author: CAHILL, District Judge.

text:
    Rebecca Mae CROSS, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
    No. 85-1377C(4).
    United States District Court, E.D. Missouri.
    Dec. 18, 1985.
    See also, 8th Cir., 774 F.2d 1170.
    Deborah Heilman, St. Louis, Mo., for plaintiff.
    Edwin B. Brezinski, Asst. U.S. Atty., St. Louis, Mo., for defendant.
   MEMORANDUM AND ORDER

CAHILL, District Judge.

This matter comes before the Court on plaintiff’s motion to reconsider and for leave to file an amended complaint.

Plaintiff filed this action on June 17, 1985, pursuant to 42 U.S.C. § 2000e et seq. (Title VII) for alleged conduct undertaken by defendant after she was rehired pursuant to a court order. Plaintiff alleges that defendant has taken reprisals against her to punish her for her previous civil rights actions. Plaintiff’s actions have been the subject of much judicial review. See Cross v. United States Postal Service, 639 F.2d 409 (8th Cir.1981) (Cross I); Cross II, 733 F.2d 1327 (8th Cir.1984) (en banc), cert. denied, — U.S. -, 105 S.Ct. 1750, 84 L.Ed.2d 815 (1985), Cross III, 774 F.2d 1170, slip op. at 3 (8th Cir.1985) (per curiam). On November 4, 1985, this Court dismissed plaintiff’s Title VII counts based on res judicata.

Plaintiff alleges that res judicata does not apply because plaintiff’s Title VII claim was the subject of a pending E.E.O.C. complaint at the time the Cross III (petition for an order to show cause) was pending. However, defendant points out that those claims for relief under present Title VII are identical to those raised, tried, and resolved in Cross III. The Court is in agreement.

Plaintiff contends, however, that her present complaint could not have been filed until she had exhausted her administrative remedy, which she alleges she did on May 10, 1985. This position would still be to no avail because the E.E.O.C. charge is the same issue she sued upon in federal court in her petition for an order to show cause. (She merely attempted to get two bites from the same apple). Secondly, as alleged, plaintiff has filed outside of the proscribed statute of limitations. Federal employees (42 U.S.C. § 2000e-16(c)) must file a civil action within 30 days of notice of final E.E.O.C. action. See 5 C.F.R. § 713.-281 (1982). In Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the Supreme Court held that failure of a federal employee to file a timely suit after final action by the E.E.O.C. deprives the district court of subject matter jurisdiction. Further, the Ninth Circuit held, “[t]his thirty day time period is jurisdictional. If an aggrieved party does not file suit within that time limit [30 days], the federal courts have no power to entertain the suit.” Mahroom v. Hook, 563 F.2d 1369 (9th Cir.1977).

In the present case, plaintiff alleges that the E.E.O.C.’s final decision was May 10, 1985. Plaintiff did not file suit in this Court until June 17, 1985, on the 39th day. This period of nine days renders this Court without jurisdiction to entertain her Title VII complaint. Accordingly,

IT IS HEREBY ORDERED that plaintiff’s motion to reconsider and file an amended complaint is DENIED.


source: Caselaw Access Project

author: GERALD J. WEBER, District Judge.

license: Public Domain

text:
    Eugene F. BRIECK and Dolores F. Brieck v. HARBISON-WALKER REFRACTORIES, A DIVISION OF DRESSER INDUSTRIES.
    Civ. A. No. 84-1594.
    United States District Court, W.D. Pennsylvania.
    Dec. 19, 1985.
    James H. Logan, Pittsburgh, Pa., for plaintiffs.

      James H. Hollihan, Manion McDonough & Lucas, Pittsburgh, Pa., for defendant.
   OPINION

GERALD J. WEBER, District Judge.

Plaintiffs bring this action against Mr. Brieck’s former employer alleging age discrimination, breach of contract, intentional infliction of emotional distress as to Mr. Brieck, and negligent infliction of emotional distress as to Mrs. Brieck. We have before us defendant's motion for summary judgment, accompanied by affidavits and excerpts from depositions, and plaintiffs’ response similarly supported. In reviewing these materials we find no dispute as to relevant facts. We must now decide whether these facts adequately support the causes of action pleaded.

FACTUAL BACKGROUND

Defendant sells and installs refractory brick and related materials to producers of steel, glass and paper. Sixty percent of its market lies with the steel industry, however, and defendant asserts that its own financial success is closely linked to the fortunes of domestic steelmakers. Defendant has stated that, between 1979 and 1982, sales of refractory materials fell from $425,000,000 to $302,000,000 and profits in the same period dropped from $64,000,000 to a loss of $20,000,000.

Defendant hired Mr. Brieck in June 1965 as an installation specialist. His primary duties consisted of supervising installation of refractory materials in steel making furnaces, training the customer’s employees in operation and maintenance, and troubleshooting to resolve any complaints. Brieck was one of four installation specialists attached to the Iron and Steel Marketing Support Group. The others were W.E. Meixell, A.G. Malarich, and H.J. Faust.

As a result of poor sales in early 1982, management decided to cut expenses by laying off workers. Mr. Brieck was one of six workers in the Iron and Steel Marking Support Group to be laid off in early July 1982. Of these six, two were installation specialists: Brieck, age 55, and Meixell, age 59. In late July 1982, Malarich, then age 59, also was laid off. In mid-November 1982, Faust then age 39, the last remaining installation specialist, also was laid off. Faust was the only installation specialist to be recalled, in July 1983. Mr. Brieck argues that his layoff and Faust’s recall constitutes age discrimination.

Mr. Brieck also argues that defendant has breached an implied contract of employment in laying him off. Brieck apparently relies on four statements from management as establishing his implied contract. First, Brieck stated in his deposition that Larry Sheatsley, one of his supervisors, told him in August 1980 and February 1982 not to worry about being laid off. Plaintiffs’ Supplemental Brief, Docket Entry No. 20, Appendix at 20 and 21. Second, in the Spring 1982 edition of a company newsletter a vice-president of human resources stated that:

Layoffs are implemented only after an extensive review of alternatives. Obviously, layoffs, when they are necessary, occur in departments or operating units most affected by the business decline. Length of company service and skill requirements necessary to carry out the reduced business activities are the most important considerations. We try to do what is right and fair.

Id. at 26-27.

Finally, Brieck received a note from Donald Jamison, another supervisor, commending him and stating that, “We hope that we can continue to reward you for your fine work.” Id. at 38.

Plaintiffs made no arguments in their briefs regarding their claims for tortious infliction of emotional distress. We will address all counts in the complaint in turn.

AGE DISCRIMINATION

As we stated in Pierce v. New Process Company, 580 F.Supp. 1543 (W.D.Pa. 1984), aff'd. 749 F.2d 27 (3d Cir.1985), the plaintiff in an age discrimination action must establish four elements to make out a prima facie case. This accomplished, he is entitled to a rebuttable presumption of discrimination. Plaintiff must show that he (1) is in the protected age group; (2) was the subject of an adverse employment action; (3) was qualified for the position in question; and (4) was treated less favorably than younger employees. In short, plaintiff must prove that age was “a determinative factor” in an adverse decision concerning his employment. Duffy v. Wheeling-Pittsburgh Steel Corp., 738 F.2d 1393, 1394 (3d Cir.1984).

If the plaintiff makes out a prima facie case, the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for not hiring or for discharging the plaintiff. But this is a burden of production, not persuasion. “It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981) (fn. omitted).

If the defendant proffers a legitimate reason for its actions, the plaintiff resumes his burden of persuasion. To succeed, he either must prove that unlawful discrimination more likely motivated the defendant or that defendant’s explanation is merely a pretext. Id. at 256, 101 S.Ct. at 1095; Duffy, supra; Molthan v. Temple University, 778 F.2d 955 (3rd Cir.1985). Where there is a reduction in force rather than a discharge or failure to hire, the plaintiff’s burden obviously is modified. In such cases, the plaintiff simply must show that younger employees working in similar jobs were retained. Duffy, 738 F.2d at 1395, notes 2 and 3. This modification is not material here, however, since it is uncontested that defendant recalled Hugh Faust, a younger employee, in July 1983 to work as its only installation specialist in the Iron and Steel Marketing Support Group.

PRIMA FACIE CASE

The burden of making out a prima facie case is not onerous, and we find that plaintiff has done so. He was 55 years old when he was laid off. He certainly was qualified to work as an installation specialist, the job now held by Faust, a younger employee.

Defendant responds with its explanation of bona fide business reasons behind its action. Of the four installation specialists, Meixell, Brieck, Malarich and Faust, Meixell was the oldest at 59, but had only two years of seniority at the time of his layoff in July 1982. Brieck was laid off at the same time. Malarich is four years older than Mr. Brieck, so his layoff is not consequential. Faust’s employment until November 1982 and recall in 1983, as characterized by plaintiff, is the offensive act.

While Faust is 16 years younger than Mr. Brieck, Brieck has only a year more seniority. In performance evaluations, Faust was rated slightly higher. But the chief reason for retaining Faust, according to defendant, was his prior experience as a sales correspondent. He thus was practiced in working with records and written reports, in customer relations, and in preparing bids and quotations.

Plaintiffs attempt to expose these alleged justifications as pretext by coloring Faust’s prior experience as unimportant. In his deposition, Brieck referred to Faust’s former position as being that of an “office boy” and a “gofer”, that is, an employee whose duties include running errands. Plaintiff’s Supplemental Response in opposition, Appendix at 12 and 13. Indeed, Faust testified at his own deposition to being an office handyman when he was a staff correspondent. Id. at 47. But these were not and are not his principal duties, Id. at 42, and Brieck does not refute Faust’s prior experience with office matters such as price quotations, customer contact, and setting priorities for orders from the manufacturing plant.

Mr. Brieck further attempts to downplay Faust’s experience by pointing out that his knowledge of office matters actually is of no consequence to defendant since Faust spends about three-fourths of his time on installation work. Any question about the appropriateness of how Faust now spends his time edges into the area of judicial scrutiny of business decisions, which is not part of our function. We nonetheless consider it plausible that the importance of an employee’s related experience, whether or not frequently applied, increases under the scaled-down business operations which in fact existed. Without considering age, we find that Mr. Brieck, in comparison to Faust, has

1. slightly more seniority;
2. slightly poorer performance evaluations;
3. little experience in areas related to installation specialist.

We thus cannot find that age was a determinative factor in the decision to lay off Mr. Brieck.

Other facts support this finding. Prior to the June 1982 layoffs, the Iron and Steel Marketing Support Group employed 32 people, 14 of whom were above the age of 40. Of the 11 employees who subsequently were laid off, only three were more than 40 years of age. Even considering the employees who were recalled, the average age of the group was .04 of a point higher after layoffs than before. Affidavit of William Sekeras, Docket Entry No. 17, Exhibits D and E. Of course, these statistics are not themselves conclusive, but they further highlight Mr. Brieck’s absence of proof that defendant’s justification for his layoff is a pretext for age discrimination.

BREACH OF CONTRACT

On this claim plaintiff concedes that there is no distinct common law cause of action for breach of contract resulting from age discrimination; remedies for age discrimination must be sought under state and federal statutes enacted to address the problem. Bonham v. Dresser Industries, Inc. 569 F.2d 187 (3d Cir.1977). Citing DeRamo v. Consolidated Rail Corporation, 607 F.Supp. 100 (E.D.Pa.1985), he urges that his breach of contract claim nevertheless should be considered because it is not grounded on age discrimination. Rather, without raising the issue of age discrimination, he asserts that the act of laying him off violated the terms of an implied contract of employment. We believe that this question of contract rights adequately describes a cause of action separate from the statutory claim of age discrimination and the related tort theory of wrongful discharge for age discrimination. Plaintiffs’ pleadings present a claim for breach of contract without reference to age which could support a separate recovery.

Plaintiffs’ adequate pleading of their contract claim, however, does not include sufficient evidence to protect them from summary judgment. As stated above, Mr. Brieck was told in August 1980 and February 1982 by Larry Sheatsley, one of his supervisors, that he should not worry about being laid off. In spring of 1982 a Dresser vice-president stated in the company news letter, that in deciding on layoffs, “Length of company service and skill requirements necessary to carry out the reduced business activities are the most important considerations.” Finally, a note from Brieck’s immediate supervisor informing him of a merit raise stated that, “we [Dresser] hope we can continue to reward you for your fine work.” See pp. 364 and 365 supra. Viewing defendant’s statements most favorably to plaintiffs, they do not establish the violation of a contract.

The general rule in Pennsylvania has long been that contract for personal services are presumed terminable at will by either party absent some provision setting the duration of the contract. Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891); Cummings v. Kelling Nut Co., 368 Pa. 448, 84 A.2d 323 (1951); Jackman v. Military Publications, Inc., 350 F.2d 383, (3d Cir.1965). Plaintiff may overcome this presumption by showing that the parties did agree to a contract of definite duration or by “evidence showing that the plaintiff-employee gave the defendant-employer consideration in addition to the employee’s normal services.” Bravman v. Bassett Furniture Industries, Inc. 552 F.2d 90, 92 (3d Cir.1977) (footnote omitted); See also McNulty v. Borden, Inc., 474 F.Supp. 1111 (E.D.Pa. 1979). In the latter instance, the contract is deemed to be for a reasonable time.

Mr. Brieck relies on no express written or oral agreement; his evidence concerning a contract for employment rests solely in the statements above. We find this evidence insufficient to satisfy the requirement for a provision setting the length of the contract. The statements lack any reference to any future point. In Geib v. Alan Wood Steel Co. 419 F.Supp. 1205 (E.D.Pa.1976), plaintiff was granted a contract “until retirement.” In Lightcap v. Keaggy, 128 Pa.Super. 348, 194 A. 347 (1937), the contract was extended for the period “so long as you live”. Neither statement was found sufficient to support a cause of action. The statements on which plaintiffs rely are considerably more ambiguous. Mr. Brieck thus has not established the form of a contract which supports his claim. Adams v. Budd Co., 583 F.Supp. 711 (E.D.Pa.1984).

TORTIOUS INFLICTION OF EMOTIONAL DISTRESS

Plaintiffs make no argument regarding their claims of intentional and negligent infliction of emotional distress in either of their briefs opposing defendant’s motion for summary judgment, raising the likelihood that the claims have been abandoned. In any event, we find that defendant’s conduct in no way rises to the level of outrageousness necessary to invoke these theories.

The Court of Appeals for the Third Circuit has determined that, under Pennsylvania law, the intentional branch of this tort is composed of four elements:

(1) extreme and outrageous conduct;
(2) intention or recklessness;
(3) emotional distress in the victim caused by the conduct; and
(4) distress that is severe.

Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir.1979); Restatement (2d) of Torts, § 46(1) (1965). The extremeness of behavior associated with this tort necessarily means that it rarely will be found. One example is Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970), in which the parents of a dead child recovered from an automobile driver who caused the child’s death, when the driver concealed the child’s body for two months. Another is Chuy, supra, in which a football team’s physician reported to the press that a player suffered from a potentially fatal blood disease, knowing this diagnosis was unsupported. While- loss of employment is unfortunate and unquestionably causes hardships, often severe, we must acknowledge that it is a common event. It has been denied as a basis for this tort. Cautilli v. GAF Corporation, 531 F.Supp. 71, (E.D.Pa.1982). Without belaboring the point, we conclude that the plaintiff clearly has not shown that defendant’s conduct meets the test of extremeness required by this theory. Our finding necessarily precludes Mrs. Brieck’s claim of negligent infliction of emotional distress based on defendant’s same actions.

ORDER

Defendant’s Motion for Summary Judgment is GRANTED, and the case is DISMISSED.

      . Brieck has shown no evidence that he was qualified to assume the responsibilities of any other job.

      . The following chart summarizes key statistics involved in this case:
      Performance Evaluations (5 represents highest grade) Age in Date June 1982 Hired 1978 1979 1980 1981
      4 3 3 3 FAUST 39 Sept. 1966
      3 2 2 3 BRIECK 55 June 1965


author: MOTLEY, Chief Judge.

text:
    KYUNG SUP AHN, M.C., P.C. Retirement Trust Pension: and Kyung Sup Ahn, as guardian for Anthony Ahn, a minor child, Plaintiffs, v. ROONEY, PACE INC., and Robert Edelstein, Defendants.
    No. 85 Civ. 3424 (CBM).
    United States District Court, S.D. New York.
    Dec. 19, 1985.

      Haas, Greenstein, Hauser, Sims, Cohen & Gerstein, P.C. by Randall T. Sims, New York City, for plaintiffs.
    Regina Felton, New York City, for defendants.
   MEMORANDUM OPINION

MOTLEY, Chief Judge.

In this action alleging securities fraud under the Securities and Exchange Act of 1934, and also common law fraud, defendants have moved for a stay pending arbitration. Plaintiff has cross-moved for a determination that there is no basis for arbitration of plaintiffs’ claims and for an order declaring defendant’s arbitration demand invalid and a nullity. For the reasons that follow, defendants’ motion to stay pending arbitration is denied, and correspondingly, plaintiffs’ motion is granted.

Facts

In 1980 plaintiff Kyung Sup Ahn, an individual wishing to set up a retirement account as well as a Uniform Gifts to Minors (“UGMA”) fund for his minor son, established the two securities accounts at issue in this case. Defendant Rooney, Pace, Inc. (“Rooney, Pace”) was the securities broker for these accounts, and defendant Robert Edelstein, an employee and registered representative of Rooney, Pace, the individual principally responsible for managing them. As the entity handling the substantive management of these accounts, Rooney, Pace is known as the “introducing broker.”

It is customary in the case of smaller brokers such as Rooney, Pace, for another entity, called the “clearing broker,” to perform the mechanical, record-keeping functions relating to the clearance and settlement of various transactions in the customer accounts. In the case of plaintiffs’ accounts with Rooney, Pace, it was Bear Stearns, a large investment brokerage firm, that acted as clearing broker.

When plaintiffs began their accounts with Rooney Pace, they also signed a standard, printed agreement with Bear Stearns regarding the latters’ obligations as clearing broker. This agreement includes an arbitration clause covering “[a]ny controversy arising out of or relating to [a customer’s] cash and/or margin accounts,” and also providing that all such arbitration shall be in accordance with the rules of the National Association of Securities Dealers, Inc. or of the New York or American Stock Exchanges (which themselves mandate arbitration of certain member disputes). The arbitration clause of the Bear Stearns customer agreement expressly states, however, that it is not intended to “constitute a waiver of the right to a judicial forum where such waiver would be void under the securities laws and specifically does not prohibit [the customer] from pursuing any claim or claims arising under the federal securities laws in any court of competent jurisdiction.”

This Bear Stearns customer agreement document never expressly mentions Rooney, Pace. Defendant is, however, unambiguously referred to in that paragraph of the agreement pertaining to situations where Bear Stearns' relationship with the customer is that of clearing broker only. In this section Bear Stearns expressly disavows liability or responsibility for any acts or admissions of the introducing broker or its employees.

Discussion:

It is basic that there is no duty to arbitrate a particular dispute where there has been no agreement between the parties requiring such disputes to be submitted to arbitration. See United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). Whether a party has or has not agreed to arbitrate is determined on the basis of ordinary contract principles, Fox v. Merrill Lynch & Co., Inc., 453 F.Supp. 561, 564 (S.D.N.Y.1978), and it is the district court which must decide this question. United Steelworkers of America v. Warrior & Gulf Navigation Co., supra. Because this court finds that defendant Rooney, Pace has failed to demonstrate the existence of any agreement between it and plaintiffs that mandates arbitration of the present dispute, defendants’ motion to stay pending arbitration clearly must fail.

In support of the contention that plaintiffs’ claims against Rooney, Pace and its employee, Robert Edelstein, must be submitted to arbitration, defendants rely solely on the signed agreements between plaintiffs and Bear Stearns, the clearing broker for plaintiffs’ accounts. Yet while the Bear Stearns customer agreements invoked by defendants indisputably do require arbitration in the case of disputes concerning “cash and/or margin accounts,” it appears equally beyond dispute that defendant Rooney, Pace is not a party to these agreements. Rooney, Pace, however, has not attempted to argue that it actually is a party to the agreement either by explicit or implicit mention. Nor has defendant attempted to demonstrate that the Bear Stearns agreement or at least its arbitration clause has somehow been incorporated into an independent agreement between plaintiffs and itself. See Massey Coal Export Corp. v. Compania Comercial y Naviera San Martin, S.A., 535 F.Supp. 1315 (S.D.N.Y.1982) (Weinfeld, J.) (shipper may not rely on arbitration clause in its charter party agreement with shipowner to enforce arbitration of dispute with buyer where contract with buyer does not incorporate terms of the charter party agreement).

Defendants appear to argue, rather, that because of Bear Stearns’ quite essential role as clearing broker in servicing plaintiffs’ accounts and also because plaintiffs apparently received the printed Bear Stearns customer agreement forms from the hands of Rooney, Pace employees, a third party beneficiary or an agency analysis should apply. Accordingly, under either analysis the argument would go, Rooney, Pace, as introducing broker is entitled to enforce the terms of the contract entered into between plaintiffs and Bears Stearns.

The relationship between introducing broker and clearing broker, it should be noted, has been deemed by some courts to constitute an agency/principal relationship, see Okcuoglu v. Hess, Grant & Co., Inc., 580 F.Supp. 749 (E.D.Pa.1984), or alternatively, a third party beneficiary relationship. See Cauble v. Mabon Nugent & Co., 594 F.Supp. 985 (S.D.N.Y.1984). Thus, in these cases, introducing brokers have successfully invoked the terms of the customer/clearing broker agreement in disputes arising between the customer and the introducing brokers themselves. Both Okcuoglu and Cauble are arguably distinguishable from the case now before the court by virtue of the particular types of brokerage transactions at issue. Yet even were such a distinction unavailable, this court would find itself constrained to differ with their conclusions. At least in the present context, it is this court’s conclusion that the relationship between introducing broker and clearing broker is susceptible neither to an agency nor to a third party beneficiary analysis.

Under New York State contract law and general common law principles, no colorable argument can be made for the proposition that the relationship between Bear Stearns, as clearing broker, and defendant Rooney, Pace, as introducing broker of plaintiffs’ accounts, was a relationship of agent and principal or vice versa. Agency is a fiduciary relationship resulting from a manifestation of consent by one person (the principal) to another (the agent) that the other shall act in his behalf and subject to his control, together with the consent by the other to so act. Meese v. Miller, 436 N.Y.S.2d 496, 79 A.D.2d 237 (App.Div. 4th Dept. 1981). The element of subservience is essential, for there can be no agency relationship where the alleged principal holds no right of control over the alleged agent. Mazart v. State, 441 N.Y. S.2d 600, 109 Misc.2d 1092 (N.Y.Ct.C1.1981). There has been no evidence that Bear Stearns and defendant Rooney, Pace are anything other than entirely independent entities. Indeed, Bear Stearns has underscored its separateness from Rooney, Pace by expressly disavowing in its customer agreement any responsibility or liability for the acts of the introducing broker. Because, therefore, the requisite elements both of consent by the principal that the other party act on its behalf, and of retained control by the principal are missing from the Bear Stearns/Rooney, Pace relationship, clearly this it may not be understood as one of agent and principal.

Nor may Rooney, Pace be deemed a third party beneficiary of the customer agreement between Bear Stearns and plaintiffs. Obviously Rooney, Pace or any small broker benefits from the agreements of large brokerage firms such as Bears Stearns to provide clearing services for customer accounts. Such small brokers would be in a poor position to manage customer accounts as investment advis- or/brokers if they were unable to arrange for the execution of desirable account transactions through an entity capable of acting as a clearing broker. Under general contract principles and New York State law, however, this is insufficient to render Rooney, Pace a third party beneficiary of these contracts between customers and the clearing broker.

Instead, a third party may sue on a contract as a third party beneficiary “only if the parties to that contract intended to confer a benefit on him when contracting; it is not enough that some benefit incidental to the performance of the contract may accrue to him.” Vazman v. Fidelity International Bank, 418 F.Supp. 1084, 1086 (S.D.N.Y.1976). See also Suffolk County v. Long Island Lighting Co., 728 F.2d 52 (2nd Cir.1984); Port Chester Electrical Construction Corp. v. Atlas, 40 N.Y.2d 652, 655, 357 N.E.2d 983, 985-86, 389 N.Y. S.2d 327, 330 (1976) (subcontractor not entitled to relief under contract between contractor and owner where no indication existed that contractor and owner intended the contract to run to subcontractor’s benefit; mere incidental beneficiary has no right to enforce a particular contract). Since there is no indication in plaintiffs’ agreements with Bear Stearns that Rooney, Pace was intended as anything more than an incidental beneficiary of Bear Stearns’ promise to perform clearing functions, Rooney, Pace has no standing to enforce the arbitration clause in effect between plaintiffs and Bear Stearns.

Defendants have argued strenuously that the recent trend in the federal courts favoring arbitration of alleged securities law violations and of ancillary state law claims, see, e.g., Dean Witter Reynolds Inc. v. Byrd, — U.S. -, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985); Finkle and Rose v. A.G. Becker Paribas, 622 F.Supp. 1505 (S.D.N.Y.1985); MacMahon v. Shearson/American Express, 618 F.Supp. 384 (S.D.N.Y.1985), mandates arbitration of the 1934 Act claims and the common law fraud claims set forth in plaintiffs’ complaint. While it is incontestable that the vigourous encouragement of arbitration in areas once thought to be the exclusive domain of the federal courts, see Dean Witter Reynolds, supra; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., — U.S. -, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (Sherman Act violations), may be transforming the resolution process for disputes arising in such areas, this transformation is not so radical as defendants suggest. None of the recent cases reviewed by this court goes so far as to as to mandate binding arbitration where no agreement to arbitrate has ever been reached. Thus, these new trends are simply no help to defendants here. In the absence of any arbitration agreement between plaintiffs and Rooney, Pace, defendants’ motion to stay pending arbitration must be denied.

Having determined that no agreement to arbitrate exists between plaintiffs and Rooney Pace, it is unnecessary to address plaintiffs’ contention that the Bear Stearns arbitration clause invoked by defendants in this motion expressly excludes from its coverage disputes arising under the federal secutities laws.

Because this court has concluded that there is no basis for arbitration either of plaintiffs’ federal or state law claims, defendants’ motion to stay this action pending arbitration is denied. Plaintiffs’ cross-motion for a determination that no basis exists for arbitration of plaintiffs’ claims, and for an order declaring defendants’ arbitration demand invalid and a nullity, is correspondingly granted.

      . Were the court to have reached this issue, however, assuming it had found the Bear Stearns customer agreement applicable to Rooney, Pace, it is now settled under Dean Witter Reynolds v. Byrd, — U.S. -, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) that even if plaintiffs could have avoided arbitration of their federal securities law claims their common law fraud claims would be subject to mandatory arbitration.


author: McNAUGHT, District Judge.

text:
    Harold WHITENECK, Plaintiff, v. CITY OF SPRINGFIELD, et al., Defendants.
    Civ. A. No. 83-716 Mc.
    United States District Court, D. Massachusetts.
    Dec. 19, 1985.
    Thomas J. Butters, Boston, Mass., for plaintiff.
    Harry P. Carroll, Deputy City Solicitor, Law Dept., City of Springfield, Springfield, Mass., for defendants.
   MEMORANDUM AND ORDER ALLOWING MOTIONS FOR SUMMARY JUDGMENT

McNAUGHT, District Judge.

In this civil rights action brought pursuant to 42 U.S.C. § 1983, the parties have filed cross motions for summary judgment. The plaintiff Whiteneck alleges that defendant Donald LaDue, a police officer for the City of Springfield, Massachusetts, violated his constitutional rights by falsely arresting him and charging him with receiving stolen property. His complaint against the City of Springfield is based upon action on the part of the Springfield Police Commission in revoking his license to do business as a dealer in second hand articles, for which action he asserts that the City is vicariously liable.

Many materials have been made available to us for decision of the issues presented, including the amended Complaint, the Answer, interrogatories and answers thereto, requests for admissions and the responses, an affidavit of Peter Carando, chairman of the Springfield Police Commission, his deposition, the deposition of the defendant police officer, Mr. LaDue, pages from the deposition of the plaintiff Mr. Whiteneck, and various attachments to the answers to interrogatories and the depositions.

The parties are agreed that there is no genuine dispute of material fact. It appears (although not at first glance) that they are correct. The essential facts are without dispute: those facts which determine liability or lack thereof. And those facts spell out the result: judgment for both defendants.

Whiteneck was in the business of buying and selling precious metals for four decades, according to his deposition. (Pp. 5, 6). He had a license to deal in second hand articles, issued by the Springfield Police Commission under Massachusetts General Laws, c. Í40, § 54. On March 31, 1982 he purchased a gold bracelet for $133.63 (Exh. 3, Plaintiffs Memo) The seller is designated on the receipt as Anna M. Bugbee, 1014 Main St., Springfield. As a condition of being licensed, a licensee, by reason of the provisions of section 15-7, Revised Ordinances of the City of Springfield 1956, ch. 17, § 7, upon taking in articles, must hold them for thirty days, a requirement with which Mr. Whiteneck disagreed, but admitted was his understanding of the law (Plaintiffs Deposition, page 106). Despite this fact, on April 1, 1982, Mr. Whiteneck sold the bracelet (Plaintiffs Response to Defendants’ Requests to Admit, No. 32) for $141.59, a profit of less than eight dollars. The owner of the bracelet estimated its value at $550.

In November of 1981, Mr. Whiteneck had been called before the Police Commission for violation of a city ordinance. At a hearing on November 10th, he was notified that any further violation might result in revocation of license, and later in the month, the Commission was notified by letter from the State Police of the receipt of information that Mr. Whiteneck’s business was being used to fence stolen merchandise. (Affidavit, Peter Carando, pars. 5, 6, 7, Exh. 6 to Memorandum in Support of Defendants’ Motion, a ltr. dtd. Nov. 20, 1981.)

Prior to April of 1982, the defendant Detective LaDue was at Mr. Whiteneck’s place of business five to ten times, and picked up pieces of stolen property there (LaDue deposition, p. 27). When the piece of jewelry bought by Mr. Whiteneck from Anna Bugbee turned out to be the property of one S. King Freedman, Detective LaDue sought an arrest warrant on a complaint from the District Court of Springfield. The warrant issued, and the arrest was made. Plaintiff asserts that this was a false arrest. In essence he is claiming a violation of the Fourteenth Amendment’s protection against deprivation of liberty without due process of law, but he was arrested on a facially-valid warrant after a determination of probable cause.

Plaintiff protests that he was ultimately found innocent because LaDue “didn’t have any reason to believe that Whiteneck knew the bracelet was stolen”, and still caused the complaint to issue against him. As was said, however, in Baker v. McCollan, 443 U.S. 137, at 145, 99 S.Ct. 2689, at 2695, 61 L.Ed.2d 433:

“Respondent’s innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment in most if not all jurisdictions, is largely irrelevant to his claim of deprivation of liberty without due process of law. The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted — indeed, for every suspect released.”

There is no evidence which would warrant a finding of any other alleged deprivation of constitutional right by defendant LaDue and he is therefore entitled to judgment.

Turning to the claim against the City of Springfield, plaintiff contends that the licensé issued to him constituted property right sufficient to invoke the protections of the due process clause' of the Fourteenth Amendment; hence, the license could not be revoked or suspended without notice and an opportunity to be heard. General Laws, c. 140, § 54. Konstantopoulos v. Whately, 424 N.E.2d 210 (Mass.1981); Medina v. Rudman, 545 F.2d 244, 250 (1st Cir.1976). We assume that the last citation is offered for the proposition that the property interest created by the license attained the status that entitled it to protection under the due process clause, by virtue of its recognition by state law. “Doubtless once a license, or the equivalent, is granted, a right or status recognized under state law would come into being, and the revocation of the license would require notice and hearing____”. Medina, supra, at 250.

General Laws, c. 140, § 181, provides that the licensing authorities may “revoke or suspend such license at their pleasure.” The defendant City calls our attention to the proposition that it is the law of Massachusetts that one who accepts a license which may be revoked at the discretion of the authority granting it, accepts it as such, citing Marrone v. City Manager of Worcester, 329 Mass. 378, 379, 108 N.E.2d 553, 554 (1952). On the other hand, Mr. Justice Spalding also wrote in that opinion that “The words ‘at their pleasure’ in § 181 have been construed to mean ‘in the exercise of a wise discretion’ ”. Whether the revocation here, under the circumstances then existing, constituted the exercise of a wise discretion might become a factual issue to be resolved. Assuming no factual issue, one might follow the thrust of Hagopian v. Trefrey, 639 F.2d 52 (1st Cir., 1981) in resolving the question whether plaintiff Whiteneck had a “property interest” of the nature that, constitutionally, required a hearing before it could be taken away. Hagopian concerned the dismissal of a town manager who complained that at a hearing granted him, a town board failed to identify in detail the grounds for his removal, and failed to allow him to cross examine members of the board under oath at the public hearing. The Court of Appeals studied the pertinent statute (the Saugus town charter) and found that its significant aspect was that, from the standpoint of a property right, town managers could be dismissed without cause. Thus, said the Court, the statute conferred no property interest. An analogy might be drawn, which analogy could result in a conclusion that the license granting statute under which this Commission acted, conferred no property interest worthy of protection. Such a conclusion appeals logically, except for the interpretation of c. 140, § 181 by Mr. Justice Spalding, and the fact that one looks to Massachusetts law here to determine the existence or nonexistence of a protected property interest.

We proceed, therefore, on an assumption that the interest of Mr. Whiteneck in his license was such that he was entitled to a hearing prior to its revocation, and that the denial of the hearing was violative of his right to due process. In the course of his deposition Peter Carando of the Police Commission testified that the minutes of the meeting of the Commission held April 14, 1982 disclose that Mr. Whiteneck was not present when the license was revoked because of a conversation which the Commission had had with Mr. Whiteneck the previous November (in which the plaintiff was warned to keep better records and to comply with the thirty-day holding law) and what happened subsequently with respect to the bracelet.

If the Commission, by its action on April 14, 1982, violated the rights of the plaintiff, can the City be held responsible? The plaintiff in his memorandum recognizes that a municipality is ordinarily not liable for action taken by a municipal employee, but reminds us that if a municipal policy or custom is the cause of the conduct (rather than on the basis of respondeat superior) the municipality will be liable. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “A policy or custom need not be made by the city’s lawmakers, but can be set by ‘those whose edicts or acts may fairly be said to represent official policy’ ”. (Plaintiff’s Memorandum, p. 9) Plaintiff then concludes: “Owen [Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980)] makes clear that the Commission’s conduct in revoking Whiteneck’s license amounted to official policy causing an infringement of Whiteneck’s rights under 42 U.S.C. § 1983 because the revocation was caused by those whose acts may fairly be said to represent official policy”. (Plaintiff’s Memorandum, p. 11) The basis for the conclusion that the Commission’s members enunciate policy for the municipality is nowhere disclosed by plaintiff. There is an attempt to persuade the Court that the revocation of licenses without hearings was a “policy” of the Commission since there was one prior instance in which a license had been so revoked. The logic escapes me.

One or two instances do not a policy make. We have no idea of how many licenses are issued by the Commission, nor how many are revoked, nor how many are revoked after hearing, nor how many are revoked after hearing without giving a further hearing (as apparently happened here —hearing, warning, information concerning further misconduct, revocation without further hearing). Even if the Commission were capable of setting and/or enunciating official “policy” on behalf of the City, there is nothing to warrant a conclusion that the action taken in the case of Mr. Whiteneck was action in accord with such a policy. There was no proclamation that such was the manner in which cases were to be handled, and there is nothing to indicate that a “custom” was followed. Since, on the matters presented, one may not conclude that there was a custom or policy of the city' which was causally linked to the license revocation, the plaintiff cannot prevail as against the municipality.

ORDERED: Judgment for the individual and the municipal defendants.


author: GARRITY, District Judge.

text:
    Claire McDONALD et al., Plaintiffs, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 84-2190-G.
    United States District Court, D. Massachusetts.
    Dec. 19, 1985.

      Sarah Anderson, Linda L. Landry, Neighborhood Legal Services, Lynn, Mass., Laura Rosenthal, Nancy Lorenz, Greater Boston Legal Services, Boston, Mass., and Alan S. Els, Cambridge & Somerville Legal Services, Inc., Cambridge, Mass., for plaintiffs.
    Marianne Bowler, Asst. U.S. Atty., Boston, Mass., Edwin Meese, III, U.S. Atty. Gen., Washington, D.C., for defendant.
   MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

GARRITY, District Judge.

Plaintiffs in the instant class action challenge the regulatory policies and procedures of the Social Security Administration which are used to deny disability benefits to claimants on the grounds that they do not have severe impairments. These policies are found in both the regulations and social security rulings. 20 C.F.R. §§ 404.-1520(c); 404.1521; 416.920(c); 416.921; SSR 82-55; and SSR 82-56. Plaintiffs allege that these regulations and rulings conflict with the definition of disability contained in the Social Security Act (“the Act”), 42 U.S.C. § 423(d)(1)(A) and thus are invalid both facially and as applied. Additionally, plaintiffs aver that such regulations and rulings violate their constitutional rights under the Fifth Amendment.

On June 27, 1985, the court granted plaintiffs’ motion for class certification, finding that the requirements of Fed.R. Civ.P. 23 had been satisfied. The court entered an order defining the class as:

All persons residing in Massachusetts who have filed or will file applications for disability benefits under Title II or Title XVI of the Social Security Act, and whose benefits have been or will be denied on the grounds that they do not have a severe impairment, pursuant to the policies set forth in 20 C.F.R. §§ 404.1520(c), 404.1521, 404.1522, 416.-920(c), 416.921 and 416.922, and Social Security Rulings cum. ed. 82-55 and 82-56 (1982).

The court further requested the parties to submit a proposed briefing and hearing schedule for cross-motions for summary judgment by July 5, 1985. Cross-motions were filed and the court had a hearing on the motions on December 2, 1985. After hearing oral argument and considering the briefs and exhibits submitted by the parties, the court grants plaintiffs’ motion for summary judgment on class issues and denies defendant’s motion.

I. The Secretary’s Severity Policies

The Social Security Act defines the term “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Congress clarified this definition in 1967 with the addition of 42 U.S.C. § 423(d)(2)(A), which provides:

For purposes of paragraph (1)(A) — (A) an individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

In 1968, the Secretary issued a regulation which provided that “[mjedical considerations alone can justify a finding that the individual is not under a disability when the only impairment is a slight neurosis, slight impairment of sight or hearing or other slight abnormality or combination of slight abnormalities.” 20 C.F.R. § 404.1502(a) (1968). This regulation was replaced in 1978 with the current so-called severity test, which was incorporated as step two of the Secretary’s five-step sequential analysis for evaluating disability claims. 20 C.F.R. § 404.1520. The severity test provides:

(c) You must have a severe impairment. If you do not have any impairments) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are therefore, not disabled. We will not consider your age, education, and work experience. However, it is possible for you to have a period of disability for a time in the past even though you do not now have a severe impairment.

“Severe impairment” is defined in 20 C.F.R. § 404.1521, which is set out in the margin. If a claimant is determined not to have a severe impairment at step two, a finding of not disabled is made without further consideration under steps three through five. 20 C.F.R. § 404.1520(a). Step 3 lists various impairments which are considered per se disabling and a claimant with a listed impairment or its medical equivalent is determined disabled irrespective of age, education and work experience. § 404.1520(d). If a claimant has a severe impairment, but it does not meet or equal a listed impairment, his disability status is further evaluated under steps 4 and 5. Step 4 evaluates a claimant’s residual functional capacity and ability to perform his previous work. § 404.1520(e). Step 5 applies if the claimant is found to be incapable of doing his past work. Under step 5, the Secretary determines whether the claimant, considering his age, education and work experience, can perform any other work, and if he can not, he is found disabled. § 404.1520(f). Additionally, on August 20, 1980, the Secretary promulgated a list of examples of impairments which were to be held not severe as a matter of law, regardless of whether they prevented the claimant’s performance of his past work. SSR 82-55.

II. The Cross-Motions for Summary Judgment

This court is not the first, and will certainly not be the last, to address the question of whether the Secretary’s step two severity test is consistent with the Act. Several courts of appeal have already found the step two regulation either invalid on its face or as applied by the Secretary. See, e.g., Johnson v. Heckler, 7th Cir.1985, 769 F.2d 1202; Yuckert v. Heckler, 9th Cir.1985, 774 F.2d 1365; Baeder v. Heckler, 3rd Cir.1985, 768 F.2d 547. Also, two other courts of appeal have cases similar to the one at bar pending before them. See, Smith v. Heckler, E.D.Cal.1984, 595 F.Supp. 1173; Dixon v. Heckler, S.D.N.Y. 1984, 589 F.Supp. 1494. In resolving the issues presented in the instant action, the court relies principally on the well-reasoned opinion of the 7th Circuit in Johnson v. Heckler, 7th Cir.1985, 769 F.2d 1202. The analysis is persuasive and, in our view, correct. It is thus somewhat disconcerting that the Secretary continues to enforce vigorously the step two regulation after its express invalidation by the Johnson court.

Turning to plaintiffs’ motion for summary judgment, their first claim is that the step two regulation as written violates the definition of disability contained in the Act. 42 U.S.C. § 423(d)(1)(A) and (d)(2)(A). In plaintiffs’ view, the statutory definition of disability expressly links the concept of severity to functional limitations and voca- ' tional considerations, not simply to medical diagnosis. In defense of the regulation, the Secretary contends that the legislative history and the language of the Act, particularly § 423(d)(2)(A), reflect the underlying premise of Congress that some impairments are so slight as to justify an immediate conclusion based on medical evidence alone that they could never prevent a claimant from working. The Secretary seeks to characterize the step two regulation not as an independent test of eligibility, but rather as a de minimis test for screening out frivolous claims.

Although questions of statutory interpretation are often close, the court is persuaded that the Secretary’s interpretation of the statutory definition of disability is erroneous. Nothing in the language or legislative history of the Act or its subsequent amendments indicates that Congress intended for a finding of non-disability based on medical factors alone. The statutory language incorporates both medical and vocational factors and emphasizes the causal relationship between the two. In the court’s view, Congress did not intend that the concept of severity be measured in a medical vacuum. Rather, Congress intended that the term “severity” represent the point at which a person’s impairments, when coupled with his unique vocational limitations, make the prospect of gainful employment sufficiently remote that payment of benefits is warranted.

The court is cognizant of other courts’ toleration of the regulation as a necessary de minimis screening test. However, there is nothing in the language of the regulation that compels a de minimis interpretation of the severity requirement. On the contrary, the very vagueness of the term “severity” permits covert manipulation of the severity threshold in response to budget constraints, administrative overburdening, or judicial scrutiny. Furthermore, under the court’s construction of the statutory definition, even a de minimis medical threshold of eligibility is inconsistent with the statutory mandate that vocational considerations be factored into the disability equation.

In defense of the regulation, the Secretary maintains that the step two test does address vocational considerations because it calls for an assessment of the effect of an impairment on the claimant’s ability to perform “basic work activities.” 20 C.F.R. § 404.1521. In the court’s opinion, Congress did not intend that a claimant's alleged disability be judged against some fictional average person’s ability to perform what the Secretary deems “basic work activities.” The Act speaks in terms of “his impairment,” “his previous work,” “his age, education, and work experience,” and thereby provides for an individualized assessment of disability. The step two regulation, by contrast, permits the Secretary to label a claimant as not disabled without ever reaching the question of whether his impairments in fact prevent him from doing his past work. This is particularly evident in SSR 82-55 which sets forth a list of impairments which are considered per se non-severe, regardless of whether the claimant has shown an inability to do his past work.

The court finds further support for its view that the step two regulation is facially invalid in the substantial case law on the Act’s allocation of the various burdens of proof in the disability determination. There is unanimous agreement among the circuits that while the ultimate burden of proving disability lies with the claimant, he makes a prima facie showing upon demonstrating an impairment which prevents him from doing his past work. See, e.g., Hernandez v. Weinberger, 1st Cir.1974, 493 F.2d 1120, 1123; Francis v. Heckler, 11th Cir.1985, 749 F.2d 1562, 1564. The burden then shifts to the Secretary to' show that the claimant is capable of performing other work, in view of his age, education and work experience. Valencia v. Heckler, 9th Cir.1985, 751 F.2d 1082, 1086.

Application of this allocation of burdens to the Secretary’s five-step sequential analysis further illustrates the facial invalidity of the step two regulation. Under this sequential analysis, the claimant discharges his prima facie burden at step 4. The burden then shifts to the Secretary to prove at step 5 that the claimant is not disabled. The step two severity threshold, however, permits the Secretary to terminate her analysis without affording the claimant an opportunity to discharge his prima facie burden. Consequently, use of the severity threshold can produce the anomalous result that benefits are denied to a claimant who can not, in fact, do his previous work without a prior determination by the Secretary that such claimant, considering his age, education and work experience, can do other work. Furthermore, apart from enabling the Secretary to circumvent her burden of proof in such cases, the severity threshold also allows her to bypass the full-scale evaluation of an applicant, based on both medical and vocational factors, guaranteed by the language of the Act. 42 U.S.C. § 423(d)(1)(A) and (d)(2)(A).

Finally, the court rejects the Secretary’s suggestion that the 1984 Act endorsed the sequential evaluation process. Section 4(a)(1) of the 1984 Act amended Section 223(d)(2) of the Social Security Act, 42 U.S.C. § 423(d)(2), by adding a new subparagraph (C), which provides as follows:

In determining whether an individual’s physical or mental impairment or impairments could be the basis of eligibility under this section, the Secretary shall consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the Secretary does find a medically severe combination of impairments, the combined impact of the impairments shall be considered throughout the disability determination process.

See also 1984 Act § 4(a)(2)(b). The language of the new subsection added by the 1984 Act hardly evinces congressional validation of the Secretary’s severity test. The new subsection does no more than require the Secretary to discontinue her policy of refusing to consider the combined effect of non-severe impairments. The court agrees with the Johnson court which, when presented with the identical argument by the Secretary, stated, “Step two of the sequential evaluation process was not, however, the focal point of the 1984 Amendment____ To the extent that Congress in the 1984 Amendment addressed step two, Congress disapproved of the Secretary’s ‘severity’ regulations and relied on the upcoming revision of the evaluation process to remedy its disapproval.” Johnson v. Heckler, 7th Cir.1985, 769 F.2d 1201, 1211, citing H.Rep. No. 98-618, 98th Cong., 2d Sess. 7-8, reprinted in 1984 U.S.CODE CONG. & AD.NEWS, 3038, 3044-45. The House Report, rather than endorsing the step two regulation, evidences at most a skepticism about its overall validity and workability, and express reliance on the Secretary’s promised reevaluation of the regulation.

In summary, the court holds that the step two severity regulations, 20 C.F.R. § 404.1520(c) and § 416.920(c) are inconsistent with the Social Security Act and are thus invalid as written. Accordingly, the court grants plaintiffs’ motion for summary judgment on class issues and denies defendants’ motions.

III. The Four Named Plaintiffs’ Individual Claims for Benefits

The four named plaintiffs in this action have moved for summary judgment on their individual claims for disability benefits. The court postponed a hearing on the plaintiffs’ individual motions pending resolution of the cross-motions on class issues. Upon consideration of the plaintiffs’ motions and the supporting and opposing briefs, the court finds that it would be inappropriate to rule on these motions at this time.

The court’s original jurisdiction over this class, as defined and certified in the court’s order of June 27, 1985, was premised on the collateral nature of plaintiffs’ claims. Specifically, the court waived the exhaustion requirement of 42 U.S.C. § 405(g) with respect to certain class members because, “plaintiffs’ claims are wholly collateral to their individual claims for benefits since plaintiffs challenge a procedure of the Secretary and, therefore, resolution of the issues in their favor will not result in an automatic award of benefits.” In the instant individual motions, however, plaintiffs ask the court to reverse the Secretary’s adverse decision and to award benefits immediately rather than remanding the cases to the Secretary. Such a course would be imprudent for several reasons.

First, certification of the class was based in large part on the fact that plaintiffs sought declaratory and injunctive relief with respect to the entire class, and not damages. Fed.R.Civ.P. 23(b)(2). The purpose of allowing the case to proceed as a class action, even though certain proposed class members had not exhausted their administrative remedies, was to avoid a multiplicity of lawsuits raising the same procedural question and requesting the same relief, and to provide a common binding adjudication on an issue applicable to all class members. This purpose would be frustrated if the court were to embroil itself in the awarding of benefits, a type of relief that would vary as to each class member depending upon the individual facts of each member’s claim. This is particularly true in the instant case where the class, although its exact size is unknown, potentially numbers in the thousands, and the court’s resolution of the procedural claim is not dispositive of and, in fact, perhaps only marginally related to some members’ individual substantive claims.

Moreover, if the court were to reverse the Secretary’s decision on the named plaintiffs’ claims for benefits and find disability as a matter of law, it would be acting beyond the scope of the authority conferred on it by Congress in 42 U.S.C. § 405(g). Under the statute, the role of the court is to review the Secretary’s findings of fact, not to make its own. In the instant action, the court has decided that the Secretary’s use of the step two regulation was improper and invalid. However, since the use of the step two regulation terminates the disability determination without any consideration of vocational factors, the Secretary has had no opportunity to make findings under steps three through five of the sequential evaluation procedure. Thus, if the court were to reverse the Secretary’s decision on plaintiffs’ claims without ordering a remand, it would, in effect, have to make findings of fact with respect to functional limitations and vocational considerations. In the court’s opinion, the proper course of action is to remand the claims of all class members to the Secretary for further consideration under steps three through five of 20 C.F.R. § 404.1520(c) and § 416.920(c). This will provide the Secretary with an opportunity either to rule on plaintiffs’ claims, perhaps obviating the need for further judicial action, or to develop a record upon which the court can perform its proper function of limited review under 42 U.S.C. § 405(g).

IV. Conclusion

Plaintiffs’ motion for summary judgment on class issues is granted and defendant’s motion is denied. The four named plaintiffs’ motions for summary judgment on their individual claims for benefits are denied. The Secretary is enjoined from further enforcing the step two rules and regulations and is ordered to redetermine the eligibility for benefits of class members, including the named plaintiffs, in conformance with the law as stated in this opinion.

      . The regulations in 20 C.F.R. § 404.1 et seq. relate to Title II of the Social Security Act ("SSI”) and the regulations in 20 C.F.R. § 416.-101 et seq. relate to Title XVI of the Act ("SSDI”). The regulations concerning the Secretary's severity policies are identical under SSI and SSDI. For simplicity, the court will refer to SSI regulations only.

      . This class definition does not include recipients of benefits whose benefits have been or will be terminated by the Secretary since the continuing disability determination is conducted pursuant to § 404.1588 et seq., which does not include the severity test.

      . The four named plaintiffs, Claire McDonald, Gerald Maloney, Lucy Steele and Willie Brinson, have also moved for summary judgment on their individual claims for benefits. The propriety of ruling on these individual claims will be more fully discussed in Part III, post. However, the collateral nature of the court’s jurisdiction in this matter, as well as the nature of the result the court reaches, counsels against exercising the discretionary power to reverse the decision of the Secretary without remand authorized by 42 U.S.C. § 405(g).

      . § 404.1521 What we mean by an impairment that is not severe.
      (a) Non-severe impairment. An impairment is not severe if it does not significantly limit your physical or mental abilities to do basic work activities.
      (b) Basic work activities. When we talk abbut basic work activities, we mean the abilities and aptitudes necessary to do most jobs. Examples of these, include:—
      (1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
      (2) Capacities for seeing, hearing and speaking;
      (3) Understanding, carrying out, and remembering simple instructions;
      (4) Use of judgment;
      (5) Responding appropriately to supervision, co-workers and usual work situations; and
      (6) Dealing with changes in a routine work setting.

      . Because the court has found that the Secretary’s step two regulation is inconsistent with the Act, it does not reach the question of whether the regulation is invalid as applied or whether the regulation denies plaintiffs due process or equal protection of the laws.


author: SELYA, District Judge.

text:
    UNITED STATES of America v. Generoso CARNEVALE, Jr.
    Cr. No. 85-0038-05-S.
    United States District Court, D. Rhode Island.
    Dec. 19, 1985.
   MEMORANDUM

SELYA, District Judge.

This case, in its present posture, brings into focus nagging problems concerning the administration and implementation of the Criminal Justice Act, 18 U.S.C. § 3006A (1985) (Act). Because of the increases in attorney compensation which will result from the Congress’s recent efforts to update the applicable rates and otherwise to improve the structure of the law, see Criminal Justice Act Revision of 1984, Pub.L. No. 98-473, § 1901(1), 98 Stat. 2185-86 (1984) (codified at 18 U.S.C. § 3006A (1985)) it is more vital than ever before that such concerns be addressed. Thus, although matters such as this are most often handled with a minimum of formality, some detailed treatment of the subject would, in this court’s view, prove useful.

I.

A member of the bar of this court was appointed to defend Generoso Carnevale, Jr. on or about May 29, 1985. The designation was made pursuant to the Act, a magistrate having certified that the accused was “financially unable to obtain adequate representation.” 18 U.S.C. § 3006A(a). Carnevale was one of six defendants charged with violations of 18 U.S.C. §§ 2, 371, 2312, 2313, and 2314 in a multiple-count indictment. Carnevale’s defense was successful; following trial, he was acquitted on all charges. The jury verdicts were returned on October 24, 1985.

Defense counsel then petitioned the court on November 4, 1985 for an award of fees under 18 U.S.C. § 3006A(d). She sought total compensation of $6700, well in excess of the standard maximum fee of $2000. See id. at § 3006A(d)(2). (“For representation of a defendant before the United States magistrate or the district court, or both, the compensation to be paid to an attorney ... shall not exceed $2,000 for each attorney in a case in which one or more felonies are charged.”) The court, troubled by the casualness of Barrister’s proffer, entered an order on November 13, 1985, requiring her to furnish further particularization and to review her application in light of certain questions raised sua sponte by the court. Barrister responded with a more detailed filing on November 22, 1985, but claimed the same fee entitlement. Given the statutory mosaic, her petition can be honored only if this court (i) finds that Carnevale’s defense demanded “extended or complex representation,” id. at § 3006A(d)(3), and (ii) “certifies that the amount of the excess payment is necessary to provide fair compensation.” Id. Additionally, the chief judge of the circuit must acquiesce. Id. The pertinent portion of the text of § 3006A(d)(3) is set out in the margin.

II.

The court approaches the Barrister application with considerable circumspection. By and large, appointment of an attorney as counsel for an indigent defendant creates a relationship which lacks the full con-sensuality normally characteristic of the bond between lawyer and client. Thus, in one sense at least, attorneys are pressed into such service, and meet an important systemic need. So, it can be argued that it comes with a certain ill grace for the court, on its own initiative, to bite the hand that feeds the system.

Yet, judges have a responsibility in such matters which cannot be shirked. See 18 U.S.C. § 3006A(d)(4) (“The court shall fix the compensation and reimbursement to be paid to the attorney____”); Plan, § 4 at 7 (“In fixing [compensation] the judge will bear in mind the qualification of attorneys and the relative difficulty encountered in presenting the case”). Cf. Gabriele v. Southworth, 712 F.2d 1505, 1507 (1st Cir. 1983) (fee applications under 42 U.S.C. § 1988 in prisoner civil rights cases “are subject not only to testing by adversaries but to the independent review of a court”). Judge Bazelon has tellingly articulated the congressional intent:

It was clearly not intended that the trial judge or [the chief judge of the circuit] sit as clericals, doing nothing more than multiplying hours times the statutory rate to arrive at a fee award; nor that the statutory limitation be waived in every case in which compensation for counsel’s services, if computed at maximum hourly rates, would exceed the statutory limits. The act ... calls for an informed judicial determination based upon the facts of the individual case.

United States v. Thompson, 361 F.Supp. 879, 883-84 (D.D.C.1973). See also United States v. Tutino, 419 F.Supp. 246, 249 (S.D. N.Y.1976) (same).

The Criminal Justice Act was originally passed into law in 1964. It has been significantly modified by several amendments enacted since that time, most recently by the Criminal Justice Act Revision of 1984. But, the fundamental purpose of the legislation remains unchanged. The law is designed to implement the guarantees of the sixth amendment to the Constitution by assuring to individuals accused of crime in a federal venue the availability of competent counsel to “furnishf ] representation for any person financially unable to obtain adequate representation.” 18 U.S.C. § 3006A(a). The focus of the Act is on “an adequate defense” for those who could not otherwise afford one. Id. Put another way, the “purpose of the Criminal Justice Act is to furnish counsel to indigent defendants who, presumably, need counsel.” United States v. O’Clair, 451 F.2d 485, 486 (1st Cir.1971) (per curiam). And, the fact that the government has assumed fiscal responsibility for providing “sums necessary to carry out the provisions of [the Act],” 18 U.S.C. § 3006A(j), does not transform the statute into an annuity for the bar. See Tutino, 419 F.Supp. at 248. Thus, this court recognizes its responsibility to provide a judicial counterweight to ensure that the calipers of justice remain in a state of libration.

III.

In attempting to balance the scales, the court acknowledges that the instructions of the Congress are indistinct. Insofar as the Act itself is concerned, “the governing criteria are hardly self-explanatory.” United States v. Bailey, 581 F.2d 984, 986 (D.C. Cir.1978). Judge Bazelon opined in 1978 that “it can fairly be said that the ... Act leaves the prerequisites for excess compensation ... ‘essentially standardless’ ” Id. at 987, quoting Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, The Criminal Justice Act in the Federal District Courts 179, 182 (Comm.Print 1969). The neoteric amendments enacted after 1978 have neither filled this void nor simplified the judicial task. So, evenhanded application of the statute continues to be “a frustrating process,” Thompson, 361 F.Supp. at 884, but a process from which there is no principled escape.

The case law, though sparse, is of some assistance. Certain basic tenets have found widespread acceptance. The courts have recognized the appropriateness of considering C.J.A. fee applications in light of

the amount, character and complexity of work required; responsibilities involved; manner in which duties were performed; knowledge, skill and judgment required of and used by counsel; professional standing of counsel as reflected by length of time at bar, experience acquired and reputation established; nature of counsel's practice and injury thereto; any extraordinary pressure of time or other factors under which services were rendered; results achieved; and any other circumstances brought to the Court’s attention relevant and material to the determination of a fair and reasonable fee.

United States v. James, 301 F.Supp. 107, 116 (W.D.Tex.1969) (footnote omitted). See also United States v. Johnson, 549 F.Supp. 78, 82 (D.D.C.1982); Tutino, 419 F.Supp. at 249; Thompson, 361 F.Supp. at 884 & nn. 11-12; United States v. Ursini, 296 F.Supp. 1155, 1157-58 & n. 2 (D.Conn. 1968). See generally Judicial Conference of the United States, Guidelines for the Administration of the Criminal Justice Act ¶ 2.22B (as amended Sept. 22, 1978); Plan, § 4 at 7.

These criteria cannot, however, be applied in a vacuum. The expenditure of time and energy alone is not dispositive. “Common sense confines [the computation of the] value [of the services] to reasonably competent and productive effort, and excludes bumbling and wasteful activity from the count.” Bailey, 581 F.2d at 987. As with the more familiar standards engrafted by the courts in the 42 U.S.C. § 1988 context, e.g., Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983); Furtado v. Bishop, 635 F.2d 915, 920 (1st Cir.1980); King v. Greenblatt, 560 F.2d 1024, 1026-27 (1st Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978), only reasonably productive time is deserving of recompense.

There is a further distinction, however, which departs sharply from the § 1988 environment. The maximum rates promulgated in the Criminal Justice Act are just that: maxima. They are not routinely to be used to compensate all counsel — even all proficient counsel — in all cases. As this district’s Plan states: “The hourly rates of compensation are designated and intended to be maximum rates and will be treated as such.” Plan § 4 at 7. It must be remembered that the Act’s purpose was not to benefit the bar, see text ante at Part II, but to assure to indigent defendants the availability of competent counsel. Historically, dedicated lawyers had volunteered their time pro bono to achieve this end. The Act sought to ease the burden on such advocates — not to eliminate it entirely.

A substantial element of appointed counsel’s representation under the Act remains public service and congress has made it clear that the fees allowable under the Act are not intended to provide full compensation to counsel.

United States v. Hildebrandt, 420 F.Supp. 476, 478 (S.D.N.Y.1975). See also Bailey 581 F.2d at 988; Tutino, 419 F.Supp. at 248; Thompson, 361 F.Supp. at 887; United States v. Harper, 311 F.Supp. 1072, 1074 (D.D.C.1970). Though the Act was aimed at sparing appointed counsel from rags and tatters, it was not designed to robe them in silks and satins.

The Criminal Justice Act Revision of 1984 is of a piece with these precepts. The legislative history reveals an intention to upgrade compensation not to market levels, but to a degree satisfactory “to ensure that those attorneys who accept appointments do not suffer economic hardship.” H.Rep. No. 98-764, 98th Cong., 2d Sess. 1, reprinted in 1984 U.S.Code Cong. & Ad.News 3667, 3668 (hereinafter “House Report”). Indeed, the original version of the 1984 bill, H.R. 4307, contained projected rates and per-case maxima somewhat more generous than those eventually adopted. The inference is unmistakable: Congress believed that appointed counsel should continue to make some (reasonable) financial sacrifice in these matters. .

In providing for waiver of the maxima where warranted, 18 U.S.C. § 3006A(d)(3), it is noteworthy that the Congress spoke in terms of “fair compensation.” “Fair” does not mean “full.” And, fairness must be measured both by the goals of the Act and the circumstances of the case. Accordingly, the authorities are virtually consentient that, in respect to excess compensation applications, reliance on the maximum rates is the exception rather than the rule. See, e.g., Hildebrandt, 420 F.Supp. at 478; United States v. Dodge, 260 F.Supp. 929, 929 (S.D.N.Y.1966); United States v. Hanrahan, 260 F.Supp. 728, 729 (D.D.C.1966). “The Act’s use of the words ‘fair compensation’ for this situation must be interpreted in light of the general limitations on payment found in the Act.” Id. Indeed, the Plan says it all:

[The maximum hourly rates] are not intended to change the basic and underlying philosophy of the Act that the bar of the nation owes a responsibility to represent persons financially unable to retain counsel, and that the compensation provided is not intended to equate private counsel fees. In keeping with that philosophy, when charges in excess of the statutory maximum are sought, it is to be only in the unusual case, and it is the intent that such further charges be at a lower hourly rate.

Plan § 4 at 7.

The court is cognizant that, over time, Congress has evinced some intention to liberalize the strictures of the Act. This has been made manifest not only by the periodic upgrading of hourly rates and ceilings, but by the deletion of the original requirements that the maxima could be sidestepped only for cases involving “protracted representation” in “extraordinary circumstances.” Compare Pub.L. No. 88-455, 78 Stat. 552, 553 (1964), 18 U.S.C. § 3006A(d) (1970) with 18 U.S.C. § 3006A(d)(3) (1976). Yet these changes have merely eased, not abolished, the constraints on fee awards. See Bailey, 581 F.2d at 988. Though this court eschews so miserly a construction of the Act as would dampen the bar’s enthusiasm to participate in the defense of indigents accused of crime (a result which would, in large part, defeat the wholesome promise of the legislation), it will not rubberstamp excess-compensation applications. Such incursions on the public fisc merit careful scrutiny. And, use of the maxima as a basis for calculating fee claims in such instances will be sanctioned only where the problems in the case, or the quantity or calibre of the services, or the idiocratic difficulties inherent in the defense, are significantly outside the scope of routine expectations. Even in such cases, recompense will be allowed only for reasonably productive time. Fairness, after all, is a two-way street.

IV.

The court now turns to Barrister’s application and to a consideration of her eligibility for excess compensation. In so doing, the court reminds counsel that the burden rests with the applicant to “provide sufficient details to support the premises that the representation was indeed extended or complex and that the excess is essential to fairness of the remuneration.” Bailey, 581 F.2d at 990 (footnote omitted). See also Thompson, 361 F.Supp. at 884; United States v. Naples, 266 F.Supp. 608, 608-09 (D.D.C.1967). Although the fee claim need not embrace exquisite detail, it should be adequate to limn the necessity for the services, their nature and extent, and an itemized account of the time involved.

In this case, following the procedure envisioned by Naples, id. at 609, the court returned the application to Barrister in a search for further elucidation. To the extent that the amended filing still lacks specificity, see text post, the applicant must bear the brunt of its short-comings. The process of approving fee applications cannot be turned into a ping-pong match, with defective petitions being shunted back and forth endlessly between the court and counsel.

Barrister qualifies without serious question for the balm of 18 U.S.C. § 3006A(d)(3). Her representation of Carnevale was sufficiently “extended;” the case occupied some five months between arraignment and verdict, the trial itself lasted for some twelve days (exclusive of jury empanelment); and pretrial motions were heard on several occasions. Although the Act offers no guide as to what constitutes “extended” service, the essence of the requirement is plainly temporal. See Bailey, 581 F.2d at 987. The court is satisfied that Carnevale’s defense commanded a suitably substantial investment of productive time to meet this prong of the statutory test.

Inasmuch as the court finds that Barrister’s representation was “extended,” it is not essential that she show it was “complex” as well; § 3006A(d)(3) formulates a disjunctive standard in this respect. Nevertheless, to give counsel her due, the court likewise notes that the complexity furculum of the statute was fulfilled here. The government brought a fifty-seven count indictment against six defendants. The accusations ranged from conspiracy, 18 U.S.C. § 371, to a litany of charges involving various aspects of interstate transportation, concealment, and sale of stolen motor vehicles, 18 U.S.C. §§ 2312-2313, and interstate asportation of falsely-made securities (automobile title certificates). See 18 U.S.C. § 2314. Some twenty-seven different vehicles were described in the indictment. More importantly, the conspiracy was alleged to have lasted over a three year period (1979-1981) and to have encompassed hundreds of ears. The government presented approximately sixty-six witnesses and offered scores of exhibits.

The Act provides no standard for when representation may be deemed “complex.” Yet, the magnitude and intricacy of this case, the attendant avalanche of papers to be perused and sorted out, the variety of the transactions, and the diversity of the charges combined, in the context of a multi-defendant trial, to complicate the task of assigned defense counsel to a degree sufficient to merit the label “complex.” The court so finds.

Barrister is entitled to “[pjayment in excess of any maximum amounts provided in [18 U.S.C. § 3006A(d)(2) ] ... for extended or complex representation” of Carnevale in connection with the case at bar.

v.

Barrister’s entitlement to extra remuneration does not end the court’s inquiry. It is still necessary to examine the specifics of her application and to apply thereto the governing criteria. See text ante at Part III.

A. Trial Time.

Barrister has claimed sixty-five hours of trial time. The clerk’s records show somewhat less. The applicant has offered no itemization of these hours. The court is inclined, in such circumstances, not to hew strictly to the clerk’s log. The court accepts sixty-three hours as a reasonable approximation. See James, 301 F.Supp. at 114 (discussing minimal discrepancies among records cataloguing time spent in open court).

Her claim of entitlement to the highest possible rate, $60 hourly, cannot be accepted as easily. As noted ante, it is the exception rather than the rule to fund excess-compensation claims at maximal rates. In Barrister’s case, it would be wholly unjustified to do so.

In the first place, Barrister is a fledgling lawyer; she was admitted to the Rhode Island bar on November 4, 1983 and admitted to practice before this court on March 29, 1985. This was apparently her maiden voyage in a criminal jury trial in federal district court. Even in precincts where the peculiar constraints of the Act are not operative, this court has been frugal in setting rates for “relative newcomers to the bar.” United Nuclear Corp. v. Cannon, 564 F.Supp. 581, 589 (D.R.I.1983) ($40 per hour rate for inexperienced attorneys under 42 U.S.C. § 1988).

Moreover, Barrister’s services were not exceptional in any sense. Her handling of Carnevale’s case was pedestrian. The court intends no slur; it is, however, in the interests of justice to point out that, while Barrister displayed average competence for an attorney of her tender years, she did not distinguish herself in any way. Though time-consuming, the trial was not especially arduous for Barrister. The government levelled its guns principally at codefendant Martin, and much of its proof had no bearing on the case against Carnevale. Barrister waived cross-examination as to a majority of the prosecution witnesses, and was extremely brief with most of the others. She made no opening statement. She elected (wisely) to present no rebuttal case. Her summation was straightforward.

To be sure, Carnevale’s defense was successful; but, in the court’s judgment, that result was largely attributable to the weakness of the prosecution’s “proof” against him and to the abilities of seasoned counsel for his codefendants. Courts have not hesitated to prune rates or hours in cases where, though the defense was successful, the efforts of the attorney were lackluster. See, e.g., Tutino, 419 F.Supp. at 247. Indeed, even when defense counsel has “performed in accordance with the highest standards of the legal profession,” Hildebrandt, 420 F.Supp. at 477, courts cannot give carte blanche to C.J.A. fee applications. See also United States v. Lowery, 261 F.Supp. 396, 397 (D.D.C.1966) (decided under the Act prior to the 1970 amendments).

Considering all of the criteria mentioned above, see text ante at Part III, and having in mind the pronouncements of the Plan, the court fixes $40 per hour as the appropriate rate at which Barrister’s in-court time should be rewarded.

B. Court Time (Exclusive of Trial).

Barrister claims an additional six hours of in-court time attendant upon pretrial hearings and the like. She also seeks two hours for jury empanelment (which occurred in advance of trial itself on an earlier date). The court has no legitimate quarrel with the amount of time proffered in these respects. There is no reason why the rate formulated for her trial involvement, see text ante at Part V (A), should not apply to these hours as well. The Act differentiates between time “expended in court” and “expended out of court.” See 18 U.S.C. § 3006A(d)(l), quoted ante at n. 8. It does not distinguish among varieties of in-court time.

C. Time Expended Out of Court.

This section of Barrister’s petition presents the most nettlesome questions. She lays claim to a total of fifty-eight hours, all at the ceiling rate of $40 hourly. Her application, despite the attempt at augmentation, remains singularly inexplicit.

Barrister asserts, for example, that she engaged in eight pretrial conferences with her client, consuming a total of eight hours. She offers no specifics whatever: the court is at a loss to say whether these discussions were face-to-face or by telephone, or to gauge the relevance of, and/or necessity for, so many confabulations. (The heading of this section of her petition —“Interviews and Conferences” — indicates that some unspecified portion of this time was for something other than in-person interviews.) Such a bland “description is inadequate as a basis for a ruling that said time was reasonably expended.” James, 301 F.Supp. at 133 (footnote omitted). Certainly, dialogue between a lawyer and a criminal defendant is an essential ingredient of any recipe for a successful defense, but counsel has an obligation to flesh out such a barebones scenario when she seeks excess compensation.

An application which is pockmarked by generalities renders it difficult for the court to assess the importance or the significance of the time expended. Especially in light of the relatively large number of aggregate hours which have been requisitioned in this matter, the attorney must be prepared to pay a price for such inadequacies in description. See Thompson, 361 F.Supp. at 884; James, 301 F.Supp. at 127; Naples, 266 F.Supp. at 608-09.

The remaining portion of this claim deals with legal research, drafting and review of pleadings, obtaining and analyzing records, and other generically acceptable items. It totals forty hours. Yet, the asservation fails on several major counts.

First, the court is aware that Barrister, for the most part, played a tagalong game. Her motions exhibited no signs of individual initiative; in the main, they were mirror images of those filed by other defendants. She furnished the court with little assistance by way of memoranda, cf. Tutino, 419 F.Supp. at 249-50, and she submitted no requests to charge. See Fed.R.Crim.P. 30. Neither her written submissions nor her oral arguments nor her performance in the courtroom bore the hallmarks of intensive preparation.

Second, many of Barrister’s entries reflected the expenditure of time to bring herself to the starting gate of rudimentary legal proficiency. E.g., “researched and copied law of conspiracy ... and read some articles on elements and aspects of the crime of conspiracy from books;” “read books on jury selection and the impaneling process;” “read some articles in text books in reference to trying cases in federal court;” “researched the law on expert testimony and the methods of cross-examination of same, and how to discredit their testimony in front of the jury, ... from American Jurisprudence and other text books. Also looked at the Federal Rules relating to expert testimony.” The law is not a static discipline, and lawyers must constantly seek to expand the scope of their knowledge. Such industry is always to be commended. That is not to say, however, that it will bear immediate fruit, especially in the vineyards of the C.J.A.

It is settled beyond peradventure that the federal courts will not permit the Act to be used as a device to further the basic education of a lawyer at government expense. Tutino, 419 F.Supp. at 251. In the words of Judge Bazelon:

[T]he bar has long required its members to maintain competence in the areas in which they are to practice, and it seems generally settled that an attorney may not properly charge his client for the time it takes the attorney to obtain general competence in a particular area of the law.

Thompson, 861 F.Supp. at 884-85 n. 12.

Having volunteered to take on criminal defense assignments, an attorney must bring to his or her appointment at least a basic understanding of procedural rules, evidentiary principles, statutory law, recurring issues, and landmark cases. Some research is always necessary in order to mount a vigorous defense, but it must start not from ground zero but from an acceptable plateau of expected knowledge. There is a lowest common denominator, and some of Barrister’s work is beneath that level.

Thirdly, there is considerable imbrication of charges. Ten hours are requisitioned for “obtaining and reviewing records,” yet such work also comprises a part of the time logged under the “legal research” rubric (e.g., Oct. 5, 1985, Oct. 6, 1985). The court must, of course, weed out such overlaps. And, the application reflects some obvious inaccuracies; for example, the time charged for preparation of closing arguments and work anent jury instructed is noted as taking place after the charge conference, Fed.R.Crim.P. 30, had been held and counsels’ summations delivered.

Lastly, the court notes that these proceedings, albeit protracted, created no discernible need for the performance of services under extraordinary pressures of time; that counsel displayed no remarkable knowledge or skill in her run-of-the-mine handling of the case; and that her relative inexperience showed.

Taking into account all of these elements, the court allows a total of thirty-four and one-half hours for reasonably productive out-of-court time expended by Barrister in Carnevale’s defense, and fixes a rate of $28. per hour to remunerate that time.

VI.

In the judgment of the court, Barrister is entitled to an award of fees under 18 U.S.C. § 3006A(d)(3) for the reasons stated. Her representation of Carnevale in this extended and complex litigation is deserving of recompense in a higher overall amount than that allowed ($2000) in such cases by 18 U.S.C. § 3006A(d)(2). But, her entitlement is somewhat less than she has forecast in her fee application.

The court finds that Barrister is eligible to receive excess compensation in the aggregate amount of $3806, based upon seventy-one hours of time expended in court at a rate of $40 per hour ($2840) and thirty-four and one-half hours of non-court time at a rate of $28 per hour ($966). Barrister has sought no expense reimbursement, 18 U.S.C. § 3006A(e)(2), so none is awarded. The court will therefore transmit the application sub judice and certify to the chief judge of this circuit that payment in such an amount is requisite to provide fair compensation for Ms. Barrister under the Act.

An eschatocol of sorts may be in order. This court takes boundless pride in the spirit and dedication of the members of our bar, the majority of whom have been ready and willing to assist indigents before this court, frequently at considerable personal sacrifice. Ms. Barrister is one of that number, and the court has no doubt but that, given time and experience, she will reflect great credit on herself and on the justice system. Lawyers hold themselves in high esteem — and with good reason. Thus, it is always unpleasant to trim counsel fee requests; it is doubly so in the C.J.A. context. Yet, no judge worth his or her salt shrinks from the proper decision of a matter simply to indulge personal tastes or distastes.

The Congress has balanced competing considerations in the enactment of the Criminal Justice Act. It has, on the one hand, provided for the adequate representation of accused persons who are unable to afford private counsel. On the second hand, it has agreed to compensate lawyers for furnishing those services, but only to a degree sufficient to stave off economic hardship. The Act leaves no margin of profit. It falls to the courts, therefore, to hold this delicate balance steady and true. It is a thankless chore — and one which cannot be accomplished by accommodation, by blindly accepting every hour spent by counsel as fully reimbursable, by awarding excess compensation routinely, or by automatically endorsing the use of maximum rates in every case.

      . In order to spare unnecessary embarrassment to the attorney involved, she will be referred to in this rescript by the pseudonym “Betty Barrister" (Barrister).

      . Section 3006A(d)(3) of the Act intones in material part:
      Payment in excess of any maximum amount provided in [§ 3006A(d)(2) ] may be made for extended or complex representation when the court in which the representation was rendered ... certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit.

      . In this district, however, such service is more aleatory than involuntary. The "panel” from which assigned counsel are chosen, 18 U.S.C. § 3006A(b), comprises only lawyers who have expressed a generic willingness to accept such designations. Assignments in particular cases are, in most instances, made randomly by the luck of the draw from within the contours of the roster of volunteers. This district’s formal "Plan for Adequate Representation pursuant to the Criminal Justice Act of 1964, as amended” (Plan), originally adopted on February 24, 1971, embodies those principles. See Plan, § 2 at 4-5. Betty Barrister was named to represent Carnevale in precisely this stochastic fashion.

      . It would serve no useful purpose for this court to attempt to trace the statutory lineage. That heritage has already been well documented. E.g., Bailey, 581 F.2d at 986-87 & nn. 7-18; Johnson, 549 F.Supp. at 79 & nn. 7-12; Tutino, 419 F.Supp. at 248-49 & nn. 3-8; House Report at 2-4, 1984 U.S.Code Cong. & Ad.News at 3669-71. (The 1982 amendments, Pub.L. 97-164, were of a purely cosmetic nature.) Subsequently, the Criminal Justice Act Revision of 1984, described ante, adjusted rates and ceilings upward to offset increases in legal costs nationally.

      . This is not to suggest that the applicant can place no reliance on the trial judge. In the prototypical case, the judge will have attained considerable familiarity with the dimensions and needs of the case and the quality of the attorney’s services. And, "everyday judicial experience," Bailey, 581 F.2d at 989, will point the way to certain conclusions. Notwithstanding these eternal truths, the judge, unaided by counsel, will often be unable accurately to see behind the scenes or to appreciate the difficulties encountered by the lawyer.

      . Three defendants pled guilty in advance of trial, and four of the counts were dropped. Carnevale stood trial with the remaining pair of defendants (William Martin and James Rekrut) on a total of fifty-three counts.

      . The government had no proof whatever of Carnevale’s involvement in the scheme before 1981. At the close of the prosecution's case, Barrister’s motion to acquit her client on all of the pre-1981 charges was granted under Fed.R. Crim.P. 29(a).

      . 18 U.S.C. § 3006A(d)(l) provides in pertinent part that:
      Any attorney appointed pursuant to [the Act] ... shall ... be compensated at a rate not exceeding $60 per hour for time expended in court or before a United States magistrate and $40 per hour for time reasonably expended out of court.

      . The court recognizes that the Cannon comparison is imprecise. Barrister was serving as sole counsel, not as a subordinate member of a litigation team. Yet, the analogy is useful.

      . This court is loath to add unnecessarily to the flood of paperwork which has engulfed the bar and inundated the judicial system. And, the court is mindful that the time spent by an attorney in preparing a CJ.A. fee petition is not itself compensable. James, 301 F.Supp. at 131-32. Thus, the court does not require applications to be filed in exceedingly fine detail or in an elaborate format. Nonetheless, the purpose of the proffer is to enlighten, and the documentation must convey sufficient particulars to inform the court of what counsel has done, and why. Without such minimal imput, the inquiry is inevitably hampered, and the handicap ultimately redounds to the applicant’s detriment.

      . The rule is neither unduly harsh nor closefisted. Even in private practice, much the same holds true. Continuing legal education is often a capital investment in an attorney’s future rather than a shortterm source of profit on a given case.

      . Although Barrister cannot be held responsible for some of the time which was "wasted" in this matter — the court defines "waste” in terms of time profligately expended without any incremental profit to the rights and interests of the defendant — she earns no credit for any notable conservation of time or judicial resources. Unlike defense counsel in Ursini, supra, she was neither a "leavening influence in the case,” nor did her "economical use of time [ ] result! ] in a saving of many, many hours — perhaps days — of trial time.” 296 F.Supp. at 1158.