author: MYRON H. THOMPSON, District Judge.

text:
    Nellie P. THOMAS, Mamie Johnson, and Robert L. Benford, individually and on behalf of all others similarly situated, Plaintiffs, State of Alabama, ex rel. Charles A. Graddick as Attorney General, and Charles A. Graddick as Attorney General, Plaintiff-Intervenors, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, Defendant.
    Civ. A. No. 83-T-826-N.
    United States District Court, M.D. Alabama, N.D.
    Aug. 15, 1984.

      Lawrence F. Gardella, Legal Services Corporation of Alabama, Montgomery, Ala., Joseph E. Carr, IV and Gabrielle Wehl, Legal Services Corporation of Alabama, Mobile, Ala., for plaintiffs.
    Herndon Inge, III, Inge, McMillan & Inge, Mobile, Ala., for Joseph Thames, Jr., member of Plaintiff Class.
    Rosa H. Davis, Russell C. Stoddard, Asst. Attys. Gen., Montgomery, Ala., for plaintiff-intervenors.
    John C. Bell, U.S. Atty., Calvin C. Pryor, Asst. U.S. Atty., Montgomery, Ala., Randolph W. Gaines, Deputy Asst. General Counsel for Litigation, Gabriel L. Imperato and Anne Sirota, Dept, of Health & Human Services, Baltimore; Md., for defendant.
   MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

Plaintiffs Nellie P. Thomas, Mamie Johnson and Robert L. Benford, who are Alabama citizens, have brought this class action lawsuit challenging the refusal of defendant Secretary of Health and Human Services to follow the settled law of the Eleventh Circuit in terminating the payment of benefits under Title II of the Social Security Act, 42 U.S.C.A. §§ 401-433, and Title XVI of the Act, 42 U.S.C.A. §§ 1381-1385. The State of Alabama and its Attorney General have also been allowed to intervene as plaintiffs.

Pointing to Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982), the plaintiffs claim that the Secretary may not terminate benefits without producing evidence that a recipient’s medical condition has substantially improved since the initial finding of disability. The Secretary, on the other hand, contends that she is not bound by Simpson and that she may terminate benefits at any time upon a new finding, based on current evidence, that a prior recipient is not disabled, notwithstanding the complete absence of evidence that the recipient’s medical condition has improved.

This lawsuit is now before the court on the plaintiffs’ (1) request for a class-wide preliminary injunction and (2) request for certification of a plaintiff class. For reasons which follow, both requests are due to be granted.

I. BACKGROUND

Titles II and XVI of the Social Security Act provide benefits to persons determined to be “disabled” and entitled to benefits under the Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) programs. Under both Titles, disability is defined as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve (12) months.” 42 U.S.C.A. §§ 423(d)(1)(A), 1382c(a)(3)(A).

A recipient is entitled to disability benefits only so long as the disability continues to exist. 42 U.S.C.A. §§ 423(a)(1), 1383(a)(5). The procedure for review of continued eligibility for benefits is essentially similar to the procedure followed in the initial application for benefits. A recipient of benefits is contacted by the Disability Determination Division of the Alabama Department of Education, the state agency working under contract with the Secretary to make disability determinations. The recipient is told that his or her case is being reviewed to determine whether he or she is still disabled. If the state agency determines that the recipient is no longer disabled the recipient is so informed, and the Secretary terminates benefits shortly thereafter. A recipient dissatisfied with the initial determination is afforded an administrative review procedure, which includes an opportunity for reconsideration by the state agency, a hearing before a Social Security administrative law judge and a review by the Social Security Appeals Council at the discretion of the council. A recipient still dissatisfied may seek review in the federal courts. 42 U.S.C.A. § 405(g). Also, under certain circumstances, persons whose benefits have been terminated may continue to receive them until a determination adverse to their claim is made by the administrative law judge. 42 U.S.C.A. § 423(g)(1).

In 1980, Congress mandated that disability benefits eligibility be reviewed at least once every three years. 42 U.S.C.A. § 421(h)(1). This mandate for continuing disability review was implemented in Alabama in early 1981, causing an approximately five-fold increase in the number of cases reviewed by the state agency. Prior to this time, eligibility review had been conducted on an irregular basis under a “medical diary” procedure which targeted certain cases in which disabilities might be expected to cease.

In the late 1970’s or early 1980’s, the Secretary altered the standard for periodic review of disability cases. Under the former standard, benefits were continued unless there was evidence that the medical condition for which the recipient had originally been awarded benefits had significantly improved. In other words, the review standard focused on whether there had been a medical improvement. Under the new standard, current medical evidence generated in the twelve months preceding the review is examined to determine whether the recipient has a present condition considered disabling. In other words, the previous finding of disability is given no effect and the recipient’s condition is evaluated as if he or she were presenting an initial application for disability benefits. No effort is made to determine whether the condition upon which the original finding of disability was based has improved. See 20 C.F.R. §§ 404.1579, 404.1586, 404.1594, 416.994; 45 Fed.Reg. 55,568 (1980).

In 1982, the Eleventh Circuit Court of Appeals in Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982), expressly rejected the Secretary’s use of the current evidence standard, concluding instead that there must be some evidence of medical improvement before a recipient’s benefits may be terminated. The appellate court stated that “[i]f ... the evidence in a continuation case is substantially the same as the evidence had been in the initial disability benefits request case, benefits must be continued. Otherwise, termination of benefits will often depend not on a finding of changed condition, but simply on the whim of a changed [Administrative Law Judge].” 691 F.2d at 969.

The Secretary refused to comply with Simpson except when directed to do so in a specific case. She continued to limit her administrative review of continuing disability cases to current medical evidence, with no effort at comparing that evidence with the evidence that supports the initial finding of disability.

The Secretary’s change in standards and her refusal to comply with Simpson were more than semantic. The application of the standard has led to the termination of disability benefits in a flood of cases in Alabama.

Among the many who had their benefits terminated under the current evidence standard are plaintiffs Nellie P. Thomas, Mamie Johnson, and Robert L. Benford. Thomas was initially found disabled due to a back impairment and received Title II benefits. Johnson was initially found disabled due to coronary and disc disease and received Title II and Title XVI benefits. And Benford was initially found disabled due to mental impairments and received Title II benefits. In each case, the administrative law judge who determined whether the plaintiff was entitled to continued disability benefits focused entirely on the plaintiff’s present condition. No comparison was made with the evidence which supported the original determination of disability, nor was there a finding that the plaintiff’s condition had improved.

The plaintiffs have now brought this class action lawsuit challenging the Secretary’s systematic refusal to comply with the law of the Eleventh Circuit unless directed to do so in a specific case by a federal court. The plaintiffs seek a preliminary injunction requiring that the Secretary immediately comply with Simpson and restore those benefits terminated under the current evidence standard. The-benefits are to be restored until the recipients have had their cases reviewed under the Simpson standard. The plaintiffs also seek to represent a class of all past and present Alabama disability benefits recipients who have had or will have their benefits terminated by application of the current evidence standard.

After the plaintiffs had their benefits terminated and in response to public criticism of the Secretary’s actions, the Governor of the State of Alabama directed on September 19, 1983, that the state agency halt initial processing of benefits termination recommendations. This order did not affect recipients already in the review process. Later, on April 13, 1984, the Secretary publicly announced a moratorium suspending reviews of, and continuing or restoring benefits in, continuing review cases where persons have not received a “final decision” from the Secretary. The moratorium does not apply to claimants who have cases now pending in the federal courts or who have cases that have been remanded by the courts to the Secretary. Nor does it apply to persons who failed to pursue cases, through the administrative process in a timely fashion, or who failed to seek judicial review within the time allowed. And it does not apply to reviews conducted under the “medical diary” procedure.

II. REQUEST FOR PRELIMINARY INJUNCTION

In order for a preliminary injunction to issue, the district court must be satisfied that the party seeking injunctive relief has clearly met each of the following four prerequisites: (1) that there is a substantial likelihood of success on the merits, (2) that without the relief the party seeking the injunction will suffer irreparable harm, (3) that the threatened injury to the party seeking relief outweighs the threatened injury to the party opposed, and (4) that the public interest will not be disserved by granting the injunctive relief. Shatel Corp. v. Mao Ta Lumber and Yacht Corp., 697 F.2d 1352, 1354-55 (11th Cir. 1983). The plaintiffs have satisfied these prerequisites.

1. Substantial Likelihood of Success on the Merits

The plaintiffs have established a very high likelihood of success on the merits.

The law of this circuit, announced in Simpson, clearly requires that disability benefits not be terminated without substantial evidence of improvement in the recipient’s condition. 691 F.2d at 969. And more recently, the appellate court further observed that proper application of this standard requires a comparison of the current medical evidence with the evidence upon which the recipient was originally found disabled. Vaughn v. Heckler, 727 F.2d 1040, 1043 (11th Cir.1984) (per curiam).

The medical improvement standard, or something very close to it, has been widely applied in the federal appellate courts, and “there does not appear to be any significant circuit conflict on this point at present,” Heckler v. Lopez, 463 U.S. 1328, -, 104 S.Ct. 10, 12 (1983) (Rehnquist, Circuit Justice). See, e.g., Dotson v. Schweiker, 719 F.2d 80, 82 (4th Cir.1983); Kuzmin v. Schweiker, 714 F.2d 1233, 1237-38 (3rd Cir.1983); Patti v. Schweiker, 669 F.2d 582, 586-87 (9th Cir.1982); Hayes v. Secretary of Health, Education and Welfare, 656 F.2d 204, 206 (6th Cir.1981).

Nonetheless, the Secretary refuses to apply the medical improvement standard except when directed to do so by a federal court in a specific case. She continues to limit her administrative review to current medical evidence, with no effort at comparing that evidence with the evidence that supported the original finding of disability.

The Secretary makes at least two arguments in support of her actions. First, she argues that the medical improvement standard is erroneous. This argument is not appropriate for consideration by this court.' As a district court, this court is bound to follow the law as announced by the Eleventh Circuit in Simpson and recently reaffirmed in Vaughn. See Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th Cir.1981) (en banc).

Second, she argues that she is empowered, like the courts, to interpret the law. The court agrees that the Secretary is empowered by law to promulgate regulations necessary for the effective administration of the Social Security system; and it follows naturally that she must interpret the law to make these regulations. However, it is a fundamental precept of our government that the federal judiciary is supreme in the exposition of federal law. Cooper v. Aaron, 358 U.S. 1, 18, 78 S.Ct. 1401, 1409-10, 3 L.Ed.2d 19 (1958); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). Thus, the Secretary’s interpretation of the law is inferior to the interpretations made by courts of competent jurisdiction. With some modification to meet present facts, what the former Fifth Circuit said in N.L.R.B. v. Gibson Products Co. of Washington Par., La., Inc., 494 F.2d 762 (5th Cir.1974), is apposite here:

[;Simpson ] is the law of this Circuit and is binding on the [Secretary], however great [her] displeasure with it, as it is on us. It is the law which all must follow until such time as the Court en banc overrules the principle or the United States Supreme Court reaches a contrary decision.

494 F.2d at 766.

In conformity with this precept, the Social Security Act recognizes the primacy of the courts in determining the law. Although the Act provides that “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive,” the Act further provides that the actions of the Secretary are subject to judicial review to determine whether the Secretary has complied with the law. 42 U.S.C.A. § 405(g) (emphasis added). See also 42 U.S.C.A. § 1383(c)(3) (incorporating § 405(g) by reference).

Therefore, in refusing to follow the law of this circuit as announced in Simpson, the Secretary has acted and is acting outside the law, flouting both the statutory and constitutional law of this land.

2. Irreparable Injury

The evidence before this court reflected that the plaintiffs and members of the class are now unable to pay for medicines, clothing, shelter, food, and transportation because of the termination of their benefits. As a result, many have lost or are in danger of losing major possessions, many now suffer from anxiety, depression and a substantial decline in health, and some have even died. Retroactive restoration of benefits would obviously be inadequate to remedy these hardships. See Lopez v. Heckler, 725 F.2d 1489, 1497 (9th Cir.1984) (“[S]ome class plaintiffs have already died or suffered further illness as a result of the Secretary’s action”); Hyatt v. Heckler, 579 F.Supp. 985, 995 (D.N.C.1984) (“The termination and the unjustified denial of Social Security disability benefits cause irreparable harm to eligible persons.”)

3. Relative Threatened Harms

As the Ninth Circuit, faced with a case identical to the instant, stated,

[pjlaintiffs do not attempt to match in dollars and cents the monetary harms that will allegedly be suffered by the government. Yet the physical and emotional suffering shown by plaintiffs in the record before us is far more compelling than the possibility of some administrative inconvenience or monetary loss to the government. He * * H* Hs *
Faced with such a conflict between financial concerns and preventable human suffering, we have little difficulty concluding that the balance of hardships tips decidedly in plaintiffs’ favor.

Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir.1983) (on emergency motion for partial stay pending appeal).

4. Public Interest

Titles II and XVI reflect a public mandate for the provision of funds to meet the needs of persons unable to work due to disability. The public interest therefore commands that this court take all necessary and appropriate steps to assure that the Secretary fully meets her obligations under Titles II and XVI. Obviously, her paramount obligation under these Titles is compliance with the law.

Furthermore,

society as a whole suffers when we neglect the poor, the hungry, the disabled, or when we deprive them of their rights or privileges____ It would be tragic, not only from the standpoint of the individuals involved but also from the standpoint of society, were poor, elderly, disabled people to be wrongfully deprived of essential benefits for any period of time.

Lopez v. Heckler, 713 F.2d at 1437.

III. REQUEST FOR CLASS CERTIFICATION

The plaintiffs have moved pursuant to Fed.R.Civ.P. 23(a) & (b)(2) for a plaintiff class defined as follows:

[A]ll persons in the State of Alabama:
a. Who have applied for disability benefits under the Social Security Disability Insurance (“SSDI”) or the Supplemental Security Income (“SSI”) programs or both;
b. Who have been found by the Secretary to be under a disability as defined in the Social Security Act and determined to be eligible for monthly disability benefits under either the SSDI or the SSI program or both;
c. Who have had or will have their disability benefits terminated without the defendant Secretary finding that there has been a change in their medical condition since the time that she determined that they were under a disability or without the defendant Secretary according any presumptive effect to the prior determination of disability; and
d. Who are not ineligible for SSDI or SSI for any of the following reasons: return to substantial gainful activity; whereabouts becoming unknown; failure to cooperate; other financial factors; or due to an admitted recovery from disability.

The question of class certification pursuant to Rule 23(a) & (b)(2) is a procedural one distinct from the merits of the action. Garcia v. Gloor, 618 F.2d 264, 267 (5th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981); Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973) (en banc). See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152-53, 40 L.Ed.2d 732 (1974). Nevertheless, the court must “evaluate carefully the legitimacy of the named plaintiffs plea that he is a proper class representative under Rule 23(a).” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). To meet the requirements for a class under Rule 23(a) & (b)(2), the class must be “so numerous that joinder of all members is impracticable,” Rule 23(a)(1); there must be questions of law or fact common to the class, Rule 23(a)(2); the claims or defenses of the representative parties must be typical of the claims or defenses of the class, Rule 23(a)(3); the representative parties must be able to “fairly and adequately protect the interest of the class,” Rule 23(a)(4); and the “party opposing the class” must have “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole,” Rule 23(b)(2).

The named plaintiffs have met these requirements. The putative class involves thousands of persons. It is thus impracticable to join them all. The legal issue or claim presented — that the Secretary has refused to comply with Simpson — is common for all members of the putative class. The named plaintiffs have fairly and adequately protected the interest of the class, and there is no reason to doubt that they will continue to do so. And finally, the Secretary has acted on grounds generally applicable to the class, thereby making any injunctive and declaratory relief appropriate to the class as a whole.

The court’s inquiry into the appropriateness of certifying a plaintiff class does not end here, however. The Secretary contends that the court is without jurisdiction to certify a class.

The jurisdiction of the court has been invoked pursuant to 42 U.S.C.A. § 405(g), the statutory provision authorizing judicial review of decisions of the Secretary. Section 405(g) provides in relevant 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.

This section is viewed as generally specifying two requirements for judicial review: (1) a final decision made after a hearing; and (2) commencement of a civil action within 60 days after the mailing of notice of such decision, or such further time as the Secretary may allow. The Supreme Court has held that class-based relief under section 405(g) is not inconsistent with the need for case-by-case adjudication, so long as the putative class meets the requirements of section 405(a) as well as Rule 23(a) & (b)(2). Califano v. Yamasaki, 442 U.S. 682, 698-701, 99 S.Ct. 2545, 2556-57, 61 L.Ed.2d 176 (1979).

1.

The final decision requirement of section 405(g) has two elements, the first non-waivable and the second waivable. The nonwaivable element is that a claim must have been presented to the Secretary; and the waivable element is that the administrative remedies prescribed by the Secretary must have been exhausted. Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976).

Some courts have indicated that the mere termination of benefits satisfies the nonwaivable presentation element. See, e.g., Kuehner v. Schweiker, 717 F.2d 813, 817 (3d Cir.1983), petition for cert. filed, sub nom. Heckler v. Kuehner, — U.S. —, 105 S.Ct. 376, 83 L.Ed.2d 312 (1984); Ellison v. Califano, 546 F.2d 1162, 1164 (5th Cir.1977); Kennedy v. Harris, 87 F.R.D. 372, 376 (S.D.Cal.1980). In Lopez v. Heckler, 725 F.2d 1489 (9th Cir.1984), the Ninth Circuit explained that underlying these cases' “is the theory that the claimant’s failure to report that his disability has ceased constitutes a continuing claim for benefits and that that claim is denied when the Secretary terminates the benefits. All of the class members here have had their benefits terminated by the Secretary and have thus met the presentation requirement as defined by these courts.” 725 F.2d at 1503.

Nevertheless, in this case the court understands that each class member has returned to the Secretary a completed questionnaire indicating that he or she is still disabled and entitled to benefits. The Supreme Court has already found such responses adequate to satisfy the non-waivable presentation element. Mathews v. Eldridge, 424 U.S. at 329, 96 S.Ct. at 900. The plaintiffs have satisfied the presentation element.

The plaintiffs have also satisfied the exhaustion element. In Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), the Supreme Court observed that:

Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.

422 U.S. at 765, 95 S.Ct. at 2467. Thus, exhaustion is not required where the Secretary has taken a firm position on the determinative issue which is statutory or constitutional, and exhaustion by definition would be futile. Furthermore, the Supreme Court has recognized that the exhaustion element may be waived over the Secretary’s objection in cases “where a claimant’s interest in having a particular issue resolved promptly is so great that deference to the agency’s judgment is inappropriate.” Mathews v. Eldridge, 424 U.S. at 330, 96 S.Ct. at 900.

The circumstances depicted above are present here. The Secretary has taken a firm position on an issue of law, not fact, that is for the most part determinative of the class members’ cases. Furthermore, the class members need to have this issue resolved immediately. Further administrative review of their claims would not vindicate their legal right to have the Secretary apply the correct standard before their benefits are terminated. Moreover, the evidence reflects that the Secretary’s policy is causing suffering and despair on a mass scale. Retroactive restoration of benefits could not begin to compensate these victims. Under these circumstances, the court is compelled to conclude that the exhaustion element must be waived, and thus must be considered satisfied.

2.

The court recognizes that there is some authority to support the Secretary’s position that this court is without jurisdiction over those claimants who. failed to meet the 60-day requirement of section 405(g). See Heckler v. Lopez, — U.S. —, 104 S.Ct. 2164, 80 L.Ed.2d 548 (1984) (application for stay); Heckler v. Lopez, — U.S. —, 104 S.Ct. 221 (1983) (Stevens, J., concurring in part and dissenting in part) (on emergency application for stay); Heckler v. Lopez, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed.2d 1431 (1983) (Rehnquist, Circuit Justice) (on emergency application for stay). Nonetheless, for the following reasons the court rejects at this time the Secretary’s efforts to limit the class to only those who have met this requirement. First, there is support in the law for the plaintiffs’ position that the 60-day requirement is not jurisdictional, and thus may be waived in unusual circumstances such as those presented in the present case. See Lopez v. Heckler, 725 F.2d 1489, 1504-07 (9th Cir.1984). Second, it appears that this issue may soon be resolved by the United States Supreme Court. Heckler v. Lopez, — U.S. —, 104 S.Ct. 2164, 80 L.Ed.2d 548 (1984). Should the Supreme Court find that the requirement does preclude jurisdiction in cases such as the present one, this court need only redefine the class.

3.

Although for purposes of provisional certification the plaintiffs have satisfied the requirements of Rule 23(a) & (b)(2) and section 405(g), the court declines to certify the class as broadly as requested by the plaintiffs. The thrust of this lawsuit is that the Secretary has failed to comply with Simpson. The court will therefore limit the class to those recipients whose benefits were terminated on or after the date Simpson was decided, November 12, 1982.

IV.

For the reasons given above, the court will enter a preliminary injunction requiring, among other things, that the Secretary comply with Simpson and restore benefits terminated under the current evidence standard. However, the restoration requirement will not extend to the entire plaintiff class.

Several Justices of the United States Supreme Court have expressed substantial concern whether the 60-day requirement in section 405(g) is waivable. Heckler v. Lopez, — U.S. —, 104 S.Ct. 2164, 80 L.Ed.2d 548 (1984) (application for stay); Heckler v. Lopez, — U.S. —, 104 S.Ct. 221, 78 L.Ed.2d 217 (1983) (Stevens, J., concurring in part and dissenting in part) (on emergency application for stay); Heckler v. Lopez, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed.2d 1431 (1983) (Rehnquist, Circuit Justice) (on emergency application for stay). In light of these concerns and rulings, the court will not extend injunctive relief to those members of the plaintiff class who received “final decisions” from the Secretary more than 60 days before the filing of the class action aspect of this lawsuit on December 28, 1983, i.e. October 29, 1983, and who did not seek judicial review of those decisions in a timely manner.

An appropriate order will be entered.

ORDER

In accordance with the memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court:

(1) That the plaintiffs’ January 13, 1984, motion for class certification, as renewed on August 6, 1984, be and it is hereby granted to the extent hereafter set forth;

(2) That the following class be and it is hereby certified, to be represented by named plaintiffs Nellie P. Thomas, Mamie Johnson, and Robert L. Benford:

All persons in the State of Alabama:

a. Who have applied for disability benefits under the Social Security Disability Insurance (“SSDI”) or the Supplemental Security Income (“SSI”) program or both;
b. Who have been found by the Secretary to be under a disability as defined in the Social Security Act and determined to be eligible for monthly disability benefits under either the SSDI or the SSI program or both;
c. Who had their disability benefits terminated on or after November 12, 1982, or will have their disability benefits terminated without the defendant Secretary finding that there has been a change in their medical condition since the time that she determined that they were under disability, or without the defendant Secretary according any presumptive effect to the prior determination of disability; and
d. Who are not ineligible for SSDI or SSI for any of the following reasons: return to substantial gainful activity; whereabouts becoming unknown; failure to cooperate; other financial factors; or an admitted recovery from disability.

It is the further ORDER, JUDGMENT, and DECREE of the court:

(1) That the plaintiffs’ December 28, 1983, motion for preliminary injunction and January 13, 1984, motion for class-wide preliminary injunction, as renewed on August 6,1984, be and they are hereby granted;

(2) That the defendant’s February 2, 1984, motion in opposition to the plaintiffs’ request for preliminary injunction be and it is hereby denied;

(3) That defendant Secretary of the Department of Health and Human Services be and she is hereby ENJOINED and RESTRAINED:

(i) From failing to apply the “medical improvement standard” as set forth in Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982), in all pending and future continuing disability reviews in Alabama, until further order of the court; and

(ii) From failing to restore immediately disability benefits under Title II and XVI of the Social Security Act to all members of the plaintiff class, except those members who received “final decisions” from the Secretary before October 29, 1983, and who did not seek judicial review of those decisions in a timely manner; and from failing to continue making payment of benefits to members of the plaintiff class until their cases have been reviewed under the “medical improvement standard”;

(4) That the defendant is DIRECTED to file with the court by October 1, 1984, a detailed report of her efforts to comply with this order; and

(5) That the defendant shall provide counsel for the plaintiffs access to files sufficient to enable them to verify compliance with this order.

      . Relying on United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984) the Secretary contends that she is not bound to apply Simpson to individual disability termination determinations. The court disagrees. In Mendoza, the Supreme Court held simply that the doctrine of nonmutual collateral estoppel does not apply to the United States. The Court reasoned that it would be unfair and would entail a waste of government resources to require the government to appeal from every adverse decision of a district court. Before the government may be precluded from relitigating a point of law in later cases within a circuit, the government is entitled to a decision on that point from the circuit court of appeals. In the Eleventh Circuit, the Secretary has had her chance to litigate the proper standard to be applied to disability termination hearings. That standard was announced in Simpson and is now the law of this circuit.

      . The plaintiffs also contend that this court has mandamus jurisdiction under 28 U.S.C.A. § 1361. The court does not reach this contention at this time.

      . Other reported cases in which similar or more extensive injunctive relief has been granted include Lopez v. Heckler, 725 F.2d 1489 (9th Cir. 1984); Holden v. Heckler, 584 F.Supp. 463 (N.D. Ohio 1984); Avery v. Heckler, 584 F.Supp. 312 (D.Mass.1984); Hyatt v. Heckler, 579 F.Supp. 985 (D.N.C.1984).


source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    Carlos VEGA, Plaintiff, v. Richard W. DeROBERTIS, et al., Defendants.
    No. 83 C 5426.
    United States District Court, N.D. Illinois, E.D.
    Sept. 10, 1984.
    Supplemental Opinion and Order Oct. 3,1984.

      A. Sidney Katz, Eric C. Cohen, and Jacqueline A. Leimer, Chicago, 111., for plaintiff.
    Neil F. Hartigan, Stephen G. Kehoe, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Carlos Vega (“Vega”), an inmate confined at Stateville Correctional Center (“Stateville”) in Joliet, Illinois, has sued several defendants in their official capacities as officers of the Illinois Department of Corrections (“IDOC”). Vega claims defendants, acting under color of state law, violated his rights under the Fifth, Eighth and Fourteenth Amendments. Accordingly he sues under 42 U.S.C. § 1983 (“Section 1983”) for declaratory and injunctive relief as well as compensatory and punitive damages.

Though his complaint is in two counts, Vega actually asserts three kinds of injury:

1. Allegedly as a result of defendants’ conduct in connection with three separate disciplinary proceedings, Vega was found guilty and punished on at least some of the charges brought despite the insufficiency of the evidence adduced against him to establish guilt. That assertedly violated his due process right to be found guilty only on the basis of sufficient evidence.
2. Other álleged facts suggest the disciplinary proceedings were initiated in retaliation against Vega for his efforts as a law clerk on behalf of inmates prosecuting claims before administrative bodies and the courts. Such claimed discriminatory treatment invokes the Equal Protection Clause.
3. Vega’s punishment, and the maintenance of records falsely showing he had violated institutional rules, under the circumstances described in the two preceding paragraphs are said to violate his Eighth Amendment guaranty against cruel and unusual punishment.

Defendants have now moved for summary judgment under Fed.R.Civ.P. (“Rule”) 56. For the reasons stated in this memorandum opinion and order, their motion is granted.

Facts

Vega complains of three separate incidents within the space of five months (one on May 17, one on August 4 and one on September 11, 1983), each resulting in disciplinary proceedings against him. When those incidents occurred Vega worked in the Stateville law library as a law clerk (a position he continues to hold). In that capacity he has assisted Stateville inmates in prosecuting claims before administrative agencies and the courts. Vega Aff. ¶ 2.

On May 17 Vega was ordered by defendant Officer Victor Stone (“Stone”) to stand for the morning count. Established procedure, until recently not vigorously enforced by Stateville officials, requires “all inmates ... to get out of bed and stand near the front of the cell until the gallery is counted.” PI. Ex. A. Even though neither of Vega’s cellmates was standing at the time, Vega says he alone was ordered to his feet. After Vega had refused two orders to stand, Stone ordered him to surrender his identification card. Again Vega refused. After further orders and refusals, Vega finally remarked:

I am tired of this fucking bullshit, that is the way fucking riots start, you fucking people with your fucking bullshit.

At that point Vega surrendered his identification card. See PI. Exs. B, D.

As a result of the confrontation Stone issued an Inmate Disciplinary Report (“IDR”) charging Vega with several violations, including intimidation or threats, insolence and disobedience of a direct order. PI. Ex. B. When he appeared before the Adjustment Committee (“AC”) on the charges, Vega admitted both his refusal to stand and his quoted statement. Instead he argued his conduct had not risen to the level of intimidation or threats as defined in the disciplinary regulations.

At the first grievance level the AC found Vega guilty on the basis of his admission of the facts stated in the IDR. It ordered Vega (1) transferred to segregation and (2) demoted to “C” grade (both for thirty days) and also (3) deprived of thirty days of statutory good conduct credits. PI. Ex. C. Vega then filed a grievance with the IIB, arguing the evidence before the AC was insufficient to sustain a finding of guilt on the charge of intimidation or threats. PI. Ex. D. While the IIB denied redress, the Administrative Review Board, convened under administrative regulations to review the revocation of Vega’s good conduct credits, concluded the charge of intimidation or threats was not supported by the content of the IDR. On the Board’s recommendation, that charge was expunged from Vega’s record and the thirty days of good conduct credit were restored.

On August 4 defendant Officer Roger Davis (“Davis”) discovered a pair of boxing gloves and a piece of metal measuring 16 " X Vs" X 1" in Vega’s cell. Davis issued an IDR charging Vega with possession of dangerous contraband and unauthorized property. Pl.Ex. G. Before the AC Vega admitted the gloves and metal had been found in his cell, but he denied ownership of the gloves and the fashioning of the metal into a weapon (as Davis testified). Pl.Ex. H. Moreover Vega says although he asked the members of the AC to examine the piece of metal themselves, they refused to do so. Rather it found him guilty on the basis of his admission the objects had been found in his cell, coupled with Davis’ report. Vega Aff. ¶ 9, Pl.Ex. H. It ordered Vega (1) transferred to segregation and (2) demoted to “C” grade (both for 180 days) and also (3) deprived of 180 days of statutory good conduct credit. PLEx. H. Upon reviewing Davis’ report and examining the piece of metal, defendant Stateville Warden Richard DeRobertis (“DeRobertis”) reduced the penalty imposed by the AC to 15 days of segregation and demotion to “C” grade for 30 days. Pl.Ex. I.

Finally, on September 11 defendant Officer James Carver (“Carver”) ordered Vega to lock up. Vega (who later claimed he did not hear the order) failed to respond. Once Vega had returned to his cell, Carver ordered him to surrender his identification card, whereupon Vega told Carver (as paraphrased by Carver) “he was not giving me anything and that I had better get out of his face.” Pl.Ex. J. Carver issued an IDR charging Vega with various violations, including intimidation or threats, insolence and disobedience of a direct order. Pl.Ex. J. Based on Carver’s statement and Vega’s admission that a confrontation had occurred, the AC found Vega guilty of all charges except that of intimidation or threats and ordered him transferred to segregation for a period of 15 days. Pl.Ex. K.

Bases for Summary Judgment

Defendants’ motion focuses primarily on Vega’s claim of guilty findings — at least on certain charges in the IDRs — based on insufficient evidence. As Def.Mem. 1-2 puts it:

Simply stated, plaintiff’s basic claims [sic] is that on three ocassions [sic] he was punished by the Defendants without sufficient evidence of his guilt.

In defendants’ view no genuine issue as to any material fact exists as to that claim (and implicitly as to the entire action), entitling them to judgment under prevailing law. Because defendants bear the burden of establishing the nonexistence of a genuine issue of material fact, it makes sense to begin the analysis by examining their principal argument, putting aside for the moment Vega’s second and third claims.

1. Quantum of Evidence

Prison inmates have a due process right not to be found guilty of a disciplinary offense except on the basis of sufficient evidence. See Chavis v. Rowe, 643 F.2d 1281, 1287 (7th Cir.1981) and cases there cited. “Sufficient evidence,” however, is scarcely a de novo standard. Instead the findings of a prison disciplinary proceeding are not subject to attack as a due process violation unless “no reasonable adjudicator could have found the prisoner guilty of the offense charged on the basis of the evidence presented____” Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 189, 78 L.Ed.2d 167 (1983). See also Woodall v. Partilla, 581 F.Supp. 1066, 1074-75 (N.D.Ill.1984) (applying the Jackson standard).

Against that benchmark, the findings as to all three incidents surely pass muster. In that respect it must be emphasized the relevant inquiry is the final determination in each disciplinary proceeding, not (as Vega would have it) the initial determination at the AC level. Any doubts this Court might have about the constitutional adequacy of the AC’s findings in any instance are altogether dispelled by the fact that any potential deficiencies were put right in the normal course of administrative review.

It may strain the language to characterize Vega’s May 17 remark to Stone as intimidating or threatening, especially in the context of prison society. While the intermediate IIB level sustained the AC’s finding of guilt on that charge, the Administrative Review Board reversed it as unsupported by the content of the IDR. True enough, the AC’s findings on the other charges stemming from the May 17 incident were sustained on review, but there can be no doubt they met the Jackson standard.

In like manner, the August 4 incident gave rise to an arguable lapse by the AC, which found Vega guilty of possessing dangerous contraband solely on the basis of Davis’ statement the metal bar had been fashioned into a weapon. Even though Vega denied that characterization, the AC refused his request that they actually view the object. That however was soon corrected. After reviewing Davis’ account of the incident and examining the alleged weapon, DeRobertis reduced the penalty imposed on Vega. In the end Vega was punished for possessing contraband (the boxing gloves) but not for possessing a weapon — and that was clearly reasonable (it involved only a permissible resolution of the credibility of Vega’s claim that the gloves were not his).

As to the September 17 incident, the record reflects no review of the AC’s findings. But in this instance the AC’s disposition of the charges was unobjectionable. Of its own accord it absolved Vega on the dubious charge of intimidation or threats, imposing a penalty commensurate with the offenses adequately proved.

It is difficult to see any rational basis for Vega’s due process claim. Any doubts about the adequacy of the process afforded Vega before the AC are dissipated by the disposition on review. As a result of the effectiveness of the review process, Vega suffered no deprivation of liberty— whether confinement to segregation, demotion to “C” grade or loss of good time credits — greater than was appropriate for the offenses of which he was found guilty on the basis of constitutionally sufficient evidence. Accordingly defendants are entitled to summary judgment on Vega’s claim he was denied due process of law.

2. Retaliatory Prosecution

Despite defendants’ overall summary judgment motion, they do not specifically address Vega’s allegations of retaliatory and discriminatory prosecution. Vega’s counsel has addressed the claim in his opposing memorandum as well as in his affidavit. This opinion will assume:

1. Defendants intend their motion as to the two claims of injury to stand on the record.
2. Defendants having offered no contrary evidence, Vega’s version of the facts is true.

Nearly a century ago Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886) issued the Supreme Court’s classic statement about selective prosecution:

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.

That principle is as applicable to officials enforcing prison rules as it is to prosecutors.

Nevertheless prisoner claims of retaliatory disciplinary action present especially difficult questions for courts when prison officials move for summary judgment in their favor. On the one hand, questions of motive and intent underlying such claims (like all questions of intent) are particularly inappropriate for summary judgment. Cedillo v. International Association of Bridge & Structural Iron Workers, 603 F.2d 7, 11 (7th Cir.1979); but see Parker v. Federal National Mortgage Association, 741 F.2d 975, 980 (7th Cir.1984), aff'd 567 F.Supp. 265, 270 (N.D.Ill.1983) (party opposing summary judgment must adduce facts, not conclusory allegations, raising genuine issue as to intent). On the other hand, such claims are especially prone to abuse. It is easy for a prisoner to allege bad motive and thereby to embroil prison officials in protracted yet groundless litigation. Given those competing considerations, the appropriate course for the court is to scrutinize the record with particular care and to deny summary judgment (1) if the prisoner's claim is stated in the testimonial form required by Rule 56(e) or (2) if it appears other facts provide reasonable circumstantial support for a claim stated in a form not itself admissible into evidence as based on personal knowledge of the prisoner as a competent witness. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983).

Following a close examination of the pleadings, the records of the disciplinary proceedings and Vega’s affidavit, this Court must conclude (notwithstanding defendants’ failure to file a reply memorandum addressing the issue) Vega has failed to raise a factual issue sufficient to withstand summary judgment. Vega’s Aff. ¶ 14 says only:

I believe that the officers writing the disciplinary tickets intentionally discriminated against me because of my status as a law clerk. I believe this because of statements made to me by these officers. I have seen the guards discriminate against other law clerks in the same manner as I have been discriminated against. I have also seen inmates who are not law clerks engage in conduct similar to that with which I have been charged but those inmates did not receive tickets for that conduct.

Those assertions are wholly conclusory and skeletal. They do not present the level of particularity — as to even a single specific instance, as distinct from Vega’s subjective belief — to which a witness would have to testify from the stand. They are wholly wanting as the kind of support required by Rule 56(e).

That being so, Vega must depend on reasonable inferences from the other evidence — the objective evidence. On that score the record reflects Vega had received six disciplinary reports during the two-year period preceding May 23 — the duration of his confinement at Stateville (see Pl.Ex. F). In those terms, the issuance of three added reports between May 17 and September 11 appears in no way extraordinary. Nor does the filing of ultimately unsustainable charges by itself suggest retaliatory prosecution. Each IDR was issued following an acknowledged confrontation between Vega and prison authorities, the circumstances of which provided some basis for the charges filed. So, too, this Court cannot infer bad motive on the part of prison officials from the mere fact that certain of the AC’s findings were reversed on review.

True enough, had the facts surrounding the three charges (at worst neutral on the issue of defendants’ intent) been coupled with evidence (for example) that Vega’s efforts as a law clerk were unusually successful or that, contemporaneously with the incidents at issue, he had been instrumental in obtaining a decision particularly bothersome to prison authorities, that might have been sufficient to give rise to a colorable suspicion of retaliation. But nothing in the record provides any basis for drawing such conclusions about Vega’s efforts in the law library or for otherwise linking the disciplinary prosecutions to his status as law clerk. Accordingly defendants’ motion is granted as to Vega’s claim of retaliatory prosecution.

3. Eighth Amendment

Vega also claims he was and continues to be subjected to cruel and unusual punishment because he was confined in segregation for 60 days without justification and because prison files falsely reflect he was guilty of certain disciplinary violations. No additional facts were alleged on that score in the Amended Complaint (the “Complaint”). Instead its Count I simply wraps up the same factual package already discussed under a different label: that of the Eighth Amendment. But the same discussion that has just rejected Vega’s due process and equal protection claim demonstrates conclusively there was nothing “cruel” or “unusual” about the punishment meted out to Vega.

Apparently recognizing that redundancy of claims, Vega’s response to defendants’ motion now for the first time asserts that while in segregation he was subjected to conditions that would shock the conscience of modern society. See Chavis, 643 F.2d at 1291. Vega Aff. ¶ 13 says:

During each period that I was confined in segregation, I received no personal toiletries and no bed linens or towels. I was allowed to shower only every other week. I was never given cleaning materials or a broom for my cell, which was filthy and infested with roaches. The food was cold and both roaches and flies were found in the food. The cell was improperly ventilated and although these were the warm summer months, the heat was on so that the temperature exceeded 100 degrees.

That is really a different lawsuit from the present one. Nothing in the Complaint, which properly bounds Vega’s causes of action, has even hinted at such a set of facts, wholly new and different from the charges focused on in this opinion. Only now, faced with a loser on those charges, does Vega seek to shift gears entirely. Even under the liberal pleading doctrines embodied in the federal rules, a plaintiff cannot avoid summary judgment by asserting new facts and a new theory of injury on the eve of disposition of his original claim. Kelsey v. State of Minnesota, 565 F.2d 503, 507 (8th Cir.1977).

Conclusion

There is no genuine issue of material fact, and defendants are entitled to a judgment as a matter of law. This action is dismissed.

SUPPLEMENTAL OPINION AND ORDER

Carlos Vega (“Vega”) has moved for reconsideration of this Court’s September 10, 1984 memorandum opinion and order (the “Opinion,” 598 F.Supp. 501 granting summary judgment to defendants under Fed.R. Civ.P. (“Rule”) 56. Vega’s motion is proeedurally flawed:

1. Viewed as a motion to alter or amend the summary judgment, it is untimely under Rule 59(e).
2. Viewed as a motion for relief from the judgment, it does not satisfy the standards of any of the subparagraphs of Rule 60(b).

Nonetheless this memorandum opinion will deal with the motion’s lack of substantive merit.

Vega argues the segregation punishment on his May 17, 1983 discipinary ticket was greater than the maximum permitted under the Administrative Regulations (“ARs”) in effect at Stateville Correctional Center. If so, this Court was in error in stating (Opinion at 505):

As a result of the effectiveness of the review process, Vega suffered no deprivation of liberty — whether confinement to segregation, demotion to “C” grade or loss of good time credits — greater than was appropriate for the offenses of which he was found guilty on the basis of constitutionally sufficient evidence.

That however does not equate with a due process violation. It will be remembered (Opinion at 505, quoting Jackson v. Carlson, 707 F.2d 943, 949 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 189, 78 L.Ed.2d 167 (1983)) that:

Instead the findings of a prison disciplinary proceeding are not subject to attack as a due process violation unless “no reasonable adjudicator could have found the prisoner guilty of the offense charged on the basis of the evidence presented____”

If Vega’s punishment in fact exceeded the AR maximum under the Administrative Review Board decision, that only makes it “appropriate to apply Jackson to the AC findings” (Opinion at 505 n. 7).

True enough, “[i]t may strain the language to characterize Vega’s May 17 remark to Stone as intimidating or threatening, especially in the context of prison society” (Opinion at 505). But that does not mean “no reasonable adjudicator could have found the prisoner guilty of the offense charged on the basis of the evidence presented” — it rather means merely that many (or perhaps most) reasonable adjudicators would not. This Court does not find the AC determination to have been wholly arbitrary, and that bars the conclusion that a due process violation occurred.

In like manner, as Opinion at 507 reflects, Vega’s original Eighth Amendment claim had no substantive content beyond his due process claim. Certainly 23 days in segregation is not “cruel” or “unusual” in the constitutional sense where:

(1) the original decision as to Vega’s guilt was reasonable and would have supported a 23-day term and
(2) the ultimate conclusion as to Vega’s guilt would have justified a 15-day term in any event.

Conclusion

Vega’s current motion does not conform to the requirements of either Rule 59(e) or Rule 60(b). Even were that not so, it would not prevail. In any case it must be and is denied.

      . As always this Court bows to conventional usage (because it is convenient though conceptually imprecise) by referring to the underlying Bill of Rights provisions instead of to the Fourteenth Amendment alone — the only provision literally applicable to state actors. After all it is true courts have treated those Bill of Rights provisions as having been intended by the Fourteenth Amendment to be made applicable to the states. But it betrays a lack of thought about the concept for Vega’s Complaint to speak of the Fifth Amendment in those terms, for its Due Process Clause surely has no different content for state actors than does the Fourteenth Amendment’s own identical clause.

      . Unquestionably the punishment meted out as a result of the disciplinary actions deprived Vega of liberty. See Wolff v. McDonnell, 418 U.S. 539, 555-58, 94 S.Ct. 2963, 2974-76, 41 L.Ed.2d 935 (1974). At issue here is rather whether the procedure afforded Vega met due process standards under the analysis in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). In that respect, of course, "one cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation presented by a disciplinary proceeding in a state prison.’’ Wolff, 418 U.S. at 560, 94 S.Ct. at 2977. Thus the need “to preserve internal order and discipline and to maintain institutional security," Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979), justifies deference to prison administrators in the conduct of disciplinary proceedings. See Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 872, 74 L.Ed.2d 675 (1983).

      . Because all the operative dates were in 1983, this opinion will simply omit any further year designations.

      . On the current summary judgment motion that statement in Vega’s affidavit must be credited. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). All the same it is worth noting that assertion is reflected nowhere in the record of the disciplinary proceedings connected with this incident. More significantly, Vega himself did not assert such discrimination in his grievance filed with the Stateville Institutional Inquiry Board ("IIB”). There he made only the following observation (Pl.Ex. D, reproduced verbatim here):
      [T]he way that the institutional count procedures are being enforced, it would be understandable for any inmate to react in the manner that I, myself did. I’m sure I wont be the only one.
      The sudden reenforcement of these rules to stand for count is a form of harassment towards all prisoners confined here in Stateville and in my opinion, is a method in which to provoke an atmosphere, within the institution anxiety and animosity among inmates and correctional officers. Such sudden enforcement of this rule is arbitrary, it has’nt been enforced for the past five (5) years.

      . That was DeRobertis’ position at the time. Since then he has moved up the IDOC chain of command.

      . That burden always rests on a Rule 56 movant. Moreover any inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. They must however be reasonably-drawn inferences. Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984).

      . Had Vega sustained punishment, based on a flawed AC finding, in excess of the punishment imposed under a reasonable final administrative decision, it would be appropriate to apply Jackson to the AC findings. That was not the case here.

      . In either such event a grant of summary judgment would represent a weighing of evidence, clearly impermissible on a Rule 56 motion. First National Bank Co. of Clinton, Illinois v. Insurance Co. of North America, 606 F.2d 760, 767 (7th Cir.1979).

      . Compare for example Flaherty, 713 F.2d at 13-14, where the court found facts sufficient to survive defendants’ motion for summary judgment on a retaliation claim:
      [W]e note that Flaherty’s allegations of retaliatory motive on the part of [the Department of Correctional Services] were supported by some circumstantial evidence. This included his improved overall record; the minor nature of his most recent disciplinary violations; his constructive activities, including unsupervised travel to and from Bedford Hills, an activity which appears to us to be similar to a work release program; the approval of the [Temporary Release Committee]; the denial of his application by central temporary release program officials after the issuance of the temporary restraining order in Flaherty v. Coughlin [a class action challenging a statewide prison lockdown]; and the decision of the parole board to grant Flaherty parole in November, 1982, despite its access to Flaherty’s full record, which, some months earlier, was found to demonstrate that Flaherty was a danger to the community. Viewed as a whole, this evidence, involving as it does a contestable denial of temporary release which is possibly inconsistent with the grant of parole shortly thereafter, and the involvement of the prisoner in major successful litigation against such officials, gives rise to a colorable suspicion of retaliation, pled as specifically as is possible without discovery.

      . This Court appointed counsel to represent Vega shortly after he had filed his initial pro se complaint. After consultation with Vega counsel filed an Amended Complaint last November, its Eighth Amendment claims being of the purely derivative type described in the text.

      . As Vega's current Mem. 2 n. 1 acknowledges, that statement was made in justifiable reliance on defendants' submission in support of their summary judgment motion. Vega did not challenge that statement on the present (or any other) grounds in response to defendants’ motion. Indeed Vega's present argument was not even hinted at, let alone specifically made, in his response to the original motion. Thus the argument might properly be considered as having been waived, or alternatively any claimed error in the Opinion might be viewed as induced error.


author: GESELL, District Judge.

text:
    Annie M. SMITH, Plaintiff, v. Margaret M. HECKLER, Secretary, Department of Health and Human Services, Defendant.
    Civ. A. No. 84-0729.
    United States District Court, District of Columbia.
    Sept. 19, 1984.
    David S. Katz, Washington, D.C., for plaintiff.
    James N. Owens, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM

GESELL, District Judge.

Annie M. Smith is a 39-year-old woman with a ninth-grade education who worked as a janitor and at other unskilled jobs until late 1979 when she stopped work because of worsening back pain. She applied for disability insurance and supplemental security income under the Social Security Act in 1982. Now she seeks to overturn the final decision of the Secretary of Health and Human Services on January 5, 1984 denying her those benefits. The Court has considered the entire administrative record in the case along with the arguments of counsel in their cross-motions for summary judgment.

In such a case, the Court must defer to the findings of the secretary — in this case, the findings of the administrative law judge — unless those findings are not supported by substantial evidence. See 42 U.S.C. § 405(g); Reyes v. Sec’y of HEW, 155 U.S.App.D.C. 154, 476 F.2d 910, 914 (D.C.Cir.1973). Because the Court is convinced after carefully reviewing the record that the decision is not supported by substantial evidence, the secretary’s decision is reversed.

Smith applied for benefits on April 6, 1982. She met the earning requirements for disability under Title II of the Act, and her disability had been of greater than a year’s duration. The administrative law judge found that she had not engaged in substantial gainful activity since the onset of her alleged disability in November 1979. Based on his finding that she could not tolerate prolonged standing or walking, or more than light lifting and carrying, he also concluded that Smith was incapable of returning to her former work, which was as a janitor and stock clerk.

While the burden of proving disability is on the claimant, once the claimant has shown that her disability prevents her from returning to her former work, the burden shifts to the secretary to show that jobs exist in the economy of which the claimant is capable of performing, considering her disabilities, age, education, experience, and training. See, e.g., Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir.1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980); Belton v. Schweiker, 535 F.Supp. 1319, 1322 (D.D.C.1982). It is clear from the record that the secretary failed to produce substantial evidence either of the existence of specific jobs or of her ability to perform them.

The administrative judge relied on the Medical Vocational Guidelines, known as the grid, see 20 C.F.R. Part 404, Subpart P, Appendix 2, to find that jobs existed which Smith could perform. The rules for applying the grid expressly state that the grid is not to be relied on exclusively where a claimant has a combination of exertional and nonexertional limitations. Appendix 2, § 200.00(e)(2). Smith claimed just such a combination of limitations, exertional in the limitations on bending, stooping, lifting and other activity, and nonexertional in the nature of pain, inadequately controlled high blood pressure, numbness down her right side, dizziness, and side effects from the prescription drugs she must take for these conditions.

The administrative judge justified exclusive reliance on the grid by totally discounting Smith’s nonexertional limitations. While this was styled as a credibility finding against Smith, it is apparent from the record that even if Smith’s testimony were excluded, there lacked substantial evidence to conclude that her pain, numbness and dizzy spells could be wholly disregarded. Uncontradicted testimony and affidavits from her friends and neighbors corroborated her reports of debilitating back pain radiating down the right leg. In addition, medical reports established, as the judge found, that she had chronic low back strain along with inadequately controlled hypertension and other medically diagnosed problems. The only evidence to the contrary was a conclusory statement from a physician who examined Smith in 1982 that she was capable of light work. This statement, the basis for which was not explained, cannot alone provide substantial evidence supporting a finding contrary to the other evidence in the case. Moreover, there was absolutely no evidence to support the administrative judge’s disregard of the testimony concerning the side effects of the pain medication. Finally, the administrative judge’s reliance on the lack of objective pathology underlying Smith’s pain was clearly improper. Where there is a medically diagnosed basis for pain, the inability of physicians to pinpoint anatomic or other abnormalities underlying the pain does not provide a basis for discounting its severity. Cf Gallagher v. Schweiker, 697 F.2d 82, 84 (2d Cir.1983).

Since it was improper to rely exclusively on the grid, the secretary should have produced a vocational expert to testify concerning the availability of specific jobs for someone with Smith’s characteristics. See, e.g., Haynes v. Heckler, 716 F.2d 483, 485 (8th Cir.1983); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.1980). This was not done. Nor were there any specific findings by the administrative judge as to specified jobs the claimant could perform. See Wilson v. Califano, 617 F.2d at 1053; Hall v. Sec'y of HEW, 602 F.2d 1372, 1377 (9th Cir.1979). Specific findings were all the more imperative here because there was undisputed evidence that Smith cannot drive or use public transportation and that she must rely on friends and relatives for transportation in her occasional trips outside her apartment. In light of this evidence, it was cavalier for the administrative judge to assume without any real inquiry that jobs existed that she could perform.

It is clear in this case that the secretary has wholly failed to come forward with evidence justifying the conclusion that this claimant who cannot perform her prior work can do other work. No good cause has been shown to warrant a remand to allow the secretary a further opportunity to produce evidence, if any, that should have been introduced at the original hearing. Accordingly, the final decision of the secretary is reversed and it is directed that the agency shall pay disability insurance and supplemental security income benefits as of the date for which they were applied, on April 6, 1982.

      . The administrative judge apparently based this finding of lack of credibility on his observation that Smith remained seated throughout her 80-minute hearing except for a short break to take her pain medication, and that she did not manifest in his opinion severe pain during that time. In doing so, he unfairly ignored the undisputed evidence that her pain, while constant, fluctuates in intensity. In addition, he failed to attach weight to the uncontradicted medical reports submitted by several physicians, the evidence of a two-week hospitalization for traction and a planned future hospitalization, and the fact that she wears a back brace most of the time and takes a variety of prescription pain-killers and other drugs, which themselves have significant side effects. Other courts have sharply disapproved reliance by administrative judges on a "sit and squirm” test for discounting the severity of a claimant's pain when there is corroborating evidence for the pain. See, e.g., Rivera v. Schweiker, 717 F.2d 719, 724 (2d Cir.1983); Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir. 1981); Adams v. Heckler, 580 F.Supp. 315, 321 (N.D.Ind.1984). Moreover, a claimant's testimony about pain is entitled to substantial credibility where, as here, the claimant has a strong work history. See, e.g., Taybron v. Harris, 667 F.2d 412, 415 n. 6 (3d Cir.1981); Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir.1979).


author: WALTER E. BLACK, Jr., District Judge.

text:
    Frank James McKENNA and Julian H. Crews v. KAISER ALUMINUM AND CHEMICAL CORPORATION, Local 499 of United Steelworkers of America, and United Steelworkers of America.
    Civ. A. No. B-80-132.
    United States District Court, D. Maryland.
    Sept. 20, 1984.

      Marvin Ellin, Baltimore, Md., for plaintiffs.
    James P. Gillece, Jr., Richard J. Hafets, and Piper & Marbury, Baltimore, Md., for defendant Kaiser Aluminum and Chemical Corporation.
    I. Duke Avnet, and John H. Price, Jr., Baltimore, Md., and Richard Brean, Pittsburgh, Pa., for defendants Local 4599 of United Steelworkers of America and United Steelworkers of America.
   MEMORANDUM

WALTER E. BLACK, Jr., District Judge.

Plaintiffs, Frank James McKenna and Julian H. Crews, bring suit against defendant Kaiser Aluminum & Chemical Corporation (Kaiser) under the Federal Labor Management Relations Act for alleged breach of the collective bargaining agreement between Kaiser and the United Steelworkers of America. In a separate count, plaintiffs sue defendants, Local 4599 of the United Steelworkers of America and the United Steelworkers of America (Union) for an alleged breach of the Union’s duty of fair representation in its handling of plaintiffs’ grievance against Kaiser. Defendants have filed motions for summary judgment, and plaintiffs have responded thereto. A hearing is not deemed necessary. See Local Rule 6.

Plaintiffs were employed in the Fabrication Department of Kaiser’s Halethorpe, Maryland aluminum plant. Each had accumulated more than twenty years' continuous service with Kaiser. On April 15,1977, Kaiser closed down its Fabrication Department. Pursuant to the local Supplemental Seniority Agreement, plaintiffs had the right to elect a voluntary lay-off or a reassignment to another job classification. Plaintiffs elected a voluntary lay-off.

Under the terms of the 1974 collective bargaining agreement in effect at the time of plaintiffs’ voluntary lay-off, an employee with two or more years’ continuous service who elected voluntary lay-off was entitled to receive supplemental unemployment benefit (S.U-B.) payments from Kaiser for 52 weeks in addition to the unemployment benefits he received from the State. On June 1, 1977, a new collective bargaining agreement took effect and superseded the 1974 agreement. The 1977 agreement modified the S.U.B. program as it existed under the 1974 collective bargaining agreement. Under the new agreement, employees with more than twenty years’ continuous service could receive extended S.U.B. payments for an additional 52 weeks. However, the agreement provided that said employees were ineligible for the extended benefits if they had “refused to accept an assignment to any appropriate work at the work location where employed.” Job and Income Security Program between Kaiser Aluminum & Chemical Corporation and United Steelworkers of America AFL-CIO, Section B. 4., p. 106. Appendix 3 to Kaiser’s Motion for Summary Judgment,

Plaintiffs were each paid 52 weeks of S.U.B. benefits. They then applied for extended payments, but their applications were denied.

Plaintiffs thereupon prepared a grievance, which they delivered to Kaiser on July 14, 1978. The grievance was initiated in step four of the grievance procedure. A meeting was held on July 21, 1978, at which Kaiser rejected the grievance. The report of that meeting stated that Kaiser took the position that plaintiffs were not entitled to extended S.U.B. payments because they had “rejected the First Recall to the Plant,” and that, in so doing, had refused to accept appropriate work.

The local Union initially rejected Kaiser’s position. Because the relevant portions of the new S.U.B. booklet had not been reduced to written form, Kaiser and the Union agreed to table the discussion. Plaintiffs allege that they reported to Kaiser’s Halethorpe Plant from June 1978 to June 1979 to apply for extended benefits. They further allege that they were not informed as to the status of their grievance during this period, or thereafter.

A second meeting was held on December 13, 1979, at which representatives from the Union and Kaiser agreed that plaintiffs were not entitled to extended benefits, and the grievance was withdrawn. Plaintiffs allege that the decision to withdraw the grievance was made without prior consultation with plaintiffs, arid that plaintiffs were not informed of its withdrawal. This action followed.

Plaintiffs do not dispute Kaiser’s allegation, supported by affidavits, that appropriate work was available to them at the time they applied for extended S.U.B. payments. However, they maintain that they did not “refuse” such work within the meaning of Section B. 4. of the S.U.B. plan because Kaiser did not notify them that work was available. In support of their claim that Kaiser was obligated to notify them that work was available, plaintiffs rely upon Article 5 B of the Supplemental Seniority Agreement between Kaiser and the local Union, which provides:

B. Notice to Laid-Off Employees. When a restoration of forces is to be made, the Company will give notice thereof to the individuals to be recalled by telegram, or if no response, by certified letter, return receipt requested. Employees shall be obligated to keep the Company advised of their address. A telegram or certified letter sent return receipt requested to the current address carried on the Company’s personnel records shall be the full extent of the Company’s obligation to give notice of restoration of forces. A list of these employees to be recalled will be forwarded to the Chairman of the Grievance Committee.

Since Kaiser did not send such notification to them, plaintiffs argue that they had not “refused to accept an assignment to any appropriate work.”

Kaiser, on the other hand, argues that recalls from voluntary lay-offs must follow the procedure established by Article 5 F of the Supplemental Seniority Agreement, which provides:

F. 'Recall from Voluntary Lay-Off. An employee accepting a lay-off under the provisions of Article 4, Section F, of this Local Agreement, who wishes to use his seniority to return to work, shall notify the Employment Supervisor by telegram, or if no response, by certified letter, return receipt requested, and his name shall then be placed on the recall list where his seniority places him.

It is undisputed that plaintiffs did not place their names on the recall list. Kaiser argues that in failing to do so at a time when work was available, plaintiffs refused to accept appropriate work and thereby forfeited their right to extended S.U.B. payments.

The Court concludes that plaintiffs were required to request that their names be placed on the recall list, pursuant to Article 5 F of the Supplemental Seniority Agreement, in order to remain eligible for extended S.U.B. payments. This conclusion is supported by the language of the provisions at issue. By its terms, Article 5 B is applicable to laid-off employees when a restoration of forces is to be made. Plaintiffs, however, were not involuntarily laid-off by Kaiser. They elected a voluntary lay-off in lieu of demotion, which is the right of an “employee assigned to a lower job classification.” Supplemental Seniority Agreement, Article 4 F. Therefore, although the provisions of Article 5 B would be applicable to a restoration of forces in which plaintiffs were returned to their positions in the Fabrication Department, it does not extend to plaintiffs’ use of their seniority to accept other available work.

In contrast, Article 5 F expressly applies to employees who have elected a voluntary lay-off under the provsions of Article 4 F. Thus, an employee who has elected voluntary lay-off, as plaintiffs did, must follow the procedure set forth in Article 5 F to accept available work, or forfeit his right to extended S.U.B. payments.

Further, any doubt as to the proper construction of the relevant provisions of the Supplemental Seniority Agreement is dispelled by the affidavits submitted by Kaiser in support of its Motion for Summary Judgment. They state that it was the intention of the Union and Kaiser representatives negotiating the 1977 agreement that extended S.U.B. payments be limited to employees for whom there was no appropriate work available at the employee’s home location. (Affidavit of A.H. Dietmeyer, paragraphs 8-9, 13; affidavit of A. Stanley Johnson, paragraphs 11, 27).

Plaintiffs, who took no part in the negotiations that culminated in the adoption of the 1977 agreement, presented no competent evidence to contradict that construction. As a consequence, the defendants’ interpretation must be accepted by this Court. Barrett v. Safeway Stores, Inc., 538 F.2d 1311 (8th Cir.1976). Inasmuch as plaintiffs failed to establish that Kaiser breached the collective bargaining agreement, their claim that the Union breached its duty of fair representation must also fail. Clayton v. Automobile Workers, 451 U.S. 679, 683 n. 4, 101 S.Ct. 2088, 2092, 68 L.Ed.2d 538 (1981); Cronin v. Sears, Roebuck & Co., 588 F.2d 616, 619 (8th Cir.1978). It is, therefore, unnecessary to reach defendants’ contention that plaintiffs failed to exhaust their contractual remedies with respect to their claims for “health insurance benefits, pension rights, seniority privileges and various other privileges and benefits appurtenant to the S.U.B. program____” (Plaintiffs' Declaration pages 3, 7).

For the aforegoing reasons, the motions for summary judgment filed on behalf of defendant Kaiser Aluminum & Chemical Corporation (Paper 16) and on behalf of defendants United Steelworkers of America and Local 4599 of United Steelworkers of America (Paper 21) BE, and the same hereby ARE, GRANTED. The Court will enter a separate Order and Judgment, entering judgment in favor of the defendants.

      . The supplemental unemployment benefits plan was incorporated by reference into the collective bargaining agreement. Agreement between Kaiser Aluminum & Chemical Corporation and United Steelworkers of America AFL-CIO, Article 19. Appendix 2 to Kaiser’s Motion for Summary Judgment.

      . Appendix 4 to Kaiser’s Motion for Summary Judgment.

      . In fact, McKenna admitted in his deposition that he could return to work by putting himself on the recall list, and that it was his responsibility to do so. McKenna deposition at 77. Moreover, he had once complained, in writing, to a Kaiser official that a recall letter sent to him by that official violated the collective bargaining agreement then in effect, alleging that as an employee who had elected voluntary lay-off in lieu of demotion, "it is I who shall notify the employment office when I wish to be placed on the recall list.” Appendix 6 to Kaiser’s Motion for Summary Judgment.


author: BATTISTI, Chief Judge.

text:
    Debra DOUGLAS, Plaintiff, v. Louis BURROUGHS, et al., Defendants.
    No. C83-2327.
    United States District Court, N.D. Ohio, E.D.
    Sept. 25, 1984.

      Avery S. Friedman, Cleveland, Ohio, for plaintiff.
    Alonzo Snipes, Jr., Cleveland, Ohio, for Louis Burroughs.
    John Kluznik, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, Ohio, for Cuyahoga Metropolitan Housing Authority, Peter Iskin, Norman Krumholz, Isabelle Hendricks, Adeline Turner, Marie Childress, George James and C. David Witt.
    Richard J. Giffels, Quandt, Giffels, Buck & Rodgers, Cleveland, Ohio, for Cuyahoga Metropolitan Housing Authority.
   MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

This matter is before the Court on Defendant Burrough’s demand for a jury trial under Federal Rule of Civil Procedure 38(b). Co-defendant Cuyahoga Metropolitan Housing Authority (CMHA) moves to strike the jury demand on the ground that the Burroughs’ demand was untimely. For the reasons outlined below, the Court deems Burroughs’ motion timely filed and grants the jury demand.

I.

Plaintiff Debra Douglas, filed a Complaint in this Court on June 2,1983, naming as Defendants Louis Burroughs, Burroughs Management Systems, Burroughs Real Estate Company, Plymouth Gardens, Inc. and the Cuyahoga Metropolitan Housing Authority and its officers. Plaintiff charges that defendants’ efforts to evict her violated her rights under 42 U.S.C. §§ 1983, 1985, 1437f(d)(l)(B)(ii), 24 C.F.R. § 882.215(b), the Ohio Revised Code § 5321.02 and the Fourteenth Amendment of the Constitution. Seeking injunctive, declaratory and monetary relief, plaintiff claims that the defendants, a landlord, a public housing authority and its officers and agents under color of state law, deprived plaintiff of her rights under Section 8 of the National Housing Act and the United States Constitution.

On June 22, 1983, Defendant Burroughs filed its answer and counterclaim. On July 22,1983, Defendant CMHA filed its answer to plaintiff Douglas’ complaint. On July 29, 1983, Defendant Burroughs filed his jury demand.

II.

Federal Rule of Civil Procedure 38(b) preserves the Seventh Amendment right of trial by jury. The Seventh Amendment provides that in suits at common law, where the value of the controversy exceeds $20, the right of trial will be preserved. The questions before this Court in the instant case are whether the issues are triable by jury as a matter of right and, if so, whether Defendant Burroughs demand was filed within the time period prescribed by F.R.C.P. 38(b).

Since Defendant Burroughs has not specified any issues on which he demands a jury trial, Federal Rule of Civil Procedure 38(c) mandates that “he shall be deemed to have demanded trial by jury for all issues so triable.” Therefore, this Court must determine whether plaintiff Douglas’ causes of action are ones that at common law were triable by jury or, on the other hand, are of an equitable nature which have historically not been triable by a jury as a matter of right. Barton v. Barbour, 104 U.S. 126, 133-134, 26 L.Ed. 672 (1881); see also Sheila’s Shine Products, Inc. v. Sheila Shine, Inc., 486 F.2d 114 (5th Cir.1973); Coca-Cola Company v. Cahill, 330 F.Supp. 354 (W.D.Okla.1971); Coca-Cola Company v. Wright, 55 F.R.D. 11 (W.D.Tenn.1971); Kimberly-Clark Corp. v. Kleenize Chemical Corp., 194 F.Supp. 876 (N.D.Ga.1961).

The determination of the right to a jury trial is purely a matter of federal law; it is a federal question. Simler v. Connor, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963). The Federal Rules of Civil Procedure abolished the distinction between law and equity as a procedural issue; however, law and equity remain separate categories when it comes to identifying rights and remedies and in turn determining the jury trial issue. The Supreme Court has stated a test for determining the characterization or “legal” nature of an issue: “As our cases indicate, the ‘legal’ nature of an issue is determined by considering, first, the premerger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries.” Ross v. Bernhard, 396 U.S. 531, 538 n. 10, 90 S.Ct. 733, 738 n. 10, 24 L.Ed.2d 729 (1970).

The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action. Simler, 372 U.S. at 223, 83 S.Ct. at 611. The nature of the issue is to be determined from the pleadings. Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). The Court may also consider the nature of the relief sought, but it is not controlling. Prudential Oil Corp. v. Phillips Petroleum Co., 392 F.Supp. 1018 (S.D.N.Y.1975); Klein v. Shell Oil Co., 386 F.2d 659 (8th Cir.1967); Dixon v. Northwestern Nat. Bank, 297 F.Supp. 485 (D.C.Minn.1969).

The distinction between actions at law and those at equity is a difficult one and it is little wonder that the decision to abolish it in the Federal Rules was welcomed so quickly. Essentially, the nature of relief denied distinguishes the two:

[A legal action] is designed to afford redress for injuries already inflicted and rights of person or property actually invaded, whereas an equitable action, is not only remedial in its nature but may also be brought for the purpose of restraining the infliction of contemplated wrongs or injuries and the prevention of threatened illegal action, which may be the occasion of serious injury to others. In actions at law, relief is almost invariably administered in the form of pecuniary compensation for the injury received, while in an equitable action the court has the discretionary power to adopt the relief to the circumstances of the case.

1 C.J.S. Actions § 53, at 1152 (1936).

It is virtually impossible to state a general rule which would determine in all cases whether a particular action should be classed as law or equity. Whitehead v. Shattuck, 138 U.S. 146, 11 S.Ct. 276, 34 L.Ed. 873 (1891). Where both legal and equitable relief are demanded, or are essential to a complete determination of the controversy, the action is ordinarily classified according to what appears to be its primary purpose.

While the above statement of legal rules to determine whether a right to jury trial exists is simple, the practical application of these rules in the context of a § 1983 action is difficult. Some courts have been altogether unable to determine what type of action was at issue. See Burt v. Board of Trustees, 521 F.2d 1201 (4th Cir.1975). Section 1983 permits an injured party to seek relief “in an action at law, suit in equity, or other proper proceeding for redress.” The statute does not explicitly authorize a jury trial as a matter of right. However, the Seventh Amendment’s right to jury trial has been found applicable to causes of action based on statutes. Curtis v. Loether, 415 U.S. 189, 193, 94 S.Ct. 1005, 1007, 39 L.Ed.2d 260 (1973).

This Court finds the rationale used in Curtis v. Loether persuasive. In that case, under 42 U.S.C. § 3612, a black woman claimed that defendant landlord had refused to rent her an apartment because of her race. Plaintiff sought injunctive relief as well as compensatory and punitive damages. Curtis, 415 U.S. at 190, 94 S.Ct. at 1006. The Supreme Court did not engage in a lengthy discussion of whether the plaintiff was primarily seeking damages (a legal claim) or an injunction (an equitable claim). Rather, it stated

[Wjhen Congress provides for enforcement of statutory rights in an ordinary civil action in the district courts, where there is obviously no functional justifica-, tion for denying the jury trial right, a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law.

Id. at 195, 94 S.Ct. at 1009.

In the instant § 1983 action, plaintiff seeks damages to enforce her “legal rights.” Plaintiff's request for damages sounds essentially in tort and is analagous to an action for intentional infliction of distress. See id. at 196 n. 10, 94 S.Ct. at 1009 n. 10. In fact, plaintiff repeatedly states in her complaint that defendants’ acts were “in wanton and reckless disregard of [her] rights and feelings”. Complaint, Douglas v. Burroughs, filed June 2, 1983, ¶¶ 32, 39, 51. Since the award of compensatory and ’ punitive damages is a form of relief offered by courts of law, this Court finds that defendant Burroughs does have a right to trial by jury.

Ill

Having determined that a right to a jury trial does exist in the instant case, this Court must now determine whether the demand for jury trial was timely filed. The consequence of an untimely demand is waiver of the right to trial by jury. F.R. Civ.P. 38(d). To be timely, the demand must be served “not later than 10 days after the service of the last pleading directed to such issue.”

Defendant Burroughs served his demand on July 29, 1983 and contends that this demand falls within the 10-day period from the service of Defendant CMHA’s answer on July 22, 1983. In its motion to strike, Defendant CMHA claims that the period should be measured from June 22, 1983, the date of service of Burroughs’ Answer and Counterclaim. Defendant CMHA further contends that CMHA’s pleading of July 22 was an Answer that “did not require a responsive pleading from Louis Burroughs.”

This Court rejects defendant CMHA’s argument. Whether CMHA’s Answer required an additional pleading from Burroughs (which it did not) has no bearing on the timeliness of Defendant Burroughs’ jury demand. The only issue in determining the timeliness of a jury demand is the identification of “the last pleading.” It is established that if there is more than one defendant, the service of the last answer triggers the 10-day period where there is a common issue raised between the plaintiff and all the defendants. Spiro v. Pennsylvania R. Co., 3 F.R.D. 351 (S.D.N.Y.1942). Plaintiff alleges that both CMHA and Burroughs have acted to evict her, thereby depriving her of her rights under the National Housing Act and the Constitution. Since the issues between the defendants and the plaintiff are the same, the 10-day period runs from July 22, 1983, the date upon which CMHA’s Answer was served. Since defendant Burroughs’ jury demand was served on July 29,1983, it is within the 10-day period.

Therefore, the Court grants Defendant Burroughs’ jury demand and denies Defendant CMHA’s motion to strike.

IT IS SO ORDERED.

      . The related state court action, Plymouth Gardens, Inc. v. Debra Douglas, Civil Action No. 83 CNG 1031, was remanded to the state court on order of this Court. See Memorandum Opinion and Order, December 6, 1983 in Douglas v. Burroughs

        . ‘‘[A]ny party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefore in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue." F.R.C.P. 38(b).

      . Rule 39(a) makes this determination a prerequisite to reaching the question of the timeliness of the demands: "the trial of all issues so demanded shall be by jury, unless ... (2) the court upon motion of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or Statutes of the United States.” Fed.R.Civ.P. 39(a).

      . See Curtis, 415 U.S. at 196 n. 11, 94 S.Ct. at 1009 n. 11.

      . When the pleadings are served by mail, as in the instant case, 3 days are added to the prescribed period. F.Rule of Civ.P. 6(e). In sum then, Defendant Burroughs in the instant case had 13 days from the date of the last pleading. Hereinafter, any references to the 10-day period actually will represent 13 days as the amount of time to respond.


author: ALDON J. ANDERSON, Chief Judge.

text:
    Paul and Linda BUSCH, Plaintiffs, v. Craig CARPENTER, George R. Jensen, and Ronald Burnett, Defendants.
    No. C82-0607A.
    United States District Court, D. Utah, C.D.
    Sept. 28, 1984.
    Wallace T. Boyack, Boyack & Hansen, Salt Lake City, Utah, for plaintiffs.
    Edward T. Wells, Bottum & Wells, Salt Lake City, Utah, for defendants.
   ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

ALDON J. ANDERSON, Chief Judge.

Plaintiffs and defendants moved for summary judgment. Plaintiffs alleged two causes of action. First, that defendants violated section 12(1) of the Securities Act of 1933. Second, a pendent state claim, that the defendants violated section 25110 of the California Corporate Securities Law. Defendants assert that they are exempt from the proscriptions of the 1933 Act because the offering was sold only to residents of Utah and therefore it was an intrastate offering not subject to 12(1). Section 3(a)(ll) exempts securities which are sold only to persons resident within a-single state, “where the issuer of such security is a person resident and doing business within or, if a corporation, incorporated by, and doing business within, such state or territory.” 15 U.S.C.A. § 77c(a)(ll).

In October and November 1980 Sonic Petroleum sold 25,000,000 shares of stock solely to Utah residents. In May of 1981 Sonic was merged into Mason Oil Company. In June 1981 defendant Carpenter purchased 76,000 shares of Mason stock on behalf of Paul and Linda Busch. The issue presented for resolution is whether a resale of an intrastate offering seven months after all shares were sold to Utah residents voids the intrastate exemption.

The statute by its literal language does not make the exemption dependent on not reselling the stock. This Court previously dismissed an S.E.C. complaint that alleged that all stock was sold only to residents of Utah and a subsequent resale took place one month later. S.E.C. v. Curtis Minerals, No. C-336-69 (Nov. 19, 1971 D.Utah). The Court is of the opinion that the seven month period from the time of initial sale to the time of resale is sufficient for the offering to come to rest. Plaintiffs argue that Rule 147 requires nine months before a resale can be made. The Court concludes that Rule 147 provides only a safe harbor; compliance with its provisions ensures that the S.E.C. will take no action. But it does not follow, as plaintiffs argue, that noncompliance necessarily means that the statute and its policies have been violated. There was no allegation of any fraud, scheme or other plan to circumvent the policies of the intrastate exemption through a straw person sale. Rule 147 has been criticized as overly restrictive. See, e.g., Bennett, The Proposed Federal Securities Code: “Local Distributions, ” Utah Bar Journal Winter 1979, Summer 1980.

From these facts it appears that the defendants were not the sellers of the stock to the plaintiffs, and not in privity with them. Plaintiffs show no rationale justifying holding defendants liable merely because they were officers at the time of the original offering.

At the time the initial sale occurred, the stock was sold only to Utah residents, the Company did business in Utah, and was incorporated in Utah. Accordingly, defendants have complied with section 3(a)(ll) and their motion for summary judgment is GRANTED.

Plaintiffs’ pendent state law claim is not sufficiently developed to justify its retention. Discovery has not been completed and the trial has not been held. Accordingly, it is also dismissed under authority of United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), which grants the district court discretion to dismiss without prejudice pendent claims when the federal claims are dismissed before trial. Daniels v. All Steel Equipment, Inc., 590 F.2d 111 (5th Cir.1979). Therefore, plaintiffs’ pendent state claim is dismissed without prejudice.


author: TURK, Chief Judge.

text:
    Harold J. DUPUY and Lulu M. Dupuy, Plaintiffs, v. UNITED STATES of America, Defendant.
    Civ. A. No. 83-0164-L.
    United States District Court, W.D. Virginia, Lynchburg Division.
    Sept. 28, 1984.

      William C. Plott, Lexington, Va., for plaintiffs.
    J. Ray Dotson, Asst. U.S. Atty., Roanoke, Va., Stuart D. Gibson, Trial Atty., Tax Div., U.S. Dept, of Justice, Washington, D.C., for defendant.
   MEMORANDUM OPINION

TURK, Chief Judge.

This case is before the court on cross motions for summary judgment. Jurisdiction is based on the provisions of 28 U.S.C. § 1346(a)(1) for the recovery of Internal Revenue taxes and interest. The parties have submitted briefs, the court has heard oral argument, and the matter is now ripe for a decision by the court.

I.

This is an action for the recovery of federal income taxes for the taxable years 1979, 1980, and 1981, which the plaintiffs, Harold J. Dupuy and Lulu M. Dupuy, allege were erroneously assessed and collected, pursuant to Section 7422 of the Internal Revenue Code of 1954, 26 U.S.C. § 7422. The facts of the ease are largely undisputed.

During 1982, the Internal Revenue Service conducted an examination of the plaintiffs’ income tax returns for the three years in question. Following the examination, the Internal Revenue Service determined that additional taxes were due from the plaintiffs for each of the three years. The plaintiffs disagreed and protested through the appropriate channels. The plaintiffs were represented by counsel throughout the proceedings.

During the administrative appeals process, a compromise settlement was reached with the plaintiffs. This agreement was reduced to writing and executed by the parties on Form 870-AD. Part of the compromise included the agreement by the Internal Revenue Service not to reopen the case in exchange for the agreement by the plaintiffs not to file or prosecute any claim for credit or refund. Additionally, each side compromised his position on the substantive aspects of the dispute.

II.

Form 870-AD states in pertinent part, “If the proposal is accepted by or on behalf of the Commissioner ... no claim for refund or credit shall be filed or prosecuted for the year(s) above stated.” As found, however, by the court in Lignos v. United States, 439 F.2d 1365 (2d Cir.1971), the plaintiffs’ signature on Form 870-AD is not an absolute bar to filing such a claim, and the government is “relegated to arguing that taxpayers are equitably estopped from claiming the refund.”

In bringing the instant lawsuit, the plaintiffs have breached the agreement which they reached with the Internal Revenue Service. The plaintiffs filed their amended complaint after the statute of limitations had run against the government, thus preventing the United States from collecting the additional taxes which the Internal Revenue Service had assessed and subsequently compromised. Thus, the government has relied to its detriment on the plaintiffs’ agreement to accept and abide by the compromise settlement.

Furthermore, as discussed in Stair v. United States, 516 F.2d 560 (2d Cir.1975), there are also practical considerations involved in a suit of this nature.

We feel constrained to note that prudential considerations dictate the same result as we reach today. It requires little elaboration to demonstrate that a contrary outcome would arm the taxpayer with both a shield and a sword, and permit him to enter the lists with no chance of losing. The Stairs, if allowed to proceed, could fare no worse than the compromise they have already succeeded in negotiating. If victorious on the merits, they would be freed even from the obligation of sustaining their half of that bargain. Given such a state of affairs, it would be an imprudent taxpayer indeed who did not resort to litigation even after compromise. Id. at 565.

III.

In view of the practical aspects involved and the government’s detrimental reliance on the compromise agreement, the court finds that the plaintiffs are estopped from maintaining this action. Accordingly, the plaintiffs’ motion for summary judgment should be DENIED and the defendant’s motion for summary judgment should be GRANTED. An appropriate order consistent with this memorandum opinion shall be entered this day.

      . Pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, the defendant’s motion to dismiss is treated as a motion for summary judgment.

      . Although the plaintiffs argue that the Internal Revenue Service did not alter its position in any way, the exhibits show that the plaintiffs paid less in settlement of the dispute than the amount originally assessed by the Internal Revenue Service.