author: LEAVY, District Judge:

text:
    The CITY OF SEATTLE, City Light Department; City of Eugene, by the Eugene Water & Electric Board; Public Utility District No. 1 of Chelan County, Washington; City of Tacoma; Public Utility District No. 1 of Grant County, Washington; Central Lincoln Peoples’ Utility District; Clatskanie Peoples’ Utility District; Tillamook Peoples’ Utility District and Public Utility District No. 1 of Douglas County, Washington, Plaintiffs, v. Peter JOHNSON, as Administrator, Bonneville Power Administration; Donald P. Hodel, as Secretary of the Department of Energy; and the United States of America, Defendants.
    Civ. No. 83-1923.
    United States District Court, D. Oregon.
    Oct. 11, 1984.

      Alan S. Larsen, Donald A. Haagensen, Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, Or., for plaintiffs.
    Charles H. Turner, U.S. Atty., Thomas C. Lee, Asst. U.S. Atty., Preston Michie, Kurt Casad, Gen. Counsel, Portland, Or., for defendants.
   OPINION AFTER REHEARING

LEAVY, District Judge:

Plaintiffs are a number of publicly-owned utilities in Oregon and Washington and purchase substantial amounts of power from the Bonneville Power Administration (BPA). As preference customers, they are entitled to certain benefits in the purchase of this power, including a lower price than other customers receive. Plaintiffs purchase power pursuant to a generic power sales contract (Requirements Contract, exhibit A to Second Amended Complaint). They contend this contract entitles them to require BPA to include the full energy output of the Hanford Generating Project (Hanford Project, or Hanford) in the resources BPA uses to serve plaintiffs. Plaintiffs contend BPA has violated the contract by selling half of Hanford’s output to several investor-owned utilities (IOUs). They seek a declaration that defendants — Peter Johnson, Administrator of BPA, Donald P. Hodel, Secretary of the United States Department of Energy, and the United States — have violated the contract by excluding half of the output of the Hanford Project from the Federal Base System (FBS) Resources. Further, they ask for an injunction prohibiting defendant from excluding any portion of Hanford’s output from the FBS Resources.

Defendants move to dismiss for lack of subject matter jurisdiction and failure to state a claim. Alternatively, they request summary judgment on the ground that plaintiffs’ claim is barred by the statute of limitations. I conclude the complaint states a “rate matter” over which the United States Court of Appeals for the Ninth Circuit has exclusive jurisdiction. Accordingly, the motion to dismiss for lack of subject matter jurisdiction is GRANTED.

BACKGROUND

The Hanford Generating Project consists of a nuclear reactor (referred to as the Hanford New Production Reactor or NPR) owned and operated by the United States Department of Energy (DOE) for the production of weapons grade plutonium, and steam-driven turbines owned and operated by the Washington Public Power Supply System (WPPSS). As a byproduct of plutonium manufacture, the New Production Reactor produces steam useful for producing electricity. The DOE, and its predecessor the Atomic Energy Commission (AEC), has been selling steam to WPPSS for twenty years. On July 9, 1982, WPPSS and DOE contracted for continued sale of steam from July 1, 1983, to June 30, 1993. This contract was limited by the Atomic Energy Commission Authorization Act for 1963:

(e) The [Atomic Energy] Commission [now DOE] shall not enter into any arrangements for the sale of byproduct energy [steam] from the Hanford New Production Reactor unless it determines, that the purchaser [WPPSS] has offered fifty per cent participation to private organizations [IOUs] and fifty percent participation to public organizations on a non-discriminatory basis in the sale of electric energy generated therewith.

Pub.L. No. 87-701, § 112(e), 76 Stat. 599, 604 (Sept. 26, 1962).

In 1963, the AEC contracted to sell byproduct steam to WPPSS. WPPSS then assigned the right to fifty percent of the electric power produced by Hanford to five investor-owned utilities (Montana Power Company, Pacific Power & Light Company, Portland General Electric Company, Puget Sound Power & Light Company, and the Washington Water Power Company) and certain publicly-owned utilities including plaintiffs. The IOUs and publicly-owned utilities then assigned to BPA their rights to receive electric power produced from Hanford in exchange for rights to receive specified amounts of electric power from BPA.

BPA became involved with Hanford through these 1963 exchange contracts. The contracts shifted the risk from the IOUs and publicly-owned utilities to BPA of the “dry hole” danger that no steam would be available from the NPR. BPA promised to deliver electric energy whether or not Hanford was in production. Additionally, since BPA agreed to sell power at its usual rates, the contracts removed the disincentive for the IOUs and publicly-owned utilities to invest in Hanford. That disincentive was created by the fact that in 1963 the cost of power from Hanford was substantially greater than the cost of power BPA marketed from federal hydroelectric facilities.

The amount of electric energy BPA was obligated to deliver to the IOUs until June 30, 1983, was specified in a 1974 contract (the “1974 Agreement”). The 1974 Agreement provided the five IOUs with an option to purchase from BPA an amount of energy equal to one-half of that produced by Hanford after October 31, 1977, at a specified price:

Each company shall have the option to purchase up to one-tenth of the net energy output available due to continued operation of the Hanford Project after October 31, 1977. As payment for such energy the company shall pay one-tenth of the [Washington Public Power] Supply System’s annual budget for the project during the period of operation less one-tenth of the amounts specified in section 11(b) of the Exchange Agreement for the related periods ending June 30, 1980, and less one-tenth of any debt service on the Hanford project for each contract year thereafter. The amounts to be paid for lesser amounts of energy would be rat-ably reduced. The company may assign all or a portion of its share to the remaining companies subject to the same terms and conditions.

1974 Agreement, p. 3, 111 (exhibit A to Defendants’ Memorandum in Support of Renewed Motion to Dismiss). BPA, as of April, 1984, was apparently still supplying Hanford energy to two IOUs.

DISCUSSION

I.

Plaintiffs do not seek an injunction prohibiting BPA from selling to investor-owned utilities half of the output of the Hanford Project. Their goal is more subtle. To understand plaintiffs’ objectives requires a foray into BPA ratemaking.

In 1980, Congress enacted the Pacific Northwest Electric Power Planning and Conservation Act (Regional Power Act, or Act), Pub.L. No. 96-501, 94 Stat. 2697 (1980), 16 U.S.C. § 839 et seq. (Supp. V 1981). The Act created “a rigid scheme of rate pools and rate limits” to govern BPA’s decisions on the rates it charges to publicly-owned utilities, investor-owned utilities, and direct service industries (DSIs). Fink-lea, Bonneville Power Administration Ratemaking: An Analysis of Substantive Standards and Procedural Requirements, 13 Envtl.L. 929, 943 (1983) [hereinafter cited as BPA Ratemaking ]. The Act gave parties new procedural rights in the ratemaking process, including the right to hearing and reasonable cross examination. Regional Power Act, § 7(i), 16 U.S.C. § 839e(i). See BPA Ratemaking, 13 Envtl.L. at 943. Once BPA’s Administrator makes a final decision on rates, the rates go into effect after review and approval by the Federal Energy Regulatory Commission (FERC). Id. See Regional Power Act, §§ 7(i)(6), 7(k), 16 U.S.C. §§ 839e(i)(6), 839e(k).

Section 7(b) of the Regional Power Act governs the development of rates for BPA’s “priority firm power customer class.” This class includes plaintiffs. That section provides:

(1) The Administrator shall establish a rate or rates of general application for electric power sold to meet the general requirements of public body, cooperative, and Federal agency customers within the Pacific Northwest, and loads of electric utilities under section 839c(c) of this title [residential exchange program]. Such rate or rates shall recover the costs of that portion of the Federal base system resources needed to supply such loads until such sales exceed the Federal base system resources. Thereafter, such rate or rates shall recover the costs of additional electric power as needed to supply such loads____

16 U.S.C. § 839e(b)(l). In other words, as long as the total demand of preference customers does not exceed the total supply of the Federal Base System Resources, BPA is to charge plaintiffs rates based on the costs of the FBS Resources.

In fact, plaintiffs purchase power from BPA at the “PF-83” rate which is comprised of eighty-two percent FBS Resources and eighteen percent “Exchange” resources. Exchange resources are those resources acquired by BPA pursuant to the “residential exchange” program. See Regional Power Act, § 5(c), 16 U.S.C. § 839c(c). (This program is distinct from the Hanford “exchange” contracts). FBS Resources are less expensive than other resources marketed by BPA, including Exchange resources. If all of Hanford’s output were included in FBS Resources, rather than just half the output, the PF-83 rate would consist of a higher percentage of less expensive FBS Resources (and a lower percentage of more expensive Exchange resources). This would likely result in a reduction in the PF-83 rate.

The Regional Power Act defines Federal Base System Resources as follows:

(10) “Federal base system resources” means—
(A) the Federal Columbia River Power System hydroelectric projects;
(B) resources acquired by the Administrator under long-term contracts in force on December 5, 1980; and
(C) resources acquired by the Administrator in an amount necessary to replace reductions in capability of the resources referred to in subparagraphs (A) and (B) of this paragraph.

Regional Power Act, § 3(10), 16 U.S.C. § 839a(10). See generally Mellem, Darkness to Dawn? Generating and Conserving Electricity in the Pacific Northwest: A Primer on the Northwest Power Act, 58 Wash.L.R. 245, 258-62 (1983) [hereinafter cited as Darkness to Dawn? ].

It appears that the Hanford project was a resource “acquired by the Administrator under [a] long-term [contract] in force on December 5, 1980 ....” 16 U.S.C. § 839a(10)(B). See Darkness to Dawn?, 58 Wash.L.R. at 262 & n. 135. Plaintiffs do not allege, however, that the Regional Power Act requires that the entire Hanford output be included in the FBS Resources. Rather, plaintiffs rest their case on the Requirements Contracts they signed with BPA in 1982.

The Regional Power Act mandated that BPA offer new contracts to its customers within nine months of enactment. BPA made the offer and essentially all of BPA’s customers signed on. See Darkness to Dawn?, 58 Wash.L.R. at 249. Plaintiffs signed Requirements Contracts with BPA, so denominated because they obligate BPA to meet the net firm energy requirements of these utilities. See id. at 254-57.

The generic Requirements Contract provides in part:

(c) Federal Base System Resources. The firm capability of the Federal base system resources shall be calculated from:
(1) the firm capability of the Federal Columbia River Power System hydroelectric projects, existing or hereafter constructed;
(2) the firm capability of resources listed below acquired by Bonneville under long-term contracts in force on the effective date of P.L. 96-501:
Installed Capability (MW)
(A) Hanford 860
(B) WNP No. 1 1250
(C) WNP No. 2 1100
(D) 70% of WNP No. 3 1240
(E) 30% of Trojan 1130
(F) Peak/Energy Exchange N/A
(PNW and PSW)
(G) Wind turbines 7.5; and
(3) the firm capability of resources acquired by Bonneville to replace reductions ____

(Requirements Contract, § 7(c) (Aug. 25, 1981), exhibit A to Second Amended Complaint). Although plaintiffs do not specify on which sections of the contract they rely, section 7(c) appears to be the pertinent one. I assume that 860 megawatts represents the full output of the Hanford Project.

II.

Plaintiffs’ condensed view of the preceding discussion follows. BPA markets power to various classes of customers from various generating resources with differing costs. (Second Amended Complaint, ¶ 14). The Requirements Contract mandates that BPA serve plaintiffs and the other publicly-owned utilities at a cost based on the use of Federal Base System Resources until the capability of such resources is exhausted. {Id., H15). The Requirements Contract provides that the entire output of the Han-ford Generating Project be included as an FBS Resource with its associated costs. {Id., H 16). Other resources marketed by BPA are more expensive than FBS Resources. {Id., 1117). In violation of the Requirements Contract, BPA is only treating half of the Hanford output as an FBS Resource, and is selling the other half directly to certain investor-owned utilities. {Id., 1118). Plaintiffs seek a declaration of their contract rights and an injunction prohibiting BPA from excluding any portion of Hanford’s output from the FBS Resources.

Defendants contend that the court lacks jurisdiction to entertain plaintiffs’ complaint.

In recent months, Judge Panner of this court has dismissed on jurisdictional grounds three cases arising under the Regional Power Act. Public Utility Commissioner of Oregon v. Bonneville Power Administration, 583 F.Supp. 752 (D.Or.1984) (OPUC I); Public Power Council v. Peter T. Johnson, 589 F.Supp. 198 (D.Or.1984) (PPC v. Johnson II); Pacific Power & Light v. Bonneville Power Administration, 589 F.Supp. 539 (D.Or.1984) (PP&L I). Certain principles of Regional.Power Act jurisdiction emerge from the three cases.

First,
the Ninth Circuit has exclusive jurisdiction to review (1) suits challenging the constitutionality of the [Regional] Power Act or any “action” thereunder, (2) suits challenging final actions and decisions taken under the Act by BPA’s Administrator or the Northwest Power Planning Council, and (3) suits challenging the implementation of final actions.

OPUC I, 583 F.Supp. at 755. See Regional Power Act, § 9(e)(5), 16 U.S.C. § 839f(e)(5).

Second,
The [Regional] Power Act vests exclusive jurisdiction in the Ninth Circuit to review BPA rate decisions, after those decisions are reviewed and confirmed by FERC. This court is precluded from reviewing BPA rate decisions whether those decisions are final or nonfinal.

PPC v. Johnson II, 589 F.Supp. at 204.

Third, despite a party’s attempt to characterize its claim as “a straight-forward breach of contract action ... unentangled with the merits or procedure of BPA’s rate proceeding,” PP & L I, 589 F.Supp. at 545, if Congress has statutorily provided a mechanism for the claim to be reviewed, that mechanism is exclusive. Id. at 547.

The above three principles control the jurisdictional question in this case.

Plaintiffs state:

The contractual rights of plaintiffs under their 1982 contracts regarding Han-ford can be read in harmony with the contractual rights of the IOUs under all agreements by BPA with the IOUs regarding Hanford. The IOUs’ right for Hanford arise from an exchange transaction with BPA and the Washington Public Power Supply System____
Under the exchange agreements the power BPA supplies to the IOUs is related to the entitlement to Hanford that the IOUs have exchanged with BPA. The power BPA supplies to the IOUs can be power from any source and does not depend entirely on the operation of Hanford____
Thus, BPA has acquired a long-term contractual right to 50% of the output from Hanford from the IOUs which, when coupled with the 50% the public agencies have similarly exchanged, results in the 100% of Hanford’s generating capability that is designated as a Federal Base System Resource controlled by BPA in plaintiffs’ Power Sales [Requirements] Contract. The designation of 100% of Hanford in plaintiffs’ contract is independent of BPA’s obligation to supply power to the IOUs.
Plaintiffs’ claim for relief has no effect on any of BPA’s agreement with the IOUs for Hanford____

Plaintiffs’ Memorandum in Opposition to Motion to Dismiss, pp. 16-17.

As this statement demonstrates, plaintiffs are not questioning here the allocation of Hanford’s output between the IOUs and themselves. While a contest of that sort could be expected were the Pacific Northwest suffering from energy insufficiency, see Darkness to Dawn?, 58 Wash. L.R. at 276-78, the region presently is surfeited with energy. Rather, plaintiffs’ statement is an effective concession that their chief objective is to obtain the rate benefits which inclusion of Hanford’s full output in the FBS Resources would likely provide.

On rehearing, plaintiffs argued that BPA’s allocation of only half of Hanford’s output to FBS Resources has detrimental impacts on their power planning and operational needs, as well as their rates. At oral argument, defendants’ counsel insisted that BPA has not decided what portion of Han-ford’s output to include in FBS Resources for power and operational purposes. In the 1983 rate case, the Administrator decided only that “BPA’s initial proposal correctly lists one-half of Hanford Output as an FBS energy resource for ratemaking purposes.” Administrator’s Record of Decision, 1983 Final Rate Proposal, Bonneville Power Administration, United States Department of Energy (Sept. 1983), p. 25 (attached to Defendants’ Memorandum in Support of Motion to Amend Findings, p. 19) (emphasis added).

As noted previously, section 7(i) of the Regional Power Act creates new procedures for development of BPA’s rates. 16 U.S.C. § 839e(i). Integral to that process is review and confirmation of rates by the FERC see BPA Ratemaking, 13 Envtl.L. at 959-61, followed by judicial review at the Ninth Circuit.

The Ninth Circuit recently held that it lacked jurisdiction to review certain BPA rates which had not yet been reviewed and confirmed by FERC. In Central Lincoln People’s Utility District v. Johnson, 735 F.2d 1101, 1109 (9th Cir.1984), the court concluded that it lacked jurisdiction to entertain nonconstitutional challenges to rates where its decision might be mooted by subsequent actions of BPA or FERC. Id. at 1110 (as amended on denial of rehearing). See also PPC v. Johnson II, 589 F.Supp. at 203.

Plaintiffs have a statutorily-created mechanism to challenge the exclusion of half of Hanford’s output from the FBS Resources. That mechanism is to raise the issue in an appropriate rate case where the exclusion may have an impact on plaintiffs’ rates. If BPA acts unfavorably, plaintiffs can challenge BPA’s action before FERC. If still unsatisfied, plaintiffs can file a lawsuit in the Ninth Circuit following FERC confirmation of the rates. See Regional Power Act, §§ 9(e)(1)(G), 9(e)(5), 16 U.S.C. §§ 839f(e)(1)(G), 839f(e)(5).

CONCLUSION

Plaintiffs seek to enforce a provision of the Requirements Contract they signed with BPA, looking toward rate benefits from such enforcement. Plaintiffs’ appropriate course is to challenge BPA’s actions in BPA’s rate case proceedings, as they have done. See supra notes 4-5. Ultimately, if plaintiffs establish their right to relief, the Ninth Circuit can enforce the contract. Under the Regional Power Act, this court is precluded from considering the complaint.

Defendants’ motion to dismiss for lack of subject matter jurisdiction is GRANTED.

      . In June, 1983, the IOUs indicated their collective intent to exercise their option to purchase from BPA between July 1, 1983, and June 30, 1993, an amount of energy equal to one-half of that produced by Hanford. At that time, the Montana Power Company declined to exercise its option under the 1974 Agreement but offered its share to the remaining IOUs, three of which indicated they would purchase that energy. Then, on March 5, 1984, Portland General Electric indicated it no longer wished to purchase its ten percent share of the Hanford energy and did not assign its right to another company. On March 30, 1984, the Washington Water Power Company indicated it no longer wished to purchase its share of the Hanford energy and it, too, did not assign its right to another company. By letters dated March 16, 1984, and April 4, 1984, respectively, BPA notified the two companies that it would treat the energy the companies declined to purchase as additional energy available to BPA for disposal without obligation to any company.

      . Incorporated into the Requirements Contract is an Exhibit A entitled "Wholesale Power Rate Schedules and General Rate Schedule Provisions," but plaintiffs did not include this exhibit in the attachment to their Second Amended Complaint.

      . During a period of insufficiency, BPA may not restrict the entitlements to power of publicly-owned utilities, municipalities, cooperatives, and federal agencies below the total capability of the Federal Base System Resources. See id. at 277 & n. 265.

      . Plaintiffs challenged BPA’s action in the 1983 rate case which is now pending before FERC. See Administrator’s Record of Decision, 1983 Final Rate Proposal, Bonneville Power Administration, United States Department of Energy (Sept. 1983), pp. 24-26 (attached to Defendants’ Memorandum in Support of Motion to Amend Findings, pp. 18-20).

      . If BPA takes final action determining plaintiffs’ share of Hanford’s output for power and operational purposes, plaintiffs can presumably invoke section 9(e)(5) of the Regional Power Act and seek judicial review directly at the Ninth Circuit. See 16 U.S.C. § 839f(e)(5).


source: Caselaw Access Project

author: JAMES R. MILLER, Jr., District Judge.

license: Public Domain

text:
    WESTERN WORLD INSURANCE COMPANY, INC. v. HARFORD MUTUAL INSURANCE COMPANY.
    Civ. A. No. M-83-2599.
    United States District Court, D. Maryland.
    Oct. 31, 1984.
    On Motion for Reconsideration Dee. 19, 1984.

      Howard J. Schulman, Baltimore, Md., for plaintiff.
    Frank X. Gallagher, Baltimore, Md., for defendant.
   MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

This is a civil action brought by Western World Insurance Company, Inc. (Western World) against Harford Mutual Insurance Company (Harford). Plaintiff seeks a judicial determination of the respective rights and liabilities of the plaintiff and defendant insurers in connection with the defense and coverage of the defendants in a case filed in this court in 1982, entitled Sampson v. Mears, et al., Civil Action No. M-82-2263.

The present ease was tried without a jury on October 1 and 2,1984. This Memorandum constitutes the court’s findings of fact and conclusions of law, as required by Fed.R.Civ.P. 52, whether or not specifically so denominated. Due regard has been given to the credibility of the witnesses.

I. Findings of Fact

On August 8, 1981, Officer Scott Mears was on duty as a uniformed police officer of the City of Cambridge. After observing two cars which appeared to be racing, Officer Mears and his partner gave pursuit. When one of the vehicles stopped, the officers continued to pursue the other vehicle, driven by Timothy Sampson. Following a high speed chase through residential areas, the vehicle driven by Sampson drove into the school grounds of St. Claire Elementary School. When Sampson jumped out of his car and began running, Officer Mears gave chase on foot.

Around the corner of the school building, Sampson turned toward Mears. Mears, believing that Sampson had a gun and was about to shoot, drew his service revolver and fired one bullet at Sampson. This bullet apparently ricocheted off of a wall behind Sampson, and then struck Sampson in the head. The gun that Mears believed he had seen was not found, but a rolled up cap was found in Sampson’s hand.

The plaintiff asserts that Officer Mears fired by reflex action without aiming at anything. The evidence is clear, however, that Officer Mears shot at Sampson.

It was the policy of the Cambridge Police Department that its officers were not to fire warning shots at any time.

Officer Mears was indicted for common law battery, assault with intent to murder, and the use of a handgun during a felony. The case was tried before a jury in the Circuit Court for Kent County on December 14-16, 1981, and Mears was acquitted on all counts.

On the date of the shooting, two insurance policies were in force which are relevant to this case. First, the City of Cambridge was covered by a general comprehensive liability policy issued by Harford, through Harrington Insurance Agency (Harrington). This policy required Harford to:

“... pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury, or
B. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage.” [Emphasis added.]

The policy defines an “occurrence” as being:

“... an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” [Emphasis added].

This policy contained an endorsement form, under which the “persons insured” provision was amended to include as additional insureds “any employee of the named insured while acting within the scope of his duties.” There is no dispute that Officer Mears was acting within the scope of his duties when the incident occurred. Additionally, the policy provided that it afforded primary insurance, with a limit of liability stated as $1,000,000.

In addition, there was in force a law enforcement liability policy issued by Western World through Harrington, as procuring agent, insuring the Cambridge Police Department, the Mayor and City Council and Police Commissioners of Cambridge. The Western World policy promises to:

“... pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of negligent acts, errors or omissions of the insured as follows:
Coverage A — Personal Injury
Coverage B — Bodily Injury
to which this insurance applies, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such personal injury or bodily injury...”

The Western World policy defines “bodily injury” as:

“bodily injury, sickness or disease sustained by any person accidentally caused by any act of the insured in making or attempting to make an arrest while acting within the scope of his duties as a law enforcement officer.”

The policy defines “personal injury” in pertinent part as:

"... assault and battery, if committed while making or attempting to make an arrest____”

[Emphasis added]. The policy specified that it was:

"... excess insurance over any other valid and collectable insurance available to the insured____”

The limits of the Western World policy were $100,000 for each person and $300,000 for each incident.

Western World received notice of the shooting on September 3, 1981, by virtue of a loss notice sent from All Risks, Ltd., Western World’s general agent, to which Harrington had reported the incident. Upon receipt of this notice, Western World retained Crawford & Co., an adjusting company, to investigate the shooting. Robert Purnell of Crawford & Co. handled the investigation, and on October 22, 1981, he submitted a report to Western World indicating that Mears’ criminal trial was scheduled to begin on December 14, 1981, and recommending that the trial be monitored. Due to the pending criminal charges against Mears and the subsequent criminal trial, most of Mr. Purnell’s investigation was not done until mid-1982. On June 11, 1982, Purnell sent a report to Western World, in which he described the shooting as follows:

“In an effort to avoid the police, Sampson drove the vehicle onto a school yard across basketball courts and tennis courts and spun around hoping to elude the police, however, Officer Mears’ police cruiser was blocking the entrance and Sampson could not get off the school property. He attempted to ram the cruiser, however, stopped short of doing this, then jumped out and began running. Officer Cheeseman jumped out and yelled ‘police’ and at that point, Sampson turned with an object in his hand. It was believed to be a gun, however, later turned out to be a hat that was rolled up. At this point, Officer Mears fired his weapon at Sampson who was approximately fifty feet away from him and running. It was later proven that the bullet from Mears’ weapon struck a brick wall of the school and ricocheted back striking Sampson behind the left ear, entering his skull and lodging behind his right eye.”

Purnell recommended that Western World deny liability for the shooting, and Western World did deny liability.

On August 5, 1982, Timothy Sampson filed a civil complaint in this court, alleging violations of 42 U.S.C. § 1983, and naming as defendants Officer Mears, Police Chief Russell E. Wroten of the Cambridge, Maryland Police Department, and the May- or and Commissioners of the City of Cambridge. The complaint alleged that the shooting of Sampson by Mears was wrongful, or “so wantonly or grossly negligent as to constitute willfulness.” With respect to Chief Wroten and the City, the complaint alleged that they were vicariously liable for the acts of Mears and that they were independently liable for negligent hiring and supervision.

Upon receipt of the complaint from Harrington, Western World retained Edward Mackie, Esq. to defend all defendants in Sampson. At that time, Lynn Rupp, Western World’s claims adjuster, advised the defendants in Sampson and Harrington that there were possible coverage problems. On August 18, 1982, Harrington sent notice of the suit to Harford. Apparently, this is the first notice that Harford had received regarding either the incident or the suit.

On August 19, 1982, Mr. Rupp sent letters of reservation to the defendants in Sampson. On September 14, 1982, Richard Matthews, the City Attorney of Cambridge, sent a letter to Western World contesting the reservation of rights, indicating that, because a conflict existed between the interests of Mears and the other defendants, the City and Chief Wroten had engaged Francis B. Burch, Esq. to represent them, and requesting that Western World agree to pay the cost of Mr. Burch’s services. Western World agreed to this request on September 20, 1982.

On September 30, 1982, Mr. Rupp telephoned Charles Foley, the claims adjuster for Harford, and was told that Harford had made no decision as to whether it would provide a defense or indemnification. On October 25, 1982, Harford received a letter from Western World, dated October 8, 1982, formally tendering the defense in Sampson to Harford. Mr. Rupp subsequently called and wrote Harford on several more occasions, because he had received no response. Finally, on June 14,1983, Mr. Foley advised Mr. Rupp that Harford would take no action in Sampson and would not contribute to a defense or provide indemnification.

Meanwhile, on December 17, 1982, this court dismissed some of the claims against Chief Wroten and the City, and on July 18, 1983, a stipulation was filed in Sampson in which all remaining claims against Chief Wroten and the City were dismissed, leaving Officer Mears as the only defendant. Also on July 18, 1983, Western World filed this suit against Harford. As the trial date in Sampson approached, Mr. Rupp contacted Mr. Foley and invited him to participate in settlement negotiations, but Mr. Foley declined. Shortly before trial in Sampson, Western World and Sampson reached a settlement agreement, pursuant to which Western World paid Sampson $45,000, and Sampson executed a general release. At trial in the present case, the parties stipulated that the $45,000 settlement was a fair and reasonable one.

With respect to attorneys’ fees, it was stipulated at this trial that 85% of Mr. Mackie’s fee was to represent Officer Mears, while the remaining 15% was to represent Chief Wroten and the City. Mr. Burch’s time was devoted entirely to representing Chief Wroten and the City. It was also stipulated that the total fee of Mr. Mackie was $9,392.25 and of Mr. Burch was $19,416.58 and that both fees were fair and reasonable. All fees were paid by Western World. In addition, Western World paid $420.75 to Crawford & Co. for its investigation and deposition costs of $403.65.

After the settlement in Sampson, Western World obtained an assignment of rights from Mears, Wroten, and the City of Cambridge.

II. Conclusions of Law

The plaintiff contends that the acts of Officer Mears toward Sampson constitute an “occurrence” within the meaning of Harford’s policy and, therefore, requests this court to find Harford liable for (1) all defense costs in Sampson, (2) the $45,000 settlement, and (3) the costs of bringing this action. Harford asserts that the shooting was an intentional act, covered by Western World’s policy but not by Harford’s, and that this fact was clear when the underlying action was filed. Harford asserts that it is not liable for any of the costs, either in this case or in Sampson, and that'it is not liable for the settlement.

The standards for determining coverage and an obligation to defend are different and will be examined separately as they apply to the facts of this case.

A. Coverage

In a Memorandum and Order issued September 7, 1984, this court held that notwithstanding its earlier finding that Harford had a duty to defend, Harford was not precluded from asserting at trial of the present case that it had no liability on the underlying claim. Whether coverage exists depends upon whether the acts of Officer Mears fall within the parameters of Harford’s policy. There is no dispute that the incident is covered by Western World’s policy, nor is there any dispute that Western World's coverage is excess coverage, which becomes effective if, and only if, the incident is not covered under Harford’s policy.

Harford’s policy covered only an “occurrence,” defined in the policy as an “accident” which results in “bodily injury neither expected nor intended from the standpoint of the insured.” Harford argues that the shooting was an intentional act and, therefore, not covered by its policy. This court has found that Mears drew his gun and fired, intending to shoot at Sampson. Nevertheless, Western World has made two arguments in which it claims that, even under these circumstances, the act involved here is covered by Harford’s policy.

First, Western World argues that, even assuming that Mears intended to shoot Sampson, the shooting is an “occurrence” under Harford’s policy because Mears had no specific intent to injure Sampson. This argument is without merit.

The general rule is that only intentional injuries are excluded under policies such as Harford’s and that, therefore, coverage exists for the unintended results of intentional acts. See 7A Appleman, Insurance Law and Practice, § 4492.02. This rule has been applied to situations involving shootings, where the insured did not intend to injure the individual who was shot. See, e.g., State Farm Mutual Insurance Co. v. Worthington, 405 F.2d 683 (8th Cir.1968) (coverage available where warning shots struck individual); Grange Mutual Casualty Co. v. Thomas, 301 So.2d 158 (Fla.1974) (coverage existed where person was injured during family quarrel, and insured may have intended to shoot another person); Smith v. Moran, 209 N.E.2d 18 (Ill.1965) (coverage existed where injured individual was standing next to person at whom the insured was aiming); Jackson v. Lajaunie, 253 So.2d 540 (La.1971) (coverage where insured shot person during horseplay with gun thought to contain blanks); Lyons v. Hartford Insurance Group, 125 N.J.Super. 239, 310 A.2d 485 (1973) (remanding for new trial, and stating that, if the insured’s intent was to fire a warning shot, but he unintentionally fired prematurely, then coverage existed); Otterman v. Union Mutual Fire Insurance Co., 130 Vt. 636, 298 A.2d 547 (1972) (court found coverage where bullet fired by insured went through wall and struck a police officer, whose presence was unknown to the insured).

Courts have also held uniformly that where an insured has shot an individual intentionally, coverage will be denied even where the injury inflicted is different or more severe than intended. See, e.g., Stout v. Grain Dealers Mutual Insurance Co., 307 F.2d 521 (4th Cir.1962) (no coverage where insured shot and killed “peeping tom”); Hartford Fire Insurance Co. v. Wagner, 296 Minn. 510, 207 N.W.2d 354 (Minn.1973) (no coverage where insured shot his companion intending to injure, but the companion was killed); Lyons, 310 A.2d 458 (in remanding for trial, court stated that if the insured intended to maim or kill the person who was shot, then no coverage existed).

Intent to injury may be shown by proof of actual intent to injure, or it may be inferred from the nature and character of the act. See, e.g., Home Insurance Co. v. Neilson, 165 Ind.App. 445, 332 N.E.2d 240, 243 (1975); Smith v. Senst, 313 N.W.2d 202, 203 (Minn.1981); Casperson v. Webber, 298 Minn. 93, 213 N.W.2d 327, 330 (1973); Travelers Insurance Co. v. Cole, 631 S.W.2d 661 (Mo.1982).

In Cole, for example, the Missouri Court of Appeals held that intent to harm could properly be inferred where the insured discharged a gun pointed at a police officer. The court stated:

“Injury or damage is intentional if the insured acts with the specific intent to cause harm or if the insured’s intent to harm is inferred as a matter of law from the nature and character' of the act____ Intent to harm is inferred if the natural and probable consequences of an act are to produce harm____
The insured’s actions in discharging a gun at Officer Didden in the insured’s residence was a dangerous act from which harm was almost certain to result____ The trial court could properly infer the insured’s intent to harm from such facts.”

631 S.W.2d at 664 (citations omitted).

In this case, it is clear that Mears, afraid that his own life was in danger, drew his gun and fired one shot at Sampson. The fact that the bullet ricocheted off the wall before striking Sampson indicates only that the injury inflicted was different from that intended, which, under prevailing law, does not detract from the intentional nature of the act. Furthermore, whether or not Mears stated that he actually intended to inflict injury upon Sampson is not important, as such intent can be inferred from the nature of his act of shooting at Sampson.

The second argument on which the plaintiff bases its claim that the shooting constituted “an occurrence” is that even the intentional result of an intentional act is within the coverage of an insurance policy such as that issued by Harford, where the intentional act is justifiable because done in self-defense. Harford does not contest the fact that the shooting was in self-defense, but asserts that, whether in self-defense or not, the intentional result of an intentional act is not covered by its policy.

Western World cites several cases in support of its position, but the court does not find them convincing. For example, in Walters v. American Insurance Co., 185 Cal.App.2d 776, 8 Cal.Rptr. 665 (1960), the court construed a policy that excluded “intentional” acts, without defining the term. After finding the term ambiguous, the court looked to the California Insurance Code, which stated that insurance companies were not liable for damage resulting from “wilful acts.” After determining that “wilful” connoted some degree of wrongfulness or culpability, the court held that the act of self-defense was not intentional.

In Brasseaux v. Girouard, 269 So.2d 590 (La.App.1972), the Court of Appeals of Louisiana held that when a person has an honest belief that he is faced with a situation calling for self-defense, and he intentionally inflicts personal injury as a result, he is not excluded from coverage even if he was negligent in assuming that he had a right to defend himself. On rehearing, however, the court found that the insured in that case had acted unreasonably in defending himself, and therefore the act was intentional and excluded from coverage.

Finally, in Putman v. Zeluff, 372 Mich. 553, 127 N.W.2d 374 (1964), the insured teenage boy shot a pedigreed hunting dog thinking that it was a wild dog about to attack him. The court noted that, although he intended to fire the gun and intended to stop the dog, there was a question as to whether he intended to destroy it. On this basis, the court held that coverage existed.

These authorities are limited in number and scope compared to the number of cases which have held specifically that a possible justification of self-defense does not save an otherwise intentional act from an intentional injury exclusion. See, e.g., Hartford Accident and Indemnity Co. v. Krekeler, 363 F.Supp. 354 (E.D.Mo.1973), rev’d on other grounds, 491 F.2d 884 (8th Cir.1974); Lockhart v. Allstate Insurance Co., 119 Ariz. 150, 579 P.2d 1120 (1978); Clemmons v. American States Insurance Co., 412 So.2d 906 (Fla.1982); Heshelman v. Nationwide Mutual Fire Insurance Co., 412 N.E.2d 301 (Ind.1980), rehearing denied (1981); Home Insurance Co. v. Neilsen, 165 Ind.App. 445, 332 N.E.2d 240 (1975); McAndrews v. Farm Bureau Mutual Insurance Co., 349 N.W.2d 117 (Iowa 1984). These cases held that an intentional act, even if in self-defense, is excluded from coverage under an intentional act exclusion.

In Clemmons, the court found no difference, with respect to coverage, between a robber who shot an individual who was pursuing him and an individual who shot in self-defense.

“Each did the same act: intentionally discharging a firearm while intentionally aiming it toward another human being. Each caused the same obviously foreseeable immediate result: the projectile intentionally sent forth struck the human to which it was intentionally directed and, as was to be expected, inflicted serious bodily injuries. Each did his act for a specific ultimate purpose or motive: Draffen to avoid being caught, Leeper to avoid harm to himself. Each can fairly and charitably be assumed to have preferred to accomplish his ultimate purpose (the avoidance of capture or the avoidance of harm to himself) without the necessity of causing injury to another. Each found he was in a dilemma and had to make a choice between inflicting injury on another or not achieving his ultimate desire. Each made a decision and decided to inflict injury rather than suffer the alternative presented. Without regard to the difference between Leeper and Draffen, morally and under criminal law concepts, when each intentionally caused bodily injuries to another by intentionally shooting him, each acted within their insurance policy exclusion, notwithstanding that the ultimate purpose of each was to accomplish a distant objective or goal quite beyond and detached from the intended act of shooting and the immediate obvious result of thereby inflicting serious bodily harm.”

412 So.2d at 909.

In Lockhart, the Court of Appeals of Arizona held:

“The insurance policy excludes coverage for an intentional act of the insured which was intended to cause injury or which could be expected to cause injury. The question of self-defense presents an issue of motive or justification for an intentionally caused harm but does nothing to avoid the inference of intent to harm that necessarily follow Lockhart’s deliberate shooting at Owes. Lockhart’s own statement demonstrates that he intended to shoot the gun and to cause injury. Whether he intended the precise injuries which occurred is immaterial. We are of the opinion that despite Lock-hart’s affidavit stating that he fired his gun only to protect himself and to prevent Owes from shooting him, there is no factual issue as to his intent which would preclude granting summary judgment.”

579 P.2d at 1122-23 (citations omitted).

Similarly, in Neilson, the insured argued that his striking of the victim was done in self-defense. The court stated:

“However, Neilsen [the insured] urges that even under the standard we have accepted, he is entitled to the benefits of coverage because he intended self-defense rather than injury to Smolek. We disagree. The question of self-defense is a standard of Neilsen’s liability to Smolek. It presents an issue of motive or justification for an intentionally caused harm, but it does nothing to avoid the inference of intent to harm that necessarily follows the deliberate blow to Smolek’s face.”

332 N.E.2d at 244. See also McAndrews, 349 N.W.2d at 120 (adopting this rationale).

The cases finding that the possible justification of self-defense does not prevent the incident from being an intentional act are clearly in the majority. Their rationale will be applied here.

Under the facts as found by this court, it cannot be claimed that the shooting of Sampson was “neither expected nor intended from the standpoint of the insured.” The shooting, therefore, was not an “occurrence” within the meaning of Harford’s policy, and Harford cannot be liable for the coverage of Officer Mears.

With respect to the claims against Chief Wroten and the City of Cambridge, however, it is clear that the shooting was “neither expected nor intended” from their point of view. Thus the claims made as to them related to “occurrences” under the Harford policy. Since all claims against these defendants had been dismissed prior to settlement, however, none of the $45,000 settlement amount can be attributed to them. Therefore, this court holds that Harford is not liable for any of the amount paid in settlement of the claims in Sampson.

B. Obligation to Defend

Despite the fact that Harford’s policy does not cover the shooting, it is possible that Harford could have had an obligation to defend some or all of the defendants in Sampson, because the obligation to defend is broader than the obligation to pay a final judgment. This court examined the legal principles governing a dispute as to the existence of an obligation to defend in its Memorandum and Order of May 7, 1984, and will not repeat that discussion here. It is sufficient to state that the insurer has an obligation to defend if, under the facts as alleged in the complaint, there is a “potentiality” that the claim could be covered by the policy. Brohawn v. Transamerica Insurance Co., 276 Md. 396, 407-08, 347 A.2d 842 (1975). See also Southern Maryland Agricultural Association, Inc. v. Bituminous Casualty Co., 539 F.Supp. 1295 (D.Md.1982); St. Paul Fire & Marine Insurance Co. v. Pryseski, 292 Md. 187, 438 A 2d 282 (1981); Ed. Winkler & Son, Inc. v. The Ohio Casualty Insurance Co., 51 Md.App. 190, 441 A.2d 1129 (1982).

In the Order of May 7, 1984, this court held that Harford had a duty to defend each of the defendants in Sampson. In an oral opinion issued on September 26, 1984, this court adhered to the earlier finding that, looking only at the language of the complaint in Sampson, there was a duty to defend on the part of Harford as between it and the insured, and that some formal action would need to be taken in the underlying case eliminating the potentiality of coverage to absolve Harford of its duty to defend. This court also held, however, that the fact that this case involved two insurers made it different from most insurance cases, and if, in fact, Western World assumed the defense and thereby prejudiced Harford, or if the facts were that Western World was in a position to know that the underlying circumstances were beyond the coverage of Harford’s policy, then it would be unfair, inequitable, and contrary to law to allow Western World to recover its attorneys’ fees for the defense provided in Sampson.

With respect to the City and Chief Wroten, Harford had a duty to defend. The claims of negligent hiring and supervision were potentially within Harford’s policy, and Harford must reimburse Western World for its expenses in defending these two defendants.

With respect to Officer Mears, although this court will adhere to its original holding that the claim as alleged in the Sampson complaint was potentially within the coverage of Harford’s policy, the evidence shows that Western World knew, or should have known through its investigation, that the underlying facts constituted a situation which was outside the coverage of Harford. Although Harford had a duty to represent Chief Wroten and the City, the “potentiality” rule adopted in Maryland in Brohawn did not cause Harford to have a duty to defend all defendants in Sampson, simply because one or more defendants had a possible claim against it for indemnification. Where, as here, there are multiple defendants, the insurer must defend only those defendants as to whom claims are made which potentially are within the insurer’s coverage.

Furthermore, there is no indication that Western World or its assignors made any attempt to notify Harford of the incident until after Western World observed the ambiguity in the complaint filed by Sampson. In this respect, the case is similar to the case of Breeding Transport v. American Fidelity and Casualty Co., 175 Okl. 508, 54 P.2d 156 (1936). In Breeding Transport, the insured owned two trucks, one of which was covered by an insurance policy. When the uninsured truck was involved in an accident, the insured wrote the insurer a letter saying that the truck that had been in the accident was not the one covered by the policy. The complaint filed in the action, however, did not specify which truck had been involved in the accident, and the insured brought a suit for the cost of defending the action. In sustaining a demurrer filed by the insurer, the court found that the insured knew that no claim existed, had proceeded on that basis by paying for his own defense, and only subsequently decided to sue for the cost of the defense because of the ambiguity in the pleading.

In this case, Western World was aware of the shooting from the beginning and was conducting an investigation from that time. Western World did not notify Harford of the incident until after suit was filed, despite the near certainty that a suit would be filed by Sampson. At the time suit was filed by Sampson, it was clear, at least with respect to defendant Mears, that the shooting was an intentional act. Under these circumstances, it would be inequitable to reimburse Western World for the cost of defending Officer Mears.

Harford, therefore, is liable for the entire fee of Mr. Burch in the amount of $19,416.58, because his representation was entirely on behalf of Chief Wroten and the City. Harford is also liable for 15% of Mr. Mackie’s fee, or $1,408.84, as the parties stipulated that this amount was in representation of Chief Wroten and the City. Western World is responsible for the remainder of Mr. Mackie’s fee, or $7,983.41.

With respect to the $420.75 claimed by Western World as payment to Crawford & Co. for an investigation of Sampson’s claim, this cost is a part of the normal operating expense of the plaintiff and not recoverable. In addition, Western World claims $403.65 as costs incurred for depositions. As this amount is not further differentiated, no apportionment is possible, and no recovery will be permitted of this amount.

C. Liability for Costs of this Action

In Maryland, the law is settled that an insured may recover from its insurer the attorneys’ fees and expenses incurred by the insured in bringing a declaratory judgment action against the insurer for failure to defend. Cohen v. American Home Assurance Co., 255 Md. 334, 258 A.2d 225 (1969). See also Travelers Indemnity Co. v. Rosedale Passenger Lines, Inc., 55 F.R.D. 494 (D.Md.1972); Government Employees Insurance Co. v. Taylor, 270 Md. 11, 310 A.2d 49 (1973). Here Western World has been assigned the rights of the insureds, and unless the circumstances warrant different treatment, Western World stands in the shoes of the insureds.

While Western World has prevailed as to a part of its claims in this action, it has not prevailed as to the monetarily larger part. In the event plaintiff contends under those circumstances that it is nevertheless entitled to recover all or a part of its attorneys’ fees and costs incurred in the present suit, it should so advise the court within fifteen (15) days and the defendant will have, in that event, ten (10) days thereafter to respond.

It is SO ORDERED.

ON MOTIONS FOR RECONSIDERATION

Plaintiff and defendant have both moved for reconsideration of portions of the court’s Order of October 31, 1984. No hearing is deemed necessary by the court. Local Rule 6(E).

I.

The plaintiff pointed out a factual error in the court’s Memorandum of that date on page 7, note 13, where the court stated there was no evidence of whether Harrington was a general agent of Harford. As plaintiff correctly stated, Mr. Foley testified that Harrington was a general agent of Harford, and the court so finds as an amendment to its previous findings. Under the circumstances here, however, the fact that Harrington was Harford’s general agent is immaterial since “at the time suit was filed by Sampson, it was clear, at least with respect to defendant Mears, that the shooting was an intentional one” (Paper No. 37, p. 22). The implication in the court’s prior Memorandum of October 31, 1984 that Harford did not have notice of the shooting until after Western World notified it is erroneous but of no dispositive weight under the circumstances.

II.

As to the other arguments made by Harford and Western World in their respective motions for reconsideration, the court remains unpersuaded. The cross motions for reconsideration will be denied.

III.

Western World contends it is entitled to its fees and costs in the sum of $7,731.75 in connection with this present suit in which it has won a partial victory over Harford. If Harford, assuming the legal correctness of the court’s ruling of October 31, 1984, disputes the right of Western World to recover any of its fees or costs in this suit, it should file a memorandum, with appropriate citations of authority, to that effect within fifteen (15) days. If Harford contests the factual allocation of fees and costs in the sum of $7,731.75, as proffered by the plaintiff, or the reasonableness of the same, Harford should likewise advise the court in writing by that same date, in which latter event an evidentiary hearing will be scheduled, if appropriate.

It is SO ORDERED.

      . Mears testified at this trial that he had shot at Sampson out of fear for his own life. This testimony is consistent with Mears’ prior testimony in his criminal trial (DX 6, Transcript of State v. Mears, Criminal No. 2904 in the Circuit Court for Kent County, Maryland, at 268) and with the testimony given by Mears in a deposition taken of him in the underlying tort case (DX 6, Deposition of Scott B. Mears, Sr. in Sampson v. Mears, Civil No. M-82-2263, taken April 28, 1983, at 75).

      . This fact was confirmed by both Mears' testimony and the Rules and Regulations of Cambridge, Maryland Police Department, submitted as DX 10.

      . PX 2, Policy No. SMP 19220220.

      . Id.) form L9106.

      . PX 1, Policy No. LEL00127.

      . DX 1.

      . DX 3.

      . DX 2 at 4.

      . Sampson v. Mears, et al., Civil Action No. M-82-2263, Paper No. 1.

      . Id., Count I at ¶ 1.5.

      . Id, Counts II, III, V, and VI.

      . PX 25.

      . Western World contends that Harrington is the general agent of Harford and that, therefore, Harford had notice of the claim much earlier than August 18, 1982. No evidence as to whether Harrington is Harford’s general agent, however, was presented at trial. In any event, the court finds that this information is not necessary for resolution of the case, as the Sampson case was not filed until almost one full year after the shooting, by which time it was clear that the shooting was an intentional act excluded from coverage under the Harford policy.

      . PX 4.

      . PX 13.

      . DX 11, Paper No. 37 in Sampson v. Mears, Civil Action No. M-82-2263.

      . PX 19, Western World check No. 27513 made payable to Timothy Sampson and his attorneys in the amount of $45,000.

      . PX 5-7.

      . Paper No. 25.

      . Paper No. 14 at 1-4.


author: PIERAS, District Judge.

text:
    Celso Lopez LOPEZ, Plaintiff, v. M. ARAN; J. Figueroa; I. Moreno, individually and as agents of the U.S. INS; Allen C. Nelson; and James H. Walker, Defendants.
    Civ. No. 83-2388 (JP).
    United States District Court, D. Puerto Rico.
    Oct. 31, 1984.

      Jose A. Lugo, Rio Piedras, P.R., William Santiago Sastre, San Juan, P.R., for plaintiff.
    Eduardo Toro Font, Asst. U.S. Atty., Lolita Semidey, I.N.S., Hato Rey, P.R., for defendants.
   OPINION AND ORDER

PIERAS, District Judge.

This is an action brought by Celso López López (plaintiff) pursuant to the Fourth and Fifth Amendments of the United States Constitution, seeking declaratory and injunctive relief against INS Commissioner Allen Nelson, INS District Director James Walker and INS agents M. Aran, J. Figueroa and I. Moreno in their official capacity for abuse of their statutory authority. In addition, plaintiff is seeking compensatory and punitive damages against defendants Aran, Figueroa and Moreno in their personal capacity under the constitutional tort theory established in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiff has invoked the jurisdiction of 28 U.S.C. § 1331 to support his Bivens-type claim.

On July 10, 1984, defendants filed a Motion to Dismiss and/or for Summary Judgment pursuant to Rules 12 and 56 of the Federal Rules of Civil Procedure. This Court takes said motion as one for summary judgment. On August 9, 1984, plaintiff filed an Opposition to Motion to Dismiss and/or for Summary Judgment. On the basis of the defendants’ Motion for Summary Judgment and plaintiff’s Motion in Opposition, together with the accompanying affidavits and documents submitted, this Court reaches the following determinations of fact and law with regard to plaintiff’s claim for compensatory and punitive damages against defendants Aran, Figueroa and Moreno.

A. FINDINGS OF FACT:

The material facts required for this Court’s disposition of plaintiff’s Bivens -type action are not in dispute.

1. Defendant Ivette Moreno was stationed and working as an agent of the United States Immigration and Naturalization Service (hereinafter INS) at the Isla Verde International Airport in Puerto Rico on or about July 16, 1982. Defendants María del Mar Arán and Juan E. Figueroa were both stationed and working as agents of the INS at the Isla Verde International Airport on or about October 2, 1982.

2. Plaintiff Celso López López is a United States citizen and a resident of the Commonwealth of Puerto Rico. He is also an attorney with experience in immigration law.

3. Plaintiff filed this complaint on September 30, 1983.

4. On or about July 16, 1982, after 4:00 p.m., plaintiff approached Gate No. 7 at Isla Verde International Airport to board a Capitol Airlines flight bound for New York City. Defendant Moreno was conducting pre-boarding immigration inspection of passengers enroute to New York.

5. As part of the inspection, defendant Moreno questioned plaintiff about his citizenship. Plaintiff did not answer and instead presented a card to defendant which read “Do you suspect that I am an alien?” Defendant Moreno then proceeded to conduct inspection of other passengers in line. Plaintiff then asked defendant whether she would let him go through. Agent Moreno responded affirmatively, explaining that she knew from his answer that he was Puerto Rican. Plaintiff then verbally challenged defendant Moreno’s authority to question him regarding his citizenship before walking away to board his flight.

6. On or about October 2, 1982, plaintiff approached Gate No. 3 at Isla Verde International Airport in order to board an Eastern Airlines flight bound for Baltimore-Washington International Airport. Defendants Arán and Figueroa were conducting preflight immigration inspection near the Eastern departure gate.

7. As plaintiff passed the agents, defendant Figueroa asked plaintiff his country of citizenship. Plaintiff did not reply, but looked at the agents as he proceeded past them to place his luggage on the conveyor belt at the security inspection point. The defendants followed plaintiff to the security checkpoint and agent Figueroa repeated the question. Plaintiff then presented the prepared card which read “Do you suspect that I am an alien?” Defendant Arán then made a statement which evidenced her knowledge of the July 16, 1982 incident with defendant Moreno.

8. As agent Arán proceeded to conduct pre-inspection of other passengers, agent Figueroa continued the attempt to inspect plaintiff. Plaintiff’s luggage had not been allowed to go through the security X-ray.

9. After Arán rejoined Figueroa, plaintiff attempted to pass through the departure gate, but was impeded by a security guard. Plaintiff then sought out an Eastern Airlines Supervisor, after which he retrieved his luggage and left the departure area without boarding the plane.

B. CONCLUSIONS OF LAW:

1. Whether Plaintiff Has Properly Pleaded a Bivens-Type Cause of Action.

Defendants Arán, Figueroa and Moreno argue that plaintiff, naming them “individually and as agents” in the caption to the complaint, is attempting to recover damages from them in their official capacity. In order to do so, say the defendants, plaintiff must sue under the Federal Tort Claims Act (hereinafter FTCA), not directly under the Constitution in tort as done in Bivens. The government further argues that, since plaintiff has not exhausted his administrative remedies under the FTCA, plaintiff is barred from recovery of any damages against the United States in this Court.

Plaintiff appears to be in full agreement with defendant’s conclusion that no recovery in damages against the United States is possible in this case. In his opposition to defendant’s motion for summary judgment and in his supporting affidavit, plaintiff states that he is suing the agents under a Bivens action in their personal capacities only.

There is no question that a Bivens action may be brought against federal officials in their individual capacity even if plaintiff could have instituted an action under the FTCA so long as said remedy is not equally effective. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). Even assuming that plaintiff’s intentional tort claims against the federal agents in this case met the exception to the exception provided in 28 U.S.C. § 2680 for suit under the FTCA, the advantages to plaintiff of the Bivens action over the FTCA remedy in allowing punitive damages and going beyond the limits of state law support plaintiff’s right to opt for a Bivens-type remedy. Furthermore, there is no reason why plaintiff may not sue the government agents personally for damages while simultaneously suing the United States agency and the agents officially for injunctive and declaratory relief. See American Association of Commodity Traders v. Dept. of the Treasury, 598 F.2d 1233 (1st Cir.1979) (plaintiff could have sued federal agents personally while suing United States agency, although sovereign immunity of the United States would not be waived).

Although plaintiff’s complaint is somewhat obfuscated, it cannot be said that plaintiff has failed to properly plead a Bivens -type cause of action. Plaintiff has invoked the jurisdiction of 28 U.S.C. § 1331 as required. In addition, plaintiff has asserted constitutionally protected rights under the Fourth and Fifth Amendments. Plaintiff has also stated a cause of action for damages, charging the federal agents with commission of the torts of false imprisonment and intentional infliction of emotional distress. Plaintiff has prayed for compensatory damages in the amount of $21,030.00, which includes $1,000.00 for loss of a day in school in Washington, D.C., and $30.00 for ground transportation resulting from plaintiff’s missed flight, as well as $10,000.00 in punitive damages.

Furthermore, neither of the situations in which a cause of action under Bivens can be defeated is present in this case. First, this case involves no special factors counseling hesitation in the absence of affirmative action by Congress since the federal agents sued here enjoy the adequate protection of the qualified immunity defense. See Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Second, there is no explicit congressional declaration that an alternative exclusive remedy exists; plaintiff has the option of electing between a FTCA and a Bivens remedy. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).

2. Whether Bivens Action Against Defendant Moreno Is Time-Barred.

The government has argued that the one year statute of limitations for tort actions in Puerto Rico should be applied to Bivens-type actions as it has been to civil rights actions under 42 U.S.C. § 1983. See, e.g., Ramírez de Arellano v. Alvarez de Choudens, 575 F.2d 315, 318 (1st Cir.1978) (applying 31 L.P.R.A. 5298 to bar plaintiff’s 1983 action). If applied, plaintiff’s action against Ivette Moreno for her conduct on or about July 16, 1982 would be barred.

There is no direct Supreme Court ruling on this issue. However, the Supreme Court has held that the body of law governing official immunity under 42 U.S.C. § 1983 should apply to Bivens -type actions as well in order to avoid the incongruous treatment which would otherwise result, especially where federal and state officials are sued for the same civil rights violations. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Although the Circuits which have addressed the issue of a Bivens statute of limitations have agreed that the most analogous state law statute of limitations should be applied, there is disagreement over whether to use the limitations period prescribed for tort actions, for actions not otherwise prescribed by law, or for other analogous causes of action. E.g., Beard v. Robinson, 563 F.2d 331 (7th Cir.1977); Regan v. Sullivan, 557 F.2d 300 (2d Cir.1977).

There exists persuasive precedent directing the application of the one-year Puerto Rico tort statute of limitations in this case. In an unpublished per curiam opinion in 1980, the First Circuit affirmed this Court’s application of the one-year tort statute of limitations to a Bivens action decided in an unpublished opinion of this Court written by the Chief Judge of the District Court of Rhode Island sitting by designation. Guillen de Santiago v. Simonpietri-Monefeldt, 618 F.2d 94 (1st Cir.1980), aff'g Guillen de Santiago v. Simonpietri-Monefeldt, No. 78-1701 (D.P.R. August 10, 1979). Furthermore, in the conference held with this Court pursuant to the Initial Scheduling Order on June 19, 1984, the parties agreed that plaintiff’s action against defendant Moreno was time-barred. Plaintiff cannot now be heard to dispute the application of the one-year limitations period to bar the claim against defendant Ivette Moreno.

3. Whether Defendants Aran And Figueroa Are Protected From Liability For Damages Under The Doctrine Of Qualified Immunity.

In order to survive defendants’ Motion for Summary Judgment, plaintiff’s claim must overcome the affirmative defense of qualified immunity raised by the federal officials. This common law immunity defense, as developed in recent litigation under 42 U.S.C. § 1983, is to be applied in equal fashion to actions brought under Bivens. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895. The defense of qualified immunity shields government officials from liability for civil damages in the exercise of discretionary functions insofar as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). (S.Ct. retaining objective aspect of the so-called “good faith test” but rejecting the subjective “without malice” standard).

This standard applies to defendants’ functions at issue in this ease since, in determining whether persons questioned have submitted sufficient proof of U.S. citizenship or legal immigrant status, the functions of an immigration inspector are necessarily discretionary. E.g., DePass v. U.S., 479 F.Supp. 373 (D.C.Md.1979) (immigration inspector must make ad hoc, subjective evaluation involving broad discretion as to whether sufficient proof of U.S. citizenship has been submitted).

In this case, the actions of defendants Aran and Figueroa are protected by qualified immunity only if their conduct in stopping and questioning plaintiff as to his citizenship status did not violate any constitutional or statutory right clearly established at that time. Plaintiff has alleged that defendants’ conduct violated his Fourth Amendment right to be free of unreasonable searches and seizures, his Fifth Amendment rights to equal protection, due process of law before deprivation of liberty, and his right to interstate travel. In addition, plaintiff alleges that defendants exceeded their statutory authority.

The question before this Court on Summary Judgment for purposes of evaluation of the qualified immunity defense raised against plaintiffs Bivens complaint is whether any of plaintiffs allegations involve rights which were clearly established by law and should reasonably have been known at the time the actions occurred. Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738. This Court today reaches no conclusion on the substance of plaintiffs claims, which will be decided at trial on plaintiffs actions for injunctive and declaratory relief. The Court merely evaluates the state of the law as it existed at the time the officials’ conduct occurred.

a) Plaintiffs Fourth Amendment Claim

Plaintiff alleges that his 4th Amendment right to be free from unreasonable searches and seizures was violated when the federal agent asked him whether he was a U.S. citizen. Plaintiff argues that the INS agents are authorized to interrogate only when they have reason to believe that someone is an alien. Plaintiff bases his argument in the assertion that the Isla Verde International Airport in Puerto Rico is not a border and therefore, the 4th Amendment requires the official to have reasonable suspicion before stopping and questioning any person regarding his or her citizenship or immigration status.

Routine warrantless searches at the border or the functional equivalent of a border have been authorized by Congress, 8 U.S.C. § 1357(a)(1), and held to be consistent with the 4th Amendment. Almeida-Sanchez v. U.S., 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). The issue of whether the Isla Verde International Airport in Puerto Rico constitutes the functional equivalent of a border is critical to the resolution of plaintiff’s 4th Amendment claim in this case. The Supreme Court's limited guidance in Almeida-Sanchez on what constitutes the functional equivalent of a border has been subject to conflicting interpretation among the circuits. Compare, e.g., United States v. Alvarez González, 561 F.2d 620 (5th Cir.1977) with U.S. v. Bowen, 500 F.2d 960 (9th Cir.1977), aff'd on other grounds, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975). If the Circuit Court judges themselves find the application of this 4th Amendment principle debatable, one cannot reasonably expect that the federal agents equipped only with knowledge gained from their agency training, should have reasonably known that the Isla Verde Airport was not the functional equivalent of a border. Even if such a conclusion had been clearly established at the time defendants acted, plaintiff’s 4th Amendment right to be stopped only when agents entertain reasonable suspicion of his alienage could still be challenged under the fixed checkpoint rule. INS operations serving as fixed checkpoints away from the border are also exempt from the 4th Amendment restrictions of reasonable suspicion required for stops conducted by roving INS patrols away from the border. Compare U.S. v. Martínez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) with U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In light of the difficulty evidenced in this case for even trained lawyers in applying 4th Amendment principles to federal immigration enforcement in Puerto Rico, it would be not only unfair, but unjust to require the federal agents in this case to unravel the intricacies of 4th Amendment issues not yet clearly resolved by the courts.

b) Plaintiffs Fifth Amendment Claims

As evidenced from a liberal construction of the pleadings, plaintiff has alleged that defendants’ conduct violated his Fifth Amendment rights to equal protection under the law, due process of law, and his fundamental right to travel. Defendants’ motion for Summary Judgment raises these 5th Amendment issues only in the context of plaintiff’s claims to constitutional violations in general. Plaintiff similarly fails to address his 5th Amendment contentions in his opposition motion. Thus, this Court reaches the following conclusions primarily based on the parties’ pleadings.

Plaintiff alleges in his complaint that defendants, by relying on “illegal and racist subjective criteria” to stop and question him, violated his right to equal protection under the law, implicitly guaranteed by either the Due Process Clause of the 5th Amendment or the Due Process and Equal Protection clauses of the 14th Amendment. (Paragraph 52, Complaint). Plaintiff has provided no factual support for this allegation. Furthermore, plaintiffs argument that defendants stopped him on the basis of impermissible criteria belies his strenuous argument advanced in plaintiff’s own Opposition to defendant’s Motion for Summary Judgment. There, plaintiff asserts that defendants, by attempting to stop each and every passenger, failed to exercise the discretion necessary to meet the standard of performance of a “discretionary function” required by the qualified immunity defense (Plaintiff’s answer to Motion for Summary Judgment, at 7). Similar inconsistencies are found in plaintiff’s argument that defendants violated the 4th Amendment by stopping passengers indiscriminately rather than only upon a reasonable suspicion. (Plaintiff’s answer to Motion for Summary Judgment, at 11). Based on this lack of support in the record for plaintiff’s contention, the Court can find no colorable 5th Amendment claim for violation of equal protection. Even if plaintiff has presented a colorable claim, defendants are shielded from liability in civil damages under the doctrine of qualified immunity. Defendants, as reasonable persons and in reference to relevant constitutional standards, could not be expected to know that such conduct would give rise to a citizen’s claim for violation of equal protection.

Second, plaintiff alleges that his right to due process of law was violated through an unconstitutional deprivation of his liberty by defendants. Assuming the facts as pled by plaintiff in his complaint, this Court is unable to find a deprivation of plaintiff’s liberty. Plaintiff claims that a security guard blocked his way into the boarding area and that defendants physically impeded him from boarding the plane. Nevertheless, plaintiff asserts that, after verbal exchanges with the defendants and the security guard, he sought out an Eastern supervisor, an action which required leaving the area of the guard and defendants. Furthermore, after so doing, plaintiff permanently left the gate area and the airport. Thus, plaintiff was at no time forcibly detained from leaving the area of the stop; he was merely denied the right to move in the forward direction he desired. This Court can find no constitutional liberty interest triggered by defendants’ denial of plaintiff’s freedom of choice in this context. Cf. Harris v. Macrae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) (freedom of choice in certain matters of marriage and family life implicates the “liberty” protected by the 5th and 14th Amendments). Even if plaintiff shows this Court in the near future that his claim to a deprivation of liberty is colorable, defendants are still entitled to protection under the defense of qualified immunity. No reasonable person could be expected to consider such conduct as the sort which may give rise to civil liability under clearly established principles of due process.

Plaintiff’s final 5th Amendment claim is based on the allegation that defendants’ actions violated his constitutional right to travel interstate. Again, plaintiff has failed to support his claim by reference to established constitutional jurisprudence. Assuming the facts most favorable to plaintiff, this Court can find no constitutionally impermissible prejudice occurring to plaintiff as a result of traveling between Puerto Rico and the Washington D.C. area. Even if plaintiff can prove to this Court that he has presented a colorable claim, defendants are still protected from civil liability under the objective reasonableness standard of conduct referred for qualified immunity. The law does not require defendants, as reasonable persons, to anticipate that their alleged conduct on October 2, 1982 would be subject to a suit for the violation of plaintiff’s constitutional right to travel.

C. CONCLUSION:

This Court concludes that plaintiff’s Bivens -type claims against defendant Ivette Moreno are barred, having been brought more than one year after the cause of action occurred, as agreed by parties. Furthermore, plaintiff’s Bivens claims against defendants Aran and Figueroa cannot succeed because both defendants are shielded from liability for civil damages as a result of qualified immunity.

As for plaintiff’s claim for injunctive and declaratory relief under the 4th Amendment and the applicable statutory law and regulations, the Court concludes that the parties have not presented enough facts to determine the resolution of said issues on defendant’s Motion for Summary Judgment. Having found no colorable support for plaintiff’s claims under the 5th Amendment, the Court hereby grants plaintiff ten (10) days from the date of this Order to clarify and explain, to the satisfaction of the Court, how his 5th Amendment allegations represent colorable claims for injunctive and/or declaratory relief. If done, these claims will not be dismissed and will be heard along with the 4th Amendment issues at Trial of this action on November 29, 1984, at 9:30 a.m.

Accordingly, a Partial Summary Judgment is hereby GRANTED in favor of defendants Moreno, Arán and Figueroa in regard to plaintiff’s claims against them in their individual capacity for civil damages.

The Clerk shall enter Judgment accordingly.

IT IS SO ORDERED.

      . Plaintiff points for support to the language of 8 U.S.C. Sec. 1357(a)(1) and to a piece of legislative history. 1952 U.S.Code Cong, and Ad.News, 1653, 1709-10; Section 1357(a)(1) grants to INS officers the power without warrant "to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.” (emphasis supplied). Whether the language of Section 1357(a)(1), as supplemented by the legislative history and interpretation of the Supreme Court and as read together with the rest of Title 8 and the pertinent Regulations, should be given the effect which plaintiff urges is a matter reserved for this Court’s adjudication of plaintiff’s claims to injunctive and declaratory relief.
      Plaintiff has pointed this Court to no basis for a cause of action for damages against the defendants for abuse of statutory authority. Compare Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (no cause of action for damages arises within the meaning of 28 U.S.C. § 1331 under Federal statute granting no express cause of action) with Chairez v. County of Van Buren, 542 F.Supp. 706 (W.D.Mich.1982) (implied private right of action for violation of Immigration and Nationalty Act concerning arrest of alien believed to be unlawfully in the United States). Thus, the doctrine of qualified immunity is not relevant to plaintiffs statutory claims.

      . In arguing that reasonable suspicion was absent in this case, plaintiff raises the fact that defendant Arán made a statement evidencing her knowledge of the July 1982 incident with agent Ivette Moreno. The exact content of this statement is in dispute. Plaintiff alleges that Arán’s statement acknowledged that plaintiff, the person before her, was exactly the same person as the one who had the encounter with Ivette. In her affidavit of March 7, 1984, Arán claims that she recognized only a similarity between the person's conduct with Moreno in July and the person's conduct with her, Arán, in October. The dispute is irrelevant for purposes of the doctrine of qualified immunity. The subjective motivation of the Federal agent in stopping and questioning plaintiff as to his citizenship is no longer a part of the good faith test as outlined by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396. The essence of the test is the objective reasonableness of the agent's conduct. Even if, as plaintiff urges, defendant Arán believed plaintiff was the same person as the one whom Ivette Moreno stopped and ultimately allowed to pass, this belief does not necessarily and reasonably mean that she, like Moreno, was convinced that plaintiff was a U.S. citizen. Indeed, Moreno’s belief itself was based on an inference from plaintiff’s manner of speaking— an inference that he was Puerto Rican and thus, a U.S. citizen. Furthermore, plaintiff has alleged no similar hearsay belief on the part of defendant Figueroa, or even that defendant Figueroa heard Arán’s statement. The scope of reasonableness does not require Figueroa to believe Arán, or Arán to believe Moreno; plaintiffs allegations of bad faith are not only irrelevant but illogical.