author: FLANNERY, District Judge.

text:
    ALASKA EXCURSION CRUISES, INC., Plaintiff, v. UNITED STATES of America, et al., Defendants. (Two Cases)
    Civ. A. Nos. 83-2366, 85-0889.
    United States District Court, District of Columbia.
    May 3, 1985.

      John H. Meade, Hill, Betts and Nash, Washington, D.C., for plaintiff.
    Sp. Asst. U.S. Atty. Lois R. Zuckerman, Washington, D.C., for defendants.
    Stuart S. Dye, Graham and James, Washington, D.C., for defendant-intervenor Westours, Inc.
   MEMORANDUM

FLANNERY, District Judge.

These consolidated cases come before the court on the parties’ cross-motions for summary judgment. No. 83-2366 (the “Marad case”) involves a challenge by Alaska Excursion Cruises, Inc. (“AEC”) to the approval by the U.S. Maritime Commission (“Marad”) of a “bareboat charter” to defendant-intervenor Westours, Inc. (“West-ours”), a foreign corporation, to operate the vessel the GLACIER QUEEN in the U.S. coastwise trade. In addition to challenging the approval of the bareboat charter, AEC also challenges Marad’s interpretation of that charter to allow Westours to operate a harbor tour service in Alaska’s Skagway harbor in direct competition with plaintiff’s harbor tour service. AEC contends that the charter allows only passenger service and that Marad’s interpretation of the charter is arbitrary and capricious.

In No. 84-0889 (the “Coast Guard case”), AEC challenges the ■ United States Coast Guard’s documentation of the GLACIER QUEEN as American-owned. . AEC contends that the Coast Guard’s initial decision to document the vessel as American-owned was arbitrary and capricious, and alleges that the Coast Guard’s subsequent refusal to open an investigation into the ownership of the GLACIER QUEEN in the face of evidence which AEC claims to show that the vessel is in fact owned by Westours was also arbitrary and capricious.

For the reasons discussed herein, the plaintiffs’ motions for summary judgment shall be denied, and the motions of defendants United States Coast Guard and Marad and defendant-intervenor Westours for summary judgment shall be granted.

I. Background

The procedural history of these consolidated cases is laid out in detail- in this court’s previous Memorandum. See Alaska Excursion Cruises, Inc. v. United States of America, 603 F.Supp. 541, 543-544 (D.D.C.1984). At that time, the court consolidated these cases, limited AEC’s standing to challenge defendants’ actions with respect to vessels other than the GLACIER QUEEN, upheld the authority of Marad and the Coast Guard to approve foreign operation of American-owned vessels, and granted AEC’s motions to amend its complaints so that the court could consider the issue of ownership of the GLACIER QUEEN. Id. at 544. The latter issue, as well as the propriety of Marad’s interpretation of the GLACIER QUEEN charter order as permitting a harbor tour, are the only issues still to be addressed.

As a non-U.S. citizen, as defined in section 2 of the Shipping Act of 1916, 46 U.S.C. § 802 (“section 2”), Westours is barred from owning a U.S.-flag vessel for operation in the domestic coastwise trade. 46 U.S.C. §§ 289, 883. Because Westours could not qualify as a U.S. citizen under section 2, it devised a scheme whereby the GLACIER QUEEN would be purchased by its bank, the Peoples National Bank of Washington (“PNBW”), a U.S. citizen under section 2, and then bareboat chartered by PNBW back to Westours. This agreement was conditioned on approval by Mar-ad of the bareboat charter by PNBW to Westours, as required for the transfer or lease of any vessel owned by a U.S. citizen to an alien. Section 9 of the Shipping Act of 1916, 46 U.S.C. § 808 (“section 9”).

Under the bareboat charter, Westours has exclusive possession and control of the vessel for an initial seven-year term, after which Westours has a yearly option to renew the charter for up to ten more years. PNBW neither warranted the GLACIER QUEEN’s seaworthiness nor warranted that the vessel was free of title defects that might hinder Westours’ use under the bareboat charter. Westours is obligated to maintain and pay for the vessel’s documentation, pay all maintenance and repair costs, pay virtually all taxes, obtain and pay for protection, indemnity, and hull insurance, and indemnify PNBW for all claims arising from the use of the GLACIER QUEEN. In the case of a total loss of the vessel, Westours is obligated to pay the charter hire, stipulated loss value and interest to PNBW, but would be allowed to keep all insurance proceeds that exceed that total amount. PNBW receives all tax benefits, and, in the event that tax benefits are recaptured, Westours is obligated to reimburse PNBW for the recaptured amount.

The terms of this arrangement between Westours and its bank, and the purpose for which PNBW sought to purchase the GLACIER QUEEN, were known to both the Coast Guard and Marad at the time that the GLACIER QUEEN was documented as American-owned and the bareboat charter to Westours was approved. Marad contends that its decision to approve the bare-boat charter under section 9 was a proper exercise of its discretion to permit foreign operation of U.S.-flag vessels in the domestic coastwise trade, and that the terms of the charter were neither unusual nor sufficient to constitute a transfer of “ownership.” Indeed, counsel for the government contended at oral argument that he could not theorize any situation in which a bareboat charter could transfer “ownership.”

The Coast Guard’s position is that absent some irregularity on the face of the application for documentation, there is no duty to investigate the ownership of a vessel. Here, the chain of title indicated that the GLACIER QUEEN had never been owned by an alien. Further, there was no evidence of alien control of any of the present or prior titleholders of the vessel. Defendants argue that the Coast Guard has no duty to ensure that a bareboat charter approved by Marad under section 9 does not transfer too much control over a U.S.-flag vessel to a non-citizen.

II. Discussion

Neither Marad’s decision to approve the bareboat charter to Westours nor the Coast Guard’s decision to document the GLACIER QUEEN as American-owned can be successfully challenged unless it can be said that the transaction between Westours and PNBW vested so many of the “indicia of ownership” in Westours that either Westours became the de facto owner of the GLACIER QUEEN or PNBW could not be deemed the “sole” owner of the vessel. In other words, only if the bareboat charter between Westours and PNBW can be deemed a transfer of “ownership” to a noncitizen for domestic coastwise operation can the government’s decisions be deemed arbitrary and capricious or not in accordance with law.

As a threshold matter, it is necessary to address the contention that so long as legal title of a U.S.-flag vessel is vested in a bona fide American corporation which bears no trust or other fiduciary obligations to an alien, Marad is free to approve any nature of a charter or lease arrangement with a noncitizen, and the Coast Guard is required to grant that arrangement its imprimatur, provided that that arrangement does not contemplate that legal title will ultimately vest in the noncitizen. Based on the meaning and intent of the Shipping Act, however, the court is unable to accept the position that the location of legal title is dispositive for purposes of determining ownership of a U.S.-flag vessel.

The statutory scheme regulating the relationship between noncitizens and the U.S. shipping industry and its underlying legislative history indicate a concern that foreign interests might somehow obtain clandestine control over the U.S. shipping industry and merchant marine, with the result that U.S.-flag vessels would not be readily available in times of national emergency. See Meacham Corp. v. United States, 207 F.2d 535, 542-43 (4th Cir.1953); H.R.Rep. No. 568, 65th Cong., 2d Sess. 4 (1918); S.Rep. No. 536, 65th Cong., 2d Sess. 3-4 (1918); 56 Cong.Rec. 8029, 8032 (1918). To assauge this fear, and, at least in part, to protect American shipping interests from foreign competition, Congress determined that only U.S. citizens could own U.S.-flag vessels operating in the domestic trade, and imposed restrictions on the extent to which aliens could become involved with American corporations before those corporations would lose their status as “U.S. citizens.” See Meacham, supra. Although noncitizens could operate U.S.-flag vessels in the domestic coastwise trade, they could do so only after obtaining Marad’s approval. The issue, then, is whether Congress simply intended to preclude transfer of legal title to aliens who are operating U.S. vessels in the domestic coastwise trade, as defendants contend, or whether Congress also intended to prevent de facto ownership by aliens of those vessels. In light of the congressional intent to bar foreign control of the American merchant marine, and the lengths to which Congress went to insure that aliens would not gain control of U.S. vessels through interests in American corporations, the court is unable to conclude that defendants’ elevation of form over substance is a satisfactory approach to the agencies’ duties under the Shipping Act. Marad cannot sanction under section 9 a bareboat charter that would vest de facto ownership in an alien who could not hold legal title under section 2. Similarly, the Coast Guard has the authority to refuse documentation of a vessel if the foreign control over that vessel is so complete as to constitute de facto foreign ownership. Indeed, the Coast Guard has in the past recognized its duty to refuse documentation when the underlying transaction and subsequent agreements between the “owner” and the charterer are such that it can be said that the titleholder is not the “true” owner. See Memorandum of Points and Authorities in Support of Alaska Excursion Cruises, Inc.’s Motion for Summary Judgment, Shell case, Exhibit 12 at 1 [hereinafter cited as “Shell case”]. Moreover, the Coast Guard cannot avoid this duty to refuse or rescind vessel documentation of a vessel “owned” by a noncitizen simply because the foreign control derives from a charter approved by Marad under section 9. Both agencies have a responsibility to ensure that noncitizens do not become owners — either by obtaining title, or through a sale-leaseback or a bareboat charter arrangement — of U.S.-flag vessels when such ownership would be prohibited by the Shipping Act. Because the court cannot agree that it is impossible for a bareboat charter to transfer “ownership” for purposes of the restrictions on foreign ownership in the Shipping Act, the challenged actions cannot be upheld simply because legal title remained with PNBW.

Legal title, therefore, is not dispositive of the issue of ownership under the Shipping Act. The court thus turns to whether the determination by the Coast Guard and Marad that this bareboat charter did not transfer ownership to a noncitizen was arbitrary or capricious. After careful consideration of the terms and conditions of the bareboat charter, particularly in comparison with the terms of the charter under which vessel documentation was rejected in the Shell case, supra, the court is unable to hold that defendants’ conclusion that the terms of the transaction did not render Westours the “owner” of the GLACIER QUEEN within the meaning or intent of the Shipping Act was arbitrary or capricious.

Aside from the individual terms of the charter itself, plaintiff points to the purpose of the transaction by which PNBW became the titleholder of the GLACIER QUEEN and several statements made by Westours to AEC and to Marad and the Coast Guard as indicative of the vessel’s true “ownership.” As both Marad and the Coast Guard recognized, the only reason that PNBW agreed to purchase the GLACIER QUEEN was to bareboat charter it to Westours, allowing Westours to avoid the bar to foreign ownership. There is nothing insidious, however, about purchasing a vessel with the intent of chartering it for operation by a noncitizen corporation which could not own the vessel in its own right. Nothing in the Shipping Act precludes a U.S. citizen from buying a vessel for the sole purpose of chartering it to another person, even if the U.S. owner never intends to operate the vessel itself, so long as Marad’s approval is obtained prior to leasing the vessel to a noncitizen. See 46 U.S.C. §§ 289, 802, 808; Alaska Excursion Cruises, Inc. v. United States of America, 603 F.Supp. 541, 548 (D.D.C.1984); Alaska Excursion Cruises, Inc. v. United States, 595 F.Supp. 14, 16 (D.D.C. 1984). In sum, while control by a noncitizen under a bareboat charter is not per se legal simply because title remains in a bona fide U.S. citizen, a bareboat charter to a noncitizen is not per se illegal simply because such an arrangement typically transfers a considerable degree of control over the chartered vessel. The particular terms and conditions of the bareboat charter will indicate whether so many of the indicia of ownership have been transferred that the charterer has become the “owner” for purposes of the Shipping Act.

AEC also places considerable emphasis on the designation of the owner and its address as “Peoples National Bank of Washington, c/o Westours,” with West-ours’ Juneau, Alaska address, in the documents submitted to the Coast Guard for vessel documentation. Given Westours’ obligation to maintain current documentation for the GLACIER QUEEN, and the Coast Guard’s own regulations which permit home-port designation to be made on the basis of the charterer’s address rather than that of the owner in the case of a long-term bareboat charter, 46 C.F.R. §§ 67.45-5, 67.13-3 (1984), the designation of PNBW’s address as “c/o Westours” does not appear particularly significant. Similarly insignificant is Westours’ willingness to engage in negotiations for the sale of the GLACIER QUEEN with AEC, rather than referring AEC to PNBW. Clearly, the language used by Westours in its correspondance with AEC is what one would expect in negotiations between an owner and a prospective buyer. However, the legal status of Westours’ interest in the GLACIER QUEEN cannot be determined on the basis of inartful language in a letter from one of Westours’ officers.

Individually, these factors are clearly insufficient to demonstrate that Westours is the de facto “owner” of the GLACIER QUEEN. Even in conjunction with the terms of the bareboat charter, however, they provide evidence which is insufficient to establish that the bareboat charter worked a transfer of ownership of the vessel such that approval of the charter by Marad and vessel documentation by the Coast Guard violated the Shipping Act as a matter of law.

Considerable emphasis has been placed on the Coast Guard’s decision in the Shell case, supra, to refuse to document vessels sold by a foreign corporation to U.S. corporations and then chartered back to the foreign corporation. Although the transaction involved a transfer of legal title, such that the U.S. corporations would have been the legal “owners” of the vessels, the Coast Guard concluded that the sales and the charters, taken as a whole, allowed the foreign corporation to retain so much control that it could also be considered an “owner.” Like PNBW, the U.S. firms divested themselves of almost all control over the vessels, with their primary functions being to furnish their names as titleholders and to act as financing intermediaries. In looking to the “substance” of the transaction rather than its “form,” the Coast Guard determined that Shell, the foreign corporation, must be viewed as an' owner for purposes of the Shipping Act.

The presence of the foreign corporation in the chain of title of the tankers is an insufficient basis to distinguish the Shell case from the case at bar. The charter arrangement itself, however, contains elements which indicate that the American titleholders of the vessels in Shell were to obtain significantly less of an interest in the tankers than PNBW obtained in the GLACIER QUEEN. Most significant are Shell’s unilateral right to extend the charter indefinitely or terminate it and buy the tankers back at any time, as well as Shell’s obligation to buy them back at the termination of the charter for a sum which was anticipated to be substantially less than the fair market value of the vessels. Under the PNBW-Westours charter, in contrast, PNBW retains several important rights, including reversion to the bank at the expiration of the charter, which constitutes an absolute right to the GLACIER QUEEN at the end of as little as seven or no more than seventeen years. Further, PNBW retains all tax benefits which result from ownership, and may require Westours to reimburse it if tax benefits are recaptured. Westours has no right to assign its charter to a third party without PNBW’s consent; nor can Westours terminate the charter for seven years. Finally, unlike the Shell case, where the American corporations were set up solely to take title for the foreign corporation, it cannot be said here that PNBW is a mere “front” for Westours. Instead, the bareboat charter negotiated between West-ours and its bank was an arms-length transaction in which, it may be assumed, PNBW extracted what it believed to be a reasonable profit for its participation, just as any American owner would extract a reasonable profit from a bareboat charter of its vessel.

Just as PNBW retained rights in the GLACIER QUEEN that would be expected of an owner, Westours’ rights and obligations are limited in several significant ways to those one would expect of a charterer. Westours does not have the right to extend the charter indefinitely. At the end of the term of the charter, which Westours may terminate after seven years or yearly thereafter, and which terminates of its own terms after seventeen years, Westours has neither the right nor the obligation to purchase the GLACIER QUEEN. Westours has no right to terminate the charter prior to the expiration of the initial seven-year term. Finally, Westours has no right to demand that PNBW pass the investment tax credits on to Westours.

It is unnecessary for the court to determine precisely which of the factors present in the Shell case would convert the transaction between Westours and PNBW into a transfer of ownership for purposes of the Shipping Act. That determination is within the jurisdiction of Marad and the Coast Guard. Those agencies may well determine that the Shell case represents the threshold beyond which a titleholder can no longer be said to be the “sole” owner of a U.S.-flag vessel. Instead, they may decide that the PNBW-Westours charter represents the most that a titleholder can transfer to a charterer before the charterer is also deemed an owner under the Shipping Act, or they may decide that the line between a sale and a charter lies somewhere between the Shell case and the PNBW-Westours arrangement. Although the court rejects the argument that those agencies lack the duty to prevent approval or documentation of transfers which result in de facto ownership by a noncitizen, the court is unable to conclude that the bare-boat charter between Westours and PNBW transformed Westours from a charterer to a de facto owner as a matter of law. Wherever the line between a charterer and an owner is ultimately drawn, it is sufficient to conclude that the agencies have not acted arbitrarily or capriciously in determining that Westours has not crossed it.

For these reasons, the approval of the PNBW-Westours bareboat charter by Marad and the Coast Guard’s documentation of the GLACIER QUEEN as American-owned will be upheld. Similarly, the court is unable to conclude that the Coast Guard’s refusal to initiate an investigation into the ownership of the GLACIER QUEEN was arbitrary or capricious. See General Motors v. Federal Energy Regulatory Commission, 613 F.2d 939, 944 (D.C.Cir.1979).

In addition to challenging approval of the bareboat charter to Westours, AEC also challenges Marad’s approval of Westours’ February 11, 1983 request that the bare-boat charter be interpreted to allow the GLACIER QUEEN to engage in a local harbor tour service. Charter Order MA-5258 had approved the bareboat charter to Westours

of the passenger ferry GLACIER QUEEN____for the carriage of passengers with baggage — Prince William Sound between Valdez and Whittier, Alaska, and or Lynn Canal between Yankee Cove (35 miles north of Juneau, Alaska) and Skagway, Alaska.

On May 23, 1983, Marad agreed in principle with Westours that Charter Order Ma-5258 allowed expansion of the GLACIER QUEEN’s service to include a harbor tour as this proposed service came within the “geographic scope” of operations of Charter Order MA-5258. AEC challenges this conclusion on the ground that the plain meaning of the Charter Order was to allow the GLACIER QUEEN to be used as a “passenger ferry” to carry “passengers with baggage” across the Prince William Sound with “point-to-point” transportation between Valdez and Whittier, Alaska and/or along the Lynn Canal between Yankee Cove and Skagway, Alaska. AEC contends that the use of the term “passenger ferry” demonstrates that the Charter Order permitted only ferry transportation service within the specified geographic area, and not that Westours was granted general authority to conduct any type of service within the geographic limitations of MA-5258. Therefore, plaintiff contends, because the harbor tour service constituted a new service, it required a new approval and a new charter order. For the same reason, Marad’s reliance on its original justifications for approving MA-5258 was arbitrary and capricious and denied AEC its right to challenge the approval of the “new” service by Marad.

The court is unable to conclude, however, that Marad’s interpretation of the charter order was either unreasonable or clearly erroneous. Marad’s position is that the term “passenger ferry” does not describe the intended service of the vessel, but rather provides a classification of the GLACIER QUEEN to distinguish it from larger vessels that would include sleeping accommodations for the passengers. This interpretation is supported by the fact that the term “passenger ferry” is used only to describe the vessel and does not appear in the description of the service to which the GLACIER QUEEN is to be put. Therefore, the government’s position that reference to the vessel as a “passenger ferry” does not create a use limitation or imply that the vessel may be used only for point-to-point transportation and not for harbor tours does not appear to be irrational. By interpreting the charter order to describe the geographic area within which the GLACIER QUEEN could operate, rather than reading it to impose restrictions on how the vessel could be operated within that geographic area, Marad was exercising its discretion so as to allow Westours to adapt to the changing needs of the Alaska tourist market. Marad’s discretion in this regard is quite broad. Cf. Carolina Freight Carriers Corp. v. Interstate Commerce Comm’n, 627 F.2d 563, 565 (D.C.Cir.1980). In light of the reasonableness of this interpretation, Congress’ explicit recognition of the unique circumstances in southeastern Alaska, and Marad’s broad authority to regulate foreign operation of domestic vessels, AEC’s challenge to the agency’s interpretation of Charter Order MA-5258 must be rejected.

      . Marad, of course, could not approve a transfer of ownership of a U.S.-flag vessel to an alien for domestic operation, since only U.S. citizens may own U.S.-flag vessels operated in the domestic coastwise trade. 46 U.S.C. §§ 883, 888.

        . The authority to reject or rescind vessel documentation on the basis that a Marad-approved charter would, in effect, transfer “ownership” to a noncitizen would not "nullify” Marad's authority to approve bareboat charters, as defendants contend. Instead, Marad would only be constrained from approving those charters which transfer so many of the indicia of ownership as to vitiate the ban on foreign ownership of U.S.flag vessels.


source: Caselaw Access Project

author: DAVID S. NELSON, District Judge.

license: Public Domain

text:
    Jean HART, Admx., Plaintiff, v. Richard BOURQUE, Jr., et al., Defendants.
    Civ. A. No. 80-1909-N.
    United States District Court, D. Massachusetts.
    May 3, 1985.

      Althea Lloyd, Henry F. Owens III, Owens & Associates, Boston, Mass., for plaintiff.
    Robert Mueller, Asst. U.S. Atty., for U.S.A.
    Linda M. Irvin, Asst. Atty. Gen., Boston, Mass., for Newman Flanagan.
    Nicholas Foundas, Boston Police, Office of Com’r, Boston, Mass., for Jordan, White, City of Boston.
    Stephen P. Pearlmutter, Asst. Corp. Counsel, Boston, Mass., for Richard Bourque.
   MEMORANDUM AND ORDER

DAVID S. NELSON, District Judge.

Plaintiff, the mother of a teenager killed during an altercation with City of Boston Police officers, has moved for an award of attorney’s fees under 42 U.S.C. § 1988 following settlement of her civil rights action against the City and several individual defendants. After a painstaking review of voluminous documents, with the principles of, e.g., Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc); Furtado v. Bishop, 635 F.2d 915 (1st Cir.1980); and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) in mind, the court orders an award of $58,372.03, plus interest.

The court began its calculations of the amount due for compensation by determining the “lodestar”: the number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Plaintiff’s counsel supports his fee request with an itemized account of time expended in the preparation and prosecution of his claim. I have divided the itemized time into separately compensable categories: (1) court appearances and preparation therefor; (2) review and drafting of pleadings and memoranda, and depositions and preparation therefor; (3) conferences and substantive phone calls; (4) legal research; and (5) administrative and clerical tasks.

The court finds that the following respective numbers of hours were reasonably expended by members of the defense team:

(A) Henry F. Owens, III
1) 12.01 hours
2) 52.5 hours
3) 41.38 hours
4) 10.32 hours
5) zero hours
for a total of 116.21 hours;
(B) Joyce Wheeler Poulin
1) 4.5 hours
2) 63.75 hours
3) 5 hours
4) 19.5 hours
5) zero hours
for a total of 92.75 hours;
(C) Ellen K. Wade
1) 3.5 hours
2) 8.75 hours
3) 23.25 hours
4) 6 hours
5) 1 hour
for a total of 42.5 hours;
(D) David C. Casey
1) 1.87 hours
2) 4.25 hours
3) 1 hour
4) zero hours
5) zero hours
for a total of 7.12 hours;
(E) Daniel M. Satinsky
1) 2.5 hours
2) zero hours
3) 4 hours
4) 11.25 hours
5) .75 hours
for a total of 18.5 hours;
(F) Sherry S. Leibowitz
1) zero hours
2) 19 hours
3) 21 hours
4) 39 hours
5) zero hours
for a total of 79 hours; and
(G) Althea Lloyd
1) 7 hours
2) 118 hours
3) 69.5 hours
4) 59 hours
5) 1.25 hours
for a total of 254.75 hours.

Although the foregoing assessment takes into account the general categories of compensable time, the court did not give plaintiff’s counsel credit for the following categories of unnecessary time: that devoted to continuing legal education; that spent travelling; that spent on arrangements for lectures or publications about the case; or that spent doing extensive legal research when the parties were on the verge of reaching a settlement.

Moreover, the court was not inclined to compensate plaintiff for over 800 hours of time donated by law students and other local volunteers. This is not to say, however, that counsel were not compensated for time spent supervising or reviewing the work of these volunteers. It would be well to review two other objections raised by the defendants to the plaintiff’s counsel’s calculations. The first has to do with time spent on the claims against defendants City of Boston, former Mayor White, and Police Commissioner Jordan. Specifically, defendants argue that this time is noncompensable because plaintiff was not “successful” on these claims. This argument is seemingly rooted in the Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. at 440, 103 S.Ct. at 1943, that is, “[w]here plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claims should be excluded in considering the amount of reasonable fee.” The problem with defendants’ position is that the settlement in this case included all defendants. The cases which defendants cite are simply inapposite in that on their facts, the plaintiffs clearly prevailed against some defendants and not others. See e.g., Hensley v. Eckerhart, supra, Wojtkowski v. Cade, 725 F.2d 127, (1st Cir.1984).

The defendants also challenge the fee application on the grounds of what they characterize as overzealousness by inexperienced, young lawyers. In defendants’ view, the court should reduce the number of hours claimed by an across-the-board percentage which reflects seeming disorganization and “overkill” on the part of plaintiff’s representatives. The court is not inclined to adopt such an approach. To do so might run the risk of either penalizing aggressive advocacy practiced by young lawyers or penalizing growing law firms, the membership and philosophies of which are in transition. To the extent that particular actions of plaintiff’s counsel were unreasonable, the court’s calculation of compensable hours so reflects.

The next step in establishing an appropriate fee award is to determine the reasonable hourly rate. The court must consider the prevailing market rates in the relevant community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum v. Stenson, — U.S. -, -n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984); Grendel’s Den v. Larkin, 749 F.2d 945, 955 (1st Cir.1984). In determining the relevant community, courts have turned their evaluation to the immediate geographic area and to the attorney’s own prior record of charges. Id. at 955-56. In the instant case, Mr. Owens has stated in general terms that his fees have ranged from $105 to $125 per hour and $75 to $125 for his associates. This court also notes that the current billing rates for the “highest partners” in thirteen of Boston’s leading firms ranged from $80 to $225 per hour. Id. (citing The American Lawyer Guide to Leading Law Firms, (1983 Edition)). Keeping in mind that the time period involved here begins long before 1983 and that the lawyers’ hourly rates have been varied according to the type of service performed, the court finds the following rates for the respective categories of work reasonable: 1) Mr. Owens, $125 per hour for court appearances and preparation therefor, $115 per hour for review and drafting of pleadings and memoranda and depositions and preparation therefor, $105 per hour for conferences and substantive phone calls, $95 per hour for legal research, and $60 per hour for administrative and clerical tasks. As for the associates, who are of similar background and experience, the court finds $75, 65, 60, 50, and 35 per hour, per respective category, to be reasonable. The “lodestar” figure for Mr. Owens’ services is thus $12,864.05; for Ms. Poulen, $5,756.25, for Ms. Wade, $2,561.25; for Mr. Casey, $476.50; for Mr. Satinsky, $1,016.25; for Ms. Leibowitz, $4,445; and for Ms. Lloyd, $15,358.75.

Plaintiff has also requested an upward adjustment in the “lodestar” figure to reflect, for example, the undesirability of the case and the contingency of the recovery. Defendants’ object to an upward adjustment because, in their opinion, the case was neither undesirable nor terribly uncertain in result since there was considerable damaging evidence against the police officers involved.

The court does not share defendants’ assessment of this case. Plaintiff and her counsel faced an uphill battle from the institution of this action, and fought that battle in a very hostile environment. Indeed, Mr. Owens received death threats, turned down and, in some instances, lost profitable work in order to pursue his client’s claims. Moreover, he was willing to engage in this pursuit at his own considerable expense. Blum v. Stenson, did recognize that an enhanced award may be justified in the “rare case” where the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates and the success was exceptional. See Garrity v. Sununu, 752 F.2d 727, 739 (1st Cir.1984). Moreover, the option to adjust the lodestar may be appropriate to compensate attorneys for taking on particularly complex cases with an unusually high risk that no recovery will result. Copeland v. Marshall, 641 F.2d 880, 892-893 (D.C.Cir.1980) (en banc). The Supreme Court, however, has cautioned against upward adjustments inasmuch as the product of reasonable hours times a reasonable rate normally provides a reasonable fee within the meaning of the statute. See Hensley v. Eckerhart, supra; Blum v. Stenson, — U.S. at -, 104 S.Ct. at 1548.

More recently, the First Circuit Court of Appeals recognized an upward adjustment on the rare occasion “where the legal representation is unusually good and exceptional results are obtained.” Garrity v. Sununu, supra at 738. The instant case presents such a “rare” case in that its undesirability and contingency nature are in no way subsumed within other factors used to calculate the reasonable fee. The court finds that an upward adjustment factor of .20 is appropriate bringing the reasonable fee in this case to $50,973.66.

In addition, the court finds $7,398.37 in expenses and costs, reflecting all but the costs of Probate Court filing fees, funeral costs, and travel costs and expenses, to be reasonably compensable.

Accordingly, defendants Richard W. Bourque, Richard Roe, John Smith, Joseph Jordan, Kevin White and Newman Flanagan are directed to pay to the plaintiff the amount of $58,372.03, plus interest.

      . See Nadeau v. Helgemore, 581 F.2d 275 (1st Cir.1978) (settlement or consent decree entitles plaintiffs to attorney's fees).

      . Affidavits have been submitted by each party in support and in opposition to the plaintiff’s fee claim. Attorney Michael Avery, who had three years’ less experience than Mr. Owens, stated that his normal rate was $100 per hour. Attorney Lawrence F. O’Donnell, with more experience than Mr. Owens, stated that he charged $200 per hour and $75 per hour for his associate. He added that plaintiff’s proposed rates were "entirely fair and reasonable" and suggested that Mr. Owens charge at a rate of $125 to $175 an hour for his services.

      . Defendants contend that any upward adjustment in the lodestar will result in a "double recovery.” Both Owens' and his associates’ average hourly rates of $104 and $57 are below the going market rate. Adding the 20 percent upward adjustment to these rates makes them $124.8 and $68.4, still within the range of the rates indicated in both parties’ supporting affidavits. See note 2, supra.


author: BUCHMEYER, District Judge.

text:
    Richard M. WAGNER, Plaintiff, v. Carl THOMAS, et al., Defendants.
    No. CA 3-81-0075-R.
    United States District Court, N.D. Texas, Dallas Division.
    May 8, 1985.

      Tom S. Leatherbury, Locke, Purnell, Boren, Laney and Neely, Dallas, Tex., for plaintiff.
    Peter Harlan and J. Steven Bush, Asst. Dist. Attys., Frank Betancourt, DeHay & Blanchard, Dallas, Tex., for defendants.
   MEMORANDUM OPINION

BUCHMEYER, District Judge.

This is a suit brought under 42 U.S.C. § 1983 by a former inmate of the Dallas County Jail. It involves dirty books and dirty looks.

As to dirty books, the plaintiff claims that his constitutional rights were violated because the jail officials would not permit him to look at pictures of nude females in a magazine, Easyriders (“Entertainment for Adult Bikers”). As to dirty looks, the plaintiff claims that his constitutional rights were violated because female deputies could see his nude body during a random “strip search” of all inmates in his tank.

The case was fully tried. The evidence establishes that the plaintiff’s claims are baseless. Accordingly, for the following reasons, the case is dismissed with prejudice.

1. FACTUAL BACKGROUND

The plaintiff, Richard Wagner, was convicted of a felony, the unauthorized use of a motor vehicle. On March 7, 1980, he was sentenced to serve 2-4 years in the Texas Department of Corrections. However, while his criminal case was on appeal, Wagner remained in the Dallas County Jail— and was there at all times relevant to this suit.

The defendants include Dallas County, two past sheriffs of Dallas County (Carl Thomas, Don Byrd), and several other employees of the Sheriffs Department who were involved in the administration and the day-to-day operation of the Dallas County Jail.

а. Dirty Books

The Dallas County Jail has a “publisher-only” rule, which also regulates the contents of books and magazines that an inmate may receive. It provides:

“Inmates may receive pre-paid subscription magazines and books that do not depict nudity, pander to sexual interest, advocate racial prejudice or present a security threat to the jail.
“a. Inmates should consult the Jail Commander prior to subscribing to a magazine or book in order to determine the acceptability of a particular publication.
“b. All magazines and books must be received directly from the publisher or authorized distributor.”

The plaintiff Wagner was aware of this jail regulation. However, at his request, Wagner’s mother sent him a copy of the February 1982 issue of Easyriders (“Entertainment for Adult Bikers”) by certified mail, return receipt requested. On the cover of this issue (Pl.Exh. 9), there was a picture of part of the body of an attractive female, wearing only cut-offs which were scanty and open at the top. On pages 54-59, there was a four-page “spread” of mostly nude pictures of this same female, showing her naked breasts, her buttocks, her genitals (one picture only), and her tatoo (five pictures). On pages 72-73, there was a regular monthly feature, the “Ol' Lady Contest," which contained amateur photos of ten different females; some of these females were clothed, but there were four with naked breasts, one with genitals exposed, and another with naked breasts and an even more impressive and prominently displayed tatoo than that of the cover girl. The rest of the 130-page issue was devoted to other material presumably of interest to “bikers.”

Jail officials refused to permit Wagner to have this copy of Easyriders because it was not “received directly from the publisher or authorized distributor” — and because they deemed it detrimental to jail security because it contained pictures of nude females. Wagner claims that this violated his rights under the First Amendment, and he seeks $2,500 in damages.

b. Dirty Looks

The Dallas County Jail has a rule concerning the five types of searches — “pat search, frisk search, strip search, body cavity search, and electronic scan search”— that it conducts with respect to the inmates. The portions dealing with strip searches provide:

“STRIP SEARCH: The inmate is instructed to remove all clothing and the deputy makes a visual inspection of all parts of the body. This included a visual inspection of the exterior portions of body cavities, but does not involve touching or extracting contraband from body cavities.
“Inmates may be subject to a strip search during the following occasions:
“a. Immediately upon being received at the male or female Clothing Room during the initial admission process;
“b. Upon returning to any jail facility from an area outside the jail’s security perimeter;
“c. During the course of a regular search/inspection of inmate housing units by Detentions Bureau personnel;
“d. At any time a jail employee has reasonable cause to suspect that contraband could be possessed by an inmate.”

On December 9, 1980, Wagner was being held in Tank 4-L-2. On that day, Deputy Selvy conducted a random, unannounced “strip search” of all the inmates in this tank. Seven deputies, including one woman (Deputy Dennis), participated in this strip search. The inmates were taken out of the individual cells, placed in a line, and then strip-searched in the presence of each other. Before the first inmate took off his clothes, the female deputy (Dennis) — in accordance with jail policy — left the tank. During this search, many items of “contraband” were found and seized, although no contraband was found on Wagner or in any body cavities of the inmates.

On August 24, 1981, Wagner was being kept in Tank 12-S-15. On that day, Deputy Sawyer (a female) received information that there was a knife in this tank. She ordered a “strip search” of the inmates in Tank 12-S-15. Three of the deputies who participated in this search were females (Sawyer, Tucker and Stubbs). However, Tucker was not even present during the strip search; and, before the first inmate was ordered to disrobe, Deputies Sawyer and Stubbs left and were in the “safety vestibule” by the exterior door to the tank. (See Def.Exhs. 16-31.) Neither of these female deputies looked at the male inmates while they were being strip-searched; indeed, two banks of bars set at a right angle to each other obscured their view into the area where the strip search was taking place. Again, during this search, many items of contraband were found and seized, although no contraband was found on Wagner.

Wagner was not touched by any deputy during either strip search; nor was he treated any differently than any other inmate during the search. However, Wagner is offended because he was nude — and could have been seen by the other inmates, or the deputies who conducted the strip search. Consequently, Wagner claims that the searches were unreasonable and violated the Fourth Amendment; specifically:

“Wagner contends that the searches were unreasonable because they were conducted upon an inadequate showing of cause and because of the manner in which they were performed. Wagner claims it is unreasonable for a strip search and a body cavity inspection of the genital and the rectal areas to be performed in the presence of numerous deputy sheriffs and inmates and in such a fashion so that Wagner could see female deputy sheriffs such as Tucker and Sawyer during the course of the search.”

Wagner also contends that the strip searches constituted cruel and unusual punishment under the Fourteenth and Eighth Amendments to the Constitution, and violated his right of privacy under the First Amendment. For these alleged violations, he seeks $7,500 in damages.

2. THE CONTROLLING PRINCIPLES

This case is controlled by the principles established in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) — and in two subsequent Supreme Court decisions following that opinion: Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); and Block v. Rutherford, — U.S. -, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984).

a. General

Prisons and jails “are not beyond the reach of the Constitution.” Hudson, — U.S. at -, 104 S.Ct. at 3198. Therefore, both convicted prisoners and pretrial detainees must be accorded “those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.” Id. at -, 104 S.Ct. at 3198. However, simply because prison or jail inmates retain certain constitutional rights “does not mean that these rights are not subject to restrictions and limitations.” Bell v. Wolfish, 441 U.S. at 545, 99 S.Ct. at 1877.

Indeed, “maintaining institutional security and preserving internal order and discipline” are essential goals that may require the limitation of some of the constitutional rights of “both convicted prisoner and pretrial detainees.” Bell v. Wolfish emphases:

‘[Cjentral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.’ ... Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry. Accordingly, we have held that even when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security. Jones v. North Carolina Prisoner’s Labor Union, supra, [433 U.S. 119] at 129 [97 S.Ct. 2532 at 2540, 53 L.Ed.2d 629 (1977)]; Pell v. Procunier, supra, [417 U.S. 817] at 822, 826 [94 S.Ct. 2800 at 2804, 2806, 41 L.Ed.2d 495 (1974) ]; Procunier v. Martinez, supra, [416 U.S. 396] at 412-414 [94 S.Ct. 1800 at 1810-1812, 40 L.Ed.2d 224 (1974) ].” (441 U.S. at 547, 99 S.Ct. at 1878.)

Therefore, in considering an attack upon a specific restriction imposed for purposes of “maintaining security and preserving internal order” in jails or prisons, lower courts must heed the Supreme Court’s warning that these matters “are peculiarly within the province and professional expertise of corrections officials.” Bell v. Wolfish, 441 U.S. at 540-41, 99 S.Ct. at 1874-75; Block, — U.S. at -, 104 S.Ct. at 3232. And, in the absence of “substantial evidence” which indicates that these officials have “exaggerated their response to these considerations,” courts should defer “to their expert judgment in such matters.” Block, at -, 104 S.Ct. at 3232. Indeed, the Supreme Court emphasized that:

“... the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Jones v. North Carolina Prisoners’ Labor Union, supra, [433 U.S.] at 128 [97 S.Ct. at 2539]; Procunier v. Martinez, supra, [416 U.S.] at 404-405 [94 S.Ct. at 1807]; Cruz v. Beto, supra, [405 U.S. 319] at 321 [92 S.Ct. 1079 at 1081, 31 L.Ed.2d 263 (1972) ]; see Meachum v. Fano, 427 U.S. [215] at 228-229 [96 S.Ct. 2532 at 2540-2541, 49 L.Ed.2d 451 (1976) ].” (441 U.S. at 547, 99 S.Ct. at 1878.)

For these reasons, the Supreme Court has continually reaffirmed “the very limited role that courts should play in the administration of detention facilities.” Block, — U.S. at-, 104 S.Ct. at 3232. And, the Court has specifically upheld security restrictions, like those challenged in the present case concerning random “strip searches” and “publisher-only” rules.

b. . Dirty Books

In Bell v. Wolfish, the Supreme Court approved the “publisher-only” rule of the Bureau of Prisons, which permitted inmates to receive books from outside the institution only if the materials were mailed directly from the publisher or a book club. (441 U.S. at 548-52, 99 S.Ct. at 1878-81).

The warden had testified (by affidavit) that, in order to maintain security, prison officials would “have to leaf through every page of all books and magazines to ensure that drugs, money, weapons, or other contraband were not secreted in the material” —and that this search process would “take a substantial and inordinate amount of available staff time” — while the security problems were substantially reduced by the “publisher-only” rule since “there was relatively little risk that material received directly from a publisher or book club would contain contraband.” According to the prison officials, the Supreme Court stated:

“There is simply no evidence in the record to indicate that [prison] officials have exaggerated their response to this security problem and to the administrative difficulties posed by the necessity of carefully inspecting each book mailed from unidentified sources. Therefore, the considered judgment of these experts must control in the absence of prohibitions far more sweeping than those involved here. See Jones v. North Carolina Prisoners’ Labor Union, 433 U.S., at 128 [97 S.Ct., at 2539]; Pell v. Procunier, 417 U.S., at 827 [94 S.Ct., at 2806].
“Our conclusion that this limited restriction on receipt of hardback books does not infringe the First Amendment rights of [prison] inmates is influenced by several other factors. The rule operates in a neutral fashion, without regard to the content of the expression. Id., at 828 [94 S.Ct., at 2807]. And there are alternative means of obtaining reading material that have not been shown to be burdensome or insufficient____” (441 U.S. at 551, 99 S.Ct. at 1880.)

c. Dirty Looks

Bell v. Wolfish also approved a security restriction involving “strip searches,” in which the inmates were “required to expose their body cavities for visual inspection as part of a strip search conducted after every contact visit with a person from outside the institution.” (441 U.S. at 558-69, 99 S.Ct. at 1884-90).

Here, the prison officials testified that “visual cavity searches were necessary not only to discover but also to deter the smuggling of weapons, drugs, and other contraband into the institution.” The Supreme Court held that these strip searches did not violate the Fourth Amendment, so long as they were conducted in a reasonable manner (441 U.S. at 560, 99 S.Ct. at 1885), stating:

“... a detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. And inmate attempts to secrete these items into the facility by concealing them in body cavities are documented in this record, App. 71-76, and in other cases. E.g., United States v. Ferraro, 590 F.2d 335 (CA 6 1978); United States v. Park, 521 F.2d 1381, 1382 (CA9 1975)....
“We do not underestimate the degree to which these searches may invade the personal privacy of inmates. Nor do we doubt, as the District Court noted, that on occasion a security guard may conduct the search in an abusive fashion. [United States ex rel. Wolfish v. Levy ] 439 F.Supp. [114] at 147 [(D.C.N.Y.1977) ]. Such abuse cannot be condoned. The searches must be conducted in a reasonable manner. Schmerber v. California, supra, [384 U.S. 757] at 771-772 [86 S.Ct. 1826, 1836-1837, 16 L.Ed.2d 908 (1966) ]. But we deal here with the question whether visual body-cavity inspections as contemplated by the [prison] rules can ever be conducted on less than probable cause. Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can.” (441 U.S. at 559-60, 99 S.Ct. at 1884-85).

In subsequent decisions, the Supreme Court (i) approved a county jail’s practice of conducting random, irregular ‘shakedown’ searches of cells while the pretrial detainees were away at meals, recreation, or other activities, Block v. Rutherford, supra; and (ii) held that convicted inmates have no reasonable expectation of privacy in their prison cells entitling them to Fourth Amendment protection against unreasonable searches. Hudson v. Palmer, supra. The Supreme Court stated in Hudson:

“The administration of a prison, we have said, is ‘at best an extraordinarily difficult undertaking.’ Wolff v. McDonnell, 418 U.S. [539], at 566 [94 S.Ct. 2963, at 2780, 41 L.Ed.2d 935 (1974)]; Hewitt v. Helms, 459 U.S. 460, [467] [103 S.Ct. 864, 869, 74 L.Ed.2d 675] (1983). But it would be literally impossible to accomplish the prison objectives identified above if inmates retained a right of privacy in their cells. Virtually the only place inmates can conceal weapons, drugs, and other contraband is in their cells. Unfettered access to these cells by prison officials, thus, is imperative if drugs and contraband are to be ferretted out and sanitary surroundings are to be maintained.
“... The uncertainty that attends random searches of cells renders those searches perhaps the most effective weapon of the prison administrator in the constant fight against the proliferation of knives and guns, illicit drugs, and other contraband____ A requirement that even random searches be conducted pursuant to an established plan would seriously undermine the effectiveness of this weapon. It is simply naive to believe that prisoners would not eventually decipher any plan officials might devise for ‘planned random searches,’ and thus be able routinely to anticipate searches____” (— U.S. at -, -, 104 S.Ct. at 3200, 3201.)

3. THE PLAINTIFF LOSES

Applying the principles of these Supreme Court cases to the facts established at trial, it is clear that the plaintiff’s claims are baseless. The defendants did not, as the plaintiff claims, violate his constitutional rights by keeping him from looking at pictures of nude women in magazines — while permitting females to look .at his nude body during strip searches.

a. Dirty Books

The “publisher-only” rule of the Dallas County Jail is valid. The jail officials testified that contraband — cash, narcotics, razor blades, etc. — could be hidden in magazines and paperbacks, just as easily as in hard-cover books. Their testimony also established that the county simply did not have sufficient personnel to examine all of the books and magazines for security purposes. Therefore, although this restriction is broader than the “publisher-only” rule applied to hard-back books in Bell v. Wolfish, it is still a rational response by jail officials to an obvious security problem.

The “content” restriction — prohibiting magazines and books that “depict nudity” or “pander to sexual interest” — was also justified. The jail officials testified that material of this nature may lead to violence because the inmates “would fight over who could see, or who may have stolen,” a magazine with pictures of nude women. Although this restriction may not exist in some other institutions, the director of the Dallas County Jail testified about his personal experience with such inmate violence in another county jail in Texas. Moreover, the Hon. Sarah T. Hughes of this Court — in a landmark case in which she was responsible for improving the horrible conditions which then existed at the Dallas County Jail — instructed the defendants to enforce the rule prohibiting magazines “with pictures of nude women and guns and stories of crimes.” See Taylor v. Sterrett, 344 F.Supp. 411, at 415, 423.

The only evidence presented by the plaintiff on this issue was his testimony that it was important for inmates “to see naked women,” since it “relieved their tensions” —although he objected to such magazines being given to “sexual offenders,” since there was no way to predict “who will commit homosexual rape.” This certainly falls far short of any “substantial evidence” that the Dallas County Jail officials “have exaggerated their response” to the obvious security problems. Therefore, under Bell v. Wolfish, this Court must accord deference to the “publisher-only” rule and its content restriction.

b. Dirty Looks

Contrary to the plaintiffs claims, there were no dirty looks in connection with the two strip searches. The females who participated did not — and, indeed, could not — have seen the nude bodies of Wagner and the other inmates during the strip searches. Moreover, his claim that females should not even be in the men’s jail is absurd: not to use females would result in an even more severe shortage of personnel to run the jail; and, it would be obvious discrimination against females, which would subject the county to claims for injunctive relief and damages.

In addition, there was adequate cause for both strip searches. One resulted from information about a possible weapon, and the jail officials would have been remiss in protecting the inmates had they not attempted to find it. And, the Supreme Court has specifically approved the use of random searches as an effective means to control weapons, drugs and other contraband. Hudson v. Palmer, supra; Block v. Ruthrford, supra; Bell v. Wolfish, supra.

Finally, the plaintiff’s claim that he should not have been searched in the presence of other inmates or deputies is also baseless. The evidence established that (i) there would be severe security risks in attempting to conduct individual strip-searches of the inmates; (ii) that the random searches would be rendered almost useless unless all inmates in a tank were removed from their cells at the same time, and before they could hide things; and (iii) that the manner in which these strip searches were conducted was the most effective and efficient to perform this unpleasant, but necessary security measure. See Bell v. Wolfish, supra.

The plaintiff totally failed to present any evidence, much less “substantial evidence,” that the defendants exaggerated their response to the obvious security problems. Accordingly, under Bell v. Wolfish, this Court accords deference to the strip-search policies of the Dallas County Jail.

For these reasons, this case is DISMISSED with prejudice, with judgment entered in favor of all defendants and with costs taxed against the plaintiff, Richard Wagner.

      . Tom Leatherbury, a former law clerk to one of the judges in this division, volunteered to represent the plaintiff. He did an outstanding job in preparation, briefing, trial, and representing his client. His excellent service in this case — for which he received no money — is in the highest tradition of the legal profession.

      . This opinion constitutes the Court's findings of fact and conclusions of law. Fed.R.Civ.P. 52(a).

      . Wagner was not a stranger to the Dallas County Jail. He was also there in 1980 (illegal possession of marijuana), and in 1979 (unlawfully carrying a weapon), and in 1977 (burglaries of a building and a vehicle), and in 1976 (illegal possession of marijuana).

      . Jail Policy No. 211.80.41(IV)(A)(7).

      . With the exception of two ads (pages 108 and 117), there are no other nude pictures of females in the February 1982 Easyriders. And, in all fairness, one of these should probably not count, since it appears to be a group shot of the Easyriders staff (male tatoos only).

      . Jail officials would not permit inmates to receive Playboy, Penthouse, Hustler or Oui even if they complied with the “publisher-only” rule. (Pl.Exh. 32.) However, they were not sure about Rolling Stone and National Enquirer because they were "not familiar with [these] periodicals.” (Id.) The record is silent concerning how the jail officials would deal with the annual swimsuit issue of Sports Illustrated.

      . One should be candid. Although the February 1982 issue of Easyriders did contain six pages of nude photographs of females, it does not even begin to compare to the sleaze and unmitigated raunch of "hard-core skin magazines" like Hustler. (See this Court’s opinion in Faloona v. Hustler Magazine, Inc., 607 F.Supp. 1341). Indeed, were this issue to be reviewed by Joe Bob Briggs, the former Drive-In Movie Critic of the Dallas Times Herald, it could only be unfavorable: "Extremely disappointing garbonza count: 25½. No blood. No beasts. No Kung Fu. Four biker chases. Biker fiction, biker cartoons, biker letters, biker horoscopes, biker suspenders. Four wasted pages of fully-clothed bimbos. But over 75 tatoos (including one guy with "Harley Davidson” on the inside of his lower lip). Meaningful review of Russ Meyer biker flick classic ("Motor Psycho," starring Haji and her two enormous talents as the "OT Lady”). Drive-in Academy Award nomination to bimbo with tatoo covering one entire ... if you know what I mean, and I know that you do. One-half star. Joe Bob says don’t monkey with the High Sheriff — and get out before you check it out.”

      . Jail Policy No. 211.81.61.

      . Although Selvy chose Tank 4-L-2 at random, he testified that there had been a particular problem with the inmates in that tank making weapons from stolen educational supplies (carving knives, paint brushes, etc.).

      . "In compliance with Section 217.09.016 of the Texas Commission on Jail Standards and policy of the Dallas County Sheriffs Department, only female deputies shall conduct strip searches of female inmates and only male deputies shall conduct strip searches of male inmates."

      . This fact was disputed at trial. The Court discredits the plaintiffs testimony, and credits that of the deputies who conducted the search. Although Dennis was still in the tank when the first inmate was ordered to disrobe, Deputy Selvy discovered this — and stopped the strip search until Dennis was completely out of sight of the male inmates.

      . The Jail Policy concerning searches (footnote 8) describes contraband as "Anything that is illegal in and of itself, such as narcotics or weapons, and anything that is not specifically allowed to be possessed by inmates in accordance with policy established by the jail administration. This would include items of clothing, food stores, money, self-fashioned weapons."

      . Jail inmates found with contraband are subject to punishment. The evidence established that inmates often avoid secreting contraband on their persons or in their body cavities for fear that deputies will find it in a random strip search.

      . She was told this by Deputy Van Note, who had been given this tip by a jail inmate.

      . This fact was disputed at trial. The Court credits the testimony of the deputies who participated in the search and Deputies Sawyer and Stubbs, who testified that they did not observe the strip search. The Court discounts the testimony of the plaintiff, that he could clearly see Sawyer and Stubbs during the strip search, because the plaintiff lied.

      . Deputy Selvy testified that he could never remember a strip search when contraband was not found — and that weapons were located "fairly often.”

      . The evidence established that strip searches and body cavity inspections are extremely unpleasant and degrading, as are many things in jails and prisons, but that they are just as distasteful to deputies as to inmates. Deputies must carefully examine each inmate’s mouth, ears, armpits, genitals and buttocks — because attempts to conceal money, drugs, weapons (e.g., folding knives), and other contraband in these body cavities is common. See Bell v. Wolfish, 441 U.S. 520, at 559, 99 S.Ct. 1861, at 1884, 60 L.Ed.2d 447 (1979). However, strip searches would not be as degrading and dangerous as other alternatives, such as having deputies feel the genital areas of clothed inmates. Id. at 559-60, note 40, 99 S.Ct. at 1884-85, note 40.

      . These rights include a "reasonable right of access to the courts," freedom from "invidious racial discrimination," a reasonable opportunity “to exercise [the right] of religious freedom,” due process, etc. Hudson, — U.S. at -, 104 S.Ct. at 3198.

      . There is no distinction between pretrial detainees and convicted inmates in reviewing challenged security practices. Pretrial detainees do not “pose any lesser risks than convicted inmates”; indeed, "it may be that in certain circumstances they present a greater risk to jail security and order.” Bell v. Wolfish, 441 U.S. at 546, note 28, 99 S.Ct. at 1878, note 28.

      . This "substantial deference” that must be accorded prison or jail officials applies to their decisions concerning pretrial detainees, as well as convicted inmates. Bell v. Wolfish, 441 U.S. at 547, note 29, 99 S.Ct. at 1878, note 29.

      . There is one technical difference between a court’s review of security restrictions as they apply to convicted inmates and as they apply to pretrial detainees. A sentenced inmate may not be subject to "cruel and unusual punishment” under the Eighth Amendment. However, a person committed to pretrial detention has not been convicted of a crime, and there can be no "punishment” prior to an adjudication of guilt "in accordance with due process of law under the Fifth Amendment.” Bell v. Wolfish, 441 U.S. at 535, 541, 99 S.Ct. at 1872. Therefore, as to a pretrial detainee, the proper inquiry is whether the restrictions "amount to punishment of the detainee.” Id., at 535, 99 S.Ct. at 1872. And, if a particular restriction of pretrial detention is "reasonably related to a legitimate government interest, it does not, without more, amount to 'punishment.'" Id., at 539, 99 S.Ct. at 1874.
      In this case, the plaintiff was a convicted inmate at all relevant times. However, the Dallas County Jail houses both pretrial detainees and convicted inmates — and the security restrictions being attacked in this case are applied equally to both- groups of prisoners. As discussed later, the evidence established that the restrictions are not improper or unconstitutional, whether applied to convicted inmates or pretrial detainees. See Bell v. Wolfish, at 547, note 29, 99 S.Ct. at 1878, note 29.

      . The restriction had heen amended to apply only to hardback books, and to permit inmates to receive soft-bound books and magazines from any source. Id., 441 U.S. at 551, 99 S.Ct. at 1880. In addition, the prisons had a "relatively large library for use by inmates.” Id., at 552, 99 S.Ct. at 1881.

      . The Block opinion specifically noted that the security practice of conducting "irregular or random searches" had been approved in Bell v. Wolfish, 441 U.S. at 555, 99 S.Ct. at 1882. See Block, — U.S. at ---, 104 S.Ct. at 3234-3235.

      . See Cotton v. Lockhart, 476 F.Supp. 956 (E.D.Ark. 1979), aff’d, 620 F.2d 670 (8th Cir.1980).

      . At the Texas Department of Corrections, publications are not excluded solely because they have sexual content. See Guajardo v. Estelle, 568 F.Supp. 1354, 1364 (S.D.Tex.1983). However, the Supreme Court has noted that jails— which house both pretrial detainees and convicted inmates — may present greater risks of security than prisons. Bell v. Wolfish, 441 U.S. at 546, note 28, 99 S.Ct. at 1878, note 28. Moreover, jail officials need not cite actual incidents of violence or security problems in order to justify restrictions on prisoner’s rights; instead, a showing of a reasonable belief of potential problems is sufficient. Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 127-28, 97 S.Ct. 2532, 2538-39, 53 L.Ed.2d 629 (1977).

      . Among other problems which existed then, the Dallas County Jail had repeated assaults and homosexual rapes of inmates by other inmates. Accordingly, the periodic orders entered by judge Hughes in Taylor v. Sterrett reflect her concern — which is still shared by present jail officials — with anything, including the ban on magazines with nude pictures of females, that would reduce or eliminate violence in the Dallas County Jail. See Taylor v. Sterrett, 344 F.Supp. 411 (D.C.Tex.1972).

      . It is not necessary for this Court to address the conflicting arguments, and the expert testimony presented by the defendants, concerning whether or not magazines like Easyriders would actually increase the possibility of sexual offenses by inmates in jails or prisons. But see footnotes 7 and 25.

      . The evidence established that women comprise almost one-third of the total force of jail guards, but that only 10% of the inmates are females.


author: THEIS, Senior District Judge.

text:
    In re The DEPARTMENT OF ENERGY STRIPPER WELL EXEMPTION LITIGATION.
    M.D.L. No. 378.
    United States District Court, D. Kansas.
    May 8, 1985.
    Joseph W. Kennedy, Morris, Laing, Evans, Brock & Kennedy, Wichita, Kan., for plaintiffs.
    Larry P. Ellsworth, Marcia Sowles, Eric Schwartz, Dept, of Energy, Washington, D.C., for Dept. of Energy.

      Robert Martin,,Paul B. Swartz, Martin W. Bauer, Martin, Pringle, Oliver, Triplett & Wallace, Wichita, Kan., for Total Petroleum, Inc.
    John P. Mathis, Catherine C. Wakelyn, Baker & Botts, Washington, D.C., for Tenneco Oil Co. and Pennzoil Co.
    Kenneth L. Bachman, Jr., Eugene M. Goott, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., for Tosco Corp.
    Thomas A. Donovan, Kirkpatrick, Lock-hart, Johnson & Hutchinson, Pittsburgh, Pa., for Ashland Oil, Inc.
    Richard P. Noland, Robert R. Morrow, Monica A. Otte, Sutherland, Asbill & Brennan, Washington, D.C., for Texas City Refining, Inc.
    Brian G. Grace, Curfman, Harris, Stallings, Grace & Snow, Wichita, Kan., for all indicated refiners.
    Joseph C. Bell, Hogan & Hartson, Washington, D.C., for American Petroleum Refiners Ass’n.
    Robert M. Westberg, Robert B. Gex, Dudley A. Zinke, Ira J. Rappeport, Pillsbury, Madison & Sutro, San Francisco, Cal., Thomas D. Kitch, Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., for Chevron U.S.A., Inc.
    James P. Zakoura, Weeks, Thomas & Lysaught, Chtd., Kansas City, Kan., Robert L. Gowdy, Kansas City, Mo., for Farmland Industries, Inc.
    Gilliland, Hayes, Dillon & Green, P.A., Hutchinson, Kan., William G. Riddoch, Houston, Tex., for Shell Oil Co.
    James F. Flug, Lobel, Novins & Lamot, Washington, D.C., for Alabama, California, Connecticut, Idaho, Illinois, Indiana, Maryland, Michigan, Mississippi, Montana, Ohio, South Dakota, Vermont, Wisconsin and Wyoming.
    Andrew Miller, Arthur J. Galligan, Dick-stein, Shapiro & Morin, Washington, D.C., for Arkansas, Kansas, Delaware, Iowa, North Dakota, Rhode Island, Texas and West Virginia.
    Jerry S. Cohen, Michael D. Hausfeld, Patricia F. Bak, Kohn, Milstein, Cohen & Hausfeld, Washington, D.C., for Payne 22, Inc., Anthony Monaco, Rex Chipley, Robert Sharo, George Theodore, Harvey Hatfield, Richard Vielhaber and Nicholas Peto.
    Wilbur Bell, Executive Director, Mississippi Dept, of Energy & Transp., Jackson, Miss., for State of Miss.
    Mike Greely, Atty. Gen., Jerome J. Cate, Asst. Atty. Gen., State of Mont., Helena, Mont., for State of Mont.
    Wayne E. Hundley, Deputy Atty. Gen., Topeka, Kan., for the following states and territories: Michigan, Alabama, California, Arkansas, Kansas, Delaware, Iowa, North Dakota, Rhode Island, Texas, Virginia, Pennsylvania, Minnesota, Colorado, North Carolina, Illinois, Ohio, South Dakota, Wisconsin, Oregon, Maryland, New Jersey, Tennessee, Nevada, Hawaii, New Mexico, Puerto Rico, Guam, Virgin Islands, District of Columbia, West Virginia, New York and South Carolina.
    Paul L. Douglas, Atty. Gen., Frank J. Hutfless, Asst. Atty. Gen., Lincoln, Neb., for State of Neb.
    John J. Easton, Jr., Atty. Gen., J. Wallace Malley, Jr., Jane Hart Marter, Asst. Attys. Gen., State of Vt., Montpelier, Vt., for State of Vt.
    Michael J. Bowers, Atty. Gen., Robert S. Stubbs, Exec. Asst. Atty. Gen., H. Perry Michael, First Asst. Atty. Gen., Robert S. Bomar, Sr. Asst. Atty. Gen., Isaac Byrd, Asst. Atty. Gen., State of Ga., Atlanta, Ga., for State of Ga.
    T. Travis Medlock, Atty. Gen., Richard P. Wilson, Asst. Atty. Gen., State of S.C., Columbia, S.C., for State of S.C.
    Francis X. Bellotti, Atty. Gen., Alan L. Kovacs, Dennis M. Ryan, Asst. Attys. Gen., Antitrust Div., Public Protection Bureau, Boston, Mass., for Com. of Mass.
    Joseph I. Lieberman, Atty. Gen., Richard Webb, Asst. Atty. Gen., Hartford, Conn., for State of Conn.
    Gregory H. Smith, Atty. Gen., Bruce E. Mohl, Asst. Atty. Gen., Concord, N.H., for State of N.H.

      James E. Tierney, Atty. Gen., Robert Frank, August, Me., for State of Me.
    Will Larson, Garrett & Roberts, Chtd., Topeka, Kan., John Van de Kamp, Atty. Gen., Yeoryios Apallas, Deputy Atty. Gen., San Francisco, Cal., Douglas B. Mitchell, Passman, Mitchell & Alfano, Washington, D.C., for Jobbers’ Group and Nat. Oil Jobbers Counsel.
    Jack Focht, Patricia M. Dengler, Smith, Shay, Farmer & Wetta, Wichita, Kan., Richard T. Williams, Kadison, Pfaelzer, Woodard, Quinn & Rossi, Los Angeles, Cal., for Air Transport Ass’n of America.
    Bernard Nash, Edward G. Modell, Washington, D.C., for Pennsylvania, Hawaii, Nevada, North Carolina, Guam and the Virgin Islands.
    Robert W. Wise, Bremyer & Wise, P.A., McPherson, Kan., for Virginia Elec, and Power Co.
    Stewart Stone, Jr., Brobeck, Phlager & Harrison, San Francisco, Cal., for Union Oil Co. of California.
    Darci L. Rock, Mary Caroline Parker, Bracewell & Patterson, Washington, D.C., for Phillips Petroleum Co.
    Alexander B. Mitchell, Sargent, Klenda, Haag & Mitchell, Wichita, Kan., for all intervenor purchasers.
    Harold E. Kohn, Joseph C. Kohn, Kohn, Savett, Marion & Graf, P.C., Philadelphia, Pa., for intervenor Philadelphia Elec. Co.
    Philip P. Kalodner, Philadelphia, Pa., for intervenors Nat. Freight, Inc., RJG Cab, Inc., and Geraldine H. Sweeney.
    Donald W. Bostwick, Adams, Jones, Robinson & Malone, Chtd., Wichita, Kan., for plaintiff Amoco Production Company.
   OPINION AND ORDER

THEIS, Senior District Judge.

This multidistrict litigation involves the issue of how nearly a billion dollars in crude oil overcharges currently held in escrow should ultimately be distributed. On September 13, 1983, this Court as delegate of the Judicial Panel on Multidistrict Litigation referred the question of the appropriate remedy to the Office of Hearings and Appeals [OHA] of the Department of Energy [DOE] for determination of whether the actual impact of these overcharges could be accurately traced. In re: The Department of Energy Stripper Well Exemption Litigation, 578 F.Supp. 586 (D.Kan.1983) (hereinafter “Stripper Wells”). Since that time, the OHA has held hearings concerning tracing the impact of the overcharges. The DOE report which was to have been made by September 13, 1984, see Stripper Wells, 578 F.Supp., at 597, has yet to be issued. The case is currently before the Court on a motion by the Petroleum Marketers Association of America and the Jobbers’ Group [Movants] to expedite the issuance of the OHA report and to require the report to be issued in an unexpurgated form, without any modifications in the report by the DOE. This motion has been joined by the Philadelphia Electric Company, National Freight, Inc., RJG Cab Inc., and Geraldine Sweeney [End Users]. The Court has considered the briefs submitted and is now prepared to rule.

The Court finds that it is unnecessary to establish an immediate deadline for the issuance of the OHA report at this time. The Court shares the concern of the Movants and End Users over the delay in the issuance of the OHA report. However, as the Court recognized at the time it initially referred this matter to the OHA, “these matters are complex and ... considerable time may well be needed for the OHA to complete its assigned task.” Stripper Wells, 578 F.Supp., at 597. The Court is cognizant of the fact that, in matters as complex as this, speed and thorough analysis may be conflicting interests. In weighing these interests, the Court does not find that the OHA’s delay in issuing their report originally due in September of 1984 has reached the point of unreasonableness.

The fact that the delay is not yet unreasonable does not mean, however, that the Court sanctions an open-ended timetable for the issuance of the OHA’s report. The reason the Court initially required reports by the OHA on its progress in March and September of 1984 was to prevent this matter from being swept up into a bureaucratic vortex of endless hearings and discussions, never to be seen again. See Stripper Wells, 578 F.Supp., at 596. While the Court does not believe that this is the situation currently, the Court has no intention of allowing this case to disappear from sight.

The director of the OHA has stated that he expects the OHA report to be issued sometime “this spring.” Transcript of Hearings Before the Subcomm. on Interior and Related Agencies of House Comm. on Appropriations, 99th Cong., 1st Sess. 80 (March 18, 1985). The Court assumes that when the director chose the words “this spring,” he did not do so imprudently but instead meant exactly what he said. Spring in 1985 extends from March 20th until June 21st. See The World Almanac & Book of Facts 1985, 732 (1984) (Newspaper Enterprise A., Inc. publisher). The Court, therefore, expects the OHA report to be issued on or before June 21, 1985. If the report cannot be issued by that date, the OHA should so notify the Court, explaining why the report cannot be issued by that date and specifying a date certain upon which the report will be issued.

Furthermore, so that the Court can ensure that any further OHA action proceeds in a timely fashion, the OHA shall, when it issues its report, also issue a tentative schedule of any further hearings or reports that the OHA feels will be necessary to carry out its assigned task. The Court does not intend to lock the OHA into a rigid timetable. Any schedule would, of course, have to be flexible to allow for future contingencies. However, a tentative schedule by the OHA would enable the Court and parties to anticipate with some degree of certainty future OHA action and confirm that this matter of substantial importance is progressing satisfactorily. The OHA should be able to fashion a fairly realistic timetable based on its experience accumulated so far in this litigation. Such a timetable should also make unnecessary motions like the recently-filed and withdrawn motion to stay issuance of the report and the instant motion to expedite.

The second matter raised by the instant motion is the request that the OHA report be issued in an unexpurgated form, without any changes or editing by the DOE. This motion arises out of a concern that the DOE will manipulate the OHA report so as to indicate that no portion of the overcharge impact can be accurately traced. The DOE will then, it is feared, use this altered OHA report to argue that the escrow funds should be deposited with the U.S. Treasury on behalf of the public at large. This fear is not new. Similar concerns of possible DOE bias were expressed at the time this case was referred to the OHA and DOE for fact-finding. See Stripper Wells, 578 F.Supp., at 596.

The DOE has taken the position that the DOE is entitled to review the OHA report in its entirety in accord with DOE regulations in order to “assure that the proposed OHA action is legally defensible, avoid inadvertent discrepancies in the position the DOE takes on such matters and assure consistency in the implementation of departmental policy.” Brief of DOE in Opposition to Motion to Expedite, Dk. No. 629, p. 2.

This dispute arose out of an apparent confusion over the precise effect of the Court’s remand of this case to the DOE. The Court’s order of remand essentially required the OHA and DOE to provide the Court with information on three areas: a finding of fact on the technical issue of tracing the total or partial impact of the overcharges in this case if possible, an opinion as to whether intelligible progress can be made on this issue, and, if so, a recommendation as to how best to achieve restitution in this case. See Stripper Wells, 578 F.Supp., at 596-97.

As to the last two of these items, it is clear that consultation by the OHA with senior policy makers of the DOE would be appropriate. Both of these areas require interpretations of the progress and results of the OHA’s fact-finding mission. These areas involve policy decisions in which the experience and expertise of the DOE would be helpful. The OHA and DOE must con-suit on these matters to determine the position which the DOE may be required to defend and advocate before this Court.

The specific .fact-finding mission assigned to the OHA is significantly different from these areas, however, The determination of whether the impact of the overcharges in this case can be accurately traced to specific individuals does not involve policy decisions. It is a determination of fact, albeit a highly complex and technical determination, but a determination of fact nonetheless. While the interpretation of the facts may be reviewed to assure consistency with the DOE’s departmental policy and litigation position, the initial determination of those facts requires no such DOE review.

The DOE asserts that “[t]here is no reason why OHA’s report in this proceeding should not receive the same intra-agency review as all Subpart V reports.” Brief of DOE in Opposition to Motion to Expedite, Dk. No. 629, p. 2. This argument highlights a misconception of the nature of this Court’s referral of the case to the DOE. In Subpart V reports, the DOE and OHA are actually distributing the refunds to persons and entities found by the OHA to have suffered injury by violations of DOE regulations. 10 C.F.R. § 205.280 (1984). In such cases, the OHA’s primary responsibility is tracing and identifying the specific injuries caused by the violations. See 10 C.F.R. § 205.281(a) and (b). After the injury has been traced to specific parties, they are compensated for their injuries by the OHA as fairly and equitably as practical. 10 C.F.R. § 205.282(e). However, the OHA may decide to make refunds on a pro rata basis if the amount of approved claims exceed the amount the DOE has determined should be remitted, 10 C.F.R. § 205.-286(a), or entirely refuse to consider a claim application deemed too small to warrant consideration, 10 C.F.R. § 205.286(b). Furthermore, refunds may not be paid out to injured parties absent written order of the OHA. 10 C.F.R. § 205.287(d). Many of these determinations, such as what claim amount is “too small,” require policy decisions that the DOE may properly review to ensure that the decision is defensible and consistent with departmental policy. On the other hand, the determination of what parties were injured in what amounts involves no policy considerations but is only a determination of fact.

This Court referred this litigation to the OHA only to take advantage of the procedures and expertise which the OHA had developed in tracing the impact of overcharges in the oil industry. This litigation was referred to the OHA for its determination of which parties had suffered injury in what amounts. That determination is solely a question of fact. The Court did not intend to allow the DOE to make the policy decisions on whether such an attempt at tracing is feasible or how to actually make restitution, although the Court is interested in the DOE’s position on these matters. The fact-finding mission of the OHA in this case does not require DOE review to assure that the OHA position is defensible or consistent with the DOE position on such matters. The Court expressly reserved to itself the judicial determination of how to best make restitution from the escrow fund. The fact-findings of the OHA as to what portion, if any, of the impact of the overcharges in this case have been traced to the refinery level should not be edited or altered by the DOE. However, the DOE is free to review the OHA’s fact-findings in order to develop the DOE’s position on whether further efforts by the OHA would be useful and on what procedure would best achieve restitution in this case. These matters should be addressed in a separate report from that containing the OHA’s findings of fact. This should avoid time-consuming arguments concerning the integrity of the OHA’s findings of fact. The request by the End Users that the Court prohibit all ex parte cortimunication between the OHA and DOE is needlessly artificial and unnecessary to protect the OHA’s fact-findings from possible “contamination” by the DOE.

IT IS THEREFORE ORDERED that the OHA issue its findings of fact on the tracing and impact of the overcharges at issue in this case without editing or modification by the DOE. This shall not prevent the DOE from reviewing the OHA’s fact-findings in order to determine the DOE’s position on the utility of further efforts by the OHA and a recommended plan of restitution which shall be issued separate from the report of the OHA’s fact-findings.

IT IS FURTHER ORDERED that the motion to expedite issuance of the OHA’s report is hereby denied at this time.

IT IS FURTHER ORDERED that along with its fact-finding report the OHA shall issue a tentative schedule of further hearings and report dates for any further investigation contemplated by the OHA to be necessary in order to fulfill its assigned task in this case.