author: POLOZOLA, District Judge.

text:
    John H. CRABTREE v. COMMISSIONER OF INTERNAL REVENUE SERVICE and the United States of America.
    Civ. A. No. 85-23-B.
    United States District Court, M.D. Louisiana.
    July 12, 1985.
    Charles F. Thensted, New Orleans, La., for plaintiff.'
    Merrick J. Norman, Jr., Asst. U.S. Atty., Baton Rouge, La., for defendant.
   POLOZOLA, District Judge.

John Crabtree filed this suit against the Commissioner of the Internal Revenue Service (“IRS”) and the United States of America (“U.S.”) seeking a declaration that taxpayers are entitled to an administrative hearing prior to final assessment by the IRS in cases brought under 26 U.S.C. § 6672(a). Plaintiff also seeks a return of funds seized by the IRS.

Crabtree served as chairman of the board of First Southern Capital Corporation, which held a substantial interest in another corporation, Diva, Inc. Crabtree also served as a member of the board of directors of Diva. Since 1978 Crabtree has been embroiled in a dispute with the IRS over unpaid taxes and penalties owed by Diva for which the IRS seeks to hold Crab-tree responsible. Crabtree contends that while an appeal of his liability for Diva’s obligations was pending and after he had been notified by the IRS that no further collection action against him would be taken pending the outcome of his appeal, his personal tax refund for the 1983 tax year was seized by the IRS. It is these funds which plaintiff seeks to recover.

This matter is now before the Court on the motion of the U.S. to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. No oral argument is required on this motion.

The U.S. contends that Crabtree’s claims for declaratory relief are barred by 28 U.S.C. § 2201(a), the Declaratory Judgment Act. This Court agrees with the U.S.’s contentions. The Declaratory Judgment Act specifically prohibits federal courts from entering declaratory judgments with respect to federal taxes. Wingreen Co. v. Brock, 412 F.2d 1048, 1051 (5th Cir.1969); Udey v. District Director, IRS, 534 F.Supp. 219, 221 (W.D.Ark.1982); Life Science Church v. IRS, 525 F.Supp. 399, 403 (N.D.Cal.1981).

The U.S. further contends that this Court lacks jurisdiction over Crabtree’s claim for the return of the funds from his 1983 income tax return which the IRS seized because Crabtree has failed to file a formal claim for a refund with the IRS as required by 26 U.S.C. § 7422(a). The law is clear that the requirement set forth in § 7422(a) that a claim be filed with the IRS is jurisdictional in nature. Southwestern Life Insurance Co. v. United States, 560 F.2d 627, 630-32 (5th Cir.1977); United States v. Rochelle, 363 F.2d 225, 231 (5th Cir.1966); Algonac Manufacturing Co. v. United States, 428 F.2d 1241, 1249, 192 Ct.Cl. 649 (1970). Crabtree asserts, however, that his correspondence with the IRS prior to the seizure constitutes an informal notice which is sufficient to give the Court subject matter jurisdiction. In support of this contention, Crabtree cites numerous cases which hold that an informal claim is sufficient to toll the running of the statute of limitations under § 7422 where a formal claim is filed after the prescriptive period has run. Crabtree fails, however, to cite a single case in which an informal claim which a taxpayer sent to the IRS was held sufficient to give the court subject matter jurisdiction.

This Court, applying the statute and regulations, has often held that a notice fairly advising the Commissioner of the nature of the taxpayer’s claim, which the Commissioner could reject because too general or because it does not comply with formal requirements of the statute and regulations, will nevertheless be treated as a claim where formal defects and lack of specificity have been remedied by amendment filed after the lapse of the statutory period, [citations omitted] (Emphasis supplied) 314 U.S. 186 at 194, 62 S.Ct. 214 at 218.

Even if the filing of an informal claim would give the court subject matter jurisdiction, Crabtree’s various pre-seizure communications with the IRS are insufficient to constitute an informal claim. Informal claims must satisfy certain requirements of clarity and specificity. Bauer v. United States, 594 F.2d 44, 46 (5th Cir.1979). The informal claim must inform the IRS that the taxpayer believes he has been subjected to an erroneous or illegal tax exaction and that he desires a refund because of such action. Barenfeld v. United States, 442 F.2d 371, 374, 194 Ct.Cl. 903 (1971).

Crabtree has not communicated with the IRS since he was advised that his tax refund had been seized. Furthermore, plaintiff has never set forth a specific claim for the amount sued upon, nor has he waited 60 days for allowance or disallowance of his claim as is required by 26 U.S.C. § 6532(a)(1). Despite the above findings, plaintiff argues that the IRS has been put on notice that he desires a refund since he has been contesting his liability for Diva’s taxes for the last six years. Crabtree seeks to have this Court disregard the requirements of §§ 7422(a) and 6532(a)(1) as unnecessary and inappropriate “digressions.” However, the Court must apply the law as written by the Congress. It is not the function of the courts to disregard or rewrite a statute passed by the Congress that is clear and specific. Therefore, the requirements of § 7422(a) must be met, even though there is a substantial likelihood that the claim will be rejected. United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 273, 51 S.Ct. 376, 378, 75 L.Ed. 1025 (1931); Bohn v. United States, 467 F.2d 1278, 1279-80 (8th Cir.1972). In Felt & Tarrant, the Supreme Court stated:

The necessity for filing a claim such as the statute requires is not dispensed with because the claim may be rejected. It is the rejection which makes the suit necessary. An anticipated rejection of the claim, which the statute contemplates, is not a ground for suspending its operation.

While Crabtree’s frustration with the IRS is understandable, such frustrations on the part of a taxpayer do not supply the court with the requisite subject matter jurisdiction to adjudicate the suit plaintiff has filed herein.

Therefore:

IT IS ORDERED that the motion of the United States of America to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted be and it is hereby GRANTED.

IT IS FURTHER ORDERED that plaintiff’s suit shall be dismissed with prejudice.

Judgment shall be entered accordingly.

      . 26 U.S.C. § 6672(a) provides:
      Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. No penalty shall be imposed under section 6653 for any offense to which this section is applicable.

        . 28 U.S.C. § 2201(a) provides:
      In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1954 or a proceeding under Section 505 or 1146 at Title 11, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. (Emphasis supplied)

      . 26 U.S.C. § 7422(a) provides:
      No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.

      . See United States v. Kales, 314 U.S. 186, 62 S.Ct. 214, 86 L.Ed. 132 (1941), wherein the Supreme Court stated:

      . 26 U.S.C. § 6532(a)(1) provides:
      No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun before the expiration of 6 months from the date of filing the claim required under such section unless the Secretary renders a decision thereon within that time, nor after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates.


source: Caselaw Access Project

author: EDWARD WEINFELD, District Judge.

license: Public Domain

text:
    Thomas LAW, Jr., Plaintiff, v. Edward J. CULLEN, individually and as a police officer; John Roe, individually and as a police officer; John Coe, individually and as a police officer; and the City of New York, Defendants.
    No. 84 Civ. 5638 (EW).
    United States District Court, S.D. New York.
    July 15, 1985.

      Scoppetta & Seiff, New York City, for plaintiff; Abigail Pessen, of counsel.
    Frederick A.O. Schwarz, Jr., New York City, for defendants; Michael Matsler, of counsel.
   OPINION

EDWARD WEINFELD, District Judge.

This action is brought pursuant to 42 U.S.C. section 1983, based upon allegations that plaintiff, Thomas Law, Jr., was beaten by New York City police officers upon his arrest on August 15, 1981. Named as defendants are the arresting officer, Edward J. Cullen (“Cullen”), three other unnamed police officers, and the City of New York.

Before the Court are a number of motions, made by both plaintiff and defendants. Defendant, the City of New York, moves for summary judgment, pursuant to Rule 56, Fed.R.Civ.P., contending that plaintiff has failed to raise an issue of fact whether the City had an official policy or custom sufficient to render it liable for any alleged deprivation of plaintiff’s constitutional rights; and, in addition, for sanctions pursuant to Rule 11. Officer Cullen and the City also move to amend their answer to plead a statute of limitations defense to plaintiff’s state law claims, and for dismissal of those claims as barred by the appropriate limitations period. Finally, the defendants move to preclude testimony of three witnesses whose names plaintiff allegedly failed to disclose during discovery, or in the alternative, for further discovery limited to those witnesses.

In addition to opposing defendants’ various motions, plaintiff moves, pursuant to Rule 15(a), to amend his complaint to substitute the now known names of police officers for the present “John Does,” and for further discovery with respect to the named officers’ personnel files; to dismiss the counterclaim of Officer Cullen pursuant to Rule 12(c) on grounds it violates public policy and is barred by the statute of limitations; and in limine for a ruling that plaintiff may introduce evidence at trial of certain complaints made against Officer Cullen.

DISCUSSION

Summary Judgment Motion

Under Monell v. Department of Social Services, a municipality may be held liable under section 1983 only upon proof of an official “custom” or “policy” which proximately causes the deprivation of constitutional rights. Such a custom or policy may be shown by a pattern of omissions reaching the level of “gross negligence” which indicates “deliberate indifference” to an individual’s constitutional rights. However, it is only a “known injury, a known risk, or a specific duty,” the deliberate indifference to which causes the plaintiff’s injury which will suffice to render a municipality liable under section 1983. “[Tjhere must be an affirmative link between the [City’s] policy and the particular constitutional violation alleged.”

The broad sweep of plaintiff’s efforts to come within the terms of Monell is based upon the allegation in his complaint that

the actions of the defendants ... were taken pursuant to a de facto policy of the City of New York, which is implemented by police officers of the said City, to punish summarily persons who fail to obey police commands, whether lawful or not, by means of unlawful arrest, detention, excessive use of force, and the denial of necessary medical attention.

There is not a single evidentiary fact submitted to support this conclusory and wide-ranging allegation of a “de facto” policy of the City of New York.

However, in an effort to resist the City’s motion for summary judgment, plaintiff now contends that the City may be held responsible for an alleged deprivation of his constitutional rights because it had a “custom” or “policy” of ignoring Officer Cullen’s propensity to use excessive force. In support of this claim, plaintiff relies principally upon five complaints filed with the New York City Civilian Complaint Review Board (“CCRB”), charging Officer Cullen with abuse of authority or excessive use of force. In addition, plaintiff points to the fact that none of the complaints against Cullen are mentioned in his personnel file.

In response, and in support of its motion, the City relies upon the very detailed affidavit of Assistant Police Chief Koehler who explicitly denies any “policy or practice on the part of the New York City Police Department to condone, permit, or in any other manner tolerate the use of excessive force.” In support of that statement, Koehler details the extensive procedures employed by the Police Department to avert abusive behavior by police officers, to alert the City to repeated incidents or patterns of abuse, and to train and supervise police officers in general. The concern of the City that its police officers will not only faithfully perform their assigned tasks but also be mindful of their positive duty to respect the constitutional rights of the public is evidenced by the fact that the procedure for identifying likely offenders starts even before candidates are found qualified to take the oral and written examinations and continues during their probationary period. Entirely apart from this general policy, police officers, during their tenure, are subject to continued scrutiny of their performance and given periodic training. In addition, Assistant Chief Koehler states that Officer Cullen’s performance did not call for any special scrutiny under established police procedure and was completely consistent with Police Department standards, “always professional,” and “reflect[ed] a ‘high degree of integrity in his dealings with the public.’ ”

The Court finds that the five CCRB complaints relied upon by plaintiff do not raise an issue of fact as to the liability of the City of New York for any claimed deprivation of plaintiff’s constitutional rights. The inference that plaintiff would have this Court and a jury draw from the existence of the five CCRB complaints is that in fact Officer Cullen had a propensity to use excessive force of which the City knew or should have known. However, the CCRB complaints are merely charges; and in this case, four of the five charges were found by the CCRB, after investigation and based upon available evidence, to be “unsubstantiated.” While plaintiff argues that “unsubstantiated” does not mean that the charges could not have been proven, the fact remains that no finding of actual abuse or use of excessive force was ever made against Officer Cullen prior to August 1981. The fifth complaint, found substantiated, was based upon an improper search, not excessive use of force. In the absence of any substantiated charges of abuse, there is no basis for plaintiff’s claim that Officer Cullen had a “propensity” to use excessive force and, hence, no basis for its claim that the City was deliberately indifferent to such a propensity. There can be no breach by the City of a duty to act, when the circumstances do not give rise, in the first instance, to any duty.

Plaintiff, in resisting the City’s summary judgment motion, seeks to retry the charges brought before the CCRB in the hope that a jury will find, contrary to CCRB’s investigation, that Officer Cullen did, on those four occasions spanning nine years, use excessive force. Even assuming that the civilian charges were admissible upon a trial, and sufficient to support a jury finding that Cullen used excessive force, plaintiff’s reliance thereon is misplaced. A substantiation upon a trial of the charge that Officer Cullen had a propensity to use excessive force does not establish that the City failed in its duty at the time of the occurrence of the events in this case.

The City’s liability depends upon whether it deliberately chose a course of action, deliberately ignored a known duty to act, or at the very least was grossly negligent. Thus, not only must a jury find that the charges were true, but also that the City knew they were true, should have known their truth, or was grossly negligent in failing to discover their truth at or before the time of the incident in question. Yet plaintiff makes no claim, nor has he provided any facts whatsoever to support a claim, that the CCRB investigatory procedures were inadequate or improper and, therefore, the City should have known, as plaintiff claims, the “truth” of the charges against Officer Cullen. The only actual knowledge the City could have had was that one substantiated and four unsubstantiated charges had been lodged against him.

In sum, plaintiff has failed to provide any facts from which a reasonable jury could find that the failure to take “remedial” action based upon four unsubstantiated complaints spanning a nine year period constitutes deliberate indifference to a known risk of abuse by a police officer, much less a chosen course of action by the City which was the “moving force” behind the alleged violation of plaintiff’s constitutional rights. The chain of inferences upon which plaintiff relies belies any claim that the City of New York had a “policy” or “custom” which caused plaintiff’s injury. In the face of the sworn affidavits of persons with the responsibility for training and supervision of police officers as to the City’s policies and procedures for detecting and avoiding abuse or use of excessive force, and as to Officer Cullen’s satisfactory performance, plaintiff has not raised an issue of fact but, instead, relies upon mere speculation.

Accordingly, the motion of the City of New York for summary judgment is granted.

Other Motions

Remaining for consideration are several motions by both parties, none of which requires extensive discussion. Because leave to amend is to be liberally granted, and plaintiff concedes he cannot show prejudice, the Court grants defendant Cullen’s motion to amend his answer to plead a statute of limitations defense. In view of that amendment, the Court considers and grants Cullen’s motion to dismiss plaintiff’s state law claims. Plaintiff concedes that all but one of his state law claims are barred, and as to the last, the Court finds it barred by General Municipal Law Section 50-i which governs all actions brought against a City and its employees.

However, the Court denies plaintiff’s motion to amend his complaint to add the names of three police officers, sued solely in their official capacity and not as individuals, to be followed by further pretrial discovery of their CCRB and personnel files. Plaintiff has repeatedly delayed the completion of pretrial discovery, notwithstanding which extensions were granted. The new tack now advanced by plaintiff to sue three officers solely in their “official capacity” is meaningless and adds nothing to plaintiffs claims against the City. Accordingly, plaintiffs motion to amend and for further discovery is denied.

Plaintiffs motion to dismiss Cullen’s counterclaim for assault and battery is also denied. Plaintiff’s contention that the Corporation Counsel lacks statutory authority to bring such a claim on behalf of a police officer is without merit. Section 50-k(2) of the General Municipal Law provides that “[a]t the request of the employee ... the city shall provide for the defense of an employee of any agency in any civil action including actions under [Section 1983].” Defendant’s counterclaim is compulsory under federal law and is “embraced in any practical construction of the term ‘defense.’ ” In addition, Cullen’s counterclaim is not barred by the statute of limitations. Under Section 203(c) of the New York Civil Practice Law and Rules, Cullen may assert his assault and battery claim “to the extent of the demand in the complaint notwithstanding that it was barred at the time the claims asserted in the complaint were interposed.” Defendant Cullen’s motion to preclude testimony of three witnesses at trial is denied. Cullen claims that plaintiff failed to properly respond to an interrogatory calling for the names of witnesses to the incident involving plaintiff Thomas Law. However, the three witnesses listed in the pretrial order by plaintiff of which defendant complains are not witnesses to the incident but, rather, witnesses to prior incidents of alleged “abuse” by Officer Cullen contained in the CCRB complaints. Accordingly, defendant’s claim that plaintiff has abused the discovery process is without factual support. Whether or not such testimony will be admissible upon a trial, the Court finds that defendant is entitled to a short extension of the time in which to take the depositions of the three witnesses. All discovery shall be completed within two weeks from date.

Finally, the City’s motion for sanctions under Rule 11 is denied; and the Court declines to rule upon plaintiff’s motion for an in limine evidentiary ruling in advance of trial.

So ordered.

      . 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

      . Id. at 694, 98 S.Ct. at 2037; City of Oklahoma City v. Tuttle, — U.S. ---, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985).

      . Doe v. New York City Dep’t of Social Services, 649 F.2d 134, 143-45 (2d Cir.1981); Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied sub nom. County of Nassau v. Owens, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979); Turpin v. Mailet, 619 F.2d 196, 202-03 (2d Cir.), cert. denied sub nom. Turpin v. West Haven, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980); cf. City of Oklahoma City, 105 S.Ct. at 2436 n. 7 (plurality opinion) (questioning whether gross negligence sufficient). But see Doe, 649 F.2d at 143 (gross negligence is conduct which may evidence deliberate indifference sufficient to establish a meaningful standard of municipal culpability).

      . Doe, 649 F.2d at 145.

      . City of Oklahoma City, 105 S.Ct. at 2436 (plurality opinion); see id. at 2439-40 (Brennan, J., concurring in part and concurring in judgment); see also Batista v. Rodriguez, 702 F.2d 393, 398 (2d Cir.1983).

      . Although plaintiff emphasizes that the total number of charges filed against Officer Cullen is ten, that figure includes complaints filed after the' incident in question. Because the City’s liability hinges upon what it "knew” or “should have known” at the time of the alleged incident in August 1981, no claim against it may be predicated upon actions occurring after that date. Accordingly, plaintiff’s claim that the CCRB charges support municipal liability must be based solely on the five complaints filed prior to August 1981. Similarly, plaintiffs claim that Officer Cullen is a "recidivist" within the meaning of the CCRB guidelines must be judged as of August 1981. Plaintiff himself concedes that Officer Cullen was not a "recidivist” as of that date and therefore no special scrutiny of his performance was required under CCRB guidelines. See Affirmation of Abigail Pessen, Esq. Par. 7 at 4 (note).

      . Plaintiff also relies heavily upon a claim that Officer Cullen has a history of absenteeism. The claim that a municipality may be held liable for the violation of an individual's constitutional rights because of an employee's absenteeism is clearly without merit.

      . Cf. Turpin, 619 F.2d at 201 ("where senior personnel have knowledge of a pattern of constitutionally offensive acts by their subordinates but fail to take remedial steps, the municipality may be held liable for a subsequent violation if the superior’s inaction amounts to deliberate indifference or to tacit authorization of the offensive acts") (emphasis added).

      . See Doe, 649 F.2d at 145-46.

      . City of Oklahoma City, 105 S.Ct. at 2434 (plurality opinion); see id. at 2440 (Brennan, J., concurring in part and concurring in judgment); Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981).

      . See Cattan v. City of New York, 523 F.Supp. 598, 601-02 (S.D.N.Y.1981) (discussing reliance upon CCRB complaints to establish municipal policy); Arancibia v. Berry, 603 F.Supp. 931, 933-34 (S.D.N.Y.1985) (same); see also Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 45 (2d Cir.1985); Turpin, 619 F.2d at 202.

      . The Court declines to exercise pendent jurisdiction over any state law claims against the City. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Such claims are, in any event, barred by the statute of limitations. N.Y.Gen. Mun.Law Sec. 50-i (McKinney 1977 & Supp. 1984-85).

      . Forman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

      . N.Y.Gen.Mun.Law Sec. 50-i (McKinney 1977 & Supp. 1984-85); Albano v. Hawkins, 82 A.D.2d 871, 440 N.Y.S.2d 327 (2d Dep't 1981) (Section 50-i applicable to employees); Fitzgerald v. Lyons, 39 A.D.2d 473, 336 N.Y.S.2d 940 (4th Dep’t 1972); Hahin v. City of Buffalo, 41 Misc.2d 1018, 246 N.Y.S.2d 917 (Erie Co.1964); see also Taylor v. Mayone, 626 F.2d 247, 252 (2d Cir. 1980).

      . See Forman, 371 U.S. at 182, 83 S.Ct. at 230 (while amendment is to be freely granted, it may be denied for reasons of undue delay, bad faith, or futility).

      . N.Y.Gen.Mun.Law Sec. 50-k(2) (McKinney Supp.1984-85).

      . Smith v. City of New York, 611 F.Supp. 1080, 1087 (S.D.N.Y.1985); see Henry v. City of New York, 84 Civ. 2150, slip op. (S.D.N.Y. Aug. 15, 1984).

      . N.Y.Civ.Prac.Law Sec. 203(c) (McKinney 1972).


author: BARBOUR, District Judge.

text:
    F.L. CAPPAERT and Marilynn Cappaert d/b/a Cappaert Enterprises, Plaintiffs, v. PREFERRED EQUITIES CORPORATION, Defendant.
    Civ. A. No. W84-0169(B).
    United States District Court, S.D. Mississippi, W.D.
    July 15, 1985.

      Wren C. Way, Way & Field, Vicksburg, Miss., for plaintiffs.
    Edley H. Jones, III, Jeffrey R. King, Ward, Martin, Terry & King, Vicksburg, Miss., for defendant.
   MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

This matter is before the Court upon the Motion of Defendant, Preferred Equities Corporation (“PEC”), to Dismiss this action for lack of in personam jurisdiction.

FACTS

According to the Affidavit of Plaintiff, F.L. Cappaert, submitted in response to the Motion of PEC to Dismiss, in late 1977, Plaintiff, Cappaert Enterprises, a Mississippi partnership, composed of Mississippi residents, desired to sell certain real property owned by it in Nevada. As a result, two Nevada realtors were retained to locate prospective buyers interested in purchasing the property on a cash basis. The Nevada realtors contacted PEC which expressed an interest in purchasing the property on the basis of owner-financing. Negotiations then commenced between PEC in Nevada and Plaintiffs’ attorney in Mississippi by telephone and by mail. Additionally, Plaintiffs’ attorney also made two trips to Nevada, one to discuss the terms of the transaction and to review the draft documents and the other to consummate the transaction. The documents were executed by Plaintiffs in Mississippi and delivered to PEC in Nevada by the Plaintiff’s attorney.

As part of the agreement, the parties agreed that the purchase of the property would be secured by the assignment of land sales contracts from PEC to Plaintiffs. The contracts were held in trust pursuant to a trust agreement executed by PEC in 1970, the trustee of which was a California bank. PEC assigned to Plaintiffs all of its rights as beneficiary under the trust.

According to the Affidavit of James L. Zemelman, Secretary and General Counsel for PEC, who was not personally involved in the transaction, an escrow was opened in Nevada for deposit of all documents comprising the parties’ agreement, including the promissory note and security agreement executed by the parties. All payments under the promissory note were made by the trustee bank of PEC located in California to a Nevada bank to whom the Plaintiffs had assigned the promissory note. Thus, no payments were made by PEC to Plaintiffs in Mississippi. Finally, Zemelman notes that the promissory note and security agreement state that “this agreement and the rights of the parties thereunder are governed by the Laws of the State of Nevada.”

Several months after consummation of the agreement, Plaintiffs wrote PEC concerning an alleged default under the terms of the security agreement. Plaintiffs claim that PEC violated the terms of the security agreement by swapping the land sales contracts pledged as collateral to Plaintiffs for land deeds of trust. Correspondence ensued between the parties in Mississippi and Nevada concerning the alleged default.

According to the security agreement, upon default, the borrower or “other person in possession” of the collateral was required to assemble the collateral which Plaintiffs claim constitutes personal property. The collateral was then to be made available to Plaintiffs at a place convenient to them. Plaintiffs designated the collateral be sent to them in Mississippi.

Plaintiffs allege that the provision in the security agreement requiring delivery of the collateral to a convenient place, with Mississippi being subsequently designated, constitutes performance of a contract within Mississippi. PEC notes that, pursuant to the terms of the trust agreement under which PEC has assigned its interest in the land sales contracts to Plaintiffs, the Plaintiffs, in the event of a default by PEC, would deal directly with the trustee holding the collateral concerning the assembly and delivery of the collateral and not with PEC.

LAW

PEC maintains that this action should be dismissed since it made no “contract with a resident of this state to be performed in whole or in part by any party in this state” as required by the Mississippi long arm statute, Miss.Code Ann. § 13-3-57 (Supp. 1984), and since it has no other contacts with Mississippi upon which this Court could base the exercise of in personam jurisdiction over it. This Court agrees.

The transaction for the sale of the Plaintiffs’ Nevada property took place in Nevada with the exception of correspondence and telephone calls between the parties in their respective states before and after the sale. Moreover, any delivery of the collateral to Plaintiffs in Mississippi upon default would entail discussions between Plaintiffs and the trustee bank — not PEC. The courts, which have exercised jurisdiction over a non-resident defendant on the basis of a contract to be performed in whole or in part by either party in Mississippi have required more activity in Mississippi than is present here. See, e.g., Murray v. Huggers Manufacturing, Inc., 398 So.2d 1323 (Miss.1981) (non-resident defendant who shipped goods to various businesses in Mississippi subject to jurisdiction); Miller v. Glendale Equipment & Supply Company, 344 So.2d 736 (Miss. 1977) (non-resident defendant who delivered goods to Mississippi pursuant to contract which provided that it be accepted in Mississippi subject to jurisdiction).

This Court finds Reed-Joseph Company v. DeCoster, 461 F.Supp. 748 (N.D.Miss.1978) , dispositive of this case. In Reed-Joseph, Reed-Joseph sued DeCoster to collect on an open account. DeCoster, a resident of Maine, moved to dismiss the suit for lack of in personam jurisdiction.

According to the affidavits of the parties, DeCoster contacted Reed-Joseph regarding the purchase of storage bins and other equipment. In response, Reed-Joseph prepared plans and specifications and submitted its quotation to DeCoster. Thereafter, an agreement was reached and.Reed-Joseph manufactured the equipment and shipped it to DeCoster in Maine. Negotiations for the manufacture, sale and delivery of the equipment were ■ primarily conducted by long-distance telephone calls. Neither DeCoster nor his representative visited Mississippi during negotiations nor in connection with the sale and delivery of the equipment.

Subsequently, DeCoster approached Reed-Joseph regarding the manufacture of additional equipment. Again, Reed-Joseph prepared plans and specifications for the additional equipment, manufactured it and shipped it to DeCoster in Maine. Negotiations for this additional equipment were also conducted by long-distance telephone calls. Payment for the additional equipment, which was the subject of the suit, was to be made by DeCoster in Mississippi.

Reed-Joseph claimed that DeCoster’s representative visited Mississippi on two occasions and called Reed-Joseph regarding the documents for the additional equipment. The Court noted that the equipment had already been purchased and that these subsequent trips were, therefore, irrelevant to the issue of jurisdiction.

The Court determined that DeCoster was not subject to jurisdiction in Mississippi since

... the only fact that which could arguably justify in personam jurisdiction ... is that the system was fabricated in Mississippi according to plans and specifications especially prepared in Mississippi by Reed-Joseph____ This activity was performed by Reed-Joseph in order to place itself in a position to make the sale of its system to its Maine customer. The sale of the system was negotiated by telephonic means and correspondence. DeCoster was never present in Mississippi at any time and had no other business connections within the state.

461 F.Supp. at 750.

In so ruling, the Court noted that

[i]t it well settled that the unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirement of contact with the forum state.

461 F.Supp. at 751 (quoting Barnstone v. Congregation AM Echad, 574 F.2d 286 (5th Cir.1978)).

Here, the only fact which could arguably justify in personam jurisdiction over PEC concerns the possible assembly and delivery of the collateral to Mississippi upon default by PEC. However, as PEC notes, any discussions concerning the assembly and delivery of the collateral to the Plaintiffs in Mississippi would transpire between Plaintiffs and the trustee bank — not PEC. All other negotiations and discussions between the parties occurred in Nevada or between Nevada and Mississippi by way of telephonic means and correspondence. The documents were executed by the parties in their respective states. The Plaintiffs’ attorney made two trips to Nevada to negotiate and consummate the transaction. PEC never travelled to Mississippi and had no physical contact with Mississippi other than telephone calls and correspondence before and after the sale. Indeed, PEC did not even make payments in Mississippi. Clearly, as in Reed-Joseph Company v. DeCoster, supra, the unilateral activity of the Plaintiffs cannot satisfy the requirements of Miss.Code Ann. § 13-3-57 (Supp.1984) or due process. Accordingly, this action is dismissed without prejudice. A final judgment in accordance with this opinion is being entered this day.

PEC also filed a Motion to Strike a rebuttal brief filed by Plaintiffs in response to the reply brief of PEC submitted in support of its Motion to Dismiss. Said Motion to Strike is hereby denied.


author: LEISURE, District Judge:

text:
    Joseph HIRSCH, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 Civ. 6441 (PKL).
    United States District Court, S.D. New York.
    July 15, 1985.

      Morrison & Henderson, New York City (Diane Morrison, New York City, of counsel), for plaintiff.
    Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y., New York City (Mark S. Sochaczewsky, Asst. U.S. Atty., New York City, of counsel), for defendant.
   LEISURE, District Judge:

Plaintiff, Joseph Hirsch (“Hirsch”), brought this action under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review the final decision of the Secretary of Health and Human Services (“the Secretary”), which denied Hirsch federal disability insurance benefits. The parties have cross-moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

BACKGROUND

Hirsch, born on July 30, 1927, worked as a shipping clerk and messenger for over thirty years for his brother’s optical company. Toward the end of his employment, his work consisted of sorting, labeling and packaging lenses. As described in claimant’s vocational report, the job required six hours of walking and seven hours of standing in an eight hour day. His brother testified that “we very often had to send somebody else over to help him” and “he couldn’t function at all sometimes.”

Plaintiff Hirsch ceased working in August, 1982. His brother testified that, at that time, his legs were very badly swollen and he was told by his doctor to stay off his feet. Hirsch applied for disability benefits on April 7, 1983. The application and subsequent request for reconsideration were denied.

Hirsch requested and obtained a hearing before an Administrative Law Judge, where he was represented by his attorney. The AU found that Hirsch has a severe impairment, but that his impairments do not prevent him from performing his past relevant work. The AU’s decision became the final decision of the Secretary when Hirsch’s request for review by the Appeals Council of the Social Security Administration was denied.

The medical evidence consists of reports from several physicians. Hirsch’s treating physician, Dr. Arthur Appel, submitted a report after seeing claimant monthly from July, 1977, when Hirsch was hospitalized, to May, 1983. The report states that claimant was admitted to Nyack Hospital in July, 1977 with acute pulmonary edema and found to have severe cardiomyopathy and rapid atrial fibrillation. The report further states that Hirsch continues to have shortness of breath on minimal exertion, intermittent ankle edema and atrial fibrillation. In a physical capacities evaluation, dated November 28, 1983, Dr. Appel reported that Hirsch is capable of standing for one hour and walking for less that one hour in an eight hour day. Dr. Appel lists other restrictions on Hirsch’s capabilities and attributes them to his mental impairments and heart condition. Dr. Appel concludes, “This patient has had pulmonary edema in past and is continuously in danger of congestive heart failure if he is submitted to physical or environmental stresses which the average adult could handle.”

At the request of the Secretary, Hirsch was examined by physician Dr. George Friedman, radiologist Dr. Guy Freeman, and clinical psychologist Dr. L.A. Shewchuk. The psychologist found that Hirsch has a full scale IQ of 88 and reported indications of mild organic brain damage and mild emotional problems. The radiologist, Dr. Freeman, reported that the chest X-ray revealed slight arteriosclerotic changes of the aorta and increase in transverse cardiac diameter. The consulting physician, Dr. Friedman, after examining Hirsch on July 6, 1983, concluded that Hirsch had rheumatic heart disease, mitral insufficiency and borderline mental retardation. Dr. Friedman noted no edema. In addition, a Residual Functional Capacity Assessment form was completed on July 18, 1983, which indicates that claimant is able to stand and/or walk for about 6 hours in an 8 hour day. This form is not cited by the AU. Hirsch testified that he can walk about 4 blocks and stand for 25-30 minutes.

The AU, in his decision, cites evidence indicating plaintiffs heart condition and mental limitations. He mentions Dr. Appel’s report of intermittent and varying ankle edema and Dr. Friedman’s finding of no edema at the time of his examination. The AU also cites Dr. Appel’s finding that Hirsch can walk and stand for one hour or less a day and the vocational report stating that Hirsch’s former job required six hours of walking and seven hours of standing per day.

The AU concludes that claimant is able to perform his past relevant work and is thereby disqualified from disability insurance benefits. In support of this finding, the AU discusses the limitations on Hirsch’s ability to lift and carry and notes that his former job did not require lifting and carrying of weights more than five pounds. The AU further states that claimant is able to grasp, pull and push, as required by his job, that his IQ of 88 is adequate to function in his former work and that his heart condition is not severe enough to prevent claimant from performing his past relevant work. Absent from this evaluation is a discussion of the discrepancy between Dr. Appel’s assessment of claimant’s ability to walk and stand, together with claimant’s own testimony on the subject, and the walking and standing requirements of his former job. The job required Hirsch to walk and stand for at least six times longer per day than the length of time Hirsch is capable of walking and standing according to the report of the treating physician.

DISCUSSION

In reviewing the record, the Court does not displace the Secretary as the finder of fact; rather, a finding of fact by the Secretary is conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir.1983). Substantial evidence has been described as “more than a mere scintilla, and is defined as such relevant evidence as a reasonable man might accept as adequate to support a conclusion.” Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). Thus, the question presented is whether the AU’s finding that “claimant’s impairments do not prevent the claimant from performing his past relevant work” is supported by substantial evidence.

Plaintiff argues in support of its motion for judgment on the pleadings that a reversal is warranted because the finding that claimant is capable of performing his past work is not supported by substantial evidence, particularly since the job required plaintiff to stand for long periods of time, an issue that the AU failed to analyze. Plaintiff urges that the opinion of Dr. Appel be given great weight, since Dr. Appel had seen Hirsch regularly for over five years and while Hirsch was employed and subject to the physical stress of his job. The consulting physician, in contrast, saw Hirsch only once and after he ceased working.

Defendant argues that it is the function of the AU, not the Court, to weigh the evidence and determine claimant’s capacity. For substantial evidence, defendant relies on the Residual Functional Capacity Assessment, indicating that claimant can walk or stand for about six hours a day. As previously noted, that report was not cited by the ALT.

An established principle in this Circuit is that the “expert opinions of a treating physician as to the existence of a disability are binding on the fact finder unless contradicted by substantial evidence.” Bluvband v. Heckler, 730 F.2d 886, 892 (2d Cir.1984) (quoting Bastien v. Califano, 572 F.2d at 912). While the opinion of the treating physician will not necessarily override, in all cases, the opinion of a consulting physician, see, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir.1983), the opinion of the treating physician generally is “entitled to more weight than that of a doctor who has only seen the claimant once.” Bluvband v. Heckler, 730 F.2d at 893 (quoting Rosa v. Weinberger, 381 F.Supp. 377, 380 (E.D.N.Y.1974)).

Moreover, the Secretary is required, when making determinations regarding claimant’s disability, to “explain what physical functions the claimant is capable of performing.” Ferraris v. Heckler, 728 F.2d 582, 585 (2d Cir.1984). Courts have suggested the following analytical framework for the AUs to comply with in rendering their decisions:

Initially, the AU should see whether the treating physician has determined that claimant is disabled. He should then examine the record for conflicting evidence. Upon finding conflicting evidence, he should compare the probative value of the treating physician’s opinion with the probative value of the conflicting evidence.

Bluvband v. Heckler, 730 F.2d at 893.

The analysis of Bluvband v. Heckler is pertinent to the case here. In Bluvband, the treating physician, who had seen claimant for five years, found claimant to be disabled. This disability finding was supported by claimant’s testimony but contradicted by the evaluations of claimant’s residual functional capacity completed by the consulting physician who had examined claimant once. 730 F.2d at 893. The Court stated that, although the AU may reject claimant’s testimony and accept the residual functional capacity assessment, the AU is expected to explain his analysis of the critical issues. Id. at 894. The Court concluded that “such [residual functional] evaluations — which are critically disputed in a way that the AU failed to explore, and which were formulated after the physician had examined the claimant only once — do not, under the facts presented here, constitute substantial evidence contradicting the treating physician’s opinion of total disability.” Id. at 894. Similarly, in Ferraris v. Heckler, the Court stated that the AU’s findings of a conclusory nature on a key issue were wholly insufficient. 728 F.2d at 587.

Although the Second Circuit reached a different conclusion in Mongeur v. Heckler, 722 F.2d 1033, the facts of that case distinguish it from Bluvband and the case here. In Mongeur, the Court found that the AU’s finding of ineligibility was supported by substantial evidence in the form of a consulting physician’s opinion, even though that evidence contradicted the opinion of claimant’s treating physician. 722 F.2d at 1038-39. The Court noted, however, that the “opinion of a treating physician is accorded extra weight because the continuity of treatment he provides and the doctor/patient relationship he develops place him in a unique position to make a complete and accurate diagnosis of his patient.” Id. at 1039 n. 2. The Court then explained that this principle did not apply to the two people Mongeur referred to as his treating physicians since one had only seen the claimant once or twice and the other was a nurse practitioner whose opinion is not entitled to the same weight as that of a physician. Id. at 1039 n. 2.

The AU here failed to follow the analytical framework suggested by the courts. Instead of evaluating the evidence on Hirsch’s standing and walking capability, the AU ignored the discrepancy between the treating physician’s assessment and the requirements of the job. The residual functional evaluation supports the AU’s finding, but this report, not cited by the AU, does constitute substantial evidence in the context of the AU’s decision, similar to Bluvband. It is impossible for the reviewing judge to determine whether the AU considered this issue in rendering his decision. Since the AU failed to cite any evidence to indicate that Hirsch is capable of walking and standing for the amount of time required by his former job, and that such a finding would contradict the opinion of claimant’s treating physician and claimant’s own testimony, I find that the AU’s determination that Hirsch is capable of performing his past relevant work is not supported by substantial evidence. The decision of the Secretary is hereby reversed.

After determining that the AU’s decision should be reversed, I must decide whether to remand the case to the Secretary for reconsideration or whether to find claimant eligible for benefits. Plaintiff argues that the record contains sufficient evidence for Hirsch to be determined disabled and eligible for benefits. Furthermore, I am cognizant that Congress, through amending the Social Security Act, has limited the remand power of the federal courts. Carroll v. Secretary of Health and Human Services, 705 F.2d at 643-44. Nevertheless, in cases similar to the situation here, where the insufficiency of the AU’s decision has been an important factor in reversing the Secretary’s decision, the Second Circuit has determined that remanding the case for reconsideration was appropriate. Bluvband v. Heckler, 730 F.2d at 895; Ferraris v. Heckler, 728 F.2d at 587-88 (“we direct that the AU on remand make more explicit his findings.”)

Accordingly, the decision of the Secretary is reversed and the ease is remanded to the Secretary for reconsideration.

SO ORDERED.


author: JOE J. FISHER, District Judge.

text:
    TEXARKANA LIVESTOCK COMMISSION, et al. v. UNITED STATES DEPARTMENT OF AGRICULTURE.
    Civ. A. No. TX-84-70-CA.
    United States District Court, E.D. Texas, Texarkana Division.
    July 15, 1985.

      George L. McWilliams, Hubbard, Patton, Peek, Haltom & Roberts, Texarkana, Tex., for plaintiffs.
    William J. Cornelius, Asst. U.S. Atty., Tyler, Tex., for defendant.
   MEMORANDUM OPINION

JOE J. FISHER, District Judge.

Before the Court is a suit brought by two cattle auction markets located in Texarkana, Texas, which seek to enjoin the United States Department of Agriculture from enforcing certain brucellosis testing regulations relating to the interstate movement of cattle.

Specifically, the Plaintiffs complain of the refusal of U.S.D.A. to grant an exception for these markets to a recently enacted regulation requiring two brucellosis tests for adult non-vaccinated cattle brought from Arkansas, sold at the Texarkana market and then immediately returned to Arkansas. This class of cattle is subject to only one brucellosis test when they are sold at an Arkansas market. Since, Plaintiffs argue, their markets are on the border between Texas and Arkansas, and since Arkansas cattle (which make up a large portion of their business) are kept separate and watched over by an Arkansas official, it makes no sense for the Department to impose the two-test requirement upon them which may cause Arkansas cattle producers to abandon their markets. Yet the Department refuses to grant an exemption to them.

This suit is brought pursuant to the Administrative Procedure Act, 5 U.S.C. § 702 et seq. (hereinafter “APA”). In essence, the APA allows a party who has been adversely affected by United States Government Agency action to judicial review of such action. By agreement of the parties, the case has been submitted to the Court on stipulated facts, deposition testimony and briefs. After a review of this evidence, the pleadings and the exhibits, this Court has concluded that the Department’s action in this matter has been arbitrary and capricious and will enter an order setting aside the Department’s action refusing the Plaintiff’s exemption to the two-test requirement.

I. THE FACTS

Plaintiffs are in the business of operating public livestock auction markets in Texarkana, Texas. These markets have been in operation for over twenty years. Texarkana is a border city which lies partially in the State of Texas and partially in the Státe of Arkansas. The convergence of the two states within the city is at a point in extreme Northeast Texas and extreme Southwest Arkansas. The Texarkana Livestock Commission Company is located within the City of Texarkana, Texas, approximately one-half mile from the Arkansas border. J & J Auction Company is located approximately three miles from the Arkansas border. The City of Texarkana, Arkansas, has no livestock marketing facility nor are there Arkansas markets within a three-county area. On the Texas side of the border, there are no other markets within a 60 mile radius. The two Texarkana, Texas, markets have traditionally served as marketing facilities for both Southwest Arkansas cattle producers as well as Northeast Texas cattle producers.

It has been stipulated that cattle of Arkansas origin account for approximately 60-70% of the cattle marketed at the Texarkana Livestock Commission Company. At the J & J Auction Company, Arkansas cattle comprise approximately 20-30% of the cattle marketed.

The regulations involved concern the spread and control of brucellosis in cattle. Brucellosis is a disease in cattle commonly known as “Bangs” disease. In cattle, the disease may result in abortions, weakened calves and reduced milk production. The disease is caused by bacteria called Brucella. While the disease economically affects cattle production, the meat from infected animals is not harmful for human consumption and animals with the disease are regularly sold for slaughter and processed for human consumption.

Because of its economic importance, the federal government in cooperation with the animal health agencies of the various states addresses the control of brucellosis through their regulatory functions.

The federal brucellosis regulations which govern the interstate movement of cattle provide for a system of classifying states or parts of states according to the rate of brucellosis infection. The classifications are: (1) Class Free; (2) Class A; (3) Class B; (4) Class C and (5) Quarantine. The highest rate of infection, of course, is in the quarantine category with lesser rates in between to the Class Free category. Testing requirements for interstate movement depend upon the state’s classification and the type of animal involved.

The Northeast Texas area covering the Texarkana markets is classified as a Class C area. In August of 1983, the State of Arkansas was classified as a Class C State. Prior to that time it had been a Class B State. Changing Arkansas from a Class B to a Class C state primarily had the effect of imposing additional testing requirements on the interstate movement of a certain class of cattle from the state. Primarily affected would be adult cattle over the age of 18 months which had not been vaccinated for brucellosis and which were moved interstate for use as breeding stock.

Under federal regulations, if interstate movement is involved, an Arkansas cattle producer may not ship his adult non-vaceinated cattle to Texas markets for sale as breeding stock unless 60 days and not more than one year prior to shipment these animals had undergone an official negative brucellosis test plus a second official negative test when the animal reached the market. This will be referred to as the “two-test” requirement. On the other hand, intrastate marketing of this same classification of animal in an Arkansas market would be permitted with one negative test which can be administered at the market. The Government contends that the adult non-vaccinated Arkansas cattle which enter Plaintiffs’ market only for a few hours and are then returned to Arkansas must meet the interstate two-test requirement.

With the imposition of the two-test requirement, the two Texarkana markets realized the obvious: although the two-test requirement would only apply to a small percent of an Arkansas producer’s marketable cattle (only to non-vaccinated animals over 18 months), it was unlikely that the Arkansas producer would choose to separately market his cattle. Instead, the cattle producer would likely abandon the Texarkana market and market all of his cattle at more distant Arkansas markets rather than be subjected to the two-test requirement. Because of the economic consequence to the markets, the Plaintiffs asked the Department of Agriculture to exempt this one class of cattle which returns immediately to Arkansas from the two-test requirement. In requesting the exemption, the markets noted the unique border position of their auctions and pointed out a longstanding cooperative agreement between the two state animal health agencies which permitted Arkansas cattle to enter the two Texas markets for sale only to Arkansas buyers and then immediately return to Arkansas under such requirements as though the livestock were marketed in Arkansas. This system of marketing had been supervised for many years by an official of the Arkansas Livestock and Poultry Commission permanently stationed in the Texas markets. These cattle never entered the breeding herds of the State of Texas.

Nevertheless, the Department refused their request for an exception. The markets then brought suit in this Court seeking review of the Department’s action.

II. THE ISSUES PRESENTED

The Plaintiffs have predicated their suit on two grounds. First, they argue that for Federal brucellosis requirements to be applicable here, there must be interstate commerce; and that in this unique circumstance there simply is no interstate commerce.

Second, and with much more force, the Plaintiffs argue that the U.S.D.A.’s denial of an exception should be set aside pursuant to 5 U.S.C. Sec. 706 of the APA, which provides that a Federal Court should set aside agency action when it finds that agency action was:

(1) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) Contrary to Constitutional right, or

(3) Without observance of procedure required by law.

The commerce clause argument does not persuade the Court. But for the reasons set out below, the Court is persuaded that the U.S.D.A.’s action was arbitrary and capricious and will set aside such action.

III. DISCUSSION ‘

Is this a matter of interstate commerce?

Article 1, Section 8 Cl. 3 of the United States Constitution, commonly known as the Commerce Clause, provides that Congress shall have plenary power to regulate commerce among the several states. See Gibbons v. Ogden, 9 Wheat 1, 196-197, 6 L.Ed. 23 (1824). This power includes the authority of Congress to delegate its responsibilities to the U.S.D.A., and for the U.S.D.A. thus to regulate matters of interstate commerce coming within its purview.

The Plaintiffs assert, however, that “in practical terms” interstate commerce is not involved here, and that the U.S.D.A. has no power here. Despite the fact that the cattle do cross from Arkansas to Texas, Plaintiffs state, the nature of the business is such that in functional terms the Arkansas cattle are concerned only with Arkansas commerce. Arkansas cattle are sold to Arkansas buyers. They are always kept separate from Texas cattle; and indeed, they are inspected by an inspector from the Arkansas Livestock and Poultry Commission stationed permanently at the Texarkana markets. In sum, Plaintiffs argue, and in realistic terms, the shipment of the Arkansas cattle is an intrastate affair, and moreover, does not have a real and substantial effect on interstate commerce. It appears to the Court, however, that case law dictates a finding that when the livestock cross a state boundary, they are considered to be in interstate commerce. This is especially true when the harm regulated against is the threat of an infectious disease. See e.g. Thornton v. United States, 271 U.S. 414, 425, 46 S.Ct. 585, 588, 70 L.Ed. 1013 (1926). Cf. Maryland v. Louisiana, 451 U.S. 725, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981); Powell v. United States Cartridge Company, 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017 (1950).

Even if this is not so, it has long been held that even a purely intrastate activity substantially affects interstate commerce. State of Texas v. United States, 730 F.2d 339 (5th Cir.1984). See also Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964). Congress, through the U.S.D.A., has chosen to regulate movement of cattle, and its reason is to prevent disease. Accepted commerce clause analysis established that a court must defer to a Congressional finding that a regulated activity substantially affects interstate commerce as long as there is any rational basis for such a finding. State of Texas, supra, at 348. Clearly, there is a rational basis for the regulation here. The interstate movement of cattle may cause the interstate spread of brucellosis. Thus far, it is clear the regulations have a rational basis. There this Court’s inquiry ends.

IV. WAS THE AGENCY’S ACTION ARBITRARY AND CAPRICIOUS?

A. The Scope of Review

In reviewing an action of a Federal agency, this Court is bound to follow a narrow standard of review. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Orleans Audubon Soc. v. Lee, 742 F.2d 901 (5th Cir.1984). The Agency action is entitled to a presumption of regularity; and this Court must not substitute its judgment for that of the agency. Overton Park, supra, 401 U.S. at 415-16, 91 S.Ct. at 823-24. Since there is no argument regarding whether the U.S.D.A. acted within the scope of its authority, acted constitutionally, or whether there was any procedural irregularity, this Court’s review must focus only on whether the agency’s action was arbitrary, capricious or an abuse of discretion. Louisiana Environmental Soc. Inc. v. Dole, 707 F.2d 116 (5th Cir.1983).

Despite the limited standard, this Court does have the power to overturn the agency’s action. The Court “must accord the agency considerable, but not too much deference.” American Petroleum Institute v. E.P.A., 661 F.2d 340, 349 (5th Cir.1981). It is indeed true that an agency’s decision need not be ideal or even perhaps correct to be validated by this Court. Yet the Court must not simply “rubber-stamp” a decision, either. The Court must make a searching and careful review of the facts of an agency action. Overton Park, supra, 401 U.S. at 416, 91 S.Ct. at 823.

In sum, far from washing its hands of the matter, a court must make a thorough, probing in-depth review of the action, and must find that the agency gave at least minimal consideration to the relevant facts. Overton Park, supra, 401 U.S. at 415, 91 S.Ct. at 823; Louisiana Env. Soc., supra, at 119; American Petroleum Inst., supra, at 349. With these guidelines in mind, the Court will proceed to examine the facts of the instant ease.

B. The Requested Exemption

The Plaintiffs in the instant case, after notification of the pending enforcement of the “two-test” requirement, requested that Dr. John Atwell, Deputy Administrator for Veterinary Services of the U.S.D.A., grant an exemption excluding the narrow class of cattle in issue from the requirement.

Plaintiffs did not act without any regulatory basis. A specific provision of the brucellosis regulations provides:

The Deputy Administrator, Veterinary Services, may upon request, in specific cases, permit the interstate movement not otherwise provided for in this sub-part of cattle under such conditions as he may prescribe in each case to prevent the spread of brucellosis. The Deputy Administrator, Veterinary Services will promptly notify the appropriate livestock sanitary official of the states involved of any such action.

9 CFR pt. 78 Sec. 78.12.

Dr. Atwell initially denied the request. Nevertheless, Dr. Atwell agreed to review the Texarkana situation. There is evidence in the record to support a finding that this review was undertaken in large part simply to mollify United States Senator David Pryor of Arkansas, who had made inquiries into the matter, and was not meant to be any “hard look” at the issue. Two U.S. D.A. officials spent one day at each market.

Following the officials’ trip, the exemption was again denied. The Department based its denial on the fact that an exception could not be made for these two livestock markets without making a regulation change which would allow border markets in other Class C states the same rights. There is a dispute over whether Dr. Atwell believed that he lacked authority to grant the exemption, or whether he simply did not wish to grant it. In essence, it seems that Atwell believed that an exemption under Section 78.12 should be limited only to “unique and unforeseen circumstances.” Atwell did not believe those circumstances were present. Whether he had a reasonable basis for holding that belief is the focal point of this lawsuit.

C. The Circumstances: Were They “Unique”?

The Disease

As an initial matter, it should be noted that while brucellosis is a contagious disease, the likelihood of transmission from mere proximity is limited. Brucellosis is basically transmitted through cow’s milk, the aborted fetus of a brucellosis-infected cow, or through the after-birth of an infected cow. Cattle are quite likely to contract brucellosis from sniffing or licking infected material, or from having it infect their water supply. There is little likelihood that an infected Arkansas cow will infect a Texas cow simply by standing next to it. That likelihood is decreased when the cattle are kept separately, as they are at the Texarkana facilities. In fact, the U.S.D.A. allows infected cattle to be sold along with uninfected animals at the same market as long as the infected cattle are marked as animals to be sold for immediate slaughter (meat from infected cattle is fit for human consumption.) The U.S.D.A. obviously recognizes the economic necessity of allowing such a marketing procedure.

The Marketing Procedure at Texarkana

Given this nature of the disease, the Court will consider the safeguards taken by the markets to separate Arkansas and Texas cattle. Each Arkansas animal that enters one of the Plaintiff’s markets is first marked for identification with a U.S.D.A. tag. The animal is then identified as to state of origin, with the name of the owner and a description of the animal being recorded. A red tag is attached to an Arkansas animal; if it has been vaccinated, an orange tag is attached allowing sale even to a Texas buyer. A red-tagged animal must undergo a brucellosis test before it can proceed to sale. When it enters the auction ring, it is identified as an Arkansas animal and buyers are instructed that it may be sold only to an Arkansas buyer and returned to Arkansas, unless it is a slaughter animal. Throughout this procedure the Arkansas cattle are held separately from Texas cattle. An Arkansas inspector is on hand to monitor the sale.

The Impact on the Regulation on the Markets

In August, 1983, when the U.S.D.A. downgraded Arkansas’ brucellosis classification from Class B to Class C, this was apparently the only time that a state’s status has been thus downgraded. The primary effect was to impose the additional testing requirements on cattle moving interstate.

Though the “two-test” requirement applies only to a small number of cattle, it has an impact on the entire market structure. To market all his cattle at the Texarkana markets, an Arkansas cattle producer would have to submit a portion of his cattle to an extra test. Logic dictates, and the Department observed, that the cattle producer will simply take all his cattle to market where no extra test is required for any of them: an Arkansas market.

The Defendant does not dispute that economic hardship will result to the Plaintiffs, though it states its extent cannot be known. The admitted result of Arkansas producers switching to Arkansas markets also raises another question: Since Arkansas buyers will remain in an area where only one test is required, their risk of brucellosis infection will remain the same; and therefore, what good does the two-test requirement do. The Plaintiffs also argue that enforcement of the two-test requirement at these markets may encourage smuggling, ear-tag removal, and misrepresentation of state of origin. These evasions, of course, would serve to damage the brucellosis eradication program.

D. Were These Matters Adequately or Reasonably Considered?

Prior to the downgrading of Arkansas to a Class C state, the U.S.D.A. certified, as required by the Regulatory Flexibility Act of 1980, 5 U.S.C. Sec. 601 et seq (1980) that no regulatory flexibility analysis would be required because the change “would not have a significant impact on a substantial number of small entities.” The U.S.D.A., however, could produce no documents that indicated how the Department reached that conclusion. There are generalized economic reports that concern the cost-benefit justification for public spending on various brucellosis controlled programs. There is no mention, however, of the effect on small entities. Nor does it seem that any study or any supporting documents exist that consider that effect. This Court, of course, is not ruling on the propriety of the Department’s certification. Yet, in light of the now-admitted economic consequences, it does seem that such a certification should be supported. The record indicates the issue was simply ignored when the change was first made and then ignored again when Plaintiffs specifically requested the U.S.D.A. to consider their exemption request.

Moreover, it appears to the Court that the Department’s consideration of whether or not Texarkana is indeed a unique market is flawed. Only by a comparison of the Texarkana situation to other markets does it seem possible to make a reasoned decision with regard to the Plaintiff’s requested exemption. The deposition testimony of the Deputy administrator reveals that he merely “suspects from working in the field that there are other border markets that have the same situation as the Texarkana markets.” But he has pointed to none. It also appears that Arkansas is the only state which has had its classification downgraded. It further appears that the Texarkana markets are the only markets in the United States that have an uninterrupted 20 year history of supervision by animal health authorities of an adjoining state to permit the sale of certain of its state’s cattle in a neighboring state’s market as though the market were physically located within its own state. Mere suspicion on the part of the Department that there are other markets similarly situated is not sufficient to meet the standard required for Department action.

For the Department to argue that the granting of an exception to the Texarkana markets would prompt similar requests from other markets begs the question of an analysis of the Texarkana market. Merely because other markets may call upon the Department to grant similar exceptions does not constitute a basis for refusing to take an in-depth look at Plaintiff’s request. Such reasoning smacks of convenience and ease of administration rather than reasoned examination of a particular market situation.

Finally, from strictly an animal health standpoint, it is not insignificant that the animal health agencies of both Texas and Arkansas supported Plaintiff’s request for an exemption. Obviously, these are the two states most affected by the risk of the disease. Representatives of each of the animal health agencies testified that the market system in place at Texarkana did not pose a significant risk to the spread of brucellosis. While agency expertise deserves deference, no deference is due when the agency action is supported more by reasons of convenience and administration than by searching and careful inquiry into the facts involved.

Accordingly, the Court finds that the Department’s action in denying Plaintiff’s requested exemption was arbitrary and capricious and such action is hereby set aside. This Court has heretofore entered its Order preserving the status quo between the parties. This Order is continued in full force and effect pending remand to the United States Department of Agriculture for further consideration or proceedings consistent with this opinion.

      . Section 603 and 604 of the Regulatory Flexibility Act of 1980, 5 U.S.C. Sections 603, 604, require that when an agency proposes (Section 603) and promulgates (Section 604) a rule subject to Section 553 of the Administrative Procedure Act, 5 U.S.C. Section 553 (1982), it shall prepare and make available to the public an initial (Section 603) and final (Section 604) "regulatory flexibility analysis,” describing inter alia the impact of the rule on small entities. The requirement can be eliminated, however, by the agency head’s certification under Section 605(b), that the rule “will not ... have a significant impact on a substantial number of small entities.”


author: NICKERSON, District Judge.

text:
    The LAW FIRM OF DANIEL P. FOSTER, P.C., Plaintiff, v. Raymond DEARIE, in his Administrative capacity as United States Attorney for the Eastern District of New York; Lee Laster, in his Administrative capacity as Director of the New York Field Division of the Federal Bureau of Investigation; Benjamin Ward, in his Administrative capacity as Commissioner of the New York Police Department; Robert Morgenthau, in his Administrative capacity as District Attorney of the County of New York; and John Does 1-20, Defendants.
    No. 85 C 2316.
    United States District Court, E.D. New York.
    July 17, 1985.
    The Law Firm of Daniel P. Foster, P.C., New York City (Daniel P. Foster, Kit Deeious, New York City, of counsel), .for plaintiff.
    Robert M. Morgenthau, Dist. Atty., New York County, New York City (John W. Moscow, Mark Dwyer, Asst. Dist. Attys. and John J. Malcolm, New York City, of counsel) for state -defendants.
    Raymond J. Dearie, U.S. Atty., Brooklyn, N.Y. (Robert Begleiter, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for federal defendants.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

Plaintiff, a law firm, brought this action for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 alleging a conspiracy between state and federal officials to deprive it of its civil rights. Plaintiff now moves by order to show cause for a preliminary injunction.

The complaint alleges the following. In February 1984 agents of the Federal Bureau of Investigation, New York Police Department (NYPD), and United States Attorney started an investigation of plaintiff in bad faith and for purposes of harassment, without reasonable expectation of obtaining a valid conviction. The agents, pursuant to an unlawfully obtained warrant, conducted an unlawful search of plaintiff’s offices and seizure of its property (February search). By November 1984 agents of the District Attorney (DA) and NYPD began a criminal prosecution of two of plaintiff’s clients in order to continue the bad faith harassment of the law firm. On May 30, 1985 the DA issued a grand jury subpoena duces tecum (subpoena) to plaintiff to produce numerous documents and records, many concerning Mia J. Prior, before a state grand jury.

Plaintiff seeks a declaration that defendants have acted unconstitutionally and an injunction enjoining them from (a) using any materials seized in, or fruits of, the February search against it or its clients, (b) pursuing any investigation based upon those materials, (c) issuing civil .or criminal process to obtain material from plaintiff without first permitting it to adjudicate its rights, (d) pursuing any acts against plaintiff until the federal defendants comply with all previous court orders and (e) engaging in any acts declared unconstitutional. Plaintiff seeks a preliminary injunction granting the identical relief.

This is not plaintiff’s first action before this court. Plaintiff recently moved for an order directing the return of the property seized in the February search and ruling that the material would not be admissible as evidence at any hearing or trial. See Fed.R.Crim.P. 41(e). On the government’s representation that it would return all the property, the court declined to exercise jurisdiction stating that plaintiff would reserve all rights to “make a suppression motion in any district court where a trial is pending.” Ex Parte Decious, No. 85 C 1654, slip op. at 3-4 (E.D.N.Y. June 7, 1985). Familiarity with that order is assumed. Plaintiff’s application for a stay pending appeal was denied by Judge Sifton on June 10, 1985, the same date on which plaintiff filed a notice of appeal. The Court of Appeals for the Second Circuit also denied the stay pending appeal but granted plaintiff’s application for an expedited appeal, which is pending.

The history of this action is roughly as follows. After being served with the subpoena, plaintiff moved to quash in Supreme Court, New York County. On about June 7, 1985, Justice Berkman conducted a sealed hearing pursuant to N.Y.Crim. Proc.Law § 190.50(7), after which she denied the motion and directed plaintiff to comply. It is unclear whether she modified the subpoena before ordering compliance. She denied an application to stay her order. Judge Sandler of the Appellate Division granted an interim stay which a unanimous panel of the Appellate Division subsequently denied on about June 21, 1985. The appeal to the Supreme Court, Appellate Division, is still pending.

Plaintiff then sought relief in the District Court for the Eastern District of New York. Plaintiff appeared before Judge Sifton on June 21, 1985 seeking an order temporarily restraining defendants from executing any process or seeking to enforce any order against it. That motion was denied, as was a motion for a stay pending appeal. A hearing on the motion for a preliminary injunction was set for June 26, 1985 before this court, provided that plaintiff file a complaint on June 24 showing federal jurisdiction. On June 25 plaintiff again appeared before Judge Sifton seeking a temporary restraining order which Judge Sifton treated as an application for reconsideration and denied. Plaintiff immediately filed a notice of appeal from that order. This court heard oral argument on the motion for a preliminary injunction on June 26, 1985.

To prevail in a motion for a preliminary injunction plaintiff must establish (1) irreparable harm and (2) either (a) probable success on the merits or (b) sufficiently serious ground for litigation and a balance of hardships tipping decidedly in its favor. See, e.g., Jackson Diary, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). The court need not consider the first requirement since plaintiff fails to satisfy the second.

The immediate harm plaintiff alleges is that complying with the subpoena severely impairs its ability to function as a law firm. This allegation and many others in plaintiffs papers, and the fact that plaintiff started this action as soon as it became apparent that the state court would neither quash the subpoena nor grant a stay pending appeal, indicate that this action is essentially a collateral attack in federal court on the subpoena issued in connection with a state grand jury investigation.

Plaintiff contends that the February search was unconstitutional. Daniel P. Foster, President of plaintiff, is of the belief that the state grand jury investigation is “directly derivative” of that search. Thus, were the court to grant the relief sought, the immediate and direct effect would be to enjoin the state court from enforcing its order to comply with the subpoena and the state from pursuing a grand jury investigation, which is a criminal proceeding. See United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 376 (1943); Notey v. Hynes, 418 F.Supp. 1320, 1326 (E.D.N.Y.1976).

The court has the power to enjoin state criminal proceedings pursuant to section 1983 of Title 42. See Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). Nonetheless, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and the many cases which follow it hold that principles of equity, comity and federalism require federal courts generally to abstain from interfering with such proceedings. This doctrine plainly applies to actions in which plaintiffs ask federal courts to enjoin the use of materials, and information derived from those materials, in state criminal proceedings on the ground that they were unconstitutionally obtained. See Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975) (when plaintiff claimed that state indictment was fruit of unconstitutionally coerced testimony before a grand jury, federal court should not have intervened either to enjoin the criminal prosecution or give declaratory relief as to the admissibility of the testimony); Perez v. Ledesma, 401 U.S. 82, 84, 91 S.Ct. 674, 676, 27 L.Ed.2d 701 (1971) (the admissibility of evidence in state criminal prosecutions should ordinarily be resolved by state tribunals) (citing Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951)). Indeed, in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), a case pre-dating the Younger case and upon which plaintiff relies, the Supreme Court stated that it “is difficult to think of a case in which an accused could properly bring a state prosecution to a halt while a federal court decides his claim that certain evidence is rendered inadmissible by the Fourteenth Amendment.” Id. at 485 n. 3, 85 S.Ct. at 1120 n. 3.

The court may intervene, however, where a plaintiff shows that the harm threatened is not merely irreparable but also “great and immediate.” Younger, 401 U.S. at 46, 91 S.Ct. at 751. This might be shown by proving “harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction.” Perez, 401 U.S. at 85, 91 S.Ct. at 676. While not directly addressing the issue of abstention, plaintiff apparently contends that this action fits within this exception to the Younger doctrine.

The complaint alleges that state and federal defendants are acting jointly for purposes of harassing plaintiff, in bad faith and without reasonable hope of obtaining valid convictions. Although plaintiff complains of a “pattern” of harassment by defendants, the only events cited to illustrate this pattern are the February search and its aftermath and the state investigation commenced by November of 1984. Even if plaintiff were the subject of several searches and investigations, such circumstances, standing alone, do not necessitate a finding of bad faith or harassment. Cf. Hicks v. Miranda, 422 U.S. 332, 351, 95 S.Ct. 2281, 2292, 45 L.Ed.2d 223 (1975) (where “each step in the pattern of seizures” was authorized by judicial warrant or order, finding of bad faith harassment not necessitated, even if courts were in error on issues of law). In any event, the record is devoid of any evidence to support plaintiffs belief that the February search and the state investigation are connected in any way.

To contradict plaintiffs allegations of a pattern of harassment, Assistant DA Dwyer has represented to the court that the DA’s office is not familiar with the relationship between plaintiff and the United States Attorney and that it had nothing to do with the February search. The affidavit submitted by Assistant DA Moscow, which details the history of the state investigation, supports these representations.

That affidavit states the following. On July 26, 1984 Mia J. Prior left a group with which she had previously been associated. On July 31, 1984, Daniel P. Foster learned that a check for $7,700 had been sent to Prior’s bank account. Harold Jones and Mark Orrisch went to the bank with a check made out to Jones for $7,700 and a letter of authorization, both ostensibly signed by Prior. They received the money after a bank officer called Prior’s number, which was that of plaintiff, and spoke with a woman falsely identified as Prior who authorized the transaction.

When Prior learned of the transaction, the affidavit continues, she claimed that her name had been forged. This was later confirmed by handwriting analysis. The film of the transaction at the bank shows Orrisch and Jones at the teller’s window. In September of 1984 they were arrested and charged with grand larceny and criminal possession of a forged instrument. Kit Decious and Amanda Reid, members of plaintiff, represented them. In November 1984 the two attorneys told Assistant DA Soybel that Orrisch and Jones were messengers of plaintiff and that the firm had a right to withdraw money from Prior’s account based upon a power of attorney which they displayed. Soybel subpoenaed and finally obtained that power of attorney. On May 20, 1985 Soybel received a handwriting report from the Police Department Laboratory which certified that the power of attorney presented to him as genuine by Decious and Reid, and notarized and witnessed by Decious, had been forged.

Upon an application by Assistant DA Moscow, on June 24, 1985 Judge Altman of the New York Supreme Court disqualified Decious and Reid from representing Orrisch and Jones partly because the attorneys and plaintiff were targets of an ongoing grand jury investigation. Moscow says that the grand jury is investigating crimes committed after July 1, 1984, including the two that Orrisch and Jones are charged with as well as forgery, scheme to defraud, conspiracy to commit those crimes, and possibly charges based upon producing a forged power of attorney as evidence in a criminal proceeding.

Based upon the affidavit of Assistant DA Moscow, and upon the fact that plaintiff has submitted nothing but conclusory allegations in its behalf, the court concludes that plaintiff has not established, and is not likely to establish, that the state investigation has any connection with the February search, that it is part of a pattern of harassment or that it was undertaken in bad faith without a legitimate hope of obtaining valid convictions.

Plaintiff also alleges that the procedures afforded in the state courts are inadequate to challenge the subpoena. Plaintiff says that it raised its constitutional claims in the motion to quash, but that the judge found it was an inappropriate time to adjudicate those issues. The state system provides an appellate structure in which plaintiff may challenge this ruling, which in fact it is doing. That plaintiff has been unable to obtain a stay pending appeal and is dissatisfied with the decisions of the state courts is, of course, no reason for this court to intervene. See Huffman v. Pursue, Ltd., 420 U.S. 592, 610, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (where plaintiff has appellate remedies available in state court, truncating exhaustion requirement is not permitted just because he “believes that his chances of success on appeal are not auspicious”). Moreover, even if plaintiff could not properly raise his constitutional claims in the procedure it invoked, and even if the state court had rejected those claims at an interlocutory stage, the court would not be justified in intervening absent a showing of bad faith harassment.

The court finds that injunctive relief would interfere with a pending state criminal proceeding, that plaintiff has not shown the bad faith harassment necessary to warrant such interference, and that plaintiff is unlikely to be able to make such a showing. Since there is not a likelihood of eventual success on the merits, and important public interests would be thwarted were the court to grant a preliminary injunction, the motion is denied. This decision is consonant with the spirit of Ex Parte Decious, supra, in which the court deemed it more appropriate for the court where a proceeding is pending to determine the constitutionality of a search and seizure and the admissibility of any information derived from that search and seizure. So ordered.