text:
    William STEWART, Plaintiff, v. Margaret M. HECKLER, Secretary of Health & Human Services, Defendant.
    No. 83 Civ. 9160 (JES).
    United States District Court, S.D. New York.
    Dec. 14, 1984.
    Legal Services for the Elderly, New York City, for plaintiff; Toby Golick, New York City, of counsel.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Rosemarie E. Matera, Sp. Asst. U.S. Atty., New York City, of counsel.
   OPINION & ORDER

SPRIZZO, District Judge:

Plaintiff William Stewart had been receiving Social Security disability insurance benefits since August of 1974. On February 8, 1983, he was notified by the Department of Health and Human Services (“HHS”) that his benefits would be terminated as of April 4, 1983. That decision terminating plaintiffs benefits was upheld after a hearing before an administrative law judge held on July 15, 1983. Following a denial of review of that decision by the Appeals Council on October 6, 1983, plaintiff commenced the instant action in December of 1983, pursuant to Section 205(g) of the Social Security Act, as amended (the “Act”), 42 U.S.C. § 405(g) (1982), seeking review of that final decision of the Secretary of Health and Human Services (the “Secretary”) which terminated plaintiffs disability benefits.

The parties cross-moved for judgment on the pleadings. By Order of this Court, dated February 16, 1984, this case was referred to Magistrate Buchwald for report and recommendation. On July 31, 1984, Magistrate Buchwald issued her Report and Recommendation, (“Mag.R.”) in which she recommended that the Secretary’s determination be reversed on several alternate grounds. There were no objections to the Magistrate’s Report and Recommendation.

By Order of this Court, dated October 3, 1984, the Magistrate’s Report and Recommendation was “adopted in its entirety,” with further directions “that defendant [Secretary] forthwith take all administrative steps to restore disability benefits to plaintiff,” and “that defendant pay to plaintiff all retroactive benefits due, within 60 days of the date of this [0]rder.”

On October 15, 1984, the Secretary timely moved for reargument remanding this case to the Secretary pursuant to Section 2 of the Social Security Disability Benefits Reform Act of 1984 (the “new law”), Pub.L. 98-460, which was enacted by Congress on September 19, 1984 and signed by the President on October 9, 1984.

DISCUSSION

The first issue which must be addressed is whether the final action of the Secretary in Mr. Stewart’s case constitutes a determination, “with respect to which a request for judicial review was pending on September 19, 1984,” which should be remanded to the Secretary in accordance with Section 2 of the new law. The Court concludes that it is not.

The Magistrate recommended reversal of the Secretary’s ruling terminating benefits, giving alternate grounds for the recommendation. The first two grounds are based upon the “medical improvement” standard enunciated by the Second Circuit, see, e.g., DeLeon v. Secretary of Health and Human Services, 734 F.2d 930 (2d Cir.1984), which must be applied in cases remanded to the Secretary under the new law. Thus, as the Magistrate stated:

In sum, the record does not contain substantial evidence to permit the AU to conclude that plaintiff’s condition has improved sufficiently to warrant a termination of his benefits. Nor does the record contain substantial evidence to allow the AU to reject the plaintiff’s testimony or the expert opinions of his treating physicians [regarding plaintiff’s claims of continued pain and severe disability]. Accordingly, we recommend that the Secretary’s decision terminating plaintiff’s benefits be reversed.

Mag.R. at 7-8.

However, in her report, the Magistrate gave another basis for reversing the Secretary’s decision, entirely separate and distinct from the “medical improvement” standards to which the remand provisions of the new law are designed to apply. The Magistrate stated:

Since there is not substantial evidence to support the proposition that plaintiff has the capacity to perform light work, the most plaintiff can be considered capable of is sedentary work; the applicable regulation would be Rule 201.14. This rule dictates that a person capable of sedentary work, closely approaching advanced age with previous skilled or semiskilled work experience and a high school education or more should be found disabled. 20 C.F.R. § 404 Subpart P, Appendix 2 (1984). This analysis would find plaintiff disabled despite his possible ability to perform sedentary work, and would provide an independent basis for reversing the Secretary’s decision.

Mag.R. at 9 [Emphasis added].

The Secretary never took an appeal from any portion of this Report and Recommendation, including the “light work/sedentary work” analysis referred to above and does not now question the validity of that aspect of the Magistrate’s Report.

Since the Court Order adopting the Magistrate’s Report approved this ground as a separate and independent basis for directing the restoration of benefits, it would not be a rational construction of the new law to require a remand in a case where it is clear that benefits must be restored regardless of what findings may or may not be made on remand with respect to plaintiff’s medical improvement. Certainly nothing in the legislative history of the amendment suggests that remand is required even in cases where any decision with respect to medical improvement will have no impact on plaintiff’s right to receive benefits. Indeed, that legislative history, if anything, suggests quite the contrary.

Since the Court has concluded that no remand is required for the reasons given there is no need to reach the issue of whether in fact this case was pending within the meaning of the new law.

The Secretary’s request for reargument is denied.

It is SO ORDERED.

      . The Secretary had effectively adopted the ALJ’s findings by virtue of the Appeals Council’s denial of review on October 6, 1983.

      . The Order was signed on September 18, 1984, but was not immediately filed, apparently as a result of a clerical error. Upon repeated inquiry by plaintiff’s counsel, the Order was located, re-dated, filed, and docketed on October 3, 1984.

      . The Secretary’s motion for reargument is timely. Under the computation guidelines set out in Fed.RXiv.P. 6(a), the ten-day period, calculated from October 3, 1984, and excluding the weekend of October 13-14, had not expired when the Secretary filed and served the motion on October 15, 1984.

      . Section 2 of the new law provides generally that disability benefits not be terminated in the absence of substantial evidence that: (1) there has been a medical improvement in the beneficiary’s condition such that the beneficiary is now able to engage in substantial gainful activity; or (2) "although the individual has not improved medically he or she is nonetheless a beneficiary of advances in medical or vocational therapy or technology (related to the individual’s ability to work), and the individual is now able to engage in substantial gainful activity...”; or (3) "as determined on the basis of new or improved diagnostic techniques or evaluations, the individual’s impairment, ... is not as disabling as it was considered to be at the time of the most recent prior decision that he or she was under a disability ... ." Section 2(d)(2)(C) of the new law provides for an automatic remand for individuals terminated from benefits who have "a request for judicial review ... pending on September 19, 1984.”

      . There is some issue as to whether this action was still “pending” as of September 19, 1984. See n. 1 supra. The Order adopting the Magistrate’s Report and Recommendation in its entirety was first signed on September 18, 1984, but was misplaced. The Order was located, re-dated, filed, and entered on October 3, 1984, pursuant to S.D.N.Y. Local Rule 6(a). For purposes of this motion, we proceed on the assumption that the judgment was only effective when it was entered in the civil docket by the clerk on October 3, 1984. See Fed.R.Civ.P. 58.

      . The legislative history specifically provides: The section provides that certain specified court cases involving medical improvement be remanded to the Secretary for review under the medical improvement standard established in this Act. Cases pending in court which do not involve medical improvement would not, of course, be remanded to the Secretary for such a review.
      Joint Explanatory Statement of the Committee of Conference, Cong.Rec. H 9828 (Sept. 19, 1984),
      Even assuming arguendo that the medical improvement claim was the only one in issue here, this request to remand, following as it does the Secretary’s decision not to appeal or object to the Magistrate’s Report and Recommendation, is both inappropriate and inconsistent with the broad remedial purposes of the new legislation. The statute was clearly designed to benefit disability claimants and to expedite the processing of their claims for restoration of benefits. See, e.g., 118 Cong.Rec. H 9836 (daily ed. Sept. 19, 1984) statement of Rep. Pickle) and 118 Cong. Rec. S 11452 (daily ed. Sept. 19, 1984) (statement of Sen. Dole). In this case, the Court adopted the Magistrate’s decision which, inter alia, applied the "medical improvement” standard which the new law explicitly requires. If the Secretary’s motion to "reargue" were granted, plaintiff could not hope to recover the benefits he lost in the April, 1983 termination decision until the Secretary “redetermines” his claim under "medical improvement" — the standard already applied by the Magistrate and the Court in the instant action, a process that could take a considerable period of time. This is especially true since the new law allows the Secretary six months to enact regulations designed to implement the "medical improvement” standard and since the legislative history indicates that approximately 40,000 people are affected by the new law’s remand provisions.
      Should the Secretary again decide against the plaintiff on the grounds of "medical improvement,” the matter would again wend its tortured _way to a district court for review. In essence, the "medical improvement" claim would be litigated twice under the same standard. See Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to Reargue, at 7.
      In passing the new legislation Congress could not reasonably have intended a result so at variance with the remedial purposes of that legislation.


source: Caselaw Access Project

author: CLARIE, Senior District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Elaine KLOTZ.
    No. H-84-288.
    United States District Court, D. Connecticut.
    Dec. 14, 1984.
    Barry K. Stevens, Asst. U.S. Atty., Bridgeport, Conn., Alan H. Nevas, U.S. Atty., New Haven, Conn., for plaintiff.
    Elaine Klotz, pro se.
   RULING ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

CLARIE, Senior District Judge.

Pursuant to Rule 56, Fed.R.Civ.P., the plaintiff, United States of America, has moved the Court to enter summary judgment in its favor, in the amount of $6,068.53, plus costs and interest. The plaintiff claims that there are no remaining issues of disputed fact and that it is entitled to judgment as a matter of law. The Court finds that the amount claimed is legally due and summary judgment shall enter for the plaintiff in the amount requested, plus costs.

Facts

On September 28, 1973, the defendant and her husband applied to the Kensington Mortgage and Finance Corporation (Kensington) for a Mobile Home Loan pursuant to Title I of the National Housing Act of 1950, as amended, and the Code of Federal Regulations, Title 24, part 201, et seq. The monies borrowed were intended to be used for the purchase of a mobile home. The finance company approved the loan, and on November 20, 1973, the Klotzs executed a joint and several promissory note in the amount of $7,225, plus interest at the rate of seven per cent (7%) per year.

The defendant and her husband failed to pay the installments due on the note October 1, 1976. Pursuant to the terms of the loan agreement, Kensington exercised an acceleration clause in the note and demanded full payment. The Klotzs failed to make said payment, and on February 3, 1978, Kensington filed a Title I Claim for Loss Application Voucher with the Department of Housing and Urban Development (HUD), for its reimbursement of the amount outstanding. On March 17, 1978, Kensington assigned the note to the United States of America, and HUD paid Kensington for its loss of $3,878.69, which was the outstanding uncollected balance of the loan. The United States has filed, with the present motion, a supporting Affidavit of Debt which establishes that there is due and owing from the defendant, the principal amount of $4,068.47, plus interest on the principal, which interest amounted to $2,000.06 as of October 4, 1984.

The defendant does not contest any of the facts asserted by the plaintiff, nor has she claimed that any material issues of disputed fact are present in this case. However, she has moved to dismiss the action against her, on the grounds that the statute of limitations had run on the plaintiffs claim, when the present suit was filed.

Discussion of Law

The sole issue in this action is whether or not the six-year statute of limitations provided for under 28 U.S.C. § 2415 bars this lawsuit. The statute provides that actions brought by the United States for money damages founded on contract “shall be barred unless the complaint is filed within six years after the right of action accrues ...” Although the statute does not define when a “right of action accrues,” the weight of authority in cases involving government insured loans has set the accrual date at the time the government reimburses the lender for its loss arising from the borrower’s default. United States v. Frisk, 675 F.2d 1079, 1083 (9th Cir.1982).

“Generally, suretyship may be defined as a contractual relation whereby one person, the surety, agrees to answer for the debt, default or miscarriage of another, the principal, and as between the two who are bound, the principal rather than the surety should perform. 74 Am. Jur.2d Suretyship § 1 (1974). Of most importance here, under a suretyship theory the cause of action accrues on the date the surety pays the principal’s debt, rather than on the date of the principal’s original default.” United States v. Tilleraas, 538 F.Supp. 1, 6 (N.D.Ohio 1981); affirmed 709 F.2d 1088, 1092.

See also United States v. Ekelman & Associates, Inc., 532 F.2d 545, 552 (6th Cir. 1976); United States v. Bellard, 674 F.2d 330, 337 (5th Cir.1982); United States v. 93 Court Corporation, 350 F.2d 386, 388-9 (2d Cir.1965).

In the instant action, the United States made its payment to Kensington as surety-guarantor on March 17, 1978, and the six-year statute of limitations under 28 U.S.C. § 2415 would have expired on March 17, 1984. This lawsuit was filed on March 16, 1984, one day within the six-year period, and therefore, this action is timely under 28 U.S.C. § 2415.

Conclusion

For the reasons set forth above, judgment shall enter in favor of the plaintiff in the amount of $6,099.34, plus costs.

SO ORDERED.


author: ACKER, District Judge.

text:
    Louise Hurd HILL, Plaintiff, v. SHELBY COUNTY, a political subdivision of the State of Alabama, et al., Defendants.
    Civ. A. No. 84-AR-2649-S.
    United States District Court, N.D. Alabama, S.D.
    Dec. 14, 1984.
    Richard W. Bell, Mickey L. Johnson, Thomas Ross Roper, Bell & Johnson, Pelham, Ala., for plaintiff.
    Frank C. Ellis, Jr., Wallace, Ellis, Head & Fowler, Columbiana, Ala., Carl E. Johnson, Bishop, Colvin & Johnson, Birmingham, Ala., for defendants.
   MEMORANDUM OPINION

ACKER, District Judge.

The court has for consideration the motion of defendants to dismiss plaintiffs complaint pursuant to Rule 12(b)(6), F.R. Civ.P., for failure to state a claim upon which relief can be granted. Plaintiff and defendants have filed briefs, and the court has heard oral argument both from plaintiff and from defendants.

Plaintiff, Louise Hurd Hill, brings suit pursuant to 42 U.S.C. § 1983, claiming that defendants, acting under color of state law, have denied certain constitutional rights guaranteed her by the Fourteenth Amendment, namely, the right to “due process” and the right to “equal protection”. For the purposes of ruling on defendants’ motion, all allegations of the complaint must be taken as true, and plaintiff must be given the benefit of every doubt. The basic undisputed facts are:

1. Defendants, pursuant to State law, own and operate the Shelby County courthouse which was built in 1905, and which contains the law courts on the second floor. There is no elevator or other means for automatically lifting plaintiff and other members of the public to the second floor. There is a staircase.

2. Hill is presently the defendant in a civil suit pending in Shelby County. This case ordinarily would be tried on the second floor of the courthouse.

3. Hill was recently summoned for jury duty in Shelby County but did not serve.

4. The women’s restroom is on the second floor of the courthouse.

5. Hill, a woman, is 68 years of age and has a lung condition which prevents her from climbing steps. She therefore finds it impossible, as a practical matter, to attend court in Shelby County or to serve on a jury if trials are held on the second floor.

During oral argument counsel for defendants made it clear both to the court and to Hill that defendants will see to it that the small claims suit in which Hill is a defendant will be arranged in a manner which will accomodate to her particular physical situation, and that she will be allowed to attend and to participate in her defense without having to climb steps. Defendants conceded that Shelby County is not equipped to accomodate jurors who have severe physical disabilities, and that the Shelby County courts routinely excuse such persons from jury service, as do all of the State’s courts.

Hill claims that once she received her summons for jury service she thereby acquired a “liberty right” actually to serve on the jury venire, and that her said right has been infringed because of non-accessibility by elevator to the courts. She also claims that as a civil litigant in the Shelby County courts, she has a “property right” and a “due process” right, and that her said rights have been infringed because of non-access to persons with her disability.

As to Hill’s claim that she has been deprived of “due process” and of a “property interest”, her claim is clearly without merit. If Hill had alleged that defendants refused to make a trial arena available to her for her personal defense in a meaningful and reasonable way, considering her particular disability, there arguably might be a deprivation of “due process” or of a “property right”, but Hill has not alleged and cannot allege any such facts, especially when defendants have offered to cooperate to make sure that Hill’s defense in the civil action pending against her can be fairly presented by her and heard by the State court. To carry Hill’s argument to its logical but ludicrous conclusion would be to impose on defendants the obligation to provide unique facilities in which a civil defendant who is terminally ill in a hospital bed can defend his case in court like every other civil defendant. Unfortunately, life can be cruel, and all of its lumps cannot be ironed out by a federal court. Any ironing out here needs to be accomplished in the political realm or in a State court.

Hill bases her claim of a “property right” to the full and unencumbered access to the Shelby County courthouse upon one State constitutional provision and upon one State statute. They are:

That all courts shall be open; that every person, for any injury done to him in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial or a delay.

Article One, § 13 Constitution of the State of Alabama of 1901.

The blind, the visually handicapped and otherwise physically disabled shall have the same right as the able-bodied to the full and free use of the streets, highways, sidewalks, walkways, public buildings, public facilities and other public places.

Section 21-7-2, Code of Alabama (1975). Neither of these provisions creates any “right” cognizable under § 1983. If this court had any doubt whatsoever about the intent of the Constitutional Convention of 1901 or of the Alabama Legislature of 1975, it would certify to the Supreme Court of Alabama the question of whether or not either of these provisions provides to Hill, and to others similarly situated, the kind of “rights” which Hill claims. If such had been the intention of the draftsmen of these provisions, in a State which contains over 67 courthouses (some counties have two courthouses), and with many of the courthouses being much older than the Shelby County courthouse, the Legislature surely would have provided funding for the recognition and realization of such “rights” and would have stayed for a reasonable period of time the effective date of the implementation of such “rights” while the many counties without elevators could come into compliance. Legislative recognition of a general, salutary public policy does not, without specific intent to do so, create a state property or liberty right to be protected under § 1983. To grant the relief which Hill requests would open the federal courts to being supervisors of the State courts. It would encourage every citizen to come to federal court to seek the implementation of whatever he perceives to be a good State public policy.

The kind of “property right” or “liberty right” which is cognizable under § 1983 is a “right” which is shared by the citizens of all 50 states and not a “right” which is a creature of statute in one state but not in other states. To allow a “right” created by state statute to be bootstrapped into a federal right under § 1983 would be to make the “equal protection clause” into an “unequal protection clause”.

If Hill has a “liberty right” to serve as a juror just because she has been summoned to jury service, then why should not an intelligent but blind, deaf and dumb citizen who is inadvertently summoned to jury duty have the same right? Where does practicality come into play? While the jury selection process certainly requires that jurors be picked from a cross section of the citizenry, there is no state or federal constitutional right for the infirm to serve on juries simply because accidently summoned. Hill has cited no authority for her innovative proposition. However, assuming arguendo, that by virtue of her having been summoned she has a standing to complain, she has nothing to complain about in a federal court unless and until the Congress of the United States specifically requires elevator access to all State courtrooms, jury deliberation rooms, and restrooms. The Congress has not yet seen fit to require this.

If any further proof is needed for the proposition that Congress never contemplated that § 1983 could take the expansive leap which Hill calls for, it is the fact that Congress has enacted several pieces of legislation specifically designed to remove obstacles in the way of the handicapped. If “due process” and “equal protection” and § 1983 had been designed to guarantee the absolute removal of all such obstacles and to provide upward transportation, no matter what the cost to the taxpayers, these pieces of special federal legislation would have been totally unnecessary. Congress obviously never intended to open the federal courts to Hill’s type of complaint.

If, by a mighty stretch of the imagination, Hill’s complaint is construed to charge defendants with what amounts to negligence, Hill then runs directly into Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), and is stopped by it.

This court takes judicial knowledge of the fact that the elevators in the federal courthouse in Jefferson County, Alabama, in which this court sits on the third floor, do not function approximately one-half of the time. This simply means that jurors and litigants in this court are quite often one story farther away by stairway from justice than they are in Shelby County. Both literally and figuratively Hill may be denied access to the federal court. The court finds, however, that Hill is stopped at the courthouse door of this particular courthouse, and not at the elevator door.

Because Hill’s complaint cannot be construed so as to state a cause of action under § 1983, defendants’ motion to dismiss will be granted by separate order.


author: MILTON POLLACK, Senior District Judge.

text:
    Nettie FRIEDMAN, Plaintiff, v. William F. BOLGER, Postmaster General, Defendant.
    Nos. 83 Civ. 4112 (MP), 83 Civ. 4113 (MP).
    United States District Court, S.D. New York.
    Dec. 17, 1984.

      Jose Rivera, Brooklyn, N.Y., for plaintiff.
    Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Jordan Stanzler, Asst. U.S. Atty., New York City, for defendant.
   MILTON POLLACK, Senior District Judge.

These are two actions under the Federal Age Discrimination in Employment Act, (ADEA) 29 U.S.C. § 633a. Plaintiff Nettie Friedman, an employee of the United States Postal Service, alleges that she was discriminatorily denied promotions on the basis of her age or in retaliation for successive EEO complaints that she has brought. She seeks declaratory judgments that defendant’s alleged unlawful employment practices have deprived her of equal employment opportunities, injunctive relief against future discrimination, compensatory damages, and attorney’s fees.

Plaintiff initiated the actions pro se but at trial was represented by an attorney. At the Court’s urging, plaintiff sought the assistance of a trial lawyer experienced in Title VII matters. At the inception of the trial, the attorney stated that irreconcilable differences had developed regarding the conduct of the case, and asked to be relieved as Mrs. Friedman’s attorney. The Court invited plaintiff to reconsider; she agreed that she should be represented by the attorney, and he remained.

The two actions were tried together to the Court on November 19 and 20, 1984. To expedite the trial and to have a clear picture of the employment situation, for each of the contested positions, the defendant set forth the available vacancy, the manner in which it was filled, and the reasons for the selection that was made. Plaintiff then took the stand and gave her version of her complaint. She also called upon employees of the defendant to testify. This was followed by defendant’s rebuttal and, in some instances, further testimony from the plaintiff. At the close of the case, plaintiff’s attorney requested that he not be required to give a summation and requested instead an opportunity, which was granted, to prepare a post-trial brief. Later, plaintiff’s counsel waived submission of that brief.

Mrs. Friedman’s qualifications as a senior secretary are not in dispute. She is 68 years old and has been employed by the Postal Service for approximately six years. Over the last 30. years, she has held a considerable number of secretarial positions in the private and public sectors, including some involving legal matters or work with attorneys. Plaintiff’s legal experience was evident in the complaints that she prepared pro se; she also examined witnesses in a creditable fashion at the administrative hearings. All of plaintiff’s applications for vacancies were acknowledged by defendant with approval of her general secretarial ability.

These are troubling cases. An apparent-' ly well qualified secretarial employee, in the protected age group, has been seeking promotion and has failed to succeed as the selectee in several job vacancies posted by her employer. She alleges that she has not been selected for the vacancies in question because she is being discriminated against, either because of her age or in reprisal for successive (but fruitless) EEO complaints. However, the evidence fails to substantiate any of her complaints and specifically negates their validity.

For each job opportunity in question, the Court has carefully considered why the complainant was passed over, with or without an interview, and whether the multiple unsuccessful applications evince an unlawful pattern as to her or others. In each instance, there was no credible evidence of discriminatory conduct, purpose, or intent on the part of those who selected applicants for interview or made the ultimate determinations. Mrs. Friedman received dispassionate and fair consideration. The evidence demonstrates that she did not receive the promotions in question because, in each instance, another applicant was either more experienced in the particular skills required, or objectively better suited for the vacancy.

Plaintiff’s complaints relate to the following positions:

1. Secretary B, Grade 11, Design and Construction;

2. EAS 15, Realty Transaction Technician, New England Freebo;

3. EAS 15, Contract Specialist;

4. EAS 10, Secretary, Human Resources;

5. EAS 11, Employee Relations Department.

Re Item 2: Because this position was given to a 62-year-old person, plaintiff is unable to establish a prima facie case of age discrimination with respect to this post, and has agreed to drop that claim. However, she now has asserted that reprisal motivated the treatment she was accorded.

Re Item 3: This complaint was settled at the administrative level, and, under the settlement, nothing remains for this Court thereon.

Re Item 5: An administrative hearing on this matter has been scheduled. Although failure to exhaust administrative remedies is not a defense to pursuit of legal remedies in this Court, it does represent a basis for a stay which this Court granted with plaintiff’s acquiescence, terminating any further consideration of this item at this time.

Accordingly, the review of proof at the trial will focus on Item 1, Item 2 to the extent that it deals with the claim of discriminatory conduct in reprisal for having brought successive EEO claims, and finally, Item 4.

The Age Discrimination in Employment Act provides, in relevant part:

All personnel actions affecting employees ... who are at least 40 years of age ... in the United States Postal Service ... shall be made free from any discrimination based on age.

28 U.S.C. § 633a.

To establish a prima facie case in an action based on non-promotion, a plaintiff must establish that: (1) she is a member of the statutorily-protected age group (40-70); (2) a job vacancy existed to which she sought promotion; (3) she was qualified for that vacancy; and (4) age was a determining factor in the failure to promote her. Favors v. Ruckelshaus, 569 F.Supp. 363 (N.D.Ga.1983). These requirements stem from the test for disparate treatment claims set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

The Second Circuit has explained that “determining factor” means “factor that made a difference,” in the sense that “but for his employer’s motive to discriminate against him because of age,” the action challenged would not have been taken. Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 12 (2d Cir.1981).

Once the plaintiff has established a prima facie case, the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory reason” for the rejection of the employee. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir.1983). This is a burden of production, not persuasion.

If the defendant carries this burden and its evidence is credible, the burden shifts back to the plaintiff to “prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.

Case No. 1: Secretary B, Grade 11, Design and Construction Branch. — Plaintiff complains that she was discriminated against in not being selected for this secretarial position in the Design and Construction Branch. Although she applied and believed herself to be qualified, a younger person, Lindell Blake, was chosen for the position.

The defendant presented the testimony of Harold Krueger, the selecting official, who stated that he selected Ms. Blake because she had more experience in the Design and Construction Branch and had better dictation skills and experience. The position was in an office that was engaged in architectural and engineering work, a field in which the plaintiff had no recent experience. Dictation skills and facility in technical terminology were necessary because the position required an ability to take dictation from several technical persons, architects and engineers, in any given day. Mr. Krueger questioned both applicants about dictation and other relevant skills and determined that Ms. Blake’s facility in dictation and her familiarity with design and construction terminology were superior to those of the plaintiff. He confirmed these impressions in telephone conversations with the applicants’ supervisors.

On cross examination, Mrs. Friedman admitted that her complaint was not against Mr. Krueger and acknowledged that she had not listed him in her administrative complaint as an “alleged discriminating official.” She testified that her age discrimination claim was based on the failure of the screening committee to recommend her for an interview. However, even though she was not interviewed initially, plaintiff did receive a timely interview with Mr. Krueger after she made known the existence of a “priority consideration” that she held and insisted on her right to an interview.

Plaintiff offered no evidence of bias on the part of any member of the screening committee. Because she did not list her age in her application form, the selection committee, which considered the applicants only through documents, could not have known her age or discriminated against her because of it. Moreover, four of the five applicants who were selected for final interviews were in the protected age group, i.e., more than 40 years of age. Based on the evidence presented, the Court finds that there was no discriminatory purpose or intent in connection with selecting another candidate; age made no difference in the selection.

Case No. 2: Realty Transaction Technician, EAS 15 (New England Freebo)— Plaintiff initially complained of age discrimination in not having been selected for this position. During the administrative process, she voluntarily withdrew her complaint of discrimination after learning that the selectee was 62 years of age. Nonetheless, plaintiff then claimed that the screening committee’s decision not to recommend her for an interview was taken in retaliation for her repetitive EEO complaints.

In her direct testimony, plaintiff offered no evidence of retaliation. She called as a witness Ms. Cheryl V. Terrel, the head of the screening committee; the latter testified that plaintiff was not selected for an interview because her supervisor, Stephen Marcinek, had recommended her “with reservations.” All the candidates chosen for interviews had been recommended without reservations.

The evidence showed that Mr. Marcinek had praised Mrs. Friedman’s performance and recommended that she be selected for an interview. However, he stated that he had reservations as to whether plaintiff had the necessary experience to serve as a Realty Transaction Technician, a position that is not secretarial but involves the processing of contracts, change orders, leases, and similar documents. Previously, Mr. Marcinek had recommended Mrs. Friedman without reservations when she applied for secretarial positions. In his testimony, Mr. Marcinek stated firmly that he did not discriminate against plaintiff; he explained that he was trying to help her get an interview but felt obligated to note her lack of experience for this particular job.

Thirty one applications were submitted for this position. The screening panel’s job was to narrow this field to those candidates whom it found most qualified; accordingly, it reviewed the applications and determined which candidates merited an interview. The panel noted that although plaintiff had a basic understanding of some of the terminology employed, her knowledge of the field was not comprehensive. Ms. Terrel testified that Mrs. Friedman’s name was passed over because her supervisor (of whom she did not complain) had recommended her only with the reservations noted. Ms. Terrel also testified that at the time the screening committee met, she did not know the plaintiff or have any knowledge that plaintiff had filed a discrimination complaint.

There is no evidence that the panel’s decision not to recommend Mrs. Friedman for an interview was tainted in any way by unfairness or discriminatory purpose. Because plaintiff has not demonstrated that the selecting official knew that she had filed complaints of discrimination and retaliated on that basis, she has failed to establish a prima facie case of reprisal. See Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (2d Cir.1980). The Court finds that there was no causal connection between the omission of an interview and plaintiff’s participation in a number of discrimination complaints.

Case No. 3: Contract Specialist, EAS 15. — Plaintiff filed an administrative complaint alleging discrimination after she applied for, but did not receive, this position. On December 7, 1982, the parties entered into a settlement in which plaintiff waived any rights to litigate the underlying merits of the dispute. Plaintiff’s present contentions about this position and/or the settlement agreement are unclear. However, it is sufficient to note that plaintiff has not attempted to reopen her administrative complaint pursuant to the procedure set forth in 29 C.F.R. § 1613.217(a).

Case No. k: Secretary, Human Resources, EAS 10. — Plaintiff applied and was interviewed for this position, but did not receive it; the job was given to a younger person, Ms. Kelley King. The selecting official, Mr. James Baker, Manager of the Human Resources Branch, testified that plaintiff and Ms. King were the only applicants for the position. Baker conceded that both applicants were qualified for the position, and that plaintiff had a longer period of service. However, he stated that he selected Ms. King because she had two skills that the plaintiff lacked: namely, experience on the memory typewriter, and training in word processing. He testified that these skills were necessary because his department was already using the memory typewriter and had ordered word processing equipment. He also stated that in his experience, it normally takes more than 30 days to learn to use the memory typewriter well enough to perform the high volume of work in his department.

Baker testified that after Ms. King was selected and had been working for him, she obtained a promotion to another department; although the position was advertised, plaintiff did not reapply. He then selected a woman over 50 years of age who had had extensive experience in the use of word processing equipment and the memory typewriter. He stated that her qualifications were far superior to those of Ms. King or the plaintiff.

Plaintiff testified that during her interview, she was not asked about her experience with the memory typewriter. In response to an inquiry from the Court, she stated that at the time the interview took place, she had used a memory typewriter and was familiar with its operation, but she then acknowledged that her experience was limited to practicing on a demonstration model. She also acknowledged that, at that time, she had had no training on word processing equipment.

Given defendant’s acknowledgement that Mrs. Friedman was a qualified applicant, the Court finds that plaintiff has established a prima facie case of age discrimination with respect to her nonpromotion to this position. See Favors v. Ruckelshaus, supra. However, the Court also finds that defendant has met its burden of articulating a legitimate, non-discriminatory reason for selecting Ms. King instead of Mrs. Friedman. See Burdine, supra. There was credible evidence that Mr. Baker made a legitimate choice between two qualified applicants by selecting the one with mechanical skills (i.e., the use of word processing equipment) that the other lacked; the selectee was the better qualified applicant. Thus, the burden shifted back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not his true reasons but rather were a pretext for discrimination. Plaintiff has not met that burden; she has presented no credible proof that the reasons given by defendant were pretextural or that age made a difference in the selection.

Although plaintiff understandably was disappointed in the results of the various applications, her lack of success was not due to any improper consideration, intention, or conduct on the part of the defendant. The proof showed clearly that plaintiff applied for a succession of opportunities for which she was less qualified than the selectee, and that there were entirely legitimate reasons, unrelated to age or reprisal, that motivated the selections made.

The foregoing shall constitute the findings of fact and conclusions of law required by Rule 52(a), Federal Rules of Civil Procedure.

Accordingly, plaintiff’s complaint is dismissed in all respects, with costs, except as to the claim that is still pending before the administrative tribunal, i.e., Case 5, which has been marked “stayed” on the calendar of this Court.

SO ORDERED.


author: JUNE L. GREEN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Calvin R. HOLLINS, Defendant.
    Crim. No. 82-325.
    United States District Court, District of Columbia.
    Dec. 17, 1984.
    Calvin R. Hollins, pro se.
    Ina Strichartz, Asst. U.S. Atty., Washington, D.C., for plaintiff.
   MEMORANDUM OPINION

JUNE L. GREEN, District Judge.

This matter is before the Court on defendant’s motion pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure to vacate or correct “illegal sentence,” the government’s opposition thereto, and the entire record herein. For the reasons outlined below, the Court denies defendant’s motion.

I.

On April 28, 1983, defendant pled guilty to possession with intent to distribute a controlled substance (heroin), in violation of 21 U.S.C. § 841(a) as charged in count one of the indictment.

At defendant’s sentencing on May 26, 1983, the Court suspended defendant’s sentence and placed him on probation for a period of eighteen months with the imposition of special terms and conditions as follows: that defendant continue his treatment at RAP, Inc., an in-patient drug program, and that defendant comply with certain drug treatment requirements as directed by the Probation Office.

On June 15, 1983, the Probation Office submitted a “Request for Warrant” for failure to comply with the special conditions of probation, namely, to continue with his drug treatment program at RAP, Inc. The Court ordered the issuance of a bench warrant on June 22, 1983. That warrant was executed on October 6, 1983.

On November 21, 1983, the Court found defendant to be in violation of the terms of his probation. Accordingly, the Court sentenced defendant to a period of incarceration not to exceed three years, with a special parole term of three years, pursuant to 21 U.S.C. § 841(b)(1)(A). The sentence was to run concurrently with any other sentence being served.

II.

Plaintiff has filed a “Motion to Correct Illegal Sentence.” He claims that the special parole provision in 21 U.S.C. § 841(b)(1)(A) violates the due process provision of the Fifth Amendment to the Constitution. Specifically, plaintiff asserts that section 841(b)(1)(A) fails to give a court any authority to determine, within statutorily defined limits, a period of incarceration for a violation of the special parole term; amounts to double jeopardy by permitting the imposition of two distinct penalties; and substitutes the United States Parole Commission’s judgment for the Court’s in determining the length of sentence for a violation of the special parole term.

Although this Circuit has not addressed specifically the question of whether the special parole provisions of section 841(b)(1)(A) survives constitutional scrutiny, numerous courts in other circuits have rejected constitutional challenges to this section. See United States v. Counts, 691 F.2d 348, 349 (7th Cir.1982) (special parole term does not amount to double punishment in violation of fifth amendment); United States v. Kuck, 573 F.2d 25, 26-28 (10th Cir.1978) (special parole provision not unconstitutional for failure to specifically provide a maximum term; provision does not amount to double jeopardy); United States v. Jones, 540 F.2d 465, 467-69 (10th Cir.1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977) (special parole provision does not amount to an unlawful delegation of legislative power); United States v. Rich, 518 F.2d 980, 986-87 (8th Cir.1975), cert. denied, 427 U.S. 907, 96 S.Ct. 3193, 49 L.Ed.2d 1200 (1976) (special parole term not unconstitutionally vague in not delineating a maximum limit of special parole term or in not specifying the conditions of parole, special parole term read as providing a maximum term of parole of life; due process not violated by failure of provision to specify maximum sentence of imprisonment or parole); United States v. Martinez, 481 F.2d 214, 221 (5th Cir.1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 489 (1974) (special parole provision does not violate due process and cruel and unusual punishment clauses of Constitution); United States v. Simpson, 481 F.2d 582, 583-84 (5th Cir.), cert. denied, 414 U.S. 1095, 94 S.Ct. 728, 38 L.Ed.2d 553 (1973) (special parole provisions “do not fall below the applicable standards required by the due process clause of the fifth amendment”). This Circuit has, however, concluded that section 841(b)(1)(A) does not violate the requirement that a defendant be informed prior to accepting a plea of guilty the maximum possible penalty provided by law as outlined in Rule 11 of the Federal Rules of Criminal Procedure. See United States v. Vela, 606 F.2d 1224, 1225 (D.C.Cir.1979).

Defendant is cognizant of these decisions noted above, but argues that given the recent holding in United States v. Tebha, 578 F.Supp. 1398 (N.D.Cal.), appeal docketed, No. 84-1029 (9th Cir. Feb. 9, 1984), the Court must examine the question of whether section 841(b)(1)(A) passes constitutional muster.

In United States v. Tebha, the Honorable Charles Edward Wyzanski, Jr. found the special parole provision to be unconstitutional because it fails to provide notice to the defendant of what the precise maximum penalty might be if he failed to comply with his special parole order. United States v. Tebha, 578 F.Supp. at 1400. The court further concluded that the provision fails to state a fixed period of imprisonment for violation of the special parole term and fails to provide a court specific authority, within statutorily defined limits, to impose the period of imprisonment for violation of his special parole term. Id. Finally, the court determined that because Congress failed to set the maximum sanction which could be imposed on defendant and left that decision to the unrestricted discretion of the courts, the provision violates the separation of powers clause of the Constitution.

The Court respectfully disagrees with Senior Judge Wyzanski’s conclusions. Section 841(c) of Title 21, United States Code explains the special parole term:

A special parole term imposed under this section ... may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term provided for in this section ... shall be in addition to, and not in lieu of, any other parole provided for by law.

21 U.S.C. § 841(c). A plain reading of the statute makes it clear that a defendant may expect to serve a maximum term of imprisonment equal to the number of years of imprisonment imposed by the court at sentencing and if the special parole order is violated, the number of years ordered in the special parole provision will also apply. A defendant does have sufficient notice of what penalties may be imposed.

Further, the failure of Congress to specifically state the maximum term that may be imposed in the special parole provision does not amount to a violation of the Constitution. As the court in United States v. Rich, 518 F.2d 980, explained:

The special parole statute ... provides for a minimum parole term of [three years] following imprisonment but does not specify the maximum term of parole whichs-can be imposed. The courts interpreted the Lindbergh Act, Ch. 271, §§ 1, 3, 47 Stat. 326, as setting a maximum sentence of life although the Act explicitly permitted the court to sentence the kidnapper “in its discretion.” ... Similarly, we read the special parole statute in question as providing a maximum term of parole of life. Due process is not violated by failure of a sentencing statute to specify the maximum sentence of imprisonment or parole.

Id. at 987 (citations omitted); accord United States v. Jones, 540 F.2d at 468 (“the statute is reasonably construed to validly authorize a maximum special parole term of life”).

In addressing the separation of powers question, it is certainly constitutional for Congress to set outer limits of sentencing without specifically providing the precise sanction to be imposed. See, e.g., United States v. Simpson, 481 F.2d at 584-85. Because section 841(b)(1)(A) has been read to authorize the imposition of a life special parole with a minimum special parole period of three years, see, e.g., United States v. Walden, 578 F.2d 966, 972 (3d Cir.1978), the discretion left to the sentencing court to choose a sentence within these extremes is a constitutional delegation of power. See, e.g., United States v. Jones, 540 F.2d at 468; United States v. Simpson, 481 F.2d at 584-85.

Three courts have had the opportunity to review the Tebha decision and three have rejected its conclusions. See Ugland v. United States, 596 F.Supp. 156 (D.N.J., 1984); United States v. Lockley, 590 F.Supp. 1215 (N.D.Ga.1984); United States v. Davi, 588 F.Supp. 91 (E.D.N.Y.1984).

For the reasons outlined above, the Court rejects defendant’s claim that section 841(b)(1)(A) is unconstitutional and, accordingly, denies defendant’s motion to correct illegal sentence.

      . Title 21, United States Code, section 841(b)(1)(A) provides in pertinent part:
      [A]ny person who violates [21 U.S.C. § 841(a) ] shall be sentenced as follows----
      In the case of a controlled substance in schedule I or II which is a narcotic drug, such person shall be sentenced to a term of imprisonment of not more than 15 years, a fine of not more than $25,000, or both____ Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such a prior conviction, impose a special parole term of at least 3 years in addition to such term of imprisonment____

      . Judge Wyzanski, Senior District Judge, United States District Court of the First Circuit, was sitting by designation in the Northern District of California.


author: SHADUR, District Judge.

text:
    Esther STOUTMIRE and Ruben Stoutmire, Plaintiffs, v. Dorothy STRICKLAND, et al., Defendants.
    No. 83 C 6900.
    United States District Court, N.D. Illinois, E.D.
    Dec. 17, 1984.

      F. Willis Caruso, Elizabeth ShumanMoore, Chicago, 111., for plaintiffs.
    David J. Walker, William J. Harte, Ltd., Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Esther and Ruben Stoutmire (“Stout-mires”) seek damages and injunctive relief under 42 U.S.C. § 1982 (“Section 1982”) and the fair housing provisions of the Civil Rights Act of 1968 (the “Act”), 42 U.S.C. §§ 3601-3631. Defendant Quasem Barakat (“Barakat”) has renewed his motion under Fed.R.Civ.P. (“Rule”) 39 for a trial by jury of all issues in the case. For the reasons stated in this memorandum opinion and order, Barakat’s motion is denied (at least on the present showing or lack of one).

Background

On September 30, 1983 Stoutmires filed their original complaint, alleging defendants had, because Stoutmires were black, refused to sell or negotiate the sale to Stoutmires of a house owned by Barakat. On November 29 Barakat answered the complaint, but he did not file a timely demand under Rule 38:

Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.

On December 28 Stoutmires filed an Amended Complaint (the “Complaint”), adding allegations that defendants were receptive to a white tester expressing an interest in Barakat’s house while effectively turning away two black testers. Once again Barakat filed a timely answer, but not a jury demand under Rule 38.

On April 19, 1984 Barakat filed a Cross-claim against the Century 21-NBC Defendants, asking indemnification for any judgment entered against him on the basis of the Complaint. On August 20 the Century 21-NBC Defendants answered the Cross-claim. In the meantime, however, Barakat sought leave to file a jury demand on all issues in the case, invoking Rule 39:

Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court;' but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues.

As to issues raised in the Crossclaim, of course, Barakat was not obligated to seek leave. Rule 38 permitted him to do so as of right until ten days after the other defendants had answered his Crossclaim, so his jury demand on that score was made in time. But because Barakat’s jury demand as to issues encompassed by the Complaint was untimely, Rule 39 reposed discretion in this Court whether or not to honor the demand. During an August 13 status call this Court ordered that the issues raised by the Crossclaim be tried by jury, but denied without prejudice Barakat’s motion as to issues raised in the Complaint. Now Barakat has submitted a memorandum to buttress his request.

Rule 39(b) Analysis

Rule 39(b) confers authority to grant a motion for jury trial “in an action in which such a demand might have been made of right” under Rule 38. That poses the threshold inquiry whether and to what extent the claims asserted against Barakat in the Complaint are triable of right by a jury.

Under prevailing Seventh Amendment doctrine, issues legal in nature are triable by jury of right, while those equitable in nature are not. Ross v. Bernhard, 396 U.S. 531, 533, 90 S.Ct. 733, 735, 24 L.Ed.2d 729 (1970). To the extent Stout-mires seek permanent injunctive relief under Act § 3612 and Section 1982, those equitable-relief issues are not jury-triable. On the other hand, it has been settled law for a decade that Stoutmires’ action for damages under Act § 3612 does constitute “an action to enforce ‘legal rights’ within the meaning of [the Supreme Court’s] Seventh Amendment decisions.” Curtis v. Loether, 415 U.S. 189, 195, 94 S.Ct. 1005, 1009, 39 L.Ed.2d 260 (1974) (a unanimous opinion). In other words, Stoutmires have asserted both legal and equitable claims, the determination of which turns upon substantially the same factual issues (or at least overlaps substantially).

In such mixed cases, the Supreme Court has made clear a court must take special care to safeguard a litigant’s constitutional right to a jury trial of legal issues (Diary Queen, Inc. v. Wood, 369 U.S. 469, 472-73, 82 S.Ct. 894, 897, 8 L.Ed.2d 44 (1962), quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-11, 79 S.Ct. 948, 957, 3 L.Ed.2d 988 (1958)):

[W]here both legal and equitable issues are presented in a single case, “only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.”

Beacon Theatres and Dairy Queen have been explicated this way (9 Wright & Miller, Federal Practice & Procedure: Civil § 2306, at 37 (footnotes omitted)):

[T]he constitutionally required solution in these situations, in which a single issue may be either legal or equitable depending on the remedy awarded, is to have a jury present to decide the issue, even though the court may then have to determine for itself whether to grant relief of a type historically equitable.

In terms of this case, Stoutmires have sought a legal remedy under Act § 3612, and issues as to that remedy are triable by a jury as of right, even if a simultaneous or later determination as to the propriety of equitable relief is reserved for this Court.

Because under Rule 38 Barakat might have demanded a jury trial of such issues, the question remaining is whether this Court, in the proper exercise of its discretion under Rule 39(b), should honor his untimely demand. One useful approach is to consider five factors as guiding such discretion (Parrott v. Wilson, 707 F.2d 1262, 1267 (11th Cir.1983):

(1) whether the case involves issues which are best tried to a jury; (2) whether granting the motion would result in disruption of the court’s schedule or that of the adverse party; (3) the degree of prejudice to the adverse party; (4) the length of the delay in having requested a jury trial; (5) the reason for the movant’s tardiness in requesting a jury trial.

While the court’s decision should reflect a balancing of all those factors, most often the fifth one proves determinative. As this Court observed in G. Bauknecht GmbH v. Electronic Relays, Inc., 569 F.Supp. 404, 415 (N.D.Ill.1983):

To qualify for discretionary relief, the delinquent party must furnish an adequate justification for his tardiness. Though the case law is split as to what constitutes a sufficient excuse, even the most lenient approach (to which our own Court of Appeals subscribes, see Merritt v. Faulkner, 697 F.2d 761, 766-67 (7th Cir.1983)) requires a showing of inadvertence.

Barakat Mem. 2 attributes his failure to file a timely jury demand to his “counsel’s excusable confusion with regard to right to a trial by jury under 42 U.S.C. § 1982 and § 3612.” In all candor, that seems disingenuous. Though there are of course unusual situations in which monetary awards are viewed as partial implementation of equitable remedies and hence non-jury-triable, the normal (perhaps even Pavlovian) reaction of any experienced trial lawyer (and Barakat’s is certainly that) to a claim for damages like Stoutmires’ is to view it automatically as potential grist for a jury’s mill. And any conceivable doubt in that respect in this instance would have been resolved by less than two minutes’ research: a brief look at Act § 3612 in U.S.C.A., with its specific “Jury trial” headnote identifying a ten-year-old unanimous Supreme Court decision directly on point. It is implausible that Barakat’s counsel, had he considered the matter, would have been confused by such clear and uncontroverted authority. Barakat’s counsel will have to be more particularized (and more persuasive) before this Court can determine whether even the most lenient standard of “inadvertence” identified in Bauknecht (let alone the more stringent one expressed in Ma) has been met.

Nonetheless, it is worth taking a look at the other Parrott factors (Barakat may come once more unto the breach, and it should therefore be seen now whether such a renewed effort would be bootless). Brief examination indicates the other factors would not appear to weigh against a proper Rule 39(b) request by Barakat, were he to make one.

First, many of the factual issues to be tried in this case — such as the circumstances surrounding Stoutmires’ efforts to buy Barakat’s house and the later inquiries by testers — involve an assessment of witness credibility. That function, of course, is well suited to a jury, especially where (as here) the factual situation is not so complicated or technical as to risk confusing a jury (contrast, e.g., Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir. 1975)).

Second, granting Barakat’s Rule 39 motion will not significantly disrupt this Court’s or Stoutmires' schedule. There has been no trial setting, and in any case a jury will have to be called to try the Crossclaim. Indeed to the extent the issues raised by the Crossclaim overlap those raised by the Complaint, no determination of those issues by this Court could be allowed to impair Barakat’s perfected right to a jury trial of the Crossclaim. Beacon Theatres, 359 U.S. at 510-11, 79 S.Ct. at 957 and Dairy Queen, 369 U.S. at 472-73, 82 S.Ct. at 897, teach the need to guard against that possibility.

Third, though Stoutmires have made plain they would prefer a bench trial, they have not identified any prejudice to themselves resulting from a grant of Barakat’s motion. In fact their five-sentence response does little more than rehearse the proceedings to date before this Court on Barakat’s motion. This Court cannot presume prejudice in the absence of a showing (though in fairness, if Barakat were to seek another chance to cure his inadequate presentation, Stoutmires will be given the same).

Finally, Barakat’s delay (though several months in duration) was less than in some cases in which Rule 39(b) relief has been granted. See, e.g., Judge Moran’s opinion in Rodriguez (cited in n. 3) (nine-month delay). And perhaps most significantly in that respect, nothing untoward has been shown to have been occasioned by that delay.

In sum, the factors other than Barakat’s reason for tardiness — the most important element — are not adverse to his request. This Court must however await a better showing on that score, even though the right in issue is a fundamental one.

Conclusion

Barakat’s motion under Rule 39(b) to file a jury demand as to issues raised by the Complaint must once again be denied. Again that denial is without prejudice to an adequate showing by Barakat (and on the other side of the coin, without prejudice to a showing by Stoutmires of potential prejudice).

      . Citations to the Act will take the form "Act § —,” with the section numbers referring to Title 42 rather than to the Act's internal numbering.

      . Other defendants comprise Century 21-NBC . Realty (“Century 21-NBC”), its principal owner George Stavropoulos and its salespeople Dorothy Strickland and Damos Kiriakidis (all collectively the "Century 21-NBC Defendants"), Northwest National Bank of Chicago and C.A. Wallace.

      . As Judge Moran has observed (Rodriguez v. Schweiger, 534 F.Supp. 229, 230-32 (N.D.Ill. 1982) and cases there cited), some courts take a narrow view of a court’s discretion under Rule 39(b) while others, emphasizing the importance of the movant’s Seventh Amendment right, have granted Rule 39(b) motions even when the Rule 38 waiver is attributable to mere inadvertence on the part of the movant. Our Court of Appeals has leaned to the latter approach in the unusual pro se situation referred to in Mertitt v. Faulkner, 697 F.2d 761, 766-67 (7th Cir.1983); but cf. Ma v. Community Bank, 686 F.2d 459, 470 (7th Cir.1982):
      As a general rule, mere inadvertence will not justify relief from a waiver of the right to trial by jury; some other reason for relief must be shown.

      . In Title VII cases, for example, an award of back pay has been treated as an integral part of the equitable remedy of reinstatement. As such it does not implicate the right to a jury trial. See Grayson v. Wickes Corp., 607 F.2d 1194, 1196 (7th Cir.1979) and cases there cited; see also 6 Fed.Proc.L.Ed. § 11:84.


author: MacLAUGHLIN, District Judge.

text:
    LOCAL P-9, UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, an unincorporated association, Plaintiff, v. GEORGE A. HORMEL & COMPANY, a Delaware corporation, Defendant.
    No. Civ. 4-83-683.
    United States District Court, D. Minnesota, Fourth Division.
    December 18, 1984.
    David S. Anderson, Peterson, Bell & Converse, St. Paul, Minn., and Robert H. Nichols, Martha M. Mills, Cotton, Watt, Jones & King, Chicago, III, for plaintiff.
    David S. Doty, Popham, Haik, Schnobrich, Kaufman & Doty, Ltd., Minneapolis, Minn., for defendant.
   MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on cross motions for summary judgment. Plaintiff seeks to vacate an “amended” arbitration award and confirm an “original” arbitration award. Defendant seeks an order affirming the amended award of the arbitrator. Plaintiffs motion will be granted.

FACTS

Plaintiff Local P-9, United Food and Commercial Workers International Union is the exclusive bargaining representative for the unit of production and maintenance employees at defendant Geo. A. Hormel & Company’s meatpacking plant in Austin, Minnesota. The collective bargaining agreement between the parties establishes a grievance-arbitration procedure for the resolution of all disputes involving the meaning and application of the agreement. If the dispute involves the output required under a work schedule, a special arbitration procedure involving a direct time study by a qualified industrial engineer is provided for by the Contract. Collective Bargaining Agreement, Appendix A, Section IV. The agreement provides that “[t]he Award of the Arbitrator shall be final and binding on all parties concerned.” Appendix A, Section IV-B-2..

On September 27, 1982, plaintiff filed a grievance challenging a newly issued work schedule for the processing of “Cure 81” hams. Plaintiff requested that the dispute proceed immediately to arbitration, and the parties selected James L. Reynolds, a qualified industrial engineer, to arbitrate the dispute. An arbitration hearing was held on March 9-10, 1983, and April 11, 1983. The issue before the arbitrator was whether or not the work schedules for the de-fatting, de-boning, and de-trimming operations on the “Cure 81” ham were based on the bench mark level of normal effective effort as defined in the collective bargaining agreement. More particularly, the issue was the calculation of “steeling time” (knife sharpening time) in the overall work schedule.

The arbitrator issued an eleven-page document titled “Opinion and Award” on May 17, 1983. This award discussed the time studies which the arbitrator had conducted, and ordered the following relief:

1. The work schedules for the Cure 81 Ham Processing operations, which are the subject of this arbitration, are not based on the bench mark level of normal effective effort defined in Section III of Appendix A of the Agreement.
2. The time standards and work schedules for the Cure 81 Ham Processing operations, which are the subject of this arbitration, are to be adjusted in accordance with Exhibit 19 of this opinion and award.

Opinion and Award, at 11. There is no indication on the face of the May 17, 1983 award that it was intended to be anything but a final award, although the arbitrator now claims that it was merely a provisional first draft. Affidavit of James Reynolds, October 23, 1984, ¶ 7. The letter from the arbitrator which accompanied the award contained the following statement:

If, after reviewing the award, the parties desire to discuss it, I would suggest the hearing be reconvened at 9:00 a.m. on Thursday, May 26, 1983 at the offices of the Company.

Letter from James Reynolds to David Gardner and Richard Schaefer, May 18, 1983.

Subsequent to receiving the above letter and award, defendant advised the arbitrator that it desired a meeting to discuss the award. This meeting was held on May 26, 1983. Defendant advised the arbitrator that it wished him to reconsider the award, and introduced evidence in support of its contention that the arbitrator’s calculation of “steeling time” was contrary to past practices. The defendant had not made an argument based on past practices at the first hearing, nor submitted any evidence regarding {last practices. Plaintiff objected to a reconsideration of the award, claiming that the May 17 award was final and binding. Despite this objection, the arbitrator stayed his award and requested the parties to brief the past practice issue. The Union reiterated its objection to this reconsideration after the arbitrator’s request for briefs, as well as in the brief which it subsequently submitted.

On June 16, 1983, the arbitrator issued an amended opinion and award in which he upheld the defendant’s position with respect to past practice and reversed his earlier award. The arbitrator made the following comments regarding his decision to reconsider his May 17, 1983 award:

An arbitrator retains authority to reconsider or change an award when it has been determined that an error on the face of the award may have been made. If a binding past practice exists which was not disclosed to the arbitrator, the arbitrator is empowered to review proof of its existence submitted by either party and to reconsider the award in light of his determination of the persuasiveness of that proof. Such a posteriori review is expressly appropriate when to not conduct such review would engender further dispute. For these reasons, the Arbitrator in this case has the authority to reconsider the award.

Amended Opinion and Award, June 16, 1983, at 3. Plaintiff now seeks to vacate this June 16, 1983 award and to confirm the original May 17, 1983 award. Defendant seeks the Court’s order confirming the amended June 16, 1983 award.

DISCUSSION

1. Applicable Law

The Court has jurisdiction over this matter pursuant to § 301 of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 185. Actions under this section are governed by federal common law. Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). The Supreme Court held in Lincoln Mills that section 301 is not simply jurisdictional, but rather that it also requires the federal courts to develop a body of federal law of collective bargaining, including the performance of arbitration clauses. The Lincoln Mills decision made it clear that “[fjederal interpretation of the federal law will govern, not state law ... [b]ut [that] state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy.” Id, at 457, 77 S.Ct. at 918. See also Local HI6, International Association of Machinists v. Jostens, Inc., 250 F.Supp. 496 (D.Minn.1966) (even if Minnesota Arbitration Act not per se applicable to labor arbitration action in federal district court, it is part of body of federal law available to court). The contention of both parties that the Minnesota Arbitration Act, Minn.Stat. § 572.08 et seq. is the applicable law in this case, then, is only partially correct. While the Court should look to the Minnesota Act to the extent that it is compatible with federal substantive law on arbitration, the Act does not supplant federal law, as the defendant argues.

2. Functus Officio

Plaintiff’s argument that the amended award of June 16, 1983 should be vacated is based on the common law rule of arbitration known as functus officio. The Court has recently recognized the viability of this doctrine in the federal common law of arbitration. Air Line Pilots Association v. Northwest Airlines, Inc., 498 F.Supp. 613 (D.Minn.1980) (MacLaughlin, J.). The Court quoted the leading text on labor arbitration in its definition of the functus officio doctrine:

It has been said to be “a general rule in common law arbitration that when arbitrators have executed their awards and declared their decision they are functus officio and have no power to proceed further.” A detailed statement of this common law rule explains:
“The authority and jurisdiction of arbitrators are entirely terminated by the completion and delivery of an award. They have thereafter no power to recall the same, to order a rehearing, to amend, or to “interpret” in such manner as may be regarded as authoritative. But they may correct clerical mistakes or obvious errors in arithmetical computation.”

Id. at 618, quoting Elkouri & Elkouri, How Arbitration Works 239 (3d ed. 1973) (footnotes omitted). Accord LaVale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 573 (3d Cir.1967); A/S Siljestad v. Hideca Trading, Inc., 541 F.Supp. 58, 61 (S.D.N.Y. 1981), aff'd, 678 F.2d 391 (2d Cir.1982). By prohibiting the arbitrator from re-examining the merits of an award, the doctrine of functus officio furthers the strong federal policy of finality in labor arbitration. Air Line Pilots Association v. Northwest Airlines, Inc., 498 F.Supp. at 618; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597-99, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). The doctrine is also designed to prevent reexamination of an issue by a non-judicial officer potentially subject to outside communication and unilateral influence. A/S Siljestad v. Hideca Trading, Inc.

Plaintiff argues that the first award was a final award which could not be reconsidered under the functus officio doctrine. Defendant’s first response is that the May 17, 1983 award was a draft rather than a final award. Second, defendant argues that even if the May 17 award was final, the arbitrator had the right to reconsider it under the Minnesota Arbitration Act.

a. Finality of the May 17, 1983 Award

Plaintiff claims that it is beyond factual dispute that the May 17, 1983 arbitration award was final and binding on the parties. Defendant claims that the arbitrator intended for the May 17 award to be simply a draft opinion which was subject to modification upon objection by either party.

Plaintiff presents strong evidence that the May 17 award was intended to be final and binding on the parties. First, the May 17 award indicated that it was being issued pursuant to Article IV, paragraph D of the collective bargaining agreement, which provides that “[t]he Award of the Arbitrator shall be final and binding on all parties concerned.” Second, the text of the May 17 opinion and award gives absolutely no indication that it was intended to be a draft for discussion. The award was labeled “Opinion and Award.” It was signed and dated by the arbitrator, which is a basic prerequisite to a final award. See Elkouri and Elkouri, How Arbitration Works 236-37; Air Line Pilots Association, 498 F.Supp. at 618-19. The language of the opinion itself strongly suggests that it was intended to be a final resolution of the dispute, rather than a tentative finding open to reconsideration:

An adjustment increasing the time standard and decreasing the work schedule was found to be necessary in order to comply with the level of effort defined in the Agreement. After taking the substantial number of observations recorded in the arbitrator’s time studies, there is absolutely no doubt that such adjustment is required. The arbitrator is very aware of the keen competition in the food industry and the financial difficulties which have recently beset a nearby competitor of the Company. These concerns caused the arbitrator to be particularly cautious and careful in preparing the award. Each study was carefully checked for accuracy and consistency with all other studies. The award is presented with full confidence that it is correct.

Award of May 17, 1983 at 10.

A third fact pointing to the conclusion that the May 17 award was final is that the letter from the arbitrator which accompanied the award did not indicate that the award was a draft or that the arbitrator would accept new evidence; rather, it simply noted that the arbitrator would meet with the parties to “discuss” the award. Letter from James Reynolds to David Gardner and Richard Schaefer, May 18, 1983. Fourth, the “Amended Opinion and Award” of June 16, 1983 gives no indication that the initial award was merely a draft. Finally, a company representative’s notes of a phone call with the arbitrator several days after the original award state that the arbitrator indicated that the award was “final and binding,” and that the May 26 discussion meeting was “[n]o forum to debate” and “not to adjust the award.” Deposition of David Gardner, Defendant’s Grievance Arbitration Representative, September 17, 1984, at 32.

In opposition to plaintiff’s motion for summary judgment, defendant offers an affidavit by the arbitrator. In this affidavit the arbitrator asserts that he advised the parties at the initial hearing that his award would be of a provisional nature:

At the initial meeting he indicated that he would be issuing an opinion and that, because it involved complicated observations, calculations and assumptions of various standards, he would be requesting that the parties be given an opportunity to present further materials at a reconvened hearing subsequent to the issuing of the draft Opinion and Award.

Affidavit of James L. Reynolds, October 23, 1984, If 6. Second, the arbitrator contends that it was his intent that the May 17 award serve merely a draft:

The initial Opinion and Award was sent to the parties on May 17, 1983. Although he signed and dated the Opinion, it was meant to only be a draft Opinion subject to further taking of evidence if it were found to be in error by either of the parties. It was his intention that, should the parties accept the Opinion, the initial Opinion would become the award. That did not happen.

Id., 117.

If the Court were to consider the assertions in the arbitrator’s affidavit, it would be compelled to/deny the cross motions for summary judgment on the ground that there is a genuine factual issue as to whether the May 17, 1983 award was a final one. The Court has determined, however, that it will not consider the arbitrator’s affidavit for the purpose of deciding the instant motions. Fed.R.Civ.P. 56(e) (affidavits in support of summary judgment motion “shall set forth such facts as would be admissible in evidence”). The Code of Professional Responsibility for Arbitrators of Labor-Management Disputes provides that after the award has been rendered, “[n]o clarification or interpretation of an award [by the arbitrator] is permissible without the consent of both parties.” Part 6, § Dl. The Court finds that post-award comments by arbitrators such as the ones made in the instant case are improper and inconsistent with the fundamental goals of finality and labor peace underlying the federal law of arbitration. See Reichman v. Creative Real Estate Consultants, Inc., 476 F.Supp. 1276 (S.D.N.Y.1979) (“post-verdict” examinations of arbitrators for purpose of impeaching decision are roundly condemned). See also Grudem Brothers Co. v. Great Western Piping Corporation, 297 Minn. 313, 213 N.W.2d 920, 924 (1973) (an arbitration award “should be interpreted from the language used therein rather than the testimony of one of the arbitrators as to what they meant to do by the award”). Accordingly, the Court will not consider the arbitrator’s affidavit in deciding the instant motions. Without this affidavit, the evidence admits of absolutely no doubt that the May 17, 1983 award was final and binding, so that the functus officio doctrine precluded the arbitrator from reconsidering the award.

b. Reconsideration under the Minnesota Arbitration Act

The Minnesota Arbitration Act provides for three fairly limited situations in which an arbitrator may “modify or correct” an award: Minn.Stat. § 572.20. These exceptions are not inconsistent with the main thrust of the functus officio doctrine — the principle that the arbitrator may not reconsider the merits of his decision once it is made. The defendant argues that the provision allowing for the arbitrator to change the award on the ground that there was an “evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award,” id., is applicable in the instant case. This argument is without merit. There was no simple mistake in arithmetic which the arbitrator corrected in his amended award. Rather, the arbitrator reconsidered the merits of the entire issue originally before him, on the basis of evidence relating to past practices which had not been before him at the time he issued his first award. This is precisely the type of reconsideration that is prohibited by the doctrine of functus officio; the statutory exception relied upon by defendant was clearly not intended to allow the arbitrator to accept new evidence and redetermine the merits of the controversy. The use of the phrase “evident miscalculation” makes it clear that only those mistakes which are apparent on the face of the award may be corrected by the arbitrator. There was no such facial error in this case. See Seaboard World Airlines, Inc. v. Air Transport Division, Transport Workers Union of America, 460 F.Supp. 603 (E.D. N.Y.1978) (in common law arbitration, arbitrator can correct mistake apparent on face of award). Accordingly, the functus officio doctrine prohibited the arbitrator from amending his May 17, 1983 award. The Court will therefore grant plaintiffs motion for summary judgment, vacate the “amended” arbitration award of June 16, 1983, and confirm the original arbitration award of May 17, 1983.

(1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(2) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(3) The award is imperfect in a matter of form, not affecting the merits of the controversy.

Based on the foregoing, IT IS ORDERED that:

1. plaintiffs motion for summary judgment is granted and defendant’s motion for summary judgment is denied;

2. the arbitration award dated June 16, 1983 is vacated and the arbitration award dated May 17, 1983 is confirmed.

LET JUDGMENT BE ENTERED ACCORDINGLY.

      . Defendant introduced a letter dated May 6, 1965 which was allegedly written by the plaintiffs International parent to the defendant’s Industrial Relations Department. Plaintiff denied ever having seen this letter.

      . This term is translated literally to mean "a task performed.” Black’s Law Dictionary, 5th ed.

      . The other two statutory exceptions to the functus officio doctrine both explicitly provide that reconsideration by the arbitrator should not reach the merits of the dispute, thereby suggesting that the "evident miscalculation” exception should be interpreted narrowly. Minn.Stat. §§ 572.20(2), (3).

      . Plaintiff argues that even if reconsideration of the award was appropriate, the defendant did not follow the procedures required by the Minnesota Arbitration Act: Section 572.16 of the Act requires the party seeking clarification of the award to give written notice to the opposing party, "stating he must serve his objections thereto, if any, within ten days from the notice.” In view of the fact that the reconsideration of the award was improper under the functus officio doctrine, the Court does not reach this procedural question.


author: DONALD J. PORTER, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Patrick NEHL, Defendant.
    Civ. No. 83-1022.
    United States District Court, D. South Dakota, N.D.
    Dec. 18, 1984.

      Ray P. Murley, Asst. U.S. Atty., Sioux Falls, S.D., for plaintiff.
    Harvey Crow, Jr., McIntosh, S.D., for defendant.
   MEMORANDUM OPINION

DONALD J. PORTER, District Judge.

FACTUAL BACKGROUND

No facts, but only the significance to be ascribed thereto, are in dispute in this action. Defendant borrowed $43,900 from the Farmers’s Home Administration (FmHA) on February 21, 1973. Under this promissory note (hereinafter “Note A”), defendant was to repay the loan in the following installments:

Installment Installment Date

$2,438.00 January 1, 1974

$5,079.00 January 1, 1975

$5,432.00 January 1, 1976

$5,756.00 January 1, 1977

$7,050.00 January 1, 1978

$7,257.00 January 1, 1979

$7,234.00 January 1, 1980

On May 23, 1975, defendant executed two more promissory notes to FmHA. The first, which is not involved in this action, was for $8,700 (hereinafter “Note B”). The second (hereinafter “Note C”) was for $25,000 and was to be repaid in the following installments:

Installment Installment Date

$5,564.00 January 1, 1976

$6,010.00 January 1, 1977

$5,760.00 January 1, 1978

$5,510.00 January 1, 1979

$5,260.00 January 1, 1980

The notes contained a clause stating that upon default, FmHA “at its option may declare all or any part of the indebtedness due and payable.”

Defendant also had loans from the Bank of Lemmon, at Lemmon, South Dakota, and maintained his FmHA supervised checking account at this Bank.

At some point prior to January 22, 1977, defendant defaulted on his loans. On or about January 22,1977, FmHA and defendant worked out a plan to liquidate defendant’s assets, and defendant agreed to a sale of his property. On or about February 4, 1977, defendant paid $8,665 to FmHA, which applied this money to the notes in the following manner:

1. Note A — Principal: $309.18; Interest: $4,456.82
2. Note B — Principal: 0 ; Interest: $1,040.00
3. Note C — Principal: $728.86; Interest: $2,130.14

On February 14, 1977, FmHA sent Form FmHA 455-3, “Agreement for Public Sale by Borrower”, to the Bank of Lemmon for signatures, and it was executed prior to March 5, 1977.

On or about February 25, 1977, defendant paid FmHA $2,596.50, which was applied to Note A as $2,435.87 to principal, and $160.63 to interest.

Defendant’s cattle were sold on February 22, 1977, and of the proceeds of this sale, $24,938.08 was paid to FmHA on March 21, 1977. The application of this money was done in the following manner:

1. Note A — Principal: $15,754.67; Interest: $132.3)
2. Note B — Principal: $ 8,700.00; Interest: $351.10
(thus paid in full.)

Defendant’s machinery and equipment were sold at public auction on March 5, 1977. The proceeds were paid to the FmHA, $12,776.47 on April 11, 1977, and applied to Note A as $12,693.65 to principal and $82.82 to interest.

On May 23, 1977, FmHA sent defendant a notice of acceleration using Form FmHA 455-21.

DISCUSSION

The issue before the court is whether plaintiff’s action to recover the balance due on Notes A and C is barred by the six year statute of limitations at 28 U.S.C. § 2415(a). This action was commenced May 3,1983. If the acceleration of defendant’s notes was not accomplished until the actual notice of acceleration was issued on May 23, 1977, the action is not barred and judgment must be entered for plaintiff. If, however, the acceleration was accomplished by plaintiff’s actions in January through April, 1977, the action is barred, and judgment must be entered for defendant.

“Where a note provides for repayment in installments, ‘each installment is a distinct cause of action and the statute [of limitations] begins to run against each installment from the time it matures or becomes due.’ ” United States v. Tilleraas, 538 F.Supp. 1, 4 (N.D.Ohio 1981). The “limitations period on the entire debt does not begin to run until the holder elects to declare the balance due and owing under the acceleration clause.” Id. at 5.

The acceleration clause involved in these notes expressly states that its exercise is optional with FmHA. Thus, the option was left “to the holder [FmHA], whether he will take advantage of the provision, and ... without some action on his part to set the clause’s provisions in motion, the full amount will not become immediately due merely on the happening of a default.” American Jet Leasing v. Flight America, Inc., 537 F.Supp. 745, 748 (W.D.Va.1982). (Emphasis supplied). See also United States v. Cardinal, 452 F.Supp. 542 (D.Vt. 1978); Chase Nat. Bank of City of New York v. Burg, 32 F.Supp. 230, 232 (D.Minn. 1940).

Plaintiff, of course, argues that the “action” that accelerated the notes and started the running of the statute of limitations was the notice sent on May 23, 1977. It is clear, however, that actions other than an explicit notice of acceleration may also constitute acceleration. To determine whether a particular action is an acceleration, as American Jet Leasing, supra, 537 F.Supp. at 748-749, put it:

the test seems to be the definiteness and finality of the holder’s action as an expression of his election. Stated generally, the rule is that the exercise of the option must be made in a manner so clear and equivocal as to leave no doubt as to the holder’s intention and to appraise the maker effectively of the fact that the option has been exercised.

As the evidence presented at trial indicates, FmHA requested, and defendant agreed, to liquidate his farming operation. Under 7 C.F.R. § 1962.40(a)(2), this liquidation was approved by the completion of Form FmHA 455-3, which was evidently executed in February, 1977. The disposition of at least part of assets was accomplished by public sale on March 5, 1977, in accordance with 7 C.F.R. § 1962.41(a): “when liquidation has been approved, FmHA usually will encourage the borrower to sell security ... at public auction in the borrower’s own name____ The County Supervisor will arrange to promptly receive the proceeds of the sale, due FmHA for application on the borrower’s indebtedness.” As FmHA received the proceeds from the sales of defendant’s assets during February, March and April, 1977, FmHA applied the payments to the notes in such a way that $31,193.37 was applied to principal and $4,832.58 was applied to interest on Note A; Note B was paid in full; and $728.86 was applied to principal and $2,130.14 was applied to interest on Note C. Yet, under the terms of Note A, the most that could have been due on Note A in April, 1977 — in the absence of an acceleration — was $18,705, or $12,000 less than what FmHA applied to that note.

Plaintiff argues that the payments FmHA received from defendant were “extra payments”, a term mentioned in the notes and defined at 7 C.F.R. § 1951.8(b), and that the application of the payments had nothing to do with acceleration, but was governed by 7 C.F.R. §§ 1951.8,1951.9 and 1951.10. The court finds these “extra payments” regulations inapplicable here. The context of these regulations is subpart A of 7 C.F.R. Part 1951, which deals generally with “account servicing policies”, and sets forth procedures to be followed in servicing the loan accounts of borrowers whose loans are still active. See, e.g., 7 C.F.R. §§ 1951.33, 1951.40, allowing reamortization and deferment “on existing loans.” Defendant, who had agreed at FmHA urging to undergo liquidation, was hardly in this category in the spring of 1977. Further, the definition of “extra payments” at § 1951.8(b) does not mention proceeds from liquidation sales, and the liquidation regulations applicable here, at 7 C.F.R. § 1962.40 et seq., contain their own system of priorities in the distribution and application of proceeds from liquidation sales. Compare, e.g., 7 C.F.R. §§ 1962.-44(b)(4), (6), (8) with 7 C.F.R. § 1951.9(b). The FmHA’s dealings with defendant in January through April, 1977 were clearly governed by 7 C.F.R. § 1962.40 et seq., not 7 C.F.R. § 1951.8 et seq.

The evidence is therefore clear that, under the terms of the notes, FmHA had no right, in April, 1977, to any installments that were due only on January 1, 1978, or later unless there had been an acceleration. See Tillemos, supra, 538 F.Supp. at 5. In fact, plaintiffs own regulations show that acceleration is an essential part of the liquidation defendant was undergoing in the early months of 1977; 7 C.F.R. § 1962.-40(c)(1) provides that when “liquidation has been approved, the County Supervisor will accelerate all unmatured installments by using Form FmHA 455-21.” (Emphasis supplied). It is true that Form FmHA 455-21 was not mailed until May 23, 1977, but this mailing was a mere formality that did nothing more than affirm what had already been done. The evidence shows that liquidation was approved in either February or early March, 1977. No later than April 11, 1977, when FmHA applied . substantially more principal to Note A than was due under the installments provided by Note A, FmHA took definite, clear and unequivocal, and final action leaving no doubt that FmHA had, as required by § 1962.40(c)(1), exercised its option to “accelerate all unmatured installments.”

The evidence of acceleration is, of course, somewhat more clear as to Note A than Note C. The evidence presented at trial, however, indicates that all of defendant’s notes were treated as a single unit by FmHA during the liquidation period. The fact less money was applied to Note C than to Note A indicates only that Note A, as the older note, received higher priority. The inescapable conclusion from all the evidence is that when FmHA exercised its option to accelerate, it did so as to all of defendant’s notes to FmHA, and not merely as to Note A.

Plaintiff’s action being barred by the statute of limitations at 28 U.S.C. § 2415(a), judgment must therefore be entered for defendant. This opinion constitutes this court’s findings of fact and conclusions of law.

      . The notes do provide that "prepayments ... may be made at any time at the option of the Borrower.” (Emphasis supplied) Plaintiff, at trial, presented no evidence that defendant had exercised any option to prepay his loans, and prepayment would certainly have been unusual in liquidation.