author: LUONGO, Chief Judge.

text:
    Victor Paul DIOGENES, Petitioner, v. Benjamin MALCOLM, Regional Commissioner, Northeast Regional Office of the United States Parole Commission; Northeast Regional Office of the United States Parole Commission; its Agents, Employees and Successor of interest, Respondents.
    Civ. A. No. 84-4085.
    United States District Court, E.D. Pennsylvania.
    Jan. 17, 1985.
    Victor Paul Diogenes, pro se.
    Ronald K. Noble, Asst. U.S. Atty., Philadelphia, Pa., for respondents.
   MEMORANDUM

LUONGO, Chief Judge.

In this lawsuit, Victor Paul Diogenes challenges a decision of the Northeast Regional Office of the United States Parole Commission that denied his request for administrative reopening of his parole determination. Diogenes, an inmate at the Federal Correctional Institution at Ray Brook, New York, claims that the Commission improperly applied parole guidelines in effect at the time of his hearing rather than those in effect at the time of his offense. On November 26, 1984, Magistrate Richard A. Powers III filed a Report and Recommendation (attached hereto as Appendix A) that concluded (1) that this court lacks jurisdiction over petitioner’s habeas corpus claim, (2) that the case should be transferred to the United States District Court for the Northern District of New York, (3) that petitioner’s request for entry of default should be denied, and (4) that petitioner’s motion to excise his claim for habeas corpus should be denied. On December 10, 1984, petitioner filed objections to the magistrate’s report and an accompanying memorandum of law. Although the objections were filed late, I have reviewed this case de novo. For the reasons that follow, I will adopt the magistrate’s recommendation.

Primarily, I am satisfied that this court lacks jurisdiction over petitioner’s habeas corpus claim. The proper defendant in an inmate’s habeas corpus petition is the warden at the place of incarceration, and a court entertaining such a petition must have personal jurisdiction over the custodian. Billiteri v. United States Board of Parole, 541 F.2d 938 (2d Cir.1976). Thus, the proper defendant for petitioner’s habeas corpus claim is the warden of Ray Brook, and jurisdiction will be proper in the Northern District of New York.

Petitioner argues that jurisdiction is proper in the Eastern District of Pennsylvania because he has styled this lawsuit as an action for mandamus against members of the Northeast Regional Office of the Parole Commission who have their offices within this district. This argument is not convincing. I agree with the magistrate’s conclusion that this case does not present sufficient grounds for exercise of the extraordinary writ of mandamus. Even aside from the Commission’s discretion in determining parole, the availability of an alternative remedy — a writ of habeas corpus in the district of his incarceration — renders resort to mandamus inappropriate. See Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976); Darby v. Schweiker, 555 F.Supp. 285, 287 (E.D.Pa.1983).

I am also in agreement with the magistrate’s conclusion that the case should be transferred to the Northern District of New York. Section 1406(a) of Title 28 grants district courts discretion to transfer cases to the district in which venue would be proper, even in the absence of personal jurisdiction in the transferor court. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962). Such a transfer is particularly appropriate in this, a case in which it has been asserted that petitioner’s choice of forum was motivated by this Circuit’s precedent favorable to petitioner: upon transfer under § 1406(a) the transferee court will apply the substantive law of its own Circuit. See 1 J. Moore, et al., Moore’s Federal Practice, ¶ 0.145[4.-5] (1984).

Finally, I agree with the magistrate’s recommendation that petitioner’s motion to excise his habeas corpus claim should be denied. It is clear from the substance of the petition that the relief sought by Diogenes is reduction of the severity level assigned to his offense — and thus a greater likelihood of early parole. Petitioner’s claim, therefore, is one that attacks the duration of his sentence. Indeed, were this not so, petitioner would likely be without standing to complain about the Parole Commission’s failure to utilize appropriate guidelines.

In short, despite petitioner’s argument to the contrary, this case is properly characterized as a habeas corpus action over which this court lacks jurisdiction. Jurisdiction is present in the Northern District of New York, and I will enter an order transferring the case to that district.

ORDER

This 17th day of January, 1985, it is

ORDERED that:

1. Petitioner’s objections to the Magistrate’s Report and Recommendation are OVERRULED;

2. The Magistrate’s Report and Recommendation are APPROVED;

3. Petitioner’s motion to amend the petition to excise his habeas corpus claim is DENIED;

4. Petitioner’s request for entry of default is MARKED WITHDRAWN;

5. This case is TRANSFERRED to the United States District Court for the Northern District of New York; and

6. The Clerk is directed to forward all records and documents of this case to the Clerk of the United States District Court for the Northern District of New York.

APPENDIX A

REPORT — RECOMMENDATION

RICHARD A. POWERS, III, United States Magistrate.

Petitioner, Victor Paul Diogenes, was convicted in the United States District Court for the Eastern District of Oregon for a violation of Title 18 U.S.C. Section 2113(a). He was sentenced to a twenty (20) year prison term and was initially imprisoned in the United States Penitentiary at Lompoc, California.

In May, 1981, the Western Regional Office of the United States Parole Commission (WRO) interviewed petitioner. WRO applied the parole guidelines in effect at the time of petitioner’s hearing in rating his offense severity category as “Greatest I”.

In December, 1983, petitioner was transferred from Lompoc to the Federal Correctional Institution at Ray Brook, New York. Petitioner is presently imprisoned at Ray Brook. Ray Brook is located in the Northern District of New York.

On May 8, 1984, petitioner filed a request for an administrative reopening of his parole determination made by WRO. Petitioner submitted this application to Respondent, Benjamin Malcolm, Regional Commissioner of the Northeast Regional Office of the United States Parole Commission (NERO).

NERO denied petitioner’s application because it believed WRO had applied the correct parole guidelines. NERO stated that it is to utilize the guidelines in effect at the time of one’s hearing and not those guidelines applicable at the commencement of the instant offense.

Petitioner has filed a petition for a writ of habeas corpus with this Court pursuant to 28 U.S.C. Section 2241. The United States has filed an answer to the petition and a motion to dismiss or transfer same.

In order for this Court to have jurisdiction to entertain the habeas corpus action, it must have jurisdiction over the petitioner’s custodian. 28 U.S.C.A. Section 2241. In the instant case, petitioner’s custodian is the person who holds petitioner in what is claimed to be unlawful custody, i.e., his warden at Ray Brook. In Ahrens v. Clark, 335 U.S. 188 [68 S.Ct. 1443, 92 L.Ed. 1898] (1948), it was held that the jurisdiction of district courts to issue writs of habeas corpus was restricted to persons confined or detained within the jurisdiction of the Court. United States v. Isaacs, 392 F.Supp. 597, 600 (N.D.Ill.1975).

Although the concept of custody has been broadened to encompass more than just imprisonment, see, e.g., Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 [93 S.Ct. 1123, 35 L.Ed.2d 443] (1973); Strait v. Laird, 406 U.S. 341 [92 S.Ct. 1693, 32 L.Ed.2d 141] (1972); Peyton v. Rowe, 391 U.S. 54 [88 S.Ct. 1549, 20 L.Ed.2d 426] (1968); Jones v. Cunning ham, 371 U.S. 236 [83 S.Ct. 373, 9 L.Ed.2d 285] (1963), it still remains an essential aspect of the writ of habeas corpus that it acts upon the person who holds the prisoner in what is alleged to be unlawful custody. Braden, supra [410 U.S.], at 494-95 [93 S.Ct. at 1129], citing Wales v. Whitney, 114 U.S. 564, 574 [5 S.Ct. 1050, 1054, 29 L.Ed. 277] (1885). In order for a court to entertain a habeas corpus action, in short, it must have jurisdiction over the petitioner’s custodian. Braden, supra; Strait, supra; Schlanger v. Seamans, 401 U.S. 487 [91 S.Ct. 995, 28 L.Ed.2d 251] (1971); United States ex rel. Rudick v. Laird, 412 F.2d 16 (2 Cir.1969), cert. denied, 396 U.S. 918 [90 S.Ct. 244, 24 L.Ed.2d 197] (1969).

In the instant case, petitioner’s custodian is the warden at the Federal Correctional Institution at Ray Brook, New York, where petitioner is currently imprisoned. The Ray Brook warden, however, was not named as a respondent in the proceedings.

Rather, Diogenes brought his petition against the Northeast Regional Parole Commission, headquartered in Philadelphia, Pennsylvania. Where a prisoner is confined in prison, the custodian for habeas corpus actions is the prisoner’s Warden, not the Parole Commission. Billiteri v. United States Board of Parole, 541 F.2d 938, 948 (2 Cir.1976). In the instant case, the prisoner’s sole relationship with the Parole Commission is that the Commission is the decision making body which may authorize a prisoner’s release on parole. All of the contacts that the petitioner has had in the federal justice system have been in districts other than the Eastern District of Pennsylvania, except for his petition for an administrative reopening that was filed with the Regional Commissioner whose office is located in this district. The Regional Commissioner, however, is not petitioner’s custodian.

It would be most practical and equitable to transfer petitioner’s case to the Northern District of New York for consideration of the merits. 28 U.S.C. Sections 1404(a) and 1406(a) provide for such discretionary transfer. Such transfer would ensure that petitioner would be treated under the same interpretation of the law as other prisoners incarcerated at the Federal Correctional Institution at Ray Brook, New York, and would discourage forum shopping.

In addition, the inconvenience of transporting petitioner from New York to Philadelphia for any hearings would make New York a more appropriate forum. Crew v. United States Parole Board, 424 F.Supp. 411, 413 (E.D.Pa.1976).

Petitioner has attempted in his reply brief to characterize his petition as for a writ of mandamus. Mandamus does not lie in this case since there is no action for mandamus in federal district court under Federal Rule of Civil Procedure 81(b). Finley v. Chandler, 377 F.2d 548 (9 Cir. 1967), cert. denied, 389 U.S. 869 [88 S.Ct. 146, 19 L.Ed.2d 147] (1967). Respondent, Benjamin Malcolm, in any event, acted in a discretionary capacity, so that mandamus would not be an appropriate action.

Finally, petitioner has made a request for entry of default, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, claiming that respondents failed to file an answer by October 15, 1984 as ordered. However, since an extension was granted to file such answer until October 15, 1984, and an answer was filed on October 12, 1984, the request for entry of default should be denied.

Accordingly, we make the following

RECOMMENDATION

Now, this 21st day of November, 1984, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be TRANSFERRED to the Northern District of New York pursuant to 28 U.S.C. Sections 1404(a) and 1406(a). It is further recommended that petitioner’s motion to amend, excising the habeas corpus claim as well as his request for entry of default be DENIED.

      . Petitioner has abandoned his request for entry of default.


source: Caselaw Access Project

author: GLASSER, District Judge:

license: Public Domain

text:
    Lazaro SAUMELL, Plaintiff, v. The NEW YORK RACING ASSOCIATION, INC., et al., Defendants.
    No. 84 Civ. 2874.
    United States District Court, E.D. New York.
    Jan. 18, 1985.
    Joseph A. Faraldo, Kew Gardens, N.Y., for plaintiff.
    Cahill, Gordon & Reindel, Thoms F. Curnin, New York City, for defendants.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

Plaintiff in this action, a jockey licensed to participate in thoroughbred race meets, seeks compensatory and punitive damages under 42 U.S.C. § 1983 for the allegedly unlawful acts of the defendants, the New York Racing Association, Inc. (“NYRA”) and certain of its officials, in excluding plaintiff from NYRA’s racetracks. Defendants have moved under Rule 56(b) of the Federal Rules of Civil Procedure for summary judgment dismissing plaintiff’s complaint. Plaintiff has cross-moved for partial summary judgment holding defendants liable for depriving plaintiff of due process rights guaranteed by the Fourteenth Amendment of the Constitution. For the reasons that follow, defendants’ motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross-motion for summary judgment is denied.

Background

Defendant NYRA is a private organization incorporated under the New York Racing, Pari-Mutuel Wagering and Breeding Law, § 202 (McKinney 1984). NYRA owns and operates three racetracks in the State of New York under a franchise granted by the New York State Racing and Wagering Board (the “Board”).

This action arises from an incident which occurred at one of NYRA’s racetracks on June 22, 1981, during which plaintiff was allegedly found to be in possession of an illegal electrical device used to affect the speed or conduct of a race horse. As a result of this incident, NYRA denied plaintiff access to its tracks. The facts surrounding this incident and plaintiff’s expulsion from NYRA’s tracks are summarized in a previously issued opinion of the New York Court of Appeals. See Saumell v. New York State Racing Association, 58 N.Y.2d 231, 460 N.Y.S.2d 763, 447 N.E.2d 706 (1983).

Plaintiff commenced the earlier state court proceeding by filing a petition under Article 78 of the New York Civil Practice Law and Rules (“CPLR”), seeking injunctive relief, but not damages, against both NYRA and the Board. The petition alleged that NYRA’s actions in purportedly revoking plaintiff’s jockey license “divested [plaintiff] of rights guaranteed me by the Federal Constitution and continues to divest, in direct violation of 42 U.S.C. Sec. 1983....” Exh. A to the Aff. of Thomas F. Curnin. The proceeding culminated in a decision of the New York Court of Appeals, which held that NYRA’s exclusion of plaintiff from its facilities without a prior hearing violated plaintiff’s due process rights guaranteed by the Federal Constitution. The court affirmed an order of the Appellate Division enjoining NYRA from taking any action impeding plaintiff’s rights under his jockey license, but modified the Appellate Division’s order so as to permit NYRA “to proceed with a hearing as to a basis for exclusion if it be so advised.” 58 N.Y.2d at 243, 460 N.Y.S.2d 763, 447 N.E.2d 706.

Discussion

The primary question raised by these motions for summary judgment is what preclusive effect should be accorded to the decision of the Court of Appeals in the prior proceeding between plaintiff and NYRA. Defendants argue that the prior proceedings should be accorded full preclusive effect, thereby requiring a determination that this action is barred by res judicata (also known as “claim preclusion”). Plaintiff contends that under the doctrine of collateral estoppel (also known as “issue preclusion”), the prior proceedings bar only relitigation of the question of liability in this case, permitting the action to proceed for the purpose of fixing damages under § 1983.

The Supreme Court recently stated that § 1983 “does not override state preclusion law and guarantee [an individual] a right to proceed to a judgment in state court on her state claims and then turn to federal court for adjudication of her federal claims.” Migra v. Warren City School District Board of Education, — U.S. -, 104 S.Ct. 892, 898, 79 L.Ed.2d 56 (1984). The court held that a “state court judgment in this litigation has the same claim preclusive effect in federal court that the judgment would have in the ... state courts.” Id. Under Migra, this Court must determine what preclusive effect New York state courts would accord to the prior Article 78 proceeding.

In O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 429 N.E.2d 1158, 1159, 445 N.Y.S.2d 687, 688 (1981), the New York Court of Appeals set forth New York’s law of res judicata:

This State has adopted the transactional analysis approach in deciding res judicata issues____ Under this address [sic], once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.

This approach has been described as a “pragmatic test, which sees a claim or cause of action as ‘coterminus with the transaction regardless of the number of substantive theories or variant forms of relief.’ ” Smith v. Russell Sage College, 54 N.Y.2d 185, 192, 429 N.E.2d 746, 749, 445 N.Y.S.2d 68, 71 (1981).

In the present case, the prior action was a “special proceeding” brought under Article 78 of the CPLR, the required procedure for actions in New York state courts against a “body or officer” of state or local government. CPLR §§ 7801, 7802. Plaintiff concedes that the “prior proceeding concerned the same series of transactions” that form the basis of the present action. ¶ 2, Plaintiffs “Counterstatement & Statement Pursuant to Rule 9.” However, plaintiff maintains that the damages sought here could not have been recovered in the Article 78 proceeding and therefore that proceeding should not preclude the present action for damages.

CPLR § 7806 provides that in an Article 78 proceeding,

[a]ny restitution or damages granted to the petitioner must be incidental to the primary relief sought by petitioner, and must be such as he might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity.

Plaintiff cites three cases which purportedly stand for the proposition that, under CPLR § 7806, the type of general damages sought in the present action could not be recovered in an Article 78 proceeding. See Leisner v. Bahou, 97 A.D.2d 860, 469 N.Y. S.2d 255 (3d Dept.1983), appeal dismissed 61 N.Y.2d 985, 463 N.E.2d 623, 475 N.Y. S.2d 282 (1984), cert. denied, — U.S. -, 105 S.Ct. 595, 83 L.Ed.2d 704 (1984); Rosario v. Blum, 80 A.D.2d 511, 435 N.Y.S.2d 596 (1st Dept.1981); Williams v. Codd, 459 F.Supp. 804 (S.D.N.Y.1978).

I do not find these eases compelling on the question of whether § 1983 damages are recoverable in an Article 78 proceeding. In Leisner, the petitioner brought an Article 78 proceeding to annul a determination of the State Civil Service Commission affirming an unsatisfactory job performance rating, and also seeking damages for alleged violations of 42 U.S.C. § 1985, the Fourteenth Amendment and § 106 of the New York Civil Service Law. The court dismissed the claims for damages under § 1985 and the Fourteenth Amendment, finding them “independent causes of action not incidental to the primary relief of annulling the determination of the Civil Service Commission. [Citing CPLR 7806].... Moreover, claims [for monetary damages] against the State and its officers based on acts in their official capacity must be brought in the Court of Claims (Court of Claims Act, § 9).” 97 A.D.2d at 860-61, 469 N.Y.S.2d 258. Thus, the court’s decision was based in part on a lack of subject matter jurisdiction. Furthermore, the claim for relief under § 1985 required proof of a conspiracy to deny petitioner his civil rights, facts unrelated to the primary relief sought under Article 78. Leisner does not conclusively establish that § 1983 damages are not recoverable in an Article 78 proceeding.

In Rosario, the Article 78 petitioner sought to annul the termination of her grant of Aid to Dependent Children benefits, and also sought damages under § 1983. This case, like Leisner, does not squarely address the propriety of awarding § 1983 damages in an Article 78 proceeding. The court in Rosario dismissed the petitioner’s § 1983 claim on the merits, but then ambiguously noted that “we also believe that a plenary action for money damages against the state constitutes an impermissible intrusion in an Article 78 proceeding seeking review of an administrative fair hearing decision. (See Matter of Dunhill Mfg. & Dist. Corp. v. State Park Comm. for City of N.Y., 35 N.Y.2d 657, 658, 360 N.Y.S.2d 421, 318 N.E.2d 610).” 80 A.D.2d at 512-13, 435 N.Y.S.2d at 598.

In the third case cited by plaintiff, Williams v. Codd, the court noted that it is not clear whether the New York courts would award § 1983 damages in an Article 78 proceeding. 459 F.Supp. at 813. The court held that a prior Article 78 proceeding for injunctive relief did not preclude the later federal court action seeking damages under § 1983. The court did not apply New York’s transactional approach to res judicata, as required by Migra. Rather, the court applied federal principles of res judicata, which required that the “identical” cause of action has been raised in both proceedings and that the federal claims have been “fully submitted ... to the state courts” in order to invoke claim preclusion.” Id. at 811-12. This reasoning is no longer valid in light of the holding in Migra that state rules of claim preclusion should be applied in determining the preclusive effect of state court proceedings in subsequent actions under § 1983.

Defendants cite two cases which imply that § 1983 damages can be recovered in an Article 78 proceeding. In Thomas v. New York Temporary Commission on Regulation of Lobbying, 83 A.D.2d 723, 442 N.Y.S.2d 632 (3d Dept. 1981), aff’d 56 N.Y.2d 656, 436 N.E.2d 1310, 451 N.Y.S.2d 708 (1982), a discharged employee of a state commission brought an Article 78 proceeding seeking reinstatement and an award of damages under § 1983. The court adjudicated and dismissed the § 1983 claim on the merits. In Stratford Place Corp. v. Capalino, 574 F.Supp. 52 (S.D.N.Y.1983), aff'd 742 F.2d 1441 (2d Cir.), cert. denied, — U.S. -, 105 S.Ct. 102, 83 L.Ed.2d 47 (1984), the plaintiff brought an action under § 1983 seeking declaratory relief and damages. The plaintiff had brought a previous Article 78 proceeding in state court seeking only injunctive relief equivalent to the declaratory relief sought in federal district court. The district court dismissed the claims for declaratory relief and damages, holding that both arose from the same transactions as the earlier Article 78 proceeding and therefore both were barred under the New York rule of res judicata as set forth in O’Brien. 574 F.Supp. at 53, citing O’Brien v. City of Syracuse, 54 N.Y.2d 353, 355, 429 N.E.2d 1158, 1159, 445 N.Y.S.2d 687, 688 (1981).

In summary, these cases demonstrate that the “right to damages under Article 78 is extraordinarily unclear, and the essential theory of liability remains obscure.” 8 Weinstein, Korn & Miller, New York Civil Practice, § 7806.1, at 78-137 (1984). Even assuming, however, that a New York court would find that the § 1983 damages sought here are not “incidental” to the relief sought in the prior Article 78 proceeding for purposes of awarding damages under CPLR § 7806, I believe that the New York court could have converted the “special proceeding” into a “civil action” and awarded § 1983 damages in that action. CPLR § 103(c) provides that where a party has brought an action in an improper form and the court has obtained jurisdiction over the parties, the “proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution.” N.Y. CPLR § 103(c) (McKinney 1972). Where an Article 78 petitioner seeks a form of relief that is not technically available in an Article 78 proceeding,- the New York courts invoke CPLR § 103(c) and convert the proceeding into the appropriate form of action for the requested relief. Ellentuck v. Klein, 570 F.2d 414, 423-24 (2d Cir.1978); Jacobson v. NYRA, 33 N.Y.2d 144, 151, 305 N.E.2d 765, 766, 350 N.Y.S.2d 639, 643 (1973); Kovarsky v. Housing and Development Administra tion, 31 N.Y.2d 184, 192, 286 N.E.2d 882, 885, 335 N.Y.S.2d 383, 388 (1972); Phalen v. Theatrical Protective Union No. 1, 22 N.Y.2d 34, 41, 238 N.E.2d 295, 299, 290 N.Y.S.2d 881, 887 (1968); Leisner v. Bahou, 97 A.D.2d 860, 861, 469 N.Y.S.2d 255, 258 (3d Dept.1983); Adams v. New York State Civil Service Commission, 51 A.D.2d 668, 378 N.Y.S.2d 171, 173 (4th Dept.1976). “The improper form in which [the petitioners’] action has been brought and their failure to request the appropriate relief is not a bar to their receiving whatever relief they might be entitled to.” Phalen, 22 N.Y.2d at 41, 238 N.E.2d at 299, 290 N.Y.S.2d at 887. Of particular note is Leisner, where the Article 78 petitioner sought both a declaration annulling an administrative determination and damages from an administrative officer in his individual capacity. The court held that damages against the officer in his individual capacity could not be recovered in an Article 78 proceeding, but since jurisdiction had been obtained over the parties, the court converted the damages claim into an action at law and remitted the claim to the New York Supreme Court. 469 N.Y.S.2d at 258.

In this case, the state courts in the Article 78 proceeding unquestionably had jurisdiction over all the parties to the action in this Court. Accordingly, I find that even if the state court had concluded that § 1983 damages could not be recovered in plaintiff’s Article 78 proceeding, it could have converted the damages claim into an action at law under CPLR § 103(c) and thereafter awarded damages. I must therefore reject plaintiff’s contention that he could not have recovered the damages sought here in the prior state court proceedings.

Plaintiff alternatively argues that even if he could have recovered such damages in the Article 78 proceedings, New York law permits him to seek such damages in a separate proceeding, and therefore he may recover damages in the present action. The cases cited by plaintiff do not support such a broad proposition. For example, in Adams v. New York State Civil Service Commission, 51 A.D.2d 668, 378 N.Y.S.2d 171, 174 (4th Dept.1976), a damages claim interposed in an Article 78 proceeding was dismissed “without prejudice to petitioner instituting an action in the Court of Claims.” The court had held that it had no subject matter jurisdiction over the claim for damages against a body of the state. 51 A.D.2d at 668, 378 N.Y.S.2d at 173. In the Article 78 proceedings in the present matter, by contrast, there was no such lack of subject matter jurisdiction because the claims against NYRA were not claims against the state or its officers or employees. See N.Y. Court of Claims Act § 9(2) (McKinney Supp.1984).

Claims for backpay raised in Article 78 proceedings challenging the discharge of employees have also been dismissed “without prejudice” where the backpay claim was not of a type ordinarily recoverable in an Article 78 proceeding and “more than improper form of proceeding [was] involved....” Schwab v. Bowen, 41 N.Y.2d 907, 908, 363 N.E.2d 341, 394 N.Y.S.2d 616, 617 (1977); Koppman v. Board of Education of the City School District, 95 A.D.2d 777, 463 N.Y.S.2d 390 (2d Dept.1983); Golomb v. Board of Education of the City School District, 92 A.D.2d 256, 261-62, 460 N.Y.S.2d 805, 808-09 (2d Dept.1983). In Golomb, for example, the backpay claim was dismissed “without prejudice” where the petitioner sought to have the court perform an auditing function that should have been performed first by a certain administrative officer and only thereafter reviewed by the court. 460 N.Y.S.2d at 809-10. These cases are plainly distinguishable from the present case. For even assuming again that the New York courts would have found that plaintiff’s request for § 1983 damages was “not incidental” to his claim for injunctive relief under Article 78, nothing more than improper form would have been involved; the claim for damages would otherwise have been ripe for adjudication in that state court. Furthermore, plaintiff never interposed any such claim for damages, nor did the Court of Appeals expressly state that its decision was without prejudice to plaintiff later instituting a separate action for damages. Accordingly, I believe that the New York State courts would not permit plaintiff to commence a separate action for the damages sought here after the Article 78 proceedings had been terminated.

In conclusion, I find that plaintiff brought an earlier Article 78 proceeding for injunctive relief on claims that arose from the same series of transactions as the present case. Plaintiff could have interposed a claim for damages in the prior action. Even if the state court concluded that such a claim for damages was technically inappropriate in an Article 78 proceeding, the court could have invoked CPLR 103(c) to convert the damage claim into an action at law. Under the broad transactional approach to res judicata set forth in O’Brien v. City of Syracuse, 54 N.Y.2d 353, 429 N.E.2d 1158, 445 N.Y.S.2d 687 (1981), plaintiff’s present claim for damages under § 1983 is barred by the conclusion of the prior Article 78 proceeding even if the claim is based upon a different theory and even if a different remedy is sought. Cf. Stratford Place Corp. v. Capalino, 574 F.Supp. 52, 53 (S.D.N.Y.1983), aff'd 742 F.2d 1441 (2d Cir.), cert. denied, — U.S. -, 105 S.Ct. 102, 83 L.Ed.2d 47 (1984) (conclusion of an Article 78 proceeding for injunctive relief bars a later § 1983 action in federal court for declaratory relief and damages).

Accordingly, defendant’s motion for summary judgment dismissing plaintiff’s complaint is granted. Plaintiff’s motion for partial summary judgment is denied.

SO ORDERED.

      . In a revision of the local rules effective October 26, 1983, the former Rule 9(g) was replaced by the new Rule 3(g) of the Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York.

      . Under § 9 of the Court of Claims Act, actions for monetary damages against the New York State Civil Service Commission “may not be pursued in the Supreme Court, but must be pursued in the Court of Claims.” Adams v. New York State Civil Service Commission, 51 A.D.2d 668, 378 N.Y.S.2d 171, 173 (3d Dept.1976). The New York State Supreme Court -lacks subject matter jurisdiction over such claims. Id.

      . In Dunhill, a business tenant of property which was appropriated by the state brought an Article 78 proceeding to recover the difference between its actual moving expenses and the lesser amount paid to it by the state for those expenses. 35 N.Y.2d at 658, 318 N.E.2d at 610, 360 N.Y.S.2d at 421. The Court of Appeals affirmed an order dismissing the petition, relying on the opinion of the Appellate Division. The Appellate Division had held that “petitioner's remedy is not by way of article 78 (mandamus) but by suit against the State," and “claims against the State are cognizable in the Court of Claims, and in that court only." 42 A.D.2d 442, 443-44, 348 N.Y.S.2d 349, 351 (1st Dept.1973). Thus, in Rosario, the citation to Dunhill may imply that the court dismissed the claim for § 1983 damages because it lacked subject matter jurisdiction over damages claims against the state.

      . As discussed earlier, the petition in Leisner also raised claims for damages under 42 U.S.C. § 1985 and the Fourteenth Amendment.

      . The court also affirmed the dismissal of part of the claim for declaratory relief, and remitted the remaining portion of that claim for a “separate plenary trial.” Id. at 259.

      . See footnote 2 supra.


author: REYNOLDS, Chief Judge.

text:
    William KEMNITZ, et al., Plaintiffs, v. CONTINENTAL CASUALTY CO., et al., Defendants.
    Civ. A. No. 84-C-1527.
    United States District Court, E.D. Wisconsin.
    Jan. 18, 1985.
    Frederick J. Mohr, Green Bay, Wis., for plaintiffs.
    Gregory L. Himebauch, Milwaukee, Wis., and James T. Crotty, Chicago, Ill., for defendant Continental Cas. Co.
   ORDER

REYNOLDS, Chief Judge.

On December 7, 1984, the defendant, Continental Casualty Company, filed a petition for removal pursuant to 28 U.S.C. § 1441(c) alleging diversity of citizenship. The plaintiffs’ complaint names two defendants in claims 1 and 2 and the petition for removal indicates that these parties have diverse citizenship. Both defendants have not joined in the petition for removal, however, and Continental Casualty Company has not set forth any reason for the failure of its codefendant to join the petition.

The federal courts are courts of limited jurisdiction and the removal provisions should be strictly construed. All defendants are required to join in a petition for removal under § 1441, and consequently, this action will be remanded to state court on the Court’s motion. P.P. Farmers’ Elevator Co. v. Farmers’ Elevator Mutual Ins. Co. and New Amsterdam Casualty Co., 395 F.2d 546 (7th Cir.1968).

IT IS THEREFORE ORDERED that this action is remanded to Brown County Circuit Court.


author: McLAUGHLIN, District Judge.

text:
    John SANTALY, Plaintiff, v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Defendant.
    No. 84 CV 0715.
    United States District Court, E.D. New York.
    Jan. 18, 1985.
    Robert A. Flaster, Venezia & Haber, New York City, for plaintiff.
    David E. Rehe, Haskins, Hack, Piro & O’Day, P.C., West Orange, N.J., for defendant.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

Plaintiff sues for injuries suffered when he fell off a ladder that was attached to a building occupied by defendant. Jurisdiction rests upon diversity of citizenship. 28 U.S.C. § 1332(a). Defendant has moved to transfer the action to the United States District Court for the District of New Jersey. 28 U.S.C. § 1404(a). For the reasons developed below, defendant’s motion is granted.

Discussion

28 U.S.C. § 1404(a) provides:

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

Plaintiff is a citizen of New York. Defendant is a corporation that, for diversity purposes, is a citizen of both Maryland and New Jersey. 28 U.S.C. § 1332(c). Because the defendant does business in New Jersey, and diversity of citizenship exists, it is clear that the action could have been brought in a federal court in New Jersey. St. Cyr v. Greyhound Lines, Inc., 486 F.Supp. 724, 727 (E.D.N.Y.1980).

In deciding whether this action should be transferred, Kreisner v. Hilton Hotel Corporation, 468 F.Supp. 176 (E.D.N.Y.1979) is instructive:

In exercising its discretion on a motion to change venue, a court must weigh the following criteria: (1) convenience of the parties; (2) convenience of material witnesses; (3) availability of process to compel the presence of unwilling witnesses; (4) the costs of obtaining the presence of witnesses; (5) the relative ease of access to sources of proof; (6) calendar congestion; (7) where the events in issue took place; and (8) the interests of justice in general.

Id. at 177 (citations omitted).

Plaintiffs accident occurred in New Jersey. The only witness identified as having first-hand knowledge of the incident resides in New Jersey. Moreover, it appears that New Jersey law will govern this action.

Defendant states that it intends to commence third-party actions against plaintiffs employer and against the owner of the building occupied by defendant. It appears that both parties are subject to the process of either the New York or the New Jersey District Court since the parties can be served within 100 miles of either courthouse. Fed.R.Civ.P. 4(f). See Coleman v. American Export Isbrandtsen Lines, Inc., 405 F.2d 250, 252-53 (2d Cir.1968). The fact that the building owner lacks substantial contact with New York, however, seems to weigh in favor of a transfer of venue to New Jersey.

Although plaintiffs treating physicians maintain their offices in New York, I conclude nonetheless that in the interest of justice, this action should be transferred to the United States District Court for the District of New Jersey. Accordingly, defendant’s motion is granted.

SO ORDERED.


author: GERRY, District Judge.

text:
    MOBILAB UNION, INC., Plaintiff, v. Wilford W. JOHANSEN, Acting General Counsel, National Labor Relations Board, and Francis W. Hoeber, Acting Regional Director, National Labor Relations Board, Defendants.
    Civ. A. No. 84-3689.
    United States District Court, D. New Jersey.
    Jan. 21, 1985.

      Mark S. Jacobs, P.C. by Richard E. Yaskin, Voorhees, N.J., for plaintiff.
    Margery E. Lieber, Deputy Asst. Gen. Counsel for Sp. Litigation, Corinna Metcalf, N.L.R.B., Washington, D.C., for defendants.
   OPINION

GERRY, District Judge.

The plaintiff, Mobilab Union, has a collective bargaining relationship with the Mobil Research and Development Corporation (MRDC) and has had such a relationship for more than 25 years. In October 1983, the plaintiff and MRDC commenced negotiations for a collective bargaining agreement to succeed the contract due to expire on January 15, 1984. The negotiations did not prove to be fruitful, and on February 27, 1984, MRDC announced that it was making its “last and final offer.” This offer was rejected. On March 26, 1984, taking the position that bargaining had reached an impasse, MRDC unilaterally implemented its last and final offer. Under National Labor Relations Board (NLRB) law, if an impasse has truly been reached, the employer is privileged to do what MRDC did here.

On March 20, 1984, the plaintiff, taking the position that an impasse had not been reached, filed an unfair labor practice charge with the Board, alleging that MRDC’s refusal to bargain any further constituted a violation of §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.). On May 8, 1984, the NLRB’s Acting Regional Director refused to issue an Unfair Labor Practice Complaint, stating by letter that:

By mid-March 1984, the parties had engaged in more than twenty negotiating sessions. There was insufficient evidence to establish that the Employer failed to meet its statutory obligation to bargain in good faith____ The investigation disclosed that each party made substantial modifications in its contract proposals, and that impasse was reached in mid-March____ As the parties had reached impasse ... it was concluded that the Employer was privileged to unilaterally implement the terms of its last offer.

The plaintiff appealed this decision to the NLRB’s General Counsel, arguing that the Regional Director’s decision was contrary to the law of “impasse,” and also that the Regional Director had failed to comply with certain requirements of the NLRB Case Handling Manual. Mobilab Union’s appeal to the NLRB General Counsel was summarily dismissed by correspondence dated June 13, 1984:

The appeal is denied substantially for the reasons set forth in the Acting Regional Director’s letter, dated May 8, 1984.

Not satisfied with that result, the plaintiff instituted this action, in which it is alleged that the decision of the General Counsel not to issue a complaint against MRDC is violative of § 8(a)(5) of the NLRA, for which a private right of action lies, and is also redressible under the Administrative Procedure Act, the due process guarantee of the Fifth Amendment, and may also be reviewed as a decision “wholly without a basis in law.” By way of relief, the plaintiff seeks the following: an order vacating the decision of the General Counsel, and remanding the case for a statement of reasons for the decision, responding with particularity to the plaintiff’s arguments on appeal; a reopening of the NLRB’s factual investigation; a reconsideration of whether an impasse actually existed; and a reconsideration of whether a complaint should issue.

The plaintiff has an uphill battle here, as the decisions of the General Counsel regarding the issuance of a complaint are not generally considered reviewable.

The defendants have moved to dismiss, asserting that this court lacks subject matter jurisdiction, as well as that the complaint fails to state a claim on which relief may be granted. We will treat with these bases as equivalent.

1. The National Labor Relations Act.

The plaintiff argues, in essence, that there exists a private right of action under the NLRA to force the General Counsel to issue a complaint where the facts arguably warrant one, or to fully explain the refusal to issue a complaint. To refuse to issue a complaint, it presumably is being argued, sanctions employer conduct which is violative of the Act. The structure of the Act does not seem to support plaintiff’s theory of its right to mandate particular actions of the General Counsel. Section 8(a) of the Act states nothing more than that certain types of conduct (including a refusal to bargain) are unlawful. Section 10(b) of the Act (29 U.S.C. § 160(b)) merely states that the Board, when faced with an unfair labor practice charge, “shall have the power to issue ... a complaint,” not that it must issue a complaint (emphasis added). And section 3(d) of the Act (29 U.S.C. § 153(d)) is the most explicit of all in the discretion vested in the General Counsel:

He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10.

Thus, the Act indicates that only the Board may prosecute unfair labor practice charges, and that the decision to issue a complaint is within the discretion of the General Counsel. The “final authority” language of section 3(d) suggests an absolute discretion, and courts have uniformly construed the section as one precluding judicial review of the General Counsel’s decision not to issue a complaint, and precluding the issuance of orders in the nature of a mandamus. See, e.g., Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967); Contractors Association of Philadelphia v. NLRB, 295 F.2d 526 (3d Cir.1961); McLeod v. IBT, 330 F.2d 108 (2d Cir.1964); National Maritime Union v. NLRB, 423 F.2d 625 (2d Cir.1970); Associated Builders v. Irving, 610 F.2d 1221 (4th Cir.1979); International Assoc. of Machinists v. Lubbers, 681 F.2d 598 (9th Cir.1982); Baker v. IATSE, 691 F.2d 1291 (9th Cir.1982); Hennepin Broadcasting v. NLRB, 408 F.Supp. 932 (D.Minn.1975); Rockford Redi-Mix v. Zipp, 482 F.Supp. 489 (N.D.Ill.1979); Balanyi v. Local 1031, 374 F.2d 723 (7th Cir.1967); Local 187 v. NLRB, 489 F.2d 416 (3d Cir.1973), etc. Thus, we have no trouble in concluding that the NLRA itself does not authorize the relief sought.

2. Administrative Procedure Act.

The Administrative Procedure Act (APA) adds nothing to plaintiff’s argument. While the APA does create a presumption that agency actions are reviewable, there are exceptions to that presumption. The APA, 5 U.S.C. .§ 701(a), states that judicial review is available, except to the extent that “statutes preclude judicial review, or agency action is committed to agency discretion by law.” Courts that have considered the General Counsel’s discretion, in light of the APA, have all concluded that § 701(a) is applicable, and that review under the APA is not available. See, e.g., Balanyi, supra; Saez v. Goslee, 463 F.2d 214 (1st Cir.1972); Associated Builders, supra.

3. Exceptions to the rule of unreviewability.

Nevertheless, even where agency actions are all but unreviewable, the courts have carved out a few very narrow exceptions in which review of a limited nature is authorized. First, discretionary NLRB action may be subject to judicial oversight where it is alleged that the Board action was in excess of its delegated powers and contrary to a specific statutory prohibition. See Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). The plaintiffs complaint does not seem to indicate a reliance on this exception. Indeed, as one court has recently stated:

We confess that it is difficult to imagine a situation where the refusal of the General Counsel to issue a complaint would violate an express statutory command of the Act as it now exists, because nothing in it requires the General Counsel to issue complaints upon the finding of a violation____ [H]is statutory authority is permissive.

Baker v. IATSE, 691 F.2d at 1296-97 (9th Cir.1982). A second possible exception, on which plaintiff does rely, is that the General Counsel’s decision is “wholly without basis in law.” By this exception, plaintiff would ask the court to undertake a limited substantive review of the General Counsel’s determination and decide whether the determination was faithful to Board and court decisions on the meaning of an impasse. The problems with this approach are several. First, no court has actually recognized the “wholly without basis” exception. A Ninth Circuit case, International Association of Machinists, 681 F.2d 598, 603, merely alluded to it as a “potential” exception and held that, even assuming its existence, the complaint was deficient. The subsequent Ninth Circuit case Baker (cited above) states that the “wholly without basis” exception should be considered as equivalent to, but not an enlargement of, the Leedom exception. 691 F.2d at 1296 n. 14. The court’s reasoning is persuasive:

We think ... unsound ... an exception that would permit judicial review of the General Counsel’s decision for abuse of discretion, even where the alleged abuse consists of a misinterpretation of law. Review of the legal and factual determinations made by the General Counsel ... would inject us into determinations of labor policy at a point well before that selected by Congress for judicial review____ [T]he exception ... would threaten to swallow the rule of nonreviewability.

Id. at 1296. To tell the General Counsel that a given situation is indicative of a probable unfair labor practice seems a reversal of the proper roles of the court and the General Counsel. Moreover, as the Baker court adds, even a finding of a violation does not compel the General Counsel to issue a complaint.

The third exception to the rule of unreviewability, and this one recognized by the courts, is for review of Board actions which may violate constitutional rights. Bova v. Pipefitters Local, 554 F.2d 226 (5th Cir.1977); International Association of Machinists, supra, at 603. The plaintiff contends that its due process rights have been violated by the General Counsel’s refusal to issue a complaint or explain its refusal. Courts that have considered this issue have stated, contrary to the position taken by the Board here, that the NLRA vindicates private rights (of the charging party), as well as public interests. Id.; see also Local 283 v. Scofield, 382 U.S. 205, 220, 86 S.Ct. 373, 382, 15 L.Ed.2d 272 (1965). But, these courts have declined to go so far as to hold that charging parties have a constitutional right to have a complaint issue. Machinists, 681 F.2d at 603, citing Saez v. Goslee, 463 F.2d 214 (1st Cir.1972). Indeed, if a right to have a complaint issue can be said to exist at all, it exists subject to the limitations contained in the Act, including the exercise of discretion by the General Counsel. Compare Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). To the extent that courts have assumed any due process rights at all in connection with the refusal to issue an unfair labor practice complaint, those rights have been confined to the right to an explanation and the right of an administrative appeal. Machinists, supra, at 604; Hennepin Broadcasting Associ ates, supra, at 935. In this case, the plaintiff had an opportunity to present its case to the Board, received an explanation for the Board’s refusal to go forward, and had an opportunity to appeal. Thus, due process, assuming there is a right here, seems to have been satisfied.

The plaintiff argues that it has a right to a fuller explanation from the General Counsel, a response to each issue raised by plaintiff on appeal. Such a requirement would seem more appropriate were it the case that the General Counsel’s decision was reviewable, as such an explanation would enable review to occur. See Bachowski v. Brennan, 502 F.2d 79 at 88-89 (3d Cir.1974). It is true, of course, that a full explanation assures careful administrative consideration (as well as the appearance thereof). However, we hesitate to impose such a requirement on the General Counsel. We do not believe it is useful or constitutionally mandated for the General Counsel (with her limited resources) to have to respond point-by-point to each objection any more than it is constitutionally mandated for a Court of Appeals to do so (rather than summarily affirming some cases). In neither situation do we assume a lack of care.

Moreover, we doubt that the NLRB Manual, which plaintiff on appeal alleged the Regional Director’s conduct was inconsistent with, is properly regarded as a statement of mandatory procedures, as opposed to an advisory statement. Cf. NLRB v. Birdsall Construction Co., 487 F.2d 288, 291-92 (5th Cir.1973).

Finally, apparently making a delegation argument, the plaintiff finds “disturbing” the lack of guidelines for the General Counsel to follow in deciding which cases to issue complaints in. But that issue has no relevance here, since the General Counsel did not find a probable violation and nevertheless refused to issue a complaint. Rather, the General Counsel found no evidence of a violation.

For all of the above reasons, defendants’ motion to dismiss will be granted. The accompanying order will be entered.


author: JAMES R. MILLER, Jr., District Judge.

text:
    UNITED STATES of America v. Gail O’Donnell PHIPPS.
    Crim. No. M-84-00531.
    United States District Court, D. Maryland.
    Jan. 22, 1985.
    J. Frederick Motz, U.S. Atty. for D. of Maryland, Arthur F. Fergenson and Michael G. Middleton, Asst. U.S. Attys., Baltimore, Md., for United States of America.
    Joseph M. Fairbanks, Baltimore, Md., for defendant Phipps.
   MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

The defendant, Gail O’Donnell Phipps, was compelled by order of this court, pursuant to 18 U.S.C. § 6002, to testify on October 31, 1984, in connection with a grand jury investigation in this district which resulted in the return of a superseding indictment in United States v. Franck, et al., Criminal No. M-84-00410, charging the commission of various drug-related crimes. Ms. Phipps was subsequently charged in the present case with threatening a federal witness in the Franck case on or about November 20, 1984. She moved to suppress her compelled grand jury testimony which the government has indicated it will seek to introduce in part at trial.

At a hearing on the issue, held on January 18, 1985, the defendant’s motion was denied. The reasons, announced from the bench at that hearing, are set forth briefly herein.

Background

Before the grand jury, Ms. Phipps was questioned about a number of phone calls she made to friends after the original indictment was returned in United States v. Franck, et al., Criminal No. M-84-00410. Her grand jury testimony regarding those phone calls indicated that their purpose was to determine what those friends knew about the indictment and subsequent arrests on various drug charges of the 17 defendants in Franck. Her grand jury testimony further indicated that she tried to determine whether any of those friends had been implicated in the alleged drug conspiracy by the government cooperators. {See Phipps’ Grand Jury Testimony at 37-42, 85-89).

The bulk of Ms. Phipps’ testimony, however, related to her relationship with Mr. Franck, the alleged kingpin of the drug conspiracy, and what she knew about his and others’ drug dealings.

On November 20, 1984, after she had testified before the grand jury, Ms. Phipps allegedly threatened a witness who likely would appear to testify against the defendants in the trial of the Franck case. She subsequently was indicted under 18 U.S.C. § 1512(a) for that offense.

The government seeks to use Ms. Phipps’ grand jury testimony to show her close relationship to Mr. Franck and her dependency on him as a means to prove motive and intent for the alleged threat.

Legal Analysis

The statutory immunity conferred on a defendant by 18 U.S.C. § 6002 “ ‘is intended to be as broad as, but no broader than, the privilege against self incrimination [granted by the Fifth Amendment].’ ” United States v. Apfelbaum, 445 U.S. 115, 123, 100 S.Ct. 948, 953, 63 L.Ed.2d 250 (1980) (citing S.Rep. No. 91-617, p. 145; H.R.Rep. No. 91-1549, p. 42 (1970)), U.S. Code Cong. & Admin.News 1970, p. 4007.

In all but a few exceptional and rare cases, the Fifth Amendment does not immunize a witness from the use of his testimony in a prosecution for an act committed subsequent to the date of the testimony. See, e.g., United States v. Caron, 551 F.Supp. 662, 671 (E.D.Va.1982), aff'd. without opinion, 722 F.2d 739 (4th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1983); United States v. Quatermain, Drax, 613 F.2d 38, 42 (3d Cir.), cert. denied, 446 U.S. 954, 100 S.Ct. 2923, 64 L.Ed.2d 812 (1980); Rule v. United States, 362 F.2d 215, 217 (5th Cir.1966), cert. denied, 385 U.S. 1018, 87 S.Ct. 744, 17 L.Ed.2d 554 (1967).

The exceptional and rare cases are those in which a substantial hazard of incrimination occurs as to future acts. The only class of cases in which that very limited exception has been applied are those in which the future acts necessarily will be criminal because they relate to an ongoing conspiracy, see, United States v. Hossbach, 518 F.Supp. 759, 770-71 (E.D.Pa.1980), or because they are part of a criminal occupation as to which the admission is compelled. See, e.g., Marchetti v. United States, 390 U.S. 39, 54, 88 S.Ct. 697, 705, 19 L.Ed.2d 889 (1968).

The act alleged herein, i.e., threatening a federal witness, does not come within the limited exception just described. In the case at bar, Ms. Phipps certainly was not in the business of making threats nor could this future act have been predicted from her testimony about the Franck conspiracy. The future act was not a part of the drug conspiracy charged in Franck. It is a new, different, and subsequent act.

The defendant’s “argument assumes the existence of a periphery of the Self-Incrimination Clause which protects a person against incrimination not only against past or present transgressions but which supplies insulation for a career of crime about to be launched. We cannot give the Self-Incrimination Clause such an expansive interpretation.” United States v. Freed, 401 U.S. 601, 606-07, 91 S.Ct. 1112, 1117, 28 L.Ed.2d 356 (1971).

“[T]he hazard of incrimination arising from one’s possible criminal act at some time in the future is too speculative and remote to merit fifth amendment protection.” United States v. Quatermain, Drax, 613 F.2d at 43.

For the above stated reasons and for the reasons stated in open court at the hearing on this matter, the defendant’s motion to suppress is hereby DENIED.

It is SO ORDERED this 22nd day of January, 1985, by the United States District Court for the District of Maryland.


author: PATRICK F. KELLY, District Judge.

text:
    Bobby J. HAWKINS, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services of the United States, Defendant.
    No. 83-1845.
    United States District Court, D. Kan.
    Jan. 22, 1985.

      David H.M. Gray, Wichita, Kan., for plaintiff.
    Stephen K. Lester, Asst. U.S. Atty., Wichita, Kan., for defendant.
   MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

This is an action under 42 U.S.C. § 405(g) for judicial review of the decision of the Secretary of Health and Human Services terminating Plaintiff’s entitlement to disability benefits under the Social Security Act. This matter originally came before this Court on Plaintiff’s motion for summary judgment and alternative motion for remand, and the Secretary’s motion to affirm the Secretary’s decision. In a ruling filed September 24, 1984 this Court denied both motions for summary judgment and remanded the case to the Secretary with instructions to effectuate reconsideration by the Administrative Law Judge (ALJ). The Appeals Council submitted a Clarifying Order of Appeals Council dated October 19, 1984 in which it again reaffirmed the termination of Plaintiff’s period of disability but failed to obtain reconsideration by the ALJ. This matter is now before the Court again on Plaintiff’s renewed motion for summary judgment.

Plaintiff was originally granted a period of disability beginning in June, 1977, because of chronic alcoholism, liver disease, and secondary malnutrition. (R. 14-15) He stopped drinking on January 14, 1980. (R. 49) He failed at a brief work attempt as a janitor. He was forced to s.top working in 1980 because his foot disorder caused too much pain, and he could not do the walking. (R. 14, 167-168) The Secretary ruled that Plaintiff’s disability ceased in March, 1982, and his entitlement to benefits ceased in May, 1982. He has Pes Planus and planter calluses (R. 78, 146), which limit him to six hours of intermittent standing. (R. 142) It was because of this impairment that the ALJ found Plaintiff’s residual functional capacity to be limited to sedentary employment. (R. 16)

In 1978, Plaintiff, according to his doctor, ... reached an irreversible phase in his chronic liver disease. There is already evidences of hepatocellular damage due to the increase in SGOT and LDH and superimposed to it we can see an increase in the alkaline phosphatase. Evidences of severe liver dysfunction are concluded also because of the low albumin and low cholesterol. Probably the patient has Laenec’s cirrhosis of the liver with end stage organ damage, due to chronic alcoholism. Since he already has signs of accumulation of ascitic fluid and hepatomegaly I believe he is disabled because of his prognosis is essentially poor at that degree of liver dysfunction. He was mentally clear but he could develop portal encephalopathy after a high protein meal or as a result of any other metabolic disturbance.
In summary, I believe Mr. Hawkins is disabled.

(R. 130-131)

Plaintiffs liver condition has improved considerably, but he still has an elevated serum magnesium level, which usually indicates renal insufficiency (R. 158), a high globulin level, which could relate to old liver damage (R. 146), diet limitations (R. 116), and the need to urinate frequently. (R. 40, 153)

Also apparently resulting from his alcohol addiction, Plaintiff has lost normal reflexes. (R. 137) A consultative physician also found Achilles reflex to be absent and sensation to be decreased, “both suggesting early sensory and motor neuropathy ... The MCV is increased, suggesting ineffective erythropoiesis.” (R. 153) Another Social Security examining physician found no sensation from the feet halfway to the knees. (R. 146)

Plaintiff was committed to Larned State Hospital in 1974 for a ninety day treatment. He was diagnosed as having a passive aggressive personality and alcohol addiction. (R. 124) By 1980, chronic brain syndrome, and chronic desocialization were noted. Low-normal intelligence was also noted, and

His personality profile suggested that he was schizoid and had difficulty in dealing with authority. Recommendations were made for highly structured aftercare program.

(R. 136) At that time he had difficulty comprehending what was expected of him, and he did not accept the recommendation to attend Midtown Halfway House. (R. 136)

Following the onset of Plaintiffs sobriety, the following psychological evaluation was made on January 29, 1980:

Personality test data suggests an individual who might best be classified as a schizoid personality. This type of individual holds a basic, sullen distrust toward other people and finds it difficult to relate interpersonally. His basic outlook on life is one of chronic pessimism and worry and in times of stress there may be evidence of somewhat bizarre and unusual behavior. Bobby demonstrates a resentment toward authority figures and social institutions in general and may be expected to find the task of going along with rules and regulations of a treatment program to be somewhat difficult.
In light of this individual’s personality style and low level of intelligence, it is suggested that his treatment program be fairly simple and straight forward, and that interventions be oriented toward behaviors rather than abstract insight. This individual will occasionally need to withdraw from others on an emotional and cogitative level as a result of his defenses being shaken. When this occurs it should be allowed, although he should be encouraged to talk with others about his distrust after he is sufficiently recovered. It is also suggested that a highly structured aftercare program would be helpful for this person.

(R. 138)

To fully explore the possibility of chronic brain syndrome, a neuropsychological evaluation was performed January 1, 1983 by Leslie Ruthven, Ph.D., a clinical psychologist. He found Plaintiff to be functioning in the low average range of intelligence, but his intellectual efficiency was undermined by impulsive or disinhibited reactivity. He was found to act without adequate reflection. His thinking was rigid, and he tended to persist in a fruitless direction even though events would indicate a different course of action. Diagnosed as having minimal brain dysfunction, he was observed to be impaired by disinhibition, which may have led to his previous alcoholism. The psychologist concluded that Plaintiff had some potential for returning to competitive employment with the assistance of therapy. (R. 169-170) Examples of Plaintiff’s inappropriate and unrealistic thought processes are found at R. 48-49, where he indicated he could do alcoholic counseling, drafting, and engineering.

Plaintiff heeded this psychologist’s recommendation in anticipation that he would be able to work again. His therapy, however, disclosed additional and much more serious problems. An April 20, 1983 report from his psychologist disclosed:

After my initial evaluation of the above individual (see Report dated 1/27/83) I began seeing him in weekly psychotherapy sessions, which I anticipate continuing for a year or so. In my contacts with him I have found that there is much more serious psychopathology — and disability — then I was aware of from my first evaluation, which was directed toward the. issue of brain damage because of a previous diagnosis of Organic Brain Syndrome. My current diagnosis is that of a chronic paranoid schizophrenic reaction in a recovering alcoholic with minimal brain dysfunction. Clinically and on psychological tests I have found him to have substantial delusional ideas and I feel that these paranoid beliefs play a dominant role in his social isolation and estrangement from people, including family members. Heretofore I thought he might be able to handle the demands of employment within the next six months but I am not expecting him to be able to handle gainful employment for at least a year or more, but I am fairly hopeful about the long term prognosis for this individual. In addition to the therapy, I am also encouraging him to pursue vocational evaluation and training with the Department of Vocational Rehabilitation.

(R. 176) It is this report which was submitted to the Appeals Council after the hearing and which occasioned the previous remand of this case to the Secretary.

Specific examples of Plaintiff’s isolation and other symptoms can also be found in his testimony. He lives in a storage van on a business street. His only amenities are a couch, an old TV and a hot plate. He has no restroom and no running water. (R. 44) He has only one friend around whom his few activities revolve. (R. 45) His only other social contact is his sister. (R. 53) He inarticulately expressed a problem relating to people. (R. 45-46) He has depression “day and night.” (R. 46)

This court has previously described the scope of review in Green v. Schweiker, 582 F.Supp. 786 (1984) at 789-790:

The standard of review in this case is established by 42 U.S;C. § 405(g), which provides that ‘the finding of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.’ Substantial evidence is such evidence as a reasonable person would accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).
In Arie v. Heckler, No. 82-1608 (D.Kan. July 15, 1983), the Court stated:
While it is not the duty of the Court to reweigh the evidence, the Court may not mechanically accept the findings of the Secretary, but must scrutinize the entire record to determine whether the conclusions reached are rational. Martin v. Schweiker, 562 F.Supp. 912 (D.Kan.1982). The Court cannot affirm the Secretary’s decision by isolating a few facts and calling them “substantial evidence.” Cline v. Califano, No. 78-4166 (D.Kan. August 31, 1979). In applying these standards, the Court must keep in mind that the purpose of the Social Security Act is to ameliorate some of the rigors of life for those who are disabled. Dvorak v. Celebreeze, 345 F.2d 894 (10th Cir.1965).

In the order remanding this case, this Court expressed the view that there was not substantial evidence to support the Secretary’s decision. A full review of all the evidence was ordered. This order included instructions that a reconsideration by the ALJ be conducted. It was this Court’s opinion that the ALJ, as the finder of fact, should have the opportunity to listen to the Plaintiff’s testimony with the benefit of the knowledge of Plaintiff’s mental disorder contained in the April 20, 1983 report. The order remanding this case also stated:

The Appeals Council cited the following criteria for review:

Appeals Council will grant a request for review of a hearing decision where: (1) there appears to be an abuse of discretion by the administrative law judge; (2) there is an error of law; (3) the administrative law judge’s action, findings, or conclusions are not supported by substantial evidence, or (4) there is a broad policy or procedural issue which may affect the general public interest. These sections also provide that where new and material evidence is submitted with the request for review, the entire record will be evaluated and review will be granted where the Appeals Council finds that the administrative law judge’s action, findings, or conclusion is contrary to the weight of the evidence currently of record.

The Appeals Council then found that there is no basis for review because the diagnosis of chronic paranoid schizophrenic reaction is without clinical findings and the diagnosis of minimal brain dysfunction is not different from the diagnosis presented at the hearing. This ruling by the Appeals Council is clearly erroneous. The new evidence is material, and it is based on clinical findings including both clinical observations and tests. While the AU did not abuse his discretion by not considering this evidence, since that evidence was not available at the time of the hearing, it was an error of law for the agency to refuse to consider it when it was properly presented. In view of the significance of this new evidence, it may well be that the ALJ’s ruling is not based on substantial evidence. Because of the order which follows, no final ruling is now made in this regard. Finally, there does appear to be a broad policy or procedural issue which may affect the general public interest in that the agency has declined to reconsider the AU’s ruling when it was presented with such material new evidence in due course during the administrative process.

Plaintiff is disabled by his mental impairment if he meets the “listing” found at 20 C.F.R. Part 404, Subpart P. Appendix 1 § 12.03. Plaintiff may still be disabled if he lacks the residual functional capacity for substantial gainful activity even if his impairments do not meet the listings. The Secretary’s policy of assuming that a younger worker who does not meet the listings is not disabled has been enjoined. Mental Health Association of Minnesota v. Schweiker, 554 F.Supp. 157 (D.Minn.1982) held in a class action that the agency must still determine the residual functional capacity for work of people who did not meet the listings. This ruling was upheld with modification that does not undermine the district court’s ruling. Mental Health Ass’n of Minnesota v. Heckler, 720 F.2d 965 (8th Cir.1983). See also City of New York v. Heckler, 578 F.Supp. 1109 (E.D.N.Y.1984) and Stokes v. Schweiker, 729 F.2d 932 (3d Cir.1984). The Secretary has since repealed nationwide the policy enjoined in Mental Health Association of Minnesota. See 4 R.I.A. Social Security Coordinator § 30,793. Residual functional capacity must, therefore, be determined according to 20 C.F.R. § 404.1545(c):

(c) Mental impairments. When we assess your impairment because of mental disorders, we consider factors such as your ability to understand, to carry out and remember instructions, and to respond appropriately to supervision, coworkers and work pressures in a work setting.

See Stokes v. Schweiker, supra.

It is a matter of common knowledge that chronic paranoid schizophrenia is at best a devastating illness. Morrone v. Secretary of HEW, 372 F.Supp. 794 (E.D.Pa.1974). Schizophrenia, even with medication and even if there are no active delusions or bizarre behavior, prevents the person afflicted from making appropriate emotional responses to people, saps his energy, undermines his motivation, and prevents sustained activity for any period of time. City of New York v. Heckler, supra. The facts of this case demonstrate that Plaintiff does meet the listings for psychotic impairments. He meets part A found at 20 C.F.R. Part 404, Appendix 1 § 12.03 of the test because his schizophrenia is productive of both depression and delusions. He meets part B of the listing because “his paranoid beliefs play a dominant role in his social isolation and estrangement from people, including family members.” (R. 176) His previously described living circumstances and limited activities further corroborate the fact that he fulfills the requirements of part B of the listing.

The evidence of disabling schizophrenia is uncontradicted in the record. It is well recognized that where all expert opinions support or tend to support the claim of disability and no medical or other testimony appears to the contrary, then the Secretary’s decision denying disability is not supported by substantial evidence. Berven v. Gardner, 414 F.2d 857 (8th Cir.1969); Celebrezze v. Warren, 339 F.2d 833 (10th Cir.1964); and Ross v. Gardner, 365 F.2d 554 (6th Cir.1966). Medical evidence contradicting Plaintiff’s disability must be substantial. Bastien v. Califano, 572 F.2d 908 (2d Cir.1978); Broadbent v. Harris, 698 F.2d 407 (10th Cir.1983); and Branham v. Gardner, 383 F.2d 614 (6th Cir.1967). See also Miller v. Califano, (D.Kan.1980) Unpub. No. 78-1417.

Furthermore, the Secretary is required to consider Plaintiff’s impairments in combination. This was not done by the AU, who offered no analysis of how Plaintiff’s brain dysfunction and related problems of inhibition might contribute to his other impairments that made him fit for sedentary employment only. (R. 14-17) Neither did the Appeals Council consider the evidence of paranoid schizophrenia in combination with the brain dysfunction, disinhibition, and physical impairments. (R. 5) In its Clarifying Order, the Appeals Council recited all of Plaintiff’s impairments but offered no analysis of their combined effect. Unless the Secretary considers all of a claimant’s impairments, singly and in combination, the decision is not supported by substantial evidence. Murphy v. Schweiker, 524 F.Supp. 228 (Ohio, 1981); Brittingham v. Weinberger, 408 F.Supp. 606 (E.D.Pa., 1976); and Bittel v. Richardson, supra. In fact, every circuit has ruled that the combined effects of all impairments must be considered. Francis, Social Security Disability Claims, § 11:42 citing McLain v. Schweiker, 715 F.2d 866 (4th Cir.1983) and Deloatche v. Heckler, 715 F.2d 148 (4th Cir.1983).

The Appeals Council dismissed the evidence of paranoid schizophrenia as being “without clinical findings.” (R. 5) Nothing could be further from the facts. Observations or reports of delusions, paranoid beliefs, and social isolation made over a period of three months of weekly psychotherapy sessions by a clinical psychologist (R. 176) should qualify as clinical findings if anything does. In any event, the courts consistently reject the Secretary’s overly restrictive requirements of clinical findings. Especially in the case of mental impairments, precise diagnostic techniques are not required. See 4 R.I.A. Social Security Coordinator § 30,445 and Taddeo v. Richardson, 351 F.Supp. 177 (C.D.Calif.1972). A strict reading of the statutory requirement that an impairment be “demonstrable by medically acceptable clinical and laboratory diagnostic techniques” is inappropriate in the context of mental illness. Lewis v. Weinberger, 541 F.2d 417 (4th Cir.1976); Wyatt v. Weinberger, 519 F.2d 1285 (4th Cir.1975); and Young v. Harris, 507 F.Supp. 907 (D.S.C.1981). The court in Ross v. Gardner, 365 F.2d 554, 558 (6th Cir.1966) noted that few cases of disabling mental impairment could be documented by objective clinical findings.

This Court also finds persuasive a Department of Social and Rehabilitation Services Closure Report on Plaintiff which was previously submitted to this Court in support of his motion for remand, signed by both a counselor and a supervisor, this vocational rehabilitation assessment indicates that Plaintiff is not eligible for services because his handicap is too severe to make rehabilitation services worthwhile. In fact, his impairments' were judged to be so severe that his case will not be reviewed. This evidence is both new and material, and should have been considered as part of the “full review of all the evidence” previously ordered by this Court.

The Appeals Council’s Clarifying Order states:

The Appeals Council believes that these findings identify a mild behavior disorder, however, they do not identify a significant mental impairment such as a psychosis involving gross distortions of external reality or disorganization of personality. Particularly absent in the reports of record including the added reports by Dr. Ruthven are medical signs and findings noting an impaired intellect and specific abnormalities relating to affect, thought, memory, orientation and contact with reality, and other related findings showing marked restriction of activities, constriction of interests, and deteriorations of personal habits.

This belief of the Appeals Council bears no relation to the evidence in the record. Dr. Ruthven found delusional ideas and paranoid beliefs which play a dominant role in Plaintiff’s social isolation and estrangement from people. Far from “a mild behavior disorder,” the entire record establishes a severe psychotic disorder which meets the listing and which certainly deprives Plaintiff of the residual functional capacity for any substantial gainful activity. The Secretary would have to ignore the record to reach a contrary conclusion. There is no substantial basis for the Secretary’s ruling.

It was hoped that with the instructions contained in the remand of this case that the Secretary would reconsider this case in the proper and legal perspective. Instead, the Secretary has turned a deaf ear to a case of obvious disability. This attitude is shocking enough. But the Secretary has shown this Court no more respect nor concern for following the law than it has shown Plaintiff. This Court ordered the Secretary to include reconsideration by the ALJ as part of its proceedings pursuant to the remand of this case. The Secretary instead defied this order by conducting the reconsideration only through the Appeals Council. This defiance of the Court’s order did not enter into the deliberations of the merits of this case, but this Court can not refrain from observing that such defiance indicates an arrogant administrative attitude that is either bent upon denying benefits no matter how meritorious the claim or a callousness and indifference that amounts to the same thing.

The Secretary's decision terminating disability benefits is not supported by substantial evidence in the record. Plaintiff has established his claim for continuing benefits from the original onset of his disability to the present.

IT IS THEREFORE ORDERED that the Plaintiff’s motion for summary judgment is granted, and the Secretary’s motion for an order affirming the Secretary’s decision is denied. The Secretary is directed to restore Plaintiff’s period of disability and all unpaid benefits from May, 1982 to the present.


author: JAMES E. DOYLE, District Judge.

text:
    Maureen STOREY, Plaintiff, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM and Milton L. Sunde, Defendants.
    No. 84-C-250-D.
    United States District Court, W.D. Wisconsin.
    Jan. 22, 1985.

      Michael R. Fox, Madison, Wis., for plaintiff.
    Diane Nicks, Asst. Atty. Gen., State of Wis., Dept, of Justice, Madison, Wis., for defendants.
   OPINION AND ORDER

JAMES E. DOYLE, District Judge.

Plaintiff alleges that as a result of deliberate sex discrimination she was denied state employment by defendants. The complaint purports to state three causes of action, under the following statutory authorities: Title IX of the Education Act Amendments of 1972, 20 U.S.C. § 1001 et seq. (Title IX); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII); and 42 U.S.C. § 1983. Defendants have moved to dismiss the Title IX and § 1983 claims. I construe defendants’ motion as one arising under rule 12(b)(6) of the Federal Rules of Civil Procedure.

OPINION

The purely legal question presented by defendants’ motion is whether Title VII is the exclusive avenue of relief available to plaintiff. In arguing Title VII is an exclusive remedy, defendants invoke the principle that where two or more alternative statutory mechanisms exist to redress a wrong, a detailed, comprehensive scheme preempts more general remedies. Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). In Brown the plaintiff asserted a claim under 42 U.S.C. § 1981 as well as under Title VII, but the Court held that Title VII was the exclusive remedy for claims of discrimination in federal employment. Language in the legislative history of Title VII showed Congress perceived that federal employees had no effective remedies prior to enactment of Title VII. From this the Court inferred congressional intent to make Title VII the exclusive remedy available to federal employees: “It would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading.” Id. at 833, 96 S.Ct. at 1968. The Court concluded the detailed scheme of Title VII preempted the potential remedy under the broadly worded § 1981.

Defendants contend that applying the principle of implied exclusivity articulated in Brown and other eases compels the conclusion that in this action involving state employment, plaintiff is limited to Title VII. For support, defendants cite a recent case involving state employment, Torres v. Wis. Dept. of Health and Social Services, 592 F.Supp. 922 (E.D.Wis.1984). There the court held that the plaintiff’s constitutional claims, raised under § 1983, were so intertwined with those arising under Title VII that Title VII was the exclusive remedy. Applying the Brown rationale, the court inferred congressional intent to limit the availability of § 1983 in situations where Title VII offers an effective remedy.

I am sympathetic to defendants’ contention that as a matter of policy it is undesirable to permit plaintiffs to circumvent the procedural and remedial limits of the Title VII scheme by pleading alternative causes of action, such as § 1983, when the same facts underlie both claims. I subscribe to the principle that a court should infer that in general Congress intends the detailed and comprehensive to preempt the general.

Nonetheless, I conclude Title VII is not plaintiff’s exclusive remedy in this case. There is an important proviso to the rule of implied exclusivity, namely, that it is applicable only in the absence of legislative history evincing a contrary intent. It is clearly Congress’ prerogative to provide overlapping and duplicative remedial statutory schemes if it chooses; courts may make a reasoned inference about Congress’ intent only when Congress has not articulated its position on the exclusivity of the remedies it has created. The cases defendants rely on are distinguishable in that the legislative history of the statutes involved in those cases were silent or inconclusive as to exclusivity. Smith v. Robinson, et al, — U.S. -, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984) (Education of the Handicapped Act preempts § 1983); Middlesex Cty. Sewerage Authority v. Sea Clammers, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (environmental protection statutes preempt § 1983); Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (Title VII is exclusive remedy for federal employees); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (statutory habeas corpus scheme preempts § 1983).

Brown is not controlling because it involved a claim of discrimination in federal employment; this case involves state employment, a critical distinction. In the legislative history of the relevant amendments to Title VII, Congress was silent regarding the exclusivity of remedies for federal employees, permitting the Court to infer Congress intended to preempt all non-Title VII remedies. With regard to state employment, however, the legislative history shows an explicit intent to leave untouched pre-existing avenues of relief available to state and local employees:

In establishing the applicability of Title VII to State and local employees, the Committee wishes to emphasize that the individual’s right to file a civil action in his own behalf, pursuant to the Civil Rights Act of 1870 and 1871, 42 U.S.C. §§ 1981 and 1983, is in no way affected____ Title VII was envisioned as an independent statutory authority meant to provide an aggrieved individual with an additional remedy to redress employment discrimination____ Inclusion of state and local employees among those enjoying the protection of Title VII provides an alternate administrative remedy to the existing prohibition against discrimination perpetuated ‘under color of state law’ as embodied in the Civil Rights Act of 1871, 42 U.S.C. § 1983.

H.R.Rep. No. 238, 92nd Cong., 2nd Sess., reprinted in 1972 U.S.Code Cong. & Ad. News 2137, 2154. That the majority clearly intended Title VII to be a nonexclusive remedy for state and local employees is corroborated by statements made by dissenters from the legislation:

3. Failure to Make Title VII an Exclusive Federal Remedy. Despite the enactment of title VII of the Civil Rights Act, charges of discriminatory employment conditions may still be brought under prior existing federal statutes such as the National Labor Relations Act and the Civil Rights Act of 1866. In view of the comprehensive prohibitions against discrimination contained in title VII, and the intent of the Committee bill to consolidate procedures and remedies under one agency, it would be consistent to make title VII the exclusive remedy____ However, our attempt to amend the Committee bill to make title VII an exclusive remedy ... was rejected.

Id. at 2175.

Brown itself makes clear that explicit legislative intent is controlling. In holding Title VII the exclusive remedy for federal employment discrimination, the Court distinguished a prior ruling that a private employee is not limited to Title VII. Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). In Johnson the Court had held that Congress intended not to deprive private employees of alternative remedies previously available to them. “ ‘The legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.’ ” Id. at 459, 95 S.Ct. at 1719, quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 48, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). Because there is an equally clear expression of congressional intent with regard to the legislation at issue here, as it affects state employment, this case is governed by Johnson rather than Brown.

Further, I think it not significant that the proof offered to support both a Title VII claim and a non-Title VII claim may be identical. Unlike the district court in Torres v. Wis. Dept. of Health and Social Services, 592 F.Supp. 922 (E.D.Wis.1984), I reject the view that when the claim asserted can be brought under Title VII as well as under another label, Title VII is the exclusive remedy. Congress recognized Title VII provided remedies coextensive with other forms of relief, such as those available under 42 U.S.C. § 1981. H.R.Rep. No. 238, supra, at 2154. Also, I find no indication in case law that the exclusivity of Title VII turns on whether the claim could be brought solely under Title VII. Hence I conclude that plaintiff is not limited to Title VII in her quest for relief from alleged discrimination in state employment.

Deciding that Title VII is not plaintiff’s exclusive remedy does not end the inquiry, for I must still determine whether plaintiff can properly raise her particular non-Title VII claims. Although Congress intended to retain alternative remedies for discrimination in the context of state employment, it appears Congress intended to retain only those statutory remedies already in existence when Title VII was enacted. The drafters stated that “[t]he bill, therefore, by extending jurisdiction to State and local government employees does not affect existing rights that such individuals have already been granted by previous legislation.” H.R.Rep. No. 238, supra, at 2154.

Even though § 1983 is a pre-existing remedy, it does not follow that every employment-related claim stated under § 1983 is permissible in an employment discrimination suit. Section 1983 provides a remedy for deprivation of rights secured by the “laws” of the United States. If the right sued upon under § 1983 is itself a right secured by Title VII, which contains its own detailed remedial provisions, a suit under § 1983 to vindicate that particular right may well be barred. In Great American Fed. S. & L. Assn v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), the Court held that a plaintiff could not seek to redress a violation of Title VII by means of 42 U.S.C. § 1985. There the plaintiff complained he was fired in retaliation for his criticism of discriminatory treatment of female employees by his employer. Title VII forbids such retaliation, and plaintiff’s claim was based on a violation of that act. The Court reasoned that allowing a plaintiff to invoke § 1985 to redress a violation of Title VII would permit the circumvention of the rigid, detailed scheme of Title VII. The Court inferred Congress did not intend to create new rights under Title VII, yet permit claimants to bypass the Title VII mechanism in seeking to redress of violations of those rights.

Defendants’ reliance on Novotny is misplaced. The right I understand plaintiff to allege in this case, the right to be considered for employment without regard to her sex, was not created by Title VII. The Constitution itself addresses the matter by its guarantee of equal protection. See, e.g., Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). Since Title VII is not the sole source of the right plaintiff seeks to vindicate, the rationale of Novotny is inapplicable. See Day v. Wayne County Board of Auditors, 749 F.2d 1199 (6th Cir.1984).

More troublesome is plaintiffs cause of action under Title IX, which was enacted after the amendments of Title VII at issue here. In support of her Title IX claim, plaintiff alleges the same facts as those alleged under her Title VII cause of action. She requests the same relief as that sought under Title VII — instatement in the position she was denied, with back pay — but also a remedy unique to her Title IX cause of action: the cutoff of federal funds to the Board of Regents. Were plaintiff to invoke Title IX simply to provide an additional avenue to redress the alleged wrong she personally suffered, Title VII would preempt Title IX. Under the principles discussed above, in enacting Title VII, Congress presumably intended to leave intact only pre-existing alternative remedies, not to permit future overlapping avenues of relief unless it explicitly announced, in the course of providing the subsequent remedy, that it was to be in addition to Title VII. No such announcement accompanied enactment of Title IX. However, plaintiff seeks also a remedy unique to her Title IX cause of action, namely, the cutoff of all federal funds to the Board of Regents. Assuming plaintiff is a proper party to seek such relief, the unavailability of such a remedy under Title VII would incline me to conclude that Title VII does not preempt a Title IX claim seeking this unique remedy. If the Title IX remedy differed only in the extent or type of recovery to which plaintiff was entitled on account of the particular instance of discrimination she personally suffered — e.g., if Title IX provided compensatory and punitive damages — I would think otherwise. It appears, though, that in seeking a cutoff of funds plaintiff purports to act in the manner of a private attorney general, an opportunity not available under Title VIL I think Congress would not have created such a qualitatively different remedial mechanism under Title IX, assuming that it did, only to have Title VII preempt it when the asserted discrimination arises in the context of employment.

The crucial question is whether, on the basis of the allegations stated in the complaint, plaintiff is entitled to seek such a remedy under Title IX. I am reluctant to resolve this issue without having the parties address it explicitly. In particular, the parties should discuss whether Title IX permits an individual claiming an isolated instance of discrimination to effect a cutoff of federal funds to an institution and, further, whether success on such a claim could permit plaintiff to obtain a cutoff of all funds systemwide.

ORDER

Defendants’ motion to dismiss is denied with respect to plaintiff’s claim under 42 U.S.C. § 1983. Until I have received supplemental briefing from the parties, I reserve ruling on defendants’ motion to dismiss plaintiff’s claim under Title IX.

      . The Sixth Circuit recently extended the rationale of Novotny to bar § 1983 claims based on violations of Title VII. Day v. Wayne County Board of Auditors, 749 F.2d 1199 (6th Cir.1984).

      . This conclusion is premised on my assumption that the substantive standards established by Title VII and Title IX are highly similar, if not identical. Title VII makes it unlawful for an employer "to fail or refuse to hire ... any individual, or otherwise to discriminate against any individual ... because of such individual’s ... sex ....’’ 42 U.S.C. § 2000e-2(a)(l). Title IX provides that "[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be'subjected to discrimination under any education program or activity receiving Federal financial assistance ....” 20 U.S.C. § 1681(a).

      . A number of years passed after Title IX was enacted before that act was recognized as implicitly creating a private right of action. Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). It has been even more recently that the Supreme Court has held that Title IX applied in the employment context. North Haven Board of Education v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982).