author: HOEVELER, District Judge.

text:
    Shirley A. HEIDIG, S/S #-[ XXX-XX-XXXX ], Plaintiff, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, Defendant.
    No. 83-1911 Civ-WMH.
    United States District Court, S.D. Florida, Miami Division.
    Jan. 8, 1985.

      Lyle D. Lieberman, Miami, Fla., for plaintiff.
    Pamela A. Hornett, Asst. U.S. Atty., Miami, Fla., for defendant.
   FINAL ORDER

HOEVELER, District Judge.

Upon review of the Recommendation of United States Magistrate Peter R. Palermo, and upon independent de novo review of the record herein, the findings and recommendation of the Magistrate are approved and adopted, and it hereby is

ORDERED AND ADJUDGED that Plaintiff’s motion for summary judgment is GRANTED and the decision of the Secretary of Health and Human Services is REVERSED and JUDGMENT RENDERED in favor of Plaintiff.

REPORT AND RECOMMENDATION

PETER R. PALERMO, Chief United States Magistrate.

This is a review of the final decision of the Secretary of Health and Human Services of the United States of America, who has denied the application of Shirley A. Heidig for disability benefits and disability insurance benefits under the provisions of 42 U.S.C. Sections 416(i) and 423. This cause is before this Court after being remanded to reconstruct the administrative record and is now before this Court upon Plaintiff’s Motion for Summary Judgment.

The Honorable William M. Hoeveler, United States District Judge has referred this cause to Peter R. Palermo, Chief United States Magistrate for preliminary review of the administrative record and preparation of a recommended decision as to whether the record contains substantial evidence to support the administrative determination. See, Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976).

RECORD

I

For the purposes of this Report and Recommendation, the letter, “R” will be used to designate the Record.

II

The record in this case reveals that Plaintiff is a 51 year old former computer operator and bookkeeper (R. 35) who alleges that she became unable to work in July 1979 due to arthritis, lupus and cardie arrythmia (R. 55). On April 12, 1982 the Plaintiff filed for disability insurance benefits which were denied at all administrative stages (R. 62). The Plaintiff sought review and the case was heard by the Administrative Law Judge Ruth Tentori-Vila who held a hearing on January 6, 1983 (R. 31-54) at which Plaintiff and her attorney appeared. On February 11, 1983 the Administrative Law Judge (ALJ) decided that Plaintiff was not under a “disability” as defined by the Social Security Act (R. 20-24). The Judge’s decision became the final decision of the Secretary of Health and Human Services when the Appeals Council denied Plaintiff’s request for review on June 6, 1983 (R. 3). From that decision, Plaintiff now appeals to the Court for judicial review under 42 U.S.C. Section 405(g).

FACTS AS ALLEGED BY THE PLAINTIFF

Plaintiff seeks disability insurance benefits on the basis that she has been unable to engage in any substantial gainful activity because of medically determinable physical impairments. Specifically, she alleges that she suffers from arthritis, lupus and cardiac arrythmia (R. 55).

ISSUE PRESENTED

The issue to be determined by this Court is whether the Secretary’s finding of no disability is supported by substantial evidence.

APPLICABLE LAW

A. Statutory

Certain basic statutory provisions relating to disability and mental impairment are applicable in this case.

First, 42 U.S.C. Section 423(d)(1)(A) defines “disability” as:

... inability to engage in any sustantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which lasted or can be be expected to last for a continuous period of not less than 12 months...

Pursuant to 42 U.S.C. Section 423(d)(2)(A), a disability exists where:

an individual (except a widow, surviving divorced wife, or widower for purposes of section 402(e) or (f) of this title) shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), ‘work which exists in the national economy’ means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

Further, 42 U.S.C. Section 423(d)(3) provides:

For purposes of this subsection, a “physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

Title 42 U.S.C. Section 423(d)(5) (Supp.1983) specifies that:

An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require.

The term “disabled individual” is defined at 42 U.S.C. Section 1382c:

(a)(1) For purposes of this subchapter, the term____‘disabled individual’ means an individual who...
(A) is ... disabled (as determined under paragraph (3)), and...
(B) is a resident of the United States, and is either (i) a citizen or (ii) an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law (including an alien who is lawfully present in the United States).
(3)(A) An individual shall be considered to be disabled for purposes of this sub-chapter if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months...
(B) For purposes of subparagraph (A), an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), ‘work which exists in the national economy’ means work which exists in significant numbers lives or in several regions of the country.
(C) For purposes of this paragraph, a physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

On November 28, 1978, the Secretary’s vocational factors regulations were published as formal rules in the Federal Register. 20 C.F.R. Sections 404.1503-404.1513; Sections 416.903-416.913. Former Sections 404.1503-404.1513 were redesignated as Sections 404.1514-404.1518 and former Sections 416.903-416.913 were redesignated as 416.914-416.918. The new regulations became effective February 26, 1979. The new regulations were utilized in the instant case and set forth the factors which were considered in this action.

B. Caselaw

I

The undersigned notes that cases decided by the Fifth Circuit Court of Appeals before the close of business on September 31, 1981 are binding on this Court as precedent. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981).

II

The law is clearly settled as to the role of this Court in reviewing the denial of Social Security Disability Benefits. The Social Security Act provides for a limited measure of judicial review. See 42 U.S.C. Section 405(g). “[The] role of the courts in this quintessentially administrative process is extremely narrow.” Lewis v. Weinberger, 515 F.2d 584, 586 (5th Cir.1975). As stated by the Eleventh Circuit Court of Appeals:

In reviewing claims brought under the Social Security Act, our role is a limited one. We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the Secretary. Even if we find that the evidence preponderates against the Secretary’s decision, we must affirm if the decision is supported by substantial evidence. 42 U.S.C. Section 405(g). See e.g., Allen v. Schweiker, 642 F.2d 799, 800 (5th Cir.1981); Warncke v. Harris, 619 F.2d 412, 416 (5th Cir.1980). Yet, within this narrowly circumscribed role, we do not “act as automatons.” Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir.1981), cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452 (1982). We must scrutinize the record as a whole, id.; Lewis v. Weinberger, 515 F.2d 584, 586-87 (5th Cir.1975) to determine if the decision reached is reasonable, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir.1979) and supported by substantial evidence, Scharlow v. Schweiker, 655 F.2d 645, 648 (5th Cir.1981).

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983). The court is barred from substituting its evaluation of the evidence for that of the Secretary, yet it may review the record to determine if substantial evidence exist to support the Secretary’s findings. Boyd v. Heckler, 704 F.2d 1207 (11th Cir.1983); Viehman v. Schweiker, 679 F.2d 223 (11th Cir.1982). The court is to defer to the Secretary’s findings of fact. Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir.1982). Millet v. Schweiker, 662 F.2d 1199 (5th Cir.1981). Issues of credibility are reserved to the Secretary of Health and Human Services. Smallwood v. Schweiker, 681 F.2d 1349 (11th Cir.1982).

Thus, under the Eleventh Circuit’s directive, this Court clearly may review the Secretary’s denial and must utilize the entire record of the proceedings in making its final determination. Tieniber v. Heckler, 720 F.2d 1251 (11th Cir.1983).

III

The issue before the Court is whether the finding of no disability of the Secretary, as reflected by the record, is supported by substantial evidence. Tieniber v. Heckler, supra at 1253.

The Plaintiff must realize that the function of this Court is not to determine the claim of the Plaintiff de novo but rather to determine whether the findings of the Secretary as to any fact are supported by substantial evidence. 42 U.S.C. Section 405(g); Bloodsworth v. Heckler, supra at 1239; Jones v. Heckler, 702 F.2d 950 (11th Cir.1983). “Substantial evidence” is defined as relevant evidence which a reasonable mind might accept as adequate to support a challenged conclusion. Boyd v. Heckler, supra at 1209.

IV

The burden of proof on Plaintiff is heavy a one; it has been described as being unrealistic. Bloodsworth v. Heckler, supra at 1241. Oldham v. Schweiker, 660 F.2d 1078 (5th Cir., Unit B, 1981). As stated by the Eleventh Circuit Court of Appeals:

The claimant bears the burden of establishing the existence of a disability. To shoulder this burden the claimant must prove that he is unable, due to his physical or mental impairment, to perform his previous work. The burden then shifts to the Secretary to establish that there is alternative gainful employment in the economy that the claimant is able to perform. If the Secretary is successful, the burden shifts one final time — back to the claimant, who then must prove that he is unable to perform the jobs suggested by the Secretary.

Boyd v. Heckler, supra at 1209.

V

Plaintiff has alleged that she suffers from disabling pain. The law provides that pain may constitute a disability if it is not remediable or is sufficiently severe to preclude substantial gainful activity. Scharlow v. Schweiker, 655 F.2d 645 (5th Cir.1981); Ware v. Schweiker, 651 F.2d 408 (5th Cir.1981), cert. denied 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452 (1982). Pain can be held disabling even where there is no supporting objective medical evidence if the pain can be linked to a medically determinable impairment. Simpson v. Schweiker, supra. Yet complaints of pain do not have to be supported by objective findings in order for the AU to consider whether the pain is disabling. Diorio v. Heckler, 721 F.2d 726 (11th Cir.1983).

EVIDENCE

Four factors must be considered in determining the merits of a claim for disability benefits:

1. objective medical facts or clinical findings;
2. diagnoses of examining physicians;
3. subjective evidence of pain and disability as testified to by the claimant and corroborated by other witnesses; and
4. claimant’s age, education and work history.

Tieniber v. Heckler, supra at 1253.

The specific evidence presented before the Administrative Law Judge has been examined in detail to determine whether the Plaintiff has sustained the burden of proof and, if so, whether the Secretary met that burden of proof when it shifted to her. The undersigned has determined that the Plaintiff has met the burden as will be explained infra.

A. Objective Medical Facts or Clinical Findings

Plaintiff is 5'2" tall and weighs 155 pounds (R. 110). Her pulse is 80, respirations 20, blood pressure 130/80 and her corrected vision is 20/20 (R. 110).

B. Diagnoses of Examining Physicians

In 1973, Plaintiff underwent a discemtomy for the removal of a cervical disc (R. 91-92). In March 1982, Plaintiff continued to have irritation in the cervical spine. Dr. Herminio Cuervo, M.D. diagnosed chronic irritation at the root (R. 97). Dr. Pedro Albanes, Plaintiff’s surgeon, found the formation of osteophytes and diagnosed carpal tunnel syndroms vs. compressive radiculopathy (R. 99). He additionally diagnosed osteoarthritic disease of the cervical spine (R. 100).

In 1980, Plaintiff was examined by Humbero Machado, M.D., a cardiologist. He diagnosed Plaintiff as having atypical chest pains, syncope, paraxysmal atrial fibrillation, secondary to Lown-Gangon-Levine syndrome, hypothyroidism and rheumatoid arthritis (R. 108). In 1982, Dr. Machado diagnosed Plaintiff as having migraine, cephalalgia and vertigo, mitral prolapse, syncope and short PR syndrome, hypothyroidism, and rheumatoid arthritis with possible systemic lupus (R. 147).

In 1982, Plaintiff was examined by Dr. Richard Meyers, M.D.. Dr. Meyers diagnosed systemic lupus erythematosis, rheumatoid arthritis, paroxysmal arrhythmias with possible valvular heart disease and cervical osteoarthritis with right radiclopathy and status post cervical fusion (R. 113).

Dr. Angel F. Vidal, M.D., Plaintiff’s treating physician, diagnosed Plaintiff as having systemic lupus erythematosis (R. 142).

C. Subjective Evidence of Pain and Disability

Plaintiff testified that she is in a great deal of pain (R. 37). She stated that she can sit for only 45 minutes (R. 43). She stated that she cannot walk more than one half hour due to pain and fatigue (R. 44). She stated that she has constant pain in her shoulder, knees and neck, and intermittent pain in her elbows, hands and ankles (R. 48). She stated that she has swelling in her knees, ankles and fingers (R. 48).

D. Plaintiffs Age, Education and Work History

Plaintiff is 51 years old and has an eleventh grade education (R. 35). She is divorced (R. 41). Plaintiff has worked in the past as a computer operator, bookkeeper and credit manager (R. 35-36).

E. Findings of the ALJ

Based upon all the evidence and testimony from the Plaintiff, witnesses, medical experts and practitioners, the AU determined among other findings that:

1. The claimant met the special earnings requirements of the Act on July 1, 1979, the date that the claimant stated she became unable to work, and continues to meet them through September 1983.
2. The claimant has the following impairments: hyperthyroidism, chronic bronchitis, systemic lupus, cervical osteoarthritis (none severe).
3. The claimant has the residual functional capacity to perform work-related functions except for work involving light work, including extensive walking or carrying.
4. The claimant’s relevant work as a clerk and computer operator did not require extensive walking or carrying.
5. The claimant’s impairments do not prevent the performance of this past relevant work.
6. The claimant was not under a “disability,” as defined in the Social Security Act, at any time through the date of this decision.

ANALYSIS

Among its regulations, the Secretary has established a sequential evaluation to arrive at a final determination of disability. 20 C.F.R. Section 404.1520. Step one is an inquiry as to whether the claimant is presently engaged in substantial gainful activity. 20 C.F.R. Section 404.1520(b). If the answer is in the affirmative, the sequential determination ends with a finding of not-disabled; otherwise the Secretary proceeds to step two. At step two, the Secretary determines whether the claimant has a severe impairment. 20 C.F.R. Section 404.1520(c). If the impairment is found not to be severe, the sequential determination ends with a finding of not-disabled; otherwise the Secretary proceeds to step three. At step three, a determination is made as to whether the claimant’s severe impairment is listed in 20 C.F.R. Section 404, Appendix 1. 20 C.F.R. Section 404.-1520(d). If the claimant’s impairment meets or is equivalent to a list impairment, the sequential determination ends with a finding of disabled; otherwise the Secretary proceeds to step four. At step four, the Secretary determines whether the claimant can return to past relevant work. 20 C.F.R. Section 404.1520(e). An affirmative finding mandates a finding of not-disabled and ends the inquiry. If, however, it is determined that the claimant cannot return to past relevant work, the Secretary must proceed to step five and determine whether the claimant can perform any work existing in the national economy. 20 C.F.R. Section 404.1520(f).

In the instant case, the AU disregarded the sequential evaluation and made a blind determination that Plaintiff is capable of returning to her past work. It is clear that such a determination is unfounded and unsupported with substantial evidence in the record. Upon a proper procession through the sequential evaluation, it is this Court’s conclusion that Plaintiff has sustained her burden of establishing a disability. Specifically, Plaintiff’s impairment is a listed impairment falling within the purview of 20 C.F.R. Section 404 Appendix 1 section 1.02 and 10.04. Those sections state:

1.02 Active rheumatoid arthritis and other inflammatory arthritis With both A and B
A. Persistent joint pain, swelling, and tenderness involving multiple joints with signs of joint inflammation (heat, swelling, tenderness) despite therapy for a least 3 months, and activity expected to last over 12 months; and
B. Corroboration of diagnosis at some point in time by either:
1. Positive serologic test for rheumatoid factor; or
2. Antinuclear antibodies; or
3. Elevated sedimentation rate.
10.04 Disseminated lupus erythematosus (established by a positive LE preparation or biopsy or positive ANA test). With frequent exacerbations demonstrating involvement of renal or cardiac or pulmonary or gastrointestinal or central nervous systems.

Upon examination of Plaintiff, Dr. Meyers determined that Plaintiff suffers from both systemic lupus erythematosis and rheumatoid arthritis (R. 113). Plaintiffs cardiologist, Dr. Humberto Machado, diagnosed Plaintiff as having atypical chest pains, syncope and paroxsmal atrial fibrillations secondary to Lown Ganong-Levine syndrome (R. 108). Dr. Machado stated that these cardiac problems could easily be attributed to Plaintiffs problems of rheumatoid arthritis and probable systemic lupus (R. 119). Dr. Vidal, Plaintiffs treating physician and a rheumatology specialist, stated that initially Plaintiffs clinical diagnosis was that of rheumatoid arthritis however upon further laboratory testing, systemic lupus erythematosis was indicated (R. 135). Dr. Vidal stated that Plaintiff has a positive serological test for rheumatoid factor, a positive test for antinuclear antibodies (ANA) and an elevated sedimentation rate (R. 143). Additionally, Dr. Vidal stated that Plaintiff had intermittent swelling of the hands, fingers and knees, generalized fatigue and weakness (R. 140). Dr. Vidal stated that Plaintiffs joint swelling and pain would persist for more than 12 months despite therapy (R. 142).

None of the foregoing medical evidence is rebutted in the record. It is clear to this Court that whether Plaintiffs disease is established to be rheumatoid arthritis or systemic lupus erythmatosis, Plaintiffs impairments fall within both sections 1.02 and 10.04 of Appendix 1. Accordingly, it is the finding of this Court that the ALJ’s finding of no disability is not supported by substantial evidence in the record.

RECOMMENDATION

It is this Court’s conclusion that Plaintiff has sustained her burden of proving that she is disabled. Specifically, Plaintiff’s impairments clearly fall within the purview of the listed impairments of Appendix 1. Accordingly, a finding of disabled is mandated. 20 C.F.R. section 1520(d). Accordingly, it is hereby

RECOMMENDED that Plaintiff’s motion for summary judgment be GRANTED and the decision of the Secretary of Health and Human Services be REVERSED and JUDGMENT RENDERED in favor of Plaintiff.

The parties to this action shall have ten (10) days from the date of this review and recommendation in which to file their objections, if any, with the Honorable William M. Hoeveler, United States District Judge.

      . Defendant has not responded to Plaintiff’s motions.

      . This Court cannot imagine how the ALJ determined that Plaintiff can return to her past work as a computer operator or a bookkeeper without there being any evidence in the record as to the duties and physical difficulties that those two professions entail.


source: Caselaw Access Project

author: LIMBAUGH, District Judge.

license: Public Domain

text:
    FEDERAL BARGE LINES, INC., a corporation, Plaintiff, v. GRANITE CITY STEEL, DIVISION OF NATIONAL STEEL CORPORATION and the Valley Line and Art’s Fleeting Service, Inc., Defendants.
    No. 82-1642A(5).
    United States District Court, E.D. Missouri.
    Jan. 11, 1985.

      John S. Sandberg, St. Louis, Mo., for plaintiff.
    Gary T. Sacks, Samuel B. Murphy, Jr., St. Louis, Mo., Frank J. Dantone, Jr., Greenville, Miss., Peter B. Hoffman, St. Louis, Mo., for defendants.
   MEMORANDUM OPINION

LIMBAUGH, District Judge.

This matter was tried before the Court from June 27, 1984 through July 13, 1984. At the conclusion of plaintiffs case, the Court sustained defendant Valley Line’s motion for a directed verdict on the plaintiff’s complaint. The complaint was then dismissed against defendant Valley Lane. Defendant Art’s Fleeting Service voluntarily dismissed its cross-claim against defendant Granite City Steel. The only cross-claim remaining is that of Granite City Steel against Valley Line. Thus, the case before the Court consists of plaintiff’s second amended complaint against defendant Granite City Steel and Granite City Steel’s cross-claim for indemnity or contribution against Valley Line.

On May 18, 1979, at approximately 9:00 p.m. Barge HTC-28, loaded by defendant Granite City Steel with 1,565 tons of coiled steel, sank while moored in the Granite City Steel piling fleet. Plaintiff brought this action for damages against defendant Granite City Steel, alleging negligence in the loading of Barge HTC-28. Defendant Granite City Steel has filed a cross-claim against defendant Valley Line alleging that defendant Valley Line had negligently rearranged barges moored in the piling fleet. Defendant Granite City Steel claims that defendant Valley Line, after removing a barge, retied the other barges in such a manner as to cause Barge HTC-28 to come in contact with other barges, thus incurring damage which resulted in the sinking.

After hearing the testimony of the parties’ witnesses and upon careful consideration of all the evidence and briefs presented to this Court, the Court makes the following findings of fact and conclusions of law in accordance with Rule 52, Federal Rules of Civil Procedure.

The Court finds that plaintiff Federal Barge Line, defendants Granite City Steel and Valley Line and Art’s Fleeting Service are all corporations in good standing and within the jurisdiction of this Court. Plaintiff is the owner of the river barge HTC-28. Granite City Steel is the lessee and operator of a cargo loading and dock facility on the Chain of Rocks Canal in Granite City, Illinois. Granite City Steel also operates and makes available to barge owners fleeting space adjacent to its dock facility, commonly known as the Granite City Steel piling fleet. Valley Line is a barge line which owns and operates a number of harbor tugs, one of which is the M/V NAM-OUR. Art’s Fleeting Service is the owner and operator of several harbor tugs, including the M/V FORT YATES. Art’s Fleeting Service provides harbor tug and fleeting services for various tenants of the TriCity Regional Port District, of which defendant Granite City Steel is a tenant.

Barge HTC-28 is an open hopper barge of a vertically/transversely frame design. It has five storage compartments: raked bow, box stern and three wing tanks. The barge was built in 1965, thus about 14 years old at the time of the sinking. The Court further finds that the maintenance and inspection reports reveal a barge in questionable condition for loading and transporting bulk commodities such as coiled steel. The five months prior to the sinking depict a barge continuously leaking and in need of constant repair. The barge had sustained numerous fractures at various points along the frame and approximately 45 patches were used to repair temporarily these fractures and leaks. In fact, all repairs were temporary in nature because there is no report of drydocking during this period of time. The last report (prior to the sinking on May 18, 1979) was made on May 11, 1979. It indicated that there was water in all five compartments, areas of deterioration and “[b]arge heavily indented or washboarded. Corners starting to fracture. Covers and rails starting to deteriorate.” There is no evidence that plaintiff attempted to pump out the water or make temporary or permanent repairs between May 11, 1979 and May 18, 1979.

The Court further finds that on May 14, 1979, Granite City Steel placed an order for a barge with plaintiff. There is conflicting testimony as to the tonnage specified in the order. Plaintiff contends that defendant Granite City Steel placed an order for 1,400 tons of coiled steel whereas defendant Granite City Steel contends the order was for 1,565 tons. Plaintiff dispatched Barge HTC-28 from the Lesparance Street fleet on May 16, 1979. The tug M/V MARY BURKE towed HTC-28 to the Granite City Steel piling fleet and noted no problems during towage. The HTC-28 remained in the piling fleet from May 16 until the morning of May 17, when it was towed by the M/V FORT YATES to the Granite City Steel Dock for loading. The crew of the M/V FORT YATES noted no problems during towage.

As was its customary practice, the loading crew of defendant Granite City Steel made a visual inspection of HTC-28. This inspection consisted of a cursory check of the trim of the barge and the cargo hopper and did not involve checking the void compartments for leaks. No problems or leaks were reported to Mr. John Cole (general foreman in charge of loading) or to the plaintiff. Barge HTC-28 was then partially loaded with 97-98 coils by placing the coils at one end and continuing in a single pass to the other end. Where loading began in the cargo hopper is unknown. The barge was not reinspected after loading the 98 coils. The M/V FORT YATES then towed the barge back to the piling fleet where it remained until about 6-7:00 a.m. of May 18, 1979. At that time, the M/V FORT YATES returned HTC-28 to the loading dock. Again, no problems during towage were noted by the M/V FORT YATES. Loading resumed until about noon with additional 35-36 coils being placed in the barge. No inspection by Granite City Steel was conducted prior to this additional load. After the loading was completed, the barge was checked. Granite City Steel noted that the barge was in trim and had a draft of 9 feet, 6 inches. No leaking was noted. Once again the M/V FORT YATES towed the HTC-28 back to the piling fleet and no problems were noted during towing.

The Granite City Steel piling fleet is an non-supervised mooring area located approximately 50 feet from the Granite City Steel dock facility. The piling fleet area is leased by Granite City Steel but is utilized by other barge operators. Granite City Steel does not inspect or regularly check barges moored in the piling fleet, but will take affirmative action if an obvious problem occurs within the fleet.

On the afternoon of May 18, 1979, the HTC-28 was one of 13 barges in two tiers moored in the Granite City Steel piling fleet. The downstream tier had seven barges within it, and the upstream tier had six barges. HTC-28 was the fifth barge from the bank in the downstream tier. Shortly after the HTC-28 was placed in the piling fleet, the M/V NAMOUR arrived to remove a barge from the piling fleet. After removing the barge from the upper tier, a gap in the tier was created. Instead of rearranging the barges to fill in the gap, the barges were secured with lines but were placed at angles to one another in close contact. During the period the M/V NAMOUR was working the piling fleet, no problems with HTC-28 were noted. No other vessels entered the piling fleet after the M/V NAMOUR left.

At about 9:00 p.m. on May 18, 1979, large waves were noticed by Granite City Steel employees in the direction of the piling fleet. There was testimony that a loud popping noise was also heard. Examination of the piling fleet revealed that Barge HTC-28 had sunk. No one knows precisely what occurred, but the credible evidence indicates that the barge buckled and then sank.

Salvage operations began May 26 and continued until June 28, 1979. The HTC-28 was eventually raised and drydocked. There was difficulty in removing the steel coils and several coils were dropped back into the barge during attempts to lift them with a magnet. Of the 134 coils originally loaded, 129 were removed and some of these were badly damaged and/or had to be scrapped.

The drydock examination revealed that the barge had buckled near the bulkhead between the No. 1 and 2 wing tanks. The barge had also sustained a large hole in the port bow. There is conflicting testimony as to whether this was a fresh hole or an enlargement of an old fracture. Whether new or old damage, the Court finds that the hole, in and of itself, was not large enough to cause the barge to sink. The credible evidence indicates that the hole could not have been the sole cause for the sinking but was in all probability a contributing factor.

The Court further finds that plaintiffs suggested loss may not be fair and accurate. Plaintiff is only entitled to recover those losses directly attributable to the sinking. There is a dispute as to plaintiff’s payment of Weirton Steel Division’s cargo claim under its bill of lading, the use of Art’s Fleeting Service to transport plaintiff’s surveyor to and from the salvage site instead of the salvor, who customarily provides such service for free, and the salvage contract price. Defendant Granite City Steel also pleads for a reduction of the repair bill paid to Louisiana Dock.

This is an admiralty and maritime claim within the meaning of Rule 9(h), Federal Rules of Civil Procedure and this Court has jurisdiction thereof pursuant to 28 U.S.C. § 1333.

Plaintiff seeks to impose liability upon defendant Granite City Steel on one of two propositions, based primarily on a bailment theory. Either Barge HTC-28 was leaking at the time of loading and defendant Granite City Steel failed to discover this condition or the barge was not leaking and Granite City Steel improperly loaded HTC-28. Defendant Granite City Steel counters both of these propositions of liability by avering that HTC-28 was unseaworthy in the first place and regardless of that fact, defendant Granite City Steel was not a bailee and therefore had no mandatory legal duty to inspect HTC-28 for leakage or keep a watch over it until it was re-delivered to plaintiff. Defendant Granite City Steel further contends that defendant Valley Line, if not sole tortfeasor, is a contributing tortfeasor, because it negligently rearranged the piling fleet and created the risk that HTC-28 incurred damage due to close contact with other barges. Defendant Valley Line disputes this allegation.

In an admiralty case such as this one, there are two evidentiary burdens operating. Midland Enterprises v. Notre Dame F. & T. Serv., 538 F.2d 1356, 1357 (8th Cir.1976); In re Matter of Flowers, 526 F.2d 242, 244 (8th Cir.1975); Sisung v. Tiger Pass Shipyard Co., 303 F.2d 318 (5th Cir.1962). Plaintiff relies on the rule that defendant Granite City Steel’s failure to return the barge after bailment raises a presumption of negligence. See, Commercial Molasses Corp. v. New York T.B. Corp., 314 U.S. 104, 111, 62 S.Ct. 156, 161, 86 L.Ed. 89 (1941). Defendant has the burden of coming forth with evidence as to how the barge sank and that the sinking was not due to its sole negligence and that Granite City Steel exercised reasonable care during the bailment. Midland, at 1357; Matter of Flowers, at 244-245. The burden of persuasion, though, remains with the plaintiff to show that defendant Granite City Steel was in some manner negligent and thus proximately caused HTC-28 to sink.

Under maritime law, a barge owner has the duty to furnish his barge (for loading) in a seaworthy condition. The Southwark, 191 U.S. 1, 24 S.Ct. 1, 48 L.Ed. 65 (1903). The test for seaworthiness is whether the vessel is reasonably fit to carry the particular cargo which it has agreed to transport. The Southwark, at 9, 24 S.Ct. at 3. The Silvia, 171 U.S. 462, 19 S.Ct. 7, 43 L.Ed. 241 (1898). The issue of seaworthiness is a question of fact to be decided by this Court. Dravo Mechling Corp. v. Standard Terminals, 557 F.Supp. 1162 (W.D.Penn.1983). Although defendant Granite City Steel contends that the evidence that HTC-28 sank in fair weather and calm waters, is prima facie proof that the barge was unseaworthy, such evidence is only one of several factors to be considered. See, Continental National American Group v. Valley Line Co., 420 F.Supp. 568, 569 (E.D.Mo.1976).

The credible evidence depicts Barge HTC-28 as a leaker. It was regularly taking on water and required constant pumping. The barge was covered with plate patches over weak spots and fractures in the hull. Barge HTC-28 had at least 25% plate wastage. Expert testimony agreed that a transversely framed barge is structurally weaker than a longitudinally framed barge and such weakness increases with age. Plaintiffs own experts agreed that an older transversely framed barge is not suited for loading with a large tonnage of cargo such as coiled steel.

Barge HTC-28’s maintenance reports up to one week before the sinking show a heavily washboarded, indented and fractured barge. Messrs. Morgan, Beare, and Henshaw (all employed by plaintiff) testified that HTC-28 should have been dry-docked and permanently repaired prior to the loading. Not only were permanent repairs not made but there is no credible evidence that the leakage noted on May 11, 1979 was ever pumped out. Plaintiff states it must have been because defendant Granite City Steel did not report leakage, but then again defendant Granite City Steel did not specifically inspect for leakage before loading. Finally, HTC-28 did sink in calm water during fair weather.

The Court concludes that a combination of factors including a propensity of the barge to leak, advanced age of the barge, poor overall physical condition, and an unsuitable barge structural design for a load of coiled steel between 1,400-1,565 tons, rendered HTC-28 to be unseaworthy at time of delivery to Granite City Steel for loading. This determination of unseaworthiness, in and of itself, does not resolve the problems for the unseaworthy condition was not the sole proximate cause of the sinking. Had HTC-28 not been loaded, it would not have sunk.

The Court holds that even if HTC-28 was unseaworthy for loading at the time of delivery, defendant Granite City Steel, the bailee, still had the burden of showing that it exercised reasonable care during the bailment and that its conduct at that time was not the proximate cause of the sinking of HTC-28. The Court finds from the weight of the credible evidence that Granite City Steel was negligent in loading HTC-28 in the manner it did, or for loading at all, without exercising reasonable care to check for leakage, which negligence contributed to the sinking of HTC-28.

Delivery of HTC-28 to defendant Granite City Steel for loading created a bailment. Ohio River Co. v. Peavey Co., 731 F.2d 547 (8th Cir.1984), reversing on other grounds 556 F.Supp. 87 (E.D.Mo. 1982); Matter of Flowers, 526 F.2d at 244; Dravo Mechling, at 1166; Continental Nat’l. Am. Gp., at 570; Mid-America Transportation Co. v. St. Louis Barge Fleeting Service, 229 F.Supp. 409, 411 (E.D.Mo.1964). The court in Mid-America addressed the same issue raised here by defendant Granite City Steel, that is since plaintiff was free and able at anytime to remove HTC-28 from the piling fleet, no bailment was created. Mid America held that “Such a contention is clearly erroneous. As a general rule, delivery by the bailor and acceptance by the bailee of the subject matter of the bailment creates the bailment.” Id., at 411. A bailment obligates the bailee to exercise ordinary care to protect the subject of the bailment, (in this case the barge HTC-28.) Ohio River v. Peavey, supra; United Barge v. Notre Dame Fleeting and Towing, 568 F.2d 599, 602 n. 5 (8th Cir.1978); Matter of Flowers, at 244; Continental Nat’l. Am. Gp., at 570.

Even if the Court had not found a bailment was created, Granite City Steel would still be held to a duty to exercise ordinary care as a stevedore. Dravo Mechling, at 1166. The warranty of workmanlike service requires the stevedore to use the same care and diligence as an ordinary prudent and skillful person would use in loading a barge under the same circumstances as present in this case. Dravo Mechling, at 1166 citing Ryan Stevedoring Co. v. Pan-Atlantic Steamship Co., 350 U.S. 124, 133-34, 76 S.Ct. 232, 237-38, 100 L.Ed. 133 (1956) and F.J. Walker Ltd. v. Motor Vessel “Lemon Core”, 561 F.2d 1138, 1148 (5th Cir.1977). A breach of the stevedore’s warranty extends liability for all foreseeable and proximate losses incurred as a result of the stevedore’s negligence. Dravo Mechling, at 1166.

In the instant case, defendant Granite City Steel accepted delivery of Barge HTC-28 for the purpose of loading her with coiled steel. Defendant Granite City Steel failed to exercise due care in the loading of the barge. Defendant was aware of the age and design of the barge. The credible evidence indicates that the single pass method of loading is an acceptable loading method. The evidence was also consistent that this method was not preferable when loading an older transversely framed barge showing signs of deterioration like HTC-28. What is customary practice may amount to a failure to exercise reasonable care under the circumstances of a particular case. United Barge Co. v. Notre Dame Fleeting & Towing, 568 F.2d 599, 604 n. 8 (8th Cir.1978).

Defendant Granite City Steel was negligent in employing an improper loading method which concentrated the load at a single point in the barge instead of throughout the barge. This caused excessive stress points in a weakened hull. Such stress could and the Court finds here, did lead to the buckling of the barge. See, Continental Nat’l. Am. Gp., supra.

A failure to inspect the barge for leaks before and after loading also constituted negligence on the part of Granite City Steel. HTC-28 was a leaker and in all probability was taking on water while in Granite City Steel’s custody. Although Granite City Steel was aware that plaintiff allowed only a draft of 9 feet, it loaded to a draft of 9 feet, 6 inches. This small discrepancy becomes significant when a barge has a history of leakage as did HTC-28. Granite City Steel admitted that it would be improper to load a leaking barge and that its usual practice was to report to the barge owner any leakage discovered or to pump out the water. HTC-28 was taking on water, albeit at a slow rate, and an inspection for leakage would have revealed this. Instead the over-loaded barge was left to sit, unattended, in the piling fleet.

As bailee, Granite City Steel had the duty to exercise reasonable care with regard to HTC-28. This reasonable care included checking the barge specifically for leakage, rather than just lifting the hatch-covers to look for water visually, which was the only thing done here. Periodic inspections should have been made while the barge sat for nine hours.

Granite City Steel contends that it has no watchmen overseeing the piling fleet and no harbor crew or boat available to maintain the fleet; therefore, it was not in a position to do anything if the HTC-28 was in trouble. The fact that Granite City Steel did not have the resources available to maintain the fleet, does not excuse it from liability. See, Ohio River Co. v. Great Lakes Carbon Corp., 562 F.Supp. 61, 64 (E.D.Mo.1982), remanded in part on issue of attorneys’ fees 714 F.2d 65 (8th Cir.1983).

The Court sustains Valley Line’s motion for a directed verdict on Granite City Steel’s cross-claim. Granite City Steel’s evidence against Valley Line consisted primarily of a diagram of the piling fleet made by Art Heinreicher although the diagram was not based upon his first-hand knowledge of the piling fleet configuration. Even if the diagram was accurate, there is no credible evidence which supports a finding that any conduct by Valley Line with regard to the piling fleet configuration was the proximate cause of the sinking. The evidence supporting Granite City Steel’s contention of liability against Valley Line is simply too speculative for the Court to make a finding of negligence on the part of defendant Valley Line which contributed to the sinking of HTC-28.

After a review of all the evidence, it is the opinion of the Court that the sinking of Barge HTC-28 was caused by and the direct result of the unseaworthiness of Barge HTC-28 and failure to inspect properly HTC-28 for leakage and subsequent improper loading.

Plaintiff is seeking the following damages:

Able Commercial

Divers Diver/Tender $ 312.00

Okie Moore Raised Barge 56,000.00

Art’s Fleeting Assistance 1,275.00

Louisiana Dock Co. Temporary Repairs 2,725.82

St. Louis Ship Shift coils T-2063 419.25

Louisiana Dock Repairs to HTC-28 42,004.58

R. Kemmerer Survey 1,997.69

Weirton Steel Division Cargo Claim 27,229.45

TOTAL LOSS $131,963.79

Defendant Granite City Steel has objected to the damages listed for Okie Moore, Art’s Fleeting, St. Louis Ship, and Weirton Steel Division. Granite City Steel also feels it should not be held responsible for repairs necessitated by the salvor dropping the coils during salvaging efforts. There have been no objections raised concerning the remaining damages.

The credible evidence is conflicting as to the agreed contract price between plaintiff and Okie Moore for the raising of the HTC-28. Plaintiff contends the contract price was $56,000, while defendant Granite City Steel argues it was $50,000. Several of the survey reports indicate that the salvage contract price was divided between the raising of another barge as well as the one in controversy. This cost would have been $20,000 for raising the other barge, T-2011, and $50,000 for raising barge HTC-28. Clark Henshaw noted on the Okie Barge invoice a split of $14,000 to T-2011 and $50,000 for the HTC-28. Plaintiff has the burden of proving, by a preponderance of the evidence, a contract price of $56,000. The Court finds that plaintiff has failed to meet its burden and a contract price of $50,000 will be allowed.

Plaintiff has also failed to support adequately a damage claim of $1,275 for tug service charges by Art’s Fleeting Service. The Court finds the charges for towing the HTC-28 to Louisiana Dock to be proper but will disallow the charges incurred for transporting plaintiff’s survey- or, Richard Kemmerer, to and from the salvage site. It is the customary practice for Okie Moore to transport the marine surveyor(s) to and from the salvage site. As Mr. Kemmerer could not supply any reason why he did not take advantage of this service, although well aware of it, only $225 will be allowed from the total billing by Art’s Fleeting.

As to the charge of $419.25 by St. Louis Ship, the Court finds that plaintiff has failed to meet its burden. Plaintiff did not present any evidence of the necessity of this charge. The cost of shifting coils in T-2063 will be disallowed.

The Court further finds that the $27,229.45 payment to Weirton Steel for its cargo claim constitutes a voluntary payment. Section 10 of plaintiff’s bill of lading clearly exempts plaintiff from liability for loss of cargo due to an improper loading of a third party. Plaintiff had then no legal duty to compensate Weirton Steel (i.e. before the proximate cause of the sinking had been established) and indicated in discovery, in any event, that it had done so to maintain good customer relations. The claim for payment to Weirton Steel will be disallowed.

The parties appear to agree that a certain amount of damage sustained by the HTC-28 is attributable to the dropping of several steel coils onto the barge during salvage efforts. Ordinarily plaintiff would not be entitled to recover for damages due to the negligent acts of the salvor or due to its own failure to take steps to mitigate further damage to the barge. Although the Court recognizes that plaintiff has a duty to mitigate its damages, the circumstances of this case prohibit the reduction of the repair bill paid to Louisiana Dock in the amount of $42,004.58. None of the evidence presented clearly distinguished between the damage sustained due to the sinking and the damage sustained due to the dropping of steel coils nor did the repair bill separate the cost of repairs for the sinking from the cost of repairs for coils dropping onto the barge. Any reduction of the repair bill would be extremely speculative on the part of the Court.

The Court finds that plaintiff has met its burden respecting the other items of damage and those will be allowed.

The next issue to be addressed is the award of prejudgment interest against defendant Granite City Steel. The general rule in admiralty cases is that prejudgment interest should be awarded absent exceptional circumstances. Ohio River v. Peavey Co., 731 F.2d 547 (8th Cir.1984); Ohio River v. Great Lakes Carbon Corp., 714 F.2d 63 (8th Cir.1983); Consolidated Grain and Barge Co. v. Archway Fleeting and Harbor Service, 712 F.2d 1287, 1290 (8th Cir.1983); Federal Barge Lines, Inc. v. Republic Marine, Inc., 616 F.2d 372, 373 (8th Cir.1980); Mid-American Transportation Co. v. Rose Barge Lines, 477 F.2d 914, 916 (8th Cir.1973). Prejudgment interest is to be computed from the time expenditures for repairs were actually made, i.e. the time of payment. Federal Barge Lines v. Republic Marine, at 373; Mid-American Transportation Co. v. Cargo Carriers, Inc., 480 F.2d 1071, 1074 (8th Cir.1973); Mid-American Transportation v. Rose Barge, at 916.

Although the rationale behind an award of prejudgment interest is restitution and full compensation, the setting of the prejudgment interest rate is discretionary with the court. Federal Barge Lines v. Republic Marine, at 373; U.S. v. M/V GOPHER STATE, 614 F.2d 1186, 1190 (8th Cir.1980); Mid-American Transportation v. Rose Barge, at 916; Ohio River v. Peavey, at 93. This Court is not bound by the forum state statutory interest rates. Id. It has been held in this circuit that the prejudgment interest rate should be fixed at a rate in keeping with prevailing rates at the time repairs were made. Ohio River v. Peavey, at 549; General Facilities, Inc. v. National Marine Service, Inc., 664 F.2d 672, 674 (8th Cir.1981); Federal Barge Lines v. Republic Marine, at 373-374; U.S. v. M/V GOPHER STATE, at 1190; Ohio River v. Peavey, at 93. These cases held that prevailing rates were a guide to the Court and that the Court should consider the prevailing rates along with the evidence adduced, in setting the prejudgment interest rate. Id.

Plaintiff has furnished the Court with an affidavit by an officer of the Finance Department of Mercantile Bank and Trust listing the weekly prime interest rates from June, 1979 until May, 1984. Defendant Granite City Steel does not object to the authenticity of this listing but rather strenuously objects to any award of prejudgment interest. Granite City Steel contends that the three and one half year “delay” between the sinking incident and the filing of the complaint by plaintiff, and the several amendments to the complaint, constitute an exceptional circumstance to justify not awarding prejudgment interest. Although a delay in bringing or prosecuting an admiralty suit may be considered as justification for denial of prejudgment interest, the Court finds no such exceptional circumstances present in this case. See, Mid-America Transportation v. Rose Barge Line, 477 F.2d 914, 916 (8th Cir.1973). Plaintiff brought its suit within statutory time limits and it will not now be penalized for the amendments to its complaint that this Court had previously allowed.

Plaintiffs evidence demonstrates a prime interest rate which fluctuated greatly during the years 1979-1984. The prevailing interest rates, during these years, ranged from 11% to 20%. After reviewing plaintiffs evidence and considering the circumstances of the case, the Court finds that a rate of 12% per annum would fairly compensate the plaintiff.

Based upon the stated law and the Court’s findings of fact, liability for the sinking of Barge HTC-28, is to be apportioned between plaintiff and defendant Granite City Steel at a ratio of 50% against plaintiff and 50% against defendant Granite City Steel. In light of this determination, the Court will dismiss the cross-claim filed by defendant Granite City Steel against defendant Valley Line. The following are plaintiffs recoverable damages:

Able Commercial Divers $ 312.00
Okie Moore 50,000.00
Art’s Fleeting 225.00
Louisiana Dock 2,725.82
Louisiana Dock 42,004.58
R. Kemmerer 1,997.69
TOTAL DAMAGES $ 97,265.09

Of this sum, defendant Granite City Steel, shall be responsible for $48,632.54 with interest at the rate of 12% per annum from the time damages were paid by plaintiff.


author: PENCE, District Judge.

text:
    David B. CLEMENTSON, Plaintiff, v. Raymond J. DONOVAN, Secretary of Labor, U.S. Department of Labor, Defendant.
    Civ. No. 84-0732.
    United States District Court, D. Hawaii.
    Jan. 21, 1985.
    On Motion for Rehearing March 8, 1985.

      Ted Gamble Clause, Honolulu, Hawaii, for plaintiff.
    Jerome Davis, U.S. Dept. of Labor, Washington, D.C., Daniel Bent, U.S. Atty., Dist. of Hawaii, Eric L. Wilson, Asst. U.S. Atty., Honolulu, Hawaii, for defendant.
   MEMORANDUM AND ORDER

PENCE, District Judge.

Plaintiff, a disabled Vietnam era veteran, alleges that the failure of his employer, Crowley Maritime Corporation, a Federal contractor, to rehire him after he voluntarily quit his position, violated Crowley’s affirmative action obligation under the Vietnam Era Veterans Readjustment Assistance Act of 1974, 38 U.S.C. § 2012 (the Act). The plaintiff filed an administrative complaint with the Office of Federal Contract Compliance Programs (OFCCP), United States Department of Labor. The OFCCP investigated the complaint and determined that Crowley had not violated the contract, Act or regulations promulgated pursuant thereto. The Acting Director of the Division of Enforcement Coordination of the OFCCP, acting pursuant to a delegation by the Acting Director, OFCCP, concurred with this determination, which was the final agency decision. 41 C.F.R. § 60-250.26(g).

In this action, plaintiff seeks review of the decision pursuant to the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq. Plaintiff requests that this court declare the agency decision unlawful and provide such other relief as his cause may require.

The defendant has filed a motion to dismiss, or in the alternative, for summary judgment. Fed.R.Civ.P. 12 and 56. The defendant contends that the decision not to initiate legal action on plaintiffs complaint is an unreviewable exercise of prosecutorial discretion; that even if reviewable, the findings and decision to refrain from enforcement proceedings are not arbitrary, capricious nor an abuse of discretion.

I. Background

The affirmative action provisions of the Act require that any contract or subcontract entered into for $10,000 or more contain a provision obligating the contractor to take affirmative action to employ and promote qualified special disabled veterans and veterans of the Vietnam era. The enforcement of the Act has been delegated by the Secretary of Labor to the OFCCP. The implementing regulations (41 C.F.R. Part 60-250) prohibit contractors from discriminating in employment against qualified special disabled veterans and veterans of the Vietnam era, and set forth the affirmative action requirements of the Act. 41 C.F.R. § 60-250.4. The OFCCP’s complaint investigation procedures are the same for the Act as for Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 793) See Roddy v. Shong, 33 FEP Cases 1399 (N.D.Ohio, 1983). These procedures charge the Director of the OFCCP with the primary responsibility for investigating that there has been no violation, or if the Director decides not to initiate administrative or legal proceedings against the contractor, the Director is required to so notify the complainant. 41 C.F.R. § 60-250.26(g)(1). Within thirty days of that notification, the complainant may request the Director to review the determination.

On July 11, 1983, plaintiff filed a complaint with the OFCCP, alleging discrimination based on his disabled Vietnam era veteran status. In particular, he alleged that Crowley was in violation of both the nondiscrimination and affirmative action clauses of its federal contract when it did not rehire him as an operations assistant.

OFCCP’s San Francisco Regional Office initiated an investigation of these claims through its San Jose Area office in accordance with 41 C.F.R. § 60-250.26(e). After investigation, the regional office concluded that there was no evidence of personal bias against the complainant because of his disabled veteran status.

The investigation disclosed that Mr. Clementson had been employed part time by Crowley as an operations assistant, from January 1982 until April 27, 1983. Mr. Clementson had voluntarily resigned his position at the conclusion of a 12 hour shift on April 27, 1983 and two days later attempted to rescind his resignation. His immediate supervisor declined to consider him for rehire and he appealed to the Manager, Hawaiian Marine Lines, who took no action.

On May 6, 1983, and again on May 10, 1983, plaintiff appealed to the Operations Manager at Corporate Headquarters. He was told to submit an application as a new hire. Mr. Clementson submitted the proper forms on May 23, 1983, and became one of 11 applicants for the position. The job was later awarded to another Vietnam era veteran.

Plaintiff’s personnel files indicated that he had received a merit increase on January 1, 1983, for satisfactory performance. The investigation also showed that during the period of his employment he did not have a good working relationship with his supervisor. The two had had numerous disagreements, some concerning inattentiveness to safety, and others which contained vulgarity. In a memorandum dated May 25, 1983, from the Operations Manager to the Personnel Director, the Manager had recognized this stormy relationship and, while acknowledging that plaintiff was a good worker, was unable to recommend him for the position at issue because of the above problems. The Manager did state, however, that “it is not my intention to bar him from being employed elsewhere in the company.”

On May 17, 1983, plaintiff received a Personnel Action Notice informing him that he was terminated because of the circumstances surrounding his resignation. That same day, he phoned the Manager, Hawaiian Marine Lines, and was advised to put his complaint in writing. His May 18, 1983 letter was forwarded to the Personnel Director, who then advised the Manager to correct any possible factual inaccuracies contained in the Notice.

The regional office notified plaintiff of its investigative findings by letter dated January 12, 1984. Plaintiff then requested reconsideration of this decision in a letter dated February 14,1984. This request was granted, and he was so notified on March 12, 1984. Plaintiffs case file was then forwarded to Mr. Bluestein, Acting Director of the Division of Enforcement Coordination, for review.

Mr. Bluestein conducted a thorough review of the case file, regional findings, and materials accompanying the request for reconsideration, after which he affirmed the regional office’s decision. Plaintiff was properly advised of the reasons for this determination in a letter dated May 21, 1984. Bluestein cited the fact that the plaintiff’s status was not a factor in his original hiring, and that it was highly unlikely that it would become determinative now. He recognized plaintiff’s concerns regarding Crowley’s internal policies and the relationships between management and employees, but stated that these concerns could only be addressed by OFCCP when the contractor’s actions violated those regulations which OFCCP has the authority to enforce. Since there was no evidence of such violation, the Department could take no further action.

II. Judicial Reviewability

The threshold question presented in this case is whether the court has jurisdiction to review the decision at issue herein. I hold that it does.

The Secretary maintains that the decision to forego further legal action on plaintiff’s complaint is an unreviewable exercise of discretion. According to the APA judicial review is to be provided except to the extent that (1) statutes preclude review; or (2) agency action is committed to agency discretion by law. 5 U.S.C. § 701(a). In the absence of an express prohibition in the Act, the Secretary “bears the heavy burden of overcoming the strong presumption that Congress did not mean to prohibit all judicial review of his decision.” Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975). “Only upon a showing of clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). See also, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971); Chevron Oil Co. v. Andrus, 588 F.2d 1383, 1388 (5th Cir.1979). Thus, the Supreme Court has stated in strong terms that the exemption from APA review of action “committed to agency discretion” is a very narrow exception. Citizens to Preserve Overton Park, Inc., supra. The exception applies only in those rare instances where “statutes are drawn in such broad terms that in a given case there is no law to apply.” Id. That a statute by its terms permits, rather than compels, agency actions does not alone commit that action to the agency’s unreviewable discretion. Save the Bay, Inc. v. Administrator of E.P.A., 556 F.2d 1282, 1293 (5th Cir.1977).

Since the exception to judicial review of an administrative action is very narrow, and since the Secretary has not demonstrated by clear and convincing evidence that the legislative intent behind the Act was to restrict access for review, I conclude that the plaintiff has a right to judicial review in the case sub judice. Moon v. Secretary, United States Department of Labor, 747 F.2d 599 (11th Cir.1984); cf. Pace and Smart v. Donovan, 35 FEP Cases 255 (D.D.C., 1984); contra Presinzano v. Hoffman-LaRoche, 726 F.2d 105 (3rd Cir.1984).

The next question is the scope of the review which the court can conduct. Plaintiff argues that such a review should be De Novo, particularly because the Secretary’s investigation was not sufficiently extensive in scope and should have included a review of Crowley’s general commitment to affirmative action. However, plaintiff’s allegations in his complaint to the OFCCP merely concerned actions taken by Crowley against him. The enforcement scheme provided for by the regulations, 41 C.F.R. § 61-250.26(e), does not provide that when a complaint of individual discrimination is made a review is then made of the contractor’s entire commitment to affirmative action. Thus, the Secretary property investigated only Mr. Clementson’s individual complaint.

De Novo review is only appropriate where there have been inadequate fact finding procedures in an adjudicatory proceeding. Plaintiff has argued that this investigation was adjudicatory in nature. Not so here: In this case the OFCCP performed an investigatory function, not an adjudicatory one. Further, in nonadjudicatory fact finding investigations, the traditional notions of Fifth Amendment Due Process do not attach. Hannah v. Larche, 363 U.S. 420, 440, 80 S.Ct. 1502, 1513, 4 L.Ed.2d 1307 (1960); Shell Oil v. EEOC, 523 F.Supp. 79 (E.D.Mo., 1981), rev’d, 676 F.2d 322 (8th Cir.1982), rev’d, — U.S. -, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984).

The Secretary’s decision not to invoke the enforcement mechanisms is therefore to be reviewed under the limited standard of “abuse of discretion” 5 U.S.C. § 706(2)(A).

In reviewing the reasons for the non-enforcement of Clementson’s claim, the court may consider only “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment ... [thus] the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency”. Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. at 824 (1971).

Based on this standard of review of the facts and record presented by defendant in this case I find that defendant fully investigated plaintiff’s complaint. Further, I find that defendant was not arbitrary, capricious nor abused his discretion.

THEREFORE, upon consideration of Defendant’s Motion to Dismiss, or in the Alternative, for Summary Judgment, plaintiff's opposition thereto, oral argument on the Motion and the entire record,

IT IS THEREBY ORDERED that Defendant’s Motion to Dismiss, or in the Alternative, for Summary Judgment, be and hereby is GRANTED, and the Complaint is DISMISSED.

ON MOTION FOR REHEARING

Plaintiff Clementson, a disabled Vietnam-era veteran, worked as operations assistant for Hawaiian Marine Lines, whose parent was Crowley Maritime Corp. (Crowley), a federal government contractor. His suit against the Department of Labor arose out of Crowley’s refusal to rehire him.

Clementson’s basic claims were that:

(1) While employed by Crowley in 1983, on one occasion, a Crowley official told him that a parent company executive had asked why Crowley was employing a “gimp”. Plaintiff was crippled.

(2) He had a continuing argumentative relationship with his supervisor. He maintained that his job of supervising barge loading was very stressful due to the constant possibility of accidents.

(3) At the end of a shift on April 27, 1983, during which his supervisor verbally abused him, he told the latter that he “quit”. The next day, he returned and tried to rescind his resignation, but despite repeated requests, Crowley would not rehire him and he was sent a written notice of discharge. Instead, a non-disabled Vietnam veteran, discharged over four years before, and allegedly less well-qualified, was hired to replace him.

Clementson thereafter filed a complaint with the office of federal contract compliance programs of the Department of Labor, alleging that he was not rehired due to prejudice against him as handicapped, and that the company had violated affirmative action requirements imposed on it as a government contractor, 38 U.S.C. section 2012.

The agency decided there was insufficient evidence that the refusal to rehire was based on Clementson’s status as a disabled, i.e., handicapped, Vietnam-era veteran. That decision was affirmed on reconsideration at the next level; thus plaintiff’s administrative remedies were exhausted.

Clementson then brought this action against the Department of Labor claiming that its action in refusing to order his reinstatement had been arbitrary, capricious, unreasonable, unlawful, and procedurally defective. 5 U.S.C. sections 702, 706; 41 C.F.R. section 60-250.26(e).

On hearing, this court held that the agency’s decision had been rationally based upon the evidence, that the investigation had been procedurally correct, and that there was no evidence of discrimination or violation of affirmative action regulations. The court granted summary judgment for the Department of Labor.

Clementson now moves for reconsideration of that decision.

I

He first argues that the Department of Labor’s decision was arbitrary and capricious because it failed to consider whether Crowley had a duty, under affirmative action requirements, to transfer Clementson to another job.

This court previously held that this claim was not properly before it, because Clementson had not raised the claim before the agency. He now argues that 41 C.F.R. section 60-250.26(a), which requires the agency to assist complainants in preparing their complaints, required it to help him focus on the denial of transfer as well as the refusal to rehire.

The complaint was prepared on a form supplied by the agency. Clementson urges that one of the boxes checked, “discharge”, placed in issue more than just Crowley’s failure to rehire him in his old job, but, fairly read, also places in issue Crowley’s refusal to employ him at all after he quit. (The other box checked was “failure or refusal to hire”.)

However, this claim was not so presented to the agency. The tenor of Clementson’s complaint to the agency was Crowley’s refusal to rehire for his old position, not for a refusal to rehire him in some other job in the company. The agency thus had no obligation to supply him with possible new grounds for complaint.

II

Clementson also argues that the agency’s decision was arbitrary, because it failed to consider whether Clementson’s service-induced ulcer made him tense and contributed to his turbulent relationship with his supervisor, which, in turn, led to his quit/discharge. This is based on 41 C.F.R. section 60-250.6(h)(2), which required the employer to identify disabled veterans’ “problem areas” in relationships with line management, and accommodate them.

Besides the fact that this claim, too, was not before the agency, the chain of causation is entirely too attenuated to compel this court to order the agency to require Crowley to rehire Clementson and give him special treatment because of his service-induced ulcer.

III

Clementson alleged in his request for reconsideration before the agency that Crowley did not have a valid affirmative action program in place, as required. He argues that the Department’s regulations required the employer to give notice to Clementson about the company’s affirmative action program and invite him to take advantage of it. Therefore, he claims:

a. If Crowley did not have a valid program in place, it deprived Clementson of his right to affirmative action practices that might have prevented his termination. Thus, the agency’s decision was arbitrary and capricious.

b. If Crowley violated its duty to give notice, it interfered with Clementson’s ability to frame his original complaint to the agency by depriving him of relevant information.

These, it is argued, are genuine issues of law and fact precluding a grant of summary judgment.

Again, however, the causation requirement is not fulfilled. The only evidence before the agency showed that the reason for the quit/discharge was a personality dispute, and the agency rationally so concluded. Even if it were entirely the supervisor’s fault, this still was not evidence of discrimination or failure to obey affirmative action regulations.

Moreover, the fact that Crowley did or did not have an affirmative action program in effect at the time of the quit/discharge does not change the basic facts underlying Clementson’s claim. Clementson’s claims were fully reviewed by the agency under the same standards that would prevail with or without an affirmative action program in place.

IV

The employee argues that the administrative record is not before the court, so the Department cannot show that it is entitled to summary judgment. There is no way to tell if agency fact-finding procedures were adequate.

However, the written complaints were clearly before the agency, and the same, along with the agency’s summary of the evidence, its recommended findings, and the reasons therefor, were before this court. The record was sufficient for this court to rule upon.

V

Clementson states that after he quit and Crowley refused to rehire him, Prowley tried to intimidate him from taking his. complaint to the agency. If so, this would be contrary to 41 C.F.R. section 60-250.51, and Crowley might be liable for agency sanctions. Such a “violation” coming after Clementson’s quit/discharge would have no relevance to Clementson’s “refusal to rehire” complaint.

Upon reconsideration, this court finds no basis for setting aside its grant of summary judgment for the Department of Labor. Therefore, it is hereby ORDERED that the motion for rehearing is DENIED.