author: KEVIN THOMAS DUFFY, District Judge:

text:
    BURLINGTON COAT FACTORY WAREHOUSE CORPORATION, Plaintiff, v. ESPRIT DE CORP. and Federated Department Stores, Inc., Defendants.
    No. 83 Civ. 7393 (KTD)
    United States District Court, S.D. New York.
    Nov. 16, 1984.

      Kassner, Haigney & Thomson, New York City, for plaintiff; Stacy J. Haigney, Denise M. Cossu, New York City, of counsel.
    Kaye, Scholer, Fierman, Hays & Handler, New York City, for defendant Esprit De Corp.; Fredric W. Yerman, Richard A. De Sevo, New York City, of counsel.
    Proskauer, Rose, Goetz & Mendelsohn, New York City, Arnold & Porter, Washington, D.C., Lois Thompson, New York City, G. Duane Vieth, Murray H. Bring, John Kronstadt, Mark R. Merley, Washington, D.C., Thomas G. Cody and Boris Auerbach, Cincinnati, Ohio, of counsel.
   MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

Plaintiff, Burlington Coat Factory Warehouse Corporation (“Burlington”) commenced this action against defendants Esprit De Corp. (“Esprit”) and Federated Department Stores, Inc. (“Federated”) pursuant to section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. Defendants now move pursuant to Fed.R.Civ.P. 56 for summary judgment.

Esprit is a manufacturer of women’s and children’s clothing and accessories. Federated, through several divisions, sells clothing to retail customers. Two of Federated’s well-known divisions are Bloomingdale’s and Abraham & Straus. Burlington is a retailer of men’s, women’s, and children’s clothing. Burlington’s stores sell its merchandise at prices approximately twenty-five percent below those charged by traditional department stores such as those controlled by Federated.

Between August 1982 and March 1983, Burlington submitted eleven orders to Esprit totalling $281,708. Esprit's Appendix, Exh. A (Affidavit of Leon C. Rosenberg) at 2. On average, Esprit filled 46.23 percent of Burlington’s orders. Id. It is undisputed that in July 1983, Burlington submitted three orders totalling approximately $500,-000. On July 29, 1983, Esprit returned all of Burlington’s outstanding purchase orders. Esprit’s Appendix, Exh. B. Burlington alleges that the decision by Esprit to not fill Burlington’s orders was made after and as a result of a public announcement made by Federated at a June 1983 retailers’ conference. Federated apparently announced that any wholesaler who supplied off-price retailers would run the risk of losing Federated’s business. See Affidavit of Norman Ross, Exh. A (press release).

Burlington alleges that Federated’s announcement constituted a “threat of and an invitation by Federated to manufacturers such as Esprit to enter into an agreement and conspiracy in restraint of trade for the purpose of eliminating price competition at the retail level of the apparel market.” Complaint ¶ 17. Burlington alleges also that Federated complained directly to Esprit with respect to Burlington. Id. ¶ 18.

Esprit asserts that it was neither aware of Federated’s announcement nor received complaints from Federated prior to returning Burlington’s orders. Esprit claims that its decision to not sell to Burlington was unilaterally arrived at and was based on a desire to promote a certain image to the public. Esprit distinguishes itself from other clothing manufacturers by claiming to promote a “concept”, by featuring a complete line of coordinated clothing and accessories to be displayed together rather than by item. See Federated’s Appendix, Exh. 1 (Deposition of Leon C. Rosenberg) at 59, 74-76, 93-94. According to the national sales manager for Esprit, Leon Rosenberg, Esprit is continually becoming more popular and is increasingly unable to fill a substantial portion of its customers’ orders. Id. at 56, 74. Thus, Esprit began to implement a program in late 1982 and early 1983 to sell its merchandise to only those stores who would present its apparel in such a way that would further Esprit’s “concept.” Id. at 74. Apparently, however, Burlington utilizes a “ ‘no frills’ approach” in merchandising its goods; clothing is arranged by item on racks and fixtures. See Esprit Appendix, Exh. J (Deposition of Monroe Milstein) at 36-37.

Rosenberg stated at his deposition that he personally reviewed Burlington’s July 1983 orders because they were for such a large amount. He investigated the size of Burlington’s prior orders and found the July orders to be far in excess of them. Federated’s Appendix, Exh. 1 at 54-57. Rosenberg then spoke with the Esprit sales representatives who took Burlington’s orders. Id. at 57. After learning about the nature of Burlington’s stores, Rosenberg stated, the orders were returned. Id. at 57-60, 68.

Thereafter, on August 30, 1983, a meeting was held in Esprit’s New York showroom. It was attended by Rosenberg, one of the sales representatives who took Burlington’s orders, Burlington’s general merchandise manager, Norman Ross, and a Burlington sales representative, Elisa Kraemer. Id. at 68. Kraemer brought a tape recorder to the meeting concealed in her briefcase and the ensuing conversation was recorded. See Federated’s Appendix, Exh. 2 (transcript of recording). Rosenberg explained to Kraemer and Ross that Esprit was decreasing the number of accounts it serviced and was evaluating various stores in terms of whether they presented the image that Esprit was seeking to convey. Id. Mr. Rosenberg discussed Esprit’s decision to stop selling to several full price specialty store chains including “The Limited” to which Esprit had approximately $3 million in annual sales. Id. at 6-7. Federated- was not mentioned at any point during the conversation.

Thus, Esprit asserts that its decision to terminate its sales to Burlington was unilateral and was based on the fact that (1) Burlington’s July 1983 orders were several times larger than prior orders and Esprit’s ability to produce merchandise was outstripped by its ability to supply it, and (2) Burlington’s method of merchandising did not comport with the image and conceptual approach desired by Esprit. In support of its contentions, Esprit notes that it has refused to sell to full-price retailers who have failed to sell conceptually and that it continues to sell to off-price retailers who do sell conceptually.

Federated seeks summary judgment for the same reasons as are asserted by Esprit. Federated denies that any communication, threats or complaints were conveyed to Esprit. Burlington opposes defendants’ motions for summary judgment principally on the ground that they are premature. Plaintiff seeks the denial of the summary judgment motions or, alternatively a continuance pursuant to Fed.R.Civ.P. 56(f) so that discovery may proceed.

DISCUSSION

I.

Plaintiff does not state in its papers that a continuance is being sought under Fed.R.Civ.P. 56(f). Instead, Burlington asserts the need for additional discovery as a basis for denying defendants’ summary judgment. Nonetheless, I will treat plaintiff’s opposition as a motion under Fed.R.Civ.P. 56(f) for a continuance.

Fed.R.Civ.P. 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

In the context of antitrust litigation, in determining whether a Rule 56(f) motion should be granted, the factors that have been cited as relevant include (1) “the degree of specificity already offered by the charging party that a conspiracy existed,” and (2) the “peripheral or focused nature” of discovery requests. See Paul Kadair, Inc. v. Sony Corporation, 694 F.2d 1017, 1030 (5th Cir.1983).

Burlington asserts that there are two depositions of Esprit to be taken; plaintiff seeks to depose Carol Wicks, Secretary-Treasurer of Esprit, and Corrado Federico, President of Esprit’s Sports division. Furthermore, Burlington states that discovery with respect to Federated has just commenced. Plaintiff notes that in response to its interrogatories, Federated identified approximately 161 individuals who are employees of either Federated or Esprit but who have had contacts with the other company. Thus, plaintiff wishes to “expeditiously notice the depositions of selected officers and employees of Federated ... and attempt to test the bona fides of defendants’ assertions of unilateral conduct.” Burlington’s Memorandum at 15. Basically, plaintiff wants to embark on a fishing expedition because the discovery has not thus far resulted in any circumstantial or direct evidence of an illegal agreement or conspiracy.

Furthermore, a dilatory plaintiff cannot rely on Rule 56(f). See Paul Kadair, Inc. v. Sony Corporation, 694 F.2d at 1031. In First National Bank of Arizona v. Cities Service Co., the Supreme Court stated:

We do not doubt that, had petitioner introduced some significant evidence that Cities had become a member of the conspiracy ..., more extended discovery under Rule 56(f) of Cities’ activities subsequent to its refusal to deal with him would have been proper____ But in this case petitioner was attempting, in effect, to obtain discovery of peripheral aspects of Cities’ alleged participation in the conspiracy, after having failed, despite already substantial discovery, to obtain any significant evidence of conspiracy ____ It is precisely because the discovery obtainable under Rule 56(f) to oppose a motion for summary judgment would normally be less extensive in scope than the general discovery obtainable under Rule 26, that such a manner of proceeding was properly refused here.

391 U.S. 253, 298, 88 S.Ct. 1575, 1597, 20 L.Ed.2d 569 (1968); see also Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 107 (2d Cir.1981) (“Something more than a fanciful allegation is required to justify denying a motion for summary judgment when the moving party has met its burden of demonstrating the absence of any genuine material issue of fact.”)

Burlington filed its complaint on October 7,1983. Since that time, plaintiff has deposed Leon Rosenberg of Esprit and three Esprit sales representatives. Burlington sought no other discovery for approximately four months and only recently served interrogatories and document requests on Federated. With respect to the plaintiff’s wish to depose Wicks and Federico, plaintiff was aware of these individuals at the time of the filing of the complaint yet failed to notice such depositions until recently.

Thus, plaintiff has not been diligent in pursuing discovery but now opposes defendants’ motions for summary judgment claiming a need for additional discovery. Yet, plaintiff has not offered any reasons why the discovery it seeks now, which is assertedly critical to plaintiff’s case, was not conducted earlier. See American Lease Plans, Inc. v. Silver Sand Co., 637 F.2d 311, 318 (5th Cir.1981). In its Memorandum, Burlington fails to particularize what relevant facts would be developed during the course of further discovery. In addition, for the reasons stated in the following section, I find that the plaintiff’s action is groundless. The granting of a continuance under Rule 56(f) has been considered to be inappropriate in cases in which substantial discovery has been conducted, and plaintiff’s action appears groundless. See Donofrio v. Camp, 470 F.2d 428, 432 (D.C.Cir.1972).

Accordingly, because I find that plaintiff has not been diligent about proceeding with its discovery, that substantial discovery already has been conducted, and that the facts elicited by the discovery completed thus far have not in any way supported plaintiff’s claims, plaintiff’s request for a continuance under Rule 56(f) is denied. Thus, I turn to the issue of whether defendants are entitled to summary judgment.

II.

In order to prevail on a motion for summary judgment, the movant has the burden of establishing that there are no genuine issues of disputed material fact and that he is entitled to judgment as a matter of law. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). “ ‘A material issue is one which may affect the outcome of the litigation.’ ” Mutual Fund Investors, Inc. v. Putnam Management Co., 553 F.2d 620, 624 (9th Cir.1977). Furthermore, in antitrust cases, these “general standards are applied even more stringently.” Beltz Travel Service v. International Air Transport Association, 620 F.2d 1360, 1364 (9th Cir.1980).

Section 1 of the Sherman Act prohibits “contract[s], combination[s] ... or conspiracies].” See 15 U.S.C. § 1. Unilateral independent action by a manufacturer, however, is not proscribed. “A manufacturer ... generally has a right to deal, refuse to deal, with whomever it likes, as long as it does so independently.” Monsanto Co. v. Spray-Rite Service Corp., — U.S.-, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984) (citing United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919)), reh’g denied, — U.S. -, 104 S.Ct. 2378, 80 L.Ed.2d 850 (1984).

As the Supreme Court stated in Monsanto:

Permitting an agreement to be inferred merely from the existence of complaints, or even from the fact that termination came about ‘in response to’ complaints, could deter or penalize perfectly legitimate conduct ____ [C]omplaints about price-cutters ‘are natural — and from the manufacturer’s perspective, unavoidable — reactions by distributors to the activities of their rivals.’ Such complaints, particularly where the manufacturer has imposed a costly set of nonprice restrictions, ‘arise in the normal course of business and do not indicate illegal concerted action.’

Id. at 1470 (citations omitted). Thus, the Supreme Court held that “something more than evidence of complaints is needed. There must be evidence that tends to exclude the possibility that the manufacturer and nonterminated distributors were acting independently.” Id. at 1471.

It is undisputed that there is no direct evidence of an agreement or conspiracy between Federated and Esprit. Nor does Burlington assert that there is any direct evidence of complaints levelled by Federated against Esprit. Instead, Burlington cites, as circumstantial evidence, the proximity of time between Federated’s announcement and Esprit’s refusal to sell to Burlington. Such evidence alone, however, fails to establish an illegal conspiracy or agreement between Esprit and Federated; it is mere conjecture on the part of Burlington.

In Monsanto, the circumstantial evidence, which was held sufficient, included statements by the manufacturer concerning complaints about the distributor’s prices, the fact that the manufacturer never before discussed distribution criteria with the distributor, requests by the manufacturer’s representative to the distributor’s salesmen to keep prices up, and finally, explicit threats to terminate the distributor unless it raised its prices. Id. at 1471. Thus, the Supreme Court found that there was “evidence that tends to exclude the possibility of independent action by the manufacturer and distributor.” Id.

On the record that has been developed by way of discovery, I can see no “direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others ‘had a conscious commitment to a common scheme designed to achieve an unlawful objective.’ ” Id. (citations omitted). Indeed, the fact that Esprit, continues to sell to those off-price merchants who market Esprit’s products in accordance with Esprit’s “concept” belies plaintiff’s claims. Esprit’s submissions tend to establish that Esprit had been, even prior to Federated’s announcement, implementing a program to have its merchandise sold consistently in a certain style. “Once allegations of a conspiracy have been rebutted by probative evidence showing alternative, legitimate business reasons for the defendants’ conduct, to avoid summary judgment the plaintiff must come forward with specific factual support for its allegations.” Program Engineering v. Triangle Publications, 634 F.2d 1188, 1195 (9th Cir.1980). Plaintiff has not sustained its burden.

Accordingly, defendants’ motions for summary judgment are granted. Plaintiff’s complaint is dismissed. Defendants are directed to submit judgments on notice.

SO ORDERED.


source: Caselaw Access Project

author: KEETON, District Judge.

license: Public Domain

text:
    Vera SADLER, on Behalf of herself and her legal ward, Ruby BAILEY, Plaintiff, v. Charles M. ATKINS, Commissioner of the Department of Public Welfare, Commonwealth of Massachusetts, Defendant and Third-Party Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Third-Party Defendant.
    Civ. A. No. 82-3085-K.
    United States District Court, D. Massachusetts.
    Nov. 19, 1984.
    Barbara Sard, Greater Boston Legal Services, Roxbury, Mass., Peter Rice, Greater Boston Legal Service, Boston, Mass., for plaintiff.

      Eyan Slavitt, Nancy Serventi, Asst. U.S. Attys., H. Reed Witherby, Asst. Atty. Gen., Boston, Mass., for defendants.
   Opinion

KEETON, District Judge.

Plaintiff, Vera Sadler, filed this action against the Commissioner of the Massachusetts Department of Public Welfare (Commissioner) for a denial of benefits under the Aid to Families with Dependent Children (AFDC) program. See 42 U.S.C. § 601, et seq. (1982). Plaintiff moves for partial summary judgment. The Commissioner cross-moves for partial summary judgment. The third-party defendant, the Secretary of Health and Human Services (Secretary), moves for summary judgment on all of the federal claims.

I.

All parties agree that the facts are undisputed. Soon after the plaintiff became the legal guardian of Ruby Bailey, a minor, she applied for AFDC benefits with the Commissioner. The Commissioner denied the plaintiffs application on the ground that the Massachusetts regulation defining an eligible “dependent child” did not include a ward living with a legal guardian. See 106 C.M.R. § 303.210 (1983). Plaintiff appealed this determination.

After exhausting her administrative remedies, plaintiff filed this action in Massachusetts Superior Court against the Commissioner. In state court plaintiff argued that the state regulation violated (1) the Social Security Act and the corresponding regulations, (2) the Equal Protection Clauses of the federal and state Constitutions, and (3) a prior Suffolk Superior Court decision. The Commissioner subsequently filed a third-party complaint against the Secretary in order to protect the state’s eligibility for federal financial participation. The Secretary removed this action to this court pursuant to 28 U.S.C. § 1442 (1982).

Adjudication of this dispute has been delayed pending resolution of a controversy as to whether the matter was ripe for adjudication under the then-existing posture of the case. All parties now agree that the case is now ripe for determination of motions for summary judgment as to the plaintiff’s federal law claims.

Plaintiff’s only relevant relationship to Ruby Bailey is that plaintiff is Ruby Bailey’s legal guardian. Plaintiff’s right to benefits under the AFDC program depends upon her showing that Ruby Bailey comes within the definition of a “dependent child.” To be a “dependent child,” the child must be living with a person who has one of the specified relationships to the child. The federal statutory definition in 42 U.S.C. § 606(a) (1982), the federal regulatory definition in 45 C.F.R. § 233.-90(c)(1)(v)(A) (1983), and the state regulatory definition in 106 C.M.R. § 301.210 (1983), are alike in naming relatives by consanguinity and affinity as having a qualifying relationship but never referring to a guardian as a person having a qualifying relationship to the child. Plaintiff nonetheless argues that the statute and federal regulations should be construed as including the guardian-ward relationship among those supporting a determination that Ruby Bailey was a “dependent child,” and that anything to the contrary in the state regulation is precluded by applicable federal law. In order to determine whether this contention can be sustained, I examine the statute, the legislative history, and the federal and state regulations.

II.

Congress enacted the AFDC program to provide federal funds on a matching fund basis with participating states “[f]or the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives.” 42 U.S.C. § 601 (1982). See H.R. No. 615, 74th Cong., 1st Sess., 10 (1935). See generally Drysdale v. Spirito, 689 F.2d 252, 253 (1st Cir.1982) (description of AFDC program in Massachusetts). To receive aid under the program, a family must include a dependent child. The most recent version of the statute defines the term “dependent child” in pertinent part as

a needy child (1) who has been deprived of parental support or care ... 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 ...

42 U.S.C. § 606(a) (1982).

The Secretary has promulgated the following regulation interpreting the statute:

A child may be considered to meet the requirement of living with one of the relatives specified in the Act if his home is with a parent or a person in one of the following groups:
(1) Any blood relative, including those of half-blood, and including first cousins, nephews, or nieces, and persons of preceding generations as denoted by prefixes of grand, great, or great-great.
(2) Stepfather, stepmother, stepbrother, and stepsister.
(3) Person[s] who legally adopt a child or his parent as well as the natural and other legally adopted children of such persons, and other relatives of the adoptive parents in accordance with State law.
(4) Spouses of any persons named in the above groups even after the marriage is terminated by death or divorce.

45 C.F.R. § 233.90(c)(1)(v)(A) (1983).

Under the AFDC program, Massachusetts has promulgated regulations that closely parallel the federal statute and regulations. “To be eligible, the dependent child must live with a relative responsible for his or her day-to-day care in a place of residence maintained as a home.” 106 C.M.R. § 303.200 (1983).

The applicant or recipient must be related to the dependent child in one (1) of the following ways:
(1) A blood relative, including a mother, father, sister, brother, niece, nephew, aunt, uncle, or first cousin, or any of these relatives of the preceding generation as denoted by prefixes of grand, great, or great-great. (Second and third cousins are not included under this definition. Blood relatives include those of half-blood);
(2) A stepfather, stepmother, stepbrother or stepsister;
(3) A parent by legal adoption or any of the adopting parent’s blood relatives as defined above, natural children, or adopted children; or
(4) A spouse of any person named above, even if the marriage has been terminated by death or divorce.

Id. § 303.210. The quoted sections are from the most current version of the Code of Massachusetts Regulations. Although it appears that the regulations have been amended in the last few years, the parties do not contend that the amendments affect the outcome of this case.

The primary issue in this case is whether a minor ward living with an unrelated legal guardian qualifies as a dependent child under the federal statute and regulations. Plaintiff argues that Congress did not intend for § 606(a) to enumerate an exhaustive list of caretaker relatives. Thus, she contends that, in light of the general purpose of the AFDC to provide a family-like environment for needy children, I should interpret the federal statute and regulations to include the guardian-ward relationship. This interpretation would invalidate the Massachusetts regulation insofar as it purports to exclude benefits to minor wards.

A recent decision of the Sixth Circuit has refused to adopt the plaintiff’s position. See Curry v. Dempsey, 701 F.2d 580 (6th Cir.1983). The reasoning and analysis of this decision are persuasive. The language of the federal statute and regulations and its legislative history do not support an expansive interpretation of the relational requirement.

The language of the federal statute defining a “dependent child” is very specific. See 42 U.S.C. § 606(a) (1982). Section 606(a) unambiguously lists the specific relatives with whom a needy child must reside for purposes of AFDC eligibility. An unrelated legal guardian clearly does not fall within the relational categories enumerated by Congress. Plaintiff argues that the Secretary’s regulation significantly expands the definition of a dependent child, and that for this reason the statute should not be interpreted narrowly. I agree that the regulation expansively construes the statutory definition by including individuals related to those included in the statute by blood, marriage, or adoption. However, the regulation does not include individuals unrelated to the individuals specified in the statute; nor does it suggest that the statute is simply a guideline for the award of benefits. And, the Secretary’s regulation interpreting the Social Security Act is entitled to substantial deference. See Blum v. Bacon, 457 U.S. 132, 141-42, 102 S.Ct. 2355, 2361-62, 72 L.Ed.2d 728 (1982).

This interpretation of the dependent child provision is supported by the history of congressional amendments to the statute. See Roosevelt Campobello International Park Commission v. United States Environmental Protection Agency, 711 F.2d 431, 436-37 (1st Cir.1983) (“subsequent Congressional declaration of an act’s intent is entitled to great weight in statutory construction.”). The 1935 statute defined the caretaker relative to include “father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, or aunt.” Social Security Act of 1935, Pub.L. No. 271, § 406(a), 49 Stat. 620, 629 (1936). In 1956 Congress amended this relational provision to include “first cousin, nephew, or niece.” Act of August 1, 1956, Pub.L. No. 880, § 321, 70 Stat. 807, 850 (1957). According to the Senate Report, this amendment was intended to extend “the degree of relationship slightly beyond the present law. This will permit additional children to have the advantages of life in a home maintained by close relatives.” S.Rep. No. 2133, 84th Cong., 2d Sess., 30, reprinted in 1956 U.S.Code Cong. & Ad.News 3877, 3907. Although Congress has amended the AFDC program in various areas since 1956, it has not changed the relational requirements enumerated in § 606(a). In fact the congressional enactment of the AFDC foster care program demonstrates the recognition of the limited coverage of the regular AFDC program. See 42 U.S.C. § 608 (1982). The language and history of the AFDC amendments support a straightforward rather than expansive interpretation of the relational requirement. Cf. Curry, 701 F.2d at 583.

The legislative history of the 1935 statute similarly supports the congressional intent to grant AFDC benefits only to children living with certain specified relatives. Id. at 582-83. Congress created the AFDC program to limit “the practice of removing needy children from their homes and placing them in institutions, and to free widowed and divorced mothers from the necessity of working, so that they could remain home to supervise their children.” Burns v. Alcala, 420 U.S. 575, 581-82, 95 S.Ct. 1180, 1184-85, 43 L.Ed.2d 469 (1975) (citing H.R.Doc. No. 81, 74th Cong., 1st Sess., 29-30 (1935); S.Rep. No. 628, 74th Cong., 1st Sess., 16-17 (1935); H.R.Rep. No. 615, 74th Cong., 1st Sess., 10 (1935)). After reviewing the legislative history of the AFDC, the Supreme Court noted that “The act originally authorized aid only for children living with designated relatives. The list of relatives has grown, ... but there is still no general provision for AFDC payments to needy children living with distant relatives or unrelated persons____” Id. at 582, 95 S.Ct. at 1185 (footnotes omitted).

III.

Plaintiff argues that two recent amendments of the AFDC statute, though directed to matters other than the definition of a “dependent child,” should be held to have manifested a congressional intent regarding the definition of a “dependent child” contrary to the determination I have reached in part II, above.

First, she argues that the following provision indicates that Congress intended that guardians and wards receive AFDC benefits.

[“A State plan ... must” ] provide that any payment required to be made under section 656 or 657 of this title to a family shall be made to the resident parent, legal guardian, or caretaker relative having custody of or responsibility for the child or children;

42 U.S.C. § 654(12) (1982), enacted by Social Services Amendments of 1974, Pub.L. No. 93-647, § 454, 88 Stat. 2337, 2354-55 (1976). On its face, this provision is aimed at causing benefits to be paid to a person who is likely to cause them to be properly applied for the benefit of the dependent child. It is aimed at avoiding misuse of benefits, not at determining whether benefits are due. Nothing in the legislative history suggests a different objective. See 1974 U.S.Code Cong. & Ad.News 8133. Nor does the legislative history clarify the use of the term “legal guardian.” In these circumstances, the most reasonable interpretation is that Congress referred to “legal guardians” in their role as persons legally responsible for receiving and applying benefits when the caretaker relative is not sui juris and thus is not legally recognized as capable of managing the AFDC grant for the benefit of the dependent child. See 42 U.S.C. §§ 605, 1311 (1982) (provision enacted in 1962). Also within the scope of this manifested purpose are-cases in which excess payments are to be made after AFDC assistance is terminated. See id. § 657(c).

Second, plaintiff argues that the Deficit Reduction Act of 1984 demonstrates the congressional intent to include guardians and wards in the AFDC program. See Pub.L. No. 98-369, 98 Stat. 494. Section 2640 of the Act added the following paragraph to the Social Security Act:

[“A State plan ... must” ] provide that in making the determination under paragraph (7) with respect to a dependent child whose parent or legal guardian is under the age selected by the State pursuant to section 406(a)(2), the State agency shall (except as otherwise provided in this part) include any income of such minor’s own parents or legal guardians who are living in the same home as such minor and dependent child, to the same extent that income of a stepparent is included under paragraph (31).

Pub.L. No. 369, 98th Cong., 2d Sess., § 2640(a)(3), 98 Stat. 494, 1145 (enacting 42 U.S.C. § 602(a)(39)). All counsel have advanced arguments that, explicitly or implicitly, are premised on the notion that it is not possible to read as meaning literally what they say, the two phrases (1) “whose parent or legal guardian is under ... age ...” and (2) “include any income of such minor’s own parents or legal guardians who are living in the same home____” I conclude that the premise of these arguments is ill-founded. It is reasonable to read the statute as meaning what it says and saying what it means.

The phrase “parent or legal guardian” plainly refers to the dependent child’s parent or the dependent child’s legal guardian. Of course, it is often true that a parent of a dependent child is underage. Less often a legal guardian is underage. However, state law relating to appointments of guardians for living persons who are minors or otherwise legally incompetent to manage their own affairs may take account of two distinct needs — protection of the person and protection of the person’s financial affairs. See generally R. MacKay, The Law of Guardianships 24-53 (3d ed. 1980) (describing the different types of guardianships available to care for the different needs of a child). Indeed separate persons may be appointed as guardian of the person and guardian of the financial affairs of a minor. Thus, a state tribunal (often a “probate court”) may well find, for example, that an underage sister of a deceased or disabled mother of a dependent child is, from the perspective of the interests of the child, the best person to serve as guardian of the person of the child. The tribunal might also find a need in such circumstances either to appoint a legal guardian of the affairs of the dependent child to receive and manage the funds that are to be received and expended for the benefit of the dependent child, or to appoint a legal guardian of the underage sister to receive and manage these funds for the benefit of the dependent child, as well as any other funds of the underage sister. Thus, in such circumstances as these, two or more persons would be designated by the state tribunal as “legal guardians”— one, the underage sister, as legal guardian of the person of the dependent child and one or more others as legal guardian of the financial affairs of the dependent child, or as legal guardian of the person of the underage sister, or as legal guardian of the financial affairs of the underage sister.

Also, even when the functions of guardian of the person and guardian of the financial affairs are not separated, two persons may be appointed to serve jointly as guardians of the person and affairs of a minor.

It is a reasonable construction of the statute that the minor referred to in the phrase “such minor’s own parents or legal guardians” is not the dependent child but instead an underage parent of the dependent child or an underage guardian of the dependent child. Thus, the phrase “such minor’s own parents or legal guardians” may be read as applying to circumstances in which both parents are living in the same home with “such minor” and the de: pendent child. Also, it may be read as applying to circumstances in which two persons are appointed to serve jointly as guardians of “such minor,” and both are living in the same home with “such minor” and the dependent child.

Because the statute reasonably can be read, both literally and in the context of apparent objectives and legislative history, as meaning what it says, it is inappropriate for a court to invoke precedents dealing with drafting errors — for example, precedents for reading “shall” in a statute as meaning “shall not,” when the context plainly supports that meaning. See Johnson v. United States Gypsum Co., 217 Ark. 264, 229 S.W.2d 671 (1950); H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1219 (1958).

In the present case, moreover, even if one is persuaded that a drafting error occurred (for example, in using “guardians” where “guardian” was meant), it does not follow that either the Secretary or a court is for that reason free to treat the references to “guardian” and “guardians” in this amendment as intended to redefine “dependent child.” Indeed, there is an independent reason for rejecting plaintiffs contention that the Deficit Reduction Act of 1984 demonstrates a congressional intent to include the guardian-ward relationship among those that are qualifying relationships for determining whether Ruby Bailey is a dependent child. The eligibility re-’ quirement — the definition of “dependent child” — appears in 42 U.S.C. § 606(a) (1982). The Deficit Reduction Act of 1984 adds a paragraph to 42 U.S.C. § 602 (1982), which in part governs the rules for attributing income of the family once it is eligible for AFDC benefits. Section 602 does not define a “dependent child” under the AFDC. Under the new provision, it is not alone the income of the dependent’s child’s parents and guardian or guardians that is counted. Also counted toward determining AFDC need, as I read the statute, is the income of parents or guardian(s) of “such minor” who live in the same home “as shch minor and dependent child.” Thus, the dependent child’s guardian’s guardian, living in the same home, is among those whose income is counted toward determining AFDC need. But whether or not this interpretation is accepted, the basic point remains: the statutory objective was to prescribe what income is counted toward determining AFDC need, not to define “dependent child.”

Interpretation of the Deficit Reduction Act of 1984 as saying nothing at all about the definition of “dependent child” is supported by the legislative history of the new Act. The general purpose of the new Act is to reduce federal expenditures. See Statement of Rep. Rostenkowski Upon Consideration of the Conference Report on. H.R. 4170, 1984 U.S.Code Cong. & Ad.News, 1446, 1451. An expansion of eligible dependent children would clearly work against that purpose.

For these reasons, I interpret the federal statute and regulations to exclude the guardian-ward relationship from those supporting eligibility under the AFDC program.

IY.

Plaintiffs motion for partial summary judgment asserts that the interpretation adopted in parts II and III above violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Although this argument is not thoroughly briefed in the plaintiffs motion, I address it to resolve the only remaining federal issue.

The Sixth Circuit in Curry v. Dempsey, 701 F.2d 580, 583-84 (6th Cir.1983), addressed this identical equal protection challenge to the Social Security Act. Using the rational basis level of scrutiny, see Califano v. Aznavorian, 439 U.S. 170, 99 S.Ct. 471, 58 L.Ed.2d 435 (1978), the court found that,

In promulgating the AFDC program Congress elected to confront one consequence of poverty — the disintegration of family — by providing financial assistance to family units consisting of “dependent children” and their “relatives” as those terms are defined by the statute and regulation. Certainly this is a rational method of challenging the pressures poverty places upon the family relationship.

Curry, 701 F.2d at 584. An interpretation of the AFDC statute that excludes the guardian-ward relationship is not unconstitutional.

V.

Because all of the federal claims are resolved in favor of the Secretary, the third-party complaint will be dismissed.

This opinion does not interpret the Massachusetts regulation or express any view as to its compliance with state-law. See Pennhurst State School & Hospital v. Halderman, — U.S.-, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The remaining state law claims will be remanded to state court.

Plaintiff’s motion for partial summary judgment will be denied. Defendant’s motion for partial summary judgment will be granted. Third-party defendant’s motion for summary judgment will be granted.

Judgment will be entered accordingly.


author: ZAMPANO, District Judge.

text:
    UNITED STATES of America v. Michael Roland ROY.
    Crim. A. No. N-83-15.
    United States District Court, D. Connecticut,
    Nov. 19, 1984.

      Alan H. Nevas, U.S. Atty., Jeremiah F. Donovan, Asst. U.S. Atty., New Haven, Conn., for plaintiff.
    Thomas G. Dennis, Federal Public Defender, Richard Reeve, Asst. Federal Public Defender, New Haven, Conn., for defendant.
   RULING ON DEFENDANT’S MOTION TO DISMISS

ZAMPANO, District Judge.

The defendant, Michael Roland Roy, moves to dismiss federal firearms charges pending against him on the ground that federal prosecutors violated certain provisions of the Interstate Agreement on Detainers Act (“IAD”), 18 U.S.C., App. (1982). Specifically, he contends (1) that the government failed to bring him to trial within 120 days after he was transferred from state to federal custody, as is required by Article IV(c); and (2) that he was not tried on the federal indictment before being returned to state custody, in violation of Article IV(e).

I. FACTS

Because many of the dates and times involved are crucial to a resolution of the issues presented, the facts must be set out in detail.

On December 3, 1982, Roy was arrested by detectives of the Rocky Hill Police Department on state charges of criminal attempt to commit robbery. He was incarcerated as a pretrial state prisoner at the Hartford Community Correctional Center (“Hartford CCC”), and bond was set at $50,000. On December 8, 1982, a federal detainer for the charge of escape, pending before the United States District Court for the Northern District of Illinois, was received at Hartford CCC. On December 16, 1982, Roy was transferred to the Connecticut Correctional Institution at Somers (“Somers CCI”). On January 27, 1983, Roy’s State of Connecticut parole for a previous sentence was revoked, so that he became a state prisoner serving a state sentence on that date. On January 28 and 29, respectively, detainers were filed at the Somers CCI by California state authorities charging Roy with murder, and by Massachusetts authorities charging him with robbery.

The indictment in the instant case for willfully possessing firearms, in violation of 26 U.S.C. §§ 5861, 5871 and 18 U.S.C., App. § 1202, was returned by a grand jury on February 24, 1983. Magistrate Latimer issued a bench warrant for Roy’s arrest, and at that time the government stated the warrant was to act as a detainer. Also on February 24, the United States Marshal’s Service for the District of Connecticut sent a separate detainer, based on the federal firearms charges in this case, to Hartford CCC, although Roy had been transferred over two months previously to Somers' CCI. Authorities at Hartford CCC forwarded the detainer to Somers CCI, and it was recorded as arriving at Somers on March 3, 1983, the day after the bench warrant was served on Roy.

In the meantime, the government filed for and received a writ of habeas corpus ad prosequendum in this case on February 28, 1983. Pursuant to an order to produce based on the writ, Roy was transported by the deputy marshals from Somers CCI to federal district court in Bridgeport on March 2, 1983. After Roy entered a plea of not guilty, Chief Judge Daly set bond at $150,000, and Roy was returned to Somers CCI. Various motions relating to discovery were ruled on by Judge Daly during March 1983.

In addition, Judge Daly scheduled a hearing on Roy’s motion to suppress for April 4, 1983 at 2:00 P.M. On that morning at 10:00 A.M., pursuant to a second order to produce based on the writ of habeas corpus ad prosequendum issued on February 28, Roy was taken into federal custody by deputy marshals at the Somers CCI and taken to Hartford where a second team of deputy marshals transported him to the federal court in Bridgeport, arriving at 1:00 P.M. that day. The hearing before Judge Daly, at which several witnesses testified, concluded shortly after 5:00 P.M. Rather than returning Roy to the Somers CCI, the marshals, for reasons to be discussed hereinafter, decided to house Roy overnight at the Bridgeport Community Correctional Center (“Bridgeport CCC”), a local state jail facility a few miles from the federal courthouse. The following day, April 5, Roy was returned by the marshals to Somers CCI, where he arrived at 12:30 P.M.

Subsequently, before ruling on Roy’s motion to suppress, Judge Daly transferred the case to this Court. The motion to suppress was reheard by this Court on May 23, 1983.

While that motion was pending, Roy was removed from Somers CCI on June 14 and transported to California, pursuant to the detainer filed by that state in January. On July 22, 1983, the charges against him in California were dismissed and Roy was returned to Somers CCI on August 2.

This Court granted Roy’s motion to suppress on August 9, 1983. United States v. Roy, 568 F.Supp. 1127 (D.Conn.1983). Shortly thereafter, the pending Connecticut state charges against Roy were nolled on August 20, but Roy was still held at Somers CCI pursuant to the state sentence he was serving after his parole was revoked. This action on federal firearms charges was continued for 17 days at the request of the government following a hearing in court on September 2, 1983, to allow it to decide whether to appeal, under 18 U.S.C. § 3731, the Court’s ruling on the motion to suppress. The government filed its notice of appeal on September 16, 1983.

On September 12, 1983, the Marshals Service filed a detainer against Roy relating to a bank robbery indictment pending in the United States District Court for the Middle District of Florida. That court issued a writ of habeas corpus ad prosequendum, which was filed at Somers CCI on October 17. On October 24, Roy was transported by federal officials from Somers CCI to the Federal Correctional Institution at Danbury, Connecticut, and then to Florida by federal marshals acting pursuant to the writ. While he was in Florida, Roy’s Connecticut sentence, reinstated after his parole violation, expired on February 16, 1984, and Roy became a federal pretrial prisoner on that date.

Roy was tried on the bank robbery charges in federal court in Florida, and, on May 27, 1984 a verdict of not guilty was returned. The next day, Roy began the return trip to Somers CCI, where he arrived on June 8. He is currently in Somers CCI.

Meanwhile, in this action, the Court of Appeals reversed the ruling on the motion to suppress on May 3, 1984, and the case was remanded for trial. United States v. Roy, 734 F.2d 108 (2 Cir.1984). 1984). On May 17, 1984, this Court granted the government’s motion, pursuant to the Speedy Trial Act, 18 U.S.C. § 3161 (1982), to exclude the time from the date of the Second Circuit’s decision to the date Roy returned to Connecticut from Florida.

The motion to dismiss presently pending before the Court was filed on June 15, and, following two unopposed continuances granted at Roy’s written request, the Court held an evidentiary hearing on September 26, 1984.

II. APPLICABILITY OF IAD

Prior to the passage of the IAD, detainers in many cases had adverse effects upon sentenced prisoners. Due to administrative policies, the mere existence of a detain-er on a prisoner’s record often precluded eligibility for beneficial rehabilitation programs. A detainer permitted prosecutors to shuttle a prisoner between jurisdictions, disrupting his training and work programs, and had the potential effect of hampering his requests for parole. Moreover, studies indicated that a prisoner may suffer psychological strains from the presence of a longstanding detainer which he believes was filed in bad faith or which he knew involved charges that would not be resolved expeditiously. See United States v. Mauro, 436 U.S. 340, 359-60, 98 S.Ct. 1834, 1846-47, 56 L.Ed.2d 329 (1978); Pitts v. North Carolina, 395 F.2d 182, 187 (4 Cir.1968); Walker v. King, 448 F.Supp. 580, 583-85 (S.D.N.Y.1978); L. Abramson, Criminal Detainers 29-34 (1979).

In 1970, Congress enacted the IAD “to encourage the expeditious and orderly disposition of ... charges [outstanding against a prisoner] and determination of the proper status of any and all detainees' based on untried indictments, informations, or complaints.” Article I. Once federal authorities decide to proceed against a. state prisoner by way of a detainer, rather than by a writ of habeas corpus ad prosequendum, the IAD becomes applicable and the government must comply with its terms. Mauro, 436 U.S. at 343, 98 S.Ct. at 1838.

Among other things, the IAD prescribes that, in the absence of a continuance granted in open court for good cause, a prisoner must be tried within 120 days of his arrival in the receiving jurisdiction, Article IV(c), and that, if a prisoner against whom a detainer is pending is sent to another jurisdiction, then he may not be returned to the original or “sending” jurisdiction until the outstanding charges in the receiving jurisdiction are resolved, Article IV(e). If either of these limits is violated, the charges against the prisoner pending in the receiving state must be dismissed. Article V(c).

In the instant case, the government sent the detainer against Roy to state officials on February 24, 1983, and it was received by officials at Somers CCI and recorded on Roy’s records on March 3, 1983. The government also obtained a writ of habeas corpus ad prosequendum for Roy from the federal court on February 24, 1983.

Because a detainer was filed and both the United States and the State of Connecticut have enacted the IAD, 18 U.S.C., app. (1982), Conn.Gen.Stat. § 54-186 (1983), the provisions of the IAD presumably had been triggered. However, the government contends that the IAD is not applicable for several reasons: (1) Roy’s “primary status” during most of the relevant time period was as a state pretrial detainee, rather than as a convicted prisoner, as required for application of the IAD; (2) the detainer filed by the government was not a “true detainer,” but instead operated only to give state officials notice that a federal case was proceeding against the defendant; and (3) Roy should be estopped from relying on the protections of the IAD since he has acted as if the IAD had not been activated.

The government’s arguments are not persuasive. As to its contention that Roy’s “primary status” was as a state pretrial detainee until state charges were nolled, the government places much weight on the fact that Roy had bond set after his state arrest but he did not post it. Therefore, the government argues, Roy was not “primarily” a sentenced state prisoner as required for the IAD to apply. However, after Roy’s parole was revoked on January 27, 1983, Roy was serving a state sentence, and it was not possible for him to have posted bond to gain his release from Somers CCI. An individual either is or is not a sentenced state prisoner. Neither the language of the IAD nor any rational reason allows the Court to make the type of distinction the government asks it to make.

The government further argues on. this point that because it thought Roy was only a state pretrial detainee when it filed the detainer, the IAD should not apply. The government apparently did not know that Roy’s parole had been revoked because the detainer was sent to Hartford CCC, which houses state pretrial detainees, and a box on the detainer form that would indicate Roy was “serving a term of imprisonment” was not checked. The belief of federal authorities as to Roy’s status, however, is irrelevant in determining whether Roy was in fact a sentenced state prisoner. The adverse consequences of a detainer depend on a prisoner’s actual status as a sentenced state prisoner, not on the government’s belief as to his status.

The government’s claim that the detainer was not a “true detainer” is similarly without merit. The government contends that because Roy was removed from state custody to be arraigned in this case pursuant to a writ of habeas corpus ad prosequendum on March 2, 1983, then, although a detainer was admittedly filed at Somers CCI the next day, it should not be considered a “true detainer.” In effect, the government asks the Court to rule that if a state prisoner appears at a federal arraignment pursuant to a writ of habeas corpus ad prosequendum, a detainer filed subsequently does not trigger the IAD. The Court declines the invitation. The IAD protects prisoners who have “detainers” filed against them. When the detainer was filed against Roy on March 3, he was exposed to the adverse consequences of a detainer although he had already been arraigned pursuant to a writ.

Finally, as to the waiver or estoppel issue, the government has failed to establish the necessary elements to sustain the defense as set forth in United States v. Lawson, 736 F.2d 835 (2 Cir.1984). For waiver to be found, there must be evidence that the defendant “intended to relinquish his IAD rights or ... took any action that was, expressly or impliedly, inconsistent with the provisions of the IAD.” Id. at 840. The mere fact that Roy submitted his two unopposed motions for continuances, by means of written motions rather than by a proceeding in “open court,” as specified in Article IV(c), is not so inconsistent with the mandate of the IAD as to constitute a waiver. See United States v. Odom, 674 F.2d 228, 231 (4 Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2946, 73 L.Ed.2d 1341 (1982) (“[w]e reject the formalistic notion that the phrase ‘in open court’ should be interpreted to mean only in the courtroom”). The record is barren of any evidence to support a dismissal of Roy’s motion based on waiver or estoppel.

Under these circumstances, the Court concludes that the provisions of the IAD apply to these proceedings.

III. EFFECT OF THE IAD

Roy asserts that the government’s acts and omissions in this case violated the IAD in two respects. First, he submits that he was not tried on the pending charges within 120 days of his arrival into federal custody, the “receiving state,” in violation of Article IV(c), and second, he argues that he should have been tried on the federal charges before he was returned to state custody in April 1983, as required by Article IY(e).

120-Day Limit

Article VI(a) of the IAD governs the computation of the 120-day limit prescribed by Article IV(c). It provides in relevant part that the running of the time limit “shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.”

There is no serious dispute that 44 days elapsed within the meaning of Article IV(e) between March 2 and September 16, 1983. However, the defendant vigorously disputes the government’s contention that the eight-month delay, resulting from the government’s successful appeal of this Court’s ruling on Roy’s motion to suppress, should toll the running of time under Article VI(a). If those months are counted, as the defendant urges, the indictment must be dismissed because Roy would have been in' federal custody for 300 days without a trial.

No federal decision has been cited by the parties or uncovered by the Court’s research which explicitly addresses the narrow issue of whether the time period for the government’s interlocutory appeal under 18 U.S.C. § 3731 of an adverse ruling on a motion to suppress is excludable under Article VI(a). In United States v. Scheer, 729 F.2d 164, 168 (2 Cir.1984), the Court of Appeals determined that, “in computing whether or not the requirements of Article IV(c) have been satisfied, it is appropriate to exclude all those periods of delay occasioned by the defendant.” Therefore, time spent on motions filed by the defendant, including the government’s responses to the motions and the court’s rulings on them, are excluded from the 120-day limit. See People v. Cook, 63 A.D.2d 841, 842, 406 N.Y.S.2d 643, 644 (1978); Reaves v. State, 242 Ga. 542, 250 S.E.2d 376, 386 (1978). Cf. Foran v. Metz, 463 F.Supp. 1088, 1097 (S.D.N.Y.), aff'd without opinion, 603 F.2d 212 (2 Cir.), cert. denied, 444 U.S. 830, 100 5. Ct. 58, 62 L.Ed.2d 38 (1979).

In the instant case, the time period between the filing of defendant’s motion to suppress and this Court’s ruling on the motion is clearly excludable. A motion to suppress made by a defendant is a “pretrial motion,” see United States v. Cobb, 697 F.2d 38, 42 (2 Cir.1982), and any delay in its resolution must be considered one that has been “occasioned by the defendant” under Scheer. The question posed is whether the ending of the period of excludable delay occurred at the time this Court granted the defendant relief on August 8, 1983, or at the time the Second Circuit reversed this Court’s ruling on May 3, 1984.

In the Court’s opinion, it seems reasonable to conclude that the submission of the defendant’s motion to suppress for a definitive ruling was not complete until after this Court’s decision on the matter was reviewed by the Court of Appeals by way of the interlocutory appeal taken by the government. If the government did not seek the review, a trial would have been pointless because all the incriminating evidence against Roy had been suppressed. The appeal was taken in good faith, as all appeals taken under 18 U.S.C. § 3731 must be, there was no deliberate attempt to delay the trial, and the appeal obviously was not frivolous. Under these circumstances, the orderly and plenary resolution of the crucial issues raised in Roy’s motion to suppress included not only the proceedings before this Court, but also included the appellate proceedings that tested the validity of the defendant’s legal position as adopted by this Court.

It also should be noted that, although prejudice is not a dispositive factor in determining whether an indictment should be dismissed due to a violation of the 120-day provision, no policy of the IAD would be advanced by counting the 256 days of the government’s appeal toward the 120-day limit. Most importantly, Roy was not retained at length in federal custody before trial. He was in Somers CCI for all but one night following his federal arraignment, so that the problem that Article IV(c) seeks to prevent — lengthy or indefinite incarceration in the receiving state — is inapplicable in this case. Moreover, during the majority of time involved in the resolution of the government’s appeal, from about October 24, 1983 to June 8, 1984, Roy was in Florida either awaiting trial or on trial for federal bank robbery charges. Disruption of any treatment programs at Somers CCI was not due to the government’s appeal in this case. Also, because Roy’s Connecticut sentence expired on February 16, 1984, he was a pretrial federal prisoner after that date, and as such he would not have been involved in state rehabilitation programs because he was not serving a state sentence. See United States v. Simmons, 437 F.Supp. 621, 622-23 (W.D.Pa. 1977), aff'd without opinion, 586 F.2d 836 (3 Cir.1978).

Therefore, the period of allowable ex-cludable delay “attributable” to the defendant under Article IV in the instant case began on the date Roy filed his motion to suppress and terminated on the date the Second Circuit issued the final, binding ruling on his motion.

Failure to Try

Roy alleges that his return to state custody, before being tried on his federal charges after arraignment before Judge Daly, violated Article IV(e) of the IAD. Specifically, he contends that when he was housed overnight at the Bridgeport CCC following his appearance in federal court on the afternoon of April 4, 1983, he became a “federal holdover prisoner,” and, therefore, he should not have been returned to Somers CCI until he was first tried on the federal offenses.

At the hearing before this Court, United States Marshal Pasquale Mangini explained why Roy was placed overnight in the Bridgeport facility instead of returning him to Somers. The main consideration was that Roy was a “known escape risk,” having escaped from the custody of federal marshals in Illinois. With Somers being about three hours away from Bridgeport, it was decided to house Roy at a facility a few minutes away from the federal courthouse rather than transport him a long distance during darkness. Second, the Marshal set forth the logistical problems encountered when prisoners are returned to Somers CCI “after hours,” including difficulties in verifying and filing records. Third, the Marshal was aware that Roy might experience difficulty in being served an evening meal if he arrived at Somers late at night. Finally, the Marshal noted that to return Roy to Somers that night would involve over ten hours of overtime by a team of deputy marshals, which he wanted to avoid.

It seems clear that the failure to return Roy immediately to Somers CCI on April 4 was a violation of the IAD, albeit a minor and technical one. Article IV(e) provides in pertinent part that “[i]f trial is not had on any indictment ... prior to the prisoner’s being returned to the original place of imprisonment ... such indictment ... shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” Thus, if the terms of the provision are literally enforced, the indictment must be dismissed. This is the view taken by the Third Circuit. See, e.g., United States v. Williams, 615 F.2d 585, 589-90 (3 Cir.1980) (violation of Article IV provides prisoner with “absolute” defense); United States v. Thompson, 562 F.2d 232, 235 (3 Cir.1977), cert. denied, 436 U.S. 949, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978) (mandatory sanctions of Article IV(e) not subject to court’s discretion).

However, the Second Circuit has rejected a wooden application of the command of Article IV(e), and implied an exception to the sanction of dismissal in a situation where the removal of a prisoner from a state prison to federal custody is of short duration. In United States v. Chico, 558 F.2d 1047 (2 Cir.1977), cert. denied, 436 U.S. 947, 98 S.Ct. 2850, 56 L.Ed.2d 788 (1978), two state prisoners on several occasions were removed from a state prison and placed into federal custody for the purposes of arraignment, pleas and sentencing on federal charges. After each appearance in federal court, they were returned on the same day to the same state prison. Noting that the brief appearances before the federal court neither frustrated any purpose of the IAD nor involved imprisonment by the federal government, the Court of Appeals held Article IV(e) to be inapplicable.

The case sub judice differs from Chico in that Roy was not immediately returned to the state prison from which he had been taken, but instead was returned the next day after spending the night in a state penal facility located near the federal court in Bridgeport. In United States v. Schrum, 504 F.Supp. 23 (D.Kan.1980), aff'd, 638 F.2d 214 (10 Cir.1981), the court hypothetically posed the precise factual situation as in the instant case and concluded that, under the reasoning in Chico, the indictment in this case should be dismissed. Id. at 27.

Were this Court to adopt the interpretation of Chico as set forth in Schrum, a dismissal of Roy’s indictment would follow. For several reasons, however, the Court prefers a more expansive reading of the principles enunciated in Chico. First, no goal of Congress in enacting the IAD was thwarted by the conduct of the federal authorities here. The primary purposes of the IAD are to require the prompt resolution of outstanding charges against the prisoner, to ensure that interruptions of a prisoner’s rehabilitation programs in the sending state’s institutions are minimized when he responds to the pending charges in the receiving state, and to eliminate the adverse psychological effects upon a sentenced prisoner created by the presence of long standing detainers in his prison file. See, e.g., Lawson, 736 F.2d at 839; Stroble v. Anderson, 587 F.2d 830, 835-36 (6 Cir.1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); Chico, 558 F.2d at 1048-49.

No claim is made that Roy’s overnight detention in Bridgeport obstructed-in any way the possibilities of his rehabilitation at Somers. He was merely held for a few hours in a branch state facility on the return route to his original place of incarceration in the same state. For purposes of the IAD, “the situation [was] the same as if [he] had remained continuously in state prisons.” Chico, 558 F.2d at 1049. All pending federal charges have been and are being processed against him in an expeditious and orderly manner. Moreover, there is no indication that Roy suffered any adverse psychological effects as a result of his brief stay in the Bridgeport jail on April 4. See Sassoon v. Stynchombe, 654 F.2d 371, 374 (5 Cir.1981) (release under Article IY(e) of the IAD in habeas corpus proceeding “is not justified where no ‘legitimate interest’ of the prisoner is defeated by the violation”); People v. McLemore, 95 Mich. App. 536, 291 N.W.2d 109, 120 (1980) (“[w]e will not reach out to find a violation of Article IV(e) where the motivating policies of that article have not been violated”), rev’d on other grounds, 411 Mich. 691, 311 N.W.2d 720 (1981); People v. Cella, 114 Cal.App.3d 905, 170 Cal.Rptr. 915, 924 (1981) (federal prisoner’s return to federal custody after appearance in state court benefited prisoner, so that Article IV(e) was not violated); but see Hughes v. Denver District Court, 197 Colo. 396, 593 P.2d 702 (1979) (prisoner need not show prejudice from Article IV(e) violation in order for indictment to be dismissed); People v. Meyers, 109 Mich.App. 719, 311 N.W.2d 454, 456 (1981) (same).

Second, valid and compelling reasons existed for housing Roy in Bridgeport rather than transporting him at night to Somers. At the time, federal marshals believed that Roy was a dangerous criminal with a history of violence and escape from custody in his background. He had outstanding warrants against him for murder in California and Florida, and for bank robbery in Massachusetts. In October 1982, he reportedly had escaped from federal custody in Illinois, and, when arrested in Connecticut with a confederate, he allegedly possessed a shotgun and pistol. The decision to avoid a lengthy travel with Roy during darkness was logical, reasonable, and in conformity with the marshals’ usual and customary practice under the circumstances. Moreover, the detention in Bridgeport served not only as a prudent safety measure for the protection of the marshals, but also as a sensible means to ensure Roy’s personal comfort and meal requirements that evening. In effect, the interests of .Roy as well as the government were advanced by the failure to return Roy to his original place of incarceration on April 4.

Finally, while the Court recognizes that it should apply the law as written by Congress, it is also true that the “surest was to misinterpret a statute or rule is to follow its literal language without reference to its purpose,” Viacom International, Inc. v. F.C.C., 672 F.2d 1034, 1040 (2 Cir.1982), or without regard to a result that would be unreasonable and absurd. In re Adamo, 619 F.2d 216, 222 (2 Cir.), cert. denied, 449 U.S. 843, 101 S.Ct. 125, 66 L.Ed.2d 52 (1980) (“although the literal meaning of the words chosen by Congress is respected, we no longer follow a rigid, semantic approach to statutory construction”).

The violation of the IAD in this case was a trifling and insignificant one. To release Roy by a mechanical application of the statute would constitute, in the Court’s opinion, an inequity and “a result that Congress manifestly would not have wanted if the prospect of such application had been considered.” United States v. Perdue Farms, Inc., 680 F.2d 277, 286 (2 Cir.1982) (Newman, J., concurring). Under these circumstances, justice and good sense compel an interpretation of the- provisions of the IAD which conforms to the intention and spirit of the legislation, even if it is not within the letter of the enactment. See United States v. Witkovich, 353 U.S. 194, 199, 77 S.Ct. 779, 782, 1 L.Ed.2d 765 (1957) (the “tyranny of literalness” should be avoided); Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930) (departure from plain language of a statute justified if adherence results in an absurdity which shocks “the general moral or common sense”).

Accordingly, for the foregoing reasons, the defendant’s motion to dismiss is denied.

      . The detainer sent was the standard U.S. Marshals Service Form 16, which is prominently labeled in 3/s-inch type "DETAINER."

      . The individual in the Marshals Service who completed the detainer form apparently was unaware that Roy’s state parole had been revoked, and that Roy was no longer at Hartford CCC where state pretrial detainees are housed. A box on the detainer form that should be marked when a detainer is filed against a prisoner who is serving a sentence in fact was not marked.

      . At oral argument, Roy's counsel stated that a threshold question concerned the applicability . of the IAD to intrastate transfers of a prisoner from state to federal custody. No reported lower court decision in this Circuit has been found that has considered the issue, and the Second Circuit did not address it in two recent cases involving intrastate transfers. United States v. Lawson, 736 F.2d 835 (2 Cir.1984) (transfers within New York State); United States v. Chico, 558 F.2d 1047 (2 Cir.1977) (transfers within Connecticut).
      United States Marshal Pasquale Mangini testified at the hearing before this Court that he considered the Connecticut Corrections System to be a unitary entity. If this were so, it might be argued that a prisoner transferred from Somers CCI to Bridgeport CCC for the purpose of an appearance in a federal action would not be entitled to the protection of the IAD. However, the government has not advanced this contention in its brief or at oral argument on Roy's motion.
      Under these circumstances, the Court adopts the reasoning of courts in other jurisdictions which have held that the IAD does apply to intrastate transfers between state and federal custody. See, e.g., United States v. Thompson, 562 F.2d 232, 234 n. 2 (3 Cir.1977), cert. denied, 436 U.S. 949 (1978); United States v. Schrum, 504 F.Supp. 23, 25 (D.Kan.1980), aff'd, 638 F.2d 214 (10 Cir.1981). As stated in People v. Cella, 114 Cal.App.3d 905, 170 Cal.Rptr. 915, 921 n. 6 (1981), the IAD is "more appropriately called the ‘Interjurisdictional Agreement on Detainers.’ ’’

      . Roy claims that the Court should hold that the provisions of the IAD were triggered sometime before March 3, when the Marshals Service mailed the detainer to Hartford CCC. He contends that because the detainer was filed with "prison officials within the Connecticut Department of Corrections" before his federal arraignment on March 2, albeit not with officials at the prison where Roy was incarcerated at the time, the IAD should apply before that date. However, the adverse consequences of a detainer are possible only when the detainer is recorded in the facility in which a prisoner is located. This detainer was placed on Roy’s record on March 3 at Somers CCI; it is from that date that the adverse consequences of the detainer accrued.
      Roy contends that the IAD became applicable on March 2, 1983, when the bench warrant was served that, according to the government, was to act as a detainer. The Court need not rule on that claim, because the formal detainer was served the next day, and the events of March 2 do not change the Court’s analysis as to the effect of the IAD.

      . Roy was arraigned on March 2, 1983, and he filed several motions, including a motion to suppress, on March 17 (15 days). The motion to suppress was granted on August 8, thus starting again the counting. On August 17, the government filed a motion for a reconsideration, tolling the running of time (8 additional days). That motion was denied on August 19. On September 2, a continuance was granted at the request of the government after a hearing, so that the intervening 14 days must be counted. The government’s notice of appeal was filed on September 16, 1983, before that continuance expired. The Court of Appeals decided the appeal on May 29, 1984, which would have made Roy available to be prosecuted on these charges; however, Roy was in a federal court in Florida being tried on separate charges. On his return to Connecticut on June- 8 time again began to run, and the running was tolled by Roy’s motion to dismiss on June 15 (7 additional days).

      . The Court is aware that the interpretation of the IAD is a matter of federal law, Cuyler v. Adams, 449 U.S. 433, 442, 101 S.Ct. 703, 708, 66 L.Ed.2d 641 (1981), but finds several state cases interpreting it to be analytically useful.

      . Specifically, the court stated:
      Article IV(e) of the Act does not apply to a case where a prisoner is removed from the prison of a state for a few hours to be arraigned, plead and be sentenced in the federal court without ever being held at any place of imprisonment other than that of the sending state and without interruption of his rehabilitation there.

        Chico, 558 F.2d at 1048.

      . Bridgeport CCC and Somers CCI are facilities within the general structure of the Connecticut state prison system. Although the federal authorities paid the state a fee for housing Roy overnight at the Bridgeport CCC, Marshal Mangini testified that this was done in error. He explained that typically the state does not charge the government when a state prisoner in Somers is temporarily relocated to another institution in Connecticut for the purpose of appearing in federal court. He stated that a credit refund would be issued by the state to the government for Roy’s stay at the Bridgeport CCC on April 4.
      The government argues that Roy was not "held at [a] place of imprisonment other than that of the sending state,” Chico, 558 F.2d at 1049, and therefore the criteria set forth in Chico have been met. The Court disagrees. Roy’s incarceration at the Bridgeport jail advanced no state interest and was not part of Roy’s rehabilitation program as a state prisoner. For the purposes of the IAD, Roy must be considered to have been lodged in “another place of imprisonment in the receiving state," and not "returned to the original place of imprisonment” on April 4. Id. (emphasis in original).

      . The author of Comment, The Interstate Agreement on Detainers: Defining the Federal Role, 31 Vand.L.Rev. 1017 (1978), also anticipated the instant case. In an analysis of Chico, the author stated: "the approach [of the Second Circuit] is deficient in several respects, however, sacrificing predictability and certainty, generating litigation, and forcing individual evaluation of each case. What if the defendant remains overnight in federal custody before his return to state prison?" Id. at 1052. The author did not answer the question posed.

      . The Court's conclusion on this point is buttressed by Article IX of the IAD, which states in part, with emphasis added, that “[t]his agree-merit shall be liberally construed so as to effectuate its purposes."