author: JOHN W. OLIVER, Senior District Judge.

text:
    UNITED STATES of America, Plaintiff, v. 1,378.65 ACRES OF LAND, MORE OR LESS, SITUATE IN VERNON COUNTY, STATE OF MISSOURI; and Laurance C. Phister, et al., Defendants.
    No. 80-5001-CV-SW-1.
    United States District Court, W.D. Missouri, Southwestern Division.
    March 20, 1985.
    On Motion for Reconsideration June 12, 1985.
    Robert G. Ulrich, U.S. Atty., Kenneth E. Weinfurt, Asst. U.S. Atty., Kansas City, Mo., Charles J. Brennan, Dept, of Justice, Land & Natural Resources Div., Washington, D.C., for plaintiff.
    S. Preston Williams, North Kansas City, Mo., for defendants.
   MEMORANDUM AND ORDERS

JOHN W. OLIVER, Senior District Judge.

I.

This case pends on defendants’ “motion to amend judgment to include an award of costs, fees and expenses under 28 U.S.C. § 2412, as amended by The Equal Access to Justice Act or, in the alternative defendants’ application for recovery of costs, fees and expenses against the United States under the Equal Access to Justice Act.” Determination of that motion was delayed because of the pendency of appeals in the Eighth Circuit Court of Appeals in two condemnation cases consolidated on appeal as Case Nos. 82-1919, 83-1519.

After the Court of Appeals handed down its initial decision in the consolidated cases on August 14, 1984, counsel for both sides in response to Court inquiry stated that the pending motion could be decided on stipulations and the other data before the Court. Determination of the pending motion, however, was again delayed pending the Court of Appeals’ grant of a rehearing in the consolidated cases.

The Court of Appeals handed down its final decision in the consolidated cases on December 28, 1984. United States v. 341.45 Acres of Land, St. Louis County, Minn., Edward M. Essling and United States v. 234.55 Acres of Land, Union County, Ark., 751 F.2d 924 (8th Cir.1984). That decision substantially modified the Court of Appeals’ original decision in the consolidated cases. Both parties again, after inquiry by the Court, stated that the pending motion should be decided on the present record.

II.

The parties stipulated to the following facts which we adopt as findings of fact:

1. The total fees and expenses appropriate to be awarded in this action to defendants should they Prevail on their pending motion filed herein on May 2, 1984, is $22,-380.

2. On December 6, 1978, the government extended an offer to the landowners in this case in the amount of $140,000. Subsequently, on August 8, 1979, the government extended to the landowners a final settlement offer in this case in the amount of $211,000.

3. On August 8, 1979, the landowners advised the government that they thought they could obtain an additional $100,000 over the appraisal of $211,000 if they went to Court.

4. Upon the trial of the issue of just compensation in this case, the landowners were awarded damages in the total amount of $325,000, said amount representing $114,000 more than the government’s final settlement offer made to the landowners.

5. The appraisers employed and used by the government in this case, namely, James L. Sawyers, Oliver L. Dane and Allen Clark, have been used and employed by the government in numerous other condemnation cases and have regularly appraised property for the government in condemnation eases.

6. The government’s evidence during trial as testified to by James L. Sawyers, was that the amount of just compensation due the landowners herein was $115,000, said amount being $96,000 below the government’s final settlement offer and prior estimate of just compensation.

7. The government’s ability to take the easements in question herein was not actively litigated by the parties.

8. The landowners, on the date of taking and subsequently, operated the subject property as a grain farm and for the harvesting of hardwood timber.

9. The landowners do not presently live on the subject property nor did they live on the subject property on the date' of taking.

10. The landowners have employed tenant farmers for the operation of the farming business on the subject property.

11. The landowners have periodically hired a commercial logger to harvest and remove hardwood timber from the subject property, and the hardwood timber so removed is sold commercially.

12. There are two sets of improvements on the subject property.

13. On the date of taking, the combined net worth of Laurance C. Phister and Alice B. Phister, husband and wife, was greater than Two Million Dollars ($2,000,000) and less than Five Million Dollars ($5,000,000). On the date of taking, Harriet T. Phister had a net worth of less than One Million Dollars ($1,000,000).

14. On the date of taking, the defendants herein had less than 500 employees employed at the farming operation.

Thomas E. Barzee, Jr., an attorney with the law firm of Williams & Barzee, filed an affidavit on September 7, 1984 which catalogued that firm’s record of its trials involving the condemnation of property for the Harry S. Truman Dam and Reservoir project. That affidavit, which is attached hereto as Appendix A, detailed the consistently higher Commissioners’ award as compared to the government’s estimated compensation as evidenced by the deposit placed with the Court pending ascertainment of just compensation. See Rule 71A(j), Federal Rules of Civil Procedure. The increase ranges from 14% to 3,316% with 5 of the 41 awards increased over 1000% and 17 more of the awards increased over 100%. Only 7 of the awards were increased by less than 50%.

On September 7, 1984 the government filed an affidavit of B.E. Upschulte, Chief, Real Estate Division, Kansas City District, Army Corps of Engineers, in response to the Barzee affidavit. Mr. Upschulte’s affidavit stated that the offers made to defendants on December 5, 1978 and August 8, 1979 were based upon an approved Appraisal and Supplemental Appraisal Report, respectively, made by Mr. Oliver L. Dane. The affidavit further stated that Mr. Dane has testified in numerous condemnation hearings on the Truman Project after being found by the Land Commission as qualified to express his opinion concerning land values.

On October 31, 1984 the government filed a second affidavit of B.E. Upschulte. That affidavit provided information on eight separate projects in the Kansas City District and listed the years between 1965 and 1984 in which the government acquired property on each project, the total number of tracts acquired (10,560), the tracts acquired by purchase and the number of tracts acquired by condemnation (2,297). The chart included in the affidavit shows that 1,897 tracts in the Truman Project were subject to condemnation proceedings and that 1,029 of those 1,898 tracts were actually tried before the Land Commission or a Special Master. The second affidavit established that only 596 of the 1,898 tracts were settled by stipulation.

Mr. Upschulte’s second affidavit also included an attached list of more specific information in regard to the 41 cases catalogued in Mr. Barzee’s affidavit. That list included information for each case in regard to the deposit, the award, the percentage of award over deposit, the names of the appraisers and landowners who testified to value, the estimates of compensation, and the difference between the estimated value and the amount of the award.

The data furnished by the government established that in all 41 eases the government’s testimony as to the amount of just compensation was substantially less than the Land Commission award. In only three cases was the government appraiser’s testimony in regard to the amount of just compensation closer to the award than the landowner’s appraiser’s testimony. In all 41 eases the government’s deposit at the time it filed its declaration of taking was far below the Land Commission’s eventual award. In many of the cases the government offered testimony that its deposit either reflected the amount of just compensation that should be awarded or offered testimony that an amount less than the deposit should be awarded.

As will be apparent from the list of cases which we attach hereto as Appendix B, the government, for the most part, offered testimony which attempted to justify the deposit made under the Declaration of Taking Act as the amount of just compensation to be awarded. In only a handful of cases did the government adduce testimony which recognized that the amount of the deposit did not come close to reflecting the fair market value of the tract condemned.

Mr. Oliver Dane, the government’s appraiser in this case, also testified in five of the cases on the list. Mr. Dane’s testimony ranged from an evaluation of $14,600 to $79,550 below the award in the five listed cases. The government did not submit any data on cases other than those catalogued by Mr. Barzee. The data presented in the government’s affidavit establishes that the testimony of the government’s appraisers in general and that of Mr. Dane in particular has consistently been substantially lower than the Land Commission award.

III.

The Eighth Circuit Court of Appeals concluded in the decision of two land condemnation cases consolidated for appeal that “the EAJA does apply to condemnation actions” and that “for purposes of § 2412(d) the term ‘prevailing party’ may include a property owner who wins by judgment or negotiation and settlement more than the government offered or admitted liability for in a condemnation case.” United States v. 341.45 Acres of Land, supra, 751 F.2d at 936 and 937, respectively.

The Court of Appeals further concluded that, dependent upon the totality of the prelitigation and trial circumstances of the case, the government’s position in refusing to offer more money as just compensation could, in a particular case, be said to be substantially justified “if its offer is consistent with appraisals upon which the government is reasonably entitled to rely.” (Emphasis ours) Id. at 942. The Court of Appeals reaffirmed and quoted the standard stated in Foley Construction Co. v. United States Army Corps of Engineers, 716 F.2d 1202, 1204 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984) that “‘the test of whether the position of the United States is substantially justified is essentially one of reasonableness in law and in fact. The government bears the burden of proving the substantial justification of its position.’ ” United States v. 341.45 Acres of Land, supra, 751 F.2d at 940. The Court of Appeals remanded both cases for further proceedings consistent with the Court of Appeals’ opinion that each case be determined on the particular facts presented.

The Court of Appeals made clear, however, that in determining whether the government has carried the burden of proving substantial justification of its position, “[a]ny substantial disparity between the offer, the appraisals, and the government’s trial evidence should be explained by the government.” Id. at 940. The Court of Appeals concluded that, on remand, the “district court should also consider whether the government acted reasonably in relying upon the valuations of its appraisers and expert witnesses.” Id. at 940.

The ultimate questions presented by the pending motion in the case at bar are whether the government’s position was substantially justified, whether it acted reasonably in relying upon the valuations of its appraisers and expert witnesses, and whether the government has adduced a credible explanation of the substantial disparities between the government’s offer, its appraisals and its experts’ trial testimony as established by the stipulated factual circumstances of this particular case. We find and conclude that all those questions must be answered in the negative for reasons we shall state in detail.

IV.

We conclude as a matter of law that the EAJA does apply to this action. We further conclude that the landowners were prevailing parties for purposes of Section 2412(d) in that they recovered $114,000 more than the government’s final offer as just compensation for the property taken. The burden of justification and explanation thus shifted to the government.

The government offered the landowners $140,000 pursuant to Dane’s first appraisal and later offered $211,000 pursuant to a supplemental appraisal made eight months later. The government’s expert at trial, however, testified that the property should be valued at only $115,000. The Commission awarded $325,000. We find and conclude that the government has not carried the burden of substantially justifying its position and of explaining the disparities presented under the undisputed factual circumstances of this case.

The government attempts to rely on the fact that 87% of the tracts on the Truman project were not taken by condemnation. While that circumstance is commendable for its conservation of judicial resources, it is not relevant in a proceeding for an award under EAJA. The EAJA applies to “a civil action ... in any court.” 28 U.S.C. § 2412(d)(1)(A). What is relevant is the government’s litigation and prelitigation stance in regard to the particular tract condemned.

The fact that only approximately 35% of the condemnation actions were settled without trial before the Land Commission is far more telling. The fact that the government’s final offer was based upon their final appraiser’s report does not alone, in our judgment, establish that its position is substantially justified, as evidenced by the remand for further proceedings in 341.45 Acres of Land.

The issue is whether it was reasonable for the government to rely upon the valuation set by Mr. Dane. The factual data presented establishes that the government's appraisers are consistently low in their valuations. Mr. Dane’s personal record is of particularly debased appraisals. It is not reasonable with this “track record” that the government simply rely upon these evaluations in settlement negotiations.

The landowners were awarded $114,000 more than the government’s final settlement offer. That reflects more than a sizeable miscalculation on the part of the government. Yet, it was not unforeseeable because the landowner’s themselves told the government the day the last offer was made that they thought they could obtain an additional $100,000 at trial.

V.

We believe it is appropriate that we state in some detail the reasons why the data the government submitted by way of affidavit may not properly be said to substantially justify or explain the government’s position. The government’s affidavit data does no more than reflect the experience of district court judges that are required to process large land condemnation dockets in regard to the settlement policies generally followed by the government in land condemnation cases. Those policies result in ’the trial of a much higher percentage of land condemnation cases filed than any other type of civil case.

The Director of the Administrative Office collects and publishes only a meager amount of data in regard to land condemnation cases. The Director does, however, publish a table which shows the length of time land condemnation cases pend in a particular district court. See Table C 6B in the various Annual Reports of the Director of the Administrative Office. Similar figures are, of course, published in regard to civil cases which omit the figures relating to land condemnation cases. See Table C 6A in the various Annual Reports of the Director of the Administrative Office.

Experience in the administration of both civil and land condemnation dockets establishes that district courts are able to maintain reasonable control of their civil docket for the reason that a high percentage of all civil cases, including cases in which the government is a party, are settled before trial. Some of the relatively small number of ordinary civil cases that are not settled before trial end up in the category of cases which pend three years or over as reported in Table C 6A.

Table C 6A of the 1983 Annual Report, which contains the latest published figures, shows that on a national basis, only 6.4% of the 228,126 ordinary civil cases which were pending in all the district courts in the federal system as of June 30, 1983 had pended for three years or more. Table C 6B of the 1983 Annual Report, on the other hand, reported that 45.5% of the 3,794 land condemnation cases which pended in all the district courts in the federal system as of June 30, 1983 had been pending for three years or more.

The Western District of Missouri has long processed more land condemnation cases than any other district court in the Eighth Circuit. Indeed, this Court, over each of the past ten years, has processed one of the largest land condemnation dockets in the federal system. Examination of the Table C 6B data over the past ten years shows that only in 1983 has this district had less than 100 pending land condemnation cases on its docket in any particular year. The figures show that in 1974, 107 land condemnation dockets pended in the Western District of Missouri; in 1975 — 170; in 1976 — 189; in 1977 — 209; in 1978 — 271; in 1979 — 266; in 1980 — 213; in 1981 — 155; in 1982 — 109; and in 1983 — 63.

Experience gained in keeping the land condemnation docket of the Western District of Missouri in a relatively current condition and contact with other district courts that have been required to process large land condemnation dockets has established that a docket of at least 50 land condemnation cases presents an administrative challenge to a district court having that large a land condemnation docket.

The current Table C 6B in the Annual Report of the Director of the Administrative Office, reflects the performance of district courts which have carried a docket of condemnation cases as of June 30, 1983. That table shows that district courts which carried a substantial docket of at least 50 land condemnation cases had a percentage of those cases which pended for three years or more that far exceeded the percentage of ordinary civil cases that pended in the same district court during the same period of time.

The 1983 figures for this Court, for example, show that only 2.8% of this district’s 2,388 ordinary civil cases have been pending three years or more as of June 30, 1983 as contrasted with 14.3% of the 63 land condemnation cases which pended at that time. In the District of Massachusetts 13.1% of that district’s 7,232 ordinary civil cases were in the three year or more categroy in contrast with 41.2% of that district’s 119 three-year old land condemnation cases; in the Northern District of West Virginia 10.9% of 1,086 ordinary civil cases — 33.3% of 222 land condemnation cases; Eastern District of Texas 8.2% of 3,626 ordinary civil cases — 48.1% of 108 land condemnation cases; Eastern District of Kentucky 26.4% of 2,750 ordinary civil cases — 66.7% of 111 land condemnation cases; Northern District of Indiana 9.4% of 2,204 ordinary civil cases — 34.0% of 53 land condemnation cases; Southern District of Florida 7.6% of 4,397 ordinary civil eases— 58.5% of 1,297 land condemnation cases.

The government’s response to the data contained in Mr. Barzee’s affidavit suggested that “about 87% of the Truman tracts have been acquired by direct purchase, cash settlement or condemnation for title only” and that “only 13% of these lands involved a contest on the issue of just compensation.” The government argued from those figures that this Court has a “remarkable record [which] reflects credit on this Court’s efforts, its Commission and the service and efforts of the government.”

The significant figures, however, are contained in paragraph 5 of the second affidavit of B.E. Upschulte attached to the government’s response. Paragraph 5 of that affidavit shows that 1,898 tracts on the Truman Project have been subject to land condemnation proceedings in the Western District of Missouri and that as of this date 1,857 of those cases have been closed. Paragraph 5 of the affidavit, however, shows that 1,029 tracts of the 1,898 tracts were tried before the Land Commission or a Special Master and that only 596 tracts were settled by stipulation.

The government does not attempt to explain why land condemnation cases are not susceptible to a settlement ratio which would be generally consistent with the settlement ratio of an ordinary civil case. The fact that only approximately 600 land condemnation cases were settled and that over 1,000 of those cases had to be tried in this district suggests that, for some unexplained reason, the settlement policies followed by the Department of Justice in land condemnation cases differs quite substantially from that followed by the parties, including the government, in processing settlement of an ordinary civil case. The government has neither stated nor attempted to explain the policies that produce the discrepant ratio.

VI.

The traditional position of the Department of Justice that all land condemnation cases should be tried before a jury may account for the reluctance of the Department of Justice to devise appropriate procedures for the settlement of land condemnation cases. In Section 3051, 12 Wright and Miller, Federal Practice and Procedure 120, it was accurately stated that “[i]t is absolutely settled that there is no constitutional right to a trial by jury in compensation cases.” That section added that “[nevertheless this had been the most usual practice when ■ conformity with the states was required and it was and is strongly favored by the Department of Justice.”

Rule 71A of the Federal Rules of Civil Procedure was promulgated to establish a uniform procedure in all federal district courts in order to avoid the confusion created by prior existing federal law which required condemnation proceedings to be conducted in conformity with State court practice. Rule 71A, however, as proposed and ultimately promulgated, effective August 1, 1951, did not attempt to make any change in the existing Declaration of Taking Act, 40 U.S.C. §§ 258a — 258e, and similar statutes.

In Section 3041 of 12 Wright and Miller, id. at 91, it was noted that “[ujnder the Declaration of Taking Act and similar statutes, the government has long had the right to file a ‘declaration of taking’ along with a deposit of the sum estimated to be just compensation, and thus take possession of the land immediately.” That section added that after a declaration of taking is filed “the government is free to proceed with its plans without delay, but the landowners might not receive their compensation for years.” The practical consequence of the authority granted by the Declaration of Taking Act presented the potential recognized by the adage that justice delayed could result in justice denied.

Wright and Miller therefore appropriately and accurately stated that Rule 71A was promulgated for the purpose of “providing a speedy and easy procedure [which] permits landowners to receive their compensation more promptly.” Those authors added that “[i]t seems not to have been generally realized that it is landowners, and not the government, who benefit from a speedy and clear procedure in condemnation cases.” Id. at 91.

The Notes of the Advisory Committee on Rules stated in connection with its work on Rule 71A that the “Advisory Committee have given more time to this rule, including time required for conferences with the Department of Justice to hear statements of its representatives, than has been required by any other rule.” The consistent and adamant position maintained by the Department of Justice, of course, was that a rule should be promulgated in a manner that would mandate that jury trials be conducted in all land condemnation cases.

The Notes commented that the “Department of Justice has twice tried and failed to persuade the Congress to provide that juries shall be used in all condemnation cases” and that the “principal ground for opposition to commissions was then based on the assertion that the commission system is too expensive because courts allow commissioners too large compensation.” Experience has established that it is quite doubtful as to whether the ground of opposition stated by the Department of Justice to the Advisory Committee was the real basis for the position taken by the Department of Justice in regard to Rule 71A.

In Section 3041,12 Wright and Miller, id. at 90, the authors stated that:

The principal difficulty in drafting Rule 71A was the procedure for trial of the issue of compensation. The Lands Division of the Department of Justice wished to have a jury in every case. Others believed that the experience' of the Tennessee Valley Authority demonstrated the superiority of the appointment of commissioners to assess damages. The Committee itself was divided as between these alternative proposals. As is fully discussed in section 3051, the ultimate result was a compromise, by which trial by jury is the usual method of determining compensation, but the court is given discretion to dispense with a jury and appoint commissioners instead in unusual cases.

The files and records of this Court establish that the Department of Justice vigorously opposed the appointment of a land commission in the Western District of Missouri and that it advocated that all of the numerous land condemnation cases on this Court’s docket be tried before a jury. After an appropriate hearing, this Court appointed its land commission over the opposition of the Department of Justice.

Although the United States Attorney's office for this district has cooperated with this Court in an exemplary manner in processing its large land condemnation docket and has complied with both the letter and the spirit of this Court’s en banc procedures regulating the trial of land condemnation cases before the Land Commission, the Department of Justice has not changed its procedures under which only limited authorization is given to the United States Attorney’s office in this district to settle land condemnation cases before trial. The long standing regulations of the Department of Justice simply do not vest any meaningful discretion in a local United States Attorney in regard to the settlement of land condemnation cases with the inevitable result that the vast majority of land condemnation eases must be tried before the Commission.

The declared objective of Rule 71A that the landowner would have a speedy determination of the amount of just compensation after the government has acquired title to the land is thus defeated because of the volume of cases that must be tried under existing Department of Justice regulations. Section 3051, id. at 120, fn. 42, noted the observations of two law review commentators who had reviewed the Department of Justice’s adamant position in regard to the use of Rule 71A land commissions rather than jury trials. Juergensmeyer, Federal Rule of Civil Procedure 71A(h) Land Commissions: The First Fifteen Years, 43 Ind.L.J. 677, 723, was quoted as follows: “It is equally clear from the cases, the questionnaire, and public and private statements of Department of Justice officials that the Department of Justice continues, as it has since the inception of the idea, to oppose the commission method of determining the issue of just compensation.”

Paul, Condemnation Procedure under Federal Rule 71A, 43 Iowa L.Rev. 231, 236-237, was also cited by Wright and Miller. Those authors took note of Paul’s observation that “where the landowner cannot afford to appear in court the government obtains the land at its own valuation, for the only evidence before the jury is that of the government’s own paid appraisers whose valuation, in this writer’s observation, is usually less than that of disinterested witnesses.”' Paul added that “[o]ne cannot escape the belief that it is such results that are at the bottom of the persistent efforts of the Lands Division of the Department of Justice to obtain jury trials in all cases and to have Rule 71A amended so as to give that right.” Id. at 121.

Existing limitations imposed by the regulations of the Department of Justice on local United States Attorney’s offices which force the trial of a majority of condemnation cases obviously delay the determination of the amount of just compensation to which a landowner is constitutionally entitled. The government has made no effort either to explain or to justify the reasonableness of its regulations and settlement policies.

We do not intend to suggest that there has not been some improvement in the manner in which the government approaches land condemnation since Congress established a uniform policy on real property acquisition practice by its enactment of Title 42 U.S.C. § 4651 in 1971. That policy was established in order “to encourage and expedite the acquisition of real property by agreements with owners, to avoid litigation and relieve congestion in the courts, to assume consistent treatment for owners in the many Federal programs, and to promote public confidence in Federal land acquisition practices.” The first three key policies in Section 4651 were stated as follows:

(1) The head of a Federal agency shall make every reasonable effort to acquire expeditiously real property by negotiation.
(2) Real property shall be appraised before the initiation of negotiations, and the owner or his designated representative shall be given an opportunity to accompany the appraiser during his inspection of the property.
(3) Before the initiation of negotiations for real property, the head of the Federal agency concerned shall establish an amount which he believes to be just compensation therefor and shall make a prompt offer to acquire the property for the full amount so established. In no event shall such amount be less than the agency’s approved appraisal of the fair market value of such property____

The congressional history concerning those three particular statements of policy shows that the Congress recognized that: “Prior to 1960 the Corps of Engineers and a number of other agencies followed a ‘one price’ policy” and that “[o]ffers were made on a ‘take it or leave it’ basis and there were no serious efforts made to resolve reasonable differences of opinion concerning the value of property.” House Report No. 91-1656, 3 U.S.Code Congressional and Administrative News, 1970, 91st Cong. 2nd Session, pp. 5850, 5871.

That Report also stated that “[t]he Corps of Engineers, the General Services Administration and a number of other agencies have followed a policy since 1960 of making an initial offer and often acquiring property at an amount below its approved appraisal of the property.” Id. at 5872. The report further stated that after 1960: “During hearings by this Committee last year members of the Committee made it abundantly clear that the Army intepretation of the Land Acquisition Policy Act of 1960 is not in agreement with that of the Committee that drafted the language and presented it to the Congress for enactment.”

The report stated that the Committee believed that the policies stated in the first three paragraphs of 42 U.S.C. § 4651 were necessary because “[a]ny policy which does not entitle the property owner to an offer of the full amount of the agency’s approved value estimate, where the owner must sell, is unfair. It is fundamental that all citizens should be dealt with fairly by their government.”

The government has not attempted to explain or to justify the fact that the testimony it adduced at trial in this particular case was $96,000 below the government’s final appraisal and the final settlement offer made in accordance therewith. It would thus seem apparent that the government took the position in this case which sought to deprive the property owner of an amount less than the full amount of the government’s last appraisal. The government has failed to carry the burden of establishing that the position it took in this case was substantially justified.

VII

. In Parts V and VI above we have taken judicial notice of certain data in the Annual Reports of the Director of the Administrative Office of the United States Courts and of matters concerning the policies followed by the Department of Justice that relate to the amount of discretion vested in the offices of the various United States Attorneys throughout the federal system in regard to their lack of authority to settle the land condemnation cases in which they appear as counsel for the government. While there may be some doubt as to whether the data and matters discussed may properly be construed as “adjudicative facts” within the meaning of Rule 201 of the Federal Rules of Evidence, we believe that the parties should be afforded an opportunity to be heard in regard to the accuracy, propriety and tenor of the matters discussed in Parts V and VI of this memorandum opinion. We shall accordingly enter an order pursuant to Rule 201(e) which will provide the parties with an opportunity to be heard in regard to the matters discussed in Parts V and VI of this memorandum opinion.

We do not believe that there is any reasonable dispute about either the length of time land condemnation cases pend on the dockets of the various district courts discussed or about the settlement policies regularly followed by the Department of Justice. We now indicate, however, that for the sake of complete accuracy, the government is granted leave to attach copies of the applicable Department of Justice regulations to its response to the order to be entered and that this Court, in turn, will incorporate those regulations as a reference by - attaching the regulations as an appendix to our memorandum opinion.

.VIII.

We find and conclude that based upon the totality of the circumstances the government has failed to meet the burden of proving its position was substantially justified. We further find and conclude that the government has failed to explain the substantial disparities between the offer, the appraisals, and the government’s trial evidence as established under the undisputed factual circumstances of this case.

The landowners are therefore entitled to an award of costs, fees and expenses against the United States under the EAJA. The parties have stipulated that the appropriate amount of total fees and expenses is $22,380.00. We find and conclude that this is an appropriate amount.

Accordingly, it is

ORDERED (1) that the landowners’ motion to amend judgment should be granted and that such judgment should eventually be amended to include an award for the recovery of costs, fees and expenses against the United States under the Equal Access to Justice Act in the amount of $22,380.00. It is further

ORDERED (2) that before we enter an order that the judgment should be amended, we conclude that the parties should be afforded an opportunity to be heard in regard to the accuracy, propriety, and tenor of the judicial notice taken by this Court in Parts V and VI of this Court’s memorandum opinion. It is therefore

ORDERED (3) that on or before April 1, 1985, the parties shall prepare, serve, and file a response to this order which shall state whether they wish to be heard in regard to any of the matters discussed in Parts V and VI of this Court’s memorandum opinion. The government shall attach copies of all applicable Department of Justice regulations to the response it shall make in its response to this order.

APPENDIX A

Tracts 10102E, 10119E-1, 10119E-2, 10119E-3, 10119E-4, 10226E and 10226E-2

AFFIDAVIT

STATE OF MISSOURI

COUNTY OF CLAY

THOMAS E. BARZEE, JR., being first duly sworn on his oath states as follows:

1. That he is an attorney with the law firm of Williams & Barzee.

2. That he makes this affidavit in support of defendants’ pending Motion to Amend Judgment to Include an Award of Costs, Fees and Expenses Under 28 U.S.C. § 2412, as Amended by the Equal Access to Justice Act.

3. That for many years S. Preston Williams of said law firm has been representing landowners of property condemned for the construction and implementation of the Harry S. Truman Dam and Reservoir project.

4. That the undersigned has examined all files of said law firm regarding the condemnation of property for the Harry S. Truman Dam and Reservoir project and has made the following summary of all cases tried by this law firm:

Case No. Title Government’s Estimated Commissioners’ Percentage Compensation Award_Increase
17434-1 U.S. vs. 265.94 Acres of Land, etc. [Brownlee] $18,500.00 $30,000.00 62%
18483-1 U.S. vs. 407.23 Acres of Land, etc. [East] 6,150.00 13,000.00 111%
16697-1 U.S. vs. 939.25 Acres of Land, etc. [Foster] 11,700.00 17,500.00 50%
16820-1 U.S. vs. 579.36 Acres of Land, etc. [Smith] 17,900.00 29,000.00 62%
16999-3 U.S. vs. 939.25 Acres of Land, etc. [Goan] 66,200.00 105,900.00 60%
18421-1 U.S. vs. 1,162.65 Acres of Land, etc. [Gover] 63,600.00 88,500.00 39%
18416-1 U.S. vs. 1,162.65 Acres of Land, etc. [Earl Johnson] 12,150.00 19,000.00 56%
18956-1 U.S. vs. 620.65 Acres of Land, etc. [Martha Johnson] 12,500.00 25,000.00 100%
74 CV-395-W-1 U.S. vs. 305.66 Acres of Land, etc. [Virginia King] 34,000.00 71,650.00 111%
1527 U.S. vs. 614.50 Acres of ■Land, etc. [McKinzie] 57,325.00 82,000.00 43%
18481-1 U.S. vs. 407.23 Acres of Land, etc. [Smart] 34,000.00 57,000.00 68%
18420-1 U.S. vs. 1,162.65 Acres of Land, etc. [Stephens] 70,500.00 95,000.00 35%
73 CV-686-W-1 U.S. vs. 135.95 Acres of Land, etc. [Wharton] 44,000.00 70,000.00 59%
75 CV-493-W-1 U.S. vs. 192.14 Acres of Land, etc. [Birdwell] 31,250.00' 67,750.00 117%
74 CV-574-W-1 U.S. vs. 128.93 Acres of Land, etc. [Blakely] 22,500.00 47,800.00 112%
Case No. Title Government’s Estimated Commissioner’s Percentage Compensation Award_Increase
78-0178-CV-W-l U.S. vs. 114.15 Acres of Land, etc. [Demming] 22,500.00 47,500.00 111%
74 CV-685-W-1 U.S. vs. 0.84 Acres of Land, etc. [Elva Dunham] 2,725.00 3,250.00 19%
74 CV-448-W-1 U.S. vs. 0.72 Acres of Land, etc. [Thomas Dunham] 300.00 10,250.00 3,316%
75 CV-162-W-1 U.S. vs. 2.43 Acres of Land, etc. [Fitzhugh] 2,430.00 7,870.00 224%
74 CV-735-W-1 U.S. vs. 357.92 Acres of Land, etc. [Foote] 110,800.00 195,000.00 76%
75 CV-324-W-1 U.S. vs. 201.39 Acres of Land, etc. [Katherine Johnson] 43,640.00 73,000.00 67%
75 CV-651-W-1 U.S. vs. 1.61 Acres of Land, etc. [Kiefer] 1,000.00 4,350.00 335%
74 CV-438-W-1 U.S. vs. 144.65 Acres of Land, etc. [Park] 33,400.00 60,000.00 80%
75 CV-461-W-1 U.S. vs. 403.140 Acres of Land, etc. [Sikes] 99,300.00 161,000.00 62%
75 CV-845-W-1 U.S. vs. 10.26 Acres of Land, etc. [Thies] 12,250.00 27,600.00 125%
77- 0685-CV-W-l U.S. vs. 94.20 Acres of Land, etc. [Wildlifer’s Rod & Gun Club] 14,000.00 34,375.00 * 146%
75 CV-673-W-1 U.S. vs. 407.55 Acres of Land, etc. [Wisner] 197,600.00 255,000.00 29%
75 CV-158-W-1 U.S. vs. 0.93 Acres of Land, etc. [Zeiler] 700.00 11,800.00 1,586%
78- 0265-CV-W-l U.S. vs. 1.43 Acres of Land, etc. [Arnett] 1,700.00 29,500.00 1,635%
78-0251-CV-W-l U.S. vs. 324.50 Acres of Land, etc. [Bettler] 48,000.00 125,000.00 160%
77- 0787-CV-W-l U.S. vs. 0.62 Acres of Land, etc. [Breshears] 450.00 8,500.00 1,789%
78- 0337-CV-W-l U.S. vs. 3.12 Acres of Land [Bryant Johnson] 2,800.00 32,000.00 1,043%
76-CV-250-W-1 U.S. vs. 10.08 Acres of Land, etc. [Katherine Johnson] 3,500.00 16,700.00 377%
78-0430-CV-W-l U.S. vs. 272.10 Acres of Land, etc. [Allison] 38,300.00 85,000.00 122%
78-0517-CV-W-l U.S. vs. 87.23 Acres of Land, etc. [Grasher] 23,500.00 61,000.00 160%
78-0617-CV-W-l U.S. vs. 698.80 Acres of Land, etc. [Cauthon] 511,450.00 640,000.00 25%
Case No. Title Government’s Estimated Commissioners’ Percentage Compensation Award_ Increase
78-0856-CV-W-l U.S. vs. 38.18 Acres of Land, etc. [Northington] 14.425.00 16.500.00 14%
77- 0526-CV-W-l U.S. vs. 65.00 Acres of Land, etc. [Taylor] 9.750.00 22.800.00 * 134%
78- 0168-CV-W-l U.S. vs. 224.20 Acres of Land, etc. [Berrey] 56.250.00 88,500.00 57%
79- 0568-CV-W-l U.S. vs. 4.65 Acres of Land, etc. [Walker] 1.500.00 8,500.00 467%
78-5080-CV-W-l U.S. vs. 1,014.16 Acres of Land, etc. [Kelso] 96.980.00 276,000.00 185%

5. That he has not intentionally omitted any condemnation case tried by S. Preston Williams or said law firm regarding the Harry S. Truman Dam and Reservoir project, though it is possible a file has been inadvertently missed and, therefore not reviewed.

Further, affiant sayeth not.

THOMAS E. BARZEE, JR.

Subscribed and sworn to before me, the undersigned Notary Public, this 7th day of September, 1984.

Notary Public

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ON MOTION FOR RECONSIDERATION

On March 20, 1985 this Court filed Memorandum and Orders ruling that the landowners’ motion to amend judgment should be granted and that judgment should eventually be amended to include an award for the recovery of costs, fees and expenses against the United States under the Equal Access to Justice Act in the amount of $22,380.00. We afforded the parties an opportunity to be heard prior to entering such an order amending judgment in regard to the accuracy, propriety, and tenor of the judicial notice taken by this Court in this Court’s memorandum opinion.

On March 28, 1985 plaintiff filed a motion for reconsideration of the Memorandum and Orders of March 20. On April 2, 1985 defendants filed a response to the Memorandum and Orders and reply to plaintiff’s motion for reconsideration. On April 15, 1985 plaintiff filed a response to this Court’s Memorandum and Orders of March 20 which included various affidavits, reports and regulations. A final reply was filed by defendants on May 30,1985 and by plaintiff on June 7, 1985.

We have considered thé suggestions filed in support of and in opposition to the memorandum opinion and plaintiff’s pending motion. We conclude that orders should be entered amending judgment to include an award for the recovery of costs, fees and expenses against the United States under the Equal Access to Justice Act in the amount of $22,380.00 and denying plaintiff’s motion for reconsideration.

We need add only a word in regard to one of the arguments made by the government in support of its position. The government’s April 15, 1985 response makes reference to its more “recent and currently prevailing position” in regard to whether all condemnation actions should be tried before a jury. It may be assumed that the government has, at long last, had a change of heart in that regard. But that change of heart does not support the notion that the government has adopted policies which are designed to vest real authority in the United States Attorneys in charge of the condemnation docket to negotiate the settlement of condemnation cases.

For it is clear that all of the apparent authority vested by the regulations attached to the government’s April 15, 1985 response is effectively limited by the real authority to settle. Section 5-4.630 of the United States Attorney’s Manual (March 19, 1984) which provides that a United States Attorney may settle a land condemnation case if, but only if,

The settlement is approved in writing (the written approval to be retained in the file of the U.S. Attorney concerned) by the authorized field representative of the acquiring agency if the amount of the settlement exceeds the amount deposited with the declaration of taking as to the particular tract of land involved.

Under that regulation “the authorized field representative of the acquiring agency” rather than the United States Attorney has the real power to authorize the settlement of a land condemnation case. The track record in regard to the manner in which the power and authority have been exercised by the acquiring agency in the Truman Dam project demonstrates that the amount deposited with the declaration of taking is consistently well below the fair market value of the land. Furthermore, the agency consistently refuses, as it did in this particular case, to authorize the United States Attorney to negotiate a settlement consistent with the awards made after trial in generally comparable cases.

Accordingly, it is

ORDERED (1) that judgment should be amended to include an award for the recovery of costs, fees and expenses against the United States under the Equal Access to Justice Act in the amount of $22,380.00. It is further

ORDERED (2) that plaintiff’s motion for reconsideration of the Memorandum and Orders of March 20, 1985 should be and is hereby denied.

      . In 1979, at a time when this Court had a docket of approximately 250 land condemnation cases, the Department of Justice did authorize a temporary change in its procedures under which authorization for the settlement of land condemnation cases could be obtained on the district court level. Although those temporary procedures successfully produced a substantial reduction in this district’s pending land condemnation cases by settlement, such authority was withdrawn and the Department made no change in its regulations on a permanent basis.

       All figures represent a commissioners’ award except those marked with an asterisk (*), in' which case the matter was tried to a Special Master appointed by this Court.

       All figures represent a commissioners’ award except those marked with an asterisk (*), in which case the matter was tried to a Special Master appointed by this Court.

       Though the landowners only received a 19% increase in this case, the commissioners’ award is the exact amount of just compensation testified to by the landowners’ expert witness.

       All figures represent a commissioners’ award except those marked with an asterisk (*), in which case the matter was tried to a Special Master appointed by this Court.


source: Caselaw Access Project

author: FITZGERALD, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. TOM-KAT DEVELOPMENT, INC., Defendant.
    No. A84-048 Civil.
    United States District Court, D. Alaska.
    March 26, 1985.
    Michael R. Spaan, U.S. Atty., Anchorage, Alaska, for plaintiff.
    Robert Casey, Anchorage, Alaska, for defendant.
   OPINION

FITZGERALD, Chief Judge.

In this case, the United States of America (the government) seeks damages for defendant’s (Tom-Kat’s) alleged violations of § 301(a) of the Clean Water Act (CWA or Act), 33 U.S.C. § 1311(a), brought about during Tom-Kat’s operation of a placer mine near Ferry, Alaska. On September 19, 1984, Tom-Kat filed a motion for summary judgment as to both liability and damages. On November 7, 1984, the government cross-moved for summary judgment solely on the issue of Tom-Kat’s liability.

Hearing was held on Tom-Kat’s summary judgment motion on February 19, 1985. After considering the arguments presented, the papers submitted and the pertinent case law, I conclude that Tom-Kat is precluded from a grant of summary judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983).

In 1972, Congress amended the Federal Water Pollution Control Act, renamed the statute the Clean Water Act, and, for the first time preempted the states in regulating water pollution. The goal of the CWA is to eliminate the discharge of pollutants into navigable waters. 33 U.S.C. § 1251(a) and (b). Except as permitted under certain exceptions, “the discharge of any pollutant by any person shall be unlawful.” Id. § 1311(a). One exception is granted for discharges allowed by a National Pollutant Discharge Elimination System (NPDES) permit issued by the Environmental Protection Agency (EPA). Id. § 1342. The “discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source” Id. § 1362(12). Every identifiable point that emits pollution is a point source which must be authorized by a NPDES permit issued by EPA. United States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir.1979); 40 C.F.R. § 122.-1(b)(1); E.g. Legal Environmental Assistance Foundation, Inc. v. Hodel, 586 F.Supp. 1163, 1168 (E.D.Tenn.1984); United States v. Saint Bernard Parish, 589 F.Supp. 617 (E.D.La.1984).

In support of its motion for summary judgment in this case, Tom-Kat argues that § 1342 of the CWA did not require TomKat to obtain a NPDES permit before discharging any pollutants through its placer mining operations. Rather, it is argued, the Act merely created a discretionary duty in the Secretary to issue such permits. Because Tom-Kat allegedly made all reasonable efforts to secure the requisite permits from EPA, Tom-Kat claims it was entitled to continue its polluting activities free from liability under the provisions of the CWA.

A review of recent case law covering this aspect of the nation’s water pollution law reveals that Tom-Kat has fundamentally misunderstood the broad goals of the CWA and the stringent provisions passed by Congress to enforce it. As Judge von der Heydt noted in Kitlutsisti v. Arco Alaska, Inc., 592 F.Supp. 832 (D. Alaska 1984), the CWA’s requirement that all discharges covered by the statute must have a NPDES permit “is unconditional and absolute. Any discharge except pursuant to a permit is illegal. ” Id. at 839 (emphasis added). See Trustees for Alaska v. E.P.A., 749 F.2d 549, 558 (9th Cir.1984); Milwaukee v. Illinois, 451 U.S. 304, 310-11, 101 S.Ct. 1784, 1788-89, 68 L.Ed.2d 114 (1981); National Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1375 (D.C.Cir.1977); see also Weinberger v. Romero-Barcelo, 456 U.S. 305, 319, 102 S.Ct. 1798, 1806, 72 L.Ed.2d 91 (1982).

Nor does the allegation that TomKat made all good faith efforts to acquire the requisite permits from EPA absolve or reduce its potential liability for violations of the CWA. “The regulatory provisions of the [Clean Water Act] were written without regard to intentionality ... making the person responsible for the discharge of any pollutant strictly liable.” United States v. Earth Sciences, 599 F.2d at 374 (emphasis added). See also United States v. Saint Bernard Parish, 589 F.Supp. at 619.

Because Tom-Kat is not entitled to a judgment as a matter of law, its motion for summary judgment must fail.

IT IS THEREFORE ORDERED that Tom-Kat’s motion for summary judgment is DENIED.

DATED at Anchorage, Alaska, this 1st day of March, 1985.

SUPPLEMENTAL OPINION

On March 1, 1985, I denied defendant Tom-Kat’s motion for summary judgment as to Tom-Kat’s potential liability for operation of a placer mining facility near Ferry, Alaska, without the requisite federal NPDES permit. In my Memorandum and Order, I rejected Tom-Kat’s argument that its alleged good-faith efforts to acquire such a permit shielded it from liability for violations of the Clean Water Act (CWA or Act). On March 12, 1985, Tom-Kat indicated some uncertainty as to whether I had ruled on its claim that the government lacked standing to bring this lawsuit.

Standing is a threshold determination. “The requirement of standing ‘focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 484, 102 S.Ct. 752, 765, 70 L.Ed.2d 700 (1982). In reaching the merits of the claims brought by the government in this case, I implicitly concluded that the government possessed standing to bring an action against Tom-Kat for alleged violations of the CWA.

In so holding, I rejected Tom-Kat’s intricate argument that § 309 of the Act, when read in conjunction with its legislative history, divested the Environmental Protection Agency (EPA) of standing to bring suit against alleged violators of the CWA who had properly applied for a NPDES permit. Section 309, entitled “Enforcement,” establishes the responsibility of the Administrator of EPA to ensure that the requirements of the CWA are met. In arguing that § 309 created a “liability shield” for Tom-Kat in suits brought by EPA, Tom-Kat relies on the following reference to § 309 made in Senate Report No. 92-414:

It should be noted that the Administrator is partially limited in acting under Section 301(a). The Administrator is precluded from acting where the allegation is for failure to acquire a necessary permit under Section 402, if the owner or operator of a discharge has filed an application for such required permit____
The distinction between enforcement for violation of an unlawful discharge and enforcement for operating without a required permit under Section 402 is intended to cause the Administrator to act expeditiously to issue permits under Section 402____

S.Rep. No. 414, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad. News 3668, 3729-30.

Tom-Kat argues that this legislative history unequivocally demonstrates Congress’ intent that EPA be divested of authority to sue alleged violators of § 402’s permit requirements so long as “the owner or operator of a discharge has filed an application for such required permit.” Claiming that it has filed for the requisite NPDES permit, Tom-Kat avers that § 309 completely shields it from government prosecution of its alleged unpermitted pollution discharges.

Although the statements made in Senate Report No. 92-414 about § 309 considered in a vacuum might lead to the conclusion that Congress created a major loophole in the strict permit requirements set forth in § 402 of the Act, plain reading of § 309’s statutory language reveals no such broad exception. Indeed, the only language even remotely creating such a liability shield merely states that the Administrator of EPA may, in his discretion, grant a limited time extension within which an alleged violator must meet any effluent limitations promulgated pursuant to the Act’s requirements.

Tom-Kat’s reliance on the scant legislative history of § 309 as sufficient proof that it was shielded from liability for contravention of § 402’s requirement is misplaced. The Ninth Circuit has often noted that the legislative history should not be used as a guide if the statute’s language is “plain and unambiguous on its face.” United States v. Mehrmanesh, 689 F.2d 822 (9th Cir.1982); see also United States v. American Trucking Associations, 310 U.S. 534, 543-44, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940), where the Supreme Court noted that

“[tjhere is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have
followed their plain meaning____”

In short, the proper function of legislative history is “to solve, not create, an ambiguity.” United States v. Rone, 598 F.2d 564, 569 (9th Cir.1979). As no such ambiguity exists in § 309’s terms,. Tom-Kat’s argument that this provision implicitly divested EPA of standing to sue for TomKat’s alleged violations of § 402 must fail.

Nor, as Tom-Kat conceded, does the limited liability shield expressly created in § 402 of the Act provide Tom-Kat with any limitation of liability here. Unlike § 309, subsection (k) of § 402 specifically provides that “until December 31, 1974, in any ease where a permit for discharge has been applied for pursuant to this section, but final administrative disposition of such application has not been made, such discharge shall not be a violation of [the pertinent requirements] of the Act.” 33 U.S.C. § 1342(k)(1982)(emphasis added). Plain reading of § 402, in direct contrast to § 309, reveals a congressional intent to create a limited liability shield for alleged violators of the Act who properly applied for the required NPDES permit up until December 31, 1974. Tom-Kat clearly does not fall within this limited liability provision, as it admittedly did not apply for a NPDES permit until 1979, four years after § 402’s liability shield elapsed. See Affidavit of Burton Carver, President of Tom-Kat, at 2 (filed Sept. 19, 1984). Thus, the express language of § 402(k), like that of § 309, does not limit EPA’s authority to seek judicial redress for Tom-Kat’s alleged violations of the permit requirements of the CWA during the 1982 and 1983 mining seasons.

      . 33 U.S.C. § 1319(a)-(f) (1982).

      . In concluding that Tom-Kat’s act of applying for the requisite federal permit did not statutorily prevent EPA from instituting this action against Tom-Kat, the court does not mean to imply it countenances EPA’s apparent failure to process Tom-Kat’s application in an expeditious manner. Had Tom-Kat petitioned the court for mandamus to require EPA to reach a determination on Tom-Kat’s permit request, I may well have concluded such an action had merit. Tom-Kat did not seek such relief, however. See, e.g., Work v. United States ex rel. Rives, 267 U.S. 175, 45 S.Ct. 252, 69 L.Ed. 561 (1925); Pattillo v. Schlesinger, 625 F.2d 262 (9th Cir.1980).

      . This section also mandates various procedures the Administrator of EPA must follow in exercising the enforcement authority vested in him under the Act. See, e.g., Work v. United States ex rel. Rives, 267 U.S. 175, 45 S.Ct. 252, 69 L.Ed. 561 (1925); Pattillo v. Schlesinger, 625 F.2d 262 (9th Cir.1980).

      . Tom-Kat concedes that this provision in no way limits the standing of private citizens to bring enforcement actions under the "citizen suits" provision of the Act. See 33 U.S.C. § 1365 (1982).

      . See 33 U.S.C. § 1319(a)(5)(B)(iii) (1982).

      . In so holding, I note here that I have considered the cases cited by Tom-Kat as authority for its argument that EPA lacks standing in this case. In addition to being decisions from outside this circuit, I have found neither United States v. GAF Corp., 389 F.Supp. 1379 (S.D.Tex. 1975), nor United States v. Frezzo Brothers, Inc., 602 F.2d 1123 (3d Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980), to be dispositive of the standing issue raised by Tom-Kat.


author: PHILIP PRATT, District Judge.

text:
    DUNHAM’S, INC., Plaintiff, v. NATIONAL BUYING SYNDICATE OF TEXAS, a Texas Corporation, Michigan Sporting Goods Distributors, Inc., a Michigan Corporation, Figgine International Company, an Ohio Corporation, jointly and severally, Defendants.
    No. 84-CV-3331-DT.
    United States District Court, E.D. Michigan, S.D.
    March 28, 1985.

      William J. Lamping, Birmingham, Mich., Robert V. Seymour, Southfield, Mich., Carl F. Erickson, Birmingham, Mich., for plaintiff.
    Michael H. Jacobson, McShane & Bowie, Grand Rapids, Mich., John G. Truelson, Fort Worth, Tex., John J. Lynch, Birmingham, Mich., Walter O. Koch, Bodman, Longley & Dahling, Troy, Mich., Kenneth Peterson, Akron, Ohio, for defendants.
   MEMORANDUM OPINION AND ORDER

PHILIP PRATT, District Judge.

The question presented is whether this court has personal jurisdiction over a nonresident corporate defendant — National Buying Syndicate of Texas (NBS).

I.

This is an antitrust case. The plaintiff here, Dunham’s Inc., a Michigan corporation, is a retail seller of sporting goods. Three separate defendants are named: NBS, a Texas corporation; Michigan Sporting Goods Distributors, Inc. (MC Sporting Goods), a Michigan corporation; and Figgie International Company, an Ohio corporation.

Plaintiff commenced this action on July 19, 1984, alleging violations of the Sherman Act, 15 U.S.C. §§ 1, 4, 5, the Clayton Act, 15 U.S.C. § 16, and the Robinson-Patman Act, 15 U.S.C. § 13. It is alleged that the defendants conspired and participated in unlawful price discrimination and restraint of trade.

II.

NBS operates a syndicate or buying group composed of various sporting goods retailers throughout the United States. NBS advertises that it has members in 47 states. The buying syndicate operates in the following manner. It purchases, or arranges for purchases, of sporting goods merchandise between manufacturers or wholesalers and members of the NBS buying syndicate. These purchases are made in large quantity at discounted prices. Therefore, NBS members are able to buy these goods at prices less than what they would have to pay wholesalers in the normal course of their business. By obtaining merchandise at discount prices, NBS members are able to sell their goods at more competitive prices while still making an attractive profit. In short, NBS’s operation apparently offers members the opportunity to buy merchandise at lower than normal prices and thereby gain a competitive advantage in the marketplace over non-NBS member retailers.

It is essential to understand NBS’s mode of operation insofar as it can be gleaned from the parties’ submissions. A letter and brochure sent to plaintiff by NBS on December 28, 1983 explains the NBS membership requirements and operations. Plaintiff’s Exhibit A. NBS members are required to pay a one-time initiation fee of $1,000. In addition to this, members must pay monthly dues of $175. There are also certain registration fees of $150 per member.

In addition to the dues obligations of a member, NBS has established financial criteria which must be satisfied before NBS membership is granted. These include a satisfactory Dun & Bradstreet financial rating, a minimum level of retail sales in sporting goods merchandise and several other requirements. NBS members purchase most of their merchandise during semi-annual buying markets held in Fort Worth, Texas. Vendors that represent manufacturers and wholesalers of sporting goods equipment exhibit and sell their goods at these shows.

When NBS members order merchandise, they are required to use “NBS purchase orders for all Syndicate orders.” According to NBS procedures, the NBS office in Fort Worth must be sent a copy of all purchase orders on a weekly basis. Additionally, copies of all correspondence or letters “related to Syndicate orders” must be sent to the NBS office once a week. Plaintiff’s Exhibit E.

With standard NBS sales, the vendor bills all merchandise to NBS. The merchandise itself, however, is drop-shipped to the ordering member. In turn, the member then pays the vendor directly rather than going through NBS. Plaintiffs Exhibit E. On occasion, with what NBS calls “exceptional deals,” merchandise will be shipped to one of the NBS warehouses. When this is done, the merchandise is then reshipped to NBS members which have ordered the goods. NBS itself must pay for these “exceptional deals” with its own check. Members must then reimburse NBS for these goods directly instead of paying the vendor.

Plaintiff applied for NBS membership in December of 1983. Its application was denied. Plaintiff contends:

Acting pursuant to Defendant Syndicate’s policies and practices ... and in combination and conspiracy with other persons including, without limitation, retailers who are members of Defendant Syndicate, Defendant Syndicate denied, excluded and barred Plaintiff Dunham’s from membership in Defendant Syndicate.
As a direct and proximate result of being denied, vetoed and barred from membership in Defendant Syndicate, Plaintiff Dunham’s has been denied the benefits of such membership, including without limitation, the extremely large and extraordinary price and volume discounts, reduced prices, favorable terms and other benefits ... and Plaintiff Dunham’s has been limited, restrained and injured in its ability to compete.

Plaintiff seeks both money damages and equitable relief for defendants’ alleged antitrust violations.

III.

This matter is now before the court on defendant NBS’s motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(2), (5), on the ground that this court lacks personal jurisdiction over it because the requisite minimum contacts do not exist with the forum state.

It is plaintiff’s position that the requirement of “minimum contacts” is irrelevant when subject matter jurisdiction is based on a federal statute rather than on diversity of citizenship. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1956). Defendant, on the other hand, contends that this court must engage in some type of “minimum, contacts” analysis to determine whether NBS is amenable to suit in the forum state.

In International Shoe and its progeny, McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and World-Wide Volkswagen v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The U.S. Supreme Court articulated the constitutional due process limitations on in personam jurisdiction. These cases state that a nonresident defendant’s contacts or ties with the forum state must make it “reasonable and just” to permit that state to exercise jurisdiction over the defendant. International Shoe, 326 U.S. at 320, 66 S.Ct. at 160. The fourteenth amendment’s due process clause limits a state’s jurisdiction over nonresident defendants to those situations in which exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice.” 326 U.S. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)).

If jurisdiction in this case had been predicated on diversity of citizenship pursuant to 28 U.S.C. § 1332, there would have been no argument from counsel that an International Shoe “minimum contacts” analysis would be necessary. But jurisdiction here is based on federal antitrust statutes, supra. The parties’ disagreement on the “minimum contacts” question is further complicated by the fact that in an antitrust action, nationwide service of process is permitted on corporate defendants. 15 U.S.C. § 22. Therefore, the question this court must decide is whether an International Shoe minimum contacts analysis must be undertaken when jurisdiction is predicated on federal antitrust statutes and nationwide service of process is provided for over the corporate defendants.

This question has generated much debate among the courts and scholars. See generally, Hovenkamp, Personal Jurisdiction and Venue in Private Antitrust Actions in the Federal Courts: A Policy Analysis, 67 Iowa L.Rev. 485, 487 (1982). Note, Alien Corporations and Aggregate Contacts: A Genuinely Federal Jurisdictional Standard, 95 Harv.L.Rev., 470 (1981). The Supreme Court has not addressed this issue. In United States v. Scophony Corp., 333 U.S. 795, 68 S.Ct. 855, 92 L.Ed. 1091 (1948), the Court noted that it would not define the outer limits of Congress’ authority to compel a defendant to defend a suit in a distant forum. Id. at 804, 68 S.Ct. at 860. The Court said:

[T]he government, however, suggests that, in view of our recent decision in International Shoe [citation omitted] which was concerned with the jurisdiction of a state over a foreign corporation for purposes of suit ..., and in view of aspects of similarity between that problem and the one now presented, we extend to this case and to § 12 [Clayton Act] the criteria there formulated and applied. There is no necessity for doing so ... [W]e are not concerned here with finding the utmost reach of Congress’ power.

Id. at 804 n. 13, 68 S.Ct. at 860 n. 13.

In the years following Scophony, federal courts have faced this issue with considerable uncertainty. The results, understandably, have been inconsistent. See generally, Superior Coal Co. v. Ruhrkohle, A.G., 83 F.R.D. 414, 418 (E.D.Pa.1979); Logiurato v. Action, 490 F.Supp. 84, 89-90 (D.D.C.1980); Edward J. Moriarty & Co. v. General Tire & Rubber Co., 289 F.Supp. 381, 390 (S.D.Ohio 1967); Lone Star Package Car Co. v. Baltimore and Ohio Ry. Co., 212 F.2d 147, 155 (5th Cir.1954).

The Sixth Circuit Court of Appeals spoke to the personal jurisdiction issue in federal question cases in Haile v. Henderson National Bank, 657 F.2d 816 (6th Cir.), cert. denied, 455 U.S. 1172, 102 S.Ct. 1450, 71 L.Ed.2d 663 (1981). The court determined that the International Shoe minimum contacts analysis “becomes inapposite” when Congress has provided for nationwide service of process. 657 F.2d at 826 n. 10. At issue in Haile was “whether the minimum contacts analysis of International Shoe [citation omitted] and its progeny properly applies to ancillary actions and proceedings brought by a federal receiver ...” Id. at 817.

The court reviewed the traditional two-step analysis whereby federal courts sitting in diversity first determine whether a state long-arm service of process exists, and then whether requiring the defendant to appear in the forum is consistent with due process principles. Id. at 822. Further, the court said it was unable to find any cases applying the minimum contact-due process test in situations involving federal receivership statutes and nonresident defendants. In making its ruling, the court’s rationale was based on the fact that an ancillary receivership action does not involve a court attempting to extend its power beyond its own territorial limitations through a state’s long-arm statute. Instead, the court reasoned, a different analysis must be applied.

First, an ancillary receivership action is not an exercise of extra-territorial jurisdiction; and second, the territorial limits of the appointment court’s effective service of process are extended to any district to which its territorial jurisdiction has been expanded by the presence in that district of property belonging to the receivership estate [emphasis added].

Id. at 823.

The Sixth Circuit’s analysis in Haile was based, in large part, on the First Circuit case of Driver v. Helms, 74 F.R.D. 382, (D.R.I.1977), modified on other grounds, 577 F.2d 147 (1st Cir.1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1978). In that case, defendants, who were nonresidents, were served under a nationwide service of process statute, 28 U.S.C. § 1391(e). Defendants argued that the court could not exercise its personal jurisdiction over them based on due process grounds. While rejecting this argument, the court said that since Congress specifically authorized personal jurisdiction over defendants located anywhere in the United States in 28 U.S.C. § 1391(e), personal jurisdiction over the defendants was proper. A portion of the district court opinion, not reversed by the First Circuit, is especially pertinent to the question presented in the present case. In relevant part, the court stated: 74 F.R.D. at 390-91.

However, Congress may provide for national service of process, i.e., national exercise of personal jurisdiction by each of the district courts based on presence of the defendant in the United States, rather than in any particular state, [citations omitted]. When Congress does so provide, the district court’s service is not constrained by the due process (International Shoe, Hanson v. Denckla) limits to which state courts are subject, [citation omitted]. Instead, the due process limitation on national service of process is found by inquiring into the fairness of such jurisdiction in the particular circumstances and facts of the case at hand, an inquiry mandated by the Fifth Amendment Due Process Clause.
The Court believes that the exercise of national personal jurisdiction pursuant to § 1391(e) here is consistent with the applicable due process test. In Mariash v. Morill [496 F.2d 1138 (2nd Cir.1974) ] ... the Second Circuit held that Congressionally authorized national jurisdiction satisfied due process if it was based on service calculated to inform the defendant
of the proceeding in order that he may take advantage of the opportunity to be heard. As Chief Judge Kaufman noted ... nationwide service of process, when authorized by Congress, is not extra-territorial at all. Therefore, the due process limitation on such process should be precisely the limitations applicable on a state’s process within its territorial limits: notice calculated to inform the defendant of the pendency of the suit, [citation omitted].

Under this rationale, the Haile court concluded that the proper inquiry is whether service was “reasonably calculated” to inform the defendants of the action against them so that they might have an opportunity to be heard, rather than an analysis under the International Shoe line of cases. The court held: “In an action where service of process is effected pursuant to a federal statute which provides for nationwide service of process, the strictures of International Shoe do not apply.” 657 F.2d at 824. Because the statute involved in Haile, 28 U.S.C. § 1692, provided for nationwide service of process, the court’s process extended to any district where receivership property could be found. “As such,” the court stated, “the minimum contacts analysis, as a limitation on state extra-territorial power, is simply inapposite.” 657 F.2d at 825-26.

The crucial distinction between Haile and the present case is that Haile involved a nationwide service of process statute which was based on the presence of receivership property in the jurisdiction. Such a statute is not before the court in the present case. Instead, section 12 of the Clayton Act must be evaluated under the analysis set forth in Haile. Section 12 provides that venue in an antitrust action is proper “not only in the judicial district whereof it [defendant corporation] is an inhabitant, but also in any district wherein it may be found or transacts business ...” 15 U.S.C. § 22.

A second, though related, distinction must also be noted. Haile involved an ancillary receivership action. In contrast, the violations alleged here relate to unfair competition and price discrimination — alleged violations of the antitrust laws. The nature or pervasiveness of the injuries alleged in the present case are fundamentally different from those in Haile. Unlike other kinds of finite injuries, the effect of an antitrust violation is not limited to the parties involved in a given transaction. By its own nature, an antitrust violation is more pervasive and intrusive than almost any other type of legal wrong. An underlying concern is the public interest. The welfare of the public as it relates to free competition in the marketplace is vital with any antitrust injury. The sort of injury caused by an antitrust violation played a major factor in the promulgation of section 12 of the Clayton Act. See generally Eastman Kodak Co, v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927).

In addition to the reasoning and distinctions involved with the Haile case, the Sixth Circuit’s analysis in Chrysler Corp. v. Fedders Corp., 643 F.2d 1229 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981) is also instructive. Here the court recognized that jurisdiction over a nonresident corporate defendant being sued on a federal cause of action may be “founded on the corporation’s contacts with the United States as a whole as opposed to its contacts with the forum state.” 643 F.2d at 1237.

The suit in Chrysler was brought under the Clayton Act, as in the present case, where nationwide service of process is provided for under section 12. “It may be neither unfair nor unreasonable as a matter of due process [fifth amendment] to aggregate the nonforum contacts of an alien corporate defendant in order to establish personal jurisdiction.” 643 F.2d at 1238. The court did not reach this issue because it was not determined whether the defendant had sufficient contacts with the United States as a whole to support exercise of personal jurisdiction. Id. at 1238-39. Acknowledging that several courts have adopted this aggregate contacts theory of personal jurisdiction, the Sixth Circuit noted that there is no specific statutory authority for it and declined to decide “whether the ‘aggregate contacts’ theory is consistent with the due process of the Fifth Amendment.” Id.

If, however, such an aggregate or nonforum contact analysis applied to the present case, there would be no question that NBS had “minimum contacts” with the United States as a whole, so as to satisfy due process requirements under the fifth amendment. By its own admission, NBS has syndicate members in 47 states; it is incorporated under the laws of Texas; it operates its business in Fort Worth; it has employees in Fort Worth; NBS warehouses are located in several other jurisdictions; it conducts semi-annual buying shows in Fort Worth and members from the various states attend those shows for buying purposes; and the corporate functions of NBS are apparently based in Fort Worth. It is doubtful that NBS would contend that it did not have minimum contacts with the United States as a whole.

The most recent word from the Sixth Circuit on this question is Handley v. Indiana & Michigan Electric Co., 732 F.2d 1265 (6th Cir.1984). In that case, the court conceded that the personal jurisdiction issue arises generally when subject matter jurisdiction is based on diversity of citizenship. But when the personal jurisdiction of a federal court over a nonresident of the forum state is challenged in which subject matter jurisdiction is based on a federal statute, “a different inquiry must be made.” 732 F.2d at 1268. The court said:

As part of a national system of courts a federal district court considering a case that arises under federal law is not subject to precisely the same due process limitations which restrict its reach in diversity cases. It is clear, however, that Rule 4, Fed.R.Civ.P., affects personal jurisdiction of district courts by placing territorial limits on their process.

Id.

Unlike the instant ease, the action in Handley was based on the Jones Act and general maritime law. The Jones Act does not have a provision for nationwide service, such as the Clayton Act; therefore the court borrowed the forum state’s long arm statute and applied a minimum contacts analysis. 732 F.2d at 1270. Thus, Handley is not precisely on point.

Although the Haile decision, supra, by which this court is bound, has been disfavored by commentators, its teachings apply to the present case. In a federal antitrust action, such as here, the court’s determination concerning personal jurisdiction is guided by the national standards of due process under the fifth amendment. An International Shoe “minimum contacts” analysis need not be performed under these circumstances. Haile, 657 F.2d at 824. The pertinent inquiry here is whether service was reasonably calculated to inform defendants of the pendency of the action against them so that they would have an opportunity to present a defense to the charges pending. Haile, 657 F.2d at 826, Mullane v. Central Hanover Bank and Trust, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

In order to give proper notice, service of process must be made in a manner consistent with Rule 4, Fed.R.Civ.P. When Congress provides a statutory basis for nationwide service of process, such as section 12 of the Clayton Act, and does not provide the specific manner of service, Rule 4(e) states that service may be made “in a manner stated in this rule.”

Section 12 of the Clayton Act codified at 15 U.S.C. § 22, provides for venue and nationwide service of process. It states:

Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.

The statute does not expressly mention the exercise of personal jurisdiction. It has, however, been interpreted to permit federal courts to exercise personal jurisdiction over defendants located in the United States. Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty, Ltd., 647 F.2d 200, 204 n. 6. (D.C.Cir.1981); U.S. v. Asbestos Corp., 34 F.2d 182 (2d Cir.1929)

Defendant NBS does not challenge the manner of service in this matter. It is uncontested that it had notice of these proceedings and an opportunity to present its defenses to the action pending.

IV.

The remaining question is whether suit may be brought against NBS in the Eastern District of Michigan. The resolution of this issue turns on whether NBS “transacts business” within the district.

When analyzing the “transacting business” portion of section 12, the starting point is Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927). Here the Court explained the underpinnings of the “transacting business” test.

[T]his section ... relieves] the injured person from the necessity of resorting for the redress of wrongs committed by a non-resident corporation, to a district, however distant, in which it resides or may be “found” — often an insuperable obstacle — and enabling him to institute the suit in a district, frequently that of his own residence, in which the corporation in fact transacts business, and bring it before the court by the service of process in a district in which it resides or may be “found.”

Id. at 373-74, 47 S.Ct. at 403-404. In interpreting the Eastman Kodak case, the Court stated that section 12 “substitut[ed] practical, business conceptions for the previous hair-splitting legal technicalities ...” United States v. Scophony, 333 U.S. 795, 808, 68 S.Ct. 855, 862, 92 L.Ed. 1091 (1947).

In cases decided since Eastman Kodak and Scophony, it has been made clear that the phrase “transacts business” has a broader, more expansive definition than terms such as “doing business” or “carrying on business.” Crusader Marine Corp. v. Chrysler Corp., 281 F.Supp. 802, 803-04 (E.D.Mich.1968) (J. Levin). A number of principles have developed since Scophony which bear on the present case. Purchasing activity, as well as sales activity, has been held to constitute the transaction of business within section 12 of the Clayton Act. Black v. Acme Markets Inc., 564 F.2d 681, 687 (5th Cir.1977); Board of County Comm’rs v. Wilshire Oil Co. of Texas, 523 F.2d 125, 129-30 (10th Cir.1975); Crusader Marine Corp., 281 F.Supp. at 804.

In addition, the amount of the business transacted must be judged from the “standpoint of the average businessman” rather than from the perspective of a large corporation. In In Re Chicken Antitrust Litigation, 407 F.Supp. 1285 (N.D.Ga. 1975), the court said that when determining whether a defendant transacts business within the district, the amount of business must be viewed without comparison to the total volume of business done by the defendant corporation. Id. at 1291. See also Green v. U.S. Chewing Gum Mfg. Co., 224 F.2d 369 (5th Cir.1955).

Furthermore, the activities which constitute the transaction of business need not be related to the subject matter of the litigation. King v. Johnson Wax Associates, Inc., 565 F.Supp. 711 (D.C.Md.1983); In Re Chicken Antitrust Litigation, 407 F.Supp. at 1292. McCory v. Cloth World, Inc., 378 F.Supp. 322 (S.D.N.Y.1974); National Auto Brokers Corp. v. General Motors Corp., 332 F.Supp. 280 (S.D.N.Y.1971); Crusader Marine Corp., 281 F.Supp. at 802. Then, too, it is generally held that the concept of “transacting business” is more lenient than that of “minimum contacts” under International Shoe. Athletes Foot of Delaware, Inc. v. Ralph Libonati Co. 445 F.Supp. 35, 45 (D.Del.1977). But see Cascade Steel Rolling Mills v. Itoh & Co., 499 F.Supp. 829, 835 (D.Or.1980); Smokey’s of Tulsa, Inc. v. American Honda Motor Co., 453 F.Supp. 1265 (E.D.Okla.1978).

With these rather general guidelines in mind, the substantiality of the defendants’ business within the Eastern District of Michigan must be evaluated. This presents the court with a difficult question. Counsel for the parties have submitted contradictory affidavits on this point, while not addressing this question during oral arguments.

From the submissions of counsel, the court has been able to ascertain the following. Although NBS argues that it does not have any “employees, officers or agents stationed in the State of Michigan,” much contrary evidence is submitted by plaintiff. In fact, NBS’s own letterhead lists Mort Finkelstein of Grand Rapids, Michigan as an NBS buyer. A NBS brochure indicates that Mr. Finkelstein and Art Nasso, also of Grand Rapids, function as associate buyers for NBS. Plaintiff’s Exhibit C.

The affidavit of Mr. Finkelstein is self-serving. He states that NBS does not transact business in Michigan. Further, he states that his position with NBS is limited to analyzing, reviewing and surveying sporting goods products. He does not state where and with whom his NBS duties are conducted. An affidavit of Raymond Schneider, President of Schneider’s Sports, a Michigan corporation, describes Mr. Finkelstein’s duties as more expansive. Mr. Schneider’s stores are past members of the NBS syndicate. He stated that Mr. Finkelstein explores “the market to determine which manufacturers would cooperate with NBS ...” Additionally, Mr. Schneider said that Mr. Finkelstein obtained price and term quotations from manufacturers whose merchandise would be offered to NBS members.

NBS’s own admissions also suggest that it “transacts business” within this district. There are presently 17 NBS members within the state. According to NBS’s guidelines, supra, members must keep the NBS office in Fort Worth apprised of all relevant transactions by sending it copies or purchase orders and other pertinent documents. Plaintiff’s Exhibit E. This involves a constant flow of paperwork from member outlets in the Eastern District of Michigan to NBS headquarters in Fort Worth.

Another factor showing the transaction of business here is the dues and commissions NBS receives from area members. As discussed supra, NBS members must pay a $1,000 initiation fee, a $175 monthly dues payment, and several other fees which benefit NBS. The substantiality of the fees NBS receives from Michigan members, although not dispositive, is an important consideration. In Re Chicken Antitrust Litigation, 407 F.Supp. at 1292.

In addition, there are also indications that manufacturers which sold sporting goods to NBS members are located within the Eastern District of Michigan.

Given these factors, the conclusion is inescapable that NBS “transacts business” here within the meaning of section 12 of the Clayton Act.

Accordingly, defendant’s motion is denied.

IT IS SO ORDERED.

      . A fourth defendant was initially named in this matter, Penn Athletic Products Co., an Ohio corporation. Penn Athletic has since been dismissed as a defendant in this action per stipulation of the parties.

      . NBS’s warehouses are located at Manning's in Fort Worth, Sportsman’s Den in Hixson, Tennessee, Big Bear Stores in Billings, Montana, and Mel Cotton’s in San Jose, California.

      . Defendant initially challenged the service of process made on one of NBS’ corporate officers. During oral arguments on defendant’s motion, it conceded that service was proper pursuant to Fed.R.Civ.P. 4(d)(3). Defendant’s motion to quash service of process was, therefore, withdrawn by counsel.

      . The Fifth Circuit in Black v. Acme Markets, 564 F.2d 681 (5th Cir.1977), in refusing to get involved in this "vexed” question, opined:
      A decision of this Circuit early in the International Shoe era indicates that the Shoe fits and is to be worn by federal courts perambulating through anti-trust cases [citation omitted]. In any event, no one has suggested that the personal jurisdiction of federal courts is to be gauged by more restrictive constitutional standards than that applicable to state courts. State long-arms must fit into an International Shoe; there is no justification for forcing federal feet into a glass slipper too narrow and fragile to support the weight of the policies underlying the statutory privilege of world-wide service.

        Id. at 686 n. 8.

      . 28 U.S.C. § 1692 provides:
      In proceedings in a district court where a receiver is appointed for property, real, personal, or mixed situated in different districts, process may issue and be executed in any such district as if the property lay wholly in one district, ...

      . For example, see, Fullerton, Constitutional Limits on Personal Jurisdiction in the Federal Courts, 79 NW.U.L.Rev. 3, 16-22 (1984) ("The appellate opinions [Haile ] evince a common disregard for the burdens that distant litigation can impose on defendants.").