author: SCOTT, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. ONE LOT OF U.S. CURRENCY TOTALLING $506,537.00, Defendant.
    No. 85-2130-CIV-SCOTT.
    United States District Court, S.D. Florida, Miami Division.
    Feb. 24, 1986.
    Jonathan Goodman, Asst. U.S. Atty., Miami, Fla., for plaintiff.
    Robert I. Targ, Pave & Targ, Miami, Fla., for defendant.
   FINAL ORDER

SCOTT, District Judge.

This in rem civil forfeiture action came before this Court on February 14, 1986 for a status conference. The United States’ Motion For Sanctions, Claimant’s Motion For A Protective Order and the United States’ request to strike or dismiss Randolph Habibe’s claim were before the Court. The parties submitted legal memoranda before the hearing. This Court heard oral argument and took the motions under advisement.

For reasons set forth in more detail below, the Court is dismissing Randolph Habibe’s claim with prejudice and granting a final judgment of forfeiture in favor of the United States. In brief, however, this Court is dismissing the claim for two reasons, either one of which is independently sufficient to justify dismissal: (1) Randolph Habibe is a fugitive from justice and is barred from litigating his claim in federal court; and (2) Randolph Habibe has willfully ignored his discovery obligations by repeatedly failing to appear for scheduled depositions, thus subjecting himself to sanctions under Rule 37(d), Federal Rules of Civil Procedure.

As illustrated below, this Court has given Mr. Habibe wide latitude to purge his prior discovery abuses and alter his status as a fugitive from justice. Mr. Habibe, however, has refused this Court’s final invitation that he appear for deposition.

FACTUAL BACKGROUND

On August 13, 1983, the defendant currency was seized at Miami International Airport. The United States alleged that the currency should be forfeited to the government under 31 U.S.C. § 5317 because no report of the transportation of the currency was filed with the United States Customs Service, as required by 31 U.S.C. § 5316 and the regulations promulgated by the Secretary of Treasury.

On July 27,1984, a warrant for Randolph Habibe’s arrest was issued. The charges in the arrest warrant — aiding and abetting the failure to file U.S. Customs Form 4790 in connection with the export of the defendant currency — directly relate to the factual scenario underlying this forfeiture action. The forfeiture action against the defendant currency was filed on June 5, 1985.

Randolph Habibe interposed a claim in this in rem civil forfeiture action. Over the past several months, he has filed motions and memoranda with the Court. His counsel has been accorded oral argument. After voluntarily filing a claim, claimant availed himself of the discovery tools open to federal court litigants. For example, he propounded interrogatories to the United States, which answered them.

The United States noticed Mr. Habibe for a deposition on September 20, 1985. Mr. Habibe did not appear for his scheduled deposition. Instead, his counsel advised the United States that Mr. Habibe needed to determine whether he would even come to the United States, where he is facing criminal charges.

Several weeks later, the United States again noticed Mr. Habibe for a deposition, scheduling it for October 23, 1985. Mr. Habibe did not appear for this deposition either. His counsel advised the United States that Mr. Habibe needed additional time in which to work out the details (e.g. the amount of bond) of his surrender to federal law enforcement officials.

The United States sent out a third notice of taking deposition, scheduling Mr. Habibe’s deposition for January 16,1986. Mr. Habibe did not appear. Two days before the deposition, claimant’s counsel advised the Assistant United States Attorney that Mr. Habibe was still “arranging” the details of the trip and would not be coming to his scheduled deposition. Claimant did not seek a protective order, assert any objection or otherwise seek to be excused from the deposition.

Confronted with a claimant who willfully and repeatedly failed to appear for scheduled depositions without benefit of court order, the United States filed a Motion For Sanctions, seeking, among other available sanctions, to have Mr. Habibe’s claim stricken under Rule 37(d), Federal Rules of Civil Procedure.

Claimant opposed the motion. In addition, Mr. Habibe filed a motion for a protective order, requesting that the government be compelled to depose him in Aruba.

In claimant’s motion for a protective order, he conceded that he does not intend to voluntarily return to the United States. Furthermore, claimant expressly indicated that his failure to appear for his deposition was solely motivated by his desire to avoid the pending criminal charges. By way of example, claimant’s motion states that he seeks a protective order “because there is a pending warrant of arrest for claimant” and because “the threat of criminal prosecution precludes claimant from returning to the United States at this time.”

Before the status conference, the government submitted a supplemental memoranda of law, pointing out that Mr. Habibe is a “fugitive from justice” who is barred from using the resources of this Court for determination of his claims.

At the status conference, this Court specifically asked claimant’s counsel whether Mr. Habibe would be willing to appear for his deposition. In particular, this Court gave claimant an opportunity to purge the prior discovery abuse, inviting him to appear within 10 days (or some other convenient period of time). Claimant’s counsel openly refused the offer.

THE FUGITIVE FROM JUSTICE DOCTRINE

As indicated, this Court is dismissing Mr. Habibe’s claim, with prejudice, under the so-called “fugitive from justice” doctrine.

It is beyond preadventure that a fugitive from justice is not entitled to litigate his claim in federal court. Simply stated, a fugitive from justice is not entitled to call upon the resources of court for determination of his case. See, e.g., Molinaro v. New Jersey, 396 U.S. 365, 366-67, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970) (convicted appellant’s status as a federal fugitive “disentitles the defendant to call upon the resources of the Court for determination of his claims”); Broadway v. City of Montgomery, 530 F.2d 657, 659 (5th Cir.1976) (“fugitive from justice is not entitled to call on the resources of an appellate court”).

The fugitive-from-justice bar has been applied to all types of legal proceedings. See, e.g. United States Ex. Rel. Bailey v. U.S. Commanding Officer, 496 F.2d 324 (1st Cir.1974) (habeas corpus petition dismissed because petitioner escaped from military custody and refused to return); Doyle v. United States Department of Justice, 668 F.2d 1365 (D.C.Cir.1981), cert. denied, 455 U.S. 1002, 102 S.Ct. 1636, 71 L.Ed.2d 870 (1982) (Freedom of Information Act plaintiff not entitled to call upon resources of the court because he is a fugitive from justice).

In fact, the fugitive-from-justice rule has been used to bar claimants, such as the one involved in the instant case, from determining their case in civil forfeiture actions. See e.g., United States v. $45,940 In U.S. Currency, 739 F.2d 792 (2d. Cir.1984) (a Canadian who was a fugitive from justice in a United States prosecution was not entitled to assert a claim in a civil forfeiture proceeding).

Claimant, Randolph Habibe, is a federal fugitive from justice. Criminal charges have been pending against him for more than a year (the arrest warrant was issued on July 27,1984). Habibe has not returned to this country since the warrant was issued. To the contrary, he has deliberately stayed out of this country. Furthermore, he has refused this Court’s offer to appear for a deposition.

Claimant incorrectly argued (albeit without citing any supporting authority) that he is not a fugitive from justice because he already returned to Aruba by the time the arrest warrant was issued. This factor, however, is not controlling because a person who learns of charges while legally outside the jurisdiction “constructively flees” by deciding (as Habibe has done) not to return.

The fugitive from justice provision of 18 U.S.C. § 3290 (tolling the statute of limitations to “any person fleeing from justice”) encompasses the concept of “constructive flight” because there is no meaningful distinction between those who leave a country and those persons, such as Mr. Habibe, who refuse to return after learning of criminal charges pending against them. Jhirad v. Ferrandina, 536 F.2d 478 (2d Cir.1976), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976). Mr. Habibe, therefore, is a fugitive from justice. See United States v. $45,940 in United States Currency, 739 F.2d 792 (2d Cir.1984) (Canadian fugitive from justice barred from pursuing his claim in a civil forfeiture proceeding— even though the criminal charges were filed after he left the country and even though he would need to apply for admission to the United States after being deported).

As succinctly stated in United States v. Catino, 735 F.2d 718, 722 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984):

The intent to flee from prosecution or arrest may be inferred from a person’s failure to surrender to authorities once he learns that charges against him are pending, (citations omitted). This is true whether the defendant leaves the jurisdiction intending to avoid prosecution or, having learned of charges while legally outside the jurisdiction, “constructively flees” by deciding not to return, (emphasis supplied).

By way of providing context, this court notes that claimant’s conduct is inherently inequitable. Claimant has taken advantage of the rights accorded litigants— but wants to avoid the associated duties. He is trying to use this Court’s processes as a sword while attempting to simultaneously shield himself from the same type of judicial process. This type of conduct is, simply stated, unfair. See, e.g., United States v. $239,500 In U.S. Currency, 764 F.2d 771 (11th Cir.1985) (claimant who refused to appear for his deposition in a civil forfeiture case had his claim dismissed).

DISMISSAL AS A SANCTION FOR DISCOVERY ABUSE

Although the fugitive from justice doctrine is, by itself, reason .enough to dismiss the claim with prejudice, the discovery abuses are separate, additional reasons for dismissal.

Claimant’s flagrant and willful disregard for his discovery obligations cannot be countenanced, especially because he has obtained discovery from the government. Not only does it display contempt for this Court and the judicial process, but it severely prejudices the United States’ ability to pursue this litigation.

Federal Rules of Civil Procedure 37(d) authorizes the imposition of sanctions, including dismissal, for a complete failure to appear for a deposition after being served with notice. No prior court order is required for Rule 37(d) sanctions. Although courts frequently enter an order compelling discovery before entering sanctions, Rule 37(d) authorizes sanctions without violation of a prior court order. “Dismissal is a proper sanction under Rule 37(d) for a serious or total failure to respond to discovery even without a prior order.” Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir.1981). See also Dorey v. Dorey, 609 F.2d 1128 (5th Cir.1980) (discovery sanctions may be imposed without a prior violation of a court order when a party fails to appear for deposition).

This Court has broad discretion in determining which sanctions it will impose on a party that fails to obey its discovery orders. Dorey v. Dorey, 609 F.2d 1128 (5th Cir.1980). See also Securities and Exchange Commission v. Wencke, 577 F.2d 619 (9th Cir.1978) (default judgment entered).

Once failure to comply with discovery has occurred, as has unquestionably happened here, it becomes “encumbent on the disobedient party to show that his failure is justified.” David v. Hooker, Ltd., 560 F.2d 412 (9th Cir.1977).

Claimant has not demonstrated any valid reason for his failure to comply. This Court, as well as the United States, has been more than patient and has given claimant the henéfit, oTevery doubt. Under these circumstances, extreme sanctions are appropriate. Without themTcIaimant can continue to act with ímpunityT

At this stage m the case, extreme sanctions are required. This Court believes that claimant is precisely the type of litigant that the U.S. Supreme Court had in mind when it held that “Rule 37 sanctions must be applied diligently ... to penalize those whose conduct may be deemed to warrant such a sanction . . .” Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980).

This Circuit, and others, has repeatedly affirmed the imposition of extreme sanctions for the discovery conduct involved here (i.e., repeated failures to attend a deposition). See United States v. $239,500 In U.S. Currency, 764 F.2d 771 (11th Cir.1985) (dismissal of claims for failure to attend deposition); Hashemi v. Campaigner Publications, Inc., 737 F.2d 1538 (11th Cir.1984) (dismissal for plaintiff’s failure to appear at scheduled depositions); Bonaventure v. Butler, 593 F.2d 625 (5th Cir.1979) (plaintiff's suit dismissed for refusals to appear for scheduled depositions); Shawmut Boston International Banking Corporation v. Duque-Pena, 767 F.2d 1504 (11th Cir.1985) (default judgment entered against defendant as a Rule 37 sanction for inter alia, failure to attend deposition).

Mr. Habibe’s conduct in the instant case is similar to the conduct of five plaintiffs in Al Barnett & Son, Inc. v. Outboard Marine Corporation, 611 F.2d 32 (3d Cir.1979), where the court dismissed their claims for failure to attend scheduled depositions. Similar to the tactics used by Habibe here, the five plaintiffs in Outboard Marine did not seek a protective order or raise an objection to the depositions. Instead, their counsel simply notified defense counsel that they would not appear. The plaintiffs there argued (unsuccessfully) that the dismissal sanction was too severe. Furthermore, they argued (again, unsuccessfully) that the Court needed to first order them to appear for depositions. In rejecting these arguments, the Court set forth a rationale that is directly applicable to this case:

Litigants may oppose discovery requests by seeking a protective order from the court, (citations omitted); they cannot be permitted to frustrate discovery by refusing to comply with a proper request.

Because claimant’s total failure to appear for deposition is willful and indicative of an irresponsible attitude toward its discovery obligations, this Court has the discretion to impose harsh sanctions, such as striking the claim or entering default judgment. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (court’s imposition of extreme sanctions improper only if there is an abuse of discretion); Properties International Ltd. v. Turner, 706 F.2d 308 (11th Cir.1983) (impositions of sanctions for discovery abuse will not be overturned unless there is an abuse of discretion). This Court will exercise its broad discretion and dismiss Habibe’s claim with prejudice.

The willfulness of Mr. Habibe’s failure to provide discovery is not in doubt. This is not a case where a party was not aware of his discovery obligations, nor is it a case where a party attempted to first obtain a protective order. Moreover, this is not a case where the sins of the attorney (e.g., sloppy calendaring of the discovery timetable) would be visited on the client. Similarly, the discovery violations are not the type that might be explained by a party’s misconception about the scope of discovery. Instead, this is a case where the party himself has intentionally decided to ignore his discovery obligations.

Extreme sanctions are warranted by claimant’s past conduct, as well as his refusal to appear here in the future. Because extreme sanctions are designed to penalize parties who ignore discovery obligations, and to serve as a deterrent, Roadway Express, Inc. v. Piper, 100 S.Ct. at 2463, Mr. Habibe’s willful failures to comply with basic discovery obligations warrant the sanction of dismissal with prejudice.

Because Mr. Habibe is the only claimant in this forfeiture action, the United States is entitled to a final judgment of forfeiture. Pursuant to Rule 58, Federal Rules of Civil Procedure, this Court will enter a separate judgment.

      . The defendant currency has appreciated since its initial seizure. Pursuant to a Joint Motion For Leave To Deposit Defendant Currency In An Interest Bearing Account, this Court appointed claimant's counsel substitute custodian so that he could deposit the currency in an interest bearing account. According to the February 7, 1986 Report of Substitute Custodian, the repurchase agreement entered into between the bank and claimant’s counsel (as trustee for his Court) totalled $519,952.04.

      . Customs Forms 4790 is the report that is filed pursuant to the reporting requirements of 31 U.S.C. § 5316.

      . Rule 37(d) authorizes the imposition of sanctions, without violation of a court order compelling discovery responses, when "a party ... fails to appear before the officer who is to take his deposition, after being served with proper notice.”

      . The claimant’s motion for a protective order was not filed until after he failed to appear for depositions and until after the United States filed a Motion For Sanctions.

      . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), the newly formed Eleventh Circuit adopted as binding precedent all decisions handed down by the Fifth Circuit prior to the close of business on September 30, 1981.


source: Caselaw Access Project

author: SHABAZ, District Judge.

license: Public Domain

text:
    Franzetta CALLAWAY, Plaintiff, v. Donald HAFEMAN; Clarence Sherrod; Herman Moody, Jr.; Kwame Salter; Barbara Arnold; Anne Arnesen; Richard Berg; Nicki Smith; Nancy Brien; and the Madison Metropolitan School District, Defendants.
    No. 85-C-611-S.
    United States District Court, W.D. Wisconsin.
    Feb. 24, 1986.

      Stafford, Rosenbaum, Rieser & Hansen, Fox, Fox, Schaefer & Gingras, Madison, Wis., for plaintiff.
    Lawton & Cates, Isaksen, Lathrop, Esch, Hart & Clark, Brynelson, Herrick, Gehl & Bucaida, DeWitt, Sundby, Huggett, Schumacher & Morgan, Madison, Wis., for defendants.
   MEMORANDUM AND ORDER

SHABAZ, District Judge.

Before the Court in this action grounded upon 42 U.S.C. § 1983 are two summary judgment motions: one on behalf of defendant Herman Moody; and the other on behalf of defendants Kwame Salter, Barbara Arnold, Anne Arnesen, Richard Berg, Nicki Smith and Nancy Brien. Jurisdiction is based on 28 U.S.C. § 1343.

MEMORANDUM

I. Motion of Herman Moody

A. Facts

Plaintiff Franzetta Callaway, until July 1, 1985, served the Madison (Wisconsin) Metropolitan School District as Affirmative Action Officer and as a Human Relations Coordinator. In the latter capacity, her supervisor was defendant Herman Moody, Jr., who was the Human Relations Director for the School District. In her capacity as Affirmative Action Officer, plaintiff reported directly to the School District’s Superintendent, defendant Donald Hafeman. Plaintiff had held these positions since her initial hiring in November 1980. Moody assumed his responsibilities as Human Relations Director in July 1983, although he had previously held other positions with the School District.

It is alleged that beginning in January 1983, and intensifying after July 1, 1983, Moody engaged in sexual harassment of the plaintiff. Such harassment took the form of an attempt to kiss the plaintiff, numerous propositions to meet after work or at out-of-town conferences, and suggestive remarks or conduct. These advances were uninvited and discouraged.

Plaintiff complained of this sexual harassment to defendant Salter in December 1983, and again in May or June 1984. She also reported the harassment to defendant Hafeman and defendant Clarence Sherrod, the School District’s legal counsel, in June or July 1984.

Plaintiff’s complaints of the sexual harassment by Dr. Moody were oral and informal. She explains that she did not want to make a public issue of the allegations and viewed the allegations as personal and confidential. A performance evaluation of plaintiff prepared in May 1984 by Moody was, in plaintiff’s view, negative in tone and motivated by her reporting of the sexual harassment. Although Moody denied plaintiff’s allegations, a meeting was held with Superintendent Hafeman to resolve the grievance. Moody was advised that, if such behavior had occurred, it should cease, and that the situation between the two would be monitored. Plaintiff was dissatisfied that she was not transferred from under Moody’s supervision, although this dissatisfaction was relayed only to her attorney.

It is alleged that,Moody thereafter subjected plaintiff to retaliation by creating a hostile work environment. Plaintiff reported this fact to Hafeman, who allegedly did nothing. As late as June 1985, plaintiff was still trying to resolve her dispute with Moody privately and informally, as evidenced by her attorney’s discussion with Mary K. Baum (a School Board member not named in this lawsuit).

During the period that plaintiff was being subjected to retaliation and before this lawsuit was filed (June 1984 through June 1985), a plan to reorganize human relations and affirmative action programs was formulated by Moody, at Hafeman’s delegation. Moody’s initial proposal was submitted in December 1984, and was modified by Hafeman, who thereafter presented the proposal to the Board. The Board also made some modifications, and the plan was implemented in July 1985. The reorganization resulted in plaintiff being reassigned as an administrative assistant in the Human Relations Department, under Moody. Her affirmative action duties were assumed by Moody, and her duties relative to Title IX were assigned to another person. Plaintiff was transferred to an office at Lincoln School, where she was the only administrative staff person present. She considers her new assignment to be a de facto demotion. Plaintiff was openly and publicly critical of the reorganization plan.

B. Opinion

Plaintiff’s claims against defendant Moody are for retaliation because of her complaint of sexual harassment, first claim for relief; and, in the amended fifth claim for relief, for conspiring with others to the same end and with the same motivation under both state and federal law. Plaintiff’s federal claims against Moody are grounded exclusively on the First Amendment. It is her contention that Moody’s retaliatory acts, creating a hostile work environment and formulating a reorganization plan that abolished her position and resulted in her demotion, were motivated by a desire to punish her for reporting Moody’s sexual harassment to his superiors. Plaintiff explicitly concedes this point.

Until recently, the analysis of such claims was controlled by Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), which required a balancing of the interests of the employee as a citizen in commenting on matters of public concern and the interests of the employer. However, in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Court made clear that which was implicit in Pickering: that a threshold inquiry is whether the speech involved is a matter of public concern.

When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.

Connick, 461 U.S. at 146, 103 S.Ct. at 1689-90. See also Knapp v. Whitaker, 757 F.2d 827, 839 (7th Cir.1985). It is at this threshold inquiry where defendant Moody directs his motion. He argues that the speech involved in this case, oral complaints of sexual harassment directed to Moody’s superiors, is not expression relating to a matter of concern to the community. This is a question of law, the determination of which depends upon “an examination of the content, form, and context of the speech.” Yoggerst v. Hedges, 739 F.2d 293, 295 (7th Cir.1984), citing Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690-91.

The Court of Appeals has held that this analysis requires an assessment of the point of the speech in question:

The touchstone in Connick, on which Yoggerst II was based, is the difference between matters of public concern and matters of personal interest ... [T]he Connick test does not consist in looking at what might be incidentally conveyed by the fact that the employee spoke in a certain way. The test requires us to look at the point of the speech in question: was it the employee’s point to bring wrongdoing to light? Or was the point to further some purely private interest? In Connick itself there was no doubt that the issues raised by the employee, issues of morale and discipline, were public concern; the Court looked beyond that fact to the employee’s motive in raising them:
While discipline and morale in the workplace are related to an agency’s efficient performance of its duties, the focus of Myers’ questions is not to evaluate the performance of the office but rather to gather information for another round of controversy with her superiors.
103 S.Ct. 1691. Similarly, in Yoggerst, the question the employee asked expressed dissatisfaction with her superior, and employee dissatisfaction is of some public concern. But the point of asking the question was not to bring the fact of employee dissatisfaction to the attention of the public, but simply to air her own feelings about the director.

Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir.1985) (emphasis in original).

In this case, the context and form of the speech leads to the inescapable conclusion that the concern was personal, not public. The complaints of sexual harassment were oral and meant to be confidential, not public. The content of the speech may have touched upon a matter of significant public concern in the sense that sexual harassment in public employment is a subject of public interest. However, this particular charge did not become a matter of public concern (at least until after this lawsuit was filed) because the point of plaintiff’s complaint to the School District’s administration and School Board members was to resolve a problem with her superior. This case is significantly different than Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) on which plaintiff bases her opposition to the motion. Although the communication in Givhan was indeed private, the speech was on a subject of public concern (racial discrimination) and in a context not connected with plaintiff’s personal interest. It does not matter that sexual harassment, like racial discrimination, may be a matter “inherently of public concern” as plaintiff urges. See Connick, 461 U.S. at 148, n. 10, 103 S.Ct. at 1691-92, n. 10. What matters is that plaintiff's complaint here was personal, not general.

It also does not matter that plaintiff’s position elicits some sympathy. The Court of Appeals noted in Altman v. Hurst, 734 F.2d 1240, 1243-44 (7th Cir.1984) that, when a private motive for the speech is evident, the disciplining of the employee is not actionable under § 1983. The Court concluded that:

[W]e recognize that permitting him to maintain, this action would open the federal floodgates to all manner of petty personnel disputes. Such disputes are best left to internal procedures established by employers and employees or, as here, where no such protection exists or where such procedures are inadequate, through state court adjudication.

Id. at 1244. The private motive of the plaintiff here is indisputably evident. It is admitted that the point of her speech was to bring to the attention of Moody’s superiors the fact of his sexual harassment and to bring about a change in her position as his subordinate. In fact, it is apparent from Altman that the private nature of plaintiff’s communications is not crucial. The Altman plaintiff was complaining, at least in part, of retaliation for filing a federal lawsuit. The fact that the personal dispute became public was not of critical importance, but the employee’s motive for the complaint was. Accordingly, the First Amendment is not implicated in this case, and plaintiff’s federal claims against Moody must be dismissed.

Plaintiff is also asserting a state claim against Moody and others for declaratory and injunctive relief pursuant to the Wisconsin Fair Employment Act, Wis. Stats. § 111.31 et seq. In particular, under § 111.322(3) it is an act of employment discrimination:

(3) To discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subehapter.

Moody seeks summary judgment or dismissal on this claim under three different theories. First, he argues that plaintiff failed to observe the notice of claim requirement of § 893.80(1), Wis.Stats. Second, he argues that plaintiff has not exhausted her state remedy for precisely the same relief under § 111.39, Wis.Stats. And third, he argues that plaintiffs state claim ought to be dismissed under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 383 L.Ed.2d 218 (1966) and Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), because the absence of a federal claim against Moody dictates a dismissal of a pendent state claim.

All of these objections are well taken. The only notice of claim was filed after this lawsuit was filed. The statute requires that an agency be given 120 days to decide whether or not to grant the relief requested in the notice of claim, and that no action may be commenced before that time. See Rabe v. Outagamie County, 72 Wis.2d 492, 241 N.W.2d 428 (1976) and Mannino v. Davenport, 99 Wis.2d 602, 299 N.W.2d 823 (1980). Contrary to plaintiff’s authority (Kaiser v. City of Mauston, 99 Wis.2d 345, 299 N.W.2d 259, 266 (1980), it is clear that the notice of claim statute covers equitable as well as monetary relief. Figgs v. City of Milwaukee, 121 Wis.2d 44, 357 N.W.2d 548, 553 (1984). If the Kaiser case, a Court of Appeals decision, has any continued vitality after the Figgs decision by the Supreme Court, it is in the context of a case where the exigencies of a preliminary injunction are present. This is not such a case.

With respect to the second argument presented by Moody, the Wisconsin Court of Appeals in Bachand v. Connecticut General Life Insurance Co., 101 Wis.2d 617, 305 N.W.2d 149 (1980), held that there was no private cause of action under the Wisconsin Fair Employment Act, but that the administrative remedies were exclusive and that the Act “was not designed to create a private cause of action as long as an adequate remedy is otherwise available in a DILHR [Department of Industry, Labor and Human Relations] proceeding.” It is undisputed that the relief sought by plaintiff here is available in the administrative forum. Although Bachand has been subjected to criticism, see Shanahan v. WITI, 565 F.Supp. 219 (E.D.Wis.1982), this Court has previously found the Bachand holding compelling. See Gunderson v. Riverview Hospital Association, Case No. 84-C-533-S (W.D.Wis.1984). The Hon. Barbara B. Crabb, United States District Judge, in Elbe v. Wausau Hospital Center, 606 F.Supp. 1491 (W.D.Wis.), adopted the view in Shanahan, but has recently reconsidered that holding in light of Koehn v. Pabst Brewing Co., 763 F.2d 865 (7th Cir.1985), and held that the Wisconsin Fair 1985), and held that the Wisconsin Fair Employment Act does not create an implied private right of action. Mursch v. Van Dorn Company, 627 F.Supp. 1310 (W.D.Wis.1986). Accordingly, it is clear that the claim against Moody under the Wisconsin Fair Employment act should be dismissed on this ground also.

The third ground for dismissal is equally compelling under the cases cited by the defendant, Aldinger and Gibbs. Plaintiff in fact offers no argument except to urge that the federal claims should not be dismissed. A fourth ground, not specifically addressed by the motion, would also provide a basis for dismissing a pendent claim under the Fair Employment Act against any individual defendant. A supervisor may not be an “employer” within the meaning of § 111.32(6)(a), Wis.Stats. The Court, in Huebschen v. Department of Health and Social Services, 716 F.2d 1167 (7th Cir.1983), so held with respect to Title VII. The Wisconsin Court of Appeals recognized the applicability of Title VII case law in a related context in Crear v. Labor & Industry Review Commission, 114 Wis.2d 537, 339 N.W.2d 350, 353 (1983). Thus, whatever claim plaintiff may have under the Fair Employment Act is against the School District, not against individual supervisors.

In order to minimize the impact of a decision on the motion with respect to plaintiffs state claims, the Court will grant the motion on the ground provided by Aldinger v. Howard.

II. Motion of the School Board Members

A. Facts

Defendants Salter, Arnold, Arnesen, Berg, Smith and Brien are Board members of the Madison Metropolitan School District. Salter is the president of the Board. These six Board members voted to adopt a plan reorganizing the District’s Affirmative Action Title IX programs in June 1985. Another Board member, Mary Kay Baum, who is not a defendant in this action, voted against the plan.

The reorganization plan was part of the School District’s budget adopted on June 17, 1985, at a meeting of the Board’s Budget and Finance Committee on which all members of the Board serve. The plan proposed to change the structure of the School District’s affirmative action and Title IX programs by creating a management team of senior administrators rather than having a single position to fulfill such functions. The specific budget votes which implemented the plan were a 6 to 1 vote (Baum voting “no”) “to delete the Affirmative Action Coordinator Allocation (page 88), which technically is the Affirmative Action/Title IX/Human Relations Coordinator position in the amount of $33,200;” and a second proposal by Salter “to support a .5 fulltime equivalency allocation to the General District Administration Budget (page 70) in the amount of $16,600,” which also passed 6 to 1 (Brien voting “no”). This had the effect of deleting from the budget the position held by plaintiff. She was subsequently transferred to an administrative assistant position in the Human Relations Department directly under Moody’s supervision. Plaintiff views this change in position as a demotion and alleges that the decision on the reorganization plan was retaliation against her for her reporting of Moody’s sexual harassment, for her public criticism of the reorganization plan, and for advising district personnel to take legal action. In addition to constituting individual claims against the Board members (plaintiff’s first claim for relief), these facts also constitute a conspiracy claim against these and other defendants (plaintiff’s fifth claim for relief).

Plaintiff has also made a pendent state claim against the Board members for negligently failing to supervise defendant Moody and preventing him from retaliating against her. Defendant Salter is specifically alleged to have had actual knowledge of the harassment and to have failed to adequately respond to the complaint, and breaching a duty to supervise. The other board members are alleged to have breached a general duty to provide adequate supervision of Moody sufficient to prevent him from retaliating against plaintiff for her complaint. Plaintiff filed a notice of claim with the School District, charging negligent supervision of Moody, on July 15, 1985, three days after filing this lawsuit.

Plaintiff also alleges a due process violation by virtue of the Board’s action on plaintiff’s request for a hearing on the decision to transfer her subsequent to the adoption of the reorganization plan. The request for a hearing, filed on July 1, 1985, alleged that her transfer was motivated by her sexual harassment complaint, and that the reorganization would diminish the objectivity and effectiveness of the affirmative action and Title IX programs. At the Board’s next meeting, on July 8, 1985, defendant Hafeman distributed a confidential memorandum alleging that a hearing would be a waste of time, that the sexual harassment grievance had been resolved, and that the members of the Board would be contacted by defendant Sherrod with respect to this request. The Board members were contacted the next day, and a majority of the Board communicated their intentions to deny plaintiff’s request. This constitutes, according to plaintiff, a vote denying her a hearing, in violation of the Wisconsin Open Meetings Law, Wis.Stats. § 19.81 et seq. Under this theory, plaintiff alleges that the property interest at issue is not her position with the District, but her procedural rights under the Open Meetings Law. Pursuant to Wis.Stats. § 19.97, plaintiff filed a complaint alleging a violation of the Open Meetings Law with the District Attorney, who declined to prosecute the complaint.

B. Opinion

Plaintiff summarizes her claims against these defendants as follows:

1. A federal claim, grounded in the First Amendment, that her transfer and refusal to grant a hearing were in retaliation for her report of sexual harassment, her communications with the press on affirmative action issues, and her advice to School District employees to seek legal redress of grievances;

2. A state negligence claim for the Board members' breach of their duty to supervise Moody, and their failure to prevent his retaliatory acts;

3. A federal claim, grounded in the Due Process Clause of the Fourteenth Amendment, based on the decision to deny her a hearing on her grievances in violation of the state’s open meeting law; and

4. A state and federal conspiracy claim for the decision to transfer her and cover up the retaliatory motives in violation of the First and Fourteenth Amendments.

The defendants contend that the transfer of the plaintiff from her affirmative action duties was the result of a legislative decision, and that they are absolutely immune from liability regardless of their motivation. Plaintiff counters that School Board members are not entitled to anything more than qualified immunity and, in any event, the Board’s decision in this case was administrative, not legislative.

The question of whether School Board members are entitled to absolute legislative immunity for legislative acts is answered by the Supreme Court’s decision in Lake Country Estates, Inc. v. Tahoe Regional Planning Commission, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) and cases decided by lower courts since that time. Of particular importance are Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir.1983) and Heiar v. Crawford County, 558 F.Supp. 1175 (W.D.Wis.1983).

In Lake Country Estates, the Court recognized that immunity was necessitated by notions of the “public good” in that legislators needed to be uninhibited by threats of damage liability in the exercise of the legislative powers granted to them. Id. 440 U.S. at 404-05, 99 S.Ct. at 1178-79, citing Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951). The Court concluded that the members of an appointed regional body were as deserving of such protection as federal and state legislators because the rationale was equally applicable. However, the Court declined to decide whether legislative functions at the purely local level were entitled to legislative immunity. Id. 440 U.S. at 404, n. 26, 99 S.Ct. at 1178-79, n. 26.

This question was decided, at least for purposes of city council members, by Reed v. Village of Shorewood, supra, where the Court had little trouble in concluding that city council members were entitled to immunity. Only a month before Reed, this Court came to an identical conclusion with respect to county board members. Heiar v. Crawford County, supra.

Although there are apparently no cases which expand this doctrine to school board members, the conclusion is inescapable that there is no principled way to deny such coverage. As even a cursory reading of the above cases demonstrates, it is the legislative function that merits protection for reasons of public policy. In Lake Country Estates, 440 U.S. at 405, 99 S.Ct. at 1179, the Court pointed out, quoting Justice Frankfurter in Tenney, that “it was not consonant with our scheme of government for a Court to inquire into the motives of legislators.” This rationale is equally applicable to the members of any body exercising legislative power. Neither Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) nor McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir.1968), both cited by plaintiff, dictate a different conclusion. The actions of the school boards in those cases were not legislative in nature: the direct disciplining of students in Wood, and teachers in McLaughlin.

Therefore, the crucial question in this case is whether the acts of the School Board members were legislative (as in Reed and Heiar) or were administrative (as in Wood and McLaughlin). Although there is some danger of elevating form over substance, that question must be answered by examining how the Board accomplished its end, not in questioning the motivation of the members. This functional approach is illustrated by the decision in Thillens, Inc. v. Community Currency Exchange, 729 F.2d 1128 (7th Cir.1984), cert. dismissed, — U.S. -, 105 S.Ct. 375, 83 L.Ed.2d 342. The plaintiff complained that two state legislators had influenced a regulatory agency to promulgate rules contrary to the plaintiffs interests in return for bribes from the plaintiff’s competitors. The Court of Appeals directed the dismissal of the complaint against the legislators, holding that:

Thillens’ charges thus broadly implicate the defendants’ function of influencing the legislative process regarding a legitimate legislative issue. Establishing the defendants’ role in the conspiracy naturally would require investigation into activities cloaked with immunity, including study of staff activities and motivations for acts of the defendants and their staffs geared toward enacting the challenged laws. Official immunity was designed to prevent a plaintiff from using a civil action to peer so deeply into the legislative process. As the Supreme Court stated, “one must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader____ Tenney, 341 U.S. [367] at 377, 71 S.Ct. [783] at 788 [95 L.Ed. 1019].
Thillens’ second argument is that because the complaint is directed principally at the defendants’ acceptance of the bribes, the defendants cannot be protected. Again we must disagree. Thillens will not be able to show that it is entitled to relief “without proof of a legislative act or the motives or purposes underlying such an act.” Gravel [v. U.S.], 408 U.S. [606] at 621, 92 S.Ct. [2614] at 2625 [33 L.Ed.2d 583]; see Brewster [U.S. v. Brewster], 408 U.S. [501] at 526, 92 S.Ct. [2531] at 2544 [33 L.Ed.2d 507]. As noted above, Thillens’ causes of action are inextricably linked to allegations that the defendants misused their legislative authority and influence to enact legislation detrimental to Thillens. Its conspiracy theories depend on proof of the defendants’ motives and on a showing of actions taken after bribes were accepted. Cf. Johnson [U.S. v. Johnson] 383 U.S. [169] at 176-77, 86 S.Ct. [749] at 753-54 [15 L.Ed.2d 681].

Id. at 1131. As defendants note, plaintiffs entire argument with respect to whether the defendants’ acts were legislative is based on facts tending to show illegitimate motive or on the fact that the result of the acts was detrimental to her. Thillens makes clear that the corruptness of the motive is of no consequence, and plaintiff continually interjects argument about motive into the debate. Language quoted by plaintiff in support of this line of argument from Bruce v. Riddle, 631 F.2d 272 (4th Cir.1980) is, in fact, directly contrary to the holding of the Seventh Circuit in Thillens, and the language is dicta in any event.

Plaintiff also cites a number of cases holding that hiring, firing and disciplinary actions by local legislative bodies are not protected. For example, McLaughlin, supra; Greminger v. Seaborne, 584 F.2d 275 (8th Cir.1978); Williams v. Anderson, 562 F.2d 1081 (8th Cir.1977). This is, no doubt, a correct statement of the law that now prevails. However, defendants here did not directly do anything with respect to plaintiff’s employment. The formulation of the reorganization plan, and the votes taken which, in effect, eliminated plaintiff’s position from the budget, were clearly legislative acts. Whether the adoption of the plan was, as plaintiff asserts, a “ruse” to transfer, and in effect, demote, one employee — the plaintiff, is an inquiry that cannot be pursued in this forum under the precedents cited in the preceding paragraphs. Thus, these defendants must be granted summary judgment with respect to plaintiff’s federal retaliation and conspiracy claims.

Plaintiff’s other federal claim against these defendants, that the private vote denying her a hearing deprived her of a property right granted under the state’s Open Meetings Law without due process, is utterly without merit. The Wisconsin Open Meetings Law, Wis.Stats. § 19.81 et seq., provides that, with some exceptions, all meetings of governmental bodies shall be in open session, preceded by public notice, and that enforcement shall be pursuant to action by the attorney general, by a district attorney upon a verified complaint of any person, or by such person in his own right if the district attorney fails to commence an action to enforce the law within 20 days. Plaintiff made such a complaint to the Dane County District Attorney, who declined to prosecute, and the record discloses no attempt by the plaintiff to commence an action under the law.

The Court cannot help but conclude that the law is purely procedural and grants no substantive rights protected by the due process clause. The declared policy of the law is that “the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.” § 19.81(1). However, such “entitlement” language does not lead to the conclusion that some property right is granted. The context shows that the law is designed merely to specify how governmental business is to be conducted, and this case shows the absurdity of constitutionalizing state procedures against which the Court of Appeals warned in Shango v. Jurich, 681 F.2d 1091 (7th Cir.1982). Does plaintiff mean to contend that she had a right to a hearing on whether she had a right to a public hearing on her request for a hearing? “Reductio ad absurdum,” indeed! Id. at 1101.

Even if this law could conceivably be read to establish some substantive right, the law clearly provides a mechanism for remedying denial in the enforcement provisions. The law itself provides all the process that is due, so that whatever deprivation there may have been was not without due process. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

Finally, the Court is faced with pendent state claims. Both the failure to observe the notice of claim statute, Wis. Stats. § 893.80(1), and the motion to dismiss pursuant to United Mine Workers v. Gibbs, are raised in this context as well. The arguments are just as persuasive. Furthermore, defendants argue that Wisconsin law does not recognize a claim against individual school board members for failing to supervise a district employee. The Court agrees. Plaintiff can only point to Wis.Stats. § 120.12(2), which states that school boards shall:

(2) GENERAL SUPERVISION. Visit and examine the schools of the school district, advise the school teachers and administrative staff regarding the instruction, government and progress of the pupils and exercise general supervision over such schools.

Whether this duty of general supervision implies a duty to directly supervise a district employee has, as far as the Court can discover, never been litigated. There are significant reasons why such a duty should not be implied, the most important of which is that unpaid voluntary school board members should not be required to carry such responsibilities when they have little or no day-to-day contact with the administraton of the district. To the extent that defendant Salter had knowledge of the sexual harassment by Moody, there is no reason to believe under the law or the facts of this case that he, as an individual Board member, had any power, much less a duty, to supervise Moody. Certainly) if the Board itself had no duty, the individual Board member did not.

At any rate, it is clear that the disposal of the federal claims against the Board members dictates that a dismissal without prejudice be entered under Gibbs and Aldinger.

ORDER

IT IS ORDERED that the motions for summary judgment of defendant Moody and defendants Salter, Arnold, Arnesen, Berg, Smith and Brien are GRANTED with respect to all federal claims against them.

IT IS FURTHER ORDERED that plaintiff’s pendent state claims against defendant Moody and defendants Salter, Arnold, Arnesen, Berg, Smith and Brien are DISMISSED without prejudice.

      . There is some dispute in this regard. Plaintiffs allegations supplement a proposed finding of fact offered by Moody, but the allegations do not contradict anything in the proposed finding. It is therefore not fatal to plaintiff's allegations that she depends solely on her complaint. At any rate, the allegations do not erect any roadblock to deciding the issue framed by the motion.

      . In this regard, plaintiff has recently filed a supplement to defendant Moody's findings of fact that were filed by Moody in response to the addition of a conspiracy claim some weeks ago. She suggests that Moody “adopted the illegal motives of all other defendants to retaliate against the plaintiff for communicating with the press” concerning the reorganization of the affirmative action program. This allegation does not appear in the complaint, and, further, plaintiffs communications with the press were subsequent to any alleged acts of retaliation by Moody. Accordingly, the Court concludes that this allegation is not supported by any evidence of record.

      . At page 102 of her brief, plaintiff states that:
      Plaintiffs first claim against Moody is that he retaliated against her because she reported his sexual harassment, in violation of plaintiffs right of free speech and association guaranteed by the First and Fourteenth Amendments to the United States Constitution.

      . Although the complaint is unclear, plaintiff concedes that the negligent supervision claim is based solely on state law by agreeing to proposed finding of fact number 17, which states: "Plaintiffs negligent supervision claims are brought under state law.”

      . Plaintiffs brief, pages 1 and 2.

      . It is clear that the transfer was the result of the reorganization plan since plaintiffs prior job was abolished by the action of the Board. It follows that the refusal to grant a hearing on the transfer adds nothing to plaintiff s claim since the Board’s action amounts to a refusal to reconsider its prior action. Plaintiff has conceded that the federal conspiracy claim is governed by the legislative immunity argument. Transcript of proceedings, Jan. 22, 1986, p. 22. This is also shown by the discussion of the Thillens case, infra.

      . Plaintiffs brief, page 15-16.


author: GLEN M. WILLIAMS, District Judge.

text:
    Mable COOPER, Administratrix of the Estate of Orville T. Cooper, Plaintiff, v. INGERSOLL RAND COMPANY, et al., Defendants.
    Civ. A. No. 84-0379-A.
    United States District Court, W.D. Virginia, Abingdon Division.
    Feb. 25, 1986.

      Charlie Jessee, Abingdon, Va., for plaintiff.
    Adell Baker, Richmond, Va., Paul Drake, Fayetteville, W. Va., Stephen M. Hodges, Abingdon, Va., for defendants.
   MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

Plaintiff, Mable Cooper, a Virginia resident filed a wrongful death action against defendants alleging they negligently designed, manufactured, serviced and rebuilt the Lee Norse 245 Continuous Miner (miner) and breached express and implied warranties which proximately caused the death of her husband, Orville Terry Cooper on October 20, 1982. The named defendants are Ingersoll-Rand Company, a New Jersey Corporation, Lee Norse Company, the wholly owned subsidiary of Ingersoll-Rand Company which later became IngersollRand Mining Machinery Group, and Shaffer Equipment Company, a West Virginia corporation. The court has jurisdiction of this action pursuant to 28 U.S.C. § 1332. The case is now before the court on defendants’ motions for summary judgment.

I. FACTUAL BACKGROUND

Based on the pleadings, depositions, affidavits and other materials submitted by the parties, the essential facts in this case are undisputed.

Lee Norse built and sold its Model 245 Continuous Miner in 1973. The miner was returned to Lee Norse and rebuilt in 1976. Shaffer Equipment Company bought the miner in 1979 and sold it to Valor. Shaffer repossessed it and sold it to C.C. & P. Coal Company in November 1981. C.C. & P. operated a mine in Buchanan County, Virginia at that time. Problems with the miner arose during the time C.C. & P. used it and C.C. & P. electricians were able to make the repairs. The miner had been down for repairs up to four days prior to the accident. At that time it was believed that the trouble lay in the old insulation around the start-stop button in the control box on the operating deck. The wires would ground out at times causing the control switches to be ineffective. At the risk of oversimplifying, only three of the control mechanisms are pertinent to this case: (1) the on-off buttons near the ripper-heads which control the pump motor, the conveyor motor and the rippers; (2) the on-off lever on the circuit breaker in the main control panel; and (3) the power center which connects the whole machine by electrical cable to the outside power terminal and transmission line. The miner was designed with a T-l interlocking relay so that the ripperheads begin to rotate one and one-half (IV2) seconds after the pump motor is started.

On the morning of October 20, 1982, the work crew arrived at the mine and began repairs under the direction of the foreman Rufus Baldwin who was a federally certified electrician. Baldwin directed Tim Elswick to disconnect the main power supply at the power center. Baldwin then removed the lid on the main control panel and repaired a methane monitor system. When the lid was replaced, the main circuit breaker operating lever was inadvertently positioned so that it did not connect with the main circuit breaker handle. Consequently the breaker lever was ineffective in controlling the current through the circuit breaker. The problem was not noticed at that time.

After this work was completed, the power cable was reconnected to the power center. Baldwin had directed Elswick, Gaudlin and Cooper to begin their repair — tightening the ripperhead chain — while he and Rose were installing new insulation in the start-stop control switch. Rose started the pump motor and maneuvered the ripper-head to rest upon the mine floor. Moments later as Baldwin was removing the switch from its mounting, the rippers suddenly started. Cooper who was bent over the chain was caught and trapped by the rippers and was rolled around the ripperhead of the machine. Realizing what had happened, Baldwin and Rose tried to use the circuit breaker lever to stop the machine. It did not work, so Baldwin immediately sent Rose to disconnect the power at the power center. Before he reached it, Baldwin stopped the rippers by pushing the ripper control switch. Federal inspectors were called and they conducted an investigation into the fatal accident pursuant to the Mine Safety and Health Act (MSHA) regulations.

II. PLEADINGS AND ISSUES

The complaint consists of four counts. The first count alleges that Ingersoll-Rand and Lee Norse improperly designed, manufactured and serviced the continuous mining machine.and that Cooper was killed as a direct and proximate result of that negligence. The second count avers that by placing such a machine into the stream of commerce Ingersoll-Rand and Lee Norse created express and implied warranties of merchantability and fitness for the particular purpose for which the machine was intended to be used, and that such warranties extended to and were for the protection of the class of employees at C.C. & P. which included Cooper. Because of the alleged improper design, these warranties were breached. Count three charges that Shaffer Equipment Company negligently and carelessly overhauled and repaired the continuous miner and that as a direct and proximate result Cooper was killed. In count four plaintiff alleges that Shaffer breached express and implied warranties upon selling the allegedly negligently repaired miner to C.C. & P. Coal Company, Cooper’s employer, and because Cooper relied upon those warranties, his death was a direct and proximate result.

In their pleadings, the defendants contend that Cooper’s death was caused by the acts and omissions of others for whom they are not responsible. Both defendants have set out five affirmative defenses to the negligence and breach of warranty counts. Both defendants have moved this court for summary judgment. All parties have submitted pleadings, discovery materials, briefs and interrogatories with answers thereto.

At the hearing on the motion, both defendants argued that there were three independent intervening causes which proximately lead to Cooper’s death and thereby superseded any antecedent negligence on their part. First, the mine foreman violated mandatory federal safety regulations (30 C.F.R. §§ 75-509, 75.511 and 75.-1725(c)) by undertaking repairs on an energized mining machine. Defendants contend that under Virginia law this was negligence per se, and under the circumstances was an intervening and superseding cause of the accident precluding defendants’ liability. Second, the miner had been substantially altered after it left defendant’s (Ingersoll-Rand) control — specifically, that the T-l relay system had been by-passed. Third, that the mine owner negligently permitted untrained personnel to work in the mine in violation of federal safety regulations and that was a proximate cause of the accident. Defendants point out that although Cooper was an experienced miner, he had been working at C.C. & P. for several weeks without having had the requisite federal training course, 30 C.F.R. § 48.6.

Plaintiff argued that the cause of the accident was the defective and improper design of the machine, specifically the main lever in the circuit breaker and the on-off switch near the ripperheads. Plaintiff contends that it was foreseeable that workers might undertake repairs on the mining machinery without first disconnecting it from the power center; if this were foreseeable there could be no intervening superseding cause. Plaintiff further argued that the first act of negligence was defendant’s (Lee Norse) improper design and but for that negligence the accident would never have occurred. Plaintiff maintains that to constitute actionable negligence, there must be a direct causal connection and such issue should be submitted to the jury.

The primary issue in this motion for summary judgment is whether, as a matter of law, defendants’ alleged negligence and breaches of warranties were superseded by an independent and intervening act of negligence which proximately caused the fatal accident. Attendant to this issue are three legal points: (1) whether the failure to follow applicable federal safety regulations was negligence per se; (2) whether this act or omission was the proximate cause of the fatal accident; and (3) as a consequence, whether that act or omission was sufficient intervention in the course of events on October 20,1982 to relieve both defendants of liability for their antecedent negligence.

III. LEGAL ANALYSIS

The parties are in agreement that Virginia law applies in this action based on negligence. See Erie Ry. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), Graves v. Associated Transport, 344 F.2d 894, 896 (4th Cir.1965).

A. STANDARD FOR

SUMMARY JUDGMENT

According to Fed.R.Civ.P. 56(c), summary judgment should be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the moving party is entitled to a judgment as a matter of law.” It is not the purpose of the hearing on a motion for summary judgment to resolve factual disputes. Rather, it is to determine whether there are factual issues to be tried. 6 J. Moore, J. Wicker, Moore’s Federal Practice Part 2, ¶ 56.11[7] (2d ed. 1985).

The burden of showing both the absence of a genuine issue of fact and that judgment is warranted as a matter of law is upon the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The burden on the party opposing the motion to show the existence of a factual dispute is not fulfilled merely by asserting that a genuine issue exists for trial. West v. Costen, 558 F.Supp. 564, 574 (W.D.Va.1983). The rule in this circuit is that summary judgment

should be granted only where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law. And this is true even where there is no dispute as to the evidentiary facts in the case but only as to the conclusions to be drawn therefrom. (Emphasis added.) Id.

Summary judgment is inappropriate if there is any genuine factual issue or if there is any dispute over the reasonable inferences drawn from the undisputed facts in the record. Morrison v. Nissan Motor Co., 601 F.2d 139 (4th Cir.1979). The inferences to be drawn from the facts contained in the record “must be viewed in a light more favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). See Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir.1979).

A cause of action based on negligence is usually submitted to the jury for resolution of questions of fact surrounding the allegations of negligence and proximate cause. However, when the facts are undisputed and fair minded men could draw only one inference therefrom, negligence is a question of law to be determined by the court rather than by the jury. (Emphasis added.) See, Iotomasi v. Rhodes, 407 F.2d 498 (4th Cir.1969). See also Speer v. Kellam, 204 Va. 893, 898-899, 134 S.E.2d 300 (1964) where the court stated that

it is only where the issue is one about which reasonable persons cannot differ— the question so plain in the meaning and interpretation that should be given to it — that no doubt is admitted of its legal significance and effect, that it becomes a question of law for the courts to determine____ [i]t is elementary that each case must be determined on the facts and circumstances of the particular case.

For reasons stated below, the court finds the facts and circumstances of this case may be properly characterized as presenting questions of law for resolution by this court.

B. STATUTORY STANDARD OF CARE

Under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 801 and 811, Congress declared that the purpose of the Act was to ensure the health and safety of miners, and provided that mandatory safety and health standards would be promulgated by the Secretary. Mine operators are required to be on alert to conditions and hazards affecting the safety of employees and to take the steps necessary to prevent such conditions. “Conduct which falls below a standard of care established under the Act is negligence.” 30 C.F.R. § 100.3(d) (1985). This section imposes a high degree of care on mine operators to protect their employees. The federal regulations set out the safety standards with which mine operators and employees must comply.

Among the regulations pertinent to this case are the following. 30 C.F.R. § 75.509 which requires that “all power circuits and electrical equipment shall be deenergized before work is done on such circuits and equipment ...” (Emphasis added.) 30 C.F.R. § 75.511 requires that

no electrical work shall be performed on low-, medium-, or high-voltage distribution circuits or equipment, except by a qualified person or by a person trained to perform electrical work and to maintain electrical equipment under direct supervision of a qualified person. Disconnecting devices shall be locked out and suitably tagged by the persons who perform such work.

30 C.F.R. § 75.512 states that “when a potentially dangerous condition is found on electrical equipment, such equipment shall be removed from service until such condition is corrected.” (Emphasis added.) “[R]epairs or maintenance shall not be performed on machinery until the power is off and the machinery is blocked against motion....” 30 C.F.R. § 75.1725(e) (1985). It is without question that the federal safety regulations apply to the activities carried out by C.C. & P. Coal Company. See, Westmoreland Coal Co. v. Federal Mine Safety, 606 F.2d 417, 420 (4th Cir.1979).

Although there is an absence of Virginia case law covering the types of regulations involved herein, it is likely that the court would give these regulations the same legal effect as is given to motor vehicle safety statutes. Cf., Orthopedic Equip. Co. v. Eutsler, 276 F.2d 455, 461 (4th Cir.1960), where the court found that violation of a federal food and drug regulation was negligence per se under Virginia law. Cf., VEPCO v. Savoy Constr. Co., 224 Va. 36, 45, 294 S.E.2d 811, 817 (1982), violation of a building code is negligence per se in Virginia.

Cooper and the other mine workers were engaging in activity specifically covered by the federal regulations. Those regulations clearly spell out the standard of care to be used when repairing mining equipment. In light of the highly regulated nature of this business, it is inconceivable that the workers were unaware of the particular safety regulations discussed above. The mine owner knew that these regulations were mandatory, but could give no legitimate reason for the failure to follow those regulations. (Childress Dep. Tr. p. 88, 1. 4-14.)

The MSHA investigators listed specific safety regulations which had not been followed — the most pertinent being the failure to deenergize and lock-out the miner while repairs were being made. Under Virginia law, this is negligence per se. The MSHA report also discussed mechanical and electrical reasons for the ripperheads to begin rotating, however, the court finds that these were merely circumstances and not the cause of the accident.

In Maroulis v. Elliott, 207 Va. 503, 510, 151 S.E.2d 339, 344 (1966), the Court stated that under Virginia law,

where a second tort-feasor becomes aware or by the exercise of ordinary care should be aware, of the existence of a potential danger created by the negligence of an original tortfeasor, and thereafter by an independent act of negligence brings about an accident, the condition created by the first tort-feasor becomes merely a circumstance of the accident, but is not a proximate cause thereof. The original negligence of the first tort-feasor is legally insulated by the intervening independent negligence of the- second tort-feasor, and the latter becomes the sole proximate cause of the accident. (Emphasis added.).

The Virginia Supreme Court addressed the question of violation of a statute as the proximate cause of a fatal injury in the context of an automobile accident, Hubbard v. Murray, 173 Va. 448, 3 S.E.2d 397 (1939). The case involved an improperly stopped passenger bus and a negligent truck driver who hit both the bus and the decedent’s car. On appeal, the court found, id. at 452, 3 S.E.2d 397, that “the negligence of the truck driver was the sole proximate cause of the accident and the fact that the bus was improperly stopped on the highway was merely a circumstance of the collision, or a remote cause thereof.” The court held that the law of Virginia was that “the violation of a statute, while negligence per se, will not support a recovery for damages unless such violation proximately caused or contributed to the injury complained of.

C. NEGLIGENCE PER SE

Generally, under the doctrine of negligence per se a standard of care, or duty, is created by a statute, ordinance or regulation so that violation thereof is negligence in itself. The burden of proving the existence of a particular duty on the part of the alleged tortfeasor is no longer on the party alleging breach and injury. The party alleging injury must show (1) that there was a statute or an ordinance; (2) that the injured party was within the class of persons for whose protection or benefit the statute was designed; (3) that the harm which occurred was the type of harm the statute was designed to protect against; and (4) that the violation of the statute must have been the proximate cause of the injury. See, Hamilton v. Glemming, 187 Va. 309, 316, 46 S.E.2d 438, 442 (1948). Under Virginia law, violation of a statute constitutes negligence per se, and if such negligence is a proximate or efficiently contributing cause of an injury, it will support a recovery for damages for such injury. White v. Gore, 201 Va. 239, 242, 110 S.E.2d 228, 231 (1959).

D. PROXIMATE CAUSE

The rule in Virginia concerning causation is that an entirely independent, intervening wrongful act breaks the chain of causation and becomes the sole proximate cause of the accident and supersedes the antecedent negligence of a defendant. Roanoke Ry. & Elec. Co. v. Whitner, 173 Va. 253, 3 S.E.2d 169 (1939). In Virginia, “an intervening cause in order to relieve a person charged with negligence in connection with an injury must be a negligent act, or omission, which constitutes a new effective cause and operates independently of any other act, making it and only it the proximate cause of the injury.” Maroulis, id., 207 Va. at 510-16, 151 S.E.2d 339.

The Fourth Circuit recently addressed the issue of intervening and superseding negligence in a case arising in South Carolina in which plaintiff asserted this doctrine as a defense against defendant’s claim of contributory negligence, Rawl v. United States, 778 F.2d 1009 (1985). In its analysis the court listed several considerations to be examined before deciding whether an intervening cause should be called superseding. Those considerations were: (1) whether the harm caused was different in kind from that which would have followed from defendant’s negligence; (2) whether the operation or the consequences of the intervening cause appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation; (3) whether the intervening force acts independently of the situation or is a normal part of the situation; and (4) whether the intervening cause is a third party’s action or omission. The latter two considerations are particularly applicable to the case sub judice.

In Virginia, the question of what is proximate cause is normally one for the jury to determine. But when the facts are not disputed and are susceptible of but one inference, the question becomes one of law for the court. See Hubbard v. Murray, supra.

The Fourth Circuit in Spruill v. Boyle-Midway, 308 F.2d 79, 86 (1982) relied on Virginia law in stating that

a jury question is presented whenever reasonable men might properly draw different conclusions from the evidence, or if the conclusion properly to be drawn depends upon the weight to be given to the evidence____ A question may be taken from the jury and decided by the court only where a single conclusion or inference may be drawn from the evidence. (Emphasis added.)

The court finds that the evidence in the case sub judice presents questions which may properly be resolved by the court rather than by the jury. Based on the analysis of relevant law and principles, the court finds that the direct and proximate cause of Cooper’s death was the failure to de-energize the mining machinery before undertaking repairs. The alleged improper design and any negligence possibly involved in manufacture and rebuilding is merely a circumstance of the accident and at best only a remote cause thereof. It is clear, however, that the mandatory safety regulations were not followed and that such negligence was an entirely independent act which the defendants neither brought about nor had control over. The court finds that reasonable minds could not differ in reaching this finding in light of the undisputed evidence and applicable legal principles.

It would be utter sophistry to say that a simple “but for” test is sufficient in these circumstances to determine liability or to say that (despite the federal regulations) because it was foreseeable that employees would rely on the various control switches, that the defendants had a duty to design a perfectly safe machine. It is arguable that there were contributing factors to the accident, however, the crucial fact is that a negligent omission occurred in the course of events which intervened and superseded all, if any, antecedent negligence on defendants’ part.

E. BREACH OF WARRANTY

Plaintiff has put forth claims for breaches of express and implied warranties of fitness and merchantability. From a review of the record, and based upon the law of sales in Virginia, Va.Code §§ 8.2-313, 315 (1950), there is no evidence to even suggest that defendants made express warranties concerning the mining machine, nor is there any basis to the claim that defendants’ machine was under an implied warranty of fitness for a particular purpose. Therefore, the following discussion will concern only the implied warranty of. merchantability.

The implied warranty of merchantability is said to arise at the time the product is sold to the purchaser. It runs from the seller to the purchaser and then on to the ultimate user. However the user can have no greater claim to the warranty than the purchaser through whom he obtained the implied warranty. Goodbar v. Whitehead Bros., 591 F.Supp. 552, 567 (W.D.Va.1984) citing, Bly v. Otis Elevator Co., 713 F.2d 1040 (4th Cir.1983), and Fischbach & Moore Intern. v. Crane Barge R-14, 632 F.2d 1123 (4th Cir.1980).

Under Virginia law, as cited by the Fourth Circuit in Bly v. Otis Elevator Co., at 1042-43, manufacturers and sellers of defective products can be held liable on theories of negligence and breach of the implied warranty of merchantability. The standard of safety of goods is essentially the same whether the theory of liability is labeled warranty or negligence. Logan v. Montgomery Ward, 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975).

When a plaintiff seeks to recover for breach of implied warranty of merchantability (or fitness for a particular purpose), plaintiff must show (1) that the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the goods left the defendant’s hands. Logan, id., Accord, Chestnut v. Ford Motor Co., 445 F.2d 967, 968 (4th Cir.1971), Featherall v. Firestone, 219 Va. 949, 963-64, 252 S.E.2d 358, 367 (1979), Southern States Co-op. v. Doggett, 223 Va. 650, 657, 292 S.E.2d 331, 335 (1982). Under Virginia law breach of warranty may be established by circumstantial evidence, but the evidence must be sufficient to establish that the result alleged is a probability rather than a mere possibility. Southern States Co-op., id. Therefore, plaintiff carries the burden of proving that the miner was defective when it left defendants’ control and that such was the proximate cause of plaintiff’s injuries.

Besides the allegations in the complaint, plaintiff incorporated particular sections of the MSHA report of the fatal accident into her answers to defendant Shaffer’s interrogatories concerning the defective condition of the miner. Specifically, plaintiff relies on paragraphs 4. and 5. of the findings of fact to draw the inference that the miner was defectively designed, manufactured and serviced, and that such condition proximately caused Cooper’s death.

As plaintiff pointed out in her brief, it is uncontested that the circuit breaker operating lever was not engaged to the main circuit breaker handle and that there was no way to determine if the circuit breaker was on or off. Plaintiff argues that the mine workers foreseeably relied on this lever. Plaintiff further argues that the “start-stop push button switch system was defectively designed in that the panel housing for said system was too restrictive and did not provide adequate space for the electrical devices contained in said housing.”

In his deposition, Arland Childress, owner of C.C. & P. Coal Company, stated that the machine had operated properly the first time it was started. However, the miner malfunctioned the next time it was started, in that the conveyor and ripperheads started simultaneously with the pump motor. This problem was corrected, and Childress stated that they never had another problem with the ripperheads. Throughout his deposition Childress indicated that only C.C. & P.’s electricians had made the various repairs on the miner and that no other repairmen had worked on the miner since C.C. & P. took delivery of it.

. There is evidence that the T-l interlocking relay system, which MSHA investigators determined had been bypassed, was in good working order after the miner was rebuilt in 1976 and upon delivery to C.C. & P. in 1981. (Affidavits of Victor Weintraub, Robert Parrish, and Frank Lanier.). Childress was unable to recall who, if anyone, had done the wiring on the T-l relay.

The court finds that the record contains inconclusive evidence of whether or not the miner was defectively designed, manufactured and rebuilt. The court is unable to determine whether defendants met the standard of safety for goods as described in Logan v. Montgomery Ward Co., supra. However, the evidence definitely does not establish that this alleged defective condition was a probable cause or a proximate cause of Cooper’s death. The actual condition of the miner has no bearing on defendants’ liability under the particular circumstances because there was an intervening act of negligence which was the proximate cause of the accident.

The plaintiff has not made out an actionable claim of negligence concerning breach of implied warranty of merchantability. The court finds that reasonable minds could not differ in concluding that the proximate cause of the accident was the failure to disconnect the miner from the power source before undertaking repairs. At the hearing plaintiff argued that but for the defective condition of the miner the accident would not have occurred. However, in these circumstances federal regulations clearly applied, and had those regulations been complied with, the accident would not have happened. It is clear to this court that this negligence directly and proximately lead to Cooper’s death and superseded the negligence, if any, of defendants.

IV. CONCLUSION

It is clear to the court that there are no genuine issues of material fact remaining which would affect the outcome, nor are there any doubts as to the legal significance of the undisputed evidence in this case. Mining activities are subject to mandatory federal safety regulations which specifically inure to the benefit of miners. Failure to follow those regulations is negligence per se. Under these circumstances, the third parties’ act, or omission, was an intervening act which proximately caused Cooper’s death. Whether or not defendants’ actions were a remote cause of the accident is irrelevant because their negligence, if any, was superseded by the acts of third parties. For these reasons cited above, defendants’ motions for summary judgment are granted and the case is dismissed.

      . It appears to the court that the doctrines of assumption of risk (upon Cooper’s part) and contributory negligence (upon the mine foreman’s part) would effectively operate to relieve defendants of liability. However, satisfaction of the “but for” test is not sufficient at this point. See Simpson v. Lambert Bros. Div., 362 F.2d 731 (4th Cir.1966).

      . Decedent attempted a night time landing of his small plane during bad weather at the Grand Strand Airport. He was flying by sight rather than by instrument. As he approached the airport there was a miscommunication by the air traffic controller. Corrective instructions were given moments later. The pilot became disoriented and the plane crashed. The district court found RAPCON had violated a section of the Air Traffic Control Manual and rejected the government’s defense of contributory negligence on the decedent’s part and found RAPCON’s negligence was the intervening and superseding cause of the accident. The Fourth Circuit found that the district court had misapplied the doctrine of intervening cause.

      . Perhaps had the accident occurred during the course of normal mining activity, the result in this case would most likely have been different. However, the obvious fact is that without an electrical current running through the mining machine the ripperheads would not rotate.

      . The control switch for the 3 phase main circuit breaker on the Lee-Norse 245 continuous mining machine on the 001 section was not maintained in a safe operating condition. The circuit breaker operating lever was not engaged to the main circuit breaker handle and there was no way to determine if the circuit breaker was on or off or no way to turn the circuit breaker on or off. A violation of Section 75.-1725(a), Title 30, CFR. The Lee-Norse continuous mining machine on the 001 section was not maintained to assure safe operating conditions. The T-l interlocking relay was bypassed which enabled the conveyor and ripperhead motors to be started without first starting the pump motor. A violation of Section 75.512 Title 30, CFR.

      . (Childress Dep. Tr., 12-18-84, p. 36, 1. 24-25, p. 37, 1 1-6).

      . (Childress Dep. Tr., 4-22-85, p. 46, p. 60, 1.19).


text:
    Allen LUBLIN, Petitioner, v. Sally B. JOHNSON, Superintendent of Queensboro Correctional Facility, and Kenneth Dunham, Superintendent of Queensboro Correctional Facility, Respondents.
    No. CV-85-3285.
    United States District Court, E.D. New York.
    Feb. 25, 1986.

      Reisch, Clarey, Simoni & Gleason, Mineóla, N.Y. by Robert L. Clarey, for petitioner.
    Denis Dillon, Dist. Atty., Nassau County, Mineóla, N.Y. by Bruce E. Whitney and Gary H. Nurkin, Asst. Dist. Attys., for respondents.
   MEMORANDUM AND ORDER

ALTIMARI, Circuit Judge, Sitting by Designation.

Petitioner Allen Lublin petitions this court for a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code. Petitioner alleges that the procedure used in procuring his attendance at proceedings on a felony complaint in the Nassau County District Court violated the Interstate Agreement on Detainers, 18 U.S.C. Appendix.

FACTS

During October of 1976, while petitioner was being held at the Metropolitan Correctional Center (“M.C.C.”) in New York on federal firearms charges, a felony complaint was filed against him in the Nassau County District Court.

On December 2, 1976, petitioner pled guilty to the federal charges, and was sent to M.C.C. pending sentencing.

On January 20, 1977, a writ of habeas corpus ad prosequendum was issued pursuant to N.Y. Crim.Proc.L. § 580.30(2) (McKinney 1984) directing the warden of M.C.C. and the United States Marshal to produce the petitioner in Nassau County District Court. On three occasions in February of 1977, petitioner was brought pursuant to this writ from the M.C.C. to state court to attend proceedings on the state indictment. Each time petitioner was returned to M.C.C.

On February 22, 1977, petitioner was sent to the Lewisburg Federal Penitentiary to begin serving the federal sentence of seventeen months imposed on February 11, 1977.

On March 3, 1977, petitioner requested a disposition of indictments, informations, or complaints (i.e. an “agreement on detainers”). The warden of Lewisburg Federal Penitentiary furnished a “certificate of Inmate Status” which indicated the term of commitment, time already served, time remaining to be served, amount of good time earned, date of parole eligibility, any decisions of the State Board of Parole relating to prisoner, maximum expiration date under the present sentence, and pending detainers. The warden indicated that the following detainers were on file as of March 3, 1977: “Poss. Stolen Property, Theft of Personal Property, Poss. of Forged Instrument, Poss. Stolen Motor Vehicle — Nassau Co., N.Y.”

On March 31, 1977, the Nassau County District Attorney’s Office accepted the federal authorities’ offer of temporary custody pending trial on the state indictment.

On April 16, 1977, petitioner once again was brought to Nassau County District Court. Finally, on May 25, 1977, he moved to dismiss the state charges, alleging a violation of the Interstate Agreement on Detainers. The motion was denied, and on July 11,1977, petitioner pled guilty to criminal possession of stolen property in the second degree, N.Y.Penal Law § 165.45 (McKinney 1975 & Supp.1986). Petitioner was sentenced on July 21, 1977, to an indeterminate sentence of zero to three years’ imprisonment that was to run concurrently with the federal sentence he was then serving.

Petitioner has exhausted all available State remedies in accordance with the procedural requirements set out in 28 U.S.C. § 2254(b) and (c), and thus this petitioner is properly before this court. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

DISCUSSION

Both the United States and the State of New York are signatories to the Interstate Agreement on Detainers (“IAD”). See 18 U.S.C. Appendix; N.Y.Crim.Proc.Law § 580.20 (McKinney 1984). The provisions of the IAD are triggered when a detainer is filed with the custodial (sending) state by another (receiving) state having untried charges pending against the prisoner. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978).

The IAD is an interstate compact sanctioned by Congress under Art. 1, Section 10 of the United States Constitution. The construction of such a compact presents a question of federal law that is cognizable on federal habeas corpus. Carchman v. Nash, — U.S. -, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985).

Petitioner relies on “Article IV” of the IAD, 18 U.S.C.App. § 2, which provides:

(a) The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated.
(c) In respect of any proceeding made possible by this article, trial shall be commenced in the receiving State, but for good cause shown in open court, the prisoner or his counsel being present, the, court having jurisdiction of the matter may grant any necessary or reasonable continuance.

The IAD was enacted to secure the “speedy trial of persons already incarcerated in other jurisdictions” so as to avoid the deleterious effect that outstanding charges may have on a “prisoner[s’] treatment and rehabilitation.” 18 U.S.C.App. § 2, Article I.

Inquiries have revealed that a detainer, consisting of an arrest warrant and felony complaint, was lodged against petitioner while he was being held at M.C.C. Thus, the provisions of the IAD were triggered, if at all, upon filing of this detainer.

Although a detainer was lodged against petitioner, the IAD is inapplicable. Petitioner was never imprisoned by the receiving state. On each occasion in question, petitioner was simply produced before the Nassau County District Court and returned immediately to M.C.C. These brief transfers could not have affected detrimentally petitioner’s rehabilitation, and thus they are not violative of the IAD. See United States v. Chico, 558 F.2d 1047, 1049 (2d Cir.1977), cert. denied, 436 U.S, 947, 98 S.Ct. 2850, 56 L.Ed.2d 788 (1980); see also United States v. Roy, 771 F.2d 54, 59-60 (2d Cir.1985). Accordingly, petitioner’s application for a writ of habeas corpus is denied.

While not pivotal to this determination, this court feels compelled to address several issues raised during oral argument. Under the wording of Article IV(a), the time restrictions of the IAD do not come into play until a person begins service of a “term of imprisonment.” Petitioner was sentenced to seventeen months’ imprisonment by the United States District Court, Eastern District of New York on February 11, 1977. He was remanded to M.C.C. to await transfer to the United States Penitentiary at Lewisburg, Pennsylvania where he was to serve his federal sentence. On February 22, 1977, eleven days after sentencing, petitioner was transferred to Lewisburg.

Petitioner argues that he began serving his sentence on February 11th when the court imposed a seventeen month sentence. In making this argument, petitioner relies on Section 3568 of Title 18 of the United States Code which provides that a federal sentence commences to run when the defendant is received at “a place of detention to await transportation to the place at which his sentence is to be served.” 18 U.S.C. § 3568.

This court has been unable to locate authority addressing the applicability of Section 3568 to the IAD, and thus this court apparently is faced with a question of first impression. The legislative history of Section 3568 reveals that “Congress intended in § 3568 to clarify the method of calculating the commencement of a sentence and the deduction for good conduct.” In re Garmon, 572 F.2d 1373, 1375-76 (9th Cir.1978), see Shelvy v. Whitfield, 718 F.2d 441, 444 (D.C.Cir.1983); Siegel v. United States, 436 F.2d 92, 95 (2d Cir.1970). There is no indication that Congress intended Section 3568 to be applied as a general definitional provision governing the interpretation of such phrases as “serving a term of imprisonment” under the IAD.

The IAD was enacted for a specific and limited purpose: the minimization of interference “with a prisoner’s treatment and rehabilitation.” United States ex rel. Esola v. Groomes, 520 F.2d 830, 833 (3d Cir.1975). A detainer lodged against a prisoner can affect adversely a prisoner’s treatment and rehabilitation only upon his entry into the assigned facility. Accordingly, petitioner began serving a term of imprisonment upon formally entering the Lewisburg Federal Facility on February 22, 1977, and not on the effective date of sentencing under Section 3568. See United States v. Wilson, 719 F.2d 1491, 1494-95 & n. 1 (10th Cir.1983) (“Even though the district court found that the ‘180 days commenced running at the earliest on February 11’ ..., the date Wilson was sentenced in the last State court proceeding, we find that the 180 day time period began running on February 22, 1982, when Wilson entered the Missouri State Prison.” (emphasis added)); see also, Carchman v. Nash, supra 105 S.Ct. at 3409 n. 9. (“[T]he probationer cannot invoke Art. Ill until he ‘has entered upon a term of imprisonment in a penal or correctional institution of a party State’ — that is, until he has been convicted of the offense in the sending State and commenced to serve his sentence there.”).

Petitioner commenced serving his “term of imprisonment” on February 22, 1977. Until that date, the IAD was inapplicable, and thus transportation of petitioner to the receiving State on February 1, 7, and 15 did not violate Article IV of the IAD.

Most importantly, it should be noted that the detainer lodged against petitioner did not obstruct his ability to participate in rehabilitative programs. Petitioner was held at M.C.C. for only eleven days after sentencing. This short delay cannot be attributed to the pending detainers, and certainly was not detrimental to petitioner’s treatment and rehabilitation. Moreover, only ten months passed from the issuance of the state felony complaint on October 5, 1976 to petitioner’s plea of guilty on July 11, 1977. Such a delay is not per se unreasonable. See, e.g., U.S. v. Cyphers, 556 F.2d 630, 636 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977) (delay of 33 months); United States v. Mejias, 552 F.2d 435 (2d Cir.1977) (delay of. 20 months); United States v. Goldman, 439 F.Supp. 352 (S.D.N.Y.1977) (delay of 29 months.). See generally Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (enunciating factors involved in considering whether defendant was deprived of speedy trial right).

Accordingly, the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is hereby denied. The clerk of the court is directed to enter judgment accordingly.

SO ORDERED.