author: TURK, Chief Judge.

text:
    Harry C. RUCKER, Jr., Administrator of the Estate of Barbara Sales Rucker, Plaintiff, v. AVCO CORPORATION, the United States of America, and John Doe and Jane Doe, Defendants.
    Civ. A. No. 85-0145(L).
    United States District Court, W.D. Virginia.
    Jan. 28, 1986.

      John E. Falcone, Mosby & Falcone, Lynchburg, Va., for plaintiff.
    Charles F. Midkiff, James W. Tredway, III, Christian, Barton, Epps, Brent & Chappell, Richmond, Va., E. Montgomery Tucker, Paul F. Figley, Asst. Dir., Torts Branch, Civil Div., Mark Rachlin, U.S. Dept, of Justice, Washington, D.C., for defendants.
   MEMORANDUM OPINION

TURK, Chief Judge.

Plaintiff Harry C. Rucker, Jr. filed this wrongful death action under the Federal Torts Claims Act, 28 U.S.C. § 2671 et seq. (“FTCA”), against Avco Corporation, the United States of America and John Doe and Jane Doe on August 28, 1985. The United States has moved to dismiss the complaint on the grounds that this court lacks jurisdiction over the subject matter of the action and the complaint fails to state a claim upon which relief can be granted. For the reasons set forth below, defendant’s motion is granted.

BACKGROUND

The complaint alleges that on October 26, 1983, the Avco Corporation operated the Old Dominion Job Corps Center in Amherst County, Virginia under a contract with the United States Department of Labor. Avco employed Barbara Rucker as a records supervisor at the Center. During her lunch hour on that October day, Rucker was attacked by Christopher Hill, a corpsmember who was a resident of the Center. The wounds Rucker received in this attack were the direct cause of her death two days later.

THE PRESENT CLAIM

Harry Rucker, as administrator of his wife’s estate, filed this wrongful death action against Avco, the United States and John and Jane Doe after an administrative claim for $600,000 in damages was denied by the United States Department of Labor (“DOL”). While Hill is considered a federal employee for FTCA purposes by virtue of his membership in the Job Corps, see 29 U.S.C. § 1706(a)(3), Rucker has not stated his cause of action against the United States on the basis of Hill’s activities. Undoubtedly, Rucker is conscious that the United States has not waived its sovereign immunity for the intentional torts of its employees. See 28 U.S.C. § 2680(h).

Instead, Rucker alleges that DOL employees ultimately responsible for selecting Job Corps applicants were negligent in admitting Hill into the Job Corps program, and that their negligence was the proximate cause of Barbara Rucker’s death. Rucker contends that Hill’s prior criminal record and history of emotional disturbance made him ineligible for the Job Corps program. Specifically, Rucker alleges that, DOL employees failed to exercise adequate oversight over the Virginia Employment Commission screening process concerning Christopher Hill, failed to monitor and review the Christopher Hill screening recommendation, and failed to exercise independent judgment in the Christopher Hill case.

In addition to premising his claim on negligent admission of Hill into the Job Corps program, Rucker contends that DOL was negligent regarding security problems called to its attention by Avco employees prior to Hill’s attack of Barbara Rucker. Rucker alleges that while DOL was notified of security problems prior to Hill’s attack, DOL failed to adequately investigate such allegations, issued a distorted report based upon its investigations, and failed to take steps to remedy the security problems. Rucker asserts that this negligence was also a proximate cause of his wife’s tragic death.

ANALYSIS

While Rucker’s complaint sounds in negligence in an attempt to bring itself within the confines of the FTCA, the United States asserts that the suit in reality seeks damages for the intentional tort of one of its employees. The United States urges the court to look beyond the artful pleading and dismiss the complaint on the grounds that the suit is barred by the intentional tort exception to the FTCA, 28 U.S.C. § 2680(h).

As support for its contention that the present action is barred by the intentional tort exception, the United States points to recent Fourth Circuit case law. In Hughes v. United States, 662 F.2d 219 (4th Cir.1981), a postman was arrested and charged under state law with taking indecent liberties during the interim between his two daily postal delivery routes. He pleaded guilty to a lesser charge. Within a week, the father of the abused child asked one of the postman’s superiors to put him in a job away from children, one not involving postal delivery. The request was refused. Later the postman took indecent liberties with additional children.

These children then filed suit under the FTCA, arguing that their claim was for negligent retention by the Post Office of a dangerous employee in the position of mail carrier. The government responded that the suit was really one for the intentional tort of assault and battery. Adopting the opinion of the district court, the Fourth Circuit dismissed the case on the grounds that suit was barred by the intentional tort exception of 28 U.S.C. § 2680(h). See Hughes, 662 F.2d at 220, affirming Hughes v. Sullivan, 514 F.Supp. 667 (E.D.Va.1980).

Rucker argues, however, that Hughes does not require dismissal of the instant action. Pointing to Rogers v. United States, 397 F.2d 12 (4th Cir.1968), Rucker claims that the Fourth Circuit’s interpretation of § 2680(h) is muddled and does not bar his suit. In Rogers, the plaintiff was a boy who had been tortured by a non-government employee after being released into his custody by a U.S. Marshal. The plaintiff alleged that the Marshal was negligent in turning him over to a known sadist. The Fourth Circuit, citing Panella v. United States, 216 F.2d 622 (2d Cir.1954), ruled that the FTCA claim was founded on negligence and could go forward regardless of § 2680(h). Rogers, 397 F.2d at 15.

This court does not believe that Rogers is inconsistent with Hughes, or that the Fourth Circuit interpretation of § 2680(h) is unclear. The district court opinion in Hughes, expressly adopted by the Fourth Circuit, see 662 F.2d at 220, carefully analyzed the Rogers decision and determined that the reason Rogers’ suit was permitted to go forward was because the intentional tort in that case was perpetrated by a non-government employee rather than a government employee. In Hughes, in contrast, the government’s alleged negligence led to an intentional tort by a government employee. See Hughes, 514 F.Supp. at 669-70. This court interprets Hughes to mean § 2680(h) bars FTCA suits where the alleged negligence of a government employee leads to commission of an intentional tort by a government employee.

Given the mandate of the Fourth Circuit in Hughes, this court is bound to conclude Rucker’s suit is barred by §’2680(h). See also United States v. Shearer, — U.S. -, 105 S.Ct. 3039, 3042-43, 87 L.Ed.2d 38 (1985) (opinion of Burger, C.J.) (§ 2680(h) bars claims not merely for assault and battery, but claims arising out of assault and battery). In a final effort to avoid dismissal, however, Rucker argues that it is inappropriate to consider Hill a government employee in this case. In spite of 29 U.S.C. § 1706(a)(3), which explicitly states that for purposes of the FTCA, Job Corps enrollees shall be considered government employees, Rucker contends that it would be “hyper-technical,” “contrary to the [proper] spirit of statutory construction,” unrealistic and inequitable to hold that Hill is a government employee in the suit. Rucker offers no support for his argument other than that he disagrees with the choice Congress made enacting § 1706(a)(3). In the absence of support for ignoring an express command of the Congress, this court is unwilling to take such a bold step. Congress has decreed that Hill should be considered a government employee in this suit, and this court so holds.

CONCLUSION

For the reasons stated above, the government’s motion to dismiss shall be granted.

      . The procedures and criteria for selecting applicants for admission to the Job Corps are governed by 29 U.S.C. §§ 1693-1695 and 20 C.F.R. § 684.30-31. Basically, initial screening of applicants is performed by local screening agencies, and final decisions are made by DOL.


source: Caselaw Access Project

author: KERR, District Judge.

license: Public Domain

text:
    CHAMPLIN PETROLEUM COMPANY, a corporation, Plaintiff, v. MINGO OIL PRODUCERS, a corporation, and Mike Strand, Lois Strand, Eleanor Strand, W. David Hammons, Penelope Hammons, Neuman C. Petty and Wayne Clark, as Officers Directors and Shareholders of Mingo Oil Producers, Defendants.
    No. C84-508-K.
    United States District Court, D. Wyoming.
    Jan. 29, 1986.

      Alan L. Sullivan, Van Cott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, D. Thomas Kidd, Casper, Wyo., and Molly Sommerville, Champlin Petroleum Co., Englewood, Colo., for plaintiff.
    Daniel W. Jackson and Jeffrey W. Wilkinson, Bradley,. Arrowsmith & Jackson, Salt Lake City, Utah and Timothy G. Williams, Guy, Williams, White & Argeris, Cheyenne, Wyo., for defendants.
   ORDER RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT WITH FINDINGS

KERR, District Judge.

The above-entitled matter having come on regularly for hearing before the Court on plaintiff’s motion for summary judgment and defendants’ cross-motion for summary judgment; plaintiff appearing by and through its attorneys, Alan L. Sullivan, D. Thomas Kidd, and Molly Sommerville; defendants Mingo Oil Producers, Mike Strand, Lois Strand, Eleanor Strand, Neuman O. Petty, and Wayne Clark appearing by and through their attorneys, Daniel W. Jackson, Jeffrey W. Wilkinson, and Timothy G. Williams; and defendants David and Penelope Hammons appearing neither in person or by counsel, and the Court having heard the arguments of counsel and having carefully reviewed said motions, the briefs filed herein, the affidavits, and the exhibits and all matters pertinent thereto, and being fully advised in the premises, FINDS:

Jurisdiction is vested in this Court pursuant to 28 U.S.C. § 1332, as the plaintiff and defendants are citizens of different states and the amount in controversy exceeds $10,000, exclusive of interests and costs.

The plaintiff Champlin Oil Company (Champlin) is the owner of the mineral estate and surface rights of approximately 5,789.87 acres of land in Carbon County, Wyoming known as the Overland Dome Field. Said property is described as:

Net Acreage Township 20 North, Range 84 West
Section 13: W/2, SE/4 480.00
Section 23: W/2, SE/4 480.00
Township 20 North, Range 83 West
Section 7: Lots 1(44.34), 2(44.34), 3(44.34), 4(44.34), 497.36 E/2W/2, SE/4
Section 15: W/2, SE/4 480.00
Section 17: W/2, SE/4 480.00
Section 19: Lots 1(43.60), 2(43.60), 3(43.60), 4(43.60), 494.40 E/2W/2, SE/4
Section 21: W/2, SE/4 480.00

Net Acreage

Section 27: W/2, SE/4 480.00

Section 29: W/2, SE/4 480.00

Section 38: W/2, SE/4 480.00

Section 35: W/2, SE/4 480.00

Township 19 North, Range 83 West

Section 5: Lots 3(39.05), 4(39.06), S/2NW/4, S/2 478.11

Total 5,789.87 acres

Champlin originally leased said property to Amoco Production Company (Amoco) pursuant to an Oil and Gas Lease dated November 22, 1977. The lease was for a five year primary term and “as long thereafter as oil, gas or associated liquid hydrocarbons or any of them are produced from said land hereunder, or drilling or reworking operations are conducted thereon.”

On January 10, 1978, Amoco entered into a farm-out contract with Classic Mining Corporation. Classic Mining Corporation thereafter, through a wholly-owned subsidiary, entered into a partnership referred to as the Overland Dome Petroleum Company (Overland) for the purpose of drilling and completing oil and gas wells on the Champlin-Amoco lease. Amoco later assigned some of its interests in the lease pursuant to the farm-out agreement to Classic, which then assigned those interests to Overland. Overland entered into a farm-out agreement with Mingo Oil Producers (Min-go) on November 24, 1981. Mingo agreed to finance and conduct the reentry and deepening of an existing well or drill a new well and thereby obtain an interest in the lease.

On April 27, 1982, creditors of Overland Dome filed an involuntary bankruptcy petition against Overland. On May 20, 1982 the Bankruptcy Court of the United States Court for the District of Utah entered an order of relief under Chapter 11 of the United States Bankruptcy Code. At approximately the same time, production operations in the field ceased and many wells were shut-in. The evidence shows that no electricity was provided to the Overland Field from March, 1982 until April 17,1984; no production reports were filed with the Wyoming Oil & Gas Conservation Commission from March, 1982 until April, 1984; and no royalty payments were received by Champlin since June 1, 1982.

The trustee for the bankrupt Overland took exclusive possession and control of the lease premises during the time of the bankruptcy proceeding and apparently did not allow Mingo to go on to the leased property to continue drilling and reworking. The primary term of the lease expired November 22, 1982. On December 16, 1982, the trustee made a motion with the bankruptcy court to allow the trustee to use the bankruptcy estate’s cash collateral to resume production on two wells on the lease. Two of the estate’s creditors, both of which were companies controlled by defendant Mike Strand, opposed the use of the cash collateral for this purpose. The motion was ultimately denied.

About March 21, 1984, the trustee for Overland, without warranty, assigned its interest in the lease to Mingo, in exchange for cash and other consideration. The bankruptcy court approved this transfer of interest, but refrained from making any determination as to whether the lease had terminated. The court in fact noted that the lessor had taken the position that the lease had terminated. Champlin had filed a notice with the bankruptcy court which stated Champlin’s position, that the lease had expired at the end of the primary term but that they might consider negotiations for extending the lease. Apparently some negotiations took place after Mingo had purchased Overland’s interest, but were unsuccessful.

Champlin brought this action seeking declaratory relief that the lease had terminated and requesting injunctive relief that the defendants be prevented from entering on to said premises. Defendants argue that the lease did not terminate because of the “free flow” of oil from some wells into the holding tanks which was sold at an alleged profit in April, 1984 constituting production (in paying quantities) sufficient to extend the lease into the secondary term. Defendants also claim that the bankruptcy proceedings constituted a condition excusing nonproduction under the terms of the force majeure clause and further that the plaintiff is estopped or has waived its right to terminate said lease. Finally, defendants have filed a counterclaim asserting liens on the leased property as a result of contracts for goods and services entered into with Overland.

This Court first addresses defendants’ theory that the free-flow of oil constituted production sufficient to extend the lease beyond its primary term and notes there is a factual dispute as to whether the existence of oil in the tanks was actually the result of “free flow” or whether it had existed in the taiiks since the time when active operations had ceased in the field.

Without regard to this factual issue, the Court finds and concludes as a matter of law that the “free flow” of oil, even if it had occurred during the period in question, could not constitute production or production in paying quantities. Where, as in this case, the lessee engaged in no productive activity and did nothing to produce, remove or sell the oil, gas, or associated hydrocarbons, there was no production within the meaning of paragraph 2 of the lease, as a matter of law.

The purpose of requiring production or “production in paying quantities” is “[t]o secure the development of the property for the mutual benefit of the parties.” Gulf Oil Corp. v. Reid, 161 Tex. 51, 337 S.W.2d 267, 269 (1960). In no way can it be said that merely allowing free flowing oil to accumulate for approximately two years could constitute production as contemplated by the parties in entering into the lease.

The lease expired by its own terms on November 22, 1982, the end of the primary term, because no oil, gas, or associated liquid hydrocarbons were being produced and no drilling or reworking operations were being conducted on the leasehold property. McClure v. Watson, 490 P.2d 1059, 1061 (Wyo.1971).

Defendants claim that the force majeure clause of the contract excused nonproduction and prevented termination of the lease because the bankruptcy proceedings prevented the lessee or its assigns from producing or reworking any wells. The force majeure provision states in relevant part:

All express or implied covenants of this lease shall be subject to all Federal and State laws, Executive Orders, Rules or Regulations, and this lease shall not be terminated, in whole or part, nor lessee held liable in damages, for failure to comply therewith, if compliance is prevented by, or if such failure is the result of, any such law, Order, Rule or Regulation, or if prevented by an act of God, of the public enemy, labor disputes, inability to obtain material, failure of transportation, or other cause beyond the control of Lessee other than financial. (Emphasis supplied.)

Plaintiff contends that the conditions which prevented production were financial in nature and, therefore, unexcused by the force majeure clause. The Tenth Circuit in the case of In Re Trigg, 630 F.2d 1370 (10th Cir.1980) held that an oil and gas lease expired automatically by its own terms when the bankruptcy trustee failed to pay a delay rental and that neither the bankruptcy code nor the bankruptcy court could have prevented the termination of the lease when the trustee failed to make a timely delay rental payment. While the case did not involve the application of a force majeure clause, we nonetheless believe it has bearing on the effect of bankruptcy proceedings generally on an oil/gas lease. While the bankruptcy proceedings were clearly outside the control of the lessee or its assigns, the very premise of such proceedings are inherently the result of financial problems. Further, the trustee’s inability to get two wells into production was the result of no available funds. Therefore, this Court concludes that the provisions of the force majeure clause are not available to extend the lease under the conditions of the present case.

Defendants contend there is an issue of fact as to whether Champlin was estopped or has waived its right to terminate the lease. This Court concludes as a matter of law that no reasonable minds could differ in finding that Champlin had not made any representations which defendants could have reasonably relied upon to purchase said lease interests. Both v. First Security Bank, 684 P.2d 93, 96-97 (Wyo.1984); Wood v. Trenchard, 550 P.2d 490, 494 (Wyo.1976).

In fact, Champlin made it very clear in its notice filed with the bankruptcy court that Champlin took the position that the lease had expired. Champlin’s indication that it was willing to negotiate was clearly not an offer to extend the lease.

Finally, defendant Mingo Oil Producers is not entitled under Wyoming law to assert any lien against plaintiff’s interest in the subject property because (a) the liens claimed by defendant arose by reason of goods or services furnished to an owner of an .estate less than a fee, and (b) plaintiff did not agree that its interest would be bound by any such lien. See Wyoming Stat.Ann: § 29-3-103(b) (1985); Cities Service Oil Co. v. Pubco Petroleum Corp., 497 P.2d 1368, 1371-72 (Wyo.1972).

There being no material issue of fact, the matter is ripe for summary judgment. NOW, THEREFORE, IT IS

ORDERED that plaintiff’s motion for summary judgment be, and the same is, hereby granted; it is

FURTHER ORDERED that defendants’ cross-motion for summary judgment be, and the same is, hereby denied.


author: HATFIELD, District Judge.

text:
    BOARD OF TRUSTEES OF the MONTANA TEAMSTERS EMPLOYERS, Plaintiffs, v. James COYNE, Mark Simon, Sr., Thomas Cash, Dale Tracer, Donald Rotsinger, Sr., and Michael McGree, Defendants.
    No. CV-85-210-GF.
    United States District Court, D. Montana, Great Falls Division.
    Jan. 30, 1986.

      Bruce McKenzie, Donaldson & Kiel, P.S., Seattle, Wash., Maxon R. Davis, Cure, Borer & Davis, Great Palls, Mont., for plaintiffs.
    Thomas F. Joyce, Burgess, Joyce & Whelan, Butte, Mont., for defendants.
   MEMORANDUM AND ORDER

HATFIELD, District Judge.

The Montana Teamsters Employers Trust Fund (“Trust”), an employee welfare-benefit plan created under Section 302(c)(5) of the Labor Management Relations Act, 29 U.S.C.A. § 186(c)(5), is a welfare plan within the meaning of the Employees Retirement Income Security Act (“ERISA”), 29 U.S.C.A. § 1002(3). The plaintiffs, as trustees of the Trust, seek a declaration that ERISA preempts the application of the common law of Montana, regarding the validity of medical benefit subrogation clauses, to the facts of this controversy.

The defendants, who are individual participants of the Trust, challenge the position asserted by the Trustees with respect to the preemptive effect of ERISA under the circumstances presented. All parties move for summary judgment.

The parties agree that because the common law of Montana regarding subrogation rights would “relate to” an ERISA covered plan within the meaning of Section 514(a) of ERISA, 29 U.S.C.A. § 1144(a), application of that law to an ERISA covered plan would, as a general rule, be preempted. The issue to be determined in the matter sub judice, however, is whether the “insurance savings” clause, Section 514(b)(2)(A) of ERISA, 29 U.S.C.A. § 1144(b)(2)(A), which excepts state law regulating insurance from the preemptive umbrella of Section 514(a), is applicable to the subrogation requirement at issue in this controversy. Resolution of the issue as framed by the parties is controlled by application of the decision recently enunciated by the Supreme Court in Metropolitan Life Insurance Co. v. Massachusetts, — U.S. -, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985) to the facts of this case.

The determination of whether application of Montana common law is preempted requires analysis of three provisions of ERISA that were central to the rationale espoused in Metropolitan. Section 514(a) provides that ERISA “shall supersede any and all State laws insofar as they relate to any employee benefit plan.” Subsection (b)(2)(A), otherwise known as the “insurance savings” clause, provides that “ERISA shall not be construed to exempt or relieve any person from any law of any state which regulates insurance____” The “insurance savings” clause is in turn limited by subsection (b)(2)(B), the “deemer” clause, which provides that an employee benefit plan shall not be deemed to be an insurance company for purposes of ERISA.

The benefits provided through the Trust are insured pursuant to a group insurance policy issued by the Occidental Life Insurance Company of California (“Occidental”). That policy contains a subrogation provision with respect to benefits for medical expenses, which, under normal circumstances, the parties agree, would be void under Montana law. See, Allstate Insurance Company v. Reitler, — Mont. —, 628 P.2d 667 (1981). Viewing the Reitler decision as a “law ... which regulates insurance” within the meaning of the “insurance savings” clause, the defendant participants contend that application of the rule of Reitler to the subrogation requirement attendant the benefits received through the Trust is excepted, by Section 514(b)(2)(A), from the broad preemptive provisions of ERISA.

The Trustees, on the other hand, contend the “deemer” clause operates to preclude application of the Reitler rule to the subrogation requirement at issue. The Trustees premise their position upon the contention that the subrogation requirement attendant benefits received from the Trust is a policy established by the Trustees, a fact which distinguishes the present case from the situation addressed in Metropolitan. The Trustees submit the subrogation provision in the Occidental policy itself is simply irrelevant to the issue presented.

A critical aspect of the decision in Metropolitan is the fact that the plan at issue was an “insured” plan. The court held that ERISA did not preempt the application of state law regulating insurance to policies sold by an insurance company to an ERISA qualified plan. Metropolitan Life Ins. Co. v. Massachusetts, — U.S. -, 105 S.Ct. at 2389-2392. The Court was not presented with the issue of whether the application of that same state regulatory law to a “self-insured,” or “uninsured,” plan would be precluded by the “deemer” clause. Id., 105 S.Ct. at 2387 n. 14. The Fifth Circuit Court of Appeals has recently held, however, that the “deemer” clause does serve to preclude application of a state regulatory law, essentially identical to the law at issue in Metropolitan, to self-insured plans. Children’s Hospital v. Whitcomb, 778 F.2d 239 (5th Cir.1985.)

Review of the instant record reveals the Trust is properly characterized as an “insured” plan. The Trustees seek to impress upon the court that the insured-uninsured dichotomy, however, is not in itself determinative of the issue whether the “deem-er” clause serves to preclude application of the Reitler rule to this case. Rather, the Trustees submit, the court must ascertain whether the subrogation requirement at issue has its genesis in the Occidental policy or in the agreement establishing the Trust itself. The Trustees suggest, in essence, that if the subrogation provision is included in the policy at the behest of the Trustees, the “deemer” clause becomes operative, thereby negating operation of the “insurance savings” clause. The Trustees attempt to bolster their analysis by emphasizing the fact that it is the Trust which benefits, in the long run, from the increase in the return on premiums it realizes through a reimbursement process extant under the policy.

On the basis of the facts before it, this court is unpersuaded by the Trustees’ efforts to distinguish the present case from the situation presented in Metropolitan. The decision in Metropolitan is predicated upon the court’s conclusion that Congress did not intend to preempt areas of traditional state regulation. The distinction the Trustees attempt to draw between the mandatory mental health benefits statutes at issue in Metropolitan, and the common law at issue in the case at bar, is illusory, given the nature of the subrogation requirement in dispute.

The subrogation requirement was imposed upon the participants pursuant to the contract of insurance purchased from Occidental. That conclusion is borne out by the fact that the operative provision provided that Occidental would be “reimbursed by the insured person.” Undoubtedly, the Trust, as would be expected, benefits from the subrogation requirement in the form of reduced premiums which are ultimately realized through the receipt of “experience refunds.” The Court in Metropolitan, however, implicitly rejected that precise argument as the basis for application of the “deemer” clause when it concluded that the mandatory mental health statute at issue was not preempted by Section 514(a) of ERISA.

As was the case in Metropolitan with respect to the mandatory mental health statute, the common law extant in Montana regarding medical benefit subrogation clauses regulates an integral part of the relationship between the insurer and the policyholder, by limiting the type of insurance that an insurer may sell to the policyholder. Congress, however, in enacting the “insurance savings” clause, has seen fit to allow the several states to retain their traditional role in regulating insurance, even though that regulation touches upon welfare benefit plans within the purview of ERISA. Although the logic of the distinction created by the “deemer” clause with respect to “insured” and “uninsured” plans may escape this court, any change designed to remove the distinction must emanate from Congress, not the courts.

For the reasons set forth herein,

IT IS HEREBY ORDERED that the defendants’ motion for summary judgment be, and the same hereby is, GRANTED.


author: LIMBAUGH, District Judge.

text:
    Alston A. EMMANUEL, Plaintiff, v. John O. MARSH, Jr., Secretary of the Army, et al., Defendants.
    No. 83-55C(5).
    United States District Court, E.D. Missouri.
    Jan. 31, 1986.
    Doris Gregory Black, St. Louis, Mo., Edward L. Welch, Edwardsville, Ill., for plaintiff.
    Wesley D. Wedemeyer, Asst. U.S. Atty., St. Louis, Mo., for defendants.
   MEMORANDUM AND ORDER

LIMBAUGH, District Judge.

This civil case concerns allegations that the Department of The Army discriminated against Alston Emmanuel on the basis of race in an employment decision. Emmanuel has brought suit against the defendant, General John O. Marsh, Jr., Secretary of the Army, in his official capacity, pursuant to Title VII of the Civil Rights Act of 1964, as amended by § 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16(a). Emmanuel challenges the Army’s promotion in 1980 of a white male, John Snyder, rather than the plaintiff to the position of Supervisory Packaging Specialist, GS-2032-12. Plaintiff challenges the validity of both the actual promotion, and the process by which the Army compiled the information on which it based its decision. While the complaint alleges discrimination on the basis of both race and sex, plaintiff, in his pretrial submission and in the presentation of his case, abandoned his charge of sex discrimination. Emmanuel seeks an award of backpay, injunctive relief of reinstatement and promotion, and declaratory relief.

Plaintiff originally brought this suit as a class action, but before the certification hearing he withdrew as the proposed class representative. One of plaintiff’s advisers, Leon Paige, was then substituted as the proposed representative. The Court on January 9, 1985, refused to certify a class and dismissed Paige from this action after finding that he had no individual fully exhausted Title VII claim, and that the proposed class did not meet the numerosity requirement of Fed.R.Civ.P. 23(a)(1). This decision was appealed to the United States Court of Appeals for the Eighth Circuit. On June 10, 1985, 767 F.2d 929, the Eighth Circuit dismissed the appeal for lack of jurisdiction since the trial court had not entered a final judgment in this cause as required by 28 U.S.C. § 1291. Leon Paige remains in this lawsuit only for the purpose of review by the Eighth Circuit of this Court’s decision not to certify a class.

The parties tried this case to the Court and all parties have filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Alston Emmanuel is a sixty-seven year old unemployed, black-American male who, at the time of trial, resided in Atlanta, Georgia. He last worked in 1983 at TSARCOM (Troop Support and Aviation Material Readiness Command), a division of the United States Army in St. Louis, Missouri. From 1963 until 1967, plaintiff worked for the Army as a warehouse supervisor. From 1967 until 1975, he worked for AVSCOM (Army Aviation System Command) as a packaging specialist at the GS-11 grade. In 1975, Emmanuel applied for a promotion to Senior Staff Packing Specialist, GS-2032-12; however, after an evaluation process the Army gave this position to John Snyder, a white male.

The plaintiff challenged this decision and the United States Army Civilian Appellate Review Office (USACARO) determined that the Army and, in particular, Mervin Edwards, the Chief Packaging Officer at AVSCOM, and John Greenwall had discriminated against plaintiff on the basis of race in its selection of Snyder. As a result, plaintiff received a retroactive promotion to the position of Senior Staff Packing Specialist and backpay at the GS-12 level. Snyder, whom the Army had originally promoted, received a transfer to another command.

Although he obtained the promotion to the GS-12 level in 1975, Emmanuel continued to work under the supervision of Mervin Edwards, one of the persons whom USACARO found had discriminated against him in the 1975 promotion decision. In 1976, plaintiff completed some training courses and a six-week training session. He also received a certificate of achievement on February 20, 1976, for saving the federal government $3,265,000.00 and another certificate on January 4, 1977, for saving the government $18,500.00. As a general rule, certificates of achievement are considered relatively minor awards. Although an employee has a continuing duty to ensure that his Qualifications Record-Civilian Personnel (DA Form 2302) reflects the most up-to-date information concerning his background and service to the government, Emmanuel did not arrange for inclusion on his form of his achievements during the 1975-80 period.

After his transfer to another command in 1975, John Snyder continued working for the Army in the packaging area. In 1978, he received a Sustained Performance Award which, apparently, is a significant and prestigious honor. Snyder received this award at the instigation of Mervin Edwards even though Edwards was no longer his supervisor. A supervisor can nominate an employee for a Sustained Performance Award for a given time period even if during portions of that period he no longer supervises the employee. John Greenwall, acting in a temporary capacity as a supervisor, also approved the issuance of this award.

Emmanuel testified that between 1975 and 1980, he supervised five to seven persons while Snyder supervised only one person. Plaintiff conceded on cross-examination, though, that he served as supervisor by temporary appointment only, and not by title. Plaintiff also testified that he represented the Army on a task force of packaging specialists created by the Armed Services to consider the possibility of standardizing packaging procedures. Snyder did not serve on this task force.

Emmanuel contends that various persons groomed Snyder for the 1980 appointment by according him favorable treatment as to awards and performance ratings while Emmanuel received less favorable treatment. John Greenwall, a white male, whom USACARO implicated in its review of the 1975 promotion decision, had some responsibility for the SKAP (Skills, Knowledge, Ability and Personal characteristics) ratings Snyder received, while Mervin Edwards as Emmanuel’s immediate supervisor, had responsibility for his initial ratings.

Plaintiff contends that the subjective nature of the rating system enabled these persons to discriminate against him. The evidence at trial, though, does not support this criticism. Army regulations limit to B’s the marks an employee and his supervisor can award the employee. Only an independent reviewer can increase an employee’s ratings to A’s. While Emmanuel and Snyder each received all B’s in the initial ratings they gave themselves and then received comparable marks from their immediate supervisors, an independent reviewer, Col. Michael J. Pepe, upgraded Snyder’s marks to A’s in five categories, while Emmanuel’s marks remained at their original level of ten B’s and one C. Col. Pepe did not know the plaintiff, or Edwards, or Green-wall. He upgraded Snyder’s marks because he thought the employee deserved better ratings.

Unlike the person who reviewed Emmanuel’s marks, though, Col. Pepe had the benefit of current information when he examined Snyder’s ratings. Although Army civilian employees usually update their SKAP ratings each July, Snyder updated his marks in February, 1980. Plaintiff claims that someone told Snyder about an impending vacancy for which he might be eligible and that Snyder received extra, inappropriate help in updating his scores. Snyder testified that he became aware of the opening at the GS-13 level, and decided to provide the Army Civilian Personnel Center (CIVPERCEN) with updated scores. Plaintiff does not deny that Snyder had the right to supply the Army personnel agency with up-to-date information at any time or that while he also had this right, he failed to take advantage of it. In fact, by way of a letter on March 21, 1979, plaintiff requested that his 1978 SKAP evaluation remain valid for 1979. He knowingly bypassed an opportunity to provide CIVPERCEN with more current information.

In 1980, Lt. Col. Robert G. Straeb, Chief of the Distribution and Transportation Division at TSARCOM, began looking for someone to fill the position occupied by Mervin Edwards, Branch Chief and Supervisory Packaging Specialist at the GS-13 level. The position became available because of Edwards’ imminent retirement. As a temporary measure, Lt. Col. Straeb appointed the plaintiff to the available position for the period April 5, 1980, until May 5, 1980. Pursuant to proper procedure, Straeb on December 10, 1980, filed a Standard Form 52, Number 2-1533-79 with CIVPERCEN, requesting a list of persons in the St Louis area qualified for the position of Supervisory Packaging Specialist, GS-2032-13. On February 13, 1980, CIVPERCEN provided TSARCOM with a list of four qualified persons, including Emmanuel and Snyder. The other two persons on the list were white males.

Lt. Col. Straeb conducted a comparative analysis of the applicants, considering only their SKAP criteria, awards, education, training and experience. Obviously, since the plaintiff had not updated his Form 2302, Lt. Col. Straeb could not consider the training, education and awards Emmanuel received in 1976 and 1977. Straeb conducted interviews of the persons on the CIVPERCEN list, but did so only to provide the applicants with information about the selection process, and not to seek additional information from the applicants personally.

On April 17,1980, Straeb selected Snyder for the available position on the basis of his superior SKAP scores, experience, training and awards. Straeb found Snyder’s SKAP scores especially superior to plaintiff’s in the technical areas, and considered the Sustained Performance Award Snyder had received particularly persuasive.

Gen. Leo J. Pigaty, Deputy Commanding General of TSARCOM in St. Louis, was Director of Material Management at TSARCOM in 1980 and Lt. Col. Straeb’s supervisor. He conducted an independent review of Straeb’s decision to promote Snyder, focusing specifically on information in the applicants’ 2302 forms. Gen. Pigaty determined that Snyder was clearly superior to Emmanuel in terms of experience, awards and training and found his promotion appropriate. He, too, was particularly impressed with the Sustained Performance Award Snyder received. Gen. Pigaty found that the contrast between the abilities of Emmanuel and Snyder was quite large and, concomitantly, the decision to promote Snyder was a relatively easy decision to make. Again, Gen. Pigaty did not know of the awards and training that plaintiff had declined to include on his form 2302.

After receiving notification that Lt. Col. Straeb had selected Snyder for the GS-13 position, Emmanuel filed a formal complaint with USACARO on November 14, 1980, alleging that the Army had discriminated against him on the basis of race. In an affidavit plaintiff presented to the agency, he clearly expressed his intent to withdraw his charge that various persons had retaliated against him for his 1975 employment discrimination complaint. After conducting an investigation, USACARO determined that plaintiff’s discrimination complaint was valid and issued a finding of probable cause. The Review Office found that Lt. Col. Straeb should have given Emmanuel some credit for the one month experience he gained at the GS-13 level by virtue of his temporary appointment, and more credit for his supervisory duties at the GS-12 level. It also found that plaintiff had a higher level of formal education than Snyder. USACARO considered these findings within the context of the TSARCOM EEO Affirmative Action Program Plan for Fiscal Year 1980, and recommended that Emmanuel receive a promotion to the position of supervisory Packaging Specialist retroactive to May 18, 1980.

On April 8, 1982, Gen. Emil L. Konopnicki informed the plaintiff that the Army had rejected USACARO’s recommendation. The Army disagreed with the reviewing agency’s depiction of the relative qualifications of Snyder and Emmanuel, believing that USACARO had placed insufficient weight on Snyder’s superior SKAP scores. Also, the Army found the USACARO report incorrectly summarized the two applicants’ experience since the records demonstrated that Snyder had seven more years of experience than Emmanuel and that his experience was more closely related to the job requirements of the available position. In addition, the Army took issue with the report’s depiction of the EEO statistics. After carefully reviewing the testimony and documentary evidence presented at trial, the Court finds Gen. Konopnicki’s view of the applicants’ respective backgrounds more in tune with the evidence than the interpretation USACARO offered.

Leon Paige testified that TSARCOM employs a disproportionately small number of black males at the higher GS levels. He also testified that reviewing officers never upgrade the SKAP marks for these employees, but admitted that he did not know whether supervisors upgrade the SKAP scores for the white employees in the GS-12 grade. General Pigaty testified that the higher GS levels at TSARCOM contain a balance of blacks and other minorities.

CONCLUSIONS OF LAW

The Court has subject matter jurisdiction over this federal question pursuant to 42 U.S.C. § 2000e and 28 U.S.C. § 1331(a). Venue is proper in this district. 42 U.S.C. § 2000e-5(f)(3).

The Court reserved its ruling on defendant’s motion for partial summary judgment for consideration with the case. The Army contends that plaintiff changed the theory of his case shortly before trial from one of racial discrimination to one of retaliatory treatment for bringing the 1975 EEO action. The Army believes this shift is improper since plaintiff specifically withdrew the retaliation charge from his EEO complaint, and did not plead retaliatory treatment in his civil complaint.

Plaintiff submitted evidence at trial that he intended to withdraw his retaliation allegations as to Lt. Col. Straeb only, and not as to Edwards and Greenwall. The actual language in the affidavit, though, does not support plaintiff’s contention. It demonstrates in no uncertain terms that Emmanuel withdrew all allegations of retaliation from the USACARO proceedings. Consequently, plaintiff has not exhausted his administrative remedies for any complaints he may have under 42 U.S.C. § 2000e-3(a) that the Army retaliated against him for his 1975 EEO filing. Administrative exhaustion is a jurisdictional requirement for a Title VII action against the federal government. Brown v. GSA, 425 U.S. 820, 824-35, 96 S.Ct. 1961, 1963-69, 48 L.Ed.2d 402 (1976). Plaintiff’s failure to pursue his administrative remedies and his failure to include an allegation of retaliatory treatment in his civil complaint preclude this Court from treating this action as one for relief from an unfair and retaliatory employment practice. The Court, though, will deny defendant’s motion for partial summary judgment because plaintiff’s failure to maintain any action he might have had under § 2000e-3(a) for retaliatory treatment has no relevance as to whether the Court should grant a summary judgment on the complaint as pled. Rather, any evidence that the Army retaliated against plaintiff for his 1975 EEO filing falls outside the scope of the pleadings. The only relevant evidence is that which tends to show the Army discriminated against defendant on the basis of race. Since the plaintiff appears to have tried the case on a retaliation theory, the evidence presented does not mesh well with the complaint’s allegation of racial discrimination.

When analyzing a Title VII claim, a Court can use either the disparate impact model or the disparate treatment model. See Teamsters v. U.S., 431 U.S. 324, 335-37, 97 S.Ct. 1843, 1854-55, 52 L.Ed.2d 396 (1976) (footnote 15). Plaintiff contends that both models have applicability here. However, in McRae v. General Dynamics Corp., 774 F.2d 1171 (8th Cir.1985), an employee challenged a corporate promotions policy in which a reviewer considered a number of factors in rating applicants, but which did not involve the use of a facially neutral testing device. In finding the disparate impact model inapplicable, the Eighth Circuit notes

This case involves no facially neutral test of employment. Rather, it is the subjectivity of the promotional procedure that is being challenged. A subjective personnel procedure, by definition, functions not solely through facially objective measures of ability, but employs judgment and intuition in conjunction with objective measures, such as education and demonstrated skills, to achieve its ends. Here, there was no one hoop, such as a minimum education requirement, through which everyone had to pass; rather, the totality of a candidate’s qualifications were analyzed in making decisions. Thus, the District Court properly analyzed this case under the disparate treatment model of liability.

Slip Op. at 4. Since Emmanuel challenges a subjective promotions and ratings system, and not a facially neutral objective test, the Court will examine the propriety of the Army’s actions within the context of the disparate treatment model only.

The Supreme Court has developed a three-step test by which courts should analyze most allegations of disparate treatment. See McDonnell Douglas v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981); and U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983). The plaintiff must first establish a prima facie case of racial discrimination by showing that he is a member of a racial minority, that he applied for and was qualified for an available job, and that despite his qualifications, the employer rejected him for a white candidate. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. The burden of production then shifts to the employer, who must “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. The leading case on the employer’s burden of production is Burdine, where the Supreme Court notes

It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant.

450 U.S. at 254-55, 101 S.Ct. at 1094. (footnotes omitted). If the employer adequately meets his burden during the intermediate stage of the McDonnell Douglas analysis, the burden shifts back to the plaintiff to demonstrate that the employer’s ostensible reasons for refusing to promote him are merely a pretext for impermissible racial discrimination. McDonnell Douglas, 411 U.S. at 803-04, 93 S.Ct. at 1824-25.

The Court reserved its ruling on defendant’s motion for a directed verdict for consideration with the case in chief and now holds that plaintiff established a prima facie case of racial discrimination. The Army filled an available position with a white male even though Emmanuel, a black male, was qualified. The Army has also met its burden since it articulated convincing reasons why it chose Snyder for the promotion. Defendants submitted evidence that tends to support the decisions made by Lt. Col. Straeb and General Pigaty. As a consequence, the Court must now determine whether the reasons the Army offers were a pretext for racial discrimination.

Plaintiff offered no credible evidence that racial motivations played any part in the ultimate decisions made by Lt. Col. Straeb or Gen. Pigaty. Further, the sketchy, incomplete and uninterpreted statistical evidence that plaintiff submitted proves little. See Harper v. Trans World Airlines, 525 F.2d 409, 412 (8th Cir.1975). However, if racially discriminatory motives affected the development and compilation of information on which Straeb and Pigaty based their decision, then the promotion of Snyder is suspect even though the decision-makers acted with complete integrity. Since these two men based their decision on the two applicants’ SKAP ratings, education, training and awards, the Court must determine whether an impermissible racial animus affected the development of the employment records of Snyder and Emmanuel in these areas.

The plaintiff does not allege that TSARCOM employees had any impact on the applicants’ respective levels of education and training. Further, the presence of procedural checks within the systems TSARCOM used to develop SKAP ratings and to make awards rebut the plaintiff’s suggestion that an impermissible racial animus affected many of the actions taken by TSARCOM supervisors. Col. Pepe, the independent reviewing officer who upgraded Snyder’s SKAP ratings, gave credible testimony that he improved the employee ratings solely on the basis of merit. Other evidence at the trial suggests that Snyder’s fellow workers view him as much more qualified and competent than Emmanuel in the area of packaging policy.

Plaintiff contends that Snyder received the Sustained Performance Award at the instigation of Mervin Edwards and John Greenwall, persons whom USACARO determined has discriminated against the plaintiff in 1975. While Edwards certainly knew that he would eventually retire, it strains reasonableness for the plaintiff to suggest that Edwards arranged for Snyder to receive an award that would help him obtain a promotion two years before the position became available. Edwards testified credibly at trial that Snyder’s superior performance, and no other reason, induced him to nominate the employee for the Sustained Performance Award.

Further, the credible testimony at trial demonstrated no impropriety in the manner in which Snyder provided CIVPERCEN with updated information for his form 2302. More importantly, though, Emmanuel can blame only himself for his failure to provide CIVPERCEN with current information.

The plaintiff's claim that Edwards gave him low SKAP marks, that Greenwall gave Snyder high SKAP marks, and that the two conspired to procure a high level award for Snyder is more appropriately categorized as a retaliation claim, which this Court cannot consider for reasons discussed above. The evidence plaintiff presented simply does not establish by a preponderance of the credible evidence the charge of racial discrimination alleged in his complaint.

Accordingly,

IT IS HEREBY ORDERED that judgment be and is entered in this cause in favor of the defendant and against the plaintiff. This judgment includes an award of all recoverable costs of suit.

      . Q: Is there any additional information you wish to provide at this time?
      A: Yes. In my formal complaint of discrimination I raised the allegation of reprisal. After consultation with my representative, Mr. Leon Paige, I do not wish to pursue this issue. Again, it is my contention that if LTC Straeb had considered my accomplishments (illegible) as he did consider those of Mr. Snyder, it is my belief that my experience as a Packaging Specialist, my training and my awards, as well as my education, I would have been selected for promotion to this position as I believe I was better qualified in overall factors relied on in the selection action.
      Affidavit of Alston A. Emmanuel, October 1, 1981.


author: SWEET, District Judge.

text:
    LONDON TYPOGRAPHERS, INC., and Dinshaw Sachinvala, Plaintiffs, v. Charles C. SAVA, District Director and Stanley McKinley, Regional Commissioner, U.S. Immigration Service, Defendants.
    No. 85 Civ. 4164 (RWS).
    United States District Court, S.D. New York.
    Jan. 31, 1986.

      Omar Z. Ghobashy, New York City, for plaintiffs.
    Rudolph W. Giuliani, U.S. Atty., Jorge d Guttlein, Asst. U.S. Atty., of counsel, New York City, for defendants.
   OPINION

SWEET, District Judge.

Plaintiffs London Typographers, Inc. (“petitioner” or “London Typographers”) and Dinshaw Sachinvala (“beneficiary” or “Sachinvala”) bring this action to challenge the final decision of defendants Charles C. Sava (“District Director”), New York District Director of the Immigration and Naturalization Service (“INS”) and Stanley E. McKinley, Eastern Regional Commissioner of the INS (“Regional Commissioner”), seeking a reversal of the denial of Sachinvala’s visa petition. Petitioner and beneficiary have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., claiming that the denial of the immigration petition was arbitrary and capricious, although the moving papers fail to include a Local Rule 3(g) statement setting forth undisputed material facts and fail to include a memorandum of law setting forth points and authorities in support of its motion as is required by Local Rule 3(b). The INS has cross-moved for judgment on the pleadings pursuant to Rule 12(c) Fed.R.Civ.P., seeking a declaration that the denial of the immigrant visa was in accordance with the statutory directives of the Immigration and Nationality Act (the “Act”) and was not an abuse of discretion. For the reasons set forth below, petitioner and beneficiary’s motion for summary judgment is denied, and the cross motion to dismiss is granted.

Prior Proceedings

London Typographers filed this action on June 3, 1985 and served a summons and complaint on the District Director of the U.S. Immigration and Naturalization Service on June 5, 1985. On September 19, 1985 London Typographers filed a notice of motion for a default and summary judgment pursuant to Rules 55 and 56, Fed.R. Civ.P., which was granted by memo endorsement of this court on October 7,1985, no opposition having been filed. On the same day, however, Michael D. Patrick, Special Assistant United States Attorney, wrote to the court to explain the reasons for defendants delayed response, which letter was received on October 14, 1985 and treated as a motion to reargue pursuant to Rules 55(c) and 60(b), Fed.R.Civ.P., and granted on October 14, 1985. On November 21, 1985 the INS filed its notice of motion for an order granting judgment on the pleadings, argued before this court on November 22, 1984.

Statutory Scheme

Aliens seeking to immigrate to the United States must obtain an immigrant visa pursuant to the preference system set up by Congress in Section 203 of the Immigration and Nationality Naturalization Act (the “Act”), 8 U.S.C. § 1153. The sixth preference category, the section under which the beneficiary sought his exemption, provides:

(6) Visas shall next be made available, in a number not to exceed 10 per centum of the number specified in section 201(a), to qualified immigrants who are capable of performing specified skilled or unskilled labor, not of temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States.

A prerequisite to a sixth preference visa classification is a certificate from the Department of Labor (“DOL”) pursuant to 8 U.S.C. § 1182(a)(14), section 212(a)(14) of the Act, that there are insufficient United States workers to fill the position which the petitioner offers the beneficiary, and that the employment offered will not adversely affect the wages or working conditions of workers in the United States. The Attorney General is charged with the responsibility of approving the visa application under the preference category. Section 204 of the Act provides in relevant part:

(a) ... any person desiring and intending to employ within the United States an alien entitled to classification as a preference immigrant under section 203(a)(6) may file a petition with the Attorney General for such classification
(b) After an investigation of the facts in each case, and after a consultation with the Secretary of Labor with respect to petitions to accord a status under section 203(a)(3), or (b), the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made ... is eligible for a preference status under section 203(a), approve the petition ...

8 C.F.R. § 2.1 delegates all of these investigatory powers of the Attorney General to the INS if they relate to the immigration and naturalization of aliens.

Facts

The facts of this action, contained in the administrative record of the proceedings below, constitute the only evidence upon which this court may adjudicate. Navarro v. District Director, 574 F.2d 379, 383 (7th Cir.), cert. denied, 439 U.S. 861, 99 S.Ct. 182, 58 L.Ed.2d 170 (1978); Black Construction Corp. v. INS, 746 F.2d 503, 505 (9th Cir.1984).

On December 21, 1979, the petitioner London Typographers filed an application for alien employment with the DOL, asserting that it needed an employee with four years of experience as a “compositor-typesetter-proofreader” of the Persian, Urdu, Gujrati and Hindi languages. The petitioner identified Dinshaw Sachinvala, a Pakistani citizen, as the beneficiary of the application, and stated that it would employ Sachinvala on a full-time basis at a salary of $11,700.00. Pursuant to ' section 212(a)(14) of the Act, the DOL certified that there were insufficient workers to fill the typesetting position and that Sachinvala’s employment would not adversely affect the working conditions or wages of workers in the United States.

On November 18, 1980, petitioner and beneficiary submitted an 1-140 petition to classify Sachinvala as eligible for sixth preference status under the Act. Along with this application, Sachinvala submitted several documents relevant to his qualifications for the job, including a memorandum dated May 4, 1970 from a person who identified himself as the managing partner of a business under the name of Jupiter Services. The memo in pertinent part provided:

This is to certify that Mr. Dinshaw R. Sachinvala s/o Rustchjee H. Sachinvala was appointed on 1st October 1965 at our press for Typesetting and Proofreading. He worked in this position for 8 months and later even undertook to perform electric control repairs of press equipments. During the 4V2 years that he worked for us we found him enterprising, enthusiastic and very cooperative. He knows Gujrati, Urdu and Persian in addition to of course a good knowledge of English.

(emphasis supplied). The other documents submitted attested to Sachinvala’s qualifications as an electronics expert, both for the National Iranian Gas Company and as a founder listed in an advertisement for a “Sachin Institute” also located in Pakistan. London Typographers also submitted documentation in support of the 1-140 petition, which included, inter alia, a March 2, 1981 letter from Abraham Mathai (“Mathai”) which stated that the beneficiary was employed by London Typographers at $225.00 per week, and a December 21, 1979 letter from the former president Chris A.H. Quirashi in support of the petition.

On March 10, 1981 Mr. Quirashi submitted a second letter to the INS retracting his support for the petition. It stated in relevant part:

I have been informed from Karachi, through my friend that Mr. Sachinvala is a Doctor Phd and never work in printing trade, he runs a Radio School, now his sons are running, and that service certificate requires investigation in Karachi, Pakistan.
Mr. Sachinvala, Dinshaw was holding 50% stock of London Typographers, Inc. he has given special deal to new Indian owner of London Typographers, Inc. on condition that he will do his immigration, issuing employment letter etc. ...

The INS required the petitioner to appear for an interview on March 18, 1981. At that interview the attorney for petitioner and beneficiary told the examiner that Quirashi’s letter disputing Sachinvala’s qualifications was the result of a disagreement between Quirashi and the beneficiary, and that in any event the current president Mathai wished to proceed with the application and the former president had no authority to revoke the petition endorsed by the company and not by him personally.

On March 31, 1981 Quirashi wrote a sworn letter to the INS retracting his earlier statements about Sachinvala:

On advise of counsel, I discovered that the petition was filed by London Typographers, Inc., and not by me personally, and therefore I do not have the power to withdraw it. My request should therefore not be entertained, and be considered of no validity.
With regard to the statement as to previous employment, I wish to retract this statement.

On May 24, 1983, no action having been taken on the petition for two years, a delay unaccounted for by the service, the INS instructed Sachinvala and petitioner to resubmit its corporate charter and 1979, 1980 tax returns. While the petitioner failed to submit its 1979 and 1980 federal tax returns, the return submitted for 1981 revealed that the petitioner had a net taxable income of minus $38,500.00, in contrast to its labor certification application which claimed a $150,000.00 net annual income. An unsigned financial statement and a letter from petitioner’s accountant Wesley Parker explaining that the negative net income of petitioner was the result of $38,-508.00 of accumulated losses over the eight years of petitioner’s existence and that any shortfall was made up by a capital contribution of an unspecified shareholder not reflected on the financial documents submitted.

On July 19, 1983 the District Director denied the petition for the following reasons:

A review of the documents submitted in support of your petition indicates that the beneficiary had eight (8) months’ experience in typesetting and proofreading. It was found in the Matter of the Great Wall, 16 I. & N.Dec. 142 (A.R.C.1977), that in sixth preference visa petition proceedings this Service must consider the merits of the petitioners [sic] job offer, so that a determination can be made whether the job offer is realistic and whether the wage offer can be met. The instant petition and supporting documents were returned with Form 1-72 requesting copies of the corporate tax returns for the years 1979 and 1980. The record now includes a copy of your corporate tax returns for the year beginning June 1, 1981 and ending May 31, 1982. The balance sheet for this period indicates that the ratio of liabilities to assets was approximately 7 to 1 and that the corporation had retained earnings of negative $38,508.00. You have offered no other evidence to establish that you were able to meet the wage offer as of December 21, 1979, the filing date of the instant petition.
Therefore, it is concluded that you have failed to establish that the beneficiary had the required experience and that you were able to meet the wage offer.

On approximately July 27, 1983, petitioner appealed the District Director’s decision to the Regional Commissioner who affirmed the decision of the District Director. By opinion of January 25, 1984, the Regional Commissioner observed in relevant part:

The ‘ petitioner must establish that the beneficiary possesses all of the minimum requirements specified in the job offer, as of the filing date of the petition; Matter of Wing’s Tea House, 16 I. & N.Dec. 158 (Acting R.C.1977). The minimum requirements call for four years experience in the job being offered. A review of the evidence submitted fails to establish the requisite experience. Counsel on appeal argues that the service’s conclusion as to lack of experience is totally unsupported and that “there is nothing that reflects that the alien has 8 months experience.” Counsel’s incredible statement flies in the face of the very evidence submitted by him which clearly states “... (beneficiary) was appointed on 1st October, 1965 at our press for Typesetting and Proofreading. He worked in this position for 8 months.” Even if we assume arguendo that the petitioner is capable of paying the proffered wage, the requisite experience has not been shown.

On April 17, 1984, petitioner moved to reopen the decision of the Regional Commissioner. Petitioner submitted affidavits from two of Sachinvala’s alleged former customers at Jupiter Services and a March 3, 1984 letter from an alleged partner at Jupiter Services which attempted to clarify the May 4, 1970 letter which had been written fourteen years prior by a different partner at Jupiter Services. This clarification letter asserted that the INS had misread the first letter:

We never intended to convey the meaning that he worked only for 8 months type setting and proof-reading. We meant that after 8 months, his duties in addition to typesetting and proofreading expanded to include electrical control repair of the press equipment ... We confirm that Mr. Dinshaw R. Sachinvala had worked entire 4V2 years in typesetting proofreading, using Gujrati, Urdu, Persian and English. He is highly proficient and possesses excellent experience.

On July 30, 1984, the American Consul in Karachi, Pakistan, responding to the inquiries of the Regional Commissioner seeking to verify the existence of Jupiter Services, sent the following letter to the Regional Commissioner:

Sidsons Building [*] is a four story building, three of which are residential flats. The ground floor is occupied by primarily electronic parts and auto spare part shops. There is no evidence of a printing-design shop there.
The son of the landlord, who has owned the building since 1960, said he had no knowledge of Jupiter Services of Mian Rasheed Muslim being tenants of the building. Another tenant (since 1947) said the same. The current tenant of # 2 Sidsons Building said he has occupied since 1978, the space formerly held by Sachinvala Institute, a private training institute for radio/TV mechanics and radio officers.
Since, according to file, Jupiter Services supposedly co-occupied space with Sachinvala Institute which was owned by the beneficiary we cannot expect to get any more accurate information about the previous existence of the firm. We can, however, confirm that Jupiter Services does not now exist at Sidsons Building on Preedy Street.

On Approximately August 17, 1984 the Regional Commissioner informed petitioner’s attorney of this letter from the consulate and invited him to submit rebuttal evidence to this letter within fifteen days in further support of his motion to reopen the decision of the Regional Commissioner (Complaint Exhibit “G”). In response to this letter, attorney for the petitioner mailed additional evidence on October 16, 1984 to the District Director but not directly to the office of the Regional Commissioner.

On October 17, 1984, the Regional Commissioner granted the motion to reopen the denial of the petition, but simultaneously reaffirmed his decision of January 25,1984, stating:

The District Director originally denied the petition and the denial was upheld by the Regional Commissioner for failure of the petitioner to establish that the beneficiary has the requisite experience.
Petitioner, through counsel, submits new evidence in the form of a notarized attestation from a partner in a firm which was subsequently found by the American Consul in Karachi to be nonexistant, as well as two statements from acquaintances of the beneficiary who, although engaged in business in unrelated industries, purport to establish beneficiary’s qualifications based upon occasional visits to his shop over fifteen years ago. Counsel was afforded the opportunity to rebut the evidence obtained from the American Consul, yet has remained silent.
In view of the extremely questionable value of the evidence submitted, we find no reason to change our previous decision.

Petitioner’s rebuttal evidence was not received or taken into consideration in the Regional Commissioner’s final denial of the petition. However, by letter of November 14, 1984 the Commissioner acknowledged the late receipt of the additional material and stated that, “It will be entered into the record and, if appropriate, it will be considered as if it had been received within the stipulated period.” (Complaint Exhibit “J”). Neither this letter nor the additional evidence submitted on October 16, 1984 appears in the administrative record. By letter of December 31, 1984 the Regional Commissioner informed petitioner’s counsel that the new evidence received after the October 17, 1984 denial of the petition did not alter the Regional Commissioner’s decision (Complaint Exhibit “L”).

Discussion

Petitioner asserts three claims in this appeal whose review jurisdiction is based on the Administrative Procedure Act 5 U.S.C. §§ 701 et seq. First, petitioner claims that the Regional Commissioner’s denial of sixth preference status was an abuse of discretion pursuant to 5 U.S.C. § 706(2)(A) & (E), contending that the denial was contrary to applicable laws and regulations and is unsupported by substantial evidence. Second, the petitioner asserts that the Regional Commissioner had no jurisdiction over the appeal taken from the decision of the District Director. Finally, petitioner claims that the service’s two and one-half year delay in ruling on the visa petition estops the service from denying the visa preference. All three contentions are rejected.

Abuse of Discretion

The petitioner claims that Sachinvala’s application for preference status and supporting letters demonstrated that he possessed the requisite experience as a typesetter and proofreader, and that the Regional Commissioner’s contrary determination was an abuse of discretion. Furthermore, the petitioner claims that the Regional Commissioner’s gathering of information from the American Consulate in Karachi, Pakistan on the status of Jupiter Services was an abuse of his authority to rule on appeals from the office of the District Director.

The grant or denial of a visa preference is within the discretionary powers of the INS, and this court’s review is limited to determining whether the INS abused its discretion. North American Industries, Inc. v. Feldman, 722 F.2d 893, 898 (1st Cir.1983); Mila v. District Director of Denver, 678 F.2d 123, 125 (10th Cir.1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 726, 74 L.Ed.2d 952 (1983); Song Jook Suh v. Rosenberg, 437 F.2d 1098 (9th Cir.1971). It is settled law in this Circuit that abuse of discretion is shown only if the decision under review was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group, Li Cheung v. Esperdy, 377 F.2d 819 (2d Cir.1967); Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d 715, 719 (2d Cir.1966). Within this inquiry it is the petitioner or beneficiary who must carry the burden of proving that he is eligible for the preference benefit, Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305 (9th Cir.1984); K.C.P. Food Co., Inc. v. Charles C. Sava, 623 F.Supp. 1080 (S.D.N.Y.1985), citing In Re Brantigan, 11 I. & N.Dec. 493, 495 (B.I.A.1966).

The court’s role in this abuse of discretion inquiry is narrowly defined, as it is limited to review of the administrative record of the proceedings below. Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, supra, 736 F.2d at 1308, and must give deference to the construction of the statutes which it is charged with enforcing. De Los Santos v. INS, 690 F.2d 56, 59-60 (2d Cir.1982); Bertrand v. Sava, 684 F.2d 204, 211-217 (2d Cir.1982) (the court is not entitled to substitute its own judgment for that of the Director of the INS).

London Typographers and Sachinvala claim that the Regional Commissioner’s finding that Sachinvala lacked the requisite proofreading and typesetting experience, the sole issue raised in the appeal, was an abuse of discretion. A review of the evidence before the INS demonstrates, however, that the beneficiary failed to prove that he had the four years experience which petitioner requested in its labor certification application.

Petitioner’s submission of the letter of May 4, 1970 from a purported managing partner of Jupiter Services stated that Sachinvala “was appointed on 1st October 1965 at our Press for Type-setting and Proofreading. He worked in this position for 8 months and later even undertook to perform electric control repairs of press equipments.” (emphasis supplied). The INS’ initially determined the language to mean that Sachinvala possessed only eight months of the requisite experience. While petitioner submitted evidence to rebut this charge of lack of experience in support of his petition to reopen the Regional Commissioner’s affirmation of the decision of the District Director, this rebuttal evidence was equivocal at best. Although the March 3, 1984 letter from Jupiter Services purporting to clarify the 1970 letter states that Sachinvala did have 4V2 years experience as a typesetter, this correction letter was written by a different partner and apparently relied on company records of Sachinvala’s employment fourteen years previously. In addition, the investigation of the American Consulate in Karachi dated July 30, 1984, showed that Jupiter Services did not exist at Preedy Street, Sidsons Building as of the time of the report. This discovery also casts doubt on the validity of the March 3, 1984 letter, as it lists the same incorrect address as was submitted with the original letter in support of the petition.

Nor can the two additional letters in support be considered conclusive evidence of the beneficiary’s typesetting abilities. Although the two sworn statements of the beneficiary’s former customers stated that they saw Sachinvala typesetting and printing for Jupiter Services, the Regional Commissioner had reason to discount the validity of these statements in light of the American Consulate’s finding that Jupiter Services no longer existed at the Preedy Street address, and that the son of the landlord and various building tenants who owned the building since 1960 disclaimed any knowledge of Jupiter Services. Although the petitioner and beneficiaries claim that Jupiter Services had co-occupied the Sid-sons Building space with the Sachin Institute, this electronics and radio training institute was founded and owned by the beneficiary.

While the quoted language of the 1970 letter in my view is equally subject to the interpretation sought by petitioner, namely that Sachinvala had performed the duties of a typesetter for four years, this court cannot conclude that the Regional Commissioner’s finding was without rational explanation given the questionable aspects of the proof submitted. Li Cheung v. Esperdy, supra, Wong Wing Hang v. INS, supra. This is particularly true in light of Quirashi's initial recantation of his support for the beneficiary’s application. The Regional Commissioner was entitled to consider both the Quirashi letter of March 10, 1981 stating that Sachinvala never worked in the printing trade and that he was compensating the petitioner for its immigration support, and the Quirashi clarification letter of March 31, 1981 retracting and withdrawing the previous statements in his discretionary evaluation of Sachinvala’s qualification for sixth preference status. This court is not empowered to encroach on the INS’ discretionary authority to weigh conflicting evidence in absence of any indication of an abuse of discretion. See United States v. Valenzuela-Bernal, 458 U.S. 858, 864, 102 S.Ct. 3440, 3444, 73 L.Ed.2d 1193 (1982) (the INS has plenary power to make rules for the admission of aliens); Immigration and Naturalization Service v. Jong Ha Wang, 450 U.S. 139, 144, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981) (the INS’ denial of relief should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute); Bertrand v. Sava, supra, 684 F.2d at 211, 217 (2d Cir.1982) (Trial courts cannot substitute its own judgment and policy preferences for those of District Director).

Petitioner also contends that the Regional Commissioner’s second affirmation of the decision of the District Director departed from established INS appeal procedures because the Commissioner had not received petitioner’s rebuttal evidence to the consul’s letter when he denied Sachinvala’s preference visa.

Petitioner’s complaint provides the only evidence of the submission of such rebuttal material to the office of the Regional Commissioner. On August 17, 1984 the Commissioner gave petitioner's counsel 15 days to rebut the evidence submitted by the American Consul in Karachi, Pakistan. On October 16, 1984 petitioner responded to this letter by delivering his rebuttal evidence to the office of the District Director rather than the office of the Regional Commissioner, just one day before the Regional Commissioner reaffirmed his earlier denial of the visa preference. This new evidence was eventually received by the Commissioner, who informed petitioner by letter of November 14, 1984 that the material would be considered as if it had been timely received and would be added to the administrative record. On December 31, 1984 the Commissioner did notify the petitioner that the new evidence did not alter his October 17, 1984 decision, however, the INS never added this material to the administrative record, and only petitioner’s counsel retained the originals of the letters pertaining to this consideration of additional evidence. The issue raised is whether the INS’ failure to consider the evidence prior to the October 17, 1984 decision was arbitrary and capricious.

First, petitioner submitted the rebuttal evidence long after the fifteen-day period in which the Commissioner requested a response, and this submission was to the District Director in New York and not to the Regional Commissioner in Burlington, Vermont. Petitioner’s counsel has offered no explanation as to the reason for his failure to make a timely reply.

In addition, a review of the Service’s summaries of the additional material, which petitioner has not disputed, reveals that this “new” evidence is merely cumulative and does not render the Regional Commissioner’s decision arbitrary and capricious or not supported by substantial evidence. Of the eleven additional documents submitted, four describe qualifications of the beneficiary irrelevant to his abilities as a typesetter, three consist of communications originating from Sachinvala or his attorney, two are letters from alleged former customers of Jupiter Services similar to those previously received by the Regional Commissioner, one is a letter from an unidentified person who attests to the existence of Jupiter Services at the Preedy Street address, and the last is a letter from Quirashi to the New York State Department of Labor which refers to Sachinvala as a foreign language typesetter.

These documents do not present additional material evidence which would have affected the administrative result. Indeed, the Commissioner accepted the new material as if it had been submitted in a timely fashion, but concluded that the evidence did not present anything to alter the previous decision. Under these circumstances, this court will not disturb the INS’ evaluation of the evidence before it or substitute its own policy preference for those of the INS officials. See Bertrand v. Sava, supra, 684 F.2d 217; Gordon & Gordon, Immigration Law and Procedure, § 8-26-8-35, (1980).

Appellate Jurisdiction

The petitioner also claims that the Regional Commissioner had no authority to consider his appeal from the District Director, but cites no relevant authority for this proposition. A review of the chronology of this action demonstrates that the office of the Regional Commissioner had jurisdiction over the appeal.

On or about July 27, 1983 the petitioner appealed the decision of the District Director, which appeal was dismissed by the Regional Commissioner on January 25, 1984. During the interim period on October 3, 1983, the authority to hear appeals from the denial of sixth preference visa petitions was transferred from the Regional Commissioner to the Associate Commissioner, Examinations, of the INS, see 48 Fed.Reg. 43160 (September 22, 1983). On April 17, 1984, the petitioner moved for a reopening and reconsideration of the appeal, but addressed the motion to the Associate Commissioner and filed papers at the office of the District Director. These papers were then forwarded to the office of the Regional Commissioner who reconsidered but reaffirmed his previous decision dismissing the appeal.

Neither of the parties can cite to any authority which grants or prohibits the Regional Commissioner from hearing the reconsideration motion on a validly entertained appeal. However, the courts must give deference to the Service’s own interpretations of the immigration statutes, particularly here where there is an absence of contrary authority. See United States v. Valenzuela-Bernal, supra, 458 U.S. 858, 864, 102 S.Ct. 3440, 3444, 73 L.Ed.2d 1193 (1982); INS v. Miranda, 459 U.S. 14, 19, 103 S.Ct. 281, 283, 74 L.Ed.2d 12 (1982); Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977). As the Second Circuit stated in De Los Santos v. INS, supra, 690 F.2d 56, 60 (2d Cir.1982):

It is not the province of the courts to insist that INS’ interpretations of the Act result in the perfect immigration scheme, or even that they be the best interpretations possible. Rather INS is given a fair amount of latitude to exercise its judgment as to what interpretations will best effectuate the goals of the Act.

(citations omitted).

The petitioner and beneficiary also argue that the Regional Commissioner exceeded his authority by requesting the United States Consulate in Karachi, Pakistan to investigate Jupiter Services. The petitioner relies, however, on regulations applicable to the Board of Immigration Appeals, an adjudicative body independent from the INS which does not have jurisdiction to review the denial of.. a sixth preference classification. See 8 C.F.R. § 3.1(b)(5).

On the contrary, there is substantial statutory authority for an investigatory role for the Regional and Associate Commissioner. The INS’ power to enforce the immigration statutes is delegated by the Attorney General whose responsibilities are detailed in section 204 of the Act which provides in relevant part:

(a) ... any person desiring and intending to employ within the United States an alien entitled to classification as a preference immigrant under section 1153(a)(6) of this title, may file a petition with the Attorney General for such classification.
(b) After an investigation of the facts in each case, and after consultation with the Secretary of Labor with respect to petitioners to accord a status under section 1153(a)(3) or 1153(a)(6) of this title, the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien on behalf of whom the petition is made ... is eligible for a preference status under section 1153(a) of this title, approve the petition____

8 U.S.C. § 1154(a)-(b). All of the investigatory powers of the Attorney General relating to the immigration and naturalization of aliens are delegated to the INS by statute 8 C.F.R. § 2.1.

The petitioner has been unable to cite to any provision in the code of Federal Regulations which prohibit or restrict the Regional or Associate Commissioner’s authority to conduct an independent investigation of facts surrounding the appeal, and this court can find no evidence of such a restriction. 8 C.F.R. §§ 103.3-103.5a.

Estoppel

Petitioners finally contend that the INS’ two and one-half year delay in adjudicating this petition should estop the service from denying this visa. The petitioners cite several cases to support the proposition that delay in processing a visa application may constitute affirmative misconduct which would estop the INS from denying the petition. However, these cases all predate the Supreme Court’s contrary conclusion in Immigration and Naturalization Service v. Miranda, supra, 459 U.S. 14, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982) in which the court held that neither the negligent delay in granting an immigrant visa nor the harm caused by that delay was sufficient to estop the INS’ later denial of the visa. In reaching that conclusion, the court stated:

The only indication of negligence is the length of time that the INS took to process respondent’s application. Although the time was indeed long, we cannot say in the absence of evidence to the contrary that the delay was unwarranted. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 [91 S.Ct. 814, 823, 28 L.Ed.2d 136] (1971) (presumption of regularity suports official act of public officer); United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 [47 S.Ct. 1, 6, 71 L.Ed. 131] (1926) (same). Both the number of the applications received by the INS and the need to investigate their validity may make it difficult for the agency to process an application as promptly as may be desirable.

Id. at 18, 103 S.Ct. at 283 (footnotes omitted).

Furthermore, in Miranda, the beneficiary offered proof that the INS’ delay had caused him harm, as the beneficiary’s wife, a United States citizen, withdrew her petition in support of her husband’s immigration visa because of the deterioration of the marriage. In this case neither London Typographers nor Sachinvala has asserted facts which show that the delay prejudiced the outcome of the application for preference status, and under these circumstances there is no reason to apply equitable estoppel to the government’s visa determination.

For the aforementioned reasons, the petitioner’s motion for summary judgment is denied, and the INS’ motion for judgment on the pleadings is granted. The decision of the Regional Commissioner is hereby affirmed, and the petitioner’s complaint is dismissed.

IT IS SO ORDERED.


author: ARNOLD, District Judge.

text:
    In re GRAND JURY SUBPOENA, NO. GJ 31.
    No. GJ-31.
    United States District Court, W.D. Arkansas, Fort Smith Division.
    Feb. 3, 1986.
    J. Michael Fitzhugh, U.S. Atty., for the Government.
   MEMORANDUM OPINION

ARNOLD, District Judge.

On motion of the United States Attorney, the Court imposed secrecy on a bank that had been served with a grand jury subpoena seeking the records of a customer who was the subject of a grand jury investigation. The bank, which had originally raised no objections to the order, now moves to vacate it on the ground that the court had no power to issue it. The court agrees with the bank’s contention and for the reasons outlined below grants the motion.

The government urges the court that the authority to make such an order can be found in three different sources: The Right to Financial Privacy Act, 12 U.S.C. §§ 3401-22, the All Writs Act, 28 U.S.C. § 1651, and the court’s inherent powers. We address each of these arguments in turn.

The Right to Financial Privacy Act nowhere authorizes the issuance of such an order. Indeed, by its terms, it has no application, with two irrelevant exceptions, to grand jury proceedings. See 12 U.S.C. § 3413(i). It is true that the government’s duty to disclose to a bank customer the existence of a subpoena, when its source is other than a grand jury, can be stayed for a time if the court makes certain factual findings. See 12 U.S.C. § 3409. But the fact that the government may sometimes be relieved of its duty to disclose has no logical bearing on whether a bank can ever be ordered not to disclose.

The All Writs Act confers on federal courts the power to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651. Even if so general a grant could be construed to include the power to issue the order sought here, such an argument is difficult to maintain in the face of the specific command of Fed.R.Crim.P. 6(e)(2), which provides that “[n]o obligation of secrecy may be imposed on any person except in accordance with this rule.” The rule lists the kinds of persons on whom secrecy is imposed, and witnesses are conspicuously absent from the list. Their omission was not accidental. See In re Grand Jury Investigation, 610 F.2d 202, 217 (5th Cir.1980); In re Swearingen Aviation Corp., 605 F.2d 125, 127 (4th Cir.1979) (per curiam); United States v. Radetsky, 535 F.2d 556, 569 (10th Cir.1976), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976); In re Investigation before the April 1975 Grand Jury, 531 F.2d 600, 607 n. 11 (D.C.Cir.1976) (per curiam); In re John Doe, 537 F.Supp. 1038, 1045 n. 6 (D.R.I.1982); Beacon Journal Publishing Co. v. Unger, 532 F.Supp. 55, 59 (N.D.Ohio 1982); In re Vescovo Special Grand Jury, 473 F.Supp. 1335, 1336 (C.D.Cal.1979); In re Grand Jury Witness Subpoenas, 370 F.Supp. 1282, 1285 n. 5 (S.D.Fla.1974). Nor can it be successfully maintained in light of this provision that the court has the inherent power to grant a request by the government for secrecy. See In re Grand Jury Subpoena Duces Tecum, Dated December 9, 1983, 575 F.Supp. 1219, 1222 (E.D.Pa.1983); In re Proceedings before the Grand Jury Summoned October 12, 1970, 321 F.Supp. 238, 240 (N.D.Ohio 1970). See also In re Grand Jury Subpoena Duces Tecum, 575 F.Supp. 93, 94 (S.D.N.Y.1983).

At the argument on the bank’s motion to vacate the secrecy order, the government produced a witness, an agent of the Bureau of Alcohol, Tobacco, and Firearms, who testified that notice of the subpoena to the bank customer in this case might result in serious danger to some person or persons and would create some risk of destruction of evidence, flight from prosecution, or the intimidation of witnesses. A number of courts have indicated in dicta that the power to issue a secrecy order might exist in the event that certain specific factual showings were made. See, e.g., Beacon Journal Publishing Co., 532 F.Supp. at 59; In re East National Bank of Denver, 517 F.Supp. 1061, 1066 (D.Colo.1981); In re Grand Jury Witness Subpoenas, 370 F.Supp. at 1285 n. 5; In re Proceedings before the Grand Jury Summoned October 12, 1970, 321 F.Supp. at 240. One court, presented with certain facts that it did not reveal, did issue a secrecy order against a bank. In re Swearingen Aviation Corp., 486 F.Supp. 9, 11 (D.Md.1979), mandamus to vacate secrecy order denied for lack of standing, 605 F.2d 125 (4th Cir.1979) (per curiam). (That case, incidentally, is the only one discovered in which the government prevailed in its effort to procure an order like the one sought here.) Even if it were conceded that a court might be empowered to order a bank to remain silent in some circumstances, a proposition not obviously right for the reasons outlined above, we are not inclined to believe that the government has in this case made a sufficiently specific showing. The agent who testified named no names, and he gave no detailed reasons for his beliefs. The showing was vague, and the risks claimed were not differentiated from those that would obtain if an indictment is eventually handed down against the customer.

No doubt there are risks involved in circumstances like these, but it is the court’s duty to presume that they were considered when the drafters of Fed.R.Crim.P. 6(e)(2) did their work. It goes without saying that financial institutions ought always to give serious attention to requests by the government to maintain secrecy. After due regard is given to their duty to themselves, including a consideration of any possible liability that might accrue on a theory of breach of the customer’s privacy, it is very likely that financial institutions will frequently acquiesce in such requests. Certainly, we express no opinion that they must reveal the fact of a subpoena to a customer. We hold only that we are without the power to command them not to.