author: CALEB M. WRIGHT, Senior District Judge.

text:
    William DONOVAN, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. A. No. 82-566 CMW.
    United States District Court, D. Delaware.
    Oct. 22, 1984.
    Hank R. Bernstein, of Chadds Ford, Pa., for plaintiff.
    Joseph J. Farnan, Jr., U.S. Atty., Richard McMahon, Asst. U.S. Atty., Wilmington, Del. (Diane C. Moskal, Regional Atty., and John Newton, Asst. Regional Atty., Philadelphia, Pa., of counsel), for defendant.
   OPINION

CALEB M. WRIGHT, Senior District Judge.

Hank R. Bernstein, an attorney for a social security claimant, has moved for at- . torney’s fees pursuant to 42 U.S.C. § 406. That statute provides that an attorney of a claimant who prevails in proceedings before the Secretary or before a court is entitled to a reasonable fee not to exceed 25% of the claimant’s past-due benefits. Part (a) of § 406 provides that the Secretary shall approve the reasonableness of the attorney’s fees in administrative proceedings. Part (b) authorizes courts to make a similar determination in judicial proceedings under the Social Security Act. Matters under this Act involving representation before a district court necessarily presuppose representation before an administrative body. The central issue posed by this Motion is whether an attorney can obtain through a single fee petition to the district court an award for services rendered before the district court and the Secretary, or instead whether an attorney is required to file a separate fee petition to each tribunal for representation of his client before that tribunal.

FACTS

The claimant in this case, William Donovan, was originally denied disability benefits under the Social Security Act after several levels of administrative review. The decision of the Secretary was vacated and remanded on appeal to this Court in a decision on summary judgment issued May 31, 1983. On remand, an administrative law judge determined that the claimant was disabled and his recommendation was adopted by the Appeals Council. No determination of the actual award to the claimant has been made, nor has the amount of past-due benefits been ascertained.

On August 17, 1984, the Office of Hearings and Appeals in the Social Security Administration notified the claimant’s attorney to submit a fee petition to their office. Instead of filing a fee petition with the Office of Hearings and Appeals, the attorney has moved for attorney’s fees in this Court for his efforts on behalf of his client before the Secretary and before this Court. He requests $6,000.00 for his services based on his itemization of 92.75 hours billed, 25.45 hours of which were spent in connection with the appeal before this Court (all time between August 17, 1982 and June 9, 1983 in the fee petition).

DISCUSSION

This Court finds nothing unreasonable about the fees requested by the claimant’s attorney. The 92.75 hours spent in ultimately vindicating the claimant’s right to Social Security benefits were not inordinate. Moreover, the fee petition presents a complete itemization of the time spent for representation. The hourly rate comes to almost $65.00 an hour, a rate that is not out of line with what other attorneys charge for cases of similar complexity. Thus, if the only issue confronting this Court were whether the fee was reasonable, the Court would approve the attorney’s motion for fees.

In deciding this Motion, however, the Court is concerned by two additional issues: whether a court can award attorney’s fees prior to certification of award for past-due benefits by the Secretary; and whether a district court may base its award of attorney’s fees on efforts expended by an attorney for proceedings before the Secretary. While these issues have been addressed by a number of courts, the law in the Third Circuit is unsettled. Sound judicial practice dictates a review of the proper construction of § 406 to dispose of this Motion.

1. Consideration of Fee Petitions Pri- or to Certificate of An Award.

The first issue is whether this Court, in fulfilling its duties under 42 U.S.C. § 406(b), may enter an award for attorney’s fees prior to the Secretary’s certification of an award for past-due benefits. Of primary concern is the district court’s responsibility to see that attorney’s fees for representation before the Court and the Secretary do not in aggregate exceed 25% of the claimant’s past-due benefits. Morris v. Social Security Administration, 689 F.2d 495, 497 (4th Cir.1982). This responsibility does not preclude entry of a conditional order authorizing the Secretary to disburse a fee for services performed before the district court provided, however, that that fee when added to any fee that the Secretary deems appropriate, does not exceed 25% of the claimant’s past due benefits. In the event that the 25% limit is exceeded, the Secretary would be authorized to reduce the district court’s fee award to 25% of the past-due benefits.

A second factor militating against issuance of an order approving a fee petition prior to the Secretary’s certification of an award for past-due benefits is the confusion to the Secretary in administering payment of the fees. If the Social Security Administration were reasonably efficient in processing these claims, such a consideration might be cause for concern. Unfortunately past experience in these matters requires this Court to take into account the delays encountered by attorneys in seeking their fees. Under these circumstances, delay by the district court in its consideration of fee petitions only compounds the potential for confusion in the Social Security Administration’s handling of fee claims and forces district courts to reconsider attorneys’ petitions long after the case file has grown cold. Therefore, this Court will authorize requests for attorney’s fees conditionally, that would otherwise be reasonable, whenever it becomes clear that the claimant has prevailed, even if an award for past-due benefits has not been certified by the Secretary.

The conditional order provided for in the Court’s decision today is fully consistent with the Supreme Court’s decision last term in Heckler v. Day, — U.S. —, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984). There the Supreme Court held that a district court could not issue an injunction against the Secretary requiring her to adjudicate claims under Title II of the Social Security Act according to judicially established deadlines. The conditional order does not require the Secretary to take action prior to certification of an award. Rather, it merely settles all issues before the district court regarding fees so that when a certification of award is made, the attorney will encounter no delays in receiving his fee.

2. The District Court’s Authority to Award Fees for Representation Before the Secretary.

The question of whether a district court may award attorney’s fees for services performed before the Secretary has been a source of dispute among the circuit courts. A majority of circuits have construed § 406 to preclude a district court from awarding attorney’s fees for services performed before an administrative tribunal. See Morris v. Social Security Administration, 689 F.2d 495, 497 (4th Cir.1982); Whitt v. Califano, 601 F.2d 160, 162 (4th Cir.1979); MacDonald v. Weinberger, 512 F.2d 144, 146 (9th Cir.1975); Gardner v. Menendez, 373 F.2d 488, 490 (1st Cir. 1967). This construction mandates that an attorney for a prevailing claimant must submit separate fee petitions to the Secretary and the district court for services rendered before each body respectively (the “separate” petition rule).

The minority rule at the circuit court level, which to date has been endorsed only by the Sixth Circuit, holds that “the tribunal that ultimately upholds the claims for benefits is the only tribunal that can approve and certify payment of an attorney fee.” Webb v. Richardson, 472 F.2d 529, 536 (6th Cir.1972); accord Lewis v. Secretary of Health and Human Services, 707 F.2d 246, 247 (6th Cir.1983). This single petition rule would make either the district court or the Secretary exclusively responsible for determining the attorney’s total fee.

The separate petition rule comports more closely with the literal wording of § 406. On the other hand, the minority rule would promote the efficient consideration of fee petitions. It has been claimed that only the “single petition” construction of § 406 takes into account the 1965 and 1968 amendments to § 406. See Kemp v. Schweiker, 587 F.Supp. 778, 781-82 (W.D. Pa.1984). However, the circuit courts adhering to the separate petition rule have considered these amendments and weighed the opposing view of the Sixth Circuit. See MacDonald v. Weinberger, 512 F.2d at 146 n. 3 (9th Cir.1975) (expressly disavowing the Sixth Circuit’s position); Morris v. Social Security Administration, 689 F.2d 495, 497 (4th Cir.1982). The amendments to § 406, by themselves, provide inconclusive evidence for one construction of the section over another.

The Third Circuit has had no opportunity to express its views with respect to either the separate or single petition rule. Indeed, district courts within the Third Circuit have adhered to both rules. Compare Oroshnik v. Schweiker, 569 F.Supp. 399, 400 (D.N.J.1983) (endorsing the separate petition rule), with Kemp v. Schweiker, 587 F.Supp. 778, 780 (W.D.Pa.1984) (adhering to the single petition rule). Regardless of which rule this Court adopts, the request for attorney’s fees for services performed before the Secretary must be denied. The separate petition rule precludes the Court from awarding fees for representation other than before the district court. Even under the single petition rule, the Court is obliged to withhold any award of fees when, as in this case, the district court is not the tribunal that ultimately upholds the claimant’s right to benefits.

Because the single petition rule would also foreclose this Court from entering a conditional award of fees for representation rendered before the district court, this Court must nevertheless choose between these two rules. The Court holds that the separate petition approach is the more persuasive interpretation of § 406. In addition to the wording of the statute itself and the weight of judicial authority, the Court finds strong support for its view in the limited scope of judicial review with respect to the Secretary’s determination of attorney’s fees. In cases in which the Secretary makes a determination as to fees, the district courts lack jurisdiction to consider the reasonableness of that determination. Thomason v. Schweiker, 692 F.2d 333, 335 (4th Cir.1982); Copaken v. Secretary of HEW, 590 F.2d 729, 731 (8th Cir.1979); Chemock v. Gardner, 360 F.2d 257, 259 (3d Cir.1966); Pepe v. Schweiker, 565 F.Supp. 97, 98 (E.D.Pa.1983). The limited judicial review of the Secretary’s decision under the Social Security Act suggests a statutory intent to separate areas in which discretion is given to the Secretary from those in which a district court’s exercise of discretion is warranted.

The bizarre consequences in terms of appellate procedure that would ensue if the single petition rule was applied in conjunction with the limitations on district court’s power of judicial review over the Secretary provides further compelling evidence for the “separate petition” construction of § 406. If the district court remanded a proceeding back to the Secretary and the Secretary ultimately found for the claimant, then the Secretary’s determination of fees, under a single petition rule, including representation before the district court would not be subject to appeal. On the other hand, if the district court entered judgment for the claimant, its determination of attorney’s fees including services rendered before the Secretary could be appealed to the circuit court. Thus, in some cases the circuit court would have jurisdiction to hear appeals regarding attorney’s fees before the Secretary and in other cases it would not. The result would be entirely arbitrary. The separate petition rule leads to a more symmetrical outcome. Fee petitions for representation before the Secretary would never be appealable, while a district court’s determination of an attorney’s fee would.

For these reasons, the Court will conditionally grant that part of the Motion before it with respect to services performed before the Court so long as that fee does not exceed 25% of the past-due benefits of the claimant. The remainder of the fee petition is denied.

      . The district court in Pepe relied on two recent cases of binding authority in the Third Circuit that delimited the scope of judicial review by district courts of the Secretary’s decisions: Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (holding that the decision of the Secretary to not reopen a disability proceeding was not appealable); Penner v. Schweiker, 701 F.2d 256 (3d Cir.1983) (holding that decision of Secretary which would otherwise not be appealable could be appealed when constitutional values were implicated).

      . Cf., Heckler v. Day, — U.S. —, 104 S.Ct. 2249, 2258, 81 L.Ed.2d 88 (1984) (holding that district court’s injunction requiring the Secretary to adhere to judicially established deadlines in adjudicating claims under the Social Security Act was an unwarranted judicial intrusion in an area where the statute endowed the Secretary with discretion).


source: Caselaw Access Project

author: RAMSEY, District Judge.

license: Public Domain

text:
    Linda S. KENNEDY v. Margaret HECKLER, Secretary of Health and Human Services.
    Civ. A. No. R-82-2172.
    United States District Court, D. Maryland.
    Oct. 22, 1984.
    Leonard A. Sandler, Chestertown, Md., for plaintiff.

      . On March 9, 1983, Margaret Heckler succeeded Richard Schweiker as Secretary of Health and Human Services, and, pursuant to 42 U.S.C. § 405(g), the appropriate substitution has been made.

   MEMORANDUM

RAMSEY, District Judge.

A petition for attorney’s fees, supported by appropriate affidavit, has been filed by Leonard A. Sandler, counsel for plaintiff. In addition to setting out an affidavit form the nature of the services rendered and the amount of fees requested, plaintiff's counsel seeks to have these fees taxed against the United States pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d).

I

The Court has reviewed the petition in light of the requirements of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), and Barber v. Kimbrell’s, Inc., 577 F.2d 216 (4th Cir.1978), and under the procedure laid out in Anderson v. Morris, 658 F.2d 246 (4th Cir.1981), and makes findings on pertinent factors as follows:

1. The time and labor expended. Counsel reports, and the Court finds, that counsel spent 23 hours, 43 minutes on core legal work and two hours of travel time in this case, and that these hours have been reasonably • and efficiently employed.
5. The customary fee for like work.— Counsel seeks a rate of $50 per hour for the time he was engaged in core legal work and $20 per hour for his travel time. These rates, below the $75 per hour maximum allowed pursuant to the Equal Access to Justice Act, appear thoroughly reasonable in this case.

Based upon factors one and five, therefore, the Court concludes that a reasonable initial fee is $1,226.00.

After having established a prima facie reasonable fee, based upon factors one and five, the Court has considered the other ten factors, of Georgia Highway Express, and determined that those factors do not merit adjusting the lodestar amount. Accordingly, the Court is of the opinion that a fee of $1,226.00 is eminently reasonable and earned, and should be paid.

II

As noted, plaintiff seeks to have this fee taxed to the United States under the Equal Access to Justice Act. Secretary opposes payment of such fees because she believes her position had a reasonable basis in law and fact. (See Paper No. 16 at 6).

In so contending, the Secretary cites the legislative history of the EAJA: “The test for whether or not a government act is substantially justified is one of reasonableness. Where the government can show that its case had a reasonable basis in law and fact, no award will be made.” H.R. Rep. No. 1418, 96th Cong., 2d Sess. 10-11, reprinted in 1980 U.S.Code Cong. & Ad. News 4989. In addition, the Secretary relies on the Fourth Circuit’s decision in Guthrie v. Schweiker, 718 F.2d 104 (4th Cir.1983):

In the district court, the government’s position generally is established at the administrative level and judicial review is limited to consideration of the administrative record by cross motions for summary judgment. Therefore, the government’s position in the district court normally would be substantially justified if, as is usual, the United States Attorney does no more than rely on an arguably defensible administrative record. In such a situation, the EAJA would not require an award of attorney’s fees. Moreover, entry of summary judgment raises no presumption that the government’s position was not substantially justified.

718 F.2d at 108.

Applying these standards, it nonetheless is apparent that the Secretary’s position was not substantially justified. A review of the Fourth Circuit’s decision in this case reveals that the Secretary’s position was entirely unreasonable. 739 F.2d 168 (4th Cir.1984). Plaintiff contended that her impairment met or equalled a listed impairment, a fact that would be conclusive of disability. Specifically, she contended that she met the requirements of 20 C.F.R., Part 404, Subpart P, Appendix 1, § 12.05 C which requires, inter alia, an individual to have a I.Q. of 60-69 inclusive. The Secretary, relying on plaintiff’s WAIS full scale I.Q. score of 72, found that she did not meet the requirements of § 12.05 C. However, the Secretary’s regulations further mandated that when a single I.Q. test produced multiple scores, the lowest score was to be used in conjunction with that section. See Id. at § 12.00 B4. Plaintiff’s performance I.Q. of 65 met the threshhold requirement of § 12.05 C. Her counsel pointedly noted that at the administrative level and in this Court. Given the Secretary’s failure to apply the dictates of her own regulations, it becomes apparent that her litigation position was legally and factually indefensible. Indeed, when the Fourth Circuit applied the proper regulations, it concluded that plaintiff met the requirements of § 12.05 C and was disabled.

Accordingly, for the foregoing reasons, a separate Order shall be entered directing that the amount of $1,226.00 be paid to Attorney Leonard A. Sandler, by the United States, as his full and only fee for representing plaintiff in the District Court in this civil action.

      . 28 U.S.C. § 2412(d)(1)(A) provides:
      Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.


author: GESELL, District Judge.

text:
    George L. WHITLOCK, Plaintiff, v. Raymond J. DONOVAN and United States Department of Labor, Defendants.
    Civ. A. No. 83-3388.
    United States District Court, District of Columbia.
    Nov. 6, 1984.

      Francis R. Ridley, Jr., Thomas Earl Patton, Washington, D.C., for plaintiff.
    Daniel Bensing, Sp. Asst. U.S. Atty., Washington, D.C., for defendants.
   MEMORANDUM

GESELL, District Judge.

This case concerns an alcoholic employee who was terminated from his federal employment because his condition caused him to be frequently and unexpectedly absent from work and eventually seriously interfered with his otherwise satisfactory performance of his duties. Claiming that the Department of Labor failed to make “reasonable accommodation” to his condition before firing him, plaintiff seeks reinstatement and back pay. The Court has jurisdiction under the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16. The Court conducted a trial de novo of plaintiff’s discrimination claim, and this Memorandum constitutes the Court’s findings of fact and conclusions of law.

I. Introduction

Plaintiff was fired by the Department of Labor in May 1983, because of repeated absences after various efforts had been made to counsel him toward treatment for his alcoholism. Whitlock was a GS-6, step 8 supervisor who had had 23 years of federal service prior to his discharge. Other than alcoholic absences his work performance was not only satisfactory but often deemed superior.

There is no dispute that plaintiff is an alcoholic. He joined the Department of Labor in 1975 but indeed had been an alcoholic since the age of 10. An alcoholic has a disease. He is the victim of a handicap which becomes progressively worse unless successfully treated. Alcoholics typically deny their handicap and conceal, excuse and even lie about their drinking and the problems it causes them at home and at work. Treatment of alcoholism focuses initially on a basic need to force the alcoholic to recognize his handicap. In employment situations, both private and public, this is usually done by presenting the employee, hopefully at an early stage, with a clear choice between either accepting intervening therapy designed to break the barriers of denial and avoidance or facing the definite loss of job and status.

The nature of the intervening therapy provided varies considerably. There is peer support such as provided by Alcoholics Anonymous and many types of counseling which employ intensive outpatient therapy or a mixture of in-patient care for a period of time followed by careful monitoring on an out-patient basis. All programs require continuous counseling after the initial detoxification, and of course such counseling can only work if the patient is motivated to seek it and to continue it, having accepted that he has an alcoholism problem.

Plaintiff has now been sober for more than a year following seven months of intensive in-patient treatment at St. Elizabeth’s Hospital. He contends that the Department of Labor failed in several respects to meet its statutory obligation reasonably to accommodate to his handicap before termination. First, he contends that the Department should have more forcefully presented to him at an earlier stage than it did a clear choice between entering treatment or losing his job. Second, he contends the Department failed to follow up on the treatment he did enter when he stopped attending after a few successful months of therapy. In these two respects, he contends the Department’s intervention was “too little, too late.” Finally, he contends that when he was fired nearly a year after he stopped the recommended treatment, he was not presented with the reasonable option of taking a long leave without pay for intensive in-patient treatment or accepting disability retirement.

Before reviewing plaintiff’s federal employment experience, with particular reference to his alcohol problems, it is necessary to untangle, the variety of laws and regulations that establish a federal employer’s obligation to its alcoholic employees. That will bring into focus the basis for plaintiff’s claims.

II. Applicable Statutes and Regulations

Alcoholism is a handicapping condition for purposes of the handicap discrimination protections of the Rehabilitation Act of 1973. Both the Attorney General, 43 Op. Att’y Gen. No. 12 (1977), and the Secretary of the then Department of Health, Education and Welfare, 42 Fed. Reg. 22686 (May 4, 1977), have so concluded, and the courts are in accord. See, e.g., Tinch v. Walters, 573 F.Supp. 346, 348 (E.D.Tenn.1983); Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1228, 1231 n. 8 (7th Cir.1980); Davis v. Bucher, 451 F.Supp. 791, 796 (E.D.Pa.1978). Federal alcoholic employees who are using alcohol excessively are protected only under one section of the Act, Section 501, whereas other federally employed individuals who are handicapped by other conditions or are rehabilitated alcoholics also enjoy the protection of Section 504 of the Act.

Under Section 501 of the Act, federal agency employers such as the Department of Labor have a duty of affirmative action toward handicapped employees and applicants. Indeed, the statute was strengthened in 1978 to make clear that any handicapped federal employee had a private right of action to enforce his right to receive affirmative action. See section 505(a), 29 U.S.C. § 794a(a)(1). Members of Congress indicated in 1978 that Section 501 was intended to make the federal government a “leader” or “model employer” of the handicapped. In addition, regulations of the Equal Employment Opportunity Commission under the statute emphasize the general policy of the federal government to “become a model employer of handicapped individuals.” 29 C.F.R. § 1613.703. Thus this affirmative-action obligation is more than a requirement of non-discrimination or even-handed treatment. See Shirey v. Devine, 670 F.2d 1188, 1201 (D.C.Cir.1982); Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979). Federal agency employers are required to make “reasonable accommodation” to the limitations of a handicapped employee unless the agency can show such accommodation would impose an “undue hardship” on its operations. 29 C.F.R. § 1613.704.

Additional protection for alcoholic federal employees is found in the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970. That Act requires federal agencies to have alcoholism treatment programs for their employees. 42 U.S.C. § 290dd-1(a). The Act also provides that “[n]o person may be denied or deprived of Federal civilian employment ... solely on the ground of prior alcohol abuse or prior alcoholism.” 42 U.S.C.'§ 290dd-l(e)(l). While the Act states that “[t]his section shall not be construed to prohibit the dismissal from employment of a Federal civilian employee who cannot properly function in his employment,” 42 U.S.C. § 290dd-l(d), the legislative history indicates that dismissal was intended to apply only to employees who refused treatment altogether or who had repeatedly failed in treatment.

These statutes viewed together in the light of their legislative history show Congress’s firm intention to require federal employers to exert substantial affirmative efforts to assist alcoholic employees toward overcoming their handicap before firing them for performance deficiencies related to drinking. It is this duty, which is subsumed under the “reasonable accommodation” requirement of Section 501(b) of the Rehabilitation Act and the regulations of 29 C.F.R. § 1613.704, that plaintiff has invoked.

A precise statement of the government’s concept of its duty reasonably to accommodate an alcoholic employee cannot be found in any single regulation or personnel directive but can be ascertained from directives scattered through a number of publications of the U.S. Office of Personnel Management. These publications are not altogether consistent or clear, and some of them are advisory while others are mandatory. There is a wide variation in the alcoholism programs of various federal agencies. Some appear to be pro forma while others, such as the Government Printing Office, have extensive programs. This variation possibly reflects both uncertainty in the standards to be applied as well as increasing concern and evolving knowledge about the alcoholism problem in some agencies.

The most extensive statement of reasonable accommodation duties to alcoholic employees is found in Federal Personnel Manual System Supplement 792-2, Alcoholism and Drug Abuse Programs (1980). This provides that where a supervisor suspects alcohol is the reason for poor performance by an employee, the supervisor is directed among other things to

Conduct an interview with the employee focusing on poor work performance and inform the employee of available counseling services if poor performance is caused by any personal or health problem.
If the employee [subsequently] refuses help, and performance continues to be unsatisfactory, provide a firm choice between accepting agency assistance through counseling or professional diagnosis of his or her problem, and cooperation in treatment if indicated, or accepting consequences provided for unsatisfactory performance.

Id. at S2-2. Supervisors are instructed not to raise directly the possibility of a drug or alcohol problem with the employee except where the employee does not seem in full control of his or her faculties or where the employee seems to be involved in criminal conduct. Id. Rather, it is contemplated that supervisors will make referrals to trained counselors within the agency or on contract to the agency, where the direct confrontation with the employee about his alcoholism is expected to be made.

Personnel regulations governing handicapped employees who can no longer perform their job duties are,- of course, applicable to employees handicapped by alcoholism. In such cases, where the agency cannot reasonably accommodate an employee and at the same time keep him at work, the agency is obligated by the Federal Personnel Manual to consider

(1) A liberal grant of leave without pay when paid leave is exhausted and the disability is of a remediable nature and likely to respond to treatment and hospitalization. Many mental and emotional disorders, formerly considered completely disabling, now fall in this category in view of the dramatic medical advance made in treatment and rehabilitation of these conditions in recent years.
(2) Judicious reassignment to a position with less rigid physical requirements including job engineering when possible to utilize the remaining unimpaired assets of the handicapped employee.
(3) Encouraging the employee who cannot be salvaged but who meets the service requirement for disability retirement (five or more years of civil service employment) to file, or filing application on the individual’s behalf particularly if his or her disability is one which impairs his or her judgment and ability to make decisions.

Federal Personnel Manual 339-1-3(b) (May 16, 1979). The defendant Department of Labor’s policy is to encourage temporary disability retirement with a one-year right to be rehired as an alternative to leave without pay for those employees “expected to be absent for an extended period because of illness or injury.” DLS Subch. 4, FPM 630, Sec. 4-3d (August 1979).

When an agency suspects that deficiencies in an employee’s performance, attendance or behavior are caused by a health problem, the agency is required to take steps to confirm a connection between the deficiencies and the health problem before instituting removal. If available medical evidence is insufficient to make a final determination, the agency is required to order a fitness-for-duty examination in the form of a general physical examination, a specialized physical, or a psychiatric examination. The employee may participate in the selection of the medical examiner. A second examination may take place only if the first examiner recommends one. See Federal Personnel Manual Supplement 831-1 S10-10a(5) (1978).

The agency then must make a tentative determination “on the basis of all available evidence” whether the deficiencies “are caused by illness or injury.” Federal Personnel Manual Supplement 831-1 S1010a(7) (1980). If not, the agency may institute “adverse action procedures ... if warranted.” Id. However, if it does find the deficiencies are caused by disease or injury, it must notify the employee in writing, giving him an opportunity to reply and other rights. After certain other steps, the agency then may apply to the Office of Personnel Management to have the employee retired on disability. Id. at S10-10a(8), (9).

Until 1980, disability retirement under these procedures was not available for alcoholic employees because the statutory definition of disability excluded anyone whose disabling disease or injury was “due to vicious habits, intemperance, or willful misconduct.” 5 U.S.C. § 8331(6). This exclusion was repealed by Pub.L. 96-499, section 403(b) (1980). The statutory definition of disability, as amended by the same act, now provides

Any employee shall be considered to be disabled only if the employee i[s] found by the Office of Personnel Management to be unable, because of disease or injury, to render useful and efficient service in the employee’s position and is not qualified for reassignment____

5 U.S.C.A. § 8337(a) (1984 Supp.). See also 5 C.F.R. § 831.502(a) (conforming regulation).

To summarize, this review of the major statutory and regulatory obligations of federal employers toward their alcoholic employees establishes that when an employee’s performance deficiencies are suspected to be due to alcohol, the agency is obligated first to offer counseling to the employee. If the employee rebuffs the offer, and if the deficiency in his work is such that discipline would be warranted, the agency should offer a “firm choice” between treatment and discipline. An agency is obligated to follow through with its firm choices. Since it is recognized that relapse is predictable in treatment of alcoholics, an agency is not justified in automatically giving up on an employee who enters treatment but who subsequently relapses. In such a case, the agency may follow through with discipline short of removal. However, the agency is obligated before removing the employee from its work force to evaluate whether keeping the employee presents an undue hardship under 29 C.F.R. § 1613.704. If removal seems to be the only feasible option, the agency is obligated to conduct a formal evaluation, including a fitness-for-duty examination if necessary, to confirm whether the employee’s alcoholism disease is in fact responsible for the employee’s poor performance. If so, the agency must offer leave without pay if the employee will seek more extensive rehabilitative therapy that seems promising, and the agency must also counsel the employee regarding disability retirement.

III. Discussion

With these standards in mind, it is now appropriate to review plaintiff’s alcohol-related experience at the Department of Labor.

In 1977, plaintiff had an alcoholic seizure on the job and was taken to a hospital. After some days he returned to work. On the initiative of his then supervisor, plaintiff was referred for counseling, and he participated in an alcoholic out-patient program conducted by the District of Columbia government involving limited once-a-week contact. Following this experience plaintiff’s performance raised no problems. He earned but did not take substantial amounts of accumulated leave, and his work performance resulted in various awards and commendations. There is no indication of any further alcoholic difficulties on the job until 1980. By this time plaintiff had accumulated some 300 hours of annual leave and 240 hours of sick leave.

In 1980, when plaintiff began not to turn up for work, no discipline was imposed for absences. Following a conversation with the Department of Labor counsellor in January, 1980, he was assisted in undergoing detoxification at a local hospital. He did not follow up on the hospital’s aftercare treatment but did reenter the District of Columbia counseling program.

By 1981 plaintiff’s absences had become a serious job problem for the Department. Indeed, he was absent most of January and by August, 1981, had had hundreds of hours of unscheduled leave that year. In August 1981, his immediate supervisor, Nancy Atherholt, warned plaintiff, placed him on leave control, and recommended that he discuss his problems with the Department’s counseling officer. She was familiar with his 1977 alcoholic seizure and suspected that alcohol was the reason for his absences.

Absences again increased around Christmas of 1981. By February, 1982, plaintiff had been absent without leave 152 hours, including the entire two weeks between January 4 and January 15. In February, 1982, his suspension was formally proposed, and he was referred again to the employee counseling service, this time with a “firm choice” between discipline and treatment. Plaintiff’s supervisor, Carl Gerig, took a strong interest in his problem and escorted him to an initial counseling meeting at COPE, Inc., with which the Department of Labor had contracted for its counseling services.

The COPE counselor arranged for plaintiff to enter an intensive out-patient treatment program at the Kolmac Clinic in suburban Silver Spring, Md. Whereas other programs for persons with advanced alcoholism usually started with a month of in-patient care in a hospital, the Kolmac Clinic had had success treating such patients on an out-patient basis, with several months of intensive evening sessions several times a week, followed by a long period of after-care combined with Alcoholics Anonymous. After plaintiff was detoxified at a hospital, he entered the Kolmac program in March 1982 fully sober. At the same time he began treatment with his own private psychiatrist.

In view of his full commitment at that time to a strenuous therapy program, the proposed suspension was reduced to a reprimand. Plaintiff was advised explicitly that “further incident may result in more serious disciplinary action, possibly removal.” In June, plaintiff was released from the intensive Kolmac therapy to continue in an aftercare program, but he immediately quit and attended no aftercare sessions. Kolmac notified COPE, which tried to advise plaintiffs supervisor, Carl Gerig. However, Gerig was in the middle of being transferred to another city and could not be reached. Plaintiff had not authorized COPE to contact anyone except Gerig about his treatment. The COPE counselor also tried repeatedly to contact plaintiff to urge him to resume treatment but testified that she could not reach him even though he was at work during much of her efforts. Plaintiffs other supervisors, however, including Nancy Atherholt, found out unofficially that he had dropped out of the Kolmac program. No discipline was instituted at this time.

Shortly thereafter plaintiffs absences resumed and quickly became extensive. In September 1982, Atherholt asked plaintiff to submit medical information from his doctor because of his excessive sick leave absences since quitting Kolmac. She also advised him of her willingness to discuss his personal problems in confidence. He did not respond.

In October 1982, Atherholt ordered plaintiff to undergo a fitness-for-duty examination. Shortly after her order, Atherholt learned that plaintiff was undergoing a second in-patient detoxification, for which she placed him on annual leave for two weeks. Plaintiff was subsequently examined by his own psychiatrist. In a December 1, 1982 letter to Atherholt, the psychiatrist indicated that he had been treating plaintiff for alcohol dependence since March 1982 and said that it was his opinion that plaintiff could continue work “if sober,” noting, however, that plaintiff denied his absences were connected to drinking.

Because the psychiatrist recommended that plaintiff also undergo a general physical examination, a second fitness-for-duty examination was performed by a general practitioner. This physician’s report wholly disregarded plaintiff’s alcoholism and attributed his absences to job stress from understaffing in plaintiff’s unit. The report indicated that while absent from work plaintiff performed community service work. Atherholt testified that she disbelieved this report but that based on it and the other report she had no basis to remove plaintiff as medically unfit for duty.

In January 1983, Gerig’s new replacement, Lydia Leeds, tried to counsel plaintiff at a lunch meeting, but the subject of his alcoholism never came up, and he insisted he had only personal problems that he needed to work out on his own. At the end of January 1983, because plaintiff had accumulated 226 hours of absence without leave since August 1982, Atherholt formally reprimanded him. Both Atherholt and Leeds warned plaintiff that further absences could result in more severe discipline. They urged him to reenter treatment. Plaintiff did not return to Kolmac or any other counseling program.

In the next two months plaintiff was absent without leave another 96 hours. Atherholt formally proposed to fire him on March 17. Plaintiff proposed a reassignment and also filed for disability retirement. On May 12, 1983, Leeds upheld his discharge. She rejected reassignment and said that his disability retirement application was inappropriate since his doctor had indicated he could return to work. Following his discharge, he telephoned COPE and was advised to enter the long-term alcoholic rehabilitation program at St. Elizabeth’s. He did so, and the program proved effective. During his stay at St. Elizabeth’s, he withdrew his disability application on the advice of counsel. Plaintiff appealed his discharge to the Merit Systems Protection Board, but it was upheld.

This outline fails fully to indicate some of the difficulties encountered by the Department in dealing with plaintiff’s condition. The Department adjusted plaintiff’s hours to permit him to arrive early and leave early. At one point, it suggested possible transfer to a less stressful job, which plaintiff declined. In many ways it sought to encourage him to discuss his true difficulties but plaintiff remained secretive and evasive and apparently succeeded in misleading a doctor reporting on his fitness. Plaintiff’s supervisors even enrolled him in further training courses in 1982 to capture his interest in sustained employment. They were at all times in a general way familiar with a need to accommodate to the difficulties of an alcoholic on the job.

It is clear from this review that the Department of Labor was tolerant but not as decisive at earlier manifestations of plaintiff’s illness as personnel policies governing management of alcoholic employees indicate to be preferable if not required. The history of this case also illustrates complexities in federal service that may imperil effective employee management. Supervisors often rightly fear they will be sued if they criticize an employee. In addition, with narrow exceptions, privacy laws forbid the disclosure to employers of information on an employee’s alcoholism treatment without the employee’s permission. See 42 U.S.C. § 290ee-3; 42 C.F.R. Part 2. Functions as intimate and essential as counseling are contracted out to specialists, and within government itself counseling becomes a specialty. This specialization and diffusion of responsibility may impede dealing with alcoholic employees, particularly when considered in the light of the elaborate protections that surround carrying out any discipline upon nonprobationary federal employees.

It is plain that the Department of Labor treated George Whitlock with compassion and tolerance, and more patience than many employers would have shown. However, it is also apparent that the Department fell short of the statutory mandate for accommodating handicapped employees.

When plaintiff dropped out of the Kolmac program in June 1982, the “firm choice” requirement for dealing with alcoholic employees mandated that plaintiff be required to reenter that or another appropriate program immediately or face suspension or other serious disciplinary action. This was not done. Delays and indecision followed over the next several months, while plaintiff’s attendance deteriorated further. This was understandable, given the shift in supervisors in his unit and plaintiff’s denials of his true condition. Equitable relief would be inappropriate if this were the only misstep of the agency in the process of accommodating to plaintiff’s handicap.

However, the agency’s evaluation of whether plaintiff should be removed for being medically unfit for duty based on his alcoholism — an evaluation that began with the October 1982 order that he undergo a fitness-for-duty examination — was seriously mishandled. The regulations require an agency to evaluate all the available evidence in deciding whether a disease is responsible for an employee’s unacceptable performance. In this case, however, Atherholt made a negative finding based solely on the reports of examinations by a psychiatrist and a general practitioner. As she herself acknowledged, the latter report was wholly incredible, even bizarre. The psychiatrist’s report plainly indicated plaintiff was fit for duty only if not drinking. Atherholt knew of plaintiff’s two recent hospitalizations for drinking, his 1977 alcoholic seizure, and his temporary success at therapy in the Kolmac program. She had every reason to believe he was an alcoholic and was continuing to drink heavily. Based on the evidence available at that time to the agency, it is obvious that the agency should not have abandoned the fitness-for-duty process but should have made a tentative determination that his job deficiencies were caused by his alcoholism disease. That would have triggered the formal procedures for reasonably accommodating handicapped employees who can no longer perform their job duties, including an offer of an extended leave without pay for in-patient treatment, presumably at St. Elizabeth’s or at the Veterans Administration, where he was also eligible. See Doe v. Hampton, 566 F.2d 265, 283-84 (D.C.Cir.1977), remanding a discharge based on inadequate fitness-for-duty examination and inadequate consideration of leave without pay.

This is not to say that in every instance where an agency confronts an alcoholic employee who has failed in treatment that it must offer leave without pay or some other specific arrangement. But if there is evidence, as there is here, that such a leave, providing opportunity to enter St. Elizabeth’s or some other intensive alcoholism treatment program, might have been beneficial, the reasonable accommodation duty requires the agency to evaluate whether such a leave, or alternative arrangement, would have imposed an undue hardship on the agency. The agency made no such evaluation. Moreover, plaintiff has met his burden of showing evidence that he could have been reasonably accommodated by a leave without pay. Once an employee has shown evidence that his handicap can be accommodated, the burden of persuasion is on the agency to show that it cannot accommodate the employee. 29 C.F.R. § 1613.704; Treadwell v. Alexander, 707 F.2d 473, 478 (11th Cir.1983). The agency has failed to show undue hardship, and thus it violated its duty to this handicapped employee.

In fashioning equitable relief for violations of affirmative-action duties to handicapped employees, a court “may take into account the reasonableness of the cost of any necessary work place accommodation, and the availability of alternatives therefor or other appropriate relief in order to achieve an equitable and appropriate remedy.” 29 U.S.C. § 794a(a)(l). Accordingly, the Court believes that reinstatement with back pay, as the plaintiff requested here, would be inappropriate in light of the fact that for a number of months after his discharge he was clearly incapable of work and also in light of his subsequent outside employment following discharge from St. Elizabeth’s.

Given' the circumstances, the Court believes the most appropriate remedy is to allow the plaintiff to reapply at the Department of Labor and promptly undergo a comprehensive fitness-for-duty examination at the Department’s expense. The application for re-employment must be made within the next 30 days or plaintiff will be deemed to have waived his right to re-employment. The examination shall be conducted by a physician or physicians, acceptable to the parties, who have no prior connection with plaintiff. Examination shall include assessment of the current status of his alcoholism, his mental acuity and his physical fitness for duty. If he is now found fit for re-employment in his prior position, or in another position at an equivalent or lower grade, the Department shall offer to rehire him at that grade. If not, the Department shall allow him to seek disability retirement as of the date of his application for re-employment.

      . Plaintiffs right to trial de novo is established by 29 U.S.C. § 794a, which makes applicable to section 501 handicap discrimination cases the procedures provided by section 717 of the Civil Rights Act of 1964 for federal employees, see 42 U.S.C. §§ 2000e-16(c), 2000e-5(f). See Shirey v. Devine, 670 F.2d 1188, 1200 (D.C.Cir.1982). In addition, the Civil Service Reform Act expressly provides for trial de novo for federal employees alleging handicap discrimination, even where the Merit Systems Protection Board, as in this case, fully adjudicated the claim. See 5 U.S.C. §§ 2302, 7702(e)(3), 7703(c).

      . The Labor Department itself concluded that alcoholism was a handicap covered by the Rehabilitation Act. Plaintiff's Exhibits 36 and 37 (letter from Labor Secretary to Attorney General and news release, respectively).

      . Section 504 provides that
      No otherwise qualified handicapped individual, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service ____
      As amended in 1978, section 706(7) generally defines the term "handicapped individual” and specifies that
      For purposes of sections 793 [section 503] and 794 [section 504] of this title as such sections relate to employment, such term does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.
      Section 706(7)(B). The legislative history indicates that this 1978 amendment was meant to "exclude alcoholics and drug abusers in need of rehabilitation from the definition of 'handicapped individual’ ” for purposes of employment discrimination. H.R.Rep. 1149, 95th Cong., 2d Sess. 22-23, reprinted in 1978 U.S. Code Cong. & Ad.News 7312, 7333-34. There is no question here that the plaintiff was currently using alcohol and was in need of rehabilitation at the time of the incidents giving rise to this suit. Therefore he is not protected by section 504.

      . Section 501(b) provides in pertinent part:
      Each department, agency, and instrumentality ... in the executive branch shall ... submit to the Civil Service Commission ... an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals in such department, agency, or instrumentality. Such plan shall include a description of the extent to which and methods whereby the special needs of handicapped employees are being met____
      29 U.S.C. § 791(b).

      . That section provides that
      The remedies, procedures and rights set forth in section 717 of the Civil Rights Act of 1964 ... including the application of sections 706(f) through 706(k) ... shall be available, with respect to any complaint under section 791 of this title, to any employee ... aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint. In fashioning an equitable or affirmative action remedy under such section, a court may take into account the reasonableness of the cost of any necessary work place accommodation, and the availability of alternatives therefor or other appropriate relief in order to achieve an equitable and appropriate remedy.
      29 U.S.C. § 794a(a)(l).

      . See comments of Senators Cranston and Williams, quoted in Prewitt v. United States Postal Service, 662 F.2d 292, 301-02 (5th Cir.1981).

      . The text of that regulation is set out in full here:
      (a) An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program.
      (b) Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions.
      (c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of the agency in question, factors to be considered include: (1) The overall size of the agency’s program with respect to the number of employees, number and type of facilities and size of budget; (2) the type of agency operation, including the composition and structure of the agency’s work force; and (3) the nature and the cost of the accommodation.
      29 C.F.R. § 1613.704 (1984).

      . The legislative history of the Act states that: No federal employee should be discriminated against with regard to any facet of his employment because he has an alcohol problem. The committee expects that the alcoholic employee, like any other employee suffering from a disease, will now be provided with an opportunity for treatment instead of being summarily discharged. Government employees with alcohol problems should be dismissed only if they have refused to accept adequate and appropriate treatment offered to them, and have subsequently failed to function properly in their positions. Employees accepting such treatment, but still having difficulty in meeting their responsibilities, should be offered the option of going on sick leave at times of crisis. An employee who has accepted treatment should be dismissed for medical reasons only when he has been granted sick leave, treatment has repeatedly failed, and he is clearly not capable of meeting the demands of his job. S.Rep. No. 1069, 91st Cong., 2d Sess. 20 (1970). In regard to the specific provision of 42 U.S.C. § 290dd-1(d) allowing for the termination of alcoholic employees, the Senate report indicates that "[t]his section will not prohibit the dismissal of a Federal civilian employee who refuses to accept appropriate treatment offered to him and subsequently d¿es not function properly in his employment.” Id. at 28.

      . See Doe v. Hampton, 566 F.2d 265, 281 (D.C.Cir.1977), indicating the need where considering the application of the Federal Personnel Manual to evaluate whether any given statement therein is mandatory or merely precatory.

      . The context indicates that the statements quoted below are in the nature of mandatory guidelines, albeit with room for managerial discretion, rather than purely hortatory or precatory.

      . These guidelines further provide that
      In practice, the alcoholic or drug abusefr] should be dealt with little differently from other problem employees. The supervisor identifies the aspects of job performance that are not satisfactory, consults with the medical or counseling staff, or both, about those cases that appear to be developing a trend, discusses aspects of below-standard performance with the employee and advises him or her of availability of counseling assistance if the cause of poor performance stems from any personal problem. If the employee refuses to seek counseling, or if there is no improvement or inadequate improvement in performance, or both, disciplinary actions should be taken, as warranted, solely on the basis of unsatisfactory job performance.
      In relating the alcoholism and drug abuse program to disciplinary policies and practices, it is most important that the program be carried out as a nondisciplinary procedure aimed at rehabilitation of persons who suffer from a health problem. There needs to be a clear understanding that shielding problem employees by tolerating poor performance clearly contributes to the progression of the illness by delaying entry into a rehabilitative program. However, failure on the part of the employee to accept the assistance offered through the program or to otherwise correct performance should be dealt with through disciplinary procedures.

        Id. at S5-1. The Manager’s Handbook issued by the U.S. Office of Personnel Management (Spring 1981 edition; PL Ex. 33), which guides federal managers on the requirements of government personnel management, is to the same general effect.

      . To similar effect, the Office of Personnel Management also has advised federal agencies that they "have the authority to adopt flexible leave policies that will accommodate handicapped employees,” including administrative leave and leave without pay, such as where the employee needs to undertake an extensive rehabilitative program. Handbook of Reasonable Accom[m]odation (March 1980) at 9 (Pl. Ex. 31). Neither the manual nor the handbook speak in terms of "shall” or "must,” because the "reasonable accommodation” mandate requires agencies only to consider such alternatives and to evaluate whether they would impose an “undue hardship” on the agency under the regulations of 29 C.F.R. § 1613.704(c). But it is clear an agency may not ignore the alternatives spelled out in the Federal Personnel Manual and has the burden of justifying its decisions not to accommodate where the employee has produced evidence that accommodation was feasible.

      . In a supplement to the Federal Personnel Manual based on the 1980 statutory changes, the Office of Personnel Management stated that 5 C.F.R. § 831.502 "sets out the conditions that must be met by an employee to be eligible for disability retirement.” FPM Letter 831-64, Attachment 2 (April 3, 1981). That section contains no qualifiers regarding an alcoholic employee’s eligibility for disability. FPM Letter 751-2 (Feb. 4, 1983) also suggests no special restrictions on an alcoholic employee’s eligibility (attachment at 3, 4). However, the repealed statutory definition of disability discussed above disqualifying alcoholics still appears in a section of the Code of Federal Regulations dealing with disability retirement procedures on the application of an agency. See 5 C.F.R. § 831.-1203(c)(1). That section has not been amended since the repeal in December 1980. The government also points to an unofficial memorandum of the Interagency Advisory Group of the Office of Personnel Management (Feb. 3, 1983, at 4). That document states that disability retirement would be available for a medical condition caused by alcoholism, e.g., liver disease, but not for alcoholism itself. The Court can find no statutory or regulatory basis for this distinction. However, it is apparent that when it fired Mr. Whitlock, the Department of Labor was under the impression — understandably, given the lack of clarity from the Office of Personnel Management — that, as the Department advised Mr. Whitlock a month after his discharge, "alcohol dependence in itself is generally not a basis for approval of disability retirement.” PI. Ex. 26. Even if this is or was the policy of the Office of Personnel Management, the Court believes it conflicts with the clear Congressional intent to treat alcoholism as a disease or handicapping condition like any other.

      . Expert testimony at trial indicated that an alcoholic seizure occurs only after many years of heavy drinking and is an indisputable sign of advanced end-stage alcoholism.

      . Gerig was the supervisor immediately above Ms. Atherholt in the hierarchy of the Department’s Office of Solicitor, where Whitlock worked.

      . In July and August plaintiff took a total of 108 hours of sick and annual leave and 32 hours of AWOL. The AWOL time did not begin until late August.

      . At that point, plaintiff's AWOL time since January 1982 totaled nearly 12 weeks.

      . In the decision, which became final on October 17, 1983, the Board found that the Department had adequately accommodated the plaintiff by its several offers of rehabilitative assistance. The Board did not specifically address the reasonableness of the accommodation at the time of discharge.

      . In this case, Whitlock had given disclosure permission only as to Gerig. However, his dropout from treatment apparently became common knowledge at his office soon thereafter.

      . At trial there was testimony that the agency was under unusually tight budget constraints and other problems at the time of plaintiffs extensive absences, which made his deficiencies all the more problematic for his office. However, there was no evidence presented that granting him a leave without pay would have imposed an undue hardship on the agency.

      . A non-physician specialist such as a psychologist may be appropriate for certain aspects of the examination if the parties so agree.


author: RAYMOND J. BRODERICK, District Judge.

text:
    UNITED STATES of America v. James WILSON.
    Crim. No. 84-333-03.
    United States District Court, E.D. Pennsylvania.
    Nov. 8, 1984.

      Edward S.G. Dennis, Jr., U.S. Atty., Karl K. Lunkenheimer, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.
    Andrew G. Gay, Gay & Chacker, Philadelphia, Pa., for defendant.
   MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

A jury has found the defendant, James Wilson, guilty on Counts One and Two of Indictment No. 83-333-03, charging him with conspiracy to distribute methamphetamine, in violation of Title 21 U.S.C. § 846, and of aiding and abetting the distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a). The jury also found Wilson’s co-defendant, Victor Bermes, guilty of the same offenses. Prior to trial George Mullen, the third defendant named in the Indictment, entered a plea of guilty to Counts One, Two, and Three, which charged him with conspiracy to distribute methamphetamine, distributing methamphetamine, and using a communications facility to facilitate the distribution of methamphetamine in violation of 21 U.S.C. § 843(b).

Defendant Wilson has moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or, alternatively, for a new trial pursuant to Rule 33 on the ground that the evidence produced at trial was insufficient to support a guilty verdict. Wilson also contends (1) that the Court denied him his right to confrontation under the Sixth Amendment to the Constitution by admitting into evidence hearsay statements of George Mullen, and (2) that a reference by the prosecutor to “Angelo Bruno” in his rebuttal summation was unduly prejudicial and deprived Wilson of a fair trial. For the reasons that follow, Wilson’s motion for a judgment of acquittal, or in the alternative for a new trial, will be denied.

On a motion for judgment of acquittal, the Court is “required to view the evidence in the light most favorable to the prosecution and to draw all reasonable inferences therefrom in the prosecution’s favor.” United States v. Ashfield, 735 F.2d 101, 106 (3d Cir.1984), citing Glosser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Viewing the evidence in this light, the trial court is obliged to uphold the verdict unless no rational jury could conclude beyond a reasonable doubt that the government has proved all the elements of the offense charged. Id.; see also Burks v. United States, 437 U.S. 1, 16-17, 98 S.Ct. 2141, 2149-2150, 57 L.Ed.2d 1 (1978); United States v. Doan, 710 F.2d 124, 126-27 (3d Cir.1983). On the other hand, a motion for a new trial on the ground that the verdict is against the weight of the evidence is directed to the sound discretion of the trial court, which may weigh the evidence but may set aside a verdict and grant a new trial only if it determines that the verdict constitutes a miscarriage of justice. United States v. Phifer, 400 F.Supp. 719, 723 (E.D.Pa.1975), aff’d 532 F.2d 748 (3d Cir. 1976). The Court must also grant a new trial if there is a reasonable probability that trial error could have had a substantial influence on the jury’s decision. See Government of Virgin Islands v. Bedford, 671 F.2d 758, 762 (3d Cir.1982); United States v. Mastro, 570 F.Supp. 1388, 1390 (E.D.Pa.1983). In the present case, the evidence was amply, sufficient to support the jury’s verdict under both the Rule 29 standard and the Rule 33 standard, and the defendant's legal arguments are without merit.

Sufficiency of the Evidence

The evidence showed that in July of 1984 Mullen negotiated to sell a large quantity of methamphetamine to two individuals who turned out to be undercover law enforcement officers, Detective John D’Amico of the Philadelphia Police Department and Special Agent Stephen Hopson of the Drug Enforcement Agency. On July 31, 1984 Mullen met with D’Amico and told him that his supplier of methamphetamine was having some problems in connection with the sale to D’Amico. Mullen identified his supplier to D’Amico as his “cousin Jim”. In D’Amico’s presence Mullen called “Jim” from a pay telephone and discussed the sale of the methamphetamine.' D’Amico at that time also spoke on the telephone to Jim, and negotiated some details of the sale. Mullen previously had told D’Amico and Hopson that Jim’s partner, named “Vic,” was a Sergeant-at-Arms of the Warlocks Motorcycle Club.

On August 1, 1984, Mullen delivered approximately ten pounds of methamphetamine to D’Amico and Hopson. The agreed-upon purchase price was $85,000. Mullen told D’Amico that Mullen had already .given Vic $15,000 in advance. Mullen was then arrested and agreed to cooperate with the agents in the arrest of “Jim” and “Vic”. That evening D’Amico and Hopson tape-recorded a telephone call between D’Amico, on the one end, and Vic and Jim on the other end. D’Amico complained to Vic and Jim about the methamphetamine which Mullen had delivered. Jim and Vic spoke extensively about the methamphetamine with D’Amico, and eventually, after several phone conversations, Jim and Vic agreed that Mullen should bring them five pounds of the methamphetamine for further processing. After the final conversation D’Amico and Hopson, accompanied by Mullen (and several government agents), went to defendant Wilson's home and arrested Wilson and Bermes.

At trial, defendants Wilson and Bermes both elected not to testify. The tape-recorded conversations between D’Amico, “Vic”, and “Jim” were played for the jury. Defendants’ counsel did not dispute the fact that a conspiracy to distribute methamphetamine existed, and that Mullen and the two individuals recorded in the phone conversations with D’Amico were members of the conspiracy. Defendant Wilson contends, however, that the government failed to prove beyond a reasonable doubt that “Jim” and “Vic”, the voices on the tapes, were the same individuals as the defendants, James Wilson and Victor Bermes.

Officer D’Amico spoke extensively with “Jim” and “Vic” on the telephone. He also heard defendants Wilson and Bermes speak at the time of and subsequent to their arrest. He also had listened to the taped conversation between himself, “Jim”, and “Vic” on several occasions. Agent Hopson heard Wilson and Bermes speak at the time of their arrest and during post-arrest processing. Hopson also had listened to the taped conversations between D’Amico, “Jim”, and “Vic” on a number of occasions. Both D’Amico and Hopson positively and unequivocally identified the voices of “Jim” and “Vic” on the tapes as the voices of James Wilson and Victor Bermes. This Court instructed the jury that it is permissible to base identification of voices heard in telephone conversations on relatively few conversations between a government agent and the speaker, and it is not required that such exchanges occur prior to interception; they may occur at or after arrest. United States v. Vento, 533 F.2d 838, 865 (3d Cir.1976). The Vento court went on to note

[i]n fact, it is not necessary to present direct evidence to identify the intercepted voice. Circumstantial evidence has often been employed to identify callers on tapped lines. Accordingly, we believe that the questions of weight and sufficiency of the evidence relating to the identification of [the defendant’s] voice were matters for the jury.

Id. (footnotes omitted).

In addition to the voice identification by the government witnesses, there was other evidence identifying Wilson and Bermes as the same individuals whose voices were on the tapes. Mullen told D’Amico that “Jim” was his cousin, and that “Jim’s” partner “Vic” was a member of the Warlocks. Several members of Wilson’s family, called by Wilson as character witnesses, acknowledged that Mullen and Wilson were cousins. At the time of his arrest Bermes possessed a card which carried the name “Vic” and identified him as a member of the Warlocks Motorcycle Club. In addition, several persons called as character witnesses on Bermes’ behalf identified him as a member of the Warlocks. Thus, the identification evidence against Bermes and Wilson was overwhelming, and the jury rationally could have concluded that the government had established their guilt of the crimes charged in Counts One and Two beyond a reasonable doubt.

Admission of Co-Conspirator Hearsay Statements

Wilson also contends that the Court erred in admitting the hearsay statements made by Mullen to D’Amico. Wilson claims that the admission of these statements violated his rights under the Confrontation Clause of the Sixth Amendment.

Before turning to Wilson’s Confrontation Clause contention, the Court notes that Mullen’s statements to D’Amico clearly were admissible against Wilson pursuant to the co-conspirator “exception” to the hearsay rule set forth in Fed.R.Evid. 801(d)(2)(E). That Rule provides that statements offered against a party that are made “by a co-conspirator of a party during the course and in furtherance of the conspiracy” are not hearsay and are admissible. In order to support the admission of out-of-court statements under Rule 801(d)(2)(E), the government must establish by a fair preponderance of independent evidence (1) that a conspiracy existed and that the declarant and the defendant were connected to it; (2) that the statement was made in furtherance of the conspiracy; and (3) that the statement was made during the course of the conspiracy. United States v. Ammar, 714 F.2d 238, 245 (3d Cir.), cert. denied — U.S. —, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983). See also United States v. Gibbs, 739 F.2d 838, 842-43 (3d Cir.1984) (en banc); United States v. Continental Group, Inc., 603 F.2d 444, 457 (3d Cir.1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1980); United States v. Trotter, 529 F.2d 806, 811-13 (3d Cir.1976). When the defendants objected to the admission of Mullen’s statements at trial, this Court, based upon the government’s offer of proof, admitted the statements subject to the subsequent introduction of the requisite independent evidence. See United States v. Ammar, 714 F.2d at 246-47. The taped conversations of Bermes and Wilson, and the officers’ corroborating voice identifications, constituted the requisite independent evidence of their participation in the conspiracy, and this Court made a finding on the record outside the jury’s presence that the government had established by a preponderance of independent evidence (1) that the conspiracy existed; (2) that Mullen, Bermes, and Wilson were members of that conspiracy; and (3) that Mullen’s statements made to the agents prior to his arrest were made during the course of and in furtherance of the conspiracy.

Wilson also contends that the admission of Mullen’s hearsay statements violated his Sixth Amendment guarantee that “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” In Ohio v. Roberts, 448 U.S. 56,100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court held that

the Confrontation Clause restricts the range of admissible hearsay by imposing a two-pronged requirement: first, the government must normally show that the defendant is unavailable and the hearsay statement is thus necessary; and second, the statement must bear sufficient “indicia of reliability” to demonstrate its trustworthiness.

United States v. Ammar, 714 F.2d at 255, citing Ohio v. Roberts, 448 U.S. at 65-66, 100 S.Ct. at 2538-39. See United States v. Gibbs, 739 F.2d at 846 n. 21.

In United States v. Gibbs, the trial court admitted hearsay statements of a co-conspirator who had pleaded guilty, was awaiting sentencing, and did not testify at trial. Because the defendant did not properly preserve his Sixth Amendment argument for appeal the Gibbs court did not explicitly decide whether unavailability must be demonstrated by the government to satisfy the Confrontation Clause where a co-conspirator hearsay statement is sought to be admitted. 739 F.2d at 847. However, the court stated that if the issue of unavailability had been raised at trial

it would have been a relatively simple matter for the government to address that question and produce proofs as to the [the declarant’s] availability or unavailability. Presumably the government could have called [the declarant] and if [the declarant] asserted the Fifth Amendment right against self-incrimination, he then would have been deemed unavailable.

739 F.2d at 848.

In the present case the government called Mullen to testify. Mullen, in response to questions posed outside the jury’s presence regarding his involvement in the methamphetamine transaction and his sources of methamphetamine, invoked his Fifth Amendment privilege against self-incrimination. Although Wilson does not contest the validity of Mullen’s Fifth Amendment claim, this Court determined that Mullen did have a valid Fifth Amendment privilege for several reasons. First, as noted above, Mullen was awaiting sentencing before this Court. It is clear that the Fifth Amendment prevents the government from compelling a defendant to testify where his testimony could be used to enhance his punishment. Estelle v. Smith, 451 U.S. 454, 462-64, 101 S.Ct. 1866, 1872-73, 68 L.Ed.2d 359 (1981). Mullen may have feared that his testimony concerning his involvement in the drug transaction at issue or other related transactions would adversely influence this Court’s consideration of his sentence. A defendant who has pleaded guilty but who is awaiting sentencing may invoke the Fifth Amendment privilege against self-incrimination in order to prevent the possible enhancement of his sentence. See Estelle v. Smith, 451 U.S. at 462-64, 101 S.Ct. at 1872-73; United States v. Gibbs, 739 F.2d at 848-49, 853; United States v. Zirpolo, 704 F.2d 23, 25 n. 2 (1st Cir.1983); Jones v. Cardwell, 686 F.2d 754, 756 (9th Cir.1982); United States v. Lowell, 649 F.2d 950, 955 (3d Cir.1981); United States v. Trejo-Zambrano, 582 F.2d 460, 464 (9th Cir.), cert. denied 439 U.S. 1005, 99 S.Ct. 618, 58 L.Ed.2d 682 (1978); United States v. Cubberly, Cr. No. 83-179-02, slip op. at 3 (E.D.Pa. September 23, 1983), aff'd mem. 735 F.2d 1351 (3d Cir.1984).

In addition to preventing his testimony from being used against him at sentencing, the Court believes that Mullen legitimately might have feared that his testimony with respect to the drug transaction in this case could lead to evidence incriminating him in other drug transactions. Since Mullen’s testimony might have subjected him to future prosecution arising from the transaction at issue or from other related drug transactions, his Fifth Amendment privilege was valid. United States v. Lowell, 649 F.2d at 961 n. 20; United States v. Yurasovitch, 580 F.2d 1212, 1218 (3d Cir. 1978). Since the Fifth Amendment privilege may be invoked by a defendant in any proceeding “where the answers might incriminate him in future criminal proceedings,” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973), and given “the extraordinary degree to which [the privilege] protects witnesses from even the weakest threat of incrimination”, United States v. Lowell, 649 F.2d at 963, it is clear that Mullen’s invocation of the privilege was valid, and that therefore he was “unavailable” for purposes of the Confrontation Clause.

Finally, although the defendants did not contest the reliability of Mullen’s hearsay statements, it is clear that those statements satisfied the indicia of reliability required by the Confrontation Clause. See United States v. Ammar, 714 F.2d at 255—57. The defendant’s contention that he was denied his rights under the Confrontation Clause is without merit.

Prosecutorial Misconduct

Wilson also contends that the prosecutor’s reference to “Angelo Bruno” in his rebuttal summation was unduly prejudicial and denied him a fair trial because by that reference the prosecutor “likened” the defendant’s activities to “organized crime.” This contention is without merit. In his closing argument Wilson’s counsel argued to the jury that Wilson could not have been involved in this large quantity drug transaction because, inter alia, he lived in a “small rowhouse.” Counsel referred to the size of Wilson’s house seven times in his closing argument. In response to this argument the prosecutor in his rebuttal stated “Angelo Bruno, the reputed head of the Mafia, lived in a rowhouse in Philadelphia for decades”. (Tr., October 5, 1984, at 18). The prosecutor referred to Bruno’s house only to rebut Wilson’s argument that people involved in large drug transactions do not live in rowhouses. The prosecutor made no attempt to link Wilson with “organized crime” as contended by the defendant. The prosecutor’s isolated remark, viewed “in the context of the entire trial”, was not “sufficiently prejudicial to violate defendant’s due process rights”. United States v. Scarfo, 685 F.2d 842, 849 (3d Cir.1982). See also United States v. Di-Pasquale, 740 F.2d 1282, 1295-96 (3d Cir.1984).

Although the Court has not discussed herein all of the contentions of alleged error raised by the defendant, the Court has considered each and every allegation of error and has determined that none of them, singly or collectively, is of sufficient substance to merit any further discussion as a basis for granting the defendant’s motion for a new trial.

For all of the reasons set forth above the .Court has determined that defendant Wilson’s motion for a judgment of acquittal, or in the alternative for a new trial, will be denied.