author: TELESCA, District Judge.

text:
    Ronald J. DOTY, Plaintiff, v. ROCHESTER CITY POLICE DEPARTMENT and Monroe County, Defendants.
    No. CIV-85-479T.
    United States District Court, W.D. New York.
    Jan. 6, 1986.

      Ronald J. Doty, pro se.
    Charles R. Valenza, Co. Atty., Monroe Co. (Nira T. Kermisch, Asst. Co. Atty. of counsel), Louis N. Kash, Corp. Counsel for City of Rochester (Michael J. Looby, Deputy Corp. Counsel, of counsel), Rochester, N.Y., for defendants.
   DECISION and ORDER

TELESCA, District Judge.

Ronald Doty brings this civil rights complaint under 42 U.S.C. § 1983 against the Rochester City Police Department and the County of Monroe. Doty’s pro se complaint alleges (and defendants concede) that he was indicted on February 10, 1977 on a felony charge of criminal sale of a controlled substance, third degree, and that the indictment was later dismissed in the interests of justice on July 30, 1980. Defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12.

The Rochester City Police Department argues for dismissal of the claim against it on the grounds that plaintiff failed to file a timely notice of claim with the City of Rochester, as required by New York General Municipal Law § 50-e as a condition precedent to the maintenance of a tort action. That argument must be rejected, since those provisions of the New York General Municipal Law are not applicable to a federal civil rights action brought under 42 U.S.C. § 1983. Burroughs v. The Holiday Inn, 606 F.Supp. 629 (W.D.N.Y.1985), affirmed on rehearing, 621 F.Supp. 351 (W.D.N.Y.1985), leave to appeal denied, Docket No. 85-8113 (2d Cir. Dec. 18, 1985). Accord, Williams v. Allen, 616 F.Supp. 653 (E.D.N.Y.1985).

Both defendants also argue that this action was not brought within the applicable period of limitations. All of the events described in plaintiff’s complaint occurred between 1977 and July, 1980. Yet plaintiff did not commence this action until April 10, 1985, more than four years later. (In calculating the timeliness of plaintiff’s complaint, I am unable to discern from his complaint any possible reason why the limitations period on his claims might have been tolled at any time.)

At the time plaintiff filed this complaint, it was settled that the applicable New York statute of limitations for § 1983 actions was the three year period set forth in N.Y. Civil Practice Law & Rules (CPLR) § 214(2) for actions to recover upon a liability “created or imposed by statute.” Conway v. Village of Mount Kisco, 750 F.2d 205, 212 (2d Cir.1984), affirmed on rehearing, 758 F.2d 46, 49 (2d Cir.1985). Measured by that standard, there is no question that plaintiff’s complaint would be time barred.

Since this complaint was filed, however, the United States Supreme Court has held that all § 1983 claims should be characterized for statute of limitations purposes as actions to recover damages for injuries to the person, Wilson v. Garcia,—U.S. -,105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), although the Supreme Court did not address the holding of the court below that the new rule should not be applied retroactively to every action which had previously been commenced. Id. at n. 10. Applying that rule to New York law, there seems to be room for debate as to whether § 1983 actions are more appropriately analogized to the one year period of limitations for the personal injuries listed in CPLR § 215(3) (including assault, battery, false imprisonment, malicious prosecution, defamation and violation of privacy rights), or the three year period prescribed for all other personal injury actions under CPLR § 214(5). As Justice O’Connor correctly observed, the opinion of the Court in Wilson provides no clear guidance for selecting the limitations period in states, such as New York, which “def[y] the newly minted rule by supplying not one but two periods that govern various injuries to personal rights.” Wilson, supra, 105 S.Ct. at 1953 (O’Connor, J. dissenting).

Under any of the three foregoing possibilities for measuring the timeliness of this civil rights action (CPLR §§ 214(2), 214(5), or 215(3)), Doty’s complaint would be barred. It is therefore unnecessary for me to decide which New York statute of limitations applies to § 1983 actions after Wilson v. Garcia, nor whether the Wilson decision should be applied retroactively to complaints (such as this one) which had previously been filed. See, Taylor v. Mayone, 626 F.2d 247, 251 n. 4 (2d Cir.1980).

In a letter written in response to defendants’ motions to dismiss, Doty explains his delay by the fact that, when the criminal indictment was dismissed, he was never advised by anyone of the possibility of bringing a civil action, nor of the need to file such an action within the period of limitations. Although I am sympathetic to plaintiff’s explanation, it cannot excuse his excessive delay in commencing this action. “[A] pro se litigant should be afforded every reasonable opportunity to demonstrate that he has a valid claim”, Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984), but this privilege “does not exempt a party from compliance with relevant rules of procedural and substantive law”. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983) (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981)).

CONCLUSION

For the reasons set forth above, defendants’ motion for judgment on the pleadings is granted pursuant to Fed.R.Civ.P. 12(c), on the grounds that this action was not timely filed, and the complaint is dismissed with prejudice.

SO ORDERED.

      . This uncertainty is evident in New York CPLR 214(5) on its face, which allows three years to commence “an action to recover damages for a personal injury except as provided in §§ 214-b [two years for personal injury caused by phenoxy herbicides] and 215 [one year for intentional injury to the person]" (Emphasis added). In the words of Hon. Joseph McLaughlin, noted commentator on the CPLR, "The three year statute of limitations now covers all actions for personal injury except those governed by CPLR 215, which applies basically to the intentional torts____ Most of the intentional torts resulting in personal injury are now subject to the one year statute of limitations.” (Practice Commentaries on CPLR 214:5 and 215:3, McKinney’s, 1972).
      I am therefore surprised that the district courts of this Circuit since Wilson v. Garcia have summarily held that New York CPLR § 214 establishes “three years” as the statute of limitations for personal injury actions in New York, and hence for actions under § 1983. See, e.g., Williams v. Allen, 616 F.Supp. 653 (E.D.N.Y.1985); Ladson v. New York City Police Department, 614 F.Supp. 878 (S.D.N.Y.1985); Snell v. Suffolk County, 611 F.Supp. 521 (E.D.N.Y.1985); Rodrigues v. Village of Larchmont, 608 F.Supp. 467 (S.D.N.Y.1985). But see, Brown v. Village of Albion, 128 Misc.2d 586 (Supreme Ct., Orleans Co. 1985) (selecting CPLR 214(5) after comparison of competing alternatives).


source: Caselaw Access Project

author: MILLS, District Judge:

license: Public Domain

text:
    Rodney BURNETT, Plaintiff, v. Margaret HECKLER, Secretary, Department of Health and Human Services, Defendant.
    No. 85-3023.
    United States District Court, C.D. Illinois, Springield Division.
    Jan. 7, 1986.

      Costello, Long, Young & Dvorak, Springfield, 111., for plaintiff.
    Gregory K. Harris, Asst. U.S. Atty., Springfield, 111., for defendant.
   OPINION AND ORDER

MILLS, District Judge:

Social security disability claim.

Administrative res adjudicata.

Summary affirmance for DHHS.

Rodney Burnett brought this action against Margaret Heckler, Secretary of Health and Human Services (Secretary), seeking reversal of the Secretary’s decision that plaintiff is not entitled to receive Social Security Disability Insurance Benefits between March 22,1982, and November 15, 1983. Plaintiff invokes 42 U.S.C. § 405(g) as the basis for subject matter jurisdiction over this case. The defendant has moved for summary affirmance of the Secretary’s decision. While not stated as such, defendant’s motion is essentially a motion to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Because resolution of this issue entails consideration of the procedural history of this case, a detailed factual summary is necessary.

FACTS AND PROCEDURAL HISTORY Rodney Burnett, a thirty-eight (38) year old employee of the Firestone Tire and Rubber Co., collapsed at work on March 11, 1982. He did not return to work after this date. It was later determined that Mr. Burnett had suffered a grand mal seizure caused by a very large parsagital meningiomia (tumor) in the left side of his brain. (R. 371). According to Dr. Miller, one of Mr. Burnett’s treating physicians, a meningiomia is a benign neoplasm which is treated by surgical excision. Occasionally, however, such tumors can reoccur after incomplete excision. (R. 420). This is what happened in Mr. Burnett’s case. He was operated on in April of 1982, and the tumor was removed, but a residual tumor later began to grow back. By June of 1984, the new tumor had grown to a point where its effects on Mr. Burnett were more severe than the initial tumor. As a result of these brain tumors, Mr. Burnett had grand and petit mal seizures and Jacksonian seizures on a regular basis, probably three times a week. These seizures became more frequent toward the end of 1983. The medication Mr. Burnett is required to take also has side effects which include somnolence (drowsiness), and ataxia (the inability to coordinate voluntary muscular movements) (R. 421).

On May 12, 1982, plaintiff filed an application for disability insurance benefits, contending that he had been disabled since his collapse at work on March 22. The application was denied initially and upon reconsideration. At plaintiffs request, a hearing was held before Administrative Law Judge (AU) Cosentino. In a decision dated May 18, 1983, AU Cosentino found that Mr. Burnett was not disabled within the meaning of the Act. This decision became the final decision of the Secretary when the Appeals Council affirmed the denial of plaintiffs application on July 1, 1983. Plaintiff did not appeal the Secretary’s final decision to the federal district court.

More than one year later, on August 1, 1983, plaintiff filed a second application for disability insurance benefits. This second application asked for a re-opening of AU Cosentino’s decision, and alternatively, for the establishment of a later disability date. In support of his request to re-open the initial claim, plaintiff introduced three items of evidence which he contends justified re-opening the case: (1) a notice by the Illinois Department of Rehabilitation Services stating that it was closing Mr. Burnett’s case because he was not benefiting from rehabilitation and job placement services; (2) a report by Dr. Miller in which he opines that plaintiff could not work since his first seizure on March 22,1982, and; (3) evidence that plaintiff continued to have seizures after the Secretary’s initial decision.

Again his application was denied both initially and upon reconsideration. This time AU Lincoln heard plaintiff’s case at a hearing held on July 11, 1984. On July 31, 1984, AU Lincoln denied plaintiff’s request to re-open AU Cosentino's decision, but found, however, that plaintiff was disabled beginning November 13, 1983. In denying plaintiff’s request to re-open the first decision, the AU held that:

“no new evidence material to the issues resolved in that decision (by ALJ Cosentino) has been submitted. Accordingly, that decision remains final and binding. The issue before the undersigned is thus limited to whether the claimant is entitled to benefits on the basis of disability beginning since May of last year (1983).” (R. 14).

As the Appeals Council affirmed AU Lincoln’s decision, it stands as a final decision of the Secretary. Plaintiff now seeks review of AU Lincoln’s determinations: (1) that AU Cosentino’s decision should not be re-opened; and (2) that plaintiff’s disability began on November 13, 1983 rather than in May of 1983. This Court shall consider each question in the order stated above.

I.

As previously mentioned, the initial basis for defendant’s Motion For Summary Affirmance is that this Court does not have subject matter jurisdiction under § 405(g) to consider whether AU Lincoln should have re-opened the Secretary’s first decision. Re-opening of a final decision by the Secretary is provided for in 20 C.F.R. § 404.987 et. seq. The regulation relevant to this case provides, in part, as follows:

A determination, revised determination, or decision may be re-opened—
(a) Within 12 months of the date of the notice of the initial determination, for any reason;
(b) Within 4 years of the date of the notice of the initial determination if we find good cause, as defined in § 404.989, to re-open the case; ... 20 C.F.R. § 404.988.

In addition, 20 C.F.R. § 404.989 states that:

(a) We will find that there is good cause to re-open a determination dr decision if-
(1) New and material evidence is furnished; ...

As is apparent from ALJ Lincoln’s opinion, the decision to not re-open the earlier case was coupled with a decision that administrative res judicata was applicable, thus barring a subsequent claim on the same cause of action. This is consistent with Judge Shadur’s description of the Secretary’s determination not to re-open a decision and her determination to apply the doctrine of res judicata to that decision as “companion decision[s]”. See Tolbert v. Secretary, 537 F.Supp. 631, 632 (N.D.Ill.1982). Such a determination also comports with the Secretary’s regulations which state that a decision to apply res judicata must be preceded by a determination that no basis exists for re-opening the earlier decision. 20 C.F.R. § 404.987(b). The reason for this is that without a determination that no basis for re-opening exists, the Secretary’s decision is not “final” for res judicata purposes, 20 C.F.R. § 404.957(c); See Hennings v. Heckler, 601 F.Supp. 919, 925-26 (N.D.Ill.1985).

The fundamental issue, therefore, is the recurring question of whether § 405(g) grants a federal district court the power to review the Secretary’s application of res judicata to deny a social security claim, and her “companion decision” to not reopen the claim.

Section 405(g) provides, in part, as follows:

Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow, (emphasis added)

Further, 42 U.S.C. § 405(h) makes it clear that the Secretary’s decisions are not reviewable except as provided in § 405(g). Weinberger v. Salfi, 422 U.S. 749, 756-58, 95 S.Ct. 2457, 2462-63, 45 L.Ed.2d 522 (1975). Cf. Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 2021-22, 80 L.Ed.2d 622 (1984) (§ 405(h) requires that § 405(g) be the sole avenue for review of Medicare Act claims).

The leading case in this area is McGowen v. Harris, 666 F.2d 60 (4th Cir.1981). See e.g. Tolbert v. Secretary, 537 F.Supp. at 633 (citing McGowen as controlling). In McGowen, the Fourth Circuit held that the combined effect of § 405(g) and (h) is to establish a power in the Secretary to deny any social security claim on the basis that it has earlier been denied on the merits by a final administrative decision. Further, assuming that the same claim is involved, and unless a constitutional objection to applying res judicata is raised in the district court, the district court is without jurisdiction under § 405(g) to engage in judicial review either of a decision by the Secretary not to re-open the claim, Califano v. Sanders, 430 U.S. 99, 107-09, 97 S.Ct. 980, 985-86, 51 L.Ed.2d 192 (1977); Cf. Watters v. Harris, 656 F.2d 234, 238 (7th Cir.1980) (Appeals Council refusal to consider an untimely request for review here not reviewable by the district court), or to apply administrative res judicata as a bar to it. McGowen, 666 F.2d at 65; Carter v. Heckler, 712 F.2d 137, 142 (5th Cir.1983); Holloway v. Schweiker, 724 F.2d 1102 (4th Cir.1984).

There are two instances, however, in which jurisdiction to engage in judicial review exists under § 405(g) despite these rules. The first is where the Court determines that res judicata has been applied in bar of a subsequent claim which, properly assessed, is not “the same” claim for res judicata purposes. McGowen, 666 F.2d at 65; Hennings v. Heckler, 601 F.Supp. 919 (N.D.Ill.1985); Tolbert, 537 F.Supp. at 633. In such a situation, the subsequent claim is necessarily a different claim whose merits have never been addressed administratively. Therefore, a court will retain the “jurisdiction to determine its own jurisdiction” by deciding whether res judicata has been properly applied. See Texas & Pacific Ry. v. Gulf, Colorado & Santa Fe Railway, 270 U.S. 266, 274, 46 S.Ct. 263, 265, 70 L.Ed. 578 (1927) (Brandeis, J.). Only if the court determines that jurisdiction exists because the claims were in fact different, may it then judicially review the Secretary’s final decision denying the claim. McGowen, 666 F.2d at 66.

A second instance where judicial review is possible is where the subsequent claim, though the same claim for res judicata purposes, has nonetheless been re-opened as a matter of administrative discretion under 20 C.F.R. § 404.989. See e.g., Taylor for Peck v. Heckler, 738 F.2d 1112 (10th Cir.1984). In that event a final decision of the Secretary denying the claim is also subject to judicial review to the extent of the re-opening, without regard to the expressed basis for the Secretary’s denial. McGowen, 666 F.2d at 65-66 (citing Farley v. Califano, 599 F.2d 606, 608 & n. 4 (4th Cir.1979)). Thus, in the case sub judice, if we find that the original claim and the subsequent claim are not the “same” claims, or if we find that the Secretary has actually or constructively re-opened the original claim, then this court has full jurisdiction under § 405(g) to review the Secretary’s decision denying the subsequent claim.

Applying these principles, it is this Court’s finding that § 405(g) does not confer district court jurisdiction over this case. The first exception is inapplicable here because the record clearly indicates that Mr. Burnett has advanced one claim only: a claim of entitlement to disability insurance benefits under the Social Security Act, 42 U.S.C. §§ 402(d)(1), 416(e). The unitary nature of the claim is not affected by the fact that following denial on the merits of the claim as initially presented, plaintiff presented “new and material” evidence tending to support plaintiff’s claim of disability as of March 22, 1982. Cf. McGowen, 666 F.2d at 67; Hennings, 601 F.Supp. at 923; Brown v. Felsen, 442 U.S. 127, 101, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). The claim itself is still regarded as “the same” claim for res judicata purposes.

The second exception also does not apply since the record shows that the Secretary did not re-open plaintiff’s initial case and reconsider the merits of that decision. In fact, AU Lincoln expressly pointed out that the new evidence presented did not justify reconsideration of plaintiff’s initial case. It is clear that AU Lincoln considered the new evidence only for the threshold purpose of determining whether such evidence justified re-opening plain-tiff’s initial case. Thus, the mere fact that the AU considered the new evidence for this narrow purpose cannot be interpreted to mean that plaintiff’s case was re-opened by the Secretary. As explained in McGowen:

Of necessity when a social security claimant presents any claim that is arguably the same one earlier denied on the merits, the Secretary must in fairness look far enough into the proffered factual and legal support to determine whether it is the same claim, and if so, whether it should nevertheless be reopened as a discretionary matter. That the evidence offered is “new and material” may have significance on both points. If it is sufficiently “new” it may reveal the existence of a different claim, hence the inapplicability of res judicata. Or, though “new and material” it may nevertheless be revealed as going only to establish the same claim earlier denied, so that res judicata is legally available to bar its consideration on the merits. Finally, even if merely probative of the same claim, it may be sufficiently “new and material” that, considered with other factors, it justifies reopening the claim as a discretionary matter. See 20 C.F.R. § 404.989(a)(1).

666 F.2d at 67.

The record in this case reveals that AU Lincoln, in considering plaintiff’s new evidence, was engaging in precisely this threshold inquiry. Therefore, plaintiff’s case cannot be viewed as having been reopened by the Secretary. Because plaintiff also presented the “same” claim to the AU for res judicata purposes, this court is without subject matter jurisdiction under § 405(g) to review the merits of plaintiffs disability claim prior to July 1, 1983.

II.

This holding, however, does not necessarily end the inquiry since it should also be determined whether a statutory provision other than § 405(g) confers jurisdiction over this case. See Hennings v. Heckler, 601 F.Supp. at 923 (and cases cited therein). The only other possible source for jurisdiction is the federal mandamus statute, 28 U.S.C. § 1361, which provides that:

The district courts shall have original jurisidiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff (emphasis added)

A recurring question has been whether § 405(h) of the Act precludes a court’s exercise of jurisdiction under § 1361.

Section 405(h) provides as follows:
The findings and decision of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this sub-chapter.

Neither the Supreme Court, see Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 2022, 80 L.Ed.2d 622 (1984), nor this Circuit, see Attorney Registration and Disciplinary Commission of Supreme Court of Illinois v. Schweiker, 715 F.2d 282, 290 (7th Cir. 1983); Americana Healthcare Corp. v. Schweiker, 688 F.2d 1072, 1087 (7th Cir.1982); Watters v. Hariris, 656 F.2d at 241 n. 12, have chosen to consider the issue. However, those courts that have done so have unanimously held that under circumstances where the writ of mandamus properly would issue, § 1361 provides jurisdiction to review otherwise unreviewable procedural issues not related to the merits of a claim for benefits. See Dietsch v. Schweiker, 700 F.2d 865, 868 (2d Cir.1983); Lopez v. Heckler, 725 F.2d 1489, 1507-08 (9th Cir.1984); Belles v. Schweiker, 720 F.2d 509, 511-12 (8th Cir.1983); Kuehner v. Schweiker, 717 F.2d 813, 819 (3d Cir. 1983); Ellis v. Blum, 643 F.2d 68, 78-82 (2d Cir.1981); Hennings v. Heckler, 601 F.Supp. 919, 924 (N.D.Ill.1985); Sullivan v. Heckler, 602 F.Supp. 85, 87 n. 5 (D.Md.1985); Silvas v. Heckler, 578 F.Supp. 1401, 1403 & n. 2 (W.D.Penn.1984); Sinatra v. Heckler, 566 F.Supp. 1354, 1358 (E.D.N.Y.1983). Moreover, Judge Posner in the Attorney Registration case has noted that “although it is more in keeping with the Supreme Court’s desire to channel judicial review of social security claims through § 405(g) there is a powerful argument that the mandamus statute remains available to social security claimants notwithstanding [§ 405(h)].” 715 F.2d at 290. In light of the overwhelming authority supporting the rule and the sound reasoning behind the decisions cited above, this court will follow the rule that under appropriate circumstances, mandamus jurisdiction under § 1361 is available in social security cases.

The issue thus presented is under what circumstances a court may exercise mandamus jurisdiction, and whether those circumstances exist in the case at bar. In this circuit, mandamus is viewed as an extraordinary procedure that is available only where the following three elements are present: (1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available. Americana Healthcare Corp. v. Schweiker, 688 F.2d 1072, 1084 (7th Cir.1982). See also Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir.1972); Hennings v. Heckler, 601 F.Supp. at 925. Regarding the first of these elements, it is also established that the mandamus remedy is only available under exceptional circumstances of clear illegality. “When the performance of official duty calls for a construction of governing law, the [federal] officer’s interpretation will not be disturbed by a writ of mandamus unless it is clearly wrong and his official action is arbitrary and capricious.” Americana Healthcare Corp. v. Schweiker, 688 F.2d at 1084 (citing Association of American Medical Colleges v. Califano, 569 F.2d 101, 110 n. 80 (D.C.Cir.1977)). In addition to these three requirements, plaintiff’s challenge must be procedural in nature, and not related to the merits of a claim for benefits. See e.g., Dietsch v. Schweiker, 700 F.2d at 868. The majority of social security cases that have applied the mandamus statute have involved a lawsuit to compel the Secretary to take some action on an application alleged to have been timely filed, but which the Secretary has dismissed as untimely. In such a situation, courts have held that § 1361 gives the court jurisdiction to correct an alleged procedural error that foreclosed administrative consideration of the claim. See e.g., Sinatra v. Heckler, 566 F.Supp at 1358. For instance, in Dietsch v. Schweiker, the plaintiff sought to compel the Appeals Council to perform its duty to review an AU’s decision upon timely request by the plaintiff. The only issue was whether the request had in fact been timely filed. Because the dispute was procedural and unrelated to the merits of plaintiff’s claim for benefits, the Court held that § 1361 gave it jurisdiction over the matter.

In this case, plaintiff argues that the Secretary should have re-opened his initial claim for benefits based on three pieces of additional evidence submitted to AU Lincoln. However, so long as the AU considered the new evidence, as he is' required to do under the regulations, his decision to not re-open the case for good cause involves the merits of plaintiff’s claim for benefits and is thus unreviewable under mandamus jurisdiction. On the other hand, to the extent plaintiff alleges that the AU did not even consider whether the new evidence constitutes “good cause” to re-open the case, plaintiff states a claim for relief under the mandamus statute. In that situation, plaintiff would be suing the Secretary to compel her to perform a peremptory duty that is clearly owed to the plaintiff. See Hennings v. Heckler, 601 F.Supp. 919, 925-26 (N.D.Ill.1985). Such a duty was found in the Hennings case in which Judge Plunkett, in a well-reasoned opinion, held that “the Secretary has ‘a plainly defined and peremptory duty’ to consider whether plaintiff has shown ‘good cause’ to re-open the Secretary’s 1979 decision, and that the plaintiff has ‘a clear right’ to have the Secretary consider whether she has shown good cause.” 601 F.Supp. at 926. Therefore, this court has mandamus jurisdiction to the extent Mr. Burnett alleges that the Secretary did not carry out her clear and plainly defined duty to plaintiff to consider his new evidence.

It is the finding of this Court, however, that it is unneccessary to remand this case to the Secretary to decide whether plaintiff has shown “good cause” to reopen her first decision, because in this case AU Lincoln did fulfill his duty to consider plaintiff’s new evidence. Express statements contained in the AU’s opinion make it clear that AU Lincoln considered plaintiff’s new evidence, but found that it did not justify reopening the case. Such an indication is first present in the AU’s statement that “no new evidence material to the issues resolved in that decision (by AU Cosentino) has been submitted.” It is apparent from this statement that AU Lincoln considered the new evidence, but found it not to be material to the Secretary’s first decision. This conclusion is supported by the fact that AU Lincoln’s opinion does expressly consider and explain his rejection of Dr. Miller’s report, which is one of the items of new evidence introduced by plaintiff. (R. 14). Finally, in making his determination that the Secretary’s decision issued May 18, 1983, remains final and binding, AU Lincoln stated he considered the entire record. (R. 15). Thus, it is apparent that AU Lincoln did give consideration to plaintiffs “new” evidence. AU’s Lincoln’s statements can be distinguished from those of the AU in Hennings, where the AU stated that “the decision of September 28, 1979 (the initial decision denying plaintiff’s claim for benefits) is no longer subject to reopening for good cause and remains final and binding ...” 601 F.Supp. at 925. In that case, however, the initial decision was subject to re-opening because the AU had erroneously held that the 4-year period for re-opening had lapsed. Therefore, the court held that a new hearing was warranted because of the obvious fact that the AU had failed to fulfill his clear duty to consider whether good cause existed. As explained in Hennings:

To find that the Secretary can, before the relevant four year period has elapsed, refuse to consider whether a claimant has shown “good cause” to reopen an earlier decision would be to permit the Secretary to make completely arbitrary decisions. Allowing the Secretary discretion in deciding whether “good cause” has been established is one thing; allowing her discretion in deciding whether to consider whether “gc od cause” has been established would be something quite different. Having provided by regulation that her decisions may be reopened for “good cause” within the specified four year period, the Secretary must, when a claimant within that period requests that a decision be reopened for “good cause,” determine whether the claimant has shown “good cause” to reopen the decision, and only if the Secretary determines that the claimant has failed to show “good cause” may she apply the doctrine of administrative res judicata to the decision. Requiring less would violate the most fundamental tenets of our legal system.

601 F.Supp. at 926. (emphasis added).

In contrast to the Hennings case, AU Lincoln did not find that plaintiff was not entitled to have his new evidence considered; rather, he found that plaintiff’s new evidence did not justify re-opening the case. Thus, because the AU fulfilled his duty to at least consider the new evidence, this is not a proper case for remand under the federal mandamus statute. For the foregoing reasons, it has been determined that plaintiff’s claim (for benefits during a specific time period) is barred by the doctrine of administrative res judicata. It has been stated that this doctrine is equitable in nature and, as such, is subject to general principles of basic fairness. This court believes that it is not unfair to apply the doctrine to plaintiff in this case. Plaintiff had the full opportunity to present his claims at each of the several levels of review in the administrative process. Plaintiff was represented by competent counsel and it was his choice to bypass district court review of his first claim. There are strong reasons for requiring plaintiff to stand by this decision. A primary rationale for the doctrine of res judicata is that litigants themselves have a right to be protected from the burden of repetitive litigation. In the interests of the parties and the court, litigation must come to an end and remain in repose once a case is decided on the merits and proper appeals are taken. Because the plaintiff in this case exhausted his administrative remedies and chose not to proceed with district court review, application of res judicata is warranted.

It is therefore ordered that defendant’s Motion For Summary Affirmance of the Secretary’s decision to apply res judicata to plaintiff’s first claim for benefits be granted.

III.

The issue now remaining is whether substantial evidence supports the AU’s finding that Mr. Burnett was not disabled during the time period May 18, 1983, to November 13, 1983. The AU based this part of his decision on the fact that Mr. Burnett’s condition was improving and that he was capable of performing at least sedentary work during that period. The AU stated as follows:

Prior to November 13, 1983, however, the record fails to establish that the claimant’s impairment was quite so severe. When he was hospitalized in November, he indicated his last seizure was in May. He had some weakness as the result of motor neurological deficits. Nevertheless, the record fails to establish that these conditions would have prevented him from performing at least sedentary work within the regulatory definition. (R. 14).

In reviewing those findings, this court may only reverse if the findings are not supported by substantial evidence. 42 U.S.C. § 405(a). In determining whether substantial evidence supports an ALJ’s findings, the court must decide whether the record contains such relevant evidence as a reasonable person might accept as adequate to support the findings. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); See also Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir.1977). On review the court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Secretary, Torres v. Secretary of Health and Human Services, 677 F.2d 167 (1st Cir.1982); Cummins v. Schweiker, 670 F.2d 81 (7th Cir.1982). However, it must be more than an uncritical rubber stamp. Garfield v. Schweiker, 732 F.2d 605 (7th Cir.1984). A court should consider the following guidelines in making its determination: (1) the clinical findings of treating and examining physicians; (2) the diagnoses of these physicians; (3) the subjective evidence of pain and disability as testified to by the plaintiff and as observed by others; and, (4) the claimant’s educational background, work history, and present age. Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir.1982).

In the present case, there is substantial evidence to support the AU’s finding that Mr. Burnett was not disabled from May 18 to November 13, 1983. Plaintiff concedes that Mr. Burnett did not experience a major (or grand mal) seizure during this period. (R. 51-52). In addition, a hospital report dated May 9, 1983, by Dr. Veisey reported that Mr. Burnett had only two seizures in 13 months, and that his seizure on May 7 (upon admission to the hospital) was relatively minor. (R. 345). Although plaintiff’s wife testified that Mr. Burnett had minor (petit mal) seizures during this period, the AU took this into account in determining that Mr. Burnett remained capable of performing sedentary work. The AU expressly noted that such seizures do cause weakness, but the brief nature of petit mal seizures supports the AU’s finding that plaintiff could nontheless have performed sedentary work, (see Footnote 2, supra).

The AU’s conclusion that plaintiff could have performed sedentary work during this period is also supported by medical evidence. For example, on January 13, 1983, Dr. Ouchterloy, who was treating plaintiff during 1983, reported that the after-effects of his surgery make it unlikely that Mr. Burnett will be able to return to his former employment. Dr. Ouchterloy, however, further stated that “he is certainly employable though not at his previous type of work which involved heavy skilled work at a moderately hazardous work site where quick reactions were often necessary.” (R. 199). This report is clearly relevant to Mr. Burnett’s medical condition during 1983 and supports the AU’s finding that he was capable of sedentary work prior to November 13, 1983.

The AU also rejected the opinion of Dr. Miller, plaintiff’s treating physician, in determining that plaintiff was not disabled prior to November 13, 1983. His rationale was that Dr. Miller’s opinion that plaintiff was disabled was based on the fact that plaintiff “had never worked at a desk job or any sedentary work.” (R. 14). Because the AU felt that Dr. Miller was taking into account vocational factors rather than medical facts in giving his opinion, that opinion was rejected insofar as it ruled out the possibility of Mr. Burnett doing sedentary work. The pertinent part of Dr. Miller’s report, dated June 18, 1984, states:

I have studied and treated this tumor and its effect on a person’s ability to work and function. I have also personally observed this patient and tumor’s affeet (sic) on him. Mr. Burnett is a 37 year old white male. I am advised he is a high school graduate who has worked approximately 15 years at Firestone Tire & Rubber Company in Decatur, Illinois. He was employed as a module operator by Firestone and his duties included loading and unloading 800-900 tires per shift onto conveyor. These tires weighed close to 38 pounds each. In addition, his job required that he climb on catwalks to make adjustments in large equipment and set up and run a tire grading machine which required accurate and quick use of his hands, arms and feet. The job also required that he think and act quickly. He has never worked at a desk job or any sedentary work. Based upon my training, experience and knowledge, it is my opinion that Mr. Burnett has been unable to engage in gainful activity of any type since at least April, 1982. It is further my opinion that he will be unable to engage in any such activity in the future because of the effects of his illness. (R. 420-1)

As is apparent from this report, Dr. Miller outlined the rigorous physical demands of Mr. Burnett’s past work, which was clearly heavy in nature, and then stated that he had never done sedentary work. From this it is reasonable to conclude that Dr. Miller’s opinion was that assuming plaintiff does not have the vocational ability to do sedentary work, plaintiff would be unable to engage in gainful activity. His medical opinion appears to be limited to a finding that plaintiff would be physically unable to do his past work. Therefore, there is reasonable support for the ALJ’s rejection of Dr. Miller’s report.

The ALJ’s stated reasons for rejecting plaintiff’s claim for disability prior to November of 1983 clearly meet the test recently set forth by the Seventh Circuit in Stephans v. Heckler, 766 F.2d 284 (7th Cir.1985), and Zalewski v. Heckler, 760 F.2d 160, 166 (7th Cir.1985). In these cases, the Court held that when the ALJ rejects a line of probative evidence, “a minimal level of articulation of the ALJ’s assessment of the evidence is required in cases in which considerable evidence is presented to counter the agency’s position.” Stephans v. Heckler, 766 F.2d at 287 (citing Zalewski v. Heckler, 760 F.2d at 166.) For the reasons stated above, the articulation given by the AU in this case provides a logical path to a conclusion that is supported by substantial evidence in the record as a whole.

Ergo, it is ordered that defendant’s Motion For Summary Affirmance of the Secretary’s decision is ALLOWED, and the plaintiff’s Motion For Summary Reversal and/or Remand is DENIED.

      . By decision dated July 31, 1984, Mr. Burnett was found to be disabled beginning November 13, 1983, and is currently receiving disability benefits. His present appeal seeks retroactive benefits for the period March 22, 1982, to November 13, 1983.

      . This case was initially referred to U.S. Magistrate Charles H. Evans, who entered a recommendation to grant the Secretary's motion for summary affirmance on December 3, 1985. Plaintiffs objections have been considered by the Court and are hereby overruled. This opinion and order adopts the able recommendation of Magistrate Evans and its reasoning in toto.

      . GENERALIZED SEIZURES can be minor or major in their manifestations. Absence (petit mal) attacks are brief generalized seizures manifested by a 10- to 30-second loss of consciousness, with eye or muscle flutterings at a rate of 3/second, and with or without loss of muscle tone. The patient suddenly stops any activity in which he is engaged and resumes it after the attack. Petit mal seizures are genetically determined and occur predominantly in children: they never begin after age 20. The attacks are likely to occur several or many times a day, often when the patient is sitting quietly. They are infrequent during exercise. Petit mal attacks rarely indicate gross brain damage, and many patients are highly intelligent.
      TONIC-CLONIC (GRAND MAL) SEIZURES occasionally begin with a sinking or rising sensation in the epigastrium (the aura) followed by an outcry; the seizure continues with loss of consciousness; falling; and tonic, then clonic contractions of the muscles of the extremities, trunk, and head. Urinary and fecal incontinence may occur. The attack usually lasts 2 to 5 min. It may be preceded by a prodromel mood change, and may be followed by a postictal state, with deep sleep, headache, muscle soreness or, at times, focal motor or sensory phenomena. The attacks may appear at any age.
      In JACKSONIAN SEIZURES, focal motor symptoms begin in one hand or foot and then “march” up the extremity, or spread similarly from a corner of the mouth. The dysfunction may remain localized or may spread to other parts of the brain, with consequent loss of consciousness and generalized convulsive movements.
      PARTIAL SEIZURES WITH COMPLEX SYMPTOMS are characterized by a variety of patterns of onset. In most instances, the patient has a 1- to 2-min loss of contact with the surroundings. The starting patient may stagger, perform automatic purposeless movements, and utter unintelligible sounds. He does not understand what is said and may resist aid. Mental confusion continues for another 1 or 2 min after the attack is apparently over.

        See Merck Manual, 14th ed. p. 1312-1314.


author: CHARLES R. RICHEY, District Judge.

text:
    Jackie R. ALLEN, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
    Civ. A. No. 85-1587.
    United States District Court, District of Columbia.
    Jan. 7, 1986.

      Altomease R. Kennedy of Ashcraft & Gerel, Washington, D.C., for plaintiffs.
    James N. Owens, Asst. U.S. Atty., Washington, D.C., and Joseph E. DiGenova, U.S. Atty., and Royce C. Lambreth, Asst. U.S. Atty., on brief for defendant.
   OPINION

CHARLES R. RICHEY, District Judge.

INTRODUCTION

The Court has before it the defendant’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) & (6) or, in the alternative, for summary judgment pursuant to Fed.R. Civ.P. 56. The plaintiffs have filed a memorandum in opposition, and the defendant has submitted a reply. The plaintiffs have adopted the defendant’s 1 — 9(i) statement of material facts as to which there is no genuine issue, and thus, there is no dispute as to any material fact.

The issue presented in this case is whether the United States is entitled to immunity from third party tortfeasor actions brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (1982), and the applicable “state law,” the District of Columbia Workers’ Compensation Act, D.C. Code §§ 36-301 to -345 (1981 & Supp.1985), when it is required by its own regulations to have the plaintiff’s employer procure workers’ compensation insurance and then reimburse the employer for the reasonable cost of that insurance. The Court of Appeals for this Circuit has not yet ruled on this issue.

This Court finds that under the laws of the District of Columbia, the United States is not entitled to immunity pursuant to the exclusive remedy provision of the District of Columbia Workers’ Compensation Act, D.C.Code § 36-304(a), and therefore, is amenable to suit as a third party tortfeasor, even though it ultimately has incurred the cost of workers’ compensation insurance. For the reasons hereinafter set forth, and based upon the analysis of the law, and upon consideration of the entire record therein, the Court must deny the defendant’s summary judgment motion on the negligence count. In view of the disposition herein, the Court finds it unnecessary to deal with the defendant’s motion to dismiss under Fed.R.Civ.P. 12(b)(1) or 12(b)(6) and bases its ruling upon Fed.R. Civ.P. 56.

FACTS

At the time of the occurrence that gave rise to this lawsuit, the plaintiff, Jackie Allen, was an employee of Safeguard Maintenance Corporation (“Safeguard”). Safeguard was under contract with the General Services Administration to provide janitorial and maintenance services for an office building of the United States Department of Agriculture located in the District of Columbia. As required by the terms of the contract, Safeguard provided workers’ compensation insurance for its employees. The contract further provided that the United States would pay the cost of the insurance as part of Safeguard’s “general administrative costs.”

The plaintiff alleges that on June 29, 1983, while performing his duties, he was injured when a “motorized hand jack” operated by an employee of the United States government struck him. The plaintiff filed a workers’ compensation claim and received approximately $5000 in benefits. In May, 1984, the plaintiff filed an administrative claim pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, with the appropriate federal agency. This claim was denied in March, 1985. The plaintiff then filed this suit against the United States on May 16, 1985.

I. THE UNITED STATES IS AMENABLE TO SUIT UNDER THE FEDERAL TORT CLAIMS ACT ONLY TO THE SAME EXTENT AS A PRIVATE INDIVIDUAL WOULD BE UNDER THE APPLICABLE STATE LAW

It is well settled that the United States may not be sued except when it consents to such suit. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); United States v, Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Generally, tort claims, such as the plaintiff’s present negligence suit, can only be brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (1982). Moreover, under the provisions of the Act, the United States would be liable “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. In order to determine if the federal government is liable for the negligent acts or omissions of its employees who are acting within the scope of their employment, the Court must look to the law of the state where the act or omission occurred. 28 U.S.C. § 1346(b); United States v. Muniz, 374 U.S. 150, 152-53, 83 S.Ct. 1850, 1852-53, 10 L.Ed.2d 805 (1963). In the present case, the accident occurred in the District of Columbia.

II. UNDER THE DISTRICT OF COLUMBIA WORKERS’ COMPENSATION ACT, AN EMPLOYEE COVERED BY WORKERS’ COMPENSATION INSURANCE ONLY GIVES UP HIS TRADITIONAL TORT REMEDIES AGAINST HIS EMPLOYER

a. The history of the District of Columbia Workers’ Compensation Act

The relevant “state law” that this Court must apply in this case is the District of Columbia Workers’ Compensation Act, D.C. Code §§ 36-301 to -345 (1981 & Supp.1985) (“DCWCA” or “the Act”). The City Council of the District of Columbia, acting pursuant to the District of Columbia Self-Government and Governmental Reorganization Act, D.C.Code §§ 1-201 to -295 (1981), passed the DCWCA in May, 1980, and the Act took effect on July 24, 1982. D.C.Code § 36-345 (Supp.1985). The DCWCA expressly repealed the prior workers’ compensation statute, the District of Columbia Workers’ Compensation Act of 1928, D.C.Code §§ 36-501 to -504 (1973) (“1928 Act”). District of Columbia Workers’ Compensation Act § 46, 27 D.C.Reg. 2541 (1980). The 1928 Act had adopted the Federal Longshoremen’s and Harbor Workers’ Compensation Act of 1927, 33 U.S.C. §§ 901-950 (1982) (“LHWCA” or “Federal Act”), and applied its provisions to all employees and employers “carrying on employment” in the District of Columbia. D.C.Code § 36-501 (1973). The City Council of the District of Columbia, in turn, modeled the provisions of the DCWCA which are pertinent to this litigation after those in the 1928 Act and the LHWCA. These sections are set forth below,

b. The relevant sections of the DCWCA are the same as the comparable sections of the LHWCA

The language governing liability for compensation in Section 36-303(b) & (c) of the DCWCA is identical in all pertinent respects to that in Section 4(a) of the LHWCA, 33 U.S.C. § 904(a). Both sections provide that every employer within the purview of these acts shall be liable for compensation for an employee’s injury or death. Compare D.C.Code § 36-303(b) with 33 U.S.C. § 904(a). Moreover, when the employer is a subcontractor, the contractor is liable for and must secure compensation insurance for the subcontractor’s employees unless the subcontractor does so. Compare D.C.Code § 36-303(c) with 33 U.S.C. § 904(a). Furthermore, Section 36-304 of the DCWCA, which mandates that workers’ compensation is the employee’s exclusive remedy against his or her employer, adopts the same language as section 5(a) of the LHWCA. Compare D.C.Code § 36-304 with 33 U.S.C. § 905(a). Finally, Section 36-335(a) of the DCWCA creates the employee’s right to sue third party tortfeasors. The language in this section is the same as that in Section 33(a) of the LHWCA. Compare D.C.Code § 36-335(a) with 33 U.S.C. 933(a).

c. The DCWCA differs from the workers’ compensation acts of Maryland and Virginia in several significant respects

While the DCWCA closely tracks the language of the Federal Act in the pertinent sections, it is significantly different from the workers’ compensation acts of Maryland and Virginia. Md.Ann.Code art. 101 §§ 1-102 (1985) (“Maryland Act”), and Virginia, Va.Code §§ 65.1-1 to -163 (1980) (“Virginia Act”). Both the Maryland and Virginia acts impose respectively an absolute duty on a principal contractor or a general contractor to secure compensation insurance for the employees of a subcontractor. Md.Ann.Code art. 101 § 62 (1985); Va.Code § 65.1-30 (1980). However, the District of Columbia Act requires the general contractor to provide compensation insurance only when the subcontractor has failed to obtain insurance coverage. D.C. Code § 36-303(c) (1981). Furthermore, the Maryland Act expressly provides that the principal contractor shall be considered an employer for the purposes of the statute. Md.Ann.Code art. 101 § 62 (1985). Under the provisions of the Maryland Act, employers generally have immunity from common law tort actions filed by their employees. Md.Ann.Code art. 101 § 15 (1985).

Finally, the Maryland Act has a specific provision which abrogates the well established principle of statutory construction that statutes in derogation of the common law are to be strictly construed for the purposes of this Act. Md.Ann.Code art. 101 § 63. Thus, the Maryland Act permits the courts to interpret the immunity provisions broadly which, in turn, limits the common law rights of the injured employee to sue in tort. The DCWCA, on the other hand, does not have a comparable section. D.C.Code §§ 36-301 to -345 passim.

In contrast, to the Maryland Act, the Virginia Act does not expressly provide that the general contractor is a “statutory employer” immune from a common law suit sounding in tort. The Virginia courts, however, have held that a general contractor who has an absolute duty to secure compensation for a subcontractor’s employees under Section 65.1-30 is a “statutory employer” within the meaning of Section 65.1-40 and consequently is immune from third party tortfeasor actions brought by the subcontractor or his employees. Spangler v. Kranco, Inc., 481 F.2d 373, 374 n. 1 (4th Cir.1973); Slusher v. Paramount Warrior, Inc., 336 F.Supp. 1381, 1384 (W.D.Va.1971).

The District of Columbia City Council enacted the DCWCA long after both the Maryland and Virginia Acts were in effect. The City Council considered these Acts when it drafted the DCWCA and modeled some of the DCWCA’s provisions after those in the Maryland and Virginia Acts. Compare D.C.Code §§ 36-308 to -311 with Md.Ann.Code art. 101 § 36 and Va.Code §§ 65.1-54 to -82; see also O’Connell v. Maryland Steel Erectors, Inc., 495 A.2d 1134, 1141 & n. 13 (D.C.1985). Yet, the members of the City Council did not include any provisions that would require all general contractors to provide workers’ compensation insurance for their subcontractors’ employees. Nor did they draft language granting the general contractor immunity from third party tortfeasor actions brought by a subcontractor’s employees. Moreover, the members of the City Council did not draft a section, like that in the Maryland Act, which would abrogate the rule of strict interpretation of statutes in derogation of the common law rights of the workmen. D.C.Code §§ 36-301 to -345 passim. These differences between the DCWCA and the Maryland and Virginia Acts and the similarities between the DCWCA and the Federal Act are especially important in light of the case law in the District of Columbia governing the interpretation of the 1928 Act and the language of the LHWCA adopted by the City Council at the time the DCWCA was drafted and enacted.

d. The District of Columbia law at the time of the DCWCA was drafted and enacted allowed a subcontractor’s employee to sue a general contractor for negligence The law governing the disposition of the pending motion is the law of the District of Columbia, which provides that an insured employee of a subcontractor may sue a general contractor for negligence even though the employee has received workers’ compensation benefits from the subcontractor’s insurance carrier. DiNicola v. George Hyman Constr. Co., 407 A.2d 670, 675 (D.C.1979), cited in Hobbs v. KBR Corp., C.A. No. 803-84 (D.C.Super.Ct. Nov. 19, 1985). While the court in DiNicola construed the language of the Longshoremen’s and Harbor Workers’ Compensation Act of 1927, 33 U.S.C. §§ 901-950 (1982), then in place in the District of Columbia by virtue of the District of Columbia Workers’ Compensation Act of 1928, D.C.Code §§ 36-501 to -504 (1973), its decision is pertinent here in view of the fact that the current District of Columbia Act is in all relevant parts the same as the Federal Act. Moreover, the DiNicola court construed the language of the Federal Act prior to the District of Columbia City Council’s adoption of that language in the DCWCA. Under the District of Columbia Court of Appeals’ ruling in DiNicola, which was consistent with those of other courts around the country, see, DiNicola, 407 A.2d at 674 and cases cited therein, it is possible for an employee to collect workers' compensation benefits as well as damages for a tort committed by a third party’s employee. DiNicola, 407 A.2d at 674. The District of Columbia law is clear that the employee gives up his traditional tort remedies only against his employer. See id. The question then for the Court to decide in this case is whether under the District of Columbia Workers’ Compensation Act, the United States is an “employer”?

III. THE UNITED STATES IS NOT AN “EMPLOYER” UNDER THE DISTRICT OF COLUMBIA WORKERS’ COMPENSATION ACT AND THUS WOULD NOT BE IMMUNE FROM THIRD PARTY TORTFEASOR ACTIONS

Under 41 C.F.R. § 1-7.204-5(a) & (c) (1982), the government requires inter alia that contractors procure workers’ compensation insurance and that the contractor parties shall be reimbursed by the government for the reasonable cost of the insurance. In this case, the contract between the government and Safeguard contained these provisions. Safeguard purchased insurance, and the government then reimbursed Safeguard for the workers’ compensation insurance as part of the administrative costs of the contract for janitorial and maintenance services provided from October 1, 1982 through September 30, 1983 in the Department of Agriculture’s office building, located at 14th Street and Independence Avenue, S.W., in the District of Columbia. The government asserts that this self-imposed obligation makes it an “employer” for the purposes of the statute, and thus, it is immune from the plaintiff’s third party tortfeasor action. In order to decide this issue, the Court must look to the provisions of the DCWCA.

When construing a statute, the Court must first examine its language. Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917). If the meaning of the language is unambiguous, then the plain meaning of the language controls, and the Court must not involve itself in further interpretation. Id. Having read the Act in its entirety, the Court finds that it does not clearly state whether or when a general contractor can be considered an “employer” of its subcontractor’s employees. Consequently, the Court must look to the legislative history for aid in interpreting the provisions of the DCWCA. Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 317, 53 S.Ct. 350, 359, 77 L.Ed. 796 (1933), quoted in United Shoe Workers of America, AFL-CIO v. Bedell, 506 F.2d 174, 179 (D.C. Cir.1974). After careful analysis of the Act and its legislative history, the Court cannot agree with the defendant’s argument that the government is an “employer” in this case. The expansive reading that the defendant gives to this term is not supported by the language of the statute, the relevant case law at the time the DCWCA was adopted by the City Council and signed by the Mayor, or the legislative history. Consequently, the government is not entitled to immunity under Section 36-304 of the District of Columbia Workers’ Compensation Act.

In DiNicola, the District of Columbia Court of Appeals addressed the argument which the defendant now presents to this Court. There the court relied on precedent in the District to hold that the “[rjelease from common law liability is a benefit accruing from carrying compensation insurance only in case the law imposes a duty to do so.” DiNicola, 407 A.2d at 673, quoting Thomas v. George Hyman Constr. Co., 173 F.Supp. 381, 383 (D.D.C.1959). In other words, only where the statute creates a duty to provide the workers’ compensation insurance does that party or employer have immunity from third party tort actions. Moreover, a party cannot create a legal duty, and thus, immunize itself, as the United States has attempted to do in this case, through a self-imposed requirement that it or its subcontractors purchase insurance. A general contractor in a similarly situated position as the defendant-government in the present case would not have a legally imposed duty to secure workers’ compensation insurance for the employees of its subcontractor. According to the District of Columbia Act, the contractor must provide compensation insurance for the employees of the subcontractor only when the subcontractor has not done so. D.C.Code § 36-303(c) (1981). Nor under the case law can a general contractor free itself from liability by creating a self-imposed duty. See DiNicola, 407 A.2d at 673, quoting Thomas, 173 F.Supp. at 383 (interpreting the same language from the 1928 Act and the LHWCA which now appears in the DCWCA). Thus, the District of Columbia Court of Appeals has flatly rejected the theory of immunity which the government presents to this Court. In Lindler v. District of Columbia, 502 F.2d 495, 499 (D.C.Cir.1974), the Court of Appeals for this Circuit also rejected a similar argument stating that “[t]he question is not who may ultimately bear the costs, but rather who does the law require to bear the costs.” Id.

Moreover, the DiNicola Court’s interpretation of the language in the 1928 Act was in force when the City Council adopted the DCWCA, yet there is no evidence in either the Act or its legislative history which suggests that the Council had any other interpretation in mind. It is a well settled principle of statutory construction that unless there is evidence to the contrary, the courts will give language taken from a prior statute the same meaning in the new legislation. Lorillard v. Pons, 434 U.S. 575, 580-81, 98 S.Ct. 866, 869-70, 55 L.Ed.2d 40 (1978); United Shoe Workers v. Bedell, 506 F.2d 174 at 183 (D.C.Cir.1974). The Court, in applying this principle, finds that it must accept the relevant provisions adopted from the 1928 Act with the judicial interpretation added by the DiNicola Court. Under this interpretation it is clear that the statute does not protect the government, which stands in essentially the same position as a general contractor.

The government does not cite any contrary case law from the District of Columbia. Instead, it relies on the Supreme Court’s interpretation of the 1928 Act and the LHWCA in Washington Metropolitan Area Transit Authority v. Johnson, 467 U.S. 925, 104 S.Ct. 2827, 81 L.Ed.2d 768 (1984), which was subsequent to the enactment of the DCWCA, and was sharply criticized and legislatively overruled by Congress in its 1984 amendments to the LHWCA. Longshore and Harbor Workers’ Compensation Act Amendments of 1984, Pub.L. No. 98-426, § 4(a) & (b), 98 Stat. 1639, 1641 (1984); Joint Explanatory Statement of the Committee of Conference, H.R.Rep. No. 1027, 98th Cong., 2d Sess. 24, reprinted in 1984 U.S.Code Cong. & Ad.News 2734, 2771, 2774. In Johnson, Justice Marshall applied what he labeled a “slightly strained reading” of the term “employer,” Johnson, 104 S.Ct. at 2833, and held that the general contractor, WMATA, which had purchased a “wrap-up” workers’ compensation policy for the employees of all its subcontractors, was immune from third party tortfeasor actions. Id. at 2836. The Supreme Court’s rationale for granting WMATA immunity was that such a grant was consistent with the quid pro quo theory underlying the workers’ compensation statutes. Id. at 2834. In essence, the employee gives up his common law right to sue the individual who pays for the insurance in return for prompt relief from the injuries suffered, but this is not the law according to the local courts’ interpretation of the language found in the DCWCA.

This year, another district court in this circuit held that the Supreme Court’s decision in Johnson was applicable to the DCWCA. Ford v. United States, Civil Action No. 84-3082, (Mar. 1985). The defendant in the present action asserts that since the facts of Ford and this case are similar, this Court should follow the Ford decision and hold that the defendant-government is immune from third party tort actions. Following the analysis of the Supreme Court in Johnson, the Ford Court reasons that other sections of the DCWCA use the term “employer” broadly to include both general contractors and direct employers, and, therefore, this broad reading should be applied to the liability and immunity sections. However, the Act, its legislative history, and appellate opinions relied on herein do not support this reasoning. The Ford Court further states that the observation by the Supreme Court in Johnson that typically the reward for providing compensation under the statutes is immunity from tort liability applies to the DCWCA. Again, this application is incorrect and if such immunity is to be extended to general contractors or those entities in similarly situated positions then it is a task for the legislative body and not the courts.

This Court disagrees with the Ford Court’s application of the Supreme Court’s interpretation of the language in the 1928 Act and LHWCA in Johnson to the DCWCA. Congress overruled the Supreme Court’s broad reading of the term “employer” in its 1984 amendments to the LHWCA, which contains the same relevant language as the 1928 Act. Longshore and Harbor Workers’ Compensation Act Amendments of 1984, Pub.L. No. 98-426 § 4(a) & (b), 98 Stat. 1639, 1641 (1984). In so doing, the members of the joint conference committee stated that the Supreme Court’s holding in Johnson did not comport with the intent of Congress when it enacted the LHWCA nor did it follow prior judicial interpretations of the Act. Consequently, the case should not have any “precedential effect”. Joint Explanatory Statement of the Committee of Conference, H.R.Rep. No. 1027, 98th Cong., 2d Sess. 24, reprinted in 1984 U.S. Code Cong. & Ad.News 2771, 2774. The amendments provide that the contractor’s obligation to secure compensation for the employees of his subcontractor is only a contingent one which is secondary to the subcontractor’s principal obligation to secure insurance coverage. Only when the subcontractor fails to provide compensation as required by the LHWCA would the contractor’s obligation arise. In that particular situation, the contractor would be deemed an “employer” of the subcontractor’s employees and entitled to immunity from a third party tort action. Id. The district courts of this circuit have held that these amendments do not apply to the 1928 Act, see In re Metro Subway Accident Referral, Misc. No. 82-306 (D.D.C. Dec. 18, 1984) ; Holmes v. Leon N. Weiner & Associates, 603 F.Supp. 122, 124 n. 4 (D.D.C.1985) . However, the Joint Explanatory Statement and the 1984 amendments clearly reject the broad reading of the term “employer” to include general contractors when their obligations remain contingent in nature. See Joint Explanatory State ment of the Committee of Conference, H.R.Rep. No. 1027, 98th Cong., 2d Sess. 24, reprinted in 1984 U.S.Code Cong. & Ad. News 2771, 2774. Moreover, the 1984 amendments are in harmony with the holding in DiNicola. Compare Longshore and Harbor Workers’ Compensation Act Amendments of 1984, Pub.L. No. 98-426 § 4(a) & (b), 98 Stat. 1639, 1641 (1984) and Joint Explanatory Statement of the Committee of Conference, H.R.Rep. 1027, 98th Cong., 2d Sess. 24, reprinted in 1984 U.S.Code Cong. & Ad.News 2771, 2774 with DiNicola, 407 A.2d at 674. In light of these factors, this Court cannot find any reason to apply the Supreme Court’s interpretation of the 1928 Act to the DCWCA.

The Court also believes that application of Johnson to the DCWCA violates basic principles of statutory construction. The City Council passed the DCWCA prior to the Supreme Court’s decision in Johnson. As noted above, the Council adopted language from the 1928 Act which had previously been interpreted by the District of Columbia Court of Appeals. See DiNicola, 407 A.2d 670. To now interpret this language of the DCWCA in accordance with Johnson would be contrary to the principle discussed above, namely, that the courts will give language taken from a prior statute the same meaning in a subsequently enacted statute. Lorillard, 434 U.S. at 580-81, 98 S.Ct. at 869-70. In this case, the meaning at the time the Council drafted the liability and immunity language for the DCWCA included the judicial gloss added by the DiNicola decision. Moreover, the federal courts must follow the state courts’ interpretations of their particular state statutes. E.g. Aero Mayflower Transit Co. v. Board of Ry. Comm’rs, 332 U.S. 495, 499-500, 68 S.Ct. 167, 169-170, 92 L.Ed. 99 (1947). The DiNicola interpretation of the same language in the prior workers’ compensation statute would be applicable to the provisions of the present DCWCA.

Finally, by providing that workers’ compensation is the exclusive remedy for employees against their employers, Section 36-304(a) of the DCWCA limits the injured workers’ common law rights, and therefore, must be strictly construed. Shaw v. Railroad Co., 101 U.S. (11 OTTO) 557, 565, 25 L.Ed. 892 (1879). As the Supreme Court has stated, “[n]o statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.” Id. Since the law in the District of Columbia at the time the City Council enacted the DCWCA expressly preserved the right of a subcontractor’s employee to sue the general contractor in tort, the interpretation applied by the court in Ford would alter the common law beyond what the words of the statute express.

In light of these principles and the legislative history of the DCWCA, this Court finds that even when the United States requires its contractors, such as Safeguard, to secure workers’ compensation insurance, it does not thereby secure freedom from liability for the negligent acts or omissions of its employees. Release from common law liability is a benefit accruing from the carrying of such insurance only in the case where the law imposes a duty to do so. DiNicola, 407 A.2d at 673. Again, one may not escape from common law tort liability by taking out workers’ compensation insurance that the law does not require. Moreover, only an entity with an actual legal duty to provide compensation can come under the immunity umbrella of the Act.

CONCLUSION

For the reasons set forth above, the Court concludes that the United States is not an “employer” under the terms of the District of Columbia Workers’ Compensation Act, D.C.Code §§ 36-301 to -345 (1981 & Supp.1985), and is not immune from third party tortfeasor actions. Therefore, it is amenable to suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (1982). Accordingly, the defendant’s motion for summary judgment must be, and hereby is, denied since it is not entitled to a judgment as a matter of law pursuant to Fed.R.Civ.P. 56.

The Court is duty-bound to make its decisions based on the applicable statutes and case law precedents. However, the result here, in the eyes of this Court, should receive legislative attention by the District of Columbia City Council so as to bring the DCWCA into conformity with similar statutes in Maryland and Virginia. Since the time when the District of Columbia Workers’ Compensation Act was adopted, the statutes of many states have been revised and now expressly grant immunity to general contractors who provide or pay for the compensation insurance for the employees of its subcontractors. See 2A A. Larson, Workmen’s Compensation Law, § 72.31(b) (1983). Such immunity does comport with the quid pro quo that underlies these workers’ compensation statutes. If these changes are to be made in the DCWCA, it is the role of the legislative body, the District of Columbia City Council, and not the role of the courts to make them.

An order in accordance with the foregoing will be issued of even date herewith.

      . Plaintiffs’ complaint also includes a loss of consortium claim. However, this claim must be dismissed since it is not properly before the Court. The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (1982), requires the plaintiffs to exhaust all their administrative remedies before instituting a lawsuit. 28 U.S.C. § 2675(a). The plaintiff, Sandra Allen, did not present her claim for loss of consortium to the appropriate federal agency, and thus, has not exhausted her administrative remedies. Since plaintiffs have failed to comply with the "jurisdictional prerequisites” of the Act the Court lacks subject matter jurisdiction to hear the consortium claim. Odin v. United States, 656 F.2d 798, 802 (D.C.Cir.1981). This claim will be dismissed, and the action will continue solely on the negligence claim.

      . An employee can sue his employer if the employer fails to provide for compensation, Md. Ann.Code art. 101 § 15, or if the employer has expressly waived his immunity. American Radiator & Std. San. Corp. v. Mark Eng’g Co., 230 Md. 584, 187 A.2d 864, 867 (1963).

      . Section 62 of the Maryland Act uses the term "principal contractor" instead of "general contractor." The Maryland courts hold that these two terms are not synonymous. According to the case law in Maryland, a “principal contractor” would include a general contractor as well as any other contractors involved in the project who "parcelled-out a fraction of the main job.” E.g. Honackerv. W.C. & A.N. Miller Development Co., 285 Md. 216, 401 A.2d 1013, 1017-18 (1979) (quoting IB A. Larson, Workmen's Compensation Law § 49.12 (1978)); see abo Coffey v. Derby Steel Co., 291 Md. 241, 434 A.2d 564, 571 (1981). For the purposes of this case, this distinction does not affect the Court's analysis.
      The Virginia Act uses the term "general contractor” and does not make a distinction between the two terms. Va.Code §§ 65.1-1 to -163 (1980) passim.

      . The relevent provisions of the Maryland Act can be found in the 1957 edition of the Annotated Code of Maryland. The current version of the Virginia Act was enacted in 1968.

      . As the Court prepared to issue its opinion in the present case, it learned of the recent decision by Judge Weisberg of the District of Columbia Superior Court in Hobbs v. KBR Corp., C.A. No. 803-84 (D.C.Super.Ct. Nov. 19, 1985). There, Judge Weisberg, using an analysis based on principles of statutory construction similar to that employed by this Court, applied the DiNicola Court's interpretation of the language in the relevant provisions of the 1928 Act to the same language in the DCWCA. The court held that under the provisions of the DCWCA, a general contractor is not immune from third party tort suits by a subcontractor's injured employee unless the general contractor provides for the compensation "after the subcontractor has failed to secure such compensation.” Id. (emphasis added).

      . In Ford the plaintiff was employed at the Department of State as a telephone operator. Her employer, Halifax Engineering Company, had a contract with the Department of State which required that Halifax provide workers’ compensation insurance for its employees. Halifax was reimbursed by the government for the cost of the insurance. The plaintiff was injured when she fell in a hole in the pavement near the door to the building where she worked. She received workers’ compensation benefits and then sued the government for negligent failure to repair the hole. The District Court dismissed her suit, holding that the government was a "statutory employer” entitled to the exclusive remedy defense under Section 36-304(a) of the DCWCA.


author: ELLEN B. BURNS, District Judge.

text:
    Victorino LOZA v. Michael P. LYNCH, et al.
    Civ. No. B-83-414(EBB).
    United States District Court, D. Connecticut.
    Jan. 7, 1986.

      Betty G. Levy, Richard L. Jacobs, Jacobs and Levy, New Haven, Conn., for plaintiff.
    Deborah Morgan Steeves, Barry Boodman, Deputy Corp. Counsel, Stamford, Conn., Richard T. Meehan, Sr., Bridgeport, Conn., for defendants.
   RULING ON MOTION TO DISMISS

ELLEN B. BURNS, District Judge.

The plaintiff brings this action in four counts against a police officer and the City of Stamford (the “City”). The first count alleges a civil rights violation by the police officer for an alleged brutal beating and arrest without probable cause occurring on July 11, 1980. The second and third counts are pendent state claims also against the police officer. The fourth count, and the one attacked by the instant motion, is a “Monell ” count brought against the City. See Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because the fourth count alleges facts from which a jury might reasonably infer that the City had a “custom or policy” that caused a violation of plaintiff’s constitutional rights, the motion to dismiss must be denied.

I. Facts

For the purposes of deciding the instant motion the allegations set forth in plaintiff’s complaint will be accepted as true. Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 57 (2d Cir.1985). The complaint may only be dismissed “ ‘if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ ” Id. at 58, quoting Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984).

The complaint sets forth the following scenario. Late in the afternoon of July 11, 1980, plaintiff was operating a motorcycle on the streets of Stamford. Police Officer Lynch was on duty at that time and ordered the plaintiff to stop his motorcycle. Officer Lynch informed plaintiff that his muffler was making an excessive amount of noise. The officer asked plaintiff to produce his license and registration. When plaintiff reported that these documents were located at an address on Warren Street in Stamford, Officer Lynch followed plaintiff to that address.

When they arrived at Warren Street, the complaint alleges that Officer Lynch, for no apparent reason, grabbed plaintiff from behind, pushed him into the side of the police car and a wire fence, and hit him on the head several times with a black jack. Plaintiff suffered severe injuries from this beating. Officer Lynch proceeded to arrest plaintiff for interfering with a police officer and assault on a peace officer. The charge of assault was dropped and plaintiff was tried on the charge of interfering and found not guilty.

Count Four adds the following additional allegations. On February 18, 1977, a report of a psychological screening of Officer Lynch was prepared as part of a hiring procedure. That report was received by the City and allegedly concluded that Officer Lynch was hostile, demonstrated a propensity towards violence, and was a poor risk as a police officer. The City proceeded to hire Officer Lynch despite having full knowledge of the psychological report.

On November 29, 1978, a citizen’s complaint was filed against Officer Lynch by a Mr. Walker. Walker alleged that Officer Lynch, while responding to a call on September 10, 1978, dragged him from his car and beat him. It is alleged that no action was taken by the City against Officer Lynch in response to this citizen’s complaint.

On July 30, 1980, another citizen’s complaint was lodged against Officer Lynch by a Mr. Pepper. Pepper alleged that he was stopped in his vehicle by Officer Lynch and another officer on June 27, 1980, and was beaten about the head and body by the two officers. Again, it is alleged that no action was taken by the City.

The fourth count ends with the conclusory allegation that the earlier recited facts demonstrate a policy or custom on the part of the City to allow a police officer who was known to be violent and to inflict physical abuse upon citizens to carry a badge of authority and to come in contact with others in the exercise of that authority. Such a policy is claimed to condone and encourage the types of civil rights violations suffered by the plaintiff.

II. Discussion

The law regarding municipal liability has been in a state of flux since the Supreme Court decision in Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell involved a radical departure from the earlier Supreme Court precedent of Monroe v. Pape, 365 U.S. 167, 191, 81 S.Ct. 473, 486, 5 L.Ed.2d 492 (1961), which held that municipalities were not “persons” subject to liability under section 1983. Monell overruled Monroe to the extent that it held that a municipality may be liable under section 1983 if a violation of federally protected rights is “caused” by an official policy or custom of the municipality. 436 U.S. at 690-92. However, the Monell court took great pains to note that a municipality would not be liable under the doctrine of respondeat superior for acts of its employees not taken pursuant to official policy or custom. Id. 436 U.S. at 692-94, 98 S.Ct. at 2036-38. In other words, a municipality would only be liable for violations of federally protected rights which were caused by the municipality itself. Id.

Although the Monell court attempted to make clear that a municipality would only be liable for violations of federal rights caused by the municipality, it recognized that not all municipal policies and practices are adopted in a formalized manner. 436 U.S. at 691, 98 S.Ct. at 2036. A municipality could therefore be liable for acts of its employees taken pursuant to an officially adopted policy or a “custom or usage” which had taken on the “force of law.” Id. (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142 (1970)).

Since the decision in Monell, circuit and district courts have wrestled with the pleading requirements of a Monell count. On the one hand, Rule 8 of the Federal Rules of Civil Procedure allows a plaintiff to plead a “short and plain statement” of his claim. See Batista v. Rodriquez, 702 F.2d 393, 397 (2d Cir.1983). However, courts of this district have consistently noted that a “boilerplate pleading” of a municipal custom or practice is insufficient to “justify the extensive litigation such a claim entails.” Smith v. Ambrogio, 456 F.Supp. 1130 (D.Conn.1978). See also Thurman v. City of Torrington, 595 F.Supp. 1521 (D.Conn.1984); Appletree v. City of Hartford, 555 F.Supp. 224 (D.Conn.1983); Schramm v. Krischell, 84 F.R.D. 294 (D.Conn.1979). In effect, these cases have held that, in order to satisfy the requirements of Rule 8 in pleading a Monell count, a plaintiff must set forth facts showing the existence of the offending custom or policy. Cf. Fine v. City of New York, 529 F.2d 70, 73 (2d Cir.1975) (civil rights complaints must set forth allegations of facts showing a deprivation of protected rights). A mere conclusory allegation is insufficient to meet this requirement. Id.

When a complaint alleges the existence of a custom or practice that has not been formally adopted, the plaintiff “must typically point to facts outside his own case to support his allegation of a policy on the part of a municipality.” Thurman v. Torrington, 595 F.Supp. at 1530. However, some cases have held that a policy or custom may be inferred by pleading a single unusually brutal or egregious act on the part of municipal employees. Owens v. Haas, 601 F.2d 1242, 1246 (2d 1979); Douglas v. City of Hartford, 542 F.Supp. 1267, 1271 (D.Conn.1982).

The Supreme Court has recently determined that proof of a single egregious incident, without more, cannot serve to establish municipal liability under Monell. Oklahoma City v. Tuttle,—U.S.-, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). In writing for the plurality in Tuttle, Justice Rehnquist emphasized that Monell required the plaintiff to demonstrate that his injury resulted from a wrong committed by the municipality itself.—U.S. at-, 105 S.Ct. at 2433. When that wrong is caused by an officially adopted policy, a single unconstitutional application of that policy is sufficient to establish municipal liability. Id. at -, 105 S.Ct. at 2435. However, when plaintiff seeks to establish an unofficial custom through inference, he or she must present evidence beyond the constitutional violation alleged in the complaint. Id. To hold otherwise, Justice Rehnquist reasoned, would allow a jury to infer the existence of an unconstitutional policy on the basis of a single unauthorized act, a result perilously close to the respondeat superior theory rejected by Monell. Id.

The plurality declined to decide whether the municipal policy must itself be unconstitutional or whether liability would attach whenever a municipal policy is the “ ‘moving force’ behind subsequent unconstitutional conduct.” — U.S. at-, n. 7, 105 S.Ct. at 2436, n. 7. However, Justice Brennan, writing for three members of the court, made clear his view that there is no need for a plaintiff to show that a municipal policy is unconstitutional on its face. Because section 1983 imposes liability whenever a “statute, ordinance, regulation, custom, or usage” causes a deprivation of federally protected rights, a plaintiff need only show that a municipal policy existed and that this policy “ ‘subjected’ or ‘caused him to be subjected’ to a deprivation of a constitutional right.” — U.S. at-, 105 S.Ct. at 2437.

Justice Brennan’s view, that the policy need not be facially unconstitutional if it is the moving force in causing a deprivation of a constitutional right, appears to be the view adopted in this circuit. See Batista v. Rodriquez, 702 F.2d 393, 397 (2d Cir.1983); Turpin v. Mailet, 619 F.2d 196, 201-02 (2d Cir.), cert. denied 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980); Owen v. Haas, 601 F.2d 1242, 1247 (2d Cir.1979); Duchesne v. Sugarman, 566 F.2d 817, 832 (2d Cir. 1977). Under the approach taken by the Second Circuit, a custom or policy not facially unconstitutional, such as improper training or inadequate supervision, may provide the basis for municipal liability if it amounts to deliberate indifference to, or a tacit authorization of, constitutional violations. Zanghi v. Incorporated Village of Old Brookfield, 752 F.2d 42, 45 (2d Cir.1985); Turpin v. Mailet, 619 F.2d at 201. Although this standard places a high burden of proof upon a plaintiff, a complaint which alleges facts sufficient to support a jury finding of deliberate indifference or tacit authorization must withstand a motion to dismiss. See Turpin v. Mailet, 619 F.2d at 201. Cf. Turpin v. Mailet, 579 F.2d 152, 169 (2d Cir.1978), as modified by Turpin v. Mailet, 591 F.2d 426 (2d Cir.1979) (en banc) (allowing claim against municipality when complaint alleges that unconstitutional acts were authorized, sanctioned, or ratified by municipal officials functioning at policy-making level).

Applying these principles to the instant complaint requires the finding that plaintiff has met the minimal pleading requirements necessary to state a claim against the City of Stamford. He has asserted that the City of Stamford had actual knowledge of a psychological report showing the officer defendant to be a danger to the community. Despite this report the City allowed the officer to assume the badge of authority of the police department and patrol the streets with instruments of deadly force. The complaint further alleges that the City was aware of at least one incident in which this officer allegedly used excessive force and that the City took no action as a result of the citizen complaint. Finally, the complaint alleges that Officer Lynch was involved in a second incident of use of excessive force prior to the beating allegedly inflicted on the plaintiff. The City apparently did not get notice of this second incident until after the beating of the plaintiff. Nevertheless, the complaint alleges that the City took no action as a result of this second incident. The allegation of the second incident involving Officer Lynch, standing alone, would not be sufficient to establish municipal liability because the City did not receive notice until after the alleged beating of the plaintiff. Batista v. Rodriquez, 702 F.2d at 398; Turpin v. Mailet, 619 F.2d at 203. However, the City is alleged to have a policy or custom of allowing a known dangerous individual to be clothed in the authority of the City police force. Evidence of inaction by the City in light of citizens’ complaints about this officer, even though occurring after the incident set forth in plaintiff’s complaint, is probative of the existence vel non of such a policy or custom. Rule 401, Federal Rules of Evidence. The fact that such evidence standing alone would be insufficient to carry plaintiff’s burden does not prevent the court from considering post-event allegations in light of the other allegations set forth in the complaint.

III. Conclusion

The complaint meets the minimum pleading requirements to set forth a claim against the City of Stamford for violation of plaintiffs constitutional rights. The allegations, construed most liberally in plaintiffs favor, may support a jury conclusion that the City displayed a deliberate indifference to the constitutional rights of citizens by allowing Officer Lynch to carry the badge of authority of the City police. Accordingly, the motion to dismiss the fourth count of the complaint is denied.

SO ORDERED.

      . Justice Stevens dissented, arguing that a municipality should be subject to vicarious liability for the unconstitutional acts of its employees. — U.S. at -, 105 S.Ct. at 2441. Justice Powell took no part in the decision.

      . The fourth count of the complaint alleges that "no action was taken against Officer Michael P. Lynch” as a result of Mr. Walker's complaint. The court construes this allegation as an assertion that the City failed to investigate Officer Lynch’s involvement in the incident. A showing that an adequate investigation was conducted and the citizen’s complaint found to be without merit could defeat the plaintiffs assertions that the City had knowledge of an actual incident in which Officer Lynch used excessive force. See Turpin v. Mailet, 619 F.2d at 203.