author: PEREZ-GIMENEZ, Chief Judge.

text:
    Urbano LABOY, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
    Civ. No. 80-2119 (PG).
    United States District Court, D. Puerto Rico.
    Nov. 7, 1985.

      Ernesto Maldonado Pérez, San Juan, Puerto Rico, for plaintiffs.
    Wanda Rubianés-Collazo, Asst. U.S. Atty., Hato Rey, Puerto Rico, for defendant.
   OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

This was a tort action brought against the Veterans Administration for alleged negligence in its treatment of Felix Luis Laboy, an out-patient in the Mental Hygiene Clinic at the Veterans Administration Hospital, San Juan, Puerto Rico.

On May 23, 1978, Mr. Laboy was found dead by the thirteen year old girl with whom he was cohabitating. It appeared at the time he had ingested an undetermined amount of a prescription sleeping aid commercially known as Dalmane. Decedent had been prescribed this medication at the Mental Hygiene Clinic along with medication for the treatment of his mental condition, previously diagnosed as schizophrenia, undifferentiated type.

Jurisdiction was predicated upon 28 U.S.C. 1331, 1346(b) and 2671, et seq.

A hearing on the merits of the action was held at which the parties presented expert testimony on psychiatry and toxicology. Some family members of the deceased veteran were also present and testified at this hearing.

FINDINGS OF FACT

After an external examination of decedent’s body, along with general information furnished by decedent’s father and the results of a Toxicology Report submitted by the Institute of Forensic Medicine, the Coroner’s conclusion with the expert testimony of the toxicologist who co-signed the report offered by plaintiffs. The toxicologist’s testimony established that the urine sample was scientifically unreliable to determine the cause of death; the only reliable method being that of a blood test. In this case no blood trace levels of the drug were found.

Dalmane, a mild hypnotic, is widely used in the medical field, especially in the practice of psychiatry. It is the accepted medical treatment for insomnia and is often prescribed for ambulatory psychiatric patients because of its mildness and safety.

In the instant case it was established with certainty that death in this case could not have been caused by an overdose of the drug. Notwithstanding the fact that the urine levels reported were sufficiently reliable to form the basis of a scientific opinion as to the cause of death, it also was proven that the trace levels in the urine represented approximately thirty-four (34) mlg. of Dalmane, which amounts to about one capsule. It is evident that one capsule is within the accepted therapeutic levels of the drug.

We believe plaintiffs were required to prove, with reliable certainty, that death was proximately caused by a drug prescribed by the Veterans Administration. Cause of death may not be established by mere conjecture. Plaintiffs relied entirely upon the Coroner’s conclusion as to cause of death. The accuracy of that conclusion was put in jeopardy immediately when the experts conceded that the levels of the drug found in the urine were not reliable and, even if reliable, the amount actually discovered did not constitute a lethal dose. Thus, Plaintiffs’ main argument of Dalmane intoxication was ruled out by expert evidence as the proximate cause of death. Therefore, we find plaintiffs’ failed to meet the threshold levels of proof required to impose liability on the Veterans Administration.

Patients, such as decedent, are customarily treated at the Veterans Administration on an ambulatory basis. Only in cases where special precautions are to be taken or where other exigent circumstances require it, will hospitalization be recommended. This is in accordance with the modern trend in the practice of psychiatry which is to allow a patient to maintain close contact with his family and thereby remain a functioning member of society instead of institutionalizing him in a mental hospital. This practice ameliorates the detrimental effect which confinement necessarily entails.

To adequately meet their burden, plaintiffs had to support their contention that the Veterans Administration’s determination not to hospitalize decedent was negligent and that some other treatment should necessarily have been undertaken. Plaintiffs most strongly argued that a potentially suicidal patient, such as decedent, must be kept under constant surveillance and/or, where not under constant medical supervision, command of the patient’s medications should not be entrusted to him.

It was established, however, that decedent showed no particular signs of noncompliance with the treatment given to him. In fact, four days before his death the patient was seen at the Mental Hygiene Clinic and was found by the attending physician to be responding well to the medication. During his interview the patient appeared oriented and coherent and lacking any signs of depression. Specifically, it was found he had no suicidal or homicidal thoughts. The patient’s response was found to be fair and it was decided that he was to continue his present treatment. Decedent had also been interviewed on two prior occasions and similarly displayed no warning signs which would cause the physician to seek his immediate institutionalization.

Moreover, as to plaintiffs’ argument that members of plaintiffs’ family should have been entrusted with the medications, it was clearly established that the family members had no control over decedent. As shown by the testimony of his parents and siblings, decedent consistently failed to heed the advice and counsel they offered him. The girl with whom he cohabitated similarly had no control over his actions. Under such circumstances, and absent a clear indication that decedent was not adequately administering his own medications, we will not find that the ambulatory treatment given was negligent in this regard.

CONCLUSIONS OF LAW

Under the Federal Tort Claims Act the United States may be held liable in tort:

. in the same manner and to the same extent as a private individual under like circumstances.”

28 U.S.C. § 2674 (1976). Such liability, however, is said to depend upon whether a private individual under like circumstances would be liable under state law. United States v. Muñiz, 374 U.S. 150, 153, 83 S.Ct. 1850, 1853, 10 L.Ed.2d 805 (1963). Thus, where the alleged acts of negligence occurred in Puerto Rico, as in the case here, the rights and liabilities of the parties to this action are governed by the substantive law of Puerto Rico. See Johnson v. United States, 271 F.Supp. 205 (W.D.Ark.1967).

To that effect, Article 1802 of the Puerto Rico Civil Code provides that:

“A person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done. Concurrent imprudence of the party aggrieved does not exempt from liability, but entails a reduction of the indemnity.”

Title 31 § 1802 Puerto Rico Civil Code.

Since the leading case of Rivera v. Dunscombe, 73 D.P.R. 819 (1952) was decided, the Supreme Court of the Commonwealth of Puerto Rico has consistently required proof of negligence in order to sustain a cause of action damages against a physician or a hospital. See, e.g., Levis Saez v. Municipio de Ponce, 84 D.P.R. 535; Pérez v. E.L.A., 95 D.P.R. 745; Vda. de Torres v. Womble, 99 D.P.R. 859 and Rivera v. E.L.A., 99 D.P.R. 890.

The minimum standard of medical attention which can currently be legally required in malpractice cases in Puerto Rico is found in Oliveros v. Abréu, 101 D.P.R. 210 (1973). In recognition of modern methods of teaching and communication, the Court here created a new standard of due care for physicians, one which would fulfill the generally recognized requirements of the medical profession, see id. at 226, and not simply those of the community in which the doctor practices, see Rivera v. Dunscombe, supra, at 226-227. However, the court in Oliveros expressly reaffirmed its position that hospitals and clinics should be held to a different standard — that of reasonable care and attention as required by the circumstances. Soc. de Gananciales v. Presbyterian Hosp., 88 D.P.R. 391, 399 (1963); Hernandez v. La Capital, 81 D.P.R. 1031, 1038 (1960); Jesús Lozada Aponte et als. v. E.L.A., 85 JTS 18 (March 14, 1985).

There is a presumption in our jurisprudence, absent evidence to the contrary, that a physician has adequately treated his patient and has exercised due care in the administration of that treatment. Rivera v. E.L.A., 99 D.P.R. 890 (1971). Thus, it is plaintiffs’ burden to show, by a preponderance of the credible evidence, that a physician has failed to meet the standard of care recognized in the medical profession. Moreover, as the defendant Veterans Administration in the instant case is a hospital or clinic, plaintiffs must prove that the defendant failed to exercise even that degree of care which would be exercised by a reasonable and prudent man in the same situation. Soc. de Gananciales v. Presbyterian Hospital, supra, at 398; Pascual Marquez Vega, etc. v. Héctor Martínez Rosado, etc., 185 JTS 41 (May 15, 1985).

Even where negligence can be established, however, there can be no liability for malpractice unless the plaintiff can establish that his damages were the direct result of the physician’s negligence. This causal relationship cannot be established through mere speculation or conjecture. Rivera v. E.L.A., supra, at 898; Pérez Cruz v. Hospital La Concepcion, 84 JTS 87 (Oct. 29, 1984). As stated by the Supreme Court of the Commonwealth of Puerto Rico in Rivera v. Dunscombe, supra, at 839:

“The mere possibility that a physician’s negligence may have been the proximate cause of the harm is not sufficient to establish a case of malpractice based on negligence against a defendant; if there exists a possibility that other causes might have intervened, it is plaintiff’s duty to eliminate these possibilities, demonstrating that the physician’s negligence really was the proximate cause of the injury ...”

Therefore, where the evidence indicates more than one probable cause of harm, the doctor cannot be held liable unless it is shown that his negligence was, with greater probability, the actual cause of the harm. See, e.g., Perez v. E.L.A., 95 D.P.R. 535 (1962).

In the instant ease, plaintiffs rely on the Coroner’s Report attributing the cause of death to Dalmane as the basis for his contention that this harm was proximately caused by the physician’s act of prescribing Dalmane to decedent. We are not obligated to follow the opinion expressed by this expert, especially where his opinion conflicts with the testimony of other experts which we have had occasion to hear at a trial on the merits of the action. See Rivera v. Duncombe, supra, at 835. Here the defendant established that the information upon which the Coroner based his report was unreliable and, in any event, the amount or trace levels of Dalmane found in the patient’s body was insufficient to cause his death. Since no autopsy was performed in this case, there exists a myriad of possible causes of death other than the one brought forth by plaintiffs. Thus, plaintiffs have failed to show with reasonable certainty that the patient died of a condition proximately caused by the negligence of the prescribing physician.

Plaintiffs also argue that the physician was negligent in entrusting the medication to the decedent in view of his mental condition. The defendants, aided by the presumption of due care and adequate treatment maintain that only accepted and proper methods of treatment were followed and that in their best judgment, the patient appeared to be responding very well to the outpatient treatment he was receiving at the hospital.

The case of Rivera v. E.L.A., supra, is relevant in this regard. As a basic principle, the Court states that a physician should not be held liable for an error of judgment unless such error could be considered an obvious one. Even a showing by plaintiff that some other physician would have acted differently does not justify a conclusion of negligence by the defendant. Id. at 899-900. In Rivera, the patient was treated for gallstones but died of a ruptured appendix, which had remained undiagnosed because of the obscure and atypical nature of the symptoms. The court refused to hold the physician liable for negligence where the patient’s symptoms were not discernible in the usual and current manner. Id. at 902. In the present case the patient appeared to the treating physician to be coherent and well-oriented, giving them a reasonable basis to believe that he was coping properly as an outpatient and that he could responsibly manage his medication. There was no visible indication to the contrary. Plaintiffs maintain that the only proper thing to do would have been to hand the medication over to the family members. Yet, in their own testimony, the family members admitted that decedent led his life totally independent of their control and influence. It is clear that neither his parents, his siblings nor his girlfriend could in any way advise him or supervise him in the taking of his medication. Thus, the plaintiffs have failed to establish that the treating physicians were negligent in prescribing sleeping aids to the patient or in failing to institutionalize him.

In the absence of proof of negligence and of proximate causation we must conclude that plaintiffs have failed to establish a prima facie case against the Veterans Administration.

IT IS, THEREFORE, HEREBY ORDERED that this case stand dismissed.

IT IS SO ORDERED.

      . Chemically known as flurazepam hydrochoride, it is a hypnotic agent used in the treatment of all types of insomnia.

      . No autopsy was ever performed on the body.

      . The Toxicology report only indicated that flurazepam (Dalmane) was present in the urine in a concentration of 1.7 mlg. percent. Alcohol, ferrotiazine, strychnine or librium were completely absent from the blood or urine. Barbiturates and salicylates were also absent from the blood.

      . Further, a lethal dose of the drug would approach 5 grams in the blood contents. Such a lethal dose translates to approximately 100 capsules of 30 mlg. each.

      . Plaintiffs argue that the suicidal ruminations of the decedent upon being admitted to the Hato Rey Psychiatric Clinic dictates that he be treated as a suicidal risk in any further treatment. It is clear that mere suicidal ruminations do not trigger such precautions. Only after suicidal "tendencies” are present does the need to take such precautions really surface. Crespo Pérez et als. v. Hato Rey Psychiatric Hospital, Inc., 83 JTS 105 (November 16, 1983).


source: Caselaw Access Project

author: KINNEARY, District Judge.

license: Public Domain

text:
    Jeffory A. SMITH, Plaintiff, v. CAPITOL MANUFACTURING CO., a DIVISION OF HARSCO CORP., Defendant.
    No. C-2-85-379.
    United States District Court, S.D. Ohio, E.D.
    Nov. 15, 1985.
    James W. Rolfes, Sr., London, Ohio, for plaintiff.
    James M.L. Ferber, Schottenstein, Zox & Dunn, Cols., Ohio, for defendant.
   OPINION AND ORDER

KINNEARY, District Judge.

This matter comes before the Court to consider defendant’s motion to dismiss or, in the alternative, for summary judgment on plaintiff Jeffory A. Smith’s claims alleging violations of Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) and wrongful discharge from employment under state law.

STATEMENT OF THE CASE

The plaintiff was hired by the defendant, Capitol Manufacturing, over ten years ago. He was a member of the International Association of Machinists and Aerospace Workers, Local No. 2306 (“the union”) which represented the employees at defendant’s West Jefferson, Ohio facility. The plaintiff was laid off as part of a reduction in force on May 23, 1983. At the time of the reduction in force, the employment agreement between the union and defendant stated that employees would not be terminated without just cause. The agreement further provided that an employee must report to work within five (5) work days after a receipt of notification by the defendant that he was being recalled to work unless he was sick or physically unable to do so. While the plaintiff was laid off, a new agreement became effective which required the plaintiff to return to work from recall within three calendar days after receiving notice. The plaintiff never received a copy of the new agreement.

Plaintiff was notified on Friday, August 12,1983, that he was to return to work as a Parts Worker No. 4. Plaintiff advised the defendant that he had been taken off that job because of an injury to his back on May 11,1981 for which he was being compensated by the Industrial Commission of Ohio. The defendant told plaintiff that he would be recontacted concerning his status.

Plaintiff called the defendant on Tuesday, August 16, 1983 and was advised to return to work on Thursday, August 18, 1983. Upon returning to work, plaintiff discovered that he had received a five day suspension. The plaintiff filed a grievance on September 6, 1983 regarding his termination. On October 19, 1983, a meeting between the defendant and the union was held at which time the defendant maintained its position that the plaintiff’s termination should stand. Thereafter, pursuant to the terms of the collective bargaining agreement, plaintiff was required to give written notice of an appeal for arbitration of the dispute. Plaintiff failed to provide such notice or to submit his grievance to arbitration.

Plaintiff filed suit on February 5, 1985 in the Court of Common Pleas of Madison County alleging wrongful discharge and discharge in retaliation for filing a worker’s compensation claim. The defendant timely removed the suit based upon diversity jurisdiction. This Court held in its Opinion and Order dated June 6, 1985 that removal was proper based upon federal question jurisdiction because the plaintiff had alleged a cause of action falling under Section 301 of the Labor Management Relations Act.

Section 301 Claims

The defendant moves to dismiss plaintiff’s Section 301 claims on grounds that plaintiff failed to exhaust the grievance and arbitration procedures set forth in the collective bargaining agreement. The defendant also asserts that plaintiff’s complaint is time-barred by the applicable statute of limitations for bringing a Section 301 claim.

It is well-settled that an employee must attempt to invoke the contractual grievance and arbitration procedure set forth in a collective bargaining agreement prior to instituting suit for breach of the agreement. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S.Ct. 614, 616-17, 13 L.Ed.2d 580 (1965). However, a discharged employee need not exhaust his or her contractual remedies before bringing a Section 301 action against his employer, “provided that the employee can prove that the union as bargaining agent breached its duty of fair representation in handling of the employee’s grievance.” Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967); Fristoe v. Reynolds Metals, 615 F.2d 1209, 1214 (9th Cir.1980); Bell v. Union Carbide Corp., 582 F.Supp. 824, 826 (E.D.Tenn.1984); Voda v. New England Telephone and Telegraph Co., 580 F.Supp. 852, 853-54 (D.Mass.1984).

In the present case, it is undisputed that the collective bargaining agreement provided for a grievance and arbitration procedure for the resolution of disputes. Indeed, it is clear from the record that the plaintiff took the initial steps of filing a proper grievance but the grievance was never submitted by the union for binding arbitration as required by the collective bargaining agreement. The plaintiff argues that he should not be precluded from bringing his Section 301 claim because the final steps leading to binding arbitration were within the total control of the union. The Court disagrees.

The above authority is clear that an. employee may only avoid the necessity of exhausting grievance and arbitration requirements of a collective bargaining agreement by establishing that the union breached its duty of fair representation. 386 U.S. at 186; 582 F.Supp. 826. Accordingly, it is essential that the plaintiff allege that “he has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance.” 386 U.S. at 185. Plaintiff has made no such allegation in his pleadings. Consequently, he may not maintain this action under Section 301. Therefore, the Court GRANTS defendant’s motion to dismiss plaintiff’s breach of collective bargaining claim. Whereas the Gourt finds that has failed to state a claim upon which relief may be granted under Section 301, it does not reach the question of whether the plaintiff filed this suit within the applicable statute of limitations.

Plaintiffs State Law Claims

Plaintiff originally brought claims in state court for wrongful discharge and retaliation for filing a worker’s compensation claim. The defendant claims that plaintiff's wrongful discharge claim is pre-empted by federal labor law and his worker’s compensation claim is time-barred.

With respect to the latter claim, the Court first notes that a state cause of action based upon wrongful discharge in retaliation for filing a worker’s compensation claim is not necessarily pre-empted by federal law. See Garbaldi v. Lucky Stores, Inc., 726 F.2d 1367 (9th Cir.1984); Thomas v. Kroger Co., 117 LRRM 2803 (D.W.Va.1978); Harper v. General Dynamics Corp., 117 LRRM 3197 (C.D.Cal. 1984). However, the Court does not reach this issue as it is clear that the plaintiff is barred from asserting his claim by Ohio law.

Ohio Revised Code § 4123.90 creates a substantive right to bring an action for wrongful discharge in retaliation for filing a worker’s compensation claim. O.R.C. § 4123.90 provides, in pertinent part:

No employer shall discharge ... any employee because such employee filed a claim or instituted ... any proceeding under the worker’s compensation act for an injury ... which occurred in the course of and arising out of his employment with that employer. Any such employee may file an action in the common pleas court ... Such action shall be forever barred unless filed within one hundred eighty days immediately following such discharge ... and no action may be instituted or maintained unless the employer has received written notice of a claimed violation of this paragraph within ninety days immediately following such discharge ... (emphasis added).

It is undisputed that the plaintiff failed to bring a suit within 180 days of his discharge and that he failed to provide notice to the defendant of the alleged violation. Accordingly, the plaintiff may not assert a claim against the defendant under the statute. Nor does it appear that the plaintiff has a cause of action under common law for wrongful discharge in retaliation for filing a worker’s compensation claim. Therefore, whereas the plaintiff failed to comply with the terms of O.R.C. § 4123.90, the Court hereby GRANTS defendant’s motion to dismiss this claim.

Plaintiff’s remaining claim of wrongful discharge is based upon state common law. Specifically, the plaintiff claims that he is entitled to relief under the recently emerging promissory estoppel exception to Ohio’s employment “at will” doctrine. See Mers. v. Dispatch Printing Co., 19 Ohio St.3d 100, 483 N.E.2d 150 (1985). The defendant argues that plaintiff’s claim for wrongful discharge in this case is preempted by federal labor law.

In its most recent decision involving preemption, the U.S. Supreme Court held that a tort claim for bad-faith handling of an insurance claim asserted under Wisconsin law was pre-empted by federal labor-contract law. Allis-Chalmers Corp. v. Lueck, — U.S. -, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). The Court stated:

... questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort. Any other result would elevate form over substance and allow parties to evade the requirements of § 301 by re-labeling their contract claims as claims for tortious breach of contract.

Id. at-, 105 S.Ct. at 1911. In the Allis-Chalmers case, as in the present action, the parties agreed to resolve labor-management disputes and grievances through an arbitration process and reliance upon a neutral arbitrator. The Supreme Court stated that unless the state tort action was preempted:

[the parties] federal right to decide who is to resolve contract disputes will be lost.
Since nearly any alleged willful breach of contract can be restated as a tort claim or breach of a good faith obligation under a contract, the arbitrator’s role in every case could be by-passed easily if § 301 is not understood to pre-empt such claims. Claims involving vacation or overtime pay, work assignment, unfair discharge — in short, the whole range of disputes traditionally resolved through arbitration — could be brought in the first instance in state court by a complaint in tort rather than contract. A rule that permitted an individual to sidestep available grievance procedures would cause arbitration to lose most of its effectiveness, [cite omitted] as well as eviscerate a central tenet of federal labor-contract law under § 301 that it is the arbitrator, not the court, who has the responsibility to interpret the labor contract in the first instance.

Id. at-, 105 S.Ct. at 1915.

In the present case, the plaintiff argues that the terms of the collective bargaining agreement prohibited discharge except for just cause. Plaintiff further points out that under the terms of the old collective bargaining agreement, he was entitled to five work days before returning to work and was unaware that the requirements had been amended in the new agreement. In the opinion of the Court, plaintiff’s claims against the defendant for wrongful discharge clearly arise out of the terms of the collective bargaining agreement and any state law claims are merely incidental to his claim based upon breach of said agreement. Consequently, the proper and exclusive means of resolving his dispute is through the grievance and arbitration procedures established by the collective bargaining agreement. To allow plaintiff to sidestep these procedures by bringing an action under state law would be contrary to the federal policy of resolving labor disputes through arbitration and “would eviscerate the central tenet of federal labor-contract law.” 53 LW at 4467. Thus, under these circumstances, the Court concludes that plaintiff’s state law claim for wrongful discharge is pre-empted by federal labor law. See Buscemi v. McDonnell Douglas Corp., 736 F.2d 1348, 1350-51 (9th Cir.1984); Cokley v. Pacific Gas & Electric Co., 119 LRRM 3454, 3457 (N.D.Cal.1985); Harper v. San Diego Transit Corp., 764 F.2d 663, 119 LRRM 3161, 3163-64 (9th Cir.1985); Harrison v. United Postal Service, 119 LRRM 2163, 2165-66 (C.D.Cal. 1984); Watts v. Grand Union Co., 115 LRRM 4211, 4215-16 (N.D.Ga.1982). Accordingly, defendants’ motion to dismiss plaintiff’s state law claim alleging wrongful discharge is GRANTED on the grounds that plaintiff’s claim is pre-empted by § 301 of the Labor Management Relations Act.

WHEREUPON, upon consideration and being duly advised, the Court finds that defendant’s motion to dismiss plaintiff’s claims is meritorious and it is, therefore, GRANTED. This case is hereby DISMISSED in its entirety.

IT IS SO ORDERED.


author: GRADY, District Judge.

text:
    Sansone OLEVARES, et al., Plaintiffs, v. VIKING DODGE, INC., et al., Defendants.
    No. 79 C 1599.
    United States District Court, N.D. Illinois, E.D.
    Nov. 19, 1985.
    Albert Koretzky, Chicago, Ill., for plaintiffs.
    John Rafferty, Chicago, Ill., for defendants.
   MEMORANDUM OPINION

GRADY, District Judge.

On September 30, 1982, following a bench trial of plaintiffs’ Truth in Lending Act (“TILA”) claim against the defendants, we found defendants jointly liable to the plaintiffs in the amount of $1,000.00 in damages and $500.00 in attorney’s fees. Olevares v. Viking Dodge, Inc., No. 79 C 1599, Memorandum Op. at 11 (N.D.Ill. Sept. 30, 1982) (Grady, J.). On July 23, 1985, plaintiffs filed a citation to discover defendants’ assets, claiming that defendants have not paid plaintiffs this judgment. See Ill. Rev.Stats. ch. 110, ¶ 2-1402, ch. 110A, 11 277 (judgment creditor commences enforcement proceeding by having citation of assets served).

The defendants have moved to quash the citation, arguing that plaintiffs have already been paid their judgment, because one of the two defendants, First Security Bank of Carey-Grove (“Bank”) allegedly has reduced by $1500.00 a claim it has against the plaintiffs. The Bank’s claim is apparently based on the installment contract plaintiffs entered into with the other defendant, Viking Dodge, Inc. (“Viking”), and which formed the subject matter of plaintiffs’ TILA claim. Viking assigned all its rights under the contract to the Bank, and the Bank has never asserted this claim against the plaintiffs in court.

Defendants argue that there is a principle, apparently to be found in common law, that permits a judgment debtor to set off a creditor’s judgment with an unadjudicated claim he has against the judgment creditor. In support of their motion, defendants cite Corpus Juris Secundum, a Sixth Circuit case, a California case, an Illinois case, and a Seventh Circuit ease. Memorandum of defendant, Viking Dodge, Inc.; Bank’s Memorandum in Support of Motion to Quash Citation to Discover Assets.

In response, plaintiffs argue that any action to enforce the installment contract was a compulsory counterclaim to plaintiffs’ TILA claim under Fed.R.Civ.P. 13(a). Since the Bank did not assert that claim, they argue that the Bank’s claim is barred, and cannot now be asserted as a defense in plaintiffs’ enforcement proceeding. Even if the claim was permissive, not compulsory, plaintiffs argue that the claim cannot be asserted in this context. They distinguish defendants’ cases and do not concede liability on the Bank’s claim.

DISCUSSION

Enforcement of federal judgments is governed by Fed.R.Civ.P. 69(a), which provides that “the procedure on execution [of a judgment] ... shall be in accordance with the practice and procedure of the state in which the district court is held, ... except that any statute of the United States governs to the extent that it is applicable.” See Textile Banking Co., Inc. v. Rentschler, 657 F.2d 844, 950 (7th Cir.1981). Therefore, in determining whether defendants can offset the plaintiffs’ judgment with the Bank’s claim, we ask two questions: (1) does any federal statute preclude such a set-off; and (2) does Illinois law allow for such a set-off. See Dias v. Bank of Hawaii, 732 F.2d 1401, 1402 (9th Cir. 1984).

Federal Law

In Dias, the Ninth Circuit refused to permit a bank to offset a TILA judgment against it with a claim by the bank pending against the plaintiff in state court. The court based its decision both on state law and TILA. The court found that allowing lenders to satisfy adverse TILA judgments by reducing their claims in other courts would frustrate the essential purpose of the Act. TILA’s civil liability provisions were designed to encourage consumers to bring actions against creditors and thereby promote compliance with the Act. If creditors were allowed to offset TILA judgments against pending collection claims, the court reasoned that debtors would be discouraged from bringing TILA claims. Id. at 1403.

The Seventh Circuit applied a similar reasoning when it held that a lender’s collection claim is not a compulsory counterclaim to a debtor’s TILA action. Valencia v. Anderson Brothers Ford, 617 F.2d 1278 (7th Cir.1980), reversed on other grounds, 452 U.S. 205, 101 S.Ct. 2266, 68 L.Ed.2d 783 (1981). In Valencia, the court noted that treating collection claims as compulsory counterclaims would undermine TILA’s object, because TILA plaintiffs could be faced with counterclaims exceeding their potential recovery under the Act. Id. at 1292. See Maddox v. Kentucky Finance Co., Inc., 736 F.2d 380, 383 (6th Cir.1984).

Therefore, there is at least some support for the position that TILA bars any lender set-off of a TILA judgment. Additionally, the Fifth Circuit has held that 15 U.S.C. § 1640 bars any set-off reducing the plaintiffs recovery of attorney’s fees and costs. Wright v. Tower Loan of Mississippi, 679 F.2d 437, 446 (5th Cir.1983); Plant v. Blazer Financial Services, Inc. of Georgia, 598 F.2d 1357, 1365 (5th Cir.1979).

Illinois Law

Even if we did not find that TILA completely or partially bars a set-off here, defendants have failed to demonstrate that Illinois law would permit such a set-off.

As indicated, defendants have relied on various cases, only two of which could have involved Illinois law: Meadows v. Radio Industries, Inc., 222 F.2d 347 (7th Cir. 1955), and State Bank of St. Charles v. Burr, 372 Ill. 114, 22 N.E.2d 941 (1939). As Viking concedes, Burr is not relevant. Memorandum of Defendant, Viking Dodge, Inc. at l. In Meadows, a plaintiff employee sued his employer for wrongful termination of his employment contract, for an injunction against collection of plaintiff’s notes, and for unpaid wages. The court held for the defendant, finding no breach, and stating that plaintiff could not collaterally attack the unimpeached judgment that defendants had already received elsewhere for the balance due on the notes. The court then added, “Inasmuch as the judgment [on the notes] exceeds the amount he claims due him for unpaid wages, he had no right to recover therefor. Consequently, there was no basis for relief.” Meadows, 222 F.2d at 349.

We fail to see how this comment supports defendants’ position that Illinois allows a judgment debtor to offset a judgment in an enforcement proceeding with an unadjudicated claim against the debtor. Meadows did not involve an enforcement proceeding, and the court did not allow the employee to prosecute his independent claim against the bank. As plaintiffs point out, Meadows could be read as supporting plaintiffs’ position, since the court did not permit the employee to collaterally attack the bank’s judgment.

Thus, defendants have cited no case law that supports their position. To the contrary, it appears that in Illinois, a judgment debtor cannot offset with an unadjudicated claim. In Dias, the court stated that most state courts do not permit such set-offs, because “[allowing the satisfaction of a judgment against a mere claim would undermine the judgment creditor’s right to have the judgment satisfied.” Dias, 732 F.2d at 1043, citing Piranesi Imports, Inc. v. Furniture Textiles and Wallcoverings, 31 A.D.2d 742, 296 N.Y.S.2d 922 (1969).

We note that Illinois enforcement proceeding statutes were derived in part from New York practice statutes. See Ill.Rev. Stat. ch. 110, ¶ 2-1402, Joint Committee Comments [1955], contained in Smith-Hurd Ill.Anno. at 862. Therefore, in the absence of Illinois case law, if we are to look at any other state’s practice, it would be logical to examine New York’s, and Piranesi supports a conclusion of no set-off.

Illinois also has a statute which specifically permits set-off of judgments between the same parties. Ill.Rev.Stat. ch. 110, ¶¶ 12-176-178. The statute says nothing about claims not reduced to judgment, and, therefore, implies that no such set-off is allowed. Moreover, even when a claim is reduced to judgment, Illinois does not permit attorney’s fees to be subject to set-off. Ill.Rev.Stat. ch. 110, ¶ 12-178(5).

Given the federal cases disapproving of set-off in TILA cases, the absence of Illinois law allowing such set-offs, and the existence of an Illinois statute allowing set-offs only for judgments, we cannot, sitting as a federal court interpreting state law, find permission for set-off of unadjudicated claims in Illinois’ enforcement procedure.

Moreover, and perhaps most importantly, it would also be inequitable to permit such a set-off here. While the Bank’s claim was not compulsory, it could have raised its claim as a set-off to plaintiffs’ TILA claim in the course of our adjudication. See Goldstein Oil Co. v. J.M. Sweeney Oil Co., No. 84 C 8571, Memorandum Op. at 3 (N.D. Ill. June 14, 1985) (Grady, J.) (permissive counterclaim need not have independent jurisdictional basis if asserted only as defensive set-off). The Bank could also have asserted its claim in state court. Instead, the Bank chose to take neither opportunity to have its claim adjudicated. Now, it (and Viking) is asking us to permit a set-off without any judicial finding that plaintiffs actually owe the Bank any money under the installment contract. Plaintiffs have not conceded liability, and we have no idea whether plaintiffs could successfully raise state defenses to the Bank’s claim. See Valencia, 617 F.2d at 1291 (debt counterclaim “can raise full range of state law contract issues”). It is true that we have already ruled on several state law issues, when we denied plaintiffs’ rescission claim in Count III of their TILA claim. See Olevares, Memorandum Op. at 10. It does not follow, however, that plaintiffs have exhausted all their defenses, and an enforcement proceeding is not the forum to make such a determination.

CONCLUSION

Defendants’ motion to quash is denied. A hearing is set for December 3, 1985, at 9:45 a.m. pursuant to plaintiffs’ citation to discover defendants’ assets.

      . 15 U.S.C. § 1601 et seq.

      . Thus, contrary to plaintiffs’ assertion, the bank’s claim was not a compulsory counterclaim under Fed.R.Civ.P. 13(a). In plaintiffs’ Memorandum in Opposition to Motions to Quash, plaintiffs cite a Fifth Circuit case and a 1973 Northern District of Illinois case to support their position that the claim was compulsory. Id. at 2-3. They fail to mention Valencia. We reprimanded plaintiffs at some length in our previous opinion for citing Valencia in support of its position on the issue of law on which Valencia was overruled, without indicating that the Supreme Court reversed Valencia on this point. Olevares, Memorandum Op. at 7-8. The Supreme Court, however, did not reverse Valencia on the issue of whether debt counterclaims are compulsory to TILA claims. Therefore, it appears that plaintiffs’ attorney has again violated Disciplinary Rule 7-106(b) of the Supreme Court of Illinois.

      . In Valencia, the Seventh Circuit declined to follow Plants ruling that lenders’ claims are compulsory to TILA claims. The court did not, however, comment on Plants separate holding concerning set-off of attorney’s fees.

      . The defendants cite Burr only because Corpus Juris Secundum cites the case for the proposition that a judgment debtor may under certain circumstances assert an unadjudicated claim as a set-off. 49 Corpus Juris Secundum, § 572 at n. 27 (1947). Corpus Juris Secundum also cites another Illinois case, Tegtmeyer v. Tegtmeyer, 321 Ill.App. 573, 53 N.E.2d 487 (1st Dist.1944) for the opposite view. Corpus Juris Secundum, § 572 at n. 33. Tegtmeyer is also inapposite.

      . The Bank makes a brief allusion to Ul.Rev. Stat. 110, ¶ 12-708 in its memorandum, without explaining why it thinks ¶ 12-708 supports its position. Memorandum in Support of Motion to Quash Citation to Discover Assets at 2. Paragraph 12-708 applies to garnishment proceedings, where the judgment creditor is attempting to collect assets of the debtor in a third party’s hands. The third party (often a bank) is defined as a "garnishee." Ill.Rev.Stat. ch. 110, ¶ 12-701, and ¶ 12-708 states that a garnishee is entitled to set off his claims against either the creditor or the debtor, before assets are taken out of his hands. In the absence of any authority, we fail to see how this statute applies in the instant suit, where plaintiffs are attempting to wrest assets away from the debtors themselves.


author: MYRON H. THOMPSON, District Judge.

text:
    Phillip PARADISE, Jr., individually and on behalf of the class similarly situated, Plaintiffs, United States of America, Plaintiff and Amicus Curiae, v. Byron PRESCOTT, as Director of the Alabama Department of Public Safety, etc., et al., Defendants, V.E. McClellan, et al., Defendant-Intervenors.
    Civ. A. No. 3561-N.
    United States District Court, M.D. Alabama, N.D.
    Nov. 22, 1985.

      Denis N. Balski, Montgomery, Ala., for plaintiffs.
    John C. Bell, U.S. Atty., Montgomery, Ala., Cynthia Drabek, Dept, of Justice, Washington, D.C., for the U.S.
    Charles A. Graddick, Richard N. Meadows, Rosa H. Davis, Montgomery, Ala., (for Personnel Director), Edward L. Hardin, Jr., Birmingham, Ala., Ray Acton, Ken Wallis, Montgomery, Ala., (Legal Adviser for the Governor), for defendants.
    James S. Ward, Birmingham, Ala., for defendant-intervenors.
   MYRON H. THOMPSON, District Judge.

This cause is now before the court on the plaintiffs’ September 3 and 5, 1985, petitions for interim attorney fees from the defendant-intervenors for time and expenses incurred by the plaintiffs in the recent appeal of this case. Paradise v. Prescott, 767 F.2d 1514 (11th Cir.1985). The Eleventh Circuit affirmed this court’s temporary requirement that in the future the Alabama Department of Public Safety promote one black trooper for each white trooper promoted; this court’s later suspension of that requirement; and this court’s approval of new promotion plans, developed by the department, that did not have adverse racial impact against black troopers. Id. See also Paradise v. Prescott, 585 F.Supp. 72 (M.D.Ala. 1983).

For the reasons stated by Judge Morris E. Lasker in Kirkland v. New York State Department of Correctional Services, 524 F.Supp. 1214 (S.D.N.Y.1981), this court is convinced that the defendant-intervenors here are “functionally plaintiffs” and, as plaintiffs, should not bear the opposing party’s attorney fees unless the claims presented by the defendant-intervenors were “frivolous,” “unreasonable,” or “without foundation.” Hughes v. Rowe, 449 U.S. 5, 14-16, 101 S.Ct. 173, 178-79, 66 L.Ed.2d 163 (1980); Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Today, the defendant-intervenors are white persons who sought to challenge a promotion scheme they honestly believed discriminated against them because of their race; tomorrow, the defendant-intervenors may very well be black persons seeking to do the same in another lawsuit. They should all be treated the same.

Accordingly, the court being of the opinion that the defendant-intervenors’ claims were not frivolous, unreasonable, or without foundation, it is ORDERED that the plaintiffs’ September 3 and 5, 1985, petitions for interim attorney fees from the defendant-intervenors are denied.

      The plaintiffs have already received interim attorney fees from the defendants.


author: JOHN W. OLIVER, Senior District Judge.

text:
    TRINITY METALS OF KANSAS CITY, INC., and Thomas W. Harker, Sr., Plaintiffs, v. COMMODITY FUTURES TRADING COMMISSION, Defendant.
    No. 85-1342-CV-W-1.
    United States District Court, W.D. Missouri, W.D.
    Nov. 26, 1985.

      Patrick K. McMonigle, Dysart, Taylor, Penner & Lay, Kansas City, Mo., Constantine John Gekas, Harvitt & Gekas, Chicago, Ill., for plaintiffs.
    Kenneth M. Raisler, Gen. Counsel, Whitney Adams, Dept. Gen. Counsel, Anne H. Wright, Commodity Futures Trading Com’n, Washington, D.C., for defendant.
   MEMORANDUM AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

JOHN W. OLIVER, Senior District Judge.

I.

Plaintiff filed a complaint for declaratory and injunctive relief on October 11, 1985. That complaint sought declarations that the provisions of Section 6c of the Commodity Exchange Act, as amended, 7 U.S.C. § 1 et seq., which permits the issuance of ex parte restraining orders, are unconstitutional; that the defendant be required to give notice of any application for a temporary restraining order should it seek such relief against the plaintiffs' at some time in the future; and that the defendant be enjoined from disclosing any information received pursuant to subpoena from plaintiffs and others to any third persons or agency.

That complaint made reference to an earlier, unsuccessful litigation in which plaintiff sought substantially similar relief in this judicial district and in the district court for the District of Columbia. See Trinity Metals Exchange, et al, v. CFTC, No. 85-W-083-6 (motion to quash subpoenas) and CFTC v. Harker, et al, 615 F.Supp. 420 (D.D.C.1985) (subpoena enforcement proceeding). On November 4, 1985, defendant Commission filed a motion to dismiss. On November 19, 1985, pursuant to leave of court hereby granted, defendant filed suggestions in opposition to that motion. We have carefully considered the pending motion and the suggestions in support and in opposition. For reasons that need be but briefly stated, defendant’s motion to dismiss will be granted.

II.

Plaintiffs’ brief in opposition to the Commission’s motion to dismiss concedes that “plaintiffs seek to prevent an unconstitutional ex parte injunction, not an adjudication of the legality of TMS’s deferred delivery contract” (Id. 3) and that the “question herein is whether plaintiffs should be given a prior opportunity to contest the constitutionality of an application for a ex parte order” (Id. 10). And on page 2 of that brief in opposition, plaintiffs state that they “welcome any action by the CFTC directed at adjudicating the legality of their contract.” (Id. 8).

The files and records of this Court show that on November 25, 1985, the Commission, together with the states of Florida, North Carolina, Missouri, Colorado, California, Montana and Maine, in Case No. 85-1482-CV-W-3, filed a complaint for temporary restraining order and preliminary and permanent injunctions and other equitable relief for violations of the Commodity Exchange Act, as amended, 7 U.S.C. § 1 et seq. (1982). The files and records of this Court also show that the Commission and the other plaintiffs in the newly-filed complaint did not seek an ex parte restraining order. Rather, plaintiffs filed only a motion for a temporary restraining order and other equitable relief.

That motion shows on its face that it was filed pursuant to Section 6c and Section 6d of the Act and Rule 65 of the Federal Rules of Civil Procedure. The files and records of this Court establish that the Commission and the other plaintiffs did not attempt, by affidavit or otherwise, to establish its entitlement to a temporary restraining order without notice. Plaintiffs in the new action did not file either affidavits or by verification of its complaint in which they contended that any irreparable injury, loss, or damage would result to the plaintiffs before the defendant or his attorney could be heard in opposition as required by Rule 65. Nor did plaintiffs’ counsel, in accordance with Rule 65, file any certificate in writing in regard to the efforts, if any, which may have been made to give notice to the adverse party or his counsel or to state any reasons supporting any claim that such notice should not be required.

Plaintiffs in this case have long contended that the Commission, in fact, knew of plaintiffs’ counsel’s representation of the plaintiffs and that they also knew of plaintiffs’ counsel’s position that Rule 65 entitled plaintiffs and his counsel to notice of any application that the Commission might make to obtain a temporary restraining order. See the correspondence attached as Exhibit “C” to plaintiffs’ memorandum in support of a temporary restraining order which plaintiffs filed in the pending case.

At long last the Commission implicitly concedes on the face of its motion for a temporary restraining order, preliminary injunction and ancillary equitable relief filed in connection with its newly-filed complaint that Rule 65 is applicable to any motion that the Commission files to obtain injunctive relief in a district court. The Commission’s obvious knowledge of both the adverse party and of counsel representing the adverse party would have made it virtually impossible for it to have obtained an ex parte restraining order under the circumstances of this case.

It is indeed difficult for this Court to understand why the Commission did not long ago acknowledge that it was under duty to comply with the express requirements of Rule 65. Such an acknowledgment would have likely satisfied plaintiffs’ counsel and the pending case and all of the useless time and expense incident thereto would have been avoided. We trust that the Commission in future cases will reconsider the cat and mouse policy they followed with plaintiffs’ counsel in this case in regard to the applicability of Rule 65 of the Federal Rules of Civil Procedure.

So far as the pending case is concerned, plaintiffs no longer need to seek declaratory relief. For all claims of unconstitutionality may properly be presented in the action recently filed by the Commission and the various state plaintiffs in Case No. 85-1482-CV-W-3. For the reasons stated above, it is

ORDERED that defendant’s motion to dismiss should be and the same is hereby granted.


author: ARCENEAUX, District Judge.

text:
    Bernell RAY and Amanda Ray v. LYKES BROS. STEAMSHIP CO., INC., et al. In the Matter of LYKES BROS. STEAMSHIP CO., INC., as Owner of the SEABEE BARGE LY-170, Petitioning For Exoneration From or Limitation of Liability.
    Civ. A. No. 85-1473.
    United States District Court, E.D. Louisiana.
    Dec. 13, 1985.

      Terriberry, Carroll & Yancey, William E. Wright, New Orleans, La., for Lykes Bros.
    Lemle, Kelleher, Kohlmeyer, Hunley, Moss & Frilot, Douglas F. Matthews, New Orleans, La., for Ryan-Walsh Stevedoring Co., Inc. and Employers Nat. Ins. Co.
    Joseph W. McKearn, New Orleans, La., for Bernell Ray and Amanda Ray.

      . The Court notes that recently, Lykes Bros, has moved for yet further reconsideration of this matter. The Court has considered the Lykes Bros.’ motion, recognizes that Lykes Bros, is a non-prevailing party, but believes that the Court’s oral ruling from the bench was correct and accordingly denies Lykes Bros.’ motion to re-reconsider.

   OPINION

ARCENEAUX, District Judge.

This court is called upon to determine whether a claim for the recovery of compensation payments made by a stevedore’s compensation insurer to an injured longshoreman pursuant to 33 U.S.C. § 904 constitutes a cause of action separate and apart from the longshoreman’s claim against the shipowner.

This Court firmly concludes that in the present posture of these proceedings they present only a “single claim.”

FACTS

The facts attendant to the present proceeding are well summarized by the Magistrate, to whom the motion to remand was originally referred, in his Findings and Recommendations filed in the record of Civil Action No. 85-1473 (the limitation proceeding; see below.) They are essentially these:

On February 26, 1985, plaintiffs Bernell Ray and Amanda Ray brought suit in the Civil District Court for the Parish of Orleans, State of Louisiana, for injuries sustained by Mr. Ray while working as a longshoreman aboard a lash barge, owned by Lykes Bros. Steamship Company (“Lykes Bros.”). There is no diversity of citzenship between the parties.

They alleged jurisdiction over the subject matter by virtue of general maritime law, 28 U.S.C. § 1333, and all applicable laws of the United States and the State of Louisiana, and demanded trial by jury.

Lykes Bros, removed the Rays’ state court proceeding to this Court currently pending as Civil Action No. 85-1452.

On April 4, 1985, pursuant to 46 U.S.C. § 183, et seq., and Rule F of the Supplemental Rules for Admiralty and Maritime Claims of the Federal Rules of Civil Procedure, Lykes Bros, filed a complaint in the Eastern District of Louisiana seeking to limit its liability in connection with the Rays’ claim, which resulted from what is clearly a single incident event. A surety bond was prepared in the amount of Ninety-Three Thousand, Six Hundred Eighty Dollars and Eighteen Cents ($93,680.18) which allegedly represents the value of the barge and its cargo.

Upon filing of the motion and posting of the bond, a restraining order was issued staying all proceedings other than in the limitation case.

Following a hearing on plaintiff's motion to remand the state case, the Magistrate, on July 29, 1985, recommended that the Rays’ civil action be remanded to state court and that the stay of that suit be dissolved so that plaintiffs might proceed with it upon remand.

Thereafter, on July 30, 1985, plaintiff’s employer, Ryan-Walsh Stevedoring Company (“Ryan-Walsh”) and its compensation insurer, Employers National Insurance Company (“Employers”) filed a pleading styled “claim” in the limitation proceeding, seeking recovery of “all of its damages.” Article II of the “claim” reflects these “damages” to be compensation and medical payments made or hereinafter required to be made to the plaintiff Bernell Ray. •

Initially, it was unclear as to whether Ryan-Walsh and Employers were attempting to exercise their statutory subrogation rights or whether they were attempting to assert an independent claim arising from the accident complained of by the Rays. Subsequently, Ryan-Walsh and Employers argued that they intended to do both, and that in any event, their claims included an independent claim in the nature of the claim asserted by a stevedore against a vessel owner in Federal Marine Terminals, Inc. v. Burnside Shipping Co., Ltd., 394 U.S. 404, 89 S.Ct. 1144, 22 L.Ed.2d 371 (1969).

Lykes Bros, timely appealed the Magistrate’s Findings and Recommendations to this Court for review. Ryan-Walsh and Employers joined in supporting the appeals.

On original hearing, this Court held that because the plaintiff-longshoreman’s employer, Ryan-Walsh, and its insurer had exerted a Burnside cause of action in the limitation proceeding, multiple claims were presented and the motion to remand should be denied.

Plaintiff-longshoreman has moved the Court to reconsider that determination, and the Court has done so. In passing, the Court takes note of Lykes Bros.’ opposition to that procedure; however, Lykes Bros.’ complaint that it is not aware of any procedural basis for a moving party who has not prevailed to file thereafter a motion to reconsider, is without merit. First, the Court is constrained to observe that it is generally a non-prevailing party who seeks reconsideration, and, second, a court should, nevertheless, reconsider any determination which, on the basis of additional briefing and later analysis, it finds inappropriate.

For reasons hereinafter set forth, the Court finds such circumstances present, GRANTS the motion to reconsider, and, on reconsideration, AFFIRMS the Magistrate’s recommendations, subject to the further requirements referred to hereinafter.

I.

THE LIMITATION PROCEEDING

Lykes Bros, is entitled to petition in admiralty for exoneration from or limitation of liability. Upon proper filing of the petition, “all claims and proceedings against the owner with respect to the matter in question shall cease.” 46 U.S.C. § 185. The claimants are required to make proof of their claims and to litigate their rights at admiralty, and may also contest the right of the shipowner to a limitation of liability as to some or all of the claims.

The plain language of 46 U.S.C. § 185 appears to give the shipowner an absolute right to localize proceedings in admiralty by petition for limitation. Notwithstanding this, the original, exclusive jurisdiction of the district court is modified by 28 U.S.C. § 1333 which grants jurisdiction, but also provides for the “saving to suitors in all cases all other remedies to which they are otherwise entitled.”

A tension exists between the two provisions where allowing the shipowner to force the claimants to litigate their claim in admiralty deprives the claimants of the jury trial they could have in their common law action.

The Limitation Act serves the obvious purpose of limiting the liability of shipowners, and also protecting the shipowner from the risk of inconsistent judgments arising from a multiplicity of actions, and enabling the admiralty court to equitably distribute a limited fund among a number of claimants. Maryland Casualty Co. v. Cushing, 347 U.S. 409, 74 S.Ct. 608, 98 L.Ed. 806 (1954); the Act was also designed to foster the growth of the shipping industry.

Only where there is a savings clause issue have courts deviated from the statutory scheme and allowed claimants to proceed outside admiralty. Thus, where the claimant’s right to a jury trial of his common law claims is at stake, two lines of cases have evolved where the issues of liability and damages are tried in state courts. One is where the claims are for less than the limitation fund or are made so by stipulation. E.g., Lake Tankers Corp, v. Henn, 354 U.S. 147, 77 S.Ct. 1269, 1 L.Ed.2d 1246 (1957). In such a case the “saving to suitors” clause may be served without risk of violence to the shipowner’s right to limited liability. The other instance is where there is a single claimant who by stipulation preserves the issues of the limits of liability to the admiralty court. E. g., Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520 (1931).

In the first situation it is unnecessary to utilize a concursus since the limitation fund is not being apportioned among competing claimants. There is, however, a need to determine the right to limitation— an issue reserved to the federal courts. See Petition of Red Star Barge Line, 160 F.2d 436 (2d Cir.) cert. denied, 331 U.S. 850, 67 S.Ct. 1741, 91 L.Ed. 1859 (1947). The courts have determined that in such latter cases, a claimant may pursue his common law remedies in state court provided he files a stipulation in the district court which concedes that all questions of limitation of liability are reserved for the admiralty court. Helena Marine Service, Inc. v. Sioux City, 564 F.2d 15, 18; (8th Cir. 1977), cert. denied, 435 U.S. 1006, 98 S.Ct. 1875, 56 L.Ed.2d 387 (1978); Petition of Humble Oil & Refining Co., 210 F.Supp. 638, 639 (S.D.Tex.1961), affd 311 F.2d 576 (5th Cir.1962).

This procedure protects the owner’s interest in limiting liability while preserving the claimant’s rights under the “saving to suitors” clause, including the right to a jury trial in state court.

II.

THE LONGSHORE AND HARBOR WORKERS’ COMPENSATION ACT

Section 33(h) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 933(h), provides that the compensation insurance carrier shall be subrogated to all rights of the employer under § 933 if it has assumed the payments of compensation to an injured employee.

Among the rights of the employer to which the carrier is subrogated is the right provided in § 33(b) of the Act, 33 U.S. § 933(b), for an assignment of an employee’s claim against a third-party to his employer in those instances where payments are received pursuant to a compensation awards.

Section 33(e) of the Act, 33 U.S.C. § 933(e) governs the distribution of the recovery when an employer or subrogated insurer institutes a § 33(b) action and specifically provides for reimbursement for all compensation and medical payments advanced.

When the employee himself sues the third-party tortfeasor, (either under 33 U.S.C. 933, or 33 U.S.C. 905(b) as is the case here) the courts have recognized a right of subrogation to the extent of payments made, even though there is no statutory provision like § 933(e), when payments are made without a formal award. The employer or its insurer are permitted to intervene in the employee’s suit to protect their rights, Peters v. North River Insurance Co., 764 F.2d 306 (5th Cir.1985); the Etna, 138 F.2d 37 (3rd Cir.1943). As the court stated in the Etna:

We find no intent indicated by the Act to take away from the employer who pays compensation without an award his right to reimbursement out of his employee’s recovery from third persons. On the contrary, we think that the intent and scheme of the Act requires that the employer’s right to subrogation for compensation payments made in the circumstance here shown be recognized wholly a part from and without regard for the assignment provided in § 33(b) of the Act.

138 F.2d at 41. [emphasis added]

An employer’s or insurance carrier’s claim for subrogation for compensation paid does not invoke the multiple claims rule requiring a concursus. The compensation claim is derivative of plaintiff’s claim. As to the plaintiff and the employer or insurer there is only one claim sought to be enforced against the third-party, that of the plaintiff. Peters, supra, 764 F.2d at 317. The employer or insurer is simply asserting its claim to that part of plaintiff’s recovery belonging to it. In this context, there is no need or mandate for a concursus. Petition of Humble Oil & Refining Co., supra, 210 F.Supp. at 640.

III.

BURNSIDE DOCTRINE

In Federal Marine Terminals, Inc. v. Burnside Shipping Co., supra, 394 U.S. 404, 89 S.Ct. 1144, 22 L.Ed.2d 371 (1969) the Supreme Court held that, while the employer’s liability under the Act was exclusive, the employer’s remedy of subrogation was not the exclusive means through which it might recover compensation benefits that it had paid to an injured (or, in the subject case, the representatives of a deceased) worker. Because of the particular fact situation in Burnside, the Court held that the employer was free to assert an independent cause of action against third parties. The cause of action was bottomed on the duty of care owed by a vessel to all who are lawfully on board, including stevedores.

However, the employer’s claim was allowed because in Illinois there was a $30,-000 ceiling on a plaintiffs’ recovery in a wrongful death suit, while the employer had expended some $70,000 in compensation payments. If the employer had been entitled to assert only a subrogation claim, the possible recovery would have been only $30,000.

Thus, in Burnside the stevedore-employer was accorded the right to seek to make itself whole. The ceiling on the plaintiff-longshoreman’s recovery, without a corresponding limitation on any “other claim” recovery by the stevedore-employer, is not present in this case. Should the limitation rights of the vessel owner become effective, and the payment fund be therefore limited, stevedore and employer would both be relegated to the same limitation (and limited) fund for recovery.

Thus, this Court holds that Bum-side has applicability in only a unique and singular situation: only where the compensation payments made are greater than limits imposed by law (or other similar factors) on a plaintiffs recovery would the independent cause of action established by Burnside be available to the employer (or his insurer, if subrogated).

Only if there is a shortfall, as in the rather unusual circumstances of the Burnside case, is there any necessity for the employer to resort to a common law claim for the excess above the subrogated amount.

Landon v. Lief Hoege & Co., 521 F.2d 756, 760 (2nd Cir.1975); Davillier v. CAVN Venezuelan Line, 407 F.Supp. 1234, 1238 (E.D.La.1976). (See also Peters, supra, 764 F.2d at 320).

IV.

Others factors support the Court’s conclusion that this is only a “single claim” case.

A bare statement of the rules of law must, in this instance, be also measured against the specific claims of the parties. The fault allegations in the “claim” filed by Ryan-Walsh and Employers in the limitation proceeding track verbatim the allegations of fault alleged by the plaintiff in his state court suit.

While Employers, Ryan-Walsh and Lykes Bros, all apparently assert that the bare announcement by the stevedore of a Burnside claim creates, a fortiori, a “multiple claim” circumstance which must be resolved in the bench-tried limitation proceeding, this Court refuses to accept such simplistic, mechanical application of the “multiple claims” rule — a rule which must here yield to the realities of the circumstances. In this case, the genesis of both the longshoreman’s third party claim and the stevedore’s alleged Burnside claim is the same accident; both are founded on the general maritime law of negligence. The scope of the respective duties is therefore the same. When this analysis is coupled with identical (indeed, practically verbatim) allegations of the respective wrongs supporting each, as is the case here, the claims, if not technically derivative, are so closely fact-bound together as to warrant their being considered as essentially but one.

Simply put, the Court believes it would not be “right and equitable under the circumstances” (See Langnes, supra, 282 U.S. at 541, 51 S.Ct. at 247) to permit essentially an intervening insurer to exert a maritime law-based Burnside claim, when the stated bases of that claim duplicate in to to, the allegations of fault asserted by the longshoreman-plaintiff in his maritime-negligence third party claim, where the result, (if not the purpose) is to deny the plaintiff a jury trial in state court.

The interests of the insurer are adequately preserved by virtue of the statutory lien which attaches to any proceeds yielded by an injured longshoreman’s third party damage claim.

The Court further notes that the interests of the shipowner would not be jeopardized by the course of action determined by the Court. Counsel for plaintiffs has declared in briefs that plaintiffs will consent to “waive any claims of res judicata relevant to the issue of limitation of liability based on any judgment in state court and to concede Lykes Bros.’ right to litigate all issues, including valuation, relating to limitation proceedings in this Court.” Thus, the limitation proceedings instituted here may proceed to conclusion, and Lykes Bros.’, right to seek and invoke its limitation of liability is unimpaired.

Accordingly, the appropriate stipulations having already been entered into the record of this proceeding, the Court will order that Civil Action 85-1452 (the removed case) be severed from Civil Action 85-1473, that Civil Action No. 85-1452 be remanded to the Civil District Court in and for the Parish of Orleans, Louisiana and that the stay issued in Civil Action 85-1473 be dissolved in order to permit plaintiffs to proceed with the remanded case.

The court retains jurisdiction in Civil Action 85-1473, the limitation proceeding, which will proceed in due course.

Judgment will be entered accordingly.

      . A review of the original removal petition indicates it may have originally been improper, since the claims presented were cognizable in state court. Federal court jurisdiction of a 33 U.S.C. § 905(b) claim is not exclusive and, further, the plaintiffs exerted a common law tort claim "saved” to them under 28 U.S.C. § 1333. Since the parties have treated the case as one remanded subsequent to the filing of the limitation procedure, and since the same decisional basis would be required in order to deal with the limitation-spawned stay of the state court proceeding, the court elects to reach the basic issues presented.

      . The Court on original hearing noted that the injured stevedore’s claim was accompanied by a claim on behalf of his wife for loss of society, but further held that in the light of the representations by counsel for plaintiffs that the spouse would subordinate her loss of society claim to those of her plaintiff-husband, the loss of society claim did not present a separate claim requiring a concursus proceeding in limitation. S & E Shipping Corp. v. Chesapeake & Ohio Railway Co., 678 F.2d 636, 644 (6th Cir.1982). In addition, it is clear that the subrogation claim is derivative of the plaintiffs claim and not separate from it. (See below).

      . Compare Article X of the petition in Civil Action 85-1452, the state court case, with Article IV of the Employers — Ryan-Walsh "claim” in Civil Action 85-1473, the limitation proceeding.

      . Indeed, the priority afforded such subrogated claim would "rank" any so-called Burnside recovery, as counsel have agreed in supplemental briefing requested by the Court.


text:
    George SQUILLACOTE, Martin M. Arlook, Louis V. Baldovin, Jr., Harold A. Boire, Michael M. Dunn, Arthur Eisenberg, Emil C. Farkas, Robert S. Fuchs, Bernard Gottfried, Roger W. Goubeaux, Thomas C. Hendrix, Peter W. Hirsch, Wilford W. Johansen, Bernard Levine, William T. Little, Thomas W. Seeler, Henry Shore, Daniel Silverman, Joseph H. Solien, Robert J. Wilson and Glenn A. Zipp, on their own behalf and on behalf of all persons similarly situated, Plaintiffs, v. The UNITED STATES of America, Defendant.
    Civ. A. Nos. 81-C-1553, 85-C-1567.
    United States District Court, E.D. Wisconsin.
    Dec. 17, 1985.

      Kevin M. Forde and Katrina Veerhusen, Kevin M. Forde, Ltd., Richard J. Prendergast, Richard J. Prendergast, Ltd., Chicago, Ill., for plaintiffs.
    Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., Judith F. Ledbetter and Arthur R. Goldberg, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

Plaintiffs commenced their original class action lawsuit alleging that members of the Senior Executive Service (“SES”) had been underpaid from July 13, 1979 through September 30, 1981. This court granted the government’s motion for summary judgment on all three counts. Squillacote v. United States, 562 F.Supp. 338 (E.D.Wis. 1983). The Seventh Circuit reversed this Court’s decision as to the second and third counts, holding that the plaintiffs were entitled to recover for the period running from October 1, 1979 until September 30, 1981. Squillacote v. United States, 739 F.2d 1208 (7th Cir.1984), reh. denied, 747 F.2d 432, cert. denied, — U.S. -, 105 S.Ct. 2021, 85 L.Ed.2d 302 (1985). The court of appeals remanded the case for proceedings consistent with its opinion, and on December 6, 1984, this Court entered judgment in favor of the plaintiffs. The parties disagree about the effect of the circuit court’s opinion as to two issues, and the plaintiffs’ counsel have applied for an award of attorneys’ fees and costs.

In addition, at a hearing held November 15, 1985, this Court certified a second class action involving the same dispute between the parties for the first three months of fiscal year 1982, Squillacote v. United States, No. 85-C-1567 (E.D.Wis., filed Nov. 15, 1985), (Squillacote II), and ordered that the second action be consolidated with the original action. {Squillacote I). Pursuant to the parties’ stipulation, the Court immediately entered judgment as to the first count of the Squillacote II complaint. Count II of that complaint involves the same disputed issues that are now before this court in Squillacote I, and the parties have agreed that the government shall not be required to respond to that complaint until the matters in dispute in Squillacote I have been fully litigated.

The parties have fully briefed the issues that are in dispute. They are: (1) whether class members who were in pay grades SES-1, SES-2, and SES-3 should have had their fiscal year 1981 pay frozen at what they should have been paid on September 30, 1980, regardless of what their scheduled rate of pay for fiscal year 1981 was, or whether their fiscal year 1981 pay should have been what their scheduled rate of pay was for 1981, subject to the limitation that such rate could not exceed that paid for Executive Schedule Level IV; and (2) whether sovereign immunity shields the government from an award to the plaintiffs of post-judgment interest from the date of this court’s December 6, 1984, judgment. Finally, plaintiffs’ counsel have presented the court with a detailed analysis of their fees and costs in this matter and the period for class members to comment on that application has expired. The court will decide the questions in the order they are presented.

BACK PAY FOR FISCAL YEAR 1981

The answer to this question is determined by the Seventh Circuit’s opinion in Squillacote I, 739 F.2d at 1208, and three resolutions passed by Congress during fiscal year 1981. Pub.L. No. 96-369, 94 Stat. 1351 (1980); Pub.L. No. 96-536, 94 Stat. 3166 (1980); Pub.L. No. 97-12, 95 Stat. 14 (1980). The parties disagree as to how these authorities answer the question presented.

In Squillacote I, the court of appeals held, among other things, that the resolutions listed above “were enacted during FY 1981 for the purpose of freezing federal employees’ salaries at rates payable on September 30, 1980.” 739 F.2d at 1219. The court also found that in fiscal years 1980 and 1981 the government had improperly capped plaintiffs’ pay at the lower rates paid for Executive Schedule Level V rather than at the higher rate payed for Executive Schedule Level IV. 739 F.2d at 1219. This court must determine if class members whose pay had not yet reached the Level IV cap as of September 30, 1980, were entitled to receive their scheduled increase in pay up until the point it hit the Level IV cap.

The government points to the Seventh Circuit’s language in Squillacote I that federal employees’ fiscal year 1981 salaries were to be frozen “at rates payable on September 30, 1980,” 739 F.2d at 1219, and argues that means that SES members are limited to what they should have been receiving as of that date. The government also claims that Congress intended to freeze salaries, and that allowing plaintiffs raises would have been contrary to this intent.

Plaintiffs argue that the matter is governed by the doctrine of res judicata and direct this court’s attention to that portion of the court of appeals’ decision stating “that plaintiffs’ salaries for FY 1981 were frozen at improper rates, to the extent that the plaintiffs’ salaries were frozen at Executive Schedule level V rates rather than at rates for Executive Schedule level IV,” 739 F.2d. at 1219, and the fact that this court’s judgment of December 6, 1984, contained similar language. The plaintiffs contend that the freeze at September 30, 1985, rates does not kick in until the class member has reached the Executive Schedule level IV ceiling. Thus, class members whose rates of pay in 1980 had not yet reached the cap would have been entitled to receive their scheduled 1981 raises up until the point the scheduled rate equalled the Executive Schedule level IV cap.

The controlling resolutions incorporate a House Resolution that froze SES fiscal year 1981 salaries at “the rate (or maximum rate, if higher) of salary or basic pay payable for such office or position for September 30, 1980....” H.R. 7593, § 306(a) (1980). The government argues that the phrase “or maximum rate, if higher” can only be interpreted to mean that no person can be paid more than his scheduled rate or the maximum rate if that person’s salary has already reached the limit. The government’s reading of the statute is unreasonable.

The plaintiffs argue that the question has already been conclusively decided and point out that the government’s position is inconsistent with its own previous payment practices — the Office of Personnel Management raised the salaries of certain SES members above that which they were receiving on September 30, 1980. More importantly, the plaintiffs correctly state that if Congress had merely intended to freeze salaries at whatever level the employee received on September 30 of 1980, then the reference to the maximum rate would have been superfluous. This court therefore finds that SES personnel were entitled to be paid their scheduled rates up to the Executive Schedule level IV cap.

POST-JUDGMENT INTEREST

Plaintiffs also seek to recover interest on this court’s December 6, 1984, judgment. Although equitable considerations favor plaintiffs’ position, the government points out that absent an express waiver of its sovereign immunity it is not liable for any post-judgment interest. Plaintiffs’ attempts to find such authority have been unsuccessful.

Plaintiffs’ contention that 28 U.S.C. § 1961 provides an independent waiver of immunity for post-judgment interest is unsupported by either that statute or case law. Arvin v. United States, 742 F.2d 1301 (11th Cir.1984); Holly v. Chasen, 639 F.2d 795 (D.C.Cir.), cert. denied, 454 U.S. 822, 102 S.Ct. 107, 70 L,Ed.2d 94 (1981). In each of those cases the courts of appeal held that 28 U.S.C. § 1961 failed to provide a waiver of the government’s immunity from the award of interest on attorneys’ fees.

In Arvin, the court expressly rejected plaintiffs’ proffered interpretation of 28 U.S.C. § 2516 as providing the necessary waiver of immunity for actions filed in district courts. 742 F.2d at 1304-5. Both parties agree that the plaintiffs would have been entitled to interest under that section had they obtained judgment from the court of claims or the Court of Appeals for the Federal Circuit. The plaintiffs, however, chose to file suit in this forum where there is no explicit waiver for similar judgments entered by a district court.

Because the plaintiffs failed to present this court with authority for the proposition that Congress explicitly waived governmental immunity from post-judgment interest in this court on this claim, the court is unable to award it.

ATTORNEYS’ FEES

Plaintiffs’ attorneys have presented this Court with their application for fees and expenses incurred in successfully prosecuting this action. The government takes no position on this question because any amount awarded will come from the class' recovery. Class members were given notice of the petition and an opportunity to respond to the request for fees and costs. Although 7,865 class members returned forms to the Office of Personnel Management verifying that they were entitled to backpay, only thirteen took the time to inform the court of their views on the question of attorneys’ fees. Petitioners request for $1,250,000 in attorneys’ fees and $9,379.64 in costs and expenses will be granted.

Six of the thirteen class members wrote to support petitioners’ application in the full amount. Five objected to the amount requested and suggested that, in any event, the government should be obligated to pay the fees. Two other class members objected only as to the amount, and one of those two stated he was so strongly opposed to the request that he would prefer to receive nothing himself rather than see it paid. Although the court can understand how someone unfamiliar with the going rates in the legal profession might view the request as out of line, a review of the relevant factors for determining an appropriate fee reveals that it is not.

The Seventh Circuit Court of Appeals recently addressed the question of an award of attorneys' fees and endorsed the method the Supreme Court used in Hensley v. Eckert, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In Lynch v. Milwaukee, 747 F.2d 423 (1984), the Court stated:

“... The initial step is to multiply the number of hours reasonably expended by a reasonable hourly rate. 103 S.Ct. at 1939. The resultant figure, which has often been referred to as the “lodestar” amount, may then be modified upward or downward, depending on the following considerations:
1. the time and labor required;
2. the novelty and difficulty of the questions;
3. the skill requisite to perform the legal service properly;
4. the preclusion of employment by the attorney due to acceptance of this case;
5. the customary fee;
6. whether the fee is fixed or contingent;
7. time limitations imposed by the client or the circumstances;
8. the amount involved and the results obtained;
9. the experience, reputation, and ability of the attorneys;
10. the “undesirability” of the case;
11. the nature and length of the professional relationship with the client; and
12. awards in similar cases.”
747 F.2d at 426, (footnote omitted) (citing Hensley v. Eckert as 103 S.Ct. at 1937 n. 3).

Petitioners’ time records and affidavits show that there was no unnecessary duplication of effort and that the time spent was of direct benefit to the class. Given the complexity and history of this case, the Court finds it reasonable that petitioner Forde has, and will have, devoted 687 hours to this case, and that petitioner Prendergast has, and will have, devoted 1,091 hours to this case. The same is true for the 952 hours of associate time and the 783 hours requested for law clerks.

The Court further finds that the requested rates of compensation in this matter are reasonable. Kevin M. Forde seeks reimbursement at the rate of $175 per hour and Richard J. Prendergast at the rate of $150 per hour. Petitioners seek compensation for associate work, principally done by Katrina Veerhusen, at the rate of $110 per hour, and law clerk time has been billed at a rate of $40 an hour.

The high-quality work of petitioners Forde and Prendergast has been recognized before, Will v. United States, 90 F.R.D. 336, 343 (N.D.Ill.1981), and was reflected in their efforts in this case. It is not necessary for this Court to list their impressive credentials or their past success at class action lawsuits. The requested rates reflect their normal hourly fees and are not out of line with rates attorneys of similar skill would charge. Katrina Veerhusen is an associate of Kevin M. Forde, Ltd. and also has had experience working on major class action lawsuits. Like Forde and Prendergast she is a former judicial clerk. Her billing rate of $110 is reasonable for this type of work and reflects her normal hourly fee. Finally, the Court finds that a rate of $40 per hour for law clerk time is reasonable.

• The Court must multiply the number of hours reasonably expended by the corresponding billing rates to obtain a “lodestar” amount. Calculation of the relevant numbers in the present case yields an amount of $419,840. Petitioners argue that this is an appropriate case for an upward modification of the lodestar and request an award of $1,250,000, roughly three times the lodestar.

The twelve factors listed above from Lynch, 747 F.2d at 426, are to be utilized in determining what adjustment, if any, should be made in the lodestar before awarding attorneys’ fees. They are merely guidelines, however, and are not always consistently applied. Ohio-Sealy Mattress Manufacturing Co. v. Sealy, Inc., 776 F.2d 646, 651, note 3 (7th Cir.1985). The Court should not make any adjustment if the lodestar already reflects those factors. October 21,1985, at p. 652. The list of twelve factors also includes related considerations. For instance, the time and labor required is reflected both in the amount of hours that make up the lodestar and in factor four, whether or not it precluded other employment. Factor five, the customary fee, is unavoidably related to factor twelve, awards in similar cases. The skill requisite to perform the legal service properly, factor three, is related to the novelty and difficulty of the questions, factor two.

Although the Court finds that each of the factors listed would tend to support petitioners’ application, the Court is espedaily persuaded by the successful outcome and the fact that this case was taken on a contingent basis. If the plaintiffs had lost, their attorneys would have been paid nothing. Plaintiffs unsuccessfully sought administrative resolution of their claims through the National Labor Relations Board and the Office of Personnel Management. Two associations of federal employees refused to bring the case. Nonetheless, petitioners agreed to take the case on a contingent basis with the fee, if any, to be set by the Court in the event of a successful outcome.

This Court’s view of the likelihood of success was reflected in an earlier opinion that granted summary judgment against petitioners’ clients. Squillacote v. United States, 562 F.Supp. 338 (E.D.Wis.1983). Despite that earlier setback petitioners successfully argued the class’ cause in the appellate courts. As a result of petitioners’ efforts in Squillacote I and Squillacote II the class will recover back pay and benefits approaching $40,000,000, Attorneys’ fees in the amount of $1,250,000 are reasonable especially when one considers that they might have received nothing for their efforts. A multiplier of three is appropriate in that it represents a relatively small percentage of the total recovery.

ORDER

IT IS ORDERED that petitioners' request for fees and costs is granted. The firm of Kevin M. Forde, Ltd., is awarded $697,250 in fees and $6,160.54 for costs and expenses. The firm of Richard J. Prendergast, Ltd. is awarded $552,750 in fees and $3,219.10 for costs and expenses.

IT IS FURTHER ORDERED that each class member is entitled to recover for fiscal year 1981 the difference between the salary received and the scheduled SES salary for that year up to the rate for level IV of the Executive Schedule.

IT IS FURTHER ORDERED that the class is not entitled to post-judgment interest as the government has not waived its sovereign immunity to such an award.

       PETITIONERS’ TIME THROUGH AUGUST 12, 1985
      Petitioner Hours Hourly Rate Lodestar
      Kevin M. Forde 627.00 $175.00 $109,725.00
      Richard J. Prendergast 1025.75 150.00 153,862.50
      Mary Anne Mason 19.00 110.00 2,090.00
      Katrina Veerhusen 721.75 110.00 79,392.50
      James Prendergast 7.50 110.00 825.00
      Joseph E. Tighe 13.50 110.00 1,485.00
      Law Clerks 642.75 40.00 25,710.00
      Total $373,090.00
      ESTIMATED FUTURE TIME REQUIRED TO PREPARE AND FILE VARIOUS MEMORANDA OF LAW
      Hours Hourly Rate Total
      Kevin M. Forde 35.00 $175.00 $ 6,125.00
      Richard J. Prendergast 40.00 150.00 6,000.00
      Associates 90.00 110.00 9,900.00
      Law Clerks 40.00 40.00 1,600.00
      $ 23,625.00
      ESTIMATED FUTURE TIME REQUIRED FOR ADMINISTRATIVE TASKS
      Hours Hourly Rate Total
      Kevin M. Forde 25.00 $175.00 $ 4,375.00
      Richard J. Prendergast 25.00 150.00 3,750.00
      Associates 100.00 110.00 11,000.00
      Law Clerks 100.00 40.00 4,000.00
      $ 23,125.00
      Total Lodestar $419,840.00