author: VanARTSDALEN, District Judge.

text:
    William JONES v. Captain James CLARK.
    Civ. A. No. 82-2437.
    United States District Court, E.D. Pennsylvania.
    Dec. 6, 1984.

      George S. Leone, Sarah W. Mitchell, Dechert, Price & Rhoads, Philadelphia, Pa., for plaintiff.
    David M. Donaldson, Office of Atty. Gen., Philadelphia, Pa., for defendant.
   MEMORANDUM OPINION AND ORDER

VanARTSDALEN, District Judge.

This action has been brought by a prisoner in a state prison for a deprivation of his constitutional rights. By memorandum and order dated January 3, 1983, I denied defendant’s motion for summary judgment. On July 3, 1984, the Supreme Court filed its opinion in Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Because the facts and contended constitutional deprivations in Hudson v. Palmer appeared similar to those in the present case, by order dated July 18, 1984,1 authorized either party to file a renewed motion for summary judgment. The defendant has filed such a motion, and appointed counsel for plaintiff has filed a reply brief.

In Hudson, the plaintiff had been convicted of a felony in state court and was serving a sentence of imprisonment in a state penal institution. The Supreme Court summarized the facts as follows:

On September 16, 1981, petitioner Hudson, an officer at the Correctional Center, with a fellow officer, conducted a “shakedown” search of respondent’s prison locker and cell for contraband. During the “shakedown,” the officers discovered a ripped pillowcase in a trashcan near respondent’s cell bunk. Charges against Palmer were instituted under the prison disciplinary procedures for destroying state property. After a hearing, Palmer was found guilty on the charge and was ordered to reimburse the State for the cost of the material destroyed; in addition, a reprimand was entered on his prison record.
Palmer subsequently brought this pro se action in United States District Court under 42 U.S.C. § 1983. Respondent claimed that Hudson had conducted the shakedown search of his cell and had brought a false charge against him solely to harass him, and that, in violation of his Fourteenth Amendment right not to be deprived of property without due process of law, Hudson had intentionally destroyed certain of his noncontraband personal property during the September 16 search.

104 S.Ct. at 3197. The Supreme Court upheld the district court’s summary .judgment in favor of the defendant. The Court held that the fourth amendment proscription against unreasonable searches does not apply to searches of prison cells, id. at 3198-202, and that the intentional deprivation of a prisoner’s property by a state employee did not violate the due process clause where there was an adequate post-deprivation state law remedy. Id. at 3202-05.

In the present case, the plaintiff is an inmate at the State Correctional Institution at Graterford, Pennsylvania (Graterford). Defendant is a captain of guards at Grater-ford and also was the chairman of the prison disciplinary hearing committee that heard charges against plaintiff. During an inspection of plaintiff’s prison cell, a torn bed sheet owned by the state, was found stuffed in a window of the cell. As a result of this discovery, plaintiff. was charged with a Class I misconduct for possession of contraband (the torn sheet) and destruction of state property. The defendant was found guilty of the charges, assessed $6.40 for the cost of the sheet, and given an official reprimand.

The parties are in dispute as to what transpired at the disciplinary hearing. Plaintiff, in his affidavit asserts:

[Defendant Clark informed me that I had to pay for the mentioned bed sheet at a cost of $6.40. And I refused. Thereafter, defendant Clark threatened to freez [sic] my inmate account; and if I attempted to open my mouth and say anything else before the hearing was over I would be sent to R.H.U. (the hole). Then I was furthered [sic] threatened by Clark to sign a cash slips [sic] releasing $6.40 from my account to pay for the bed sheet or else be placed in the hole. It was not explained to me where this money would go.

Plaintiff in his complaint avers that, because of defendant’s threats, he did sign papers placed before him authorizing that $6.40 be released from his prison account to pay the assessment.

The defendant has offered his own affidavit as well as affidavits of other members of the disciplinary hearing committee. Each states that plaintiff was afforded an opportunity to make a statement and present a defense at the hearing but did not do so. They further assert that, upon being informed of the committee’s decision, plaintiff refused to pay for the sheet and was told that the proper amount could be removed from plaintiff’s account without his consent. Plaintiff allegedly then became unruly and was threatened with further disciplinary proceedings if he did not conduct himself in an acceptable manner. Captain Clark specifically denies threatening plaintiff.

In a section 1983 action, the initial inquiry must focus on whether two essential elements are present: “(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 585, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981). It is well established that prison officials acting in their official capacities are acting under color of state law. Id. at 535-36, 101 S.Ct. at 1912-13. The first element of a section 1983 claim, therefore, is satisfied.

With respect to the second element, Jones claims that his right to due process has been violated. The fourteenth amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § l. In order to make out a valid due process claim, a plaintiff initially must establish three elements: (1) the existence of a protected life, liberty or property interest; (2) a deprivation of that protected interest; and (3) state action effecting the deprivation of the protected interest. See Parratt v. Taylor, 451 U.S. at 536-37, 101 S.Ct. at 1913-14.

In the present case, the state action requirement is clearly met. Defendant acted in his official capacity as a state prison employee in the alleged deprivations. Just as such action is under color of state law for purposes of section 1983 liability, it is state action for purposes of the due process clause. Id. at 536, 101 S.Ct. at 1913. See generally Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982); Lugar v. Edmunson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (§ 1983 “under color of state law” is generally coextensive with 14th amendment “state action”).

It is less clear precisely what protected interests are at stake. Clearly the plaintiff has a protected property interest in the $6.40 taken out of his prison account. The mere fact that the state mandates a disciplinary hearing before the money can be taken suggests a protected property interest. Cf. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (under same Pennsylvania regulations, prisoners have protected liberty interest in remaining in the general prison population). The state does not contest that a valid property interest exists. Rather its defense is based on the adequacy of the process provided and of postdeprivation process.

Plaintiff alleges threats to place him in “the hole” if he refused to cooperate and authorize forfeiture of $6.40. Although transferring plaintiff to disciplinary or administrative segregation without due process would infringe upon a recognized liberty interest, see Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), Jones, in fact, was never transferred to any such segregated cell. Thus, plaintiff was not deprived of any liberty interest.

The case boils down to a simple deprivation of property, $6.40, by a prison official. A protected property interest having been established, the issue becomes what process is due. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153, 71 L.Ed.2d 265 (1982); Mathews v. Eldridge, 424 U.S. 319, 332-35, 96 S.Ct. 893, 901-03, 47 L.Ed.2d 18 (1976). In Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Supreme Court held that intentional deprivations of property by state employees did not deny due process as long as the state provided adequate postdeprivation remedies. At first look, Hudson appears to establish that there is no due process violation in the present case. Closer examination, however, reveals that the differences and not the similarities between this case and Hudson are dispositive of this summary judgment motion.

Hudson was decided upon the basis of the reasoning in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Parratt v. Taylor, the Court held that negligent deprivation of property by a state employee did not violate due process as long as the state provided an adequate postdeprivation remedy. The Court reasoned:

In such a case, the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur. It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.... Indeed, in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation.

451 U.S. at 541, 101 S.Ct. at 1916. Because there is no way for the state to adequately protect against negligent deprivation of property, the Court held that due process was satisfied by providing a meaningful postdeprivation remedy.

In Hudson v. Palmer the rule of Parratt v. Taylor was expanded to encompass intentional deprivations of property. The Court found the reasoning of Parratt v. Taylor equally applicable to intentional deprivations.

The underlying rationale of Parratt is that when deprivations of property are effected through random and unauthorized conduct of a state employee, prede-privation procedures are simply “impracticable” since the state cannot know when such deprivations will occur. We can discern no logical distinction between negligent and intentional deprivations of property insofar as the “practicability” of affording predeprivation process is concerned. The State can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct. Arguably, intentional acts are even more difficult to anticipate because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signalling his intent.
If negligent deprivations of property do not violate the Due Process Clause because predeprivation process is impracticable, it follows that intentional deprivations do not violate that Clause provided, of course, that adequate state postde-privation remedies are available. Accordingly, we hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available.

Hudson v. Palmer, 104 S.Ct. at 3203-04.

In Hudson a prison official had conducted a shakedown search of the prisoner’s cell and had found a torn sheet. As in the present case, a disciplinary hearing was conducted and the prisoner was ordered to reimburse the state for the cost of the sheet. Unlike the present case, there was no allegation in Hudson of a deficiency in the disciplinary proceedings. Rather the prisoner’s due process claim was founded on the guard’s alleged destruction of the prisoner’s private property in his cell during the shakedown search. The guard’s alleged destruction of the prisoner’s property in his cell was the type of “random and unauthorized intentional conduct” that the state could not be expected to anticipate and prevent.

In the present case, the alleged deprivation was not by means of random and unauthorized intentional conduct. Instead, it occurred pursuant to an official prison disciplinary proceeding. Deprivations of property by means of unlawfully conducted state administrative proceedings do not fall under the rule of Parratt v. Taylor that an adequate postdeprivation remedy satisfies due process. The state cannot shirk responsibility for ensuring that its administrative proceedings satisfy due process.

In Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982), the Supreme Court held that the rule of Parratt v. Taylor does not apply when a person is deprived of a property interest pursuant to “established state procedure.” In that case, Logan was deprived of a claim for handicap discrimination by a state commission’s failure to schedule a hearing within the time limit prescribed by law. The Illinois Supreme Court had held that his claim was barred despite his lack of fault in the hearing not being conducted. Logan, 455 U.S. at 427-28, 102 S.Ct. at 1153-54. The United States Supreme Court held that Logan had been deprived of his claim without due process of law and directed the state to consider his claim on its merits. The Court rejected defendant’s argument that Logan should be limited to tort remedies against the state under the rule of Parratt v. Taylor. It held that “absent ‘the necessity of quick action by the State or the impracticability of providing any predeprivation process,’ a postdeprivation hearing here would be constitutionally inadequate.” Logan, 455 U.S. at 436, 102 S.Ct. at 1158 (quoting Parratt v. Taylor, 451 U.S. at 539, 101 S.Ct. at 1915).

In the present case the alleged deprivation without due process took place at the predeprivation hearing itself. Under such circumstances, it cannot be said that a pre-deprivation hearing would be impractical.

Having concluded that Parratt v. Taylor and Hudson v. Palmer do not establish that due process was satisfied, the issue remains: what process was due? Before a person can be deprived of a protected life, liberty or property interest, the state must provide at least some form of notice and an opportunity for hearing. Logan v. Zimmerman Brush Co., 455 U.S. at 428, 102 S.Ct. at 1153. The timing and nature of the hearing depends “on appropriate accommodation of the competing interests involved.” Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 739, 42 L.Ed.2d 725 (1975). The competing interests include “the importance of the private interest and the length or finality of the deprivation, ... the likelihood of governmental error, ... .and the magnitude of the governmental interests involved.” Logan, 455 U.S. at 434, 102 S.Ct. at 1157 (citations omitted).

The government has a substantial interest in maintaining prison discipline and should be afforded a great degree of discretion in managing prisons. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Despite this strong governmental interest, and despite the relatively insignificant property interest at stake, $6.40, it is clear that due process requires at least an opportunity to be heard. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

In this case a crucial factual issue is in dispute precluding summary judgment: whether defendant’s alleged threats deprived plaintiff of any opportunity whatsoever to be heard at his disciplinary hearing. A properly conducted prison disciplinary hearing generally satisfies due process, and it is therefore inappropriate for a federal court to review its action. Pollard v. Baskerville, 481 F.Supp. 1157 (E.D.Va.1979), aff'd, 620 F.2d 294 (4th Cir.1980); Jordan v. Robinson, 464 F.Supp. 223, 227 (W.D.Pa.1979). When such a disciplinary committee violates due process, however, section 1983 provides the aggrieved prisoner with a remedy in federal court. Quick v. Jones, 754 F.2d 1521 (9th Cir.1985); United States ex rel. Smith v. Robinson, 495 F.Supp. 696 (E.D.Pa.1980). As the law stands, there is no requirement that a section 1983 plaintiff exhaust state remedies before bringing suit. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961); see also Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982).

Parratt v. Taylor and Hudson v. Palmer dictate a hands off approach to section 1983 prisoner complaints concerning deprivations of property, permitting postdeprivation remedies to satisfy due process as long as the state cannot be expected to anticipate and prevent random and unauthorized negligent and intentional deprivations of property. These decisions, however, must be reconciled with the Court’s holdings that there is no requirement of exhaustion of state law claims before conduct can be characterized as “under color of state law” and thus serve as the basis for a section 1983 claim. Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Parratt and Hudson also must be reconciled with the Court’s repeated holdings that prisoners retain some constitutional rights, including the right to due process, e.g., Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

An assessment of the issue presented in this case reveals that the reasoning of Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), and of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), is more pertinent than that of Par-ratt and Hudson. If the state deprives a person of property unlawfully in the process of the very hearing purporting to grant due process, the due process clause is violated. To suggest that a postdeprivation remedy is adequate protection is to deny the effect of section 1983 as an independent federally created remedy for violations of constitutional rights. Cf. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). To grant summary judgment for defendant would essentially be to hold that section 1983 does not provide a remedy for prisoners’ rights not to be deprived of property without due process. Neither Parratt nor Hudson suggests any basis for such a holding.

Moreover, I am not satisfied that the plaintiff has an adequate state law postde-privation remedy that could potentially satisfy due process. Plaintiff signed, albeit allegedly under duress, a release forfeiting his right to the $6.40 pursuant to a duly authorized proceeding before state officials. I am not at all certain that plaintiff could convince a state court under any circumstances to void the decision of the disciplinary committee. The defendant has cited no authority for a state court directly to review the action of the disciplinary committee. Cf. Cohen v. City of Philadelphia, 736 F.2d 81 (3d Cir.1984). This is not a case in which the plaintiff simply seeks review of a decision with which he is unhappy. Cf. Jordan v. Robinson, 464 F.Supp. 223 (W.D.Pa.1979). The plaintiff’s allegations, if true, could establish that he was given no opportunity at all to present a defense.

Substantial issues of fact remain, precluding entry of summary judgment. Defendant’s motion for summary judgment will be denied.

      . This case does not present any violation of specifically protected constitutional rights incorporated into the fourteenth amendment, such as the eighth amendment protection against cruel and unusual punishment. Rather, it presents a simple alleged violation of the due process clause itself: a deprivation of life, liberty or property without due process of law. See generally Parratt v. Taylor, 451 U.S. at 536, 101 S.Ct. at 1913.

      . Neither side has briefed the issue whether the reprimand entered against Jones deprives him of a protected liberty interest. Cf. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (prisoners have protected liberty interest in retaining “good time credits”). The plaintiff in Hudson v. Palmer, like Jones, received a reprimand and the Supreme Court did not even mention it as a possible liberty interest in affirming the district court’s award of summary judgment for the defendant. 104 S.Ct. at 3196.


source: Caselaw Access Project

author: BUA, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Richard JOHNSON, Defendant.
    No. 84 C 10066.
    United States District Court, N.D. Illinois, E.D.
    Jan. 7, 1985.

      Canella Henrichs, Asst. U.S. Atty., Chicago, Ill., on behalf of plaintiff U.S. Government.
    David C. Thomas, Chicago, Ill., on behalf of defendant Richard Johnson.
   MEMORANDUM AND ORDER

BUA, District Judge.

Before the Court is defendant’s motion, pursuant to 28 U.S.C. § 2255, the Fifth and Sixth Amendments to the United States Constitution, and Fed.R.Crim.P. 32, to vacate the sentence imposed by the Court on December 22, 1983, to allow the defendant access to the presentence investigation report for the purpose of correcting numerous errors and misstatements therein, and setting this matter for a new sentencing hearing in accordance with the terms of Rule 32. For the reasons stated herein, defendant’s motion to vacate his sentence is denied.

I. FACTS

This habeas corpus petition challenges defendant’s sentence, imposed after he pled guilty to two counts charging him with mail fraud in violation of 18 U.S.C. § 1341. Defendant Richard Johnson pled guilty on November 17, 1983 to two counts of drawing up 125 fraudulent loan contracts out of a potential number in excess of 1,100 loan contracts. The amount advanced on the 125 fraudulent loan contracts was in excess of $135,000. The company defrauded was Walter E. Heller & Company. Heller indicated that its loss in this case is $919,000.

The presentence report indicated that defendant was previously arrested eight times and served one year in a pretrial diversion program for bank fraud and embezzlement. The report also indicated that defendant was convicted of contempt of court for which he served ten days in jail. Finally, the report indicated that Heller claimed its loss to be $919,000.

At the sentencing proceeding, the defense counsel referred to the presentence report several times. He mentioned the report when describing the situation of the co-defendant Vicky Lynn Johnson. He complimented the U.S. Probation Officer for a thorough report. He referred to the report when he asked for leniency for the defendant in light of the fact that the victim is a corporation. Finally, he referred to the report when he questioned the accuracy of Heller’s claimed $919,000 loss.

The defendant made a short statement saying that he was sorry about what he had done. The government then raised an incident not contained in the presentence report. The incident involved an apparent fraudulent loan. However, in response to the defense counsel’s objections regarding this incident, the Court informed the defense counsel that this “new development does not add to or detract from the court’s evaluation of what the proper sentence in this case will be in connection with Mr. Johnson’s case.”

The government recommended “substantial incarceration.” The Court sentenced Johnson to three years imprisonment on Count I to be followed by three years probation on Count II. In addition, defendant was fined the maximum fine of one thousand dollars on each count. During the sentencing hearing, the Court made these comments:

The court has always adhered to the view in most cases that everyone is entitled to a second chance. Mr. Johnson had his chance. He had his second chance. And he proved to the court and apparently to the government that he is not a proper candidate for probation. Albeit he did plead guilty, I also agree with the government Mr. Johnson shows utterly no remorse whatever for his actions. I think to grant probation in Mr. Johnson’s case would be a mockery. I don’t know how else to characterize it. Not only did he engage in this scheme after he had been treated with compassion by the U.S. Attorney and after the court had treated him compassionately, he involved his family members, and that requires some period of incarceration in the court’s humble opinion.

Defendant asserts that the presentence report contains a laundry list of previous arrests without explanation which tends to unjustly portray him as a disruptive person with an extensive criminal background. He also argues that Heller’s claimed loss of $919,000 contained in the report was factually inaccurate, and that the report does not mention that the entire $135,000 loss from the 125 fraudulent loan contracts was paid back to Heller.

Defendant makes two arguments in this habeas corpus petition: first, that the Court failed to assure him access to his presentence report and an opportunity to dispute material factual inaccuracies contained in the report, and second, that the Court unknowingly relied on that false information in passing sentence.

II. DISCUSSION

Convicted defendants, including those who plead guilty, have a due process right to a fair sentencing procedure which includes the right to be sentenced on the basis of accurate information. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); United States ex rel. Welch v. Lane, 738 F.2d 863, 864 (7th Cir.1984). A sentence must be set aside where the defendant can demonstrate that false information formed part of the basis for the sentence. The defendant must show first, that the information before the sentencing court was false, and, second, that the court relied on false information in passing sentence. United States v. Harris, 558 F.2d 366, 375 (7th Cir.1977).

Several provisions of Rule 32(c) of the Federal Rules of Criminal Procedure are intended to protect that due process right by ensuring that the sentence is fair and based on accurate information. Changes amending this rule with respect to presen-tence investigations became effective August 1, 1983. Three of the amended subsections clarify considerably the role of the sentencing judge in assuring that the defendant and defense counsel have a meaningful opportunity to review the presen-tence report and to contest alleged factual inaccuracies. These sections read as follows:

(a) Sentence.
(1) Imposition of Sentence. Sentence shall be imposed without unreasonable delay. Before imposing sentence the court shall
(A) determine that the defendant and his counsel have had the opportunity to read and discuss the presentence investigation report ...;
* # * * * $
(c) Presentence Investigation.
* * # * Sft
(3) Disclosure.
(A) At a reasonable time before imposing sentence the court shall permit the defendant and his counsel to read the report of the presentence investigation.... The court shall afford the defendant and his counsel an opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it.
* * * ^ * ‡
(D) If the comments of the defendant and his counsel or testimony or other information introduced by them allege any factual inaccuracy in the presen-tence report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission.

Recently, the Seventh Circuit Court of Appeals interpreted these amendments to Rule 32 to require a specific procedure by the district court during the sentencing hearing. United States v. Rone, 743 F.2d 1169 (7th Cir.1984). In response to defendant’s appeal of his sentence on the basis of factual inaccuracies in the presentence report, the Seventh Circuit in Rone said:

The district court at the sentencing hearing need directly ask the defendant only three questions — whether he or she has had an opportunity to read the report, whether the defendant and defense counsel have discussed the report and whether the defendant wishes to challenge any facts in the report.

Id. at 1174. The court in Rone made it clear that the sentencing judge relied on the factual inaccuracy which the defendant did not have an opportunity to challenge. Id.

Defendant here argues that Rone requires the Court to vacate his previous sentence because he was not given an opportunity to correct numerous errors and factual inaccuracies contained in the pre-sentence report. The government counters that Rone does not apply retroactively to this case and that the Court did not rely upon alleged inaccurate information contained in the report when it sentenced the defendant. In defendant’s reply, he states that: (1) Rone should apply retroactively; (2) Rone is applicable to a § 2255 petition; and (3) the Court did rely on inaccurate information. In addition to these three issues, the Court will consider a fourth issue: whether defendant waived his right to challenge his sentence based on the Court’s failure to comply with Rule 32.

1. Jurisdiction Under 28 U.S.C. § 2255

The government argues that the Court has no jurisdiction to hear a § 2255 petition which is based solely on a technical failure to comply with Rule 32. It reasons that a technical failure to comply with the Rule does not rise to the level of a jurisdictional or a constitutional error, and only those errors are cognizable under § 2255. The defendant counters that the Rule 32 procedure is fundamental to the vindication of his due process right not to be sentenced on false information contained, in the pre-sentence report. Therefore, he concludes that a failure to comply with the Rule’s procedure is a constitutional error cognizable under § 2255.

Under § 2255, the sentencing court is authorized to discharge or resentence a defendant if it concludes that it “was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Unless the § 2255 claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack remains far more limited. Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 3044 n. 10, 49 L.Ed.2d 1067 (1976). The Supreme Court has held that an error of law does not provide a basis for collateral attack unless the claimed error constituted “a fundamental defect which inherently results in a complete miscarriage of justice.” Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).

In United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), the Supreme Court held that a violation of Rule 11 of the Federal Rules of Criminal Procedure will support a collateral attack on a conviction based on a guilty plea only when there is a constitutional error or a showing of special prejudice to the defendant. Id. at 783, 99 S.Ct. at 2087. In denying § 2255 relief, the Court in Timmreck said: “We decide only that such collateral relief is not available when all that is shown is a failure to comply with the formal requirements of the Rule.” Id. at 785, 99 S.Ct. at 2088. The government urges this Court to interpret Timmreck and United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) as barring § 2255 jurisdiction here since defendant alleged only a technical violation of Rule 32.

The Court declines to interpret Timmreck and Addonizio as broadly as the government suggests. Where, as here, the technical violation of a Federal Rule of Criminal Procedure may lead to a constitutional error, i.e., sentencing on the basis of false information, the Court finds it inappropriate to deny the defendant § 2255 jurisdiction. However, the Court’s finding does not mean that § 2255 relief is appropriate on the sole basis of a technical violation of the Rule. See infra Section 4.

2. § 2255 Waiver

Assuming, as the Court has, that it has jurisdiction to hear this § 2255 petition, the next issue is whether the defendant has waived the technical violation of Rule 32 and the resulting alleged constitutional error by failing to raise it on a direct appeal. The Court notes that the defendant discussed some factual inaccuracies in his Rule 35 motion to vacate the sentence, which the Court denied. The defendant offers no explanation for failing to raise on direct appeal all of the factual inaccuracies which he claims are contained in the pre-sentence report. The government argues that Rone is not applicable here because that case involved an appeal and the defendant never appealed in this case.

A collateral challenge may not substitute for an appeal. United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). When a criminal defendant fails to appeal an issue he has pressed at trial, and then later seeks to raise that issue in a § 2255 proceeding, he makes a collateral challenge as an attempted substitute for appeal. Norris v. United States, 687 F.2d 899, 903 (7th Cir.1982). Therefore, to obtain collateral relief based on trial errors for which no direct appeal is made, a defendant must show both (1) “cause” excusing his procedural default, and (2) “actual prejudice” resulting from the errors of which he complains. United States v. Frady, supra, 456 U.S. at 168, 102 S.Ct. at 1594; Norris v. United States, supra, 687 F.2d at 903.

Both Frady and Norris involve a waiver of trial errors, which are the bases for collateral attack. In the present case, defendant alleges a failure of the Court to comply with Rule 32 and a resulting sentencing based on false information contained in the presentence report. The defendant’s burden in Frady is that of “showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” 456 U.S. at 170, 102 S.Ct. at 1596. In Norris, defendant failed to show good cause because he gave “no reason for not complaining about the trial judge’s denial of his photo-identification claim, and about the judge’s and jury’s alleged prejudice against him, in his direct appeal from conviction.” 687 F.2d at 904.

Applying the cause and prejudice test for waiver to the present case, the Court distinguishes trial errors in Frady and Norris from the error alleged here. While a trial error is usually known at trial or shortly thereafter, an error in a presen-tence report which defendant alleges he never saw or had an opportunity to see might remain unknown to the defendant long after both sentencing and the time for appeal. In light of the following distinction, the Court finds it difficult to find waiver where a Rule 32 violation has been alleged and where there is no evidence that defendant saw the presentence report (in order to discover the factual inaccuracies claimed to be waived). Therefore, in the present case, defendant’s showing of cause arises out of his lack of opportunity to see the presentence report in order to discover the factual inaccuracies.

A similar analysis applies to the showing of prejudice required to avoid waiver. An incorrect jury instruction or an incorrect evidentiary ruling might have little prejudicial effect when set against all of the evidence and testimony produced during a trial. However, factual inaccuracies contained in a presentence report which defendant did not see may have a greater prejudicial effect during a sentencing proceeding.

The only way to determine the actual prejudice of such factual inaccuracies in a presentence report is to examine whether the sentencing judge relied on them. Since it will make this determination later in this opinion when it interprets the requirements of Rone, the Court will assume that the alleged factual inaccuracies in the presen-tence report could have worked to defendant’s actual and substantial disadvantage in the sentencing hearing. Therefore, in the present case, the Court finds that the defendant did not waive the alleged factual inaccuracies in his presentence report when he failed to raise them on direct appeal.

3. Retroactivity of U.S. v. Rone

The government argues that Rone should not be applied to review the defendant’s sentencing since Rone was decided after the sentencing. The defendant argues that Rone is an elucidation of the 1983 amendments to Rule 32 and therefore Rone should be applied retroactively. In deciding to apply Rone to this case, the Court finds the reasoning to be persuasive in Landahl v. PPG Industries, Inc., 746 F.2d 1312 (7th Cir.1984).

The general rule is that a federal court must apply the law in effect at the time it adjudicates the claim. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 486 n. 16, 101 S.Ct. 2870, 2879 n. 16, 69 L.Ed.2d 784 (1981). In order to determine that application of the general rule is inappropriate, the court must find that three factors have been met. Chevron Oil Company v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). In Landahl, the Seventh Circuit Court of Appeals found that the three factors had not been met. First, the Seventh Circuit found that the case to be applied retroactively “represented a clarification of the law, not a ‘clean break’ with past precedent.” Supra, at 1315. In the present case, Rone also represents a clarification and interpretation of the 1983 amendments to Rule 32 and is not a break with any contrary past precedent.

Second, the Seventh Circuit found that retroactive application of the case in question would promote uniformity in that area of the law, id., at 1315, and therefore retroactive application would further the operation of the rule in question. Chevron Oil Company v. Huson, supra, 404 U.S. at 106-07, 92 S.Ct. at 355. In the present case, Rone promotes uniform application of Rule 32 and its efficient operation because the Seventh Circuit attempts to simplify the procedure for complying with Rule 32. Third, the Seventh Circuit in Landahl found no inequity which would be caused by retroactive application. Supra, at 1316. In the present case, the government would suffer no inequity from retroactive application of Rone and the defendant could suffer a great deal of harm if Rone was not applied retroactively. Therefore, since it finds that the government has met none of the three Chevron factors, the Court holds that Rone should be applied retroactively to this case.

4. Rone’s Application to the Alleged Rule 32 Violation

The defendant argues that a technical violation of Rule 32 requires him to be resentenced according to the procedure set out in Rone. He reasons that it is impossible for the Court to determine whether it relied on factually inaccurate information unless the defendant has an opportunity to see the presentence report and identify the inaccurate information. The government counters that it can be inferred from the record of the sentencing proceeding that the Court did not rely on any of the allegedly inaccurate information and therefore the defendant is not entitled to a new sentencing hearing.

Rule 32 specifically requires that the defendant and defense counsel shall be permitted to read the report at a reasonable time before the imposition of sentence. U.S. v. Rone, 743 F.2d 1169, 1173 (7th Cir.1984). In Rone, the Seventh Circuit Court of Appeals reasoned that the district court has “an affirmative duty to ensure that the defendant has had an opportunity to read the report a reasonable time before the hearing is held.” Id. at 1174. This affirmative duty requires the district court to establish a clear record so that compliance with Rule 32 can be determined. Id. To this end, the Seventh Circuit proposed the simple three-question procedure to be followed by the district court to determine whether the defendant had access to the presentence report a reasonable time before the sentencing hearing. Id.

A broad interpretation of Rone’s three-question procedure implies that failure to comply with the new procedure requires a new sentencing hearing regardless of whether the information contained in the presentence report is true or false. However, the Seventh Circuit did not decide Rone in a vacuum; rather, the case contained factual findings which must be read along with Rone’s procedural holdings. First, the Rone court held that, where the record does not show and the defendant now denies that he had access to the pre-sentence report before the hearing, Rule 32(a)(1)(A) has not been complied with. Second, the Rone court found that the defendant met the burden, set forth in United States v. Harris, 558 F.2d 366 (7th Cir.1977), of raising grave doubt about the reliability and accuracy of certain information contained in the presentence report. 743 F.2d at 1174. Finally, the Rone court found that the sentencing judge’s comments made it clear that he relied on the unreliable information.

In light of the factual findings accompanying the three-question procedure set forth in Rone, this Court concludes that the proper interpretation of Rone should be a narrow one: a new sentencing hearing should be granted only when a violation of Rule 32(a)(1)(A) is accompanied by a showing that the sentencing judge relied on the alleged inaccurate information. Where, as here, it is unclear from the record whether the judge relied on alleged inaccurate information in the sentencing proceeding, this Court believes that the judge may still comply with Rule 32 with a determination here under Rule 32(c)(3)(D). Therefore, the Court holds that, where defendant alleges inaccurate information contained in the pre-sentence report and the record is unclear whether the sentencing judge relied on that information, a new sentencing hearing is not mandated by Rone or Rule 32(a)(1)(A) if the Court makes a determination under Rule 32(c)(3)(D) that either the information contained in the presentence report is accurate or the challenged information was not relied upon by the sentencing judge in the sentencing proceeding.

The Court’s holding that neither Rone nor Rule 32 mandates an automatic resen-tencing in this case is not inconsistent with the Seventh Circuit’s holding in Rone, where the court found that the sentencing judge clearly had relied on unreliable information contained in the presentence report. In addition, the Court’s narrow interpretation of Rone is consistent with the due process right not to be sentenced on the basis of false information. United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). Under Townsend and Tucker, a sentence must be set aside where the defendant can show that false information was part of the basis for the sentence. United States ex rel. Welch v. Lane, 738 F.2d 863, 865 (7th Cir.1984). To hold that a new sentencing hearing is mandated by a technical violation of Rule 32 without a showing of reliance by the sentencing judge on the alleged inaccurate information would unjustifiably broaden the scope of this due process right.

One objection which the defendant raises is the impossibility of the Court making a Rule 32(c)(3)(D) determination when the defendant has not had the opportunity to identify the alleged inaccurate information. However, identification of inaccurate information is not a problem in this case, where the defendant identified the alleged inaccurate information in his prior Rule 35 motion, which the Court denied. In addition, identification of inaccurate information by the defendant does not appear to be a problem in most cases brought under § 2255 in which the defendant discovers and then wishes to raise inaccurate information in the presentence report after the sentencing proceeding. Indeed, the Seventh Circuit’s emphasis in Rone is not only on the discovery of inaccurate information by the defendant, but also on the sentencing judge’s reliance on that information as accurate as shown in a fully developed record.

A. Rule 32(c)(3)(D) Determination

Defendant argues that the information contained in the presentence report is false and that the Court unknowingly relied upon it in passing sentence. Further, defendant contends that the report provided no explanation as to the circumstances or even the validity of the prior arrests listed therein. Therefore the defendant concludes that the manner in which the arrests are set forth in the report portray him as a disruptive person with an extensive criminal background. The defendant does not challenge the accuracy of his one-year pretrial diversion in 1979 for one count of bank fraud and one count of embezzlement. The report indicates that the defendant successfully completed the pretrial diversion program. The government contends that the Court relied only upon the fact of his prior pretrial diversion and not upon any of the contested matters in the presen-tence report.

Once an allegation of factual inaccuracy in a presentence report is made, the requirements of Rule 32(c)(3)(D) are triggered, and the sentencing judge is obligated to make a finding as to the allegation or determine that the finding is not necessary because the controverted matter was not relied upon in sentencing. U.S. v. Rone, supra, 743 F.2d at 1175. In determining reliance, the reviewing court must determine whether the sentencing judge gave the misinformation specific consideration so that the information formed part of the basis for the sentence. United States ex rel. Welch v. Lane, supra, 738 F.2d at 866; see also United States v. Hubbard, 618 F.2d 422, 425 (7th Cir.1979). Where the consideration is not explicit in the record, a showing of reliance on erroneous information is not a prerequisite to a new sentencing. United States v. Harris, supra, 558 F.2d at 375.

In the present case, it is clear that the sentencing judge (this Court) relied only upon the incident involving the prior pretrial diversion program and not upon the list of prior arrests or the claimed loss of the victim. The Court’s reference to a first chance given to the defendant by the court and by the U.S. Attorney can only refer to the pretrial diversion program since none of the other incidents contained in the presentence report involved federal crimes. Supra, pages 260-261. In addition, the Court made it quite clear that the fact that the defendant blew his second chance after having been given one break was the primary basis for the Court’s imposition of defendant’s sentence. The only other factor mentioned was the involvement of defendant’s family in the fraudulent loan scheme.

Since neither of these two factors were challenged by the defendant as inaccurate, the Court did not rely on any controverted matter in passing sentence on the defendant and therefore no ground exists to grant him a new sentencing hearing.

Finally, while the Court finds it unnecessary to determine the truth or falsity of the controverted matters in the presentence report raised by the defendant, he does not allege the kind of circumstances, i.e., hearsay-on-hearsay or facially inaccurate or unconstitutional prior convictions, which would raise serious questions of reliability and accuracy regarding the presentence report.

III. CONCLUSION

For the reasons stated above, the defendant is not entitled to a new sentencing hearing under Fed.R.Crim.P. 32 or the Fifth and Sixth Amendments to the United States Constitution.

Therefore, his motion for relief under § 2255 is denied.

IT IS SO ORDERED.


author: JAMES C. FOX, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. A-A-A ELECTRICAL COMPANY, INC., and William T. Wilson, Defendants.
    Nos. 84-41-01-CR-5, 84-41-02-CR-5.
    United States District Court, E.D. North Carolina, Raleigh Division.
    Jan. 8, 1985.

      John R. Fitzpatrick, Christopher A. Wagner, Karen Sedora Morgan, Antitrust Division, U.S. Dept, of Justice, Atlanta, Ga., for United States.
    Michael A. Doyle, Alston and Bird, Atlanta, Ga., William P. Pinna, Pinna and Johnson, P.A., Raleigh, N.C., James L. Nelson, Wilmington, N.C., for A-A-A Electrical Co., Inc.
   ORDER

JAMES C. FOX, District Judge.

This action is before the court on objections to the Magistrate’s recommendation filed November 5, 1984. Defendants’ motion in limine on evidentiary aspects of interstate commerce effects, plea in bar and motion to dismiss indictments, and motion to stay the Magistrate’s October 25, 1984, order on limited disclosure of grand jury testimony, are also before the court.

Defendants’ objections to the Magistrate’s recommendation primarily center around the statute of limitations issue. The indictment charges a combination and conspiracy in unreasonable restraint of interstate trade and commerce in violation of the Sherman Act, 15 U.S.C. § 1. It is alleged that this conspiracy began sometime prior to June 25, 1979, and continued until at least May 9, 1980. The indictment results from the alleged activities of the defendants and others in respect of the relocation of the National Weather Service (NWS) facilities at the Raleigh-Durham Airport (RDU) and the invitation to electrical construction contractors to submit competitive bids on the relocation project. The bid letting occurred on June 25, 1979. About July 5, 1979, RDU awarded the contract to the low bidder, defendant A-A-A Electrical Co., Inc. (A-A-A) in the amount of $66,324.00. The defendants contend that the alleged crime was committed, and the restraint on trade and commerce forbidden by the Sherman Act occurred prior to and at the time of the award of the contract. Therefore, defendants contend, the crime was complete and the statute of limitations began to run as of this date. Since the indictment was returned on August 28, 1984, more than 5 years after the bid letting and contract award, defendants argue that this prosecution is time barred by 18 U.S.C. § 3282.

The Government contends, however, that several overt acts in furtherance of the alleged conspiracy occurred well within the statutory period, that the initial conspiratorial agreement contemplated the performance of these overt acts, and that the conspiracy continued until the performance of these acts; therefore, the Government contends, the prosecution is not time barred. The Government’s position is supported by ample authority; accordingly, the Magistrate’s recommendation is accepted and the motion to dismiss the indictment on this ground is DENIED. At this juncture, defendants’ motion to dismiss aimed at the alleged insufficiencies of the interstate commerce allegations is also DENIED.

The Government’s proffer shows a $2,000.00 payment by the defendants to each of two (2) alleged collaborators on May 8, 1980, and that payments from RDU to the defendants for the electrical construction work were received within the statutory period. The Government’s position is supported by U.S. v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940), where it was concluded that although Sherman Act violations are not dependent “on the ‘doing of any act other than the conspiracy’ ”, nevertheless the conspiracy does not necessarily end with the agreement; that the evidence may support a “ ‘continuous cooperation’ ” among the conspirators “necessary to keep the conspiracy alive”; and, that evidence of the performance of overt acts may properly establish this continuous co-operation without “ ‘any new agreement specifically directed to that act.’ ” Id. at 252-254, 60 S.Ct. at 857-858.

Payoffs made in return for participation in a scheme to rig bids are overt acts in the furtherance of the conspiracy. U.S. v. Walker, 653 F.2d 1343 (9th Cir.1981), reh. and reh. en banc denied 10-15-81, cert. denied 455 U.S. 908, 102 S.Ct. 1253, 71 L.Ed.2d 446 (1982). Cf. U.S. v. CFW Construction Co., 583 F.Supp. 197 (D.S.C.1984). Walker, supra, also stands for the proposition that the receipt of money (in this case from RDU to the defendants) for the performance of the contract at the artificial price is an overt act in furtherance of the conspiracy. Id. at 1345-50.

A recent decision from a United States District Court in South Carolina, United States v. C.F.W. Construction Company, Inc., also supports the Government’s position. 583 F.Supp. 197 (D.S.C.1984). The court states that with respect to anti-trust charges, a “conspiracy may continue after the commission of the substantive, underlying offense where one overt act in furtherance of the conspiracy occurred within the limitation period. Where a conspiratorial agreement includes a payoff to each conspirator, the conspiracy continues until the conspirators receive their payoffs.” Id. at 206. The defendants argue that these payments, which were made subsequent to the formulation of the agreement, have not caused or contributed to a price rise; in other words, that the payments are a result of the crime, not a continuation thereof. Such payments certainly have an adverse effect on competition, however, and encourage further violations of the Sherman Act.

Defendants also filed on November 5, 1984, a motion in limine; specifically, defendants move to exclude any evidence that relates to the purchase or sale of any supplies or goods that were already in the defendants’ stock at the time the contract for the Raleigh-Durham project was awarded, or that were not used for the work on that project. The Government argues that this motion is really a motion to suppress, which under local rule 44.00 must be filed no later than ten (10) days after the pre-trial conference. The court agrees that as a motion to'suppress, this motion is belatedly filed. Defendants argue that this motion is not a delayed exclusionary motion, but an advance motion on the evidence -at trial. Because the court does not know what the evidence in this case will show, however, it is unwilling to limit its admission at this time. Accordingly, defendants’ motion in limine is DENIED, but can be renewed at the time the evidence is offered at trial.

Defendants’ third motion is a plea in bar and motion to dismiss indictments. Specifically, defendants contend that the settlement agreement between the State of North Carolina and themselves bars this prosecution. This settlement agreement does not preclude federal prosecution of the defendants; accordingly, defendants’ motion in this regard is DENIED.

Finally, defendants move to stay the effectiveness of the Magistrate’s October 25, 1984, order regarding limited disclosure of grand jury testimony. Allowing a witness to review the transcript of his grand jury testimony under the conditions described in the Magistrate’s October 9, 1984, order does not penetrate the secrecy of the grand jury proceedings in general. As indicated by the Magistrate, such limited disclosure will have no chilling effect on the availability or willingness of witnesses to appear before the grand jury; nor will it infringe upon the freedom of the grand jury in its deliberations. Accordingly, defendants’ motion to stay is DENIED.

SO ORDERED.

      . "No person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”

      . The pretrial conference in this was held on October 5, 1984.


text:
    Verna COLEMAN, Plaintiff, v. Margaret HECKLER, Secretary of Health & Human Services, Defendant.
    Nos. 84 C 2412, 84 C 5104.
    United States District Court, N.D. Illinois, E.D.
    Jan. 10, 1985.
   ORDER

BUA, District Judge.

On March 21,1984, plaintiff, through her attorney, filed a timely complaint seeking review of defendant’s decision to deny plaintiff disability benefits. That complaint was assigned Civil Docket Number 84 C 2412. Plaintiff, however, did not pay the required filing fees, but rather petitioned the Court for leave to file in forma pauperis. On March 26, 1984, this Court denied plaintiffs petition for leave to file in forma pauperis because plaintiff listed a net worth of approximately $34,221.50. Coleman v. Heckler, 84 C 2412 (N.D.Ill. Mar. 26, 1984). Under Local Rule 11(d), the Court directed plaintiff to submit the required fees within 30 days, or her suit would be dismissed. No fees were filed within the 30-day period.

On June 18, 1984 (84 days after this Court’s Order denying plaintiff leave to file in forma pauperis), plaintiff filed a new case and submitted the requisite filing fees. That case was assigned Civil Docket Number 84 C 5104. Since that case was filed over 60 days after the defendant’s final administrative decision, defendant has moved to dismiss 84 C 5104 as untimely under 42 U.S.C. § 405(g).

Defendant is correct in arguing that plaintiff’s complaint in 84 C 5104 is untimely. That fact that plaintiff had filed an earlier suit does not toll the running of the applicable limitations period. See, e.g., Goff v. United States, 659 F.2d 560, 562 (5th Cir.1981). Neither has plaintiff provided any justification for the Court to invoke the doctrines of equitable estoppel or waiver. See Portmann v. United States, 674 F.2d 1155 (7th. Cir.1982). Accordingly, plaintiff’s complaint in 84 C 5104 is untimely and therefore dismissed.

The question now becomes whether the Court should allow plaintiff to proceed in her prior case (84 C 2412) and excuse plaintiff’s (or more likely her attorney’s) failure to submit the filing fee within 30 days as ordered by the Court on March 26, 1984. Plaintiff neither paid the filing fee within the required time period nor requested from the Court an extension of the 30-day period. Defendant argues that the Court has lost jurisdiction to “reinstate” plaintiff’s prior complaint. Although the Court cautioned plaintiff that her suit would be dismissed within 30 days, the Civil Docket Sheet does not reflect that 84 C 2412 was ever dismissed by the Court.

Dismissing a case because of the plaintiff’s late payment of filing fees is, indeed, a severe sanction. At least one court has held that a trial court’s decision to dismiss a complaint due to the plaintiff’s failure to pay a timely filing fee constitutes an abuse of discretion. Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544 (5th Cir.1978). In this case, plaintiff’s failure to comply with the Court’s March 26 Order is clearly not insignificant. Dismissal of her case, however, would be too severe a sanction. Accordingly, plaintiff will be allowed to proceed on her complaint in 84 C 2412. The filing fee paid by plaintiff in 84 C 5104 will be applied to 84 C 2412.

CONCLUSION

Defendant’s motion to dismiss plaintiff’s complaint in 84 C 5104 is granted. Accordingly, Civil Case Number 84 C 5104 is dismissed as untimely. The filing fee paid in 84 C 5104 will be applied to 84 C 2412, and plaintiff will be allowed to proceed in 84 C 2412. Defendant is ordered to answer or otherwise respond to plaintiff’s complaint in 84 C 2412 within 60 days.

IT IS SO ORDERED.


author: SHAPIRO, District Judge.

text:
    Donald Francis MACKAY, Jr. v. UNITED STATES POSTAL SERVICE.
    Civ. A. No. 83-4872.
    United States District Court, E.D. Pennsylvania.
    Jan. 14, 1985.

      Donald Francis Mackay, Jr., pro se.
    Michael L. Martinez, Asst. U.S. Atty., Joseph J. Mahon, Jr., Office of Labor Law, U.S. Postal Service, Philadelphia, Pa., for defendant.
   MEMORANDUM and ORDER

SHAPIRO, District Judge.

Plaintiff Donald Francis Mackay, Jr., an employee of the United States Postal Service (“USPS”), brings this action for discrimination based on physical handicap in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., as amended. Mackay also claims damages for “cruel and unusual treatment of a physically handicapped employee,” in violation of the Eighth Amendment to the United States Constitution. Finally, Mackay alleges a cause of action for slander. Defendant USPS moves to dismiss for lack of subject matter jurisdiction over the plaintiffs claims or, in the alternative, for summary judgment because Mackay failed to exhaust administrative remedies before commencing this action.

Plaintiff was initially employed by USPS in September, 1976. Shortly after commencing employment, he suffered a back injury and began to receive benefits under the Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq., for full disability. As the result of a medical examination of Mackay, conducted at the request of the Department of Labor in 1982, the Department of Labor determined that Mackay’s medical condition permitted him to return to work. On September 15, 1982, the Department of Labor discontinued Maekay’s benefits and ordered USPS to restore him to limited duties as a mail handler under a Rehabilitation Program; the work limitations were imposed by the Postal Service medical officer. Mackay petitioned the Merit System Protection Board (“MSPB”) for a review of that decision; that petition was dismissed for lack of jurisdiction on August 18, 1983.

In addition to petitioning the MSPB, Mackay filed a claim with the Office of Workers’ Compensation Programs (“OWCP”) for an alleged recurrence of his disability commencing November 5, 1982. On April 22, 1983, the OWCP rejected that claim on the grounds that Mackay had “failed to submit the necessary evidence in support of his claim.” Mackay appealed to the Employees’ Compensation Appeals Board (“ECAB”). On November 3, 1983, the ECAB issued an order remanding the case to the OWCP with instructions that the OWCP consider certain doctors’ reports offered by Mackay but not considered by the OWCP. But there is no evidence of record of such a rehearing.

After Mackay returned to work as ordered, he received four warning letters from USPS for violating regulations regarding safety and attendance. On February 19,1983, he received a written warning for running at work. On March 28, 1983 he received another written warning for failure to meet attendance requirements. On April 8, 1983 he received a warning for wearing improper footwear. On June 11, 1983, he received a second written warning for failure to meet attendance requirements. Following these warnings Mackay was disciplined. On July 11, 1983, he received a Note of Suspension for seven days. On August 4, 1983, he received notice that his periodic step increase would be withheld. On September 29, 1983, he was suspended again for seven days.

Mackay filed the present action against USPS on October 6, 1983. Thereafter, he lodged an informal complaint with the Equal Employment Opportunity Commission (“EEOC”) officer at USPS concerning the September 29, 1983 suspension. Reports dated October 8, 1983 and October 12, 1983 stated that this disciplinary action was not the result of discrimination based on handicap. On October 26, 1983, plaintiff filed a formal EEOC complaint of discrimination alleging that an incident occurring on October 6, 1983 (the date this suit was filed) was the most recent act of discrimination. Nothing in the record reveals the nature of this particular alleged discriminatory act. On November 30, 1983, plaintiff was notified of receipt of this formal complaint but in December he was informed that the formal complaint was not sufficiently specific regarding the alleged discriminatory act. Mackay was allowed seven days to provide more specific information; because this was not provided, plaintiff’s formal complaint was cancelled for lack of prosecution on February 6, 1984.

The issue presented is whether or not the court has jurisdiction to consider Mackay’s claims; each claim must be separately considered.

WORKMEN’S COMPENSATION CLAIM

Mackay has contended that he is not fit for employment as determined by the OWCP. On his appeal from the determination, the ECAB remanded the case to the OWCP on November 3, 1983 to consider doctors’ reports offered by Mackay in connection with his claim of a recurrence of disability commencing November 5, 1982. There is no record that such reconsideration was made; if a de novo decision adequately setting forth the basis relied upon has not been issued, Mackay should petition the ECAB to require that reconsideration because the April 22, 1983 decision of the OWCP has been set aside. If Mackay was improperly ordered fit for duty, or not placed on light duty status if that was required, he may be entitled to compensation or other relief but he must pursue this matter administratively.

The ECAB, appointed by the Secretary of Labor, makes final decisions on appeals taken from determinations and awards with respect to claims of employees; 5 U.S.C. § 8149. This action is not subject to review by the court, 5 U.S.C. § 8128(b); DiPippa v. United States, 687 F.2d 14 (3d Cir.1982), or another agency. Neither the MSPB nor this court have authority to consider or review compensation claims. DISCRIMINATION BASED ON HANDICAP

A private cause of action for relief from discrimination based on handicap by the federal government may arise under either § 501 or § 504 of the Rehabilitation Act as amended in 1978. Under § 501, Title VII, administrative remedies must be exhausted first. This is not expressly required under § 504, which prohibits handicap discrimination under any program receiving federal assistance, or activity conducted by an executive agency or by USPS. Handicapped persons claiming discrimination by a recipient of federal assistance or provider of federal assistance are entitled to the remedies of Title VI by the express provisions of § 505(a)(2). Title VI does not require exhaustion of administrative remedies prior to suit.

The issue is whether § 505(a)(1) or § 505(a)(2) applies if § 504 provides a cause of action for handicap discrimination by USPS. If § 505(a)(2) applies, Mackay may bring this action whether or not he has exhausted Title VII administrative remedies. But if § 505(a)(1) not § 505(a)(2) applies, to a § 504 claim against USPS, or' if there is no cause of action against USPS under § 504 and claims of handicap discrimination against USPS can only be asserted under § 501, Mackay may not maintain this action until he has exhausted the Title VII administrative remedies that are a prerequisite to court action. It would then remain to be determined whether or not he has done so.

Mackay claims a violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794 only; the Government’s brief addresses § 501 of the Rehabilitation Act, 29 U.S.C. § 791, exclusively. Since plaintiff is proceeding pro se, we will consider whether his complaint may be maintained under either § 501 or § 504.

CLAIMS ARISING UNDER § 501 OF THE REHABILITATION ACT

Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, addresses the employment of handicapped persons by the federal government. Subsection (b) provides, in pertinent-part, that:

[e]ach department, agency, and instrumentality (including the United States Postal Service and the Postal Rate Commission) in the executive branch shall, within one hundred and eighty days after September 26, 1973, submit to the Civil Service Commission and to the [Inter-agency Committee on Handicapped Employees] an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals in such department, agency, or instrumentality.

Since 1978, the functions of the Civil Service Commission have been delegated to the EEOC. See Section 4 of the 1978 Reorganization Plan No. 1, 43 Fed.Reg. 19,807.

Although § 501 does not expressly prohibit employment discrimination based on handicap, regulations adopted under this section provide that federal departments, agencies, and instrumentalities “shall not discriminate against a qualified physically or mentally handicapped person.” 29 C.F.R. § 1613.703 (1984). Also, Section 505(a) provides for court review of complaints of violation of § 501 after the administrative remedies of Title VII have been exhausted. Section 505(a)(1), 29 U.S.C. § 794(a)(1), provides:

The remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), including the application of sections 706(f) through 706(k) (42 U.S.C. 2000e-5(f) through (k)), shall be available, with respect to any complaint under section 791 [§ 501 of the Rehabilitation Act] of this title, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint. In fashioning an equitable or affirmative action remedy under such section, a court may take into account the reasonableness of the cost of any necessary work place accommodation, and the availability of alternatives therefor or other appropriate relief in order to achieve an equitable and appropriate remedy.

Section 717 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16 (Title VII), permits an aggrieved employee of the federal government, including an employee of the United States Postal Service, to file a civil action in a federal district court for a review of the final administrative disposition of a complaint of employment discrimination or the failure to take final action on such a complaint.

However, certain administrative actions must be taken by the aggrieved employee before a civil action may be filed. See Smith v. United States Postal Service, 742 F.2d 257 (6th Cir.1984); Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir.1981). The employee must first seek redress in the agency, department, or instrumentality that allegedly discriminated against him. 42 U.S.C. §§ 2000e-5(f)(l) and 2000e-16(c); see 29 U.S.C. § 794a(a)(l). The employee must bring the claim of discrimination to the attention of an EEOC counselor within thirty (30) days of the alleged incident. 29 C.F.R. § 1613.213. If the issue is not resolved through this informal administrative procedure, the employee must file a formal written complaint within fifteen (15) days of the final interview on the informal complaint; 29 C.F.R. § 1613.-214(a)(1). If the decision on the formal complaint is adverse to the claimant, he may then and only then file a suit in District Court within thirty (30) days; 42 U.S.C. 2000e-16; 29 C.F.R. §§ 1613.281 and 1613.282. See Brown v. General Services Administration, 425 U.S. 820, 832-33, 96 S.Ct. 1961, 1967-68, 48 L.Ed.2d 402 (1976).

At the time this civil action was filed, Mackay’s informal complaint had not yet been resolved. The informal complaint was later resolved against him and he filed a formal complaint with the EEOC after this action was instituted. But Mackay’s formal administrative complaint was can-celled for lack of prosecution because he failed to make any response to a request that he provide more specific information within seven days. Therefore, we are not faced with a court filing before subsequent final administrative action but a court filing where the agency was subsequently unable to act by the inaction of the complainant.

An important aspect of the statutory and regulatory scheme for the determination of discrimination complaints is the cooperation of the complaining party. The aggrieved party is required to disclose the facts upon which a complaint is based. The exhaustion requirement is not met by plaintiff’s taking the initial administrative steps and then abandoning the process. Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 767, 67 S.Ct. 1493, 1500, 91 L.Ed. 1796 (1947); Jordan v. United States, 522 F.2d 1128, 1132 (8th Cir.1975); Beale v. Blount, 461 F.2d 1133, 1140 (5th Cir.1972). Exhaustion of administrative relief before resorting to the courts does not require mere initiation of prescribed administrative procedures; they must be pursued to their conclusion. There must be final administrative action or the opportunity for final administrative action. Mackay failed to exhaust his administrative remedies and therefore may not now pursué in court claims of handicap discrimination under § 501.

CLAIMS ARISING UNDER § 504 OF THE REHABILITATION ACT

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides, that:

[N]o otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive Agency or by the United States Postal Service. (Underlined portion added by the 1978 Amendments to the Act.)

Section 505(a)(2) of the Rehabilitation Act, as amended, 29 U.S.C. § 794a(a)(2), provides that:

[t]he remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794- of this title. (Emphasis supplied). [Section 504 of the Act].

Section 505 was added to the Handicapped Act by the Senate contemporaneously with the House amendment of § 504 (29 U.S.C. § 794) in 1978; both amendments were retained by the Joint Conference Committee. See Prewitt, 662 F.2d at 302-304. Amended § 504 prohibits handicap discrimination by recipients and providers of federal assistance and “any Executive agency or by the United States Postal Service.” But new § 505, 29 U.S.C. § 794a(a)(2), that provides the Title VI remedy refers only to recipients and providers of federal assistance and not to USPS.

This omission of employees of USPS from those aggrieved persons for whom a Title VI remedy is available is consistent with the Supreme Court’s decision in Brown, where the Court held the district court had no jurisdiction over a federal employee’s discrimination claim under 42 U.S.C. § 1981 because Title VII provides the exclusive remedy for claims of discrimination in federal employment. The Court found that the legislative history demonstrated that Congress intended Title VII “to create an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination.” 425 U.S. at 829, 96 S.Ct. at 1966. Although § 504 was amended thereafter, the difference between § 505(a)(1), which supplies Title VII remedies, and § 505(a)(2), which supplies Title VI remedies to a limited group not specifically including employees of USPS, demonstrates that USPS employees as other federal employees must use the “exclusive, pre-emptive administrative and judicial scheme” of Title VII to remedy public job-related handicap discrimination.

In Prewitt, the Court found:

[B]y its 1978 amendments to the Rehabilitation Act, Congress clearly recognized both in section 501 [29 U.S.C. § 791] and in section 504 [29 U.S.C. § 794] that individuals now have a private cause of action to obtain relief for handicap discrimination on the part of the federal government and federal agencies.

662 F.2d at 304. Prewitt reasoned that, since the amended Act is unclear as to procedures available to an aggrieved USPS worker, “the rule is to give effect to both [amendments] if possible.” Id. The Court held that a federal employee seeking redress for employment discrimination on the basis of handicap must exhaust the administrative remedies of Title VII; it did not explicitly discuss whether Title VI was applicable because of § 505(a)(2) (29 U.S.C. § 794a(a)(2)).

In Smith v. United States Postal Service, 570 F.Supp. 1415, 1419 (E.D.Mich.1983), aff'd, 742 F.2d 257 (6th Cir.1984), the Court held that “[t]he 1978 amendments to the [Rehabilitation] Act mandate exhaustion as a prerequisite to ... claims, regardless of whether they are brought under section 501 [29 U.S.C. § 791] or section 504 [29 U.S.C. § 794].” Id., 742 F.2d at 262.

In Consolidated Rail Corporation v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 1249, 79 L.Ed.2d 568 (1984), the Supreme Court held that employment discrimination is actionable under § 504 when the employee receives federal financial assistance whether or not the “primary objective” of the assistance is “to provide employment.” The Court recognized that § 505(a)(2) provides the remedies set forth in Title VI and that Title VI, unlike Title VII, does not require exhaustion of administrative remedies. But Darrone involved a federal recipient of assistance, Conrail, not USPS, which is referred to specifically as a separate entity in § 504. Darrone did not address the exhaustion of remedies in an action by a USPS or other federal employee. A USPS or other federal employee alleging any employment discrimination, even a claim of handicap discrimination under either § 501 or 504, must still exhaust Title VII administrative remedies before seeking redress in the district court in the absence of express statutory authority to the contrary. Smith, 742 F.2d at 262; Prewitt, 662 F.2d at 304; but cf., Bey v. Bolger, 540 F.Supp. 910 (E.D.Pa.1982) (held cause of action implied under § 504(a) but claim rejected on merits; exhaustion under Title VII not addressed where administrative remedies had been pursued before MSPB for non-work related physical disability). See generally, Brown.

Whether Mackay’s claim is brought under § 501 or § 504, it is clear that Title VII administrative procedures must be exhausted. Plaintiff Mackay has failed to exhaust the remedies available to him under Title VII, see 42 U.S.C. §§ 2000e-5(f)(l) and 2000e-16(c), because his formal complaint to the EEOC lacked specificity and he failed to provide further information on request. Thus, plaintiffs complaint was cancelled for lack of prosecution. Because plaintiff has failed to exhaust his administrative remedies, this court has no jurisdiction to consider the merits of plaintiffs claim at this time. Mackay can only try to reinstitute his administrative claim for the prior alleged discrimination.

But plaintiff Mackay is not without redress for continuing discrimination or future discrimination claims. If plaintiff believes he is presently subjected to discrimination on the basis of his handicap, related or unrelated to the earlier incidents, he may reinstitute administrative proceedings at the informal complaint stage with the USPS EEOC counselor (if the informal complaint is made within thirty (30) days of the alleged discriminatory action). The court cannot say on the present record whether or not Mackay might establish discrimination based on handicap. The gravamen of his complaint here is deductions from his pay for absences and rule violations that he alleges resulted from his failure to recover from a work-related injury. However, there is no record of any recourse to a grievance procedure under any Collective Bargaining Agreement.

To recover for discrimination based on handicap, a plaintiff must prove one of the following:

a)intentional discrimination for reasons of social bias;
b) neutral standards of employment which have a disparate impact on the handicapped; or
c) surmountable impairment barriers (i.e., breach of the duty to make reasonable accommodation).

Prewitt, 662 F.2d at 305, n. 19. See Note, Accommodating the Handicapped: The Meaning of Discrimination Under Section 504 of the Rehabilitation Act, 55 N.Y.U.L.Rev. 881, 883-84 (1980).

Intentional discrimination or social bias has not been alleged here. Disparate impact of neutral standards is implicated by Mackay’s complaints of discipline for unauthorized absences and safety rule violations. But an employer need not tolerate absence without leave at the discretion of the individual employee. If the leave is required for reasons of illness or handicap, that determination must be made by the administrative process of the Department of Labor and the decision is not subject to court review. 5 U.S.C. § 8128(b). Neither can Mackay ignore rules- for the safety of all workers, including himself, in order to accommodate his physical problems in the workplace. However, physical inability to comply with safety rules may be considered lack of fitness for work by the Department of Labor.

It is quite possible there has been a breach of the duty to make reasonable accommodation to Mackay’s handicap in the workplace, that is, there may be surmountable impairment barriers. Section 504 prohibits “otherwise qualified” individuals from being discriminated against “solely by reason of his handicap.” An “otherwise qualified” person is one who is able to meet all of a program’s requirements in spite of his handicap. Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979).

In a “surmountable barrier” discrimination claim, the employer has an obligation to provide reasonable accommodation for the handicapped individual. Prewitt, 662 F.2d at 307. The plaintiff must show that he is an “otherwise qualified handicapped individual.” The employer then has the burden of persuasion to show that a “reasonable accommodation” cannot be made. Prewitt, 662 F.2d at 308. Factors to be considerd in determining whether an accommodation would impose an undue hardship on the operation of the agency would include: “(1) [t]he overall size of the agency’s program with respect to the number of employees, number and type of facilities and size of budget; (2) the type of agency operation, including the composition and structure of the agency’s work force; and (3) the nature and the cost of the accommodation.” Prewitt, 662 F.2d at 308 (quoting EEOC regulation, 29 C.F.R. § 1613.704).

The individual is not otherwise qualified unless any employment barrier is surmountable without substantial modification in the requirements of the position or undue administrative or financial burden on the federal agency. That determination cannot be made on this record; it must be made administratively before court review. Cf., Nelson v. Thornburgh, 567 F.Supp. 369 (E.D.Pa.1983) with Bey v. Bolger, 540 F.Supp. 910 (E.D.Pa.1982).

The court is of the view that the OWCP, particularly its Division of Vocational Rehabilitation, should take an interest in this case; it has previously called to the attention of the USPS the fact that rehabilitation through reemployment can reduce the cost of compensation and benefit the injured worker. (Defendant’s Response filed June 14, 1982; Exhibit E). An administrative effort must be made to resolve the reemployment issues concerning Donald Mackay to avoid unnecessary compensation payments and for the sake of his own productivity; that administrative effort might include additional medical and psychiatric examinations to determine fitness for work as well as terms and conditions of his employment status.

MSPB APPEAL

It is stated in the Government submissions that Mackay petitioned the MSPB for a review of the Department of Labor decision that plaintiff was reemployable and that the MSPB petition was dismissed for lack of jurisdiction on August 18, 1983. The decision and the basis for that determination have not been made part of the record before this court.

If Mackay’s claims concerned the termination of his workman’s compensation, neither the MSPB nor this court would have jurisdiction for the reasons previously stated. OWCP and ECAB jurisdiction is exclusive and unappealable. 5 U.S.C. § 8128(b). If his claim concerned handicap discrimination, the MSPB might have deemed it necessary for Mackay to proceed before the EEOC under Title VII.

But if the claim were for some other employment decision of which the MSPB had jurisdiction, this court would have the right to review a timely appeal from a final MSPB decision; 5 U.S.C. § 704. The scope of judicial review would be limited to a determination that the applicable law and procedures were complied with and the employment decision was supported by substantial evidence and not arbitrary and capricious; 5 U.S.C. § 706. Alsbury v. United States Postal Service, 530 F.2d 852, 854 (9th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976). The review must be on the agency record; in the absence of any record from the MSPB review is not possible. Therefore, Mackay’s complaint (attached hereto as an Exhibit) cannot be construed as an appeal from the MSPB decision, even under the liberal rules applicable to pro se pleadings.

SLANDER

Plaintiff claims Government officials have slandered him because USPS was suggesting that Mackay’s medical reasons for failure to report to work were not justified. But the Government is immune from suit without its consent. The limited right to sue granted by the Federal Tort Claims Act does not include libel and slander claims against the Government. 28 U.S.C. § 2680(h); Hoesl v. United States, 629 F.2d 586 (9th Cir.1980); Quinones v. United States, 492 F.2d 1269 (3d Cir.1974). There being no other statutory authority, the court cannot entertain Mackay’s cause of action for slander.

CRUEL AND UNUSUAL TREATMENT

Plaintiff alleges “cruel and unusual treatment of a physically handicapped employee” in violation of the Eighth Amendment to the United States Constitution. This court has jurisdiction of a civil action arising under the Constitution of the United States’ 28 U.S.C. § 1331. A direct action for damages will lie for violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

The Eighth Amendment provides that “[ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” This Amendment proscribes torture and other barbarous methods of punishment for crime. Estelle, 429 U.S. at 102, 97 S.Ct. at 290. The Amendment does not provide a remedy for deprivation of rights arising out of civil employment by the federal government. Therefore, although the court does have jurisdiction to consider plaintiffs Eighth Amendment claim, it fails to state a cause of action and summary judgment must be granted for the Government.

      . Administrative procedures for the investigation and resolution of complaints based on § 501 of the Rehabilitation Act and 29 C.F.R. § 1613.703 are provided by § 1613.708 of the Code of Federal Regulations:
      An agency shall provide regulations governing the acceptance and processing of complaints of discrimination based on a physical or mental handicap which comply with the principles and requirements in §§ 1613.213 through 1613.283 and §§ 1613.601 through 1613.643.

      . The EEOC letter of February 8, 1984 that cancelled Mackay’s formal complaint included a statement of appeal rights. The letter stated that plaintiff, “[i]n lieu of an appeal to the EEOC [Office of Review and Appeals] ... may file a civil action in an appropriate U.S. District Court within 30 calendar days of receipt of this final agency determination.” Government Exhibit 11. The wording of this letter may understandably have given Mackay the erroneous impression that his claim was reviewable on the merits by appeal to the Office of Review and Appeal or in District Court but only the cancellation was then reviewable. Mackay may have been under the belief that the cancellation was a "final agency determination” as the letter suggests. If the cancellation for lack of prosecution were a final agency determination, this court would be faced with the issue of whether a claimant’s exhaustion of administrative remedies after filing in district court permits the exercise of jurisdiction by this court.
      USPS has the authority to extend the time limits for filing a formal EEOC complaint:
      The agency shall extend the time limits in this section: (i) when the complainant shows that he was not notified of the time limits and was not otherwise aware of them, or that he was prevented by circumstances beyond his control from submitting the matter within the time limits; or (ii) for other reasons considered sufficient by the agency.
      29 C.F.R. § 1613.214(a)(4) (1984). If USPS extends the time limits to refile the cancelled claim, Mackay may still be able to exhaust his administrative remedies. See Ross v. USPS, 696 F.2d 720 (9th Cir.1983).

      . But see Smith v. United States Postal Service, 570 F.Supp. 1415, 1419 n. 2 (E.D.Mich.1983), aff’d, 742 F.2d 257 (6th Cir.1984). In the district court opinion in Smith, Judge Joiner held that "a private action for employment discrimination can not be brought against the Postal Service under § 794 [504] of the Rehabilitation Act.” 570 F.Supp. at 1419 (footnote omitted). The court observed that the proscription against handicap discrimination in § 504 (29 U.S.C. § 794) included the USPS, but the accompanying remedies section, § 505(a)(2) (29 U.S.C. § 794a(a)(2)) did not expressly refer to USPS discrimination. 570 F.Supp. at 1418-19. However, in affirming the district court, the Court of Appeals as in Prewitt, 662 F.2d 292, held that a claim could be maintained under either § 501 or § 504 [29 U.S.C. §§ 791 and 794], but that Title VII administrative remedies must be exhausted before either a § 501 or § 504 claim is instituted in district court.

      . In a recent Supreme Court decision, Alexander v. Choate, — U.S. -, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), the Court affirmed that in some instances, the handicapped may make challenges under the Rehabilitation Act without proving that the alleged discrimination was intentional.