author: JUSTICE, Chief Judge.

text:
    Guillermo GOMEZ v. D. MYERS, et al.
    Civ. A. No. L-85-188-CA.
    United States District Court, E.D. Texas, Lufkin Division.
    Nov. 12, 1985.

      Richard S. Fischer, East Texas Legal Services, Nacogdoches, Tex., for plaintiff.
   ORDER

JUSTICE, Chief Judge.

Guillermo Gomez, an inmate at the East-ham Unit of the Texas Department of Corrections, filed this civil rights action under 42 U.S.C. § 1983 against state prison officials. Although the prisoner complaint form provided by the Eastern District of Texas is written in English, Gomez stated his claims and requested relief in Spanish. He apparently alleges denial of access both to the courts and to medical care based on a language barrier. Because his pleading in Spanish raises the issue of whether non-English speaking prisoners can gain meaningful access to the courts, the court grants his application to proceed in forma pauperis and will appoint Richard S. Fischer, Esquire, to represent Gomez in his § 1983 action.

I. The Filing of the Complaint

The Clerk of the United States District Court for the Eastern District of Texas originally received the complaint of Gomez on August 26, 1985. In a letter to Gomez, the pro se deputy clerk noted that the form was written in both English and Spanish and asked whether Gomez could complete the entire form in English. A fellow prisoner who had interpreted and prepared the form responded that Gomez could not complete the form in English nor could the letter writer assist Gomez in preparing his complaint in the English language. The clerk filed the complaint, as originally written, on September 30, 1985.

Neither statutes nor administrative rules provide guidance on whether pleadings must be written in English. While no statute explicitly permits the filing of pleadings written in languages besides English, there also is no federal statute requiring pleadings to be written in English. And the Eastern District of Texas has not adopted a local rule requiring pleadings to be in English or accompanied by an English translation. When an issue is not covered by a rule, the district courts are to regulate their practice in any manner not inconsistent with the Federal Rules of Civil Procedure or local rules. FED.R.CIV.P. 83. The Clerk’s acceptance of the complaint of Gomez was permissible, since that action is not inconsistent with any federal or local rule.

More important, the constitutional right of prisoners to access to the courts mandated the acceptance of the pleading in Spanish. Gomez apparently could not personally draft a complaint in the English language and could not afford to pay someone else to provide him an English translation. The Supreme Court has eliminated several costs and requirements for filing complaints, appeals, and habeas corpus petitions when financial obstacles prevented indigent prisoners from exercising a constitutional right. See Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (state may not deny access to divorce courts solely because of inability to pay); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961) (state must waive filing fee when indigent prisoner sues for his liberty under the Great Writ); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (state must provide trial transcripts to prisoners unable to pay for them). A requirement that pleadings be written in English would impose a cost on the indigent prisoner similar to a filing fee, service of process, or transcript.

Moreover, the Supreme Court has expressed concern for regulations that deprive illiterate prisoners of access to the courts. For example, in invalidating a state regulation prohibiting the assistance of jail-house lawyers, the Supreme Court noted that “Tennessee could not constitutionally adopt and enforce a rule forbidding illiterate or poorly educated prisoners to file habeas corpus petitions. But Tennessee had adopted a rule which, in the absence of any other source of assistance, effectively does just that.” Johnson v. Avery, 393 U.S. 483, 487, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1969). Similarly, the Court opposed the dilution of the constitutional rights of “totally or functionally illiterate” inmates who could not articulate their complaints to the courts. Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974). Cf. Cruz v. Hauck, 627 F.2d 710, 721 (5th Cir.1980) (advising trial court to consider whether assistance of legally trained persons was required since library books cannot provide access for those prisoners who do not read and write in English). Just as the rules in Johnson and Wolff and facilities in Cruz may have denied prisoners access to the courts because of their inability to read and write English, a rule forbidding complaints in Spanish would deny access because of illiteracy in the English language. To require all prisoners to file a complaint in English would prevent the filing of any complaint by an indigent, non-English speaking prisoner who has no assistance in drafting his complaint. As a result, an all-English rule would deny prisoners literate in another language, but illiterate in English, the right to seek redress for possible constitutional violations.

If the Clerk had deprived Gomez of his constitutional right of access to the courts by refusing to file his pleading, the Clerk might have been liable under § 1983. The Court of Appeals for the Fourth Circuit, for example, has found a court clerk liable under § 1983 for impeding the filing of a prisoner petition for state post-conviction relief. McCray v. Maryland, 456 F.2d 1 (4th Cir.1972). Although Gomez filed a civil rights action, the Supreme Court no longer distinguishes between civil rights actions and habeas corpus petitions when assessing the adequacy of prisoners’ right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 827, 97 S.Ct. 1491, 1497, 52 L.Ed.2d 72 (1977) (considering what sources of legal knowledge must be provided prisoners who seek release from confinement or vindication of fundamental civil rights); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (extending to civil rights actions the standard used in habeas corpus actions for determining the adequacy of legal assistance). See also Andrade v. Hauck, 452 F.2d 1071 (5th Cir.1971) (access of prisoners to courts encompasses both habeas corpus petitions and civil rights actions). When considered in conjunction with those decisions, the McCray opinion suggests that a court clerk would also be liable for impeding the filing of a prisoner’s civil rights complaint. Cf. Williams v. Wood, 612 F.2d 982 (5th Cir.1980) (allegations that deputy clerk failed to notify party of entry of final judgment stated a claim under § 1983). As the Fourth Circuit stated: “Of what avail is it to the individual to arm him with a panoply of constitutional rights if, when he seeks to vindicate them, the courtroom door can be hermetically sealed against him by a functionary who, by refusal or neglect, impeded the filing of his papers?” McCray, 456 F.2d at 6.

II. The Cost of Translation

Although this § 1983 action has been filed, the complaint has not been translated or served on defendants. The obstacle to Gomez proceeding with prosecution of his claim is determining who, if anyone, should pay for the costs of translating the complaint and other pleadings.

None of the parties at this time appears liable for payment of costs. By filing his complaint in Spanish and applying to proceed in forma pauperis, Gomez maintains that he cannot afford translation costs. The defendants or their employer, the State of Texas, likewise cannot be expected at this point in the proceedings to pay the cost of translating the claims against them. It would be unfair and a violation of due process to order a defendant in a civil action to pay the plaintiff’s litigation costs without affording the defendant an opportunity to oppose their imposition. Otherwise, defendants would be penalized for being sued by indigent, non-English speaking plaintiffs regardless of the merits of the claim.

There is no statutory provision or federal rule authorizing the United States government to pay for the costs of translation in a civil action between private parties. The Court Interpreters Act provides for an interpreter “in any criminal or civil action initiated by the United States in a United States district court (including a petition for writ of habeas corpus initiated in the name of the United States by a relator).” 28 U.S.C. § 1827(d). The Act does not authorize an interpreter in a civil rights action initiated by an indigent state prisoner. The Criminal Justice Act permits counsel for indigent defendants to request experts or other services necessary for an adequate defense, 18 U.S.C. § 3006A(e), but Gomez is not defending against a federal criminal charge. The statutory provision allowing proceedings in forma pauperis authorizes the court to direct payment only for the expenses of preparing a transcript, 28 U.S.C. § 1915(b), printing a record on appeal, id., or serving process, § 1915(c). And courts have restricted the meaning of “fees and costs” which may be waived under § 1915(a) to the ordinary fees and charges of officers of the court, McClure v. Salvation Army, 51 F.R.D. 215, 216 (N.D.Ga.1971), which does not include the cost of translation. The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, also offers no help for payment of costs prior to a judgment since a party must prevail before receiving a fee under it. Finally, Rule 43(f) of the Federal Rules of Civil Procedure provides for the appointment of an interpreter at trial, but fails to extend that authority to pre-trial preparation. Therefore, in absence of statutory authority, the Clerk cannot be ordered to pay for the costs of translating pleadings from a foreign language to the English language.

While no one at this time appears liable for the costs of translation, the right of Gomez to file his complaint is meaningless without the means to translate it into English. Cf. Morrow v. Harwell, 768 F.2d 619, 623 (5th Cir.1985) (“The inmates’ ability to file is not dispositive of the access question .... [R]ight of access includes the ability to file a legally sufficient claim.”). Defendants have no notice of the charges against them and cannot be expected to answer the complaint. Moreover, the court has no way of evaluating the seriousness of his particular claims, which is essential to determining whether counsel should be appointed to represent him. Assuming the initial hurdle of translating the complaint were overcome, there remains the problem of conducting litigation between parties who do not speak the same language. Other pleadings, requests for discovery, and motions must be translated, and testimony of witnesses must be interpreted. These difficulties facing Gomez demonstrate that his complaint, written primarily in Spanish, raises an important issue about the contours of the constitutional rights of prisoners to access to the courts that reach beyond the question of filing and translating an initial pleading. The resolution of these initial obstacles would only lead to other questions which are fundamentally the same: Is Gomez’ constitutional right of access to courts being abridged?

III. The Constitutional Right of Access to the Courts

Access to the courts has been defined as “all the means a defendant or petitioner might require to get a fair hearing from the judiciary on all charges brought against him or grievances alleged by him.” Gilmore v. Lynch, 319 F.Supp. 105, 111 (N.D.Cal.1970), aff'd, Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971) (per curiam). The right was first recognized when the Supreme Court invalidated a state regulation prohibiting prisoners from filing habeas corpus petitions unless a state legal investigator found they were properly drawn. Ex Parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 641, 85 L.Ed. 1034 (1941). The Court has not only struck down regulations that limited the access of prisoners to the courts, but it has also imposed affirmative obligations on states to provide reasonable alternatives for assisting prisoners. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). In its most recent pronouncement, the Court held that the fundamental constitutional right of access required prison officials to provide either adequate law libraries or adequate assistance from persons trained in the law. Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977).

The Fifth Circuit discerns three bases in the Constitution for the right of access to courts — the privileges and immunities clause in article four, the right to petition for redress of grievances under the first amendment, and the right to due process under the fourteenth amendment. Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir.1983). Although the prisoner access to court cases generally rely on due process guarantees, see, e.g., Wolff v. McDonnell, 418 U.S. 539, 576, 94 S.Ct. 2963, 2984, 41 L.Ed.2d 935 (1974), the Court has relied on the equal protection clause to eliminate filing fees that discriminate between rich and poor prisoners. Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961). See also Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972) (prerequisite of a double bond to appeal an administrative decision discriminates against the poor in violation of equal protection of the laws). Under any of these theories, the prisoner’s right of access must be weighed against the government’s interest in order, security, and rehabilitation. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974).

When non-English speaking prisoners have asserted a denial of access to courts based on a language barrier, the reported cases have dealt with the claim in a perfunctory manner. See Pabon v. McIntosh, 546 F.Supp. 1328, 1339 n. 15 (E.D.Pa.1982) (considering moot Spanish-speaking inmates’ claim of denial of access to the courts); United States ex rel. Wolfish v. Levi, 439 F.Supp. 114, 162 (S.D.N.Y.1977) (dismissing complaints related to language problems when one-fourth of the prison staff spoke Spanish and there was no showing of prejudice), modified on other grounds, 573 F.2d 118 (2d Cir.1978), rev’d sub nom. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Some courts have noted, but not separately considered, the problems that Spanish-speaking inmates must encounter in conducting legal research. See Ramos v. Lamm, 639 F.2d 559, 584 n.29.(10th Cir.1980) (evidence that inmate library clerks knew how to use law library books does not show that they could help prisoners unable to speak, read, or write in English), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). Hooks v. Wainwright, 536 F.Supp. 1330, 1344 n. 24 (M.D.Fla.1982) (Spanish-speaking inmates who attempt to read a law book must try to read a book written in a foreign language). More often, the constitutional rights of Spanish-speaking prisoners arises in contexts other than access to courts. See, e.g., Pabon v. McIntosh, 546 F.Supp. 1328, 1335-41 (E.D.Pa.1982) (no constitutional violations when prison officials allowed only one banquet per year for each inmate group and did not provide a bilingual program of education); Powell v. Ward, 487 F.Supp. 917, 932 (S.D.N.Y.1980) (due process requires that Spanish-speaking inmates who cannot understand English must be provided notice and statements in Spanish at disciplinary hearings), modified on other grounds, 643 F.2d 924 (2d Cir.), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981); Ramos v. Lamm, 485 F.Supp. 122, 164 (D.Colo.1979) (striking down policy of refusing to deliver mail written in language other than English when one-third of prison population is Hispanic), affd in part and rev’d in part on other grounds, 639 F.2d 559 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981).

But the Fifth Circuit in two cases has discussed the problem of access of non-English speaking prisoners. In a post-Bounds case challenging the adequacy of access provided inmates of the Bexar County, Texas jail, the central question was whether the facility enabled prisoners to fairly present their complaints to a district court. Cruz v. Hauck, 627 F.2d 710 (5th Cir.1980). The Fifth Circuit instructed the district judge on remand to consider the plaintiff’s contention that inmates without skills to use a law library might need the assistance of persons trained in the law. Id. at 721.

Although Bounds says that either an adequate law library or assistance from persons trained in the law may satisfy the fundamental constitutional right to access to the courts, the fundamental concern is still whether the inmates have meaningful access to the courts. Library books, even if “adequate” in number, cannot provide access to the courts for those persons who do not speak English or who are illiterate.

Id. (emphasis in original). See also Morrow v. Harwell, 768 F.2d 619 (5th Cir.1985) (noting that Cruz dicta suggests that a library may not satisfy the constitutional rights of inmates who cannot read English). Dicta in both cases indicate that the right of access of non-English-speaking prisoners is an issue that merits consideration.

IV. Appointment of Counsel

No right to counsel exists in § 1983 actions. Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir.1975). Generally, appointment of counsel in an in forma pauperis proceeding will not be granted unless an attorney is needed to present meritorious issues. Lopez v. Reyes, 692 F.2d 15 (5th Cir.1982). Yet, a complaint in Spanish obscures the merit of the substantive claims, at least for those persons who cannot read Spanish. The dearth of litigation over the access of non-English speaking prisoners to courts, however, shows that the specific claims in the complaint are irrelevant to the determination of the seriousness of the complaint. The complaint on its face raises a non-frivolous issue: whether indigent, non-English speaking prisoners in Texas have meaningful access to courts. See Cruz v. Hauck, 627 F.2d 710 (5th Cir.1980) (meaningful access for inmates who do not speak English may include paralegal and paralibrarian assistance). Cf. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (state cannot adopt a rule that effectively denies the illiterate and uneducated the ability to file a petition for habeas corpus).

A district court has the discretion to appoint counsel in a civil rights action if the case presents exceptional circumstances. Branch v. Cole, 686 F.2d 264, 265 (5th Cir.1982). The two factors that determine the existence of exceptional circumstances are the type and complexity of the case and the abilities of the individual bringing it. Id. at 266. An evaluation of those factors shows that this action merits the appointment of counsel. The claim of Gomez raises questions about the denial of fundamental constitutional rights under the first and fourteenth amendments, a labyrinthian area of the law. The absence of direct precedent on access problems of non-English speaking prisoners suggests that an experienced advocate is needed to articulate the claim. And with a substantial number of Hispanic persons in Texas prisons, the issue may have implications beyond the individual problems of Gomez. Gomez may be one of many prisoners who need more than bound volumes of federal reporters to obtain access to the courts. Finally, given the communication barriers that Gomez has faced in presenting his claims, an attorney is needed to represent the Spanish-speaking litigant and provide the court the benefits of an adversary proceeding.

In view of the foregoing, it is

ORDERED that plaintiff’s application to proceed in forma pauperis shall be, and it is hereby, GRANTED and that the costs of litigating his claim be handled according to the usual procedure for in forma pauperis proceedings. It is further

ORDERED that Richard S. Fischer, Esquire, be appointed to represent Gomez in this § 1983 action.

      . Specifically, the letter asked:
      Did you prepare this form?
      Are you able to complete the forms in English so they can be read by the court?
      If you completed the forms through an interpreter, did this person explain to you each of the questions and explain to you what it means to sign under penalty of perjury that the information you have given is true and correct? Letter from Katheryn Hetherly, Deputy U.S. District Clerk, to Guillermo Gomez (September 12, 1985).

      . According to the English-speaking inmate, "any words written in the English language found in the Form and/or Complaint are my mistakes.” Letter from Jesse Avila Valles and Guillermo Gomez to Katheryn Hetherly (September 14, 1985). The prisoners wrote that Gomez did not prepare the form, could not complete the form in English, and had the penalty of perjury interpreted for him by Valles. "Your letter and this letter was interpretered (sic) to Mr. Gomez by me (Valles) and his signature will ap[p]ear below. I am sorry to say that I can not assist Mr. Gomez in preparing this complaint in the English language." Id.

      . For the purpose of deciding the right of Gomez to file his complaint in Spanish, it is assumed that he did not have available any person who could translate the complaint from Spanish to English.

      . Although some circuits apparently grant clerks absolute immunity for the filing of documents, see Davis v. McAteer, 431 F.2d 81, 82 (8th Cir.1970), the Fifth Circuit extends only a qualified immunity to clerks of courts for performing routine functions, such as forwarding copies of transcripts, providing copies of other state actions, or entering an order and notifying the parties. Williams v. Wood, 612 F.2d 982, 984-85 (5th Cir.1980). A clerk, however, does have a defense of judicial immunity when carrying out a clerical function explicitly commanded by a court decree or a judge’s instructions. Id. at 985. See also Lockhart v. Hoenstine, 411 F.2d 455, 460 (3d Cir.) (prothonotary who at the direction of the court refused to accept certain papers for filing was wrapped in the cloak of immunity), cert. denied, 396 U.S. 941, 90 S.Ct. 378, 24 L.Ed.2d 244 (1969).

      . If an attorney is appointed to represent a plaintiff proceeding in forma pauperis, the attorney is expected to bear the costs of litigation, which presumably includes the costs of interpretation and translation. See Moss v. ITT Continental Baking Co., 83 F.R.D. 624 (E.D.Va.1979). After completion of the litigation, however, an attorney who represents the prevailing party may be reimbursed for litigation costs and be awarded reasonable attorney’s fees under 42 U.S.C. § 1988.

      . Prior to the opinion discussed in the text, the Supreme Court considered the case once and the Fifth Circuit considered it three times. See Cruz v. Hauck, 404 U.S. 59, 92 S.Ct. 313, 30 L.Ed.2d 217 (1971) (granting motion to proceed in forma pauperis and vacating judgment in light of Younger v. Gilmore); Cruz v. Hauck, 515 F.2d 322 (5th Cir.1975) (remanding to determine whether all inmates have adequate access through means other than legal materials), cert. denied sub nom. Andrade v. Hauck, 424 U.S. 917, 96 S.Ct. 1118, 47 L.Ed.2d 322 (1976); Cruz v. Hauck, 475 F.2d 475 (5th Cir.1973) (remanding for evidentiary hearing on prisoners' objections to jail rules and the government's justification for those rules); Cruz v. Hauck, Misc. No. 1964 (5th Cir. Feb. 1, 1971).

      . In 1983, nearly nineteen percent, of the 36,769 prisoners in Texas were Mexican-Americans. TEX. DEPT. OF CORRECTIONS ANN. REP.— FY 1983, at vi. The annual report does not contain statistics on the number of non-English speaking prisoners in Texas.


source: Caselaw Access Project

author: DECKER, District Judge.

license: Public Domain

text:
    Eugene E. SULLIVAN, Plaintiff, v. BOYS CLUBS OF AMERICA, INC., Defendant.
    No. 83 C 8343.
    United States District Court, N.D. Illinois, E.D.
    Nov. 14, 1985.

      George W. Hamman, Wayne H. Mi-chaels, Marvin N. Benn, Dawn M. Cassie, Hamman Benn & Miller, Chicago, Ill., for plaintiff.
    Roger Brice, Karen Ksander, Reuben & Proctor, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

DECKER, District Judge.

Plaintiff brought this action against his former employer, Boys’ Clubs of America. Plaintiff claims defendant discharged him in violation of the Age Discrimination in Employment Act (ADEA). The case is before the court on defendant’s motion for summary judgment.

I. Factual Background

Plaintiff, now sixty-two years old, began work for defendant in 1955. He was em-, ployed by defendant without interruption until his forced resignation in January of 1983. During his employment, plaintiff was promoted at least three times, finally attaining the position of Midwest Regional Director in 1971. In 1977, defendant reorganized its regional director positions. This reorganization was part of an overall shift in defendant’s management focus, away from creating new clubs, to a new emphasis on serving existing clubs. As a result of the reorganization, defendant reduced the number of regional directors from ten to five. Plaintiff applied for a regional directorship, but the position was eventually given to a younger man, John Schroeder (Schroeder). As a result, plaintiff suffered demotion to Regional Service Director serving under Schroeder. As such, plaintiff acted as a liaison between defendant’s national organization and its local clubs.

Plaintiff’s job performance was formally evaluated through a “Planning and Performance Review” (performance review) completed by plaintiff and Schroeder and passed on to Thomas Garth (Garth), defendant’s Director of Field Services.

In April of 1979, plaintiff and Schroeder completed a performance review. See Exhibit “4” to Defendant’s Memorandum. The performance review assessed plaintiff’s progress in meeting previously agreed upon goals. Plaintiff received generally satisfactory marks, with which he agreed, although he complained that the evaluation was based more on style than results. Id.

Plaintiff’s performance review in 1980 was less impressive. See Exhibit “5” to Defendant’s Memorandum. Therein, Schroeder commented, “This is less than a satisfactory performance review if items covered are weighted for areas critical to primary service to clubs responsibility, and accountability ... [Plaintiff] suggests and I concur that he needs to keep focused on his primary objectives for essential services ...” Id. Plaintiff refused to sign the performance review and, in an addendum thereto, disputed a particularly low rating for provision of essential services. See Exhibit “6” to Defendant’s Memorandum. Nevertheless, plaintiff admitted that his goals were agreed upon and that he needed to focus on the primary objective of providing essential services. Id.

Plaintiff’s performance review in August of 1981 showed some improvement in his provision of essential services. See Exhibit “8” to Defendant’s Memorandum. Schroeder commented, “Skills and experience are adequate to accomplish objectives. Improved performance must come through anticipatory planning, assertiveness, confidence and focus on highest priority job segment ... essential services to clubs.” Plaintiff disagreed, claimed he had met his objectives and complained the negative review was based on the performance of a few unrepresentative clubs. Id.

On August 9,1982, Garth sent plaintiff a letter “to officially communicate [his] displeasure with [plaintiff’s] performance [over the past two years].” Exhibit “9” to Defendant’s Memorandum. In particular, Garth complained that plaintiff’s visits to the local clubs were too infrequent. Garth placed plaintiff on probation and explained that “failure to meet all the performance indicators listed on your performance review to the satisfaction of your supervisor [will] result in termination in December of [1982].” Id.

On September 9, 1982, Schroeder provided plaintiff with a memorandum setting forth performance targets for the balance of 1982 and a list of clubs on which plaintiff should concentrate his efforts. See Exhibit “10” to Defendant’s Memorandum. Plaintiff responded to this memorandum, pointing out his specific achievements, responsibilities he had been assigned but which were not reviewed, and his visits to various clubs. Plaintiff also complained about deficiencies in the review process. See Exhibit “11” to Defendant’s Memorandum. Schroeder responded to plaintiff’s letter, refuting plaintiff’s explanations, and reiterating his concern over plaintiff’s job performance. See Exhibit “12” to Defendant’s Memorandum. Garth also responded, and adopted Schroeder’s refutation. See Exhibit “13” to Defendant’s Memorandum.

Plaintiff’s probationary work was evaluated by Schroeder in the performance review of January, 1983. See Exhibit “16” to Defendant’s Memorandum. Plaintiff’s ratings declined from previous reviews and Schroeder concluded, “This performance review indicates lack of acceptable performance based on [plaintiff’s] work plans.” Id. Plaintiff reasserted his constant complaint that the review was not objective and claimed he had achieved his performance objectives. Id.

In January of 1983, defendant informed plaintiff that he could resign voluntarily or else be terminated. Plaintiff resigned on January 19, 1983 citing “philosophical and managerial differences.” Exhibit “18” to Defendant’s Memorandum.

II. Discussion

The ultimate burden on plaintiff in this case is to prove he was discharged because of his age. La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir.1984). That is, plaintiff must prove “not that age was the sole factor motivating the employer to discharge him, but that age was a ‘determining factor,’ in the sense that he would not have been discharged ‘but for’ his employer’s motive to discriminate against him because of his age.” Id. (citing Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979)). Plaintiff may satisfy this burden either by presenting direct evidence that age was a determining factor, or, as is more commonly done, by presenting indirect proof thereof. Id.

1. Indirect Proof

Under this theory, plaintiff must initially make a prima facie showing that he was: 1) in the protected age group; 2) qualified for the job; 3) terminated; and 4) replaced by a younger person. Huhn v. Koehring, 718 F.2d 239, 243 (7th Cir.1983). If plaintiff cannot satisfy this burden, summary judgment is appropriate. Id. at 245.

Defendant contends plaintiff’s claim is amenable to summary judgment because plaintiff fails to show he was qualified for the position. Proof of qualification entails showing, by a preponderance of the evidence, that plaintiff “was performing at a level that met his employer’s legitimate expectations.” Id. at 243, 244. Plaintiff’s conclusory argument to that effect is insufficient. He must provide facts in support of this bare contention.

From 1979 to 1983, plaintiff’s performance was reviewed, based on mutually agreed upon goals and objectives. Plaintiff’s superiors were increasingly dissatisfied with his performance and stated this openly in their reviews. Most assuredly, plaintiff took issue with many aspects of these evaluations. However, these disputes amounted to no more than bona fide differences of opinion and show only that plaintiff was satisfied with his performance. It is well settled that, “[pjlaintiff does not raise a material issue of fact on the question of the quality of his work merely by challenging the judgment of his superiors.” Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1223 (7th Cir. 1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). Furthermore, in response to plaintiff's complaints, his superiors provided explicit instructions and assistance to enable him to meet his performance goals. Yet, plaintiff still did not achieve satisfactory results.

In the face of these undisputed facts, plaintiff must raise a genuine issue of material fact to avoid summary judgment. To show he was qualified, plaintiff submits numerous testimonial letters from various current and former high ranking officials in the local boys’ clubs he served. See Exhibit “0” to Plaintiff’s Statement of Genuine Issues of Material Fact (“Plaintiff’s Statement”). These testimonials show these officials were satisfied with plaintiff’s work. However, they do not show that plaintiff met the legitimate expectations of his employer. Further, it is understandable that plaintiff’s performance should satisfy the local clubs and not satisfy the national organization. Plaintiff’s function was to implement policies vital to the national organization but which local clubs were hesitant to undertake. A key criticism of his performance was that he was not sufficiently aggressive in so doing. See Exhibits 4, 5, 8, and 16 to Defendant’s Memorandum. Thus, it is understandable that local clubs would be satisfied with plaintiff’s performance while his superiors were not. In sum, the testimonial letters provide no support for plaintiff’s contention that he was meeting his employer’s legitimate expectations.

Finally, plaintiff claims his employer’s expectations were unreasonable and therefore illegitimate. The Seventh Circuit has stated that an employer “may not make unreasonable expectations.” Huhn, 718 F.2d at 244. In particular, plaintiff claims Joseph Cerbo (Cerbo), a younger counterpart, was held to lesser performance standards. However, all the evidence indicates that Cerbo and plaintiff were held to similar standards. Plaintiff, himself, so testified. See Plaintiffs Deposition at 328, 376-378; see also Cerbo’s Affidavit appended as Exhibit “21” to Defendant’s Reply Memorandum. Furthermore, plaintiff had input into and agreed to his performance objectives. These objectives varied from person to person based on the particular needs of the service areas. Thus, assuming arguendo, that plaintiff’s goals were different from Cerbo’s, this does not indicate that plaintiff’s goals were illegitimate. In addition, plaintiff’s major complaint regarding the evaluation procedure throughout was not that the goals were illegitimate, but that his performance was not fairly measured. See e.g., Exhibit “14” to Defendant’s Memorandum. The court is simply not persuaded that defendant set illegitimate goals for plaintiff. In conclusion, the undisputed facts indicate plaintiff was not satisfying his employer’s legitimate expectations.

2. Direct Proof

Plaintiff points to three pieces of evidence which arguably could provide the requisite direct or circumstantial proof. First, plaintiff submits so-called “statistical” evidence indicating the average age of defendant’s regional directors and regional service directors declined after the 1977 reorganization and apparently concludes that this decline constitutes a pattern of discrimination into which his discharge fits. Second, he points to a memorandum concerning recruitment of his replacement, in which Schroeder indicates an interest in “young aggressive execs.” Exhibit “N” to Plaintiff’s Statement. Finally, plaintiff points to his April, 1979 performance review in which Schroeder commented, “[Plaintiff] needs to overcome the rigidity of the ‘old’ Field Service style in order to be more flexible.” Exhibit “4” to Defendant’s Memorandum.

Plaintiff’s “statistical” evidence is unconvincing. On its face, this evidence shows that seven of ten regional directors were over forty years old in 1977 (the age of one director is not listed). In 1978, after the reorganization, three of the five regional directors were in their thirties (one was thirty-nine) and two were over fifty years old. Exhibit “G” to Plaintiff’s Statement. This comparison is of little utility. As the Seventh Circuit said in Parker v. Federal National Mortgage Association, 741 F.2d 975, 980 (7th Cir.1984), “The problem with [such] statistical evidence is that it lacks sufficient breadth to be trustworthy. A small change in the underlying raw data would result in dramatic statistical fluctuations.” (citations omitted). The utility of this comparison is further undercut by Garth’s affidavit which states that four of the five people initially offered regional directorships, including that for which plaintiff applied, were in the protected group. Garth Affidavit appended as Exhibit “20” to Defendant’s Reply Memorandum at ¶¶ 5, 7.

Finally, on its face, this comparison does not give rise to a reasonable inference of discriminatory intent. See Matthews v. Allis-Chalmers Corp., 769 F.2d 1215, 1218 (7th Cir.1985) (“Statistics generally are not of significance in age discrimination cases ‘unless the disparities in treatment are quite large.’ ”) (quoting Kephart, 630 F.2d at 1224).

Plaintiff's conclusion that the decline in age of regional service directors after the reorganization proves discriminatory intent is also suspect. See Exhibit “E” to Plaintiff’s Statement. Plaintiff’s evidence does not indicate the age at which the pre-reor-ganization directors were promoted to that position. That these directors are now older than their more recently promoted counterparts is of little probative value. It may be that all these employees were promoted at a similar age. In sum, plaintiff’s “sta-tisties” are speculative, unreliable and wholly unconvincing.

Schroeder’s statement criticizing plaintiffs “ ‘old’ Field Service style” lends no support to plaintiff’s cause. It cannot be doubted that Schroeder’s reference was to a management style previously used by defendant and not to plaintiff’s age. On its face, the statement refers, not to plaintiff’s age, but to his performance.

Similarly, the isolated statement by Schroeder suggesting recruitment of “young aggressive execs” cannot save plaintiff. The termination decision was made by Garth, not Schroeder. Garth Affidavit at 119. Thus, the relevant inquiry is into Garth’s motivation. Schroeder’s motives are not probative of this. It is unreasonable to infer from Schroeder’s post-termination statement that Garth wanted to replace plaintiff with a younger person, still less that Garth discharged plaintiff because of his age. In La Montagne, the Seventh Circuit affirmed a judgment n.o.v. even though, prior to plaintiff’s termination, defendant’s President, who made the termination decision, was told by his Senior Vice President, not to fire plaintiff until they could find a younger replacement. The court held the chain of inferences from the Senior Vice President’s statement to the President’s motivation was too tenuous for a reasonable jury to adopt, even though plaintiff’s job was eventually offered to a younger man. 750 F.2d at 1412 (citing with approval Simmons v. McGuffey Nursing Home, Inc., 619 F.2d 369, 371 (5th Cir.1980) (“That a member of the Board wanted a younger man as [plaintiff’s] replacement does not mean that he was terminated because of his age.”) (emphasis in original)). See also Parker, 741 F.2d 975, 980 (7th Cir.1984) (discussing the effect of a similar off-hand comment, the court stated, “The district court is not required to evaluate every conceivable inference which can be drawn, ... but only reasonable ones. If [the statement was] the only ... evidence produced at trial, [defendant] could successfully move for a directed verdict.”); Ortiz v. Ciba-Geigy Corp., 87 F.R.D. 723, 725 (N.D.Ill.1980) (where there is no connection between an alleged discriminatory statement by an employee and the claimed bias, summary judgment is appropriate.)

Summary judgment in a discrimination case must be approached cautiously. Huhn, 718 F.2d at 242. However, plaintiff’s submissions must “give rise to a reasonable inference of discriminatory motive.” Parker, 741 F.2d at 976 (emphasis supplied). Plaintiff has not met this burden. The court finds no genuine issue of material fact in dispute and concludes, on the basis of the undisputed facts, that plaintiff has not made a prima facie showing of age discrimination.

III. Conclusion

For the foregoing reasons, the court grants defendant’s motion for summary judgment and dismisses plaintiff’s complaint.

      . The court may not grant summary judgment unless, looking only to the parties’ submissions of admissible evidence, it finds no genuine issue as to any material fact and the movant is enti-tied to judgment as a matter of law. See International Administrators, Inc. v. Life Insurance Co. of North America, 753 F.2d 1373, 1378 (7th Cir.1985).

      . Plaintiff also points to his receipt of defendant’s prestigous "Heart and Soul Award” for 1979, awarded in recognition of his fine service. Plaintiffs performance in 1979, however, is not at issue in this case. That plaintiff was performing well in 1979 is not probative of his subsequent performance.

      . While plaintiff relies only on indirect proof, the court will consider his claim under a direct proof theory.

      . All of plaintiffs “statistics" are meaningless without other evidence showing the age and qualification of other applicants, other job offers, and the number of positions available.

      . Assuming, arguendo, this statement could give rise to a reasonable inference of discriminatory motive, it cannot possibly prove that age was a determining factor in plaintiffs discharge. In a factually similar case, this court has stated, "If [plaintiff] would have been fired anyway because of his poor performance, he has not shown that ‘but for’ his age he would have been fired, and he loses.” Cebula v. General Electric Co., 614 F.Supp. 260, 267 (N.D.Ill.1985). The overwhelming evidence shows that plaintiff performed inadequately and that his employer showed patience and tolerance witn his inadequacy for a number of years until it finally concluded that plaintiff was not up to the job. Furthermore, in his deposition, plaintiff admits he has no evidence that age was a factor in his discharge. Plaintiffs Deposition at 361, 399-400. Plaintiff states that he chose age as a reason for his termination merely because he could not think of another reason. Plaintiffs Deposition at 361.

      . The court need not address defendant’s other arguments.


author: RAMBO, District Judge.

text:
    UNITED STATES of America v. Edward ENGLER.
    Crim. Nos. 85-00005, 85-00006 and 85-00049.
    United States District Court, M.D. Pennsylvania.
    Nov. 19, 1985.
    As Amended Nov. 21, 1985.
    Timothy B. Haney, Asst. U.S. Atty., Harrisburg, Pa., for plaintiff.
    Peter T. Campana, Williamsport, Pa., for defendant.
   MEMORANDUM

RAMBO, District Judge.

Procedural History

On January 10, 1985, the Grand Jury returned two indictments against the defendant: Middle District of Pennsylvania Criminal No. 85-00005-01 charged him with one count of selling or aiding and abetting the sale of stolen explosives in violation of 18 U.S.C. §§ 842(h), 844(a) and 2; Middle District of Pennsylvania Criminal No. 85-00006 charged the defendant with fifteen (15) counts of selling migratory birds or bird parts in violation of 16 U.S.C. §§ 703 and 707(b)(2). The defendant pleaded not guilty on February 7, 1985 to all counts in both indictments.

On March 7, 1985, the Grand Jury returned a third indictment against the defendant, Middle District of. Pennsylvania Criminal No. 85-00049, charging him with one count of violating 18 U.S.C. §§ 842(h), 844(a) and 2 and one count of violating 16 U.S.C. §§ 703 and 707(b)(2).

By order of March 13, 1985, the court granted the defendant’s motion to consolidate indictments. By order of March 14, 1985, the court granted defendant’s motion for continuance. On March 15, 1985, the defendant pleaded not guilty to both counts of Criminal No. 85-00049.

Jury selection was conducted on May 6, 1985. Trial commenced on May 7, 1985. On May 15, 1985, the jury returned guilty verdicts on all counts.

On May 22, 1985, the defendant filed motions for judgment of acquittal and for a new trial. On August 29, 1985, the defendant filed a motion for permission to raise the issue of the constitutionality of the Migratory Bird Treaty Act. The motion was granted on October 1, 1985. The Government filed a brief on October 10, 1985. All motions are now ripe for decision.

Constitutional Issue

The issue presented is whether the defendant’s felony conviction for the sales of migratory birds in violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 707(b) violates the due process clause of the fifth amendment of the United States Constitution.

The sections of the statute relevant to this case are 16 U.S.C. 703 and 707. Section 703 provides in part that:

[I]t shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, kill, possess, offer for sale, sell, ... [or] purchase ... any migratory bird, any part, ... of any such bird, ... included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August 16, 1916, the United States and the United Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936 and the United States and the Government of Japan for the protection of migratory birds and birds in danger of extinction, and their environment concluded March 4, 1972.

Section 707 provides in part:

(a) Except as otherwise provided in this section, any person ... who shall violate any provisions of said conventions or of this Act, or who shall violate or fail to comply with any regulation made pursuant to this Act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $500.00 or be imprisoned not more than six months, or both.
(b) Whoever in violation of Sections 703 to 711 of this title, shall—
(2) sell, [or] offer for sale ... any migratory bird shall be guilty of a felony and shall be fined not more than $2,000 or imprisoned not more than two years, or both.

The defendant relies upon the decision in United States v. Wulff, 758 F.2d 1121 (6th Cir.1985) which holds that the felony penalty provisions of the MBTA are unconstitutional. The Court of Appeals for the Sixth Circuit found that conclusion to be warranted “because a felony conviction under the Act does not require proof of scienter, because the crime is not one known to the common law, and because the felony penalty provision is severe and would result in irreparable damage to one’s reputation.” Id. at 1122.

In. Wulff, the indictment charged as an element of the offense that the defendant acted “knowingly”. The defendant filed a motion to strike the word “knowingly” from the indictment because it was surplus-age and it was not required under Section 707(b)(2) of the MBTA. The United States agreed and the court granted the defense motion. The defendant then moved to dismiss the indictment arguing that because the felony provision of the MBTA, Section 707(b)(2) does not require guilty knowledge, imposition of a felony conviction would be a violation of due process.

The court in Wulff based its decision in part on the decisions in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) and Holdridge v. United States, 282 F.2d 302 (8th Cir.1960).

In Morissette, the Supreme Court observed that there is a class of criminal offenses theretofore recognized and approved by it, where motive or criminal intent is not a factor in the crime. The court stated:

Many of these offenses are not in the nature of positive aggression or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger of probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relative small, and conviction does no grave damage to an offender’s reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving....
Congressional silence as to mental elements in an act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whose definition the courts have no guidance except the Act.

342 U.S. at 255-256, 262, 72 S.Ct. at 246, 249. In Holdridge, Justice, then Circuit Judge, Blackmun wrote:

[W]here a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not one taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent. The elimination of this element is then not violative of the due process clause. (Citation omitted)

Id. at 310.

The Government argues that the Hol-dridge criteria merely define when a court may construe a statute such that criminal intent is not a necessary element and that where such a statute does not meet the criteria defined in Holdridge criminal intent must be proved. With this contention the undersigned has no quarrel. However, the Government takes its case one step further and argues that neither Morissette nor Holdridge prohibits the court from supplying the element of criminal intent when the statute is silent. Before this court can supply the element of criminal intent when the statute is silent it is necessary in each instance to make a determination as to what Congress intended.

In entering into the various migratory bird treaties, the United States recognized that there were many species of birds which, in their annual migration, traverse certain parts of the United States, that they were of great value as a source of food and in destroying insects injurious to vegetation, and that these species were in danger of extermination through lack of adequate protection. In Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920), Justice Holmes, in addressing the validity of both the Migratory Bird Treaty and the Act, stated “Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power ... But for the Treaty and the statute there soon might be no birds for any powers to deal with.” 252 U.S. at 435, 40 S.Ct. at 384.

It is apparent that in enacting section 707(b)(2), scienter was not to be an element of an offense thereunder. To include a specific intent requirement would be judicial legislation, and such inclusion could seriously hinder attempts at enforcing this statute.

Section 707(b) is a felony penalty provision with a maximum sentence of two years imprisonment or $2,000.00 fine or both. As the court held in United States v. St. Pierre, 578 F.Supp. 1424 (W.D.S.D.1983) and “[t]his is not ... a relatively small penalty.- Furthermore, it simply cannot be said that a felony conviction of this nature does not gravely besmirch.” 578 F.Supp. at 1429, United States v. Wulff, 758 F.2d at 1125. Therefore, if Congress attempted to define a malum prohibitum offense that placed an onerous stigma on an offender’s reputation and that carried a severe penalty, the Constitution would be offended. United States v. Heller, 579 F.2d 990, 994 (6th Cir.1978). The statute as written is in violation of the due process clause of the fifth amendment. Accordingly, the defendant having been convicted of a violation of 16 U.S.C.A. § 703, he should be sentenced under the penalty provision of Section 707(a).

Motions for Judgment of Acquittal and New Trial

The defendant’s support of the above motions sets forth the following issues: (1) whether the conduct of the Government agents was so outrageous that it violated fundamental fairness thereby shocking the universal sense of justice; (2) whether the evidence showed entrapment as a matter of law regarding all counts of Middle District of Pennsylvania Criminal Nos. 85-00006 and 85-00049; (3) whether the court erred in refusing to instruct the jury in the due process defense; (4) whether the court erred in allowing the prosecution to conduct redirect examination of Agent Kirkland, thereby eliciting testimony regarding illegal activity by the Thomas and Har-tranft Fur Company prior to the start of the investigation.

In considering the motion for judgment of acquittal, the trial court’s function is not to weigh the evidence nor to determine credibility. The jury’s verdict must be sustained if, after considering the evidence in a light most favorable to the Government, a reasonable-minded jury could conclude from the admissible evidence that the defendant is guilty beyond a reasonable doubt. United States v. Jones, 430 F.Supp. 219 (W.D.Pa.1977) aff'd 591 F.2d 1337 (1977). The only ground which may properly be raised in support of a motion for judgment of acquittal is that the evidence presented was insufficient as a matter of law to support the conviction. United States v. Cohen, 455 F.Supp. 843 (E.D.Pa.1978), aff'd, 594 F.2d 855, cert. denied, 441 U.S. 947, 99 S.Ct. 2169, 60 L.Ed.2d 1050 (1979). Whether to grant a motion for a new trial is entrusted to the sound discretion of the district court.

The United States Supreme Court has recognized on various occasions that law enforcement officers may infiltrate criminal enterprises, that they may supply items of value to illegal entrepreneurs and that they may resort to deceit without defeating the prosecution. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1972). The Court in Russell also noted that, for conduct of law enforcement agents to be in violation of the due process rights as to be an absolute bar to the Government from invoking judicial process, such conduct must be outrageous. Russell at 431, 93 S.Ct. at 1642. The defendant alleges that, even where a defendant pleads entrapment and may be predisposed to commit the offense, if the Government’s conduct is outrageous the prosecution of a defendant would violate due process. He cites in support of his argument United States v. Twigg, 588 F.2d 373 (3d Cir.1978) and Green v. United States, 454 F.2d 783 (9th Cir.1971).

The Government’s involvement is substantially less and the defendant’s involvement substantially more than was the case in Twigg. While the Government agents made known to the defendant that they were interested in purchasing certain animal parts and, in fact, advised defendant on several occasions that certain sales were violative of the law, defendant continued to initiate contact with the agents with an offer to sell various animal parts. The defendant was not coaxed in any way to commit the crimes with which he was charged and he had not shown any reluctance to engage in the activity. He was not in any way overcome by repeated agent persuasion. The Government’s conduct was not so outrageous as to violate fundamental fairness.

The entrapment defense requires an absence of predisposition on the part of the defendant to commit the crime. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Whether predisposition is present is a question of fact and must be properly submitted to the jury. United States v. Twigg, 588 F.2d 373 (3d Cir.1978). Entrapment as a matter of law exists only when there is undisputed testimony making it patently clear that an otherwise innocent person was induced to commit the act complained of by trickery, persuasion or fraud of a Government agent. United States v. Rangel, 534 F.2d 147, 149 (9th Cir.1976), cert. denied, 429 U.S. 854, 97 S.Ct. 147, 50 L.Ed.2d 129 (1976).

It was not unreasonable for the jury to conclude beyond a reasonable doubt that the defendant was predisposed to commit the crimes charged. First, the defendant had a prior conviction for illegal dove hunting and trapping violations. This showed a predisposition to violate hunting and trapping laws. Secondly, on February 10,1983, the defendant brought up the subject of selliner hawk tallons to the agents. The defendant was advised that such sales were illegal under federal law. Sometime later the defendant again raised the issue with the Government’s agents as to their interest in buying hawk tallons. Each of these inquiries were unsolicited. In November of 1984, the defendant made two unsolicited proposals for the sale of explosives. There were many occasions throughout the years of contact with the Government agents in which defendant initiated illegal activities. Viewing the evidence in the light most favorable to the Government and resolving all inferences therefrom in its favor, it can be said that a reasonable jury could conclude beyond a reasonable doubt that the defendant was predisposed to engage in criminal activity.

The defendant alleges that this court should have permitted the jury to determine the due process defense. In U.S. v. Twigg, 588 F.2d at 379, the Court of Appeals held that where the facts can easily be resolved, the validity of the defense is to be decided by the trial court. When the facts concerning the nature of the police conduct are disputed it is unclear whether a jury resolution of the issues is required prior to a ruling by the court. 588 F.2d at 379, n. 8, citing United States v. Johnson, 565 F.2d 179, 181 (1st Cir.1977). The facts surrounding the Government’s conduct in this case were not in substantial dispute. This court did not err in refusing to instruct the jury on the due process defense.

The defendant contends that the court’s admission of Agent Kirkland’s testimony on redirect examination that the Government had received information that Thomas and Hartranft Fur Company was engaged in illegal conduct prior to the beginning of the investigation was improperly admitted because it was irrelevant and hearsay. The cross-examination of Agent Kirkland was designed to show an improper motive or intent on the part of the agent in initiating the investigation. To refute any conclusion of improper motive or intent the Government on redirect examination attempted to show that the Government had information to believe that the fur company for which defendant worked was engaged in illegal activity. Agent Kirkland’s statement was not introduced to prove the truth of the matter asserted— that Thomas and Hartranft were engaged in illegal activity. It was introduced to show Kirkland’s state of mind, that is, to show his intent or motive for the investigation. Agent Kirkland’s testimony on redirect was neither hearsay, nor irrelevant.

Defendant’s motions for judgment of acquittal and for new trial will be denied.

ORDER

In accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT:

1. Defendant’s Motions for New Trial and Judgment of Acquittal are denied.
2. 16 U.S.C. § 707(b)(2) is deemed in violation of the fifth amendment to the United States Constitution.
3. The indictments brought pursuant to the Migratory Bird Treaty Act are dismissed:
Criminal No. 85-00006 Counts 1 through 15
Criminal No. 85-00049 Count 1

The defendant is to appear for sentencing pursuant to 18 U.S.C. §§ 842(h) and 844(a) and 2. Sentencing is hereby scheduled for 1:30 p.m. on Monday, November 25, 1985 in Courtroom No. 2, Ninth Floor, Federal Building, Third and Walnut Streets, Harrisburg, Pennsylvania.


author: TEITELBAUM, District Judge.

text:
    Frank ALLEGRA, Frank P. Cava, Robert M. Mill, Leonard Murgi, Clair D. Morris and Anthony J. Fiumara, Trustees for the Iron Workers Welfare and Pension Plans of Western Pennsylvania and the Iron Workers Local No. 3 Annuity Plan, and as agent for the International Association of Bridge, Structural and Ornamental Iron Workers, Local Union No. 3, AFL-CIO, Plaintiffs, v. MAY WELDING & CONSTRUCTION CO., INC., Bernard H. May and Gloria May, Defendants.
    Civ. A. No. 82-1160.
    United States District Court, W.D. Pennsylvania. Pittsburgh Division.
    Nov. 21, 1985.
    Jeffrey J. Leech, Tucker, Arensberg, Very & Ferguson, Pittsburgh, Pa., for plaintiffs.
    William J. Murray, Pittsburgh, Pa., for defendants.
   MEMORANDUM OPINION

TEITELBAUM, District Judge.

The trustees for the Iron Workers Welfare and Pension Plans of Western Pennsylvania and the Iron Workers Local No. 3 Annuity Plan (Plans) brought this action against May Welding & Construction Co., Inc., and its corporate officers, Bernard H. May and Gloria May, to recover delinquent payments due the Plans under a collective bargaining agreement. The trustees claim the corporate defendant is liable for the payments, interest, liquidated damages and attorney's fees under §§ 502(g)(2) and 515 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1132(g)(2) and 1145. Jurisdiction over the corporate defendant is premised on § 502(e) of ERISA, 29 U.S.C. § 1132(e), and also on § 301 of the Labor Management Relations Act (Taft-Hartley Act), 29 U.S.C. § 185. The trustees also claim the corporate officers are personally liable under Pennsylvania’s Wage Payment and Collection Law, 43 P.S. § 260.1 et seq. Jurisdiction over the corporate officers is asserted under pendent party jurisdiction.

The corporate officers have moved for dismissal of the state law claims asserted against them. It is agreed that there is no independent basis of federal jurisdiction over the corporate officers. See Combs v. Indyk, 554 F.Supp. 573 (W.D.Pa.1982). The sole question presented is whether there is jurisdiction over state law claims closely related to federal claims within the exclusive jurisdiction of the federal courts, when the state law claims are asserted against parties as to whom there is no independent basis of federal jurisdiction.

Ambromovage v. United Mine Workers of America, 726 F.2d 972, 989-991 (3d Cir.1984) establishes an analysis of pendent jurisdiction on three tiers: the constitutional level, the statutory level and the prudential level. At the first level, the court must determine whether it has the constitutional power to determine the state law claim. This depends on whether there is a “common nucleus of operative fact” between the federal and state claims under United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). At the second level, the court must determine whether the exercise of pendent jurisdiction would violate a federal policy limiting jurisdiction. This generally involves a question of statutory interpretation, as in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). At the third level, the court must, in its discretion, weigh the factors bearing on the appropriateness of hearing the state law claim: convenience, judicial economy, fairness to litigants and the interests of federalism.

In the present case the alleged failure of the corporate defendant to make payments on behalf of one of its employees gives rise to both the federal claims asserted against the corporate defendant and the state law claims asserted against the corporate officers. Thus, the exercise of pendent jurisdiction over the state law claims against the corporate officers is constitutionally permissible.

The second level of analysis identified in Ambromovage, whether the exercise of pendent jurisdiction would violate a federal policy limiting jurisdiction, is derived from Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). Aldinger held the exercise of pendent jurisdiction over state law claims asserted against a county, although closely related to civil rights claims asserted against individuals, violated the policy of the civil rights statute which excluded municipalities from liability. Nevertheless Aldinger recognized the limits of its holding:

Other statutory grants and other alignments of parties and claims might call for a different result. When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S.C. § 1346, the argument of judicial economy and inconvenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together.

427 U.S. at 18, 96 S.Ct. at 2422.

Following Aldinger at least five Courts of Appeals have held that there is pendent party jurisdiction over “non-federal” parties where one party is sued under an exclusive grant of federal jurisdiction: Lykins v. Pointer, Inc., 725 F.2d 645 (11th Cir.1984) (Federal Tort Claims Act); Stewart v. United States, 716 F.2d 755 (10th Cir.1982), cert. denied, — U.S.-, 105 S.Ct. 432, 83 L.Ed.2d 359 (1984) (Federal Tort Claims Act); Weinberger v. Kendrick, 698 F.2d 61 (2d Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983) (Securities Exchange Act); Artiz v. United States, 595 F.2d 65 (1st Cir.1979) (Federal Tort Claims Act); Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979) (Federal Tort Claims Act). At least one Court of Appeals has gone the other way: Ayala v. United States, 550 F.2d 1196 (9th Cir.1977), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978) (Federal Tort Claims Act). See also Kyriazi v. Western Electric Co., 476 F.Supp. 335, 337 n. 3 (D.N.J.1979). The Court of Appeals for the Third Circuit has not yet decided the issue.

An action by a fiduciary to recover delinquent contributions under ERISA is within the exclusive jurisdiction of the federal courts. Livolsi v. Ram Construction Co., Inc., 728 F.2d 600 (3d Cir.1984). In the present case the trustees’ ERISA claims against the corporate defendant and the state law claims against the corporate officers are “such that the plaintiff would ordinarily be expected to try them all in one judicial proceeding,” Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138, and “only in a federal court may all of the claims be tried together,” Aldinger, 427 U.S. at 18, 96 S.Ct. at 2422. It does not appear that the exercise of pendent jurisdiction over the state law claims asserted against the corporate officers would violate any federal policy embodied in ERISA. The Court of Appeals for the Third Circuit has implicitly recognized that an exercise of pendent jurisdiction in these circumstances does not offend ERISA. Livolsi, 728 F.2d at 601 n. 2.

Finally, at the third level of analysis identified in Ambromovage, all of the prudential factors point to the appropriateness of the exercise of pendent jurisdiction in this case.

Accordingly the motion of the corporate officers to dismiss the state law claims against them will be denied. An appropriate order will issue.