author: ALLEN SHARP, Chief Judge.

text:
    Delores BROWN, Petitioner, v. Clarence TRIGG, Supt., Indiana Attorney General, Defendants.
    No. S 84-182.
    United States District Court, N.D. Indiana, South Bend Division.
    July 13, 1985.
    Thomas M. Leatherman, Goshen, Ind., for petitioner.
    Robert B. Wente, Deputy Atty. Gen., Indianapolis, Ind., for defendants.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by Delores Brown, an inmate incarcerated at the Indiana Women’s Prison in Indianapolis, Indiana. The matter is now before this court on respondents’ motion to dismiss, filed as part of their Return to Order to Show Cause. In accord with the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the complete state court record has been filed with, and carefully examined by, this court.

A careful examination of the underlying state court record and the opinion of the Supreme Court of Indiana, Brown v. State, published at 448 N.E.2d 10 (1983), reveals that petitioner has exhausted her available state court remedies per 28 U.S.C. § 2254(b), (c); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). Both sides having briefed their respective positions, this petition is now ripe for ruling.

Petitioner was convicted in a state court jury trial of felony murder by arson on two counts for which she received a determinate sentence of thirty (30) years. These convictions were affirmed on appeal by the Supreme Court of Indiana. Petitioner now brings this petition for a federal writ of habeas corpus.

Petitioner raises the following issues in her application for habeas relief:

(1) Petitioner’s conviction was obtained without allowing her to present evidence to disprove or rebut proof on a material element of the crime charged, knowingly, and was obtained and is in violation of the sixth (sic) and fourteenth (sic) amendments of the United States Constitution.
(2) Petitioner’s conviction was obtained by allowing the State of Indiana to present through an agent of Petitioner’s attorney, incriminating statements she made to him in violation ot the fifth, sixth and fourteenth (sic) Amendment (sic) to the Constitution of the United States.

This court heard oral argument by both parties on March 5, 1985. This case is therefore, ripe for ruling.

I.

When petitioner was arrested the charges were initially brought against her in the juvenile court. The State of Indiana moved to waive her case to adult court. The Elkhart County Court, Elkhart County, Indiana, ordered petitioner examined by a psychologist. The psychologist gave petitioner tests to determine her intellectual and psycho-educational function level. The psychologist determined that petitioner was functioning at a fourth grade level, and has an I.Q. of 78.

In an attempt to prevent waiver to adult court, petitioner’s attorney hired a polygraph operator to conduct a polygraph test to determine the intentions of the petitioner at the time she started the fire. The polygraph operator determined the questions to ask petitioner, asked her those questions during the testing and arrived at his conclusions. He concluded that petitioner did not intend to hurt anyone by starting the fire.

The juvenile court waived jurisdiction to the adult court. Prior to the adult trial, the State of Indiana filed a Motion in Limine requesting that the psychological evidence be excluded. At the adult trial, petitioner’s attorney attempted to introduce evidence concerning petitioner’s mental capacities through the psychologist, as an expert witness, to disprove or rebut a material element of the crime charged. Petitioner sought to establish that she did not have the mental capability to form the requisite culpability of “knowingly” committing the crime charged, as required under Indiana law. The petitioner was precluded from introducing such evidence.

During the adult trial, the trial court permitted the State to use the testimony of the polygraph operator concerning petitioner’s incriminating statements made during the polygraph test, over the objection of petitioner’s counsel. The trial court did not allow petitioner’s attorney on cross-examination of the polygraph examiner to establish that the statements by petitioner were made within the context of a polygraph test.

On appeal, the Supreme Court of Indiana held that since petitioner did not plead insanity then expert testimony concerning her mental capabilities was inadmissable as invading the province of the jury with regard to the resolution of factual matters. The Court further held that petitioner waived her privileged communications right during her juvenile hearing and thus, the evidence concerning the polygraph questions was admissible. The Court also held that petitioner’s Sixth Amendment Right to full confrontation was not denied when the trial court limited the cross-examination of the polygraph operator. The one limitation pertained to the exclusion of questions concerning the occurrence of the statements by petitioner during a polygraph examination test.

II.

Petitioner contends that failure to allow her to present expert testimony at her trial regarding her mental capabilities to form the requisite intent to commit the crimes charged denied her due process of law. Petitioner claims that she did not possess the mental ability to “knowingly” (as charged in the information) commit felony murder by arson and that she could establish the same through an expert witness. She claims that she should have been allowed to present evidence that would be relevant or material to disprove the culpability required to be proven by the State as an element of the crimes charged.

Petitioner was charged with having “knowingly” as definee in I.C. § 35-41-2-2(b) [Burns 1979 Repl.] committed arson. “Knowingly” is defined as: “A person engages in the conduct, he is aware of a high probability that he is doing so.” As succinctly put by the Supreme Court of Indiana in its opinion at 448 N.E.2d 19: “It is appellant’s theory that she was of such low mental capacity that she was unaware of a high probability that her intentional damage of the property of another would endanger human life. See, I.C. § 35-43-1-1(a) [Burns 1979 Repl.]. She claims the evidence should have been admitted because it was relevant to the question of whether she entertained the intent with which she was charged.”

The Supreme Court of Indiana when faced with this issue found:

It is well settled, however, that low mental capacity is not a defense to a criminal charge. Flowers v. State, (1957) 236 Ind. 151, 139 N.E.2d 185. See generally, 31 Am.Jur.2d Criminal Law § 40 (1981). Appellant did not interpose an insanity defense. Evidence purporting to go to the actor’s mental capacity was not a proper subject of expertise. It was rater a question of fact for the jury to resolve. See, Simpson v. State, (1978) 269 Ind. 495, 381 N.E.2d 1229. There was no error in not allowing witness Oyer to testify. Brown v. State, at 19.

The petitioner here contends that her due process rights were violated under the teachings of Hughes v. Mathews, 576 F.2d 1250 (7th Cir.1978). In the Hughes case, the Seventh Circuit Court of Appeals held that psychiatric evidence was admissible on the issue of intent to kill at the time of appellant’s trial. In Hughes the petitioner was charged with two counts of first degree murder which under Wisconsin law required the showing of specific intent. The petitioner there argued the psychiatrist’s testimony should be allowed to establish that he lacked the requisite intent to commit the murder. The Wisconsin law required that the perpetrator had the specific intent to commit the first degree murder and it also established a rebuttable presumption of intent. The Hughes Court found:

Thus, the district court was correct in holding that by instructing the jury presume intent if not rebutted, and by excluding psychiatric evidence offered to rebut the presumption, Wisconsin set up a conclusive presumption which unconstitutionally relieved the prosecution of the burden of proving the element of specific intent beyond a reasonable doubt.
Id. at 1255.

The Court went on to find:

Were this simply a case where a jury instruction on presuming intent improperly left the jury with the impression that the petitioner had the burden of persuasion to disprove an element of the crime, we would be satisfied to affirm the writ of habeas corpus and send the case back to the state courts for a new trial with directions to avoid the suspect instructions. However, the constitutional error present in the Wisconsin procedure is not merely the result of a rebut-table presumption becoming improperly conclusive when combined with a valid exclusionary rule. The exclusion of psychiatric evidence offered to show that the petitioner lacked the capacity to form specific intent to kill the two victims, is, by itself, constitutionally infirm, (footnote omitted) Id., at 1255.

The Seventh Circuit Court of Appeals in Muench v. Israel, 715 F.2d 1124 (7th Cir.1983) has recently held that a state is not constitutionally compelled to recognize the doctrine of diminished capacity and hence a state may exclude expert testimony offered for the purpose of establishing that a criminal defendant lacked the capacity to form a specific intent. In Muench, the petitioner had been convicted of first degree murder and argued he was incapable of forming the specific intent required to prove first degree murder because of a personality disorder. He argued that expert psychiatric testimony would establish that he could not form the specific intent to commit the crime. The Court found petitioner’s argument an attempt to impose on Wisconsin law the doctrine of diminished responsibility, which the Court refused to do, finding no basis for doing so under Wisconsin law.

The Court stated the following in regard to Muench’s argument:

Petitioners’ argument regarding the materiality of the proffered psychiatric testimony is straightforward. Whether they actually committed their homicidal acts with the mental purpose of ending a human life was a fact in issue. Logically, their “capacity” to “form” that intention is a fact in issue, for if they lacked the capacity to form the intent, then they did not actually form that intent. Hence, their capacity to form an intent to kill is a fact in issue, and evidence standing for that proposition is material
It is naturally tautological that one who lacks the capacity to do something could not have done that something. Thus conceptualized, the process of cognition is described in essentially, physiological terms, “forming” an “intention” can be likened to “performing” an “action,” and just as evidence of a physical handicap which rendered a person incapable of performing a particular action would be material in a case where the person is accused of performing that action, it would logically seem that evidence of a mental handicap which rendered a person incapable of forming a particular intention would be material where the person is accused of forming that intention. If specific types of intentions were as discrete as particular types of actions; if one’s mental abilities were as demonstrable as one’s physical abilities; if the relationship between one’s mental handicaps and a specific intent were as identifiable as the relationship between one’s physical handicaps and a specific physical movement; and if one formed an intention the way one performs an action, the analogy would be compelling, but it is not.
The essential flaw in petitioners’ argument is that the basic fact which they wish to establish is that they suffered from a personality disorder. It is not disputed that experts in psychology are competent to testify regarding that basic fact. What is the dispute—indeed, the entire debate over the doctrine of diminished capacity has as its focal point—is whether a personality disorder is probative of the defendant’s capacity to form an intent to kill. Petitioners’ experts contended that personality disorders rendered them unable to form such an intent. That is, their experts contended that the fact of their personality disorders was a material issue in their eases because the fact was a mental state in issue. In short, petitioners essentially maintain that the psychiatric testimony they proffered is relevant because their witnesses said so. The proposition does not survive its statement. Muench, 715 at 1143.

This court following the dictates and reasoning of the Seventh Circuit Court of Appeals and applying Indiana law hereby finds that Indiana is not required to allow psychological testimony to prove a person’s capacity or incapacity to form the intent to commit a crime absent some basis for it in the Indiana law. Muench, supra; Flowers v. State, supra.

The Indiana courts have long held that low mental capacity is not a defense to a criminal charge, Flowers v. State, supra, and that evidence regarding one’s mental capacity is not a proper subject of expertise. Simpson v. State, supra. This court finds no basis in Indiana law to impose a doctrine of diminished capacity on Indiana law.

This court therefore finds that petitioner was not denied due process when evidence in the form of psychological or psychiatric testimony regarding her mental capacity to form intent to commit the crime charged was precluded during her trial.

III.

Petitioner’s attorney, in an attempt to prevent her waiver to adult court hired a polygraph examiner to perform a polygraph test on petitioner to determine whether, in his opinion, petitioner had the requisite intent to commit the crime. Petitioner’s attorney then used the testimony of the polygraph examiner and his conclusions during the juvenile waiver hearing. The polygraph examiner testified that during the examination the petitioner stated that she started the fire by pouring gas on carpeting in her mother’s home, igniting it with a match. The polygraph examiner testified that petitioner further stated that she only intended to burn a small hole in the carpeting to let her mother know how unhappy she was with her and that she did not intend to cause extensive damage or cause harm to her brothers. The juvenile court waived petitioner to adult court. The State then used the above testimony during the adult trial to show petitioner intended to start the fire resulting in the felony murders.

Petitioner contends that the state trial court erred when admitting this testimony because it violated the attorney-client privilege and the doctrine of Work product.

Both parties agree that communications between the polygraph examiner, an agent of the attorney, and the client are privileged and not subject to exploration in the criminal process.

The Supreme Court of Indiana held that petitioner had waived her right to that privilege when she called the polygraph examiner as a witness at the juvenile hearing.

The petitioner contends that she did not waive her right to the privileged information despite the fact that she introduced the testimony into evidence during the juvenile hearing. Petitioner claims that since the juvenile proceedings are to be kept confidential per state statute the hearing is analogous to a motion to suppress and thus, the testimony is not admissible in the case at the adult trial. Petitioner cites and relies on the holding in Simmons v. U.S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1966), wherein the Supreme Court held that the trial court’s admission at trial of the defendant’s statement made during a suppression hearing to prove the underlying criminal charges constitutionally defective, violated the defendant’s Fifth Amendment right. The Court stated:

Thus, in this case Garrett was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be submitted against him at trial on the issue of guilt unless he makes no objection.
Simmons, at 394, 88 S.Ct. at 976.

The Supreme Court in Simmons was concerned with the usage of evidence obtained in a suppression hearing in an effort to attack a collateral matter to the criminal charge for purposes of establishing guilt during the trial of the merits of the case. In this case, petitioner introduced certain evidence at the juvenile hearing which pertained directly to the merits of the case. The State then introduced that same evidence at the adult trial and petitioner attempted to invoke the attorney-client privilege and the work product doctrine. The trial court rejected both arguments and allowed the testimony. The testimony of the polygraph examiner went directly to the meritis of petitioner’s guilt and did not involve collateral issues as in a suppression hearing. One precedent had made it clear “that when a defendant voluntarily testified to the merits, and not just upon a purely collateral matter, the prosecutor may comment upon the defendant’s failure to deny or explain incriminating facts already in evidence.” Calloway v. Wainwright, 409 F.2d 59, 65 (5th Cir.) cert. denied, 395 U.S. 909, 89 S.Ct. 1752, 23 L.Ed.2d 222 (1969). See also, McGahee v. Massey, 667 F.2d 1357 (11th Cir.1982), cert. denied, 459 U.S. 943, 103 S.Ct. 255, 74 L.Ed.2d 199 for discussion of various pretrial statements and the issue of waiver regarding collateral matters versus statements involving the merits of the case.

In this case, it was not the petitioner who testified, but rather an agent of the petitioner. Petitioner introduced the testimony at the juvenile hearing in an attempt to prevent waiver to the adult court. She did not use the testimony as an attack on a collateral matter to the criminal charge itself, as in a suppression hearing. The juvenile court did not find it to be in the best interests of the petitioner to retain jurisdiction of her ease in the juvenile court even in light of her polygraph and psychological evidence. Petitioner is not forced to forfeit one constitutional right to protect another constitutional right in this case.

Petitioner further argues that the testimony of the polygraph examiner was protected by the work produce doctrine as outlined in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947) and discussed in United States v. Nobles, 422 U.S. 255, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). In Nobles, the defense counsel sought to introduce pretrial statements of certain witnesses obtained by an investigator hired by the defense to show their prior inconsistent statements. When the defendant refused to let the prosecutor inspect the investigator’s report for purposes of cross-examination, the trial court ruled that the work product doctrine protected the report from disclosure to the prosecutor, thus the investigator could not testify at all about the statements of the witnesses. The Supreme Court held:

The privilege derived from the work-product doctrine is not absolute. Like other qualified privileges, it may be waived. Here respondent sought to adduce the testimony of the investigator and contrast his recollection of the contested statements with that of the prosecution’s witnesses. Respondent, by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony. Respondent can no more advance the work-product doctrine to sustain a unilateral testimonial use of work-product materials then he could elect to testify in his own behalf and thereafter assert his Fifth Amendment privilege to resist cross-examination on matters reasonably related to those brought out in direct examination. See, e.g., McGautha v. California, 402 U.S. 183, 215 [91 S.Ct. 1454, 1471, 28 L.Ed.2d 711] (1971). (footnote omitted.) Nobles, at 239, 95 S.Ct. at 2170.

This court does not find petitioner’s argument of work-product protection persuasive. Rather, this court finds that the petitioner’s introduction of the testimony constituted waiver of the work-produce doctrine protection. The polygraph examiner’s testimony concerning petitioner’s intent was a germane issue to the merits of the criminal charge. In fact, as petitioner has aptly pointed out, the testimony bears directly on a vital element in the criminal charge, the element of intent, which element the prosecutor had to prove at trial.

Therefore, this court finds that petitioner waived her right to attorney-client privilege and work product protection when she introduced the testimony of the polygraph examiner during the juvenile hearing, and that the trial court did not violate any of petitioner’s due process rights by admitting said testimony into evidence at the criminal trial.

CONCLUSION

Accordingly, it is the order of this court based on the foregoing reasons that the respondent’s motion to dismiss as part of their return to show cause be and is hereby GRANTED; writ is DENIED; petition DISMISSED. SO ORDERED.


source: Caselaw Access Project

author: NAUMAN S. SCOTT, District Judge.

license: Public Domain

text:
    DRESSER INDUSTRIAL VALVE OPERATIONS v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
    Civ. A. No. 83-0283.
    United States District Court, W.D. Louisiana, Alexandria Division.
    Jan. 9, 1984.
    Richard B. Sadler, Jr., Provosty, Sadler & de Launay, Alexandria, La., Jones, Day, Reavis & Pogue, Andrew M. Kramer and Deborah Crandall, Washington, D.C., for plaintiff.
    Constance L. Dupre, Legal Counsel, Nestor Cruz, Associate Legal Counsel, Stanley Kiszkiel, EEOC, Washington, D.C., John R. Halliburton, Asst. U.S. Atty., Shreveport, La., for defendant.
   RULING

NAUMAN S. SCOTT, District Judge.

This matter is before us on a Motion to Stay the investigation of the Equal Employment Opportunity Commission (hereinafter “EEOC”) into the employment practices of Dresser Industrial Valve Operations (hereinafter “Dresser”) and two labor organizations representing Dresser’s facilities in Alexandria, Louisiana. Dresser requested the investigation be stayed pending the Supreme Court’s decision in Shell Oil Co. v. EEOC, 676 F.2d 322 (8th Cir.1982), cert. granted, 459 U.S. 1199, 103 S.Ct. 1181, 75 L.Ed.2d 429 (1983), wherein the Eighth Circuit declared an open-ended charge similar to that filed against Dresser invalid for failing to satisfy the date and circumstances requirements of Section 706(b), Title VII, 42 U.S.C. § 2000e-5(b).

There are no issues of fact, and the question we decide here is strictly one of law. As noted by the EEOC in brief, Dresser in effect seeks an injunction against an EEOC investigation because the charge against it is allegedly facially invalid. Simply stated, the issue raised is whether the charge filed against Dresser complies with Section 706(b) of Title VII and the EEOC’s own regulations, to-wit: 29 C.P.R. § 1601.-12(a)(3)(1981). On this question, we do not hesitate to approach the merits of Dresser’s allegations.

The charge levied against Dresser states in full as follows:

COMMISSIONER CHARGE
Pursuant to the authority contained in Sections 706 and 707 of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000(e), et seq., I charge the employer and labor organizations listed below with unlawful employment practices occurring at or controlled from the employer’s facility as listed:
Dresser Industries, Industrial Valve and Instrument Division
Alexandria Plant
P. O. Box 1430
Alexandria, Louisiana
Office and Professional Employees International Union, Local 465
International Association of Machinists and Aerospace Workers, Local 2518

I believe that the above-named employer and labor organizations are within the jurisdiction of the Equal Employment Opportunity Commission and have violated since July 2, 1965, and continue through the present to violate Section 703 and Section 707 of the Civil Rights Act of 1964, as amended, by unlawfully discriminating against blacks and women, because of their race and/or sex, with respect to recruitment, hiring, assignment, training, promotion, and other terms, conditions and benefits of employment.

Specifically, the employer’s unlawful discriminatory practices include, 'but are not limited to:

1. Failing or refusing to recruit and/or select blacks and women, because of their race and/or sex, on an equal basis with whites and men.
2. Assigning blacks and women, because of their race and/or sex, to positions of lower pay, lesser responsibility, and fewer opportunities for advancement than positions to which similarly qualified whites and men are assigned.
3. Restricting and/or excluding blacks and women, because of their race and/or sex, from training and promotion opportunites equal to those afforded to whites and men.
4. Maintaining discriminatory job assignment policies and practices, and other terms and conditions of employment, which operate to disadvantage blacks and women, because of their race and/or sex.
Specific unlawful employment practices engaged in by both the employer and the labor organizations include, but are not limited to, maintaining seniority, posting, and bidding systems as well as other systems contained in the collective bargaining agreements which operate to perpetuate the effects of the employer’s discriminatory hiring, assignment, promotion and training policies.
The persons aggrieved include all women and minorities who have been, continue to be, or may in the future be adversely affected by the unlawful employment practices complained of herein.

Under this charge, Dresser is accused of violating Title VII through its employment practices since the effective date of the Act, July 2, 1965. The allegations cover a period of time exceeding 18 years to date.

We agree that this charge is facially invalid because it does not set forth adequately the date and circumstances of the alleged unlawful employment practices as required by Section 706(b) of Title VII or 29 C.F.R. 1601.12(a)(3). We reach this conclusion finding that Shell Oil, supra, is a correct statement of the law under the 1972 amendments to Section 706(b), P.L. 92-261, § 4, 86 Stat. 104 (1972).

We note that the decisional law appears to be in serious conflict. Recently, two circuits have held that the use of the July 2, 1965 date failed to comply with the date and circumstances requirements of Section 706(b). Shell Oil Co. v. EEOC, supra; EEOC v. K-Mart Corp., 694 F.2d 1055, 1063 (6th Cir.1982). Prior cases, including one from our Court of Appeals, held that a charge of discrimination couched in general terms is valid. See, e.g., New Orleans Public Service, Inc. v. Brown, 507 F.2d 160 (5th Cir.1975); Graniteville Co. v. EEOC, 438 F.2d 32 (4th Cir.1971); Bowaters Southern Paper Co. v. EEOC, 428 F.2d 799 (6th Cir.1970). However, this latter set of cases involved charges issued under Section 706(b) prior to the 1972 amendments. Thus, although we are mindful of the law in this circuit as set forth in Brown, supra, we question whether the Fifth Circuit would reaffirm its holding given more recent decisions and the 1972 amendments to Section 706(b).

In Brown, supra, the court held that a detailed charge containing statistical information was sufficient to commence investigatory procedures by the EEOC, including the power to subpoena relevant information. The court stated as follows:

“As we have stated, the trial court cited no case, and none is cited by the appellant, to conflict with the plethora of cases holding that charges similar to that involved here, even without the statistical information which the charge contains, are sufficient to commence the investigatory procedures by the ■ commission, including the power to seek a subpoena for the kind of information sought here.” Id. at 164. (Citations omitted).

Unlike the charge here or in Shell Oil, the Brown charge did not allege unlawful practice since the effective date of the Act, July 2,1965. This is because Section 706(b) required only that the charge “set forth the facts upon which it is based”. See Id. at 161, fn. 1. In 1972, however, Congress changed the law so that now the EEOC must serve notice of the charge “(including the date, place, and circumstances of the alleged unlawful employment)”, 42 U.S.C. § 2000e-5(b), as amended by P.L. 92-261, § 4, 86 Stat. 104 (1972) (emphasis added). As noted in EEOC v. Dean Witter, 643 F.2d 1334, 1337 (9th Cir.1980):

“The amended Section 706(b) varies in three basic respects relevant here: (1) Instead of needing ‘reasonable cause’, a Commissioner must make the charge ‘under oath or affirmation’, (2) Instead of stating in the charge the ‘facts’ upon which the charge is based, the Commissioner complaintant ‘shall serve a notice of the charge’, including the date, place and circumstances of the alleged employment practice; and (3) The amended Section 706(b) imposed the same charging requirements upon both the Commissioner and private complaints.”

Faced with these new statutory requirements, the EEOC has ventured to use the July 2, 1965 date, the effective date of Title VII, in an effort to comply with the date requirement. The issue here is the propriety of the use of that date, a question left undecided by Brown, supra, but squarely confronted in Shell Oil.

In Shell Oil, the charge as amended alleged that Shell Oil had engaged in unlawful employment practices from July 2, 1965 to present. Shell argued that the July 2, 1965 date was not a good faith statement of the date of alleged unlawful practices. In addition, Shell argued that no factual circumstances were presented to provide a basis for believing Shell violated Title VII. The EEOC, on the other hand, contended that the oath requirements sufficiently protected employers from specious charges, and the charge complied with the date, place, and circumstances requirements of Section 706(b). In rejecting the EEOC’s argument, the court found the charges deficient because they did not set forth adequately the date and circumstances of the unlawful practices. Id. at 325.

As noted above, Section 706(b) as amended requires that the EEOC service notice of the charge, including the date, place and circumstances of the alleged unlawful practices. The EEOC’s own regulations require that each charge contain “a statement of the facts, including pertinent dates, constituting the alleged unlawful practices.” 29 C.F.R. 1601.12(a)(3). Thus, the EEOC must demonstrate there is some basis in fact for the use of the July 2,1965 date, independent of its admitted significance of the date before which the employer could not be liable. Shell Oil, supra, at 325. Accordingly, the EEOC must show through statistical information or otherwise that a foundation exists for believing unlawful practices occurred on that date. A good faith averment which alleges unlawful practices since a particular date, even though supported by an oath, is not enough. The charge must include other information “to more fully identify the information that has been used as the basis of the subpoena.” Id.

Here, we find that the July 2, 1965 date without more does not satisfy the date requirement of Section 706(b) or the statement of facts requirement of 29 C.F.R. 1601.12(a)(3). There is no factual foundation in the charge for the use of that date; there is no information in the charge which sets forth the basis for believing that unlawful practices occurred on that date. In the absence of this factual basis, the employer has virtually no protection from an open-ended investigation. All employment data, without exception, becomes relevant to the EEOC’s investigation merely because it falls within the time frame established by the EEOC. Accordingly, the employer has no notice of the “perimeters” of the investigation. Id.

In addition, Section 706(b) requires that there must be some factual or statistical basis to support the statement of circumstances. Id. at 326. This foundation “enables the parties to determine whether conciliation is an appropriate remedy and aids the court and the employer in determining what evidence is relevant for discovery and what records must be retained in accordance with the EEOC’s regulations, 29 C.F.R. 1602.14(a) (1981).” Id. In this case, the EEOC has not complied adequately with the statement of circumstances requirement of Section 706(b). Cf. Id. (description of information which a charge should contain).

In sum, a charge which does not contain factual or statistical information to support the use of the July 2, 1965 date or the statement of circumstances fails to comply with Section 706(b) as amended and 29 C.F.R. 1601.12(a)(3). Without a rudimentary foundation, the employer is open for a “fishing expedition” whose duration, scope, and thoroughness are dependent solely on the investigatory agency. Although the legislative history of the 1972 amendments is not clear, see Dean Witter, supra, at 1337, we suspect that the changes were made primarily to avoid this result. We cannot perceive how these changes evince any intent other than to impose more onerous requirements on the EEOC than existed under prior law. The amendments clearly require more specificity.

We have no interest in curtailing the usefulness of the EEOC as an investigatory agency, but we believe that in order to proceed it must comply with its own regulations and statutory law. The new amendments do not require a detailed explication of facts at such an early stage, but they do require some factual basis in support of the date and the circumstances of the alleged unlawful practices. In this case the EEOC has not complied with these minimum requirements.

Accordingly, the EEOC’s investigation of Dresser under the charge at issue is hereby enjoined until the EEOC amends its charge in the manner not inconsistent with Shell Oil, supra, or the views expressed herein, or at the latest, until the Supreme Court renders a decision in Shell Oil. Dresser is hereby instructed to prepare and submit an order in accordance with this ruling.

       The Sixth Circuit has criticized the "some basis in fact” requirement as contrary to "well-established law.” EEOC v. K-Mart Corp., supra, at 1063, fn. 7. That court perceives this requirement as tantamount to a statement of probable cause or reasonable cause to believe violations have occurred. We disagree. A reading of the date, place and circumstances requirement of 706(b) in pari materia with 29 C.F.R. 1601.-12(a)(3) leads us to conclude the EEOC has chosen to impose the statement of fact requirement upon itself in 1981 despite the settled law cited in K-Mart Corp., supra. Thus, we believe the some basis in fact requirement merely gives the EEOC’s regulation its full effect, imposing a burden upon the EEOC which heretofore did not exist under prior law. Cf. Id. (Cases cited therein).


author: RAYMOND J. BRODERICK, District Judge.

text:
    Shana STRAUSS, a minor by Abner J. STRAUSS and Madelyn Strauss, Mother and Father and Guardians, and Abner J. Strauss and Madelyn Strauss, in their own right v. NORWEGIAN CARIBBEAN LINES, INC.
    No. Civ. A. 83-3455.
    United States District Court, E.D. Pennsylvania.
    Feb. 6, 1984.

      Norman Shigon, Philadelphia, Pa., for plaintiff.
    James A. Yulman, Krusen, Evans & Byrne, Philadelphia, Pa., for defendant.
   MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

This action was commenced in the Court of Common Pleas for Philadelphia County on January 28, 1982. The suit as originally filed contained claims of Abner, Madelyn and Shana Strauss for breach of contract and negligence against Norwegian Caribbean Lines (NCL) and John Wanamaker Department Stores (Wanamaker). The claims arose out of a cruise in August, 1980 on which the plaintiffs were passengers. NCL operated the cruise ship, and Wanamaker, through its travel agency, sold the plaintiffs their tickets. After preliminary objections were sustained to several complaints filed by the plaintiffs in the state court, the claims ,of Madelyn and Shana Strauss were dismissed, and all claims by Abner Strauss were dismissed except for his claim for damages for personal injury resulting from the defendant’s negligence. NCL answered and then moved for summary judgment on the basis of a provision in its contract of passage with the plaintiffs which states:

... [I]n no event shall any suit for any cause against the carrier with respect to delay, detention, personal injury, illness or death be maintainable, unless suit shall be commenced within one (1) year from the day when the delay, detention, personal injury, illness or death of the passenger occurred, notwithstanding any provision of law of any state or country to the contrary.

The plaintiffs’ answer contends that this provision is invalid because it is in “microscopic print.”

On July 12, 1983, the plaintiff settled with Wanamaker, and a joint tortfeasor release was entered into dismissing Wanamaker from the action. On July 19, 1983, NCL filed a petition to remove the case here on the ground that complete diversity existed because of the voluntary dismissal of Wanamaker. The plaintiffs have not challenged the removal, and it appears to have been proper in light of Powers v. C & O Railway, 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673 (1898). See DeBry v. Transamerica Corp., 601 F.2d 480, 486-88 (10th Cir.1979); 14 Wright, Miller & Cooper, Federal Practice and Procedure § 3732 at 726 (1976). NCL has renewed its motion for summary judgment in this Court, supporting it with the affidavit of its customer relations director. The plaintiffs have responded to the motion, but have not filed any affidavits or other evidentiary material as provided by Fed.R.Civ.P. 56.

The plaintiffs have also filed, in this Court, a “counterclaim” based on a release which they claim to have entered into with NCL. The plaintiffs claim that NCL’s failure to honor this release by. refunding the cost of the cruise “has resulted in the intentional infliction of emotional distress upon the plaintiffs.” The defendant has moved to strike this “counterclaim” on the grounds that it was filed without leave of court, was untimely, and is barred by the Order of the state court which dismissed all claims in this action except for Abner Strauss’ negligence claim for damages for personal injury. The plaintiffs have not responded to this motion to strike. For the reasons which follow, the pleading denominated by the plaintiffs as a “counterclaim” will be stricken, and NCL’s motion for summary judgment will be granted.

Although the plaintiffs denominated the claim for intentional infliction of emotional distress a “counterclaim”, the plaintiffs are in reality attempting to assert a wholly new cause of action, without obtaining leave of court to amend their complaint. Leave to amend must be sought from the Court under such circumstances. Fed.R.Civ.P. 13(f), 15(a). Accordingly, the “counterclaim” must be stricken for failure to seek leave of court to amend the complaint. Moreover, the “counterclaim” fails to state a claim upon which relief could be granted under Pennsylvania law for two reasons: (a) it does not allege the essential elements of a claim for intentional infliction of emotional distress; and (b) it was filed after expiration of the applicable two year statute of limitations. See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir.1979) (setting forth the elements of a cause of action for intentional infliction of emotional distress); 42 Pa. Cons.Stat.Ann. § 5524(2).

Section 183b(a) of Title 46 of the United States Code allows owners, operators and agents of sea-going vessels to limit their liability for personal injury or death to cases in which suit has been instituted within one year of the date when the death or injury occurred. Barbachym v. Costa Line, Inc., 713 F.2d 216, 218 (6th Cir.1983); DeNicola v. Cunard Line, Ltd., 642 F.2d 5 (1st Cir.1981); Catterson v. Paquet Cruises, Inc., 513 F.Supp. 645, 646-47 (S.D.N.Y.1981). A carrier seeking to take advantage of a shortened period of limitations provided by the terms of its contract must make reasonable efforts to bring the contract terms to the passenger’s attention. Numerous cases have discussed the “reasonable communicativeness” standard applied to contractual limitations in contracts of maritime passage; some of these cases will be noted below in analyzing the contractual limitation in NCL’s passage contract. The most widely followed formulation of the standard to be used in determining if contract terms have been sufficiently brought to the passenger’s attention is that of Judge Friendly in Silvestri v. Italia Societa per Azioni di Navigazione, 388 F.2d 11, 17 (2d Cir.1968): “the thread that runs implicitly through the cases sustaining incorporation [of contractual terms of limitation] is that the steamship line had done all it reasonably could do to warn the passenger that the terms and conditions were important matters of contract affecting his legal rights.” The question whether the standard has been met in a particular case is one of law for the court. Barbachym, 713 F.2d at 218; DeNicola, 642 F.2d at 11; Carpenter v. Klosters Rederi A/S, 604 F.2d 11 (5th Cir.1979).

A party is entitled to summary judgment if it carries its burden of showing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir.1981). No genuine issue of material fact is raised by NCL’s affidavit or the pleadings in this case. The affidavit states (11 6) that the plaintiffs received a copy of the contract of passage containing the contractual limitation period before boarding the ship and retained this copy after boarding the vessel. The plaintiffs have admitted that they received the passenger contract ticket containing the provision. (Answer to motion for summary judgment (H 10); “Verification” submitted by plaintiffs’ attorney dated December 24, 1983, (112)). A copy of the plaintiffs’ passenger contract ticket is attached to the affidavit submitted by NCL, and the Court has reviewed an original form of such a contract provided by NCL. No question as to the authenticity of these copies has been raised. It is also unquestioned that this suit was not filed until January, 1982, more than one year after the time of the alleged injury in August, 1980. Accordingly, the only question remaining for determination is whether the contractual limitation on the time for filing suit was reasonably communicated to the plaintiffs so that the defendant may rely on it. For the reasons below, we hold that it was.

The passenger contract consists of two rectangular pieces of paper printed on both sides. The face of the top piece contains the defendant’s name “Klosters Rederi A/S d/b/a Norwegian Caribbean Lines,” its address, and certain other information including the sailing date, cabin number, passenger names and total fare. In the bottom left-hand corner, printed in red capital letters against a white background, appears the phrase “THE PROVISIONS ON THE REVERSE HEREOF ARE INCORPORATED AS THOUGH FULLY REWRITTEN.” At the top of the reverse side of this piece of paper, in large, easily readable dark type, appears the notice: “Passengers are advised to read the terms and conditions of the Passenger Contract Ticket set forth below. Acceptance of this Passenger Contract Ticket by Passenger shall constitute the' Agreement of Passenger to these Terms and Conditions. NORWEGIAN CARIBBEAN LINES” Six paragraphs of terms and conditions, in small but readable type, appear on this side of the first piece of paper. Paragraphs 7-13 appear in blue type on the face of the second piece of paper; paragraph 13 contains the limitation at issue in this case. Paragraphs 14-25 are contained on the reverse of the second piece of paper.

The face of the passenger contract ticket contains a conspicuous notice directing the passenger’s attention to the contractual terms contained on the inside. Under such circumstances, courts have uniformly held the passenger bound by the contractual terms contained in the contract, despite the fact that the passenger may not have read the contract. DeNicola, 642 F.2d at 10-11 (notice of terms and conditions of contract set forth in bold face type on the face of the contract; provisions appear on pages two through five in readable but fine print); Carpenter, 604 F.2d at 12 (notice printed in bold-face type on the face of the ticket; NCL was defendant shipowner); Baron v. Compagnie Generate Transatlantique, 108 F.2d 21, 22 (2d Cir.1939) (prominent red type on ticket called passenger’s attention to limitations of liability contained in contract); Gardner v. Greek Line, 388 F.Supp. 856 (M.D.Pa.1975) (words “important notice” appear in bold type within a box on the face of the contract; underlined type below instructs passengers to read the attached terms and conditions before accepting): McQuillan v. Italia Societa per Azione di Navigazione, 386 F.Supp. 462, 466 (S.D.N.Y.1974) aff'd 516 F.2d 896 (2d Cir.1975) (cover and second page of contract direct passenger’s attention to conditions on following pages); Upton v. National Hellenic American Lines, 294 F.Supp. 308, 311 (E.D.N.Y.1968) (warnings appearing on booklet cover afford reasonable notice of existence and importance of conditions).

By contrast, those courts which have refused to enforce contractual limitations because no reasonable notice of the limitation was given have generally relied heavily on the absence of a conspicuous facial notice of the terms and conditions sought to be incorporated into the contract. Barbachym, 713 F.2d at 220 (ticket face contains only inconspicuous, vague language); Silvestri, 388 F.2d at 14 (facial warning in inconspicuous lower-case letters squeezed between two bold-faced captions); Cada v. Costa Line, Inc., 547 F.Supp. 85 (N.D.Ill.1982) (lack of clear facial warning); Raskin v. Compania de Vapores Realma S.P., 521 F.Supp. 337 (S.D.N.Y.1981) (same). Since the passenger contract ticket received by the plaintiffs contained a conspicuous reference on its face to the terms and conditions of the contract, the contractual limitation on the time for filing suit was reasonably communicated to the plaintiffs and is binding on them.

The claim for personal injury resulting from NCL’s negligence is barred because it was not instituted within one year of August, 1980, the time of injury. The defendant’s motion for summary judgment will therefore be granted.


author: PLUNKETT, District Judge.

text:
    Edward BENEDETTO, Plaintiff, v. NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO, BRANCH 608, the United States Postal Service, and R.H. Pusateri, Individually and as Agent of the United States Postal Service, Defendants.
    No. 81 C 4550.
    United States District Court, N.D. Illinois, E.D.
    May 23, 1984.
    David F. Addleton, Abrams, Gomberg & Reese, Ltd., Chicago, 111., for plaintiff.
    Dan K. Webb, U.S. Atty., Steven A. Miller, Asst. U.S. Atty., Chicago, 111. (Dorothy Lupton Moran, Asst. Regional Labor Counsel, .U.S. Postal Service, Chicago, 111., of counsel), for defendants.
   MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

Edward Benedetto (“Plaintiff”) brings this action against the National Association of Letter Carriers, AFL-CIO, Branch 608 (the “Union”), the United States Postal Service (the “U.S.P.S.”), and R.H. Pusateri (“Pusateri”), seeking various forms of relief for alleged injuries arising from Plaintiff’s employment by the U.S.P.S. Jurisdiction is apparently based on 29 U.S.C. § 185 and 28 U.S.C. § 1331. Presently before the court is Pusateri’s motion, under Fed.R. Civ.P. Rule 12(b)(6), to dismiss what is, in effect, Count III of Plaintiff’s first amended complaint (“complaint”) for failure to state a claim upon which relief can be granted. For the reasons set forth below, Pusateri’s motion is granted.

Factual Background

For purposes of Pusateri’s motion, we must, of course, accept as true the well-pleaded factual allegations of Plaintiff’s complaint. E.g., Reichenberger v. Pritchard, 660 F.2d 280, 282 (7th Cir.1981). Further, we must view the reasonable inferences to be drawn from those allegations in the light most favorable to Plaintiff. E.g., Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir.1981). The complaint discloses that Plaintiff was employed as a letter carrier by the U.S.P.S. until he was discharged in November 1981, and that he was at all relevant times a member of the Union. Pusateri was also at all relevant times an employee of the U.S.P.S. and was in a supervisory position with respect to Plaintiff.

Plaintiff alleges that, during the course of his employment, the U.S.P.S. wrongfully imposed various disciplinary sanctions on Plaintiff, and ultimately wrongfully discharged him, and that the Union breached its duty of fair representation to Plaintiff in its handling of at least two of his grievances against the U.S.P.S. Plaintiff avers that Pusateri improperly initiated approximately five disciplinary actions against Plaintiff between August 1975 and November 1981, and that Pusateri directly or indirectly caused Plaintiff to be discharged by the U.S.P.S. In Count III of his complaint, Plaintiff seeks to recover compensatory damages from Pusateri for his alleged “intentional infliction of emotional distress and tortious interference with business relations.” (Complaint, ¶ 1.)

Discussion

At first glance, Count III of Plaintiff’s complaint would seem to present straightforward state law tort claims against Pusateri. Indeed, earlier in his complaint, Plaintiff invokes the court’s pendent jurisdiction. (Complaint, ¶ 3.) On this “simplistic” reading of Count III, the issue before us would be that of whether Pusateri, as a federal official, is immune from suit. See Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Appearances, however, are often misleading. The problem in this case is posed by the fact that our first duty is, as always, to investigate the propriety of our exercising jurisdiction. Count III of Plaintiff’s complaint, if viewed as presenting state law claims, has no independent jurisdictional basis. Thus, as Plaintiff seems to recognize (albeit not explicitly), Count III, so viewed, would have to be dismissed, since our exercising pendent party jurisdiction in that situation would clearly be improper. See Hixon v. Sherwin-Williams Co., 671 F.2d 1005, 1008 (7th Cir.1982); Hampton v. City of Chicago, 484 F.2d 602, 611 (7th Cir.1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974).

In an attempt to avoid that result (we surmise), Plaintiff urges us to find that Count III presents claims “arising under the ... laws ... of the United States,” within the meaning of 28 U.S.C. § 1331. In other words, Plaintiff would have us “create,” in the context of federal employment decisions, a federal common law of “intentional infliction of emotional distress and tortious interference with business relations.” Antecedent to the immunity issue, therefore, is the question of whether Count III states federal claims, for if “it appears beyond doubt that ... [Pjlaintiff can prove no set of facts in support of his claim[s] which would entitle him tó relief,” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) (footnote omitted), we cannot properly exercise jurisdiction over Count III. As a result, this seemingly straightforward motion becomes one forcing us to confront some fundamental problems of American jurisprudence.

We begin by noting that Plaintiff incorrectly characterizes what he asks us to recognize in Count III of his complaint as a “Bivens-type action.” In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971), the Supreme Court held that a claim for damages could be founded directly on the Fourth Amendment to the Constitution. In the present case, however, Plaintiff does not purport to base Count III on the Constitution. More fundamentally, in Bivens and its progeny, a violation of the Constitution (and thus of federal law) is assumed to have occurred, and the issue is that of whether a suit for damages is available to the plaintiff as a remedy. In the present case, on the other hand, Plaintiff, who we assume has in some sense been injured, in urging us to allow a damages action as a remedy, is in effect asking us to recognize (for the first time) the existence of certain federal rights. The power of a federal court to provide remedies for established constitutional violations is far greater than its power to fashion federal common law. See, e.g., United States v. Standard Oil Co. of California, 332 U.S. 301, 313, 67 S.Ct. 1604, 1611, 91 L.Ed. 2067 (1947). In short, we believe that those decisions which have permitted direct actions for damages under the Constitution are inapposite.

That conclusion, however, does not imply that those decisions which have refused to allow damages actions for alleged violations of constitutional rights are irrelevant to the present case. Indeed, Pusateri relies almost exclusively on such a case, Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). In Bush, the Supreme Court declined “to permit a federal employee to recover damages from a supervisor who has improperly disciplined him for exercising his First Amendment rights.” 103 S.Ct. at 2417. The Court based its decision on its conclusion that, because the plaintiff (like Plaintiff in the present ease) was a civil servant, his “claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States.” 103 S.Ct. at 2406.

We agree with Pusateri’s position to the extent that, were we to find that Bush is essentially indistinguishable from the present case except for the nature of the wrong alleged, we would hardly be prepared to create a new damages remedy for allegedly tortious conduct under circumstances which led the Supreme Court to refuse to create a similar remedy for an alleged violation of constitutional rights. Plaintiff contends, however, that Bush is distinguishable. In particular, Plaintiff argues that he had no meaningful administrative remedy for at least two of the disciplinary actions against him which were allegedly wrongfully initiated by Pusateri, because they resulted in suspensions for fourteen days or less. As the Supreme Court itself pointed out in Bush, “[n]ot all personnel actions are covered by this [civil service] system. For example, there are no provisions for appeal of ... suspensions for 14 days or less, 5 U.S.C. § 7503 (Supp. V 1981).” 103 S.Ct. at 2415 n. 28. We believe that, at least in the context of a motion to dismiss, Plaintiff has proffered a significant distinction between Bush and the present case. Because, under the circumstances presented by this case, the civil service system may not have afforded Plaintiff “a remedy that is substantially as effective as a damage action,” Bush v. Lucas, 103 S.Ct. at 2418 (Marshall, J., concurring), we decline to find that Bush controls our decision in the present case. See Sonntag v. Dooley, 650 F.2d 904, 907 (7th Cir.1981).

Since we lack controlling precedent, we must return to first principles, beginning with the venerable proposition that “ft]here is no federal general common law.” Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). That we cannot fashion general common law, though, does not mean that we do not, in some situations, have the powers of a common law court. When the subject matter of a case is sufficiently federal in character, a federal court can, in the absence of an applicable statute, create federal common law. See Clearfield Trust Co. v. United States, 318 U.S. 363, 366-67, 63 S.Ct. 573, 574-75, 87 L.Ed. 838 (1943). Because “the scope, nature, legal incidents and consequences of the [federal employment] relation between ... [Plaintiff and the U.S.P.S.] are fundamentally derived from federal sources and governed by federal authority,” United States v. Standard Oil Co. of California, 332 U.S. at 305-06, 67 S.Ct. at 1606-07, this may well be such a case. At any rate, we assume, for purposes of our decision, that this is a case in which we have the power to create new federal common law torts.

Given that assumption, we nevertheless believe that doing so would clearly be improper. The reason is simple and, at this point, probably antielimactic. This is a case in which “state law ... furnish[es] convenient solutions in no way inconsistent with adequate protection of the federal interest,” United States v. Standard Oil Co. of California, 332 U.S. at 309, 67 S.Ct. at 1609, and, we would add, in no way inconsistent with adequate protection of Plaintiffs interests. We can find no reason to create federal common law remedies for “intentional infliction of emotional distress and tortious interference with business relations” when Plaintiff, and those similarly situated, already have equivalent tort remedies under the laws of the various states. We fail to see what advantage Plaintiff would gain (other than the one mentioned below) by proceeding under federal law rather than state law. In particular, we note that Pusateri’s immunity defense would apply as much to federal tort claims as to state tort claims. See, e.g., Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. at 397-98, 91 S.Ct. at 2005-06. The only rationale which we can imagine for Plaintiff’s ardent efforts to persuade us to recognize new federal common law torts is that Plaintiff is attempting to create federal jurisdiction where it would not otherwise exist, and that is an endeavor in which we have no intention of assisting him. We are thus back at our original, straightforward reading of Count III of Plaintiffs complaint, from which we probably should not have departed in the first place.

Conclusion

For the reasons stated above, Pusateri’s motion to dismiss Count III of Plaintiff’s complaint is granted. Accordingly, Pusateri is hereby dismissed as a defendant in this case.

      . What Plaintiff refers to as his "Third Claim for Relief," we refer to as “Count III” of his complaint.

      . Although Pusateri has submitted an affidavit in support of his motion to dismiss, we have excluded it, and our decision is based only on the allegations of Plaintiff's complaint. See Fed.R.Civ.P. Rule 12(b). In addition, we note that Pusateri has withdrawn his motion to dismiss Plaintiffs complaint, under Fed.R.Civ.P. Rule 12(b)(2), for lack of jurisdiction over the person.


author: GETZENDANNER, District Judge.

text:
    John HANEY, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    No. 82 C 7714.
    United States District Court, N.D. Illinois, E.D.
    Sept. 10, 1984.

      Robert M. Hodge, Chicago, 111., for plaintiff.
    Eileen M. Marutzky, Asst. U.S. Atty., Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge.

This action was brought under 42 U.S.C. § 405(g) for review of the termination of plaintiff’s Social Security Disability Benefits. On January 26, 1984, this court remanded the case to the Secretary of the Department of Health and Human Services for further consideration of whether plaintiff’s mental retardation, coupled with his other impairments, renders him incapable of engaging in substantial gainful activity, despite demonstrated improvements in his physical condition since the initial disability determination in 1973. The case .is now before the court on plaintiff’s motion for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (“EAJA”). Section 2412(d)(1)(A) is applicable to this ease, as its repeal affects only those cases filed after October 1, 1984.

Under this provision, a “prevailing party” may recover fees and expenses in a civil action brought by or against the United States unless the court finds that the position of the United States was substantially justified or that other special circumstances would make a fee award unjust. Plaintiff claims that because his federal action resulted in a remand to the Secretary, he is a “prevailing party” under the EAJA. Further, plaintiff claims that the position of the Secretary in this case was not substantially justified, as she ignored one of her own policy statements regarding mental retardation. Finally, plaintiff claims that no special circumstances render the award unjust in this case.

As is required under the EAJA, plaintiff has submitted an itemized statement of the time expended in this case, the rate at which fees were computed, and the total fee requested. Plaintiff has correctly demanded fees only for the time spent representing plaintiff in the district court. Berman v. Schweiker, 713 F.2d 1290, 1293 (7th Cir.1983); Cornelia v. Schweiker, 728 F.2d 978, 988 (8th Cir.1984). Plaintiff’s attorney, Robert Hodge, requests a total fee of $1,650.00.

The Secretary’s response, filed almost three months after the petition was filed, contains numerous objections to plaintiff’s petition. The court will now consider these objections.

EAJA’s Applicability to Fees in § 405(a) Cases

The Secretary argues that:
When attorneys’ fees are specifically provided for by the Social Security Act, the EAJA cannot operate as an additional or alternative source of attorney fee awards. Section 206(b)(1) of the Social Security Act provides for attorneys’ fees where, as here, a plaintiff has prevailed in a claim for past-due benefits.

(Memorandum in Opposition to Fee Petition p. 2.) Observing that § 406(b)(1) provides that where the court awards attorney’s fees, “no other fees may be payable,” and that the EAJA provides, for fee awards “[ejxcept as otherwise specifically provided by statute,” the Secretary concludes that fees under the EAJA are inappropriate in this case.

In Berman v. Schweiker, 531 F.Supp. 1149, 1151 (N.D.Ill.1982), affd on other grounds, 713 F.2d 1290 (7th Cir.1983), a court in this district squarely rejected this argument. (The Secretary declined to appeal the issue of whether the EAJA applied to Social Security disability cases. 713 F.2d at 1294 n. 12.) The Eighth Circuit has recently joined the Fourth, Ninth, and the Second Circuits in finding that the EAJA applies to Social Security Act cases. Cornelia v. Schweiker, 728 F.2d 978, 987 (8th Cir.1984); Wolverton v. Heckler, 726 F.2d 580 (9th Cir.1984); Guthrie v. Schweiker, 718 F.2d 104, 107-08 (4th Cir.1983); McGill v. Secretary, 712 F.2d 28, 30 (2d Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 1420, 79 L.Ed.2d 745 (1984). A clear reading of the two statutes demonstrates that this conclusion is incontestable. Section § 406(b) does not shift fees to the government, but regulates the private fee arrangements of the claimant and his or her attorney. The legislative history of the EAJA reveals that the Act’s conditional language addresses other fee-shifting statutes. That no other fee is payable further regulates these private arrangements, ensuring that the claimant’s attorney does not ask for fees additional to the statutory maximum. (Indeed, criminal sanctions are prescribed for violations of this provision. 42 U.S.C. § 406(b)(2).) The court concludes, therefore, that the EAJA is applicable to cases brought under § 405(g).

Timeliness of Plaintiff s Petition

The Secretary argues that plaintiff’s fee petition was not filed “within thirty days of final judgment,” as is required under § 2412(d)(1)(B). This court’s memorandum opinion and order was dated January 26, 1984, and the fee petition filed on March 13, 1984. The court agrees with plaintiff that in this case, “final judgment” was upon the expiration of the government’s time to appeal, which in this case is 60 days after the district court decision. Fed.R.App.P. 4(a)(1). The petition is therefore timely.

The holding of and strong language in McDonald v. Schweiker, 726 F.2d 311 (7th Cir.1983), renders almost frivolous the Secretary’s position on the timeliness issue in this case. In McDonald, the claimant filed a fee petition within 30 days of a voluntary dismissal of the Secretary’s appeal. The Court held that the “final decision” under the EAJA meant the completion of appellate proceedings. 726 F.2d at 315. Where no appeal is filed, the completion of appellate proceedings is simply the expiration of the time in which to appeal.

The Secretary distinguishes this case with that in McDonald, in effect arguing that claimants must be forced to guess whether the Secretary will appeal or not. However, no principled distinction can be made between the case in McDonald and that before the court, allowing a petition in the former after the disposition of an appeal, but rejecting a petition in the latter before expiration of the time in which an appeal must be filed where no appeal was subsequently taken. Such a result in the latter case would equally “deliver[] into the hands of the government a potent, acknowledged, and from the standpoint of the policy of the Equal Access to Justice Act perverse weapon for discouraging meritorious fee applications.” McDonald, 726 F.2d at 315. According to the Seventh Circuit, an “exquisite dilemma” is presented when the attorney must determine whether to file a petition that would render more likely an appeal before the Secretary’s appeal time has expired. That Court clearly held that the EAJA was not meant to create such a dilemma, and this court is unaware of any reason why claimants should be forced to confront it in the case where the government chooses not to appeal.

Plaintiff as Prevailing Party

Regardless of the wording of the complaint or the actual relief sought in the district court, generally speaking, a social security claimant prevails when it is determined that she is entitled to benefits. Unlike a plaintiff who files a lawsuit alleging violations of a procedural due process right and seeks compensation for that deprivation, [citations omitted], the ultimate relief to which a social security claimant is normally entitled is not vindication of procedural rights but an award of benefits for a claimed disability. While it is true that a favorable ruling on plaintiff’s procedural claim that the AU should have conducted a more thorough hearing may ultimately affect the outcome on the merits of plaintiff’s disability claim, nevertheless, her procedural claim is not a matter on which plaintiff can be said to prevail for the purpose of shifting counsel fees.

The Court relied on the Supreme Court’s decision in Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (per curiam), reversing the granting of fees under the Civil Rights Act of 1976, 42 U.S.C. § 1988, to parties who had prevailed on appeal in obtaining reversal of the district court’s directed verdict for defendants and two unfavorable discovery rulings. There, the Supreme Court found that while a person may be a § 1988 prevailing party short of final judgment on the merits, fee awards are appropriate only where “a party ... has established his entitlement to some relief on the merits of his claims.” Id. at 756-57, 100 S.Ct. at 1988-89. Since the jury may ultimately decide some or all of the issues in favor of defendants, “it could not seriously be contended that the respondents had prevailed.” Id. at 760, 100 S.Ct. at 1990. See also Roman v. Schweiker, 559 F.Supp. 304 (E.D.N.Y.1983) (EAJA claim; remand for further evidence); Miller v. Schweiker, 560 F.Supp. 838, 840 (M.D.Ala.1983) (same).

Most of the cases cited by plaintiff for the proposition that he is a prevailing party resulted in findings that plaintiffs were entitled to past or future benefits. Of those that resulted simply in a remand for the taking of further evidence, many did not address the issue of whether the claimant was a prevailing party. See Ocasio v. Schweiker, 540 F.Supp. 1320 (S.D.N.Y.1982); Vega v. Schweiker, 558 F.Supp. 52 (S.D.N.Y.1983). The two cases explicitly holding that a claimant obtaining a remand is a prevailing party under the EAJA did not discuss the Supreme Court’s Hanrahan decision or other analogous § 1988 cases. See Ceglia v. Schweiker, 566 F.Supp. 118 (E.D.N.Y.1983); Gross v. Schweiker, 563 F.Supp. 260 (N.D.Ind.1983).

The court must therefore decide the applicability of the Hanrahan decision to the facts presented in this case. There, the district court’s directed verdicts for the defendants were reversed and the case remanded. Costs and attorney’s fees were awarded the plaintiffs for their efforts in successfully prosecuting the appeal. The Supreme Court conceded that § 1988 contemplated fee awards pendente lite, but found that congressional intent was to allow such an award “only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal.” 446 U.S. at 757, 100 S.Ct. 1989. As an example, the Court noted two cases in which liability had been established, although remedial orders had not yet been entered. The legislative history of § 1988 allows that awards pendente lite are especially appropriate where a party has prevailed on an important matter in the litigation, although he or she may not ultimately prevail on all issues. Id. Explaining that the Hanrahan plaintiffs were in no better position than if they had defeated defendants’ motion for a directed verdict, the Court concluded that they were not § 1988 prevailing parties.

Smith v. University of North Carolina, 632 F.2d 316, 346-47 (4th Cir.1980), is analogous to Hanrahan, although there, the plaintiff lost her claims of sex discrimination. The district court, however, awarded her costs and attorney’s fees for her prevailing on a preliminary injunction, preserving her employment until the conclusion of the litigation. The Fourth Circuit reversed, noting that to prevail, a party must demonstrate in an “enduring way” her entitlement to some right or relief. See also Grubbs v. Butz, 548 F.2d 973 (D.C.Cir.1976) (discrimination plaintiff not entitled to fees for prevailing on issue of exhaustion of administrative remedies).

The court is persuaded, however, that these cases are inapplicable to the present case. Here, the plaintiff's claims were originally presented to an executive agency, with an appeal to the district court through the filing of a new and separate civil action. The civil action starts in the district court and is not simply a continuation of the executive action. Indeed, the executive action is deemed to be non-adversarial under the EAJA, Cornelia, 728 F.2d at 988, and the district courts are limited to granting fees only for representation in the district court, and not in the Secretary’s proceedings, Berman, 713 F.2d at 1296; Cornelia, 728 F.2d at 988. By the time the claimant files the district court action, the Secretary has made a final decision on her or his case, the executive action is completed, and a new, civil suit is started. Similarly, in remanding for further proceedings, instead of reversing outright, the district court still finally decides the issues in its action. Often remand is all that is requested in § 405(g) suits; moreover, where substantive relief is requested, often the state of the administrative record makes impossible any relief other than remand.

In this case, the plaintiff claimed that the AU’s decision was not based on substantial evidence, and requested a reversal or modification of the decision or, in the alternative, a remand for further proceedings. (Complaint 115.) The court has granted most of the relief requested by finding on the present record that the Secretary may not terminate plaintiff’s benefits, and by remanding the case. Hence, plaintiff has prevailed in this civil action in a way that the plaintiffs in Hanrahan and Smith, whose civil complaints requested damages and equitable relief, did not.

Another court in this circuit, in holding that a claimant achieving a remand to the Secretary was an EAJA prevailing party, similarly found that “[t]he plaintiff obtained substantially the relief requested and under the facts of this case, the extent of relief this court had the authority to render.” Gross, 563 F.Supp. at 262. See also Ceglia, 566 F.Supp. at 121-22 (governed by McGill). There, as here, reversal was not possible as the factual record was incompletely developed in the executive proceedings. The court in Gross noted:

One of the purposes of the EAJA was to encourage the vindication of rights and correction of unlawful activities by agencies of the United States. To deny attorney fees to plaintiffs who cannot obtain the award of benefits sought under the Social Security Act from the court because of the administrative agency’s failure to fulfill its duties imposed by law is certainly inconsistent with that purpose. Thus, a remand in such a situation is the only relief available to the plaintiff.

Id. The court adds the reminder that the EAJA allows fees to prevailing parties not only where the United States’ position was wrong, but wrong without substantial justification.

The court therefore concludes that Hanrahan and its progeny are not applicable to this case. Having obtained a ruling that the. administrative decision was not supported by substantial evidence and having obtained part of the relief sought, plaintiff has achieved “some of the benefit [he] sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (citing Nadeau v. Helgemoe, 581 F.2d 275, 278 (1st Cir.1978)). Hence, he is a prevailing party under the EAJA.

Substantial Justification

To prevent an award of fees to plaintiff in this case, the Secretary must prove that she was substantially justified in her “position” in this case or that special circumstances otherwise would render an award of fees unjust. Cornelia, 728 F.2d at 983. The Secretary makes no argument with respect to the latter defense to fees, and hence this has not been shown. The court will therefore address whether the government has met its burden of proof with respect to the former.

The Seventh Circuit has described the standard of “substantial justification” as follows:

“[S]ubstantially justified” does not mean “nonfrivolous”; that is the standard the government urged, and Congress rejected. [Citation omitted.] It means that the government must have a solid though not necessarily correct basis in fact and law for the position that it took in this action.

McDonald v. Schweiker, 726 F.2d at 316. The court has found that the position of the government in this action clearly did not have a correct basis in law, and further finds that neither did it have a solid basis. The plaintiff in this case was found disabled as of December 31, 1970, due to “very unstable juvenile diabetes mellitus; spinal bifida deformity of the first sacral segment of the spine; [and] borderline range of intellectual functioning.” See Report and Recommendation, No. 82 C 7714, slip op. at 1 (Magistrate Balog, Dec. 16, 1983). In terminating plaintiff’s benefits, the AU took evidence on physical improvements, but did not mention plaintiff’s mental functioning. According to the Secretary’s own policy statements, the evidence before the AU, indicating that plaintiff’s I.Q. score was 71 in March 1973, suggests that the plaintiff may have a severe mental impairment. SSR 82-54 & 55 (I.Q. of 80 or more is not considered severe). Under these policy statements, the AU should have examined this low score, and determined whether it was incompatible with plaintiff’s current behavior. The court notes that in this case, the AU should have been especially aware of the importance of this score, since plaintiff had experienced repeated episodes of hypoglycemia which necessitated emergency room treatment. In most of these cases, the plaintiff had failed to eat properly or take insulin as prescribed by his physician. Hence, the mental impairment, in addition to limiting the range of intellectual work the plaintiff could handle, apparently has an adverse impact on his ability to comply with prescribed treatment and thereby control his physical impairments.

The AU’s ignoring of the I.Q. score was therefore not substantially justified. The administrative record omits consideration of an important aspect of plaintiffs impairment and the initial determination plus facts in the record (the I.Q. score and the several episodes of plaintiff’s inability to care for himself) clearly demonstrate that the failure to note and examine this point was without justification. As the underlying action was legally unjustifiable, the court concludes that the Secretary’s litigation position was without substantial justification as well. See Foley Construction Co. v. U.S. Army Corps of Engineers, 716 F.2d 1202, 1204 (8th Cir.1983) (no functional difference between administrative position and litigation position).

Amount of Fees

The final issue to be determined is the amount of fees to be awarded. The Secretary has not attacked the time expended or the rate charged by plaintiff’s attorney. The petition indicates that plaintiff’s attorney Richard Hodge spent 20 hours prosecuting this case and 2 hours preparing the fee petition. These hours are reasonable, as is Hodge’s rate of $75.00 an hour. The court will follow Ocasio v. Schweiker, 540 F.Supp. at 1323, and allow compensation for the preparation of the fee petition, but at the lower rate of $50.00 an hour. Plaintiff does not request the court, or argue that the court has the authority, to pay fees directly to his attorney. The court therefore orders the Secretary to pay $1,600.00 to plaintiff for his attorney’s fees in this district court action.

It is so ordered.

      . A second distinction is that § 1988 allows fees to any prevailing party essentially as a matter of course. The EAJA, however, requires that the United States fail to show substantial justification or other special circumstances before a fee would be allowed. The legislative history of the EAJA reveals that it was intended to diminish the deterrent effect of the "expense involved in seeking review of, or defending against, unreasonable government action.” Foley Construction Co. v. U.S. Army Corps of Engineers, 716 F.2d 1202, 1203 (8th Cir.1983) (citing H.R.Rep. No. 1418, 96th Cong., 2d Sess. 5-6, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984). The government carries the burden of demonstrating substantial justification, which creates a middle ground between § 1988 and the "American Rule,” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Hence, it is likely that “prevailing party" was not meant to be interpreted as narrowly in the EAJA as in § 1988.


author: KRENTZMAN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. George N. MEROS, Robert J. Papolos, et al., Defendants.
    No. 84-76 Cr-T-8.
    United States District Court, M.D. Florida, Tampa Division.
    Oct. 12, 1984.
    Supplemental Opinion Dec. 28, 1984.
   ORDER AND INJUNCTION

KRENTZMAN, District Judge.

Defendants Meros and Robert J. Papolos along with 21 others are charged in a multicount indictment with having engaged in a pattern of racketeering activities involving importation and possession with intent to distribute narcotics in violation of Title 18, § 1962(c) U.S.C. and related substantive offenses.

On August 16, 1984 the government filed a motion for leave to take the deposition of one Renate Bohrisch, a Swiss national. Similarly, on August 24, 1984 and again on September 6, 1984, the government filed additional motions for leave to take the depositions of the custodians of records of the Union Bank of Switzerland, in Geneva and Zurich respectively. On August 31, 1984, after hearing, Judge Paul Game issued an order granting the government’s motions to take Ms. Bohrisch’s and the Geneva depositions, and on September 21, 1984, he granted the motion for the Zurich deposition. In these orders Judge Game provided that all those defendants willing and able to attend the depositions be afforded the opportunity to do so by the government, and that those defendants unable to attend be afforded telephone hookups to enable them to participate as much as possible in the deposition process.

Both defendant Meros and defendant Robert J. Papolos, as well as other defendants, filed notices of their intention to attend the Swiss depositions, with defendant Papolos filing such a notice as recently as September 26.

The sole objection to Judge Game’s orders filed in this Court has been defendant Meros’ motion for reconsideration of the Magistrate’s ruling, filed September 10, in which Mr. Meros sought, among other things, to have the depositions postponed to a date when his physical condition would enable him to be present. This matter was heard at hearing on September 11, 1984 and the motion was denied by Court’s order of September 16, 1984.

On October 10, 1984 the government filed a motion representing that on or about September 19, 1984 through Swiss counsel defendants Meros and Robert J. Papolos filed objections to the Swiss depositions with Swiss officials. The government represents that said Swiss counsel represented to the Swiss Court that the United States government intends to use the deposition of Swiss witnesses and Swiss bank records solely to pursue fiscal offenses and not to support non-fiscal offenses. The government represents that as a result of the filing of said objections it has been advised that the depositions scheduled for October 15, 1984 will be stayed and that ultimately a delay as long as one year may occur. An emergency hearing was conducted on October 9. At that time representative parties were directed to file and serve memoranda, and a continued hearing was scheduled for October 12. At hearing local counsel for defendants Meros and Robert J. Papolos confirmed that Swiss counsel for their respective clients had filed such objections and contended that under appropriate treaties and Swiss laws they had the right so to do and that this Court lacked jurisdiction or authority to take action in the matter.

This matter of course is controlled by the Treaty with the Swiss Confederation On Mutual Assistance In Criminal Matters, 27 U.S.T. 2019 et seq. It is clear under the provisions of Ch. 1, Art. 2 1(c)(5) that the assistance of the Treaty is not available to obtain documents to prove tax fraud or other offenses prohibited by Title 31, U.S.C. Annotated. In its application to this Court on authority to take the depositions, by statements on the record and open court, and in its motion now pending before the Court the government affirms without qualification that it intends to abide by the terms of the Mutual Assistance Treaty and will not use or attempt to use any documents or evidence to prove or attempt to prove Title 31 violations without first having subsequently obtained specific permission from Swiss authorities. The undersigned, as Judge of this Court, for himself and any other judge who may try this case specifically affirms and binds the Court to comply with all terms of said Mutual Assistance Treaty in determining admissibility of any evidence obtained thereunder.

This Court recognizes and respects the Treaty for Mutual Assistance and the Swiss law on international judicial assistance in criminal matters. It neither has nor seeks any jurisdiction over any Swiss court or Swiss national, either as an attorney or otherwise. This Court does have jurisdiction over this case, over the parties thereto and over their attorneys who have signed appearances herein. It is charged with the serious responsibility of providing a fair and speedy trial to each of the several defendants named and to the government. Implicit to a fair trial is the right of a party to have and to obtain evidence necessary to establish the truth of the matter. Before a trial can be scheduled the parties must be given fair opportunity to obtain such evidence. Proceedings involving mutual assistance of two or more courts, each having and being entitled to the respect and assistance of the other can be and on occasions are frustrated by vague and conclusionary objections or other procedural actions.

This Court is satisfied and will insure that any evidence or information obtained through the Mutual Assistance Treaty will be used for only those purposes authorized by the Treaty and no other. Representations and actions indicating the contrary can only serve to delay, frustrate and obstruct the interest of justice in this case.

As a result of the action taken by Swiss counsel for defendants Meros and Robert J. Papolos it is obvious that the depositions scheduled for October 15 will have to be continued. The request of the government for authorization to take such depositions and to obtain evidence is again GRANTED. Counsel for the government is directed to obtain a continued date for said depositions, to promptly notify all defendants and counsel as to the date and time thereof.

The defendant George N. Meros, his attorneys Frank Ragano, Esquire, Edward T. Garland, Esquire, John R. Hesmer, Esquire and all persons acting in concert therewith or substitute therefor as counsel and the defendant Robert J. Papolos and Frank Lauderback, Esquire, his attorney, and all persons acting in concert therewith or as substitute therefor as counsel are and each is specifically DIRECTED, ORDERED AND ENJOINED from either directly or indirectly attempting to frustrate this Court’s order granting leave to take depositions or the government’s request for international judicial assistance from the Swiss Confederation by seeking to litigate in that jurisdiction the propriety of this Court’s order including any issue properly within the scope of Rule 15, Fed.R.Cr.P. Said defendants Meros Robert J. Papolos are specifically DIRECTED to immediately direct their Swiss legal representatives to withdraw objections to said depositions with said withdrawal to be effected by October 15, 1984 at 11 a.m. Swiss time. Said defendant Meros and said defendant Robert J. Papolos each is ORDERED AND DIRECTED to file a written certificate with this Court by 10 a.m. October 15, 1984 attesting to the fact that such instructions have been given and such objections have been withdrawn.

Any attempt in a foreign country by any defendant in this case to prevent the execution of the government’s request for assistance made to any foreign judicial authority in furtherance of this order may be considered as a post hoc ex parte attempt to frustrate this order and may in appropriate circumstances constitute a waiver on the part of said defendant to the right of confrontation.

A copy of this order is being made available to counsel for the government by 4 p.m. October 12, 1984. Counsel for the government is DIRECTED to hand deliver a copy thereof to counsel for defendants Meros and Robert J. Papolos and is DIRECTED to furnish a certified copy to Swiss authorities by the quickest method available.

Supplemental Opinion

Responsive to a motion filed by the government, after considering memorandum filed on behalf of defendants George N. Meros and Robert J. Papolos, respectively, and a hearing thereon, the Court on October 12, 1984, entered an order and injunction which among other things contained the following:

The defendant George N. Meros, his attorneys Frank Ragano, Esquire, Edward T. Garland, Esquire, John R. Hesmer, Esquire and all persons acting in concert therewith or substitute therefor as counsel and the defendant Robert J. Papolos and Frank Louderback, Esquire, his attorney, and all persons acting in concert therewith or as substitute therefor as counsel are and each is specifically DIRECTED, ORDERED AND ENJOINED from either directly or indirectly attempting to frustrate this Court’s order granting leave to take depositions or the government’s request for international judicial assistance from the Swiss Confederation by seeking to litigate in that jurisdiction the propriety of this Court’s order including any issue properly within the scope of Rule 15, Fed.R. Cr.P.' Said defendants Meros and Robert J. Papolos are specifically DIRECTED to immediately direct their Swiss legal representatives to withdraw objections to said depositions with said withdrawal to be effected by October 15, 1984 at 11 a.m. Swiss time. Said defendant Meros and said defendant Robert J. Papolos each is ORDERED AND DIRECTED to file a written certificate with this Court by 10 a.m. October 15, 1984 attesting to the fact that such instructions have been given and such objections have been withdrawn.
Any attempt in a foreign country by any defendant in this case to prevent the execution of the government’s request for assistance made to any foreign judicial authority in furtherance of this order may be considered as a post hoc ex parte attempt to frustrate this order and may in appropriate circumstances constitute a waiver on the part of said defendant to the right of confrontation.

Responsive thereto, on October 15, 1984, both defendants filed with this Court written certificates to the effect that Swiss counsel for them had been instructed to withdraw objections filed with Swiss authorities to the taking of depositions in Switzerland described in the Court’s order of October 12, 1984.

On December 6, 1984 the government filed a motion for contempt representing that said defendants and those acting in concert with them had violated the Court’s order of October 12, 1984. On December 12, 1984 defendants filed a brief in opposition to the government’s motion in which they in various ways “confess and avoid” the government’s representations. On December 19, 1984 the Court conducted a hearing on said motion. The proceedings were reported and a transcript is available upon request and payment for the same.

As Exhibit A to defendants’ December 12 brief defendants attached what purports to be a English translation of an appeal presented before the Chamber of Accusation of the Republic and Canton of Geneva (Switzerland). The appeal filed by Swiss attorneys acting in conjunction with the defendants and their American counsel in subpart II and III thereof sets out a summary of objections made before the Swiss Magistrate supervising the taking of the depositions and the objections being appealed.

In Section I under the heading Context Swiss counsel correctly interpret this Court’s October 12 order in the following words:

The Prosecution in the United States obtained from the American judge KRENTZMAN an order whereby he enjoined Mssrs. MEROS and PAPOLOS to immediately give instructions to their Swiss counsel to withdraw the opposition and the Administrative Law Appeal and not to undertake anything which might interfere with, or even simply delay, the execution of the request.
If the clients did not obey immediately, they were subject to a sentence of imprisonment (contempt of court).
The Swiss counsel then say:
“The opposition and the Administrative Law Appeal were withdrawn under duress, a fact of which the authorities concerned, the Federal Office of Police and the Federal Tribunal, respectively, were informed ‘expressis verbia’.”

Under subparagraph 11(a) the Swiss counsel state that:

“The withdrawal of the appeal and opposition made under duress is null and void.”

Defendants’ objections and grounds now being appealed in the Swiss courts relate to alleged violations of “American procedure” and seek an order to “quash the depositions taken during the hearing of November 12 and 13.”

In their brief filed with this Court defendants alternately contend that the Court’s order of October 12 was not clear and that their intent was to enforce, through orders of the Swiss court, the provisions of Rule 15 of the (American) Federal Rule of Criminal Procedure and the orders of this Court.

Defendants suggest that the Comprehensive Crime Control Act of 1984 (Title II of H.J.Res. 648: P.L. 98-473 adopted October 12, 1984 in a newly added Section 3507 “provides for the taking of depositions in a foreign nation,” and that this fact is relevant to the issue before this Court. This is not so. Section 3493, Title 18 of the United States Code which has been in effect since 1949 provides for such depositions. The new section merely adds new permissive procedure which is not relevant here.

The defendants’ contention that this Court’s October 12 order was not clear or was ambiguous is untenable. The meaning and purpose of that order and the defendants’ understanding of it is evidenced by the quoted portion from the Context section of the current appeal presented before the Swiss courts, supra. Request that the Swiss appeal court quash the depositions impedes and delays the government’s request for international judicial assistance. The evidence is undisputed and I find it established by clear and convincing evidence that defendants Meros, Robert J. Papólos, and their counsel Frank Ragano, Esquire, Edward T.M. Garland, Esquire, and Frank Louderback, Esquire intentionally, clearly and directly violated this Court’s order of October 12, 1984.

The defendants’ contention that their intent in bringing the Swiss appeal was to enforce the provisions of Rule 15 of the Federal Rules of Criminal Procedure is meritless. Long established rules of procedure in the United States provide for the exercise of the discovery process, including the taking of depositions, and provision is made in these rules for making and preserving objections. The Swiss objections filed by the defendants are directed to Rule 15 matters, and as such are within the jurisdiction of this Court. Under Rule 15, objections to the format, scope and use of depositions are to be made on the record at the time of their taking, as was done in this case. Any further objections the defendants may have, as well as reiterations of previously made objections, may be made in this Court at or prior to the consideration of admission of the depositions at trial. The defendants’ rights are and will be protected under the applicable American Rules, and will be preserved at trial. The continued pendency of the appeals before the Swiss courts will result in delay and frustration of the administration of justice in this case. Therefore, the defendants Meros, Robert J. Papólos, and their American counsel are directed to immediately direct their Swiss attorneys to withdraw, terminate and conclude their appeal from any and all Swiss court or courts in which they now pend. They are further ordered to file with this Court certificates of compliance with this order no later than January 10, 1985.

To be absolutely clear and without limitation, said defendants and their counsel and all persons acting in concert with them are enjoined from engaging in any activity or doing anything that would frustrate or delay the completion of the deposition process, i.e., the receipt of the transcripts of the November 12 and 13 depositions by the appropriate government representatives in this country.

The intent and purpose of this Court is not to punish defendants or their counsel but to insure compliance with this Court’s orders, protect this Court’s jurisdiction, and provide a fair and speedy trial for all the parties in this case. No action will be taken at this time in connection with the violations of the October 12 order. Any further violation of this Court’s orders will result in imposition of sanctions appropriate to civil contempt.

A copy of this order shall be mailed to defendant Meros, defendant Robert J. Papolos, to Messrs. Ragano, Garland, Louder-back, and to government counsel.


author: McMANUS, Chief Judge.

text:
    ST. ANTHONY REGIONAL HOSPITAL, et al., Plaintiffs, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    No. C 84-37.
    United States District Court, N.D. Iowa, Cedar Rapids Division.
    Oct. 12, 1984.
   ORDER

McMANUS, Chief Judge.

This matter is before the court on cross-motions for summary judgment, filed June 6 and July 2, 1984. Plaintiffs, Iowa hospitals providing services to medicare patients, are challenging a regulation issued by defendant. The regulation set forth in 42 CFR § 404.452(b)(1)(h) (1982) (hereinafter “Malpractice Rule"), restructures the manner in which reimbursement for the cost of malpractice insurance premiums is made to plaintiffs and other health care providers under the medicare program. Plaintiffs contend that the Malpractice Rule is invalid because it is contrary to the Medicare Act, 42 USC § 1395 et seq.; it was issued in violation of the Administrative Procedure Act, 5 USC § 553; and it violates plaintiffs’ constitutional rights to just compensation and due process under the Fifth Amendment to the United States Constitution.

These issues have been previously raised in fifteen district courts. Eleven district courts have held the Malpractice Rule invalid. See e.g. Menorah Medical Center v. Heckler, No. 83-0822-CV-W-4, slip op. (W.D.Mo. July 26, 1984); Bedford County Memorial Hospital v. Heckler, 583 F.Supp. 367 (W.D.Va.1984); St. James Hospital v. Heckler, 579 F.Supp. 757 (N.D.Ill.1983). Four courts have upheld the Malpractice Rule. See e.g. Boswell Memorial Hospital v. Heckler, 573 F.Supp. 884 (D.D.C.1983); Athens Community Hospital v. Heckler, 565 F.Supp. 695 (E.D.Tenn.1983). After a review of the briefs and arguments by the parties in this action, and a review of the decisions rendered by the various courts who have confronted these questions, it is the court’s opinion that defendant failed to comply with the Administrative Procedure Act in promulgating the Malpractice Rule, and that the Malpractice Rule violates the Medicare Act by denying the plaintiffs reimbursement for the reasonable costs of services rendered to medicare patients. The court’s decision is based upon the same analysis set forth in Bedford County, 583 F.Supp. 367 and St. James, 579 F.Supp. 757. These existing decisions are well-reasoned and therefore a detailed analysis by this court would be surplusage. Since the court has determined that the regulation is invalid on statutory grounds, it need not address plaintiff’s claim that it also violates the Fifth Amendment.

It is therefore

ORDERED

1. Plaintiffs’ motion granted, defendant’s motion denied.

2. Remanded to the Secretary for further action consistent with this order.

      . The court notes that plaintiffs’ and defendant's briefs are inexcusably long. See Local Rule 2.2.9.