author: VERON, District Judge.

text:
    Wayne DUHON and George Duhon v. KOCH EXPLORATION CO., et al. Curtis J. PRICE v. KOCH EXPLORATION CO., et al. Timothy J. FRUGE v. KOCH EXPLORATION CO., et al.
    Civ. A. Nos. 83-2379, 83-3275 and 85-2070.
    United States District Court, W.D. Louisiana, Lake Charles Division.
    Feb. 24, 1986.

      Aubrey E. Denton, Shelton & Legendre, Lafayette, La., for plaintiffs Wayne and George Duhon.
    William B. Baggett and Robert C. McCall, Baggett, McCall & Ranier, Lake Charles, La., for Curtis J. Price.
    Richard W. Beard, Neblett, Beard & Arsenault, Alexandria, La., for Timothy J. Fruge.
    Robert W. Booksh, Jr. and David W. Leefe, Liskow & Lewis, New Orleans, La., for defendants Koch Exploration and Koch Industries, Inc.
    James R. Nieset, Plauche, Smith & Nieset, Lake Charles, La., for Weaver Exploration Co.
    Ellis J. Daigle, Ardoin & Daigle, Eunice, La., for intervenor First Acadiana Bank.
   RULING

VERON, District Judge.

This matter comes before the Court upon the motion of defendants, Koch Exploration Company and Koch Industries, Inc., to strike the jury demand of plaintiffs, Curtis J. Price and Timothy Fruge in this consolidated action. The motion gives rise to several considerations due to the hybrid nature of this consolidated action under the Federal Rules of Civil Procedure, which embody the 1966 merger of the civil and admiralty rules. See generally, G. Gilmore & C. Black, The Law of Admiralty 2, 19 (2d ed. 1975). While there is no novelty in conducting a joint trial of claims in admiralty and claims at law, such a consolidation presents procedural issues which profoundly affect the rights and remedies available to the parties. As the determination of these issues depends upon whether the causes of action alleged are characterized as arising under this Court’s jurisdiction “in admiralty” or “at law,” it is necessary to examine the manner in which each plaintiff has framed his action.

Each of these actions arise from the alleged allision between the M/V CAPTAIN JUDE, a shrimpboat owned by plaintiff Wayne Duhon and being delivered for sale to plaintiff George Duhon, and some sort of submerged structure owned by defendants in the Gulf of Mexico on or about July 14, 1983. On or about September 22, 1983, plaintiffs Wayne Duhon and George Duhon commenced suit against defendants in the Thirty-Eighth Judicial District Court for the Parish of Cameron, State of Louisiana, alleging damages sustained in the loss of the M/V CAPTAIN JUDE, which sank as a result of the allision. After the Duhons amended their state court petition to demand a trial by jury, defendants Koch Exploration and Koch Industries, Inc. [hereinafter collectively referred to as “Koch”] removed the action to this Court on the basis of diversity of citizenship, 28 U.S.C. § 1332.

On December 30, 1983, plaintiff Curtis J. Price, Captain of the M/V CAPTAIN JUDE, commenced suit before this Court alleging damages as a result of the personal injuries he sustained as a result of the aforesaid allision. Paragraph 3 of Price’s complaint states: “This is a case of admiralty in maritime jurisdiction, as hereinafter more fully appears.” In the closing paragraph of the complaint, however, Price “prays that this cause be tried by a jury.”

On July 11, 1984, this Court ordered that the Duhons’ cause of action be consolidated with that of Price pursuant to Rule 42. Subsequent to that consolidation, Koch filed a third-party complaint for indemnity and/or contribution against Wayne Duhon, George Duhon and Curtis J. Price on October 15, 1984. The Court takes note that despite the consolidation of the two actions, they are still treated as being separate and distinct so that it is not improper to name the plaintiff in one action as a third-party defendant in the other action with which it has been consolidated. In paragraph 8 of the third-party complaint, Koch invokes the application of Rule 14(c), thereby tendering third-party defendant Price as a direct defendant to the Duhons in CV No. 83-2379. In paragraph 13 of the third-party complaint, Koch similarly invokes Rule 14(c) to pose the third-party defendants George Duhon and Wayne Duhon as direct defendants to Curtis J. Price in CV No. 83-3275.

On April 18, 1985, Price was allowed to amend his complaint, adding his spouse as a plaintiff, adding Weaver Exploration Company as a defendant, alleging diversity jurisdiction and demanding a trial by jury. Koch opposed such amendment principally on the ground that its invocation of Rule 14(c) made it impossible for this Court to obtain diversity jurisdiction because non-diverse parties, i.e., George Duhon and Wayne Duhon, were posed as direct defendants to the plaintiff Price.

On July 15, 1985, plaintiff Timothy J. Fruge filed a complaint against Koch Exploration Company, Koch Industries, Inc. and Wayne Duhon, alleging jurisdiction pursuant to the Jones Act and the General Maritime Law and seeking a trial by jury. As alleged, Fruge was employed by Wayne Duhon as a seaman aboard the M/V CAPTAIN JUDE at the time of the vessel’s allision with the submerged structure of Koch. On September 27, 1985, Fruge’s cause of action, CV No. 85-2070, was consolidated with those of Wayne Duhon, George Duhon, and Curtis J. Price. Koch amended its third-party complaint in the Price action, CV No. 83-3275, to include Fruge as a third-party defendant and tender Fruge as a direct defendant to Price pursuant to Rule 14(c). Additionally, Koch filed a third-party complaint against Curtis J. Price and Weaver Exploration Company, tendering said third-party defendants as direct defendants to Fruge, in CV No. 85-2070, under Rule 14(c). Koch has now moved to strike the jury demands of Price and Fruge, contending that their complaints state admiralty and maritime claims within the meaning of Rule 9(h), Fed.R.Civ. Pro., and that a jury trial of such claims is inappropriate under the present circumstances. The Court finds Koch’s contentions to be without merit, and will address the issues relative to each plaintiff.

Curtis J. Pnce (CV No. 83-3275)

Koch urges Price’s demand for a jury trial should be stricken because there is no complete diversity of citizenship between the parties and the only jurisdictional basis of this suit (CV No. 83-3275) lies in admiralty, 28 U.S.C. § 1333. Koch furthermore contends that it will be unduly prejudiced if Price is permitted to shift from the “admiralty side” of the court to the “law side” because it will lose the valuable benefits of Rule 14(c) and because the filing of the amended complaint came some sixteen months after the institution of this proceeding.

In his second amended complaint, Price again prays for a jury trial but also states: “This is a maritime tort case with diversity jurisdiction with the minimum jurisdictional amount being met.” Koch argues, however, that there is not complete diversity because its Rule 14(c) third-party complaint against George Duhon and Wayne Duhon poses two Louisiana residents as direct defendants to Price, also a Louisiana resident. Thus, Koch argues that its Rule 14(c) third-party complaint precludes Price’s subsequent invocation of diversity jurisdiction. The Court finds this line of reasoning to be without merit. In essence, Koch desires to characterize the amended complaint as a new proceeding, which it is not. Koch’s position furthermore fails to recognize the inherent power of the plaintiff, as pleader, to determine procedural consequences under Federal Rule of Civil Procedure 9(h).

The amendment to the complaint, just as the amendment of a pleading to add or withdraw a statement identifying an admiralty and maritime claim under Rule 9(h), is governed by the principles of Rule 15. Under Rule 15(c), Price’s assertion of diversity jurisdiction relates back to the date of the filing of his original complaint. Because Koch’s third-party complaint was, necessarily, filed subsequent to that date, it cannot serve to create the “jurisdictional defect” alleged by Koch and will not preclude plaintiff from asserting the diversity jurisdiction which he may have originally asserted.

While Koch may desire to retain the procedural benefits of Rule 14(c) by having the suit proceed in admiralty, the plaintiff’s original choice of the admiralty side was not an irrevocable election. Fisher v. Danos, 671 F.2d 904, 905 (5th Cir.1982); Doucet v. Wheless Drilling Co., 467 F.2d 336, 339 (5th Cir.1972); see also Notes of Advisory Committee on Rule 9(h), 1966 Amendment. Clearly, it is the plaintiff who has the power of determining procedural consequences under the Federal Rules of Civil Procedure by the manner in which he chooses to frame his pleadings. See Doucet, supra; see also Rachal v. Ingram Corp., 600 F.Supp. 406, 407 (W.D.La.1984); Wright & Miller, Federal Practice & Procedure § 1314 (1969). Because Price has now amended his complaint to assert diversity jurisdiction and has not requested that this action be identified as “an admiralty or maritime claim for the purposes of Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and Maritime Claims” in accordance with Rule 9(h), the action has been shifted from the admiralty side to the law side of this Court. Price therefore is entitled to a jury trial “in accordance with the principles governing civil actions generally.” Romero v. Bethlehem Steel Corp., 515 F.2d 1249, 1252 (5th Cir.1975). As such, Koch’s third-party complaint is now governed by the provisions of Rule 14(a) and it is no longer entitled to the benefits of Rule 14(c). See Lirette v. Popich Bros. Water Transport, Inc., 699 F.2d 725, 727 n. 6 (5th Cir.1983).

The Court is unpersuaded by Koch’s contention that it will be unfairly prejudiced by this result. While the plaintiff’s ‘.‘shift” from the admiralty side to the law side came sixteen months after the commencement of the action, it nevertheless occurred a year before the presently scheduled trial date. Moreover, Price’s cause of action has been consolidated with the diversity action of George Duhon and Wayne Duhon since less than six months after the filing of Price’s complaint, and Koch therefore knew that the presentation of the consolidated case was going to be made to a jury even though the Court would act as the ultimate fact-finder as to the Price action. Cf., Doucet, supra at 341 n. 5 (“For defense counsel to shift on short notice from preparing defense of a non-jury trial to preparing defense of a jury trial may pose difficulties.”) In finding an utter lack of prejudice to Koch as a result of the date of filing of Price’s amended complaint, the Court also observes that Price’s original pleading set forth facts showing that the parties were of diverse citizenship and in-eluded a jury demand, despite the fact that Price did not assert diversity jurisdiction. As such, Koch is presumed to have known that Price could have chosen to proceed on the law side of the court and that Price’s initial choice to proceed in admiralty was not an irrevocable election under the established law discussed above.

Timothy J. Fruge (CV No. 85-2070)

As in the action of Curtis J. Price, Koch similarly moves that plaintiff Fruge’s jury demand be stricken because Fruge’s complaint provides that it is brought “under the Admiralty and Maritime Jurisdiction pursuant to ... the Jones Act (46 USCA 688) and pursuant to the General Maritime Law of the United States of America____ Alternatively, jurisdiction is based on 28 USC 1331 as this action arises under the Constitution, laws, or treaties of the United States____” At first blush, Koch’s position seems meritorious in light of the fact that Fruge’s complaint reads that the suit is in admiralty pursuant to the Jones Act. Certainly, the Jones Act has been recognized to afford an injured seaman the choice of proceeding either in admiralty without a jury or at law with a jury. Panama R.R. Co. v. Johnson, 264 U.S. 375, 390-91, 44 S.Ct. 391, 395, 68 L.Ed. 748 (1923); Texas Menhaden Co. v. Palermo, 329 F.2d 579, 580 (5th Cir.1964). But because Fruge’s complaint requests a trial by jury, and also references federal question jurisdiction under 28 U.S.C. § 1331, this Court views Fruge’s Jones Act claim against Wayne Duhon as sitting on the law side. Clearly, no right to a jury trial would exist if Fruge brought his Jones Act claim in admiralty, unless the Great Lakes Act, 28 U.S.C. § 1873, applied. The Court therefore must presume that where the Jones Act claim is coupled with a jury demand, it is its civil jurisdiction which is invoked, and Fruge will receive a jury trial.

Fruge’s other claims, however, remain on the admiralty side of the Court. In opposing Koch’s motion to strike his jury demand, Fruge strenuously contends that he never designated any of his claims as being Rule 9(h) admiralty actions. As previously discussed, however, no such designation is required “[i]f the claim is cognizable only in admiralty.” Fed.R.Civ.Pro. 9(h). Unlike the admiralty and maritime claims of plaintiffs George Duhon, Wayne Duhon and Curtis J. Price, over which the Court has jurisdiction at law by virtue of diversity of citizenship, the admiralty and maritime claims asserted by Fruge are cognizable only in admiralty because there is not complete diversity in Fruge’s suit. Fruge therefore has no choice but to proceed in admiralty with regard to his claims arising under the General Maritime Law.

While this Court’s jurisdiction over Fruge’s claims is thus based both on the law side and the admiralty side, Fruge is yet entitled to a jury trial on his maritime as well as his Jones Act claims. In Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720, 1963 A.M.C. 1093 (1963), the Supreme Court held that a plaintiff who asserts a Jones Act claim at law, demanding a trial by jury, has the right to have his maritime claims for unseaworthiness and maintenance and cure determined by the jury as sole fact-finder. In accordance with the well-established case precedent, Fruge is certainly entitled to a jury trial in the interests of fairness and effective judicial administration. Id.

This does not mean, however, that Fruge’s entire action is to be characterized as one at law. Fruge’s entitlement to a jury trial on admiralty claims joined with a Jones Act claim does not result in the admiralty claims becoming pendent to the Jones Act claim on the law side of the Court. Haskins v. Point Towing Co., 395 F.2d 737, 741-43, 1968 A.M.C. 1193 (3d Cir.1968), subseq. app. 421 F.2d 532, cert. denied 400 U.S. 834, 91 S.Ct. 68, 27 L.Ed.2d 66; Fawcett v. Pacific Far East Lines, Inc., 76 F.R.D. 519, 520-21 (N.D.Cal.1977); Saus v. Delta Concrete Co., 368 F.Supp. 297, 297-98 (W.D.Pa.1973). Fruge’s claims for maintenance and cure, unseaworthiness, and for violation of the Wreck Statute, 33 U.S.C. § 409, are yet within the cognizance of this Court solely in admiralty. Because Koch is posed as a defendant only on the admiralty side of this Court, its Rule 14(c) joinder of Weaver Exploration Company and Price is entirely proper. Fruge’s maritime claims are therefore to be governed according to the traditional rules of practice in admiralty, even though he is entitled to a jury trial under Fitzgerald. Conclusion

The joint trial of these claims at law and in admiralty, as well as the consolidation of the four plaintiffs’ actions, has been allowed in accordance with the best interests of fairness and of the efficient administration of justice. The joinder of claims “in admiralty” with claims “at law” serves these interests, even though the characterization of those claims may “wake[ ] echoes in the deepest metaphysics of admiralty.” Inartful pleading by the parties, as in the case at bar, does not serve to facilitate the characterization. Nevertheless, the explicit provisions of Rule 9(h) effectively define “admiralty and maritime claims” and the determinations herein set forth have been made in accordance with that Rule. Pursuant to the foregoing analysis, Koch’s motion to strike plaintiffs’ jury demands is DENIED, and all parties will receive a jury trial. The Court furthermore ORDERS that Koch’s third-party demands are to proceed under Rule 14(c) only in the matter of Fruge v. Koch Exploration Co., CV No. 85-2070.

      . Case consolidation does not "merge” the cases, or make a party to one action a party to the action with which it is consolidated. Oelze v. C.I.R., 723 F.2d 1162, reh. denied 726 F.2d 165 (5th Cir.1983). Thus, a party to one action "may cause a [third-party] complaint to be served upon a person not a party to the action” but who is a party to the action with which it has been consolidated. See Rule 14(a).

      . Federal Rule of Civil Procedure 14(c) provides:
      Admiralty and Maritime Claims. When a plaintiff asserts an admiralty or maritime claim within the meaning of Rule 9(h), the defendant or claimant, as a third-party plaintiff, may bring in a third-party defendant who may be wholly or partly liable, either to the plaintiff or to the third-party plaintiff, by way of remedy over, contribution, or otherwise on account of the same transaction, occurrence, or series of transactions or occurrences. In such a case the third-party plaintiff may also demand judgment against the third-party defendant in favor of the plaintiff, in which event the third-party defendant shall make his defenses to the claim of the plaintiff as well as to that of the third-party plaintiff in the manner provided in Rule 12 and the action shall proceed as if the plaintiff had commenced it against the third-party defendant as well as the third-party plaintiff.

      . As discussed infra, this is a wholly improper use of Rule 14(c) because the cause of action filed by the Duhons was removed to this Court solely on the basis of diversity jurisdiction and the Duhons’ complaint does not assert an admiralty or maritime claim within the meaning of Rule 9(h).

      . This same argument is urged in support of the motion presently under consideration.

      . Koch does not dispute the propriety of a jury trial on the claims of Wayne Duhon and George Duhon, as their cause of action (CV No. 83-2379) was removed to this Court by Koch on the basis of diversity of citizenship. Because the Duhons’ cause of action is on the law side of this Court, however, Koch improperly attempts to invoke the application of Rule 14(c) by tendering Curtis J. Price and Timothy J. Fruge as direct defendants to the Duhons. As a proceeding at law, Rule 14(a) governs Koch’s third-party complaint against Price.

      . Rule 14(c) provides that, as a result of being filed, ”... the action shall proceed as if the plaintiff had commenced it against the third-party defendant as well as the third-party plaintiff." See note 2, supra. In the Notes of Advisory Committee on Rules, the Committee remarks that such a result was also originally incorporated in Rule 14, applying to all civil actions. One reason why it was eliminated by the 1946 amendment to the rule "... was that where jurisdiction depended on diversity of citizenship the impleader of an adversary having the same citizenship as the plaintiff was not considered possible.”

      . Rule 15(c) provides: "Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.”

      . Under Rule 9(h), no specific “identifying statement” is needed “[i]f the claim is cognizable only in admiralty,” and the parties will not be entitled to a trial by jury. When the pleadings show that both admiralty and some other basis of federal jurisdiction exist, however, the plaintiff must employ an "identifying statement" in accordance with Rule 9(h) in order to be entitled to the admiralty procedures and remedies, including a nonjury trial. Romero v. Bethlehem Steel Corp., 515 F.2d 1249, 1252 (5th Cir.1975). Because a Rule 9(h) declaration has not been made by Price, and because a non-maritime ground for subject matter jurisdiction exists, Price "therefore is entitled to a jury trial ‘in accordance with the principles governing civil actions generally’.” Id., citing Moore, Federal Practice, ¶ 38.-35(1], at 271; see also Oroco Marine, Inc. v. National Marine Service, Inc., 71 F.R.D. 220, 221 (S.D.Tx.1976); compare T.N.T. Marine Service v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d 585, 587 (5th Cir.1983) (no right to a jury trial where the complaint did contain a Rule 9(h) declaration even though diversity jurisdiction existed as well) with Lirette v. Popich Bros. Water Transport, Inc., 699 F.2d 725, 727 n. 6 (5th Cir.1983) (defendant not entitled to benefits of Rule 14(c) where plaintiffs complaint — based on the Jones Act and the General Maritime Law, "did not expressly contain” a Rule 9(h) declaration).

      . The civil coversheet, however, indicates that jurisdiction is based “on the maritime laws of the United States; on the basis of diversity; and on the laws of the State of Louisiana.” If Price originally intended to bring his case on law side of the Court under diversity jurisdiction, however, his original complaint was far from making it clear.

      . 28 U.S.C. § 1873 provides:
      In any case of admiralty and maritime jurisdiction relating to any matter of contract or tort arising upon or concerning any vessel of twenty tons or upward, enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation between places in different states upon the lakes and navigable waters connecting said lakes, the trial of all issues of fact shall be by jury if either party demands it.

      . While the Court is also persuaded by the fact that Fruge pleaded federal question jurisdiction in the alternative, there might be some question as to whether Fruge included that reference only because “there is a federal question involving the interpretation of 33 USC § 490 [sic].” Fruge’s Memorandum in Opposition to Defendant’s Motion to Strike the Jury Demand, p. 2. If Fruge intended his claims against Koch under the Wreck Statute, 33 U.S.C. § 409, to arise under 28 U.S.C. § 1331, he is mistaken. The Wreck Statute is a federal criminal statute, which nevertheless “reflects a legislative judgment of the standard of care to which owners of sunken vessels should be held in civil actions.” Morania Barge No. 140, Inc. v. M. & J. Tracy, Inc., 312 F.2d 78, 80 (2d Cir.1962). While violation of the statutory duties is evidence of negligence and may give rise to the liability of the owner of the sunken or submerged vessel, this Court is only aware of such liability being imposed in suits in admiralty (apart from where an action is maintained under the Suits in Admiralty Act against the United States). Humble Oil & Refining Co. v. Tug Crochet, 422 F.2d 602 (5th Cir.1970); Ingram Corp. v. Ohio River Co., 505 F.2d 1364 (6th Cir.1974); Chesapeake Bay Bridge & Tunnel District v. Lauritzen, 404 F.2d 1001, 1004 (4th Cir.1968); Morania Barge No. 140, Inc., supra. As has been noted, the Wreck Statute is simply declaratory of the obligation to exercise due care which exists under the General Maritime Law. THE YFNX-6, 156 F.Supp. 325, 333 (D.Md.1957), aff'd. sub. nom. 262 F.2d 559 (4th Cir.1959). The statute itself does not establish a substantive maritime right under which Fruge’s. cause of action “arises” for purposes of 28 U.S.C. § 1331. As such, the only basis for federal question jurisdiction in the case at bar is pursuant to the Jones Act, 46 U.S.C. § 688, and any civil breach of the duties imposed by the Wreck Statute is jurisdictionally grounded in admiralty.

      . Note 8, supra.

      . The Duhons and Price may maintain their maritime causes of action on the law side of this Court by virtue of the "saving to suitors” clause set forth in 28 U.S.C. § 1333. This clause serves to “save” plaintiffs the right to enforce their maritime causes of action in a law court; i.e., a state court or a federal court that has jurisdiction at law due to diversity or federal question jurisdiction. Because the Duhons and Price have more than one basis of jurisdiction to bring their maritime claims, their election not to make a Rule 9(h) declaration means that their actions shall proceed at law. Romero v. Bethlehem Steel Corp., 515 F.2d 1249, 1252 (5th Cir.1975).

      . The claims of Fruge which are cognizable only under the admiralty jurisdiction of the Court are for maintenance and cure, unseaworthiness, and for violation of the Wreck Statute, 33 U.S.C. § 409. As discussed previously, supra note 10b, the Wreck Statute does not establish any substantive maritime rights which causes of action might “arise under” for purposes of federal question jurisdiction, but it simply reflects various obligations cf due care existing under the General Maritime Law.

      . Delivering the opinion of the Court, Mr. Justice Black stated:
      "Although remedies for negligence, unseaworthiness, and maintenance and cure have different origins and may on occasion call for application of slightly different principles and procedures, they nevertheless, when based on one unitary set of circumstances, serve the same purpose of indemnifying a seaman for damages caused by injury, depend in large part upon the same evidence, and involve some identical elements of recovery. Requiring a seaman to split up his lawsuit, submitting part of it to a jury and part to a judge, unduly complicates and confuses a trial, creates difficulties in applying doctrines of res judicata and collateral estoppel, and can easily result in too much or too little recovery.”
      In light of these considerations, Mr. Justice Black concluded:
      "Only one trier of fact should be used for the trial of what is essentially one lawsuit to settle one claim split conceptually into separate parts because of historical developments. And since Congress in the Jones Act has declared that the negligence part of the claim shall be tried by a jury, we would not be free, even if we wished, to require submission of all the claims to the judge alone. Therefore, the jury, a time-honored institution in our jurisprudence, is the only tribunal competent under the present congressional enactments to try all the claims. Accordingly, we hold that a maintenance and cure claim joined with a Jones Act claim must be submitted to the jury when both arise out of one set of facts. 374 U.S. at 18-21, 83 S.Ct. at 1649-50. See also Moncada v. Lemuria Shipping Corp., 491 F.2d 470, 473 (2d Cir.1974).

      . "Fitzgerald has made it clear that the reason for trial by jury in claims for unseaworthiness and maintenance and cure is not that they are actions at law, but rather that there should be one fact finder and that when they are joined with the Jones Act claim under which a right of trial by jury is guaranteed, they, too, may be tried by the same jury. The Court in Fitzgerald did not justify its decision by characterizing the claims for unseaworthiness and maintenance and cure as having been brought on the law side, but instead specifically declared that it was creating a right to trial by jury in admiralty cases in the interest of judicial administration by virtue of the power left to it by Congress to fashion the controlling rules of admiralty law.” 395 F.2d at 741-42, citing Fitzgerald v. United States Lines, supra, 374 U.S. at 20-21, 83 S.Ct. at 1650.

      . See note 10b, supra, regarding Fruge’s claims against Koch under the Wreck Statute, 33 U.S.C. § 409, as being grounded in admiralty.

      . G. Gilmore & C. Black, The Law of Admiralty 33 n. 118 (1957). Subsequent to the time when these renowned publicists first made this remark, however, the 1966 joinder of the civil and admiralty rules served to simplify the task of characterizing claims by virtue of Rule 9(h). Although Rule 9(h) serves as an effective tool, inartful pleading by plaintiffs yet complicates the characterization. Wright and Miller suggest that when a plaintiff who has alternative bases of jurisdiction wishes to avail himself of the special admiralty rules, he should follow his jurisdictional allegation with the statement that: “This is an admiralty or maritime claim within the meaning of Rule 9(h)." Wright & Miller, Federal Practice & Procedure § 1313, at p. 454 (1969).


source: Caselaw Access Project

author: RYAN, District Judge.

license: Public Domain

text:
    Vicki WHITE, et al., individually and on behalf of all persons similarly situated, Plaintiffs, v. Samuel R. PIERCE, Jr., in his official capacity as Secretary of Housing and Urban Development, et al., Defendants.
    Civ. No. 83-3114.
    United States District Court, D. Idaho.
    Feb. 24, 1986.

      Maurice O. Ellsworth, U.S. Atty., D. Idaho, Richard K. Willard, Acting Asst. Atty. Gen., Sheila Lieber and Merril Hirsh, Dept, of Justice, Civ. Div., Washington, D.C., for defendants Pierce and Heckler.
    Steven M. Stoddard, Deputy Atty. Gen., Boise, Idaho, for defendant Idaho.
    Richard A. Skinner, Skinner, Fawcett & Mauk, Boise, Idaho, for defendant Idaho Housing.
    Andrew C. Thomas, Idaho Legal Aid Services, Inc., Caldwell, Idaho, Randall Robinson, Idaho Legal Aid Services, Inc., Lewiston, Idaho, for plaintiffs.
   I. BACKGROUND

RYAN, District Judge.

This action is brought by recipients of the Aid to Families with Dependent Children (AFDC) program, who reside in housing leased under the lower-income housing assistance program. The principal contention made by the plaintiffs is that regulations promulgated by the Idaho Department of Health and Welfare (IDHW) and Housing and Urban Development (HUD) violate federal law because they require the plaintiffs to pay rent which exceeds the maximum prescribed by statute. The statute which the plaintiffs assert has been violated is 42 U.S.C. § 1437a(a), which reads:

A family shall pay as rent for a dwelling unit assisted under this Act ... the highest of the following amounts, rounded to the nearest dollar:
(1) 30 per centum of the family’s monthly adjusted income;
(2) 10 per centum of the family’s monthly income; or
(3) if the family is receiving payments for welfare assistance from a public agency and a part of such payments, adjusted in accordance with the family’s actual housing costs, is specifically designated by such agency to meet the family’s housing costs, the portion of such payments which is so designated.

HUD applies the welfare rent exception [Section 1437a(a)(3)] to those families receiving AFDC in Idaho. HUD applies the welfare rent exception in Idaho by setting the housing cost at the sum of the greatest amount of housing and utility allowance that a family could receive. Once HUD calculates a family’s housing costs by adding the AFDC maximum housing and utility allowances, it rateably reduces this amount by fifty-five percent. This is the maximum which could be paid in Idaho and is the rent which the family actually pays.

Once the amount of rent to be charged the recipient is calculated, IDHW then computes the standard of need. The standard of need is the “yardstick for measuring who is eligible for public assistance.” Rosado v. Wyman, 397 U.S. 397, 408, 90 S.Ct. 1207, 1215, 25 L.Ed.2d 442 (1970). The State of Idaho calculates the AFDC grants by combining an amount for basic needs that is conditioned on family size and the sum for housing and utility allowance that has been set by HUD. The sum of these figures is then added together and multiplied by a percentage, the fifty-five percent rateable reduction that Idaho employs to limit AFDC expenditures. By multiplying the rateable reduction percentage by the standard of need, the State determines the “payment standard.” A recipient’s AFDC grant is his/her payment standard, less countable income. Countable income is income other than the AFDC grant, such as earnings. See Idaho Department of Health and Welfare Regulation M.S. 3-1372.-01(e)(1).

Plaintiffs essentially make two contentions in their Complaint. The first argument is that IDH & W’s regulation M.S. 3-1372.01(e)(l) and HUD’s acquiescence in the Department’s regulation at 24 C.F.R. § 889.105 violates federal housing law by requiring those recipients of AFDC to pay rent which exceeds the maximum which is statutorily allowed by 42 U.S.C. § 1437a(a). The second contention presented by plaintiffs is HUD’s method of determining the housing costs for that class of plaintiffs whom are “grandfatherees” (i.e., who have resided in federally subsidized housing pri- or to August 1, 1982) because it requires plaintiffs to pay rent in excess of the maximum prescribed by 42 U.S.C. § 1437a(a). Plaintiffs contend that HUD’s regulation at C.F.R. § 889.104(a)(6) presumes income attributable to the grandfatherees which is not available, and thereby causes plaintiffs’ rent to exceed the statutory maximum. In effect, it is the same regulatory mechanism, though with somewhat different calculations, which plaintiffs seek declared invalid with regard to both grandfatherees and non-grandfatherees. The parties agree that this action boils down to a case of statutory construction.

Defendants have moved this court for judgment on the pleadings and plaintiffs have moved for summary judgment. Matters outside the pleadings having been presented and not excluded by the court in regard to the motion for judgment on the pleadings, it has been treated as a motion for summary judgment in accord with Rule 56. Fed.R.Civ.P. 12(c). As the parties agree, there are no material issues of fact in dispute in the case at bar. This case is fundamentally a question of statutory interpretation to be determined as a matter of law.

II. STANDARD OF REVIEW

The regulations and procedures that are challenged in this case can be set aside only if such regulations and procedures are found to be arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, or if they violate statutory, procedural, or constitutional requirements. 5 U.S.C. § 706(2); Arizona Past and Future Foundation, Inc. v. Lewis, 722 F.2d 1423, 1425 (9th Cir.1983). The court must consider whether there has been a clear error of judgment and is not empowered to substitute its judgment for that of the agency. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

III. ANALYSIS

Plaintiffs argue that the wording of this statute requires the plaintiffs to pay in rent no more than they actually receive for rent. Both parties appear to agree that the amount of rent to be paid is that amount established by HUD. Under the present regulations, the rent which the tenant actually pays is the rent set by the HUD regulations and calculated by the housing unit owner. The plaintiffs, in their Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction (March 21, 1984, at 33-34), state that: “The Department must pay the amount designated by HUD as the plaintiff’s housing cost if compliance with the United States Housing Act’s maximum rent statute, most particularly the welfare rent exception at 42 U.S.C. § 1437a(a)(3) is to be achieved.” Plaintiffs further argue that the statute contemplates that IDHW will provide the tenant with the specific amount necessary to pay the rent as set by HUD. In other words, the plaintiffs claim that the statute requires a pass-through of funds between the agencies, in effect exempting the plaintiffs from the State’s rateable reduction that it normally applies, and rendering them financially indifferent toward a rent set at more than thirty percent of adjusted gross income. Therefore, the plaintiffs contend that when Idaho applies its rateable reduction to the amount of rent set by HUD and included in the standard of need calculation, it violates the United States Housing Act.

Rent which a family must pay pursuant to 42 U.S.C. § 1437a(a)(3) is that amount set by HUD. The rent figure determined through the HUD calculations is the figure used by the State in determining the standard of need. The amount of assistance paid by the State is paid without any restrictions on its use: “Money payments are payments in cash, checks, or warrants immediately redeemable at bar, made to the grantee or his legal representative with no restrictions imposed by the agency on the use of funds by the individual.” 45 C.F.R. § 234.11(a). When Congress passed this statutory provision, no portion of the actual amount paid to an AFDC recipient was designated for any specific item such as rent, food, or clothing. Since an amount for shelter is only designated from the standard of need computation, the phrase “specifically designated” must be that amount designated in that standard of neéd computation.

The plaintiffs do not dispute that a state has the option to rateably reduce the level of benefits paid to a recipient in an effort to limit AFDC expenditures. Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). However, plaintiffs argue that a state may not employ a rateable reduction scheme when it results in a violation of a statute. In this case, plaintiffs complained that Idaho’s use of the rateable reduction, with respect to the housing component, violates the United States Housing Act.

A state is not required to provide benefits that are equal to the actual needs of a recipient. Under the Social Security Act provisions for aid to families with dependent children, 42 U.S.C. § 601, et seq., the level of benefits to be paid is within the judgment of the state, so long as some aid is provided to all eligible families with eligible children. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). The policy of IDHW in rateably reducing AFDC benefits is authorized by Idaho Code § 56-210. Plaintiffs do not contest the legality of the regulations as they relate to administration of the Social Security Act, but rather, challenge the regulations as they interact with the United States Housing Act.

Plaintiffs must prove that the administration of the Social Security Act by way of the regulations of Health and Human Services, the Idaho Code, and the regulations of IDHW, caused the alleged illegal administration of the Housing Act as they interact. However, the statute refers solely to the question of the rent which the family must pay and nowhere poses any restriction or limitation upon the benefits provided by the state agency. If Congress had intended to require the rent under 42 U.S.C. § 1437a(a) to be the amount “actually available,” it certainly could have expressly so stated. The housing statute merely establishes a scheme to determine the rent to be paid. When the statute was enacted, Congress was aware that a limited number of states existed that were “as paid” rateably reduced states and, yet, did not provide an alternate calculation scheme for the states as plaintiffs would have this court do.

In 1969, public housing rents were limited, for most tenants, to no more than twenty-five percent of a family’s income. See Pub.L. No. 91-152, § 213(a), 83 Stat. 389, 395 (1969), commonly referred to as Brooke I. This amendment was to remedy the inability of welfare recipients to live in subsidized housing. In 1971, Congress provided that all tenants would pay no more than twenty-five percent of income and that “a public agency shall not reduce welfare assistance to any tenant ... as a result of any reduction in rent resulting from the application of the the [twenty-five percent of income ratio].” Pub.L. No. 92-213, § 9, 85 Stat. 776 (1971). This amendment was commonly referred to as Brooke III. This amendment, however, allowed the welfare tenant in “as paid” states such as Idaho to keep the savings on shelter costs produced by the reduced rent and create a statutory windfall. The welfare rent measure was created in an effort to correct the problems raised by Brooke III. Pub.L. No. 93-383, § 201(a), 88 Stat. 654 (1974), now codified at 42 U.S.C. § 1437a(a). This provision effectively repealed Brooke III which had created two classes of families receiving public assistance, those living in public housing and those living outside of public housing. H.R.Rep. No. 1114, 93d Cong., 2d.Sess. 190 (June 17, 1974) (supplemental view of Mr. Koch on H.R. 15361). While plaintiffs may be correct in asserting that Brooke III, although repealed, permitted the public housing agencies to return to the practice of negotiated rentals with welfare agencies, Howard v. Pierce, 738 F.2d 722, 729 (6th Cir.1984), nothing in the statute mandates negotiated rentals.

The plaintiffs assert that Congress, in enacting the welfare rent provision, only meant it to be used where the tenant would be fully subsidized for rent by the state. In other words, plaintiffs would not be subject to a rateable reduction on their housing allotment. This exception, urged by the plaintiffs, does not appear in the statute. Furthermore, plaintiffs’ interpretation would lead to a preference which Congress attempted to avoid when it repealed Brooke III. If plaintiffs’ interpretations are accepted, a preference to AFDC Section 8 tenants that is not available to AFDC tenants in private non-Section 8 housing would be created. The AFDC Section 8 tenants would not experience the reduction by the state in the amount of benefits (through rateable reduction) to which all other benefit recipients are subjected. Again, plaintiffs seek a pass-through which would only be applicable to them and which would create an exemption to the state's rateable reduction scheme not available to any other benefit recipients. The legislative intent indicates that plaintiffs’ interpretation of the statutory provision is incorrect as it conflicts with Congress’s wish to eliminate the inequities in the treatment of AFDC Section 8 tenants and AFDC tenants in private non-Section 8 housing.

While the parties argue vehemently about its import, the fact is that in 1983 Congress refused to adopt legislation that would reverse the Secretary’s interpretations. While the court deems it to be of relatively minor weight, the failure of Congress to change the statute, when presented with the opportunity, further reinforces the Secretary’s interpretation.

Finally, the plaintiffs attack the HUD regulations on the grounds that they assume “income which is unavailable.” Specifically, plaintiffs challenge HUD’s inclusion as “income” in 24 C.F.R. § 889.-104(a)(6) for the purposes of calculating the “rent” for Section 8 AFDC tenants pursuant to the “adjusted income” method, the rent set by HUD. HUD treats the maximum shelter component of the welfare grant rateably reduced once as part of the tenant’s income. Plaintiffs’ complaint is that this “income” calculation is unrealistic as the State will pay only a fraction of the shelter component established by HUD.

HUD has been given statutory authority to define “income” for the purpose of determining the rent for Section 8 tenants in 42 U.S.C. § 1437a(b)(4):

(4) The term “income” means income from all sources of each member of the household, as determined in accordance with criteria prescribed by the Secretary.

HUD is given discretion to define the term for purposes of the statutory computations. HUD’s definition of “income” at 24 C.F.R. § 889.104(a)(6) is not inconsistent with 42 U.S.C. § 1437a. Furthermore, HUD’s regulation is a rational attempt to determine income. Actual income for an AFDC recipient in an “as paid” rateably reduced state will not be determined until after the state agency applies its rateable reduction to a recipient’s standard of need. This will establish a new income figure for the recipient. Of necessity, HUD’s calculations precede the State’s determination of its payment standards which are in part based upon the rental figures established by HUD. If plaintiffs’ arguments were accepted, HUD would be forced to recalculate the recipient’s income which would necessitate the State recalculating the recipient’s standard of need. Plaintiffs’ statement that this downward spiral would come to an end at the eighth recalculation affirms the fact that forcing such recalculations would render the statute unadministrable.

To summarize, the Housing Act created a scheme for determining rent to be charged to families living in certain subsidized housing. The statute was enacted to repeal previous enactments which created a preference for certain classes of tenants. The statute was enacted by a Congress that was aware of the Social Security Act and regulations thereunder which allowed states to rateably reduce benefit payments, including those in “as paid” states. The statute provides for no exemptions or limitations to the payment schemes either expressly or implicitly. The statute does not require the “pass-through” sought by the plaintiffs. Under the current regulatory structure, the plaintiffs’ rent is set pursuant to the welfare rent exception, which is the figure used by the State in its standard of need calculation. The State does not pay all of the standard of need, but instead, reduces all payments by fifty-five percent. These plaintiffs, like all other benefit recipients in Idaho, receive fifty-five percent of their determined need for all components of need. To exempt this limited class, and require payment of their full rental need, would create a preference and inequality specifically rejected by Congress in enacting 42 U.S.C. § 1437a. Therefore, the defendants’ motion will be granted.


author: GERALD J. WEBER, District Judge.

text:
    William A. HOLMES and Alyce M. Holmes, his wife, Plaintiffs, v. SCHNEIDER POWER CORPORATION, Defendant.
    Civ. A. No. 84-1090.
    United States District Court, W.D. Pennsylvania.
    Feb. 25, 1986.

      Joseph M. Ludwig, Pittsburgh, Pa., for plaintiffs.
    William P. Getty, Meyer, Unkovic & Scott, Pittsburgh, Pa., for defendant.
   OPINION

GERALD J. WEBER, District Judge.

This is an employee dismissal action sounding in contract and tort, alleging diversity jurisdiction. The action was brought against defendant, a contractor involved exclusively in the construction of power generating facilities. Plaintiff Holmes was defendant’s employee from May 22, 1978 until May 4, 1982 working as a Material Control Supervisor until he was placed on layoff. On June 11, 1982, Holmes filed a complaint with OSHA alleging that a retaliatory discharge had taken place because Holmes had complained to OSHA about welding fumes at the Beaver Valley Power Station project in Shippingsport where he had worked for defendant. On May 5, 1983, Holmes filed a Workmen’s Compensation petition for disability due to fume exposure. On May 3, 1984, Holmes and his wife filed this suit. The action is currently before the court on motion by defendant for summary judgment. Evidentiary material has been submitted and the motion has been fully briefed by the parties in support of their respective positions.

COUNT I — WRONGFUL DISCHARGE

In his complaint, plaintiff first alleges that he was wrongfully discharged in retaliation for his complaints to OSHA about fumes in the work place. Defendant attacks this claim from two angles:

1) Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C.A. § 651, et seq., provides a statutory remedy for Holmes thereby eliminating any common law wrongful discharge cause of action; and

2) Plaintiff has failed to establish or to plead any facts which would indicate that he was discharged in violation of public policy. Because these arguments may be dispositive we will examine them closely.

a) Existence of a Statutory Remedy.

There is no doubt that Section 11(c) of the Occupational Safety and Health Act (OSHA), 29 U.S.C.A. § 660(c) provides a statutory remedy for any employee who is discharged because of complaints to OSHA about unsafe work conditions.

Plaintiff disputes this and argues alternatively that the existence of § 660(c) should not preclude us from finding a cause of action on his behalf. In support, plaintiff indicates that he made complaint to the Secretary as prescribed by OSHA, that the Secretary investigated and then closed the administrative file. These facts are undisputed. However, plaintiff then characterizes himself as having exhausted his administrative remedies under the act, and as having no statutory remedy if he cannot file suit in this court. Therefore, plaintiff argues that we should find an implied private right of action.

Plaintiffs arguments on this point are somewhat unclear. Plaintiff relies on cases and arguments that deal with two distinct issues as though they were one and the same. One issue is whether this court should find an implied right of action under the OSHA statute as a matter of federal law. It is an entirely separate issue for this court to decide whether Pennsylvania courts would find a common law cause of action in this case, i.e. wrongful discharge in violation of a public policy. We discuss these issues separately.

Plaintiff clearly admits that he has found no Third Circuit case in which the court decides that a private right of action exists under OSHA. Furthermore, the only case which plaintiff cites us to is a Sixth Circuit opinion holding that OSHA does not create a private right of action, on facts similar to ours. Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. (1980). We note that other cases have been brought by discharged employees trying to assert a private cause of action based on § 660(c). However, we know of no case which held that § 660(c) did afford a private remedy and we believe that the Taylor court correctly decided that no such private right of action should be implied from the OSHA statute.

In addition, we believe that the OSHA statute does specifically provide a statutory remedy for the type of retaliatory discharge alleged by the plaintiff. Granted, this is a limited remedy, providing only for administrative proceedings and suit in federal court which may be brought by the Secretary if the Secretary so elects. The plaintiff has had the benefit of the administrative remedy provided. The Secretary’s decision not to bring suit does not deprive plaintiff of his statutory remedy. It is noteworthy that Pennsylvania courts have found a common law action based on the public policy exception only in cases where no statutory remedy is available. Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980); Wolk v. Saks Fifth Avenue, Inc., 728 F.2d 221, 223-24 (3d Cir.1984). We, therefore, find no basis in the complaint to find a wrongful discharge action.

b) Existence of a Public Policy Violation.

Because plaintiff has made alternative arguments, we next address the issue of whether Pennsylvania courts would find a common law cause of action in this case. As a federal court sitting in a diversity action, we are reluctant to glibly expand state law. A decision to find a common law cause of action would necessarily rely on a clear state policy or trend signaling the state court’s inclination to favor such expansion. See Bruffett v. Warner Communications, Inc., 692 F.2d 910, 919 (3d Cir.1982). We examine plaintiff’s alternative argument with this in mind.

As we understand it, plaintiff’s alternative argument advanced in his brief alleges that he was discharged in retaliation for his complaints “to everyone in sight” regarding the hazardous conditions of his work site. State policy militating against such a retaliatory discharge, plaintiff argues, can be found in the Pennsylvania Workmen’s Compensation Act, 77 P.S. 1 et seq. and Pennsylvania Occupational Disease law.

Plaintiff has found no Pennsylvania case on point but cites us to Rettinger v. American Can Co., 574 F.Supp. 306 (M.D.Pa.1983) and Croutier v. Great Atlantic & Pacific Tea Co., 121 N.H. 915, 436 A.2d 1140 (1981). We do not believe that either case applies here.

In Croutier, a New Hampshire Court permitted the recovery for wrongful discharge in violation of a public policy tenuously premised on duties imposed under OSHA. Croutier is based on New Hampshire law which clearly differs from Pennsylvania law. The Croutier court specifically rejected the standard requiring a “strong and clear public policy” which Pennsylvania courts have adopted. Geary v. United States Steel Corporation, 456 Pa. 171, 319 A.2d 174, 180 (1974); Rettinger, 574 F.Supp. at 311. Moreover, because OSHA is a federal law, we do not believe that this legislative scheme in itself provides any indication of a Pennsylvania state policy. Thus, Croutier is inapplicable here.

In Rettinger, a federal court found that a discharge in retaliation for filing a Workmen’s Compensation claim stated a cause of action in Pennsylvania. The court there relied heavily on a lower state court decision which had also made this finding. See Butler v. Negley House, Inc., 20 Pa.D & C 3d 543 (1981). Rettinger is not controlling here for two reasons. First, it is factually distinguishable. In the case before us, there are no allegations that plaintiff was fired for filing a Workmen’s Compensation claim and in fact, it is undisputed that plaintiff’s Workmen’s Compensation claim was not filed until a year after his discharge. Secondly, Rettinger looks for a clear indication of state policy and finds a state court decision directly on point as well as a state legislative scheme which would be undermined by any different result. We have no state court decisions to rely on, and we do not find the policies addressed in Pennsylvania Workmen’s Compensation Act and the Pennsylvania Occupational Disease Act to be undermined by the type of discharge alleged here. Thus being unable to detect any clear state policy which would have been violated by plaintiff’s discharge we must dismiss count I.

COUNT II — BREACH OF IMPLIED CONTRACT.

Plaintiff alleges in his complaint that defendant breached an implied contract to • discharge only for cause based on defendant’s custom and practice to discharge only for certain enumerated causes set forth in an Employee Handbook. It is clear, however, from Holmes’ affidavit, deposition, and briefs that he is actually relying solely on the Employee Handbook itself, as evidence of defendant’s custom, alleging that it was an offer for a unilateral contract on which plaintiff relied in performing as defendant’s employee, and that his performance constituted the acceptance and consideration necessary to form a binding contract. The only additional evidentiary material presented by plaintiff as to defendant’s custom or practice is a bare statement by Holmes in an affidavit that “[t]he practice within the company has always been to review employees’ deficiencies so that they might be corrected. All of my reviews save the last one were quite complimentary

The Employee Handbook has been provided to the court as part of the evidentiary materials presently before us in support of the summary judgment motion. The provisions on which plaintiff relies read as follows:

(a) Page EPP-4

B. Discharge
Causes for termination may include the following:
(1) Unsatisfactory performance.
(2) Insubordination.
(3) Excessive unexcused absence.
(4) Theft of Company property and/or fraud or dishonesty of any sort.
Notice will be given to employees for reasons other than theft, fraud, dishonesty or insubordination. A written memorandum will be placed in employee’s file summarizing the notice given to employee.

(b) Page 1-1

... The personnel practices have been developed by experience and the continued objective of management to be fair, reasonable and understanding in its employee relations.

Defendant claims that there is no dispute as to any material fact and that it is entitled to summary judgment as a matter of law. In examining the contentions of the parties we accept all facts in a light most favorable to the plaintiff who opposes the summary judgment motion. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). It is plaintiff’s burden to present some facts from which a reasonable inference could be drawn that a contract existed in fact or should be implied by law.

We must examine Pennsylvania law to see if plaintiff’s breach of contract claim is sufficient as a matter of law. It is clear that in the absence of contractual or statutory provisions to the contrary, employers in Pennsylvania are free to discharge an employee for any or no cause. Cisco v. U.P.S. Inc., 328 Pa.Super. 300, 476 A.2d 1340 (1984); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Since no statutory provision applies, we are concerned here only with the contractual claim.- Plaintiff relies on Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir.1983) and Banos v. Matthews International Corp., No. 1205 PGH 82 (Pa.Super.Ct.1982) as authority.

Plaintiff argues that Novosel stands for the proposition that an employer’s policy or custom alleged to create either a contractual or just cause requirement raises a factual matter which should survive a motion to dismiss. Accepting this statement as correct, we nonetheless find this case distinguishable in its procedural posture. We are dealing here not with a motion to dismiss but with a motion for summary judgment. A discovery period has been completed during which both of the parties had the opportunity to uncover all relevant matters. Moreover, both parties have filed evidentiary materials to aid in our decision. There is no dispute over the existence or wording of the Employee Handbook on which plaintiff relies, and we accept as true for purposes of this motion plaintiff’s statement regarding the employer’s custom of reviewing employee performance. Plaintiff presents no additional evidence of employer policy or custom, or of an employment contract. We can find no material factual dispute which would preclude a summary judgment determination.

Plaintiff further urges, under Bañas, that a manual published or authorized by an employer and distributed to an employee at will becomes part of the party’s employment contract except as to the term (length) of employment. Defendant has called to our attention the fact that the Superior Court of Pennsylvania en banc reversed the Bañas opinion on which plaintiff relies. This reversal appears in an opinion dated December 20, 1985, following rehearing, wherein the Pennsylvania Superior Court reaffirmed the viability of the employment-at-will doctrine in Pennsylvania. This recent Bañas opinion does seem to control our case by deciding that, in the absence of an express or clearly implied just cause provision, the employment-at-will doctrine applies. Banas, No. 1205 PGH. 82, slip. op. at 33 (Pa.Super.Ct.1982). The Employee Handbook in question clearly contains no just cause provision, nor do any of the facts alleged by the plaintiff. For these reasons, we find that plaintiff has failed to bring forth any facts sufficient to state a contractual cause of action under Pennsylvania law. See also Wolk v. Saks Fifth Avenue, Inc., 728 F.2d 221 (3d Cir.1984); Richardson v. Cole Memorial Hospital, 466 A.2d 1084 (Pa.Super.Ct.1983).

COUNT III — INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Under Pennsylvania law, a claim for intentional infliction of emotional distress includes the following elements:

1) extreme and outrageous conduct;
2) the conduct must be intentional or reckless;
3) it must cause emotional distress; and
4) the distress must be severe.

Restatement (Second) of Torts § 46 (1965); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). Liability has been found “only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.” . . . Curran v. Dural, 512 F.Supp. 699 (E.D.Pa.1981). Moreover, it is for the court to determine whether a reasonable person could find defendant’s conduct to be extreme and outrageous. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir.1979). On this summary judgment motion we must make all reasonable factual inferences in favor of the nonmoving party, and we will grant the motion only if there is no disputed issue of material fact and the defendant is entitled to such judgment as a matter of law. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

In examining plaintiff's complaint we find that Holmes alleges that his firing “under the guise of a layoff” was a “prevarication done with the intent to harm” plaintiffs. We have no doubt that this is insufficient to state a cause of action for intentional infliction of emotional distress. We would not have been aware that it was plaintiff’s intention to claim intentional infliction of emotional distress had it not been for the fact that plaintiff says so in his brief.

Since this is a summary judgment motion we must examine all pleadings and facts of record to determine whether a factual issue remains for trial. Although we do not have a stipulation from the parties, a close examination of the evidentiary materials indicates that the following facts are undisputed:

1. There were welding fumes at the job site in question (Defendant’s Reply to Plaintiff’s Brief in Opposition, p. 13);
2. Defendant knew of the fumes since October 1979 (Exhibit 1 attached to Plaintiff’s Affidavit);
3. Plaintiff complained that the welding fumes at the job site made him ill . (Defendant’s Reply to Plaintiff s Brief in Opposition, p. 13);
4. Plaintiff first advised defendant that the welding fumes were causing him health problems in about October or November of 1980 (Holmes’ Deposition, p. 46);
5. Defendant’s agent told Holmes in April 1981 to relocate his office because Holmes was having a problem with welding fumes that were in his office. (Holmes’ Deposition, p. 31, lines 2-11);
6. Defendant “did do some things” in response to the air quality concerns. (Holmes’ Deposition, pp. 50-52 and Exhibits to Holmes Affidavit);
7. In early February 1982, Holmes went on short-term disability due to his health problems. (Biernat Affidavit, p. 4; Holmes’ Deposition, p. 83; Holmes’ Affidavit, p. 2);
8. Holmes reported to work on May 3, 1982 after consultation with his physician indicating that he was able to return to work. (Biernat Affidavit, p. 5; Holmes Affidavit, p. 3; Holmes’ Deposition, p. 84);
9. In early May 1982, defendant informed Holmes that his position had been eliminated and that he would be laid off (Biernat Affidavit, p. 5; Holmes Affidavit, p. 3, paragraph 7).

Holmes alleges that in actuality the reason for his “layoff” was not due to elimination of his position but was retaliation against him for his complaints about unhealthy conditions. Accepting this as true for purposes of this summary judgment motion, we do not find it sufficient to show outrageous conduct of the sort that would establish a claim for intentional infliction of emotional distress. Holmes’ additional contentions regarding defendant’s outrageous conduct are specified in paragraphs 21 and 22 of his affidavit. However, these paragraphs clearly present plaintiff’s personal belief and paragraph 23 is a conclusory summarization of the prior statements of personal belief. Conclusory statements, and those based on personal belief, conjecture or speculation rather than on personal knowledge are not admissible at trial and are insufficient to raise a factual issue under Fed.R.Civ.P. 56. See Carey v. Beans, 500 F.Supp. 580 (E.D.Pa.1980), aff'd 659 F.2d 1065 (3d Cir.1981); Ness v. Marshall, 660 F.2d 517 (3d Cir.1981).

We have searched the record and examined all of the evidence to determine whether the “beliefs” which plaintiff avers could be considered as inferences drawn from any facts presented. But we find no evidence from which it could be reasonably inferred that defendant deliberately established hazardous working conditions which it then concealed from its employees. Evidence presented by plaintiff himself in the form of Exhibits to his affidavit, as well as affidavits of Biernat and Zielinski which were made upon personal knowledge, show inter alia that defendant had taken steps to alleviate the welding fumes on the job, that the fumes were no secret to employees, and that the air quality on the job site in question was found, during the relevant period, to be within OSHA limits, though by no means free of contaminants. We find no contradictory evidence based on personal knowledge.

Plaintiff states that “further discovery will show ...”. However plaintiff has been granted an eight monthly discovery period which ran between the filing of the complaint on May 3, 1984 until discovery ended January 1,1985, and has not produced any evidence sufficient to state this claim. Furthermore, discovery was extended once at the parties’ request, but was closed when no further enlargement of time was requested. We do not consider this a persuasive statement, and view it as speculative.

We have examined all of the evidence against the moving party. We do not find that Holmes raised any issue of fact admissible at trial that would support its claim that defendant’s acts constitute outrageous conduct. All that plaintiff raises is supposition.

For these reasons, Count III will be dismissed.

COUNT IV — LOSS OF CONSORTIUM

This claim on behalf of Holmes’ wife relies on Holmes’ ability to state a claim on which relief could be granted. Since Holmes’ claims have failed, so must his wife’s claim. Murray v. Commercial Union Insurance Co. et al., 782 F.2d 432, 437-38 (3d Cir.1986).

      . Plaintiff alternatively argues in his brief that he was discharged in retaliation for his complaints to OSHA, the Commonwealth, insurance carriers, Stone and Webster, Schneider supervisors, and others (See Plaintiffs Counter-Reply to Defendant’s Reply, p. 3, and Holmes’ Affidavit) in violation of a public policy which can be found in Pennsylvania Workmen's Compensation Act and Pennsylvania Occupational Disease law. This argument is addressed in subsection b) .

      . 29 U.S.C.A. § 660(c) reads, in part, as follows:
      (2) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States District Court shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay. (3) Within 90 days of the receipt of a complaint filed under this subsection the Secretary shall notify the complainant of his determination under paragraph (2) of this subsection.

      . We recognize that plaintiff has not relied on any federal cause of action in its complaint. However, because we believe that the facts alleged are sufficient to support such a claim should we find one, and because of the policy of federal courts allowing liberal amendment, we will consider this argument.

      . See H. Perritt, Employee Dismissal Law and Practice 53 (1984); McCarthy v. Bark Peking, 676 F.2d 42, 27 (2d Cir.1982) (no recovery because administrative remedies not exhausted); Pavolini v. Bard-Air Corp., 645 F.2d 144, 146 n. 3 (2d Cir.1981) (no private right of action either under OSHA or Federal Aviation Act), Taylor v. Brighton Corp., 616 F.2d 256, 259 (6th Cir.1980) (no private right of action); 66 ALR Fed 654; George v. Aztec Rental Center, Inc., 763 F.2d 184, 186-87 (5th Cir.1985).

      . At least one other court has found no common law action based on OSHA. See Walsh v. Consolidated Freightways, 278 Or. 347, 563 P.2d 1205 (1977).

      . Neither can we find any legislative intent that OSHA be considered the exclusive remedy available under factual circumstances such as those alleged here. Therefore we cannot accept the argument that state laws are preempted.

      . While statements in a brief are insufficient to oppose a Rule 56 motion, we are mindful of the policy of federal courts allowing liberal amendment under Fed.R.Civ.P. 15.


author: TURK, Chief Judge.

text:
    VIRGINIA TRANSFORMER CORPORATION, Plaintiff, v. U.S. DEPARTMENT OF ENERGY and John S. Herrington, United States Secretary of Energy, Defendants.
    Civ. A. No. 85-1063(R).
    United States District Court, W.D. Virginia, Roanoke Division.
    Feb. 25, 1986.

      Carl A. Tibbetts, Parvin & Wilson, Roanoke, Va., for plaintiff.
    Gustav Goldberger, Office of Gen. Counsel, Dept, of Energy, Washington, D.C., Karen B. Peters, Asst. U.S. Atty., Roanoke, Va., for defendants.
   MEMORANDUM OPINION

TURK, Chief Judge.

Virginia Transformer Corporation (“VTC”) brought this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq, to compel defendants United States Department of Energy (“DOE”) and John S. Herrington, Secretary of Energy, to release certain documents it claims are needed to defend itself in an unrelated state court action. The defendants have moved to dismiss the complaint, and VTC has moved for an award of attorneys fees. For the reasons set forth below, the defendants’ motion to dismiss is denied, VTC’s motion for attorney fees is denied, and the case is stricken from the active docket of the court.

BACKGROUND

On August 15, 1983 VTC received a grant contract from DOE to perform research on a “solid-state, on-load tap charger.” In connection with the grant of the contract, DOE engaged in an investigation of VTC, the extent of which is unclear. VTC was later sued in the state courts of Virginia by an individual who stimulated DOE investigation of VTC on the research grant contract.

Feeling that certain documents possessed by DOE would be helpful in defending the suit in the Virginia state courts, VTC filed an FOIA request with DOE on August 30, 1985. DOE acknowledged receipt of the request by a letter of September 9, 1985. DOE and VTC then corresponded in the following weeks as DOE attempted to comply with VTC’s request.

On October 28, 1985 DOE released eighty four pages of documents to VTC. These documents were described as “all [the] documents in our files,” with the exception of four documents it described in follows:

1. March 23, 1985, memorandum, from Gajewski to Richards.

2. April 4, 1984, memorandum, from Richards to SBIR Program Manager.

3. June 22, 1984, handwritten notes.

4. June 25, 1984, memorandum.

With regard to these four documents, the DOE FOIA officer stated that a determination as to whether they would be released would have to be made by the DOE Inspector General’s (“IG”) office, and noted that the documents had been sent to IG for their review.

On November 12, 1985, having heard nothing further from DOE regarding the four documents, VTC counsel telephoned IG to inquire about their release. At that time, VTC counsel informed IG that the requested materials were needed for a trial scheduled from December 13, 1985. In response, IG informed counsel that there were many prior FOIA requests pending in the office, and that it was IG practice to process FOIA requests in the order received. Nonetheless, IG informed counsel that in view of the scheduled trial, counsel’s request would be taken out of order and processed immediately as an accommodation. Finally, counsel was informed that pursuant to DOE regulations, the Office of General Counsel (“OGC”) of DOE must concur on any proposed withholding of material requested under FOIA.

On November 12, 1985 IG began its analysis of the four documents referred to above. In addition, to fully respond to the VTC request, it began to review 62 additional documents that DOE had not called to VTC’s attention. In total, IG had to review approximately 190 pages of documents beginning on that date. The record does not make clear where the additional documents came from, why VTC was not previously informed that they were being reviewed, or why VTC was not informed at this time of their existence.

On November 19, 1985, counsel for VTC again contacted IG to ascertain what progress had been made reviewing the documents. IG informed counsel that work was proceeding and that they would get a better feel for a release date once the package of materials reached OGC for their review. During this conversation, IG did not inform counsel of the existence of the additional documents.

On November 25, 1985, IG telephoned VTC counsel and left word to return their call. In addition, VTC counsel was told that the OGC attorney was on vacation and that this could delay the release decision. On November 26, 1985, IG referred its proposed response to VTC’s request to OGC for its review. After learning that OGC could not review the package until the following week, IG attempted to reach VTC counsel to inform him of this development. VTC counsel returned the call on November 27, and at that time was told that OGC’s review would cause a delay. IG encouraged VTC counsel to check back again early the next week, on December 3, to see what progress was being made. At no time during this period was VTC informed that more than four documents were being reviewed.

By early December, VTC had grown tired of the length of time it was taking to review the four documents listed in the letter of October 28. In addition, the trial in the Virginia state court action, set for December 18, was fast approaching. Accordingly, rather than continue to deal with DOE, VTC instituted this action on December 4, 1985, seeking to enjoin DOE from further withholding the four documents listed in the letter of October 28. In response, the defendants moved to dismiss on the grounds that this court lacks jurisdiction over the matter.

A hearing was held in the matter on December 16, 1985. On the date, VTC counsel learned for the first time that more than solely the four documents listed in the October 28 letter were being reviewed by DOE. DOE also stated on that date that their review of the 66 documents would be completed within a couple of days, and that it expected to release most of the responsive documents by December 20, 1985. VTC informed the court that the state court trial scheduled for December 18 had been continued, and that the immediate need for the documents was therefore alleviated. After being apprised of the developments in the case, the court took the case under advisement to await the DOE response.

On December 20, 1985, IG formally responded to VTC’s request. Of the 66 documents, 28 were released in their entirety, 24 were released with deletions, and 14 were withheld in their entirety. On January 10,1986, VTC formally moved for reimbursement of reasonable attorney fees and other litigation costs in the amount of $1,878.25. A hearing was held on this motion on February 18, 1986, at which time VTC increased its request for reimbursement to $2,650.25.

ANALYSIS

The court will first consider the defendants’ argument that this case should be dismissed because the court is without jurisdiction to hear it. For the reasons set forth below, the court concludes that the court has jurisdiction in this case, and denies the motion to dismiss.

The defendants contend that this court lacks jurisdiction to consider VTC’s claim because VTC failed to exhaust its administrative remedies prior to filing suit. This court need not consider defendants’ contention that all administrative remedies must be exhausted prior to filing suit in federal court, however, because even if exhaustion is required, see Brumley v. U.S. Department of Labor, 767 F.2d 444 (8th Cir.1985) and Hedley v. U.S., 594 F.2d 1043, 1044 (5th Cir.1979), the Freedom of Information Act itself makes clear that exhaustion of administrative remedies is not required in cases such as this one.

The Act provides, in pertinent part:

Any person making a request to any agency for records under paragraph (1), (2), or (3), of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions ...

5 U.S.C. § 552(a)(6)(C). The applicable time limits are set forth in 5 U.S.C. § 552(a)(6)(A), which gives an agency ten days after the receipt of a request to make a “determination” whether to comply with the request, and to notify the requesting party of the determination. As described by the courts, a determination sent to a person requesting information must include at least four elements:

(1) a statement of what the agency will release and will not release, including a list of the documents that are releasable and withheld;
(2) a statement of the reasons for not releasing the withheld records;
(3) a statement notifying the requesting person of his right to appeal to the head of the agency or seek judicial review of any adverse determination; and
(4) if a fee is charged for releasing documents, a statement of why the agency believes that waiver or reduction of the fee is not in the public interest and does not benefit the general public, and a statement for the charges for document search and duplication of the releasable documents.

Shermco Industries v. Secretary of the U.S. Air Force, 452 F.Supp. 306, 317 (N.D.Tex.1978), reversed on other grounds 613 F.2d 1314 (5th Cir.1980). See also 10 C.F.R. 1004.7(b) (DOE requirements of form and substance of a denial of FOIA request).

In the instant case, VTC filed their FOIA request on August 30, 1985. Defendants have consistently maintained throughout this suit that DOE did not make any decision regarding release of the 66 documents until December 20. Thus, it strikes the court as silly that defendants argue the inconsistent position that VTC should have exhausted an administrative remedy before coming to this court. VTC had no decision from which it could appeal to the DOE Office of Hearings and Appeals, as defendants argue they should. Moreover, defendants’ argument flies directly in the face of § 552(a)(6)(C), which explicitly contemplates the situation encountered by VTC here. Because DOE failed to make a determination on VTC’s request within the statutorily required time period, VTC is properly before this court, and the defendants’ motion to dismiss must fail.

Before turning to the attorney fees issue on which the parties disagree, the court pauses to note that at the hearing of February 18, 1986, the parties made clear that there are no longer any requests before the court for the release of additional information. DOE has released the bulk of the substance of the 66 documents, and VTC does not challenge DOE’s withholding of any of the withheld documents. Since the underlying substantive claim in this matter is now moot, VTC’s request for a preliminary and permanent injunction against the defendants’ wrongful withholding of documents is dismissed without prejudice.

The court now turns its attention to VTC’s motion for attorney fees. For the reasons set forth below, the court is convinced that an award of attorney fees is unwarranted in this case, and denies the motion in full.

FOIA gives district courts authority to award attorney fees to certain FOIA litigants. In order to recover attorney fees under FOIA, a complainant must satisfy both parts of a two-part inquiry. First, the complainant must “substantially prevail” in the FOIA litigation. Second, the complaint must demonstrate that he is “entitled” to the award in accordance with a multi-factor discretionary analysis. See, e.g., Weisberg v. U.S. Dept. of Justice, 745 F.2d 1476, 1495 (D.C.Cir.1984) rehearing denied, 763 F.2d 1436 (1985). See also Murty v. Office of Personnel Management, 707 F.2d 815, 816 (4th Cir.1983). In this case, the court finds it unnecessary to reach the questions of VTC’s entitlement to an award of attorneys fee, for the court is convinced that VTC has not substantially prevailed.

In determining whether an FOIA complainant has substantially prevailed, it is well established that the inquiry is largely a question of causation. While it is clear that a court order compelling disclosure is not a prerequisite for an award, see Public Law Educ. Inst. v. U.S. Dept. of Justice, 744 F.2d 181, 183 (D.C.Cir.1984), it is also clear that complainant cannot simply rely on the maxim post hoc, ergo propter hoc to justify his award. See Sweatt v. U.S. Navy, 683 F.2d 420, 423 (D.C.Cir.1982). Instead, “the party seeking such fees in the absence of a court order must show that the prosecution of the action could reasonably be regarded as necessary to obtain the information ... and that a causal nexis exists between that action and the agency’s surrender of that information.” Cox v. Dept. of Justice, 601 F.2d 1, 6 (D.C.Cir.1979). The mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation. Weisberg, 745 F.2d at 1496.

Whether a party has demonstrated causation in a particular case is a factual determination that is within the province of this court to resolve. In making this determination, this court must consider “whether the agency upon actual and reasonable notice of the request, made a good faith effort to search out material and to pass on whether it should be disclosed.” Cox, 601 F.2d at 6. In addition, the court should consider such factors as the number of requests pending before the agency and the time consuming nature of the search and decisionmaking process. Weisberg, 601 F.2d at 1496. Indeed, if “rather than the threat of an adverse court order ... an unavoidable delay accompanied by due diligence in the administrative processes was the actual reason for the agency’s failure to respond to a request, then it cannot be said that the complainant substantially prevailed in his suit.” Cox, 601 F.2d at 6.

In the instant case, the court is unable to conclude that the current suit caused the release of the sought material. Rather, the court notes that there were approximately 19 requests pending at the time the VTC request was received by IG, and that VTC’s request required the review of approximately 190 pages of documents. The court further notes that despite the length of the request and the fact that there were many other requests pending, DOE began immediately processing the VTC request when it learned of VTC’s predicament. While expediting the request as an accommodation to VTC, DOE was hampered by the vacation of an attorney in OGC. The extensive deletions and withholding of documents from the 66 documents requested makes clear that considerable time and effort was needed to properly comply with the VTC request. In addition, VTC counsel was kept up to date on DOE’s progress in reviewing the documents. Finally, VTC does not allege any bad faith on the part of DOE.

While it is true that the documents were released approximately two weeks after suit was filed, the record makes clear that the filing of suit did not cause the documents’ release. Instead, it appears that DOE was making a conscientious, indeed magnanimous, effort to respond to VTC’s request. It appears to the court that the filing of this suit did not contribute in any way to the release of the documents requested by VTC. Because VTC has not substantially prevailed within the meaning of FOIA, its motion for attorney fees is denied.

CONCLUSION

For the reasons set forth above, the defendants’ motion to dismiss is denied, plaintiff’s motion for attorneys fees is denied, and the case is dismissed without prejudice.

      . On or about November 12, 1985, there were approximately 19 FOIA requests pending with IG ahead of VTC’s request.


author: JUNE L. GREEN, Senior District Judge.

text:
    Daniel A. KOROMA, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
    Civ. A. No. 84-3556.
    United States District Court, District of Columbia.
    Feb. 25, 1986.
    Barry D. Bardack, Washington, D.C., for plaintiffs.
    Michael L. Martinez, Asst. U.S. Atty., Washington, D.C., for defendant.
   OPINION

JUNE L. GREEN, Senior District Judge.

This is an action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq. Plaintiffs seek damages for false arrest and false imprisonment, arising out of their arrest by agents of the Federal Bureau of Investigation (“FBI”) on September 9, 1981. A trial to the Court was held on February 3 and 4,1986. The Court heard testimony from plaintiffs David Conteh, Daniel Koroma, Ahmadu Cohteh, Thomas Bangura, Mohammed S. Mansaray, Mohammed Koroma, Theophilus Kessebeth; FBI Special Agents Thomas Nicoletti and James Werth; former Sergeant Joseph Tutka of the Uniformed Division of the United States Secret Service (“Secret Service”); and Officers David Kielbasa and George Lee, also of the Secret Service. For the reasons stated below, the Court finds that the plaintiffs were arrested and imprisoned falsely, and awards each plaintiff $1,500 in damages.

FINDINGS OF FACT

The seven plaintiffs are citizens of the country of Sierra Leone and were such on September 9, 1981. On the evening of September 8, 1981, the plaintiffs, along with several others, met and agreed to go the next day to the Chancery of Sierra Leone. They were concerned about reports of rioting and other disturbances in Sierra Leone and planned a visit to the Chancery for the .next morning in order to obtain more information about these events.

On the morning of September 9, 1981, plaintiffs and several others went to the Chancery, which is located at 1701 19th Street, N.W., Washington, D.C. Plaintiffs Thomas Bangura, Mohammed Mansaray and another individual not a party to this action proceeded upstairs to the office of the Charge d’Affaires, Mr. Ahmed A. Seray-Wurie after the receptionist announced their arrival. Plaintiffs David Conteh, Daniel Koroma, and Ahmadu Conteh waited in the first floor lobby of the Chancery. Plaintiffs Mohammed Koroma and Theophilus Kessebeth arrived at the Chancery grounds but did not enter the Chancery.

Several of the plaintiffs testified that they were well acquainted with the Chancery personnel, including the Charge d’Affaires. For instance, Daniel Koroma testified that the receptionist, Isatuh Fullah, is his sister-in-law; Ahmed Conteh declared that he is a close friend of the Charge d’Affaires; and Mohammed Mansaray testified that he is a maternal relation of Charge d’Affaires Seray-Wurie.

Secret Service Officers Kielbasa and Lee, responding to a radio dispatch reporting that the Chancery was in “distress,” arrived on the scene approximately five minutes after the group including the plaintiffs entered the Chancery. Officers Kielbasa and Lee reported that they found people milling about on the first floor. The officers testified that the receptionist appeared to be upset or confused and that they had difficulty communicating with her due to her broken English. Officers Kielbasa and Lee then proceeded upstairs to investigate the noise coming from there.

Shortly after Officers Kielbasa and Lee entered the Chancery, Sergeant Tutka arrived. He found the receptionist seated and remarked that the receptionist’s cubicle was in order. Sergeant Tutka also testified that he had difficulty understanding the receptionist. Sergeant Tutka proceeded directly to the second floor to join Officers Kielbasa and Lee.

The three Secret Service officers reported some confusion on the second floor with people running around and doors closing. Officers Kielbasa, Lee, and Tutka entered Charge d’Affaires Seray-Wurie’s office and found him there with four or five other gentlemen. The Secret Service officers stated that Mr. Seray-Wurie was confused and upset and wanted the other people in his office, including plaintiffs Bangura and Mansaray, to leave, but Mr. Seray-Wurie told Sergeant Tutka that he did not want them arrested. Officers Kielbasa, Lee, and Tutka found Mr. Seray-Wurie’s office to be in order, citing no evidence of a disturbance. At no time did the three Secret Service officers witness any threat or act of violence. The Secret Service officers were never able to ascertain who called the police.

Pursuant to Mr. Seray-Wurie’s request, the Secret Service officers escorted the men out of Mr. Seray-Wurie’s office, and cleared the building of all non-Chancery personnel. Sergeant Tutka told them that they would not be arrested if they left the Chancery quietly, in accordance with Mr. Seray-Wurie’s wish. The group, including plaintiffs, left peacefully and they assembled on the sidewalk across the street from the Chancery.

Shortly after the unauthorized people in the Chancery had exited, Special Agents Nicoletti and Werth of the FBI arrived. They conferred briefly with Sergeant Tutka, then Agent Nicoletti interviewed Mr. Seray-Wurie while Agent Werth spoke with Ms. Fullah, the receptionist. Both FBI Agents testified, contrary to all the other witnesses, that Mr. Seray-Wurie appeared disheveled and that his office and the receptionist’s cubicle were in a state of great disorder. Agent Nicoletti testified that Mr. Seray-Wurie told him that he had been physically assaulted. Agent Werth testified that Ms. Fullah also reported being assaulted, her broken English aside. None of the supposed victims of this assault testified at trial or provided any verification of these events.

While being interviewed by Agent Nicoletti, Mr. Seray-Wurie pointed from his second-story window to a group of ten to fifteen men who were standing on the sidewalk and said that they were the ones who had entered his office. Not long thereafter, this group left to get their automobiles and then proceeded to drive to a parking lot on 21st and M Streets, N.W., in Washington, D.C. Sergeant Tutka followed them in his cruiser as the FBI Agents had asked him to do.

Agent Nicoletti, meanwhile, telephoned his supervisor and Assistant United States Attorney Herbert DiFonzo to advise them of the situation and that there had apparently been an assault on Charge d’Affaires Seray-Wurie in violation of 18 U.S.C. § 112(a). Both persons authorized Nicoletti to arrest the persons involved in the assault.

Agent Nicoletti radioed the Secret Service officers to detain the suspects at their present location, the 21st and M Street parking lot. Sergeant Tutka testified that he informed the suspects that they were no longer free to go. Agent Nicoletti proceeded to the parking lot in order to question the suspects. Upon his arrival, Sergeant Tutka explained that there were eleven suspects and that the whole group had left the Chancery together.

Agent Nicoletti asked each of the men if they understood English, and all replied affirmatively. Agent Nicoletti informed them of their rights and then asked each suspect, “Did you make unauthorized entrance to the Embassy [sic] of Sierra Leone?”. Ten of the eleven suspects replied affirmatively; one asked to speak with an attorney, instead. Agent Nicoletti then placed the eleven suspects under arrest and charged them with violating 18 U.S.C. § 112(a). Among those arrested were the seven plaintiffs in this civil action.

This group, including the seven plaintiffs, were transported in a District of Columbia police wagon to the FBI substation in Washington, D.C. They were processed and interrogated for approximately two hours. They were then transported to the District of Columbia Central Cellblock at police headquarters where they were processed for a second time. The plaintiffs were kept overnight in jail.

The next afternoon, September 10th, the plaintiffs were transported to the holding cell of the United States Courthouse. After they appeared before a United States Magistrate, six of the seven plaintiffs were released on bond. Plaintiff David Conteh was held in custody for another night at the request of the Immigration and Naturalization Service. He-was released on bond on September 11, 1981. While on bond, the plaintiffs were required to report to the District of Columbia Pretrial Services Agency, and were forbidden from going to or near the Chancery of Sierra Leone.

On September 16th, the plaintiffs were directed to appear at police headquarters for a line-up. Each of the seven plaintiffs were identified by Chancery personnel as among those that had been in the Chancery the morning of September 9, 1981. On March 12, 1982, the United States Attorney’s Office declined prosecution of the seven plaintiffs and their cases were dismissed. The plaintiffs presented their administrative claims pursuant to the FTCA, 28 U.S.C. §§ 2401(b), 2675(a), and 2680(h) in a timely fashion on September 6, 1983.

Conclusions of Law

The United States is liable under the FTCA for tort claims “in the same manner and to the same extent as a private individual under like circumstances” would be. 28 U.S.C. § 2674. The FTCA explicitly provides that the Government’s liability shall be determined “in accordance with the law of the place where the [wrongful] act or omission occurred.” 28 U.S.C. §§ 1346(b), 2672.

Under the tort law of the District of Columbia, the elements of the torts of false arrest and false imprisonment are (1) the detention or restraint of one against his will within boundaries fixed by the defendant, and (2) the unlawfulness of the restraint. Faniel v. C & P Telephone Co., 404 A.2d 147, 150 (D.C.App.1979). The torts of false arrest and false imprisonment are indistinguishable. Shaw v. May Department Stores, Inc., 268 A.2d 607, 609 n. 2 (D.C.App.1970).

The “focal point” in this type of action “is the question whether the arresting officer was justified in ordering the arrest of the plaintiff[s]; if so the conduct of the arresting officer is privileged and the action fails.” Dellums v. Powell, 566 F.2d 167, 175 (D.C.Cir.1977). Under District of Columbia law, the detention is presumed to be unlawful once “an allegation [is made] that a plaintiff was arrested and imprisoned without process.” Clarke v. District of Columbia, 311 A.2d 508, 511 (D.C.App.1973). The burden then shifts to the defendant to justify the arrest. Id., accord Pierson v. Ray, 386 U.S. 547, 556-57, 87 S.Ct. 1213, 1218-19, 18 L.Ed.2d 288 (1967). Justification can be established by showing that the arresting officer had probable cause for arrest of the plaintiff on the grounds charged or that he had a reasonable basis to believe that a crime had been committed and the officer acted in good faith in making the arrest. Dellums v. Powell, 566 F.2d at 175.

Thus, the only issue is whether Agent Nicoletti, the arresting officer, “acted in good faith in arresting plaintiffs and whether his actions were reasonable in light of all the circumstances.” Id., at 176; accord Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 1691-92, 40 L.Ed.2d 90 (1974). The facts of this case, while they may indicate good faith on Agent Nicoletti’s part, certainly do not demonstrate that his actions were reasonable. Agents Nicoletti and Werth never saw any of the plaintiffs on Chancery property, let alone witness any act of violence threatened or committed by plaintiffs. Sergeant Tutka and Officers Kielbasa and Lee, the first law enforcement officials on the scene, testified that they saw no evidence of any illegal or threatening activity and that Charge d’Affaires Seray-Wurie wanted only that the plaintiffs and others depart the Chancery, not that they be arrested. No victims of the alleged violence committed by plaintiffs offered any testimony at trial.

Further, the Court is confronted with the fact that the plaintiffs were identified to Agent Nicoletti by Mr. Seray-Wurie as he spied them on the opposite sidewalk from his second-story window. While Agent Nicoletti is to be commended for consulting with his superiors before taking action, the fact that the group which included the plaintiffs was allowed to leave the scene only to be detained and arrested many blocks away does nothing to support the reasonableness of Agent Nicoletti’s actions.

Thus, while Agent Nicoletti may have had an honest belief that plaintiffs had violated 18 U.S.C. § 112(a), the Court concludes that this belief was not a reasonable one in light of the facts available to him at the scene. While the Court does not favor second-guessing trained law enforcement officials, neither can it sit idle when the weight of the evidence indicates that the arrest in issue amounted to an unwarranted interference with plaintiffs’ personal liberties.

Despite the intangible nature of the injury suffered and the lack of substantial evidence regarding any real losses sustained, the Court must, nevertheless, weigh the significance of the defendant’s transgression. The concept of personal freedom is at the core of our democratic beliefs. When such a principal element of our democratic system is violated, retribution (imprecise though it may be) must be made as testimony to the freedoms we value so highly. See Dellums v. Powell, 566 F.2d at 194-96. Accordingly, the Court awards each plaintiff $1,500 in damages.

      . Each of the plaintiffs testified that Agent Nicoletti only asked whether they had been at the Chancery.