintiff has failed to satisfy the first part of the Chevron test.

2. Retrospective Operation of Wilson as Furthering or Retarding its Operation.

In Wilson the Supreme Court adopted the borrowing of state statutes of limitatiras for personal injuries to further “the federal interests in uniformity, certainty, and the minimization of unnecessary litigation.” — U.S. at-, 105 S.Ct. at 1946, 85 L.Ed.2d at 266. In Smith, supra, the court held that two of these goals, promoting uniformity and the minimization of unnecessary litigation, “would be served by applying the two-year statute of limitations to all plaintiffs, whether or not their claims are already in litigation, if the other Chevron factors favor such a result.” Id., at 196. The court went on to state that “[although we cannot say that the policies referred to in Wilson v. Garcia militate clearly in favor of retrospective application, neither do they militate against such application.” Id. (brackets added). The second part of the Chevron test therefore does not favor plaintiff.

3. The Equities of Retroactive Application.

The third part of the Chevron test often involves the same factors as the first part. Thus, plaintiff argues that the equities are in her favor because she justifiably relied upon Knoll, supra, and Fitzgerald, supra. We have rejected this argument in discussing the first part of the test. The judgments in Knoll and Fitzgerald had never become final. The defendants, noting that fact, raised the statute of limitations defense at an appropriate time. We conclude that we would not be penalizing plaintiff, see Marino v. Bowers, 657 F.2d 1363 (3d Cir.1981), if we applied Wilson retroactively.

B. Plaintiffs Cause of Action Accrued on the Date of Her Discharge and the Discovery Rule is Inapplicable to This Case.

Pennsylvania has adopted the so-called discovery rule in connection with the

personal injury statute of limitations. The statute will begin to run from the time the plaintiff has discovered or reasonably should have discovered the cause of harm. See Hunsicker v. Connor, 318 Pa.Super. 418, 465 A.2d 24 (1983). We apply the discovery rule here because state law also governs in a civil rights action whether the state statute of limitations has been tolled. See Ammlung v. City of Chester, 494 F.2d 811 (3d Cir.1974); Gee v. CBS, Inc., 471 F.Supp. 600 (E.D.Pa.1979), affd mem., 612 F.2d 572 (3d Cir.1979). Plaintiff argues that she could not have reasonably discovered her federal cause of action until at least October 4, 1983. On that date, in connection with plaintiffs unemployment compensation claim, the Pennsylvania Commonwealth Court, rejecting a claim of attorney client privilege by Dunbar and PHFA, ruled that she could have access to correspondence between Dunbar and Robert Ross, a deputy general counsel in the Governor’s office. Okum v. Commonwealth, Unemployment Compensation Board of Review, 77 Pa.Commw. 386, 465 A.2d 1324 (1983). The correspondence allegedly revealed for the first time that Ross had authorized Dunbar to fire Braderman. Hence, the requisite “state action” for a section 1983 claim, the authorization from the deputy general, counsel, was only discovered or discoverable at the earliest on October 4, 1983. Plaintiff’s complaint, filed on September 19, 1984, was accordingly timely under Wilson.

We could argue with plaintiff’s tacit assumption that defendants’ conduct did not constitute state action for the purposes of section 1983 and that only conduct by someone clearly representing the state, in this case someone from the executive branch, could do so. Instead of getting into a lengthy analysis of what constitutes “state action” or action “under color of state law,” however, we believe that we need only look as far as plaintiffs complaint to dispose of her discovery argument. In paragraph 25 she alleges the following (emphasis added):

Mrs. Braderman had no further discussions with her PHFA employers about this transfer until Friday, August 7,1981 at approximately 4:15 P.M., when she was told that Mr. Dunbar had written a letter to Robert Ross, General Counsel Office, Commonwealth of Pennsylvania, requesting authority to fire her; that Mr. Ross had given Dunbar permission to do so; and that she would be fired by Dunbar before close of that business day.

Plaintiff has therefore admitted that she discovered Ross’s involvement in her discharge on the same day she was fired, August 7, 1981. Accordingly, the statute of limitations began to run from that date and plaintiff’s discovery argument must be rejected.

C. The Remaining State Law Claims Must Be Transferred.

The plaintiff’s federal claims, all pursued under 42 U.S.C. § 1983, are barred by Pennsylvania’s two year statute of limitations on personal injury actions. The remaining claims in counts III through VI of the complaint are state law claims based upon state constitutional provisions or the state common law. Because plaintiff no longer has federal causes of action, it is now inappropriate to exercise pendent jurisdiction over the state claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Kleinberger v. Allen Products Co., Inc., 581 F.Supp. 941 (E.D.Pa.1984). To avoid any statute of limitations problems, however, we will transfer counts III through VI to the Court of Common Pleas of Dauphin County, Pennsylvania. See Weaver v. Marine Bank, 683 F.2d 744 (3d Cir.1982); Losch v. Borough of Parkesburg, 566 F.2d 282 (E.D.Pa.1983), rev’d on other grounds, 736 F.2d 903 (3d Cir.1984).

We will issue an appropriate order.

      . Defendants did not raise in their motions to dismiss but did assert that defense in their answers. Hence, the defense has been properly preserved in this litigation.

      . Certiorari was granted and the judgment of the circuit court was vacated in Fitzgerald by order of the Supreme Court, dated April 22, 1985.

      . Plaintiff argues that we should compare Wilson to the law in effect at the time of the Wilson decision and defendants argue that we should compare it to the law in effect at the time the cause of action accrued. We need not decide this question because we believe that Wilson applies retroactively whether or not Knoll and Fitzgerald are considered part of the prior law. See Perez, supra at 585 n. 5.

      . As noted, plaintiff argues that, under the discovery rule, her cause of action accrued at a later date but, for the reasons set forth later in this memorandum, we reject plaintiffs discovery rule argument.

      . Jackson v. City of Bloomfield, 731 F.2d 652 (10th Cir.1984) (en banc), cited by plaintiff, is therefore distinguishable because the Tenth Circuit Court of Appeals concluded there that its decision in Garcia v. Wilson, 731 F.2d 643 (10th Cir.1984), aff’d, — U.S.-, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), would be applied prospectively only because, in part, the decision rejected "an approach that prior decisions of [the] court had expressly adopted and applied.” 731 F.2d at 654 (brackets added). See also Smith, supra, at 195-196.

      . We did rule in our previous memorandum in this case that PHFA was not a part of the Commonwealth of Pennsylvania for Eleventh Amendment purposes, see Braderman v. Pennsylvania Housing Finance Agency, 598 F.Supp. 834 (M.D.Pa.1984), but we also noted there that the question of state action was not disposed of by our Eleventh Amendment analysis. Id. at 842 n. 5.

      . The court of common pleas has jurisdiction because PHFA is not a part of the Commonwealth for the purposes of invoking the original jurisdiction of the Commonwealth Court under 42 Pa.C.S. § 761. See Pennsylvania Housing Finance Agency v. Abreen Corp., 84 Pa.Commw. 571, 480 A.2d 335 (1982).

      . Pursuant to our order, dated May 28, 1985, the parties filed their other pre-trial motions. We have reviewed the other motions and have decided that we need not discuss them in light of our conclusion on the statute of limitations question.


author: WEXLER, District Judge.

text:
    MECHANICAL PLASTICS CORP., Plaintiff, v. UNIFAST INDUSTRIES, INC., Defendant.
    No. CV 84-3290.
    United States District Court, E.D. New York.
    June 18, 1985.

      Pennie & Edmonds, New York City, for plaintiff.
    Fiddler & Levine by Robert W. Fiddler, New York City, for defendant.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

This is an action for patent infringement. Defendant has filed a counterclaim, contending that plaintiff’s patent is invalid. Plaintiff has moved for leave to amend its complaint so as to charge defendant only with infringing upon Claim 30 of plaintiff’s patent. Plaintiff states that plaintiff has determined that defendant is not infringing any other claim in plaintiff’s patent. The question therefore arises: “Does this Court continue to have jurisdiction over defendant’s counterclaim insofar as such counterclaim questions the validity of claims other than Claim 30 in plaintiff’s patent?”

The Honorable David F. Jordan, U.S. Magistrate, has issued a Report and Recommendation stating that this Court lacks jurisdiction over the counterclaim (except with respect to Claim 30 of the patent), and that even if the Court possesses jurisdiction the Court should decline as a matter of discretion to render a declaratory judgment.

In Shelcore, Inc. v. Durham, Industries, Inc., 745 F.2d 621, 624 (Federal Circuit 1984), the Court stated that a plaintiff may not unilaterally remove the issue of patent validity by dropping an infringement claim where the defendant has raised the issue of patent validity in a counterclaim. The Court relied upon Altvater v. Freeman, 319 U.S. 359, 363-364, 63 S.Ct. 1115, 1117-1118, 87 L.Ed. 1450 (1943). We respectfully disagree with the Federal Circuit. As Magistrate Jordan points out, in Altvater the defendant paid royalties to plaintiff under a licensing agreement. Defendant’s obligation to pay plaintiff depended upon the validity of plaintiff’s patent. Consequently, there existed a genuine controversy between plaintiff and defendant implicating the issue of patent validity, quite independent of any claim by plaintiff against defendant for patent infringement. In Shelcore, by contrast, we believe that no genuine controversy over patent infringement existed after plaintiff withdrew its charge of patent infringement against defendant. Despite our agreement with Magistrate Jordan and our disagreement with the Federal Circuit, we believe that we are bound by the Federal Circuit, in light of the fact that any appeal in this case will go to the Federal Circuit under 28 U.S.C. § 1295(a)(1). We are therefore compelled to hold that this Court may exercise jurisdiction over defendant’s counterclaim even insofar as such counterclaim questions the validity of claims other than Claim 30 in plaintiff’s patent.

Although we are compelled to hold that we have the right to exercise jurisdiction, we nevertheless as a matter of discretion decline to exercise such jurisdiction over defendant’s counterclaim for a declaratory judgment under 28 U.S.C. § 2201 (except with respect to Claim 30 of plaintiffs patent). Since in our opinion there is no actual controversy properly conferring jurisdiction, it follows a fortiori that we should not exercise whatever discretion we have to grant a declaratory judgment. It should be noted that the instant case differs from Shelcore, in which plaintiff did not drop its infringement claim until the middle of trial. It should also be noted that this case differs from Four Seasons v. Sun System, No. CV 84-3807, unpublished opinion (E.D.N.Y. 3/6/85)(Wexler, J.). There, plaintiff charged defendant with patent infringement in a letter, but neither raised the charge in its complaint nor unequivocally withdrew its charge. We upheld jurisdiction over defendant’s counterclaim for a declaration of patent invalidity. In the instant case, by contrast, plaintiff has unequivocally withdrawn its charge of patent infringement.

In accordance with Magistrate Jordan’s Report and Recommendation dated May 9, 1985, it is hereby

ORDERED, that plaintiff’s motion for leave to amend its complaint is granted, and that the allegations of infringement of patent claims 1-29 set forth in the original complaint are dismissed with prejudice pursuant to Rule 41(a)(2), and it is further

ORDERED, that defendant’s counterclaim, insofar as such counterclaim questions the validity of plaintiff’s patent claims 1-29, is dismissed on the ground that this Court declines to exercise jurisdiction pursuant to 28 U.S.C. § 2201, and it is furthér

ORDERED, that the Clerk shall not enter judgment at this time.

SO ORDERED.


author: BENJAMIN F. GIBSON, District Judge.

text:
    Albert TKAC, Plaintiff, v. VETERANS ADMINISTRATION Administrator, Robert P. Nimmo, Defendant.
    No. K84-353 CA.
    United States District Court, W.D. Michigan, S.D.
    June 20, 1985.

      Dennis S. McCune, DeVries, McCune & Miller, Kalamazoo, Mich., for plaintiff.
    Anne VanderMale Tuuk, Asst. U.S. Atty., Grand Rapids, Mich., for defendant.
   OPINION

BENJAMIN F. GIBSON, District Judge.

Albert Tkac began work at the Veterans Administration Medical Center in Battle Creek in 1972 as a boiler plan operator. He developed a work-related hearing impairment and discontinued his employment on April 9, 1975. He received Workers Compensation for three years, until March 1, 1978. On December 4, 1978, Mr. Tkac accepted a temporary position as housekeeping aide, and he returned to his position as boiler plant operator on January 14, 1979.

Subsequent to the termination of his Workers Compensation benefits, Mr. Tkac was placed on “Leave Without Pay” status. It appears from the record that an employee may remain on Leave Without Pay status for six months without affecting his or her employee benefits. Mr. Tkac was on Leave Without Pay for nine months and three days, resulting in his service computation date being “charged and reduced” by three months and three days. This action resulted in a loss of benefits.

Mr. Tkac alleges that he made numerous efforts to return to work between March 2, 1978 and December 3, 1978 (complaint (136), but the Veterans Administration refused to give him priority consideration. He contends that had he been given such consideration, he would have been selected prior to the time his benefits were affected. Mr. Tkac further contends that the failure by the VA to reemploy him during this period was motivated by impermissible handicap discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq., and age discrimination, in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq.

On June 1, 1981, Mr. Tkac filed a complaint with the Equal Employment Opportunity Officer at the Veterans Administration, Neal Lawson. By letter dated July 26, 1982, Mr. Lawson notified Mr. Tkac that he would not process the complaint. Mr. Lawson found that the alleged discriminatory conduct occurred “between April, 1975 and December, 1978” the time within which Mr. Tkac was refused priority consideration. Mr. Lawson rejected Mr. Tkac’s contention that the discriminatory act occurred on January 30, 1981 when the VA notified Mr. Tkac that his service computation date was shortened by three months. Finding that public employees are required to submit EEO complaints within thirty days of the “matter causing [them] to believe [they] had been discriminated against,” Mr. Lawson denied the complaint.

On August 20, 1982, Mr. Tkac appealed to the Equal Employment Opportunity Commission. The Commission upheld Mr. Lawson’s findings, and issued a Notice of Right to Sue letter on May 12, 1983. The EEOC concurred in the determination that the discriminatory act occurred between March, 1978 and December, 1978, and that Mr. Tkac should have been aware of any discrimination during that period. This civil action was filed on November 9, 1983.

This matter is now before the Court pursuant to a motion to dismiss filed by the Government. The Government contends that it is entitled to dismissal on two bases. First, the Government argues that the procedural prerequisites of Title VII apply to both of Mr. Tkac’s claims. Therefore, the claims should be dismissed because Mr. Tkac failed to bring his civil suit within thirty days of the issuance of the Notice of Right to Sue letter. Alternatively, the Government argues that Mr. Tkae’s claims are barred because he failed to bring them to the attention of the EEO counselor within thirty days of their occurrence. Upon a thorough review of the briefs of the parties, the authority cited there, and upon the Court’s own research, the Court is of the opinion that Mr. Tkac’s claims under the Rehabilitation Act of 1973 and the Age Discrimination in Employment Act should be dismissed.

DISCUSSION

a) The Handicap Discrimination Claim.

The Court finds that Mr. Tkac’s claim under the Rehabilitation Act of 1973 is barred and must be dismissed. Several procedural prerequisites set forth in Title VII are incorporated into the Act. Specifically, a 1978 amendment incorporates the requirement that a civil action be brought within ninety days of the right to sue notice.

The relevant section in the Rehabilitation Act provides:

The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000e~16], including the application of sections 706(f) through 706(k) [42 U.S.C.A. § 2000e-5(f) through (k) ], shall be available, with respect to any complaint under section 791 of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint.

29 U.S.C. § 794a(a)(l) (1979 ed. Supp. III). This section expressly incorporates 42 U.S.C. § 2000e-5(f) which requires that, civil actions are filed within ninety days of the E.E.O.C.’s issuance of Notice of Right to Sue. Shirey v. Devine, 670 F.2d 1188 (D.C.Cir.1982). Accordingly, the ninety day period within which civil actions must be filed clearly applies to suits filed under the Rehabilitation Act of 1973 which allege employment discrimination.

Mr. Tkac does not dispute the applicability of the ninety day provision. His position is that his failure to comply does not divest the Court of subject matter jurisdiction. In this regard, Mr. Tkac relies on Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) for the proposition the filing time requirements in Title VII are not jurisdictional prerequisites.

Although the Court in Zipes did hold that the filing requirements in Title VII are not jurisdictional prerequisites, it did not hold that all failures to comply are excused. Rather, the Court ruled that, like statutes of limitations, the filing time requirements in Title VII are subject to equitable considerations, such as waiver, estoppel and tolling. Zipes, 102 S.Ct. at 1132.

In this case, the ninety-day limit in 42 U.S.C. § 2000e-5(f) was not satisfied. The Notice of Right to Sue was issued on May 12, 1983. This civil suit was filed on November 9, 1983, almost six months later. Although the filing time requirement is not jurisdictional, a plaintiff seeking to be excused from it must present a showing that he is entitled to equity. Mr. Tkac has offered no such showing. Therefore, the Court is constrained to find that Mr. Tkac’s claim of handicap discrimination is barred by his failure to comply with the ninety day requirement.

b) Age Discrimination Claim.

(i) There is no requirement that ADEA plaintiffs file E.E.O.C. charge prior to suit.

Contrary to the Government’s assertion, there is no requirement that aggrieved parties file an E.E.O.C. charge prior to bringing suit in federal court under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. The ADEA statute contains procedural prerequisites which, unlike the Rehabilitation Act, make no reference to Title VII. The Court notes that the ADEA provisions which address public employment contain procedural prerequisites-which appear to apply independently of those addressing employment in the private sector.

Government employees have two options when presenting claims of age discrimination in employment. They may forego administrative action before the E.E.O.C. and file suit in district court, after giving the E.E.O.C. thirty day’s notice of intent to sue. 29 U.S.C. § 633a(d). Alternatively, they may file a complaint with the E.E.O.C. and, should they be dissatisfied with the E.E.O.C. disposition, they may commence suit in the district court. § 633a(b), (e). Purtill v. Harris, 658 F.2d 134, 138 (3rd Cir.1981); Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981).

Unlike Title VII, the ADEA does not require that the civil suit be filed within a stated time after termination of E.E.O.C. proceedings. The Government argues for the adoption of the thirty-day period in Title VII. However, the Government has not presented any showing that this was the intention of the legislature. Moreover, the courts have noted the differences in the Title VII and ADEA statutory schemes and have refused to adopt Title VII procedures where ADEA is silent. See Kennedy v. Whitehurst, 690 F.2d 951, 964 (D.C.Cir.1982) (refusing to adopt provision for counsel fees); see also Lehman v. Nakshian, 453 U.S. 156,101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (ruling that the remedial structure of public employment ADEA provisions are self-contained and unaffected even by ADEA private sector provisions).

(ii) ADEA plaintiffs in the public sector must notify their EEO Counselor within thirty days of the discriminatory act.

Though ADEA plaintiffs in the public sector are not required to initially complain to the E.E.O.C., the regulations promulgated under ADEA require that they do initially complain to the Equal Employment Opportunity Counselor within their governmental agency.

Several Title VII internal agency regulations which address public employment are made applicable to plaintiffs alleging claims under the Age Discrimination in Employment Act. Specifically, 29 C.F.R. § 1613.511 incorporates agency regulations which relate to processing complaints alleging the types of discrimination proscribed by Title VII. One of those regulations incorporated requires aggrieved parties to notify their Equal Employment Opportunity Counselor of the matter within thirty days of the alleged discriminatory act. Section 1613.214 provides in relevant part:

(a) Time Limits. (1) An agency shall require that a complaint be submitted in writing by the complainant or his representative and be signed by the complainant. The complaint may be delivered in person or submitted by mail. The agency may accept the complaint for processing in accordance with this subpart only if:
The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter, or, if a personnel action, within 30 calendar days of its effective date; ...

29 C.F.R. § 1613.214 (emphasis added).

Here, plaintiff has failed to comply with the thirty-day notification requirement. Furthermore, plaintiff has failed to present any showing as to why he should be excused from this requirement. The governmental agencies are authorized to grant extensions of time upon satisfactory showings under 29 C.F.R. § 1613.214(a)(4).

In the present case Mr. Tkac did not notify his EEO Counselor until June 1, 1981 of alleged discriminatory acts which occurred in 1978. Even if this Court were to accept Mr. Tkac’s contention that the discriminatory acts occurred January 30, 1981, his EÉO complaint would still be untimely.

Therefore, the Court is constrained to dismiss plaintiff’s ADEA claim.

CONCLUSION

In accordance with the discussion above, the Court concludes that plaintiff’s claims under the Rehabilitation Act of 1973 and the Age Discrimination in Employment Act must be dismissed.

      . Based on a review of the entire record, it appears that Mr. Lawson was referring to the time period between April, 1978 and December, 1978.

      . The Government mistakenly contends that Title VII provides for thirty days. However, 42 U.S.C. § 2000e-5(f) requires that a civil complaint be filed within ninety days of the issuance of Notice of Right to Sue.

      . Having disposed of plaintiffs handicap discrimination claim on this ground, the Court need not consider whether Mr. Tkac was required to inform his EEO counselor of his complaint within thirty days of the alleged discriminatory conduct.

      . The time period in Title VII is ninety days. 42 U.S.C. § 2000e-5(f).

      . The Government argues that this Court should incorporate the procedural prerequisites of Title VII which apply to public employees based on the Supreme Court’s decision Brown v. G.S.A., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). The Brown case holds that Title VII provides an exclusive judicial remedy for employment discrimination of the types proscribed by Title VII. However, the ADEA regulations themselves incorporate the procedural section at issue here, so the applicability of Brown is inconsequential.


author: GONZALEZ, District Judge.

text:
    Ellen Judith FINN, Plaintiff, v. Thomas I. DAVIS and Prudential-Bache Securities, Defendants.
    No. 84-8414-Civ-GONZALEZ.
    United States District Court, S.D. Florida, N.D.
    June 20, 1985.

      John P. Stetson, West Palm Beach, Fla., for plaintiff.
    David M. Goldstein, North Miami, Fla., for Davis.
    Kathy M. Klock, Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, Fla., for Bache.
   ORDER COMPELLING ARBITRATION

GONZALEZ, District Judge.

THIS CAUSE has come before the Court upon the defendants’ Renewed and Amended Motion to Compel Arbitration of All Claims. For the reasons set forth below, the Motion will be GRANTED.

FACTS

In 1983, the plaintiff opened an account with defendant, Prudential-Bache. In connection thereto, she signed an Option Agreement providing for arbitration of certain disputes.

In the event of any dispute between us or claim by me or claim by you on account of the purchase, sale, handling, execution or endorsement of puts or calls for any account, the same shall be arbitrated in accordance with the rules of the exchange on which the put or call which is the subject of the dispute is traded or in accordance with the rules of the New York Stock Exchange Incorporated of the NASD, if the put or call is not traded on a national securities exchange.

Defendant’s Motion to Dismiss Nonfederal Claims, Exhibit 3, ([ 10.

The plaintiff also executed a Command Account Agreement. Specifically, she agreed that

[a]ny controversy arising out of or relating to my account, to transactions with or for me or to this Agreement or the breach thereof, and whether executed or to be executed within or outside of the United States, except for any controversy arising out of or relating to transactions in commodities or contracts related thereto executed on or subject to the rules of a contract market designated as such under the Commodity Exchange Act, as amended, shall be settled by arbitration in accordance with the rules then obtaining of either the American Arbitration Association or the Board of Governors of New York Stock Exchange as I elect.

Defendant’s Motion to Dismiss Nonfederal Claims, Exhibit 4, page 6.

As happens so frequently with stock market investments, the plaintiff lost money. She then brought this action in an attempt to recoup her losses.

The plaintiff charges the defendants with various securities related violations. Counts 1-3 of her complaint allege causes of actions under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j(b) (West 1981) and Rule 10b-5, 17 C.F.R. § 240.10b-5 (1984), for misrepresentations, omissions and unsuitable stocks, churning and unauthorized trades; Count 4 alleges a cause of action under sections 20(a) and (b) of the 1934 Act, 15 U.S.C.A. 78t(a) (West 1981) for failure to supervise; and Count 5 asserts a cause of action under the federal RICO statute, 18 U.S.C.A. § 1961, et seq. (West Supp.1984).

CONCLUSIONS OF LAW

The defendants argue that the plaintiffs causes of action must be submitted to arbitration as required by Dean Witter Reynolds, Inc. v. Byrd, — U.S.-, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985).

This Court agrees.

Statutory authorization for and enforcement of arbitration clauses such as those executed by the plaintiff are found in section 2 of the Federal Arbitration Act, 9 U.S.C.A. § 2 (West 1970). This section provides:

A ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Further, upon proper application by a party not in default, the trial court shall stay trial of the action until the agreed upon arbitration process is held.

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

9 U.S.C.A. § 3 (West 1970).

This Court finds that the arbitration clauses within the previously-mentioned Agreements are valid. Further, the plaintiff’s claims are clearly within the scope of the clauses as the complained of actions arose from or related to the plaintiff’s account. Also, as the transactions were executed through facilities of national securities exchanges, the “transaction involving commerce” requirement of section 2 of the Arbitration Act is met. See, Parry v. Bache & Co., 125 F.2d 493 (5th Cir.1942).

The Court notes that the Arbitration Act had been tempered by two judicially created exceptions: the intertwining doctrine and the Wilko doctrine. The recent Byrd decision, however, specifically disapproved the intertwining doctrine. Further, the validity of the Wilko doctrine as applied to cases involving transactions outside the protection of the Securities Act of 1933 is clearly suspect.

In Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953), the Supreme Court ruled that a purchaser and broker/dealer agreement to arbitrate future controversies contravened anti-waiver provisions of section 14 of the Securities Act of 1933, 15 U.S.C.A. 77n (West 1981). Section 14 proscribes “[a]ny condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision,” of the 1933 Act. Further, the 1933 Act specifically allows any person acquiring a security the express right to sue in a judicial forum in either equity or law as a means to enforce liabilities or duties created under the 1933 Act. 15 U.S.C.A. §§ 77k(a), 771, 77p and 77v (West 1982). Thus, compulsary arbitration of a 1933 Act claim, as recognized by Wilko, is not available.

The Supreme Court applied the Wilko doctrine solely to attempts to compel arbitration of 1933 Act claims. Other courts, however, extended Wilko’s tenets to claims arising under the 1934 Act. See, Raiford v. Buslease, 745 F.2d 1419 (11th Cir.1984).

With the guidance now provided by the Byrd decision and the invitation implicit therein, this Court finds that continued application of the Wilko doctrine to claims other than those arising out of the 1933 Act is no longer appropriate.

In Dean Witter Reynolds, Inc. v. Byrd, supra, the petitioner, broker/dealer, unsuccessfully attempted to enforce an arbitration clause to compel arbitration of pendent state claims. The Supreme Court, however, reversed the lower court decisions and recognized that the Arbitration Act “leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Id., 105 S.Ct. at 1241. (Emphasis provided.) The Court also questioned the applicability of Wilko to a 1934 Act claim, but declined to decide the issue as it was not raised on appeal. Ibid at n. 1.

In his concurring opinion, Justice White noted the distinctions between the 1933 and 1934 Acts. He stated that “ Wilko’s reasoning cannot be mechanically transplanted to the 1934 Act.” Id. at 1243. Finally, Justice White emphasized that “the question [of applying Wilko to 1934 Act claims] remains open and the contrary holdings of the lower courts must be viewed with some doubt.” Ibid.

The Supreme Court, however, first expressed reservations about the propriety of applying Wilko to claims arising under the 1934 Act in Scherk v. Alberto-Culver Co., 417 U.S. 506, 514, 94 S.Ct. 2449, 2454, 41 L.Ed.2d 270 (1974).

Wilko concerned a suit brought under § 12(2) of the Securities Act of 1933, which provides a defrauded purchaser with the ‘special right’ of a private remedy for civil liability. There is no statutory counterpart of § 12(2) in the Securities Exchange Act of 1934, and neither § 10(b) of the Act nor Rule 10b-5 speaks of a private remedy to redress violations of the kind alleged here. While federal case law has established that § 10(b) and Rule 10b-5 create an implied private cause of action, ... the Act itself does not establish the ‘special right’ that the Court in Wilko found significant. Furthermore, while both the Securities Act of 1933 and the Securities Exchange Act of 1934 contain sections barring waiver of compliance with any ‘provision’ of the respective Acts, certain of the ‘provisions’ of the 1933 Act that the Court held could not be waived by Wilko’s agreement to arbitrate find no counterpart in the 1934 Act. In particular, the Court in Wilko noted that the jurisdictional provision of the 1933 Act, 15 U.S.C. § 77v, allowed a plaintiff to bring suit ‘in any court of competent jurisdiction — federal or state — and removal from a state court is prohibited.’ The analogous provision of the 1934 Act, by contrast, provides for suit only in the federal district courts that have ‘exclusive jurisdition,’ 15 U.S.C. § 78aa, thus significantly restricting the plaintiff’s choice of forum.

(Citations and footnotes omitted). See, Herman & MacLean v. Huddleston, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983).

This court also notes the distinctions between the 1933 Act and the 1934 Act as well as the strong national policy favoring arbitration, see, Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), and hereby accepts Byrd’s invitation to compel parties’ compliance with express contractual obligations concerning arbitration. Accordingly, plaintiff’s claims arising from the the 1934 Act shall proceed to arbitration.

The court also finds that the RICO claim shall proceed to arbitration. Clearly, that claim falls within the arbitration clauses agreed to by the plaintiff. The court recognizes that RICO law is still developing. Owing to the national policy favoring arbitration, Moses H. Cone Memorial Hospital v. Mercury Construction Corp., id., this court will not fashion another exception to the Arbitration Act. The parties agreed to arbitrate certain claims arising from their transactions; the RICO claims clearly arose therefrom. Thus, arbitration is required.

Accordingly, it is hereby

ORDERED AND ADJUDGED as follows:

1. The Renewed and Amended Motion to Compel Arbitration of All Claims be and the same is GRANTED. Within 60 days of the filing of this Order, the parties shall submit a report setting forth the status of the arbitration proceeding;

2. The Clerk of Court is hereby directed to indicate that this case is closed for administrative purposes.

.3. The Court shall retain jurisdiction of the parties and the subject matter of this suit for purposes of enforcing any future arbitration award, and entering a Final Judgment herein upon appropriate application by any party.

      . The plaintiff opposes this Motion arguing that no provision within the federal rules allow "renewed” Motions. Prior to the Byrd decision, however, motions for arbitration of plaintiffs claims would be futile. Thus, defendants’ "renewed” motion must be considered by this Court.


author: LUONGO, Chief Judge.

text:
    Gary WILLIAMS v. Detective Michael TANSEY and Detective William Boogley.
    Civ. A. No. 84-3437.
    United States District Court, E.D. Pennsylvania.
    June 20, 1985.

      Robert P. Coleman, Philadelphia, Pa., for plaintiff.
    Linda L. Shafer, Philadelphia, Pa., for defendants.
   OPINION

LUONGO, Chief Judge.

Plaintiff in this civil rights action alleges that defendants conspired to have him unjustly arrested and convicted because he is black and his wife is white. I have already dismissed the complaint as to all defendants except Lower Merion Township Detectives Michael Tansey and William Boogley. Defendants Tansey and Boogley have now filed a motion to dismiss the complaint for failure to state a claim under 42 U.S.C. § 1983.

Plaintiffs pro se complaint outlines a history of harassment by Philadelphia police, who he claims are prejudiced against him because of his interracial marriage. The alleged conspiracy against him culminated in his arrest and conviction for the robbery of a Wawa store in Lower Merion Township. The complaint charges that two Philadelphia policemen identified him as a suspect even though he did not fit the victims’ description of the robber. Detectives Tansey and Boogley then participated in arresting him and searching his house without a warrant. Plaintiff claims they took his wife’s gun and purse without permission, refused his request to be placed in a lineup, failed to read him his rights at time of arrest and conspired to obstruct justice and frame him for the robbery.

In considering defendants’ motion to dismiss, I must accept as true the facts alleged in plaintiff’s complaint. The complaint will be dismissed “only if it appears ‘beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir.1981) (quoting Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). Moreover, because the complaint is pro se, its sufficiency must be judged by standards less stringent than those established for pleadings drafted by experienced attorneys. Haines, 404 U.S. at 520, 92 S.Ct. at 595; Milhouse, 652 F.2d at 373; Ricketts v. Derello, 574 F.Supp. 645, 646 (E.D.Pa.1983).

In support of their motion to dismiss, defendants first deny that plaintiff was arrested without a warrant. A copy of the warrant pursuant to which plaintiff was arrested is attached to their memorandum. Although such evidence might persuade me to grant a motion for summary judgment, I cannot consider it in connection with a motion to dismiss. I construe the complaint as alleging that plaintiff was arrested without probable cause and for reasons of personal animosity. Such allegations state a claim under § 1983. Losch v. Borough of Parkesburg, 736 F.2d 903, 907 (3d Cir.1984); Patzig v. O’Neil, 577 F.2d 841, 848 (3d Cir.1978); Sewell v. Dever, 581 F.Supp. 556, 559 (W.D.Pa.1984). .

Defendants also claim that they cannot be held liable for searching plaintiffs home without a warrant. First, they state that the search was a valid search incident to arrest. Second, they invoke the defense of qualified immunity, alleging that they acted in good faith. Finally, they deny having personally participated in the search.

Defendants’ arguments raise questions of fact, which cannot be disposed of on a motion to dismiss. See Klitzman, Klitzman & Gallagher v. Krut, 591 F.Supp. 258, 262-63 (D.N.J.), affd, 744 F.2d 955 (3d Cir.1984). In particular, qualified immunity is an affirmative defense which defendants must plead. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982); Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Fidtler v. Rundle, 497 F.2d 794, 801 (3d Cir.1974) (issue of good faith cannot be determined on a motion to dismiss). Plaintiff’s allegation that defendants participated in a warrantless search of his home and seizure of his property states a claim under § 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled on other grounds, Monell v. Department of Social Services of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Covington v. Cole, 528 F.2d 1365, 1370 (5th Cir.1976). See also Klitzman, 591 F.Supp. 258, 262-63 (D.N.J.), affd 744 F.2d 955 (3d Cir.1984).

Defendants have also challenged plaintiff’s claim that they failed to read him his rights at time of arrest and denied his request for a lineup. A claim under § 1983 must be based on deprivation of a constitutional or other federal right. E.g., Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 558, 62 L.Ed.2d 481 (1980); Robb v. City of Philadelphia, 733 F.2d 286 (3d Cir.1984). The United States Supreme Court has recently reaffirmed that the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are “not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.” Oregon v. Elstad, — U.S. -, -, 105 S.Ct. 1285, 1291, 84 L.Ed.2d 222 (1985) (quoting New York v. Quarles, — U.S. -, -, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550 (1984)). Failure to give Miranda warnings does not, therefore, subject a police officer to § 1983 liability. E.g., Bennett v. Passic, 545 F.2d 1260,1263 (10th Cir.1976); Chrisco v. Shafran, 507 F.Supp. 1312,1317 (D.Del.1981). A suspect also has no constitutional right to a lineup. E.g., Code v. Montgomery, 725 F.2d 1316,1320 & n. 4 (11th Cir.1984); United States v. Brown, 699 F.2d 585, 593 (2d Cir.1983); United States v. Hall, 437 F.2d 248, 249 (3d Cir.), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971); United States v. Prescott, 480 F.Supp. 554, 561 (W.D.Pa.1979). Assuming that Detectives Tansey and Boogley denied plaintiff’s request for a lineup, their conduct is not actionable under § 1983.

Finally, defendants argue that plaintiff cannot assert a § 1983 claim against them for their alleged giving of perjured testimony at plaintiff's criminal trial. Although I do not believe plaintiff’s complaint charges these particular defendants with such conduct, it does charge them with conspiring to have plaintiff wrongfully convicted. Plaintiff claims that certain other defendants, pursuant to the alleged conspiracy, testified falsely against him. I have already dismissed the complaint as to those defendants, Philadelphia police officers Amodio and Aitkin, on the ground that § 1983 does not create a damages remedy against police officers for their testimony as witnesses. See Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). The claim that defendants Tansey and Boogley were part of a conspiracy to present false testimony against plaintiff must be dismissed on the same ground.

The claim that the moving defendants were part of a conspiracy to frame plaintiff also falls on other grounds. In dismissing plaintiffs complaint as to certain other defendants I stated that, “other than alleging that they conspired to deprive him of his constitutional and civil rights, plaintiff states no facts to support his conclusory statements of conspiracy.” Williams v. Tansey, No. 84-3437, slip op. at 2 (Aug. 9, 1984) (citing Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981)). The conspiracy claim .against Tansey and Boogley is also too general and conclusory to state a cause of action.

In conclusion, plaintiffs complaint states a claim under § 1983 in that it charges defendants Tansey and Boogley with participating in an unlawful arrest and search. Defendants’ alleged failure to read plaintiff his rights and refusal of his request for a lineup are not actionable under § 1983 and the complaint is insufficient with respect to the conspiracy claim. Defendants’ motion to dismiss the complaint will be denied in part and granted in part.

      . Defendants’ motion, captioned “Motion to Dismiss Plaintiff's Complaint,” states that the complaint should be dismissed because it fails to state a cause of action. Their memorandum of law, however, purports to be "in Support of [Defendants’] Motion for Summary Judgment,” and includes documentary support for their arguments. All other submissions by both parties have treated defendants' motion as a motion to dismiss. If defendants intended to move for summary judgment, their moving papers do not sufficiently apprise plaintiff of that fact. I will treat defendants’ motion as one to dismiss the complaint, and will not consider matters outside the pleadings. See Fed.R.Civ.P. 12(b); Biesenbach v. Guenther, 588 F.2d 400, 402 (3d Cir.1978).


text:
    Sergeant Michael L. SERGE, Patrolman Jeffrey P. Ozovek, Patrolman Alfred Burian, And All Similarly Situated Individual Members of the Class, the Police Department of the City of Scranton, Plaintiffs, v. The CITY OF SCRANTON, James Barrett McNulty, Mayor, Carlon M. O’Malley, Jr., Director of Public Safety, and Robert N. Williams, Superintendent of Police, Defendants.
    Civ. A. No. 85-0316.
    United States District Court, M.D. Pennsylvania.
    June 20, 1985.
    Frank J. Muraca, Scranton, Pa., for plaintiffs.
    William Hall, Edmund J. Scacchitti, Scranton, Pa., for defendants.
   MEMORANDUM

CALDWELL, District Judge.

I. Introduction.

Defendants, the City of Scranton, James McNulty, its Mayor, Carlon O’Malley, Jr., Scranton’s Director of Public Safety, and Robert N. Williams, Superintendent of Police, have filed a motion to dismiss plaintiff’s complaint. Plaintiffs, members of Scranton’s police force “injured on duty,” allege in this section 1983 action that rule 301.7 of the police department manual, dealing with injured police officers, is unconstitutional on its face and as applied.

II. Discussion.

A. Plaintiffs’ Complaint States A Claim Upon Which Relief Can Be Granted.

Rule 301.7 allegedly requires plaintiffs to remain at home except when they receive medical treatment. When they leave their homes for a doctor’s appointment, they must notify the Superintendent of Police. Plaintiffs claim the rule infringes upon their right to vote, attend church services, to meet with lawyers, and attend political or family gatherings or travel freely. Defendants contend that regulations like the one at issue in the instant case have been held constitutional in other cases. They cite in their support Vorbeck v. Schnicker, 660 F.2d 1260 (8th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1278, 71 L.Ed.2d 462 (1982); Loughran v. Codd, 432 F.Supp. 259 (E.D.N.Y.1976) and Gissi v. Codd, 391 F.Supp. 1333 (E.D.N.Y.1974). These cases are all distinguishable.

In Vorbeck, the court never explicitly passed upon the constitutionality of the police regulations at issue there. Instead, it rejected plaintiffs’ claim because none of them could show that they had been injured by the regulations. The case turned on the non-justiciability of the lawsuit. While the court may have “[b]y necessary implication,” Bruno v. Department of Police, 451 So.2d 1082, 1099 (La.Ct.App.1984) (brackets added), upheld the constitutionality of the regulations on their face, we decline at this juncture to do so on the present record.

Both Loughran and Gissi dealt with the regulations of the New York City police department. In those cases the sick leave regulations were held to be valid but an important consideration was a particular provision granting unlimited sick leave to police officers. As stated by the court in Loughran: “All department members enjoy unlimited sick leave with full pay. A restriction on the permissible number of annual sick days, evident in most police departments across the nation, is not imposed on New York City officers. Accordingly, some restrictions on the activity of a member on sick report are wholly necessary if malingering is to be minimized and abuse curtailed.” 432 F.Supp. at 263 (citing Gissi). In the instant case it is unclear whether the regulation provides for unlimited injury leave. Defendants do not assert that it does. Under these circumstances, we decline to dismiss plaintiffs’ complaint on the authority cited by defendants.

In any event, plaintiffs are also asserting that the regulation is unconstitutional as applied. Thus, even if the regulation is valid on its face, if it is applied in a manner that infringes upon plaintiffs’ constitutional rights, such as those of free association or religious liberty, plaintiffs may be entitled to relief. See Philadelphia Lodge No. 5 v. City of Philadelphia, 599 F.Supp. 254 (E.D.Pa.1984); Gissi, supra.

B. The Proper Standard of Review of the Regulations Is the Rational Relationship Test.

Plaintiffs contend that the regulations must be reviewed under the “compelling state interest” test. Defendants argue, and we agree, that the “rational relationship” test is the proper standard by which to judge them. In Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976), the Supreme Court, holding a police department regulation on hair length constitutional, stated that restrictions could be placed upon the constitutional rights of public employees which would not be permissible for private citizens. It went on to state:

Thus, the question is not, as the Court of Appeals conceived it to be, whether the State can “establish” a “genuine public need” for the specific regulation. It is whether respondent can demonstrate no rational connection between the regulation, based as it is on the county’s method of organizing its police force and the promotion of safety of persons and property. [citation omitted].

Id. at 247, 96 S.Ct. at 1446, 47 L.Ed.2d at 715-16 (brackets added).

Plaintiffs attempt to distinguish Kelley by noting that Kelley involved a claim implicating “only the more general contours of the substantive liberty interest protected by the Fourteenth Amendment.” id. at 245, 96 S.Ct. at 1445, 47 L.Ed.2d at 714, while here they are asserting violations of more fundamental rights.

Kelley cannot be distinguished on that basis. The Court in Kelley did note that matters of personal appearance were different from more fundamental rights but the choice of the standard of review in Kelley did not turn on that distinction. Rather, the Court used a rational relationship test because the plaintiff was asserting his Fourteenth Amendment rights “not as a member of the citizenry at large, but on the contrary as an employee of the police force of Suffolk County____” Id. at 244-45, 96 S.Ct. at 1444, 47 L.Ed.2d at 714. Therefore, the Court concluded that:

[t]he hair-length regulation cannot be viewed in isolation, but must be rather considered in the context of the county’s chosen mode of organization for its police force.
The promotion of safety of persons and property is unquestionably at the core of the State’s police power, and virtually all state and local governments employ a uniformed police force to aid in the accomplishment of that purpose. Choice of organization, dress, and equipment for law enforcement personnel is a decision entitled to the same sort of presumption of legislative validity as are state choices designed to promote other aims within the cognizance of the State’s police power, [citations omitted]. Having recognized in other contexts the wide latitude accorded the government in the dispatch of its own internal affairs, Cafeteria Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, [1749], 6 L.Ed.2d 1230 (1961), we think Suffolk County’s police regulations involved here are entitled to similar weight.

Id. at 247, 96 S.Ct. at 1445-46, 47 L.Ed.2d at 715.

The Court then set forth the “rational connection” standard of review quoted above. Accordingly, that is the standard we will use in reviewing the police regulation at issue here. See Shawgo v. Spradlin, 701 F.2d 470 (5th Cir.), cert. denied sub. nom. Whisenhunt v. Spradlin, — U.S. -, 104 S.Ct. 404, 78 L.Ed.2d 345 (1983); Philadelphia Lodge No. 5 v. City of Philadelphia, supra; Loughran, supra; Gissi, supra and Bruno, supra.

C. The Complaint Fails to Set Forth Specifically the Defendants’ Alleged Conduct In Violating Plaintiffs’ Constitutional Rights.

Plaintiffs allege the following conduct on the part of defendants:

During the time period under which the Plaintiffs have been “injured on duty” and confined to their home pursuant to the above Rule or Regulation, the Plaintiffs and their families have been subjected to surveillance inside and outside of their home, frequent telephone calls and unannounced visits by Police Department personnel several times each day.

(Complaint, j[ 15).

During the time periods under which the Plaintiffs have been “injured on duty” and confined to their homes pursuant to the above Rule or Regulation, the Plaintiffs have been prevented from leaving their homes to vote, to attend church services, to go to court or meet with their lawyers, to attend political and family gatherings and to travel freely, and the exercise of other constitutional rights.

(Complaint, j[ 16).

Defendants contend that these allegations are too vague and conclusory in a civil rights complaint. We agree. The law in the Third Circuit for such complaints requires specificity. See Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir.1976); Borenstein v. City of Philadelphia, 595 F.Supp. 853 (E.D.Pa.1984). Paragraphs 15 and 16 set forth specific conduct, and thus differ from those complaints setting forth merely legal conclusions, but does not allege dates, times, locations, and the roles played by the individual defendants in the various unconstitutional activities. We believe that the conduct of the defendants should be alleged in greater detail.

We will issue an appropriate order.

ORDER

AND NOW, this 20th day of June, 1985, it is ordered that:

1. Defendants’ motion to dismiss the complaint shall be and is hereby denied.

2. Plaintiff shall have twenty (20) days from the date of this order to file an amended complaint setting forth with particularity the conduct of defendants violating plaintiffs’ constitutional rights. If plaintiff fails to do so, the complaint shall be dismissed.

      . Defendants also argued, from facts set forth in their brief in support of their motion to dismiss, that the claims of plaintiff, Michael Serge, should be barred by the six month statute of limitations applicable to claims against public officials. See 42 Pa.C.S. § 5522(b)(1). They preserved this defense in case Knoll v. Springfield Township School District, 699 F.2d 137 (3d Cir.1983), permitting six years for bringing suit, was reversed by the Supreme Court. In light of Wilson v. Garcia, — U.S.-, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), holding that the state statute of limitations on personal injury actions applies to claims under section 1983 and Knoll v. Springfield Township School District, 763 F.2d 584 (3d Cir.1985), holding, in part, that the Pennsylvania two year statute of limitations on personal injuries applies to section 1983 actions, we reject defendants’ argument.