author: SHADUR, District Judge.

text:
    Maria RUBACHA, by her parent and next friend, Janina RUBACHA, Plaintiff, v. Gregory L. COLER, et al., Defendants.
    No. 84 C 9887.
    United States District Court, N.D. Illinois, E.D.
    April 15, 1985.

      Steven Lubet, Robert Miller (senior law student), Chicago, Ill., for plaintiff.
    Neil F. Hartigan, Atty. Gen. of Ill., Jeffrey W. Finke, Lance T. Jones, Asst. Attys. Gen., Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Maria Rubacha (“Maria”), a mentally retarded minor, sues Department of Children and Family Services (“DCFS”) Director Gregory Coler and other DCFS officials and employees under both 42 U.S.C. § 1983 (“Section 1983”) and Illinois common and statutory law, based on injuries Maria sustained- when she was beaten by other minor residents of DCFS-operated Dickens Shelter. Defendants now move to dismiss under Fed.R.Civ.P. (“Rule”) 12(b)(1) and 12(b)(6). For the reasons stated in this memorandum opinion and order, their motion is denied.

Facts

Before September 1983 Maria lived with her mother Janina Rubacha (“Janina”) in Illinois, though Maria’s father lived in Poland. When he died in September, Janina traveled to Poland for the funeral, leaving Maria in the care of a relative. During Janina’s absence Maria became sick and the relative took her to a doctor, who thought Maria was not being cared for properly and notified DCFS. On September 13 the Cook County Circuit Court’s Juvenile Division granted DCFS’s petition that Maria be placed in temporary custody at DCFS’s Dickens Shelter for lack of parental care.

DCFS has adopted a policy under which children in DCFS custody.for that reason are housed in the same facilities as children in DCFS custody due to misbehavior (Complaint ¶ 14). Maria was housed in an area of Dickens Shelter that contained five or more girls, some of whom were there because of misbehavior involving violence {id. 111116, 17). On October 3 some of those other children attacked and beat Maria severely, inflicting multiple and severe bruises {id. U 21).

Maria alleges DCFS knew or should have known the other children had previously committed acts of violence and posed a danger to Maria, who could not take care of herself {id. 111115, 17). She charges defendants exhibited a deliberate and reckless disregard for her safety by:

1. failing to segregate children in custody for misbehavior from other children; and
2. failing adequately to protect Maria after she had been placed in an area with violence-prone children.

Complaint Count I charges defendants’ conduct breached Section 1983 by infringing on Maria’s First, Fifth, Eighth and Fourteenth Amendment rights. Count II charges their conduct constituted negligence and gross negligence under Illinois common law and also violated the Illinois Juvenile Court Act (the “Act”), Ill.Rev.Stat. Ch. 37, ¶ 701-2(1). Defendants move to dismiss on three grounds:

1. Maria has not stated a claim under Section 1983.
2. All her claims are barred by sovereign immunity.
3. Defendants’ qualified immunity shields them from suit.

Defendants alternatively move for abstention because of the sensitive local concerns in Illinois’ operation of its juvenile facilities.

Substantive Due Process Standards

Maria’s appeal to the First, Fifth and Eighth Amendments is plainly misplaced. No conceivable application of the First Amendment has been identified by her counsel; by its terms the Fifth Amendment’s Due Process Clause applies only to actions by the federal government (and the identical clause in the Fourteenth Amendment protects against misconduct by state actors); and the Eighth Amendment applies only to convicted criminals (Ingraham v. Wright, 430 U.S. 651, 664-71, 97 S.Ct. 1401, 1408-12, 51 L.Ed.2d 711 (1977)).

On the other hand, Maria plainly states a viable claim for violation of the substantive due process protections of the Fourteenth Amendment. Over ten years ago Spence v. Staras, 507 F.2d 554, 557 (7th Cir.1974) upheld such a claim against state hospital officials where a retarded child inmate in that hospital had been repeatedly beaten and was ultimately killed by fellow inmates. In Spence the defendants were alleged to have known the defenseless plaintiff had been beaten at least twenty times in the past, yet failed to take steps to protect him.

More recently Youngberg v. Romeo, 457 U.S. 307, 315-16, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982) has confirmed that the mantle by which the Fourteenth Amendment shields involuntary committed mental patients affords at least as much protection to their bodily security as the Eighth Amendment’s “callous indifference” standard (Estate of Davis v. Johnson, 745 F.2d 1066, 1070-71 (7th Cir.1984)) guarantees to prisoners. Society for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1245-46 (2d Cir.1984) extended Youngberg to any person in state custody and held the State was required to exercise accepted “professional judgment” in safeguarding the security of children in its custody.

Because Maria’s beating was an isolated incident, Spence is not on all fours with her case. Nor does she specifically allege a departure from “accepted professional practice” to bring herself within the Society for Good Will formulation. But she does allege defendants were aware of the threat the other children posed to her safety and were deliberately and recklessly indifferent to her right to bodily security. Under the Youngberg formulation and the liberal pleading regime of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957), reaffirmed in Hishon v. King & Spalding, — U.S. -, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984), that is enough to state a Section 1983 claim.

Sovereign Immunity

1. Count I

For many years the Eleventh Amendment has been interpreted — however incorrectly — to bar suits against a state by citizens of that state. Hans v. Louisiana, 134 U.S. 1, 15-18, 10 S.Ct. 504, 507-508, 33 L.Ed. 842 (1890); Edelman, 415 U.S. at 662-63, 94 S.Ct. at 1355-56. Nor is that doctrine limited to suits in which (say) the “State of Illinois” is named in the caption. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) (citations omitted) recapitulated the familiar principles under which a state official is deemed “the State” in Eleventh Amendment terms:

The general rule is that a suit is against the sovereign if “the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,” ... or if the effect of the judgment would be “to restrain the Government from acting, or to compel it to act.”

Finally, the naming of a public officer in his or her official capacity imposes liability on the employing entity (Brandon v. Holt, — U.S. -, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985)), thus rendering the suit against a state official qua official equivalent to one against the State itself.

There has been one enduring exception to those rules: Ex parte Young, 209 U.S. 123, 160, 28 S.Ct. 441, 454, 52 L.Ed. 714 (1908), which made state officials amenable to suit in their official capacities for unconstitutional acts. But Edelman, 415 U.S. at 677, 94 S.Ct. at 1362 (reaffirmed in Pennhurst, 104 S.Ct. at 909) has limited the relief available under Ex parte Young to prospective injunctive relief.

Seeking to take shelter in the Eleventh Amendment, Defendants’ R.Mem. 4-5 mis-characterizes Maria’s complaint as one seeking relief against the officials (1) solely in their official capacities (2) for unintentional omissions. Then defendants urge (id. at 5) the Ex parte Young exception is inapplicable here because it extends only to intentional acts and because Maria asks for retroactive damages of the type barred by Edelman.

Those arguments miss the mark by a wide margin. Had Maria sued defendants only in their official capacities, this would indeed be a suit against the State, requiring an analysis of Young and Edelman. But the Complaint’s caption says in so many words that each defendant is sued in his or her individual capacity as well. Kolar v. County of Sangamon, 756 F.2d 564, 568 (7th Cir.1985) teaches such a designation by a plaintiff is controlling. Clearly Maria is seeking recovery from the individuals out of their own pockets.

In that respect this case resembles Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). There the families of three students killed by Ohio National Guard troops during an anti-Vietnam demonstration at Kent State University sued the Ohio governor, the university president and various officials and soldiers of the National Guard for money damages. Scheuer, id. at 238, 94 S.Ct. 1687 (citations omitted, emphasis in original) held — in terms equally applicable to this case — the Eleventh Amendment was no bar to such an action:

While it is clear that the doctrine of Ex Parte Young is of no aid to a plaintiff seeking damages from the public treasury, ... damages against individual defendants are a permissible remedy in some circumstances notwithstanding the fact that they hold public office.
Analyzing the complaints in light of these precedents, we see that petitioners allege facts that demonstrate they are seeking to impose individual and personal liability on the named defendants for what they claim — but have not yet established by proof — was a deprivation of federal rights by these defendants under color of state law. Whatever the plaintiffs may or may not be able to establish as to the merits of their allegations, their claims, as stated in the complaints, given the favorable reading required by the Federal Rules of Civil Procedure, are not barred by the Eleventh Amendment.

Nor does the State’s possible indemnification of defendants under Ill.Rev.Stat. ch. 127, ¶ 1302 transform this action into one against the State. To the extent Maria sues defendants as individuals, she seeks to recover only from them and to bind only them. Illinois’ decision to indemnify its employees is entirely voluntary. As this Court’s colleague Judge Prentice Marshall held in McAdoo v. Lane, 564 F.Supp. 1215, 1219 (N.D.Ill.1983), and as our Court of Appeals suggested in a quite different context in Liberles v. County of Cook, 709 F.2d 1122, 1135 (7th Cir.1983), Illinois’ indemnification obligations are only consequent upon defendants’ liability and have no effect on the nature of the principal action.

To hold otherwise would give the State carte blanche to provide a meaningless kind of paper protection — granting an “indemnification” that would, by its very existence, destroy the liability to which the indemnity purportedly extends. That would cost the State nothing, and it would unconscionably insulate State employees from all liability for their tortious and unconstitutional actions. After all, the Eleventh Amendment was designed to protect sovereign States, not individual citizens.

2. Count II

Precisely the same analysis applies to Count II’s pendent state law claims. As this Court stated in Grove School, 596 F.Supp. at 1370, the threshold and decisive inquiry as to pendent claims is whether they may be deemed suits against the State. Pennhurst, 104 S.Ct. at 917. Grove School raised but did not decide the effect (if any) of the Illinois indemnification statute on that determination. That question is really resolved by the discussion of Count I: That statute cannot transform a suit against individuals into a suit against the State. Thus the Eleventh Amendment poses no bar to Count II either.

Qualified Immunity

As an additional ground for dismissal, defendants argue they are shielded by qualified executive immunity. They cite Davis v. Scherer, — U.S. -, 104 S.Ct. 3012, 3021, 82 L.Ed.2d 139 (1984) for the proposition that damages may not be recovered from an official with qualified immunity unless the right the official allegedly violated was “clearly established at the time of the conduct at issue.” But defendants cannot really argue — given the June 1982 Youngberg decision and a number of earlier similar decisions at other levels— the right of a juvenile in state custody to bodily security had not been clearly established by October 1983.

Conclusion

Maria has stated valid causes of action under Section 1983 and state law as well. Those claims are barred neither by the Eleventh Amendment (except to the extent defendants are sued in their official rather than their individual capacities) nor by defendants’ qualified immunity.

Defendants’ motion to dismiss is therefore denied, except that the Complaint caption’s reference to defendants in their official capacities is stricken. They are ordered to answer the Complaint on or before April 26, 1985.

      . Defendants’ invocation of Rule 12(b)(1) rests on sovereign immunity concerns rather than lack of subject matter jurisdiction in the usual sense. Their jurisdictional label draws strength from the statement in Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974) that an Eleventh Amendment defense "partakes of the nature of a jurisdictional bar.”

      . As with every motion to dismiss, this Court accepts as true the well-pleaded factual allegations of the complaint, with all reasonable factual inferences drawn in Maria's favor. Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir.1984). That approach of course involves no actual findings of fact.

      .Because all the operative events occurred during 1983, the rest of this opinion will simply omit the year designation.

      . Of course all such infringements by state actors must necessarily encroach on the Fourteenth Amendment alone (in this case its Due Process Clause), rather than the other Amendments invoked by Maria. Nonetheless this Court, as always, follows the conventional and convenient (though inexact) usage of referring to the underlying Bill of Rights guaranties.

      . Defendants’ abstention argument is based on their inaccurate characterization of Count I as essentially a state law claim calling for an interpretation of the Act and the state’s regulations. But Count I asserts á violation of Fourteenth Amendment standards and does not turn in any respect on whether defendants’ conduct comported with state law. Thus this case is no more a candidate for abstention than any of the myriad prisoner Eighth Amendment claims that are routinely heard in the federal courts.

      . See Justice Brennan’s dissent in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 921-22, 79 L.Ed.2d 67 (1984) and this Court’s like comment in Grove School v. Guardianship and Advocacy Comm'n, 596 F.Supp. 1361, 1367 n. 10 (N.D.Ill.1984).

      . DCFS itself, as a state agency, is the "State” for Eleventh Amendment purposes, but it has not been sued here.

      . Astonishingly defendants’ counsel has just written a letter to this Court, after briefing had been completed, citing Kolar as though it supported defendants’ position. This Court, which had noted Kolar when it first came down last month, had already called Kolar to the attention of its law clerk (then preparing a first draft of this opinion) as a case upholding Maria’s claim. It may be that the singular myopia of defendants' counsel is caused by the fact the Illinois Attorney General (acting for defendants here) is so accustomed to representing the State as such that the obvious individual vs. official distinction escapes him — even when articulated as clearly as in Kolar.

      . Ill.Rev.Stat. ch. 127, ¶ 1302(c) provides state employees are not indemnified for damages resulting from "intentional, wilful or wanton misconduct.” At this early stage of the proceedings, it is impossible to predict whether any of the defendants will be held liable for such misconduct and hence unprotected by the indemnity statute. Thus even if indemnification could ultimately call the Eleventh Amendment into play, raising the bar at this point would be premature.

      . McAdoo, 564 F.Supp. at 1219 put it this way: If plaintiffs obtain a judgment against defendants, under the eleventh amendment that judgment will bind defendants only. The eleventh amendment requires only that nothing in this court’s judgment compel the state to pay the judgment. If defendants seek to compel the state to indemnify them, they will have to file a separate action in state court; nothing in our judgment would bind the state. Since the indemnity statute is enforceable against the state if at all in state court, and since our judgment will in no way compel the state to indemnify plaintiffs, this action is not against the state within the meaning of the eleventh amendment; it is brought only against named individuals and hence is not barred by the amendment. Every court to consider the effect of such indemnity statutes under the eleventh amendment has reached the same conclusion.


source: Caselaw Access Project

author: BUA, District Judge.

license: Public Domain

text:
    Tina REYNOLDS, et al., Plaintiffs, v. LaSALLE COUNTY, et al., Defendants.
    No. 84 C 4394.
    United States District Court, N.D. Illinois, E.D.
    April 15, 1985.

      Robert E. Masur, Karen L. Grandstrand, Frankel and McKay, Ltd., Chicago, Ill., for plaintiffs.
    Edward Diedrich, DeKalb, Ill., for plaintiff Lucí Mahar.
    John Cassidy, Jr., Andrea R. Waintroob, John Jacoby, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., James A. Lanuti, Gary L. Peterlin, LaSalle County Governmental Center, Ottawa, Ill., for defendants.
    David M. Shiffer, Law Offices of William N. Twohey, Ottawa, Ill., for intervenor, LaSalle County Sheriffs Fraternal Order of Police.
   ORDER

BUA, District Judge.

The Petition For Leave To Intervene is GRANTED IN PART as to certain issues.

The LaSalle County Sheriffs Fraternal Order of Police, Lodge No. 167 (“FOP”) seeks leave to intervene as a defendant in this case. The case was filed on May 22, 1984, and after extensive settlement negotiations, the case was dismissed as settled between the parties on January 25, 1985. After learning of the terms of the settlement, FOP filed a suit in state court seeking to prevent defendants from implementing a portion of the settlement agreement. On March 1, 1985, this Court granted plaintiffs’ motion to reinstate the case. On March 15, 1985, FOP filed this motion to intervene. On April 1, 1985, a consent judgment was entered between plaintiffs and defendants.

FOP argues that certain provisions of the Consent Decree which provide that two female officers will be promoted to deputy sheriff will endanger the lives of FOP members and will violate Illinois law. FOP further argues that its concerns for safety and compliance with Illinois law are inadequately represented by defendants’ current counsel in this case. Inadequacy of representation, however, will not be presumed. Kheel v. American Steamship, etc., 45 F.R.D. 281, 284 (S.D.N.Y.1968). FOP has failed to establish, and there is nothing in the record to suggest, that FOP’s legitimate interests are not adequately represented in this case. There has been no showing of collusion between plaintiffs and defendants; the interests of defendants and FOP regarding safety and compliance with state law are not adverse; and defendants in this case have clearly not failed in their duty to ensure the public safety while settling plaintiffs claims in this suit. As such, FOP is not entitled to intervention as a matter of right under Rule 24(a). See U.S. v. Board of School Comm., 466 F.2d 573, 575 (7th Cir.1972); Commonwealth Edison Co. v. Train, 71 F.R.D. 391, 394 (N.D.Ill.1976).

The Court, however, will allow FOP to intervene by permission under Rule 24(b) for the limited purpose of objecting to the promotion of two individuals to deputy sheriff, whom FOP believes will endanger the lives of their members and violate state law. “Where intervention is permissive, the Court may limit the intervention to certain issues or place other conditions upon.it.” Armstrong v. O’Connell, 75 F.R.D. 452, 454 (E.D.Wisc.1977). As in Mack v. General Electric Co., 63 F.R.D. 368 (E.D.Pa.1974), “the union should be given the chance to demonstrate how it believes its rights ... may be impaired [by the promotion of two individuals to deputy sheriff.]” Id. at 369. The Court, however, will not allow FOP to dispute any monetary settlements with the plaintiffs or object to any other provisions of the Consent Decree with the exception of Paragraph 3, which provides for the promotion of plaintiffs Reynolds and Hetelle to deputy sheriff.

Finally, FOP is granted leave to file the Answer In Intervention except that FOP’s prayer for relief (dismissal of plaintiffs’ complaint and recovery of costs) is stricken since FOP’s intervention is limited to seeking modification of Paragraph 3 of the Consent Decree.

Enforcement of the Consent Decree as it relates to plaintiffs Rita Hetelle and Tina Reynolds is stayed pending resolution of the issues raised by Intervenor FOP.


author: WEINSHIENK, District Judge.

text:
    Ana M. CHAVEZ, Plaintiff, v. GUARANTY BANK & TRUST COMPANY, a Colorado corporation, Defendant.
    Civ. A. No. 84-Z-1473.
    United States District Court, D. Colorado.
    April 16, 1985.
    Daniel R. Satriana, Jr., Hall & Evans, Denver, Colo., for plaintiff.
    Laura Ann Wing, Rothgerber, Appel & Powers, Denver, Colo., for defendant.
   ORDER DISMISSING STATE CLAIMS

WEINSHIENK, District Judge.

This matter is before the Court on defendant Guaranty Bank & Trust Company’s Motion to Dismiss. Plaintiff Ana M. Chavez filed this action against defendant alleging discriminatory treatment and discriminatory discharge by defendant. Plaintiff also claims that pursuant to state law her discharge was “improper, unwarranted and in breach of Defendant’s employee manual,” and that defendant acted in bad faith and against public policy. Plaintiff alleges jurisdiction pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(3), as well as 28 U.S.C. § 1331, and pendent jurisdiction.

Guaranty Bank & Trust Company’s Motion contends that plaintiff’s second and third claims for relief, the state law claims, fail to state a claim. Alternatively, defendant argues that the Court should refuse to exercise pendent jurisdiction over these claims. The Court has reviewed the motion, the submitted legal memoranda and the relevant case law, and is now fully advised and prepared to rule.

Generally, a Court may exercise pendent jurisdiction when, as in this case, there is a substantial federal claim and the. state claims derive from a common nucleus of operative facts. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). However, the Gibbs common nucleus of operative facts test does not end the inquiry into whether this Court has the power to hear the plaintiff’s nonfederal claims along with the federal one. As stated in Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978):

Beyond this constitutional minimum, there must be an examination of the posture in which the nonfederal claim is asserted and of the specific statute that confers jurisdiction over the federal claim, in order to determine whether “Congress in [that statute] has ... expressly or by implication negated” the exercise of jurisdiction over the particular nonfederal claim. Aldinger v. Howard, supra, [427 U.S. 1] at 18, 96 S.Ct. 2413, [at 2422], 49 L.Ed.2d 276 [(1976)].

The Court is persuaded that the Kroger test precludes the Court from exercising pendent jurisdiction in this action. The reasons for this decision rest primarily in the nature and history of Title VII. Congress has provided for specific equitable relief in Title VII actions, and has expressed its desire that these matters be resolved as expeditiously as possible. Furthermore, Title VII actions are tried to the Court. It is evident to this Court that the exercise of pendent jurisdiction would impair the statutory scheme so carefully constructed by Congress in Title VII. These considerations, as well as others, have been examined thoroughly in the case law. See Mongeon v. Shellcraft Industries, Inc., 590 F.Supp. 956 (D.Vt.1984); Frye v. Pioneer Logging Machinery, Inc., 555 F.Supp. 730 (D.S.C.1983).

In addition, the Court notes that, even if congressional intent would not be frustrated by the exercise of pendent jurisdiction over state claims in Title VII actions, the Court’s power is a discretionary one. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218. The Court need not exercise this power if dismissal of the claims will better serve the interests of judicial economy, convenience and fairness to litigants. Id. at 726, 86 S.Ct. at 1139. While the damages sought in this action are the same as those available under Title VII, the Court notes that the state claims pressed here introduce a strong possibility of jury confusion, as well as the probability that the state issues will predominate at trial.

Finally, speedy resolution of discrimination suits, a concern of particular importance to Congress in the drafting of Title VII, would be enhanced by trying the Title VII action alone. Accordingly, the Court will not assume pendent jurisdiction ■ over these two state law claims.

Having concluded that the exercise of pendent jurisdiction is inappropriate in this case, the Court does not reach the question of whether the state claims for relief are properly stated. Therefore, it is

ORDERED that defendant’s Motion to Dismiss is granted. It is

FURTHER ORDERED that plaintiffs second and third claims for relief are hereby dismissed with prejudice as to litigation in this forum, but without prejudice as to litigation in state court.

      . Other judges in this district also have declined to exercise jurisdiction over pendent -claims in Title VII actions. See Haroldson v. Hospitality Systems, Inc., 596 F.Supp. 1460 (D.Colo.1984) (Kane, J.); Anderson v. Silvercreek Development Co., No. 84-M-1770, slip op. (D.Colo. Nov. 30, 1984) (Matsch, J.). Cf. Ritter v. Colorado Interstate Gas Co., 593 F.Supp. 1279 (D.Colo.1984) (Carrigan, J.); Borumka v. Rocky Mountain Hospital and Medical Service, 599 F.Supp. 857 (D.Colo.1984) (Moore, J.) (ADEA cases).


author: CARL B. RUBIN, Chief Judge.

text:
    Ginny BELL, et al., Plaintiffs, v. AMCAST INDUSTRIAL CORP., Defendant.
    No. C-1-84-1011.
    United States District Court, S.D. Ohio, W.D.
    April 17, 1985.
    Jonathan M. Norman, Cincinnati, Ohio, Gerald L. Draper, Columbus, Ohio, for plaintiffs.
    William R. Hardy, Cincinnati, Ohio, Ko-var, Nelson & Brittain, Chicago, Ill., for defendant.
   ORDER

CARL B. RUBIN, Chief Judge.

This matter is before the Court sua sponte for consideration of its jurisdiction to hear the case. The Court finds that such jurisdiction is lacking and orders the case remanded to the Court of Common Pleas, Lawrence County, Ohio.

The facts, as alleged in the Complaint, can be simply stated. The plaintiffs are 24 former salaried employees of defendant. They worked at defendant’s Ironton, Ohio facility until it ceased production at the end of April, 1984. Plaintiffs were informed of the impending shutdown on January 25, 1984, at a meeting convened by defendant’s Vice President of Human Resources, L.J. Brunskill. At the meeting, plaintiffs were asked to continue working at the facility until the shutdown. In exchange, defendant agreed to maintain the severance policy it had instituted in 1979. Under the policy, each plaintiff would receive money in an amount equal to his weekly salary multiplied by his number of years with the company. Insurance coverage and profit-sharing benefits would also extend beyond termination for a number of weeks equal to the number of years with the company.

Plaintiffs contend that their continued work at the facility allowed defendant to continue full production until the shutdown thereby improving defendant’s bargaining position in negotiations over sale of the facility.

The week before the shutdown, Brunskill convened another meeting with plaintiffs and informed them of a change in the severance policy. Rather than receive the benefits outlined in the 1979 policy, plaintiffs would receive only supplemental unemployment benefits that, when combined with Ohio Unemployment Compensation, would equal the amount of money promised under the policy. Plaintiffs would not receive insurance or profit-sharing benefits.

Plaintiffs filed a Complaint in the Court of Common Pleas, Lawrence County, Ohio claiming breach of contract, promissory es-toppel, and fraud. Defendant removed the case to this Court under 28 U.S.C. § 1441 claiming that the suit was covered by the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1381 (1982).

Apparently content with the federal forum, plaintiffs did not move for remand but instead amended their Complaint to add three additional ERISA counts. Unfortunately, this apparent stipulation by the parties cannot confer jurisdiction upon this Court. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 18, 71 S.Ct. 534, 542, 95 L.Ed. 702 (1951). The jurisdiction of this Court is limited and may only be invoked after the satisfaction of specific jurisdictional requirements. It is incumbent upon this Court, therefore, to make an independent inquiry to see whether those requirements have been met.

Section 1441(a) permits a defendant to remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a) (1982). If at any time before final judgment, however, it appears that the case was removed improvidently and without jurisdiction, the district court shall remand. 28 U.S.C. § 1447(c) (1982). In determining whether a complaint is within its original jurisdiction, the Court must look to the complaint as it existed at the time of the petition for removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 348, 83 L.Ed. 334 (1939); In re: Carter, 618 F.2d 1093, 1101 (5th Cir.1980); Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir.1979). A complaint improvidently removed cannot confer the jurisdiction necessary to entertain its amendment. Libhart, 592 F.2d at 1065. The jurisdictional sufficiency of this case, then, must rise or fall on the basis of plaintiffs’ original Complaint.

An analysis of subject matter jurisdiction begins with the “well-pleaded complaint” rule.

[Wjhether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, ... must be determined from what necessary appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.

Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 724-25, 58 L.Ed. 1218 (1914); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983). This Court can hear only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law. 103 S.Ct. at 2856.

The instant Complaint establishes neither of the above prerequisites. Plaintiffs’ causes of action are the creatures solely of state common law. Further, the Complaint does not show that the relief requested necessarily depends on any federal law. No mention is made of federal law, much less an alleged ERISA violation in the administration, funding, or disbursement of the severance policy. The policy is represented as defendant’s consideration in a contract entered into between it and the plaintiffs. The dispute centers around that oral agreement. The way the Complaint reads, plaintiffs may concede defendant’s full compliance with ERISA and still maintain its action. The policy’s coverage by or compliance with ERISA is irrelevant to the central issues in the case — whether defendant breached a contract negotiated in April, 1984, committed fraud on that date, or acted in such a way as to justify application of promissory estoppel.

Two recent cases support the above, conclusion. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983), presented the United States Supreme Court with a suit by the California Franchise Tax Board against a trust established to provide workers with paid vacations. The Board brought the suit in state court under a state statute that required persons in possession of the personal property of delinquent taxpayers to withhold the amount of the delinquency and transmit that amount to the Board. Defendant removed the case to federal court and plaintiff moved for remand. The Supreme Court held that the case must be remanded because the Complaint did not invoke federal jurisdiction. Despite the fact that the vacation trust was governed by ERISA, the Court held that the delinquency claim established a set of conditions, without reference to federal law, under which it might be enforced. Id. at 2848.

In a case out of the Fifth Circuit, Kathleen Powers was told by a representative of her health plan, prior to having her son hospitalized, that her plan would cover the expenses incurred. Powers v. Health & Welfare Trust, 719 F.2d 760 (5th Cir.1983). When the plan did not, plaintiff sued for fraud, negligence, and violation of the Texas Deceptive Trade Practices — Consumer Protection Act. Defendant removed on the grounds that the action was governed by ERISA and plaintiffs moved for remand. The United States Court of Appeals for the Fifth Circuit, applying Franchise Tax Board, held that the case did not arise under federal law and that the district court did not, therefore, have jurisdiction to hear the controversy. The Complaint simply “alleged no federal cause of action, raised no federal issue, and relied on no federal statute.” Id. at 765.

Underlying the defendants’ positions in both cases was the fact that ERISA may preempt the state claims and become the plaintiffs’ sole basis for relief. Nevertheless, both Courts noted that the existence of a preemption issue in a case does not create a federal question allowing removal. 103 S.Ct. at 2848; 719 F.2d at 765.

Along a slightly different vein, the instant defendant argues in its Petition for Removal for the application of a corollary to the well-pleaded complaint rule that prohibits a plaintiff from defeating removal by omitting to plead necessary federal questions in a complaint. Avco Corp. v. Aero Lodge No. 735, International Association of Machinists, 376 F.2d 337, 339-40 (6th Cir.1967), aff'd, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). Defendant contends that the Complaint is not a claim for relief under state common law theories but it is, in reality, an attempt to “recover benefits” and “enforce rights” under 29 U.S.C. § 1132(a)(1)(B). Section 1132(a)(1)(B) gives an ERISA participant or beneficiary a civil cause of action to “recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan....” Section 1132(e) in turn gives state and district courts concurrent jurisdiction to hear cases arising under § 1132(a)(1)(B) thus making them removable under 28 U.S.C. § 1441(a).

The Supreme Court rejected the same argument in Franchise Tax Board. The argument there was based on Avco Corp. v. Aero Lodge No. 735, International Association of Machinists, 376 F.2d 337 (6th Cir.1967), aff'd, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), a case that held that a suit brought in state court by an employer for breach of its “contract” with a union necessarily arose out of § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185 (1982). The movant urged the same treatment be given state claims arguably governed by ERISA.

The Supreme Court refused to adopt the analogy and limited Avco Corp. to situations where the federal cause of action completely preempts a state cause of action. Franchise Tax Board, 103 S.Ct. at 2854. While the preemptive force of § 301 does displace entirely any state cause of action for violation of a contract between an employer and a labor organization, the Court declined to go that far with ERISA noting that ERISA “does not purport to reach every question relating to plans covered by ERISA,” nor did Congress “intend to preempt entirely every state cause of action relating to such plans.” Id. at 2854-55.

The Court in Powers addressed an exception to the well-pleaded complaint rule for “artful pleaders.” The exception, derived from Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 397 n. 2, 101 S.Ct. 2424, 2427 n. 2, 69 L.Ed.2d 103 (1981), prohibits plaintiffs from defeating federal jurisdiction by. disguising essentially federal law claims in state law terms. Powers v. Health & Welfare Trust, 719 F.2d 760, 766 (5th Cir.1983). There is no evidence of such deception in this case. In fact, plaintiffs’ willingness to submit to federal jurisdiction is evidence to the contrary.

In conclusion, the dictates of 28 U.S.C. § 1447(c) and the precedents of Franchise Tax Board and Powers compel a remand of this case to the Court of Common Pleas, Lawrence County, Ohio. “[F]or reasons involving perhaps more history than logic,” Franchise Tax Board, 103 S.Ct. at 2843, the plaintiffs’ Complaint states no claim within the original jurisdiction of this Court.

IT IS SO ORDERED.

      . The Complaint included a second cause of action under the California Declaratory Judgment statute seeking a declaration of the parties’ rights in relation to ERISA. The analysis used to justify the remand was unique to declaratory judgment actions and inapplicable to the claims in the case at bar. 103 S.Ct. at 2848, 49-53.

      . This Court expresses no opinion as to the merits of any preemption issue that may arise in the case at bar.


author: PATEL, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Milton MOORE, aka Micky Moore, Defendant.
    No. CR-84-0965-MHP.
    United States District Court, N.D. California.
    April 17, 1985.

      James A. Lassart, Asst. U.S. Atty., Drug Enforcement Task Force, San Francisco, Cal., for plaintiff.
    William H. Du Bois, Du Boi, Hove & Clay, Oakland, Cal., for defendant.
   OPINION

PATEL, District Judge.

Defendant Milton (aka Micky) Moore was indicted on December 20, 1984 for two violations of 21 U.S.C. § 841(a)(1) (possession with intent to distribute heroin and cocaine) and a violation of 26 U.S.C. §§ 5861(c) and (d) (possession of a silencer). The government moved for a detention hearing pursuant to § 3142 of the newly enacted Bail Reform Act of 1984 (“BRA”), 18 U.S.C. §§ 3141-3151.

A detention hearing was held before a magistrate of this court on December 26, 1984. Based on the information presented at the detention hearing the magistrate concluded that the government had established probable cause to believe Moore violated 21 U.S.C. § 841(a)(1), thereby establishing a rebuttable presumption that defendant should be detained without bail prior to trial as a flight risk and a danger to the community. BRA § 3142(e). He construed the presumption as placing the burden of persuasion on defendant to show by a preponderance of the evidence that the congressional determination is inapplicable in this case. He further ruled that the “clear and convincing evidence” requirement of § 3142(f) did not apply when the presumption was in force. See Magistrate’s Order at 7-8. The magistrate evaluated the defendant’s arguments and the evidence proffered by the government and concluded that Moore failed to overcome the presumption that he was both a -flight risk and danger to the community. He therefore ordered Moore detained pending trial since no condition or combination of conditions could reasonably assure his appearance at trial or the safety of the community.

Moore now moves the court to review the detention order filed by the magistrate pursuant to § 3145(b) of the Act. He challenges the constitutionality of the BRA on its face and as applied. His motion makes the following arguments: (1) the Act violates his Eighth Amendment right to bail, (2) the rebuttable presumption established in § 3142 is unconstitutionally vague in the context of the statute and violates both the equal protection and due process provisions of the Fifth Amendment, and (3) the government’s position on the manner of establishing probable cause violates due process. Both parties have briefed the constitutional issues and have presented oral argument before the court.

Having considered the parties’ papers and oral arguments, the court finds that the Act can be construed so as to preserve its constitutionality. The court’s conclusions regarding the constitutionality of the Bail Reform Act are set forth in Part I of this order. In addition, based on its review of the information presented to the magistrate and to this court, and on the arguments of counsel before the court, the court concludes that defendant Moore should be detained pending trial because no condition or combination of conditions will reasonably assure the safety of the community. Part II of this order presents the court’s findings regarding the application of the Act to Moore.

Discussion

I. THE CONSTITUTIONALITY OF THE BAIL REFORM ACT

1. Right to Bail

Defendant mounts only a limited attack on the BRA under the Eighth Amendment. He does not assert ah absolute right to bail. Instead, he argues that a defendant’s right to bail “gives way only to legitimate state concerns presented in a particular case.” Defendant’s Memorandum at 5. See U.S. ex rel. Goodman v. Kehl, 456 F.2d 863, 868 (2d Cir.1972) (“we perceive no constitutional distinction between requiring excessive bail and denying bail altogether in the absence of legitimate reasons.”). He contends, however, that the procedures of the Act as construed by the magistrate do not allow the court to evaluate the facts presented in individual cases.

In United States v. Edwards, 430 A.2d 1321 (D.C.App.1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982), the court painstakingly traced the history of the excessive bail clause of the Eighth Amendment from its roots in the English common law to its adoption into the Bill of Rights. Edwards concluded that the history of the clause showed that it was designed to prohibit excessive bail for bailable offenses and not to prevent Congress from designating nonbailable offenses. Hence, the court refused to find a constitutional right to bail in criminal cases. 430 A.2d at 1331. The legislative history of the BRA specifically adopts this reasoning, and defendant proffers nothing to contravene the historical analysis set forth in Edwards. S.Rep. No. 225, 98th Cong., 1st Sess. 22 (1983), U.S.Code Cong. & Admin.News 1984, p. 3182 (“S.Rep.”). In Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952) the Supreme Court in dicta affirmed congressional power to designate bailable and nonbailable offenses:

The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country.... Indeed, the very language of the Amendment fails to say that all arrests must be bailable.

342 U.S. at 545, 72 S.Ct. at 536 (1952) (denying bail to aliens pending deportation).

Nonetheless, the case law is clear that legislative determinations regarding the right to bail cannot be arbitrary. See, e.g., Sistrunk v. Lyons, 646 P.2d 64, 70 (3rd Cir.1981) (“Because the Eighth Amendment does not delimit the denial of bail to capital offenses, Congress as well as the states could provide that other serious noncapital crimes are entitled to bail — subject, of course, to due process constraints.”); Hunt v. Roth, 648 F.2d 1148, 1161 (8th Cir.1981), vacated as moot sub nom. Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) “Congress and the states may reasonably legislate as to the right to bail for certain offenses ‘provided the power is exercised rationally, reasonably, and without discrimination.’ ” (quoting U.S. ex rel. Covington v. Coparo, 297 F.Supp. 203 (S.D.N.Y.1969)). In Hunt, for example, the Eighth Circuit examined a provision of the Nebraska constitution that created an irrebuttable presumption denying bail to all person's charged with certain sex offenses. The court found the provision unconstitutional because it arbitrarily and conclusively precluded an individualized assessment of the propriety of pretrial release. 648 F.2d at 1164.

Based on the foregoing discussion, the court finds that the BRA does not offend the constitution merely by designating certain offenses as nonbailable. However, the statute will not pass constitutional muster unless its provisions are construed in such a way that defendant can make a showing' based on the particular facts of the case in order to overcome the presumption.

2. The Rebuttable Presumption

Section 3142(e) of the statute states in part:

Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. § 801 et seq.) ...

In other words, should the court find probable cause to believe that Moore committed the narcotics offense for which he was indicted the court must presume — subject to rebuttal by him — that he be detained without bail prior to trial as a flight risk and a danger to the community.

Defendant’s challenge to the rebuttable presumption on vagueness, equal protection, and due process grounds is discussed below.

A. Vagueness

Defendant claims that a conflict between the rebuttable presumption set up in § 3142(e) and the clear and convincing standard set forth in § 3142(f) renders the statute unconstitutionally vague. This argument misconstrues the nature of a vagueness challenge to a statute. A statute is void for vagueness “if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). The fact that different procedural sections of a statute must be construed by a court to fit together into a coherent whole does not render a statute unconstitutionally vague. The provisions are not so unclear that the court cannot interpret them. Moreover, as the government points out, §§ 3142(e) and (f) are not in conflict — one sets out a burden of proof and the other sets out a standard of proof.

B. Equal Protection

Defendant claims that the statute on its face violates the equal protection clause of the Fifth Amendment because it classifies certain offenses as creating a rebuttable presumption in favor of detention. In this case the class is persons charged with drug offenses punishable by more than ten years in prison. As defendant acknowledges, this group consists mainly of drug traffickers. He maintains this classification is overbroad and the rationale supporting it inaccurate.

Since the court has found no constitutional right to bail, the equal protection challenge is evaluated under a “rational basis” tests, so that the court merely inquires “whether it is conceivable that the classification bears a rational relationship to an end of government not prohibited by the Constitution.” J. Nowack, R. Rotunda, and J.N. Young, Constitutional Law 591 (2nd ed. 1983). The court may not substitute its judgment for that of Congress’ so long as there is some reasonable basis for the classification. See Dandridge v. Williams, 397 U.S. 471, 485-7, 90 S.Ct. 1153, 1161-3, 25 L.Ed.2d 491 (1970).

The court finds that the equal protection challenge must fail in the instant case because Congress has articulated a reasonable basis for concluding that individuals in the class defendant seeks to protect present a greater flight risk or danger to the community than other defendants. The legislative history of this statute contains a lengthy discourse on the reasons Congress believed drug offenders constituted a danger to the community and a risk of flight. See S.Rep. at 20.

C. Due Process

Defendant argues that due process at a minimum requires an individualized determination of whether a particular defendant warrants pretrial detention. He contends that the rebuttable presumption set forth in the BRA violates his due process rights under the Fifth Amendment.

The due process challenge raises two different issues: (1) whether the use of the presumption in a criminal context is appropriate, and (2) how to construe the presumption in light of other statutory directives so as to protect defendant’s due process interests. This latter issue concerns the nature of the burden the rebut-table presumption places on defendant.

1. The Constitutionality of Presumptions in Criminal Cases

In County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the Court distinguished between “permissive presumptions” and “mandatory presumptions” and ruled that the constitutionality of the two types should be analyzed differently.

A permissive presumption is one which “allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecution of the basic one and which places no burden of any kind on defendant.” 442 U.S. at 157, 99 S.Ct. at 2224. When reviewing such presumptions the Court requires defendant to demonstrate the presumption’s invalidity “as applied to him.” Id. In contrast, a mandatory presumption “tells the trier [of fact] that he or they must find the elemental fact from the proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection with the two facts.” Id. The Court examines a mandatory presumption “on its face to determine the extent to which the basic and elemental facts coincide.” Id. at 158, 99 S.Ct. at 2226. However, if a mandatory presumption merely shifts a burden of production to defendant, and if this burden of production is extremely low (such as being satisfied by “any evidence”), the impact of the mandatory presumption may be no more than that of a permissive presumption and “it may be proper to analyze it as such.” Id. at 157 n. 16, 99 S.Ct. at 2225 n. 16.

The presumption set up by the § 3142(e) of the BRA flows as follows: if the government establishes probable cause to believe that Moore committed the narcotics offense for which he was indicted (the basic fact), then it is presumed, subject to rebuttal, that he is a flight risk and danger to the community (the elemental fact) and should be detained without bail. The statutory framework sets up a mandatory rebuttable presumption, directing this .court to examine the constitutional validity of the presumption on its face.

The constitutional test for a mandatory presumption is whether there is a “rational connection” between the basic and elemental facts. “[A] criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed [elemental] fact is more likely than not to flow from the proved [basic] fact on which it is made to depend.” Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57 (1969) (striking down a presumption allowing ajury to infer from possession of marijuana that defendant knew the marijuana was imported illegally). The Court specifically instructs lower courts to give substantial weight to congressional determinations underlying statutory presumptions when assessing their constitutionality:

The process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.

United States v. Gainey, 380 U.S. 63, 67, 85 S.Ct. 754, 757, 13 L.Ed.2d 658 (1965). Although the Court has in the past taken it upon itself to reevaluate congressional determinations establishing presumptions, it has done so only after determining that “the legislative record does not supply an adequate basis upon which to judge the soundness of the ... presumption.” Leary, 395 U.S. at 38, 89 S.Ct. at 1549.

Again the court should not substitute its judgment for that of the legislature. Congress has explicated in the legislative history its reasons for presuming that individuals charged with serious narcotics offenses present a flight risk and danger to the community. S.Rep. at 20. Whatever the court’s view of the wisdom of this determination, it cannot say “the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them.” Tot v. United States, 319 U.S. 463, 467-68, 63 S.Ct. 1241, 1244-45, 87 L.Ed. 1519 (1943). Thus, the court finds that the rebuttable presumption is not unconstitutional on its face. Accord, United States v. Jessup, 757 F.2d 378, 386-387 (1st Cir.1985).

2. Construing the Rebuttable Presumption

In construing the provisions of the BRA, the court is mindful of its obligation to interpret the statute in such a manner as to preserve its constitutionality. Califano v. Yamasaki, 442 U.S. 682, 693, 99 S.Ct. 2545, 2553, 61 L.Ed.2d 176 (1979) (“if ‘a construction of the statute is fairly possible by which [a serious doubt of constitutionality] may be avoided,’ a court should adopt that construction.”). Following the lead of the Califano court, this court will “assume a congressional solicitude for fair procedure, absent explicit statutory language to the contrary.” Id.

a. The Need for Clear and Convincing. Evidence

In the proceeding below, the magistrate concluded that the “clear and convincing evidence” requirement did not apply when the rebuttable presumption was in force. This court respectfully disagrees with this interpretation. Section 3142(f) sets out the procedures for detention hearings. Nowhere in the statute or the legislative history does it suggest that different procedures — affording different levels of due process protection — should apply to a detention hearing where the rebuttable presumption is in force as opposed to when the presumption is not in force.

The statute clearly states that a finding that a defendant should be detained prior to trial because he is a danger to the community should be supported by clear and convincing evidence. 18 U.S.C. § 3142(f). According to the legislative history, “[t]his provision emphasizes the requirement that there be an evidentiary basis for the facts that lead the judicial officer to conclude that a pretrial detention is necessary.” S.Rep. at 22. Curiously, however, the terms of the statute require that only a finding regarding danger to the community need be supported by clear and convincing evidence. The statute is silent as to what standard of proof is needed to support a determination that a defendant is a flight risk.

The presumption established by Congress for defendants charged with serious narcotics offenses allows for pretrial detention upon a finding that defendant presents either a risk of flight or a danger to the community. In view of the substantial detriment pretrial detention imposes upon a defendant, see Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 1 (1951), the court finds that the standard of proof necessary for detaining a defendant as a flight risk should be no less than the standard required to support a finding of danger to the community — “clear and convincing evidence.” The court will construe the statute accordingly. Contra United States v. Freitas, 602 F.Supp. 1283, 1292 (N.D.Cal.1985) (applying a “preponderance of the evidence” standard to findings of flight risk).

b. The Burden the Presumption Places on Defendant

Neither the plain language of the statute nor its legislative history specifies the burden the rebuttable presumption places on a defendant charged with committing a serious drug offense. Courts construing the Act already have reached inconsistent results as to whether the presumption shifts to defendant the burden of producing evidence or merely the burden of persuasion. Compare Jessup, at 381; U.S. v. Payden, 598 F.Supp. 1388, 1397 (S.D.N.Y.1984); and Freitas, at 1289 (rebuttable presumption shifts burden of production) with United States v. Aiello, 598 F.Supp. 740, 744 (S.D.N.Y.1984) (rebuttable presumption shifts burden of persuasion). The government relies on Aiello as “persuasive authority” for the proposition that the statute shifts the burden of persuasion to the defendant. This court disagrees with the analysis of Aiello and finds instead that the rebuttable presumption shifts only a burden of production to defendant. The government retains the burden throughout the proceeding to show by clear and convincing evidence that no condition or combination of conditions would reasonably assure defendant’s appearance at trial or the safety of the community.

Aiello predicated its analysis on the following legislative history: “it is appropriate [when the rebuttable presumption is.in effect] that the burden shift to defendant to establish a basis for concluding that there are conditions of release sufficient to assure that he will not again engage in dangerous criminal activity pending trial.” S.Rep. at 19 (emphasis added). 598 F.Supp. at 743-44. The Aiello court reads the legislative history to mean that “the burden would fall on defendants to rebut the ultimate facts presumed under the Act. Once a charge is made that a defendant is guilty of a ‘grave’ narcotics violation, and in the absence of information supplied by the defendant tending to rebut the presumption, the government has sustained its burden of showing a ‘danger to society’ or ‘risk of flight’.” Id. at 744. Under Aiello the amount of information defendant would have to put forth to rebut the presumption would vary depending on the strength of the government’s probable cause case. If the probable cause case were strong, defendant would need more evidence to rebut the presumption than if the case were weak. Id. at 745.

There are several problems with this interpretation. First, the legislative history cited in Aiello is not directly applicable to situations such as the instant one where the government seeks to detain a defendant as a flight risk or danger to the community pursuant to a finding of probable cause that the defendant committed a serious narcotics offense. Rather, it pertains to another provision of the statute which allows the government to move for a detention hearing on the ground that a defendant is a danger to the community when he is charged with certain violent crimes and has been convicted of similar offenses in the past while on bail pending trial.

Even were this legislative history to apply to the instant situation, this court has serious doubts that Congress intended the requirement that defendant “establish a basis for concluding” that he or she is entitled to pretrial release to mean that the defendant must “persuade a trier of fact” that he or she is so entitled. The words themselves simply do not convey such a meaning. Accord Jessup, at 381 (“these words do not say that the burden shifts to the defendant, nor do they imply that it is up to the defendant to persuade the judicial officer”).

In addition, in contrast to this language, the legislative history makes clear that in the context of post-conviction release pending sentencing or appeal the defendant must bear the burden of persuasion that he will not present a danger to the community or a risk of flight. The Senate Report states,

It has been held that although the denial of bail after conviction is frequently justified, the current statute [the Bail Reform Act of 1966] incorporates a presumption in favor of bail even after conviction. It is this presumption that the Committee wishes to eliminate in section 3143 ...
Once guilt of a crime has been established in a court of law, there is no reason to favor release pending imposition of sentence or appeal.

S.Rep. at 26 (explicating § 3143 of the BRA). Clearly, had Congress intended the pretrial detention provision of the BRA to be interpreted similarly it could have so stated. As the court noted in Freitas, since “Congress only felt comfortable shifting the burden of proof where the defendant has been convicted of a crime and his guilt established beyond a reasonable doubt[, it] would be inconsistent to infer that Congress had a similar intent with respect to a defendant being held on probable cause.” At 1289. See also Jessup, at 381-382 (“Congress knew how to create a ‘burden of persuasion’ when it wanted to do so”).

A further problem presented in Aiello is that the court reads the “clear and convincing” requirement out of the statute altogether, relying instead on the government’s showing at the probable cause portion of the determination. This holding places too great a. strain on the link set up by the rebuttable presumption. The probable cause determination merely establishes the presumption. The important consideration in determining whether a defendant should be detained without bail pending trial is not the strength of the evidence that defendant committed the narcotics offense but rather the strength of evidence regarding flight risk or danger to the community.

This court concludes that the government may not rest solely on the rebuttable presumption to support its motion to detain a defendant pending trial. Evidence that defendant committed the narcotics offense with which he is charged, even if very compelling, cannot by itself satisfy the requirement of § 3142(f) that a determination “that no condition or combination of conditions will reasonably assure the safety of any other person and the community” be supported by clear and convincing evidence. Indeed, to find otherwise would also violate the specific directive of § 3142(g), which provides that certain factors — including the history and characteristics of the defendant — be considered by the court in determining whether a particular defendant be detained.

.The court’s finding that the rebuttable presumption shifts only a burden of production to the defendant comports with Supreme Court rulings regarding presumptions in both criminal and civil cases. For example, in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the Court addressed the effect of the burden of persuasion on the presumption of innocence in a criminal trial. Sandstrom concerned a jury instruction that read “the law presumes that a person intends the ordinary consequences of his voluntary acts.” Id. at 517, 99 S.Ct. at 2455. The Montana Supreme Court upheld the instruction, interpreting it as merely placing a burden of production on defendant. The Court held the instruction unconstitutional because a reasonable juror could have interpreted the instruction as conclusive or as placing a burden of persuasion on defendant. Id. The Court ruled that either of the latter two interpretations violated due process. Id. at 517, 99 S.Ct. at 2455.

The Court analyzed the production burden in the civil context in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), a Title VII ease. Burdine held that once a plaintiff establishes a prima facie case (which the court equates with a rebut-table presumption), the burden shifts to the defendant to produce evidence raising genuine issues of fact disputing the charge of discrimination. “The defendant need not persuade the court that it was actually motivated by the proffered reasons.” Id. at 254, 101 S.Ct. at 1094. Once defendant meets its burden, the presumption raised by the prima facie case “drops from the case,” and plaintiff must show defendant’s explanation is pretextual. Id. at 255 n. 10, 101 S.Ct. at 1094 n. 10. Plaintiff retains the burden of persuasion, which “merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination.” Id. at 256, 101 S.Ct. at 1095.

Under Burdine, then, defendant may rebut the presumption merely by producing evidence “legally sufficient to justify a judgment for the defendant,” but need not persuade. Id. at 255, 101 S.Ct. at 1094. Applied to the instant situation, Burdine would dictate that defendant need come forward with some evidence to raise a dispute of fact as to whether he is a flight risk and danger to the community, but should not carry a burden of persuasion. See also Fed.R.Evid. 301 (presumption shifts only burden on production, not persuasion.)

In sum, the court finds that the rebut-table presumption of the BRA places only a burden of production on defendant and requires the government to rebut it with clear and convincing evidence. The government may not rely on the presumption alone to satisfy the clear and convincing evidence standard. This construction affords the defendant an opportunity to show that the presumption does not apply to him so as to avoid any Eighth Amendment or Fifth Amendment problems stemming from “conclusive” presumptions.

3. Procedural Due Process

Defendant argues that a hearing based on proffers, documents, and the indictment insufficiently protects his due process interests. He further claims that fundamental fairness requires that he be entitled to: (1) notice of what matters the government will present, (2) an opportunity to call witnesses whose affidavits and proffers are presented by the government, and (3) discovery of prior statements by the government’s witnesses. Neither of defendant’s arguments has merit.

First, in Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975) the Court ruled that a probable cause hearing does not require “the full panoply of adversary safeguards.” The Court applied the Gerstein holding to the pretrial detention context in Schall v. Mar tin, — U.S. -, 104 S.Ct. 2403, 2417, 81 L.Ed.2d 207 (1984) (examining a statute establishing pretrial detention for juveniles). The procedures set forth for detention hearings under the BRA allow defendant to appoint counsel, to testify, to present witnesses on his behalf, to cross-examine witnesses, and to present evidence by proffer. 18 U.S.C. § 3142(f). Congress modeled these procedures after those held by the Edwards court as affording defendants adequate due process protections. S.Rep. at 22; Edwards, 430 A.2d at 1336-37 (citing Gerstein, 420 U.S. at 119, 95 S.Ct. at 865). In addition, this court has interpreted the statute as placing a low burden of production on defendant and as requiring that all findings directing the court to impose pretrial detention be supported by clear and convincing evidence. The court finds that these procedures provide defendant adequate due process protections.

Second, the court finds nothing in the statute to support defendant’s position regarding discovery prior to the detention hearing. The legislative history indicates that Congress did not contemplate such discovery, and the statute upon which the BRA is modeled does not provide for it. S.Rep. at 12; Edwards, 430 A.2d at 1338. In addition, in light of the court’s holdings regarding the burden on defendant at the detention hearing, the unavailability of the material defendant seeks in no way hampers his ability to present a defense. Defendant need only come forth with some information to establish that he is neither a flight risk nor a danger to the community. Certainly, such information is uniquely in his possession, not in the possession of the government. Thus, the court rejects the contention that the unavailability of discovery offends the due process clause of the Fifth Amendment.

II. THE APPLICATION OF THE BAIL REFORM ACT

Defendant Moore has moved this court to review the magistrate’s detention order pursuant to 18 U.S.C. § 3145(b). Subparagraph (b) provides in pertinent part that a detainee may seek review of a detention order by a “motion for revocation or amendment of the order.” The statute is silent as to the standard of review that the court should employ. Inasmuch as this motion essentially is the same as a “motion to amend” under the Bail Reform Act of 1966, 18 U.S.C. § 3147 (repealed), the court will exercise the de novo standard of review held appropriate under the former § 3147. United States v. Smith, 87 F.R.D. 693, 699 (E.D.Cal.1980), aff'd, 734 F.2d 22 (9th Cir.), cert. denied Smith v. United States, — U.S. -, 105 S.Ct. 211, 83 L.Ed.2d 142 (1984), and cert. denied sub. nom. Fisherman v. United States, — U.S. -, 105 S.Ct. 262, 83 L.Ed.2d 198 (1984).

The court held a detention hearing on March 14, 1985. Neither the government nor defendant called any witnesses. The parties submitted the matter based on the evidence presented to the magistrate, supplemental information and declarations supplied by defendant, and the arguments of counsel before this court.

Defendant’s submissions consisted of a number of declarations by persons claiming to know defendant Moore and evidence of his music performance and production business. The declarations are not made under penalty of perjury and provide no information about the declarants. They generally recite the length of time the declarant has known the defendant. They state that he is a person of good character and does not pose a threat to the community. Each declaration is worded substantially the same.

There are other facts pertinent to detention known to this court as a result of hearing a motion to traverse the search warrant. They cannot be overlooked in considering whether defendant is a danger to the community. The informant who provided the information supporting the warrant testified before this court, as did the affiant, an Oakland police officer. The informant is related to defendant Moore. He recanted his statements made to the officer. This court concluded the informant was not credible at the time he testified in court.

The officer offered a plausible explanation for the informant’s recantation. The informant had previously acknowledged to the officer his fear of reprisal because he believed the defendant knew or would come to know that he was the informant. In fact, the informant advised the officer that the reason he gave up information regarding defendant Moore was to aid his own status in pending criminal matters. He believed this was worth the risk because Moore would be able to post bail shortly after his arrest and the case would drag through the state courts. The informant did not count on defendant Moore being charged in federal court and subject to detention without bail. The evidence suggests that when the informant realized Moore would not be out on bail and would shortly go to trial, he recognized the precariousness of his situation and feared for his safety. This court finds that the informant’s change of testimony was primarily motivated by fear of reprisal.

In light of the informant’s testimony and the uncontroverted findings of the magistrate, the additional declarations are not persuasive. The magistrate’s findings on this issue are adopted. This court concludes that the government has established by clear and convincing evidence that there are no conditions of release that would reasonably assure the safety of the informant and the community.

No other evidence was presented by the government in support of its contention that defendant is a flight risk. The additional declarations and evidence submitted by defendant are also considered in connection with this further grounds for detention.

The findings of the magistrate on the flight risk issue are adopted except those contained at page 15 of the Detention Order relating to the “fronting” of drugs. The government merely made a proffer that experts would testify to the practice of fronting drugs to dealers. No actual testimony has been given on this issue. Nor is there any evidence before the court that fronting of drugs occurred in this case. Consequently there are no facts from which this court can arrive at the conclusion, argued by the government, that in fronting situations the dealer, here Moore, is under a great deal of pressure to repay the person fronting the drugs. Being unable to repay, the argument continues, the defendant is likely to flee the jurisdiction. Since there is no reliable evidence supporting this finding the order is amended to delete lines 4 at page 15 through line 2 at page 16. In addition, the street value the government places on the drugs is not supported in the record and that amount is deleted from the order. This court finds the street value to be substantial but undetermined.

In view of defendant’s substantial ties with the community, his record of making all prior court appearances in other matters and the other findings of the magistrate as amended herein, this court finds that the government has failed to establish by clear and convincing evidence that there are no conditions that would reasonably assure defendant’s appearances in court. However, conditions for release need not be set. This court has already concluded that the defendant shall be detained because there are no conditions that will reasonably assure the safety of the informant and the community. Accordingly, defendant is committed to the custody of the Attorney General or his authorized representative and shall be detained pending trial subject to the conditions of 18 U.S.C. §§ 3142(i)(2), (3) and (4).

IT IS SO ORDERED.

      . The new Act substantially altered existing bail law. One of the most significant changes was the creation of statutory authority for preventative detention for certain classes of defendants should a court find following a hearing that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e).

      . Section 3142(e) reads in relevant part: “Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. § 801 et seq.)_”

      . Section 3142(f) states in part "[t]he facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence.”

      . Moore raised the constitutionality of the Act before the magistrate, but the magistrate declined to rule on the issue because the Act was not patently unconstitutional.

      . Notably, Moore does not contest that the state interest in safety to the community is legitimate. Schall v. Martin, — U.S. -, 104 S.Ct. 2403, 2410, 81 L.Ed.2d 207 (1984) ("The ‘legitimate and compelling state interest’ in protecting the community from crime cannot be doubted.”). Moore also does not claim that the pretrial detention provisions of the statute undermine the presumption of innocence or are punitive.

      . The Supreme Court has never directly addressed whether the excessive bail clause of the Eighth Amendment provides a constitutional right to bail in criminal cases. Note that the Court’s dictum in Carlson is at odds with its dictum in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 1 (1951), decided the same term: "From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless the right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” 342 U.S. at 4, 72 S.Ct. at 3 (addressing a statutory, not constitutional, right to bail).

      . U.S. v. Payden, 598 F.Supp. 1388, 1395 (S.D.N.Y.1984) addressed and rejected a bona fide vagueness challenge to the BRA stating that such a challenge is not appropriate because the statute does not prohibit conduct.

      . This line of cases pertains to encroachments upon the presumption of innocence in the context of a criminal trial and is not necessarily controlling in the pretrial context. See Bell v. Wolfish, 441 U.S. 520, 533, 99 S.Ct. 1861, 1870, 60 L.Ed.2d 447 (1979) (”[t]he presumption of innocence is a doctrine that allocates the burden of proof in criminal trials.... [I]t has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.”). But see Stack v. Boyle, 342 U.S. at 4, 72 S.Ct. at 3, supra n. 6.

      . Since the court construes the presumption as placing a low burden of production on defendant it may be sufficient to analyze the presumption as it applies to the facts of this case. The application of the statute to defendant Moore is discussed in Part II of this order.

      . The government could proffer no reason at oral argument why a different standard should apply to a finding of risk of flight and danger to the community and, in fact, conceded that the "clear and convincing” standard should apply to the risk of flight determination.

      . See discussion in n. 8, supra.

      . The Burdine court noted that " ‘[t]he word presumption properly used refers only to a device for allocating the production burden.’ ” (quoting F. James & G. Hazzard, Civil Procedure § 7.9, p. 255 (2d ed. 1977)). 450 U.S. at 255 n. 8, 101 S.Ct. at 1094 n. 8.

      .In the instant case the government has come forward with evidence to supplement the presumption. The court need not address the effect of the presumption should neither the defendant nor the government come forward with additional information.


author: STAKER, District Judge.

text:
    John W. GRIMMETT, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 83-3498.
    United States District Court, S.D. West Virginia, at Huntington.
    April 17, 1985.
    Amos C. Wilson, Logan, W.Va., for plaintiff.
    David Faber, U.S. Atty., Charleston, W.Va., for defendant.
   MEMORANDUM ORDER

STAKER, District Judge.

In this action, filed under the provisions of 42 U.S.C. § 405(g), plaintiff seeks review of the final decision of the Secretary of Health and Human Services, denying his applications for social security disability benefits. The case is presently pending before the court on motion of the defendant for summary judgment.

Plaintiff filed his application on March 10, 1982, alleging that he became disabled in March, 1975, as a result of “black lung disease, emphysema, ulcers-stomach, poor circulation, arthritis in knees.” On appeal from an initial and reconsidered denial, an administrative law judge (AU), after hearing, found plaintiff not disabled in a decision issued January 28, 1983. That decision became the final decision of the Secretary when the Appeals Council denied plaintiff’s request for review. Plaintiff thereafter filed this action seeking review of the Secretary’s decision.

A review of the record in this case establishes certain deficiencies which will require further proceedings. The AU, finding that plaintiff could engage in medium work, determined that his impairments were not so severe as to prevent him from performing his former job as an owner-operator of an automobile service station or as a service station attendant. This finding can be sustained, however, only if uncon-tradicted psychiatric evidence indicating serious impairments is ignored. This evidence, which consists of evaluations from McNeer Mental Health Services, Inc., contains diagnoses of atypical organic brain syndrome with severe impairment; borderline intellectual functioning; generalized anxiety disorder, chronic, moderate to moderately severe; and psychological factor affecting physical condition. The court notes that, from the evidence introduced in social security cases, it would appear that the incidence of mental impairments among claimants in the Southern District of West Virginia is on the increase. It seems a fair surmise that this apparent increase has resulted, at least in part, from the Secretary’s failure to have claimants examined by qualified professionals. In lieu of professional opinion, the Secretary too often relies upon evaluations and opinions proffered by the AU. That is what occurred here. Without seeking other expert opinion, the AU chose to discredit the psychiatric and psychological evidence based on his conclusion that plaintiff “had no prior history of mental impairment or emotional problem ... he has not been hospitalized or treated for a psychiatric disorder [and] the examining psychiatrist did not recommend any further treatment or medication for the claimant.” In the absence of any psychiatric or psychological evidence to support his position, the AU simply does not possess the competency to substitute his views on the severity of plaintiff’s psychiatric problems for those of a trained professional. See, Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir.1974); McLain v. Schweiker, 715 F.2d 866, 869 (4th Cir.1983). The absence of any treatment for impairments as serious as those described by Dr. McNeer and Mr. Brezinski may provide a basis for questioning the severity of the impairments; however, a finding to this effect must be based on medical evidence, not the opinion of a layperson. On remand, if the Secretary questions the validity of these reports, she ought to secure a consultative examination. In addition, the Secretary will be required to evaluate this evidence in terms of whether it relates back to the period of plaintiff’s insured status. It is well settled that the Secretary must consider medical reports and testimony regarding a claimant’s condition after the expiration of his insured status to the extent that this evidence may relate back in time. Moore v. Finch, 418 F.2d 1224 (4th Cir.1969).

For the reasons stated, it is hereby ORDERED that this action be, and the same is, remanded to the Secretary. An additional hearing will be required and the parties should be given an opportunity to develop the record with respect to the issues noted. This ruling necessarily has the effect of denying the parties’ motions for summary judgment at this time. It is further ORDERED that this case be retired to the court’s inactive docket.

      . In this regard, it is noted that the ALJ asked plaintiff, “Anybody ever told you you ought to have any group therapy or take any head medicine medication?” (Tr. 40)