author: PATRICK F. KELLY, District Judge.

text:
    Gerald F. DAMM, Plaintiff, v. Michael SPARKMAN, and Board of County Commissioners of Barton County, Kansas, Defendants.
    No. 83-1927-K.
    United States District Court, D. Kansas.
    May 22, 1985.

      John L. Hampton, Great Bend, Kan., for plaintiff.
    Alan L. Rupe, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, Kan., for defendants.
   MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

The plaintiff, Gerald Damm, brings this suit under 42 U.S.C. § 1983 against a law enforcement officer and the Board of County Commissioners, alleging the officer used excessive force while plaintiff was in custody in the county jail, in violation of his constitutional rights. This Court sustained the earlier motion of defendant Board of County Commissioners of Barton County, Kansas, for summary judgment on November 26, 1984. The matter is now before the Court on the motion for summary judgment of the defendant, Officer Sparkman. For the reasons stated below, the defendant’s motion must be granted.

Gerald Damm was arrested in the early morning hours of September 11, 1983, for driving under the influence of alcohol and for driving left of center. The arresting officer transported Mr. Damm to the Barton County Jail for booking and holding. The jailer, Officer Tuggle, unhandcuffed Mr. Damm, placed him in the holding area, and asked him to sign some processing documents. Mr. Damm refused to sign the documents. The defendant, Officer Spark-man, told Mr. Damm that he must return to a cell if he refused to cooperate in the booking procedure. Mr. Damm refused to sign the documents and refused to go back to a cell. Officers Sparkman and Tuggle handcuffed Mr. Damm and proceeded to take him to a cell. The events that transpired during their attempt to take him to the cell give rise to this lawsuit.

Looking at the facts in the light most favorable to the plaintiff, the circumstances were as follows. Mr. Damm testified that at the time he was arrested for the traffic violations he was under the influence of alcohol, was unable to satisfactorily perform the field sobriety test, and resisted being handcuffed. (Damm Depo. pp. 63-65). Mr. Damm was agitated when the officers informed him he would have to spend the night in jail. (Damm Depo. p. 71). When he was at the county jail, Mr. Damm refused to sign some booking processing papers because they were blank, even though the officer told him they were for fingerprints. (Damm Depo. pp. 74-75). Mr. Damm then refused to leave the booking area and go to a cell. (Damm Depo. pp. 75-77). Officer Sparkman assisted the jailer, Officer Tuggle, in forcibly moving Mr. Damm to his cell. (Damm Depo. pp. 76-78) . (The correct name of the jailer is Officer Tuggle, although there was some confusion in early discovery and Mr. Damm’s deposition as to the jailer’s name.) Officer Sparkman pinned Mr. Damm against the wall and Officers Sparkman and Tuggle handcuffed Mr. Damm. (Damm Depo. pp. 78-79). Mr. Damm resisted being handcuffed. (Damm Depo. p. 79) . Mr. Damm testified that once he was handcuffed Officer Sparkman said words to the effect, “[W]e’ll have to show you why you would have wished you would have listened to us earlier,” and proceeded to hit Mr. Damm about the face. (Damm Depo. pp. 80-81). Mr. Damm testified that Officer Sparkman struck him in the face “probably six to eight times.” (Damm Depo. p. 81). Mr. Damm was then placed in his cell. (Damm Depo. p. 82). Mr. Damm’s nose was bleeding. (Damm Depo. p. 84). Mr. Damm has no residual or permanent damage from the incident. (Damm Depo. p. 90). Mr. Damm had a bruise inside his lip for two or three weeks. (Damm Depo. p. 90). Mr. Damm had bruises on his face which he could feel but could not see because he had a full beard. (Damm Depo. p. 91). Mr. Damm had a cut on his eye which did not heal for a week or so. (Damm Depo. p. 91). Mr. Damm had a sore nose for a few weeks. (Damm Depo. p. 92).

The defendant, Officer Sparkman, on the other hand, testified that Mr. Damm refused to cooperate in the booking procedure. (Sparkman Depo. p. 120). Officer Sparkman testified he informed Mr. Damm that if he refused to cooperate with the booking process he would have to go back to a holding cell. (Sparkman Depo. p. 121). Mr. Damm told Officer Sparkman that he was not going to move. (Sparkman Depo. p. 121). Officer Sparkman testified that he and Officer Tuggle attempted to bodily move Mr. Damm from the booking area into a holding cell. (Sparkman Depo. pp. 121-122). During this process, Officer Sparkman struck Mr. Damm with his fist on the side of the head. (Sparkman Depo. p. 123). Officer Sparkman testified he struck Mr. Damm only one time. (Sparkman Depo. p. 124).

The plaintiff, Gerald Damm, asserts in his suit that the defendant, Michael Spark-man, violated Gerald Damm’s right to be informed of the nature and the cause of the accusations against him as secured by the Sixth and Fourteenth Amendments to the Constitution of the United States, the right of Gerald Damm not to be deprived of liberty without due process of law as secured by the Fourteenth Amendment of the Constitution of the United States, and the right of Gerald Damm to the equal protection of the laws as secured by the Fourteenth Amendment of the Constitution of the United States.

The defendant, Officer Sparkman, moves for summary judgment, arguing that the plaintiff fails to state a claim under § 1983 because the defendant did not deprive the plaintiff of a constitutional right. Officer Sparkman argues that he did not deprive the plaintiff of his Fourteenth Amendment right to be free from deprivation of liberty without due process because the plaintiff retains the right to sue defendant in state court for state tort causes of action, and therefore the plaintiff has access to adequate due process, citing the decision of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

This matter presents the question of whether, when taking the facts in the light most favorable to the plaintiff, Officer Sparkman’s conduct violated a constitutional right of Mr. Damm so as to be cognizable under 42 U.S.C. § 1983. More precisely the issue is, when does a police officer’s use of excessive force rise to the level of a constitutional violation remediable under § 1983?

The Court first addresses the defendant’s argument that the Parratt v. Taylor rule should apply to liberty deprivations with the result that an individual injured by a state official would not be deprived of his constitutional right to be free from a deprivation of liberty without due process of law, so long as the injured person had access to post-deprivation state tort remedies in a state court. Parratt was a property deprivation case in which a prison inmate filed a § 1983 claim contending that the prison officials’ negligent loss of his $23.50 hobby kit was a deprivation of property without due process of law. The Supreme Court found that the prisoner had been deprived of property within the meaning of the Fourteenth Amendment. The Court, nonetheless, held that the availability of a post-deprivation damages remedy in state court constituted adequate due process, that the plaintiff was not deprived of property without due process of law within the meaning of the Fourteenth Amendment, and that, therefore, the plaintiff failed to establish a constitutional violation cognizable under § 1983.

Courts analyzing Parratt v. Taylor spawned a line of varied and sometimes conflicting decisions. Some courts limited the application of the Parratt rationale to cases involving negligent deprivations as compared with intentional or reckless deprivations, while other courts applied Parratt regardless of the mental state of the tortfeasor; some courts reasoned that the Parratt rule applied only to property deprivations and not to liberty deprivations, while other courts reasoned there was no basis for this distinction. See generally Barnier v. Szentmiklosi, 565 F.Supp. 869, 876-78 (E.D.Mich.1983) (cases listed).

This Circuit has recently indicated in dicta that the rule of Parratt v. Taylor applies only to property deprivations and does not apply to liberty deprivations. The Tenth Circuit Court of Appeals has stated, “[Wjhere a deprivation of life or liberty is involved, no postdeprivation state remedy in the form of damages can ever provide a meaningful hearing to the victim so .as to satisfy procedural due process.” Hewitt v. City of Truth or Consequences, 758 F.2d 1375, at 1379 n. 4 (10th Cir.1985), citing Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1434 (10th Cir.1984). Thus, the defendant’s argument that the Parratt rationale should be extended to cases involving liberty deprivations must fail in face of recent guidance from the Circuit. That is, in view of this dicta, this Court cannot hold that as long as the plaintiff can bring a battery suit in state court, the plaintiff has adequate due process and is not deprived of liberty without due process of law.

Nonetheless, analyzing due process deprivation cases in the context of a liberty versus property distinction overlooks a more fundamental and critical distinction of due process rights: substantive and procedural due process. Two cases very helpful to an understanding of Parratt and of the issue of when police misconduct rises to the level of a constitutional due process violation sufficient to support a § 1983 claim are Ramos v. Gallo, 596 F.Supp. 833 (D.Mass.1984), and Barnier v. Szentmiklosi, 565 F.Supp. 869 (E.D.Mich.1983). These courts noted that due process rights encompass substantive and procedural due process; that Parratt was a procedural due process case; and that the Parratt rule does not apply to substantive due process violations.

In Ramos v. Gallo, the defendant made an argument similar to the argument of the defendant in the case at bar. The defendant in Ramos argued that a police officer’s negligent shooting of the plaintiff did not constitute a violation of the plaintiff’s rights of due process because state court remedies would afford plaintiff full redress for any deprivation of liberty, in accordance with the holding in Parratt v. Taylor. The court emphasized that the defendant’s argument urging the application of Parratt to a deprivation of liberty failed to take account of the distinction between substantive and procedural due process. The court reasoned that the decision of Parratt v. Taylor addressed only a claim of a violation of procedural due process, and that a claim of a violation of substantive due process is not affected by the holding in Parratt. The court found that there was no constitutional violation of the plaintiffs procedural due process rights because of the availability of a remedy in state court. The court, however, did find that there was an issue of material fact as to whether the police officer’s conduct was so outrageous and shocking to the conscience as to present a claim of violation of his substantive due process, and the court therefore overruled the defendant officer’s motion for summary judgment.

Other courts analyzing the Parratt decision with respect to substantive and procedural due process agree that Parratt was a procedural due process case, and that the Parratt rule does not apply to substantive due process violations. Hewitt v. City of Truth or Consequences, 758 F.2d 1375 (10th Cir.1985); Augustine v. Doe, 740 F.2d 322, 326 (5th Cir.1984) (cases cited); Daniels v. Williams, 720 F.2d 792, 796 n. 3 (4th Cir.1983). See also Ramos v. Gallo, supra, at 838 (cases cited); Bamier v. Szentmiklosi, supra, at 880 (cases cited).

The guarantees of procedural due process and of substantive due process are encompassed in the Fourteenth Amendment right to due process of law. Hewitt v. City of Truth or Consequences, 758 F.2d 1375 (10th Cir.1985). Judge Keeton of Massachusetts described the guarantees as follows:

A procedural due process claim alleges that the state has unlawfully interfered with a protected liberty or property interest by failing to provide adequate procedural safeguards. The claim focuses on the procedures used by the state in effecting the deprivation of liberty or property, which the claimant argues were inadequate in light of the significance of the interests involved. Parratt ... invoke^] this analysis.
A substantive due process claim, on the other hand, alleges not that the state’s procedures are somehow deficient, but that the state’s conduct is inherently impermissible, regardless of any protective or remedial procedures it provides. It is based on “the right to be free of state intrusions into realms of personal privacy and bodily security through, means so brutal, demeaning, and harmful as literally to shock the conscience of a court.”
The theory of substantive due process derives from the case of Rochin v. California [342 U.S. 165, 72 S.Ct. 205, 96 L.Ed.2d 183 (1952)]. In Rochin, the Court held that police action in obtaining evidence by subjecting a suspect against his will to a stomach pump so “shocks the conscience” as to violate due process. Justice Frankfurter wrote, “Due process of law is a summarized constitutional guarantee of respect for those personal immunities which ... are ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ or are ‘implicit in the concept of ordered liberty.’ ”

Ramos v. Gallo, 596 F.Supp. 833, 837 (D.Mass.1984) (citations omitted).

Substantive due process includes the right to be free from the use of excessive force by law enforcement officers. Hewitt v. City of Truth or Consequences, 758 F.2d 1375 (10th Cir.1985); Wilson v. Beebee, 743 F.2d 342 (6th Cir.1984); Black v. Stephens, 662 F.2d 181 (3d Cir.1981); Jacobs v. City of Wichita, 531 F.Supp. 129 (D.Kan.1982).

The Tenth Circuit has declined to formulate a precise test to define what conduct constitutes use of excessive force sufficiently egregious to rise to the level of a substantive denial of due process. Hewitt v. City of Truth or Consequences, supra, at 1379. See also Ramos v. Gallo, 596 F.Supp. 833, 838 (D.Mass.1984) (“I need not and do not at this time address the troubling question as to the legally correct standard of severity of an intrusion required to establish a violation of rights protected under the rubric of substantive due process.”); and Schiller v. Strangis, 540 F.Supp. 605, 616-17 (D.Mass.1982) (court addressed the respective weights of the “relevant factors” test). In Hewitt, the Court stated that “abuse of power is the standard by which a denial of due process is measured.” Id. at 1379. The Court referred to the oft-quoted relevant factors used to determine when force is excessive as follows:

Factors relevant to whether the use of force is excessive are the relationship between the amount of force used and the need presented, the extent of the injury inflicted, and the motives of the state officer. Force inspired by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience, or by malice rather than mere carelessness, may be redressed under § 1983.

Id. at 1379, citing Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir.1981), and Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981). The Court held that the alleged negligent conduct of a police officer which resulted in the officer’s fatal shooting of an arrestee did not constitute a constitutional deprivation remediable under § 1983. The Court stated as follows:

We need not decide how egregious police conduct must be to rise to a substantive denial of due process. Wherever that line may be drawn, the conduct complained of here simply is not an abuse of power condemned by the Constitution. Hewitt was a suspected felon who resisted arrest. The police were justified in searching him, handcuffing him, and securing him in a police car.

Id. at 1379.

Therefore, in determining when use of excessive force by a peace officer rises to a constitutional violation cognizable under § 1983, this Court is guided by the principle that abuse of official power is the fundamental standard governing denial of substantive due process rights, and by the general guidelines enunciated in the relevant factors test.

In the case at bar, the Court considers the facts in the light most favorable to the plaintiff to determine whether the conduct of Officer Sparkman violated Mr. Damm’s substantive due process rights. Accepting as true Mr. Damm’s own testimony, the stage is set by Mr. Damm’s resistance to being arrested and to being handcuffed in the first instance. At the county jail, Mr. Damm refused to cooperate with booking procedure. Mr. Damm refused to leave the booking area and go to a cell as requested by the officers. Mr. Damm again resisted being handcuffed. Thereupon, Officer Sparkman forcibly removed Mr. Damm from the booking area and struck Mr. Damm, allegedly as many as six to eight times.

While § 1983 was enacted to remedy the type of abuse of official power as presented in the case at bar, see Garrick v. City of Denver, 652 F.2d 969, 972 (10th Cir.1981), and Schiller v. Strangis, 540 F.Supp. 605, 617 (D.Mass.1982), this Court does not believe the defendant’s conduct, under the plaintiff’s version of the facts, was sufficiently egregious to amount to a substantive denial of Mr. Damm’s due process rights as a matter of law. Mr. Damm’s recalcitrant behavior presented the need for Officer Sparkman to use force to move Mr. Damm to a cell; there was no permanent or residual injury inflicted; and there is no evidence from which to infer that Officer Sparkman’s conduct was motivated by sheer malice. The defendant was justified in using force to secure Mr. Damm in a cell. This conduct is not an abuse of power that shocks the conscience of this Court. The Court believes that this conduct was not so egregious as to constitute an abuse of power condemned by the Constitution. As one court stated, “Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a [person’s] constitutional rights.” Schiller v. Strangis, 540 F.Supp. 605, 616 (D.Mass.1982); see also Polite v. Diehl, 507 F.2d 119, 142 (3d Cir.1973) (Kalodner, J., dissenting) (“Simply stated, infliction of a black eye on one in custody by a policeman’s fist, standing alone, is not a ‘federal case.’ ”). The Court finds that, accepting as true Mr. Damm’s recital of the facts, Officer Sparkman did not violate Mr. Damm’s due process rights, and there exists no constitutional violation remediable under § 1983.

Mr. Damm further contends that his constitutional right to be informed of the nature and cause of the accusations against him, as secured by the Sixth and Fourteenth Amendments, was violated, thereby giving rise to his § 1983 claim. Mr. Damm testified, “The officer pulled me over, and told me that I had crossed the center line, and he wanted to see my driver’s license.” (Damm Depo. p. 59). Mr. Damm was aware that the field sobriety tests were administered to determine whether he was under the influence of alcohol. (Damm Depo. p. 63). Mr. Damm further testified, “[H]e told me he was going to arrest me for D.U.I.” (Damm Depo. p. 64). Following Mr. Damm’s arrest, he was transported to the City Police Station where a breathalyzer test was administered. (Damm Depo. pp. 67-68). Mr. Damm testified, “Well, the Breathalyzer test showed that it was .21, and they said that I was over the limit, and that they was going to put me in jail for the evening or hold me overnight for DUI.” (Damm Depo. p. 69).

In light of Mr. Damm’s testimony, this Court finds it inconceivable that Mr. Damm was unaware of the nature or the cause of the accusations against him. There are no issues of material fact with respect to the alleged violation of Mr. Damm’s Sixth and Fourteenth Amendments. No reasonable trier of fact could conclude that Mr. Damm was unaware of the nature and cause óf the accusations against him. Therefore, the Court must grant the defendants’ motion for summary judgment with respect to the alleged Sixth and Fourteenth Amendments.

Finally, Mr: Damm alleges- that he was deprived of his Fourteenth Amendment right to equal protection. The exact manner in which plaintiff was denied his right to equal protection is unclear. The most the Court can glean is from veiled allegations that Michael Sparkman was zealous in his disdain for intoxicated persons, and that Michael Sparkman somehow treated drunken drivers differently than other individuals charged with violation of other laws. Despite the total lack of clarity in Mr. Damm’s position on this claim, it is clear that his claim of denial of equal protection must fail. There are absolutely no facts presenting any evidence of any discriminatory intent or invidious discrimination.

This Court finds, while viewing the facts in the light most favorable to the plaintiff, that as a matter of law Michael Sparkman did not violate Gerald Damm’s right to be free of liberty deprivations without due process of law as secured by the Fourteenth Amendment, right to be informed of the nature and cause of the accusations against him as secured by the Sixth and Fourteenth Amendments, or right to equal protection as secured by the Fourteenth Amendment.

IT IS THEREFORE ORDERED this 22 day of May, 1985, that the motion for summary judgment of defendant Michael Sparkman should be and is hereby granted.

      . 42 U.S.C. § 1983 (1981) states as follows:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.


source: Caselaw Access Project

author: JOINER, District Judge.

license: Public Domain

text:
    UNIVERSITY OF MICHIGAN HOSPITALS, Borgess Medical Center, Clinton Memorial Hospital, Cottage Hospital of Grosse Pointe, Detroit-Macomb Hospital Corporation-Detroit Memorial Hospital, Detroit-Macomb Hospital Corporation-South Macomb Hospital, Edward W. Sparrow Hospital, Flint Osteopathic Hospital, Holland Community Hospital, Lansing General Hospital, Osteopathic, Lapeer County General Hospital, McLaren General Hospital, Metropolitan Hospital, Midland Hospital Association, Munson Medical Center, Muskegon General Hospital, Oakwood Hospital, Providence Hospital, Reed City Hospital, St. Francis Hospital, St. John Hospital, St. Joseph Hospital, Sinai Hospital of Detroit, W.A. Foote Memorial Hospital, Plaintiffs, v. Margaret M. HECKLER, In Her Official Capacity As Secretary Of Health And Human Services, and Provider Reimbursement Review Board, Defendants.
    Civ. A. No. 84CV-7244-AA.
    United States District Court, E.D. Michigan, S.D.
    May 22, 1985.

      Kenneth R. Marcus, Honigman, Miller, Schwartz & Cohn, Detroit, Mich., for plaintiffs.
    Karl Overman, Asst. U.S. Atty., Detroit, Mich., Deborah M. Chaskes, Office of the Gen. Counsel, Dept, of Health & Human Services, Washington, D.C., for defendants.
   MEMORANDUM OPINION AND ORDER

JOINER, District Judge.

I. Background

This is the appeal of a group of Michigan hospitals from the denial of their reimbursement claims under the Medicare program. The plaintiff hospitals, providers of Medicare services, challenge the method used by the Department of Health and Human Services to reimburse them for some of those services. The dispute concerns the classification of days spent by women inpatients in the- labor/delivery rooms of the hospitals.

The Medicare program, 42 U.S.C. § 1395 et seq. (1982), subsidizes the reasonable costs of medical care for elderly and disabled citizens. Part A of the program provides for federal reimbursement to hospitals and other institutions for services rendered to Medicare beneficiaries. The providers are reimbursed directly by the government, usually through private organizations such as the Blue Cross Association, which act as “fiscal intermediaries.”

The reimbursement at issue in this case is based on the hospitals’ “reasonable cost” of rendering covered services. Reasonable cost is broadly defined by the Medicare statute, 42 U.S.C. § 1395x(v)(l)(A), and is determined more specifically in accordance with regulations promulgated by the Secretary of the Department of Health and Human Services (“the Secretary”). Although the Secretary is given considerable discretion in establishing these regulations, the Medicare program may not subsidize non-Medicare related costs, and non-Medicare sources may not subsidize Medicare costs. 42 U.S.C. § 1395x(v)(l)(A). Additional guidance on calculating reasonable costs is found in the Provider Reimbursement Manual HIM-15 (the “Manual”), issued by the Secretary to interpret the Medicare reimbursement regulations. The policy challenged by the plaintiff hospitals in the present case is contained in Manual § 2345.

The actual reimbursement amount is determined by apportioning a hospital’s total allowable costs between its Medicare and non-Medicare patients. The apportionment process encompasses three types of calculations: one for routine services in general care areas; one for routine services in special care areas such as intensive or coronary care units; and one for ancillary services. Routine services are defined as “the regular room, dietary, and nursing services, minor medical and surgical supplies, and the use of equipment and facilities for which a separate charge is not customarily made.” 42 C.F.R. § 405.452(b) (1984). They are distinguished from ancillary services, such as x-ray services, for which an additional charge is generally made. Hospitals receive separate reimbursement payments for routine services and for ancillary services.

This case involves the reimbursement for routine services in general care areas. The routine service reimbursement amount is calculated by multiplying the number of Medicare patient days by the average “per diem” cost for all general routine services. The per diem figure is produced by dividing total allowable routine costs by total “inpatient days” for the given fiscal year. Id.

Manual § 2345 affects the amount that the hospitals receive from Medicare for routine services. It requires patients in the hospital labor/delivery area at the census-taking hour of midnight to be included in the count of total inpatient days. However, none of the costs associated with the labor/delivery patients are included in the routine cost equation. This is because labor/delivery services are considered ancillary, and reimbursement for ancillary services is separate from that for routine services. The hospitals claim that labor/delivery inpatient days should not be factored into the average routine cost per diem formula without including the costs that these patients generate, as this distorts the per diem reimbursement figure downward. Plaintiffs point out that the downward distortion resulting from Manual § 2345 is exacerbated by the fact that Medicare beneficiaries make very little use of the labor/delivery room facilities. The hospitals conclude that Manual § 2345 causes the government to underreimburse them for their Medicare expenses, and thus results in an illegal subsidization of Medicare by non-Medieare patients.

Medicare providers obtain reimbursement for covered expenses by submitting to the fiscal intermediary a year-end cost report. 42 U.S.C. §§ 1395f, 1395g; 42 C.R.F, § 405.453(f). The intermediary then audits the cost report, and issues a Notice of Program Reimbursement (“NPR”). The NPR constitutes a final determination of the provider’s reimburseable expenses. A provider that is dissatisfied with the fiscal intermediary’s final determination may appeal to the Provider Reimbursement Review Board (“PRRB”). 42 U.S.C. § 1395oo (a). Section 1395oo (b) authorizes group appeals such as the one here. The PRRB’s decision is final, unless the Secretary reverses, affirms, or modifies the Board’s decision within sixty days. § 1395oo (f)(1). A provider may then obtain judicial review of any final decision of the PRRB or any subsequent reversal, affirmance, or modification by the Secretary., Id.

One group of plaintiff hospitals in the present case defied Manual § 2345 by excluding labor/delivery patients from the inpatient routine day count in its cost reports (the “Exhibit A” hospitals.) The fiscal intermediary, Blue Cross, rejected this, and adjusted each Exhibit A hospital’s cost report to include the labor/delivery patients in the inpatient routine day count. The Exhibit A hospitals appealed to the PRRB, which held for the hospitals on January 10, 1984. The Secretary, acting through the Deputy Administrator of the Health Care Financing Administration (“Deputy Administrator” and “HCFA”), elected to review the PRRB decision. The Deputy Administrator reversed the PRRB on March 16, 1984, holding that “[ljabor/delivery room days are to be included in the determination of the providers' average per diem cost of routine inpatient care. Labor/delivery room costs are not to be included in the providers’ routine care statistics.” HCFA Decision at 7. The Exhibit A hospitals now appeal the decision of the Deputy Administrator to this court.

A second group of plaintiff hospitals complied with Manual § 2345 on its cost reports (the “Exhibit B” hospitals). Some Exhibit B hospitals then submitted amended reports excluding the labor/delivery room days to the intermediary before the intermediary had issued the NPRs (the “Exhibit B-l” hospitals). The intermediary, however, refused to allow the amendments. Other Exhibit B hospitals received their NPRs, and then attempted to alter their cost reports to challenge Manual § 2345 (the “Exhibit B-2” hospitals). The intermediary also refused to allow the Exhibit B-2 hospitals to alter their cost reports. All of the Exhibit B hospitals appealed, but the PRRB concluded that it lacked jurisdiction over these claims. The Exhibit B hospitals now appeal the PRRB’s jurisdictional decision to this court.

A number of issues stand before the court for decision. First is the question of jurisdiction over the claims of the Exhibit B hospitals. Next, both sides ask the court to rule on the merits of the labor/delivery issue. The Secretary moves to remand this case to the PRRB for the presentation of additional evidence, or in the alternative for summary judgment. The hospitals move for summary judgment.

II. Jurisdiction

The PRRB held that it lacked jurisdiction over the Exhibit B hospitals’ claims because these hospitals failed to challenge Manual § 2345 in their cost reports. This court may review PRRB decisions denying jurisdiction over providers’ claims, but may not reach the underlying merits of such claims. See Saline Community Hosp. Ass’n v. Secretary of Health and Human Serv., 744 F.2d 517, 520 (6th Cir.1984).

Section 1395oo (d) sets forth the jurisdiction of the PRRB over appeals from decisions by the fiscal intermediary:

The Board shall have the power to affirm, modify, or reverse a final determination of the fiscal intermediary with respect to a cost report and to make any other revisions on matters covered by such cost report (including revisions adverse to the provider of services) even though such matters were not considered by the intermediary in making such final determination.

42 U.S.C. § 1395oo (d). Courts disagree about the scope of jurisdiction that § 1395 oo (d) confers to the PRRB. The Seventh Circuit has held that the statute allows the PRRB to consider matters outside the cost report. Saint Mary of Nazareth Hosp. Center v. Department of Health and Human Serv., 698 F.2d 1337, 1346 (7th Cir. 1983), cert, denied, — U.S. —, 104 S.Ct. 107, 78 L.Ed.2d 110 (1983). The Circuit Court for the District of Columbia has taken a narrower view of the PRRB’s jurisdiction. In Athens Community Hosp. v. Schweiker, 743 F.2d 1 (D.C.Cir.1984) (“Athens II”), the court held that § 1395oo(d) gives the PRRB jurisdiction over items explicitly claimed by the provider in its cost report that were disallowed by the fiscal intermediary, and then contested by the provider before the PRRB. The PRRB also has jurisdiction to revise other aspects of matters claimed by the provider, when its review of properly contested matters requires it to do so. 743 F.2d at 4-10. This court believes that Athens II correctly interprets the jurisdictional language of § 1395oo(d).

Having decided that PRRB jurisdiction in this case applies only to claims explicitly made by the hospitals in their cost reports, the question now is whether the Exhibit B hospitals included their challenge to Manual § 2345 in their initial reports. The Exhibit B hospitals argue that they did. They assert in their motion for summary judgment that “[t]he category of general routine inpatient days, which pursuant to Manual § 2345 includes labor/delivery days, is present in every cost report. No cost report can be completed without it.” The Exhibit B hospitals contend that they “self-disallowed” their claims by including labor/delivery days in the routine inpatient count. They conclude that self-disallowed claims pertaining to calculations in a cost report are covered by that report. Therefore, the PRRB should have asserted jurisdiction over the Exhibit B hospitals’ challenges to Manual § 2345.

The court disagrees. Once again, the analysis of the Circuit Court for the District of Columbia is persuasive. In Athens II, that court held that PRRB jurisdiction under § 1395oo(d) does not extend to items “listed on the cost report at the time of submission but not claimed.” The court stated:

We do not think Congress intended to permit a provider to claim dissatisfaction based upon its own failure to request reimbursement of a cost item. If a provider is unhappy with the reimbursement the intermediary allowed in such a case, it is the fault of the provider and not of the intermediary. It simply is not plausible to contend that Congress has created a scheme where the provider can claim dissatisfaction and have recourse to an appeal procedure because the intermediary failed to read the provider’s mind and anticipate all those things the provider would like to be reimbursed for, even though it did not request them.

743 F.2d at 6 (footnote omitted).

Although the Exhibit B hospitals did not include their challenges to Manual § 2345 in their cost reports, all of them tried to amend the reports after submitting them. The Exhibit B Hospitals argue that they successfully added these claims,, making them part of the cost reports. From this, they conclude that the PRRB had jurisdiction over their claims under § 1395oo (d). The court will first examine the Exhibit B-l hospitals.

A. Amending Cost Reports

The Exhibit B-l hospitals attempted to amend their cost reports before the issuance of their NPRs. Medicare regulations provide that “(ajmended cost reports to revise cost report information which has been previously submitted by a provider may be permitted or required as determined by the Health Care Financing Administration.” 42 C.F.R: § 405.453(f). The HCFA accordingly has promulgated Medicare Intermediary Manual, HIM-13-2 § 2631.2A:

A provider may file or an intermediary may require an amended cost report to:
1. correct material errors detected subsequent to the filing of the original cost report,
2. comply with the health insurance policies or regulations,
3. reflect the settlement of a contested liability; ...

Providers are permitted to amend their cost reports at any time before the issuance of the NPR.

Section 2631.2A clearly gives the Exhibit B-l hospitals the right to amend their cost reports to correct “material errors.” If these hospitals had the right to amend, then their challenges to Manual § 2345 were part of their cost reports. This would mean that the PRRB should have ruled on the merits of the labor/delivery issue as to the Exhibit B-l hospitals.

PRRB jurisdiction over the substantive claims of the Exhibit B-l hospitals thus turns on whether or not their initial cost reports contain a material error. The PRRB did not address this issue, instead deferring to the fiscal intermediary’s disallowance of the proposed amendments. This was improper. The Medicare statute and regulations do not make the fiscal intermediary the final arbiter of proposed amendments. Moreover, the determination of whether the treatment of an expense in a cost report constitutes a material error in the report is a substantive one. It closely resembles the intermediary’s determination of whether the expenses claimed in a cost report are reimbursable, which is subject to PRRB review.

For these reasons, the court remands the claims of the Exhibit B-l hospitals to the PRRB for a determination of whether the cost reports at issue contain material error. The PRRB will then be able to decide whether the Exhibit B-l hospitals’ reports were properly amended to challenge Manual § 2345. These steps will enable the PRRB to analyze and rule on the issue of

its own jurisdiction. If the PRRB finds jurisdiction, it will then consider the merits of the claims made by the Exhibit B-l hospitals.

B. Reopening Cost Reports

The Exhibit B-2 hospitals received their NPRs before they tried to alter their cost reports to include a challenge to Manual § 2345. These hospitals therefore are requesting a “reopening” of their cost reports, rather than proposing an amendment to them. The analysis of reopenings differs from that of amendments, as different regulations govern.

The Medicare regulations provide for the reopening of decisions of the fiscal intermediary, the PRRB, and the Secretary “to revise any matter in issue” during the proceedings within three years of the decision. 42 C.F.R. § 405.1885(a). The regulation goes on to state that “[¡jurisdiction for reopening a determination or decision rests exclusively with that administrative body that rendered the last determination or decision.” § 405.1885(c).

The Circuit Court for the District of Columbia has interpreted the reopening regulations in a case almost identical to the one presented by the Exhibit B-2 hospitals. In Saint Mary of Nazareth Hosp. Center v. Schweiker, 741 F.2d 1447 (D.C.Cir.1984) (“St. Mary II”), the court ruled on the request of Saint Vincent Hospital to reopen its cost report to add a challenge to Manual § 2345. The fiscal intermediary refused to reopen the report, and the court deemed the intermediary’s decision to be final. The court cited its prior holding in Athens II supra, and 42 C.F.R. § 405.1885(c), and found that “the decision to reopen lies exclusively with the last decision-maker.” 741 F.2d at 1449. Given that Blue Cross alone decides whether or not to permit reopening, the court concluded that the PRRB should refuse to exercise jurisdiction over claims presented after issuance of the NPR that Blue Cross had not allowed. Id. See also Athens II, supra, at 7-8 (PRRB lacks jurisdiction over intermediary’s refusal to reopen cost reports to include requests for reimbursement of certain stock option costs and federal income tax costs); John Muir Memorial Hosp. v. Califano, 457 F.Supp. 848, 853 (N.D.Cal.1978) (district court lacks jurisdiction over fiscal intermediary’s refusal to reopen cost reports to allow hospital to change its treatment of certain interest payments).

The Exhibit B-2 hospitals argue that fiscal intermediaries should not possess complete discretion over hospitals’ requests to reopen. They contend that this unacceptably delegates final decisionmaking authority to private bodies, citing Chelsea Community Hosp. v. Blue Cross Ass’n, 630 F.2d 1131 (6th Cir.1980). Chelsea is readily distinguishable from the present case, however. It addressed only pre-1973 Medicare reimbursement claims, and found that due process required some form of judicial review. The Sixth Circuit explicitly did not consider the 1974 amendments to the Medicare Act that created the PRRB and allowed for a system of limited judicial review. 630 F.2d at 1133 n. 2.

The argument of the Exhibit B-2 hospitals that fiscal intermediaries cannot constitutionally make final decisions on reopenings is further weakened by Schweiker v. McClure, 456 U.S. 188, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982) and Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). In Schweiker, the Supreme Court upheld the constitutionality of hearings on individuals’ claims for Medicare Part B benefits. The hearings were held by officers selected by private insurance carriers, and there was no further right of administrative or judicial review. The Court found that the procedure provided due process, as the hearing officers lacked any bias or interest in the proceedings. Similarly, the fiscal intermediary in the present case lacks any financial stake in the outcome of this controversy, suggesting that it is a constitutionally adequate decisionmaker.

In Califano v. Sanders, the Supreme Court rejected Sanders’ argument that judicial review was available for “alleged abuses of agency discretion in refusing to reopen claims for social security benefits.” 430 U.S. at 108, 97 S.Ct. at 985. The Court noted that the opportunity to reopen final decision on benefits is “afforded by the Secretary’s regulations and not by the Social Security Act.” Id. Judicial review was limited by the Act to the original decision denying benefits. The Court found that its duty “is to respect” the Congressional decision to limit judicial review, which was “obviously designed to forestall repetitive or belated litigation of stale eligibility claims.” Id. This court should follow the Supreme Court in respecting the lack of judicial review' over the requests to reopen in the present case.

The reopening procedures of the Medicare regulations reflect the judgment that the providers’ ability to add claims to cost reports must end at some point. The issuance of the NPR was selected as that point. Accordingly, the regulations give the fiscal intermediary complete discretion over requests to alter cost reports that are made after the issuance of the NPR. The adverse decision of Blue Cross on the requests to reopen is therefore final. The PRRB correctly refused to exercise jurisdiction over the claims of the Exhibit B-2 •hospitals, as it has none. The court concludes that the Secretary’s motion for summary judgment as to the Exhibit B-2 hospitals must be granted.

III. Manual § 2345

The Exhibit A hospitals challenged the validity of Manual § 2345 in their initial cost reports, and now bring their claim before this court. These hospitals primarily rely on Judge McGowan’s thoughtful and detailed analysis of the very policy at issue in this case in Saint Mary of Nazareth Hosp. Center v. Schweiker, 718 F.2d 459 (D.C.Cir.1983) (“St. Mary ”). The St. Mary opinion has been adopted by the vast majority of courts that have considered this issue, including the Circuit Courts for the First, Fifth, and Ninth Circuits.

In St. Mary, Judge McGowan first discussed the standard of review he would apply to Manual § 2345. He found that the policy deserved little deference from the court, as the Secretary’s position had fluctuated in the past, and the policy did not result from any substantial expertise. 718 F.2d at 463-66. Judge McGowan then found that the hospitals had fulfilled their admittedly heavy burden of showing that the Secretary had misinterpreted her own regulations. He carefully examined six possible bases for the Secretary’s position, and rejected each of them in turn. Id. at 466-73. Judge McGowan concluded that “[i]t is irrational to apportion to labor/maternity patients costs which they have not incurred without either including the costs that they have incurred or demonstrating that the distortion is balanced by some other aspect of the accounting process.” Id. at 473. The court found the result of this distortion to be the illegal subsidization of Medicare costs by non-Medicare patients. Id. at 473-74.

St. Mary did not directly rule in favor of the hospitals, however. The court wanted first to be sure that the distortion caused by Manual § 2345 existed. Judge McGowan therefore remanded the case “for the limited purpose of the PRRB’s taking evidence on the question whether the number of Medicare patients found nationally in other ancillary areas at the census hour is sufficient to offset the dilution of Medicare reimbursement created by counting labor/maternity patients in the routine inpatient count.” Id. at 474. He concluded;

If there is no such offset or if the Secretary decides not to contest the issue, then the Secretary may not count labor/delivery patients, who have not previously that day received routine care, among the routine inpatient population for purposes of calculating the average cost per diem for routine services.

Id. On remand, the district court entered judgment for the hospitals. St. Mary, 587 F.Supp. 937 (D.D.C.1984). Judge Richey found that the Secretary “has repeatedly acknowledged that the agency cannot make the showing contemplated by the Court of Appeals.” 587 F.Supp. at 938. The district court concluded that a remand to the agency would be inappropriate, as no further administrative proceedings were warranted by the decision of the court of appeals.

The court adopts the reasoning of St. Mary, believes that it is sound, and holds that the existing record supports the hospitals’ argument that Manual § 2345 is irrational. Therefore, the Secretary’s motion for summary judgment on the basis of the record in this case is denied.

The Secretary further argues that even if the existing record supports the hospitals, this court should remand the case to the PRRB for the presentation of additional evidence. She asserts that Manual § 2345's inclusion of labor/delivery patients in the count of routine days does not dilute Medicare reimbursement, because labor/delivery patients use more routine care after they leave the delivery area. The Secretary contends that the high routine costs generated by labor/delivery patients after giving birth more than compensate for the policy of Manual § 2345.

The Secretary fails to explain, however, why she did not present this evidence to the PRRB. The administrative proceedings in this case occurred after the St. Mary decision was released. Moreover, the decisions of both the PRRB and the Deputy Administrator cite St. Mary. The Secretary therefore was on notice, at the time of the PRRB hearing, of the need to present additional evidence to bolster her position. She chose not to do so, and now must live with that decision. Accordingly, the Secretary’s motion to remand is denied.

The foregoing discussion makes it clear that the Exhibit A hospitals are entitled to summary judgment on their challenge to Manual § 2345. The decision of the Deputy Administrator is therefore reversed, as labor/delivery room days should not be included in the determination of the Exhibit A hospitals’ average per diem cost of routine inpatient care. It is further ordered that a copy of this Memorandum Opinion and Order shall be sent by the Secretary to the fiscal intermediary responsible for each of the Exhibit A hospitals, with directions to compute the amount owing to each hospital within forty-five (45) days of the date of this Memorandum Opinion and Order. These amounts shall include interest computed to the date of actual payment, pursuant to 42 U.S.C. § 1395oo (f). Payment of these amounts shall be made within sixty (60) days of the date of this Memorandum Opinion and Order.

SO ORDERED.

      . This calculation can be illustrated as follows:
      total cost of routine services = average cost per diem
      total number of inpatient days (of providing routine services)
      (average cost per diem) x (number of Medicare inpatient days) = amount reimbursed to hospitals for providing routine services

        . Using the formula, the problem is as follows:
      total routine costs (no labor costs included) = average cost per
      total number of inpatient days (labor patients diem (too low)
      included)

      . The groups of plaintiff hospitals are called "Exhibit A” and "Exhibit B”. This refers to PRRB opinion exhibits that name the hospitals belonging to each group.

      . Both sides agree that the court should rule on the merits of the Exhibit A hospitals’ claims. The Exhibit B hospitals also ask for a decision on the merits of their claims, which the Secretary opposes. See Part II infra.

      . There is authority that supports the position of the Exhibit B hospitals. See, e.g., Community Hosp. of Roanoke Valley v. Heckler, 588 F.Supp. 674, 678 (W.D.Va.1984) (PRRB has jurisdiction over claims of hospitals that had "self-disallowed” the exclusion of labor/delivery days from the routine cost formula).

      . The Medicare Intermediary Manual, HIM-13-2 § 2631, defines "reopening" as follows:
      For the purposes of this section, the term “reopening” means an affirmative action taken by an intermediary ... to reexamine or question the correctness of a determination or decision otherwise final____
      For example, under the provisions of this paragraph, an amended cost report accepted by an intermediary after its issuance of the initial determination of the amount of program reimbursement would be deemed to constitute a request by the provider to reopen an intermediary’s determination.

        See also Borgess Medical Center v. Schweiker, 563 F.Supp. 370, 372-73 (W.D.Mich.1982) (citing HIM-13-2 § 2631 and distinguishing between reopenings and amendments of cost reports).

      . In St. Mary II, the fiscal intermediary, Blue Cross, refused to reopen Saint Vincent’s .cost report to add a challenge to the labor/delivery room policy of Manual § 2345, but reopened the report on an unrelated issue. The PRRB then exercised jurisdiction over all of Saint Vincent’s claims on appeal, including its challenge to Manual § 2345. The PRRB thought that the hospital was entitled to add anything that it wanted to its cost report, once the intermediary had reopened the report. The Deputy Administrator then reversed the PRRB, finding that it lacked jurisdiction over Saint Vincent's challenge to § 2345. The case then went to the federal district court, which did not discuss the jurisdiction issue, and finally to the court of appeals. The court of appeals affirmed the Deputy Administrator, finding that the PRRB lacked jurisdiction over Blue Cross’ denial of the hospital’s request to reopen. 741 F.2d at 1449. The fact that Blue Cross has allowed reopening on a separate issue was deemed irrelevant, as “reopening is issue-specific.” Id.

      . The Court reasoned that the' carriers who selected the officers were disinterested, as all claims were paid from government rather than from carrier funds. In addition, the Government paid the salaries of the hearing officers themselves. 102 S.Ct. at 1670-71.

      . See Beth Israel Hosp. v. Heckler 734 F.2d 90 (1st Cir.1984); Baylor Univ. Medical Center v. Heckler 730 F.2d 391 (5th Cir.1984); International Philanthropic Hosp. Found. v. Heckler, 724 F.2d 1368 (9th Cir.1984).

      . Moreover, the evidence that the Secretary proposes to submit is based on 1981 hospital data, and was therefore available to her at the time of the administrative proceedings in this case.

      . The Secretary also argues that a remand is "required" by The University of Tennessee v. United States Dept, of Health and Human Serv., 737 F.2d 579 (6th Cir.1984). In University of Tennessee, the district court had upheld the Secretary on the labor/delivery issue that is now before this court. After the district court issued its decision, Judge McGowan released his opinion in St. Mary, which cast doubt on the validity of the decision of the district court. University of Tennessee was then appealed to the Sixth Circuit. During oral argument, the two sides agreed that the case should be remanded to the Secretary for further consideration in light of St. Mary. The Sixth Circuit agreed, and remanded the case.

        University of Tennessee does not govern the case before this court. The plaintiff hospitals correctly characterize the action taken by the Sixth Circuit as "an order entered upon stipulation of the plaintiffs and defendants.” Moreover, it makes no sense for this court to remand the case to the Secretary for further consideration in light of St. Mary. The Secretary, acting through the Deputy Administrator, already has explicitly considered and rejected St. Mary in the administrative phase of this case.


author: SWEET, District Judge.

text:
    ANGEL MUSIC, INC., on behalf of itself and all other publishers, persons or entities which own copyrighted music and which are represented by The Harry Fox Agency, Plaintiffs, v. ABC SPORTS, INC., on behalf of itself and all other producers, syndicators and distributors of television programs utilizing copyrighted music and The Harry Fox Agency, Inc., Defendants.
    No. 84 Civ. 7900 (RWS).
    United States District Court, S.D. New York.
    May 22, 1985.

      Thomas A. Dickerson, New York City, for plaintiffs.
    Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Andrew J. Peck, Sidney S. Rosdeitcher, New York City, of counsel); Silverman & Shulman, P.C., New York City (Alan L. Shulman, New York City, of counsel), for defendants.
   OPINION

SWEET, District Judge.

Plaintiff Angel Music, Inc. (“Angel Music”) and a purported plaintiff class of music publishers (collectively, “Angel Music”) brought this action against defendants ABC Sports, Inc. (“ABC”), The Harry Fox Agency, Inc. (“Fox”) and a purported defendant class of television producers asserting a cause of action for copyright infringement against ABC and a cause of action for breach of fiduciary duty against Fox. Fox now moves to dismiss the complaint with respect to Fox for lack of subject matter jurisdiction. The motion is granted with leave to renew the action as set forth below.

Angel Music’s cause of action against ABC and the alleged defendant class (collectively “ABC”) alleges that ABC synchronized nineteen seconds of a copyrighted song owned by Angel Music into its Olympics broadcast on February 18, 1984. Angel Music alleges that ABC did not obtain a synchronization license from Angel Music for this song and contends that ABC has a general policy of not obtaining synchronization rights to copyrighted songs owned by Angel Music. Angel Music's cause of action against Fox alleges that Fox is the trustee and agent of Angel Music and other members of the purported plaintiff class of music publishers and that Fox has breached its fiduciary duty by allegedly failing to enforce their synchronization rights.

The basis of jurisdiction for the entire complaint is the copyright laws, 28 U.S.C. § 1338 and 17 U.S.C. §§ 101 et seq. In its motion, Fox contends that the claim of breach of fiduciary duty is a state law claim that should be dismissed for lack of subject matter jurisdiction because there is no diversity of citizenship between the parties. In response, Angel Music argues first that this court should assert “pendent party” jurisdiction over Fox, and further argues that in any event the Fox claim is cognizable under 28 U.S.C. § 1338(b) as unfair competition and contributory infringement of the copyrights of Angel Music.

The concept of “pendent jurisdiction” has its origin in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), in which the Supreme Court held that where there is federal jurisdiction over parties with both federal and non-federal claims, a federal court has the constitutional power under Article III, Section 2 to adjudicate the non-federal portion of the dispute. The Court noted, however, that the federal and non-federal claims must derive from a “common nucleus of operative fact” so that the plaintiff would ordinarily be expected to try the case in one forum. 383 U.S. at 725, 86 S.Ct. at 1138. The Court also held that the exercise of pendent jurisdiction is discretionary and should depend upon considerations of judicial economy, convenience, and fairness to the litigants. Id.

Because all the parties were already before the Court, Gibbs involved only the question of pendent claim jurisdiction, not pendent party jurisdiction. As the Supreme Court has noted, there is “a significant legal difference” between allowing two parties already before a court to litigate a related state claim, and allowing a plaintiff to join an additional defendant over whom there is no independent basis of jurisdiction merely because the state law claim against the defendant derives from the same facts as the underlying federal claim. Aldinger v. Howard, 427 U.S. 1, 14-16, 96 S.Ct. 2413, 2420-2421, 49 L.Ed.2d 276 (1976). While Congress has not made statutory determinations as to the scope of the word “cases” in Article III, it had directly addressed the issue of who qualifies as a “person” subject to federal jurisdiction, id. at 15-16, 96 S.Ct. at 2421, and the Court has therefore noted that resolution of a claim of pendent party jurisdiction “calls for careful attention to the relevant statutory language.” Id. at 17, 96 S.Ct. at 2421.

The Supreme Court has thus far declined to directly confront the “subtle and complex” question of the existence or scope of pendent party jurisdiction on a broad level. Aldinger v. Howard, supra, 427 U.S. at 18, 96 S.Ct. at 2422. In the three cases in which the Supreme Court has addressed the issue of pendent party jurisdiction, the Court has relied on this emphasis on careful statutory construction to deny such jurisdiction on the specific grounds that to grant jurisdiction would circumvent the Congressional intent behind the particular statute in question. See Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973) (grant of pendent party jurisdiction in diversity class action inconsistent with amount in controversy requirement of 28 U.S.C. § 1332); Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) (allowing pendent party jurisdiction over non-diverse third party defendant where diversity was sole basis of jurisdiction would circumvent complete diversity requirement of 28 U.S.C. § 1332(a)(1)); Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976) (pendent party jurisdiction over county immune to suit under § 1983 and as to which there was no independent basis of jurisdiction inappropriate in civil rights action under 42 U.S.C. § 1983).

Despite the Court’s refusal “to lay down any sweeping pronouncement upon the existence of exercise of [pendent party] jurisdiction,” Aldinger v. Howard, supra, 427 U.S. at 18, 96 S.Ct. at 2422, these decisions provide certain guidelines for determining when the exercise of pendent party jurisdiction is appropriate. See DeBellas v. United States, 542 F.Supp. 999, 1004 (S.D.N.Y.1982). The Court’s opinions suggest that even though constitutional power to exercise pendent party jurisdiction may exist under Article III, Section 2 where the claims constitute one case or controversy, see Owen Equipment & Erection Co. v. Kroger, supra, 437 U.S. at 373, 98 S.Ct. at 2402, a court must also determine that there is no statutory obstacle to jurisdiction and that “Congress ... has not expressly or by implication negated its existence,” Aldinger v. Howard, supra, 427 U.S. at 18, 96 S.Ct. at 2422, before exercising pendent party jurisdiction. See DeBellas v. United States, supra, 542 F.Supp. at 1004. The Court has also suggested that while the exercise of pendent party jurisdiction, like pendent claim jurisdiction, is within the discretion of the court and must depend in part upon considerations of judicial economy, convenience and fairness to litigants, a plaintiff faces a much greater burden when seeking to join a new party not otherwise subject to federal jurisdiction than when seeking to litigate a state law claim when the parties are already before the court. Aldinger v. Howard, supra, 427 U.S. at 18, 96 S.Ct. at 2422. Factors that should be taken into account when considering judicial economy and convenience include the exclusivity of federal jurisdiction and the ability to obtain full relief in one court. Id. at 18, 96 S.Ct. at 2422.

Applying the above guidelines to the case at hand, it is evident that the issue of negative statutory intent does not affect the determination as to whether jurisdiction should be asserted over Fox. An examination of the applicable federal copyright statute, 28 U.S.C. § 1338(b), does not indicate that there was any statutory intent to exclude such defendants as Fox from the jurisdiction of this court. 17 U.S.C. § 501 specifically permits the joinder of any person having an interest in a copyright and defines an infringer of a copyright as “anyone” who violates the rights of a copyright holder. See also RCA Records v. All-Fast Systems, Inc., 594 F.Supp. 335, 339 (S.D.N.Y.1984) (defendant machine operator may be liable as contributory infringer); Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (2d Cir.1971) (pendent party jurisdiction exercised over party against whom related state claims were asserted in copyright case). There is nothing to suggest, as there was in the cases in which federal jurisdiction was grounded in diversity and in the civil rights statutes, that the copyright statutes were intended to apply to only certain defendants. As long as the claims against Fox and the claims against ABC derive from “a common nucleus of operative fact,” therefore, this court has the constitutional power to assert jurisdiction over Fox.

Fox contends that the operative facts as to each claim are not sufficiently related so as to constitute one constitutional case. It asserts that while the federal copyright claim against ABC turns on the practices followed by producers and television programs in using copyrighted music and a determination of whether such use constitutes an infringement of Angel Music’s copyright, the claim of breach of fiduciary duty concerns only the unrelated issues of the relationship between Angel Music and Fox, the scope and nature of the obligation created by that relationship, and the degree to which these obligations were breached. It argues that because liability under each claim is based on a different legal theory, proof of the factual elements of the two claims will differ significantly.

Although it is not necessary for the exercise of pendent jurisdiction that there be complete identity of facts and issues with respect to the federal and state claims, Maternally Yours v. Your Maternally Shop, 234 F.2d 538, 543 (2d Cir.1956), courts have frequently declined to assume jurisdiction where the claims are based on different factual and legal elements. See, e.g., Scarves by Vera, Inc. v. United Merchants & Mfrs„ Inc., 173 F.Supp. 625 (S.D. N.Y.1959); Wilder v. Irvin, 423 F.Supp. 639, 642-43 (N.D.Ga.1976) (“[p]laintiff’s state and federal claims present entirely different elements of proof and theories of recovery.”) Even where the claims are clearly related and derive from the same event courts have held that the claims are not sufficiently one constitutional case if they are related sequentially or if the claims are based on different legal theories. See, e.g., Cheltenham Supply Corp. v. Consolidated Rail Corp., 541 F.Supp. 1103, 1109 (E.D.Pa.1982).

In the present case, there appears from the complaint to be only a minimal overlap of the factual circumstances behind each claim. Although both claims develop out of the same alleged injury, namely, the use of Angel Music’s material by ABC and other producers without appropriate authorization or compensation, the claims are based on entirely different legal theories. Angel Music’s success against either defendant would not necessarily assure its success against the other defendant. The mere fact that separate trials might require some overlap of proof is not sufficient to force a defendant against whom a straightforward state claim of breach of fiduciary duty is asserted to participate in the trial of a potentially complex and lengthy federal copyright claim against a separate group of defendants. See, e.g., Matarazzo v. Friendly Ice Cream Corp., 70 F.R.D. 556, 560 (E.D.N.Y.1976) (no jurisdiction where federal claim requires proof of a substantially broader spectrum of conduct.) Although federal court is the only forum in which both claims might be tried together, because of the exclusivity of federal jurisdiction over copyright claims, such considerations of judicial economy and convenience do not outweigh the unfairness to Fox that would result from a joint trial of essentially unrelated claims.

The only factor which might support the conclusion that both claims arise from a common nucleus of fact is the potential relationship between the Fox claim and ABC’s defense to the copyright claim. In its answer ABC included as its Fifth Affirmative Defense the claim that:

[t]he purported plaintiff class, and their . respective agents and representatives were aware that ABC Sports had a practice of using copyrighted music ... Despite this awareness ... respective agents and representatives were silent and declined to take action against ABC Sports. In addition, by affirmative representation, agreements, and acts ... respective agents and representatives consented to the use of copyrighted music ... Such silence, inaction and affirmative consent was relied upon by ABC Sports to its detriment.

Angel Music contends that the reference to “agents and representatives” was meant to include Fox. If the nature of the relationship between Fox and Angel Music and the degree to which Fox breached any duty to Angel Music by granting rights to ABC or by failing to protect Angel Music’s rights becomes an asserted defense in the claim against ABC, the two claims could be factually and legally intertwined to a significantly greater degree. From the papers submitted thus far, however, it appears likely that ABC was referring to Broadcast Music, Inc. (“BMI”), an organization which secured blanket performing rights licenses for the plaintiffs. In any event, the degree to which any defense involving Fox may be a factor in the claim against ABC is at present only speculative. If Angel Music is able to demonstrate the existence of such a defense following the completion of discovery, this court would entertain a motion to add Fox as a defendant upon such a showing.

Based on the papers submitted thus far, Angel Music has failed to establish that the claims against Fox and ABC are so intimately related as to constitute one case that would ordinarily be expected to proceed in one forum. Because the claims do not arise from a common nucleus of operative fact, this court lacks the constitutional power to exercise pendent party jurisdiction over Fox, see United. Mine Workers v. Gibbs, supra. As to Angel Music’s contention that the Fox claim may ultimately prove to be cognizable under 28 U.S.C. § 1338(b), Angel Music has not amended its complaint to assert a claim against Fox under the copyright laws. Furthermore, Angel Music concedes that such a claim would be dependent on the alleged anticipated defense by ABC Sports and thus must also await the development of facts sufficient to support its contentions. Accordingly, the motion to dismiss the claim against Fox is granted with the understanding that Angel Music may move to renew its claim against Fox upon the completion of discovery if it appears that there are adequate grounds.

For the reasons discussed above, Fox’s motion to dismiss is granted. Discovery will be completed by August 21, 1985 and joint pretrial orders submitted by August 28, 1985.

IT IS SO ORDERED.


author: LA PLATA, District Judge.

text:
    LOCAL UNION NO. 337 OF the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, an unincorporated voluntary labor organization, Plaintiff, v. FAYGO BEVERAGES, INC., a Michigan Corporation, and Barry Brown, jointly and severally, Defendants.
    No. 85-CV-70536-DT.
    United States District Court, E.D. Michigan, S.D.
    May 22, 1985.
    Jerome S. Coleman, Farmington Hills, Mich., for plaintiff.
    Earl R. Boonstra and Mark S. Demorest, Detroit, Mich., for defendants.
   OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

LA PLATA, District Judge.

On November 29, 1983, Jonas Rogers was discharged from his employment in the production department of Defendant Faygo Beverages, Inc. (hereinafter Defendant). His union, the Plaintiff herein, filed a timely grievance concerning the termination. Ultimately, on January 25, 1984, the jointly selected Arbitrator, in a comprehensive opinion, denied Plaintiffs grievance.

In its Complaint to vacate the opinion and award of the Arbitrator, Plaintiff contended that the Arbitrator’s decision (1) exceeded the scope of the Collective Bargaining Agreement and (2) was clearly erroneous and illogical. Both parties filed Motions for Summary Judgment, under Fed.R.Civ.P. 56, asserting that no genuine issue of material fact exists regarding the Arbitrator’s award.

An employee at Defendant’s principal plant for a period in excess of four years, Jonas Rogers was laid off from his position on October 14, 1983. Shortly prior to his layoff, Rogers submitted a signed, completed change of address form to the personnel department of Defendant, indicating that he was living on Third Street in Detroit. On November 18, 1983, Defendant mailed, by certified letter, a notice of recall to Rogers, directing him to return to work on November 28, 1983:

November 18, 1983
Mr. Jonas Rogers
8347 Third
Detroit, MI 48202
Dear Mr. Rogers:
You are being recalled to work on November 28, 1983. Please call 925-1600 on Wednesday, November 23, 1983 for information regarding your starting time.
You are instructed to report to the Detroit Industrial Clinic, 60 W. Hancock, Detroit, Michigan, before Saturday, November 26, 1983.
Bring this letter with you to the clinic. Failure to report as directed may result in disciplinary action up to and including discharge.
Sincerely,
Pete Onilio
Personnel Representative

Learning from a co-employee that he had been recalled, Rogers arrived at the plant on November 29, 1983, one day after the scheduled recall date. Owing to his failure to appear on the scheduled day, Rogers was suspended by Peter Onelio, a personnel representative. On the following day, Rogers’ employment with Defendant was terminated by Robert McKay, the Assistant Director of Personnel.

The rule governing Defendant’s recall procedure under the Collective Bargaining Agreement, Art. VI 15, provides:

In the event of a layoff for more than five (5) days, an employee so laid off shall be given seven (7) days’ notice by certified letter to his last known address. In the event the employee fails to make himself available for work at the end of said seven (7) days he shall lose all seniority rights under this Agreement.

Rogers’ justification for not appearing at the production facility on November 28, 1983, was that the United States Postal Service failed to deliver the certified letter to his home, located on Third Street in Detroit. It is uncontroverted that a letter carrier returned to Defendant the November 18, 1983, certified letter, bearing a notation, “Moved; Left No Address.” Additionally a letter apprising Rogers of his employment termination, postmarked December 1,1983, was returned to Defendant, the letter carrying a notation that the addressee moved without leaving a forwarding address.

On behalf of Rogers, Plaintiff has consistently maintained that the sole reason for the employee’s failure to comply with the recall directive was the negligence of the postal service in returning the November 18, 1983, certified letter to Defendant. Plaintiff contends that the employee should not sustain the harsh penalty of discharge where he did not have knowledge of the recall notice.

According to testimony presented at the Arbitration Hearing, two representatives of Defendant inspected Rogers’ purported Third Street home on six occasions in December, 1983. In each instance, they were unable to detect any signs of habitation, such as footprints in the snow, maintenance of the property, or evidence of heat and light. Furthermore, the letter carrier’s decision to return the two certified letters to Defendant indicates that it appeared to him that the Third Street property was unoccupied.

In his Opinion, the Arbitrator specifically found that (1) the employee owed a duty, pursuant to the Collective Bargaining Agreement, to advise the employer of his current address; (2) Defendant complied with its duty to mail a certified letter, containing notification of the recall, to Rogers at the last known address; and (3) Rogers was accountable, at least in part, for the letter carrier’s return of the certified letters to Defendant. The Arbitrator gauged the credibility of the witnesses, specifically finding that the testimony of Defendant’s witnesses was more believable than that of Rogers. In denying the grievance, the Arbitrator concluded:

“Regardless of whether or not Mr. Rogers lived at the Third Street address during the time in question, it is clear that he had a duty to provide the company with an address to which mail regularly could be delivered. If his failure to do this results in his not receiving a recall notice in time for him to report to work on the appointed day, he must bear the penalty resulting from his own failure. “This arbitrator is convinced that the company complied with the contract and that the blame for failure of the recall letter’s delivery rests not with the Postal Service, but with the grievant. The result, considering the fact that the grievant was only one day late in reporting to work, may seem harsh. However, the arbitrator, pursuant to Section 25(d) of Article VIII of the contract, has no choice but to enforce the parties’ agreement. Consequently, the grievance must be denied.”

Under statutory and case law, a reviewing court has an extremely circumscribed role in an action to vacate an arbitration award rendered pursuant to the binding arbitration provisions of a Collective Bargaining Agreement. The applicable statute, 9 U.S.C. § 10, provides that Federal Courts may vacate arbitration awards only under the following circumstances:

“(a) Where the award was procured by corruption, fraud, or undue means.
(b) Where there was evident partiality or corruption in the arbitrators, or either of them.
(c) ■ Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.”

In United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960), the Supreme Court enunciated that a reviewing court should not substitute its construction of a Collective Bargaining Agreement for that of the arbitrator:

“[T]he question of interpretation of the Collective Bargaining Agreement is a question for the arbitrator. It is the arbitrator’s construction which was bargained for; insofar as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.”

Applying the foregoing precepts to the matter at bar, this Court concludes that the interpretations placed on the pertinent parts of the Collective Bargaining Agreement by the Arbitrator were permissible. In denying Plaintiff’s grievance, the Arbitrator acted within the scope of his authority under the Agreement. While the ramifications of the employee’s failure to comply with the recall notification were severe, neither this Court nor the Arbitrator is empowered to alter or amend Article VI, 15 of the Agreement.

This Court notes that, contrary to Plaintiffs assertions, Defendant was not obligated to provide Rogers with a warning regarding his non-compliance with the recall directive. The controlling term of the Agreement, Article V, 15, clearly informs a laid-off employee that his failure to comply with a recall notice subjects him to the loss of his seniority rights. The contract term relied upon by Plaintiff, Article VII, 23, is inapposite to the instant matter, since its application is confined to the discharge of an employee for misconduct or deficient work performance.

Accordingly, the cross-motion of Plaintiff for summary judgment is hereby DENIED; the motion of Defendants for summary judgment is hereby GRANTED. IT IS FURTHER ORDERED that the arbitration award of January 25, 1984, be enforced in its entirety.

A judgment to that effect will enter.


author: ALAIMO, Chief Judge.

text:
    Michael Angelo BLACKWELL, by his surviving parents and next friends, J. Hugh BLACKWELL and Lillie Mae Blackwell, and Franklin Rivers, Plaintiffs, v. BOARD OF OFFENDER REHABILITATION, STATE OF GEORGIA, et al., Defendants.
    Civ. A. No. 482-323.
    United States District Court, S.D. Georgia, Savannah Division.
    May 22, 1985.
    David Roberson, Savannah, Ga., for plaintiffs.
    William Tinkler, George Weaver, Arthur H. Glaser, Atlanta, Ga., Ashley Royal, Macon, Ga., for defendants.
   ORDER

ALAIMO, Chief Judge.

All that remains in this case is the fallout from the plaintiffs’ November 14, 1983, motion for attorney fees. That motion was denied on February 12, 1985. Now before the Court for disposition is the defendants’ motion to recover from plaintiffs’ attorney, David Roberson, the $10,969.83 in attorney fees, costs and expenses which the defendants expended in resisting the fee application. The Court is of the opinion that sanctions against Roberson for violating Fed.R. Civ.P. 11 are appropriate and shall, therefore, grant defendants’ motion.

FACTS

The complaint in this case was filed on July 27, 1982, seeking, inter alia, legal and equitable relief under 42 U.S.C. § 1983 for alleged violations by the defendants of rights guaranteed plaintiffs under the United States Constitution.

This civil rights action arose from events which occurred at the Georgia State Prison at Reidsville, Georgia (“the Prison”), on September 24, 1981. Michael Angelo Blackwell and Franklin Delano Rivers were then inmates at the Prison. At approximately 6:00 p.m. on the 24th, Blackwell and Rivers were attacked by three knife-wielding fellow inmates. Rivers was severely injured; Blackwell died as a result of his injuries. The defendants, former employees of the prison, were on duty and allegedly on the scene at the time of the attack. The complaint alleged that these employees violated plaintiffs’ rights under the United States Constitution by having failed to act to prevent the attack.

After extensive discovery and pretrial motions, the case was settled. In September, 1983, as part and parcel of the settlement agreement, each plaintiff executed a document entitled “Release and Indemnity Agreement.” See Affidavit of Arthur H. Glaser, Exhibits C & D (November 28, 1983). This document stated, in part, that “the undersigned, release, acquit and forever. discharge ... [the defendants] ... from any and all claims, actions, causes of action ... [and] costs (including assessable court costs and attorneys’ fees) ... which the undersigned now have or which may hereafter accrue on account of ... [the incidents which gave rise to CV 482-323].” It further specified that it included “any claims which were or could have been brought in Civil Action No. 482-323.” This release was signed by each of the plaintiffs, which signatures were witnessed by their attorney, David Roberson.

On October 13, 1983, the case was dismissed with prejudice by Order of United States District Judge B. Avant Edenfield, of this district’s Savannah Division. Judge Edenfield had presided over the case from its inception. The Order read:

DISMISSAL WITH PREJUDICE
All parties to the above action having settled the case,
IT IS HEREBY ORDERED That the Plaintiffs’ Complaint is hereby dismissed with prejudice with each of the parties to bear their own costs.

Plaintiffs’ attorney, David Roberson, and all defendants’ attorneys demonstrated their consent to the dismissal as ordered by undersigning this document.

On November 14, 1983, Roberson filed a motion for an award of attorney fees and costs pursuant to 42 U.S.C. § 1988. This motion made no mention of the releases which the plaintiffs had executed or of the dismissal Order’s provision that the parties were to bear their own costs. Plaintiffs’ motion and brief ignored these obstacles to recovery and argued only that prevailing § 1983 plaintiffs are entitled to fees under § 1988. The defendants responded on November 28, 1983, with a motion (1) to hold plaintiffs’ counsel in contempt of court for having violated the terms of the dismissal Order, (2) to assess against plaintiffs’ counsel the attorney fees, expenses and costs which the defendants expended in resisting the fee application, and (3) to require plaintiffs to tender the settlement proceeds.

After defendants’ response, the case remained in abeyance for some time. On October 17, 1984, it was transferred to this Court for plenary disposition. The parties submitted a new round of briefs on their respective motions. At a November 5, 1984, status conference, Roberson stated that it would be impossible for the plaintiffs to return the settlement proceeds. This left pending only the fee motions and the defendants’ motion to hold plaintiffs’ counsel in contempt.

Upon careful consideration of the parties’ briefs, the Court concluded that the plaintiffs’ right to recover attorney fees and costs had been fully compromised in the settlement. Consequently, at a hearing on February 7, 1985, the Court denied plaintiffs’ motion for fees and costs. See Orders of February 12 (minute order) and February 14, 1985. At an April 17, 1985, hearing, the defendants withdrew their motion to hold plaintiffs’ counsel in contempt. Thus, all that remains is defendants’ motion for assessment against Roberson of the $10,969.83 in attorney fees, expenses and costs which the defendants expended in resisting the fee application.

The defendants request only the expenses which they incurred in resisting plaintiffs’ motion for fees under § 1988. They urge that plaintiffs’ motion was meritless and suggest three grounds for a sanction-type fee award. First, they submit that the Court should exercise against Roberson its inherent power to tax fees against counsel who have abused processes of the Court. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). Second, defendants request a fee award pursuant to 28 U.S.C. § 1927, which permits a party to recover “the excess costs, expenses and attorney fees reasonably incurred” because of conduct by opposing counsel which “unreasonably or vexatiously” multiplies any proceedings. 28 U.S.C. § 1927 (1982). Movants assert that the most expansive basis of all for assessing fees against plaintiffs’ counsel is Fed.R.Civ.P. 11. Because the Court shall grant the defendants’ motion on the basis of Rule 11, it is unnecessary to discuss the other theories proposed by the defendants.

DISCUSSION

Federal Rule of Civil Procedure 11 makes the following provision for the imposition of sanctions against an attorney:

Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated... The signature of an attorney or party constitutes a certificate by him that he had read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is. not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation ... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

Fed.R.Civ.P. 11. The plaintiffs’ motion for attorney fees and all of plaintiffs’ briefs on the motion were signed by Roberson. Thus, only Roberson is subject to the Rule’s sanctipns.

Plaintiffs’ counsel’s submissions to this Court on the fee application failed to satisfy Rule ll’s standards for factual candor and legal reasonableness. The motion and brief of November 14, 1983, plaintiffs’ first pleadings on the fee issue, completely failed to note that the plaintiffs had signed documents purporting to release the defendants from liability for costs and fees. Plaintiffs’ counsel had himself signed the court’s Order dismissing the case, which Order stated that the parties were to bear their own costs. Yet, this feature of the dismissal Order was not mentioned in plaintiffs’ initial brief. Because it failed to address the effects of the settlement agreement on plaintiffs’ rights to recover fees, plaintiffs’ initial brief on the fee motion was simply beside the point.

It is inconceivable that Roberson had, by November 14, 1983, forgotten the import of the documents which he and his clients had signed only a few weeks previously. His failure to have addressed the effects of the settlement was possibly an effort to buy time in which to devise an escape from them. Under Rule 11, the Court may not condone the use of such a delay tactic. Whatever the reason for the deficiencies, the Court is of the opinion that Roberson violated Rule 11 by failing to address in his November 14 brief the possible effects of the settlement on his clients’ rights to a fee award. See Silverman v. Center, 603 F.Supp. 430, 432 (E.D.N.Y.1985) (plaintiffs’ attorney’s lack of candor in presenting the circumstances and legal proceedings which preceded the complaint warranted imposition of Rule 11 sanctions).

In his supplemental brief filed December 3, 1984, Roberson finally addressed the dis-positive issue — the effect of the releases which his clients had signed. The Court ultimately denied plaintiffs’ motion, rejecting the arguments made in the supplemental briefs. The Court now concludes that those arguments so lacked legal merit that submission of the supplemental briefs violated Rule 11.

As Rule 11 states, an attorney’s signature on a motion certifies that the legal position espoused in the motion is “well grounded in fact and ... warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” The standard is one of reasonableness under the circumstances. See Advisory Committee Notes of 1983 to Amended Rule 11, reprinted in 2A J. Moore & J. Lucas, Moore’s Federal Practice $ 11.01[4] (2d ed. 1985). Thus, to apply Rule 11 to the case at bar, the Court must consider the reasonableness of plaintiffs’ counsel’s position in light of the circumstances in effect when he filed the fee motion and subsequent briefs.

The Court considers, first, that the language of the releases and the dismissal Order is unequivocal. They anticipate that the settlement includes any amount which the plaintiffs might have otherwise been able to collect in attorney fees and costs. Plaintiffs' counsel has not denied that this is the effect of the releases. Accordingly, when the settlement was consummated, the court and the defendants reasonably expected that the case was over. Yet, even as he signed the dismissal Order, Roberson apparently intended to seek by motion an additional $123,739 in attorney fees and costs. This disingenuous behavior ill-served the court’s interest in efficiently and finally settling this dispute.

Moreover, the arguments which Roberson has offered in his effort to avoid the fee settlement are thoroughly specious. Plaintiffs’ counsel cites no authority for his assertion that a prevailing § 1983 plaintiff may not compromise his attorney fees. See Plaintiffs’ Supplemental Brief, at 9-11 (December 3, 1984). There exists a wealth of precedent indicating that attorney fees may be included in the settlement of a § 1983 action. See Chicano Police Officers Association v. Stover, 624 F.2d 127 (10th Cir.1980); Mitchell v. City of Los Angeles, 753 F.2d 86 (9th Cir.1984) (amended February 24, 1985); Jennings v. Metropolitan Government of Nashville, 715 F.2d 1111, 1113-14 (6th Cir.1983); Brown v. General Motors Corporation, 722 F.2d 1009, 1011-12 (2d Cir.1983); El Club Del Barrio, Inc. v. United Community Corporations, Inc., 735 F.2d 98 (3d Cir.1984).

Equally unavailing is Roberson’s claim that the settlement did not include fees attributable to gaining Rivers’ August 1982 transfer from the Prison. The release which plaintiffs signed applied to “any claims which were or could have been brought in Civil Action No. 482-323.” The fee related to gaining Rivers’ transfer is plainly covered by this term of the release.

Plaintiffs’ counsel finally contends that the fee settlement should be void because he was ethically barred from negotiating with the defendants as to his own fee. Roberson’s argument is essentially that, by including attorney fees in the settlement offer, the defendants caused him to acquire a personal interest in the amount of his clients’ settlement. This argument ignores the fact that an attorney invariably has a personal interest in the size of the award which his or her client is to receive. This interest is particularly keen when the attorney is to be paid on a contingency basis. However, attorneys are not prohibited from entering into contingency agreements or, presumably, from settling cases which they have accepted on a contingency basis. See Model Code of Professional Responsibility EC5-7 and DR5-103(A)(2) (approving attorneys’ taking cases on a contingent fee basis).

Even if Roberson believed that his loyalty to his clients had been jeopardized by defendants’ lump-sum settlement offer, he was not entitled to lie behind the log while the settlement consummated and then seek fees in derogation of his clients’ agreement. When Roberson permitted an Order to be entered dismissing the case, his right to submit a motion for fees ended. See Mitchell v. City of Los Angeles, supra (when an Order is entered dismissing a case with prejudice, with the parties to bear their own fees and costs, an attorney’s power to move for fees under § 1988 disappears).

The Court is of the opinion that Roberson violated Rule 11 when he affixed his signature to the motion for attorney fees and to the subsequent briefs. In his initial brief, he inexplicably ignored the fact that his clients had settled their claims for attorney fees and costs. The arguments made in the subsequent briefs had no basis in existing law, nor in any reasonable view of the direction which the law should take.

Rule 11 states that a court shall impose sanctions upon violators, but leaves with the judge the discretion to tailor sanctions to the particular facts of the case. Moore’s Federal Practice, supra at ¶ 11.10[4]. Defendants suggest that plaintiffs’ counsel be made to repay the attorney fees, expenses and costs which defendants incurred in responding to the unmeritorious fee application. Such a sanction is specifically permitted by Rule 11, and the Court believes that it is an appropriate sanction in this case.

CONCLUSION

In accordance with the foregoing, the defendants’ motion for the award of attorney fees, expenses and costs is hereby GRANTED.

Defendants’ counsel have submitted affidavits showing that their reimbursable costs total $10,969.83. The Court has reviewed the affidavits and finds the amounts taxed reasonable. Accordingly, plaintiffs’ counsel, David Roberson, is ORDERED to personally remit to defense counsel George Weaver the sum of $10,-969.83, for distribution by Mr. Weaver of the appropriate amounts to the various defendants.

      . While Rule 11 permits the imposition of sanctions against a represented party, the Court concludes that such sanctions would be inappropriate in this case. Defendants have not alleged, nor does it appear to the Court that the plaintiffs were aware of any deficiency in their fee application.