author: RUSSELL E. SMITH, District Judge.

text:
    Veronica D. AGEN, Personal Representative of the Estate of John R. Agen, Plaintiff, v. TEAMSTERS JOINT COUNCIL NO. 2, Defendant.
    No. CV 84-51-M.
    United States District Court, D. Montana, Missoula Division.
    Sept. 19, 1985.
    As Amended Dec. 10, 1985.

      Donald R. Murray, Murphy, Robinson, Heckathorn & Phillips, Kalispell, Mont., for plaintiff.
    D. Patrick McKittrich, McKittrich Law Firm, Great Falls, Mont., for defendant.
   OPINION AND ORDER

RUSSELL E. SMITH, District Judge.

This case was filed in a Montana state court and removed to this court. The plaintiff seeks to remand. The facts are as follows:

John R. Agen (Agen) was employed by the defendant union as an organizer. He announced that he planned to run for the elective office of Executive Secretary of Local Union No. 2, an affiliate of the defendant. He was promptly fired. He is now dead, and this action seeking damages for the discharge, alleged to be unlawful under the laws of Montana, is prosecuted by the plaintiff as personal representative of Agen’s estate. Before his death, Agen filed a complaint with the National Labor Relations Board alleging that his employment was terminated in violation of the National Labor Relations Act (Act). 29 U.S.C. §§ 151-169 (1976). His complaint was denied on the ground that the Act does not protect an employee for activities designed to bring about managerial changes. There was no appeal from that decision.

The removal was improper. An action founded in “a claim or right arising under the Constitution, treaties or laws of the United States” is removable. 28 U.S.C. § 1441(b) (1976). In Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir. 1984), the court, quoting Gully v. First National Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936), stated:

Removal of an action under 28 U.S.C. § 1441(b) (1976) depends solely on the nature of the plaintiff’s complaint, and is properly removed only if “a right or immunity created by the Constitution or laws of the United States [constitutes] an element, and an essential one of the plaintiff’s cause of action.”

726 F.2d at 1370.

The defendant urges that the plaintiff’s cause of action is preempted by federal labor law, but the defendant does not identify the federal law under which the federal right arises.

It may be that the decision of the Supreme Court in Finnegan v. Leu, 456 U.S. 431, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982), stands for the proposition that the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 401-531 (1976), mandated a union structure in which union management is free to fire union employees who, in intraunion affairs, are politically opposed to the management. If so, then the federal law preempts, and a state law which attempts to place restraints upon union officials to fire union employees is invalid. However, the doctrine of preemption creates no federal right; it simply renders the state law inoperative and provides a defense. Such is not enough to warrant removal.

In Nalore v. San Diego Federal Savings & Loan Association, 663 F.2d 841, 842 (9th Cir.1981), the complaint showed that the subject matter was preempted as a matter of federal law, but since the complaint stated a basis for relief that was entirely under state law, there was not a ground for removal. To the same effect are Garibaldi, 726 F.2d at 1370, and Olguin v. Inspiration Consolidated Copper Co., 740 F.2d 1468, 1471 (9th Cir.1984).

The authorities on which defendant relies are not pertinent. In Magnuson v. Burlington Northern, Inc., 576 F.2d 1367 (9th Cir.1978), a federal right was created by the Railway Labor Act, 45 U.S.C. §§ 151— 188 (1976). In Allis-Chalmers Corp. v. Lueck, — U.S. --, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), and Olguin, 740 F.2d 1468, the federal right in question was created under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1976).

Defendant contends that Agen did not exhaust his remedies within the union and that such failure is a defense to this action. If so, then perhaps defendant has a valid defense to the action, but that does not warrant removal.

IT IS ORDERED that this action be remanded to the District Court of the Eleventh Judicial District of the State of Montana in and for the County of Flathead.


source: Caselaw Access Project

author: KRAM, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Jose HERNANDEZ, Defendant.
    No. S 83 Cr. 559 (SWK).
    United States District Court, S.D. New York.
    Aug. 30, 1985.

      Rudolph W. Giuliani, U.S. Atty., New York City by Aaron R. Marcu, Asst. U.S. Atty., New York City.
    Fisher & Ely, P.C., New York City, for defendant by David W. Ely, New York City.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

The above-captioned action is before this Court upon defendant’s motion, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, for an order reducing the sentence heretofore imposed.

Defendant was convicted after a jury trial of one count of conspiracy to distribute heroin, in violation of 21 U.S.C. § 846, and two counts of distributing heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1) and (b)(1)(A). On February 6, 1984, this Court sentenced the defendant to incarceration for a term of five years on each count, the terms to run consecutively, followed by concurrent five year terms of special parole on the two substantive counts. Defendant is currently serving his sentence at the Federal Correctional Institution in Dan-bury, Connecticut.

Defendant appealed from his convictions to the United States Court of Appeals for the Second Circuit. The convictions were affirmed on June 18, 1984. This motion ensued.

A motion for the reduction of a sentence rests within the sound discretion of the trial judge. See United States v. Lacey, 661 F.2d 1021 (5th Cir.1981); see also United States v. Serrano, No. 83 Cr. 493, slip op. (S.D.N.Y. March 27, 1984). Hernandez challenges the sentence here, claiming that its imposition constitutes cruel and unusual punishment in violation of the Eighth Amendment because it is disproportionate to the crime. Defendant further urges the Court to exercise its discretion and reduce his sentence, relying on the following mitigating factors: the hardship to his wife and four year old daughter; the hardship to his ailing seventy year old mother of losing Hernandez’s support, especially since the death of his father in January, 1984; and the discrepancy between the parole release guidelines and his expected release date based on my sentence.

Defendant’s claim that his sentence is unconstitutionally disproportionate is easily disposed of. The determination of this issue is controlled by the recent decision of the Second Circuit in United States v. Ortiz, 742 F.2d 712 (2d Cir.), cert. denied, — U.S. -, 105 S.Ct. 573, 83 L.Ed.2d 513 (1984), and by this Court’s reasoning in deciding a similar motion made by one of Hernandez’s co-defendants, Heriberto Lopez, United States v. Lopez, 592 F.Supp. 23 (S.D.N.Y.1984).

Hernandez received a sentence cumulating to fifteen years. That sentence represents thirty years less than the statutory maximum. 21 U.S.C. § 841(b)(1)(A) (1982) (assuming consecutive sentences). Moreover, Hernandez will be eligible for parole after serving five years of his term. 18 U.S.C. § 4205(a); 28 C.F.R. § 2.2(a) (1983) . The parole release guidelines call for his release before the expiration of that five year period. Accordingly, Hernandez has a. reasonable expectation of being released on parole after serving five years. Hernandez was convicted of trafficking in heroin, a very serious offense. In light of the reasonable parole expectations, I find that the sentence imposed is not unconstitutionally severe when compared with the very grave offense Hernandez committed.

Likewise, I find that the sentence imposed is not disproportionate when compared with the sentence imposed upon other defendants in this jurisdiction. This is readily apparent when Hernandez’s sentence is compared with that of his co-defendant, Heriberto Lopez.

Lopez was sentenced upon’ his plea of guilty to the two distribution counts contained in this indictment to incarceration for a term of five years on each count, the terms to run consecutively, followed by concurrent three year terms of special parole. This Court found many mitigating factors in imposing that sentence. Lopez was a drug addict. His conduct, though culpable, was aimed largely at sustaining his own expensive habit. He pleaded guilty and showed remorse for his illegal conduct. Moreover, his remorse, and his young age (25), were indicators that Lopez desired to, and might be rehabilitated. Finally, Lopez was the street seller in this operation. This is the position occupied by the man second from the bottom in the hierarchy of a street operation.

Hernandez had none of these mitigating factors. He is not an addict. Rather, his illegal conduct was aimed solely at profit-ting off the weakness of others, at great cost to society. It was believed that his illegal conduct netted him nearly $1500 per week. Indeed, Hernandez managed to support himself (and apparently several others) despite the fact that he had not been employed at all for at least four months, and had not had any significant employment for several years, prior to his arrest. Hernandez has shown no remorse at anytime for his illegal conduct, and the Court feels there is little chance of rehabilitation for him. Finally, and most significantly, Hernandez was the manager of the street operation, the most culpable member of the day-to-day operations. He also was clearly involved in drug trafficking beyond this street operation, as evidenced by his other arrests in the months preceding his arrest for the instant offenses.

Accordingly, I felt, and feel, that his sentence was appropriate when compared with that imposed on Lopez. The sentence imposed on Lopez was not unconstitutional. See Lopez, 592 F.Supp. 23; see also Ortiz, 742 F.2d 712. The sentence imposed on Hernandez, therefore, a fortiori was not unconstitutionally disproportionate to those imposed on other defendants in this jurisdiction.

Finally, Hernandez’s sentence is not disproportionate to those imposed on defendants in other jurisdictions for the same offense. Narcotics offenders are treated harshly in other jurisdictions as well. See Ortiz, 742 F.2d at 717 (listing cases); see also United States v. Guzman, 754 F.2d 482 (2d Cir.1985) (affirming sentence imposed in Eastern District of New York of incarceration for a period of fifteen years— equal to the statutory maximum — on one count of possession with intent to distribute approximately one and one-half kilograms of cocaine). The offense Hernandez committed is a severe one, and it is treated as such in many jurisdictions.

In essence, Hernandez’s argument, when viewed in light of his reasonable parole expectations, is that the imposition of a sentence requiring five years of incarceration for the commission 'of three felonies involving heroin is disproportionate to the crime. The Court does not agree. Hernandez acknowledges that the imposition of a sentence requiring three and one-third years of incarceration for the commission of one felony involving heroin (or even two felonies involving heroin) is not unconstitutionally disproportionate to the crime. The Court finds these cases controlling.

In sum, the Court has reviewed the sentence imposed upon Hernandez in light of the criteria established for reviewing claims that a sentence is unconstitutionally disproportionate to the crime committed, in violation of the Eighth Amendment. See Solem v. Helms, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In view of defendant’s reasonable parole expectations,' the Court finds that Hernandez’s sentence is not unconstitutionally disproportionate to the grave crime he committed.

In addition to the constitutional argument discussed above, Hernandez argues that certain supplemental information now provided to the Court warrants the reduction of his sentence. Hernandez has advised the Court that his wife, one Josefa Roa, and his four year old daughter have been forced to enroll for Welfare assistance. Hernandez further advised the Court that his father passed away in January of 1984 and that his elderly mother has cardiac disease. Hernandez intimated that his family needs his support. Finally, Hernandez points out to the Court the discrepancy between his parole release guidelines and the expected date of his actual release given this Court’s sentence.

Some of this information was before the Court at the time sentence was imposed, and therefore does not warrant the reduction of that sentence. See Lopez, 592 F.Supp. at 25; Serrano, slip op. at 2. Most of the remainder of this information should have been before the Court at the time sentence was imposed, since it was, or should have been, known to the defendant at that time. For example, the Court was advised at the time of sentence that Hernandez had been married to one Maria Diaz, but that the marriage had not worked out. Hernandez had indicated that he was separated (but not divorced) from Ms. Diaz in 1979, and that they had not had any children. Hernandez also indicated that he had not seen “his wife” for some four-and-one-half years. Moreover, the Court had been advised that Hernandez was residing in a three bedroom apartment with six of his siblings; indeed, that he was sharing a bedroom with two brothers. The Court does not understand why Hernandez waited until this late date to correct that information and to advise the Court that he is married to another woman and that he has a child. In any event, the Court does not believe that this “new” information warrants a reduction in the sentence imposed.

The Court recognizes that prison sentences impose a hardship on innocent family members, and is extremely sympathetic with the defendant and his family for the hardships they are feeling. Nonetheless, the Court feels that the sentence imposed was just in light of the serious nature of the crime defendant committed, and in light of all the factors discussed above.

Accordingly, defendant’s motion for a reduction of sentence is hereby DENIED.

SO ORDERED.

      . Hernandez recognizes that these cases are controlling; indeed, he eschews any explication of the legal arguments involved and proffers only the purported factual distinctions between Hernandez’s background and those of Lopez and Ortiz. (Affidavit of David W. Ely, Esq., in Support of Motion, ¶ 6.)

      . Ortiz, 742 F.2d 712.

      . Lopez, 592 F.Supp. 23.

      . In particular the Court was aware that Hernandez provided support to other family members, including his mother and father (who were separated at the time, and apparently had been for many years), and that there would be a discrepancy between the date his parole release guidelines indicated he might be released and the date he could actually be released given the sentence imposed.


author: GUNN, District Judge.

text:
    Darwin Eugene CONLEY, Plaintiff, v. Charles WHITENER, et al., Defendants.
    No. 84-1987C(6).
    United States District Court, E.D. Missouri, E.D.
    Sept. 27, 1985.

      Joseph Davidson, Granite City, 111., for plaintiff.
    Mike Swafford, Robert L. Nussbaumer, Kortenhof & Ely, St. Louis, Mo., for defendants.
   ORDER AND MEMORANDUM

GUNN, District Judge.

IT IS HEREBY ORDERED that defendant McCune’s motion for summary judgment is granted.

IT IS FURTHER ORDERED that defendants Whitener and Askew’s separate motions for summary judgment are granted in part and denied in part.

Plaintiff brought this action under 42 U.S.C. §§ 1983 and 1988 for damages and attorney’s fees. Count I is against defendants Whitener and Askew, both police officers for the City of Ferguson, for false arrest, use of excessive force in effecting said arrest, and use of excessive force to obtain self-incriminating statements. Count II alleges that defendant McCune, also a police officer for the City of Ferguson, by use of hypnosis improperly induced the victim of a rape to identify plaintiff as the man who attacked her, thereby causing plaintiff to be wrongfully arrested and convicted.

In support of their motions for summary judgment, defendants argue that the doctrine of collateral estoppel precludes plaintiff from bringing this § 1983 action because he had a full and fair opportunity to litigate the matters herein in a prior state criminal proceeding. The record before the Court establishes the following: Prior to trial in state court, plaintiff moved to suppress his confession on the ground that it was coerced by violence by Officers Whitener and Askew, and to suppress the victim’s hypnotically-refreshed testimony and identification. Following a full evidentiary hearing at which plaintiff was represented by counsel, the state court found that plaintiff’s statements were not coerced by violence and were admissible, and that the victim’s testimony and identification were admissible. The latter ruling was raised by plaintiff on appeal of his jury convictions to the Missouri Court of Appeals and was affirmed. In, Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), the Supreme Court held that the doctrine of collateral estoppel is applicable to § 1983 actions so as to foreclose a state criminal defendant from relitigating matters that were decided by a state court after a full and fair opportunity to litigate. In the present case the Missouri standard of collateral estoppel must be applied. See Tyler v. Harper, 744 F.2d 653, 655 (8th Cir.1984) (per curiam); Baker v. McCoy, 739 F.2d 381, 384 (8th Cir.1984).

In Missouri, a party will be collaterally stopped from relitigating an issue decided in a prior suit when (1) the issue decided in the prior adjudication is identical to the issue in the present action; (2) the prior adjudication resulted in a judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit. Oates v. Safeco Insurance Co. of America, 583 S.W.2d 713, 719 (Mo. banc 1979). All issues which could have been presented, but were not, are deemed waived. Sanders v. Frisby, 736 F.2d 1230, 1232 (8th Cir.1984) (per curiam).

Applying this test to the facts of the present case, the Court concludes that plaintiff is barred from litigating in this § 1983 action the claim against defendant McCune, and the claims of false arrest and beatings incident to the confession against defendants Whitener and Askew. See Baker v. McCoy, 739 F.2d 381. The Court concludes, however, that the claim that defendants Whitener and Askew used excessive force at the time of the arrest was not raised in the prior state court proceeding, nor thereby waived.

Accordingly, summary judgment is granted in favor of defendant McCune; granted in favor of defendants Whitener and Askew as to the claims of false arrest and beatings incident to plaintiffs confession; and denied as to the claim against defendants Whitener and Askew of excessive violence at the time of arrest.


author: BUA, District Judge.

text:
    SEARS, ROEBUCK AND CO., Plaintiff, v. NORTHUMBERLAND GENERAL INSURANCE COMPANY, Defendant.
    No. 84 C 9567.
    United States District Court, N.D. Illinois, E.D.
    Sept. 27, 1985.

      Arthur L. Klein, Theodore T. Schuld, Arnstein, Gluck, Lehr, Barron & Milligan, Chicago, 111., for plaintiff.
    Wayne B. Giampietro, DeJong, Poltrock & Giampietro, Chicago, 111., for defendant.
   ORDER

BUA, District Judge.

The Court treats defendant’s motion to stay proceedings as a motion to dismiss in these circumstances. Accordingly, defendant’s motion is GRANTED and plaintiff’s complaint is dismissed without prejudice.

According to the Uniform Reciprocal Liquidation Act, of which Illinois and New York are reciprocal states (see Ill.Rev. Stat.Ann., ch. 73, par. 833.1, (Smith-Hurd 1985 Pocket Part)), when a liquidation proceeding is commenced in a reciprocal state involving an insurer domiciled in the reciprocal state, controverted claims against the insurer by Illinois resident claimants may be made in Illinois if there is a parallel or ancillary liquidation proceeding being conducted in Illinois. Clark v. Standard Life & Acc. Ins. Co., 386 N.E.2d 890, 899 (Ill. App.1st Dist.1979). If no such ancillary proceeding is pending in Illinois, the claim has to “be proved in the domiciliary state as provided by the law of such state.” Ill.Rev.Stat.1985, ch. 73, par. 833.4; Clark, supra, 386 N.E.2d at 899. Domiciliary state means the state in which an insurer is incorporated or organized or, in the case of an insurer incorporated or organized in a foreign country, the state in which such insurer ... has, at the commencement of delinquency the largest amount of its trusteed assets and deposits for the benefit of its policy holder or policy holders and creditors in the United States; and “domiciliary insurer” means an insurer in its domiciliary state. Ill.Rev.Stat.1985, ch. 73, par. 833.-1(4).

In the present case, the defendant Northumberland General Insurance Company is a Canadian corporation with its principal office located in New York, New York. While it is not clear which state possesses the largest amounted of Northumberland’s trusteed assets and deposits, the location of its principal office in New York city and the prior pendency of the liquidation proceeding in a reciprocal state (New York) persuades this Court that dismissal of this action without prejudice is necessary to effectuate the purpose of the Uniform Reciprocal Liquidation Act. Clark, supra, 386 N.E.2d at 899.


author: CARMAN, Judge.

text:
    HERAEUS-AMERSIL, INC., Plaintiff, v. UNITED STATES, Defendant.
    Court No. 81-1-00100.
    United States Court of International Trade.
    Aug. 27, 1985.

      Fitch, King & Caffentzis, New York City (Richard C. King and James Caffentzis, New York City, on motion), for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch, New York City (John J. Mahon, New York City, on cross-motion), for defendant.
   MEMORANDUM OPINION AND ORDER

CARMAN, Judge.

Defendant moves, pursuant to rules 52 and 59 of the rules of this Court, for amendment and/or rehearing (clarification) of this Court’s memorandum opinion and judgment of June 6, 1985, 612 F.Supp. 396. Plaintiff consents to this motion. The Court agrees that there is need for clarification, therefore grants the motion and vacates the prior opinion and judgment, Slip Op. 85-60.

In Slip Op. 85-60, the Court granted plaintiff’s motion for summary judgment, but limited its holding to entry number 188,596, which was the only entry covered by the original summons in Court No. 81-1-00100. However, during the course of the litigation, additional entries were severed from other cases and consolidated with Court No. 81-1-00100, which became designated as Consolidated Court No. 81-1-00100. All entries the subject of this consolidated action are thus:

Court Number Protest Entry Date of Date of
_ Number Number Entry Liquidation
80- 9-0U39-S 1001-8-004428 K350112 3/5/76 1/6/78
K458138 7/2/76 1/6/78
K499020 8/9/76 1/6/78
K522573 8/31/76 1/6/78
K522628 8/31/76 1/6/78
81- 1-00100 1001-8-010167 188596 12/12/76 5/12/78
82- 9-01243-S 1001-0-011514 804694 4/13/81 7/31/81
804807 4/17/81 7/31/81
804885 4/27/81 7/21/81

The rationale of the Court’s opinion in this case affects the disposition of the various entries differently. It is therefore necessary for the Court to explain in detail the application of its holding to the involved entries.

NATURE OF THE CLAIM

In this action, which originally came before the Court on plaintiff’s motion for summary judgment, plaintiff contends that its imported merchandise, known as “fused quartz” or “fused silica,” should be classified under items 540.11 and 540.41 of the Tariff Schedules of the United States (TSUS). The basis of plaintiff’s claim is that the more than 300 known liquidations of entries over a 10 year period of like or similar merchandise classified under the same claimed item numbers constitutes “an established and uniform practice” within the meaning of 19 U.S.C. § 1315(d) (1982). An established and uniform practice of classifying fused quartz and fused silica under items 540.11 and 540.41 would, according to plaintiff, preclude the United States Customs Service (Customs) from classifying the merchandise under item 540.67, TSUS, as it did in this case, because of the failure to follow the notice procedures prescribed by section 1315(d) prior to deviating from the alleged established and uniform practice.

Defendant, in cross-moving for partial summary judgment respecting plaintiffs section 1315(d) claim, contends that the notice requirement resulting from an established and uniform practice is predicated upon a “finding” of such practice by the Secretary of the Treasury. Defendant claims that plaintiff has failed to prove that a uniform practice existed, but irrespective of such practice, plaintiff is not entitled to relief in the absence of a finding by the Secretary. Defendant therefore asserts it is entitled to summary judgment in its favor dismissing the uniform and established practice claim.

Defendant claims, in the alternative, that this Court lacks authority to determine whether a uniform and established practice existed; therefore, the case should be remanded to the Secretary of the Treasury to make the appropriate affirmative or negative finding. The defendant requests the Court further to certify the question for an interlocutory appeal pursuant to 28 U.S.C. § 1292(d)(1) (1982) should the Court grant any relief to plaintiff or adhere to the Court’s earlier decision in Heraeus-Amersil, Inc. v. United States, 8 CIT-, 600 F.Supp. 221 (1984) (denying defendant’s motion to dismiss that part of the complaint relating to an established and uniform practice, and holding that plaintiff may show such practice under 19 U.S.C. § 1315(d) by actual uniform liquidations).

STIPULATED FACTS

Plaintiff imports optical grade fused quartz or fused silica at the ports of Newark and John F. Kennedy International Airport (JFK). Upon the liquidation of plaintiff’s optical types that were imported from Germany during March-December, 1976 and April, 1981, Customs classified the merchandise in issue under item 540.67, TSUS. In the previous period of 1968 through November, 1977, Customs liquidated other entries of plaintiff’s same optical types under items 540.11 and 540.41, TSUS. Over 300 documented entries at the two ports mentioned above resulted in classification and liquidation under these item numbers. All merchandise identical or similar to plaintiffs optical types was classified prior to December 30, 1977, under either item 540.11 or 540.41. There is no evidence that any optical grade fused quartz/fused silica entered by plaintiff or any other importer was ever classified as “optical glass” under item 540.67, TSUS, or under its 1930 Tariff Act predecessor, prior to December 30, 1977. Further, there is no evidence of the importation of merchandise identical or similar to that the subject of this case at any port other than Newark or JFK.

From 1968 through November, 1977, at least five import specialists at the Newark and JFK ports of entry uniformly made advisory classifications of plaintiffs optical types under items 540.11 or 540.41. In 1977, however, another import specialist assumed advisory classification responsibility at JFK for plaintiffs optical types. This specialist made a new advisory classification which resulted in the change of classification to item 540.67.

The Secretary of the Treasury or his lawful delegee concededly made no “finding” under 19 U.S.C. § 1315(d) of whether an established and uniform practice existed as to the classification of optical grade fused quartz or fused silica. Accordingly, the Secretary never published, pursuant to section 1315(d), a notice of proposed change of practice in the classification of the merchandise at issue.

OPINION

In Heraeus-Amersil, Inc. v. United States, 8 CIT-, 600 F.Supp. 221 (1984), this Court, in deciding defendant’s motion to dismiss in part, considered whether a uniform and established practice could arise from uniform classifications of like merchandise over a period of time which would bind Customs unless the change in practice was executed pursuant to 19 U.S.C. § 1315(d). The Court held that the plaintiff could show an established and uniform practice by actual uniform liquidations, even though the Secretary of the Treasury had made no “finding” that such a practice existed. It is clear that the established and uniform practice Congress contemplated is antecedent to a finding. Siemens America, Inc. v. United States, 2 CIT 135, 138 (1981), aff'd 692 F.2d 1382 (Fed.Cir.1982). The applicability of section 1315(d) is thus not necessarily dependent upon a finding by the Secretary. See Heraeus-Amersil, 8 CIT at-, 600 F.Supp. at 225. “In the absence of an affirmative or negative finding, ... the Court, when properly presented with the issue, may resolve it.” Id. at-, 600 F.Supp. at 224.

The controlling question now before the Court, then, is whether in light of the stipulated facts an actual established and uniform practice existed with respect to the classification of optical grade fused quartz or fused silica. In the briefs submitted in support of the cross-motions for summary judgment, and at oral argument, much of the argument of the parties was a rehash of the question regarding the necessity of a finding by the Secretary of the Treasury in order for an established and uniform practice to arise within the purview of section 1315(d). This question was previously adequately briefed and decided by the Court. See Heraeus-Amersil, 8 CIT ———, 600 F.Supp. 221 (1984). The Court adheres to the rationale of its prior opinion which is the law of this case. See 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 788 (1981).

Precedents concerning what specifically constitutes an established and uniform practice under section 1315(d) are unfortunately sparse. Nevertheless, the Court can make the determination on a case-by-case basis according to certain guiding principles. See 8 CIT at -, 600 F.Supp. at 225. Factors to be considered are the number of entries resulting in the alleged uniform classifications, the number of ports at which the merchandise was entered, the period of time over which the alleged uniform classifications took place, and whether there had been any uncertainty regarding the classification over its history. In essence, the question is whether a uniform and established practice existed that would lead an importer, in the absence of notice that a change in classification will occur, reasonably to expect adherence to the established classification practice when making an importation.

In this ease, the classification of fused quartz/fused silica under items 540.11 and 540.41 spanned a period of at least 10 years. Over 300 liquidations at two ports under these item numbers have been documented. The parties have been unable to find any evidence of variant liquidations during the 10-year period or earlier. On the basis of this large number of past entries over the long time period involved, the Court finds that plaintiff was entitled to rely upon the continued classification of its optical types under items 540.11 and 540.41 absent published notice of a contemplated change in classification practice pursuant to section 1315(d).

The only authority directly on point indicates that the classification practice here has existed well beyond the time span required for an established and uniform practice. Thus, in Emil Dienert v. United States, 9 Cust.Ct. 411, Abs. 47, 544 (1942), the court found that 5 to 8 years of classifying merchandise as a particular article constituted an established and uniform practice. Since there was no evidence that notice to impose a higher rate was published, the court held that “Treasury officials did not comply with the provisions of section 6, Customs Administrative Act of 1938 [19 U.S.C. § 1315(d) ],” and that the action of the collector in classifying the articles under a new category was “without legal force and effect.” Id. at 412. The court did not discuss the necessity of a finding.

In many of the cases involving section 1315(d), the issue was whether or not some action by Customs constituted a finding. See Heraeus-Amersil, 8 CIT at-n. 7, 600 F.Supp. at 224 n. 7. The actual existence of an established and uniform practice has nevertheless often been discussed by the courts to support holdings that the Secretary of the Treasury had not made a section 1315(d) finding. E.g., Siemens America, Inc. v. United States, 692 F.2d 1382 (Fed.Cir.1982), aff'g 2 CIT 136 (1981); see Heraeus-Amersil, 8 CIT-n. 8, 600 F.Supp. at 224 n. 8. These discussions are helpful, however, in demonstrating what practices on the part of Customs are not established and uniform.

In Siemens, 100 entries of merchandise classified under a particular item number over possibly 2 years at a single port was not enough to create de facto an established and uniform practice. 2 CIT at 139. That controversy centered on a ruling letter pertaining to future importations of the plaintiff’s merchandise. The plaintiff argued that the letter followed by a corresponding 2 years of uniform classifications constituted a uniform and established practice. Evidence showed, however, that entries just prior to the letter were liquidated under another item number, with protests denied after the letter, suggesting that Customs had not definitively decided on the correct classification. See Siemens, 692 F.2d at 1384 & n. *.

Similarly, in Washington Handle Co. v. United States, 34 CCPA 80, C.A.D. 346 (1946), like classification treatment of twenty-eight shipments over a 2-year period was not enough to create an established and uniform practice. Important to the court was the “considerable uncertainty” as to the proper classification during even the 2-year period. Id. at 86.

Prior discussions demonstrate that when Customs has not had a reasonable opportunity to investigate adequately the proper classification for a type of imported merchandise, an established and uniform practice will not arise in the interim. In Naumes Forwarding Service v. United States, 42 CCPA 110, C.A.D. 581 (1955), for example, Customs re-evaluated its method for determining the ratio representing the amount of imported concentrated lemon juice to natural juice. The court found that Customs was not required to follow the notice provisions of section 1315(d) when changing from a practice employed in liquidating entries over a 2-month period to one “based on ‘the best current and authentic data.’ ” Id. at 112.

In the case now before the Court, nothing indicates that Customs was uncertain or was reconsidering the classification of fused quartz/fused silica prior to changing the classification of this merchandise. The Court is impressed that the practice existed for at least 10 years. Only upon reassignment of advisory classification responsibility did an import specialist initiate the change to classification under item 540.67. Unless Customs publishes notice of a contemplated change, the legislative objective under section 1315(d) of “lending certainty to the importing process” would clearly be circumvented. See Heraeus-Amersil, 8 CIT at-, 600 F.Supp. at 223. The failure of Customs to provide notice is not excused by the omission of a “finding” regarding an established and uniform practice.

In adhering to the above conclusion, the Court does not endorse plaintiff’s further contention that Customs is bound ad infinitum by a now discontinued “established and uniform practice” unless Customs publishes notice of the change in classification practice. Merchandise of entries subsequent to the change is not necessarily entitled to classification based on an administrative practice that has been discontinued and is therefore in retrospect no longer established and uniform. This result is different from that of the situation in which the importer bases its claimed classification on a finding by the Secretary of the Treasury that an established and uniform practice existed. See Rank Precision Industries, Inc. v. United States, 68 CCPA 78, 84, C.A.D. 1269, 660 F.2d 476, 480 (1981). Just as an importer’s claim may be based on an actual uniform practice, so may the claim be extinguished by the discontinuance of such practice. Adoption of plaintiff’s position could lead to the absurd result of allowing importers to go back through the records, find long-discontinued “established and uniform practices” and protest classifications accordingly, in total disregard of what everyone involved knows is the current position of Customs regarding the merchandise.

In the case before the Court, there is no question that plaintiff was on actual notice of the change in classification practice as of December 30, 1977. The subsequent group of importations involved in this action was not entered until April of 1981. Plaintiff is therefore not entitled to have these later entries of merchandise classified on the basis of a practice which Customs had discontinued and not followed for over 3 years.

CONCLUSION

For the foregoing reasons, plaintiff’s motion for summary judgment is granted in part. In these circumstances where Customs displayed no ambivalence as to the classification of plaintiff’s merchandise for 10 years in 300 liquidations, the Court holds that as a matter of law an established and uniform practice existed. For merchandise entered prior to the discontinuance of the practice, Customs’ classification under a variant item number would have been valid only if preceded by publishing notice of the change pursuant to 19 U.S.C. § 1315(d). Customs may dispense with the publication requirement only after the practice has been discontinued and an importer is on actual or constructive notice of the discontinuance. The involved entries made before December 30, 1977, must accordingly be reliquidated under items 540.-11 or 540.41.

Regarding those entries occurring after December 30, 1977, plaintiff’s motion for summary judgment is denied and defendant’s cross-motion respecting plaintiff’s claim under section 1315(d) is granted. As plaintiff was aware that the administrative practice upon which it had based its claimed classification of merchandise in the later entries had long been discontinued, the established and uniform practice claim as to these entries must be dismissed.

ORDER

Upon reading and filing defendant’s motion for amendment and/or rehearing (clarification) of the Memorandum Opinion and Judgment in Slip Op. 85-60 (June 6, 1985), plaintiff’s response thereto, and upon all other papers and proceedings had herein, it is hereby

ORDERED, ADJUDGED and DECREED:

1. that defendant’s motion for amendment and/or rehearing is granted;
2. that this Court’s Memorandum Opinion and Judgment of June 6, 1985, Slip Op. 85-60 is vacated and set aside;
3. that plaintiff’s motion for summary judgment is granted in part;
4. that defendant’s cross-motion for partial summary judgment is granted in part;
5. that the Customs officials shall reliquidate the optical fused quartz or fused silica the subject of Court Numbers 80-9-01139-S and 81 — 1— 00100 previously liquidated under item 540.67, TSUS, under either item 540.11 or 540.41, as modified by T.D. 68-9, TSUS, as appropriate, and refund to plaintiff the excess duties paid together with interest as provided by law; and
6. that the established and uniform practice claim regarding the merchandise subject of Court Number 82-9-01243-S be dismissed.

The issues involved in this determination include a controlling question of law with respect to which there is a substantial ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the litigation.

      . 19 U.S.C. § 1315(d) (1982) provides:
      No administrative ruling resulting in the imposition of a higher rate of duty or charge than the Secretary of the Treasury shall find to have been applicable to imported merchandise under an established and uniform practice shall be effective with respect to articles entered for consumption or withdrawn from warehouse for consumption prior to the expiration of thirty days after the date of publication in the Federal Register of notice of such ruling; but this provision shall not apply with respect to the imposition of antidumping duties, or the imposition of countervailing duties under section 1303 of this title.

      . The Customs regulations provide that a uniform practice may also be established by publication of a ruling pursuant to 19 C.F.R. § 177.-10(b) (1984).

      . Item 540.67 of the TSUS, as modified by T.D. 68-9, provides:
      Optical glass in any form, including blanks for spectacle lenses and for other optical elements; non-optical-glass blanks for corrective spectacle lenses; synthetic optical crystals in the form of ingots, segments of ingots, sheets, or blanks for optical elements; all the foregoing not optically worked; polarizing material, in plates or sheets, not cut to shape or mounted for use as polarizing optical elements; ********
      540.67 Other optical glass and synthetic optical crystals; polarizing material........... ..........................25% ad val.

      . Item 540.11, TSUS, as modified by T.D. 68-9, provides:
      Glass, in the mass; glass, crushed, powdered or flaked (frostings); and waste or scrap glass; all the foregoing except glass provided for in items 540.21 and 540.27:

        Glass in the mass:
      540.11 Containing over 95 percent
      silica by weight..........7.5% ad val.
      Item 540.41, TSUS, as modified by T.D. 68-9, provides:
      Glass rods, tubes, and tubing, all the foregoing not processed:
      540.41 Containing over 95 percent silica by weight..........7% ad val.

      . This stipulated fact has been further clarified in the memoranda submitted by the parties in support of plaintiff’s motion for amendment and/or rehearing. The first entry of merchandise liquidated pursuant to the new classification practice was entry number 522578. The merchandise, entered on August 6, 1976, was liquidated on December 30, 1977, under item 540.67, TSUS. Plaintiffs protest of that liquidation, filed March 30, 1978, is now part of a separate judicial action, Court No. 80-7-01138.

      . The Court gleaned that Congress, in codifying a then-existing administrative practice by enacting section 1315(d) "was attempting to lend certainty to the importing process. The importing community is thus aided by the provision’s remonstrance that an established and uniform practice not be changed absent public notice. [Citation omitted.]” Heraeus-Amersil, 8 CIT at -, 600 F.Supp. at 223.
      The Court held that implementation of this congressional intent was not necessarily dependent upon a finding by the Secretary of the Treasury. This conclusion was reached by looking at what had been considered in other cases decided under section 1315(d). Given that “many cases have passed on the question of whether an actual uniform practice existed," one is led to "conclude that the issue was meaningful to the determination. Otherwise, it would seem that .the courts were engaging in useless formulations.” 8 CIT at -, 600 F.Supp. at 224.
      Second, the effect of having section 1315(d) dependent on a finding by the Secretary would be the nullification of the Congressional purpose in certain cases:
      To be sure, when the Secretary makes a finding that an established and uniform practice either exists or does not exist, that determination is within the Secretary's congressionally designated discretion. See Washington Handle Co. v. United States, 34 CCPA 80, 86 (1946). Such a determination cannot be disturbed by a court, except, perhaps, for an abuse of that discretion. See Rank Precision Industries, Inc. v. United States, 68 CCPA 78, 84, 660 F.2d 476, 480 (1981). In the absence of an affirmative or negative finding, however, the Court, when properly presented with the issue, may resolve it. In this connection, I will heed Chief Judge Markey’s stern admonition in the Ditbro Pearl case that to hold otherwise "would render § 315(d) a nullity in the hands of a Secretary choosing to refrain from ever making a finding.” Ditbro Pearl Co. v. United States, 62 CCPA 95, 97, 515 F.2d 1157, 1159 (Markey, C.J., concurring).
      8 CIT at-, 600 F.Supp. at 224.


author: RESTANI, Judge:

text:
    PAGODA TRADING COMPANY, Plaintiff, v. The UNITED STATES, Defendant.
    Court No. 83-1-00148.
    United States Court of International Trade.
    Aug. 27, 1985.
    Sandler & Travis, Leonard L. Rosenberg, New York City, for plaintiff.
    Richard K. Willard, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office and Jerry P. Wiskin, U.S. Dept, of Justice, Civ. Div., Washington, D.C., for defendant.
   Opinion and Order

RESTANI, Judge:

Plaintiff, an importer of Korean footwear, moves for summary judgment alleging that certain of its entries should have been deemed liquidated by operation of law at the rate of duty claimed by plaintiff at the time of entry. Defendant, United States, cross-moves for summary judgment arguing that this court lacks jurisdiction to consider the aspect of plaintiff’s complaint at issue here because plaintiff failed to file a timely protest based on “deemed liquidation.” Defendant also claims that liquidation by operation of law did not occur because liquidation was properly suspended.

I.

On five occasions between August 5, 1980, and September 9, 1980, plaintiff entered its merchandise, moon boots and snowmobile boots, at the port of Seattle, Washington. At the time of each entry, liquidation of entries of all Korean footwear was suspended pursuant to an April 7, 1980, order of the United States Department of Commerce (Commerce). This suspension order, which applied to post-January 1, 1980, unliquidated entries, was based on an earlier countervailing duty order regarding Korean footwear. See T.D. 76-13, 10 Cust.Bull. (1975). On March 17, 1981, the countervailing duty order was revoked. 46 Fed.Reg. 17,014 (March 17, 1981). On the following day, Commerce notified the United States Customs Service (Customs) that liquidation of all Korean footwear entered on or after January 1, 1980, should proceed without regard to countervailing duties.

During July and August of 1981 Customs sent plaintiff computer generated notices that liquidation was suspended for at least four of the five entries. On February 26, 1982, Customs liquidated all five entries using American Selling Price (ASP) appraisement, resulting in a rate of duty higher than that proposed by the importer. On May 24, 1982, plaintiff submitted a protest challenging the appraisement and classification of the merchandise. By letter dated June 18, 1982, plaintiff sent Customs a supplement to the protest. Copies of the protest and supplemental letter were sent immediately thereafter to Customs’ San Francisco regional office. On July 29, 1982, the protest was denied and the present action ensued with jurisdiction asserted under 28 U.S.C. § 1581(a) (1982).

II.

The first issue presented is whether or not plaintiff protested the February 26, 1982, liquidation in a manner sufficient to confer jurisdiction upon this court to decide the “deemed liquidation” issue. Plaintiff’s original protest requested reliquidation, alleging an incorrect appraisal based on ASP and an error in classifying the boots separately from their component liners. In the supplemental letter, however, plaintiff raised the issue of “deemed liquidation,” arguing that no ground for suspension existed after the one-year anniversary of each entry. Therefore, plaintiff argues, pursuant to 19 U.S.C. § 1504 (1982), liquidation occurred by operation of law for each entry, and Customs’ classification and appraisement as effected by the February 26, 1982, liquidation were invalid.

Several categories of protests are set forth in 19 U.S.C. § 1514(a) (1982). The categories relevant in this ease are: (1) the appraised value of merchandise (valuation), (2) classification, and (3) the liquidation or reliquidation of an entry. A protest must set forth distinctly and specifically each involved category. 19 U.S.C. § 1514(c)(1) (1982); 19 C.F.R. § 174.13(a)(6) (1982). Section 1514(c)(1), however, provides that “[n]ew grounds in support of objections raised by a valid protest or amendment thereto may be presented for consideration in connection with the review of such protest pursuant to section 1515 of this title at any time prior to the disposition of the protest.” In contrast, amendments to protests which challenge different “decisions” from those challenged in the original protest, must be made within the time for filing the original protest. Here, plaintiff challenges the appraisement and classification decisions as invalid due to prior liquidation by operation of law. This challenge fits within categories (1) and (2) of § 1514(a). The fact that plaintiff's new ground for protest also falls within category (3) of § 1514(a), as a challenge to the validity of the February 26, 1982, liquidation, is not dispositive. The essential fact is that the “new ground” relates to the original protest of the classification and appraisement decisions. See 19 U.S.C. § 1514(c)(1) (1982).

It is undisputed that plaintiff’s supplementary letter raising the deemed liquidation issue was submitted to Customs shortly after the time for filing a protest had expired, and prior to disposition of the protest as required by § 1514. The record here makes it clear that the “new ground” was before Customs for consideration prior to the denial of the protest. Actual consideration by the agency of a supplementary ground for protest was one of the reasons the court assumed jurisdiction in Old Republic Insurance Co. v. United States, 8 CIT —, Slip Op. 84-80 (July 6, 1984). As in the Old Republic case, plaintiff here did exhaust its administrative remedies, and the agency had an opportunity to review plaintiff’s new argument prior to denial of the protest and prior to appeal to this court. Therefore, not only is assumption of jurisdiction proper according to the literal words of § 1514, but the policy obviously envisioned by § 1514, of the orderly consideration of claims, is also furthered. Accordingly, the court’s jurisdiction is sustained under § 1514 and § 1581(a).

III.

Plaintiff’s argument on the merits is that after revocation of the countervailing duty order, no valid basis for suspension existed and no legal extension was effected. Therefore, claims plaintiff, the computer generated suspension notices were a nullity and its entries were liquidated by operation of law on the anniversary dates of entry, pursuant to 19 U.S.C. § 1504. Defendant argues that because plaintiff was on clear notice of the delay in liquidation, the delay was not unanticipated. Thus, defendant argues, plaintiff suffered no harm by the continued suspension and delay of liquidation. The government also contends that plaintiff implicitly asked for an extension of the liquidation date by requesting Customs officials to seek internal advice on classification. Defendant argues that there was an adequate ground for extension, of which plaintiff received notice, because the area director needed additional time to gather information.

Provisions for extension of time to liquidate and notice of suspension appear in 19 U.S.C. § 1504(b), and state:

(b) Extension.
The Secretary may extend the period in which to liquidate an entry by giving notice of such extension to the importer, his consignee, or agent in such form and manner as the Secretary shall prescribe in regulations, if—
(1) information needed for the proper appraisement or classification of the merchandise is not available to the appropriate customs officer;
(2) liquidation is suspended as required by statute or court order; or
(3) the importer, consignee, or his agent requests such extension and shows good cause therefor.
(c) Notice of suspension.
If the liquidation of any entry is suspended, the Secretary shall, by regulation, require that notice of such suspension be provided to the importer or consignee concerned and to any authorized agent and surety of such importer or consignee.

Plaintiff notes a distinction between the terms suspension and extension and argues that a suspension is merely a ground upon which an extension may be granted. Plaintiff also argues that it received no notice of extension, but only notice of an invalid suspension. Thus, plaintiff claims that a necessary element of a valid extension— that of notice — did not exist, and therefore Custom’s February 26, 1982, liquidation was a nullity.

Plaintiff’s argument is supported by the relevant regulations, 19 C.F.R. § 159.12(b) and (c), which differentiate between notice of suspension and notice of extension. Section 159.12(b) specifically states that “[i]f the district director extends the time for liquidation, ... he promptly shall notify the importer ... that the time has been extended and notify the importer ... that the time has been extended and the reasons for doing so.” No such notice of an extension was given to plaintiff in this ease. Defendant argues that actual.notice of the delay in liquidation renders failure to give formal notice of extension harmless. The Court, however, need not address this argument unless the question of whether there was a proper extension or suspension, of which plaintiff could receive notice, is answered in the affirmative.

There is no doubt that the statutory provision for liquidation by operation of law was designed for the benefit of importers. As such, liquidation by operation of law is a direct mandate to Customs to act within a specific time or to adequately extend the time to act. In this case, there was no adequate extension. First, defendant’s claim that plaintiff implicitly requested extension under 19 U.S.C. § 1504(b) fails. Defendant concedes that it has no evidence that any official with power to do so knowingly granted an extension. Second, the fact that Customs’ computer issued the suspension notices is merely coincidental and of no consequence inasmuch as no ground for a suspension existed after revocation of the countervailing duty order. Thus, there was no proper basis for delay of liquidation in this case, and, therefore, no type of notice could eliminate Customs’ duty to liquidate. Therefore, plaintiff was, as a matter of law, prejudiced by failure to timely liquidate.

Because the time for liquidation was not properly extended here, liquidation is deemed to have occurred by operation of law prior to the February 26, 1982 liquidation. Accordingly, plaintiff’s motion for summary judgment is granted and Customs is directed to assess duties as proposed upon entry, and to refund any excess monies collected to plaintiff.

      . Plaintiff requested partial summary judgment, but the granting of plaintiffs motion fully disposes of this action.

      . In an affidavit, James J. Ryan, Director of the Business Systems Division, Office of Data Systems, United States Customs Service, stated that suspension of liquidation notices for each of the five entries were generated. Plaintiff, however, claims that Entry No. 274183 of September 3, 1980, was not the subject of any suspension notice.

      . 28 U.S.C. § 1581(a) (1982) provides:
      § 1581. Civil actions against the United States and agencies and officers thereof
      (a) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930.

      . 19 U.S.C. § 1504 (1982) provides in part:
      § 1504. Limitation on liquidation
      (a) Liquidation
      Except as provided in subsection (b) of this section, an entry of merchandise not liquidated within one year from:
      (1) the date of entry of such merchandise:
      (2) the date of the final withdrawal of all such merchandise covered by a warehouse entry; or
      (3) the date of withdrawal from warehouse of such merchandise for consumption where, pursuant to regulations issued under section 1505(a) of this title, duties may be deposited after the filing of an entry or withdrawal from warehouse;
      shall be deemed liquidated at the rate of duty, value, quantity, and amount of duties asserted at the time of entry by the importer, his consignee, or agent. Notwithstanding section 1500(e) of this title, notice of liquidation need not be given of an entry deemed liquidated.

      . Old Republic is distinguishable from this case, however, because, when broadly read, the original protest included the "new” ground.

      . Inasmuch as the "new ground” was not asserted for the first time in an action before this court, 28 U.S.C. § 2638 (1982) and Gray Tool Co. v. United States, 6 CIT -, Slip Op. 83-139 (Sept. 27, 1983) are inapplicable.

      . 19 U.S.C. § 1504 was specifically designed to avoid unanticipated liquidations. See S.Rep. No. 95-778, 95th Cong., 2d Sess. 3 at 31-32, reprinted in 1978 U.S.Code Cong. & Ad.News 2211, 2242-43.

      . Defendant’s argument that there is no statutory basis for challenge of an extension or suspension is inapposite. Plaintiff does not dispute the basis of an extension or suspension. Plaintiff claims neither existed.

      . The relevant regulations, published at 19 C.F.R. § 159.12 (1982) provide:
      § 159.12 Extension of time for liquidation.
      (a) Reasons — (1) Extension. The district director may extend the 1-year statutory period for liquidation for an additional period not to exceed 1 year if:
      (i) Information needed by Customs. Information needed by Customs for the proper appraisement or classification of the merchandise is not available, or
      (ii) Importer’s request. The importer requests an extension in writing before the statutory period expires and shows good cause why the extension should be granted. "Good cause” is demonstrated when the importer satisfies the district director that more time is needed to present to Customs information which will affect the pending action, or there is a similar question under review by Customs.
      (2) Suspension. The 1-year liquidation period may be suspended as required by statute or court order.
      (b) Notice of extension. If the district director extends the time for liquidation, as provided in paragraph (a)(1) of this section, he promptly shall notify the importer or the consignee and his agent and surety on Customs Form 4333-A, appropriately modified, that the time has been extended and the reasons for doing so.
      (c) Notice of suspension. If the liquidation of an entry is suspended as required by statute or court order, as provided in paragraph (a)(2) of this section, the district director promptly shall notify the importer or the consignee and his agent and surety on Customs Form 4333-A, appropriately modified, of the suspension.


author: CURTIN, Chief Judge.

text:
    Clement J. PACYNA, Plaintiff, v. John O. MARSH, Jr., Secretary of the Army, Defendant.
    CIV-83-205C.
    United States District Court, W.D. New York.
    March 7, 1984.
    Timothy R. Lovallo, Buffalo, N.Y., for plaintiff.
    Salvatore R. Martoche, U.S. Atty., Buffalo, N.Y. (Cheryl S. Fisher, Asst. U.S. Atty., Buffalo, N.Y., of counsel), for defendant.
   CURTIN, Chief Judge.

In this case, plaintiff seeks review of a final decision of the Secretary of the Army. Defendant moves to dismiss on the ground that plaintiff has failed to state a claim and, in the alternative, for summary judgment. The basis for these motions is lack of jurisdiction, statute of limitations, and laches.

The history of this litigation is a long one. It began in 1951, when plaintiff was serving as a master sergeant and applied for an appointment as a warrant officer in the Counter-Intelligence Corps [CIC]. Although he received approval from his local commanders, on January 3, 1952, he was informed that his application did not receive final approval.

Plaintiff continued in military service until 1962, when he retired from the Army with the status of “retired reserve.” Nothing occurred after that until February of 1979, when plaintiff-made an application through the Freedom of Information Act and examined his personnel file.

On June 13, 1980, plaintiff filed an application with the Army Board for Correction of Military Records [ABCMR], seeking to have his 1952 promotion denial reversed and his records corrected accordingly. Plaintiff claims that his application was timely because it was filed within three years after he discovered the error in his record. In the fall of 1980, the ABCMR solicited and obtained an advisory opinion from the Office of the Judge Advocate General. A copy of the opinion, which recommended that plaintiffs claim be denied, was sent to him for his comment. Plaintiff responded in February of 1981.

After considering plaintiffs response, the Board concluded that plaintiff had not given any reason to explain why the action not to appoint him was illegal or in violation of regulations. The Board also held that his failure to timely file his application had made efforts by the Army to investigate his claim difficult. Because of his 28-year delay in challenging the decision made in 1952, only limited documentation is available. This decision was affirmed by the Secretary of the Army on June 7, 1982. Plaintiffs suit followed in February, 1983, with plaintiff claiming that failure to appoint him as a warrant officer was an abuse of discretion and a violation of his rights. He seeks an order of the court appointing him to the rank of warrant officer and retirement pay, including back payment to the time of the initial denial.

Assuming for the moment that this court has jurisdiction, it is clear that plaintiffs claim is barred by the statute of limitations. 28 U.S.C. § 2401(a) provides that a civil suit against the United States must be commenced within six years after the right of action first accrues. The statute may not be waived in actions against the United States. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). “[A] cause of action is deemed to have accrued when facts exist which enable one party to maintain an action against another.” Konecny v. United States, 388 F.2d 59, 65 (8th Cir.1967), quoting Great American Ins. Co. v. Louis Lesser Enterprises, Inc., 353 F.2d 997, 1001 (8th Cir.1965).

The file in this case was complete in 1952, when plaintiffs application for promotion was rejected. Plaintiff argues that he was not able to obtain the facts until he looked at his personnel file through a Freedom of Information Act procedure in 1979, but there was no reason why he could not have reviewed his personnel records at an earlier date. Even if the statute of limitations was tolled during the period plaintiff remained on active duty, pursuant to the Soldiers and Sailors Civil Relief Act of 1940, 50 U.S.C.App. § 501 et seq., his cause of action would have accrued upon his retirement in 1962.

Cases such as Kaiser v. Secretary of the Navy, 525 F.Supp. 1226 (D.Col.1981), cited by plaintiff in support of his application, do not apply here. The statute of limitations did not apply in Kaiser, because the nature of the relief sought in that case was to correct a discharge from dishonorable to honorable. In that type of case, or cases in which the applicant seeks to expunge the judgment of a court martial, the statute of limitations is not a bar. However, in eases like the present one where the relief sought is money, the statute is a bar if the case is untimely filed. In this case, the plaintiff wants his records corrected and, at the same time, he wants the government to increase his retirement pay.

Plaintiff cannot revive his claim by applying to the ABCMR in 1981 and claiming that the 1982 decision revived the jurisdictional statute. To do this would permit a plaintiff to have the power to avoid the jurisdictional bar every time he submitted an application which was considered by the Board. Thus, whether his claim accrued in 1952 or at the time of his retirement in 1962, the time to institute the suit has long passed.

Although the government vigorously urges that the court does not have jurisdiction under any theory, I find that there is jurisdiction under 28 U.S.C. § 1346. Plaintiff has waived his claim to any monetary award over $10,000.00.

Defendant’s motion for summary judgment is granted, and the complaint is dismissed.

So ordered.


author: VINCENT L. BÉODERICK, District Judge.

text:
    NAVIMEX S.A. DE C.V. and Agencias Generales Maritimas S.A., Plaintiffs, v. S/S “NORTHERN ICE”, S/S “ANNA FLORA”, S/S “SALTA”, S/S “NORTHERN FROST”, S/S “TUSCAN STAR”, their engines, tackle, boilers, etc., Jan C. Uiterwyk, Uiterwyk Corporation, Independent Reefer Line, Jan C. Uiterwyk & Co., Inc., Uiterwyk Lines (Lakes), Uiterwyk Shipping Lines, Armasal Lines, Defendants.
    No. 78 Civ. 1780 (VLB).
    United States District Court, S.D. New York.
    April 19, 1984.

      Yorkston W. Grist, P.C., by David L. Mazaroli, New York City, for plaintiffs.
    Burlingham, Underwood & Lord, by Geoffrey J. Ginos, New York City, for defendants.
   OPINION

VINCENT L. BÉODERICK, District Judge.

I.

This action involves a dispute arising out of a general agency and services contract between the plaintiffs, two Mexican corporations, Agencias Generales Marítimas (“Genmar”) and Navimex, and the defendants, Independent Reefer Lines (“Independent”) and Uiterwyk Corporation, corporations with offices in Florida. Uiterwyk -also has a New York office. Neither defendant has an office in Mexico. The plaintiffs seek $49,059.99 pursuant to an account stated. The defendants deny owing the plaintiffs any money and have counterclaimed for $13,410.95. (At trial, this figure was recalculated to be $13,634.14.)

There is no admiralty jurisdiction with respect to the general agency relationship which provides the framework for the claims asserted in this action. P.D. Marchessini & Co. (New York) Inc. v. Pacific Marine Corp., 227 F.Supp. 17 (S.D.N.Y. 1964); see also CTI-Container Leasing v. Oceanic Operations, 682 F.2d 377, 380 n. 4 (2d Cir.1982). However, this court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(2). This opinion contains my findings of fact and conclusions of law pursuant to Rule 52(a), Fed.R.Civ.P.

II.

The defendant Independent operated a refrigerated cargo liner service from the United States Gulf to Europe during the years 1975-1977. The service was managed by Independent’s general agent, defendant Jan C. Uiterwyk Co. (“JCU”) from JCU’s Tampa, Florida offices until late 1976, when such general agency was assumed by defendant Uiterwyk Corporation as a result of the merger of JCU into Uiterwyk Corporation.

In January 1975, JCU appointed plaintiff Genmar as port agent for Independent in Mexico. The contract was not formalized in writing but according to its terms, defendants agreed to pay plaintiff Genmar for all work, services and labor performed in connection with defendants’ charter lines service of ships calling in Mexico and to reimburse Genmar for expenses incurred in connection with defendants’ ships. The commission rate payable to Genmar under the agreement was 2.5% of the earned freight on inbound cargo.

In early 1976, JCU and the plaintiffs negotiated with respect to a joint venture whereby plaintiff Navimex, which is related to Genmar, would become the nominal carrier on the westbound voyages to Mexico. JCU sought to carry additional cargoes from European ports to Mexico so as to reduce Independent’s losses in sailing vessels in ballast on the western trip. The terms of the joint venture were finalized at a meeting in Amsterdam, Holland in May 1976. There was no written contract but the terms were memorialized in memoranda prepared by representatives of the defendants and plaintiffs. Pursuant to this joint venture agreement, cargo would be carried from Europe to Mexico under Navimex bills of lading, and management services would continue to be provided by Uiterwyk Corporation from Tampa. Any losses through December 1976 were to be borne by Uiterwyk Corporation: any profits for the same period were to be shared on the basis of 50% to Uiterwyk Corporation, 25% to Navimex, and 25% to a Spanish agency participating in the venture. Either Genmar or Navimex was to receive 2.5% freight commission on cargoes inbound to Mexico.

From January 1975 through March 1977, plaintiffs Genmar or Navimex performed agency and other functions in Mexican ports. Statements of account were submitted by plaintiffs to defendant Independent in care of JCU or Uiterwyk Corporation on a ship-by-ship basis. Substantial partial payments were remitted by defendants pursuant to plaintiffs’ statements of account.

The Mexican peso was devalued in September 1976. To counter the subsequent currency fluctuations which could create unearned profits or losses to either plaintiffs or defendants, the plaintiffs sent defendants a telex outlining the accounting method that it planned to follow. Defendants did not object to the telex and continued to make partial payment on plaintiffs’ statements of account.

Due to the unprofitability of the westbound service, in March 1977 the defendants ceased operations of the charter refrigeration liner service to Mexico.

In August 1977, the plaintiffs sent defendants a summary statement of account, showing a total due to plaintiffs of $47,-725.07. Five months later, in January 1978, the defendants objected to this statement and contended that it was the plaintiffs who owed the defendants money. In February 1978, plaintiffs submitted to defendants an adjusted statement of account, showing a total due to plaintiffs of $49,-059.99. In April 1978, plaintiffs brought suit for an account stated in the amount shown to be due on the August 1977 statement of account, $47,725.07. Defendants counterclaimed for $13,410.95. Plaintiffs amended their complaint in June 1978 and alleged that the amount due on the account stated totalled $49,059.99. Prior to trial, plaintiffs credited the defendants with $6,100, representing payment received from defendant’s bank which had not been reflected on the plaintiffs’ statements of account.

III.

An account stated is an agreement, express or implied, that a statement of account has been asserted, and has been accepted as correct. Pepper’s Steel & Alloys, Inc. v. Lissner Minerals & Metals, Inc., 494 F.Supp. 487, 496 (S.D.N.Y.1979). See also Restatement (Second) CONTRACTS § 282 (1981). Both parties must express assent to the account as correct. Such assent may be inferred by silence when an account rendered remains unquestioned a reasonable time after receipt: “It is well settled that when an account which has been rendered remains unquestioned for a reasonable time after its receipt that fact is evidence, though of course not conclusive, that the account as rendered has been accepted as correct.” Willard Helburn, Inc. v. Spiewak, 180 F.2d 480, 483 (2d Cir.1950).

The defendants accepted the August 1977 statement of the account as correct. The parties operated under an agreement for two and one half years, and throughout that time they were in frequent communication. Analysis of the course of conduct between the parties reveals that an objection after five months — that is, August, 1977 to January, 1978 — was unreasonable. The impact of defendants’ failure to object until January 1978 upon plaintiffs’ summary statement of account dated August 1977 was to convert that summary statement of account into an account stated.

The plaintiffs’ supplementary statement of account of February 1978 did not constitute an account stated. In February 1978, there was an underlying dispute between the parties as evidenced by defendants’ objection in January 1978 to plaintiffs’ August 1977 statement of account, thereby precluding a finding of consent by the defendants to the February 1978 statement.

IV.

Irrespective of whether an account stated has been established, the defendants maintain that there are errors in the August 1977 statement of account. They attribute these errors 1) to plaintiffs’ accounting method; 2) to failure by plaintiffs to credit $6,100 which defendants had paid; and 3) to double billing of commissions by plaintiffs.

In spite of defendants’ previous assent to the account, they may attack the balance shown in the account by evidence of errors. 6 Corbin on Contracts § 1310 at 252 (1962); see also Restatement, Second, CONTRACTS § 282, Comment C & illustration 1 (1981). The defendants have the burden, however, to show where the account is incorrect.

Defendants’ claim contesting the plaintiffs’ accounting method is in substance a renewed argument that the August 1977 statement of account does not constitute an account stated. The accounting method which defendants now attack is the method which they used throughout the relationship between plaintiffs and defendants. Defendants acquiesced in that method not only during the relationship, but also in assenting through their silence to the statement of account of August 1977. Here defendants did not meet their burden.

Plaintiffs acknowledge that defendants have met their burden with respect to the failure to credit a payment of $6,100, and concede that their claim must be adjusted by this amount.

With respect to the double commissions, defendants also met their burden. The joint venture agreement concluded in Amsterdam, Holland, as memorialized in memoranda prepared by representatives of plaintiffs and defendants, provided that either Genmar or Navimex but not both was to receive a 2.5% commission. The plaintiffs incorrectly included in the account stated double commissions totalling $14,-180.02. The account stated will be adjusted to accommodate defendants’ challenge to the double commissions.

V.

All of the activities of JCU and Uiterwyk Corporation herein were as agents for a disclosed principal. No evidence was offered as to Uiterwyk Shipping Lines or Uiterwyk Lines (Lake) Armasal Lines. No basis was established for assertion of liability as to Jan C. Uiterwyk individually. The action was in rem as to the ships S/S “Northern Ice,” S/S “Anna Flora,” S/S “Salta,” S/S “Northern Frost,” and S/S “Tuscan Star,” and no efforts were apparently made to establish jurisdiction over them. With respect to each of the defendants named in this paragraph, the judgment to be entered shall dismiss the complaint.

VI.

Based upon the findings of fact and conclusions of law set forth in this opinion, plaintiffs shall have judgment against defendant Independent for $27,445.05 with prejudgment interest from October 1977. Interest is to be computed at the rate of 6% until June 25, 1981 and at 9% thereafter.

The plaintiff shall submit judgment on two days’ notice.

      . The name of Independent Reefer Lines has been changed to Uiterwyk Reefer Lines.

      . The parties apparently assumed that there was admiralty jurisdiction, and the record is sparse as to facts pertinent to diversity jurisdiction. The presence of such jurisdiction has been stipulated, however. The following has also been stipulated:
      At all material times, plaintiffs were corporations with offices in Mexico City, Mexico. At all material times, defendants Uiterwyk Corporation, Independent Reefer Line, Jan C. Uiterwyk Co., Inc. and Uiterwyk Shipping Lines were corporations with offices in Tampa, Florida, defendant Jan C. Uiterwyk was an individual residing in Tampa, Florida, defendant Uiterwyk Lines (Lakes) was a business name utilized by Mr. Uiterwyk's interests and defendant Armasal Line was a corporation with offices in San Salvador, El Salvador.

      . In calculating the amount of damage I have reduced the account stated of $47,725.07 by $20,280.02, to account for the double commissions totalling $14,180.02 and the payment of $6,100 made by the defendants.


author: LIMBAUGH, District Judge.

text:
    Elise D. McINTOSH, et al., Plaintiffs, v. Caspar W. WEINBERGER, et al., Defendants.
    No. 82-0491 C (5).
    United States District Court, E.D. Missouri.
    May 24, 1984.

      Louis Gilden, St. Louis, Mo., for plaintiffs.
    Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., Capt. Richard Hatch, Peter B. Loewenberg, Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

LIMBAUGH, District Judge.

This matter is before the Court on defendant Turner’s motion to dismiss or for summary judgment. Defendant Turner advocates three grounds on which this Court should dismiss all claims against him or grant summary judgment in his favor. The grounds asserted are that: 1) this action does not warrant the Court’s authorization of a non-statutory remedy for plaintiffs’ alleged Fifth Amendment violations; 2) the plaintiffs, as a matter of law, have not been deprived of a property interest in violation of the Due Process Clause; and 3) defendant Turner is immune from suit, despite his actions, under the doctrine of qualified immunity. For the reasons stated below, defendant Turner’s motion is denied.

In Count IV of plaintiffs’ complaint (plaintiffs’ complaint alleges Title VII and ADEA violations by the U.S. Army), plaintiffs allege that defendant Turner deprived them of their property interest in violation of the Due Process Clause of the Fifth Amendment. All parties agree that defendant Turner did, in fact, order the destruction of certain documents produced by the investigation of a “reconstructed panel”. Plaintiffs aver that these documents contain the results of the reconstructed panel and that defendant Turner destroyed evidence in connection with the processing of their discrimination complaints. They further aver that they are without an adequate remedy for this wrong under the available Title VII and ADEA procedures and that defendant Turner’s knowing and willful act deprives him of any immunity.

Under Rule 56 of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if he can “show that there is no genuine issue as to any material fact and that (he) is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). See all Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). In passing on a motion for summary judgment, a court is required to view the facts and inferences that may be derived therefrom in the light most favorable to the non-moving party. Butter v. Buechler, 706 F.2d 844, 846 (8th Cir.1983); Vette Co. v. Aetna Casualty and Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). The burden is on the moving party and a court should not grant a summary judgment motion unless it is convinced that there is no evidence to sustain a recovery under any circumstances. Butter, 706 F.2d at 846.

Plaintiffs have pled a federal tort cause of action against defendant Turner alleging deprivation of a property interest in violation of the Fifth Amendment. A direct federal civil suit for a constitutional violation, seeking monetary damages against the responsible federal official, was first recognized in Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Since Bivens, the Supreme Court has fine-tuned the scope of the “constitutional tort”. Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). A Bivens -type action can be defeated by two fact situations: 1) where “special factors counseling hesitation in the absence of affirmative action by congress” exists; and 2) some type of alternative form of judicial relief exists, especially an exclusive alternative remedy. Carlson, supra; Davis, supra.

Defendant Turner relies heavily on the recent Supreme Court case of Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), in which upon consideration of the Carlson and Davis principles, the Court refused to create a Bivens -type cause of action for a federal employee seeking damages under the First Amendment for retaliatory demotion. After careful and extensive analysis, the Court held that there was no need to create a new federal tort cause of action because the Civil Service Commission’s regulations adequately provided the plaintiff with a remedy. “Constitutional challenges to agency action, such as the First Amendment claims raised by petitioner, are fully cognizable within this system.” Bush v. Lucas, 103 S.Ct. at 2415, 76 L.Ed.2d at 662.

Such a situation does not exist in the present case. Count IV of the plaintiffs’ complaint seeks to remedy a wrong committed outside the context of their employment discrimination claims. Plaintiffs are alleging tortious interference with the ongoing investigatory processing of their EEO complaints. Plaintiffs’ injuries relate to their discrimination claims but do not directly stem from actions taken in regard to their employment status. Instead, plaintiffs’ cause of action is the type Justices Marshall and Blackman considered in their concurring opinion when they stated:

“Moreover, there is nothing in today’s decision to foreclose a federal employee from pursuing a Bivens remedy where his injury is not attributable to personnel actions which may be remedied under the federal statutory scheme.”

Bush v. Lucas, 103 S.Ct. at 2418, 76 L.Ed.2d at 666.

The Court finds here that plaintiffs are without redress as to defendant Turner’s actions in the absence of a constitutional remedy. Title VII and the ADEA simply are not designed to adequately provide relief to the plaintiffs under the circumstances of this case. The remedial system provided under Title VII and the ADEA does not redress the intentional deprivation of a property interest as alleged by the plaintiffs. Plaintiffs have, therefore, adequately stated a claim upon which relief may be granted.

The second ground for dismissal sought by defendant Turner is that, as a matter of law, there has been no violation of the Fifth Amendment because no property interest exists under the circumstances outlined by the plaintiffs. Defendant Turner avers that plaintiffs were not entitled to the destroyed documents, therefore no deprivation of a property interest took place. Defendants counter by attempting to characterize their property interest as entitlement to having their complaints properly investigated, having access to the results of the EEOC investigation, and in having the agency render a decision based on all the results of the investigation.

The Supreme.Court recently provided a thorough analysis of “property interests” protected by the Due Process Clause. Logan v. Zimmerman Bush Co., 455 U.S. 422, 428-431, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982). The Court in Logan specifically found that “property” is that which an individual is legally entitled to possess and furthermore “the types of interests protected as ‘property’ are varied and, as often as not, intangible, relating ‘to the whole domain of social and economic fact.’ ” Logan, at 430, 102 S.Ct. at 1155, citing numerous decisions finding “property interests” in a legal cause of action, a license, utility service, disability benefits, education, government employment, driver’s license, and welfare benefits. By virtue of this analysis of past decisions, the Logan court held that the petitioner had a protected property interest in his right to use the FEPA’s adjudicatory procedures. Logan, at 431, 102 S.Ct. at 1155.

Following the Supreme Court’s more recent decisions analyzing the nature of a property interest, this Court cannot state, that as a matter of law, plaintiffs were not deprived of a property interest by defendant Turner’s actions.

Finally, defendant Turner claims that although he admits to destroying (or at least ordering the destruction of) the documents in question, he is immune from suit under the doctrine of qualified immunity. He avers that even if the Logan decision were to characterize plaintiffs’ allegations as a deprivation of a property interest, the Logan decision was rendered after his actions took place. He claims he cannot be held accountable for violating plaintiffs’ property rights because it was not clearly established, at the time of the destruction, that a property right existed.

In a suit for damages arising from unconstitutional action, a federal official is entitled to the qualified immunity in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). This entitlement is limited to the performance of discretionary functions and, as defendant Turner has pointed out, government officials are usually protected from civil liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396.

On summary judgment, this Court may determine, not only the current applicable law, but whether the law was clearly established at the time an action occurred. Harlow, at 818, 102 S.Ct. at 2738. Assuming arguendo, that the law was not clearly established at the time the results of the reconstruction panel were destroyed, defendant Turner’s defense of qualified immunity should be sustained. But as the Harlow court also emphasized “[ijmmunity generally is available only to officials performing discretionary functions” (emphasis added). Id, at 816, 102 S.Ct. at 2737. The parties cannot agree as to how to characterize the directive defendant Turner received from DARCOM. The Court has read the affidavits, depositions and exhibits submitted and finds that an issue of material fact still exists; whether the creation of the reconstruction panel was mandatory or discretionary under the circumstances in which the directive was given. The Court believes that the interpretation and application of the DARCOM directive is a question of fact requiring resolution by a jury.

Therefore,

IT IS HEREBY ORDERED that defendant Turner’s motion to dismiss or for summary judgment be and is DENIED.


author: POLOZOLA, District Judge.

text:
    DeSOTO GENERAL HOSPITAL, et al. v. Margaret M. HECKLER, et al.
    No. CA 83-1050-B.
    United States District Court, M.D. Louisiana.
    June 20, 1984.
   POLOZOLA, District Judge.

This matter is before the Court on cross-motions for summary judgment. Oral argument was heard on these motions on December 14, 1983.

The Court finds that the regulation regarding reimbursement for malpractice costs (the “Malpractice Rule”), § 405.-452(b)(l)(ii), promulgated by the Secretary of Health, Education, and Welfare (now the Department of Health and Human Services), is arbitrary and capricious under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706(2)(A). The Court adopts the reasoning set forth in Lloyd Noland Hospital and Clinic v. Heckler, 619 F.Supp. 1 (N.D.Ala. 1984); Bedford County Memorial Hospital v. Heckler, 583 F.Supp. 367 (W.D.Va.1984); St. James Hospital v. Heckler, 579 F.Supp. 757 (N.D.Ill.1984); Abington Memorial Hospital v. Heckler, 576 F.Supp. 1081 (E.D.Pa.1983), and Mt. Carmel Mercy Hospital v. Heckler, 581 F.Supp. 1311 (E.D.Mich.1983).

The Court expresses no opinion at this time as to whether or not the regulation was promulgated in a manner inconsistent with the notice and comment procedures of the APA, 5 U.S.C. § 553.

In addition, the Court does not reach the question of whether the Malpractice Rule is substantively invalid because the rule fails to reimburse reasonable costs and allegedly results in the shifting of Medicare costs to non-Medieare patients.

The Court reserves the right to assign additional written reasons at a later date.

Therefore:

IT IS ORDERED that the plaintiffs’ motion for summary judgment be, and it is hereby GRANTED.

IT IS FURTHER ORDERED that the defendant’s motion for summary judgment be, and it is hereby DENIED.

IT IS FURTHER ORDERED that this matter be, and it is hereby remanded to the Secretary for further consideration in accordance with this opinion.

IT IS FURTHER ORDERED that judgment shall be entered accordingly.


author: HUGH GIBSON, District Judge.

text:
    Juanita Z. HALL and Jerry H. Hall v. AMOCO OIL COMPANY.
    Civ. A. No. G-83-275.
    United States District Court, S.D. Texas, Galveston Division.
    Sept. 6, 1984.

      Arthur Sadin, Schechter, Eisenman & Solar, Galveston, Tex., for plaintiffs.
    Ervin A. Apffel, Jr., McLeod, Alexander, Powel & Apffel, Galveston, Tex., for defendant.
   AMENDED MEMORANDUM AND ORDER

HUGH GIBSON, District Judge.

Before the Court is plaintiffs’ motion for leave to amend their complaint. Plaintiffs seek to include in their complaint a cause of action based on ultra-hazardous activity, nuisance, trespass; and a claim for punitive damages.

Plaintiffs, Juanita Hall and Jerry Hall, sue defendant Amoco Oil Company, a Maryland corporation, for personal injury and property damage as a result of an explosion which occurred on or about November 5, 1982, at an Amoco refinery in Texas City. Jurisdiction is based on diversity of citizenship, and therefore, Texas tort law will apply.

In order to consider plaintiffs’ motion to amend their complaint, the Court must determine whether plaintiffs’ allegations support a cause of action based on trespass, nuisance, ultrahazardous activity, or gross negligence for the purpose of claiming punitive damages.

I. TRESPASS

Plaintiffs alleged that a cause of action for trespass exists by means of the concussion and gases that entered their home. This Court finds no basis for such claim. In explosion and blasting cases, with regard to all other damages except those cause by actual physical trespass, the Courts of Texas are committed to the rule that liability must be predicated upon negligence. Hood v. Laning 415 S.W.2d 953 (Tex.Civ.App. — San Antonio 1967), no writ, citing Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221 (1936); Klostermann v. Houston Geophysical Co., Tex. Civ.App., 315 S.W.2d 664, (1958) writ ref'd; Standolind Oil & Gas Co. v. Lambert, Tex.Civ.App., 222 S.W.2d 125 (1949), no writ.

II. ULTRAHAZARDOUS ACTIVITY

Strict liability can be imposed upon one who carries on an abnormally dangerous activity although he has exercised the utmost care to prevent harm. RESTATEMENT (second) OF TORTS § 519 (1977). This rule of strict liability, first announced in the English case of Rylands v. Fletcher , has been rejected in Texas. Turner v. Big Lake Oil Co., supra. Where the activity involves the use and storage of explosives, liability must be predicated on negligence. Dellinger v. Skelly Oil Co., 236 S.W.2d 675 (Tex.Civ.App. — Eastland 1951), writ ref'd n.r.e.; Stephens Trucking Co. v. Kemp, 560 S.W.2d 523 (Tex.Civ.App.—Ft. Worth 1977), no writ; 25 TEX.JUR.2d 69 (1961 & Supp.1983).

Determining whether an activity is abnormally dangerous is a function of the court, based on the following factors:

1) the degree of risk, and the likelihood of harm;
2) the inability to eliminate the risk by exercising reasonable care;
3) the extent to which the activity is not a matter of common usage;
4) the inappropriateness of the activity to the place where it is carried out; and
5) the value of the activity to the community compared to its dangerous attributes.

RESTATEMENT (Second) OF TORTS § 520 and Comment 1 (1977).

Having considered these factors, the Court concludes that the operation of an oil refinery in an industrial community such as Texas City does not constitute an ultrahazardous activity.

III. NUISANCE

Strict liability based on ultrahazardous activity is also frequently applied by courts under the name of “absolute nuisance”, or “nuisance per se”. RESTATEMENT (Second) OF TORTS, § 520, comment C; PROSSER, LAW OF TORTS, 4th Ed. (1971) at 582. The operation of oil refineries in Texas does not constitute a nuisance per se. 41 TEX.JUR.2d 604 (1963 & Supp.1983), citing McDonald v. Home Oil Corporation, 241 S.W. 274 (Tex.Civ. App.—San Antonio, 1922), no writ. Therefore, plaintiffs’ sole basis for their claim must be negligence. Similarly, in Stanolind Oil & Gas Company v. Smith, 290 S.W.2d 696 (Tex.Civ.App. — Beaumont 1956), no writ, the Court uses the following language:

“ ‘... [WJhere the act or condition in question can become a nuisance only by reason of the negligent manner in which it is performed or permitted, no right of recovery is shown independently of the existence of negligence.’ ”

Stanolind Oil & Gas Co., Id. at 699, quoting Columbian Carbon Co. v. Tholen, 199 S.W.2d 825, 828 (Tex.Civ.App. — Galveston 1947), writ ref'd.

IV. PUNITIVE DAMAGES

Although plaintiffs have not advanced any basis for their added theories of liability, they are not precluded from proving punitive damages based on gross negligence.

Accordingly, it is ORDERED that:

1) Plaintiffs’ motion for leave to amend their complaint is GRANTED only as to their claim for punitive damages; and

2) Plaintiffs’ claims based on trespass, nuisance, and ultrahazardous activity be stricken from the amended complaint.

       L.R. 3 H.L. 330 (1868)


author: DAUGHERTY, District Judge.

text:
    Raymond Herschel JOHNSON, Plaintiff, v. Ms. Roberta RICHARDS (L.P.N.) and Mr. Joe Beasley (Physical Ass’t.), Defendants.
    No. Civ-84-2242-D.
    United States District Court, W.D. Oklahoma.
    Sept. 25, 1984.
    Raymond Herschel Johnson, pro se.
    Michael C. Turpén, Atty. Gen. by Jane F. Wheeler, Asst. Atty. Gen., Oklahoma City, Okl., for defendants.
   ORDER

DAUGHERTY, District Judge.

Plaintiff has been permitted to file herein, in forma pauperis, his pro se civil rights complaint pursuant to 42 U.S.C. § 1983, seeking to invoke the jurisdiction of this court under 28 U.S.C. § 1343(3). In his complaint, he names as defendants the licensed practical nurse and physician’s assistant responsible for the “pill line” at the Joseph Harp Correctional Center, Lexington, Oklahoma, where plaintiff is incarcerated.

The records of the office of the Clerk of this Court indicate that plaintiff has filed seven previous civil rights actions in the past five years and that this is the fourth such action filed by him in 1984. In no instance has plaintiffs complaint been found meritorious, and in several instances, he has been denied the right to proceed on appeal in forma pauperis, as it has been found that his appeal would not be taken in good faith.

Plaintiffs complaint is lengthy, consisting of largely disconnected, irrelevant statements, Biblical references and inappropriate legal conclusions, in English and in Latin. This complaint is not unlike plaintiffs previous complaints, in that, to the extent that it is intelligible, it consists largely of conclusory assertions without supporting factual allegations. Such conclusory allegations may be disregarded and pleadings based thereon may be dismissed without a hearing. Lorraine v. United States, 444 F.2d 1 (10th Cir.1971); Brice v. Day, 604 F.2d 664 (10th Cir.1979), cert. denied, 444 U.S. 1086, 100 S.Ct. 1045, 62 L.Ed.2d 772 (1980); Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981).

The Civil Rights Act was not enacted to permit prisoners to discipline or harass prison or local law enforcement officials. Wise v. Bravo, supra; Atkins v. Lanning, 556 F.2d 485 (10th Cir.1977); Wells v. Ward, 470 F.2d 1185 (10th Cir. 1972). As the court stated in Wise v. Bravo, supra:

“It is. only if the misuse of legal procedure is so egregious as to subject the aggrieved individual to a deprivation of constitutional dimensions, and the tortfeasor is acting under color of state law, that § 1983 may be employed. Norton v. Liddel 620 F.2d 1375 (10th Cir.1980).”

Plaintiff styles each of the three counts in his complaint “racial discrimination,” but the substance of his complaint is apparently that, on at least one occasion, he was late for the “pill line” and did not receive his heart medication. He also appears to complain that he was similarly denied a liquid antacid which had been prescribed for him on another occasion. His claim of discrimination is apparently based upon his statement that a white inmate had received his medication “with no hassle at all” and that another white inmate had certain medication delivered to him.

In this court’s view, plaintiff’s complaint does not state a claim of constitutional deprivation upon which relief can be granted. Clearly, plaintiff’s assertions, even if proven, would not constitute “cruel and unusual punishment” in violation of the Eighth Amendment. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the court stated:

“In order to state a cognizable [Eighth Amendment] claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. at 106.

The Tenth Circuit has also held that a mere difference of opinion as to treatment or diagnosis between the prisoner and medical personnel of the prison is not a constitutional violation cognizable under § 1983. Smart v. Villar, 547 F.2d 112 (10th Cir.1976).

Plaintiff makes no allegation whatever of any injury to him by reason of the alleged refusal by the defendants to dispense medication other than through the established “pill line” procedure.

It is not the function of the federal courts to engage in day-to-day supervision of State correctional institutions. That function is best left to professionals in the field. In the absence of an abuse of discretion on the part of such experts, rising to the level of a constitutional deprivation, the federal courts will not intervene. Marchesani v. McCune, 531 F.2d 459 (10th Cir. 1976).

Even though plaintiff has been permitted to commence his action informa pauperis, it is entirely appropriate for the court to dismiss it at any time it is found to be frivolous or malicious. Duhart v. Carlson, 469 F.2d 471 (10th Cir.1972), cert. denied, 410 U.S. 958, 93 S.Ct. 1431, 35 L.Ed.2d 692. Dismissal may be based upon frivolity if it is found that plaintiff can make no showing on the facts or the applicable law upon which his claim could be granted. Bennett v. Passic, 545 F.2d 1260 (10th Cir.1976).

In this court’s opinion, viewed in the light of that test, plaintiff’s complaint is clearly frivolous and should be summarily dismissed.

IT IS SO ORDERED.