author: SWEET, District Judge.

text:
    Patricia TENNEY and Harrel S. Tenney II, Plaintiffs, v. Wallace C. BEDELL, M.D., and Martin C. Koloski, M.D., and Surgical Group of Poughkeepsie, P.C., and Vassar Brothers Hospital, Defendants.
    No. 84 Civ. 7645(RWS).
    United States District Court, S.D. New York.
    Dec. 11, 1985.

      Ayre, Kors & Lustig, P.C., New York City, for plaintiffs; Kenneth N. Rashbaum, of counsel.
    Martin, Clearwater & Bell, New York City, for defendants Dr. Bedell and Koloski and Surgical Group of Poughkeepsie; John L.A. Lyddane, Lisa L. Crupi, of counsel.
    Hart & Hume, New York City, for defendant Vassar Brothers Hospital; Leslie F. Ruff, of counsel.
   SWEET, District Judge.

Both plaintiffs, Patricia Tenney and Harrel S. Tenney II (the “Tenneys”) and defendants Wallace C. Bedell, M.D. (“Dr. Be-dell”) have moved pursuant to Rules 50 and 59(e) to set aside the jury verdict and judgment in favor of the Tenneys for $210,-016.00 rendered on September 4, 1985. Defendant Vassar Brothers Hospital (the “Hospital”) as to which a directed verdict was granted, has moved for costs including attorney’s fees. The motions were submitted on October 1, 1985, and for the reasons set forth below all motions are denied except for the motion of the Hospital.

The action arose from a course of medical treatment to Mrs. Tenney administered by Drs. Bedell and Martin G. Koloski (“Dr. Koloski”) during March and April, 1983, in the course of which Dr. Koloski performed a hemorrhoidectomy. Dr. Bedell performed a sphincterotomy, and the Hospital provided medical care. At the close of the Tenneys’ case the action against the Hospital was dismissed. In its Special Verdict the jury found no malpractice was committed by either doctor but that Dr. Bedell failed to provide sufficient informtion to the Tenneys with respect to the dilation and sphincterotomy treatment and, therefore, found Dr. Bedell liable for failure to obtain informed consent. Damages of $140,031 for lost earnings, and $280,000 for pain and suffering were found, as well as contributory negligence in the amount of 50% on the part of the Tenneys.

The Tenneys seek to set aside the findings of contributory negligence made against them for a failure of causation, while Dr. Bedell seeks to set aside the judgment based on lack of informed consent. For the purpose of these motions, it is assumed that the Tenneys did not comprehend the fact that incontinence of stool could be a complication of surgical efforts to relax the spasms of her internal sphincter, when Mrs. Tenney consented to surgery on April 6, 1983. The testimony of Drs. Bedell, Bauer and Kesseler all established that advice should have been given to the patient of the possibility of fecal incontinence following a sphincterotomy. Although the question is close, their testimony in its totality added up to expert testimony in support of the alleged qualitative insufficiency of the consent as required by New York C.P.L.R. § 4401-a. The question of the content of the advice given, of course, was factual and resolved against Dr. Bedell.

Further, there was testimony from Dr. Bauer from which the jury could have concluded that Mrs. Tenney could have decided to defer the sphincterotomy if aware of the risk of fecal incontinence. As the dilation turned out, such a delay would have subjected her to an additional hospitalization and pain, but that there was sufficient expert evidence before the jury on which they could conclude that the consent would not have been given had all the risks been known. The Special Verdict against Dr. Bedell will not be set aside.

As to the negligence of the Tenneys, there was evidence relating to her post-operative conduct, including the delay in seeking medical assistance and the course of her recovery once that assistance was obtained, from which the jury could conclude that the Tenneys failed to use due care in seeking treatment and in complying with the instructions for care given to her and that such negligence was a factor causing the damages she suffered. The chronology of events and subsequent treatment was sufficient to supply evidence of increased damages resulting from the Tenneys’ conduct, even absent expert testimony on the subject. The finding of the jury with respect to contributory negligence will not be set aside.

The Hospital has moved for its costs in appearing at trial. No evidence was ever presented against the Hospital. The Tenneys, however, maintain pretrial dismissal was not appropriate because the doctor defendants might have sought, when called in the plaintiffs’ case, to avoid liability by attributing the Tenneys’ damages to the Hospital. This asserted reason for prosecuting this case is contradicted by the circumstances of this action.

The doctor defendants had not cross-claimed against the Hospital, nor did the Hospital cross-claim against them. Neither of the physicians was an employee of the Hospital, and, therefore, independent liability had to be established against the Hospital. With the exception of members of its nursing staff, no employee of the Hospital rendered any kind of care or treatment to Mrs. Tenney during either of her two admissions in the Hospital. All of the physicians in the operating room during each surgical procedure were independent contractors, and there was no claim of liability as against the Hospital as a result of any act or omission of a physician-employee. The testimony developed during pretrial discovery, including the depositions of the doctors, did not establish or indicate any culpable actions on the part of Hospital employees. On June 19, 1985, two months before the trial, the Tenneys, after responding to a Rule 26 interrogatory, confirmed that they would present no expert testimony against the Hospital. Yet, despite the complete absence of a factual basis for its purported claim against the Hospital, the Tenneys refused to discontinue this aspect of the action. At trial, Tenneys’ counsel stated in his opening that he intended to demonstrate that the Hospital was negligently responsible for Mrs. Tenney’s injuries, but again no evidence was introduced.

The Court of Appeals has recently stated the standards guiding this court’s “inherent equitable powers” to grant attorney’s fees under the bad faith exception to the American Rule requiring each party to bear its own fees, and that test is met here. See Sierra Club v. Army Corps of Engineers, 776 F.2d 383 (2d Cir.1985). While the action against the Hospital was not frivolous at its inception, the action was entirely without merit after June 19, 1985 at which time the Tenneys confirmed that they would present no expert testimony against the Hospital. Moreover, the Tenneys’ refusal to discontinue their action after being confronted with this lack of evidence indicates careless and vexatious behavior which amounts to an “improper purpose.” See Sierra Club, supra, at 390. See also Nemeroff v. Abelson, 620 F.2d 339, 350-51 (1980). The circumstances indicate that the Tenneys maintained this action, not to protect themselves but rather to include before the jury an additional defendant. Such a multiplicity of defendants, of course, creates the risk of a prejudicial effect upon the proceedings. Since the conjunctive standard of meritlessness and improper purpose has been met, an award of attorney's fees is proper in this case.

The Hospital is entitled to recover its legal fees of $6,625.00 and disbursements of $135.85 incurred subsequent to June 19, 1985. The Hospital’s request for fees is adequately supported by contemporaneous time records, and no objections were presented by the Tenneys. The hourly rate of $100 per hour appears very reasonable for work by attorneys in this legal community. See Andrews v. Koch, 554 F.Supp. 1099, 1101 (E.D.N.Y.1983) ($90 to $100 hourly rates); Plaskow v. Peabody International Corp., 95 F.R.D. 297, 298 (S.D.N. Y.1982) ($125 to $175 per hour rates).

The motions of the Tenneys’ and Dr. Bedell to set aside the verdict are denied and the motion of the Hospital for attorneys’ fees and costs is granted.

IT IS SO ORDERED.


source: Caselaw Access Project

author: ACOSTA, District Judge.

license: Public Domain

text:
    PEOPLE OF PUERTO RICO, Plaintiff, v. Ismael SANTOS-MARRERO, Defendant.
    Crim. No. 85-0450(RLA).
    United States District Court, D. Puerto Rico.
    Dec. 12, 1985.
    Esteban J. Nuñez-Hoyo, Federal Litigation Div., Dept, of Justice, San Juan, P.R., for plaintiff.
    Osvaldo Cario-Linares, Asst. U.S. Atty., U.S. Dept, of Justice, Federal Office Building, Hato Rey, P.R., for defendant.
   AMENDED OPINION AND ORDER

ACOSTA, District Judge.

Defendant petitioned removal pursuant to 28 U.S.C. § 1442a of criminal proceedings instituted in the State court against him for alleged violation of the Puerto Rico traffic statutes.

An evidentiary hearing was held on November 26, 1985 under the provisions of 28 U.S.C. § 1446(c)(5). The Court, having reviewed the evidence and testimony presented, as well as the memoranda submitted by both parties, hereby finds as follows.

Ismael Santos-Marrero (hereinafter referred to as “Santos-Marrero”) is currently a member of the United States Army Reserve. His company is stationed in Buchanan, Cataño, Puerto Rico.

On September 27, 1985, while on active duty, Santos-Marrero was ordered to drive a military twenty-ton truck from Salinas to Cataño as part of a three-truck convoy. Santos-Marrero was specifically given orders as to the route to follow on his way to the company base. On the exit from the highway to Catafio, within the route he was ordered to take, defendant was involved in a traffic accident with an automobile driven by a Puerto Rico police officer.

The military vehicles, which were being used in a project in the southern part of the island, were being taken to the company’s home base for maintenance over the weekend.

As a result of the collision, defendant was charged with reckless driving in the District Court of Puerto Rico, Cataño Part, which prompted the petition for removal presently under consideration.

ARGUMENT

Criminal actions instituted in State courts are removable to the federal forum under 28 U.S.C. § 1442, which, where pertinent, reads as follows:

(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

Title 28 U.S.C. sec. 1442a provides for the removal of State criminal charges brought against members of the armed forces. It reads as follows:

A civil or criminal prosecution in a court of a State of the United States against a member of the armed forces of the United States on account of an act done under color of his office or status, or in respect to which he claims any right, title, or authority under a law of the United States respecting the armed forces thereof, or under the law of war, may at any time before the trial or final hearing thereof be removed for trial into the district court of the United States for the district where it is pending in the manner prescribed by law, and it shall thereupon be entered on the docket of the district court, which shall proceed as if the cause had been originally commenced therein and shall have full power to hear and determine the cause.

Military personnel may request removal under either section 1442 or 1442a since they are “officers of the United States”. 1A Moore’s Federal Practice, para. 0.164/1/, p. 382 (footnote omitted).

The criteria utilized to determine whether or not the criminal proceedings should be continued in the federal system is essentially the same under both removal statutes.

“The language in § 1442a, which deals with removal by members of the armed forces, is comparable to that of paragraph (1) of § 1442(a)”. 1A Moore’s Federal Practice, para. 0.164/2/, p. 395 (footnote omitted).

In establishing the guidelines for removal, the Supreme Court has stated:

There must be causal connection between what the officer has done under asserted official authority and the state prosecution. It must appear that the prosecution of him for whatever offense has arisen out of the acts done by him under color of federal authority and in the enforcement of federal law ... It is enough that his acts or his presence at the place in performance of his official duty constitute the basis, though mistaken or false, of the state prosecution.

State of Maryland v. Soper, 270 U.S. 9, 33, 46 S.Ct. 185, 190, 70 L.Ed. 449 (1926).

It further held: “It is enough if the prosecution ... is based on or arises out of the acts he did under authority of federal law in the discharge of his duty and only by reason thereof.” Id. at 33, 46 S.Ct. at 190.

The removal provision responds to the federal supremacy in that the government can only act through its individual officials. By allowing the federal court to preside over their prosecution, the federal employees are protected “from interference by hostile State courts.” Willingham v. Morgan, 395 U.S. 402, 405, 89 S.Ct. 1813, 1815, 23 L.Ed.2d 396 (1969).

In Com. of Pennsylvania v. Newcomer, 618 F.2d 246 (3d Cir.1980), the Court of Appeals found that criminal proceedings brought against a postal employee for vehicular homicide were properly removed in that there existed “the necessary causal connection ... between his federal authority to drive a postal truck and the facts involved in the accident which are the basis for the ... prosecution, acts which occurred while he was acting as an employee of the postal service, while driving a postal truck, within the scope of his office.” Id. at 250.

Plaintiff has cited State of Ohio v. Dorko, 247 F.Supp. 866 (N.D.Ohio 1965), which makes reference to various cases in which removal was denied. However, as the Court observed in Com. of Pennsylvania, supra, 618 F.2d at 250: “[T]hese cases preceded Willingham v. Morgan. Moreover, these cases typically were influenced by the absence of a federal defense raised by the defendant.” We also agree with the assessment by the Third Circuit Court of Appeals that allegation of a federal defense is not essential for removal and that the original removal statutes were enacted not so much to provide federal forums for federal defenses, as to protect federal officers from interference with the operations of federal government by the State.

In Application of Donovan, 601 F.Supp. 574 (S.D.N.Y.1985), the Court declined to allow the removal finding that the State prosecution against the Secretary of Labor for alleged fraud before he was appointed Secretary and continuing thereafter “in no way pertain to his performance of official duties; nor do his duties as Secretary of Labor provide any explanation or excuse for the crimes charged.” Id. at 580.

A criminal prosecution instituted against a regional office of the United States Postal Service for alleged zoning violations was found to be covered by the criminal removal provisions “[s]ince the conduct which formed the basis of this criminal action, the clearing of land for the construction of a post office facility, was clearly performed under color of federal authority, the provisions of § 1442(a)(1) ...” Middletown TP. v. N/E Reg. Off., U.S. Postal Serv., 601 F.Supp. 125, 127 (D.N.J.1985).

A removal petition of State charges brought against a military officer for involuntary manslaughter was denied in Com. of Virginia v. Harvey, 571 F.Supp. 464 (E.D.Va.1983). The defendant had been given travel orders to report to another base for a four-week course. While en route to the course in a rented vehicle, the defendant was involved in a traffic accident. His orders authorized the traveling in a rented automobile.

The Court found that, at the time the accident took place, the officer was not “under color of office.” It went on to hold that there was missing the necessary connection between the act giving rise to the charges and his office or duty. It stated:

In this case /the defendant/ was under no duty to drive an automobile through Hanover County. His duty was merely to proceed from one place of duty to another and he was authorized in so doing to use an automobile. His presence in Hanover County operating an automobile was a matter of his individual choice. It was not a necessary consequence of official duty.”

Id. at 465.

Given the particular circumstances present in the case before us, we find the criminal charges brought against SantosMarrero fall within the scope of 28 U.S.C. § 1442a. The traffic accident occurred while Santos-Marrero was on active duty driving a military vehicle under specific orders to reach a particular destination on a given date, as well as to follow a particular route. His presence'at the scene of the accident was not a result of his individual choice, but a direct consequence of orders from his superiors. The prosecution, under these circumstances, arises out of his conduct while under federal authority and only by reason of the discharge of his duty. Accordingly, there is a direct causal connection between defendant’s driving under official duty and the prosecution.

In its memorandum of law, plaintiff urges the Court to apply the doctrine of abstention in this case. In response, the Court states that in no case considering the application of either 28 U.S.C. § 1442 or § 1442a has the doctrine of abstention been even remotely mentioned. Plaintiff also urges the Court, in effect, to forego the interpretation and application of a federal statute because of the “very special relationship” between Puerto Rico and the United States.

It has been held that under its Commonwealth status, “Puerto Rico, like a state, is an autonomous political entity, ‘sovereign over matters not ruled by the Constitution of the United States’.” Rodriguez v. Popular Democratic Party, 457 U.S. 1, 8, 102 S.Ct. 2194, 2199, 72 L.Ed.2d 628 (1982) [quoting Mora v. Mejias, 115 F.Supp. 610, 612 (D.P.R.1953) ].

The Court in United States v. Quiñones, 758 F.2d 40, 43 (1st Cir.1985), held that “[wjhile the creation of the Commonwealth granted Puerto Rico authority over its own local affairs, Congress maintains similar powers over Puerto Rico as it possesses over the federal states.” It further held as follows:

The congressional intent behind the approval of the Puerto Rico Constitution was that the Constitution would operate to organize a local government and its adoption would in no way alter the applicability of United States laws and federal jurisdiction in Puerto Rico ... When Congress approved the Constitution of Puerto Rico it was simultaneously enacted: “The statutory laws of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect in Puerto Rico as in the United States ...”

Id. at 43 (citations omitted, underline supplied).

In light of the above, the operation of 28 U.S.C. § 1442 must be treated in Puerto Rico no differently than it would be in the fifty States of the Union.

CONCLUSION

Based on the foregoing, the petition for removal filed on November 1, 1985 by defendant Santos-Marrero is hereby granted.

It is further ORDERED that, pursuant to the provisions of 28 U.S.C. § 1446(c)(5), the District Court of Puerto Rico, Cataño Part, stay all proceedings in People of Puerto Rico v. Ismael Santos Marrero, Cr. 85-637.

It is further ORDERED that this case be referred to the United States Magistrate for disposition pursuant to the provisions of Rule 507.1(A) of the Local Rules of this Court and 18 U.S.C. § 3401.

IT IS SO ORDERED.

      . It appearing our Opinion and Order of December 3, 1985 was based exclusively on 28 U.S.C. § 1442, the general removal statute for federal officers, it is hereby amended to include the provisions of section 1442a pertaining to military officers.


author: YOUNG, District Judge.

text:
    Gary S. CAIANI, Plaintiff, v. TOWN OF WALPOLE, James Donahue, and Scott Bushway, Defendants.
    Civ. A. No. 83-3643-Y.
    United States District Court, D. Massachusetts.
    Dec. 13, 1985.

      Emanuel Howard, Sanford A. Kowal, Kowal, Howard & Snider, Boston, Mass., for plaintiff.
    Leonard Kopelman, Kopelman & Paige, Boston, Mass., for defendants.
   MEMORANDUM AND ORDER

YOUNG, District Judge.

The plaintiff, Gary Caiani, owns and operates a 12' X 12' wood frame booth at the Walpole Mall (the “Mall”) known as Gary’s T-Shirt Shop. On November 26, 1982, detectives James Donahue and Scott Bush-way of the Walpole Police Department conducted a search of Caiani and the premises at Gary’s T-Shirt Shop. The search was made pursuant to a warrant which authorized the detectives to search for controlled substances, paraphernalia, and monies derived from the sale of controlled substances. None of these items were found.

Caiani has brought this suit alleging that the fruitless search violated his civil rights under state and federal law. Joined as defendants are Donahue, Bushway, and the Town of Walpole. The case is now before the court on the defendants’ motions for summary judgment. For the reasons discussed below the motions will be allowed.

I. Factual Background

Viewing the record in the light most favorable to Caiani, and indulging in all inferences favorable to him, Voutour v. Vitale, 761 F.2d 812, 817 (1st Cir.1985), the following facts emerge without substantial dispute. On November 26, 1982, Detective Donahue had a telephone conversation with a man named Douglas Macaskill. Macaskill had been arrested a week earlier for possession of cocaine with intent to distribute. Macaskill told Donahue that he would buy an eighth of an ounce of cocaine from someone named Gary who was the owner of Gary’s T-Shirt Shop. Macaskill told Donahue that he would need $315 to make the buy. The two agreed to meet that night at the Mall at 7:15 P.M.

Detective Donahue then arranged with his sergeant to receive $315, and to record the serial numbers of the bills. Donahue also called the owners of the Mall and learned that the booth in the center of the Mall was rented by Gary Caiani and did business under the name of Gary’s T-Shirt Shop.

Later that afternoon, Donahue executed an affidavit in support of an application for a search warrant. The affidavit set forth the above stated facts with one variation. Instead of saying that Macaskill told him he “would” buy the cocaine, Donahue averred that Macaskill said he “could” buy the cocaine. Subsequently, the assistant clerk of the Massachusetts District Court of Western Norfolk issued a search warrant authorizing the detective to search Caiani and the booth.

At 7:15 P.M. on the night of the 26th, Donahue met Macaskill behind the Mall. Donahue searched Macaskill to assure himself there was nothing on Macaskill’s person, and then gave him the marked $315. Donahue then followed Macaskill into the Mall.

At this point the stories of the participants begin to diverge somewhat. Macaskill, in his deposition and in an affidavit, says that he walked up and down the Mall a few times, never coming closer than ten feet to Caiani’s booth. Donahue and Detective Bushway, who was inside the Mall and working as Donahue’s partner, claim that Macaskill stopped at the T-shirt booth and talked to Caiani, and then began walking towards the end of the Mall. All agree that Macaskill eventually walked into a store called the Newport Creamery. Upon leaving the Newport Creamery Macaskill met detectives Donahue and Bushway and gave them a plastic bag containing a white powdery substance. Macaskill told the detectives he got the bag from under the toilet seat in the men’s room in the Newport Creamery. The detectives asked Maeaskill “what all the walking around was about.” According to Donahue and Bush-way, Macaskill responded that Caiani had told him to put the money behind the first canister of Inositol powder in the General Nutrition Store (located opposite the Newport Creamery), that he did so, and that, when he returned to the T-shirt booth, the woman with Caiani told Macaskill where to find the cocaine. After Macaskill left, Detective Bushway went to the General Nutrition Store where the clerk confirmed that Macaskill had been in the store near the Inositol powder. Bushway checked for the money but found none.

After discussing the evening’s events, the detectives elected to consult with Assistant District Attorney Ellen Shapiro and called her from the Mall. She advised them to execute the warrant. The detectives served the warrant after two backup officers arrived. The search produced neither drugs nor any of the marked money.

II. Municipal Liability

This Court recently had occasion to discuss at length the proper standards for imposing municipal liability under 42 U.S.C. § 1983. Bibbo v. Mulhern, 621 F.Supp. 1018, 1027-1031 (D.Mass.1985). The Court need only briefly add to what it said in Bibbo to dispose of the federal claims against the town in the case at bar.

The complaint in this case originally alleged only that the town was the employer of detectives Donahue and Bushway. Apparently recognizing the patent insufficiency of this allegation under the rule of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978), Caiani later moved to amend the complaint. The amended complaint alleges that the Walpole Police Manual does not contain rules and regulations concerning searches, and that as a result constitutionally defective searches are “almost inevitable.” Caiani has submitted a copy of the police manual which supports his allegation that it does not make reference to the department’s search and seizure policy.

Caiani’s independent proof of the town’s “policy” of omitting instructions on search and seizure from the department manual certainly satisfies the concerns raised by Mr. Justice Brennan in his Oklahoma City v. Tuttle concurrence. In Tuttle, Mr. Justice Brennan concurred in reasoning that a jury instruction which permitted municipal liability to flow from a “single incident” was objectionable solely because it permitted the jury to infer the existence of a municipal policy from the isolated act of brutality. The Court’s opinion in Tuttle went further, however, ruling that such an approach was doubly flawed. Mr. Justice Rehnquist, writing for the plurality, said not only was it wrong to infer the existence of a municipal policy from a single incident, but, in addition, more evidence than the single incident is required to establish the causative link between a policy not itself unconstitutional and the alleged injury. Here, Caiani has not satisfied this additional element of liability under Tuttle. The “policy” of omitting search and seizure rules from the department’s manual is not itself unconstitutional. Thus, considerably more proof than the single incident is needed to establish causation. That proof is missing. Caiani advances no evidence concerning other allegations or incidents of similar conduct by Walpole police officers. Nor does he suggest that the detectives in fact never received training in proper search and seizure techniques. Accordingly, his efforts to connect this isolated incident with the fact that the town did not print certain things in its police manual are insufficient to impose municipal liability.

III. Liability of the Officers

Caiani’s theory of liability seems to be that detectives Donahue and Bushway put pressure on Macaskill to go along with a scheme to “get” Caiani. At oral argument, counsel for Caiani suggested that the detectives knew no probable cause existed at the time of Donahue’s affidavit and at the time of the search. However, there is little, if anything, in the record to support this theory. Viewing the competent evidence now before the Court in the light most favorable to Caiani there appear in this case only two disputed issues of fact: (1) Whether Macaskill told Donahue he “could” or “would” buy the cocaine, and (2) Whether Macaskill walked up to Caiani’s booth on the night of the 26th. For Caiani to withstand the motions for summary judgment these disputed facts must be “material.” Rule 56(c), Fed.R.Civ.P. The Court rules they are not. Accordingly, the detectives are entitled to judgment as matter of law.

Assuming without deciding that the search of Caiani’s booth on November 26, 1982 violated some constitutionally protected interest, Donahue and Bushway can be held liable for civil damages only so long as they have acted outside the scope of their official good faith immunity. See generally, Bibbo v. Mulhern, at 1026-1027. When one claims that his constitutional rights were violated by an illegal search, it is no small task to pierce the good faith immunity of an officer who has sought and obtained a warrant. It is true that the “judicial approval of a warrant cannot serve as an absolute bar to § 1983 liability of the officer who obtained the warrant.” Briggs v. Malley, 748 F.2d 715, 720 (1st Cir.1984), cert. granted, — U.S. -, 105 S.Ct. 2654, 86 L.Ed.2d 271 (1985). But where an officer seeks a warrant in a “merely questionable” situation he is not constitutionally negligent. Id. at 719. Probable cause must “clearly” be lacking at the time the warrant is requested in order to impose liability. Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir.1985) (arrest warrant).

In this case, neither the application for the warrant nor the search itself were so clearly lacking in probable cause as to abrogate the detectives’ good faith immunity. At the time he applied for the warrant Donahue had been told by Macaskill, a suspected drug dealer, that he could or would buy some drugs that evening. Macaskill was quite specific as to when and where the purchase would take place, and as to what quantity of drugs could be had for what price. Donahue’s independent investigation corroborated the name and location of the alleged dealer, Caiani. In the Court’s view these facts give rise to probable cause to search the T-shirt booth. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The question then becomes whether by averring in his affidavit that Macaskill told him he “could” buy the cocaine Donahue violated Caiani’s constitutional rights. The Court thinks not. Under the totality of the circumstances here the difference between “could” and “would” is not constitutionally significant. As matter of law, it was objectively reasonable for Donahue to infer that Macaskill “could” buy the cocaine considering the specificity of Macaskill’s arrangements. Thus, the slip in using the wrong word is not sufficient to permit an inference that Donahue knowingly misled the neutral magistrate.

Similarly, it is not necessary for the detectives to persuade the trier of fact that Macaskill walked closer than ten feet to Caiani’s booth in order to establish probable cause for the search. It is undisputed on this record that at the time of the search Macaskill himself had told the detectives that he bought the white powdery substance from Caiani. Although Macaskill now denies going near the booth, he has not denied making these statements. In addition, Detective Bushway independently corroborated part of Macaskill’s story with the clerk at the General Nutrition Store. Moreover, the two detectives checked with the Assistant District Attorney to assure themselves of the propriety of a search. The Court thus rules that it was reasonable for the detectives to believe that probable cause continued to exist to search Caiani's booth, and that the detectives were therefore acting within the scope of their good faith immunity.

The defendants’ motions for summary judgment on the federal claims are thus ALLOWED, and the state claims are DISMISSED for lack of subject matter jurisdiction.4 **

-

      . In his affidavit Macaskill does not deny these responses. He says only that he was questioned "extensively outside the mall, asking many questions rapid fire. I responded hurriedly and tried to get away. I told him the buy went down like I said when detective Donahue called me the next day.” In his deposition Macaskill invoked the Fifth Amendment and refused to answer questions about what he said to the detectives when he gave them the cocaine. Thus Macaskill has never denied telling the detectives that he bought the cocaine from Caiani.

      . That motion is hereby allowed.

      . — U.S.-, 105 S.Ct. 2427, 2437, 85 L.Ed.2d 791 (1985). (Justices Blackmun and Marshall joined in the concurrence.)

      . Id., 105 S.Ct. at 2436 ("where the policy relied on is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the 'policy’ and the constitutional deprivation." (emphasis added, footnote omitted)).

      . The Court rules that the mere failure to put these policies in the manual, absent any allegation of inadequate training on search and seizure techniques, is not so grossly negligent as to manifest deliberate indifference to the rights of the town’s citizens. Cf. Voutour v. Vitale, 761 F.2d at 820. Likewise it is not alleged that the town’s policy was to search individuals without probable cause.

      . To the contrary, the record demonstrates that both these officers have received extensive training, and their personnel records are virtually free of citizen complaints.

      . See Bibbo v. Mulhern, at 1031-1032 (where federal claims dismissed before trial, pendant state claims must be dismissed for want of jurisdiction).


author: BARBOUR, District Judge.

text:
    Johnny H. FROST, Plaintiff, v. COMMISSIONER OF INTERNAL REVENUE, Defendant.
    Civ. A. No. J84-0883(B).
    United States District Court, S.D. Mississippi, Jackson Division.
    Dec. 13, 1985.
    Elmore D. Greaves, Jackson, Miss., Taylor W. O’Hearn, Shreveport, La., for plaintiff.
    L.S. Smith, III, Asst. U.S. Atty., Jackson, Miss., for defendant.
   MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

Presently before the Court for disposition is the motion of Defendant Commissioner of Internal Revenue to dismiss this suit brought by Plaintiff Johnny H. Frost for a tax refund. The Complaint seeks a refund of $532.19. This amount represents a $500.00 penalty plus interest assessed and levied upon by the Internal Revenue Service pursuant to I.R.C. Section 6702, as amended, for Plaintiff’s filing of a “frivolous” income tax return in 1983 for tax year 1982. Based upon our review of the Defendant’s Motion, memorandum of law, and evidentiary materials submitted in support thereof, to which Plaintiff has not responded, the Court is of the opinion that Defendant’s motion is well taken and should be granted. Because we agree with Defendant that the Complaint is without merit, we find it unnecessary to address the various other grounds asserted by Defendant for dismissal.

The undisputed evidence before the Court indicates that Plaintiff in his 1982 tax return listed wages in the amount of $55,214 but then subtracted that same amount as “business losses.” After certain losses from rental properties were included, Plaintiff’s return showed a net taxable loss for 1982. He then proceeded to show a taxable income of zero and to claim as a refund the amount of $13,620, which had been withheld from his wages.

The Internal Revenue Service determined that Plaintiff’s 1982 return was “frivolous” within the meaning of Section 6702 of the Code and on August 8, 1983, gave notice of a penalty of $500.00 against Plaintiff. Shortly thereafter, Plaintiff responded to this notice and demand for payment by advising the Internal Revenue Service that it was “ignorant of the law” and that courts “agree to the claim I have made that wages are not income.” Defendant’s Exhibit 2. In February 1984, after demands for payment were unmet, Plaintiff’s bank account was levied against and $532.19 was subsequently collected in satisfaction of the penalty, plus interest. In May 1984, Plaintiff filed a claim for refund with the IRS for this amount on the asserted basis that he was “assessed a penalty for the 1983 tax year” and that “it is impossible to assess a penalty when no tax is due.” The IRS denied the claim, and Plaintiff filed his Complaint herein.

As a matter of law, the Defendant has met its burden of showing the propriety of the Section 6702 penalty assessed against Plaintiff by demonstrating in uncontroverted fashion that the tax return (1) contained information that on its face indicates that the Plaintiff’s self-assessment of tax due is substantially incorrect, and (2) that the incorrect assessment is due to a position which is frivolous. 26 U.S.C. § 6702(a)(1)(B) and (2)(B). The Plaintiff here simply reduced the amount of taxable income shown on his return by subtracting from the amount shown as wages an identical amount as “business losses.” This “business loss” was claimed on a Schedule C (Form 1040) filed with his return but clearly is not a return of information related to any business or profession of Plaintiff. On its face the self-assessment contained in the return was substantially incorrect. Tibbetts v. Secretary of the Treasury, 577 F.Supp. 911 (W.D.N.C.1984). Moreover, the asserted and apparent theory behind this incorrect return — that wages are not taxable income — is patently frivolous. Lonsdale v. CIR, 661 F.2d 71 (5th Cir.1981); Davis v. United States Government, 742 F.2d 171 (5th Cir.1984); Tibbetts, 577 F.Supp. at 914; Hill v. United States of America, 599 F.Supp. 118 (M.D.Tenn. 1984) (unpublished).

Plaintiff is a “tax protester” who filed a frivolous return in an attempt to escape the payment of his federal income taxes. After the assessment of the penalty and levy, he went further and filed this suit in an attempt to recover that penalty. As ruled herein, because the return was frivolous, this suit is absolutely without any basis in law and fact. A brief review of Plaintiff’s 1982 Federal Income Tax return by even the most inexperienced of counsel would reveal that Plaintiff was attempting to defeat the federal income tax laws. Even an attorney not specializing in tax work should immediately expect that the law would not uphold Plaintiff’s position and, indeed, a minimum of research would reveal that Plaintiff’s position is not “warranted by existing law” nor does he have a “good faith argument for the extension, modification, or reversal of existing law.” Plaintiff’s attorneys apparently now recognize this because they have not bothered to file a reply to Defendant’s Motion to Dismiss.

Plaintiff’s counsel Taylor W. O’Hearn of Shreveport, Louisiana, and Elmore D. Greaves of Jackson, Mississippi, signed the Complaint and thereby improperly certified in accordance with the provisions of Rule 11 of the Federal Rules of Civil Procedure that Plaintiff’s position was “warranted by existing law” or that they had a “good faith argument for the reversal of existing law.” In fact, this court questions whether these two attorneys have participated in this attempt to defeat the tax laws of the United States which would be an interposition of the legal process for an “improper purpose” as prohibited by Rule 11.

Accordingly, this Court finds that attorneys O’Hearn and Greaves have violated Rule 11 and that sanctions should be imposed upon them for the improper certification under Rule 11. This Court is further concerned as to the purpose of the Plaintiff’s attorneys in filing the Complaint and whether both or either of them has participated in this case for an improper purpose.

Taylor W. O’Hearn and Elmore D. Greaves are hereby ordered to appear before this Court in the Fourth Floor Courtroom of the James 0. Eastland Courthouse in Jackson, Mississippi, at 9:00 A.M. on February 18, 1986, to show cause why they should not be found to have violated Rule 11 of the Federal Rules of Civil Procedure by their signing and filing the Complaint herein for an improper purpose, which improper purpose would be a further aggravating circumstance to the Rule 11 violation already adjudicated herein. Further, said attorneys will be permitted to show mitigating circumstances, if any they can, for a reduction of the sanctions which will be imposed against them.

This Court is considering as proper sanctions the requirement that said attorneys for the Plaintiff be required to pay the government’s cost of defending this ease. Accordingly, the attorneys for the government are ordered to file in this cause a statement of costs and expenses incurred or which will be incurred by the government in defending this case. Such statement shall be filed on or before January 3, 1986.

Either side may, but are not required to, submit to the Court memoranda or responses to this Order or to memoranda of the other side. If such memoranda are desired, they shall be submitted on or before January 16, 1986. The opposite side may submit replies to any such memoranda but must do so on or before January 30, 1986.

As the Defendant was fully justified in imposing a penalty for the frivolous return filed by Plaintiff, his suit for a refund of such sum cannot stand. Accordingly, it is ordered that the Complaint be, and hereby is, finally dismissed with prejudice, with all costs taxed to Plaintiff. A separate judgment of dismissal will be entered herein in accordance with Rule 58 of the Federal Rules of Civil Procedure. The Court, however, retains jurisdiction over this case for further proceedings regarding the Rule 11 violations.

      . We note that it is manifest from the record and from allegations in the complaint that the Plaintiff knew, prior to the filing of the instant suit, that the penalty was being assessed for a frivolous return for tax year 1982.


author: EDWARD C. REED, Jr., District Judge.

text:
    William A. TURNER, et al., Plaintiffs, v. NEVADA BOARD OF STATE PRISON COMMISSIONERS, an administrative body, et al., Defendants.
    No. CV-R-84-390-ECR.
    United States District Court, D. Nevada.
    Dec. 13, 1985.

      Terry, Winter & Wessel by James W. Wessel, Carson City, Nev. for plaintiffs.
    Brian McKay, Atty. Gen. by Arthur G. Noxon, Deputy, Carson City, Nev., for defendants.
   ORDER

EDWARD C. REED, Jr., District Judge.

Plaintiffs have filed a complaint alleging violations of their civil rights pursuant to 42 U.S.C. § 1983. Plaintiffs also seek to bring this complaint as a class action. Plaintiffs are employed prisoners participating in available work programs earning gross monthly wages in excess of $75.00. Pursuant to Department of Prisons Information Bulletin #83-78, rev. 3/30/84, defendants assess plaintiffs’ room and board charges. Plaintiffs allege that the room and board charges which are deducted from their wages violate their due process and equal protection rights.

Defendants move this Court to dismiss this complaint for failure to state a claim upon which relief can be granted. This Court assigned this case to the United States Magistrate, Phyllis Halsey Atkins, for all pretrial proceedings in accordance with 28 U.S.C. § 636(b)(1)(A). The Magistrate filed her Report and Recommendation recommending to this Court that the motion to dismiss be granted. Plaintiffs filed objections. Defendants moved to strike these objections as not having been timely filed. For the reasons stated below, we deny defendants’ motion to strike and reject the Magistrate’s recommendation.

MOTION TO STRIKE

The Magistrate entered her Report and Recommendation on June 21, 1985. She recommended that defendants’ motion to dismiss be granted. Although the report did not inform plaintiffs of their responsibility to object within 10 days, objections must be made within 10 days pursuant to 28 U.S.C. § 636(b)(1). Plaintiffs filed their opposition to the Magistrate’s recommendation on July 10, 1985. The defendants move to strike this opposition as not having been timely filed.

This Court may reconsider any pretrial matter where the Magistrate’s order is contrary to law. 28 U.S.C. § 636(b)(1)(A). Thus, even if we were to strike the opposition, we will still reconsider this recommendation because we find it to be contrary to law. This Court, therefore, finds it unnecessary to strike plaintiffs’ objections.

MOTION TO DISMISS

Defendants support their motion to dismiss by arguing: (1) that the Board of Prison Commissioners enjoy Eleventh Amendment immunity from this suit; (2) that plaintiffs have no property right to wages free from deductions for their maintenance; and (3) that the classification between working and non-working inmates is rationally related to a legitimate state purpose. Plaintiffs, in opposing defendants’ motion, argue that they have a property right conferred by Nevada statute in wages that they earn with deductions only for victim restitution or family support. Plaintiffs assert that their wages were taken for room and board without hearing or notice. In addition, plaintiffs argue that it is irrational to distinguish between those inmates diligent enough to work and those inmates who do not work when determining which inmates must contribute to the cost of their maintenance.

For purposes of ruling on a motion to dismiss, this Court must accept as true all material allegations of the complaint, and must liberally construe the complaint in favor of the complaining party. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969).

BOARD OF PRISON COMMISSIONERS

Defendants first move to dismiss the Nevada Board of Prison Commissioners. Plaintiffs consent to this motion. Thus, the motion to dismiss the complaint against the Nevada Board of Prison Commissioners will be granted.

DUE PROCESS

Defendants argue that plaintiffs have no due process claims. Plaintiffs allege that the deductions from their wages for room and board amounts to a deprivation of property without due process of law. Plaintiffs’ claims depend upon whether they have property rights to those wages. See Piatt v. MacDougall, 773 F.2d 1032, 1035 (9th Cir.1985) (en banc).

Nevada law provides that the director of the prison is to establish a program for employment of the offenders. NRS § 209.459. Nevada law, NRS § 209.-461(1), further provides that:

1. The director shall:

(a) To the greatest extent possible, establish facilities which approximate the normal conditions of training and employment in the community.
(b) To the extent practicable, require each offender, except those whose behavior is found by the director to preclude participation, to spend 40 hours each week in vocational training or employment, unless excused for a medical reason.
(c) Use the earnings from services and manufacturing conducted by the institutions and the money paid by private employers who employ the offenders or lease space or facilities within the institutions to offset the costs of operating the prison system and to provide wages for the offenders being trained or employed. The director may first deduct from the wages of any offender such amounts as the director deems reasonable to meet any existing obligation of the offender for the support of his family or restitution to any victim of his crime.

NRS § 209.461(1). According to this statute, the only deductions which may be made from the prisoners’ wages are those deductions for the support of family or restitution to any victim. This Court finds that the statute is unambiguous and does grant a property interest in an offender’s wages.

Further support for this finding is ascertainable from a review of other statutes. For example, the director is required to establish an “offenders’ employment fund” for each offender and to deposit the net amount of any wages earned during incarceration. NRS § 209.215. There are no state cases interpreting this statute and, except for NRS § 209.461(1) just discussed wherein only deductions for family support or victim restitution are mandated, no deductions for room and board are authorized.

This Court’s view that there is clearly no statutory authority for deductions for room and board is shared by the prison warden. The Nevada legislature amended Chapter 209 so that now the prison is allowed by statute to deduct the cost of maintenance from inmates’ wages. 1985 Nev.Stat. Ch. 159, Section 1. George Sumner, a prison warden, testified before the Assembly Judiciary Committee. He stated that the reason for the statute was to legally provide for deductions of the cost of maintaining an offender from wages earned while in prison. He further stated that although they had been making such deductions, there was “no statutory authorization for so doing.” Hearings on SB 240, Before the Assembly Committee on Judiciary, 1985 Nevada Legislature, April 17, 1985 (statement of George Sumner).

Accordingly, because we find that no statutory authority for maintenance deductions prior to the new amendment existed and that Nevada statutes established the plaintiffs’ right to compensation for work performed, defendants could not deny that right to plaintiffs without affording them due process of law. See Piatt, 773 F.2d at 1036. Upon making this finding, it is unnecessary for this Court to reiterate the analysis of Piatt. As in Piatt, plaintiffs allege conduct which entitled them a meaningful hearing at a meaningful time. Id.

Despite this finding by the Court, however, the amendment to Chapter 209 means that Nevada law now does not establish a property right in wages without deduction for the cost of maintaining offenders. The amended section provides:

Section 1. Chapter 209 of NRS is hereby amended by adding thereto a new section to read as follows:
The director may deduct from the wages earned by an offender from any source during his incarceration:
1. An amount determined by the director, with the approval of the board, to offset the cost of maintaining the offender in the institution, as reflected in the budget of the department; and
2. Such amounts as the director considers reasonable to meet any existing obligation of the offender for the support of his family or restitution to any victim of his crime.

1985 Nev.Stat. Ch. 159, Section 1. The issue now before this Court is what impact .this new section has on the instant case.

The general rule is that this Court would be governed by the law in effect at the time this decision is rendered. United States v. The Schooner Peggy, 1 Cranch (5 U.S.) 103, 2 L.Ed.2d 49, 1 Cranch 103 (1801). Legislation is not, however, applied to pending cases where the legislature has expressly directed that the legislation be prospective only or where manifest injustice would result from a retrospective application.

The new section to Chapter 209 is silent as to the prospective application of deductions to offset the cost of maintaining an offender. Turning to the second exception, manifest injustice may arise if application of the statute would deprive a party of a matured right. Matter of Reynolds, 726 F.2d 1420, 1423 (9th Cir.1984). Retroactive application of a statute which might result in an unconstitutional taking of property without due process of law would constitute manifest injustice. Id. at 1423-1424.

Because we find that prior to the enactment of the new section, offenders did have a property right in their wages, it would be a manifest injustice to apply the new section retroactively. Thus, plaintiffs’ claims as to money deducted prior to approval of the new statute are still cognizable.

The inquiry does not, however, end here. Plaintiffs also seek injunctive relief. Because they no longer have a property right free from deductions for their upkeep, injunctive relief is, therefore, no longer appropriate. Thus, the motion to dismiss the complaint as to injunctive relief will be granted.

EQUAL PROTECTION

Plaintiffs argue that the classification between those inmates who earn $75.00 or more in wages and those who do not is a violation of their equal protection rights. Defendants argue that the state has a legitimate state interest in developing work habits and self-discipline and that the state’s classification is rationally related to those interests.

The Equal Protection Clause of the Fourteenth Amendment directs that all persons who are similarly situated should be treated in the same manner. City of Cleburne v. Cleburne Living Center, — U.S. -, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). “The general rule is that [challenged] legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Id. Unless the statute classifies by race, alienage or national origin, our review is a determination of whether the legislation employs a rational means to serve a legitimate end. Id., 105 S.Ct. at 3255.

The challenged action in this case does not involve a suspect classification based upon race, alienage or national origin. Neither are plaintiffs a member of a quasi-suspect class which would trigger this Court’s intermediate or heightened review. See Frontiero v. Richardson, 411 U.S. 677, 686. 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973) (plurality opinion) (gender classification calls for heightened scrutiny); see also Mathews v. Lucas, 427 U.S. 495, 506, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651 (1976) (classification based upon illegitimacy is subject to heightened review). Thus, this Court shall examine the challenged legislation based upon a rational basis review.

To withstand equal protection review, legislation that distinguishes between inmates who earn $75.00 or more and other inmates must be rationally related to a legitimate governmental purpose. There is no dispute, between the parties that the goals of the state in developing work habits and self-discipline as well as preparing for eventual release by the accumulations of a savings account are legitimate and proper. Rather, plaintiffs argue that the classification that only those inmates who earn $75.00 or more be required to contribute to their upkeep is not rationally related to that state interest. We disagree.

Although there may be other ways to classify the inmates, it is not the function of this Court to second-guess Nevada’s classification. This Court finds that the classification is rationally related to the state interests. Thus, the motion to dismiss plaintiffs’ claims for relief based upon violations of their equal protection rights will be granted.

CONCLUSION

IT IS, THEREFORE, HEREBY ORDERED that the motion to strike plaintiffs’ objections is DENIED.

IT IS FURTHER ORDERED that the motion to dismiss the Nevada Board of Prison Commissioners is GRANTED.

IT IS FURTHER ORDERED that the motion to dismiss is GRANTED as to injunctive relief sought.

IT IS FURTHER ORDERED that the motion to dismiss is DENIED as to relief sought for deductions made prior to the 1985 amendment to Chapter 209.

      . Plaintiffs have not taken any steps toward certification of the class. This Court has begun to receive motions by certain prisoners to exclude them from any class certified in this case.

      . Nevada statute specifically provides for deductions from offender wages for living expenses when the offender is housed at a community center. NRS § 209.4831.


author: REYNOLDS, Chief Judge.

text:
    William J. QUESNELL and Donna Quesnell, Plaintiffs, v. MILWAUKEE AREA TRUCK DRIVERS HEALTH AND WELFARE FUND, Defendant.
    Civ. A. No. 84-C-424.
    United States District Court, E.D. Wisconsin.
    Dec. 13, 1985.
    Marjan R. Kmiec and Boyd M. McGranaghan, Milwaukee, Wis., for plaintiffs.
    David Leo Uelmen and Christian Raisner, Milwaukee, Wis., for defendant.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

This action was originally brought by an employee and his wife against both the employee’s union’s health and welfare fund and his employer’s workmen’s compensation insurance carrier. The plaintiffs alleged that on August 30, 1983, while William J. Quesnell was performing his duties to his employer, he suffered heat stroke and was taken to the hospital. He was still hospitalized at the time this action was filed. The plaintiffs further alleged that the defendant Milwaukee Area Truck Drivers Health and Welfare Fund (“MATDHWF”) and, then defendant, Zurich Insurance Company negligently, in bad faith and in violation of contractual obligations delayed until February 18, 1984, paying plaintiffs benefits due them. On October 31, 1984, this Court granted Zurich Insurance Company’s motion to dismiss the claim as to it, leaving MATDHWF as the sole defendant. MATDHWF now moves this Court to dismiss plaintiffs’ claim for lack of jurisdiction under the Employee Retirement Income Security Act (“ERISA”) and, alternatively, for summary judgment.

I. JURISDICTION

The only basis alleged for this Court’s jurisdiction in this case is the pre-emptive jurisdiction ERISA grants to federal courts over matters relating to any employee benefit plan. See 29 U.S.C. sec. 1144(a). The defendant claims that the United States Supreme Court has, by its decision in Massachusetts Mutual Life Insurance Company v. Russell, — U.S. -, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985), excluded from ERISA jurisdiction any claim by the beneficiary of an employee benefits plan for extra-contractual damages incurred as a result of unreasonable delay by the plan trustee in processing a claim for benefits.

In Russell, a disabled employee who was a participant in an ERISA-regulated benefit plan received plan benefits for some five months after her disability, then was cut off for a period of five months, and finally was reinstated with full payment of retroactive benefits for the cut-off period. She sued in state court to recover damages caused by the allegedly improper five-month cut off. After the defendant removed the case to federal court plaintiff asserted that ERISA sees. 409(a) (29 U.S.C. sec. 1109(a)) and 502(a)(2) (29 U.S.C. sec. 1132(a)(2)), no less than state law, afforded her a cause of action for extra-contractual damages caused by defendant's alleged bad faith in taking 132 days to process her claim.

The Supreme Court rejected the beneficiary’s theory that the phrase “subject to such other equitable or remedial relief as the court may deem appropriate” of sec. 409(a) authorized an award of extra-contractual damages to the beneficiary since the statute by its terms provided relief only “to such plan.” Russell, 105 S.Ct. at 3089-90. This Court must certainly agree with the defendant that the holding in Russell is dispositive as to any jurisdiction this Court is claimed to have under ERISA sec. 409(a).

However, the majority in Russell recognized that because the plaintiff-respondent had expressly disclaimed reliance on ERI-SA sec. 502(a)(3), the Supreme Court had no occasion to consider whether that or any other provision of ERISA, rather than section 409(a), authorizes recovery of extra-contractual damages. Russell, 105 S.Ct. at 3089, n. 5. The narrowness of the Russell holding was emphasized in Justice Brennan’s concurrence in which Justices White, Marshall and Blackmun joined. The concurrence outlined a three-step inquiry which courts should make if asked to grant extra-contractual damages under sec. 502(a)(3).

[I]n resolving this and other questions concerning appropriate relief under ERI-SA, courts should begin by ascertaining the extent to which trust and pension law as developed by state and federal courts provide for recovery by the beneficiary above and beyond the benefits that have been withheld____ If a requested form of additional relief is available under state trust law, courts should next consider whether allowance of such relief would significantly conflict with some other aspect of the ERISA scheme. In addition, courts must always bear in mind the ultimate consideration whether allowance or disallowance of particular relief would best effectuate the underlying purposes of ERISA — enforcement of strict fiduciary standards of care in the administration of all aspects of pension plans and promotion of the best interests of participants and beneficiaries.

Russell, 105 S.Ct. at 3098-99 (J. Brennan concurring).

Employing this test, I find that the remedy plaintiff requests is not within the ambit of “other appropriate equitable relief” Congress intended to authorize under sec. 502(a)(3). Firstly, the plaintiff has brought to the Court’s attention no state or federal law or equitable practice subjecting a trust itself to liability toward a beneficiary for compensatory or punitive damages caused by the tardy disbursement of trust benefits. Nor has the Court’s own research disclosed such a case. This is not surprising because, secondly, such a practice would conflict with the policies behind both state trust law and behind ERISA, namely, that proceeds should be preserved for all the beneficiaries. Were this Court to create by analogy to state insurance law a claim for damages due to bad faith and apply it in this context, as the plaintiffs would have us do, pension trust funds could be prematurely exhausted for the benefit of one or a few beneficiaries. This surely would not effectuate the underlying purposes of ERISA. This Court has, therefore, no jurisdiction to hear this case. The defendant’s motion for summary judgment must be granted.

IT IS THEREFORE ORDERED that the defendant’s motion for summary judgment is granted and the plaintiffs’ motion for summary judgment is denied.


author: ORINDA D. EVANS, District Judge.

text:
    Ruby OLIVER, on behalf of herself and her minor children, Monica Oliver and Lakeesha Jones; Mary Briscoe, on behalf of herself and her minor children, Tanya Briscoe and Marcus Briscoe; Lottie Roberts, on behalf of herself and her minor children, Albert Bryant and Otis Roberts; Rose Mary Kelly, on behalf of herself and her minor children, Amon Rashon Davis and Tiesha Nakia Nelson; and all others similarly situated, Plaintiffs, and Harriet Gunter, on behalf of herself and her minor children, Myssi Byrdsell and John Byrdsell, Plaintiffs-Intervenors, v. James G. LEDBETTER, in his official capacity as Commissioner of the Georgia Department of Human Resources; and Margaret M. Heckler, in her official capacity as Secretary of the United States Department of Health and Human Services, Defendants.
    Civ. A. No. C85-36912.
    United States District Court, N.D. Georgia, Atlanta Division.
    Dec. 16, 1985.
    Gary Leshaw, Phylis J. Holman, Decatur, Ga., John L. Cromartie, Jr., Atlanta, Ga., Vicky O. Kimbrell, Conyers, Ga., Lisa J. Krisher, Augusta, Ga., for plaintiffs-intervenors.
    Larry D. Thompson, U.S. Atty., Robert Tayloe Ross, Asst. U.S. Atty., Edgar M. Swindell, Asst. Regional Atty., Dept, of Health & Human Services, Atlanta, Ga., for Federal defendant.
    Michael J. Bowers, Atty. Gen., H. Perry Michael, Carol Atha Cosgrove, Mary Foil Russell, Asst. Attys. Gen., for State defendant.
   ORDER

ORINDA D. EVANS, District Judge.

This civil rights action for welfare benefits is before the court on Plaintiffs’ motion for class certification, Plaintiffs' motion for summary judgment, and the motions for summary judgment of both the federal and state Defendants.

Plaintiffs challenge a federal regulation promulgated by the Secretary of the Department of Health and Human Services (the “Secretary”) and a corresponding state policy, which together implement changes in the Aid to Families with Dependent Children (“AFDC”) program, pursuant to § 2640 of the Deficit Reduction Act of 1984, Public Law 98-369 (July 18, 1984) (codified as 42 U.S.C. § 602(a)(38)) (“DE-FRA”). The new regulation attributes benefits received under Title II of the Social Security Act to the AFDC family assistance unit, and considers these benefits in the family’s income calculation for AFDC purposes. Under the Secretary’s regulation and the corresponding state policy, children who receive Title II Old Age, Survivors, and Disability Insurance (“OASDI”) benefits, and who are not on AFDC but who live with a sibling or half-sibling who does receive AFDC, are required to apply for AFDC benefits themselves. If these OASDI recipients refuse to add themselves to the AFDC grant unit, their AFDC recipient siblings or half-siblings will be removed from the AFDC program. Plaintiffs claim this regulation forces independently supported children onto the welfare rolls, and deems their legally restricted OASDI child’s benefits available to their needy half-siblings. Plaintiffs assert that Defendants’ regulation and policy, by mandating inclusion of all the income of non-AFDC children into a single filing unit if they reside in the same household as AFDC recipients, violates Titles II and IV of the Social Security Act, 42 U.S.C. §§ 401 et seq. and §§ 601 et seq. Plaintiffs also claim that Defendants’ regulation and policy violates constitutional guarantees of due process and equal protection. Plaintiffs seek injunctive and declaratory relief, costs and attorney’s fees.

Motion for Class Certification

Plaintiffs are members of AFDC households in Georgia which have had, or may be threatened with, a denial, reduction or termination of benefits as a result of the challenged regulation and policy. The proposed plaintiff class would consist of two subclasses. The first would be composed of all past, present and future AFDC recipients or applicants in Georgia who have had or may have benefits denied, reduced or terminated due to this regulation and policy. The second subclass would be composed of all past, present and future minors who are recipients of OASDI benefits who have had to or may have to involuntarily apply for AFDC benefits, or leave their AFDC recipient family unit because of Defendant’s regulation and policy.

Class certification is regularly granted in cases such as this. See e.g., Yearby v. Parham, 415 F.Supp. 1236 (N.D.Ga.1976); Finch v. Weinberger, 407 F.Supp. 34 (N.D. Ga.1975). The court finds that certification is appropriate in the present case, as the class and each subclass is so numerous that joinder of all prospective Plaintiffs would be impractical; the named Plaintiffs’ claims are typical in that the challenged regulations operate against all potential class members in the same manner; there are questions of law common to the class; and the named Plaintiffs clearly fall within and have consistent interests with the prospective class members, and they constitute adequate class representatives. Therefore, Plaintiffs’ motion for certification as a Fed. R.Civ.P. 23(b)(2) class will be granted.

Motions for Summary Judgment

The facts necessary for a resolution of this matter are not in dispute. Defendant Margaret Heckler is Secretary of the United States Department of Health and Human Services (“HHS”). As Secretary, she is charged with the federal administration and operation of the AFDC program and is responsible for the adoption and implementation of federal policies, rales and regulations which must comply with controlling federal statutes. Defendant James Ledbetter is the Commissioner of the Georgia Department of Human Resources (“DHR”). As Commissioner, he is responsible for the state administration and operation of the AFDC program and for adopting and implementing AFDC policies, rules and regulations.

The AFDC program is authorized under Title IV-A of the Social Security Act, 42 U.S.C. §§ 601 et seq., and is a cooperative federal/state effort established by Congress to enable each state to furnish financial assistance to certain needy children and the parents or relatives with whom they live. 42 U.S.C. § 602. States are not required to participate in the AFDC program, but those states wishing to participate must submit plans to the HHS for approval. 42 U.S.C. § 602(b). If the plan meets the requirements of Title IV-A and the implementing regulations and is thereby approved, the state becomes eligible for approximately half of the programs funding from the federal government. 42 U.S.C. § 603. The AFDC program is administered locally by the states, in accordance with state and federal regulations promulgated by the Secretary.

Under the AFDC program, funding is provided to dependent children under the age of 18 who live in households where at least one parent is absent or physically or mentally incapacitated. 42 U.S.C. § 606(a)(1). In order to qualify for AFDC benefits, applicants must also meet certain standards of financial need, defined by their income and resources. 42 U.S.C. § 602(a). In order to be eligible for AFDC assistance, the family unit cannot have combined resources in excess of a specific dollar amount. Prior to 1984, there was no question that all co-resident family members need not be included in the family unit for AFDC assistance purposes. A family applying for AFDC assistance could therefore exclude from the filing unit those family members with income that, if counted in the family’s net income, would reduce the amount of the family’s AFDC benefits.

Effective October 1, 1984, however, the AFDC program was amended by § 2640(a) of the Deficit Reduction Act of 1984. This amendment provides:

PARENTS AND SIBLINGS OF DEPENDENT CHILD INCLUDED IN AFDC FAMILY; CHILD SUPPORT PAYMENTS
* * * * sft si<

In making the determinations under paragraph (7) with respect to a dependent child and applying paragraph (8), the State agency shall (except as otherwise provided in this part) include—

(a) any parent of such child, and
(b) any brother or sister of such child, if such brother or sister meets the conditions described in clauses (1) and (2) of § 406(a), if such parent, brother or sister is living in the same home as the dependent child, and any income of or available for such parent, brother, or sister shall be included in making such determination and applying such paragraph with respect to the family (notwithstanding § 205(j), [42 U.S.C. § 405(j) ] in the case of benefits provided under Title II).

The amendment was codified as 42 U.S.C. § 602(a)(38). Following the enactment of the amendment, the Secretary promulgated an interim final regulation effective October 1, 1984, 45 C.F.R. § 206.10(a)(l)(vii)(B). This regulation states in pertinent part that,

For AFDC only, in order for the family to be eligible an application with respect to a dependent child must also include, if living in the same household and otherwise eligible for assistance ... Any blood-related or adoptive brother or sister.

Thus, since the 1984 DEFRA amendment to the AFDC program, the Secretary has required local state agencies to consider all income of any siblings or half-siblings residing in the same household as AFDC recipients in making AFDC eligibility determinations. Specifically, state agencies must now consider any and all OASDI benefits received by such siblings or half-siblings when determining the needs of an AFDC family assistance unit. Pursuant to this requirement, the Georgia Division of Family and Children Services, a unit of DHR responsible to and under the direction of Defendant Ledbetter, promulgated Eligi-

bility Services County Letter No. 84-44. This letter requires in pertinent part that

Beginning October 1,1984, the needs and income of the parent(s) and all minor siblings, or half-siblings living with the dependent child who applies for or receives AFDC must be included for eligibility determination and benefit calculation. SSI recipients, step-brothers and step-sisters are excluded from this requirement. In other words, an A/R will no longer have the option to voluntarily exclude the needs or income of herself or a child from a grant.

OASDI benefits are provided by Title II of the Social Security Act, 42 U.S.C. §§ 401 to 433. Title II recipients include the minor children of insured individuals who are either retired, disabled or deceased. Section 405(j) °f that Title provides that OASDI benefits may be paid to “a relative or some other person” for “the use and benefit” of the Title II recipient. This relative or other person, known as the “representative payee,” has fiduciary duties towards the beneficiary, and may only use the OASDI funds for the benefit and use of the beneficiary. 20 C.F.R. § 404.2040(a). Section 408(e) imposes criminal penalties upon representative payees who do- not use the funds in the beneficiary’s best interest.

Despite these statutory restrictions on the use of OASDI income, the Secretary interprets the DEFRA amendments to require representative payees to include all co-resident children who receive such benefits in the AFDC family assistance filing unit. The Secretary relies for her interpretation on the specific language of the amendment, which provides that the state agency must include “any income” of all co-resident siblings “notwithstanding § 205(5) [42 U.S.C. § 405(5) 1 in the case of benefits provided under Title II” (emphasis added). In her comments to recent interim regulations regarding AFDC assistance, the Secretary stated:

All of the income and resources of the individuals required to be included in the assistance unit must be considered in determining eligibility and payment for the assistance unit. In this connection, the statute specifically provides for the inclusion of Title II benefits, notwithstanding [42 U.S.C. § 405(5) ]• When Title II benefits are paid to a representative payee on behalf of a member of the assistance unit and the payee lives in the same household as the assistance unit, the Title II benefits must be counted as income. When the representative payee does not live in the household, the Title II benefits are included only to the extent that the payee makes them available for the support of the beneficiary____

49 Fed.Reg. 35588-89 (September 10, 1984).

Plaintiff Ruby Oliver resides in Atlanta, Georgia with her two minor children, Monica Oliver and Lakeesha Jones. Ms. Oliver and Monica are presently receiving AFDC benefits in a grant for two in the amount of $187 per month; prior to a cost of living adjustment effective July, 1985, the grant was $174 per month. Ms. Oliver’s daughter Lakeesha currently receives $191 per month in OASDI child’s benefits from her absent disabled father’s account. She is not included in Ms. Oliver’s AFDC grant unit. In February, 1985, Ms. Oliver was informed by her caseworker at the DeKalb County Department of Family and Children Services (DFCS) that she had to apply for AFDC benefits for Lakeesha and include her in the grant unit, due to the OASDI check Lakeesha was receiving, even though Ms. Oliver did not want to do so. As a result of including Lakeesha in her AFDC grant group, Ms. Oliver’s AFDC benefits were reduced to $32 per month. She appealed this decision, without success, and now has an overpayment of $1,025, representing benefits received from February through August, 1985, the months during which her administrative appeal was pending. This sum is now subject to recoupment.

Plaintiff Lottie Roberts lives in Richmond County, Georgia with her two minor children, Albert Bryant and Otis Roberts. Through June, 1985, Ms. Roberts and Otis received AFDC benefits in a grant for two in the amount of $174 per month. Ms. Roberts’ son Albert currently receives $100 per month in OASDI children’s benefits from his absent disabled father’s account. His check was not included in Ms. Roberts’ AFDC grant unit. In April of 1985, Ms. Roberts was informed by Richmond County DFCS that she must apply for AFDC benefits for Albert and include him in the grant unit, due to the OASDI check Albert was receiving, even though Ms. Roberts did not want to do so. As a result of including Albert in her AFDC grant group, Ms. Roberts’ benefits were reduced to $123 per month effective July, 1985. Ms. Roberts has been informed that she has been overpaid for benefits received since October, 1984.

Plaintiff Rose Mary Kelley resides in Chatham County, Georgia with her two minor children, Amon Rashon Davis and Tiesha Nakia Nelson. Through April, 1985, Ms. Kelley and her children received AFDC benefits in a grant for three in the amount of $208 per month. In February, 1985, Amon’s father died and in April, 1985, Amon became eligible for OASDI survivors benefits in the amount of $224 per month. Ms. Kelley attempted to remove Amon from the AFDC grant group effective May, 1985. In April, 1985, she was informed by Chatham County DFCS that she must continue to apply for AFDC benefits on behalf of Amon and include him in the grant unit, even though Ms. Kelley did not want to do so. As a result of including Amon in her AFDC grant group, Ms. Kelley’s benefits were terminated effective May, 1985.

Plaintiff Mary Briscoe resides in Greene County, Georgia with her two minor children, Tanya Briscoe and Marcus Briscoe. Prior to the promulgation of the policies complained of in this action, Ms. Briscoe and Marcus had been receiving AFDC benefits for a grant group of two in the amount of $74 per month. Ms. Briscoe’s daughter Tanya currently receives OASDI survivors benefits in the amount of $270 per month, and has received such benefits since her father’s death in 1982. Tanya’s check was not included in any AFDC grant unit. In February, 1985, Plaintiff Briscoe was informed by Greene County DFCS that she must apply for AFDC benefits on behalf of Tanya and include her in the grant unit, even though she did not want to do so. As a result of including Tanya in her AFDC grant group, Ms. Briscoe’s benefits were terminated.

Plaintiffs assert that the Secretary’s interpretation of the amended § 602(a)(38) is inconsistent with the language of Titles II and IV, and with her own regulations affecting those Titles. Specifically, Plaintiffs argue that (1) all OASDI recipient children do not necessarily meet the conditions of 42 U.S.C. § 606(a)(1) and therefore cannot automatically be required to apply for AFDC and included in the grant group; (2) OAS-DI benefits are restricted to use by beneficiaries, and are therefore legally unavailable and non-attributable to their AFDC recipient relatives; and (3) that the Defendants’ regulation and policy violates the OASDI recipients’ due process and equal protection guarantees.

Having reviewed the parties’ arguments, the statutes, and the legislative history thereto, the court concludes that Plaintiffs’ arguments are not persuasive. It is well-settled that the construction of a statute by the agency charged with its enforcement is entitled to substantial deference, as long as that construction is reasonable and consistent with the underlying congressional purpose. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Schweiker v. Hogan, 457 U.S. 569, 588, 102 S.Ct. 2597, 2609, 73 L.Ed.2d 227 (1982); Blum v. Bacon, 457 U.S. 132, 144, 102 S.Ct. 2355, 2363, 72 L.Ed.2d 728 (1982); Creaton v. Heckler, 625 F.Supp. 26 (C.D. Cal., 1985). In reviewing an agency’s construction of a statute, a court need not find that that construction “is the only reasonable one, or even that it is the result [the court] would have reached had the question arisen in the first instance in judicial proceedings.” Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Absent a “compelling indication” that the agency’s interpretation of the statute is wrong, Drysdale v. Spirito, 689 F.2d 252, 261 (1st Cir.1982), or that such interpretation does not further the goals of the legislation, Zuber v. Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 327-28, 24 L.Ed.2d 345 (1982), the courts must uphold an agency’s statutory construction. See also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).

Here, the court concludes that the Secretary’s interpretation of 42 U.S.C. § 602(a)(38), and the regulation she has promulgated in accordance therewith, is reasonable and consistent with the language and underlying purpose of the DEFRA, §§ 405(j) and 408(e) of Title II, and the AFDC program. This conclusion is based, above all, on the court’s belief that § 2640 of the DEFRA and its legislative history reflect a clear congressional intent to include co-resident children in the AFDC family filing unit, and to include Title II funds as income under § 602(a)(38). As noted above, § 2640 specifically states that all co-resident siblings who receive Title II benefits are to be included in the assistance unit “notwithstanding” the provisions of 42 U.S.C. § 405(j). “The specific reference to section [405(5) ] clearly indicates that Congress was well aware of the provision of section [405(5) ] and its possible inconsistency with section 2640 and by express language indicated how the potential conflict was to be resolved.” Huber v. Blinzinger, 626 F.Supp. 30, 33 (N.D.Ind. 1985). Moreover, in approving this amendment to § 602(a), the Senate Committee on Finance published the following explanation:

Present Law

There is no requirement in present law that parents and all siblings be included in the AFDC filing unit. Families applying for assistance may exclude from the filing unit certain family members who have income which might reduce the family benefit. For example a family might choose to exclude a child who is receiving social security or child support payments, if the payments would reduce the family’s benefits by an amount greater than the amount payable on behalf of the child.

Explanation of Provision

The provision approved by the Committee would require states to include in the filing unit the parents and all dependent minor siblings ... living with the child who applies for or receives AFDC.
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This change will end the present practice whereby families exclude members with income in order to maximize family benefits, and will ensure that the income of family members who live together and share expenses is recognized and counted as available to the family as a whole.

S.Rep. No. 98-169, Senate Com. on Finance, 98th Cong., 2nd Session, Deficit Reduction Act of 1984, Explanation of Provisions Approved by Committee on March 21, 1984, Vol. 1 at page 980 (Comm.Print 1984).

The court can find no indication either in the statute itself or in the committee report that the Secretary could not properly interpret the “for the use and benefit” language of §§ 405(5) and 408(e) to make available Title II children’s benefits for the support and maintenance of both the beneficiary and the AFDC family unit when the Title II beneficiary resides with parents who receive AFDC. As the Ninth Circuit recently recognized, § 602(a)(38)(A)

Specifically provides that in making AFDC eligibility and grant determination for the dependent child, the state must include the dependent child’s parent in the assistance unit if the parent lives in the same household as the dependent child. In addition, the state must include “any income of or available for” the parent if the parent lives in the same household as the dependent child____

Cunningham v. Toan, 762 F.2d 63, 65 (8th Cir.1985). There is no basis in either the language or history of paragraph (38) to reach a different conclusion with respect to clause (B). Rather, the plain language of the statute indicates that “any brother or sister” of AFDC recipient children must be included in the AFDC family filing unit if that sibling “is living in the same home” as the AFDC recipient, and that sibling’s income must be included in determining the family’s AFDC eligibility. Creaton v. Heckler, supra 625 F.Supp. at 29-30; Huber v. Blinzinger, supra, 626 F.Supp. at 32-33. The challenged regulation, 45 C.F.R. § 206.10(a)(l)(vii), simply effectuates this statutory mandate. The court thus finds that the Secretary’s construction of § 602(a)(38) is reasonable and consistent with congressional intent, and must be upheld.

In light of the court’s finding that the Secretary’s regulation is entirely consistent with Congress’ intent, Plaintiffs’ statutory arguments must fall. First, Plaintiffs’ argument that OASDI children do not meet the conditions of § 606(a)(1) and (2), and therefore cannot automatically be included in the AFDC grant group, is based on a fundamental misunderstanding of the statute. Section 602(a)(38) requires that co-resident siblings who meet the conditions described in clauses (1) and (2) of § 606(a) be included in the assistance unit and their income considered in determining need. Section 606(a) provides that

The term “dependent child” means a needy child (1) who has been deprived of parental support or care by reason of death, continued absence from the home ... or physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece, in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen____

Minor Title II beneficiaries clearly satisfy the requirement of clause (2). Further, OASDI recipients, by definition, satisfy the categorical requirement of “deprivation of parental support” contained in clause (1): the very reason that these children are receiving Title II social security benefits is because of the death or disability of their fathers. Therefore, Plaintiffs’ argument focuses primarily on the “neediness” requirement of § 606.

The determination of need is made under 42 U.S.C. § 602(a)(7). Paragraph (38), the new family filing unit provision, explicitly states that “in making the determination under paragraph (7)” — i.e., the need determination — the state shall include the income of brothers and sisters living with the AFDC child. In light of the above-quoted legislative history, the court firmly believes that Congress intended by this language to focus the determination of need not on individual family members, but rather on the neediness of the family unit as a whole. Therefore, the court concludes that OASDI beneficiaries under 18 years of age satisfy the requirements of clauses (1) and (2) of § 606(a).

Plaintiffs’ second statutory argument, that OASDI benefits are restricted and legally unavailable to AFDC siblings, is also untenable in light of the plain language of § 602(a)(38). Plaintiffs assert that the Secretary’s regulation subjects representative payees to the criminal penalties of § 408(e) by requiring them to violate their fiduciary duties toward OASDI recipients. However, as discussed supra, at 330, the reference in paragraph (38) to § 405(j) clearly indicates that Congress considered the potential effects of the amendment on representative payees and determined to consider Title II benefits in AFDC need calculations despite the provisions of § 405(j). See Huber v. Blinzinger, supra, 626 F.Supp., at 32-33.

Finally, the court finds that Plaintiffs’ arguments that § 602(a)(38) violate their equal protection and due process rights are without merit. It is well-established that Social Security and other social welfare legislation must only withstand a minimal level of scrutiny in order to survive equal protection or due process challenges. See, e.g., Schweiker v. Hogan, supra; Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981); Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228 (1978); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Courts must uphold classifications created by federal welfare legislation as long as there is a rational basis for the congressional choice, and the classification is not “patently arbitrary.” Califano v. Aznavorian, 439 U.S. 170, 99 S.Ct. 471, 58 L.Ed.2d 435 (1978); Flemming v. Neston, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 reh’g denied, 364 U.S. 854, 81 S.Ct. 29, 5 L.Ed.2d 77 (1960). Similarly, regulations promulgated pursuant to such legislation will be upheld if they are rationally related to a legitimate legislative objective. Weinberger v. Salfi, supra, at 768-69, 95 S.Ct. at 2468-69; Creaton v. Heckler, supra, 625 F.Supp. at 29.

In Huber v. Blinzinger, supra, the court addressed the constitutionality of the Secretary’s regulation, and noted that

The underlying purpose of the AFDC program is to provide financial assistance to needy dependent children and the parents or relatives who live with or care for them ... In determining need under the AFDC program, the income and benefits available to the AFDC unit, as a total of the income individuals making up the unit, is of critical importance, for if the needs of the dependent children and family are being met without AFDC assistance, the underlying purpose of the AFDC program is being met. Thus, the inclusion of OASDI benefits received by a member of an AFDC unit in the income of the AFDC unit is certainly rationally related to the underlying goal of the AFDC program.

Id. 626 F.Supp. at 33. This court agrees with the above conclusion. Further, the family filing unit concept imposed by § 602(a)(38) is rationally founded on the theory that co-resident minor siblings with a shared custodial parent are likely to use economies of scale and combine resources to meet their basic subsistence needs. Since both AFDC and OASDI are social welfare programs, the consideration of OASDI benefits in determining need under the AFDC program also facilitates the allocation of scarce public funds to those most in need. The court thus concludes that the family filing unit provision, and the regulation promulgated thereto, are rationally related to the legitimate government objective of allocating limited public funds among the most needy individuals.

Because Plaintiffs’ statutory and constitutional arguments are untenable, the Secretary’s motion for summary judgment will be granted. The court also concludes that summary judgment is appropriate with respect to Defendant Ledbetter. The state policy challenged by Plaintiffs simply effectuates the federal statute and corresponding HHS regulation. Further, Plaintiffs’ claims against Ledbetter are essentially identical to those asserted against the Secretary, and must fail for the same reasons.

Accordingly, Defendants’ motions for summary judgment are GRANTED; Plaintiffs’ motion for summary judgment is DENIED..