author: NORTHROP, Senior District Judge.

text:
    Glenda POPE v. BETHESDA HEALTH CENTER, INC., et al.
    Civ. A. No. N-85-533.
    United States District Court, D. Maryland.
    Feb. 18, 1986.

      Joseph E. Fitzpatrick, Jr., and Ward & Klein, Gaithersburg, Md., for plaintiff.
    Jamie S. Gorelick, Randall J. Turk, and Miller, Cassidy, Larroca & Lewin, Washington, D.C., for defendant Bethesda Health Center, Inc.
    James P. Salmon, and Sasscer, Clagett, Channing & Bucher, Upper Marlboro, Md., for defendant Liberty Mut. Ins. Co.
   MEMORANDUM

NORTHROP, Senior District Judge.

Pending before the Court are motions for summary judgment filed by defendant Bethesda Health Center (BHC) and defendant Liberty Mutual Insurance Company (“Liberty Mutual”). After reviewing the record in this case, the Court has determined that no hearing is necessary. Local Rule 6. For the reasons discussed below the motions are granted in part and denied in part.

Facts

The plaintiff, Ms. Glenda Pope, began working for defendant BHC as a medicine aide on June 23, 1979. Approximately six months later, on December 29, 1979, the plaintiff slipped on some jello on the floor of a patient’s room injuring her back. Ms. Pope continued working several more days after the incident, but ended her employment at BHC in mid-January, 1980, and filed a claim with the Maryland Workmen’s Compensation Commission on January 22, 1980. Subsequently, she began receiving total temporary disability benefits from BHC’s worker compensation insurance carrier, Liberty Mutual. The plaintiff was unable to work for the next twenty-two months and received almost $10,000 in temporary total disability benefits.

In August, 1981, a recommendation was filed with the Maryland Workmen’s Compensation Commission requesting that Liberty Mutual pay to the plaintiff an additional $4,000 as costs for retraining the plaintiff to become a Dental Assistant. Both defendants opposed the recommendation and the Commission scheduled a hearing for November 6,1981 to review the matter.

On October 6, 1981, BHC contacted Ms. Pope and offered her a position as a ward clerk at the center as an alternative to her request for rehabilitation benefits. The plaintiff rejected that offer stating that she would consider such an offer only if the commissioner rejected her claim for rehabilitation benefits. At the November 6 hearing, the commissioner reserved ruling on her rehabilitation claim. The plaintiff went back to work at BHC as a ward clerk on November 19, 1981.

On November 25, the commissioner entered an order ruling that Ms. Pope was 60% permanently partially disabled and awarded her $38,400 in benefits. The written order further reserved any ruling on the plaintiff’s claim for rehabilitation benefits. The defendants requested a rehearing, asserting that the record failed to indicate any basis for the commissioner’s rating of a 60% permanent partial disability, and that since the November 6 hearing was limited to the issue of the plaintiff’s claim for rehabilitation benefits, the commissioner was without authority to award any permanent partial disability payments. The commissioner then scheduled a rehearing for January 20, 1982 to address the defendant’s concerns.

In early January, 1982 the plaintiff while working at the center discovered and photocopied a memorandum which indicated that BHC intended upon firing her immediately after the January 20, 1982 rehearing. The plaintiff alleges that the memorandum clearly indicated that the reason for her impending discharge was to retaliate for her filing claims with the Workmen’s Compensation Commission.

The commissioner’s rehearing was timely held and on February 2, 1982, the commissioner entered an order affirming his previous order.

On March 2, 1982, Ms. Pope became involved in a dispute while working at BHC, was ordered to leave, and never returned. On March 9, 1982 the defendants appealed the commissioner’s rulings of November 25, 1981 and February 2, 1982 to the Montgomery County Circuit Court, in accordance with Md.Ann.Code Art. 101, § 56. A cross-appeal was filed by the plaintiff on March 15, 1982. Shortly before trial, on September 28, 1983, the parties executed a final compromise and settlement agreement, which was approved by the commissioner on October 17, 1983.

The plaintiff filed suit on October 19, 1984 in the Federal District Court for the District of Columbia alleging claims of fraudulent misrepresentation and wrongful discharge. The case was subsequently transferred to this Court on February 6, 1985.

In her complaint, the plaintiff states that the defendants conspired to defeat her attempts at procuring rehabilitation benefits under the Maryland Workmen’s Compensation Act by fraudulently representing that she would be given a permanent position as a ward clerk at the defendant’s center. She asserts that at the time the representation was made, the defendants had already determined that she would be discharged upon the commissioner’s denial of rehabilitation benefits.

Analysis

The first issue before the Court is whether the settlement agreement executed by the parties in September, 1983 precludes the plaintiff from maintaining this lawsuit. The final compromise and settlement agreement states in pertinent part:

NOW, THEREFORE, it is hereby agreed as follows:
1. The Employer/Insurer hereby agrees to pay to the Claimant the sum of Forty-Three Thousand Four Hundred Dollars ($43,400.00), such amount in addition to all temporary total disability compensation payments previously paid. (Employer/Insurer will receive a credit for all permanent partial disability compensation payments made under the Commission’s Award of November 25, 1981.)
2. The Claimant hereby accepts the said agreement and the foresaid payments) in final compromise and settlement of any and all claims, except that her future right to necessary medical treatment related to her occupational injury sustained on the 29th day of December, 1979, will remain open and continue to be the responsibility of the Employer/Insurer, which the Claimant, his or her personal representation, dependents, husband, children or any other parties who might become beneficiaries under the said Workmen’s Compensation Law, might now or could hereafter have under the provisions of the said Law, arising out of the aforesaid injury or disablement or the disability resulting therefrom, and does hereby, on behalf of himself or herself and all of said other parties, release and forever discharge the Employer/Insurer, their personal representatives, heirs, successors and assigns, from all other claims of whatsoever kind which might or could hereafter arise under the Workmen’s Compensation Law from the said injury, disablement or disability. (Final Compromise and Settlement Agreement, p. 3).

The defendants contend that although the plaintiff has sued them for fraudulent misrepresentation and abusive discharge, these claims actually “arise under” the Maryland Workmen’s Compensation Law, and are thus barred by the language of the settlement agreement.

A. Fraudulent Misrepresentation In Maryland the elements of a cause of action for fraud are:

1. The defendant made a false representation of a material fact.

2. The falsity must have been known to the defendant, or the misrepresentation was made with such reckless indifference to truth as to impute knowledge to him.

3. The defendant must have made the representation for the purpose of defrauding the plaintiff.

4. The plaintiff relied upon the representation and had the right to do so and would not have done the thing from which the damage resulted if it had not been made.

5. The plaintiff actually suffered damage directly resulting from such fraudulent misrepresentation. James v. Weisheit, 279 Md. 41, 367 A.2d 482 (1977); Wedeman v. City Chevrolet Co., 278 Md. 524, 366 A.2d 7 (1976); Appel v. Hupfield, 198 Md. 374, 84 A.2d 94 (1951); Gittings v. Von Dorn, 136 Md. 10, 109 A.2d 553 (1920); Finch v. Hughes Aircraft Co., 57 Md.App. 190, 469 A.2d 867 (1984), cert. denied, — U.S. -, 105 S.Ct. 1190, 84 L.Ed.2d 336 (1985).

In the instant ease the plaintiff has satisfied the required elements. She has alleged that the defendants represented a permanent position as a ward clerk at their facility. At the time the representation was made, the defendants had already determined that she would be discharged in the near future. The purpose of the representation was to thwart the plaintiffs efforts in obtaining rehabilitation benefits. The plaintiff believed in good faith, that the defendants intended upon giving her permanent employment, and that she would have otherwise pursued her efforts to obtain rehabilitation benefits. Her reliance upon the defendant’s representation caused her to shortly thereafter lose her job, income, seniority, and opportunity for retraining as a dental assistant.

The defendants assert that an essential element of her claim is damages. They contend that the damage Ms. Pope allegedly suffered as a result of the defendants’ misrepresentation was her inability to pursue vocational rehabilitation benefits. They contend that these benefits are rights created by the Maryland Workmen’s Compensation Act, Md.Ann.Code. Art. 101 § 36(9). Therefore, she is precluded from maintaining this cause of action, because she waived her right to these benefits when she executed the settlement agreement. That agreement expressly states that the claimant releases and forever discharges the defendants “from all other claims____which might____arise under the Workmen’s Compensation Law from said injury.” (Settlement agreement, p. 3).

While the court acknowledges that the final compromise and settlement agreement does release the defendants from a claim for rehabilitation benefits, the plaintiff has clearly stated in her complaint that the defendants’ fraudulent misrepresentation caused her other injuries separate and distinct from the potential rehabilitation benefits under the Workmen’s Compensation Act. She states that the offer of permanent employment induced her to accept a position which in reality was only intended to be of extremely short duration. Her inevitable discharge thereby led to a loss of income and other accompanying injuries. The Court concludes that the plaintiff has stated a cause of action for fraudulent misrepresentation and that the executed release bars but one component of her damages.

B. Abusive Discharge

The defendants move for summary judgment on the claim of abusive discharge on two distinct grounds.

First, defendant Liberty Mutual asserts that under Maryland law, there is no civil cause of action available to a plaintiff who alleges that he or she has been discharged in retaliation for filing a workmen’s compensation claim. This same argument was previously raised by defendant BHC and rejected by this Court on May 28, 1985. At that time this Court ruled that the cause of action for abusive discharge had been recognized by Maryland’s highest court in Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981). In that case, the Maryland Court of Appeals held that the State does recognize the tort “when the motivation for the discharge contravenes some clear mandate of public policy.” Id. at 47, 432 A.2d 464. This Court concluded that “the criminal sanctions [under Md.Ann.Code art. 101 § 39A] clearly reveal that retaliatory termination because of an employee’s filing of a workmen’s compensation claim is a violation of Maryland public policy.” Pope v. Bethesda Health Center at 798-99. Furthermore, this Court ruled that the Workmen’s Compensation Act did not preclude a civil action based on retaliatory discharge since the Act itself did not offer the plaintiff a civil remedy. The Court adheres to its earlier ruling.

Secondly, the defendants maintain the settlement agreement has defeated the action for abusive discharge. The defendants contend that the basis of this claim arises solely from the plaintiff’s alleged discharge for filing claims under the Workmen’s Compensation Act.

The claim of abusive discharge in the instant case exists only because of the prohibition against such employee termination as contained in the Workmen’s Compensation statute. This Court had previously concluded that the source of the plaintiff’s right in the claim stems from the public policy against retaliatory firings as evidenced by the Maryland Workmen’s Compensation Act, Art. 101 Md.Ann.Code § 39A. The Court additionally. held that the Maryland Act does not in itself create a civil cause of action, since the statute provides only for criminal sanctions. The plaintiff’s claim becomes viable only because the Maryland Court of Appeals has suggested that such a prohibition in the Maryland Workmen’s Compensation statute gives evidence of public policy, thereby permitting an action for abusive discharge.

The issue to be determined is whether the plaintiff’s claim of abusive discharge arises under the Maryland Workmen’s Compensation statute. If it does, then the plaintiff’s claim is barred by the settlement agreement as one “which might or could hereafter arise under the Workmen’s Compensation Law ... (Final Compromise and Settlement Agreement, p. 3).

In the recent case of Roberts v. Citicorp Diners Club, Inc., 597 F.Supp. 311 (D.Md.1984), Chief Judge Kaufman of this Court held that a plaintiff’s claim for retaliatory discharge by reason of his filing a claim for worker’s compensation was an action “arising under” the Maryland Workmen’s Compensation Statute:

In the within case, plaintiff is asserting a substantive right created by a Maryland statute, i.e. section 39A of article 101, and a state remedy which Maryland’s highest court ... has implied from that right.
... [T]he determination of whether ... the ... “civil action” is one “arising under the workmen’s compensation laws of such state” seems to require this Court to look to the law of the State of Maryland to ascertain whether the within action arises under Maryland workmen’s compensation laws. Examination reveals that the common law public policy remedy held ... to exist is closely intertwined with the legislative policy embodied in Maryland Workmen’s Compensation statutes. Therefore this Court concludes that the within action [wrongful discharge] arises under those statutes. Id. at 314.

The Court agrees with the reasoning of Judge Kaufman and adopts his conclusion. The basis of the alleged wrongful discharge is predicated on the Maryland Workmen’s Compensation Act. Therefore, the plaintiff’s action for abusive discharge does “arise under the Maryland Workmen’s Compensation Law” and is barfed by the final compromise and settlement agreement.

ORDER

In accordance with the foregoing Memorandum, and for the reasons set forth therein, IT IS, this 18th day of February, 1986, by the United States District Court for the District of Maryland, ORDERED:

1. That defendants’ motions for Summary Judgment on the claim of fraudulent misrepresentation BE, and the same hereby IS, DENIED;

2. That defendants’ motions for Summary Judgment on the claim of abusive discharge BE, and the same hereby IS, GRANTED;

3. That the Clerk of the Court shall mail copies of this Order and the foregoing Memorandum to counsel for the parties in this case.

      . The defendants have further argued in their memoranda for summary judgment that the defendants never promised the plaintiff a permanent position. The Court concludes that there is a genuine dispute as to that issue and is not appropriate for determination at this stage of the litigation.
      Secondly, they assert that the plaintiff has failed to satisfy the fourth element of the tort. They contend that the plaintiff had no right to rely on a promise of permanent employment. This argument was fully addressed in the courts earlier ruling denying dismissal, in which the Court stated:
      ".. [A]n at will employee has a legitimate expectation that she will not be terminated for merely filing a workmen's compensation claim. As it pertains to fraudulent misrepresentation, an at-will employee may reasonably rely upon an employee not terminating the employment filing for workmen’s compensation." Pope v. Bethesda Health Center, Inc. 628 F.Supp. 797, 798-99 (D.Md.1985)


source: Caselaw Access Project

author: JOSÉ A. CABRANES, District Judge:

license: Public Domain

text:
    TRUSTEES OF the BULKELEY SCHOOL v. UNITED STATES of America.
    Civ. No. H 84-980 (JAC).
    United States District Court, D. Connecticut.
    Feb. 18, 1986.
    S. Joel Suisman, New London, Conn., for plaintiff.
    Joanne Rutkowski, Washington, D.C., W. Philip Jones, Hartford, Conn., for defendant.
   RULING ON MOTION TO DISMISS

JOSÉ A. CABRANES, District Judge:

This matter is before the court on the government’s motion to dismiss both counts of the complaint, pursuant to Rule 12(b)(1), Fed.R.Civ.P., on the ground that the court lacks subject-matter jurisdiction over a claim for $54,328.59 in interest on overpaid federal taxes.

I.

The Trustees of the Bulkeley School (“the plaintiff”) contends that the court has subject-matter jurisdiction over the first count of the complaint pursuant to 28 U.S.C. § 1346(a)(1), which provides that

[t]he district courts shall have original jurisdiction, concurrent with the United States Claims Court, of ... [a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws[.]

The government counters that 28 U.S.C. § 1346(a)(1) does not grant the federal district courts jurisdiction over claims for interest on tax overpayments. Instead, the government contends that federal district courts may exercise jurisdiction over such claims only pursuant to 28 U.S.C. § 1346(a)(2), which permits federal district courts to consider “any other ... claim against the United States [ ] not exceeding $10,000 in amount.” Accordingly, the government argues, any claim for more than $10,000 in interest on overpaid federal taxes can be heard only by the United States Claims Court.

The government has offered no authority for its position either in the legislative history of Section 1346(a)(1) or in the case law interpreting that provision. New Mexico v. Regan, 745 F.2d 1318 (10th Cir.1984), the principal case relied upon by the government, was not an action for interest on a tax overpayment in which jurisdiction was alleged under Section 1346(a)(1). Moreover, as the government properly concedes, the court in Triangle Corporation v. United States, 592 F.Supp. 1316, modified, 597 F.Supp. 507 (D.Conn.1984) (Dorsey, J.), held that 28 U.S.C. § 1346(a)(1) vests the federal district courts with jurisdiction over suits to recover interest on federal tax refunds. See also Draper v. United States, 62-2 U.S.T.C. 119697 (E.D.Wash.1962) (same).

It is clear that the plaintiff is seeking to recover an “internal-revenue tax alleged to have been erroneously or illegally assessed or collected” as is permitted by Section 1346(a)(1). The Congress, by requiring the government to pay interest on tax over-payments, see 26 U.S.C. § 6611, implicitly recognized that refunds of taxes overpaid in previous years must be appropriately adjusted to reflect the time value of money. See generally M. Graetz, Federal Income Taxation 989 (1985) (explaining why “a dollar today is worth more than a dollar tomorrow”). A taxpayer has not received a full refund of “erroneously ... collected” taxes until he has recovered not only the nominal amount of the collection but also an amount of interest that will compensate him for the loss of the use of his money between the time that he paid the tax and the time that he received the refund.

Finally, a contrary result would effectively deprive the federal district courts of jurisdiction over all tax refund suits in which the taxpayer may recover interest in excess of $10,000. It is unlikely that the Congress would have enacted sub silentio so significant a restriction on the tax jurisdiction of the federal district courts.

Accordingly, the motion to dismiss count one of the plaintiffs complaint is hereby denied.

II.

The government has also moved to dismiss the second count of the complaint pursuant to Rule 12(b)(1) on the ground that the government has consented to be sued with respect to allegedly wrongful tax levies only by persons “other than the person against whom is assessed the tax out of which such levy arose.” 26 U.S.C. § 7426(a)(1). It is clear that the plaintiff is not such a person.

The plaintiff counters that count two is not “an action for ‘wrongful levy’ ” pursuant to 26 U.S.C. § 7426(a)(1) but instead is “an action for refund of interest collected” where the refund is sought pursuant to the allegations of count one. See Memorandum in Support of the Trustee’s [sic] of the Bulkeley School’s Objection to Motion to Dismiss (filed Oct. 24, 1985) at 5-6.

The plaintiff has failed to demonstrate that count two of its complaint is not merely repetitious of count one. Accordingly, the court, having denied the motion to dismiss count one, hereby strikes count two as redundant pursuant to Rule 12(f), Fed.R.Civ.P. See, e.g., Quinn v. Straus Broadcasting Group, Inc., 309 F.Supp. 1208, 1210 (S.D.N.Y.1970).

Conclusion

For the reasons stated above, the government’s motion to dismiss count one of the complaint is denied. Count two of the complaint is stricken as redundant pursuant to Rule 12(f), Fed.R.Civ.P.

It is so ordered.

      . The plaintiff is seeking interest on a $262,-507,55 tax overpayment for the years 1971 through 1982. The government refunded the principal amount of the overpayment, plus interest of $36,109.92, to the plaintiff on October 1, 1983.

      . Of course, the court intimates no view as to whether the plaintiff is entitled to the interest sought in this action.


author: GASCH, District Judge.

text:
    Andrew F. LAWSON, Plaintiff, v. NATIONWIDE MORTGAGE CORPORATION, et al., Defendants.
    Civ. A. No. 85-2923.
    United States District Court, District of Columbia.
    Feb. 18, 1986.

      Elizabeth Figueroa, Washington, D.C., for plaintiff.
    Ronald Early, Bethesda, Md., for defendant Family Federal Sav. and Loan.
   MEMORANDUM

GASCH, District Judge.

This case arises from a series of loan transactions that resulted in the foreclosure sale of plaintiff’s home. The complaint asserts claims for fraud and misrepresentation, legal malpractice, and violation of the D.C. Consumer Protection Procedures Act, the Truth-in-Lending Act (“TILA”), and the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Currently before the Court is a motion of defendant Family Federal Savings and Loan to dismiss the four claims against it. For the reasons stated below, the Court grants the motion only as to the TILA claim.

I. BACKGROUND

Plaintiff purchased property known as 122 33rd Street, N.E., in August, 1958, and as of 1976 he owned the property free of all encumbrances. Eventually, however, plaintiff needed a loan to repay creditors, and he responded to a newspaper advertisement placed by defendant Nationwide Mortgage Corp. (“Nationwide”). The next day, a Nationwide broker came to plaintiff’s home, where plaintiff allegedly informed him that he needed $6,000 to pay overdue bills. A loan was approved and settlement of the transaction (“transaction # 1”) occurred on December 10, 1980.

At the settlement, plaintiff allegedly was shown the loan documents for the first time. The promissory note, drafted by Nationwide, was for $7,600 and stated that the loan proceeds would be used for business purposes. The note called for monthly interest-only payments and a year-end balloon payment. Plaintiff says that while he did not fully understand these documents, he signed them in reliance upon representations that, inter alia, he would eventually receive long-term financing. The complaint also asserts that plaintiff received only $3,900 in proceeds from the loan and that the effective interest rate of 35 percent was not disclosed to plaintiff.

Plaintiff later approached Nationwide to arrange for the long-term financing allegedly promised him, but Nationwide refused. Thereafter, defendant Augustine Barquín, who identified himself as a Nationwide broker, offered to arrange a long-term loan for plaintiff through Family Federal. The resulting transaction (“transaction # 2”) was a loan for $25,000 that was settled on September 15, 1981. Plaintiff again was presented with loan documents for the first time at settlement and was purportedly advised that the loan would not be approved unless he signed an affidavit that the loan was for a business purpose.

The terms and conditions of transaction # 2 allegedly were not explained to plaintiff. Plaintiff signed the documents in reliance upon representations that he would receive long-term financing and because the balloon payment on transaction # 1 had come due. Plaintiff received only $4,620.33 in proceeds from transaction # 2. In addition, Barquín allegedly told plaintiff that transaction # 2 was with Family Federal, even though the lender named on settlement papers was Nationwide. Nationwide later told plaintiff that the loan had been sold to Family Federal.

In the final transaction (“transaction # 3”), plaintiff allegedly was told that he would receive refinancing of the transaction # 2 loan. At the December 2, 1982 settlement, plaintiff signed documents, allegedly without being informed of their legal effect, that deeded the property at 122 33rd Street, N.E. to Barquín and his wife. Although the loan from transaction # 2 was repaid, plaintiff never received any other proceeds from transaction # 3. The Barquins, on the other hand, received a loan secured by the 122 33rd Street property. They eventually defaulted, and the property was sold at foreclosure sale on February 12, 1985. This action was filed on September 13, 1985.

II. DISCUSSION

A. Count One

Plaintiffs first claim is that Family Federal is liable for the misrepresentations of Nationwide and Barquin because those defendants acted under actual or apparent authority from Family Federal during transaction # 2. Family Federal contends that this claim is barred by the statute of limitations.

In the District of Columbia, there is a three-year statute of limitations for fraud claims, and that period begins to run from the time the fraud or misrepresentation “either is discovered or reasonably should have been discovered.” King v. Kitchen Magic, Inc., 391 A.2d 1184, 1186 (D.C.App.1978). Family Federal argues that the statute should run from September 15, 1981, the date of settlement, because plaintiff should have discovered any fraud at that point.

The Court disagrees. Plaintiff may be able to show that he reasonably was unaware of the long-term financing misrepresentation, for example, until December 2, 1982, or plaintiff may be able to successfully invoke the doctrine of “fraudulent concealment.” See William J. Davis, Inc. v. Young, 412 A.2d 1187, 1191 (D.C.App.1980). Plaintiff’s contentions thus present factual questions which are not properly decided on a motion to dismiss. See Richards v. Mileski, 662 F.2d 65, 67, 70-71 (D.C.Cir.1981). Since plaintiff could conceivably prove a set of facts supporting his claim for relief, the motion to dismiss count one must be denied. See Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984).

B. Count Two

Count two asserts that transaction # 2 is an “unlawful trade practice” under the D.C. Consumer Protection Procedures Act. See D.C.Code § 28-3904 (1981 ed.). Family Federal argues that two D.C. Court of Appeals decisions render the Act inapplicable to the case at bar. See Owens v. Curtis, 432 A.2d 737 (D.C.App.1981); Howard v. Riggs National Bank, 432 A.2d 701 (D.C.App.1981). Neither of these cases is dis-positive, however.

The Owens court held that the Act is inapplicable to a sale of real estate. 432 A.2d at 739. Transaction # 2 patently did not involve a sale of real estate; rather, it involved use of real estate as collateral for a personal debt consolidation loan. The Act specifically encompasses such “consumer credit” transactions. See D.C.Code § 28-3901(a)(7). Moreover, the narrow holding of the Howard court was that the Act applies only to unfair trade practices committed by entities “connected with the ‘supply’ side of a consumer transaction.” 432 A.2d at 709. Family Federal obviously meets this requirement. Thus, there is no bar to application of the Act to this case.

C. Count Four

Count four alleges violation of TILA, which has a one-year statute of limitations that runs from “the date of the occurrence of the violation.” 15 U.S.C. § 1640(e) (1982). In this circuit, violation of TILA occurs no later than the date of settlement of any loan for which required disclosures have not been made. See Postow v. OBA Federal Savings and Loan Association, 627 F.2d 1370, 1380 (D.C.Cir.1980); see also K/O Ranch, Inc. v. Norwest Bank of the Black Hills, 748 F.2d 1246, 1248-49 (8th Cir.1984). Since plaintiff did not bring his claim until more than one year after settlement, his claim is time-barred.

D. Count Five

Count five asserts that transaction # 2 violated RICO. See 18 U.S.C. § 1962(b), (c) (1982). Since RICO does not have its own limitations period, this Court must apply the state statute of limitations for the state-law claim most analogous to plaintiff’s RICO claim. See DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158-59, 103 S.Ct. 2281, 2287, 76 L.Ed.2d 476 (1983). Family Federal contends that plaintiff’s RICO claim is most analogous to an action to recover usurious interest charges, see D.C.Code § 28-3304 (1981 ed.), which has a one-year statute of limitations. Plaintiff argues that because fraud and misrepresentation induced him to enter transaction #2, the three-year statute of limitations for fraud claims should apply.

The Court concludes that since plaintiff alleges that fraud and misrepresentation precipitated transaction #2, the three-year fraud statute of limitations should be used. This determination is consistent with conclusions reached by other courts. See e.g., Alexander v. Perkin Elmer Corp., 729 F.2d 576, 577 (8th Cir.1984) (per curiam); Noland v. Gurley, 566 F.Supp. 210, 216 (D.Colo.1983). In addition, selecting the longer statute of limitations period furthers the remedial purpose of RICO. See Occidental Life Insurance Co. v. Equal Employment Opportunity Commission, 432 U.S. 355, 367, 97 S.Ct. 2447, 2455, 53 L.Ed.2d 402 (1977) (“State limitations periods will not be borrowed if their application would be inconsistent with the underlying policies of the federal statute.”).

Plaintiff contends that he was first on notice of Family Federal’s alleged fraud and misrepresentation on September 17, 1982. For purposes of the instant motion to dismiss, this factual allegation must be accepted as true. See Hishon v. King & Spalding, 104 S.Ct. at 2233. Accordingly, plaintiff’s RICO claim is not time-barred.

      . Family Federal notes that the Howard court ruled that the "plain meaning” of certain language in the Act was not controlling. That decision, however, was based entirely upon perceived inconsistencies in the Act’s structure and legislative history. No such inconsistencies counsel against a "plain meaning” construction of "consumer credit” transactions to include this case.


author: DUFF, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Edgar JIMENEZ, Defendant.
    No. 85 CR 764.
    United States District Court, N.D. Illinois, E.D.
    Feb. 18, 1986.
    Thomas Scorza, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
    Stephen Golembe, Miami, Fla., for defendant.
   MEMORANDUM OPINION AND DETENTION ORDER

DUFF, District Judge.

This matter comes before the court on the motion of the defendant Edgar Jimenez to revoke the pretrial detention order entered on December 3, 1985 in Miami, Florida, by United States Magistrate Charlene H. Sorrentino. Defendant claims that the order was untimely and therefore invalid under the Bail Reform Act of 1984, 18 U.S.C. § 3142(f), which provides as follows:

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

The complaint, which was filed in this court on November 28, 1985, charged that defendant conspired to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841 and 846. Defendant made his first appearance in the United States District Court for the Southern District of Florida on November 29, 1985.

At the initial appearance, the government requested that the detention hearing be continued for three days. Later in the same hearing, the newly appointed attorney for Jimenez requested that a pretrial detention hearing be held within three working days: The hearing was in fact held on December 3, 1985, within three working days and four actual days after the defendant’s first appearance. On that date, Magistrate Sorrentino issued a detention order which included her written findings that Jimenez had no ties to the United States and that “the serious nature of the charges in the indictment and the defendant’s ties to Venezuela establish a serious risk that he will flee.”

This court finds that the defendant received a timely detention hearing in Miami. It appears that early in the initial hearing, Magistrate Sorrentino was inclined to respond to the government’s request by allowing an extention of three working days rather than three actual days. This inclination did not ripen into error, however, as the defendant subsequently requested a delay of three working days. The detention hearing was held within the five days allowed for a defendant’s continuance and therefore satisfied the requirements of § 3142(f). See United States v. Fortna, 769 F.2d 243, 249 (5th Cir.1985).

The court finds that the Miami detention hearing satisfied the requirements of § 3142(f), but nonetheless the court proceeded with a de novo hearing to determine whether there were conditions which would assure the appearance of Jimenez at trial pursuant to § 3142(e). In United States v. Hurtado, 779 F.2d 1467 (11th Cir.1985), the court stated that, in considering the pretrial detention, the district court could not simply ratify the findings of the magistrate. Under Hurtado, the district court must make an independent review of the evidence and enter its own written findings pursuant to § 3142(i).

By agreement, the attorneys presented evidence on the issue of detention by proffer. Accepting evidence by live testimony or by proffer is within the discretion of the court. United States v. Delker, 757 F.2d 1390, 1396 (3d Cir.1985). The evidence established the following:

1. Jimenez is a citizen of Venezuela and has traveled between the United States and Venezuela on numerous occasions. Evidence from United States Customs records indicates that on one of those occasions Jimenez may have entered this country illegally.

2. Jimenez has been married for four years and has one child who was born in the United States. Mrs. Jimenez was living in Venezuela and came to the United States when her husband was arrested. She subsequently returned to Venezuela because, according to her proffered testimony, it was easier for her to make a living there.

3. The government proffered statements by Jimenez after his arrest and in conversations intercepted by government agents. These indicate that Jimenez knowingly transported a large quantity of cocaine from Miami to Chicago.

4. If convicted, Jimenez faces a maximum sentence of 20 years in prison.

5. Section 3142(e) provides that probable cause to believe that the defendant has violated the Controlled Substances Act 21 U.S.C. § 801 et seq. creates a rebuttable presumption that no conditions exist which will assure the appearance of the defendant. There is clearly probable cause here to believe that Jimenez violated 21 U.S.C. §§ 841 and 846. Jimenez has not provided sufficient evidence to rebut the presumption of flight that stems from su$h a charge. See United States v. Diaz, 777 F.2d 1236 (7th Cir.1985).

On the basis of these facts and those contained in the record of the proceedings before Magistrate Sorrentino which are incorporated herein, this court finds that no condition or combination of conditions will reasonably assure the appearance of Jimenez. Pursuant to 18 U.S.C. § 3142(i), the court orders that Edgar Jimenez be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. The court directs that Jimenez be afforded reasonable opportunity for consultation with his counsel. The Attorney General is further directed, upon order of the court or on request of an attorney for the Government, to deliver Jimenez to a United States marshal for the purpose of appearance in connection with a proceedings.


author: NAUMAN S. SCOTT, District Judge.

text:
    Ricky R. BORDELON v. CONSOLIDATED GEOREX GEOPHYSICS.
    Civ. A. No. 83-0662.
    United States District Court, W.D. Louisiana, Alexandria Division.
    Feb. 19, 1986.
    James T. Lee and John T. Bennett, Marksville, La., for Ricky Bordelon.
    Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, La., for Argonaut-Southwest Ins. Co. and Daigrepont Drilling, Inc.
    Gist, Methvin, Hughes & Munsterman, George Gaiennie, III, Alexandria, La., for H & H Rentals, Inc.
    Trimble, Randow, Percy, Smith, Wilson & Foote, Lon P. Wilson, Alexandria, La., Deutsch, Kerrigan & Stiles, Eileen R. Madrid, New Orleans, La., for Consol. Georex Geophysics.

      Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Rebecca F. Doherty, Lafayette, La., for Flotation Services, Inc. and Consol. Georex Geophysics.
   RULING

NAUMAN S. SCOTT, District Judge.

The plaintiff (Bordelon) sued Flotation Services, Inc. (Flotation), H & H Rentals, Inc. (H & H), and Consolidated Georex Geophysics (Consolidated) for injuries suffered by him on Consolidated’s barge. Plaintiff settled with his employer, Daigrepont Drilling, Inc. (Daigrepont). Daigrepont was subsequently made a third-party defendant by Flotation, H & H and Consolidated.

This matter is now before us on a Motion for Summary Judgment, filed by the third-party defendant, Daigrepont.

In support of its motion Daigrepont argues that all claims of Bordelon against it have been settled and that it cannot be held liable to Bordelon. The third-party plaintiffs allege that Daigrepont is liable to Bordelon as his “Jones Act employer,” and that in the event the third-party plaintiffs are held responsible to Bordelon on the principal demand, that they are entitled to judgment against Daigrepont for all or part of the sums from which they may be cast in judgment to the plaintiff.

We find that there is no genuine issue of material fact. There has been such a settlement and Daigrepont’s assessment of the third-party demands is correct.

Daigrepont relies upon Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (5th Cir.1979), for the proposition that there is no need for the settling prospective defendant, Daigrepont, to be in this lawsuit, because as in Leger the non-settling joint tort-feasors may attempt to prove that the settling alleged joint tort-feasor was at fault and the liability for the damage proved will be allocated among the tort-feasors and the plaintiff based on their comparative fault, the plaintiff’s recovery against the non-settling joint tort-feasors being reduced by his own comparative fault as well as that of the settling alleged joint tort-feasor.

In Leger, the plaintiff was an employee of Drilling Well Control, Inc. (DWC), working on a barge owned by Dresser Offshore Services, Inc. (Dresser) at the time of his injury. Dresser was using this barge in a workover operation of an offshore oil well owned by Continental Oil Company (Continental). The plaintiff settled with everyone but Dresser. At trial, the jury apportioned fault as follows: Dresser — 45%; Continental — 20%; DWC — 0%; and Leger — 35%. On appeal, a pro rata reduction was made on the amount Leger was entitled to recover from Dresser based upon the proportion of fault of the settling tortfeasors. The Fifth Circuit found no reason for rejecting the reasoning, that liability for damages sustained by the plaintiff be allocated among the parties proportionately to the comparative degree of their fault, “simply because one or more of the potential defendants has settled with the injured party”. Leger, supra, at p. 1249 (emphasis ours).

Under the rule in Leger, there is no double recovery by the plaintiff for his injuries. As the court in Leger stated: “Whether the plaintiff obtains a favorable or unfavorable settlement, he may only recover once for each wrongdoer’s percentage of fault.” Leger, supra, at p. 1250. In Martin v. Walk, Haydel & Associates, Inc., 742 F.2d 246 (5th Cir.1984), the Fifth Circuit, citing Leger, applied the principle of reducing the plaintiff’s recovery to the extent that the settling tort-feasor contributed to the plaintiff’s injury. Martin, supra, at p. 247. Again, in Diggs v. Hood, 772 F.2d 190 (5th Cir.1985), the Fifth Circuit cited Leger with approval and explained that by crediting the judgment against the non-settling defendants with the dollar amount representing the proportion of negligence attributable to the settling tort-feasor there would be a final adjustment of rights of the released tort-feasor after his settlement with the plaintiff. Diggs, supra, at p. 196. The idea of promoting settlements was clearly an important factor considered by the court in Leger.

The third-party plaintiffs, Flotation, H & H, and Consolidated, all argue that summary judgment should not be granted in this case and that Daigrepont should remain in this lawsuit, based on two Eleventh Circuit decisions, Drake Towing Co., Inc. v. Meisner Marine Construction Co., 765 F.2d 1060 (11th Cir.1985), and Ebanks v. Great Lakes Dredge & Dock Co., 688 F.2d 716 (11th Cir.1982). We should mention at the outset that courts of the Fifth Circuit are not bound by decisions rendered by other circuits. United States v. Dawson, 576 F.2d 656, 659 (5th Cir.1978).

Drake and Ebanks attempt to distinguish Leger on the basis that Leger did not involve the question of whether the trial court may decrease the liability of the non-settling joint tort-feasor that is at trial by considering the fault of a settling joint tort-feasor that is not. This attempt fails. The analysis of the Fifth Circuit in Leger clearly encompassed potential defendants who settle with the plaintiff prior to trial. Leger, supra, at p. 1249 (emphasis ours). We fail to see any distinction between cases in which a settling joint tort-feasor is represented at the trial between the plaintiff and the non-settling joint tort-feasors and cases where he is not.

The Eleventh Circuit in Drake and Ebanks suggested that the issue of the settling joint tort-feasor’s fault is not relevant in a trial between the plaintiff and the non-settling joint tort-feasors. We disagree. How else can comparative fault be applied in cases involving multiple joint tort-feasors, without determining the fault of each alleged joint tort-feasor vis-a-vis the other alleged joint tort-feasors as well as the plaintiff. It was also suggested in those two cases that it is an unfair burden for the plaintiff to have to show that the settling alleged joint tort-feasor was not responsible for the plaintiff’s injuries. We do not think that this burden is unfair. The plaintiff does not have the burden of proof on this issue. It is the non-settling alleged joint tort-feasor who must come forth and prove that the settling alleged joint tort-feasor was at fault and that this fault caused the injuries sustained by the plaintiff. By settling with one potential defendant, the plaintiff accepted not only the possibility of receiving less compensation from that defendant,- but he also bargained away certain intangible advantages such as the ability to use certain trial tactics. It may be an advantage to the plaintiff to have several defendants in a lawsuit, pointing’ their respective fingers at each other and saying “He did it, not I”, but this advantage may be lost as the result of a settlement with less than all the defendants. It is not unjust to require the plaintiff to rebut allegations of the settling alleged joint tort-feasor’s fault in order to recover, a greater sum at trial, anymore than it is to require the plaintiff to rebut the allegations of his own negligence. As was stated in Leger: “Whether the plaintiff or any of the defendants are ultimately found to have made a favorable settlement, we will ‘respect the aleatory nature of the settlement process ... ’ Doyle v. United States, 441 F.Supp. 701, 711, n. 5 (D.S.C.1977).” Leger, supra, at p. 1251.

We find that the rule announced in Drake and Ebanks would certainly discourage settlement. Why would a defendant or a potential defendant settle a case when he would still have to put on his case at trial? It does not make sense to this court to require the settling alleged joint tort-feasor to be represented at trial.. If the potential defendant has limited its exposure by settling with the plaintiff, is it even possible that this alleged joint tort-feasor will invest the time and effort required in putting up a defense? Will the horror of the plaintiff shouldering the burden of demonstrating that this alleged joint tort-feasor was not at fault, be alleviated by that defendant’s mere presence, as Drake and Ebanks would seem to suggest?

We find the cases of Drake and Ebanks to be irreconcilable with the rule in Leger. Leger requires the apportionment of fault of settling and non-settling joint tort-feasors. Drake and Ebanks would require that this apportionment be achieved by a severed third-party action between the settling and non-settling joint tort-feasors. Such a rule would destroy any possibility of settlement unless all of the potential defendants agree to settle, because the settling joint tort-feasor has accomplished nothing by settling with the plaintiff if the non-settling joint tort-feasors can still require the settling joint tort-feasor to contribute more than he has previously paid the plaintiff. The plaintiff would also be gaining a double recovery to the extent that there is no pro rata reduction of the judgment for the proportion of fault attributable to the settling joint tort-feasor. This is directly contrary to Leger.

We agree with Drake and Ebanks that in theory each joint tort-feasor is potentially liable for all of the plaintiff’s damages; however, where there has been a settlement' between the plaintiff and a potential defendant, the effect of the settlement is that the judgment against the non-settling joint tort-feasor will be reduced by the proportion of fault attributable to the settling joint tort-feasor in all cases. Diggs, supra; Martin, supra; Leger, supra.

Accordingly, we find that the mover is entitled to summary judgment as a matter of law and hereby ORDER that the Motion for Summary Judgment be GRANTED and that the mover submit a judgment in accordance with this ruling within ten (10) days of the signed date.

      . The Eleventh Circuit Court of Appeals is bound by the case law of the old Fifth Circuit except where that case law has been overruled or modified by the Eleventh Circuit en banc. Gormly v. Van Ingen, 736 F.2d 624, 625 (11th Cir.1983); Bonner v. City of Prichard, 661 F.2d 1206, 1209-11 (11th Cir.1981) (en banc).

      . Such practice would only serve to increase the expense of litigation. Our own Fifth Circuit has recognized a Rand Corporation study which estimated the public cost of the average jury trial in a federal court to be over $7,000. "Hence, every hour of litigation is costly both to the parties and the taxpayers, and the expense should not be incurred needlessly.” Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir.1986).


text:
    HARRIS CORPORATION, Plaintiff, v. UNITED STATES of America, et al., Defendants.
    Civ. A. No. 86-255.
    United States District Court, District of Columbia.
    Feb. 19, 1986.

      David V. Anthony, Irving Jaffe, Joseph K. Weiner, Pettit & Martin, Washington, D.C., for plaintiff.
    Mary Coster Williams, Asst. U.S. Atty., Edward France, III, Army Judge Advocate General Corps, for defendants.
    John S. Pachter, Arthur I. Leaderman, Stephen R. West, Wickwire, Gavin & Gibbs, Vienna, Va., for intervenor — Magnavox.
   MEMORANDUM OPINION

BARRINGTON D. PARKER, Senior District Judge:

Plaintiff Harris Corporation (“Harris”), a disappointed bidder in a negotiated government procurement, challenges á contract awarded on December 23, 1985 by the Secretary, Department of the Army to the Magnavox Electronic System Company (“Magnavox”). Magnavox requested and was allowed to intervene as a defendant shortly after the complaint was filed. In a complaint filed on January 28, 1986, Harris seeks a declaratory judgment that the contract award violated applicable procurement laws and regulations, the terms of the solicitation, and thus was unlawful and void. Preliminary and permanent injunctive relief is also sought to enjoin continued performance on the contract and compelling the Secretary of the Army to cancel the contract with Magnavox. The plaintiff alleges that the proposal of Magnavox was not in accordance with the terms of the solicitation, that the defendants’ evaluation was arbitrarily conducted in violation of procurement regulations, and that the contract award violated Federal Acquisition Regulations, 48 C.F.R. § 15.100 et seq. (1984), and the Competition in Contracting Act, 41 U.S.C.A. § 251 et seq. (West Supp.1985).

On January 29, 1986, a temporary restraining order was issued and was later extended to February 18, 1986. On February 12, 1986, the parties presented extensive oral argument on the plaintiff's motion for a preliminary injunction and the defendants and the intervenor’s motions for summary judgment. The matter was then taken under advisement. The Court gave full consideration to the argument of counsel, their legal memoranda in support of and in opposition to the pending motions, the supporting documents and exhibits, and the deposition testimony of several key Army personnel involved in the procurement award.

On February 18, 1986, the Court entered an order denying the plaintiffs motion for a preliminary injunction and stated that the justification for that ruling would follow. The reasons supporting that determination are set out in this Memorandum Opinion. The Court also determines at this time that the motions of the government and Magnavox for summary judgment should be granted and the Harris complaint dismissed.

BACKGROUND

The Army’s procurement called for the design, manufacture, and test of 15 engineering development models of ground-based satellite communications terminals, known as Single Channel Objective Tactical Terminal (“SCOTT”). The SCOTT program is a significant part of the national defense effort, allowing the Army to operate in a global satellite communications system, the MILSTAR EHF Satellite Communications System. The original Request for Proposal (“RFP”) was issued in September 1983 by the United States Army Communications-Electronics Command (“CECOM”). That RFP called for production of a much larger number of terminals based on a model designed through other sources. In early 1985, CECOM determined that further research and development should be sought before entering into a large production contract, and in June 1985 the RFP was amended. The amendment changed the solicitation to one with more emphasis on research and development efforts.

Three companies, Harris, Magnavox, and Ford Aerospace, submitted proposals. Thereafter, during the procurement process, they engaged in discussions and negoflations with CECOM representatives. Five factors were identified in the RFP as major areas for evaluation. In order of importance, the factors were Technical Approach, Integrated Logistics Support (“ILS”), Management, Design to Unit Production Cost/Operations and Support Costs (“DTUPC”), and Price. The Harris, Magnavox, and Ford Aerospace proposals were evaluated by a Source Selection Evaluation Board (“SSEB”), a group of about thirty specialists divided into teams according to the five areas. The SSEB evaluators generated lengthy written evaluations of each element of the proposals. In addition, they gave one of the following adjectival ratings to each factor, subfactor and element: superior, excellent, acceptable, capable of being made acceptable, or unacceptable. They also assigned a risk rating of low, moderate, or high to each element.

After the evaluation of the initial proposals, the Contracting Officer arranged for and presided over discussions and negotiations with each offeror and conveyed requests for additional written information from the evaluators. As a result of these discussions and negotiations, revised proposals were submitted by the offerors. The SSEB then conducted intermediate evaluations of the revised proposals and further discussions ensued, based on those evaluations. In September 1985, after all negotiations were complete, the three competitors submitted Best and Final Offers (“BAFOs”). The SSEB performed a final evaluation and submitted its ratings to the Source Selection Advisory Council (“SSAC”).

The SSAC, chaired by Colonel Alan McCahan and consisting of six technical experts in fields relevant to the procurement, met in October 1985 to consider the three proposals and the evaluations prepared by the SSEB. It devised numerical ratings for each major factor from the SSEB’s adjectival ratings of the proposals, based on a mathematical formula that reflected the weights given to the various factors and subfactors by the Evaluation and Award Plan (“Plan”). The scores were made part of a report submitted on November 7, 1985 to Major General Robert D. Morgan, the Source Selection Authority (“SSA”). General Morgan issued a Memorandum of Decision on December 23, 1985, awarding the contract to Magnavox on the basis of his determination that its proposal offered the best value to the government. Harris became aware of the decision on December 27, 1985.

Harris, which had proposed the lowest total price of the three offerors, immediately requested a debriefing from the government on the evaluation of its proposal. According to Harris employees, the Army representatives at the debriefing made various statements that called into question the fairness, impartiality, and presence of a rational basis for the evaluation process and contract award. The debriefing took place on January 14, 1986, beyond the date before which Harris could obtain an automatic stay of the contract award, under the Competition in Contracting Act, by filing a protest with the General Accounting Office. 31 U.S.C.A. § 3553(d)(1). Because of the time constraints, Harris filed suit seeking declaratory and injunctive relief from this Court.

ANALYSIS

I

THE MOTION FOR PRELIMINARY INJUNCTION

Before granting a preliminary injunction, the Court must assess four factors: (1) whether the petitioner has a strong likelihood of prevailing on the merits; (2) whether the petitioner would be irreparably harmed by the denial of an injunction; (3) whether the injunction would substantially harm the interest of other parties to the proceeding; and (4) whether the injunction is in the public interest. Virginia Petroleum Jobbers Ass’n v. FTC, 259 F.2d 921, 925 (D.C.Cir.1958); see also Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 842-43 (D.C.Cir.1977). From all that has been advanced in the legal memoranda and oral arguments of counsel, it appears that the first and fourth factors have been stressed and thus call for careful attention.

A. The Merits of Plaintiffs Claims

It is noted preliminarily that while our Circuit Court has long recognized that bidders have standing to challenge government procurement decisions, Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C.Cir.1970), at the same time it has cautioned against unnecessary judicial intervention in the procurement process. Indeed, a narrow standard of review has been approved in government procurement litigation. The disappointed bidder

bear[s] a heavy burden of showing either that (1) the procurement official’s decisions on matters committed primarily to his own discretion had no rational basis, or (2) the procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations.

Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C.Cir.1973); see also M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C.Cir.1971). The Court must exercise with restraint its power to overturn procurement decisions and recognize the discretion of agency officials and the “strong public interest in avoiding disruptions in procurement.” Id. at 1300. Under this exacting standard, the plaintiff Harris has failed to make a substantial showing that it is likely to prevail on the merits. Indeed, the government’s case is so strong that summary judgment must be granted to it and the intervenor Magnavox.

Harris has raised a number of challenges to the evaluation process and decisions of the Army, attempting to show that the contract award to Magnavox was without rational basis. Each will be considered in turn.

1. The Evaluation of the Technical Proposals

While many of plaintiff’s claims evaporated during the short but intense course of this proceeding, and others arose spontaneously on the eve of oral argument, one challenge has always been advanced. Harris argues that Magnavox was evaluated more favorably on its technical proposal because it went beyond the government’s minimum requirements as outlined in the RFP. It characterizes this type of scoring as the awarding of “extra credit” or “brownie points.” Relying on selected GAO decisions, Harris states that this procedure was unlawful. The government and Magnavox defend the evaluation of the technical proposals as a reasonable and lawful method for determining which company was providing the best value to the Army, emphasizing the complex, technical nature of the procurement. They dispute Harris’ characterization of the process; rather than awarding “extra credit,” they argue, the evaluators were simply making quality distinctions between the proposals.

Harris’ claim is strikingly similar to plaintiff’s argument in American District Telegraph v. Department of Energy, 555 F.Supp. 1244, 1249 (D.D.C.1983). The proceeding involved a procurement for the design and installation of an alarm system in a chemical processing plant administered by the Department of Energy. The court held that since the solicitation clearly emphasized the importance of technical criteria as opposed to or in addition to price, it was perfectly rational for the government to select the most technically advantageous proposal, and the solicitation could not be reasonably interpreted to prohibit a bidder from submitting a proposal in excess of the technical specifications of the RFP. In Marine Research, Inc., Comp.Gen. B-206271, 82-2 CPD ¶ 380 (1982), the Comptroller General in a similar situat'on denied a protest by an offeror that argued it should have received the maximum score for meeting the government’s minimum requirements. The Comptroller ruled that the RFP put offerors on clear notice that the agency would differentiate qualitatively among proposals on basis of technical merit and that those which only minimally satisfied the RFP would not rank as high as those which exceeded minimum requirements. See also Mutual of Omaha Insurance Co., Comp.Gen. B-203338.2, 82-2 CPD 11268, at 5-6 (1982). (“[W]e find that offerors are on notice ... that qualitative distinctions will be made among proposals where technical factors are part of the competitive evaluation.”)

The communications between the Army and the offerors in the procurement here are strewn with explicit indications that the technical aspects of the proposals would be competitively evaluated. Captain Satterfield’s cover letter to a draft specification sent to the competitors prior to the amended solicitation of June 1985 states in part:

2. The Lincoln Labs Advanced Development Model referenced in this draft specification represents an approach to meeting the operational/performance requirements. The government wants the contractor to understand that in his technical proposal he has the freedom to address this approach, an alternative approach, or any combination thereof which he feels will best meet the needs of the Government.
3. The contractor must understand that while he has freedom in the type of technical approach he chooses, his approach must meet all operational/performance requirements within the government, specification to be considered acceptable.

Defendant’s Exhibit 1 (emphasis in original). The RFP itself lists technical approach as the most important factor in the award decision. Price is the least important factor. RFP, § M.l.

In addition, the Executive Summary of the RFP stated:

Contract award may not necessarily be made to an offeror who submits the lowest priced technically acceptable proposal. The Government intends to place an award with the offeror that provides that best overall proposal meeting the stated requirements. No advantage will accrue to an offeror who submits an unrealistically low price.

RFP, Executive Summary at 3. (emphasis in original). The RFP also emphasizes the “technical freedom” allowed to the offerors. It states:

The contractor has complete freedom in his technical approach to meeting the needs of the Government in his contract. This freedom includes the ability to propose different technical solutions than that provided in the specification SCA-2301B. Additionally, the contractor has the flexibility to propose deviations in the recommended type shelter identified by the Government.

RFP, § H.211(a).

In arguing that the government was asking for a “minimum requirement, low-cost, ‘no-frill’ product,” Plaintiff’s Memorandum in Support of Motion for Preliminary Injunction at 20, Harris relies heavily on § H.211(c) of the RFP which states that “[rjeducing the overall cost of the SCOTT program is of prime importance to the Government.” The key word here, however, is “overall.” The section addresses the importance of the DTUPC factor, not Price, and goes on to warn offerors not to lower their DTUPC estimates at the “expense of exorbitant operation and support costs.”-

The plaintiff’s single reference in support of its assertion that all the government wanted was a minimally acceptable proposal is barely convincing standing alone, much less when measured against the entire record. In this procurement, the government was buying the development of a sophisticated technology to be integrated into a sensitive national defense project. It would have been inappropriate to ignore quality distinctions among the proposals. Harris’ interpretation to the contrary is irrational and misplaced.

It should be noted also that government witnesses in deposition testimony provided yet another reasonable characterization of the rating of technical proposals that exceeded the government’s minimum specifications in certain areas. Both Captain Satterfield and Mr. Whitman indicated that such proposals deserved higher ratings because the government could be more confident that the offeror would in actual practice meet the minimum requirements. Satterfield Dep. at 60; Whitman Dep. at 105. Given the uncertainty and complexity of the technologies involved, such application of the rating criteria makes good sense.

2. The Evaluation of Risk

Harris’ next advances a series of challenges to the use of risk by the SSEB as an evaluation criteria. First, it complains that since the Plan’s definitions of the adjectival ratings include discussions of risk, they are incompatible with the use of independent risk ratings. For example, part of the definition of “Excellent” is that the “proposed approach exhibits low risk to the Government.” Plaintiffs Exhibit 1, § IV.B. Harris argues that the SSEB evaluators could not have rationally given this rating to an element of a proposal and also assigned a risk rating of moderate or high. Next, the plaintiff points out that the weights for risk — that is, the influence of risk on the mathematical formula used by the SSAC — were not established until after the SSEB evaluation reports were transmitted to the SSAC. This, argues Harris, gave the SSAC the opportunity to influence the outcome of their deliberations by manipulating the weighting of risk. Finally, the formula used to apply the risk evaluations is challenged as mathematically unsound and otherwise flawed.

The government responds initially that it is rational and proper to consider risk in a procurement of this type. This is certainly true, even though risk was not identified as an evaluation factor in the RFP. See Consolidated Group, Comp.Gen. B-220050, slip op. (Jan. 9, 1986) (“[W]e find no basis for objecting to the evaluation of the risk of performance problems because the degree of risk present is clearly related to the approach used and the ability of the firm to perform the contract.”). But the plaintiff challenges the way that risk was considered and applied in the evaluation process. To uphold that challenge, the Court must determine that the flaws in the evaluation of risk undercut any .rational basis for the decision to award the contract to Magnavox or involved a clear violation of procurement regulations that was prejudicial to Harris. Kentron Hawaii, 480 F.2d at 1169. The record in this case simply does not support such a finding.

First of all, while the definitions of adjectival ratings are not a model of clarity, there is no reason to believe that the SSEB evaluators were confused by them or unable to apply them rationally. The Plan clearly stated that each factor was to be given an adjectival rating and a separate risk assessment and that “the degree of risk of the approach does not itself establish the rating.” Plaintiff’s Exhibit 1, § IV.B. Colonel McCahan, expressed some concern about the amount of subjectivity involved in risk assessment. See McCahan Dep. at 71-76; Plaintiff’s Exhibit 3, at 4. He stated, however, that a risk rating generally indicated the evaluator’s confidence that the contractor would produce at the level for which the adjectival rating was given. McCahan Dep. at 78. Furthermore, and perhaps most importantly, the SSEB reports consisted not only of adjectival ratings and risk assessments, but also of detailed narrative indicating the strengths and weaknesses of each element considered. See Plaintiff’s Exhibits 6 & 7. These entire reports were considered by the SSAC. McCahan Dep. 40-41. Thus, facial inconsistencies between the adjectival definitions and the risk ratings, which the Court does not find to be substantial in any event, did not have a significant impact on either the SSEB or the SSAC deliberations.

Plaintiff’s claim that the evaluation process was tainted because there was a possibility for manipulation of the contract award by altering the numerical weightings for risk similarly does not find support in the record. Neither the Plan nor applicable regulations state when numerical weightings for risk should be established, or that they must be established at all. Army Regulation 715-6, relied on by the plaintiff, states that the SSAC shall “establish criteria weights in order of their relative importance” and “[rjeview the SSEB findings and apply established weights to the evaluations results.” Plaintiff’s Exhibit 2, at 3-4. It is clear that the SSAC complied with this regulation by establishing weights for the five evaluation factors in the Plan and applying those weights to the SSEB reports. In any event, the use of the risk assessment in the mathematical calculations did not influence the rankings of the three offerors. See Declaration of Colonel Alan R. McCahan (Feb. 10, 1986). Thus,, even if Army Regulation 715-6 was violated, the violation was not prejudicial to Harris. Plaintiff asserts that even the possibility of impropriety in the procurement evaluation is enough to warrant the relief it seeks. The Court does not agree. Such a result would be completely inconsistent •with the exacting standard of review that the Court must apply.

Finally, even assuming the existence of a mathematical error in the SSAC’s use of the risk ratings in calculating the numerical scores of the proposals, there is no evidence in the record that the error had any material impact on the scores assigned or on General Morgan’s final decision.

3. Magnavox’s Increased Price Score

It was disclosed during discovery that Magnavox’s price proposal score was changed after the presentation of the SSAC report to General Morgan on November 7, 1985. According to the government, this was done because it was determined that the SSEB evaluators had improperly downgraded the proposal because of a management decrement. Morgan Dep. at 29-30; Satterfield Dep. at 49-51.

Plaintiff correctly points out that the downgrade is not reflected in the SSEB’s final evaluation report on Magnavox’s cost realism, which shows a rating of superior with low risk. Plaintiff’s Exhibit 7, at 5.2.j. However, an affidavit from the chairman of the SSEB team that evaluated the price factor indicates that an earlier final evaluation, rating Magnavox’s cost realism as adequate with high risk, was removed and shredded when the error in evaluation was discovered. A new evaluation form was completed and made part of Magnavox’s rating report. Affidavit of John A. Traversone at 11 8 (Feb. 10, 1986). The Court finds this explanation curious in some respects. Shredding the original report and retaining the original date on the revised report is an unusual way of enacting a perfectly legal, above board revision to an evaluation.

In spite of this, however, the increase in Magnavox’s score had no impact on the final decision and certainly does not lead to the conclusion that the decision lacked a rational basis. General Morgan testified that he had already made his decision before error was discovered and the change made. Morgan Dep. at 25. And price was the least important factor in the procurement evaluation. In any event, the differences between Harris and Magnavox in the areas of ILS, management, and DTUPC, were more than sufficient to offset Harris’ slight advantage in the price component before Magnavox’s evaluation was revised.

4. Other Challenges

The claims presented by Harris over the course of this proceeding have changed considerably since entry of the Temporary Restraining Order. Plaintiff’s final brief barely mentions a number of arguments it stoutly advanced during the first hearing. However, since counsel claimed at the February 12, 1986 argument on the preliminary injunction that no claims have been abandoned, Transcript at 60 (Feb. 12, 1986), and since the defendants’ motions for summary judgment as well as the motion' for preliminary injunction are also at issue, a brief discussion of those arguments is in order.

Plaintiff claimed initially that Harris’ “past performance” was considered in evaluating cost realism and DTUPC, while the RFP indicated it was a subfactor only in the management area. Affidavits from the chairmen of the price and management teams of the SSEB effectively refute this claim, and Harris failed to develop any evidence during discovery to support it. Similarly, while Harris’ employees gathered from the debriefing that the DTUPC factor had been ignored, the detailed SSEB evaluations of Harris and Magnavox in that area and the SSAC’s report to General Morgan more than demonstrate the inaccuracy of that charge. See Plaintiffs Exhibit 6, at 4.1.a; Plaintiff’s Exhibit 7, at 4.1.a, Plaintiffs Exhibit 3, at 13. Thus, the initial claim that the evaluative factors were changed without notifying the offerors is baseless.

Harris also believed that its rating in the ILS area was based on its original proposal rather than its final offer, a claim which, if true, would be a violation of 48 C.F.R. 15.611(d). Again, the documentary evidence and the unchallenged affidavits of SSEB members refute this claim. See Affidavit of Jon Ford (Feb. 7, 1986); Plaintiffs Exhibit 7, at 2e-2h. In addition, there is nothing in the record to support Harris’ assertion that the government failed to conduct meaningful communications with Harris regarding the deficiencies of its cost realism proposal. The intermediate evaluation report shows that five IFNs (items for negotiations) were issued after the initial evaluation and Harris provided written responses to each. Id. at 5.2.d.

The original complaint and motion for preliminary injunction challenges the Army’s use of cost realism as an evaluation factor since this procurement was for a fixed price contract. Harris also objects to the consideration of its past performance on previous cost-reimbursement type contracts in the evaluation of its management proposal. The Comptroller has held that cost realism is a valid evaluation factor even in procurements where total price is the primary concern, which is not the case here, because it helps in assessing the offeror’s understanding of the government’s requirements. See General Management Systems, Inc., Comp.Gen. B-2124246, 84-2 CPD ¶ 351, at 4 (1984). In any event, Harris’ claim is untimely. Harris was required to challenge evaluation factors before submitting its BAFO. 4 C.F.R. § 21.2(a)(1) (1985). It had ample opportunity to do so.

In evaluating past performance under the management factor, the Army reviewed 13 prior contracts of Harris considered comparable in complexity to the SCOTT project and which had a contract value of at least $10 million. Affidavit of Keith Maurer, ¶ 7 (Feb. 6, 1986); Plaintiff’s Exhibit 7, at 3.1.c. Only five of the 13 contracts were fixed price contracts. The survey of past performance revealed instances where Harris was lacking in cost control. Id. at 3.1.d. This information was relevant to an evaluation of Harris’ management capabilities even if most of the prior contracts were not fixed price contracts. From such an analysis it cannot be said that the Army’s evaluation of. Harris’ proposal in this regard was improper.

In sum, most of Harris’ initial claims in this lawsuit amounted to very little once discovery was obtained. Harris argues that all of the inconsistencies and problems with the procurement that it has identified, when lumped together, lead to the conclusion that the Magnavox award lacked a rational basis. The Court understands that Harris is not required to show that each of its challenges standing alone justifies overturning the procurement, but fails to see how any of the challenges Harris has brought are significant or present a serious question. Harris has failed to make a convincing showing on the merits that would justify issuance of a preliminary injunction.

B. The Public Interest

The plaintiff correctly points out that the public has a great interest in seeing that its tax dollars are distributed fairly by government agencies. But the public interest is also served by avoiding disruptions of the procurement process. M. Steinhal & Co., 455 F.2d at 1300; see also Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 674, 88 L.Ed. 834 (1944). This interest is especially great in this case since it involves a project important to national security. On this issue, the Court has noted the public and, particularly, the in camera declaration of J.R. Sculley, Assistant Secretary of the Army. The government’s, and therefore the public’s, interest in having this particular contract proceed according to schedule weighs heavily in the balance. A much stronger case on the merits than the plaintiff has presented would be necessary to counter-balance the public interest in this case.

II

THE MOTIONS FOR SUMMARY JUDGMENT

To prevail on their motions for summary judgment, the government and the intervenor must demonstrate that there are no material facts presenting a genuine issue for trial and that, as a matter of law, they are entitled to judgment. Goodrich v. Int’l Brotherhood of Electrical Workers, 712 F.2d 1488, 1494 (D.C.Cir.1983); Perry v. Block, 684 F.2d 121, 126 (D.C.Cir.1982). Plaintiff claims that factual issues still exist because the government witnesses have merely denied what Harris’ representatives say they were told at the debriefing. But beyond the affidavit attached to the original complaint that relates plaintiff’s version of the events at the debriefing, Harris has developed only the slightest evidence that supports its claims. While all inferences from the factual material before the Court must be drawn in favor of Harris, a mere denial or recitation of conclusory allegations is insufficient to raise a genuine issue of material fact where the record does not support those allegations. Briggs v. Goodwin, 698 F.2d 486, 489 n. 2 (D.C.Cir.1983), rev’d on rehearing on other grounds, 712 F.2d 1444 (D.C.Cir.1983); Bloomgarden v. Coyer, 479 F.2d 201, 208 (D.C.Cir.1973).

A number of uncontroverted affidavits have been submitted by the government. They relate to the central issues in this litigation and are more than sufficient to show that the Army’s decision had a rational basis and was not arbitrary and capricious. The plaintiff has not demonstrated that there are unresolved material facts which preclude the relief sought by the defendants and the intervenor. Summary judgment for the government and the intervenor Magnovox is appropriate as a matter of law.

An order consistent with the above Memorandum Opinion is entered as of this date.

      . Prior to argument on the motion for preliminary injunction, plaintiff’s counsel was granted permission to depose the Source Selection Authority, General Robert Morgan, the Chairman of the Source Selection Advisory Council, Colonel Alan McCahan, the Chairman of the Source Selection Evaluation Board, Mr. Robert Whitman, and the Contracting Officer, Captain Donald Satterfield.

      . The restructuring of the procurement was announced in a superseding amendment to the RFP, Amendment 39.

      . Each factor consisted of at least two subfactors, and many subfactors were divided into elements. For example, the Management factor consisted of three subfactors — past/current performance, facilities and personnel, and project control; past/current performance had nine elements.

      . The SCOTT procurement was carried out under a "formal” source selection process as defined in the Federal Acquisition Regulations, 48 C.F.R. § 15.622(a). The Chairman of the SSEB, Robert Whitman, prepared a draft source selection plan in April 1985, recommending the procedures for the evaluation process. See 48 C.F.R. § 15.622(c).

       The SSEB evaluators rated individually the elements in the technical approach and ILS areas, but not the elements of the management factor.

      . The RFP specified the order of importance of the major factors and identified all of the sub-factors and elements to be evaluated. It did not, however, divulge the actual weights of the factors. The weights, determined in May 1985 by the SSAC when it reviewed and revised SSEB Chairman Whitman’s draft plan, were as follows: Technical — 35, ILS — 22, Management— 20, DTUPC — 13, Price — 10.

      . Plaintiff has moved to amend its complaint to bring claims of which it was not aware prior to discovery. So that all relevant issues may be considered, and in the interests of justice, the motion is granted. Fed.R.Civ.P. 15(a).

      . Unless otherwise noted, citations to Exhibits refer to the exhibits used in the depositions conducted by the plaintiff.

      . It should be noted also that the Price factor consisted of the subfactors of total price and cost realism. Thus, under the weighting system, total price accounted for only 5 percent of the total evaluation score. See supra note 6.

      . Harris' reliance on United States v. Mississippi Valley Generating Co., 364 U.S. 520, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961) is misplaced. There the Supreme Court upheld the government’s decision to cancel a contract because an official participating in the procurement had a financial interest in the winning company. Aside from the obviously greater likelihood of improper conduct, the limits on the court’s discretion to interfere in the procurement process were simply not a factor in that case.

      . Because it was raised at the last minute, defendants did not have full opportunity to examine the merits of this claim. The Court notes, however, that plaintiffs counsel’s interpretation of how the risk ratings were intended to be applied in the mathematical calculation is at least open to dispute. Adding or subtracting .1 to the point score of an element, based on the risk assessment, would seem to be just as logical as changing the score by plus or minus 10 percent.

      . A management decrement is an explicit decision to absorb some of the cost of a project rather than include it in a price proposal. Such decisions were permitted by the RFP in its discussion of the evaluation subfactor of cost realism. RFP, § M.3.4.b.(2).

      . Claims of national security, of course, are often advanced by the government in challenges to procurement decisions. The Court will not blindly accede to such claims, but is bound to give them the most careful consideration. Cf. 28 U.S.C. § 1491(a)(3).