author: JOHN LEWIS SMITH, Jr., District Judge.

text:
    James P. BENVENUTI, Plaintiff, v. DEPARTMENT OF DEFENSE, et al., Defendants.
    Civ. A. No. 81-1803.
    United States District Court, District of Columbia.
    July 18, 1985.

      Bruce J. Ennis, Ennis, Friedman, Bersoff & Ewing, Washington, D.C., for plaintiff.
    Charles F. Flynn, Asst. U.S. Atty., Major Craig P. Niederpruem, Dept, of Army, Office of Judge Advocate General, Washington, D.C., for defendants.
   MEMORANDUM

JOHN LEWIS SMITH, Jr., District Judge.

Plaintiff James P. Benvenuti originally brought this action for monetary, declaratory, and injunctive relief against the United States Department of Defense and Department of the Army, and against seven officers of the Army and Navy in their individual capacities. In an earlier opinion, the Court dismissed all of plaintiffs damages claims, and remanded to the Army Board for Correction of Military Records (Board) for further inquiry before proceeding with plaintiffs claims for declaratory and injunctive relief. Benvenuti v. Department of Defense, 587 F.Supp. 348 (D.D.C.1984). The Board has completed its inquiry and presently before the Court is defendants’ renewed motion for summary judgment.

The facts of this case are set out in detail in the earlier opinion of the Court. Id., at 350-351. For present purposes, however, the relevant facts are that plaintiff was a physician formerly serving on active duty with the Army Medical Corps. Beginning in August 1978, plaintiff began a series of 3 military assignments, each of which led to plaintiff’s performance being questioned followed by reassignment. Finally, in February 1981, plaintiff was reassigned to nonclinical duties. Plaintiff’s performance from May 1980 to February 1981 is the subject of two Officer Evaluation Reports (OER’s) which are at issue in this case.

On February 23, 1981, plaintiff’s commanding officer at Fort Belvoir ordered plaintiff to undergo psychiatric evaluation at the Fort Belvoir Community Mental Health Activity. After a series of psychological tests and interviews, plaintiff was certified as having “no disqualifying mental disease or condition sufficient to warrant disposition through medical/psychiatric channels ...” (Defendants’ Exhibit (DX) D at 86).

On March 13, 1981, plaintiff was ordered to undergo a complete psychiatric evaluation at the National Naval Medical Center (NNMC) in Bethesda, Maryland. On May 19, a NNMC Medical Board diagnosed plaintiff as suffering “borderline personality disorder,” and recommended his administrative separation from active duty status. (DX I at 14). Plaintiff was discharged from NNMC on August 12.

In June, 1981, an Army Promotion Board, on the basis of the OER’s noted above, removed plaintiff from the lieutenant colonel promotion list. (DX C). In July, the Commander at DeWitt Army Hospital recommended that plaintiff not receive Medical Special Pay, and that recommendation was accepted by the Surgeon General in August. (DX E).

On August 18, plaintiff was ordered to undergo further psychiatric evaluation at the Eisenhower Army Medical Center (EAMC), Fort Gordon, Georgia. Plaintiff was admitted to EAMC on September 16. (DX G). On October 24, the EAMC Medical Board, noting that plaintiff had been “referred for evaluation because of inability to perform duties,” diagnosed plaintiff as suffering a “paranoid personality disorder,” and recommended that he be considered for administrative separation from active status. (DX H at 3). Plaintiff was discharged from EAMC on November 16.

In March 1982, plaintiff sought review of the adverse OER’s; his appeal was denied by an Army Special Appeals Board on August 9. On August 16, 1982, plaintiff filed an application with the Board for review of all these matters. The Board denied his application without a hearing on March 30, 1983. (DX A). On November 11, 1982, plaintiff was released from the Army.

As previously noted, the only remaining claims are plaintiff’s claims for declaratory and injunctive relief. These claims basically arise from the circumstances surrounding plaintiff’s 1981 hospitalizations. Plaintiff seeks a declaration that the hospitalizations violated both Army Regulation 600-20, and the Due Process Clause of the Fifth Amendment, and that certain administrative actions, including preparation of two OER’s, and promotion and medical special pay determinations, were improperly affected or “tainted” by the illegal hospitalizations. Plaintiff asks the Court for injunctive relief with respect to expungement of his records, restoration to active duty status, and restoration of medical credentials and special pay.

In remanding these claims to the Board, the Court was specifically “interested in ‘clarification or further inquiry’ with respect to Army regulations governing medical evaluation and hospitalization of personnel on active duty,” Benvenuti, at 356, including a “review of all possibly pertinent regulations” and a determination of “under what circumstances and for what reasons a commander may direct a subordinate to undergo medical evaluation.” Id. at 357. Further, the Court ordered the Board to “consider plaintiff’s constitutional challenge should it remain satisfied that the hospitalizations did not violate any regulations.” Id. The Court suggested that “the Board should solicit advice from the Judge Advocate General on the due process claims advanced by plaintiff.” Id.-

On October 31, 1984, the Board issued a “Memorandum of Consideration” which, after addressing the concerns of the Court, found that the Army did not violate its own regulations nor infringe upon plaintiff’s constitutional rights when it ordered him to submit to psychiatric evaluation. Administrative Record (A.R.) at 7-9. These determinations were in large part based on opinions from the Office of the Judge Advocate General (OTJAG) and the Office of the Surgeon General (OSG) which were incorporated by reference into the Board’s decision. A.R. at 2. The OTJAG opinion, while not performing a fact finding function, presented a legal analysis of applicable Army regulations and outlined varying situations in which Army regulations permit the hospitalization of a serviceman.

The Board relied upon the OTJAG analysis and, in alternative findings, determined that there was ample justification, pursuant to military regulations, for hospitalizing plaintiff. First, the Board found that there was no evidence that plaintiff did not consent to the hospitalizations or contest the various medical procedures, pointing specifically to the absence of any record of complaint filed pursuant to grievance procedures provided by the Joint Commission on Hospital Accreditation Standards. In view of this finding, the Board concluded that plaintiff had implicitly consented to the hospitalizations and no military regulations had been violated.

Alternatively, the OTJAG opinion concluded that, even if plaintiff did not consent to the various hospitalizations, Army regulations authorize a commander to “order the hospitalization of any member of his command or order him to submit to a medical examination when indicated,” without medical board approval, even “if such hospitalization or examination is not ‘necessary to preserve his life, alleviate undue suffering, or protect or maintain the health of others.’ ” See ¶¶ 5-29, Army Regulation 600-20, A.R. at 20. The OTJAG opinion concluded that Army regulations permit psychiatric evaluation and hospitalization to be summarily ordered for determining a soldier’s fitness for duty, so long as the individual was not confined to a “closed ward,” defined as wards which patients are not permitted to leave without escort. A.R. at 21. The Board found that plaintiff’s hospitalizations had been ordered by his commanding officer for determining his fitness for duty and that there was ample foundation to believe that plaintiff had a mental illness which precluded satisfactory duty performance, based in part on plaintiff’s statements that he was subject to electronic surveillance, was being tested with unusual cases by, among others, the CIA, and was performing unprofessionally his clinical duties. A.R. at 8.

The Board also found that plaintiff had not been kept in a closed ward, relying upon comments submitted by the OSG and the Chief, Department of Psychiatry, Walter Reed Army Medical Center that the two hospitals at which the plaintiff was treated did not have “closed” wards as the term is being applied in this case. A.R. at 7, 66. The OSG memorandum concluded that “[tjhere is nothing in the record to indicate that the [plaintiff] was put in seclusion, isolated, or had a loss of individual rights as a matter of routine.” A.R. at 66. This memorandum also indicated that the military had stopped using “closed” wards at the time of plaintiff’s hospitalizations. Id.

The OTJAG opinion, in addressing the constitutional issues, concluded that:

[I]nvoluntary hospitalization and medical evaluation in the military, where dictated by military necessity or required by law or regulation, are constitutionally permissible without the requirement of a hearing, given the compelling need of the Army to ensure that its members are fit for military duty and the enormous administrative burden that would be placed on the Army if hearings were required.

A.R. at 22. The conclusion was reached after careful analysis of the applicable case law and was predicated on the principle that there are “differences between military and civilian life and the constitutional standards to be applied to each.” The Committee for GI Rights v. Callaway, 518 F.2d 466, 474 (D.C.Cir.1975). The Board adopted the OTJAG conclusion. A.R. at 2, 7.

As the Court concluded in its earlier opinion, the scope of its review of the Board’s decision, including plaintiff’s constitutional claims, is governed by the arbitrary and capricious standard. Benvenuti, slip op. at 12-15. No challenge to this decision is mounted in the renewed motion for summary judgment or plaintiff’s opposition. “The scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Manufacturers Association, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). The Court’s role is to determine “ ‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ” State Farm, 103 S.Ct. at 2867 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

The Court finds that the Board’s determination that there was ample justification, pursuant to military regulations, for hospitalizing plaintiff was supported by the evidence and was not arbitrary or capricious. The Board’s conclusion was supported by both the law and the facts. First, the Board properly relied upon the detailed historical analysis of Army regulations governing medical evaluation and treatment of active duty Army members provided by the OTJAG which outlined various scenarios whereby an individual could be ordered to undergo psychiatric evaluation. Second, the Board received factual data involving plaintiff’s hospitalizations from various sources. It learned from the OSG that there was no evidence to demonstrate that plaintiff contested the hospitalizations. The Board was also told by the OSG that closed wards were not used at the two hospitals where plaintiff was treated. The Board pointed to specific facts concerning plaintiff’s unprofessional medical behavior that prompted the first two hospitalizations and portions of the May 12, 1981 NNMC medical reports that led to the third hospitalization at Fort Gordon. In view of the legal and factual foundation relied upon by the Board, the Court cannot say that the Board’s decision was either arbitrary or capricious.

The Court also finds that the Board’s determination that involuntary hospitalization and medical evaluation of military personnel are constitutionally permissible where dictated by the necessity of ensuring members are fit for military duty, and the decision that plaintiff was hospitalized to determine his fitness for military duty, was not arbitrary and capricious. Certainly, in a civilian context, involuntary hospitalizations in non-emergency situations ordinarily are impermissible absent a hearing. See Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980). Courts have recognized that, while military personnel are entitled to constitutional protections, there are “differences between military and civilian life and the constitutional standards to be applied to each.” Committee for GI Rights, 518 F.2d at 474 (holding that warrantless drug inspections of soldiers’ property and person as well as imposing non-medical administrative remedies, including confinement in a live-in/work-out rehabilitation facility, without a hearing is constitutional). The Court is satisfied that the Board has established a military necessity for the involuntary hospitalizations and that the Army need not provide a soldier with a hearing prior to such hospitalizations. “To require the Army to provide a GI with a hearing prior to the imposition of any action which would affect his liberty or property interests would seriously erode the Army’s ability to maintain a disciplined and ready fighting force.” Id. at 479.

Accordingly, defendants’ renewed motion for summary judgment is granted and plaintiff’s motion for summary judgment is denied.

      . The notation DX is used only with those exhibits submitted with defendants' original motion for summary judgment.


source: Caselaw Access Project

author: NICKERSON, District Judge.

license: Public Domain

text:
    UNITED STATES of America, v. Aniello DELLACROCE, John Gotti, John Carneglia, Eugene Gotti, Charles Carneglia, Wilfred Johnson, Anthony Rampino, Leonard Di Maria, Nicholas Corozzo and Armond Dellacroce, Defendants.
    No. 85 CR 178.
    United States District Court, E.D. New York.
    July 18, 1985.

      Raymond J. Dearie, U.S. Atty., Brooklyn, N.Y. (Diane Giacalone, Asst. U.S. Atty., Brooklyn, of counsel), for the U.S.
    Gerald L. Shargel, New York City, for defendant Armond Dellacroce.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

The attorney for the government moves for a pretrial detention order under the Bail Reform Act of 1984 (the Act). 18 U.S.C. § 3141 et seq.

Under the Act, “[u]pon motion of the attorney for the Government,” a judicial officer must hold a hearing to determine whether any conditions will reasonably assure the appearance of a defendant if the case involves, among other things, a “serious risk that the person will flee.” 18 U.S.C. § 3142(f)(2). The Act further states that the

hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days.

18 U.S.C. § 3142(f). If the judicial officer finds by a preponderance of the evidence that no combination of conditions will reasonably assure the appearance of the person, he shall order that person detained under 18 U.S.C. § 3142(e). See United States v. Chimurenga, 760 F.2d 400, 405-6 (2d Cir.1985).

The court is asked to determine (1) whether the attorney for the government made a “motion” at defendant’s “first appearance” before a judicial officer for a detention hearing within the meaning of section 3142(f), and (2) if such motion was made, whether either the government or the defendant sought a continuance at that first appearance. If the government requested a continuance (which cannot exceed three days “[ejxcept for good cause”), the court is asked to determine whether the government sought and the court granted an extension beyond the three days. If the continuance, however, was sought by the defendant, no showing of good cause is required so long as the continuance does not exceed five days. A further question is whether the defendant could and did waive his right to a hearing within the three day period.

The court finds the following. Defendant was arrested in Florida in the early morning hours of Wednesday, July 10, 1985. His first appearance was before Magistrate Patricia Kyle in Florida on July 10, 1985. At that appearance, the Magistrate made clear to defendant and his attorney in Florida, Jeffrey Kaye, that the United States Attorney in this district had applied for a detention hearing. Laurina Snow, the Assistant United States Attorney in Florida, then made a formal application for such a hearing and a request for a three day continuance. Defendant’s attorney then said it was defendant’s desire to have the hearing in this district rather than in Florida on the ground that the only meaningful hearing would be here where defendant’s parents resided.

Ms. Snow informed the Magistrate that the Assistant United States Attorney in charge of the case in this district would be willing to come down to Florida for the hearing. The Magistrate announced that she could hold the hearing on Friday, July 12, 1985. She also said that she would be available to hold the hearing on Monday, July 15, 1985.

Defendant’s attorney reiterated that defendant wished to have the hearing held here and said that defendant would waive removal proceedings if the Magistrate would be willing to obtain an order from a judge directing the Marshal to transport defendant to New York promptly. The Magistrate said she would try to obtain an order to have the defendant brought here in time for a hearing on Tuesday, July 16, 1985, a date she had been informed this court had scheduled for the hearing if defendant were brought from Florida.

After having heard this and consulted with counsel, defendant waived removal proceedings.

This court finds that defendant was given the option of having the hearing held in Florida on Friday, July 12, 1985 or having the hearing held here on Tuesday, July 16, 1985. He chose the latter.

A hearing in Florida on July 12 would have been timely. So too would one held on July 15 since Saturday and Sunday are not to be counted. Fed.R.Crim.P. 45(a). Defendant contends that the hearing was not timely in this district when held on July 16, 1985. He asserts that it should have been held at the latest on Saturday, July 13. He argues that Saturdays (although not Sundays) are to be included in the count, that the hearing was outside the three day continuance the government applied for, and that the government never applied to extend that period for “good cause.”

This court holds that by opting for the hearing in New York on July 16, 1985 defendant may not be heard to argue that it should have been held before that date. In effect he sought a continuance until the later date. Whether his knowing choice be construed as a “motion” for a five day continuance or as a waiver of an earlier hearing makes no difference. If defendant could apply for a five day continuance he could also waive his rights for that period of time. Even assuming arguendo that an accused may not waive his right to a hearing date beyond five days, defendant concedes that July 16, 1985 was within that period (since Sunday is not counted). There is nothing in United States v. Payden, 759 F.2d 202 (2d Cir.1985) inconsistent with the foregoing.

The court holds that a timely hearing has been held, and turns to the merits.

The evidence adduced at the hearing shows the following. When defendant was arrested in Florida, over three months after the indictment was handed up, he was carrying a driver’s license, selective service card, and social security card bearing the name of John Dorme. Defendant persisted in denying that he was Armond Dellacroce and insisted that he was John Dorme, even though the arresting agent repeatedly informed defendant that the agent knew his true identity. Eventually he conceded who he was and said “you got me.” Even at his first appearance before Magistrate Kyle defendant continued to give evasive and untruthful answers as to a variety of matters, including the place where he lived both in New York and Florida.

Defendant had signed a lease for an apartment in Florida and made a downpayment on the rent. A search of that apartment revealed, among other things, two loaded semi-automatic weapons and approximately $3,000 in cash. Telephone records indicate that shortly after the indictment was handed up numerous telephone calls were placed to and from the home of Aniello Dellacroce, defendant’s father and a co-defendant in this case, to and from locations near where defendant was arrested in Florida. Counsel for defendant essentially admitted that defendant was aware of the indictment and chose to go to Florida rather than remain in the jurisdiction.

The inferences are inescapable. Defendant knew that he had been indicted. He chose to become a fugitive and took steps to establish a false identity and new residence for himself in Florida.

The court has considered the factors set forth in 18 U.S.C. § 3142(g) in order 'to determine whether there are conditions of release that will reasonably assure defendant’s appearance. He is charged with violating the RICO statutes (18 U.S.C. § 1961 et seq.). The indictment includes a substantive count and a conspiracy count. If convicted on both counts defendant faces the possibility of receiving a sentence of forty years imprisonment. He is alleged to be a member of, or employed by, or associated with, a segment of the Gambino Crime Family (of which his father is said to be the underboss) and to have participated with others in loan-sharking and gambling operations. Based upon the proffer made by the government, the court concludes that the weight of the evidence against the defendant is considerable.

Although the defendant has no history of employment for the past four years, his financial resources appear to be substantial. In addition to the $3,000 found in his apartment, the government has shown that he spent about that same amount in the weeks immediately preceding his arrest on car rentals, shoes, and downpayments on rent.

Defense counsel suggests that, if the court determines that-release on personal recognizance or unsecured appearance bond will not assure defendant’s appearance, the court release defendant on strict conditions pursuant to section 3142(c). These include a 7:00 p.m. curfew, a requirement that defendant actively seek employment, travel restrictions, reporting daily to pretrial services and by telephone to defense counsel. Defendant has also offered a total of about $100,000 to secure his appearance, which allegedly represents the savings of some of defendant’s aunts and uncles. Defendant does not say he is prepared to post any of his own cash or collateral.

The court finds by a preponderance of the evidence that there is a serious risk of flight and that no condition of or combination of conditions will reasonably assure the appearance of defendant as required in this case. He chose to flee and to attempt to avoid arrest. He was evidently in touch with his father with whom he has close relations and who is apparently in very ill health. Whatever defendant’s father said to him did not result in defendant’s return to answer the charges. The court does not accept defense counsel’s suggestion that defendant’s actions were those of a young man who momentarily panicked. He is thirty years old and not without experience with the criminal courts, as his conviction for criminal contempt shows. The tape of a conversation which led to defendant’s plea of guilty in that case in 1980 portrays a man, even at that date, of considerable sophistication and determination.

The motion of the government is granted, and the defendant is detained. The court directs that the provisions of 18 U.S.C. § 3142(i) be complied with. So ordered.


author: SPRIZZO, District Judge.

text:
    Joseph L. MATHEWS, Plaintiff, v. PUERTO RICO MARITIME MANAGEMENT, INC. as Agents for Puerto Rico Maritime Shipping Authority, Defendant.
    No. 82 Civ. 3597 (JES).
    United States District Court, S.D. New York.
    July 18, 1985.
    Joseph L. Mathews, pro se.
    Dougherty, Ryan, Mahoney, New York City, for defendant; Lawrence J. Mahoney, Thomas L. Tisdale, New York City, of counsel.
   OPINION AND ORDER

SPRIZZO, District Judge.

Plaintiff Joseph L. Mathews (“Mathews”) filed a complaint in this Court on June 2, 1982. Mathews alleged that defendant Puerto Rico Maritime Management, Inc. breached its contract with him and violated state and federal age discrimination laws by refusing to hire plaintiff as “relief bo’sun” on defendant’s ship, the S.S. Fortaleza.

By Order dated January 13, 1984, this Court ruled that plaintiff’s federal claim for age discrimination was legally insufficient because plaintiff was more than seventy years of age at the time defendant refused to hire him, and hence was not covered under the applicable federal law. See Age Discrimination in Employment Act of 1967, § 12, 29 U.S.C. § 631(a) (1982); Hearing Transcript (“Tr.”) at 37. Since an issue was raised as to the Court’s subject matter jurisdiction over plaintiff’s state law claim(s) because it did not meet the monetary requirement of 28 U.S.C. § 1332(a) 1976, and since plaintiff argued that he could meet that requirement, the Court granted plaintiff leave to amend. See Order dated January 13, 1984.

In his amended complaint, filed on January 30, 1984, plaintiff added a second cause of action. Mathews claimed that on June 15, 1983, more than a year after he had filed the instant action, he was awarded the same position on defendant’s ship by the Union, but defendant again denied him a job by reason of his age. Plaintiff claimed the same amount in damages for this subsequent cause of action as for the first; thus, the total amount in controversy asserted in the amended complaint is $15,-756.20.

The Court has now determined that the complaint may not be amended to set forth facts meeting the monetary requirements of diversity jurisdiction where the requisite amount in controversy did not exist at the time the initial complaint was filed. See, e.g., Warren v. Employers’ Indemnity Corp., 3 F.Supp. 221, 222 (N.D.Cal.1933); cf. Field v. Volkswagenwerk AG, 626 F.2d 293, 305 (3d Cir.1980); Church of Scientology of Colorado v. United States, 499 F.Supp. 1085, 1088 (D.Colo.1980); 1 Moore’s Federal Practice § 0.91[3] (2d ed. 1985). However, at the time that the Court directed an amendment of the complaint, there was pendent jurisdiction over the state law claims which arose out of the same facts upon which the federal claim was based. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).

Therefore, the Court may well have pendent jurisdiction over the state law claims set forth in the amended complaint. However, the Court has concluded that it should not exercise pendent jurisdiction over those claims. While it is true that this case has been pending in this Court since June of 1982, there has been virtually no discovery. Thus, the amount of “judicial energy” spent on this case does not weigh in favor of exercising pendent jurisdiction. See, e.g., Rosado v. Wyman, 397 U.S. 397, 403-04, 90 S.Ct. 1207, 1213-14, 25 L.Ed.2d 442 (1970). Moreover, the issues raised here are difficult ones of state law, “upon which state court decisions are not legion.” See Moor v. County of Alameda, 411 U.S. 693, 716, 93 S.Ct. 1785, 1799, 36 L.Ed.2d 596 (1973). Finally, this does not appear to be a case in which an applicable statute of limitations would bar plaintiff’s claim if pendent jurisdiction is not retained. See, e.g., Meyerhofer v. Empire Fire and Marine Insurance Co., 74 F.R.D. 151, 154 (S.D.N.Y.1977).

Plaintiff will therefore suffer no prejudice from the dismissal of his complaint. Moreover, the policy considerations which preclude the assertion of causes of action occurring after a complaint is initially filed in order to increase the amount in controversy for purposes of creating diversity jurisdiction militate against exercising pendent jurisdiction over a complaint which was subsequently amended for that purpose. Cf. Warren, supra, 3 F.Supp. at 222.

It follows that plaintiffs complaint should be dismissed without prejudice to commencing a new action in state or federal court. Should a new complaint be filed in this forum, this Court will accept the new action as a related case. In that event, defendant will have thirty days from the date of the filing of that complaint to either move to dismiss the new complaint or to advise the Court and the plaintiff by letter that it desires to have the Court treat all motions directed to the dismissed complaint as directed to the new complaint. Plaintiff shall file his response within thirty days of the date that defendant either files his new motions or advises the Court by letter, as noted above. Defendant shall reply to plaintiffs response within fifteen days of the date that defendant receives plaintiffs response.

It is SO ORDERED.

      . In his original complaint, plaintiff alleged that defendant had discriminated against him on the basis of his age and breached its collective bargaining agreement with the National Maritime Union of America, AFL-CIO ("Union") by refusing to employ plaintiff as a "relief bo'sun” on the S.S. Fortaleza after plaintiff had successfully competed for the position at the Union hall. Plaintiff claimed damages of $7,878.10 in lost wages for the 60-day relief job.

      . The Agreement between defendant and the Union, plaintiff’s bargaining agent, provides both that defendant shall have the right to establish a mandatory retirement policy at age seventy and that defendant shall not discriminate on the basis of age or any other basis prohibited by law. See Agreement, Def. Ex. A, art. 1, § 8(j) at 23. Accordingly, the Court determined that defendant could only have breached the Agreement if the establishment of a mandatory retirement policy at age seventy is prohibited by law.

      . The Court also finds that § 20 of the Jones Act, 46 U.S.C. § 688(a) (1982), cannot, as plaintiff contends, provide a predicate for this Court’s jurisdiction over his claims because, by its terms, the Jones Act only applies to seamen who suffer personal injury in the course of employment. It does not provide relief to this plaintiff, who has not suffered a maritime tort, since the gravamen of Mr. Mathews’ complaint is that he was illegally denied employment by defendant. See G. Gilmore & C. Black, The Law of Admiralty, § 6-21, at 282 (2d ed. 1975).

      . While it is true that an amended complaint ordinarily supersedes the original and renders it of no legal effect, see, e.g., Washer v. Bullitt County, 110 U.S. 558, 562, 4 S.Ct. 249, 250, 28 L.Ed. 249 (1884), to hold that plaintiff's failure to incorporate the dismissed federal claim in his amended complaint deprives this Court of pendent jurisdiction clearly would be contrary to the principle that allegations in a pro se complaint are held "to less stringent standards than formal pleadings drafted by lawyers,” see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (per curiam), and would unfairly penalize this pro se plaintiff for not arguing that the Court should have exercised pendent jurisdiction at the time the federal claim was dismissed.

      . The only law which seems arguably capable of affording plaintiff the relief he seeks, that of New Jersey, applies the six-year statute of limitations for the exercise of interference with rights under an employment contract to claims of employment discrimination. See, e.g., Skadegaard v. Farrell, 578 F.Supp. 1209, 1214 (D.N.J.1984); (six-year statute of limitation for contractual or other tortious injury, N.J.Stat.Ann. § 2A:14-1 (West 1952), applies to an action for employment discrimination); see also, Leese v. Doe, 182 N.J.Super. 318, 440 A.2d 1166 (Law Div.1981).

      . The Court notes that there may exist some questions as to defendant's "citizenship” which, if and when resolved by the Court upon a sufficient showing by defendant, might serve to defeat plaintiff's attempt to assert diversity jurisdiction in a subsequent federal action.


author: GERALD J. WEBER, District Judge.

text:
    Howard DEAN, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 84-1615.
    United States District Court, W.D. Pennsylvania.
    July 18, 1985.

      Robert Peirce, Pittsburgh, Pa., for plaintiff.
    Anthony Mariani, Asst. U.S. Atty., Pittsburgh, Pa., for defendant.
   OPINION

GERALD J. WEBER, District Judge.

Plaintiff here unsuccessfully applied for Supplemental Security Income under the Social Security Act in May 1983. His application was denied initially and on reconsideration by the Office of Disability Operations of the Social Security Administration. He then appeared before an Administrative Law Judge who determined that he was not disabled because he could perform light work. The Secretary’s decision became final when the Appeals Council affirmed the AU in May 1984. Plaintiff appealed this decision under 42 U.S.C. §§ 1383(c)(3) and 405(g). We now address the parties’ cross-motions for summary judgment.

Plaintiff is 54 years old. He has an eighth grade education. He worked at a body shop from 1955 to 1972, repairing and painting damaged cars. From 1972 to 1981, when he last worked, he was self-employed in the same line of business.

Plaintiff argues that poor health prevents him from working and now keeps him virtually homebound. He suffers from recurrent chest pain caused by angina pectoris, and takes 50-60 nitroglycerin tables per week for relief. Record at 161. He has pulmonary emphysema that causes shortness of breath. Record at 230. He has chronic back pain resulting from osteoarthritis and degenerative disc disease. He has low blood pressure that at times produces light-headedness. He also suffers abdominal pain from a peptic ulcer. Id.

In his opinion, the AU acknowledged that plaintiff suffers from a severe combination of cardiovascular and musculoskeletal impairments. Record at 12. He nevertheless found that plaintiff’s impairments did not meet the requirements listed in the Secretary’s regulations. The AU also determined that, although he could not return to his past work as an auto body repairman, plaintiff had the residual functional capacity for light work.

At his hearing in October 1983, Mr. Dean satisfied his initial burden of showing that he could not return to his former occupation. Auto body repair is considered heavy work. It requires long periods of standing, dexterous use of hand held machine tools, and lifting parts such as fenders, doors, and bumpers weighing 20-100 pounds. The AU agreed that these tasks were beyond Mr. Dean’s abilities. Record at 13. The burden then shifted to the Secretary to show that plaintiff could perform other substantial gainful work which exists in the national economy. See, e.g. Hall v. Secretary of HEW, 602 F.2d 1372 (9th Cir. 1979). William Reed, a vocational expert, assisted the AU at the hearing. Mr. Reed testified that, at the light exertional level, plaintiff would be qualified to work as an auto body repair supervisor. Record at 58. As described above, the AU specifically found that plaintiff had the residual functional capacity to engage in light work. In her brief, the Secretary likewise argues Mr. Dean’s fitness for light work.

Following the hearing, however, plaintiff submitted interrogatories to the vocational expert pinpointing Mr. Dean’s limitations and again requesting an opinion. Record at 234. The expert, after consulting with the Administration’s own experts, changed his mind; Mr. Dean is not capable of working as an auto body repair supervisor, the only light duty job identified for his level of skill. This would eliminate the Secretary’s grounds for concluding that plaintiff can perform light work.

Furthermore, we find fault in the Secretary’s evaluation of the medical evidence. In his opinion, the AU focused on Mr. Dean’s lung and heart disease. This examination did not give sufficient weight to contradictory evidence or to plaintiff’s impairments in combination. Plaintiff’s chronic obstructive lung disease was established by x-rays taken in February 1983 by radiologist J. Mikita. Record at 117. Plaintiff testified that he could walk for no more than 20 minutes before becoming short-winded. Record at 33. The AU isolated this evidence by reciting that “the record is absent of any pulmonary medical findings that establish that claimant lacks the residual functional .capacity for light work activity.” Record at 13. This evidence should have been considered cumulatively with all other evidence.

The AU also relies heavily on the results of a tread mill stress test administered to Mr. Dean in October 1982. Record at 136. The results did not establish the usual signs of heart disease. This test was incomplete, however, because plaintiff developed severe chest pain after four minutes on the tread mill and was forced to stop. His doctor thus labeled the test “non-diagnostic”. Record at 136. A tread mill test in May 1980 produced the same results; Mr. Dean stopped after one minute because of chest pain. Dr. M. Corpuz stated his negative findings, but added that “the workload was grossly inadequate and therefore no interpretation can be rendered.” Record at 159.

Finally, the AU noted the opinion of plaintiff’s treating physician that “Mr. Dean is completely and permanently incapacitated by coronary heart disease, degenerative disc disease, osteoarthritis of the spine, and chronic obstructive pulmonary disease.” Record at 231. This conclusion does not bind the Secretary, 20 C.F.R. § 404.1527, and the AU did not consider it as such. This opinion nevertheless is supported in the record by medical signs and findings. See, e.g. respectively, record at 136, 185-6; 157, 182; and 117. These findings also lend credibility to plaintiff’s subjective complaints of pain. Record at 31-33; 53. Accordingly, we do not find substantial evidence to support the Secretary’s decision and we will reverse.


text:
    Marcia SHELATZ, Mother and Natural Guardian of Kim Newlun, and Kim Newlun, in her own right v. Margaret M. HECKLER, Secretary of Health and Human Services.
    Civ. A. No. 84-119 ERIE.
    United States District Court, W.D. Pennsylvania.
    July 18, 1985.

      R. Charles Thomas, Meadville, Pa., for plaintiff.
    Judith Giltenboth, Asst. U.S. Atty., Pittsburgh, Pa., for defendant.
   OPINION

GERALD J. WEBER, District Judge.

This is an action under the Social Security Act for survivor’s benefits. Plaintiffs are mother and daughter seeking benefits for the daughter for the period from May 1978 to September 1982. Kim Newlun was born January 5, 1965; her parents were divorced the following year. Mrs. Shelatz severed all ties with her former husband, Jerry Newlun, and ultimately remarried. Mr. Newlun died in May 1978. Three of his other dependents immediately applied for and received the maximum amount of survivor’s benefits which could be claimed under his name.

Mrs. Shelatz did not know about his death until November 1982. She obviously thus did not know that others were receiving survivor’s benefits on her former husband’s account. Upon learning of Mr. ■ Newlun’s death, Mrs. Shelatz immediately filed for survivor’s benefits on behalf of Kim Newlun. The Secretary found Ms. Newlun eligible for benefits from May 1982 which were payable in October 1982.

Mrs. Shelatz now seeks to have her daughter declared retroactively eligible for survivor’s benefits from the date of her father’s death. She argues that it is inequitable to deny Ms. Newlun benefits simply because she did not know about her father’s demise. She brought this question before an Administrative Law Judge in September 1983, who denied Ms. Newlun’s eligibility for benefits prior to May 1982. The Secretary's decision became final when the Appeals Council affirmed the AU in February 1984. We now address the Secretary’s motion for summary judgment.

Our standard of review in this case is established by 42 U.S.C. § 405(g): we must affirm the Secretary if her decision is supported by substantial evidence. But this is not a dispute about evidence, as are most appeals under Section 405(g). As plaintiffs’ counsel argued at the hearing before the AU this dispute focuses on whether some exception can be found to the eligibility requirements for survivor’s benefits under the Social Security Act. (Record at 25). Our narrow standard of review is therefore further limited by the deference we owe to the Secretary in clear cases of statutory and regulatory construction.

Our first reference, of course, is the survivor’s insurance scheme of the Act itself. In defining eligibility for survivor’s benefits, Congress has provided that “Every child (as defined in 42 U.S.C. § 416(e)) ... of an individual who dies a fully or currently insured individual if such child— (A) has filed application for child’s insurance benefits, ... shall be entitled to a child’s insurance benefit ...”. 42 U.S.C. § 402(d)(1). We have left out the great majority of the statutory requirements, but the small portion quoted above is decisive in this case. Congress has made the filing of an application for benefits the first condition for eligibility. It is not a condition subject to waiver or modification. See, Coy v. Folsom, 228 F.2d 276 (3d Cir.1955); Johnson v. United States, 572 F.2d 697 (9th Cir.1978). Ms. Newlun appears to have been eligible for benefits anytime after May 1978; the statute, however, simply provides no substitute for the physical act of filing an application. No right to surviv- or’s benefits may accrue at least until that moment. The Secretary decided this issue correctly.

In addition, the six month retroactivity to which Ms. Newlun was. entitled is also limited by the statute. Section 402(j)(l) of Title 42 states:

Any benefit under this subchapter for a month prior to the month in which application is filed shall be reduced, to any extent that may be necessary, so that it will not render erroneous any benefit which, before the filing of such application, the Secretary has certified for payment for such prior month.

Thus, this six month retroactivity applies unless it interferes with the payment of benefits already certified by the Secretary. Ms. Newlun’s benefits were reduced to the extent necessary — to $0 — for the period from May 1982 to October 1982 because the maximum amount of benefits had already been allocated to the deceased’s three other dependents.

Finally, we consider the plaintiffs’ counsel’s suggestion at the ALJ hearing that Ms. Newlun should not be prejudiced by a condition over which she had no control — the absence of contact with her father through which she might learn of his death. Counsel superficially argued for the application of an analogous version of the discovery rule found in tort law. See generally, O’Brien v. Eli Lilly Co., 668 F.2d 704, 705-06 (3d Cir.1981). Any analogy to a tort cause of action, however, is misleading. Tort remedies are intended to make a plaintiff whole for a personal injury he or she has suffered. The common law basis of tort law has allowed courts to fashion rules to help preserve remedies for those who have incurred provable losses. On the other hand, survivor’s benefits are entirely a legislative creation. All the eligibility requirements are set by Congress and Congress has made the filing of an application the first step of eligibility. These benefits are akin to insurance proceeds; they do not compensate the beneficiary for a personal injury. While the outcome seems harsh in this case, it is balanced by the practical advantages to all beneficiaries in efficient administration of the survivor’s insurance program. We find that the Secretary applied the correct standards in limiting Ms. Newlun’s eligibility for survivor’s benefits to May 1982, payable in October 1982.

      . Eligibility for the six preceding months is permitted by the statute. See, 42 U.S.C. 402(j).

      . Plaintiffs' counsel filed no response to the Secretary’s motion though he was granted the opportunity in our October 9, 1984 order.


text:
    William R. FERGUSON, Plaintiff, v. GREYHOUND RETIREMENT AND DISABILITY TRUST, Trustee of the Greyhound Lines, Inc., Welfare Fund for Local 1063 of the Amalgamated Transit Union, Defendant.
    Civ. A. No. 84-1576.
    United States District Court, W.D. Pennsylvania.
    July 18, 1985.
    Vincent Szeligo, Pittsburgh, Pa., for plaintiff.
    Joseph J. Pass, Jr., Pittsburgh, Pa., for defendant.
   OPINION

GERALD J. WEBER, District Judge.

This is an action brought under Employee Retirement Income Security Act, (ERI-SA) 29 U.S.C. § 1132, for recovery of benefits claimed by plaintiff under the terms of the Greyhound Retirement and Disability Trust. It is presently before the court on defendant’s motion for summary judgment.

Defendant first argues that plaintiff’s claim must be dismissed because it is barred by the applicable statute of limitations. Since Chapter 5 of ERISA, 29 U.S.C. § 1132, does not prescribe a limitations period for the bringing of civil actions to recover benefits, defendant argues that this court should apply either the six month limit of Delcostello v. Teamsters, 462 U.S. 151, 172, 103 S.Ct. 2281, 2294, 76 L.Ed.2d 476 (1983), or the thirty day state statute of limitations governing appeals from arbitrator’s awards.

Plaintiff contends that neither of these are the applicable statutory period since Delcostello was a suit for wrongful discharge while this suit solely involves pension rights under ERISA, and the most closely analogous state statute is either the 4 or 6 year limit for contract actions under 42 Pa.C.S.A. § 5525(2) or (8). Alternatively, plaintiff indicates that the court could apply the 3 year limit under Pennsylvania’s Wage Payment and Collection Law, 43 P.S. § 260.1 et seq., or the three to six year period applicable for ERISA actions for breach of fiduciary duty, 29 U.S.C. § 1113.

Characterization of the nature of the claim is key to the selection of an analogous limitations period and is a matter of federal law. International Union, UAW v. Hoosier Cardinal Corporation, 383 U.S. 696, 706, 86 S.Ct. 1107, 1113, 16 L.Ed.2d 192 (1966).

This is an action for recovery of benefits due under the terms of an employee pension benefit plan. Complaint at p. 1. The plan in question is in written form and is attached to defendant’s motion for summary judgment. The procedure under the plan for submission of a benefit and for the appeal of the denial of that claim are not analogous to a labor-management arbitration proceeding. Neither does this complaint challenge the terms of the collective bargaining agreement, or assert wrongful discharge or breach' of a duty of fair representation. As such, the claim is not anal-, ogous to an arbitration proceeding or a labor law claim and is distinguishable from Delcostello. We believe that the claim is most analogous to contract law. See Jenkins v. Teamsters, 713 F.2d 247, 252 (7th Cir.1983); Livolsi v. City of New Castle, Pa., 501 F.Supp. 1146 (W.D.Pa.1980). Under Pennsylvania statute of limitations pertaining to contract law, the claims filed 9 months after the statute began to run, were timely.

Defendant next argues that the Trustees’ decision denying plaintiff disability benefits was not arbitrary and capricious as a matter of law. Under Section 4 of the disability plan, the Trustees have broad powers to make and enforce rules and regulations for the administration of the Plan and to determine questions of coverage and eligibility for plan benefits. A court’s scope of review of decisions in these matters by the Trustees is limited to a determination of whether that decision was arbitrary and capricious. Struble v. New Jersey Brewery Employees Welfare Trust Fund, 732 F.2d 325, 333 (3d Cir.1984); Bowman Transportation Inc. v. Arkansas Best Freight System, Inc. et al., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). In this case, the trustees had a medical report from Dr. Zernich, whom defendant contends was a neutral mutually agreed-upon medical arbitrator, which report indicated that plaintiff could return to work. Defendant insists that the Trustees’ reliance on that report in denying plaintiff’s benefits cannot be said to have been arbitrary or capricious.

Plaintiff acknowledges the broad powers of the trustees and this court’s limited scope of review, but contends nonetheless that the trustees’ decision was arbitrary and capricious. In support of this argument, plaintiff argues that Dr. Zernich’s finding is only one factor to be considered by the trustees, and that all other evidence supports a finding of disability and this evidence was disregarded by the trustees. Plaintiff indicates that:

1) he is currently under the care of two doctors, both of whom have advised him that he is physically unable to work at any occupation (Ferguson Affidavit, 111).
2) on July 29, 1982, an impartial Administrative Law Judge found plaintiff to be disabled as of May 11, 1981 as defined by the Social Security Act which contains a stricter standard of disability than that contained in the plan in question;
3) the Pennsylvania Workers’ Compensation Bureau found plaintiff to be disabled after a hearing on April 21,1983 where Dr. Zernich’s findings were subject to cross-examination (Ferguson Affidavit, ¶ 6);
4) the medical examination performed by Dr. Zernich in August, 1982, was conducted in an incomplete and perfunctory manner (Ferguson Affidavit, ¶ 5);
5) neither plaintiff nor Joseph O’Shea of the local union agreed to Dr. Zernich serving as the medical arbitrator (Ferguson Affidavit at 11 3). Plaintiff believes that these issues raise at least a disputed issue of fact as to whether the trustees’ decision was arbitrary.

In determining whether the plaintiff has in fact raised a material issue of fact,for trial as to the arbitrary nature of the trustees’ decision, we must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment ... ”. Bowman Transportation, Inc., 419 U.S. at 285, 95 S.Ct. at 442.

Plaintiff has no doubt established that given the same information about relevant factors, other administrative bodies (i.e. the Social Security Administration and Workmen’s Compensation Board) using more stringent standards have decided differently. While this does not determine that the trustees’ decision was clearly erroneous or irrational, it does present facts from which an inference could be drawn that the decision was not based on a consideration of the relevant factors. There is also a question of fact as to the nature of the medical arbitration proceedings. Plaintiff raises some question as to whether Dr. Zenich actually functioned as a medical arbitrator who made a decision based on the entire record, or whether he functioned as a physician providing an additional medical opinion to the trustees. Plaintiff has also shown by affidavit that, to his knowledge, cases such as his (i.e. cases involving similar injuries in which there is no conflicting medical information on application to the trustees for disability benefits) were not referred to arbitration under the collective bargaining agreement, raising an inference that his claim was handled in an inconsistent or arbitrary manner. For these reasons we conclude that plaintiff has raised genuine issues of material fact to be tried. Defendant’s motion for summary judgment will be denied.

An appropriate order will issue.

      . Plaintiff advances a further argument that the burden of justifying the trustees' action is shifted to the trustees since plaintiff alleges that he can demonstrate that the trustees’ denial of his request for benefits was facially inconsistent with prior plan practice. Plaintiff relies on Fine v. Semet, 514 F.Supp. 34 (D.C.Fla.1981), aff'd 699 F.2d 1091 (11th Cir.1983) as authority. We believe that this is an argument to be advanced at trial after proper demonstration of the facts alleged.


author: NANGLE, Chief Judge.

text:
    Gary WHITE, Plaintiff, v. John J. WALSH, Administrator of the Estate of Robert J. Walsh, Deceased, Defendant.
    No. 79-784C(1).
    United States District Court, E.D. Missouri, E.D.
    July 19, 1985.

      Larry B. Luber, St. Louis, Mo., for plaintiff.
    Edward S. Meyer, St. Louis, Mo., for defendant.
   MEMORANDUM

NANGLE, Chief Judge.

Plaintiff Gary White brought this action under 42 U.S.C. §§ 2000a, 1983 and 1985, against the administrator of the estate of the attorney who defended him against criminal charges. Plaintiff alleges that his attorney, Robert J. Walsh conspired with the prosecutor, the trial judge, the court reporter and the deputy sheriff to deprive him of certain constitutional rights on the basis of his race.

This case was tried to the Court sitting without a jury. The Court having considered the pleadings, the testimony of the witnesses and the documents in evidence, and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 52.

A. FINDINGS OF FACT

1. Plaintiff Gary White is a black, male resident of Missouri.

2. Defendant John J. Walsh is a resident of the State of Missouri and is the duly appointed administrator of the Estate of Robert J. Walsh, deceased.

3. Robert J. Walsh, deceased, was a private attorney who was appointed to represent plaintiff in Cause No. 74-2107-B in the Circuit Court of the City of St. Louis, Missouri.

4. Plaintiff Gary White was convicted on October 14, 1975, of the offense of robbery in the first degree by means of a dangerous and deadly weapon and was sentenced to 25 years in the Missouri Department of Corrections. On April 5, 1977, the Missouri Court of Appeals affirmed the conviction in all respects. State v. White, 549 S.W.2d 914 (Mo.App.1977). Plaintiff actually served eight years with the Department of Corrections for this conviction.

5. Robert J. Walsh, deceased, represented Gary White in both the trial leading up to the conviction and in the appeal which followed.

6. Daniel Murphy is a resident of the State of Missouri and was the Assistant Prosecuting Attorney who represented the State of Missouri in the criminal trial of Gary White.

7. Nancy Kutta is a resident of Missouri and was the Official Court Reporter in Division 21 of the Circuit Court of the City of St. Louis, State of Missouri, during plaintiffs criminal trial. Ms. Kutta also prepared the transcript of Cause No. 74-2107-B.

8. Edward Havlik is a resident of the State of Missouri, and a Deputy Sheriff for the City of St. Louis. He was assigned to Division 21 of the Circuit Court of the City of St. Louis during plaintiffs criminal trial.

9. Judge Lackland Bloom is a resident of the State of Missouri. He was the Presiding Judge, Division 21, of the Circuit Court of the City of St. Louis, and presided over the trial of Gary White in Cause No. 74-2107-B.

10. Plaintiff Gary White was present during the entire voir dire examination of the jury panel in his criminal trial. It was the policy of Judge Bloom to require the presence of all criminal defendants during voir dire examination and to order their removal from the courtroom when the attorneys prepared the actual jury lists and exercised their strikes. Judge Bloom did not deviate from this policy in the case of Gary White’s. Mr. White was not removed from the courtroom prior to the completion of voir dire.

11. Attorney Walsh never discussed his strikes with Judge Bloom or with Prosecutor Murphy.

12. An all Caucasion jury was selected to judge plaintiff’s case.

13. The only evidence offered by plaintiff in support of his claim that his arrest was unlawful was his own testimony that he did not receive a lineup and that he was identified by the victim at the scene in an unduly suggestive manner. Neither Attorney Walsh, Prosecutor Murphy nor Judge Bloom acted to conceal any facts concerning plaintiff’s arrest, however.

14. The only evidence presented by Gary White in support of his contention that Walsh was instrumental in suppressing testimony favorable to him and in denying him access to a necessary witness, was his own testimony. Mr. White told this Court that he communicated a desire to have his co-defendant, Amos Ingram testify, and that Mr. Ingram did not testify. In addition, White asserts that the victim did not immediately identify him at a preliminary hearing. The transcript of the preliminary hearing was not available, however, at the time of trial. There is no evidence that Walsh was responsible for the unavailability of the preliminary hearing transcript.

15. Nancy Kutta did not prepare a transcript which falsely reflected plaintiff’s presence during jury selection. Nor were plaintiff’s objections omitted from the transcript. Ms. Kutta did not rearrange the order of testimony within the transcript, and she did not misquote plaintiff.

16. Robert Walsh failed to notify plaintiff that the Missouri Court of Appeals affirmed his conviction on appeal.

B. CONCLUSIONS OF LAW

This Court has jurisdiction in this case pursuant to 28 U.S.C. §§ 1331 and 1343. The evidence presented by plaintiff at the trial was offered to establish that his attorney, Robert J. Walsh, participated in four separate conspiracies relating to plaintiff’s criminal trial. Plaintiff asserts that he was discriminated against on the basis of race, and was deprived of several constitutional rights including rights guaranteed by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States as a result of his attorney’s actions. He brings this action pursuant to 42 U.S.C. §§ 1983, 1985 and 2000a.

Defendant Walsh first argues that the doctrine of collateral estoppel serves as a bar to the allegations contained in Count II. In Count II, plaintiff alleges that Robert Walsh, Daniel Murphy and Judge Lackland Bloom conspired to conceal an unlawful arrest, suppress testimony favorable to plaintiff, and deny plaintiff the opportunity to present a necessary witness. Plaintiff maintains that his arrest was unlawful because the identification procedures employed were too suggestive. He argues that the testimony of his co-defendant, Amos Ingram was suppressed and would have been favorable to him. Amos Ingram is the necessary witness which plaintiff likewise refers to in Count II of the complaint. On direct appeal, the Missouri Court of Appeals held that the identification procedures used against plaintiff were not unduly suggestive, and that the refusal of the court to allow the testimony of Amos Ingram was not error. State v. White, 549 S.W.2d at 917-18.

It is well settled that collateral estoppel may bar the relitigation of constitutional claims in civil rights actions when they are fully and fairly litigated in a prior state criminal proceeding. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Tyler v. Harper, 744 F.2d 653, 655 (8th Cir.1984). In determining whether to apply collateral estoppel, the Court must consider whether (1) the issue decided in the prior adjudication is identical to the issue in the present action; (2) that prior adjudication resulted in a judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party or in privity with the party to the prior adjudication; and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit. Oates v. Safeco Insurance Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979); Retirement Board of the Police Retirement System v. Noel, 652 S.W.2d 874, 877-78 (Mo.App.1983). The only factor which is in dispute is whether the issues decided by the Missouri court are identical to those raised by plaintiff in Count II.

This Court concludes that the issues are identical and that collateral estoppel does serve as a bar to the claims raised by plaintiff in Count II. The Missouri Court of Appeals determined that plaintiff’s asserted reason for an unlawful arrest, the identification procedures employed, did not in fact render his arrest unlawful. In addition, the court held that plaintiff’s constitutional right to a fair trial was not violated by the failure of the court to allow Amos Ingram to testify. The issues presented by the Court of Appeals are integral to resolving the question at hand. There cannot be a conspiracy to conceal an unlawful arrest or to suppress testimony favorable to plaintiff in the absence of an unlawful arrest or a right to present such favorable testimony. Thus, this Court holds that collateral estoppel bars Count II of plaintiff’s complaint and defendant is entitled to judgment on this claim.

With respect to the remainder of the claims, the focus of plaintiff’s complaint is that Robert Walsh conspired with various officials to deprive plaintiff of his constitutional rights in violation of 42 U.S.C. § 1985. In order to sustain a cause of action under this section, however, plaintiff must prove the existence of a conspiracy. Doherty v. American Motors Corp., 728 F.2d 334, 339 (6th Cir.1984); Occhino v. Northwestern Bell Telephone Co., 675 F.2d 220, 225 (8th Cir.1982), cert denied 457 U.S. 1139, 102 S.Ct. 2971, 73 L.Ed.2d 1358 (1982). A conspiracy is “a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means.” The principle elements of the offense are an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage. Mizokami Brothers of Arizona, Inc. v. Mobay Chemical Corp., 660 F.2d 712, 718 n. 8 (8th Cir.1981). See also Rotermund v. United States Steel Corp., 474 F.2d 1139, 1145 (8th Cir.1973). Civil conspiracy claims thus rest upon the underlying substantive wrong. Mizokami, 660 F.2d at 718 n. 8.

This Court concludes that plaintiffs evidence falls far short of establishing a conspiracy under 42 U.S.C. § 1985. His own witnesses, Judge Lackland Bloom, Nancy Kutta, Daniel Murphy and Deputy Sheriff Havlik each verified that they did not formulate an agreement to inflict injury upon Gary White. Plaintiffs sole evidence in support of his claim is his own testimony, as his other witnesses failed to corraborate his assertions. Plaintiff testified that he was removed from the courtroom sometime during the jury selection process and returned to find an all white jury; that voir dire, opening statements and closing arguments were omitted from the original transcript; that discussions made in chambers were excluded from the transcript; that the court number assigned to the case on appeal was changed; that plaintiffs objections were not properly recorded; that Amos Ingram was not allowed to testify; that Attorney Walsh did not have a copy of the preliminary hearing transcript during plaintiffs trial; that all of the issues contained in plaintiffs motion for new trial were not included in Mr. Walsh’s appellate brief; that Mr. Walsh had no further contact with plaintiff following the conviction; that Mr. White was not guilty because his co-defendant was released; that plaintiff did not receive a lineup and the identification at the scene was unduly suggestive; that a warrant for plaintiff’s arrest was not issued until nine days after his arrest; that the trial court did not hear Mr. White’s pre-trial motions until immediately prior to the trial; that the transcript inaccurately reflects plaintiffs presence during the trial; and that the co-defendant was not convicted. This evidence does not establish even the inference of a conspiracy between the various officials named by Mr. White, however.

This Court also concludes that plaintiff is not entitled to relief under § 1983 or § 2000a. Plaintiff was not deprived of any right or privilege guaranteed by the Constitution or the laws of the United States, and there is no evidence that he was discriminated against on the basis of race. There is no indication that Robert J. Walsh, Sheriff Havlik or Judge Bloom caused plaintiff to be removed from the court during the jury selection proceedings in violation of plaintiff’s constitutional rights. He was present during voir dire examination. Attorney Walsh and Daniel Murphy did not conspire to select an all white jury. Furthermore, Nancy Kutta, Daniel Murphy and Robert J. Walsh did not conspire to sign a transcript which was false. Nor did Prosecutor Murphy act to discriminate and to conceal an unconstitutionally selected jury.

Finally, although this Court held that Count II is barred by the doctrine of collateral estoppel, plaintiff has not established that Attorney Walsh, Daniel Murphy or Judge Lackland Bloom conspired to conceal plaintiffs unlawful arrest to suppress testimony favorable to plaintiff or to deny plaintiff a necessary witness. Thus, Count II must fail for lack of proof as well.

For these reasons, plaintiff has not established a right to damages against defendant. The evidence was extremely weak and the Court deems the action to be frivolous. Not only was this Court compelled to expend time on plaintiffs evidence, but state judicial resources were at stake, as well. A judge, a prosecuting attorney, a sheriff and a court reporter all made their appearances. This case represents a prime example of the wasteful use of judicial resources.


author: ROBERT D. MORGAN, District Judge.

text:
    Charles R. CHRISTIANSON and International Trade Services, Inc., Plaintiffs, v. COLT INDUSTRIES OPERATING CORP., a Delaware corporation, Defendant.
    Civ. A. Nos. 84-4056, 83-4072.
    United States District Court, C.D. Illinois.
    July 19, 1985.
    Stuart R. Lefstein, Rock Island, 111., John C. McNett, Spiro Bereveskos, Indianapolis, Ind., Richard I. Fine, Los Angeles, Cal., for plaintiffs.
    Anthony M. Radice, Joseph C. Markowitz, Kim J. Landsman, New York City, John V. Patton and James D. Mowen, Moline, 111., Robert L. Harmon, Chicago, 111., for defendant.
   FINAL JUDGMENT ON LIABILITY

ROBERT D. MORGAN, District Judge.

This case was before this court on the pleadings, including cross-motions for summary judgment. Plaintiffs, Charles R. Christianson and essentially his corporation, International Trade Services, Inc., filed a complaint against Colt Industries Operating Corp. (Colt Industries) for damages, injunctive and equitable relief, for injuries resulting from Colt Industries’ violations of the antitrust laws (Count I) and amended it to include a count for intentional wrongful interference with business relations by Colt Industries and requesting actual and punitive damages (Count II). Colt Industries denied violations and asserted numerous counterclaims and affirmative defenses. Plaintiffs denied Colt Industries’ counterclaims and asserted affirmative defenses. Patent infringement is not an issue in this case. This court has jurisdiction over the subject matter of this action and the parties before it under 28 U.S.C. § 1332 and 15 U.S.C. §§ 4, 15 and 26. Venue in this district is proper under 28 U.S.C. § 1391(b) and (c) and 15 U.S.C. § 15.

Based on the motion papers and accompanying briefs and the representations of counsel at a hearing, all matters alleged in plaintiffs’ complaint and those matters in defendant’s counterclaims raised in the motion papers were considered by the court to be placed before it for ruling, and therefore the court has considered and has duly ruled upon the same as a matter of summary judgment upon undisputed material facts.

This court’s decision is based upon the pleadings, the depositions, answers to interrogatories and admissions on file, together with the affidavits and other evidence presented, the briefs, arguments, and this court’s interrogation of counsel at a hearing. Among the material considered was live testimony before this court in Colt Industries v. Springfield Armory, Inc., et al., Civil Docket No. 83-4072, with which this cause was heretofore consolidated. That testimony was identified by the transcript portions provided as exhibits to the instant motion.

This court has determined that summary judgment is appropriate as indicated in this court’s Memorandum Decision and Order entered on May 24, 1985, 609 F.Supp. 1174 which Memorandum is incorporated herein.

IT IS THEREFORE ORDERED AND ADJUDGED that:

1. There having been injury to plaintiffs’ business and property, a trial shall be held, as subsequently scheduled by this court, to determine the amount and types of damages to which plaintiffs may be entitled, and such other matters as may remain to be resolved by trial.

2. A hearing shall be held after such trial to determine the amount of attorneys’ fees and interest and costs to which plaintiffs may be entitled.

3. The disclosures made in Colt’s M-16 patents are insufficient to satisfy either the enablement or best mode requirements of 35 U.S.C. § 112. Accordingly, the following patents were invalid from their inception:

3,236,155; 3,292,492; 3,301,133; 3,336,-011; 3,440,751; 3,453,762; 3,619,929; 3,771,415; 3,977,296.

4. In view of Colt Industries’ wrongful retention as its trade secrets of information that it should have disclosed, under 35 U.S.C. § 112, 1st paragraph, in its M-16 patents, so that others could have made and used the M-16 inventions for use with the M-16 (all references herein to M-16 are intended to include its various versions such as the M-16A1 and the M-16A2, where the context permits), such information is hereby declared void and unenforceable as trade secrets. Colt Industries’ monopolization of the M-16 market and sub-markets and agreements in restraint of trade in connection with its suppliers and distributors require injunctive relief for an adequate remedy.

5. Though some of -the M-16 trade secrets did not directly have to be disclosed in the patents for various reasons of timing and subject matter, in order to best place the public in a position it would have been in but for the wrongful acts of Colt Industries, and provide for proper competition, it is hereby declared that all trade secrets in technical information relating to the M-16, which came into existence prior to the entry of this order, are hereby declared void and unenforceable.

6. To the extent that any of the counterclaims in the action remain unresolved, and in accordance with Rule 56(d) of the Federal Rules of Civil Procedure, it is determined that the invalidity and unenforceability of any and all of Colt Industries’ trade secrets in technical information relating to the M-16 which were in existence prior to the entry of this order, is taken as conclusively established with respect to all subsequent proceedings in this case.

7. Colt Industries, its officers, agents, servants, employees, attorneys, and those entities in active concert or participation with them (who receive actual notice of the order by personal service or otherwise) are hereby enjoined from asserting or seeking to enforce, in any manner which would impede or interfere with plaintiffs in their businesses or employment, any form of trade secret right in any technical information relating to the M-16 wherein such information was in existence prior to the entry of this order.

8. Colt Industries is directed to preserve until June 1, 1989, such technical information relating to the manufacture of the M-16 which was in existence prior to the entry of this order, and to provide it to either plaintiff upon request within 30 days of such request. Colt Industries may charge a reasonable and customary fee for copying charges for handling of any such request.

9. On documents or drawings which Colt Industries hereafter distributes bearing technical information in existence prior to the date of this order and relating to the M-16, Colt Industries shall insure that no proprietary stickers and/or Colt Industries’ confidentiality designations shall be used in connection with potential customers or suppliers of plaintiffs in a fashion which would indicate that any such technical information could be protectible as a trade secret.

10. Colt Industries shall serve a copy of this Order upon all potential customers or suppliers of plaintiffs which Colt Industries has within the past four years:

a. licensed M-16 trade secrets,
b. threatened enforcement of M-16 trade secrets, or
c. sent letters claiming rights in M-16 trade secrets for the past four years.

11. Colt Industries’ Fifth and Sixth counterclaims are hereby dismissed with prejudice. Pursuant to Rule 54(b), this court determines there is no just reason for delay and directs the entry of final judgment in favor of Christianson and ITS and against Colt Industries on said claims, and judgment is hereby entered accordingly.

12. Final judgment is hereby entered as to plaintiffs’ claims for liability on Counts I and II of plaintiffs’ complaint in favor of plaintiffs against defendant.

13. The court is of the opinion that this judgment involves a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from this entire judgment may materially advance the ultimate termination of the litigation.


text:
    COMPETEX, S.A. (in liquidation), Plaintiff, Judgment Creditor, v. Ronald LABOW, Defendant, Judgment Debtor.
    No. 81 Civ. 2550 (JES).
    United States District Court, S.D. New York.
    July 22, 1985.

      Orans, Elsen & Lupert, New York City, for plaintiff, judgment creditor; Sheldon H. Elsen, Gary H. Greenberg, Steven M. Gold, New York City, of counsel.
    Olshan Grundman & Frome, New York City, for defendant judgment debtor; David Parker, David M. Levy, New York City, of counsel.
   OPINION & ORDER

SPRIZZO, District Judge.

On March 16, 1981, plaintiff Competex obtained a final judgment in England, requiring defendant LaBow to pay plaintiff 187,929.82 English pounds. Defendant never paid that judgment. As a consequence, on April 28, 1981, plaintiff brought a diversity action in the United States District Court for the Southern District of New York to enforce the English judgment. At the bench trial of this action held on October 4-5,1983, defendant made numerous arguments before Judge Werker as to why the English judgment should not be enforced.

Judge Werker rejected all of these arguments and converted the English judgment “to United States dollars at the exchange rate prevailing on March 16, 1981,” the date of the final English judgment. See Competex, S.A. v. LaBow, No. 81 Civ. 2550 (HFW), slip op. at 11 (S.D.N.Y. October 17, 1983). This sum amounted to $413,445.60, plus interest and costs. See id,. In so doing, Judge Werker followed New York law, which applies the breach-day rule. Id. at 10. Prior to the entry of this United States judgment, defendant did not tender an amount sufficient to satisfy the English judgment in pounds. LaBow’s appeal to the Second Circuit was dismissed in March of 1984.

On July 19, 1984, plaintiff sought provisional remedies under New York law to enforce the United States judgment entered by Judge Werker, which was filed on February 10, 1984. In resisting plaintiff’s application for provisional remedies, La-Bow contended that he was entitled, as a matter of law, to satisfy the United States judgment by the payment of the English judgment in pounds. In so doing, LaBow relied upon In re James, 248 N.Y.1, 161 N.E. 201 (1928).

However, the James case does not support defendant’s argument. In that case, the facts presented were the converse of the situation in the case at bar. The plaintiffs in James had first obtained a United States judgment and then, when executions upon a New York “Surrogate’s Court” decree were returned unsatisfied in the United States, sought the enforcement of that judgment by means of a proceeding instituted in France. See id. at 4, 161 N.E. 201. After a French judgment had been obtained in francs and paid by the defendant executrix, the issue presented to the New York State Court of Appeals was whether or not the defendant had satisfied her obligation under the American decree by the payment of the French judgment in francs. Id.

The court in James held, notwithstanding the depreciation of the franc in its relationship to the dollar since the date of the French judgment, that the French judgment created an obligation payable in francs. Id. at 4-6, 161 N.E. 201. Thus, the judgment creditors were obliged to accept payment in francs in satisfaction of the French judgment. The language employed by the James court is especially applicable to this case. The court stated:

[The French judgment] directed execution of the American judgment by the payment of 2,303,248.59 francs and not otherwise. The debtor has obeyed that command and has handed the last centime to her creditors. If the franc had risen to twice its value instead of shrunk to half she would have been bound by the same inexorable decree. She was obliged to pay that certain number of francs without regard to their value. After the translation of the judgment [from dollars into francs], her liability was in francs alone.

Id. at 5-6, 161 N.E. 201.

The James case, which is part of the substantive law of New York which must be applied in this diversity action, thus supports plaintiff’s contention that the United States judgment must be paid in dollars. If a plaintiff can be forced to accept French francs in satisfaction of a French judgment which had converted an American judgment from dollars into francs, it follows that a plaintiff may properly insist on being paid in United States dollars when an English judgment has been converted from pounds into dollars.

In this case, defendant argues that, under James, a defendant judgment debtor has the option, depending upon currency fluctuations, to either pay the English judgment in pounds or the United States judgment in dollars. However, that analysis flatly contradicts the court’s reasoning in James, which clearly reflects the view that, in enforcing judgments, courts should, as a matter of policy, be indifferent to currency fluctuations. See id. at 6, 161 N.E. 201 (and cases cited therein).

Defendant also relies upon numerous cases which hold that, where an obligation is payable in a foreign currency, a defendant is entitled to satisfy that obligation in that currency. See, e.g., Transamerica General Corp. v. Zunino, 82 N.Y.S.2d 595 (Sup.Ct.1948). The Court does not dispute the soundness of that proposition, which, if anything, undermines defendant’s argument. A United States judgment is an obligation payable in dollars and therefore is satisfiable only in dollars. While it is true that the English judgment which formed the underlying basis for the United States judgment could have been satisfied in pounds, it does not follow that a United States judgment payable in dollars can be similarly satisfied.

Nor is this result unfair to defendant. Prior to the entry of the United States judgment, defendant had the option of satisfying the English judgment by paying it in pounds. He chose not to do that, but rather to litigate whether or not that English judgment debt should be incorporated in a United States judgment. He had a full day in court on that issue and lost. Having failed to take advantage of the opportunity to abate the United States action by paying the English judgment in pounds, he cannot now complain of being required to satisfy the United States judgment in dollars.

The defendant makes much of the fact that the English judgment did not merge into the United States judgment. Even assuming, as the Court must, that a United States court, in entering a United States judgment, does not have the power to affect the continuing validity of the English judgment, it is equally true that the satisfaction of the English judgment does not render unenforceable an obligation imposed by and existing under the laws of the United States.

Plaintiff relies heavily on the ALI’s draft, dated April 12, 1985, of a proposed section 823 of the new Restatement of Foreign Relations Law of the United States, which generally reflects, as a matter of policy, that a defendant debtor should not profit by his failure to timely pay his debt. See Exhibit to Letter of Sheldon H. Elsen, dated May 14, 1985. However, in a diversity case, the Court is not free to disregard New York law and to follow the Restatement view, in the absence of some indication that the courts of New York would not currently adhere to the James case. See Vishipco Line v. Chase Manhattan Bank, N.A., 660 F.2d 854, 865 & n. 7 (2d Cir.1981), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982); cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

In any event, the result reached here, although it flows from an application of the James case, and not the Restatement itself, is not inconsistent with the policy expressed in the Restatement.

CONCLUSION

Defendant’s motion for relief from the Judgment and Orders of Judge Werker, brought pursuant to Fed.R.Civ.P. 60(b), is denied. Plaintiff’s motions to compel installment payments and withholding of salary from defendant are granted pursuant to the terms of a separate Order.

It is SO ORDERED.

      . In a subsequent memorandum decision dated January 20, 1984, Judge Werker granted the Rule 56(g) motion of plaintiff Competex, and awarded plaintiff legal fees and expenses in the amount of $66,349.48.

      . On December 10, 1984, LaBow paid 266,448.13 English pounds to Competex, which represented the sum of the 1981 English judgment plus interest. Competex accepted such payment with an express reservation of its right to pursue remedies for the balance of the judgment entered by Judge Werker, less the U.S. dollar equivalent of LaBow’s December 10, 1984 payment. LaBow also paid $71,406.68, a sum representing Judge Werker’s award of attorney's fees and expenses, plus interest, in escrow to Competex’s attorneys pending further Order(s) by this Court. Following oral argument on May 24, 1985, the Court ordered that these escrow funds, plus interest, be released to plaintiff for disbursement pursuant to Judge Werker’s memorandum decision and Order of January 20, 1984.
      On July 19, 1984, counsel for plaintiff moved for: (1) an Order pursuant to CPLR §§ 5205 and 5226 compelling LaBow to make specified installment payments to Competex; and (2) "an [0]rder pursuant to CPLR § 5231 compelling [LaBow’s employer] Neuberger and Berman to withhold ten per cent of LaBow’s salary to satisfy [first] a pending income execution and [then] Competex’s income execution____” See Def. Notice of Motion at 1. At a Pre-Trial Conference held on June 21, 1985, the parties agreed, in lieu of a hearing and decision by the Court on these issues, to submit a proposed Order which, in accordance with the Court’s oral rulings of June 21, 1985, would set out a payment format.
      Plaintiff's motion was first heard by this Court in Part I on August 3, 1984. On August 1, 1984, defendant filed a memorandum of law ("Def. August 1 Memo") in opposition to plaintiff's motion, in which defendant also "respectfully requested that this Court clarify the judgment [by Judge Werker], pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, to make explicit Mr. LaBow’s right to satisfy it by payment in full of the original, underlying English judgment plus this Court’s award of fees and disbursements.” See Def. August 1 Memo at 3.

      . Indeed, as this language reflects, James may well stand for the proposition that any liability in dollars was extinguished when the French judgment was obtained, a view with which the Court does not necessarily concur.

      . Defendant LaBow has urged that this Court accept his contentions that "the James case is controlling authority on this motion,” that "[t]he James case is directly applicable here," and that “the majority decision is still good law.” See Def.Supp. Memo at 15-16 (filed January 4, 1985). This Court agrees with defendant in this regard, but disagrees with defendant's analysis of the proper application of James to this case.

      . The French exequatur proceeding was recognized in James “as nothing more than an execution of a judgment rendered in a foreign jurisdiction.” See James, supra, 248 N.Y. at 4-5, 161 N.E. 201.

      . The Court is not persuaded by plaintiffs contention that the James case is not properly reflective of New York law. Nor is that case unsound in principle. In fact the Court agrees with the James court that the enforceability of a judgment in the currency in which it is payable should not depend upon whether a creditor or debtor benefits or loses as a result of currency exchange fluctuations. See James, supra, 248 N.Y. at 6, 161 N.E. 201.


text:
    Wallace C. MOESSMER, Plaintiff, v. UNITED STATES of America, et al., Defendants.
    No. 83-1050C(1).
    United States District Court, E.D. Missouri, E.D.
    July 22, 1985.

      Edward V. Ward, St. Louis, Mo., for plaintiff.
    Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., for defendants.
   MEMORANDUM

NANGLE, Chief Judge.

This ease is now before this Court on defendants’ motion to dismiss for lack of jurisdiction over the person. The United States argues that the defendants are not subject to service of process pursuant to Missouri’s long-arm statute and that this Court’s exercise of personal jurisdiction over them does not comport with the requirements of due process.

Plaintiff Wallace C. Moessmer is a citizen of the United States residing in Clayton, Missouri. The identity, citizenship and residence of the defendants remain unknown. Plaintiff’s first amended complaint sets out a Bivens cause of action under the Fifth Amendment of the United States Constitution. See, Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Only Count III of the complaint, the Bivens action, concerns this Court at present. Previously, this Court granted the United States’ motion for summary judgment on the first two counts, which were directed against the United States as defendant. Moessmer v. United States, 579 F.Supp. 1030 (E.D.Mo.1984) (order granting summary judgment), aff'd, 760 F.2d 236 (8th Cir. 1985); Moessmer v. United States, 569 F.Supp. 782 (E.D.Mo.1983) (order granting summary judgment), aff'd, 760 F.2d 236 (8th Cir. 1985); In Count III, plaintiff charges agents of the CIA with depriving him of employment without due process of law. Plaintiff’s allegations do not specify whether he is suing to sue the agents in their official or individual capacities. If Count III is directed against the agents in their official capacities, the plaintiff does not present a colorable claim. A suit against the agents in their official capacities is a suit against the United States, if the resulting decree would operate against the Government or if the resulting judgment would be satisfied from the public treasury. See, Salla v. Califano, 499 F.Supp. 684 (N.D.Ill.1980). The defense of sovereign immunity blocks suits against the United States for money damages in excess of $10,000.00 unless brought in the Court of Claims under the Tucker Act, 28 U.S.C. §§ 1346 and 1491. Clark v. United States, 596 F.2d 252, 253 (7th Cir.1979).

In this case, plaintiff prays for a judgment in the amount of $5,000,000.00. By suing the agents in their official capacities, in effect, he prays for a judgment which would be paid by the United States. Thus, this Court must dismiss the action if plaintiff is suing the agents exclusively in their official capacities. However, plaintiffs pleadings can be construed as suing the agents in their individual capacities. Though sovereign immunity would not be a defense to such a suit, the issue of personal jurisdiction becomes relevant. When sued in his or her individual capacity, a Government agent is entitled to the usual statutory and constitutional limits on the exercise of in personam jurisdiction.

In passing on a motion to dismiss for lack of jurisdiction over a non-resident, a federal diversity court is required to engage in a two-step inquiry: first, whether defendant committed one of the acts enumerated in the long-arm statute; and second, whether the exercise of personal jurisdiction over defendant violates the due process clause of the fourteenth amendment. The Land-O-Nod Company v. Bassett Furniture Industries, Inc., 708 F.2d 1338 (8th Cir.1983); Scullin Steel Co. v. National Railway Utilization Corp., 676 F.2d 309, 312 (8th Cir.1982). Plaintiff, the party that is seeking to invoke federal jurisdiction, has the burden of establishing that jurisdiction exists, and this burden may not be shifted to the party challenging the jurisdiction. Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 653 (8th Cir. 1982). While the facts are viewed in the light most favorable to the plaintiffs, “there must nonetheless be some evidence upon which a prima facie showing of jurisdiction may be found to exist____” Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir.1977) (citations omitted). See also Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977) (plaintiff need only make a prima facie showing of jurisdictional facts through submission of affidavits plus discovery materials); Greycas, Inc. v. Anderson, 584 F.Supp. 894, 895-96 (E.D.Mo.1984); 4 Wright & Miller, Federal Practice and Procedure: Civil § 1068 at 250 (1969).

Missouri’s Long-Arm statute provides:

1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any such acts:
(1) The transaction of any business within this state;
(2) The making of any contract within this state;
(3) The commission of a tortious act within this state;
(4) The ownership, use, or possession of any real estate situated in this state;
(5) The contracting to insure any person, property or risk located within this state at the time of contracting.
2. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

§ 506.500, R.S.Mo. (1982).

The due process clause of the fourteenth amendment places limits upon the power of a court to exercise personal jurisdiction over a non-resident defendant. The due process clause requires that a defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Land-O-Nod, 708 F.2d at 1340. Accord World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). “In judging minimum contacts, a court properly focuses on ‘the relationship among the defendant, the forum, and the litigation/ ” Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984) (citations omitted). See also Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 104 S.Ct 1868, 1872, 80 L.Ed.2d 404 (1984). The defendant’s contacts with the forum state must be purposeful and such that defendant “should reasonably anticipate being haled into court there.” World Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567. See also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958).

In this circuit, the due process standard has devolved into a consideration of five factors:

(1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties.

Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir. 1977). See Land-O-Nod, 708 F.2d at 1340. The first three factors are of primary importance and the last two are of secondary importance. Id.

The United States argues that the exercise of personal jurisdiction over the individual agents is improper, because the plaintiff has failed to allege any acts which under Missouri’s Long-Arm statute give rise to personal jurisdiction. Plaintiff concedes that his allegations regarding jurisdiction lack specificity, but argues that the secrecy of the CIA prevents him from obtaining additional information. A brief overview of the facts underlying plaintiff’s claim is necessary to determine whether this Court may exercise jurisdiction over the individual agents.

In 1963, the CIA hired plaintiff to train pilots in the Congo. In 1965, the CIA transferred plaintiff to Laos, where plaintiff subsequently sought employment with a private airline, Continental Air Services, Inc. (CASI). After receiving assurances of future employment from CASI, plaintiff cabled his resignation to CIA offices in Virginia. Subsequently, CÁSI failed to hire him. Plaintiff asserts that the failure of CASI to hire him resulted from threats and intimidation by CIA agents.

These facts reveal none of the five enumerated acts by which a defendant becomes subject to service of process under Missouri’s Long-Arm statute. Therefore, plaintiff fails to meet his burden of stating sufficient facts in the complaint to support a reasonable inference that this Court may exercise jurisdiction. See, 4 C. Wright & A. Miller Federal Practice and Procedure § 1068 (1969). Further, plaintiff alleges no other state or federal ground in support of personal jurisdiction. Admittedly, plaintiff may encounter difficulties in uncovering information regarding activities of the CIA and its agents. However, these difficulties do not shift plaintiff’s burden of establishing that personal jurisdiction exists. Defendants’ motion to dismiss is granted and Count III of plaintiff’s complaint is dismissed.

Since this decision rests upon plaintiff’s failure to meet the requirements for the exercise of jurisdiction under the long-arm statute, it is unnecessary to decide whether the exercise of personal jurisdiction in this case would lie within the limitations of due process.

      . The United States filed a pre-answer motion to challenge jurisdiction over the defendants, but does not represent the defendants at this time. Though the United States made its motion pursuant to Rules 12(b)(1) and 12(b)(6), the motion is more properly made pursuant to Rule 12(b)(2). Because plaintiff and the United States have argued the issue of in personam jurisdiction, this Court will construe the motion as made under Rule 12(b)(2).

      . Pursuant to an order of this Court, the United States Attorney has revealed the names of persons connected with the Central Intelligence Agency (CIA), but has not served those CIA agents who made decisions concerning plaintiff's employment. Plaintiff has not named any of these revealed persons as a defendant in this lawsuit.