author: DONALD J. PORTER, Chief Judge.

text:
    SOUTH DAKOTA BOARD OF REGENTS, Plaintiff, v. H. Ray HOOPS, Defendant.
    Civ. No. 85-3042.
    United States District Court, D. South Dakota, C.D.
    Jan. 14, 1986.

      Ronald W. Banks, Banks & Johnson, Rapid City, S.D., for plaintiff.
    Michael J. Hickey, Rapid City, S.D., for defendant.
   MEMORANDUM OPINION

DONALD J. PORTER, Chief Judge.

Plaintiff, South Dakota Board of Regents, commenced a declaratory judgment action in state court seeking resolution of a controversy over an employment contract with defendant, H. Ray Hoops, former President of South Dakota State University. Pursuant to 28 U.S.C. §§ 1332 and 1441, defendant removed this action to the Central Division of the District of South Dakota. He has counterclaimed for loss of earnings, damage to reputation and emotional anxiety resulting from plaintiff’s alleged violations of his property and contract rights under the United States Constitution and civil rights under 42 U.S.C. § 1983. Plaintiff has moved for remand of this action back to state court based on lack of diversity jurisdiction and a claim of immunity under the eleventh amendment.

I.

A district court is required to examine petitions for removal and to remand to state court any case removed improvidently and without jurisdiction. 28 U.S.C. § 1447(c). In evaluating removal jurisdiction, a federal court must have original jurisdiction in the first instance. Sarnelli v. Tickle, 556 F.Supp. 557, 559 (E.D.N.Y. 1983). It is a well settled rule that in the absence of a specific statutory exception, a federal court may only exercise removal jurisdiction over a case if it would have had jurisdiction over the case as originally filed by the plaintiff. Betar v. DeHavilland Aircraft of Canada, Ltd., 603 F.2d 30, 36 (7th Cir.1979), cert. denied, 444 U.S. 1098, 100 S.Ct. 1064, 62 L.Ed.2d 785 (1980). Thus, any counterclaims raised by defendant will not be considered in examining whether removal was proper.

In its complaint, the South Dakota Board of Regents seeks a declaration of rights under a memorandum agreement made with defendant. No federal question appears on the face of the complaint. Removal will not be granted on the probability that a federal question will arise in subsequent proceedings. See Northwest Central Pipeline Corp. v. Mesa Petroleum Co., 576 F.Supp. 1495, 1498-99 (D.Del. 1983). Therefore, this court may retain jurisdiction only if there is diversity of citizenship between the parties.

Defendant alleges that he is a “citizen” of North Dakota and plaintiff is a "citizen” of South Dakota. Since the South Dakota Board of Regents is a state agency, it becomes important to determine whether the State or the Board is the real party in interest. A state is not considered a “citizen” for purposes of diversity jurisdiction under 28 U.S.C. § 1332. Moor v. County of Alameda, 411 U.S. 693, 717, 93 S.Ct. 1785, 1799, 36 L.Ed.2d 596 (1973); State Highway Comm’n. v. Kansas City Bridge Co., 81 F.2d 689, 691 (8th Cir.), cert. denied, 298 U.S. 661, 56 S.Ct. 682, 80 L.Ed. 1386 (1936). If an agency performing a government function is independent from the state, separate and distinct, a district court has jurisdiction to proceed on the merits.

In determining whether a state agency is an “alter ego” of the state, the entity and,its characteristics must be examined to determine whether the state is the real party in interest. In Tradigrain, Inc. v. Mississippi State Port Authority, 701 F.2d 1131, 1132 (5th Cir.1983), the Fifth Circuit has suggested the following factors be considered in evaluating the independence of an agency:

1) The right of the agency to hold and use property;
2) The authority to sue and be sued in its corporate name;
3) The extent of independent management authority;
4) The treatment of the agency by the state’s courts;
5) Whether the state is responsible for the agency’s debt;
6) The agency's concern with statewide, as opposed to local problems; and
7) The degree of financial autonomy of the agency.

In the present case, the Board is a corporate body appointed by the Governor and confirmed by the Senate, and responsible for the control of state supported educational institutions. S.D. Const, art. XIV, § 3. It is authorized to employ and dismiss officers and employees of such institutions, and is given the power to sue and be sued and to hold and manage any property belonging to educational institutions under its control. SDCL §§ 13-49-14, 13-49-11 (1982). The Board is authorized to bring suit in “any proper court in its own name to enforce any contract made by it” and “[a]ny money collected on any judgment ... shall be paid into the treasury for the benefit of the educational institutions____” SDCL § 13-49-18 (1982).

The defendant contends the Board is not an alter ego of the state since it is a corporate body with the power to sue and be sued, to contract, and to hold, use and control the property which has been entrusted to it by statute. While the Board is clearly granted several powers of an independent agency, there are other factors which balance against reaching the conclusion that the Board is a citizen for purposes of diversity jurisdiction. First, since members of the Board of Regents are appointed by the Governor and confirmed by the Senate, the State retains a significant measure of control. The Board “is not a fourth branch of government independent of legislative policies.” South Dakota Bd. of Regents v. Meierhenry, 351 N.W.2d 450, 451 (S.D.1984). See South Dakota Board of Regents v. Meister, 309 N.W.2d 121, 123 (S.D.1981) (authority of Board stems from the executive branch of government). Secondly, the Board is charged with the control of all state-supported educational institutions, and is thus absorbed in traditional state public welfare concerns and not acting in a private or proprietary capacity. See Morrison-Knudsen Co. v. Massachusetts Bay Transp. Authority, 573 F.Supp. 698, 703-04 (D.Idaho 1983). Although the Board is granted power to supervise and manage state institutional property, it is unclear whether the state has transferred ownership rights to the Board. Lastly, there is nothing to suggest any financial autonomy on the part of the Board of Regents. “[A] crucial question in determining whether the suit should be regarded as one against the state is whether the named defendant has such independent status that a judgment against the defendant would not impact the state treasury.” Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir.1981). In the present case, any declaration of rights under the employment agreement between plaintiff and defendant might impact the state treasury by requiring the payment of funds. SDCL § 21-32-16 (1985 Supp.) provides for the waiver of immunity to the extent of insurance coverage. Even assuming, however, a policy was obtained and the proceeds were available to cover liabilities of this sort, there is no indication that the insurance would fully cover such liabilities and secure financial independence of the Board from the State. While SDCL § 13-49-18 (1982) suggests that any judgments obtained shall be paid to the treasury, no special funds appear to be reserved for the payment of liabilities resulting from such suits. The South Dakota Supreme Court has held that the Board of Regents’ control “does not include the power of the purse.” Kanaly v. State, 368 N.W.2d 819, 825 (S.D.1985). The Board’s lack of financial autonomy is demonstrated by the requirement that all moneys arising from any educational institution under its control be received by the state treasurer. SDCL § 13-53-15 (1985 Supp.). Further, the Board’s authorization to make expenditures for building and maintaining educational institutions from the Educational Facilities Fund in the state treasury also serves to suggest its lack of self-support.

In Laje v. R.E. Thomason General Hospital, 665 F.2d 724, 727 (5th Cir.1982), the Fifth Circuit found “most telling” in determining whether a hospital district would be considered independent of the state a Texas Constitution provision stating that a hospital district “shall never become a charge against the State of Texas.” In the present case, however, there is no comparable disclaimer of liability by the state. The South Dakota Board of Regents is given the authority to issue bonds for the purpose of developing facilities at state institutions, SDCL § 13-51A-4 (1982). The statutes provide that the bonds are prohibited from becoming an obligation of the state of South Dakota, SDCL § 13-51A-23 and § 13-51A-24 (1982). Although this disclaimer serves to shield the state from liability on bonds issued by the Board, there is no indication it was intended to secure the state’s financial independence from the Board’s general debts and obligations.

II.

Independent of a finding of lack of diversity jurisdiction, this court would find preclusion of the present action in the federal court by the eleventh amendment. Under the eleventh amendment, “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974); Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 280, 93 S.Ct. 1614, 1615, 36 L.Ed.2d 251 (1973).

, As in analysis of diversity jurisdiction, the central inquiry under the eleventh amendment is whether the state agency is an alter ego of the state or is functionally independent of the state. Tradigrain, Inc. v. Mississippi State Port Authority, 701 F.2d at 1132; Ronwin v. Shapiro, 657 F.2d at 1073. The Board’s responsibility over the essential non-private realm of public education as well as the Board’s lack of financial and structural independence from the state dictates a finding that the state is the substantial party in interest. There is no indication that a damage award could be paid through the Board’s revenue bonds which are earmarked for the improvement of state institutions. See United Carolina Bank v. Board of Regents, 665 F.2d 553, 559-60 (5th Cir.1982).

Defendant would argue, nevertheless, that even if the Board of Regents is part of the state, South Dakota has waived its eleventh amendment immunity by virtue of SDCL § 13-49-11 (1982). That statute confers upon the Board of Regents the “power to sue and be sued.” The Supreme. Court has indicated, however, that lan- l guage conferring upon a public instrumen- ¡ tality the power to “sue and be sued” does not ordinarily operate to waive the defense of the eleventh amendment as such a waiver “in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal, courts.” Petty v. Tennessee-Missouri Bridge Comm’n., 395 U.S. 275, 276-77, 79 S.Ct. 785, 787, 3 L.Ed.2d 804 (1959). “A State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984) (emphasis in original). Accordingly, the Court indicated it will find " an eleventh amendment waiver “only where stated ‘by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’ ” Edelman v. Jordan, 415 U.S. at 673, 94 S.Ct. at 1361 (citing Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909)).

An examination of state decisional law fails to suggest any intent of the state to confer consent to suit in federal court. On the contrary, the South Dakota Supreme Court has indicated that the doctrine of sovereign immunity provides for the state’s immunity from suit in state court “unless the legislature has consented to the particular suit alleged.” Kruger v. Wilson, 325 N.W.2d 851, 852 (S.D.1982). In construing the significance of SDCL § 13-49-11, which grants the Board the power to “sue and be sued”, the South Dakota Supreme Court declared that this clause “does not, in the absence of statutory authority expressly waiving sovereign immunity create a cause of action in tort against the Board.” Kringen v. Shea, 333 N.W.2d 445, 446 (S.D.1983). Although SDCL § 21-32-16 (1985 Supp.) confers a waiver of “the common law doctrine of sovereign immunity” to the extent of insurance coverage, this court declines to infer such a waiver in federal court since the concepts of sovereign immunity and the eleventh amendment are not synonomous. “[A] State’s waiver of sovereign immunity in its own courts is not a waiver of Eleventh Amendment immunity in the federal courts.” Pennhurst, 465 U.S. at 99 n. 9, 104 S.Ct. at 907 n. 9. Since there is no clear expression of consent as required to support a finding of waiver of eleventh amendment immunity, no such waiver will be implied.

III.

The defendant contends, nevertheless, that the Board has waived any eleventh amendment immunity it might otherwise enjoy by instituting the present declaratory judgment action in state court against a nonresident defendant. Because FRCP 13(a) and SDCL § 15-6-13(a) (1984) necessitate the raising of any claims arising out of the same transaction or occurrence as the claim of the opposing party, defendant alleges the Board has consented to all counterclaims. Even if this Court would otherwise have jurisdiction over defendant’s federal claims, the authorizing statute of the Federal Rules of Civil Procedure specifies the rules “shall not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072 (1982). This Court declines to find that a rule promulgated pursuant to this statute was intended to abridge the Board’s constitutional right to immunity. See Chemehuevi Indian Tribe v. California State Bd. of Equalization, 757 F.2d 1047, 1053 (9th Cir.1985).

Accordingly, this court finds that the South Dakota Board of Regents is a dependent arm of the state and is therefore immune to suit under the eleventh amendment and not a “citizen” for purposes of establishing diversity jurisdiction. Both a lack of jurisdiction as well as a lack of federal concerns on the face of the complaint indicate that this action was improvidently removed from the South Dakota courts. Any federal rights raised by defendant by way of counterclaim may be vindicated in the state courts which have been recognized as co-equal guardians of constitutional rights. Plaintiffs motion to remand is -therefore granted and this case is dismissed for lack of subject matter jurisdiction.

APPENDIX OF SOUTH DAKOTA STATUTES

STATUTE PAGE

SDCL § 13-49-11 (1982) (Corporate Powers of Board) .................................1181, 1182 n. 1,

1183, 1184

SDCL § 13-49-14 (1982) (Employment at Institutions) .................................1181

SDCL § 13-49-15 (1982) (Purchasing and Contracting Powers)..........................1182 n. 1

SDCL § 13-49-18 (1982) (Prosecution of Actions) .....................................1181,1182

SDCL § 13-51-2 (1985 Supp.) (Educational Facilities Fund) ...........................1182 n. 3

SDCL § 13-51A-2 (1982) (Power to Acquire Property) .................................1182 n. 1

SDCL § 13-51A-4 (1982) (Borrowing Power) ..........................................1183

SDCL § 13-51A-23 (1982) (Prohibiting Obligation of State) ..............................1183

SDCL § 13-51A-24 (1982) (Limited Obligation of Bonds) ................................1183

SDCL § 13-53-15 (1985 Supp.) (Receipt of Institutional Moneys)........................1182

SDCL § 15-6-13(a) (1984) (Compulsory Counterclaims)..................................1184

SDCL § 21-32-15 (1985 Supp.) (Liability Insurance) ...................................1184 n. 6

SDCL § 21-32-16 (1985 Supp.) (Waiver of Sovereign Immunity) ........................1182,1184,1184 n. 6

       See Appendix for listing of South Dakota statutes cited in this opinion.

      . SDCL § 13-49-11 (1982) confers upon the Board the power to "hold and manage” property belonging to educational institutions. SDCL § 13-49-15 (1982) grants the Board the power to purchase and contract for institutions. SDCL § 13-51A-2 (1982) provides in part that the Board of Regents "shall have the power for each institution to: (1) Acquire any project or projects, or any combination thereof, and to own, operate and maintain the same.” This statute falls within Chapter 13-51A, entitled "Board of Regents Revenue Bonds”. In this context it is unclear whether the legislature intended to vest title to educational property in the Board or merely to grant bonding authority. Prior to adoption of the statute, the South Dakota Supreme Court held that “[tjitle to state-owned educational property in this state is in the state, and not in the board of regents.” Mullen v. Dwight, 42 S.D. 171, 173 N.W. 645, 646 (1919).

      . 21-32-16. Waiver of immunity to extent of insurance coverage — Consent to suit. To the extent such liability insurance is purchased pursuant to § 21-32-15 and to the extent coverage is afforded thereunder, the state shall be deemed to have waived the common law doctrine of sovereign immunity and consented to suit in the same manner that any other party may be sued.

      . SDCL § 13-51-2 (1985 Supp.).

      . "Eleventh amendment immunity is a question of subject-matter jurisdiction.” Walker v. Transport of New Jersey, 534 F.Supp. 719, 721 (E.D.Pa.1982). The eleventh amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

      . Defendant erroneously suggests that eleventh amendment immunity is not a bar to suits such as the present action which seeks prospective and declaratory relief. However, when a suit is truly against the state as the real party in interest, the eleventh amendment bar “applies regardless of the nature of the relief sought.” Pennhurst State Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Barger v. State of Kansas, 620 F.Supp. 1432, 1434 (D.Kan.1985). Prospective injunctive awards are proper under the eleventh amendment in redressing constitutional deprivations by State officials acting outside the scope of their official authority. Id. 465 U.S. at 102, 104-05, 104 S.Ct. at 909, 910. See Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979).

      . In American Re-Insurance Co. v. Janklow, 676 F.2d 1177, 1183 n. 15 (8th Cir.1982), the Eighth Circuit determined that SDCL 21-32-15 and § 21-32-16 did not constitute “express language” of waiver of eleventh amendment immunity sufficient to infer South Dakota’s consent to suit in federal court.

      . The Eighth Circuit has held that the Board of Regents may not be sued under 42 U.S.C. § 1983 because it is not a "person” within the meaning of the statute. Prostrollo v. University of South Dakota, 507 F.2d 775, 777 n. 1 (8th Cir.1974), cert. denied, 421 U.S. 952, 95 S.Ct. 1687, 44 L.Ed.2d 106 (1975). This finding is consistent with Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), in which the Supreme Court held that municipal bodies and other governmental units are not entitled to absolute immunity from suit under § 1983. The Court limited its holding to "local government units which are not considered part of the State for Eleventh Amendment purposes." Monell, 436 U.S. at 690 n. 54, 98 S.Ct. at 2035 n. 54.


source: Caselaw Access Project

author: GARRITY, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. CHARLES GEORGE TRUCKING COMPANY, INC., et al., Defendants.
    Civ. A. No. 85-2463-G.
    United States District Court, D. Massachusetts.
    Jan. 14, 1986.

      Samuel L. Silverman, Asst. U.S. Atty., Joseph J. McGovern, Dept, of Justice, Environmental Enforcement Section Washington, D.C., for plaintiff.
    Anne Rogers, Margaret E. Sheehan, Asst. Atty. Gen., Environmental Prot. Div., Boston, Mass., for Com. of Mass.
    William F. Macauley, Craig & Macauley, Boston, Mass., for defendants.
    Bruce F. Smith, Boston, Mass., for Charles George Sr., Charles George Trucking Co.
    Richard E. Bachman, Hale, Sanderson, Byrnes & Morto, Boston, Mass., for Dorothy George, Dorothy Lacerte.
   ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT IN PART AND DENYING DEFENDANTS’ MOTION TO DISMISS

GARRITY, District Judge.

The United States commenced this action on behalf of the Environmental Protection Agency (“EPA”) against the defendants for their involvement with the Charles George Land Reclamation Trust landfill (“Charles George landfill”), a hazardous waste dump in northeastern Massachusetts. Relief is sought pursuant to the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. The matter now comes before the court upon the government’s motion for summary judgment against defendants Charles George, Sr. (“Charles George”) and Dorothy George with respect to the Fourth Claim for Relief of its complaint. That claim, which is also the subject of the two defendants’ motion to dismiss, seeks an injunction ordering the defendants to answer EPA information requests and the imposition of civil penalties for their previous failure to do so.

The following facts are undisputed. On February 4, 1985, Charles George and Dorothy George each received a letter from the Director of the Waste Management Division in EPA’s Boston office requesting information about the Charles George landfill. The letter contained 26 questions; it informed the defendants of the statutory authority upon which the requests were based and that a failure to furnish the information within thirty days without adequate justification could result in an enforcement action by the EPA and the subsequent imposition of civil penalties. Although defendants’ counsel indicated that the defendants would respond by May 5, 1985, the EPA has yet to receive such a response.

In support of its motion for partial summary judgment the government contends that the defendants violated both RCRA and CERCLA by failing to respond. The two statutes require that persons who have handled hazardous wastes in some manner provide information relating to those wastes upon the request of a duly designated representative of the EPA or the president. See RCRA, 42 U.S.C. § 6927(a) and CERCLA, 42 U.S.C. § 9604(e)(1). Moreover, RCRA provides that any person who violates one of its requirements is liable to the United States for a civil penalty of up to $25,000 per day for each violation. 42 U.S.C. § 6928(g).

The defendants oppose the motion for summary judgment on three grounds. First, they argue that the government exhibits which offered to prove that Charles George and Dorothy George have handled hazardous waste have not been properly authenticated as required by Fed.R.Civ,P. Rule 56(e). In response to this challenge, however, the government has submitted certified copies of the public documents previously filed and the affidavits of the custodians of records to authenticate other exhibits. These supplemental filings are sufficient to cure any defects that may have originally existed. See Chronister v. Sam Tanksley Trucking Inc., N.D.Ill.1983, 569 F.Supp. 464. The government’s exhibits and Charles George’s answers to the government’s interrogatories and requests for admissions demonstrate that between 1971 and 1979 the two defendants were trustees of the Charles George landfill with the authority to operate and maintain the landfill; that between 1973 and 1976 Charles George applied for hazardous waste collection and disposal licenses; that Charles George was president, treasurer and a director of Charles George Trucking Company, Inc., a company which hauled hazardous waste; and that Dorothy George was also a director of that company. In sum, the government has demonstrated that no genuine issue of fact exists as to whether these defendants handled hazardous substances.

The defendants also challenge the government’s motion for summary judgment on the ground that neither RCRA nor CERCLA require that the defendants disclose certain of the information requested by the EPA. The defendants do not contest that they are required to answer the ten EPA information requests which seek descriptions of the hazardous substances dumped at the landfill and of the manner in which such substances were handled. However, they note that the EPA also seeks information about the preparation of answers to its letters (requests 3, 4), transactions with customers (requests 5, 6, 19, 25, 26), the individual defendant’s role in the Charles George landfill and Charles George Trucking Company (requests 16, 18) and the finances of the two companies (requests 15, 17, 20, 21, 22, 23, 24). The defendants argue that these 16 requests do not concern “information relating to” hazardous waste within the meaning of RCRA, 42 U.S.C. § 6927(a), or CERCLA, 42 U.S.C. § 6904(e)(1).

The court finds that the defendants’ interpretation of these two provisions is too restrictive. The plain language indicates that the EPA’s requests need not be confined solely to descriptions of hazardous waste; the information requested must somehow relate to these substances. Clearly, information concerning who shipped or delivered hazardous substances to the landfill (requests 5, 6, 19, 25, 26) pertain to those substances; such information will not only assist the EPA in ascertaining the nature of the substances dumped, it will also help the EPA identify other sources of information regarding these substances. Similarly, information regarding the defendant’s role in handling the substances involved (requests 16, 18) and how that defendant prepared his or her answers (requests 3, 4) relates to hazardous waste in that it allows the EPA to assess and identify the source of the individual’s knowledge regarding these substances.

However, the court also finds that the EPA requests regarding the finances and insurance coverage of the landfill and the trucking company (requests 15, 17, 20, 21, 22, 23, 24) are not related to hazardous substances. The government argues that RCRA and CERCLA authorize the EPA to gather information for the purpose of enforcing the provisions of the two acts and therefore that “information relating to” must be given a construction consistent with the broad purposes of these statutes. Whatever these purposes, however, the information sought must somehow pertain to hazardous substances. See Outboard Marine Corp. v. Thomas, 7 Cir.1985, 773 F.2d 883. Although information about assets and insurance coverage may assist the EPA in a CERCLA cost recovery action, it in no way informs the EPA about the hazardous substances involved. Consequently, the defendants were not required to answer these requests.

Finally, the two defendants oppose the government’s motion for summary judgment with respect to the imposition of a civil penalty. They argue that the RCRA provision which imposes civil penalties for violations of the Act, 42 U.S.C. § 6928(g), is not applicable to their failure to respond to EPA’s information requests. Although the defendants cite legislative history indicating that § 6928 sought to address the problem of “midnight dumping”, there is nothing to demonstrate that Congress intended to limit § 6928 to that purpose. According to the plain language of the section, § 6928 applies to “any requirement” of RCRA. Since EPA’s request for information was made pursuant to 42 U.S.C. § 6927(a), the failure to respond to that request was a violation of a RCRA requirement for which the defendants are liable under § 6928. See United States v. Liviola, N.D.Ohio 1985, 605 F.Supp. 96.

The defendants also argue that if they are subject to a civil penalty, this penalty should not be allowed to accrue prior to some type of hearing. They contend that the accrual of a penalty without a hearing violates their Fourth Amendment freedom from unreasonable searches and their Fifth Amendment right to procedural due process. The court disagrees. Responses to EPA’s requests for information are voluntary until enforced by the court; although these requests are accompanied by a notice that fines may accrue for noncompliance, such fines are not imposed until ordered by the court. Since the defendants are not compelled to disclose information except by court order, their Fourth Amendment rights have been adequately protected. See United States v. Tivian Laboratories, Inc., 1 Cir.1978, 589 F.2d 49. With respect to their Fifth Amendment claim, the defendants argue that the accrual of a penalty effectively deprives them of their right to challenge the validity of EPA’s requests. However, EPA's letter provided the defendants with an opportunity to justify their failure to respond before any penalty would accrue. Cf. Aminoil, Inc. v. EPA, C.D.Cal.1984, 599 F.Supp. 69. Having failed to take advantage of this opportunity, the defendants are estopped from now arguing that they were deprived of a meaningful opportunity to be heard.

Wherefore, the defendants’ motion to dismiss is ordered denied. The government’s, motion for partial summary judgment is ordered granted in part. Defendants Charles George, Sr. and Dorothy George have violated 42 U.S.C. §§ 6927(a) and 9604(e)(1) and are liable for civil penalties under 42 U.S.C. § 6928(g). They are hereby ordered to respond to all requests for information set forth in the EPA’s January 18, 1985 letter except for requests 15, 17, 20, 21, 22, 23 and 24.

      . The government’s motion with respect to three other defendants named in its complaint, James George, Charles George, Jr., and Karen Karras, has been stayed pursuant to a stipulation between the parties.

      . The defendants’ motion to dismiss was based on the alleged failure of the United States to give notice to the Commonwealth of Massachusetts of the commencement of this action, as required by statute. However, through its submissions, the government established, and defendants conceded at the December 23, 1985 hearing before this court, that such notice was given.

      . The court agrees with defendants’ contention, however, that requests 25 and 26 may be over-broad. Accordingly, the defendants are directed to furnish the documents sought by these requests only to the extent such documents pertain to transactions involving hazardous substances.

      . The court also notes that Aminoil, a case upon which the defendants rely heavily, involved a potential erroneous deprivation of property not present here. In Aminoil, the defendants were forced to choose between complying with a costly administrative order or risk the accrual of fines. In the instant case, compliance with EPA’s requests involved no deprivation of property of any magnitude.


author: LUONGO, Chief Judge.

text:
    Henry STEVENSON v. Margaret M. HECKLER, Secretary of Health and Human Services.
    Civ. A. No. 85-3243.
    United States District Court, E.D. Pennsylvania.
    Jan. 15, 1986.
    David Freeman, Philadelphia, Pa., for plaintiff.
    Rachel Shao, Asst. U.S. Atty., Philadelphia, Pa., for defendant.
   OPINION

LUONGO, Chief Judge.

In this Social Security action, plaintiff Henry Stevenson seeks judicial review of the decision of the Secretary of Health and Human Services denying his claim for disability insurance benefits. The parties have filed cross motions for summary judgment. The issue before me is whether the Secretary’s decision is supported by substantial evidence, that is, by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). I conclude that the Secretary’s decision is, for the most part, supported by substantial evidence. Because the Secretary failed to consider two factors which could affect plaintiff’s ability to work, however, I will deny both parties’ motions for summary judgment and remand the case to the Secretary for further proceedings.

Plaintiff is a 57 year old man with an eighth grade education and work experience as a grinding machine operator. He last worked in July of 1982, when he was laid off for reasons apparently unrelated to any medical impairment. He claims to have been disabled since July 19, 1982 due to arthritis, an improperly healed right leg fracture and an eye impairment.

On September 10, 1984 a hearing was held before an Administrative Law Judge. The AU, in an opinion dated February 13, 1985, ruled that Stevenson’s impairments did not prevent him from performing the work of a grinding machine operator. He therefore denied Stevenson’s application for benefits. The AU’s ruling became the final decision of the Secretary when it was adopted by the Appeals Council on May 29, 1985.

Under the Social Security Act, it is the claimant’s burden to prove inability to return to past employment. Ferguson v. Schweiker, 765 F.2d 31, 36 (3d Cir.1985). In support of his claim, Stevenson testified that his job as a grinding machine operator involved lifting and holding heavy lumps of metal and pulling a hoist. He stated that arthritis and pain in his hands make it difficult for him to grip objects and to straighten his fingers. His right leg, which was broken in 1977, did not heal properly and he has problems walking and standing. His left eye is impaired as a result of cataract surgery. Stevenson testified that he is in severe pain because of arthritis and problems with his feet and right leg.

Veterans Administration hospital records show that Stevenson had cataract surgery on his left eye in 1983. According to the VA records, the operation was considered a success and Stevenson was prescribed bifocals, which he did not get. A Medical College of Pennsylvania record shows that Stevenson visited the emergency room on August 7, 1984. He complained of pain in his rib cage area and was given aspirin. Stevenson has also submitted a record kept by Dr. Wendell Chestnut, who has treated him since 1979 for pain and arthritis. Dr. Chestnut’s record consists of one page of sketchy, barely legible notes dated from 1979 to 1984, and contains no details concerning Stevenson’s allegedly disabling condition.

Also before the AU was the report of Dr. Beverly Graves, who examined Stevenson on behalf of the Social Security Administration. Dr. Graves noted that x-rays of Stevenson’s hands showed “minimal degenerative arthritic changes,” that the range of motion was normal and that Stevenson’s grip strength was four on a scale of one to five. Although x-rays revealed that Stevenson’s right leg had been fractured in two places, Dr. Graves reported that the fractures were healed. The doctor stated that Stevenson’s right knee had no significant limitation of motion and that he walked with a normal gait. Finally, the doctor confirmed that Stevenson’s left eye was poorly functioning but stated that his right eye could read newsprint.

In reaching his decision, the AU considered both the medical evidence and plaintiff’s subjective complaints. The record supports the AU’s conclusion that plaintiff's arthritis did not significantly limit his ability to function. First, as the AU and Dr. Graves noted, plaintiff’s problems with pain and arthritis began before he was laid off from his job. Second, the only objective medical evidence concerning his physical capabilities indicates that his grip strength and ability to move are not significantly impaired. Third, Stevenson himself testified that he is able to do household chores, visit with friends and relatives and drive a car.

The ALJ found that plaintiffs subjective complaints of pain were not credible. Although such complaints must be seriously considered, Green v. Schweiker, 749 F.2d 1066 (3d Cir.1984), they are not conclusive, and may be rejected if they are “grossly disproportionate to the medical findings.” Sheridan v. Schweiker, No. 82-0269, slip op. at 11 (E.D.Pa. Nov. 6, 1985). As the AU acknowledged, the record does show that plaintiff has arthritis and suffers pain and discomfort. The medical reports concerning plaintiffs arthritis and related problems are not, however, specific enough to constitute objective verification of a condition which could reasonably produce disabling weakness and pain. The AU’s conclusion that plaintiff did not suffer from disabling pain is supported by substantial evidence.

Nevertheless, I must remand the case to the Secretary on the ground that the AU did not adequately consider the relationship between plaintiffs medical impairments and the specific requirements of his former job. In concluding that Stevenson could perform his former work, the AU stated that Stevenson had had to lift no more than 18 pounds. Although Stevenson’s testimony at the hearing concerning lifting requirements was not entirely clear, he indicated in a vocational report dated March 24, 1984 that he had lifted 25 to 50 pounds regularly and that the maximum weight he had lifted was 100 pounds. The Third Circuit has recently stressed that the Secretary must consider medical factors in relation to specific vocational factors when making a disability determination. Baeder v. Heckler, 768 F.2d 547 (3d Cir.1985); Ferguson v. Schweiker, 765 F.2d 31 (3d Cir. 1985). On remand, the AU should make explicit findings as to what lifting tasks were necessary in Stevenson’s job and whether he can perform those tasks.

The AU also gave inadequate consideration to plaintiff’s eye impairment, which he found not to be disabling on the grounds that plaintiff could read with his right eye and that vision in his left eye could be brought to normal by spectacles. Although the record shows that glasses were prescribed for plaintiff, it is not clear as to the extent to which plaintiff’s vision problem can be corrected. In addition, the AU failed to address plaintiff’s claim that a grinding machine operator has to watch hot metal during the grinding process and that his left eye would be unable to tolerate it. On remand, the AU should reexamine the medical evidence in light of plaintiff’s testimony concerning his former work and should make more complete findings as to whether plaintiff’s eye impairment can be corrected and whether it affects his ability to work as a grinding machine operator.


text:
    UNITED STATES of America v. Frederick L. JOHNSON.
    Grim. No. 80-162.
    United States District Court, E.D. Pennsylvania.
    Jan. 15, 1986.

      Frederick L. Johnson, pro se.
    No opposing counsel.
   OPINION

LUONGO, Chief Judge.

On July 28, 1980 petitioner Frederick L. Johnson pled guilty before me to three counts charging him with distribution of heroin. On August 29, 1980 I sentenced him to a total of three years’ imprisonment to be followed by three years of special parole. Johnson has now filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Because the motion and the records of this case “conclusively show that the prisoner is entitled to no relief” under § 2255, I will deny the motion without an evidentiary hearing.

Johnson seeks relief on the grounds that: (1) his rights under the Speedy Trial Act, 18 U.S.C. § 3161, were violated; (2) a confession he gave to a government agent was coerced; (3) he was denied effective assistance of counsel; (4) the United States Bureau of Prisons has not given him credit for certain time he spent in federal custody; and (5) he was improperly released and reincarcerated by the federal government after serving a state sentence.

Johnson’s first two allegations are not, in themselves, grounds for relief under § 2255. By pleading guilty, he forfeited his right to “raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” ' Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973). See also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). Even if his speedy trial rights were violated and his confession coerced, he “may only attack the voluntary and intelligent character of the guilty plea” by showing that he did not receive competent advice from counsel. Tollett, 411 U.S. at 267, 93 S.Ct. at 1608. See also, e.g., Smith v. United States, 677 F.2d 39, 40 (8th Cir.1982); Franklin v. United States, 589 F.2d 192, 194 (5th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2177, 60 L.Ed.2d 1055 (1979); Abram v. United States, 398 F.2d 350 (3d Cir.1968).

I must therefore consider whether Johnson was competently advised by counsel. A defendant claiming ineffective assistance “must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). With respect to Johnson’s rights under the Speedy Trial Act, the record reveals that his attorney filed a motion to dismiss because of delay. At the guilty plea proceedings, Johnson acknowledged that he had instructed his attorney to withdraw the motion even though he recognized the possibility that he could prevail. The record thus establishes that Johnson was advised of his speedy trial rights and chose not to pursue them.

Johnson’s confession was not specifically discussed at the guilty plea proceedings. The mere possibility that Johnson’s counsel did not properly advise him concerning the ramifications of an involuntary confession does not, however, require me to hold an evidentiary hearing on the question of counsel’s effectiveness. As the Supreme Court held in McMann v. Richardson, 397 U.S. at 769-71, 90 S.Ct. at 1448, even a misjudgment by counsel as to the admissibility of a confession does not invalidate a guilty plea unless counsel’s actions were completely outside “the range of competence demanded of attorneys in criminal cases.” Id. at 771, 90 S.Ct. at 1449. Johnson has made no specific allegations which would support a finding of such incompetence. Further, the record shows considerable justification for a decision to plead guilty. At the guilty plea proceedings, the Assistant United States Attorney gave a detailed recital of the government’s evidence, stating that the charges against Johnson were based upon his sales of heroin to government agents. Johnson acknowledged that the government could present such evidence and that he had committed the acts charged. In light of the record and Johnson’s failure to present detailed facts to support his claim of attorney ineffectiveness, an evidentiary hearing is not warranted. See, e.g., Blackledge v. Allison, 431 U.S. 63, 75-76, 97 S.Ct. 1621, 1630, 52 L.Ed.2d 136 (1977); Smith v. United States, 677 F.2d 39, 41 (8th Cir.1982); United States v. Baylin, 531 F.Supp. 741, 754 (D.Del.), remanded on other grounds, 696 F.2d 1030 (3d Cir. 1982).

Johnson’s remaining allegations concerning his counsel’s effectiveness are also too vague and conclusory to preclude summary dismissal. He complains that his attorney was appointed late, talked him into pleading guilty against his wishes, did not prepare his case for trial and did not file a motion for reduction of sentence under Fed.R.Crim.P. 35. Johnson pled guilty on July 28, 1980. He alleges no facts which would support a finding that his attorney, who was appointed May 29, 1980, did not have time to prepare. At the guilty plea proceedings, after being advised as to the consequences of testifying untruthfully, Johnson stated that his plea was voluntary and not induced by threats or promises. In light of his conclusive statements under oath, his general allegations concerning coercion do not warrant an evidentiary hearing. See Blackledge, 431 U.S. at 75-76, 97 S.Ct. at 1630. Similarly, without specific allegations concerning “the facts or defenses which counsel would have uncovered” had he been prepared, Johnson cannot demand a hearing on the issue of whether his counsel’s preparation was adequate. E.g., United States v. Thomas, 470 F.Supp. 968, 972 (E.D.Pa.), aff'd mem., 612 F.2d 575 (3d Cir.1979), cert. denied, 445 U.S. 919, 100 S.Ct. 1283, 63 L.Ed.2d 605 (1980). Finally, although an attorney’s failure to file a Rule 35 motion can be a ground for relief under § 2255, United States v. Ackerman, 619 F.2d 285, 287-88 (3d Cir.1980), such relief is not justified in this case. Johnson has not alleged that he requested counsel to file such a motion or that he had a basis to do so. As I made clear at time of sentencing, Johnson’s sentence was substantially lighter than that normally imposed upon persons with his criminal record. In view of the relative leniency of Johnson’s sentence and the vagueness of his claim for relief, I will reject his claim without further proceedings. See United States v. Thompson, 574 F.Supp. 651, 652-53 (E.D.Pa.1983); United States v. Sicenavage, 496 F.Supp. 121, 124-25 (E.D.Pa.1980).

Johnson's fourth and fifth grounds for relief relate to actions taken by the Bureau of Prisons after his sentence was imposed. He asserts that he was improperly denied credit toward his sentence for certain time spent in federal custody. He also states that he was in the custody of the Commonwealth of Pennsylvania from December 8, 1980 until August 19, 1982, and that he was released even though he told authorities he had a pending three-year federal sentence. He was free for 29 months before he • was picked up by the federal government. Johnson claims that the federal government, by failing to take him into custody upon the expiration of his state sentence, waived the right to reincarcerate him.

These claims challenge the execution of Johnson’s sentence by federal prison authorities, not the validity of the sentence as imposed. They therefore do not provide a basis for relief under § 2255, but should be raised in a petition for a writ of habeas corpus under 28 U.S.C. § 2241. See, e.g., United States v. Brown, 753 F.2d 455, 456 (5th Cir.1985); United States v. Giddings, 740 F.2d 770 (9th Cir.1984); United States v. Grimes, 641 F.2d 96, 99 (3d Cir.1981). See also United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (§ 2255 encompasses only errors which affect the lawfulness of the judgment or sentence itself); Kiendra v. Hadden, 763 F.2d 69 (2d Cir.1985) (granting relief under 28 U.S.C. § 2241 on grounds similar to those alleged here). A habeas petition, however, must be filed in the district in which there is jurisdiction over the prisoner or his custodian. Brown, 753 F.2d at 456; Grimes, 641 F.2d at 99 n. 7. Because Johnson is incarcerated in Ray Brook, New York, I lack jurisdiction to consider his claims regarding the execution of his sentence.

Johnson’s motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 will be denied.


author: LEVAL, District Judge.

text:
    Arthur FRIEDMAN, Plaintiff, v. ADAMS RUSSELL CABLE SERVICES—NEW YORK, INC., Defendant.
    No. 84 Civ. 8109 (PNL).
    United States District Court, S.D. New York.
    Jan. 15, 1986.
    Kassner & Haigney, New York City, for plaintiff.
    Choate, Hall & Stewart, Boston, Mass., for defendant.
   OPINION AND ORDER

LEVAL, District Judge.

This is an action for damages and injunctive relief under the antitrust laws. The plaintiff, Arthur Friedman, alleges that the defendant, Adams Russell Cable Services, the holder of the cable television franchises in Harrison and Port Chester, New York, has abused its monopoly power by illegally tying together its provision of two levels of cable services. All material facts are undisputed. The defendant contends that plaintiffs claim fails as a matter of law, and it hás accordingly moved this court for summary judgment pursuant to Rule 56(b) Fed.R.Civ.P. The motion is granted.

In 1982 the defendant acquired the cable television franchises in Harrison and Port Chester, New York, and it has been the sole provider of cable television to these communities ever since. The plaintiff is a resident of the township of Harrison, and is a subscriber of defendant’s cable system. The defendant offers three tiers of cable services to its subscribers: Basic, Super-Cable, and Premium. Basic service includes primarily station signals which may also be received with a traditional VHF antenna, as well as some additional channels. Super-Cable is comprised of satellite-delivered programming such as Cable News Network, MTV, and USA Network. The Premium tier, also commonly known as “pay cable”, includes Home Box Office, The Disney Channel, Sports Channel, and other movie and sports channels.

Although the various tiers are separately priced, they are not made available in all combinations. A subscriber may choose to receive only Basic service (at $4 per month), Basic and Super-Channel (for an additional $9.50 per month), or Basic, Super-Cable, and one or more of the Premium channels (at approximately $9.95 per Premium channel). Plaintiff desires to obtain certain Premium channels without subscribing to Super-Cable. The defendant will not permit this, although it admits that such a combination would present no technological problems; the Premium channels are only made available to those subscribing to Super-Cable. It is this arrangement, linking the sales of Premium channels to the sale of Super-Cable, that the plaintiff attacks as a violation of the Sherman Antitrust Act.

Superficially, the facts in this case resemble an illegal tying arrangement. As explained by the Supreme Court, “a tying arrangement may -be defined as an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product ...” Northern Pacific Railway v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). In many circumstances the finding of a tying arrangement will be considered a per se violation of the antitrust laws. However, as explained by the Second Circuit in Coniglio v. Highwood Services, 495 F.2d 1286 (2d Cir.), cert. denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974), the elements of an unlawful tying arrangement are not present here.

The plaintiff in Coniglio contested the practice of the Buffalo Bills football team requiring season ticket purchasers to also buy tickets to a number of pre-season games. In denying this claim, the court ruled that there are four elements to an “illicit tying arrangement.” The plaintiff must show: “(1) two separate and distinct products ...; (2) sufficient economic power in the tying market to coerce purchases of the tied product; (3) anticompetitive effects in the tied market; ” and (4) a requisite volume of interstate commerce. Coniglio, supra at 1289 (emphasis added). Because there were “neither actual nor potential competitors to the Bills in the [Buffalo] professional football market” id. at 1291, the Court of Appeals concluded that there were, and could be, no anti-competitive effects of the tying arrangement. Consequently, the court denied relief under the antitrust laws.

The same hurdle proves insurmountable to the plaintiff in the instant action. The defendant enjoys an absolute lawful monopoly in the relevant geographic market for the tied product (Super-Cable). There are no competitors providing cable services in Harrison, New York, and none are likely for the remaining six years of the present franchise agreement. Thus, exactly as in the Buffalo Bills case, no competitor is harmed by the arrangement; the elements of the cause of action are not made out.

Plaintiff makes several attempts to elude the force of Coniglio, but none are suecessful. He argues that defendant’s conduct should not be evaluated solely within the narrow parameters of an illegal tying arrangement, but should be seen more broadly, as an abuse of monopoly power. The same argument, however, was also made in Coniglio, and the court concluded that since the defendant “has not used the tying arrangement either to prevent competition or destroy it, its ticket sale practice does not represent an unlawful abuse of its monopoly power.” Coniglio, supra, at 1293. Similarly, in Berkey Photo v. Eastman Kodak, 603 F.2d 263, 275 (2d Cir. 1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980), the Court of Appeals made it clear that as to a claim of abuse of monopoly power predicated on the extension of that power into other markets, the relevant inquiry is whether the monopolist is “using its monopoly power in one market to gain a competitive advantage in another____” Where the monopolist already possesses a lawful monopoly in both markets no competitors exist to suffer any ill effects.

The plaintiff alleges in his brief that the anti-competitive effects of defendant’s conduct is felt in other towns where the defendant is able to use its inflated monopoly profits to “low ball” the competition and thus acquire additional franchises. I doubt that this argument is economically sound. It is the value of the additional franchise, as perceived by the bidders for it, that determines what each will bid and not the amount of money a bidder has earned from other ventures. If a bidder pays more for the new franchise than it is worth, he will have made a bad investment. But even if the argument were sound, it would not avail plaintiff in this cause of action. Any resulting injury would be to the competitors for those other communities and not the plaintiff. He would lack standing to prosecute their claims. See Triple M Roofing v. Tremco, 753 F.2d 242, 247 (2d Cir. 1985).

Plaintiff also suggests that Coniglio was an aberration and should no longer be considered good law. There is nothing to support this claim. Within the last year the Second Circuit has required a showing of anticompetitive effect in the tied market in order to make out an illegal tying arrangement. See Power Test Petroleum Distr. v. Calcu Gas, 754 F.2d 91, 96 (2d Cir.1985). Moreover, recent Supreme Court decisions are fully consistent with the position of the Second Circuit. While examining a tying arrangement challenged in Jefferson Parish Hospital v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 1560, 80 L.Ed.2d 2 (1984), the Court explained that “application of the per se rule focuses on the probability of anticompetitive consequences.” The Court further stated that where, as in the instant case, “a purchaser is ‘forced’ to buy a product he would not otherwise have bought even from another seller in the tied product market, there can be no adverse impact on competition____ Without a showing of actual adverse effect on competition, [plaintiff] cannot make out a case under the antitrust laws____” Id., 104 S.Ct. at 1560, 1568. It appears the rule of Coniglio has been strengthened.

Finally, the plaintiff claims in his brief that the defendant acquired its franchises in Harrison and Port Chester through misrepresentation and fraud. This issue is not advanced in the complaint; nor is it a claim for which relief lies under the federal antitrust laws.

Because of the absence of any possible anti-competitive effects, the tie defendant imposes between its provision of Premium channels and Super-Cable is not illegal under the Sherman Antitrust Act. Neither is it an abuse of defendant’s monopoly power. Accordingly, defendant’s motion for sum: mary judgment is granted.

SO ORDERED.


author: SELYA, District Judge.

text:
    Richard VASCERA, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendants.
    C.A. No. 82-0465-S.
    United States District Court, D. Rhode Island.
    Jan. 16, 1986.
    McKenna, Greenwood & Feinstein, Charles Greenwood, R.B. Feinstein, Carole L. Gray, Providence, R.I., for plaintiff.
    Everett C. Sammartino, Ass’t U.S. Atty., Providence, R.I., Samuel C. Fish, Regional Atty., Health and Human Services, Boston, Mass., for defendants.
   MEMORANDUM AND ORDER

SELYA, District Judge.

This case presents a question regarding the current entitlement of the plaintiff, Richard Vascera, to recover counsel fees under 28 U.S.C. § 2412(d)(1)(A), a central provision of the Equal Access to Justice Act (EAJA). At the times material hereto, the statute intoned in pertinent part that:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, ... 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.

28 U.S.C. § 2412(d)(1)(A) (1982).

I. BACKGROUND

The Secretary’s 1982 final decision, from which this action arose, denied social security disability insurance benefits and supplementary security income payments to Richard Vascera. The claimant, contending that the Secretary’s edict was not bottomed upon substantial evidence in the record, filed suit to secure a reversal of that decision, or alternatively, to win a remand of the claim to the agency. The matter was heard before a magistrate of this court on cross motions for summary judgment, reference having been made pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate recommended that the case be returned to the Secretary for further elucidation of the pertinent medical data. On October 9, 1984, this court adopted the magistrate’s recommendation and ordered a remand for augmented evidentiary proceedings and further findings. See 42 U.S.C. § 405(g).

Having succeeded to this limited extent, Vascera (without awaiting the outcome of the further proceedings before the agency) moved for an award of attorneys’ fees under § 2412(d)(1)(A) of the EAJA, quoted ante. This motion was likewise heard before the magistrate ancillary to the 28 U.S.C. § 636(b)(1)(B) reference. On November 15, 1985, the magistrate issued a supplementary report and recommendation (Report) suggesting that such fees be awarded. Report at 6. The Secretary seasonably objected. This court entertained oral argument on January 10, 1986 and took the matter under advisement at that time.

II. CONTENTIONS OF THE PARTIES

It is by now settled beyond peradventure that the EAJA applies to suits prosecuted in federal courts by those who, having been denied social security disability benefits at the administrative level, garner such emoluments as a result of judicial review. See, e.g., Cornella v. Schweiker, 728 F.2d 978, 982-83 (8th Cir.1984); Guthrie v. Schweiker, 718 F.2d 104, 107 (4th Cir.1983); Berman v. Schweiker, 713 F.2d 1290, 1296 (7th Cir.1983); McGill v. Secretary of Health and Human Services, 712 F.2d 28, 30 (2d Cir.1983), cert. denied, 465 U.S. 1068, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984). 3(EAJA awards do not, of course, pertain to services rendered before the agency; on its face, the Act applies only to “court” proceedings.) The narrower question which lies at the threshold of this application is whether Vascera became a “prevailing party” within the reach of the EAJA when he succeeded in procuring from this court an order remanding his claim to the Secretary for the taking of additional evidence.

The plaintiff’s argument is that the fundamental purpose of the EAJA is to balance the scales of justice by correcting inequities between the United States and private litigants of relatively modest means. Thus, the plaintiff reasons, where a claimant is successful in annulling the results of a tainted or inadequate administrative proceeding, the goals of the EAJA are furthered by bestowal of counsel fees, notwithstanding that the plaintiff has “won” nothing more than a de novo hearing.

The Secretary’s position is equally simple and direct. She asseverates that, unlike proceedings brought under, say, 42 U.S.C. § 1983, the raison d’etre of social security claims is to secure social security payments — not to vindicate procedural due process rights. It follows, in the Secretary’s view, that a plaintiff cannot be said to have “prevailed” in the EAJA sense unless and until he has attained an award of such benefits. The Secretary therefore sees attorneys’ fees as inappropriate in this case at this time because, despite the remand, the pivotal question — Vascera’s entitlement vel non to disability benefits — is as yet unresolved.

III. THE REPORT

As previously noted, these conflicting contentions were presented to the magistrate. The magistrate accepted the plaintiff’s thesis, but placed his own gloss upon it. He reasoned that a claimant who has successfully prosecuted a motion for remand should be eligible to apply for the comforting balm of a fee-shifting anodyne, and it should be forthcoming (assuming that the government’s position was not “substantially justified” within the meaning of the Act) “where remand relief was obtained by the plaintiff through efforts of extraordinary circumstance.” Report at 3.

In this case, the magistrate divined the existence of such efforts from a variety of facts which find support in the record, viz., Vascera was an uneducated applicant, he was not fluent in the English language, he was not represented by counsel before the agency, and the administrative law judge (ALJ), “by not fully developing the medical record, denied the plaintiff a fair hearing.” Id. at 4. The magistrate further found that the Secretary’s position lacked the requisite justification, id. at 4-5, and proceeded to assess the reasonable amount of the fees to be awarded. Id. at 6.

IV. DISCUSSION

A. The Caselaw

In the early days following enactment of the EAJA in 1981, the legal landscape was indistinct in respect to whether or not a social security claimant “prevailed” within the meaning of the Act when he convinced a court to overturn an unfavorable decision by the Secretary and to order a new administrative hearing. Compare Miller v. Schweiker, 560 F.Supp. 838, 840 (M.D.Ala. 1983) (no entitlement to fees) and Roman v. Schweiker, 559 F.Supp. 304, 305 (E.D.N. Y.1983) (same) with Ceglia v. Schweiker, 566 F.Supp. 118, 121 (E.D.N.Y.1983) (fees awarded) and Gross v. Schweiker, 563 F.Supp. 260, 262 (N.D.Ind.1983) (same). In late 1983, however, the Second Circuit’s decision in McGill, 712 F.2d at 30-32, defined the contours of the terrain with considerable precision. The McGill panel, after analyzing the legislative history of the EAJA and the relevant caselaw, held (id. at 31-32):

Regardless of the wording of the complaint or the actual relief sought in the district court, generally speaking, a social security claimant prevails when it is determined that she is entitled to benefits ____ While it is true that a favorable ruling on plaintiff’s procedural claim that the AU should have conducted a more thorough hearing may ultimately affect the outcome of the merits of plaintiff’s disability claim, nevertheless, her procedural claim is not a matter on which plaintiff can be said to prevail for the purpose of shifting counsel fees, (citations omitted).

McGill was promptly adopted by the First Circuit. See Roy v. Secretary of Health and Human Services, No. 83-1205 (1st Cir. October 17, 1983) (per curiam) (unpublished order of court) (“We agree with the Second Circuit that a remand of the type involved in this case does not itself make appellant a ‘prevailing party’ within the meaning of 28 U.S.C. § 2412(d).”). But, the struggle was far from over. Certain district courts outside of the Second Circuit either declined to follow the reasoning of McGill or endeavored to distinguish it. E.g., Burt v. Heckler, 593 F.Supp. 1125, 1128 (D.N.J.1984).

Further authoritative support for the government’s position emerged in Brown v. Secretary of Health and Human Services, 747 F.2d 878, 881-83 (3d Cir.1984). The Third Circuit, affirming the district court’s denial of counsel fees to a petitioner who had won a judicial remand for a de novo hearing pursuant to 42 U.S.C. § 405(g) because the Secretary’s decision was not based on substantial evidence, noted that “[although such a claimant may request, in the alternative, relief other than his or her ultimate goal (the receipt of benefits), it is the receipt of those benefits that renders a typical Social Security plaintiff a prevailing party.” 747 F.2d at 883. Accordingly, the court held:

When a court vacates an administrative decision and remands the matter for reconsideration, the successful party generally should not recover attorney’s fees at that particular time since the claimant’s rights and liabilities and those of the government have not yet been determined.

Id.

Hot on the heels of Brown, yet another court of appeals joined in the McGill parade. In Cook v. Heckler, 751 F.2d 240, 241 (8th Cir.1984), the Eighth Circuit opined that, “for purposes of an attorney fee award under EAJA it is not enough for a Social Security claimant to have won a remand to the Secretary for further administrative proceedings on the merits.” Cook, a case in which the Secretary committed multiple errors of the most egregious sort, stands as particularly strong authority for a bright line rule. See also Kemp v. Heckler, 777 F.2d 414 (8th Cir. 1985) (per curiam) (following Cook). The holding in Cook has been specifically endorsed by the court of appeals for this circuit. See Tuccinardi v. Secretary of Health and Human Services, No. 84-1662 (1st Cir. Sept. 11, 1985) (per curiam) (unpublished memorandum and order).

Such unanimity of opinion among the circuit courts which have to date addressed the question has failed, nevertheless, to exorcise the spirit of generosity with which some courts have approached the Act vis-avis social security remand cases. Although the majority of the district courts have embraced the McGill-Brown-Cook trilogy, e.g., Steffens v. Heckler, 602 F.Supp. 754, 755-56 (N.D.Ill.1985) (Bua, J.), others have refused to fly that flag. E.g., Bohn v. Heckler, 613 F.Supp. 232, 237-38 (N.D.Ill. 1985) (Moran, J.); Sizemore v. Heckler, 608 F.Supp. 911, 913 (N.D.Ill.1985) (Plunkett, J.).

The cases which refuse to follow the clearly lettered guideposts of the McGillBrown-Cook trilogy offer, in one form or another, a quadrat of arguments, none of which holds much water.

1. The contention that the paramount goals of the EAJA and its legislative history favor a fee award to a social security claimant who succeeds in having a court set aside an adverse agency decision and mandate a further administrative look at the claim was considered and rejected in McGill, 712 F.2d at 30-31. This court subscribes to the Second Circuit’s appraisal of the Act and of its genesis, and adds only that the Congress, in authoring the 1985 Reenactment, had ample opportunity to open the portals of the EAJA wider, but declined to do so.

In considering the 1985 Reenactment, Congress was explicitly aware of cases where “the court may have declined to make an award [of fees] because the remand order did not yet make the applicant a ‘prevailing party’ and therefore eligible under the EAJA.” Senate Judiciary Committee, Equal Access to Justice Act, S.Rep. No. 586, 98th Cong., 2d Sess. 21 (1984). See also House Report (Judiciary Committee), Equal Access to Justice Act, Extension and Amendment, No. 99-120(1), 99th Cong., 1st Sess. 19-20, citing Brown (“The court will usually decline to make an award upon the remand decision because the remand order did not yet make the applicant a ‘prevailing party’ and therefore eligible under the EAJA.”). The McGill-Brown-Cook trilogy was a part of the “contemporary legal context,” Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 381, 102 S.Ct. 1825, 1841, 72 L.Ed.2d 182 (1982), quoting Cannon v. University of Chicago, 441 U.S. 677, 698-99, 99 S.Ct. 1946, 1958, 60 L.Ed.2d 560 (1977), from which the 1985 Reenactment emerged. In that context, the fact that a full-scale reexamination, revivification, and significant amendment of the EAJA left essentially untouched the statutory provisions under which the circuit courts had uniformly declined to entertain EAJA applications in the social security remand milieu is itself evidence that Congress acquiesced in, and intended to preserve, that paradigm. See Merrill Lynch, Pierce, Fenner & Smith, 456 U.S. at 381-82 & n. 66, 102 S.Ct. at 1840-41 & n. 66.

2. As a variation on the “goals of the Act” theme, claimants have often mounted an appeal to the basic equities of the situation. Judge Weinfeld has made the point well:

The Agency’s error forced plaintiff and her attorneys into this Court, and their persistence resulted in correction of the error. Denial of fees to her attorneys for their services is inconsistent with the purposes of the Social Security Act and the EAJA.

Ocasio v. Schweiker, 540 F.Supp. 1320, 1323 (S.D.N.Y.1982). See also Ceglia, 566 F.Supp. at 122; Gross, 563 F.Supp. at 262.

The essential fallacy which 'erodes this asseveration is that it confuses the two-pronged test of the EAJA. The Act requires both that the private party prevail and that the government’s position lack substantial justification. 28 U.S.C. § 2412(d)(1)(A) (1982). See Brown, 747 F.2d at 882; Steffens, 602 F.Supp. at 755. What might be called the “egregious error” argument is more properly to be considered on the substantial justification furculum of the standard; to attempt to swing it as a club against the United States on the prevailing party prong is to “subsumeQ two distinct issues under one general heading.” Brown, 747 F.2d at 882. This court eschews the temptation to impart any such synthetic imbrication to the dual requirements of the EAJA. The potential strength of a plaintiff’s position on the matter of substantial justification cannot be allowed to obscure the threshold question of whether or not the plaintiff has prevailed on the merits.

3. The proposition most frequently advanced by proponents of fee shifting is that the claimant has become entitled to an EAJA award because, in securing a remand, he has gained some appreciable part of the relief sought in the court proceedings. It cannot be gainsaid that a claimant who has lost before the agency and thereafter, by judicial intervention, manages to reopen the proceedings below, has improved his position. But, the view that such an improvement is tantamount to prevailing in the statutory sense is necessarily dependent upon the fragmentation of a single claim into artificially discrete units. Suits brought principally to secure monetary rewards are not so scissible. In, say, a § 1983 police brutality damages action, a plaintiff arguably betters his stance each time he prevails on a discovery motion or defeats a summary judgment initiative; yet, fee shifting is dependent not on points won in passing, but on the achievement of a significant part of the benefit sought in prosecuting the suit. As the Supreme Court has held in an analogous context, fees may be awarded “only to a party who has established his entitlement to some relief on the merits of his claims.” Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980) (per curiam). In much the same vein, the Third Circuit has noted:

Rulings granting new administrative hearings to the usual Social Security claimants “may affect the disposition on the merits, but are themselves not matters on which a party could ‘prevail’ for purposes of shifting his counsel fees to the opposing party.”

Brown, 747 F.2d at 883, quoting Hanrahan, 446 U.S. at 759, 100 S.Ct. at 1990. See also McGill, 712 F.2d at 31; Von Luetzow v. Director, Office of Personnel Management, 562 F.Supp. 684, 685 (D.D.C. 1983) (“A party who obtains nothing more than a remand for further consideration has not prevailed on the merits of his claim.”).

The granting of a remand is not an adjudication on the merits. In the usual case, the issuance of such an order carries with it not the slightest assurance that the claimant will eventually receive the social security benefits which he seeks. Standing alone and unadorned, the remand order may increase the claimant’s chances of ultimate success, but it lacks both the degree of finality and the causal connection to merits relief necessary to engage the gears of the EAJA. It is only if, as, and when benefits are actually obtained that the claimant can be said to have prevailed in the EAJA sense.

4. The last proposition urged in support of an immediate fee award is that there may be no other meaningful opportunity to obtain one. That is, given the EAJA’s requirement that a successful litigant must apply for fees within thirty days of the district court’s final judgment, 28 U.S.C. § 2412(d)(1)(B), the plaintiff argues that, absent prompt attention to his counsel fee request, he is on the horns of an ineluctably unproductive dilemma: if the remand order is considered a “final judgment” of the court, then the filing period will probably run long before the new evidentiary proceedings are concluded at the agency level; if the remand order is not so considered, and if he is eventually awarded benefits by the Secretary, it is extremely “unlikely that the case will return to the court ... [so] that the plaintiff will not have another opportunity to petition” for a fee award. Ceglia, 566 F.Supp. at 122 n. 3.

Whatever mechanical problems this scenario might have presented in the past, the solution is now at hand. Several circuit courts have endorsed a procedure which, albeit cumbersome, fully safeguards a claimant’s legitimate rights in this regard. See Brown, 747 F.2d at 883-85; Guthrie, 718 F.2d at 106-07. Though the remand order will not be deemed to be a final judgment, the Secretary “must file new findings of fact and the new decision” with the district court after the resumed administrative proceedings are concluded. Brown, 747 F.2d at 884. The court will at that time enter the final judgment contemplated by the EAJA. Id. at 884-85 & n. 7. If the claimant ultimately establishes his entitlement to social security benefits during the new round of hearings, the period for filing an EAJA application in the district court will run afresh from the entry of that final judgment. The Congress has indicated acquiescence in this arrangement. Id. at 885 n. 8. So, the EAJA rights of a plaintiff who succeeds on the merits subsequent to a court-ordered remand are satisfactorily protected. Accordingly, this argument is unavailing.

The McGill-Brown-Cook rationale withstands each and every fascicle of the criticism which has been levelled against it. What remains, therefore, is only to apply that reasoning to Vascera’s imprecation.

B. Application of the Caselaw

In the case at bar, the magistrate paid lip service to the hegemony of McGill, but read into it an exception for cases “where remand relief was obtained by the plaintiff through efforts of extraordinary circumstance.” Report at 3. McGill and its progeny fail to provide sustenance for such a view.

To be sure, the McGill-Brown-Cook trilogy contains some phraseology which indicates that the door is not altogether shut. The Cook holding can be read as limited to a “typical Social Security claimant,” 751 F.2d at 241, thereby implying that some atypical cases may exist; the Brown court’s admonition that “the successful party generally should not recover attorney’s fees” at the time a remand is ordered, 747 F.2d at 883 (emphasis supplied), does not seem to foreclose the possibility of exceptions to the rule. See also McGill, 712 F.2d at 31 (to like effect). Yet, such language is in the main a reflection of the prudential chariness so often displayed by courts wisely disinclined to make broad and sweeping pronouncements beyond the exigencies of the matter at hand. If and to the extent that exceptions do exist, however, they are principally twofold.

The first set of potential exceptions are of the genre typified by MacDonald v. Schweiker, 553 F.Supp. 536 (E.D.N.Y. 1982), where a fee award was found to be appropriate because the claimant’s suit, though resulting in a remand of her case, worked a systemic change which redounded to the benefit of a large number of present and future persons. In short, Ms. MacDonald’s action had a catalytic effect resulting in the adjustment of a procedural irregularity which permeated the entire social security system. E.g., id. at 539-40. Vascera’s case comes before the court bereft of such unusual trappings. Like Ms. McGill, Vascera’s underlying “grievance in district court related to events that were unique to [his] own case, rather than of general significance, and [his] success [in court] did no more than move [him] one step closer to a final determination of the merits of [his] claim.” McGill, 712 F.2d at 32.

It is possible, too, to envision a second set of exceptions: situations where the court, although ordering a remand, has done so for what might be termed “housekeeping” purposes. In those instances, the Secretary’s liability for the benefits in issue has been effectively determined in the judicial proceedings, though the court, in deference to the orderly management of the administrative scheme, mandates a remand for, say, the calculation of the payments due. E.g., Sizemore, 608 F.Supp. at 913; McKenzie v. Heckler, 589 F.Supp. 1152, 1162 (N.D.Ill.1984). In such an eventuality, it can convincingly be argued that the claimant, notwithstanding the remand, has prevailed on the merits. Cf. Massachusetts Fair Share v. Law Enforcement Assistance Administration, 776 F.2d 1066, 1068 (D.C.Cir.1985) (“A party who established an entitlement to relief on the merits of a claim ... is entitled to fees [under EAJA] even if the case is remanded to the agency for further action.”). But, that approximate set of circumstances can be left for another day; Vascera’s case does not partake of these attributes.

This court, in its October 9, 1984 order of remand, made no finding as to the plaintiff’s eligibility vel non for social security benefits. The fate of Vascera’s application for such benefits, pending the conclusion of further proceedings before the agency, remains problematic at best. This court has painstakingly compared the circumstances surrounding its remand order in the instant action with those extant in McGill, Brown, Cook, Roy, and Tuccinardi. All of the cases are of a piece. There is nothing which differentiates Vascera’s case in any material way or which absolves him from an evenhanded application of the. general rule.

The “extraordinary” circumstances found by the magistrate, Report at 4, are not extraordinary at all. To the contrary, they are all too characteristic of this type of litigation. Those facts may well be relevant at a future date on the question of whether the Secretary’s position was substantially justified vis-a-vis this claimant, but they are, viewed singly or in the ensemble, manifestly inadequate to warrant disregard of the McGill-Brown-Cook trilogy. The facts in McGill itself essentially paralleled those sub judice. See McGill, 712 F.2d at 29. Indeed, the remand in Tuccinardi stemmed from a case where, like here, the claimant, an uneducated person not fluent in the English language, was unrepresented before the agency and was denied a fair hearing in the sense that the record in her case was not fully developed by the AU. See Tuccinardi v. Secretary of Health and Human Services, 767 F.2d 905, slip op. at 2 (1st Cir.1985) (per curiam) (unpublished) (opinion on the merits, vacating and remanding to the Secretary for further proceedings). And, as indicated earlier, see text ante at 1201 & n. 3, Cook implicated a far more blatant series of administrative blunders.

On this record, there is no principled way to distinguish McGill and its progeny. Under the applicable rule of law, a social security claimant who secures a remand of his case to the agency for a de novo hearing may not, at the time of remand, recover fees and costs under 28 U.S.C. § 2412(d)(1)(A).

V. CONCLUSION

In fine, the plaintiff’s reach exceeds his existing grasp. This court confidently joins the mainstream of judicial thought, as announced by, inter alia, the Second, Third, and Eighth Circuits (and as adopted in two unpublished orders of the First Circuit). The reasoning of those decisions is inexpugnable. Access to the EAJA in this and kindred causes is inextricably linked to “merits” success.

As matters now stand, Vascera is not yet — and may never be — a prevailing party within the ambit of the EAJA. Accordingly, he has no current entitlement to the benefices of 28 U.S.C. § 2412(d)(1)(A). For the reasons noted herein, the magistrate’s recommendation is rejected and the petition for counsel fees is denied and dismissed without prejudice to its renewal at a future date if Vascera’s quest for the social security benefits at issue ultimately bears fruit.

The Secretary is directed, within thirty days next following the rendition of a final decision after the proceedings on remand have been completed, to file the same with this court. If no appeal is taken therefrom, "the Secretary shall, promptly upon the expiration of the applicable appeal period, move for the entry of final judgment in accordance therewith.

It is so ordered.

      . Subsection (d) of § 2412 was repealed on October 1, 1984, subject to the proviso that it would continue to apply through final disposition of any action theretofore commenced. See United States v. Yoffe, 775 F.2d 447, 448 n. 1 (1st Cir.1985). Inasmuch as this action was begun in 1982, when the plaintiff requested judicial review of a final decision of the Secretary of Health and Human Services (Secretary) under 42 U.S.C. § 405(g), and was pending on the merits on October 1, 1984, it slips neatly within the integument of the savings clause. . In any event, on August 5, 1985, the President signed P.L. 99-80, 99 Stat. 183 (1985) (hereinafter “1985 Reenactment”), which as a practical matter reenacted, extended, and amended § 2412(d).

      . Indeed, the 1985 Reenactment explicitly ratified this line of judicial thought. Id. at §§ 2(a), 3.

      . See Cook v. Heckler, 739 F.2d 396 (8th Cir. 1984) (opinion on the merits, reversing and remanding to the Secretary for further proceedings). Mr. Cook had won his case before the AU, id. at 397-98. The Secretary’s Appeals Council, however, rejected the hearing officer’s findings and conclusions, and denied the claim. Id. at 398. In so doing, the “Council took a curious approach,” id., ignored binding Eighth Circuit precedent squarely in point, id., at 398-99, applied an incorrect legal standard, id., and improperly twisted expert testimony of record in an attempt to buttress its (erroneous) conclusion. Id. at 399.

      . This court rejects the formulation of Bohn, supra, to the effect that fee entitlement in the remand context depends upon whether or not the claimant "has established a prima facie case of disability at the administrative level” antecedent to the remand. Id., at 236. That approach strikes this court as little more than an effort to devise a Bohn of contention where none logically exists. (The Bohn rationale is in any event inapposite here, as Vascera made no such showing below.)

      . Under the bifurcated statutory paradigm, the Secretary, on remand, has no authority to award fees for that part of the proceeding conducted before the district court.

      . MacDonald has been discussed (and distinguished) by the Second Circuit in McGill, 712 F.2d at 32, and there is no need to explore it further for purposes of the case at bar. It suffices to say that Vascera's suit is in no material respect analogous to MacDonald. Accordingly, this court expresses no opinion as to whether or not MacDonald properly falls outside of the sweep of the McGill-Brown-Cook trilogy.


text:
    Joseph G. SENDI v. NCR COMTEN, INC.
    Civ. A. No. 85-5847.
    United States District Court, E.D. Pennsylvania.
    Jan. 16, 1986.

      David R. Black, Media, Pa., for plaintiff.
    Philip H. Lebowitz, Philadelphia, Pa., for defendant.
   OPINION

LUONGO, Chief Judge.

This is uie second of two lawsuits based on plaintiff Joseph Sendi’s claim that defendant NCR Comten, Inc. wrongfully terminated his employment. In 1984 Sendi filed a complaint alleging that Comten’s acceptance of his resignation on November 6, 1981 violated the Pennsylvania Wage Payment and Collection Law (WPCL), 43 P.S. § 260.1 et seq. Sendi v. NCR Comten, Inc., No. 84-2114 (E.D.Pa. filed May 2, 1984) (Sendi I). On June 10, 1985 Sendi moved for leave to amend his complaint to add counts alleging breach of an employment agreement and an implied covenant of good faith and fair dealing. I denied his motion for leave to amend on July 5 and, on October 25, granted summary judgment in Comten’s favor, 619 F.Supp. 1577.

On October 10, 1985 plaintiff filed this lawsuit (Sendi II). Comten has moved to dismiss the Sendi II complaint, which is identical to the proposed amended complaint in Sendi I, on the ground that it is barred by res judicata. For the reasons stated below, Comten’s motion to dismiss will be granted.

The doctrine of res judicata is intended to ensure the finality of judgments and prevent repetitive litigation. Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979). The doctrine operates

to bar not only identical repetitive suits but also to prevent the assertion of a different legal theory which arises from the same liability creating conduct, and which the party had reasonable opportunity to present in the original suit____ A party is not entitled to a second lawsuit merely because he states a new theory of recovery.

Seamon v. Bell Telephone Co., 576 F.Supp. 1458, 1460 (W.D.Pa.1983), aff'd mem., 740 F.2d 958 (3d Cir.1984). See also Haefner v. County of Lancaster, 543 F.Supp. 264, 266-67 (E.D.Pa.1982), aff'd mem., 707 F.2d 1401 (3d Cir.1983); Miller v. United States, 438 F.Supp. 514, 520-23 (E.D.Pa.1977).

Plaintiff argues that in Sendi I he sought damages only for commissions which he had allegedly earned prior to his November 6, 1981 termination date. Sendi II is not barred, he contends, because it is based on a claim that defendant breached an employment agreement by preventing plaintiff from working and earning commissions after November 6.

In my view, the claims in Sendi I and II cannot be so neatly differentiated. Both cases center on the question whether Corn-ten had the right to accept Sendi’s resignation on November 6, 1981 and to deny his request to remain on the payroll for a period of time. The cases “emerge from the same transaction and share precisely the same nucleus of operative facts.” Poe v. John Deere Co., 695 F.2d 1103, 1106 (8th Cir.1982). Sendi II “is nothing more than an attempt to apply different legal labels to the facts” of Sendi I. Id. at 1107. See also Seamon, 576 F.Supp. at 1460.

Moreover, although I denied plaintiff leave to amend his complaint in Sendi I, he did not confine himself to a claim for commissions allegedly earned before November 6, 1981. In opposing Comten’s motion for summary judgment, Sendi argued and presented evidence to show that Comten’s personnel policy manual and general employment practices gave him a right to remain with Comten and continue to earn commissions after November 6. I specifically considered and rejected these contentions in ruling on Comten’s summary judgment motion. See Sendi v. NCR Comten, Inc., 619 F.Supp. 1577, 1580-81 (E.D.Pa. 1985). Plaintiffs claim that he was discharged in violation of specific or implied terms in an employment agreement cannot, therefore, serve as the basis for a second lawsuit.

Even had I not considered plaintiff’s additional claims in Sendi I, the fact that plaintiff was denied leave to amend does not give him the right to file a second lawsuit based on the same facts. As the Third Circuit observed in Walton v. Eaton Corp., 563 F.2d 66, 71 (3d Cir.1977), the district court “must insure that the plaintiff does not use the incorrect procedure of filing duplicative complaints for the purpose of circumventing the rule[ ] pertaining to the amendment of complaints, Fed.R. Civ.Proc. 15.” Sendi’s proper recourse was to appeal from the denial of his motion to amend. Poe, 695 F.2d at 1107; Eliason Corp. v. Bureau of Safety and Regulation, 564 F.Supp. 1298, 1303-04 (W.D.Mich. 1983). Comten’s motion to dismiss the complaint in Sendi II will be granted.

Comten has also moved for sanctions against plaintiff and his counsel pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. Although I agree that the decision to file a second suit was ill-advised, I cannot conclude that plaintiff and his counsel acted so unreasonably as to justify imposition of sanctions. Sendi II was filed on October 10, 1985, before my October 25 Opinion and Order in Sendi I, which made clear that I had considered and rejected all of plaintiff’s arguments. Moreover, I accept counsel’s representation that he brought Sendi II in an attempt to prevent the statute of limitations from running on plaintiff’s contractual claims. Applying the standard set forth in Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 540 (3d Cir.1985), I am satisfied that counsel’s litigation tactics, although misguided, were not entirely unwarranted. Comten’s request for sanctions will be denied.

      . After Comten filed its motion, the parties agreed to a dismissal with prejudice of Count I ed the Sendi II complaint.


author: GENE CARTER, District Judge.

text:
    Robert G. GRENIER, Lynda L. Grenier, individually and as parents and next friends for Grace E. Grenier, Girard L. Grenier, and Christina R. Grenier, Plaintiffs, v. The DOW CHEMICAL CO., Defendant.
    Civ. No. 84-0039-P.
    United States District Court, D. Maine.
    Jan. 16, 1986.
    See also, D.C., 628 F.Supp. 1529.
    Harold Lichten, Barry A. Margolin, Tureen & Margolin, Portland, Me., and Robert A. Taylor, Jr., Ashcroft & Gerel, Washington, D.C., for plaintiffs.

      Alfred C. Frawley, George S. Isaacson, Stuart J. Novick, Brann & Isaacson, Lewiston, Me., Leonard J. Rivkin, Joseph J. Ortego, Stanley Pierce, James R. Ruger, Rivkin, Radler, Dunne & Bayh, Garden City, N.Y., and Michael A. Makulski, Legal Dept., Dow Chemical Co., Midland, Mich., for defendant.
   MEMORANDUM AND ORDER GRANTING PLAINTIFFS’ MOTION TO EXCLUDE EVIDENCE REGARDING PLAINTIFF ROBERT G. GRENIER’S DISCHARGE FROM THE UNITED STATES NAVY

GENE CARTER, District Judge.

Plaintiffs have filed a motion in limine seeking to exclude evidence regarding Plaintiff Robert G. Grenier’s undesirable discharge from the United States Navy in 1952 because of a conviction for breaking and entering and larceny. Defendant opposes this motion on a number of grounds discussed herein.

As threshold matters, Defendant contends that it is unclear from Plaintiffs’ motion whether Plaintiffs seek to exclude evidence of Plaintiff Robert G. Grenier’s undesirable discharge or evidence of his conviction, and further, that Plaintiffs have not presented sufficient documentation of either piece of evidence. However, Plaintiffs’ memorandum in support of their motion discusses the admissibility of both Plaintiff’s conviction and his discharge from the United States Navy, and Defendant has responded to both issues. In addition, the admissibility of the undesirable discharge is, in some part, dependent upon the admissibility of the conviction. For these reasons, the Court will consider the admissibility of both pieces of evidence.

As to Defendant’s contention that the evidence to be excluded is inadequately documented, Plaintiffs have attached a portion of Plaintiff Robert G. Grenier’s deposition in this case, in which he states his conviction was in 1952 for “breaking and entering and larceny.” Plaintiffs’ Memorandum, Exhibit A, Deposition of Robert Grenier, p. 26. Therefore, the parameters of the evidence Plaintiffs seek to exclude by this motion are reasonably clear. Plaintiff’s deposition stating the type of crime resulting in, and date of, his conviction is sufficient documentation for purposes of notice to the Defendant and consideration of the applicable law.

A. Evidence of Plaintiff s Conviction

The pertinent language of Fed.R.Evid. 609 states:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Defendant argues that Rule 609 does not bar admission of Plaintiff’s conviction because 1) Plaintiff’s crime was punishable by a year in prison and judicial discretion to exclude such a conviction under subsection (a) is limited to the protection of criminal defendants, not civil litigants, and 2) subsection (b) is inapplicable if the evidence to be admitted is used for credibility purposes only. Assuming for purposes of argument that Plaintiffs conviction is admissible under subsection (a), that argument does not diminish the time limitation provided in subsection (b).

Defendant cites United States v. Brown, 603 F.2d 1022 (1st Cir.1979), in support of the proposition that subsection (b) is inapplicable in instances in which a conviction is to be used to impeach credibility. However, Brown does not stand for such a proposition. In that case, although the Court affirmed the admission of evidence of the defendant’s prior convictions over ten years old, the Court stated: “Of course, the mere fact that the defendant’s credibility is in issue ... cannot, by itself, justify admission of evidence of convictions over ten years old. Such a rule would make the ten year limit in Rule 609(b) meaningless.” Brown, 603 F.2d at 1028.

In fact, Rule 609(b) requires the exclusion of evidence of a conviction more than ten years old unless its probative value substantially outweighs its prejudicial effect, and establishes a presumption that such convictions should not be received to impeach. 3 D. Louisell, C. Mueller, Federal Evidence 355 (1979). The factors relevant to the Rule 609(b) balancing test include the nature of the crime and the degree of remoteness of the conviction. Id. at 356. In this case the Plaintiff's conviction is extremely remote, the result of a crime committed three and one-half decades ago. Although the First Circuit has indicated that convictions for theft are to be considered crimes of “dishonesty” for purposes of Rule 609(a), United States v. Del Toro Soto, 676 F.2d 13, 18 (1st Cir. 1982), the Court believes that a thirty-four-year-old conviction has little probative value as to the veracity of the Plaintiff at the present time and, therefore, such value cannot substantially outweigh its prejudicial effect.

Defendant argues that Plaintiff’s incarceration may be relevant to the issue of causation in this case, because Plaintiff worked in a quarry crushing rocks during his incarceration and Defendant contends such work may have affected his present health. However, it is possible for the Defendant to introduce evidence of Plaintiff’s work history, if relevant to his current medical condition, without putting in evidence of his conviction. In addition, prison medical records could be introduced with the necessary alterations to avoid their identification as such. Thus, these objections do not persuade the Court that the Defendant will be deprived of evidence relevant to causation because of the exclusion from evidence of Plaintiff's conviction.

B. Evidence of Plaintiff s Discharge from the United States Navy

Plaintiffs contend that this evidence is irrelevant or should be excluded pursuant to Fed.R.Evid. 403 because its unfair prejudice to the Plaintiffs substantially outweighs its probative value.

According to his deposition, Plaintiff Robert G. Grenier was discharged from the United States Navy as a result of his conviction in 1952. Thus, the evidence regarding these issues is closely related. If Defendant is allowed to impeach Plaintiff’s credibility by introducing evidence of his undesirable discharge, it would be on the basis of the same conduct which resulted in Plaintiff’s conviction, and which is inadmissible under Rule 609(b) because it is so remote as to have little probative value regarding Plaintiffs credibility. In addition, Plaintiff would not be able to respond to or explain the undesirable discharge without bringing in evidence of his conviction. Therefore, it is consistent with the intent of Rule 609 to exclude the evidence of Plaintiff's undesirable discharge. The Court believes that this evidence has little probative value, is unnecessarily prejudicial and, therefore, should be excluded under Rule 403.

Again, if the Defendant wishes to do so, it is not prohibited by this ruling from introducing evidence of Plaintiff Robert G. Grenier's medical and work history while he was in the United States Navy without revealing the circumstances or classification of his discharge.

Accordingly, it is ORDERED that the evidence regarding Plaintiff Robert G. Grenier’s discharge from the United States Navy and his conviction in 1952 be, and it is hereby, EXCLUDED from evidence.

      . An "undesirable” discharge was an administrative rather than a punitive discharge, which is now referred to as a discharge under "other than honorable conditions.”

      . Defendant bases this assumption on Plaintiffs statement: “They gave me a year in jail.” Plaintiffs Deposition at 27. Rule 609(a) actually requires conviction of a crime punishable by imprisonment in excess of one year. It is also unclear whether Plaintiffs sentence was cumulative.

      . In Brown, the Defendant was convicted of stealing in violation of 18 U.S.C. §§ 2, 659 after he took the stand in his own defense. The trial court allowed the admission for impeachment purposes of five prior convictions including burglary, third degree burglary, second degree burglary, and petty larceny.

      . The Court notes that most courts which have considered this question have found convictions for theft to be outside the "dishonesty" provision. 3 D. Louisell, C. Mueller, Federal Evidence 337 (1979).