author: LEGGE, District Judge.

text:
    The ENGINEERS CLUB OF SAN FRANCISCO, Plaintiff, v. UNITED STATES of America, Defendant.
    No. C-83-5814-CAL.
    United States District Court, N.D. California.
    Feb. 12, 1985.

      Lawrence V. Brookes, Valentine Brookes, Brookes & Brookes, San Francisco, Cal., for plaintiff.
    Jay R. Weill, Michael J. Yamaguchi, David L. Denier, Asst. U.S. Attys., Tax Div., San Francisco, Cal., for defendant.
   OPINION

LEGGE, District Judge.

Plaintiff, The Engineers Club of San Francisco seeks refunds with respect to income taxes which it paid for its fiscal years ended August 31, 1978 through 1981. The refunds are based on plaintiff’s claim that it should have been taxed as a business league under 26 U.S.C. § 501(c)(6), rather than as a social club under 26 U.S.C. § 501(c)(7). The difference between a business league and a club primarily affects the method for calculation of unrelated business income under 26 U.S.C. §§ 511-513.

The case was tried without a jury and submitted for decision. The court has reviewed and weighed the testimony, the exhibits which were introduced into evidence, and the limited stipulation of facts. The court makes the following findings of fact and conclusions of law, and enters judgment in favor of plaintiff.

I.

Plaintiff is a corporation, organized and existing as a nonprofit corporation under the California Corporations Code. Plaintiff’s corporate purposes are stated in its amended articles of incorporation:

“... to provide an organization in which Engineers of all branches of the Profession may come together, and through which they may cooperate and foster the development of the Engineering Profession as a whole in California and incidentally and in aid of such main purpose to acquire by purchase, lease or otherwise and conduct suitable quarters for a meeting place for carrying out such purposes.”

Plaintiff’s membership is composed primarily of professional engineers and persons associated with the engineering profession. Plaintiff serves its members, and the professional engineering societies to which they belong, by providing meetings and meeting space, logistical support, a location for operations, mailing service, telephone service, storage of records, and other facilities and services. Several of the engineering societies use plaintiff’s address as their address. Plaintiff’s manager coordinates the activities of some of the societies.

Plaintiff leases space in an office building in downtown San Francisco. The facilities consist of: the top two floors of the building, on one of which is located kitchen facilities, meeting and dining rooms, and on the other additional space and a bar; the administrative offices are located on another floor; and storage space is located in the basement. Meetings, seminars, educational presentations, and meal and beverage service take place in the rooms on the top two floors. The premises contain the records and equipment of plaintiff and of certain of the societies which use plaintiff’s facilities.

The stipulation of facts records that during the years in question plaintiff’s facilities were used extensively by over twenty engineering societies, and by other organizations associated with the engineering profession, the construction industry, and affiliated activities. The stipulation also states that other professional societies met at plaintiff’s facilities periodically. Plaintiff’s facilities are used by the engineering societies free of charge.

The meetings of the professional organizations are conducted primarily to provide professional education and training to members, and to disseminate information for the benefit of the profession as a whole. To reach a wide audience, many of the meetings are held outside of normal business hours, or are specially scheduled when the members of the professional societies are in the San Francisco area. A significant number of meetings occur during lunch hour or dinner time and include the service of meals and beverages. Typically, a society will have á technical meeting or an opportunity for members to exchange professional views, prior to or during a cocktail hour. There will then be a meal service of three quarters of an hour to an hour. There will then be a meeting, with an hour or two of technical presentation. Sometimes there are technical speakers during the meal service. Many of the meetings at plaintiff’s facilities have no food or beverage service.

It is not necessary for a member of an engineering society to be a member of plaintiff in order to attend a society meeting, or to eat or drink preceding or during a meeting. The engineering society meetings are arranged by a member of plaintiff who is also a member of the particular society.

Not all of plaintiff’s activities are in connection with engineering societies. Plaintiff’s facilities are available for, and are used by, its members for purely social functions. Plaintiff itself offers its members certain social activities. And plaintiff’s facilities are also open for meetings of other groups to which its members may belong, not necessarily of an engineering type. However, plaintiff gives preference to engineering societies over others in the use of its facilities.

II.

The Internal Revenue Service had classified plaintiff as a “club,” exempt from some income tax under 26 U.S.C. § 501(c)(7). In November 1981, plaintiff filed with the Internal Revenue Service a written request for a determination that it qualified for many years, including fiscal years 1978 through 1980, as a “business league” exempt under 26 U.S.C. § 501(c)(6). The IRS issued a ruling denying that exempt status in July 1982. The denial was timely protested, and hearings at the national office of the IRS took place in January 1983. The IRS issued a letter affirming its denial of that exempt status in March 1983.

This action seeks a refund of income taxes for plaintiff’s fiscal years ended August 31, 1978 through 1981. On its original returns, plaintiff calculated its income taxes based upon its being a club under Section 501(c)(7). Timely claims for refund were filed with IRS for each of the fiscal years in question. The refund claims were based on plaintiffs assertion that it is a business league under Section 501(c)(6). The refunds were denied and this suit was filed. This court has jurisdiction under 28 U.S.C. §§ 1340 and 1346(a)(1), and 26 U.S.C. § 7422(a).

The issue is whether during the years in question plaintiff should be classified as a club or as a business league. The dispute centers on plaintiffs food and beverage operation and its social activities.

III.

The exemptions for clubs and business leagues are defined in Title 26 Sections 501(c)(6) and (7) as follows:

(6) Business leagues, chambers of commerce, real-estate boards, boards of trade or professional football leagues (whether or not administering a pension fund for football players), not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.
(7) Clubs organized and operated exclusively for pleasure, recreation, and other nonprofitable purposes, no part of the net earnings of which inures to the benefit of any private shareholder.

The IRS has adopted regulations under those two sections. Those regulations and their predecessors have been in effect for years and have acquired the effect of law. See National Muffler Dealers Assoc, v. United States, 440 U.S. 472, 99 S.Ct. 1304, 59 L.Ed.2d 519 (1979); North Carolina Association of Insurance Agents v. United States, 739 F.2d 949 (4th Cir.1984).

A.

Plaintiff asserts that the IRS is collaterally estopped from claiming that plaintiff is a club by virtue of United States v. Engineers Club of San Francisco, 325 F.2d 204 (9th Cir.1963). The Ninth Circuit there affirmed a decision of the district court that plaintiff was not a “social club” within the meaning of Section 1710 of the Internal Revenue Code of 1939 and Section 4241 of the 1954 Code, with respect .to excise taxes on dues and initiation fees. That case is helpful to plaintiff here, but is not collateral estoppel for the following reasons: First, the tax statutes involved were different and presented the issue of whether plaintiff was a social or a non-social club, not the issue of whether it is a club or a business league. In addition, the facts involved in that issue were for the years 1952 through 1959, while the facts involved here occurred approximately twenty years later. There was testimony during the trial of this case that the nature of plaintiff’s operations had not changed, but the testimony was conclusionary in nature and not factually probative. Further, plaintiff has accepted the tax benefits of being a club under section 501(c)(7) for several years, and cannot claim that it has relied upon the 1963 decision for purposes of its income taxes at issue here.

The method of analysis used by the Ninth Circuit in the 1963 case is instructive here. The court looked at the basic purposes and programs of plaintiff, and said that there is a recognized rule that if the basic purposes and programs are essentially technical and professional, then incidental and limited social features such as meals and beverages will not make it social; 325 F.2d at 206.

B.

Since the 1963 decision is not dispositive, this court must return to the statutes, the regulations, and the cases which have interpreted them.

Numerous cases have been decided on the issue of whether an organization is or is not a business league under Section 501(c)(6). However, those decisions were primarily factual and provide only limited guidance. In National Muffler Dealers Association v. United States, supra, the Supreme Court upheld the decisions of the lower court that the taxpayer there was' not a business league because it consisted only of the franchisees of one company, and was not therefore a “line of business” as defined in the regulations. In the present case, however, this court finds that plaintiff’s activities do promote the whole of the profession of engineering and its related activities. In North Carolina Association of Insurance Agents v. United States, supra, the taxpayer was also denied exemption as a business league. It was engaged in a business, being the sole insurance agent for the State of North Carolina. The court therefore concluded that it was engaged in a regular business of a kind ordinarily conducted for profit. The United States here contends plaintiff is similarly engaged in a regular business, because of its restaurant and beverage operations. This issue will be discussed below, but the North Carolina decision was based upon the facts and circumstances in that case and does not resolve the issues here. Other cases have granted or denied taxpayers status as business leagues, depending upon the facts of the taxpayers’ operations in each case. See, e.g., American Institute of Interior Designers v. United States, 208 F.Supp. 201 (N.D.Cal. 1962); Association Master Barbers and Beauticians v. Commissioner, 69 T.C. 53 (1977); American Automobile Association v. Commissioner, 19 T.C. 1146 (1953).

The parties here agree that under the statutes, regulations, and cases, there are six applicable requirements to be a business league under Section 501(c)(6):

(1) It must be an association of persons having a common business interest.

(2) Its purpose must be to promote that common business interest.

(3) It must not be organized for profit.

(4) It should not be engaged in a regular business of a kind ordinarily conducted for a profit. But a business activity will not cost an organization its exemption as a business league if the activity is merely incidental to the main purposes of the organization.

(5) Its activities should be directed toward the improvement of business conditions of one or more lines of business, as opposed to the performance of particular services for individual persons.

. (6) Its net earnings, if any, must not inure to the benefit of any private shareholder or individual.

The parties agree that plaintiff here meets the first three requirements, but the second three are in dispute. Those disputes center around the food, beverage, and social activities of plaintiff. The court therefore turns to an examination of those activities to determine whether requirements 4, 5 and 6 have been met. In examining the facts and requirements, the court notes that the burden of proof is upon the taxpayer, and that tax exemptions are narrowly and strictly construed in favor of the United States; Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935); Associated Barbers and Beauticians v. Commissioner, supra.

IV.

The general activities of plaintiff have been discussed above, based upon the stipulation of facts and upon findings of fact which the court is satisfied are proved by a preponderance of the evidence.

Plaintiff is a membership club, and its membership is not open to all persons, not even all engineers, who wish to apply. However, the record indicates that at least two other membership clubs have also been classified by defendant as business leagues. They are The World Trade Club and The San Francisco Commercial Club. The court finds, by a preponderance of the evidence and by the applicable law, that plaintiffs professional operations, standing alone, would qualify it as a business league. The question then is the effect of plaintiffs food, beverage and social activities.

It is difficult to quantify precisely, either numerically or by percentages, the extent of the food, beverage and social activities. The parties did not present plaintiffs regular financial statements. And its books were generally kept in such a manner as to satisfy the IRS’s reporting requirements under Section (c)(7), rather than to show information helpful to determine whether plaintiff is entitled to (c)(6) status. The amount of “social” gross revenue could not be precisely determined. There were also definitional difficulties in evaluating the testimony of the witnesses and the exhibits, on such questions as: what was “social” versus “business”; what was “member” versus “non-member”; whether an activity was “banquet” or some other type of gathering; and whether specific events were “social” or “business” in nature. However, the testimony and the exhibits are sufficient to establish the following by a preponderance of the evidence.

During the years in question approximately two-thirds of plaintiff’s gross revenue was from the sale of food and beverage. During those years, dues increased from $332,000. to $453,000., while food and beverage sales increased from $642,000. to $855,000. The policy of plaintiff’s board of directors was to break even on the combined food and beverage operations, and leave the dues and initiation fee income to cover fixed costs and general and administrative expenses. Any profit from the food and beverage operations could have been used to defray other expenses, but there was uncontradicted testimony that such a surplus would actually be put into investments for capital development. One exhibit showed that for the four years in question there was a total combined net profit of approximately $25,000. Another exhibit showed that the food and beverage operation actually resulted in a net loss during those years. Whichever exhibit was more accurate, it is clear that there was in fact little, if any, net profit from the combined food and beverage operations.

With respect to the use of plaintiffs facilities, the record is clear that extensive use was made by engineering societies and by plaintiff’s members for business purposes. There were also some purely social events. The club manager estimated twelve or so social events per year. From the listing of plaintiff’s activities in the exhibits, it appears that the purely social events were a very small percentage of the total usage, and they were far outweighed by business meetings. The government’s witness estimated that 34% of plaintiff’s banquet business was social, and that the banquet social use constituted approximately seven to eight per cent of the club’s gross sales. The government’s witness also estimated that the usage of plaintiff’s facilities was approximately 90% business and 10% social. From a numerical point of view, therefore, plaintiff has established by a preponderance of the evidence, even construing the evidence most favorably to defendant, that at least 90% of its food and beverage operations were business related, and no more than 10% were social.

Another factor is as important as numbers and percentages. That is, the degree to which the activities of the plaintiff — including its food, beverage and social usage aided the basic purposes and programs of its technical and professional activities; U.S. v. Engineers Club of San Francisco, supra, p. 206. Under that functional test, the food and beverage, and to a lesser degree the social activities, do serve those purposes. The food and beverage service are usually short compared with the business portions of the meetings. All of the plaintiff’s public rooms are used for the meetings and conferences. Some of the rooms are used for meetings during the day, with no food and beverage service. During the years in question, engineering societies used plaintiff’s facilities for meetings on an average of three and one-half nights per week. The engineering societies’ meetings were open to all engineers who were members of those societies, whether they were members of plaintiff or not. And as high as 75% of the persons attending the meetings of the societies were not members of plaintiff. Most of the time of the staff of plaintiff was spent on the activities of the societies. The focus of plaintiff’s operations, both the business meetings without food and beverage and those activities which included food and beverage, was on the promotion of the engineering profession, the activities of the profession and its related endeavors, and the professional development of persons connected with them.

The court therefore concludes under requirement No. 4 that plaintiff was not engaged in a regular business of a kind ordinarily conducted for profit, and that its food, beverage and social activities were incidental to its professional objectives. Under requirement No. 5, the activities of plaintiff were directed toward the improvement of business conditions of a line of business, as opposed to the performance of particular services for individual persons. And under requirement No. 6, plaintiff’s net earnings, if there were any, did not inure to the benefit of any private shareholder or individual. The requirements for a “business league” under the regulations were therefore satisfied.

V.

For the fiscal years ended August 31, 1978 through 1981, plaintiff was entitled to be taxed as a business league under 26 U.S.C. § 501(c)(6).

Plaintiff is entitled to judgment against defendant for the refunds sought for each of the years in question: $245.00 for the fiscal year ended August 31, 1978; $1,223.00 for the fiscal year ended August 31, 1979; $153.00 for the fiscal year ended August 31, 1980; and $5,944.00 for the fiscal year ended August 31, 1981; together with interest on each of those sums; and costs of suit.

The court denies plaintiffs request for attorneys’ fees under 26 U.S.C. § 7430. The issue was sufficiently close that defendant should not be penalized for contesting plaintiff’s claims. And in view of the sums of money involved, this action was primarily in the nature of a declaratory judgment proceeding to establish plaintiff’s status as a Section 501(c)(6) business league.

Plaintiff is to submit within ten days a proposed form of judgment setting forth the decisions stated in this section V.

      . The factual statements, and the conclusions of law and judgment which result from them, pertain to plaintiffs fiscal years ended August 31, 1978 through 1981.

      . Treas.Reg. § 1.501 (c)(6) — 1 (1984). Business leagues, chambers of commerce, real estate boards, and boards of trade.
      A business league is an association of persons having some common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for -profit. It is an organization of the same general class as a chamber of commerce or board of trade. Thus, its activities should be directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons. An organization whose purpose is to engage in a regular business of a kind ordinarily carried on for profit, even though the business is conducted on a cooperative basis or produces only sufficient income to be self-sustaining, is not a business league. An association engaged in furnishing information to prospective investors, to enable them to make sound investments, is not a business league, since its activities do not further any common business interest, even though all of its income is devoted to the purpose stated. A stock or commodity exchange is not a business league, a chamber of commerce, or a board of trade within the meaning of section 501(c)(6) and is not exempt from tax. Organizations otherwise exempt from tax under this section are taxable upon their unrelated business taxable income. See part II (section 511 and following), subchapter F, chapter 1 of the Code, and the regulations thereunder.
      Treas.Reg. § 1.501(c)(7)-l (1984). Social clubs.
      (a) The exemption provided by section 501(a) for organizations described in section 501(c)(7) applies only to clubs which are organized and operated exclusively for pleasure, recreation, and other nonprofitable purposes, but does not apply to any club if any part of its net earnings inures to the benefit of any private shareholder. In general, this exemption extends to social and recreation clubs which are supported solely by membership fees, dues, and assessments. However, a club otherwise entitled to exemption will not be disqualified because it raises revenue from members through the use of club facilities or in connection with club activities.
      (b) A club which engages in business, such as making its social and recreational facilities available to the general public or by selling real estate, timber, or other products, is not organized and operated exclusively for pleasure, recreation, and other non-profitable purposes, and is not exempt under section 501(a). Solicitation by advertisement or otherwise for public patronage of its facilities is prima facie evidence that the club is engaging in business and is not being operated exclusively for pleasure, recreation, or social purposes. However, an incidental sale of property will not deprive a club of its exemption.

      . There was no direct testimony regarding The San Francisco Commercial Club. However, mention of its status as a business league was contained in documents admitted into evidence, and the hearsay objection to those documents was waived.

      . Defendant does not contest that plaintiff was a club under (c)(7). And the last element for status as a club under (c)(7) is essentially identical to this last requirement for a business league under (c)(6).


source: Caselaw Access Project

author: DOWD, District Judge.

license: Public Domain

text:
    Billy D. CARR, et al., Plaintiffs, v. The RCA RUBBER COMPANY, Defendant.
    No. C84-795A.
    United States District Court, N.D. Ohio, E.D.
    Feb. 25, 1985.
    On Motion To Correct Judgment May 23, 1985.

      Alan Ross, Asst. U.S. Atty., J. William Petro, U.S. Atty., Cleveland, Ohio, for plaintiffs.
    Sidney C. Foster, Jr., Brouse & McDowell, Co., L.P.A., Akron, Ohio, for defendant.
   MEMORANDUM OPINION

DOWD, District Judge.

Plaintiffs, Billy D. Carr and Wendell E. Newman, filed the above-captioned case against defendant, the RCA Rubber Co., alleging a denial of reemployment following military service as is required pursuant to 38 U.S.C. § 2021. A trial was held in the above-captioned case on October 23, 1984. Premised upon the testimony of Richard T. Reiss, William Sloan, Billy D. Carr, Wendell Newman, and the exhibits admitted into evidence, the Court makes the following findings of fact and conclusions of law.

The primary issue before the Court, which is relevant to both plaintiffs’ claims, is whether the RCA Rubber Company is the successor in interest to plaintiffs’ former employer, Eclat. Eclat was in the business of manufacturing semi-pneumatic tires at its sole manufacturing facility in Cuyahoga Falls, Ohio. Prior to 1973, Eclat, RCA, and a third company, Pulaski Rubber Co., were owned by the same group of shareholders. The companies shared the following common officers: board of directors, president, treasurer, assistant to the president, assistant secretary, vice president, and secretary of the companies. RCA furnished Eclat with administrative services such as personnel services, data processing services, billing and invoicing services, purchasing services and accounting services. Both plaintiffs obtained their positions at Eclat after interviewing RCA personnel.

In January, 1973, Eclat merged with RCA through a stock transfer. The assets and liabilities of Eclat became the assets and liabilities of RCA. In 1974, Eclat’s physical plant in Cuyahoga Falls, Ohio, was condemned for urban renewal. By April 18, 1975, Eclat’s manufacturing facility was closed. In November, 1974, the local union representing employees at Eclat entered into an agreement with Eclat that its employees would be given the first opportunity for employment at RCA. Eclat employees beginning work at RCA were treated as “new hires” except for vacation pay purposes. Former Eclat employees beginning at RCA were not given credit for seniority accumulated at Eclat except for vacation purposes.

Upon consideration, the Court concludes that RCA Rubber Co. is the successor in interest to Eclat for the purposes of the Veterans Reemployment Act. In Chaltry v. Ollie’s Idea, Inc., 546 F.Supp. 44, 50 (W.D.Mich.1982), the Court reasoned as follows:

Although there is a dearth of legislative history on the significance of “successor in interest,” the statute is to be construed liberally in favor of the veteran. Coffy v. Republic Steel Corp., 447 U.S. 191, 196, 100 S.Ct. 2100, 2105, 65 L.Ed.2d 53 (1980). Moreover, the major purpose of the Act is to ensure that those who fulfill military commitments do not return to civilian life disadvantaged because of their service. The focus of the statutory remedy is on the plaintiff veteran’s need for reemployment. For example, when a veteran seeks reemployment, it matters not that the defendant employer has hired another individual or that no vacancy is available. See e.g., Kay v. General Cable Corp., 144 F.2d 653, 655 (3d Cir.1944).
Congress’ primary concern was to ensure that “eligible veterans ... are promptly placed in a satisfactory job or job-training opportunity or receive some specific form of employment assistance.” Conf.Rep. No. 1240, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Ad. News 6336, 6343.

Id.

RCA manufactures rubber floors for transit cars, a different product than Eclat manufactured. Approximately fourteen Eclat' employees went to work for RCA. Some of the Eclat employees went to work for Pulaski Rubber. RCA does not use Eclat’s physical plant; however, it does use some of Eclat’s machinery and equipment. Although Eclat and RCA operated under different names, at different locations, they were essentially the same company following the merger in 1973. It was a case of a company manufacturing similar, but different products at different locations. RCA obviously recognized Eclat employees as employees of RCA, or it would have had no obligation to provide Eclat employees with jobs at RCA, as such jobs became available. As is often the case when a manufacturer merges its plants, the seniority of the employees at the closing plant is not transferred to the plant which remains open to maintain industrial peace with the work force which is not transferring. The non-transferability of seniority does not outweigh the fact that Eclat and RCA had the same owners and shared the same upper level management. Accordingly, the Court concludes that the RCA Rubber Company is the successor in interest to Eclat.

1. Billy D. Carr.

Carr was employed at Eclat from October 12, 1973 until November 29, 1974, at which time he was laid off in connection with the closing of the Eclat Manufacturing facility in Cuyahoga Falls, Ohio. While employed at Eclat, Carr became a member of the local union representing Eclat employees. When Carr was laid off, he had recall rights pursuant to the memorandum of agreement entered into between the local union and management.

On December 3, 1975, Carr entered the United States Armed Services. On September 27, 1977, while Carr was in the Armed Services, RCA sent a letter to his last civilian residence address. The letter informed Carr that a position had become available at RCA and requested him to respond if interested. The letter was returned to RCA unopened because Carr was no longer residing at the address to which it was mailed. William Sloan, the personnel officer in charge of implementing the memorandum of agreement at RCA, gave the notice to Carr’s father, a long time employee of RCA. Carr’s father informed Sloan that Carr was in the Armed Services. Carr was then removed from the list of Eclat employees eligible for a position at RCA. The notice sent to Carr was also sent to several other former Eclat employees. Even if Carr had responded that he was ready and willing to accept the position which became available in 1977, he would not have received the job because there were employees with more seniority than Carr still waiting to receive a position at RCA.

On December 2, 1979, Carr received an honorable discharge from the Armed Services. Because of accumulated leave, Carr was actually released at the end of September, 1979. On October 19, 1979, Carr wrote to RCA requesting reemployment. On October 29, 1979, RCA responded to Carr that since he had not responded to the September 1977 letter, Carr was removed from the eligibility list.

Carr eventually requested the U.S. Labor Department to aid him in obtaining reemployment. By May of 1978, RCA was offering positions to former Eclat employees with less seniority than Carr; consequently, Carr was eligible for employment with RCA when he was discharged from the service in 1979. In January, 1980, RCA offered Carr a position. Carr commenced employment with RCA on February 4, 1980. However, Carr did not waive any claim for back pay. Carr was not credited with any seniority he accumulated at Eclat for the purposes of vacation pay at RCA. The Labor Department suggested Carr pursue the back pay through the local union at RCA.

In March, 1980, Carr filed a grievance with the local union representing RCA’s employees. Through the grievance Carr sought to receive the benefits given to other former Eclat employees. The grievance was denied because the rights Carr was attempting to enforce were not part of the collective bargaining agreement in effect with RCA’s employees.

The Court concludes Carr had reemployment rights with RCA upon his honorable discharge from the Armed Services. Carr received an honorable discharge; he made an application for reemployment with RCA within 90 days of his discharge; and, RCA’s circumstances did not change so as to make it impossible or unreasonable to reemploy Carr.

Carr asserts he is entitled to back pay for the period he was not reemployed by RCA. Carr asserts he is entitled to back pay from October, 1979, when he requested reemployment. Although Carr was on vacation leave in October, 1979, he was not honorably discharged until December 2, 1979. Pursuant to 38 U.S.C. § 2021, Carr was not entitled to reemployment until he was honorably discharged.

Carr’s rate of compensation when he commenced employment with RCA in 1980 was $6.29 per hour. Considering Carr was entitled to reemployment from the date of his honorable discharge on December 2, 1979, he is entitled to nine weeks of back pay. Carr’s back pay is calculated as follows:

6.29 (hourly rate) X 40 hours X 9 weeks = $2,264.40

The parties agree that unemployment compensation, in the amount of $110.00 per week, should be deducted from any award of back pay awarded to Carr. Nine weeks of unemployment compensation at the rate $110.00 per week is equal to $990.00. Consequently, Carr is entitled to back pay calculated as follows:

$2,264.40 (Gross back pay)
- 990.00 (Unemployment compensation)
$1,274.40

If Carr had been credited with his Eclat seniority for vacation purposes, as was provided in the memorandum of agreement, Carr would have received two weeks vacation pay in 1980, and an extra week vacation pay in 1982, 1983, and 1984.2 In 1980, Carr’s vacation pay would have been calculated at the rate of $6.89 per hour. Carr’s vacation pay for 1980 is calculated as follows:

6.89 (hourly rate) X 80 hours = $551.20

Carr’s vacation pay for 1982, 1983 and 1984 is calculated at a rate of $7.68 per hour. Carr’s vacation pay which he was denied for 1982, 1983, and 1984 is calculated as follows:

7.69 per hour (hourly rate) x 120 hours = $922.80.

Consequently, Carr’s total damages are calculated as follows:

$1,274.40 (back pay)
551.20 (vacation pay 1980)
922.80 (vacation pay 1982,1983,1984)
$2,748.40 (Total)

Accordingly, judgment is awarded in favor of plaintiff Carr and against RCA Rubber Company in the amount of $2,748.40.

2. Wendell E. Newman.

Newman commenced employment at Eclat August 5, 1974. Newman accepted the position with the understanding that it was only temporary because Eclat would soon be ceasing operations. Eclat needed employees during the period it was winding down operations because many of its employees had transferred to Pulaski or RCA.

On November 15, 1974, Newman’s employment with Eclat was terminated in connection with the gradual termination of operations at the Eclat facility in Cuyahoga Falls, Ohio. In April 1978, RCA offered Newman a position. In May 1978, Newman informed Mr. DeWitt of RCA’s personnel department that he wished to work for RCA but he had an upcoming reserve obligation with the United States Armed Forces.

Newman attempted to get his reserve obligation postponed so that he could commence employment at RCA. Mr. DeWitt of RCA attempted to aid Newman in getting the reserve obligation postponed by writing a letter, directed to whom it may concern, stating that Wendell Newman has recall rights with RCA but must return now or lose his recall rights. Newman’s attempt to have his reserve obligations postponed was unsuccessful.

At approximately the same time he was attempting to obtain a job with RCA, Newman commenced full time employment at the American Standard Company in Alliance, Ohio. Upon completing his reserve obligation August, 1978, Newman attempted to gain employment with RCA. RCA declined to employ Newman and he exercised his reemployment rights with American Standard.

The Court concludes Newman did not have reemployment rights with RCA. The Veterans Reemployment Act specifically excludes temporary employees. 38 U.S.C. § 2021(a). Newman understood when he was hired by Eclat that he was only a temporary employee and his employment would be terminated when Eclat closed. Although RCA was willing to hire Newman before he commenced his reserve obligation, he never in fact commenced employment with RCA. DeWitt did mention in his letter, directed to whom it may concern, that Newman had recall rights; however, DeWitt’s letter was simply an attempt to aid Newman in getting his reserve obligation deferred.

Furthermore, Newman could not have been a permanent employee of two employers. He worked for American Standard prior to commencing his reserve obligation and he invoked his reemployment rights to work at American Standard upon his return from the reserves. Following his discharge, Newman returned to precisely the same employment and under the same conditions he had prior to commencing his reserve obligation. If Newman had reemployment rights, as he testified, with American Standard, he could not also have reemployment rights with RCA. Accordingly, the Court enters judgment in favor of RCA and against Newman.

CONCLUSION

Pursuant to the reasons set forth above, the Court finds plaintiff Billy D. Carr was entitled to be reemployed by defendant RCA Rubber Company upon his honorable discharge from the U.S. Armed Services on December 2, 1979 and compensatory damages are awarded in favor of Carr and against RCA Rubber in the amount of $2,748.40. The Court finds in favor of defendant RCA Rubber Co. on all claims of plaintiff Wendell E. Newman.

JUDGMENT ENTRY

Pursuant to the reasons set forth in the Memorandum Opinion filed contemporaneously with this Judgment Entry, IT IS HEREBY ORDERED, ADJUDGED, and DECREED that judgment is entered in favor of plaintiff Billy D. Carr and against defendant RCA Rubber Company, on Carr’s claims pursuant to 38 U.S.C. § 2021, in the amount of $2,748.40. Judgment is entered in favor of defendant RCA Rubber Co. on all claims of plaintiff Wendell E. Newman. All parties are to bear their own costs.

ORDER

ON MOTION TO CORRECT JUDGMENT

Before the Court is plaintiff Billy D. Carr’s motion to correct judgment pursuant to Fed.R.Civ.P. 60(a). In a memorandum opinion and judgment entry of February 25, 1985, the Court held that plaintiff Carr had reemployment rights with defendant RCA Rubber Company pursuant to the Veterans Reemployment Act, 38 U.S.C. § 2021. The Court held that RCA should have reemployed Carr when he received his honorable discharge on December 2, 1979. However, the Court did not specifically state that December 2, 1979 is Carr’s seniority date with RCA. Carr and RCA agree that this Court must determine Carr’s seniority date, because such date has an effect on Carr’s rights as an RCA employee.

Under normal circumstances, a returning veteran maintains the same seniority date he had when he left the employment in question. The Supreme Court held that a returning veteran “does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously____” Coffy v. Republic Steel Corp., 447 U.S. 191, 196, 100 S.Ct. 2100, 2104, 65 L.Ed.2d 53 (1980). However, in the action before the Court, Carr’s employer, Eclat, ceased operations and all employees were laid off. The employees were given recall rights at RCA, the successor in interest to Eclat, but they received a new date of seniority upon commencing employment at RCA, except for vacation pay purposes.

Consequently, to place Carr back on the seniority escalator at the place he occupied if he had not entered military service, Carr’s seniority date would have to be the date he would have been recalled to RCA if he had not been in the military service. The date Carr would have been recalled to RCA is unknown; however, it is undisputed that by May 16, 1978, RCA was offering positions to former Eclat employees with less seniority than Carr. Consequently, if Carr had not been in the armed services, he would have been recalled by RCA by May 16, 1978.

Accordingly, the Court holds that plaintiff Billy D. Carr’s seniority date with the RCA Rubber Company is May 16, 1978.

IT IS SO ORDERED,

      . Semi-pneumatic tires are small rubber tires used on consumer products such as baby strollers.

      . Carr actually applied for a position with RCA before his honorable discharge became effective because of his accumulated vacation leave.

      . Carr also asserts he is entitled to two weeks vacation pay for 1979. However, because Carr could not have commenced employment until December, 1979, he was not entitled to vacation pay for that year.

      . Carr also requested supplemental pay in the amount of $720.00. He would have received the supplemental pay during a six week layoff in 1980 if he had been credited with one year of seniority. However, Carr's Eclat seniority was only credited for vacation purposes at RCA, pursuant to the memorandum of understanding.


author: RENNER, District Judge.

text:
    VOYAGEURS NATIONAL PARK ASSOCIATION DEFENDERS OF WILDLIFE, Sierra Club, National Parks and Conservation Association, Friends of the Earth, Friends of Animals and Their Environment, Help Our Wolves Live, Inc., the International Ecology Society, and the National Audubon Society, Plaintiffs, v. G. Ray ARNETT as Assistant Secretary of the Interior for Fish and Wildlife and Parks, the Department of Interior, and the Minnesota Department of Natural Resources, Defendants.
    Civ. No. 3-84-261.
    United States District Court, D. Minnesota, Third Division.
    March 6, 1985.
    Brian B. O’Neill, Amy B. Bromberg, and Cynthia Pope, law student, Minneapolis, Minn., for plaintiffs.
    Lisa Hemmer, Washington, D.C., and Jon Hopeman, Minneapolis, Minn., for G. Ray Arnett and the Dept, of Interior.
    Philip J. Olfelt, and C. Paul Farici, St. Paul, Minn., for the Minn. Dept, of Natural Resources.
   MEMORANDUM AND ORDER

RENNER, District Judge.

Before the Court are 1) plaintiffs’ motion for summary judgment on Count I of the Complaint; 2) defendant Minnesota Department of Natural Resources’ motion to dismiss the complaint for failure to state a claim for relief; and 3) defendants G. Ray Arnett and the Department of Interior’s motion for summary judgment. The Court, having accepted affidavits and exhibits on these matters, will treat all the motions as requesting summary judgment.

FACTS

Plaintiffs are nine environmental organizations challenging the federal approval of a state wildlife management plan governing the eastern portion of Black Bay in Rainy Lake in the state of Minnesota. The one thousand acre area at the eastern end of Black Bay is known as the Gold Portage area. It consists primarily of water, including only about thirty acres of dry land. H.Rep. No. 871, 97th Cong., 2nd Sess. 3 (1982) [hereinafter cited as “House Report”]. This tract of land and water was once a part of Voyageurs National Park (hereinafter “the Park” or “Voyageurs”).

The recent history of the Gold Portage area lends perspective to this controversy. In 1971, Congress authorized Voyageurs National Park. See Pub.L. No. 91-661, 84 Stat. 1970-1973, 16 U.S.C.A. §§ 160-160k (West 1973). Before the Park could be formally established, Congress required the State of Minnesota (hereinafter “the State”) to donate to the United States all State lands within the proposed park boundaries. Id. § 160a (West Supp.1984). The Gold Portage region was part of these lands. In 1975, Minnesota completed the transfer of its lands to the federal government, and the Secretary of Interior (hereinafter “the Secretary”) formally established Voyageurs National Park. See Minn.Stat. § 84B.01-.10 (1984); 40 Fed.Reg. 15,921-15,922 (April 8, 1975).

Inclusion of the Gold Portage region within the Park boundaries generated extensive controversy. House Report at 3. Apparently, an early version of a map representing the proposed Voyageurs National Park excluded this area and led some people to believe it would not become part of the Park. Public Land Management Policy: Hearings Before the Subcomm. on Public Lands and National Parks of the Comm, on Interior and Insular Affairs, House of Representatives, 97th Cong., 2nd Sess. 11 (1982).

Once it became part of Voyageurs, National Park regulations prohibited all hunting and trapping there. 36 C.F.R. §§ 2.2,. 2.4 (1984). Since the eastern end of Black Bay was reputedly one of the few good duck hunting spots in the county, local interests were, from the beginning, disgruntled with the duck hunting prohibition. Letter to George B. Hertzog from Robert L. Herbst (April 13, 1972). The federal government’s authority to regulate hunting on the bay was challenged, without success. See United States v. Brown, 431 F.Supp. 56 (D.Minn.1976), affd, 552 F.2d 817 (8th Cir.), cert, denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977). Thereafter, the duck hunting controversy continued to inhibit the development of the Park.

In an attempt to eliminate the dispute, Congress enacted the Boundary Revision Act (hereinafter “the Act”). Act of Jan. 3, 1983, Pub.L. No. 97-405, 96 Stat. 2028, 16 U.S.C.A. § 160a-1 (West Supp.1984). The Act deleted the one thousand acre region of Black Bay from the Park and transferred it back to the State. Id. § 160a-1(b)(1)(E). In return, Minnesota gave other lands to the United States for inclusion in Voyageurs. Id. § 160a-1(b)(1)(C), (D).

Before the Gold Portage tract could be transferred to the State, the Act required that the State enter into an agreement satisfactory to the Secretary that:

(i) the State has established a wildlife management area in the area authorized to be deleted and conveyed to the State by paragraph (1)(E);
(ii) the State has prepared a plan acceptable to the Secretary to manage all the waters of and State lands riparian to Black Bay (including all of the State-owned lands and waters of Rainy Lake) to preserve to the fullest extent possible the purposes for which the park was established.

Id. § 160a-1(b)(2)(B)(i), (ii). Paragraph (1)(E), requiring the wildlife management area, refers to the one thousand acres of Black Bay to be conveyed to the State.

On September 27, 1984, the Secretary (acting through the Midwest Regional Director of the National Park Service) entered into an agreement with the State pursuant to section 160a. The wildlife management plan (hereinafter “the Plan”) submitted under the agreement permitted duck hunting during its established seasons. The plan also permitted trapping, stating as follows:

Purbearers may only be taken by trapping during the established seasons within the established zones. Unprotected mammals may only be taken during an open trapping season for any protected species, but only during such hours and dates and by the same methods as allowed for taking protected species. The Park Service and the DNR will monitor trapping and its effects on animal populations, including incidental taking of animals for which there is no open season. If it is determined that trapping results in significant adverse effects on these populations within Voyageurs National Park, the Commissioner will further limit or prohibit trapping by order.

State of Minnesota, Dep’t of Natural Resources, Commissioner’s Order No. 2162 (September 9, 1983) (emphasis supplied).

CLAIMS OF PARTIES

In Count One (I) of their Complaint, plaintiffs allege the Secretary violated the Boundary Revision Act by approving a wildlife management plan which permitted trapping in the Gold Portage area and the remainder of Black Bay. During argument, plaintiffs narrowed their request to one for declaratory relief as to the Gold Portage area. Plaintiffs request judgment declaring that the Secretary violated the Act. In Count Three (III) of the Complaint, plaintiffs allege that the Secretary’s approval of the Plan was arbitrary and capricious in violation of the Administrative Procedure Act, 5 U.S.C.A. §§ 701-706 (West 1977). Finally, plaintiffs allege that the Environmental Assessment of the wildlife management plan was contrary to the National Environmental Policy Act, 42 U.S.C.A. §§ 4321-4370a (West 1977 & Supp.1984) and the Council on Environmental Quality Regulations, 40 C.F.R. §§ 1500-1517.7 (1984).

Defendants contend that they are entitled to summary judgment on all counts of the Complaint. They argue that the agreement between the Secretary and the State is lawful and consistent with congressional intent. Defendants further assert that the actions of the Secretary and the Fish and Wildlife Service were neither arbitrary nor capricious. Finally, defendants claim that the Environmental Assessment’s finding of no significant environmental consequences was not unreasonable.

ANALYSIS

In ruling on a summary judgment motion, the Court must determine whether there is any issue of material fact precluding such judgment and whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). As to Count One (I), the parties do not dispute the facts but disagree as to their interpretations of the Boundary Revision Act. Plaintiffs reason that by permitting trapping, the Plan violates the Act because it does not “complement to the fullest extent possible the purposes for which the Park was established.” See 16 U.S.C.A. § 160a-l(b)(2)(B)(ii). Plaintiffs construe the clear intent of Congress to forbid all hunting and trapping within the Gold Portage area except duck hunting. Defendants argue that Congress left approval of the Plan’s hunting and trapping provisions to the Secretary’s discretion. Defendants contend that the Act, on its face, does not prohibit trapping and that park purposes do not specifically preclude trapping. Furthermore, defendants interpret Congress’ intent as permitting a wildlife management plan that allows trapping.

1. Facial Analysis

A de novo standard of review is to be applied to agency interpretations of questions of law, such as the interpretation of a statute. First National Bank in Sioux Falls v. National Bank of South Dakota, 667 F.2d 708, 711 (8th Cir.1981). The starting point for the statutory analysis must be the plain language of the statute itself. United States Marshal Service v. Means, 741 F.2d 1053,1056 (8th Cir.1984) (citing Kosak v. United States, 465 U.S. 848,-, 104 S.Ct. 1519, 1523, 79 L.Ed.2d 860 (1984); United States v. Weber Aircraft Corn., 465 U.S. 792, -, 104 S.Ct. 1488, 1492, 79 L.Ed.2d 814 (1984)). If the language is unambiguous, absent a clearly expressed legislative intent to the contrary, the language is usually considered conclusive. Id. (citing Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 110, 103 S.Ct. 986, 990, 74 L.Ed.2d 845 (1983)).

As to the thousand acres involved in this dispute, the Act required two things. First, the State must establish a “wildlife management area” in the Gold Portage region. 16 U.S.C.A. § 160a-l(b)(2)(B)(i). Second, the State must develop

a plan acceptable to the Secretary to manage all the waters of and State land riparian to Black Bay (including all of the State-owned lands and waters of Rainy Lake) to preserve the natural resources of the area so as to complement to the fullest extent possible the purposes for which the park was established.

Id. § 160a-1(b)(2)(B)(ii) (emphasis supplied). On its face, neither provision refers to hunting or trapping. Defendants argue that the absence of a specific reference to these activities indicates that they are permitted. The Court disagrees.

The plain meaning of the phrase “wildlife management area” suggests that wildlife is to be managed in a particular manner. The phrase could mean that wildlife is to be managed by permitting extensive hunting and trapping designed to limit wildlife populations. Alternatively, “wildlife management” may mean that the taking of wildlife is prohibited so as to preserve natural wildlife populations. “Wildlife management area” could also refer to the term as it is used by the Minnesota Department of Natural Resources. See State of Minnesota, Dep’t of Natural Resources Commissioner’s Order No. 1961, Regulations Relating to the Public Use of Wildlife Management Areas, § 2. This ambiguity in the term “wildlife management area” requires the Court to look elsewhere for insight into the congressional intent.

Both parties seize upon section 160a-l(b)(2)(B)(ii) as support for their respective positions. Defendants contend that the language “the purposes for which the park was established” refers to section 160 of Title 16, United States Code which recites the “purpose” for Voyageurs as:

to preserve, for the inspiration and enjoyment of present and future generations, the outstanding scenery, geological conditions, and waterway system which constituted a part of the historic route of the Voyageurs who contributed significantly to the opening of the Northwestern United States.

16 U.S.C.A. § 160 (West 1973). Since an explicit prohibition against trapping is not included, defendants argue that the decision to permit trapping was within the State and Secretary’s discretions.

Plaintiffs argue that “the purposes for which the park was established” also refers to the 1916 Organic Act in which the “fundamental purpose” of national parks is described as:

to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C.A. § 1 (West 1974). Since the Boundary Revision Act refers to the plural “purposes,” and sections one and 160 each describe a park “purpose,” the Court is of the opinion that, under the Act, “park purposes” refers to both sections one and 160. In addition, the Eighth Circuit has said that, “the fundamental purpose of national parks, including Voyageurs Park, is ‘to conserve ... the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave [it] unimpaired for the enjoyment of future generations.’ ” United States v. Brown, 552 F.2d 817, 822 n. 7 (8th Cir.), cert, denied, 431 U.S. 949, 97 S.Ct. 2666, 53 L.Ed.2d 266 (1977) (quoting 16 U.S.C.A. § 1) (emphasis supplied). To implement this purpose, the Secretary has passed regulations prohibiting all hunting and trapping within national parks. 36 C.F.R. §§ 2.2, 2.4 (1984).

Plaintiffs argue that if park purposes require that wildlife be unimpaired for the enjoyment of future generations, then the Plan’s trapping provision violates the Act because it does not “complement [park purposes] to the fullest extent possible” as stated in section 160a-1(b)(2)(B)(ii). Congress structured the Boundary Revision Act to treat the Gold Portage area separately. This region alone was designated as a “wildlife management area.” 16 U.S. C.A. § 160a-1(b)(2)(B)(i). Because it was national parkland, Congress had a strong interest in controlling the tract’s future uses. Furthermore, the Gold Portage area extends into national park territory much like a peninsula extends into a body of water.

Congress, however, required that the Gold Portage area, as well as all of the State-owned' lands and waters of Rainy Lake, be managed so as to complement park purposes to the fullest extent possible. Id. § 160a-1(b)(2)(B)(ii). If the Court were to construe this section to prohibit trapping as inconsistent with park purposes, it would impose federal regulations against trapping upon all State owned waters of, and land riparian to, Rainy Lake. This area includes much State owned land not previously part of Voyageurs, and over which national park regulations would not ordinarily apply. Moreover, such an interpretation would logically require a wildlife hunting prohibition in the entire area, a measure which might generate yet another bitter controversy. Therefore the Court rejects such a construction of subpart (ii). Yet, because of the special treatment accorded the thousand acres, the Court views subpart (ii)’s requirement that the Plan complement park purposes to the fullest extent possible as much more rigorous when applied to the thousand acres.

2. Congressional History

Since the Act is facially unclear, the Court seeks guidance in its legislative history. The Boundary Revision Act (H.R. 846) was introduced in the House by Minnesota Congresspersons Oberstar and Vento. 127 Cong.Rec. H90 (daily ed. Jan. 13, 1981). Minnesota Senators Durenburger and Boschwitz introduced the companion bill (S. 625) into the Senate. 127 Cong.Rec. S1838 (daily ed. March 5, 1981). The nearly identical bills were the result of extensive negotiations between the State, National Park Service, and citizens groups. The bills had broad bi-partisan support from the State, Department of Interior, and the Minnesota congressional delegation. Id.; 128 Cong.Rec. H7874-H7875 (daily ed. Sept. 29, 1982).

Senate bill 625 was referred to the Committee on Energy and Natural Resources (hereinafter “Senate Committee”) and from there it was referred to the Subcommittee on Public Lands and Reserved Water (hereinafter “Senate Subcommittee”). The House referred H.R. 846 to the House Subcommittee on Public Lands and National Parks of the Committee on Interior and Insular Affairs (hereinafter “House Subcommittee” and “House Committee” respectively).

On October 29, 1981, the Senate Subcommittee conducted hearings on S. 625. Boundary Revision of Voyageurs National Park: Hearing Before the Subcomm. on Public Lands and Reserved Water of the Comm, on Energy and Natural Resources, United States Senate, 97th Cong., 1st Sess. (1981) [hereinafter cited as “Senate Hearings”]. On May 25, 1982, the Senate Committee submitted a report recommending passage of S. 625 with amendments. S.Rep. No. 97-423, 97th Cong., 2nd Sess. (1982) [hereinafter cited as “Senate Report”]. On June 10, 1982, the Senate considered and passed S. 625. 128 Cong. Rec. S6656 (daily ed. June 10, 1982).

The House Subcommittee then held hearings on H.R. 846 and S. 625 in July and August, 1982. Public Land Management Policy: Hearings Before the Subcom. on Public Lands and National Parks of the Comm, on Interior and Insular Affairs, House of Representatives, 97th Cong., 2nd Sess. (1982) [hereinafter cited as “House Hearings”]. Later in August, the House Subcommittee considered and passed amendments to H.R. 846 in a mark-up hearing. H.R. 846, Voyageurs National Park, House of Representatives Subcomm. on Public Lands and National Parks, Comm, on Interior and Insular Affairs (Aug. 19, 1982) [hereinafter cited as “Subcommittee Mark-Up”]. Another mark-up hearing was held before the full House Committee on September 15, 1982. H.R. 846, To Revise the Boundary of Voyageurs National Park, House of Representatives, Comm, on Interior and Insular Affairs (September 15, 1982) [hereinafter cited as “Committee Mark-up”]. Finally, on September 29, 1982, the House passed H.R. 846. 128 Cong.Rec. H7874 (daily ed. Sept. 29, 1982). Congress later made additional amendments not relevant to this action. See, e.g., 128 Cong.Rec. S13237 (daily ed. Oct. 1, 1982); id. at H9784 (daily ed. Dec. 14, 1982); id. at S15308 (daily ed. Dec. 16, 1982).

Committee reports are considered the most persuasive indicia of congressional intent. Housing Authority of City of Omaha, Nebraska v. United States Housing Authority, 468 F.2d 1, 7 n. 7 (8th Cir.1972). The Senate Report on S. 625 is not without reference to wildlife. The Report includes the following statement from the Acting Secretary of the Interior:

S. 625 would also authorize the deletion of approximately 1,000 acres of land at Black Bay within the present boundary of Voyageurs National Park on condition that the State of Minnesota designate, and subsequently administer, the deleted portion as a State wildlife management area. This provision of S. 625 would resolve a controversy over duck hunting in this area which has existed since shortly after the Park’s authorization. The Black Bay area was hunted by as few as 20-25 hunters a year prior to the Park’s creation, but the issue has taken on an emotional aspect harmful to the local and State cooperation needed for the effective administration of the Park. It is understood that while waterfowling within the management area would be permitted in season, the taking of wildlife would be controlled by the State of Minnesota. Senate Report at 7. (emphasis added)

The House Report also contains the language emphasized above. House Report at 8-9. These references to the wildlife management area clearly indicate that duck hunting will be permitted within season. The same sentences also indicate that the State will impose substantial controls on the taking of other wildlife. To understand the type of control Congress intended, the Court must look to the remaining legislative history.

Throughout the entire legislative history, one theme is pervasive — the one thousand acres of Black Bay were ceded to the State to resolve a controversy over duck hunting. Inumerable indications of congressional intent to permit duck hunting in the Gold Portage Area appear in the record. During the Senate Subcommittee hearings, Senator Durenberger testified that the transfer of the thousand acres was “contingent upon DNR designation of the portion ... as a wildlife management area, permitting the hunting of ducks____” Senate Hearings at 3. Similarly, in a prepared statement Russell Dickenson, the Director of the National Park Service, indicated that “the State of Minnesota would agree to designate and administer the area as a state wildlife management area, where waterfowling would be permitted in season.” Id. at 25.

The record also indicates that only waterfowl hunting would be allowed within the Gold Portage Area. Senator Boschwitz testified that, “[t]he State of Minnesota has agreed to then designate the Black Bay area as a wildlife management area, permitting duck hunting but protecting other wildlife.” Senate Hearings at 37; see also House Hearings at 151. Similarly, Congressman Oberstar said in his prepared statement before the Senate Subcommittee that, “[t]he State of Minnesota would manage the lands and water of Black Bay as a wildlife management area, in which only waterfowl hunting would be permitted.” Id. at 42 (emphasis supplied). This latter testimony evidences a congressional intent to prohibit all wildlife taking except waterfowl hunting within the thousand acres designated as a “wildlife management area.” In interpreting the statute, these statements of the legislation's sponsors should be given substantial weight. Federal Energy Administration v. Algonquin SNG, Inc., 426 U.S. 548, 564, 96 S.Ct. 2295, 2304, 49 L.Ed.2d 49 (1976).

Further evidence of congressional intent to prohibit all taking of non-waterfowl appears in the mark-up sessions. Before recommending H.R. 846 to the full committee, the House Subcommittee held a mark-up session to consider an amendment to the bill. The amendment would have changed section 160a-l(b)(2)(B)(ii) to read:

(ii) the State has prepared a plan acceptable to the Secretary to manage all the waters of and State lands riparian to Black Bay (including all of the State-owned lands and waters of Rainy Lake) to preserve the natural resources of the area so as to complement to the fullest extent possible the purposes for which the park was established, to prevent degradation in air and water quality, to protect fish and wildlife, including the spawning concentrations of fish in Black Bay, Rat Root River, and Rat Root Lake, to protect the stands of vegetation around the margin of Black Bay, to prohibit the construction of permanent duck blinds, to prohibit the hunting of species other than waterfowl, and to preserve the scenery geologic conditions, and waterway systems of the park.

Amendment in the Nature of Substitute of H.R. 846 (emphasis supplied).

In commenting on the bill as enacted, in light of this potential substitute, Congressman Seiberling stated, “[b]ut as the bill is written, it only permits wildfowl hunting, not other types.” Subcommittee Mark-up at 9. Congressman Vento replied, “[t]hat is correct.” Id.

Later, when the full House Committee considered the substitute, Congressman Vento offered an amendment to it. His amendment proposed subpart (ii) as it was later enacted by Congress. In submitting his amendment Congressman Vento commented:

While the State is willing to accept the first part of the amendment [referring to the amendment quoted above] as the members read it in the bill, they are concerned about the specificity and the loss of flexibility that they have with the latter parts. One would prohibit hunting on state land other than waterfowl. At least that is the interpretation they have rendered to this amendment. That certainly wasn’t out intent. What this does is simplifies the requirement. The Secretary would still have to approve that plan. I would remind members this would be on land that is State land, but this is part of the agreement.

Committee Mark-up at 8. Congressman Seiberling then said to Vento:

I certainly have no objection to the amendment [referring to Vento’s amendment which was subsequently enacted], and I think the language in the amendment is sound, because while we are ceding a portion of the Black Bay that was thought to be in the park and is considered in the park,- we are ceding it back to the States. It is adjacent to the park, itself, and it is important that the entire Black Bay area be managed in some compatible manner. That is what this provides. It is still my understanding that it is not the intent of this amendment [again referring to Vento’s amendment] to change the intent of this bill which is that the hunting on Black Bay, itself, will be limited to waterfowl.

Id. at 8-9 (emphasis supplied). Congressman Vento then replied, “[t]hat is correct. The hunting in Black Bay would only be limited to waterfowl and, of course there would have to be a plan submitted in terms of that.” Id. at 9.

Defendants argue that in rejecting the state opposed amendment explicitly prohibiting hunting of non-waterfowl on the State-owned land and waters of Rainy Lake, Congress abandoned its intent to prohibit hunting within the Black Bay area ceded to the State. The discussions in the mark-up hearings clearly contradict this interpretation. Congressman Vento, who sponsored the subpart (ii) amendment, twice assured the committees that his amendment would not change the limitation on hunting in Black Bay itself.

Defendant relies on the testimony of Joseph Alexander, the Commissioner of the Minnesota Department of Natural Resources (hereinafter “the DNR”) to argue that Congress intended to permit trapping within the Gold Portage region. When testifying before the House Subcommittee, Commissioner Alexander indicated that some wildlife management areas (hereinafter “WMA’s”) were managed partly as refuges. House Hearings at 21. Commissioner Alexander also stated that WMA’s were managed:

for the production and propagation of game, wild rice, and in some cases minor fisheries or minnow activities but primarily for waterfowl and for some species of upland game — pheasants, shark-tail, grouse, and in some cases, marginally, for rough grouse. But primarily for waterfowl and pheasants.

Id. at 22 (emphasis supplied). These comments do not indicate that beaver, otter, muskrat, or other animals would be subject to trapping. Instead they lead one to believe that WMA’s are managed primarily to permit waterfowl hunting and limited hunting of some other birds.

In his testimony before the Senate Subcommittee, Commissioner Alexander stated that, “S. 625 would delete [the Gold Portage] area from the park. This would permit hunting within the area.” Senate Hearings at 49. Commissioner Alexander’s reference to hunting was so vague that Senator Wallop later sent a letter to Alexander inquiring whether hunting other than duck hunting, or trapping would be permitted in the WMA. See id. at 79-82. Commissioner Alexander replied, “[y]es, unless I close the area to certain kinds of hunting or trapping by order.” Id. at 81. He also answered that he would “consider taking such actions if necessary ... to cooperate with park management.” Id.

Commissioner Alexander’s response shows his willingness to be flexible in his management of the WMA. Nothing here indicates that Congress intended the Gold Portage WMA plan to be identical to any other State WMA’s. Moreover, Commissioner Alexander was not a member of Congress, and his intentions for Black Bay were not necessarily those of Congress. In fact, as discussed earlier, his view that nonwaterfowl hunting would be permitted was expressly contradicted by several Congresspersons..

Finally, the court relies upon the representations made to the House before it approved H.R. 846. First, Congressman Vento remarked:

The main thrust of this legislation and perhaps the park’s most pressing problem is the controversy that has been generated through the inclusion of a portion of the Black Bay area within the park..... To settle this matter, yet still provide for the utmost protection of the resources in the area, this legislation spells out procedures for turning over the 1,000 acres at Black Bay ... to the State of Minnesota for protection as a wildlife management area. To insure the continued proper utilization of the Black Bay area, the Interior Committee was careful to insert a number of specific provisions, including the use of a reverter clause.

128 Cong.Rec. H7875 (daily ed. Sept. 29, 1984) (emphasis supplied). Later, Congressman Oberstar stated:

The return of Black Bay to the State removes a nearly two-decades-old understanding about the boundaries of Voyageurs National Park and how this particular area should be managed; It will return to the people of Minnesota in this small area the opportunity for recreational uses not permitted within a national park, and will resolve a longstanding controversy over duck hunting in Black Bay.

Id. at H7877 (emphasis supplied).

The Court concludes that Congress intended to resolve a long standing boundary dispute and duck hunting controversy in the Gold Portage area. To fulfill its concern that the wildlife there be protected, Congress provided that the State must establish a Gold Portage wildlife management area for the Secretary’s approval. Congress intended that the wildlife management area covering the thousand acres preclude all taking of wildlife except waterfowl. By approving a provision for trapping within the Gold Portage region, the Secretary of Interior violated the Boundary Revision Act.

ORDER

Since this opinion disposes of plaintiffs’ claims, the Court will enter judgment as follows:

IT IS ORDERED that plaintiff’s motion for summary judgment on Count I of the Complaint is granted as to the one thousand acre tract ceded to the State.

IT IS FURTHER ORDERED that the defendants’ motions for summary judgment are denied.

IT IS DECLARED that the Secretary of Interior violated the Boundary Revision Act by approving a wildlife management plan which permitted trapping within the one thousand acres ceded to the State of Minnesota.

LET JUDGMENT BE ENTERED ACCORDINGLY.

      . The State first submitted a draft management plan to the Superintendent of Voyageurs (hereinafter "the Superintendent") for comments. Letter to Russell W. Berry from Joseph N. Alexander (April 29, 1983). This plan permitted waterfowl hunting, game hunting, and trapping. The Superintendent objected to the provisions for game hunting and trapping as contrary to congressional intent. Memorandum to Regional Director, Midwest Region from Superintendent, Voyageurs National Park (May 31, 1983). The Department of Interior’s Acting Regional Director for the Midwest Region concurred in the Superintendent’s objections. Memorandum to Superintendent, Voyageurs from Acting Regional Director, Midwest Region (June 8, 1983). In response, the State deleted the provision for game hunting but refused to eliminate the trapping section. Letter to Russell W. Berry from Joseph N. Alexander (July 20, 1983). Contrary to the recommendation of the Park Superintendent, the Acting Regional Director approved the management plan with the trapping provision, and the land was conveyed by quit claim deed on September 27, 1983. See Memorandum to Regional Director, Midwest Region from Superintendent, Voyageurs National Park (September 12, 1983); Agreement Between the United States of America and the State of Minnesota Regarding the Management of Certain Waters of and Adjacent to Black Bay of Rainy Lake (September 13, 1983).

      . Count Two (II) of plaintiffs' complaint contains allegations that the Secretary violated the Endangered Species Act, 16 U.S.C. §§ 1531-1543 (West 1974 & Supp.1975-1983), by failing to consult with the Fish and Wildlife Service on the effects of trapping on the endangered grey wolf and bald eagle species. See id. § 1536. On May 18, 1984, the Secretary consulted with the Fish and Wildlife Service pursuant to 16 U.S.C. § 1536. Consequently, this issue is moot. Plaintiffs may, however, still challenge the Fish and Wildlife Service’s finding of “no jeopardy" as arbitrary and capricious.

      . Here, and elsewhere throughout the record, members of Congress used the term "Black Bay” to refer to the one thousand acre tract ceded to the State. This is particularly apparent in the above-quoted comments of Congressman Oberstar and Senator Boschwitz, which refer to Black Bay as the wildlife management area. The Act, however, designated only the thousand acres as a wildlife management area. Black Bay is actually many times the size of the tract transferred to Minnesota.

      . Here Congressman Vento and Seiberling refer to "Black Bay" when describing the thousand acres ceded to the State. Congressman Seiberling comments on "the entire Black Bay area” and on "Black Bay itself.” The Court believes .the remarks make sense if construed to refer to Black Bay in' the first instance and the Gold Portage area in the latter. Thus, according to Congressman Seiberling, the Act required that the entire Black Bay area be managed to complement the park, while the Gold Portage area ("Black Bay, itself’) would be managed as a WMA where only waterfowling was permitted. See also supra note 3.

      . Commissioner Alexander also submitted the regulations governing State WMA’s to both the House and Senate Subcommittees. These regulations included provisions permitting nonwaterfowl hunting and trapping. Yet, his testimony was clear that WMA’s are managed differently depending on the circumstances. Therefore, the Court cannot conclude that these regulations were considered as governing the Gold Portage WMA, especially when members of Congress believed no nonwaterfowl hunting would be allowed there.

      . Defendants contend that the record evidences no intent to prohibit trapping because nearly all references are to hunting. The legislative history suggests that Congress transferred the Gold Portage region to the State to permit duck hunting, and that it viewed duck hunting as a narrow exception to the broad proscription against hunting and trapping within the national parks. When the Act was passed, the Park Service regulations used the term "hunting” to include trapping. See 36 C.F.R. § 2.32 (1982) (entitled "Wildlife; Hunting”). Consequently, the word "hunting" encompassed trapping. The Court finds that Congress intended to prevent the hunting of nonwaterfowl regardless of the form of taking. See supra page 538.

      . After the House Subcommittee discovered that the Secretary had approved a management plan permitting trapping, it held an oversight hearing. See Oversight Hearing on Fiscal 1985 Budget Request and the Land and Water Conservation Fund Before the House Subcomm. on Public Lands and National Parks, 98th Cong., 2nd Sess. 34-42 (1984). During the hearing, Congressman Vento scolded Secretary of Interior Ray Arnett for approving a plan which permitted trapping, and he expressed his opinion that the Secretary had violated Congress’ intent in providing for trapping in the area. Id. at 35. Although subsequent history is not entitled to great weight, it is still entitled to consideration, Montana Wilderness Ass’n v. United States Forest Service, 655 F.2d 951, 957 (9th Cir.1981). Cert, denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), and here it substantiates the Court’s conclusion.


author: AUBREY E. ROBINSON, Jr., Chief Judge.

text:
    Martha S. FREEMAN, Plaintiff, v. Elizabeth DOLE, et al., Defendants.
    Civ. A. No. 76-1587.
    United States District Court, District of Columbia.
    March 8, 1985.

      David H. Shapiro, Asst. U.S. Atty., Washington, D.C., for defendants.
    June D.W. Kalijarvi, Washington, D.C., for plaintiff.
   MEMORANDUM AND ORDER

AUBREY E. ROBINSON, Jr., Chief Judge.

Before the Court are a supplemental request for attorney’s fees and a request for review of costs filed by plaintiff in the above-captioned matter. These current petitions are an outgrowth of the attempt by plaintiff to seek enforcement of this Court’s order of May 24, 1984, awarding plaintiff $23,961.57 in reasonable attorney’s fees and expenses as a result of her successful employment discrimination suit under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16 (1976), and the Age Discrimination in Employment Act of 1974, 29 U.S.C. § 633a (Supp. III 1979). Plaintiff has been required since the date of this order to respond to three papers filed by defendants: an opposition to plaintiff’s petition for fees and costs, an opposition to defendants’ motion for leave to note an untimely appeal, and an opposition to defendants’ motion to alter or amend the Court’s order denying leave to appeal. As it is well settled that time necessarily spent litigating a fee request is itself compensable, Copeland v. Marshall, 641 F.2d 880, 896 (D.C.Cir.1980) (en banc), the Court now turns its attention to the specific requests presented.

A. ATTORNEY’S FEES

The most useful starting point in determining the amount of a reasonable attorney’s fee “is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Plaintiff has claimed an additional 25.1 hours since the order of this Court awarding attorney’s fees and costs. Defendants’ do not challenge the number of hours expended by plaintiff’s counsel. The Court notes that counsel was required to prepare three substantive documents to respond adequately to the contentions raised by defendants. The Court finds that, in light of these circumstances, 25.1 hours was a reasonable amount of time to expend on this phase of the litigation.

Plaintiff has proposed most recently that the reasonable hourly rate should be set at her law firm’s current customary hourly rate of $100.00 an hour. Defendants’ oppose this figure, claiming that the District of Columbia Circuit Court of Appeals decision in Laffey v. Northwest Air Lines, Inc., 746 F.2d 4 (D.C.Cir.1984) (“Laffey II”), requires that “[a]ny award to plaintiffs counsel____ must be at rates between $20 and $40 per hour. ” Defendants’ propose these lower rates because these rates signify the rate originally set in the retainer agreement between plaintiff and her lawyers.

In this Court’s order of May 24, 1984, plaintiff was awarded rates between $85.00 and $125.00 an hour, based on this Court’s determination of the prevailing community rate. Since Laffey II, the reasonable hourly rate for counsel for prevailing parties presumptively is the hourly rate customarily charged by the lawyer. However, defendants’ err in relying upon rates negotiated in 1976 between plaintiff and her lawyers. A reasonable hourly rate reflects the rate in effect at the time the fees are awarded, not the rate in effect when the fee agreement was signed. Copeland v. Marshall, 641 F.2d 880, 896 (D.C.Cir. 1980). Therefore, the reasonable hourly rate for plaintiff for the services under consideration is the firm’s usual billing rate of $100.00 an hour. In addition, plaintiff is entitled to compensation for the work of a paralegal, and for costs for photocopying ($24.00), postage ($4.15), and messenger ($43.50) incurred in this phase of the litigation. Therefore, the total compensation for attorney’s fees is:

Fees

25.1 hours X $100.00 an hour = $2,510.00 Paralegal

1.0 hour X $ 15.00 an hour = $ 15.00

Costs = $ 71,65

TOTAL $2,596.65

B. COSTS

Plaintiff has requested this Court to review the taxation of costs by the clerk of the court in this case, pursuant to Fed.R. Civ.P. 54(d). Plaintiff applied to the court clerk for costs for the following items: filing fees ($10.00); service fees ($15.00); transcript costs ($661.45); printing costs ($44.52); witness fees ($104.00); photocopying ($998.55); and expert witness fees ($4,599.03). The clerk awarded all but the latter two costs in their entirety. The clerk awarded $100.00 in photocopying expenses and awarded no costs for the expert witness expense. Plaintiff now seeks review of the clerk’s determination of these two costs. The Court reviews each request in turn.

1. Photocopying Expenses

The clerk of the court awarded plaintiff $100.00 in photocopying éxpenses, pursuant to court regulations. Plaintiff has requested this court to review this item and to award an additional $898.55 for photocopying expenses which, she argues, were reasonably incurred in “duplicating exhibits for trial [and filing] the numerous pleadings ...” Plaintiff’s Request for Review of the Clerk’s Taxation of Costs at 3. In support of this request, plaintiff cites cases stating that photocopying expenses are recoverable and that in civil rights cases the recovery of such costs is especially appropriate. See Dowdell v. City of Apopka, Florida, 698 F.2d 1181, 1190 (11th Cir.1983) (“if the real income of civil rights litigators is decreased because they must absorb costs which are generally billable in other types of cases, the market result will be to channel attorneys toward more remunerative types of litigation”).

Although this Court appreciates the policy underlying recovery of costs in civil rights litigation, the issue here is not' whether such costs are recoverable, but whether in this case the costs under consideration were reasonably expended. Unfortunately, plaintiff has provided the Court with no documentation of the photocopying expenses for this phase of the litigation other than to say that they were necessarily incurred:

Given the extensive history of this case, the requirement for duplicating exhibits for trial, and the numerous pleadings that have been filed, we submit that the duplicating costs applied for is [sic] reasonable and should be reimbursed.

Plaintiff’s Request for Review of the Clerk’s Taxation of Costs at 3-4. This explanation does not suffice to indicate to the Court to what extent the costs described are reasonable. The clerk’s office directs applicants for costs to “[a]ttach to your bill an itemization and documentation for requested costs in all categories.” This instruction appears on the face of the application for bill of costs under the heading “Special Note.” Plaintiff has not provided sufficient documentation for the additional $898.55 she has requested. Therefore, the Court declines to alter the taxation of costs made by the clerk of the court.

2. Expert Witness Fees

Plaintiff also seeks review of the clerk’s decision not to tax as costs recoverable fees paid to plaintiff’s expert witness, Applied Urbanetics, Inc., who testified with regard to statistical evidence presented by plaintiff in support of her claim of discrimination. Expert witness fees may be recovered in civil rights cases, however, the allowance of such expenses should be governed by the guiding principle that no compensation is due for nonproductive services. Copeland v. Marshall, 641 F.2d 880, 891. In this case, this Court concluded in its findings of fact and conclusions of law both in its original order and on remand that the assumptions of plaintiff’s statistician were incorrect and that the “statistical evidence has little probative value vis-a-vis [plaintiff’s] claim of race and sex discrimination.” Findings of Fact, October 29, 1980 at 4. This Court also concluded that the statistics were deficient in five respects and that they were “not probative of the issues addressed in the instant litigation.” Id. at 10. In light of the inconsequential contribution these statistics made to plaintiff’s ultimate success, the Court now holds that the $4,599.03 should not be recoverable because it was a nonproductive expense. Thus, the Court declines to alter the clerk’s refusal to tax this cost.


author: JARVIS, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. John E. PALMER, Jr. and Warren W. Taylor, Defendants. UNITED STATES of America, Garnishor, v. SECURITY TRUST SAVINGS AND LOAN ASSOCIATION, Garnishee.
    Foreign Judgment No. 157.
    United States District Court, E.D. Tennessee, N.D.
    March 11, 1985.

      John W. Gill, Jr., U.S. Atty., Nancy Palmer, Asst. U.S. Atty., Knoxville, Tenn., (James J. Brown, Dept, of Justice, Washington, D.C., on brief), for plaintiff.
    Bobby L. Pringle, Dallas, Tex., J. Michael Winchester, Knoxville, Tenn., for defendants.
   MEMORANDUM

JARVIS, District Judge.

FACTS

This matter is before the Court on Motion for Judgment by plaintiff, United States of America (“United States”). The United States asks this Court to enter a judgment to enforce a final judgment entered on August 12, 1976, by the U.S. District Court for the Northern District of Texas, in the matter of United States v. John E. Palmer, Jr. (“Palmer”) and Warren W. Taylor (“Taylor”), Civil No. 3-6851-D. The Texas judgment provided that the United States could recover of Palmer and Taylor, jointly and severally, the sum of $671,776 plus additional interest and costs.

On or about February 7, 1985, the United States served a Writ of Garnishment upon Security Trust Savings and Loan Association (“Security”) located in Oak Ridge, Tennessee, to garnish certain shares of the common stock of Security which the Chancery Court for Roane County, Tennessee, had declared to be the property of Taylor. In response to the garnishment, the United States received an answer to that Writ of Garnishment wherein Security admitted that Taylor owned 80,037 shares of the common stock of Security. Thus, the United States is seeking a judgment and order of seizure and sale of the stock owned by Taylor in order to satisfy the Texas judgment, which the United States alleges remains unpaid and amounts to $1,021,422.32 as of February 7, 1985.

The United States seeks to enforce the Texas judgment pursuant to the registration statute, 28 U.S.C. § 1963, having registered a certified copy of the Texas judgment in this Court on February 7, 1985. Defendant Taylor maintains that the aforesaid judgment must be collected through process of the District Court of the Northern District of Texas pursuant to 28 U.S.C. § 2413 and, thus, the United States cannot register the Texas judgment in Tennessee pursuant to 28 U.S.C. § 1963.

ISSUE

In enforcing its judgments from one district court to another, may the United States avail itself of the registration statute, 28 U.S.C. § 1963, and its remedies available in the latter. district, or, is the United States limited in enforcing judgment extra-territorily to use of the long-arm execution from the first district pursuant to 28 U.S.C. § 2413? This appears to be a question of first impression.

ANALYSIS

A. Registration Statute, 28 U.S.C. § 1963

In 1948, Congress revised the Judicial Code of the United States and adopted as part of that Code the following registration statute, 28 U.S.C. § 1963:

A judgment in an action for the recovery of money or property now or hereafter entered in any district court which has become final by appeal or expiration of time for appeal may be registered in any other district by filing therein a certified copy of such judgment. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.
A certified copy of the satisfaction of any judgment in whole or in part may be registered in like manner in any district in which the judgment is a lien.

Some of the primary purposes of § 1963 have been stated as follows:

... to simplify and facilitate the enforcement of federal judgments, at least those for money, to eliminate the necessity and expense of a second lawsuit, and to avoid the impediments, such as diversity of citizenship, which new and distinct federal litigation might otherwise encounter. [Citations omitted.] If for enforcement purposes, registration were to be given a lesser status than a judgment on the judgment, some or all of these purposes are thwarted and the judgment creditor, in order fully to protect himself, must resort to the old and more formal procedure.

Stanford v. Utley, 341 F.2d 265, 270 (8th Cir., 1965).

The language of the statute is absolutely clear that once the judgment is registered in the new district, it “shall have the same effect as a judgment of district court of the district where registered ...” Thus, the judgment so registered is no longer a “foreign” judgment. See, Anderson v. Tucker, 68 F.R.D. 461 (D.Conn.1975) (California judgment registered in Connecticut under the registration statute, 28 U.S.C. § 1963, so that a requirement of Connecticut law relating to procedures for enforcement of foreign judgments was found inapplicable).

B. Long-Arm, Execution Statute, 28 U.S.C. §2413

Another revision of the Judicial Code in 1948 was the recodification of the long-arm statute which permitted the United States to secure nationwide execution of any judgment for use of the United States. That provision, 28 U.S.C. § 2413 is as follows:

A writ of execution on a judgment obtained for the use of the United States in any court thereof shall be issued from and made returnable to a court which rendered the judgment, but may be executed in any other State, in any Territory, or in the District of Columbia.

This statute was originally enacted in 1797 as part of a statute which provided for the settlement of accounts between the government and private debtors. United States v. Fisher, 6 U.S. (2 Cranch.) 358, 397-98, 2 L.Ed. 304 (1805).

Long-arm execution under 28 U.S.C. § 2413 is expressly reserved for judgments rendered “for use of the United States”. Thus, private litigants do not qualify for this preference. See, Globe Indemnity Company v. Roe, 37 F.Supp. 761 (S.D.N.Y. 1941). However, in some situations; a private party can use 28 U.S.C. § 2413, if the basic cause of action is in the United States and the judgment is “for the use of” both parties. United States ex rel. Marcus v. Lord Electric Company, 43 F.Supp. 12, 13 (W.D.Pa.1942) (lawsuit instituted by informer but prosecuted by government under authority of statute providing penalty for false claims against government).

C. Comparison of § 1963 with § 2413:

Section 2413 is an execution statute. It permits the United States to execute any federal court judgment in any district in which the debtor owns property by simply delivering the writ of execution to the local U.S. Marshal. By the words of that statute, that writ of execution must be issued from and made returnable to the court which rendered the judgment.

On other hand, § 1963 is a registration statute. It permits the judgment to be registered in any district in which the debt- or’s property is located. The registered judgment is then treated as if it were a judgment of the court of registration — as stated earlier, it is no longer a “foreign” judgment. Following registration, a judgment creditor may secure a writ of execution from the registering court and deliver it to the local Marshal for execution. Of course, if a judgment is not fully satisfied in that district, it can then be registered in other districts until satisfaction is achieved. Obviously, this procedure requires the intermediate step of registering the judgment in each district prior to execution.

In contrast, § 2413 does not require registration prior to direct execution from the court of judgment to any district in the country. Therefore, execution under § 2413 would appear to be accomplished more quickly than under § 1963 because § 2413 execution bypasses any local registration requirement and can be implemented immediately, i.e., as soon as possible under local practice, following issuance of judgment without awaiting expiration of appellate rights whereas execution under § 1963 is available by statute only for a district court judgment which has become final. In re: Professional Air Traffic Controllers Organization, 699 F.2d 539, 545 (D.C.Cir.1983); Urban Industries, Inc. of Kentucky v. Thevis, 670 F.2d 981 (11th Cir.1982).

Both sections require application of local law governing execution and other supplemental proceedings, such as time limitations on the life of a judgment and the exemption of certain kinds of property from execution. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 47-48, 6 L.Ed. 253 (1825) (state law applicable to federal executions); Fink v. O’Neil, 106 U.S. 272, 1 S.Ct. 325, 27 L.Ed. 196 (1882) (judgments in favor of United States under § 2413 subject to same state law exemptions as those in favor of private litigants); Custer v. McCutcheon, 283 U.S. 514, 515-519, 51 S.Ct. 530, 530-532, 75 L.Ed. 1239 (1931) (state statute of limitations on execution); Matthews v. Heirs, 378 F.Supp. 693 (E.D. Okla.1974) (judgments in favor of the United States subject to same provision concerning execution and dormancy as those in favor of private litigants); Juneau Spruce Corporation v. Longshoremen’s Union, 128 F.Supp. 697, 704 (D. Hawaii 1955) (dormancy).

However, the effect of applying local law is different in each case. Under § 2413, the law of the state in which the court of judgment sits controls execution : proceedings, even if the execution is actually made in another state. For example, .execution proceedings in Maryland on a district court judgment issued in the District of Columbia would proceed according to the District of Columbia law. See, United States v. Thornton, 672 F.2d 101 (D.C. Cir.1982). In contrast, under § 1963, the law of the state in which the court of registration sits controls the proceedings. Thus, a District of Columbia judgment registered in Maryland would be executed according to Maryland law. See, Juneau Spruce Corporation, supra, 128 F.Supp. at 705. It would, therefore, appear that Congress provided through § 1963 a method for registering judgments in other districts in which the debtor had property but without the necessity of a new lawsuit. Id.

CONCLUSION

It is the opinion of this Court that the mechanism provided by § 2413 is exclusive to the United States (or for the use of both the United States and a private litigant if the bask’ cause of action is in the United States). It is the further opinion of this Court that the mechanism provided for in § 1963 may be used by all. judgment creditors recovering judgments in federal district courts, including the United States. If the United States elects to register a judgment under the registration statute, 28 U.S.C. § 1963, then it may clearly do so. Thus, if the judgment is valid in the original rendering district, then the registration will be valid in the registering district. The United States should be in no worse position than any private litigant and therefore should be able to employ the provisions of 28 U.S.C. § 1963.

In the instant case, the United States registered its 1976 Texas judgment in Tennessee, pursuant to § 1963. This judgment should be treated as if it were an original judgment rendered in Tennessee.

Therefore, the Court finds that the Motion for Judgment filed by the United States is proper and, thus, defendant Taylor’s stock should be seized and sold to satisfy the judgment so registered in Tennessee. All other objections raised by defendant Taylor in his response are hereby also overruled.

For the foregoing reasons, it is ORDERED that the United States’ Motion for Judgment be and the same hereby is GRANTED and the case is DISMISSED.

Order accordingly.

      . The statute originally provided as follows:
      that all writs of execution upon any judgments obtained for the use of the United States, in any of the courts of the United States, in one state, may run and be executed in any other state, but shall be issued from, and made returnable to, the court where the judgment was obtained.

        United States v. Morris, 23 U.S. (10 Wheat.) 246, 281, 6 L.Ed. 314 (1825) quoting Act of March 3, 1797, 1 Stat. Sec. 515, Rev.Stat. Sec. 986.