author: WILLIAM C. LEE, District Judge.

text:
    John W. FARRIES, Plaintiff, v. STANADYNE/CHICAGO DIV., Defendant.
    No. F 85-311.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Oct. 1, 1985.

      David W. LaMont, Evansville, Ind., John M. Beams, Fort Wayne, Ind., for plaintiff.
    Michael G. Cleveland, Karen Gatsis Anderson, Chicago, 111., G. William Fishering III, Fort Wayne, Ind., for defendant.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendant’s (“Stanadyne”) Motion to Dismiss. Both parties have fully briefed the issues raised in the motion. For the following reasons, the motion to dismiss will be granted.

This action arises out of Stanadyne’s failure to rehire the plaintiff (“Farries”) upon Farries’ discharge from military service in 1974. According to the allegations of the complaint, Farries had worked for Stanadyne from November, 1968 until July 7, 1970, when he joined the United States Air Force, although an affidavit submitted with Stanadyne’s motion to dismiss indicates that Farries was fired on July 2, 1970. Farries served in the Air Force until September, 1973, and then reenlisted. He served until August, 1974, when he was discharged “under other than honorable conditions.” In October, 1974, and subsequently in 1975 and 1976, Farries applied for reinstatement at Stanadyne, but was denied such reinstatement. In March, 1977, Farries’ discharge was upgraded to “honorable”, retroactive to his August, 1974 discharge. Farries again sought reinstatement on several occasions, but was unsuccessful each time.

Farries now sues under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, 38 U.S.C. § 2021, et seq., claiming that Stanadyne’s refusal to reinstate him violates the Act. Farries filed this suit March 30, 1983, although his in forma pauperis petition was received by the Southern District of Indiana, Evansville Division, on September 23, 1982. Stanadyne moved to dismiss the suit on grounds of improper venue and laches. The case was transferred to this court on July 19, 1985, thereby mooting the venue issue.

Although Stanadyne denominates its motion as a motion to dismiss, it is clear that its argument relies heavily on the affidavit of Arlan G. Anderson, its Manager of Industrial Relations. Proper treatment of the motion requires the court to refer to and rely upon the Anderson affidavit as well. When matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss will be converted into a motion for summary judgment. Fed.R.Civ.P. 12(b)(6).

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Thus, summary judgment serves as a vehicle with which the court “can determine whether further exploration of the facts is necessary.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975).

In making this determination, the court must keep in mind that the entry of summary judgment terminates the litigation, or an aspect thereof, and must draw all inferences from the established or asserted facts in favor of the non-moving party. Peoples Outfitting Co. v. General Electric Credit Corp., 549 F.2d 42 (7th Cir.1977). The non-moving party’s reasonable allegations are to be accepted as true for purposes of summary judgment. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1218-19 (7th Cir.1984). A party may not -rest on the mere allegations of the pleadings or the bare contention that an issue of fact exists. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See also Atchison, Topeka & Santa Fe Railway Co. v. United Transportation Union, 734 F.2d 317 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222 (7th Cir.1983). See generally C. Wright, Law of Federal Courts, § 99 (4th ed. 1983); 6 Moore’s Federal Practice, § 56.15 (2d ed. 1984).

Thus, the moving party must demonstrate the absence of a genuine issue of material fact. The court views all evidence submitted in favor of the non-moving, party. Even if there are some disputed facts, where the undisputed facts are the material facts involved and those facts show one party is entitled to judgment as a matter of law, summary judgment is appropriate. Egger v. Phillips, 710 F.2d 292, 296-97 (7th Cir.1983); Collins v. American Optometric Assn., 693 F.2d 636, 639 (7th Cir.1982). Further, if the court resolves all factual disputes in favor of the non-moving party and still finds summary judgment in favor of the moving party is correct as a matter of law, then the moving party is entitled to summary judgment in his favor. Egger, 710 F.2d at 297. See also Bishop v. Wood, 426 U.S. 341, 348, 348 n. 11, 96 S.Ct. 2074, 2079, 2079 n. 11, 48 L.Ed.2d 684 (1976).

Title 38, § 2021, gives an employee who was inducted into the military the right to be reinstated in his former position or a position of like seniority, status and pay if he received certification of satisfactory completion of military service and applies for reinstatement within ninety days of discharge. If an employer fails to comply with § 2021, § 2022 allows a district court, “upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions,” to require the employer to comply with the statute and compensate the veteran for any wages or benefits lost because of the employer’s unlawful actions.

Stanadyne argues that Farries’ claim under § 2021 is barred by laches because Farries waited almost nine years from the date of his discharge, and six years from the date of his honorable discharge, to file his lawsuit. The Seventh Circuit’s opinion in Lingenfelter v. Keystone Consolidated Industries, Inc., 691 F.2d 339 (7th Cir.1982), is direct precedent on the issue of laches under § 2021. In Lingenfelter, a veteran was denied reinstatement in 1971, was informed that the United States Justice Department would not prosecute his claim in 1974, but waited until 1980 to file his lawsuit. The Seventh Circuit affirmed the district court’s finding that the claim was barred by laches.

According to Lingenfelter, “[ljaches is principally a question of the inequity of permitting a claim to be enforced ... laches is based on changes of conditions or relationships involved with the claim.” Id. at 340. To accurately measure whether the conditions or relationships have changed, a two-pronged test is used. The defendant must show (1) a lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the defending party. Id.

Under the first prong of the test, the plaintiff bears the burden of explaining its delay in bringing the suit. Id.; Baker Manufacturing Co. v. Whitewater Manufacturing Co., 430 F.2d 1008, 1011-15 (7th Cir.1970). Farries left the Air Force in 1974, but did not begin pursuing his § 2021 rights until sometime after March, 1977, when his discharge was upgraded to “honorable.” On December 6, 1978, the Department of Labor issued a letter notifying Stanadyne of Farries’ claim. From December, 1978 until June, 1980, the claim was investigated by the Department and negotiations of some kind occurred among Stanadyne, Farries and the government. In June, 1980, Stanadyne’s contact with the government ceased, but Farries did not file any court proceedings until September, 1982.

Farries does not attempt to offer an explanation for the delay from 1974 until 1978, when the Department of Labor became involved in investigating the claim. The only conceivable explanation is that Farries had to wait until his discharge was “honorable” before he could invoke § 2021. It is true that § 2021(a) requires that a veteran “receive a certificate described in section 9(a) of the Military Selective Service Act (relating to the satisfactory completion of military service)____” Yet there is nothing to suggest that Farries even went so far as to run up against this provision of § 2021. He did not try to file a § 2022 action against Stanadyne, only to be told that he could not proceed until he had an honorable discharge. Other than repeatedly asking Stanadyne for reinstatement, Farries did nothing to pursue his claim for four years.

Further, even if Farries was waiting for the upgrade of his discharge, Stanadyne had nearly four years of inaction by Farries with which to assess its situation. During those four years, Stanadyne paid an employee to do the work which Farries might have done if he had filed suit within those four years and won. From Stanadyne’s perspective, Farries had long since been terminated and was apparently going to press no claim against Stanadyne (as the past four years had indicated).

Once the Department of Labor was informed of the claim, a period of about one and a half to nearly two years of government investigation ensued. The role of delay caused by government investigation of a veteran’s claim has received judicial attention in the past.

Under the Act itself, the Secretary of Labor “shall render aid in the replacement in their former positions or reemployment of persons who have satisfactorily completed any period of active duty in the Armed Forces____” 38 U.S.C. § 2025. Despite this statutory mandate to “render aid”, the delay caused by such government involvement in reinstatement of veterans has not been viewed kindly by courts confronted with a laches defense. Prior to 1974, courts generally held that the delay caused by government investigations was chargeable to the veteran, so that statutes of limitations were not tolled. See Bell v. Aerodex, Inc., 473 F.2d 869, 873 (5th Cir.1973); Blair v. Page Aircraft Maintenance, Inc., 467 F.2d 815, 819 (5th Cir.1972); Leonick v. Jones & Laughlin Steel Corp., 151 F.Supp. 795 (E.D.N.Y.1957), aff'd, 258 F.2d 48 (2d Cir.1958). But see Muscianese v. U.S. Steel Corp., 354 F.Supp. 1394, 1400 n. 1 (E.D.Pa.1973). In 1974, § 2022 was amended to make clear that actions under the Act are equitable in nature, and state statutes of limitations should not be applied in § 2022 proceedings. In discussing the amendment concerning state statutes of limitations, the Senate Report of the Committee on Veterans’ Affairs also stated:

Furthermore, the holdings in Blair ... and Bell ... that the time spent by the governmental agencies charged with the administration and enforcement of this Act in investigation, negotiation, and preparation for suit shall be charged against the veteran in any consideration of a time-barred defense, again misconstrue and misapply congressional intent.

S.Rep. No. 93-907, 93d Cong., 2d Sess. at 111-12.

Subsequent courts have nevertheless continued to hold that governmental delay did not excuse a veteran’s delay. The Eighth Circuit, in Goodman v. McDonnell Douglas Corp., 606 F.2d 800 (8th Cir.1979), after referring to the Senate Committee report, stated:

However, the magnitude of the burden placed on the veteran will not always outweigh the injustice that would accrue to the defendant if the suit were allowed to proceed. The prosecution of stale claims is certainly not a satisfactory norm. Claims should be closely scrutinized and the doctrine of laches is applicable to appropriate factual situations.

Id. at 807. See also Churma v. United States Steel Corp., 514 F.2d 589, 593 (3d Cir.1975). The Goodman court specifically pointed out that the veterans in that case chose to rely on the services of the Department instead of hiring private counsel. 606 F.2d at 807.

The court finds that this is an “appropriate factual situation” within which delay by the Department of Labor should not be excused. Farries left the Air Force in 1974, but did not contact the government until 1978. While this delay may be attributed in part to the fact that Farries’ discharge was not considered “honorable” until 1977, from the perspective of Stanadyne this was four years in which nothing (other than Farries’ attempts to seek reinstatement) occurred. The government investigation then took an additional two years to complete, so that six years had passed by the time the claim was back where it started — in Farries’ hands. In effect, Farries did nothing for four years, and then attempted to place responsibility for the claim in the hands of the Department of Labor. Meanwhile, Stanadyne suffered the prejudicial effect of the loss of evidence and monetary damages described below. The inexcusability of a delay is closely intertwined with the prejudice caused by the delay, Goodman, 606 F.2d at 807. Stanadyne’s prejudice is, as explained below, quite substantial, and under the Goodman rationale outweighs the burden on Farries, especially in light of the fact that the extensive delay in this case is mostly attributable to Farries. The court concludes that the delay from 1974 to 1978 is inexcusable, and the delay from December, 1978 to June, 1980 caused by the Department of Labor investigation is, under Goodman, inexcusable as well.

Farries attempts to explain the delay from June, 1980 to September, 1982 by stating that he spent that time looking for a lawyer to handle his case. Farries does not explain why he was unsuccessful; the fact that he ultimately filed .an in forma pauperis petition and had counsel appointed by the court proves that Farries could have obtained counsel by filing suit expeditiously. Thus, Farries cannot claim that his indigency prevented him from obtaining counsel and filing suit, as “[a] plaintiff cannot justify his lack of diligence in prosecuting litigation simply by declaring that he is poor,” Organizations United for Ecology v. Bell, 446 F.Supp. 535, 550 (M.D.Pa.1978). This is especially true here, for § 2022 specifically allows a veteran to commence an action without having fees or costs taxed against him. Once Farries filed his lawsuit, the court quickly appointed counsel for him. The failure to find counsel to handle a case is therefore not a valid excuse for an over two-year delay in filing suit.

The court therefore finds that Farries’ over eight-year delay from the date of his discharge until the filing of the lawsuit is inexcusable, thereby satisfying the first prong of the laches test under Lingenfelter.

The second prong of the test involves prejudice to the defendant caused by the delay. Stanadyne lists two forms of prejudice: loss of evidence and monetary damages. The loss of evidence relates to the fact that the Manager of Industrial Relations at the time of Farries’ application for reinstatement, Wilson O. Given, died in May, 1980. According to the Anderson affidavit, which is undisputed by Farries, Given had several conversations with Farries at the time of the application, and Given was the only Stanadyne employee with knowledge of what occurred in those conversations. By failing to file suit until 1982, Stanadyne argues, Farries deprived Stanadyne of important evidence for its defense because the testimony of Given is lost forever. Farries argues that the Department of Labor investigation should have put Stanadyne on notice of a possible claim in 1978, thus giving it plenty of time to preserve its evidence, and also that Given’s death occurred before the completion of the investigation, so that Stanadyne would not have had the benefit of Given’s testimony anyway.

Neither excuse offered by Farries is sufficient to avoid the conclusion that Stanadyne was prejudiced by Farries’ delay. In Lingenfelter, the Seventh Circuit found that the fading of key witnesses’ memories during the nine year delay before filing suit was a proper ground for a finding of prejudice to the defendant. This case presents a worse scenario — not only is the witness’ memory gone, but the witness is unavailable as well. Part of Stanadyne’s defense rests upon the fact that Farries was fired from his job prior to his original enlistment, and that certain representations were made to him upon his attempt to return to work. Only Given could testify as to what was told Farries upon his application for reinstatement, and the unavailability of his testimony deals a serious blow to Stanadyne’s defense. Stanadyne cannot reasonably be expected to have had the foresight to preserve Given’s testimony pri- or to his death, especially in light of the fact that Farries had filed no action against it. Not all potential claims against a company blossom into a lawsuit. It would place a terrible burden on a company to preserve evidence for claims that may never be raised or that are raised only after eight years of inaction on the part of the potential plaintiff.

Farries’ second argument — that Given’s testimony would not have been available to Stanadyne anyway — presumes that the delay in waiting for the Department of Labor investigation to be completed was justified, a presumption which the court specifically rejects above. The court therefore finds that the loss of Given’s testimony is a prejudice to Stanadyne specifically caused by Farries. If suit had been filed promptly, a deposition could have preserved testimony that is now irretrievably lost.

Stanadyne’s second prejudice relates to monetary damages it has suffered because of the delay. Specifically, Stanadyne alleges that it had to pay another employee to do the work that Farries might have done had he expeditiously filed suit and won. To pay Farries now for back wages, after having paid another employee for those eight years, would force Stanadyne to pay twice for the same labor, and to pay an amount which was made substantially larger by Farries’ delay in filing suit. The Lingenfelter court specifically found that pecuniary losses in the form of wages paid to other employees can be considered as elements of prejudice in a laches defense. Farries’ delay caused Stanadyne to pay wages for six years before discovering that it may have to pay six additional years of wages. Prejudice can be found both in the increase in Farries’ claim size caused by the delay, and in the benefits awarded other employees that would not have been awarded if Farries had diligently pursued his remedies and been reinstated long ago.

The court therefore finds that Stanadyne has been substantially prejudiced by Farries’ delay, and thus the second prong of the Lingenfelter laches test is satisfied here as well.

This case is closer than the case in Lingenfelter, primarily because the delay involved is shorter, and the Department of Labor investigation intervenes in the middle of the period of delay. Yet the principles of Lingenfelter require this result. The prejudice to Stanadyne caused by Farries’ delay is much greater than the prejudice in Lingenfelter, and this prejudice is directly traceable to Farries’ failure to pursue his remedies expeditiously. Despite the closeness of the case, the court concludes that laches must apply. Because Farries has raised no issues which would amount to a material issue of fact in this case, and Stanadyne is entitled to a judgment as a matter of law on the basis of laches, the court will grant Stanadyne summary judgment in this case.

Conclusion

For the reasons stated above, defendant’s Motion to Dismiss, converted into a motion for summary judgment, is hereby GRANTED.

      . In addition to laches, Farries’ case would have a second serious legal hurdle to overcome. According to the Anderson affidavit, Stanadyne personnel records show that Farries was terminated on July 2, 1970, which would be five days before the complaint alleges Farries joined the Air Force. Section 2021 requires that the veteran “leave[ ] a position ... in the employ of any employer in order to perform such [military] training and service." If Farries had been fired prior to his induction into the Air Force, then he would fail to meet the criteria of § 2021, and thus not be entitled to press a claim under that section.


source: Caselaw Access Project

author: HADEN, Chief Judge.

license: Public Domain

text:
    John W. HARDING, et al, Plaintiffs, v. UNITED STATES POSTAL SERVICE, et al, Defendants.
    Civ. A. No. 83-2434.
    United States District Court, S.D. West Virginia, Charleston Division.
    Oct. 2, 1985.
    Richard L. Withers, Hickok & Withers, L.C., Charleston, W.Va., for plaintiffs.
    Marye L. Wright, Asst. U.S. Atty., Charleston, W.Va., for defendants.
    Jack W. Burtch, Jr., McSweeney, Stutts & Burtch, Richmond, Va., and David D. Johnson, Jackson, Kelly, Holt & O’Farrell, Charleston, W.Va., for Local 305, Nat. Post Office Mail Handlers.
   MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending before the Court is the motion of the Defendants to dismiss or, in the alternative, for summary judgment. The Plaintiffs quite naturally oppose the motion. The parties have filed the appropriate memoranda of law and such have been carefully reviewed by the Court.

The Plaintiffs appear to have settled on a theory for their case. The Defendants note that the action is not brought under the Rehabilitation Act, 29 U.S.C. § 794a; the Plaintiffs do not allege that they are qualified handicapped employees or that they have exhausted administrative remedies. Failure to exhaust administrative remedies also precludes an action under the Federal Tort Claims Act. Neither do the Plaintiffs rest their case upon Title VII of the Civil Rights Act of 1964. Rather, the Plaintiffs’ case can be classified as a Bivens-type action. The Plaintiffs allege that they were denied their Fifth Amendment right to due process by the Postal Service and the individually named Defendants. Specifically, the Plaintiffs claim that the Postal Service employed a presumption of fraud when the Plaintiffs, while employees, filed compensation claims.

The private right of action for constitutional violations created by Bivens v. Six Unknown Named Agents of Federal Bu reau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and previously available to federal employees has been substantially undercut by the subsequent decision in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Bush, an employee of NASA, brought suit on account of a demotion which he had received. The demotion, he argued, was a reaction to his exercise of the First Amendment right of free speech — his criticism of the agency. The Supreme Court held that he was not entitled to a constitutional remedy because of the availability of the administrative procedures provided in the Civil Service Commission’s regulations.

The Plaintiffs here argue that the case of Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), is more apposite in that in Davis the Supreme Court recognized a right of action under the Fifth Amendment. Bush, argue the Plaintiffs, involved a right asserted under the First Amendment. The Plaintiffs’ point is misplaced. The issue, said the Supreme Court in Bush is “[w]hether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional right violation at issue.” In other words, the issue is not under what section of the Constitution the action is brought, but who is bringing it and what additional remedies they have available to them. In Davis, the Plaintiff, a congressional employee, did not have the elaborate administrative and contractual procedures available to her that these Plaintiffs have.

The Plaintiffs here are unique compared with most other federal employees in that they have not one but two different grievance systems available to them. They can proceed under 5 U.S.C. § 7501, et seq. (the merit system) or they can pursue the five-step procedure set out in their union’s collective bargaining agreement with the Postal Service.

Although the Plaintiffs did not assign it as a jurisdictional ground, the Plaintiffs’ suit is quite similar to that authorized under 39 U.S.C. § 1208(b). That section gives federal courts jurisdiction of suits for violation of contracts between the Postal Service and a union or unions. As the Defendants note, Section 1208 parallels the language of that more general labor provision: Section 301 of the National Labor Relations Act, 29 U.S.C. § 185(a). Accordingly, the courts have held that Section 301 law can be applied to the Postal Service analogue. Bowen v. United States Postal Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983) (as noted by White, J., dissenting); Columbia Local, American Postal Workers Union v. Bolger, 621 F.2d 615 (4th Cir.1980) (by implication). As the law has commonly been applied to Section 301 suits, an employee only may go behind a collective bargaining agreement’s final and binding award when he demonstrates that his union’s breach of its duty “seriously undermine[d] the integrity of the arbitral process.” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 1058, 47 L.Ed.2d 231 (1976); see also United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) (the Steelworkers Trilogy)-

The Plaintiffs’ problem in pressing a theory sounding in unfair representation is one of timeliness. The Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) held that the six-month limitation period in Section 10(b) of the NLRA, 29 U.S.C. § 160(b), applied to suits brought against the employer and union under § 301. The Fourth Circuit has since held that DelCostello should be applied retroactively. Murray v. Branch Motor Express Co., 723 F.2d 1146 (4th Cir.1983). The Plaintiffs filed suit after the six-month limitations period. Relative to this problem or not, the unions now have been dismissed voluntarily from this action.

With only the employer and its agents remaining in the suit, the Plaintiffs now proceed under their constitútional tort theory. Clearly, the teaching of Bush v. Lucas applies to the Plaintiffs’ situation. They are federal employees who go the plaintiff in Bush one better: they have a grievance procedure under their collective bargaining agreement in addition to the federal administrative procedures. Plaintiffs argue, however, that they should not be barred by the existence of alternative remedies because those remedies have been “perverted by the due process violations” of which the Plaintiffs complain. In effect, the Plaintiffs have lifted the philosophy and theory behind an unfair representation suit and carried it over to the Bivens constitutional tort theory. There may be a case in which such an approach would bypass the holding of Bush, but this one is not.

To repeat, the Plaintiffs contend that “certain procedural evidentiary presumptions of guilt have unduly tainted” the other systems. The Court finds this argument to be nothing more than a subterfuge by which the Plaintiffs wish to relitigate what has already been decided. The so-called “presumptions” of the Postal Service appear to be little more than reasonable determinations of probable cause to investigate. Both Plaintiffs Harding and Goff admit that they referred to incorrect dates in reporting injuries they allegedly received on the job. The Court fails to see how this tenuously asserted theory regarding a presumption of fraud “tainted” the arbitration process between the union and the Postal Service. Harding and Goff both proceeded to final arbitration. The Court does not believe they should now be allowed to subvert the holdings of Bush and the Steelworkers Trilogy with this thinly disguised end run.

The above also applies to Plaintiff Williams. In addition, the Court notes that Williams conceded he could no longer perform his duties as a mail handler. It is for this that the Defendants assert he was dismissed for cause. The Court agrees. Because Williams had not worked for the Postal Service for at least five years, he had no right to be assigned to lighter duty. See Article 13, Section 13.2 of the National Agreement; see also Jackson v. United States Postal Service, 666 F.2d 258 (5th Cir.1982).

Accordingly, the Court hereby grants the motion of the Defendants. This action is dismissed for failure to state a claim upon which relief can be granted.

      . The unavailability of alternative remedies was a decisive factor which led the Court in Bivens to grant the plaintiff a direct constitutional remedy.

      . The Plaintiffs here also argue that the remedies available under the merit system and the bargaining agreement processes are less effective than those available under a Bivens -type action. The same argument was raised in Bush. The Supreme Court dismissed the argument as missing the issue. The issue, said the Court, was whether an alternative remedial system existed. Moreover, the Fourth Circuit has ruled that a Bivens type action is unavailable to a federal employee whose statutory remedies are even less comprehensive than those accorded to the plaintiff in Bush. Pinar v. Dole, 747 F.2d 899 (4th Cir.1984).

      . The Court’s review of the record reveals that at least Plaintiffs Williams and Harding had military service which would qualify them for “preference eligible” status pursuant to 5 U.S.C. § 2108(3). Nonprobationary preference eligibles may use the merit system. 5 U.S.C. § 7511(a)(1)(B).

      . The Postal Service has authority under 39 U.S.C. § 1206(b) to enter into collective bargaining agreements with unions.

      . The collective bargaining agreement here provided that arbitration would be final and binding.

      . One district court has even held that Bush precludes a probationary federal employee, who is not entitled to extensive statutory coverage, from bringing a Bivens type action. The court found the federal employer-employee relationship to be a special factor which counseled hesitation on letting the action proceed. Francisco v. Schmidt, 575 F.Supp. 1200 (E.D.Wis.1983).

      . The situation here is unlike that in D.E. v. Department of the Navy, MSPB, 721 F.2d 1165 (9th Cir.1983), where the adjudicating entity itself used a presumption. The Merit Systems Protection Board was found to have incorrectly used a presumption to establish a nexus between an employee’s off-duty misconduct and his job performance.

      . Williams did not exhaust the collective bargaining agreement’s arbitration procedures. He went to step 2 and then apparently abandoned his claim.


author: WEXLER, District Judge.

text:
    Charles K. HOWARD and William J. Howard, Executors of the Estate of Laura M. Howard, Plaintiffs, v. Margaret M. HECKLER, Secretary of the United States Department of Health and Human Services, Defendant.
    No. CV 84-4397.
    United States District Court, E.D. New York.
    Oct. 2, 1985.
    William J. Howard, Scarsdale, N.Y., for plaintiffs.
    Raymond J. Dearie, U.S. Atty. by Thomas Roberts, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

This is an action brought pursuant to sections 205(g) and 1869(b) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g), 1395ff(b), (the Act) to review a final decision of the Secretary of Health and Human Services (the Secretary) denying payment of benefits under the Hospital Insurance portion of the federal program of Health Insurance for the aged and disabled. Plaintiffs seek judicial review of a final order of the Secretary that the claimant, Laura M. Howard, did not require and receive “skilled nursing care” during her stay at a skilled nursing facility. The parties have cross-moved for a judgment on the pleadings. Fed.R.Civ.P. 12(c). For the reasons stated below, the decision of the Secretary is reversed.

PROCEDURAL BACKGROUND

Mrs. Laura Howard was hospitalized at North Shore Hospital from April 24, 1982 until May 10, 1982 when she was then transferred to Grace Plaza, Inc., a skilled nursing facility. On May 24, 1982 plaintiffs were notified by the Medicare program’s fiscal intermediary that Mrs. Howard’s stay at Grace Plaza did not qualify for coverage under the Act. By letter, plaintiffs requested a reconsideration and on November 27, 1982, they were notified that the decision would not be changed. Plaintiffs subsequently requested a hearing before an Administrative Law Judge (AU). Record at 63-66.

On March 25, 1983, a hearing was held before an ALJ. At the hearing Mrs. Howard’s husband testified and was represented by counsel. After the hearing was concluded the ALJ received a half-page written opinion from Dr. Arthur Bauman, a medical advisor who had been engaged by the AU. In this letter Dr. Bauman stated that skilled nursing services were not required. Record at 151. After a de novo review of the record, the AU concluded that Mrs. Howard received custodial care during her stay at Grace Plaza and therefore, that the services provided were not subject to Medicare reimbursement. Record at 40-44. On December 15, 1983 the Appeals Council remanded the case to the AU because Dr. Bauman “furnished little rationale and no clinical findings to support his conclusion,” and plaintiffs had no opportunity to cross-examine Dr. Bauman. Record at 24-25. On remand, the AU stated that “ample opportunity was provided to the plaintiff’s to challenge the medical advisor,” and again determined that the claimant had received only custodial care during her stay at Grace Plaza. Record at 34. The AU stated that he had considered the plaintiff’s arguments but chose to give greater weight to Dr. Bauman’s opinion because of the doctor’s “expertise, his familiarity with the applicable regulations, and because he had an adequate opportunity to review the entire record.” Record at 34. The AU’s decision became the final decision when it was affirmed by the Appeals Council on September 6, 1984. Record at 2-3. This lawsuit ensued.

FACTS

Mrs. Howard was an 82 year old woman who had a mastectomy in 1975 after a diagnosis of breast cancer. She was transferred directly from North Shore Hospital to Grace Plaza on May 10, 1982 on the recommendation of her physician, Dr. Milton Kemp. Mrs. Howard was suffering from breast, skin, and bone cancer, diabetes, an overactive thyroid, and complications emanating from a hip injury. “At the time of her death [on November 5, 1982, Mrs. Howard] weighed about 70 pounds (compared to a normal weight of 120 pounds) and walked only with considerable difficulty.” Affidavit of Dr. Kemp, Record at 70. The nature and complexity of her illnesses required extensive medication and close monitoring of her condition. Her diabetes required frequent checks for the presence of blood in her urine and adjustments in her diabetic medication according to her condition. Similarly, her hyperthyroidism required medication and monitoring of her pulse and heart rate. Finally, the substantial metastatis of her cancer required repeated cleaning and treatment of her skin to prevent the spread of infection. Affidavit of Dr. Kemp, Record at 71. Grace Plaza records indicate that Mrs. Howard’s lungs required suction on a number of occasions during her stay at Grace Plaza. Record at 69. The testimony of Mrs. Howard’s spouse, however, indicated that the use of suction may have been more frequent than shown by hospital records. Testimony of Charles Howard, Record at 57-58. Although no rehabilitative or restorative goal was set, the nursing home records illustrate that Mrs. Howard was extremely weakened, fragile, accident prone, and occasionally disoriented and confused. Record at 75-120.

DISCUSSION

The issue in this case is whether the Secretary’s decision that Mrs. Howard received custodial care is supported by substantial evidence. In a prior decision, this Court has extensively surveyed the law on skilled nursing care. See Kuebler v. Secretary of Health and Human Services, 579 F.Supp. 1436 (E.D.N.Y.1984), cited in Roth v. Secretary, 606 F.Supp. 636 (W.D.N.Y.1985). Although “custodial care” is defined in neither statute nor regulations, this Court follows two principles in determining whether Mrs. Howard received or required custodial care. First, the court must consider Mrs. Howard’s condition as a whole, using a common-sense, non-technical approach. Roth, 606 F.Supp. at 639. See Klofta v. Mathews, 418 F.Supp. 1139, 1143 (E.D.Wis.1976). Second, the remedial purpose of the Social Security Act requires that it be broadly construed. Ridgely v. Secretary, 345 F.Supp. 983, 993 (D.Md.1972), aff'd 475 F.2d 1222 (4th Cir.1973). “[T]he purpose of the custodial care disqualification ... was not to disentitle old, chronically ill and basically helpless, bewildered and confused people ... from the broad remedy which Congress intended to provide for our senior citizens.” 345 F.Supp. at 993.

After a thorough examination of the record, this Court concludes that the decision of the Secretary in the present case is not supported by substantial evidence. The extent and severity of Mrs. Howard’s symptoms, combined with her advanced age, disorientation, and extreme weakness, demonstrate that she required and received skilled nursing care. Mrs. Howard’s multiple illnesses required monitoring and adjustment of her medication according to her varying condition. Occasional suction was required to clear her congested lungs. Her disorientation and frailty also necessitated that her care could have been provided only by professionals and not by family members or unskilled aides. In addition, her condition required bathing and treatment to prevent the spread of skin infections. Finally, the ALJ’s reliance on the report of Dr. Bauman was misplaced. The affidavit of her long-time physician, the testimony of her husband based on personal observation, and the extensive nursing home records more than suffice to negate the bald and unsupported conclusion of the ALJ’s consulting physician, Dr. Bauman.

Accordingly, the decision of the Secretary denying Medicare benefits is reversed and it is hereby

ORDERED, that the plaintiffs’ motion for summary judgment is granted and defendant’s motion for summary judgment is denied, and it is further

ORDERED, that the Clerk of the Court enter judgment for the payment of Medicare benefits on plaintiff’s behalf for a period of 100 days beginning May 10, 1982.

SO ORDERED.

      . No additional evidence was taken from Dr. Bauman or any other source.


author: JOHN GARRETT PENN, District Judge.

text:
    UNITED STATES of America v. Eddie Lee ANDERSON a/k/a Fast Eddie.
    No. CR 85-167.
    United States District Court, District of Columbia.
    Oct. 2, 1985.

      Ted Shmanda, Asst. U.S. Atty., Washington, D.C., for plaintiff.
    William J. Garber, Charles F. Stow III, Washington, D.C., for defendant.
   OPINION

JOHN GARRETT PENN, District Judge.

The defendant is charged in a twenty-nine count indictment with violations of the Mann Act (18 U.S.C. § 2421), interstate transportation of minors for the purpose of prostitution (18 U.S.C. § 2423), inducing a female to engage in prostitution, (22 D.C. Code § 2705), and obstructing justice (18 U.S.C. § 1503). The case is now before the Court on the defendant’s motion to suppress evidence. At issue are two search warrants, one issued by a judge of the Superior Court for the State of New Jersey on December 7, 1984, and the other issued by a United States Magistrate for the United States District Court for the District of Nevada on February 1, 1985.

I

The underlying facts are as follows: Agents of the Federal Bureau of Investigation (FBI) and officers of the Metropolitan Police Department for the District of Columbia, undertook an investigation to determine whether the defendant is transporting females, including juveniles, in interstate commerce for purposes of prostitution. On or about December 7, 1984, Detective Joseph Haggerty of the Metropolitan Police Department, who was the officer in charge of the investigation, spoke with several women who advised him that the defendant had transported them across state lines for the purpose of prostitution. They further advised Haggerty that the defendant owned at least one condominium in Atlantic City, New Jersey, where he kept bank books, diaries of travel and other evidence of travel, receipts, photograph albums, and photographs of women involved in prostitution for the defendant. The above property was said to be located at 535 East Harding Highway, Apartment 5F, Mays Landing, New Jersey. Based upon this information Detective Haggerty and other officers secured a search warrant, from the United States District Court for the District of New Jersey, to search the above-described property. The warrant was signed by a federal judge on December 7, 1984, and when the officers went to execute the warrant they were advised that the defendant had moved his household goods to Las Vegas, Nevada one week before. The warrant was not served.

Upon returning to the office of the Atlantic City Police, the officers were advised by a reliable source that the defendant had moved to the Village Motel, Room 224, approximately one week before. The source also advised the officers that the defendant had moved numerous photo albums, clothes and a large amount of personal property into the motel room. Based upon this information, the officers went to a judge of the Superior Court for the State of New Jersey and sought a search warrant for Room 224 of the Village Motel located at 168 S. Kentucky Ave., Atlantic City, New Jersey.

The affidavit used in support of the application for the search warrant was a form affidavit, apparently similar to those regularly used in support of applications for search warrants in the State of New Jersey. The officers typed in the description and location of the motel. The warrant form contains a space for the description of the premises to be searched, but apparently has no space to insert a description of the property which is the subject of the search. The form merely states that, “there has been and now is located certain property obtained in violation of the penal laws of this state or any other state; or ... which has been used in connection with the violations of the penal laws of this state or any other state; or constituting evidence of or tending to show any such violation, in violation of New Jersey statutes of” (emphasis this Court’s). At this point, the officers inserted, “2 C: 34-l(b)5 Purposely and knowingly transporting (a) person(s) (into) (within) this state for the purpose of engaging in sexual activities for hire” (emphasis this Court’s). The form affidavit then provides “the facts tending to establish the grounds for this application and the probable cause of my belief that such grounds exist are as follows:”. Here, the affiant noted that he had participated along with a Metropolitan Police Detective from Washington, D.C. and Special Agents from the FBI, Atlantic City Office, in an attempt to serve a federal search warrant on the premises located at 535 East Harding Highway, Mays Landing, New Jersey. He further states that “subsequent to serving the warrant it was determined that the occupants of the apartment had moved out approximately a week previous. The warrant was not served.” The affiant then went on to state that upon returning to the Special Operations Office of the Atlantic City Police, he learned from a reliable source that the target of the “federal grand jury investigation” (the defendant) had moved into the Village Motel “approximately a week ago”. “The source stated it saw the subject Eddie Lee Anderson, a/k/a Fast Eddie moving numerous photo albums, clothes and a large amount of personal property into Room 224.” The affiant then included in the affidavit a statement that, “[t]he Federal Search Warrant was seeking bank books, diaries of travel and other evidence of travel, receipts, photograph albums and photographs of women involved in interstate prostitution, and proceeds of interstate prostitution including Atlantic City, New Jersey”. The affiant then went on to make a reference to the federal search warrant and the officers’ prior conversations with women who had been involved in prostitution for the defendant. The affiant described himself as Detective John Imfeld who has been a member of the Atlantic City Police Department for the past six years and who has been assigned to special operations for the past six months. He then states “[djuring the last nine months I have been involved in conducting prostitution investigations and arrests which led me to interview several informants and defendants all of whom have been personally involved in prostitution activities”. Although the affidavit in support of the state search warrant makes reference to the federal search warrant, it does not explicitly incorporate that warrant and it does not incorporate the affidavit made in support of that federal warrant. However, Officer Haggerty testified that he was present when the warrant was presented to the Superior Court Judge and that at that time the officers also presented to the judge the affidavit which had been presented to the federal court in support of the federal search warrant executed on the same date.

Based upon the affidavit presented in support of the application for a search warrant, a Superior Court judge for the State of New Jersey signed the warrant and authorized that “the premises known as 168 S. Kentucky Ave., Atlantic City, N.J., commonly referred to as the Village Motel, Room #224, occupied by a black male named Eddie Anderson” may be searched. The warrant notes that “there has been and now is located certain property used as a means of committing a misdemeanor in violation of the laws of the State of New Jersey to wit: Interstate transportation of persons for the purpose of prostitution, 2C:34-l(b)5.”. The form warrant then provides that the officers are commanded to enter and search the above premises “for the above-described items and other associated paraphernalia”. Nowhere in the warrant is there any description of the property to be seized. The warrant was signed on December 7, 1984 at 7:30 p.m. and provides that the warrant may be executed within 10 days “between the hours of 7:30 p.m. and 6:00 a.m.”.

The defendant argues that the evidence seized pursuant to the warrant should be suppressed because the search warrant was executed at night and was authorized for execution between the hours of 7:30 p.m. and 6:00 a.m., that although the search warrant purports to be a state search warrant it was issued for the purpose of seizing evidence for use in connection with a federal prosecution and it was neither issued nor executed in conformity with federal law. See Fed.R.Crim.P. 41(a). Defendant argues that the application in support of the search warrant refers to the federal grand jury investigation and does not refer to violations of state law as being the object of the application. Defendant further argues that the search warrant is facially deficient in that it fails to particularize the things to be seized and that the executing officers could not reasonably presume that the warrant was valid and that what occurred in the case was that the seizure was conducted in such a manner that the discretion of the officer dictated what was to be seized since there are no guidelines in the search warrant itself.

II

The defendant first argues that the warrant is invalid because, although it was signed by a state court judge, it is a federal search warrant and that it does not comply with the applicable federal rule. See Fed.R.Crim.P. 41. He contends that it is a federal warrant because it was requested as the result of a federal investigation, a fact evident from the references to the “federal grand jury” and the “Federal Search Warrant” contained in the affidavit executed in support of the warrant.

Rule 41(a) provides that a federal search warrant may be issued by a “federal magistrate or a judge of a state court of record ... upon the request of a federal law enforcement officer or an attorney for the government”. Regardless of whether the warrant was executed by a federal judge or magistrate or an appropriate state court judge, it must be executed in conformity with the requirements of the federal rule. In such cases, the warrant must set forth facts establishing that a federal crime is involved. See United States v. Krawiec, 627 F.2d 577, 580 (1st Cir.1980); United States v. Brouillette, 478 F.2d 1171, 1177 (5th Cir.1973).

Moreover, the warrant must provide that it is to be served in the daytime, “unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than day time”. Fed.R.Crim.P. 41(c)(1). Neither the warrant nor the affidavit in support thereof sets forth any grounds for permitting the warrant to be executed other than in the daytime. Indeed, the federal warrant issued the same date authorizes only a daytime search, and nothing in the affidavit supporting the federal warrant suggests that there is reasonable cause to execute the warrant at night. The Court can only assume then that the officers requested the state judge to allow them to execute the warrant immediately upon his signing the warrant based upon the fact that the warrant was signed on December 7, 1984 at 7:30 p.m., that they were authorized to conduct a search only between the hours of 7:30 p.m. and 6:00 a.m., and, that the search took place that same evening. See Defendant’s Motion to Suppress Evidence, Affidavit of Roger Young in support of search warrant, 112(j). It seems clear then that the warrant was not signed in conformity with Rule 41 and that, if this is a federal warrant, the motion to suppress must be granted. In fact, however, the warrant is not federal warrant. The affidavit in support of the state warrant reflects that the application was made for a search for evidence relating to a violation of state law, specifically, “2C-34-1(b)(5) purposely and knowingly transportating (a) person(s) (into) (within) [New Jersey] for the purpose of engaging in sexual activities for hire”. If the warrant was issued pursuant to state law, it need only meet the requirements of the Constitution of the United States, and it is not necessary that it be in conformity with Rule 41. The fact that the property seized might be used in a federal prosecution, or that it is ultimately used only in a federal prosecution, is not dispositive of the issue. See United States v. Krawiec, supra; United States v. Sellers, 483 F.2d 37, (5th Cir.1973).

Here, there is no basis for this Court to conclude that the New Jersey officers did not intend to prosecute the defendant in New Jersey for a violation of that state’s law. In support of his application for a warrant, the affiant recited that a state law was purportedly violated. The affiant is a state officer assigned to conduct investigations of prostitution in Atlantic City, New Jersey. The Court concludes that the warrant in question is a state warrant and that there is no necessity that it comply with the requirements of Rule 41.

The defendant cites the Court to United States v. Mousey, 687 F.2d 1348 (10th Cir.1982). The facts in Massey differ from those in this case because the warrants there, while issued by a state judge, were issued on federal warrant forms. The affidavits supporting those warrants alleged that the property seized constituted evidence of violations of federal law. Moreover, the warrants were initialed by an Assistant U.S. Attorney and were executed by a federal agent.

Ill

The fact that the warrant was a state warrant is not dispositive of the issue before the Court, since the defendant argues that the warrant is a general warrant in that it does not particularize the things to be seized.

Nowhere on the face of the warrant is it stated what is to be seized. All that the warrant does is to note that there are grounds to believe that a state law has been violated. In the printed form it provides that the officers may search the premises “for the above-described items and other assorted paraphernelia”, but as noted above, there is no reference in the warrant itself to those items. If the warrant must be limited to that language, then it appears that it amounts to nothing inore than a general warrant which would allow the officers to seize any property without specific direction, unless the Court may properly refer to the supporting affidavit and find within the affidavit a description of the property to be seized. Normally, however, the Court will only refer to the affidavit when the affidavit accompanies the warrant and the warrant uses words of reference which incorporate the affidavit as a part of the warrant. See United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir.1982); United States v. Womack, 166 U.S.App.D.C. 35, 49, 509 F.2d 368, 382 (1974); United States v. Thompson, 161 U.S.App.D.C. 339, 344, n. 4, 495 F.2d 165, 170 n. 4 (1974); Moore v. United States, 149 U.S.App.D.C. 150, 152, 461 F.2d 1236, 1238 (1972). The present warrant cannot be saved by reference to the above cases, however, because the warrant makes no reference to the affidavit and there is no evidence that the affidavit accompanied the warrant.

Based upon the above, it appears that the warrant is invalid. The affidavit establishes that there was probable cause to issue the warrant. To be sure, the warrant is far from being faultless; it does not incorporate the affidavit signed in support of the federal warrant nor does it set forth the facts in the same detail as is found in the federal affidavit,- but it does set forth sufficient facts for the judge to find probable cause. It sets forth that the defendant is suspected of transportating females for the purposes of prostitution, that the defendant recently moved to the motel, that the source saw the defendant move “numerous photo albums, clothes and a large amount of personal property into Room 224”, that the officers are seeking “bank books, diaries of travel and other evidence of travel, receipts, photograph albums and photographs of women involved in interstate prostitution, and proceeds of interstate prostitution including Atlantic City, New Jersey”, and that the application for the warrant, as well as the application made in support of a federal search warrant, are based upon “statements and interviews conducted by both Atlantic City police and Metropolitan Police in Washington, D.C. on four prostitutes who had previously prostituted themselves for Eddie Lee Anderson”. Moreover, Detective Haggerty testified that at the time the state court judge signed, the warrant, he also had before him the affidavit submitted to the federal court in support of the federal search warrant. Notwithstanding those facts, however, the warrant is invalid because it does not identify the property to be seized and therefore is a general warrant.

IV.

Recently, the Supreme Court has had occasion to decide that the exclusionary rule should not be applied when the officer conducting the search acted in “objectively reasonable reliance” on a warrant issued by a detached and neutral magistrate that subsequently is determined to be invalid. United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See also Massachusetts v. Sheppard, — U.S. -, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). The Court now considers whether, under the facts of the instant case, the exclusionary rule should be applied.

In Sheppard, the police were investigating a homicide which occurred on Saturday, May 5, 1979. During the course of that investigation, the officers received information which led them to focus their investigation on Sheppard and they concluded that it would be advisable to obtain a search warrant to search Sheppard’s house. The affidavit prepared in support of the warrant set forth the items the officers sought to seize. Because it was by then Sunday, the officers had difficulty in finding an appropriate warrant application, and when they finally located one, it was a warrant designed for the search and seizure of controlled substances. Although the officers and the issuing judge attempted to modify the form warrant, everyone omitted changing that part of the warrant which authorized a search for “controlled substances”. 104 S.Ct. at 3427, n. 2. The items the officers sought to find were located in the defendant’s house. Those items were introduced at trial and Sheppard was eventually found guilty of murder. The trial court and a majority of the justices on the Supreme Judicial Court for Massachusetts found that the warrant was constitutionally defective “because the description in the warrant was completely inaccurate and the warrant did not incorporate the description contained in the affidavit”. 104 S.Ct. at 3428, n. 5. The state court found, however, that the officers believed that the warrant authorized the search that they conducted and that there was an objectively reasonable basis for the officers mistaken belief. 104 S.Ct. at 3428-29. The Supreme Court affirmed, noting that “a reasonable police officer would have concluded, [as did the officers in Sheppard] that the warrant authorized a search for the materials outlined in the affidavit”. 104 S.Ct. at 3429. The Supreme Court also noted that the officers executing the warrant knew before hand what was to be seized, and thus, that the case differed from one where an officer who was not involved in the application stage is called upon to execute the warrant and must therefore look to the warrant to determine what is to be seized. 104 S.Ct. at 3429 n. 6.

This Court can find little or no distinction between the facts in Sheppard and those in this case. Here, Detective Haggerty had been involved in a lengthy investigation concerning the defendant’s alleged illegal activities. Sometime on or about December 7, 1984, Haggerty ascertained that the defendant occupied the premises located in Mays Landing, New Jersey, and, he sought and obtained a search warrant for those premises. In attempting to execute the warrant, the officers were advised that the defendant had transferred the items the officers sought to Las Vegas, Nevada. The warrant was not served. Later that same day, new information came to the attention of the officers and it was based upon this information that they sought and obtained the now invalid state search warrant.

While the warrant in Sheppard authorized the officers to search for “controlled substances”, items having nothing to do with what the officers were actually seeking; the warrant here authorized the officers to seize items related to the interstate transportation of persons for the purpose of prostitution, which, of course, is what the officers were seeking to find. While the affidavit was not incorporated by the warrant, it is undisputed that the officers knew exactly what they were looking for since they had prepared two separate requests to search for such items in the same day. Thus, although the warrant was a general warrant based upon its language, it seems clear that there was no doubt in the minds of the officers what they were entitled to seize. Additional evidence of this fact is found by referring to the inventory of the items actually seized pursuant to the warrant. Those items correspond with the items referred to in both the applications signed in support of the federal warrant and the state warrant.

Like the officers in Sheppard, the officers here took every step which reasonably could have been expected of them. They prepared an affidavit, and together with the warrant presented it to a detached and neutral judge. They also took along and presented to the judge the affidavit prepared in support of the federal warrant. When the judge signed the warrant authorizing the search, the officers had the right to conclude that the warrant authorized a search for the materials described in the supporting affidavit. As was true in Sheppard, here, the same officers who sought and obtained the warrant, executed the warrant. Thus, this is not the case of an officer who was less familiar with or unfamiliar with the application stage. See 104 S.Ct. at 3429 n. 6.

Certainly these officers had less notice as to the possible defect in the warrant than the officers in Sheppard. In Sheppard, the officers’ notice of the defect in warrant was weighed against the fact that they brought that matter, to the attention of the issuing judge and he advised them that the warrant was valid. Here, there was no such obvious defect in the warrant so the fact that the officers did not discuss this problem with the issuing judge does not really distinguish this case from Sheppard. What is clear is the fact that they presented the necessary documents to the judge, and in addition thereto, the affidavit submitted in support of the federal warrant. When the judge authorized the search, these officers were free to rely upon that action and execute the warrant.

Nothing in the present record suggests that the officer sought the warrant in anything other than good faith. The affidavit, although not a model for establishing probable cause, was sufficient for that purpose, and there is no reason to believe that the officers thought otherwise. Based upon all of the above factors, the Court finds that the officers had “an objectively reasonable basis for [their] mistaken belief”. 104 S.Ct. at 3428-29. The Court concludes that the exclusionary rule should not be applied to the facts in this ease.

The issue presented in this case, and cases like this one, present difficult questions and may possibly suggest to some that judges issuing search warrants may become less diligent simply because, if they are wrong, all the officers must do is to state that they had a reasonable belief that the search was authorized. Possibly, some may argue that all the officer need do is to “touch base” with the magistrate, and once the warrant is signed, rely on that action. No doubt, as we sail this uncharted sea, there will be many unseen shoals, but each case must be judged on its own facts. On the facts of this case, the Court concludes that the motion to suppress the New Jersey search warrant must be denied.

V

The defendant also seeks to suppress any evidence received as the result of the search warrant executed in the District of Nevada. The defendant contends that that warrant also violates the federal proscription against general warrants and that a reading of the affidavit as a whole does not establish a fair probability that contraband or evidence of crime would be found at the place where the warrant was directed under the facts stated in the affidavit. The Court finds that contention without merit.

The affidavit prepared in support of the warrant issued by the federal magistrate in Nevada consists of five pages detailing Detective Haggerty’s investigation and referring to the seizure made on December 7, 1984, in New Jersey. Moreover, the warrant executed by the magistrate specifically describes the property to be seized including “concealed photographs, photo albums, evidence of travel, micro-cassettes, a brief case, address books, cash and jewlery, which are the fruits, instrumentalities and/or evidence of one or more violations of Title 18, United States Code, Sections 2421 and 2423, and Title 23, D.C.Code, Section 2705”. Moreover, so much of the defendant’s motion as seeks to suppress the Nevada warrant based upon the alleged defective New Jersey warrant, which is referred to in the application in support of the Nevada warrant, is without merit in view of this Court’s ruling in Part IV, supra.

The Court finds no merit to the defendant’s motion to suppress the Nevada warrant and accordingly, so much of the motion as is addressed to that warrant is denied.

An appropriate order has been issued.


author: HARGROVE, District Judge.

text:
    ELYSIUM CORPORATION, Plaintiff, v. NAUTOR OY WILH. SCHAUMAN AB, et al., Defendant.
    Civ. A. No. HAR 82-3778.
    United States District Court, D. Maryland.
    Oct. 2, 1985.
    Michael J. Travieso, Baltimore, Md., Robert McL. Boote, Philadelphia, Pa., for plaintiff.
    Daniel M. Clements, Baltimore, Md., Murray A. Gordon, New York City, Roger Pinkert, Sturgeon Bay, Wis., John H. Murray, Easton, Md., John F. King, Baltimore, Md., for defendant.
   MEMORANDUM OPINION

HARGROVE, District Judge.

The above-captioned matter came before this court at a motions hearing on May 17, 1985 at 9:45 a.m. Elysium Corporation, a New Jersey Corporation, is bringing this action against defendants Nautor Oy Wilh. Schauman-Ab, Lloyd’s Register of Shipping and Palmer Johnson Boats, Inc.

Plaintiff corporations’ only shareholders are Dr. and Mrs. Brenman; and the corporation’s only holding is a sailing yacht named “Elysium.” The hull in the yacht was constructed in 1969 by NAUTOR, a Finnish Corporation. Defendant Lloyd’s, a British Corporation with its principal place of business in London, is in the business of inspecting and supervising the construction of fiberglass reinforced plastic hulls of sailing yachts. Defendant Palmer Johnson Boats, Inc. is a Wisconsin Corporation which is engaged in the business of manufacturing and selling sailing yachts, including those with fiberglass hulls, manufactured by NAUTOR.

Plaintiff purchased the Elysium in 1974 from a private person, not a party to this suit. Plaintiff alleges several claims against the above-named defendants, on the basis of a “structural defect” (i.e., a deficiency in the resin content of the hull) which it claims it first discovered in the spring of 1982, the same year in which it filed suit.

Plaintiff sues defendants on the following theories:

1. Plaintiff alleges in Count I a breach of warranties of merchantability, and safety and fitness for the use intended.
2. In Count II, Plaintiff alleges a breach of express warranty against defendants NAUTOR and Palmer Johnson concerning the quality of the hulls of the sailing yachts they respectively manufacture and sell.
3. In Count III, Plaintiff alleges negligence against Defendants NAUTOR, Lloyd’s and Palmer Johnson “in the manufacture, construction, assembly, inspection, testing, Offering for sale, and the sale,” of the Elysium.
4. And, in Count IV, Plaintiff claims that when it acquired the Elysium, the hull was in a condition substantially unchanged from the condition on which it was constructed and sold. Plaintiff additionally states that the hull is in a defective condition which is unreasonably dangerous to the Plaintiff and requests strict liability damages to the sailboat against Defendants NAUTOR and Palmer Johnson.
5. In Count V, Plaintiff avers that Defendant NAUTOR, Palmer Johnson and Lloyd’s misrepresented the quality of and care with which the hull of the Elysium was constructed and inspected by them.

Defendant Palmer Johnson has filed a Motion for Partial Summary Judgment on Counts I and II, breach of implied and express warranties (Paper Number 35) to which Plaintiff responded (Paper Number 44).

Defendant Palmer Johnson later filed a second Motion for Summary Judgment on the two warranty issues, adding more facts and addressing the tort and strict liability counts.

Defendant Palmer Johnson’s argument states that § 2-725 of the Maryland Commercial Law Code Annotated applies to Counts I and II, the breach of warranty claims. This provision sets out a four-year statute of limitations, on actions for breach of warranty. The four year period runs from the date of tender of delivery.

As brought out at the hearing, the sailboat was tendered to the original purchaser, Mark Clayton Ewing in 1969 at Belmont Farms in Trappe, Maryland. Therefore, the cause of action for breach of warranty accrued in 1969 and the limitations period ran in 1973. Suit was filed in 1982, nine years after the limitations period had run.

However, Plaintiff argues in papers numbered 5, 44 and 60, that § 2-725 does not apply because the ultimate purchaser was not in privity with the seller. Plaintiff asserts that, therefore, a discovery rule should prevail and that the three year statute of limitations should apply, as set out in Maryland Courts and Judicial Proceedings Code Annotated § 5-101, as articulated in Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981) and Anthony Pools v. Sheehan, 295 Md. 285, 455 A.2d 434 (1983). Both of these cases can be distinguished factually from the instant case. Poffenberger involved a situation where warranties concerning certain building restrictions were made in a contract between Plaintiff and Defendant concerning the building of a house for Plaintiff. These warranties were breached because the house had been built, in such a way as to violate a fifteen foot side lot set back requirement. Plaintiff did not discover this breach until four years after completion of construction of the dwelling, when the property to the south of Plaintiffs lot had been surveyed. At that time and when Plaintiffs house was being built, no other structures existed on the adjoining lots. Plaintiffs discovery of the defect occurred after the lapse of the three year statute of limitations set out in Maryland Courts and Judicial Proceedings Code Annotated § 5-101. Because Plaintiff had no way of knowing earlier of this defect, the court held that the statute of limitations would be triggered by discovery rather than by the beginning of the construction of the home, completion of construction, or the family’s taking up residence in the home. This is different from the instant case, in which, plaintiff had been put on notice of the defect in the boat as early as December of 1975, when a Spring Proposal was issued, citing the blistering of the underside of the boat. Dr. Brenman did nothing to remedy the blistering until June or July of 1982. Plaintiff knew or should have known of the defect as early as December of 1975. Even if the discovery rule is used, Plaintiff’s warranty claims are barred by the three-year statute of limitations. If the four-year limitations rule applying to breaches of warranty, set out in Maryland Commercial Law Code Annotated § 2-725 applies, and it does, the statute of limitations ran out in 1973.

Anthony Pools is inapplicable to the case at hand because it involves a mixture of goods and services. In Anthony Pools, the court faced the choice between the § 5-101 three-year statute of limitations and the § 2-725 Jour year statute of limitations. The court held that the contract for the installation of the pool was one in part for the rendering of services and in part a contract for the sale of goods. Anthony Pools, 455 A.2d at 437. Because, as a part of the commercial transaction in question the consumer goods

retain(ed) their character as consumer goods after the completion of the performance promised to the consumer, and where monetary loss or personal injury is claimed to have resulted in a defect in the consumer goods, the provisions of the Maryland U.C.C. dealing with implied warranties appl(ies) to the consumer goods, even if the transaction is predominantly one for the rendering of consumer services.

Id. at 441. The instant case does not involve a mixture, of goods and services.

Plaintiff also cites Hahn v. Atlantic Richfield, 625 F.2d 1095 (3rd Cir.1980) for the proposition that the statute of limitations imposed by Maryland Commercial Law Code Annotated § 2-725 does not apply. Instead, Plaintiff asserts that the statute of limitations applicable to personal injury applies. However, Hahn is factually different from the case at hand. In Hahn, an allegedly defective chain hoist dropped a 600 pound pipe on Plaintiff’s head, causing personal injuries. The reasoning in that case is inapplicable here because no personal injuries have been sustained.

Palmer Johnson’s second Motion for Summary Judgment reiterates its arguments that the warranty Counts I and II are time-barred. Secondly, Palmer Johnson (P-J) addresses the tort Counts III, IV and V and states that they are barred by the three-year statute of limitations as articulated in § 5-101 of the Courts and Judicial Proceedings of the Maryland Annotated Code. P-J states that Dr. Brenman, due to notifica!’' n in several successive Spring Proposal jeginning in 1975, knew or should have known prior to December of 1979 of the defect.

P-J also argues that Plaintiff’s Count IV strict liability in tort claim for damages to the boat itself is not cognizable under Maryland law. Damages measured by the diminution in the value of a product due to an allegedly defective condition within that product are not recoverable on strict liability or negligence theories. Plaintiff cites cases from other jurisdictions espousing this theory of recovery but none from Maryland.

Plaintiff, in its opposition at Paper number 60, attempts to rebut these arguments by stating that the blisters were not a symptom of or a cause of the structural defect. Plaintiff argues that it did not know or have reason to know of the defect earlier than it filed suit, therefore, the Poffenberger rule governs, and discovery triggers a three-year statute of limitations. This Court agrees with Defendant’s argument that the blistering was and is the actual defect which Plaintiff had repaired in the summer of 1982. The only reason Plaintiff characterizes the defect as a structural one is that Plaintiff’s insurance company denied reimbursement for the sandblasting and repainting of the hull on the basis that the problem was a “construction defect.” Therefore, Plaintiff’s tort claims are barred by the three-year statute of limitations, triggered by notice in December of 1975.

This court, therefore, grants Palmer Johnson’s motion for summary judgment on all five counts.

Defendant Lloyd’s has filed a Motion for Summary Judgment at paper number 54. Lloyd’s argues that the blistering on the underside of the boat was first noted in a Spring Proposal in December of 1975. Defendant states that Dr. Brenman, the president of the corporation owning the boat, did nothing about it until June or July of 1982. In the interim, i.e., in February of 1981, Plaintiff wrote to Nautor to ask if it would pay for the repair of the blisters. It refused. After the sandblasting, Dr. Brenman submitted a claim to Aetna to cover the cost of repairs. Aetna refused to pay, stating that the problem was a “construction defect.” Suit was filed on December 29, 1982. Defendant states that all it did was to issue a hull certificate in 1969, after having inspected the boat.

Defendant Lloyd’s arguments are twofold. It states firstly that Plaintiff’s claim that the hull was negligently inspected should be dismissed on ground of forum non conveniens because the inspection occured in Finland and all the witnesses concerning such inspection are there. Lloyd’s states that it consents to trial in Finland.

Lloyd’s second argument is that Plaintiff’s claim in Counts III and V are time-barred due to § 5-101 of the Maryland Courts and Judicial Proceedings dóde Annotated which applies to negligence claims, i.e., those of negligent inspection and negligent misrepresentation of quality. This section imposes a three-year statute of limitations from the :"lime the action accrues. Lloyd’s states that the negligence is alleged to have taken place in 1969 at the inspection. Suit was filed at the end of 1982. Therefore, the claims are barred since suit was filed thirteen years, rather than within three years, after the alleged negligence occurred.

Lloyd’s also points out that, even if Plaintiff alleges that the Poffenberger discovery rule applies, the blistering was first discovered in 1975, as noted in the Spring Proposal of December of that year, which is one year after Dr. Brenman purchased the boat. Lloyd’s emphasizes that, in Dr. Brenman’s letter of February 2, 1981, he acknowledges that the blistering occurred “several years ago.” Additionally, the 1978 Spring Proposal stated that there were blisters “all over the bottom of the boat.”

Plaintiff attempts to rebut these two arguments by stating that Defendant Lloyd’s motion to dismiss on the grounds of forum non conveniens should be denied. In support of this, Plaintiff asserts that the boat was sold to its original owner in Maryland, that the evidence as to how it was cared for over the years lies in this state, that the boat is presently here and so are the officers and shareholders of the corporation which owns it. Plaintiff also argues that Nautor has said that it did not know who the Lloyd’s inspectors were, therefore, it is impossible to know if they are in Finland.

The Court agrees with Plaintiff that it would be foolish to dismiss Plaintiff’s claim for forum non conveniens. Therefore, Defendant Lloyd’s Motion to Dismiss on this ground is hereby denied.

Plaintiff also attempts to rebut Defendant Lloyd’s allegations that the two negligence claims are time-barred. Elysium states that the blisters are not the defect complaine,d of and that the defect in the fiberglass laminate structure of the hull is the relevant problem. Plaintiff alleges that the blisters were only a cosmetic problem and did not cause or were they a symptom of the structural problem in question. Therefore, Elysium claims that there is a factual dispute which prevents the entry of summary judgment against it.

This Court agrees with Defendant Lloyd’s that the blistering is, in fact, the defect complained of, and, that, therefore, both negligence claims against Defendant Lloyd’s are barred by the three-year statute of limitations articulated in § 5-101. Although plaintiff alleges that this “structural defect” is different from the blistering, it offers no evidence, to support this contention. In fact, Dr. Brenman states in his deposition at pages 59-60, that the defect sought to be cured by the sandblasting was the fiberglass laminate defect. He also admits that one repair was made to a strut in the hull, due to damages in an anchor line. It has also been made clear that the previous owner raced the boat. Potentially, any structural damage which the boat may have could have been caused when he owned the boat. Regardless, Elysium has shown no evidence beyond mere allegations that the so-called structural defect either existed at the time the boat was manufactured or that the blistering is not the defect for which Dr. Brenman sent in the insurance claim which was subsequently rejected. Therefore, this court rules that summary judgment is hereby granted in favor of Defendant Lloyd’s on Plaintiff’s two claims of negligence against it.

Defendant Nautor has filed a Motion for Summary Judgment at paper number 57, to which Plaintiff Elysium Corporation filed an opposition at paper number 60. Nautor argues that the breach of warranty claims against it are barred by the four-year statute of limitations set out by § 2-725 because the boat was manufactured before 1969 and the three-year statute of limitations does not apply to actions for breach of warranty. Plaintiff argues in response the Poffenberger discovery rule.

For reasons stated previously with regard to the breach of warranty claims asserted against Palmer Johnson, this Court agrees with Defendant Nautor and hereby grants summary judgment in favor of Defendant Nautor on Counts I and II.

Nautor’s Motion for Summary Judgment addresses' Counts III, IV and V, negligence, strict liability and misrepresentation, respectively, stating that these causes of action accrued well before December 29, 1979, the date marking three years prior to the filing of suit in this case. Section 5-101 applies to these tort claims. Even if the Poffenberger discovery rule is applied, discovery of the blisters occurred well before that time. For these reasons, this Court hereby grants summary judgment in favor of Defendant Nautor on Counts III, IV and V.

Because Summary Judgment has been granted in favor of all Defendants and against Plaintiff on all claims, it is unnecessary to address Nautor’s Motion to Dismiss at paper number 58 or the motion of plaintiff to amend to include a claim of punitive damages, at paper number 63.

ORDER

It is this 26th day of September, 1985, SO ORDERED, in accordance with the preceding memorandum opinion,

1. That Palmer Johnson’s Motions for Summary Judgment BE and the same hereby ARE, GRANTED, on all five counts;

2. That Judgment BE and the same hereby IS ENTERED in favor of Palmer Johnson and against Plaintiff on all five counts;

3. That, Lloyd’s Motion for Summary Judgment on Counts III and V BE, and the same hereby IS, GRANTED, for reasons stated in the preceding memorandum opinion;

4. That, Judgment BE, and the same hereby IS, ENTERED in favor of Defendant Lloyd’s and against Plaintiff on Counts III and V;

5. That Summary Judgment BE, and the same hereby IS, GRANTED in favor of Defendant Nautor on Counts I and II;

6. That, Judgment BE, and the same hereby IS, ENTERED in favor of Defendant Nautor and against Plaintiff Elysium Corporation on Counts I and II,

7. That, Summary Judgment BE, and the same hereby IS, GRANTED in favor of Defendant Nautor on Counts III, IV and V;

8. That judgment BE, and the same IS, ENTERED in favor of Defendant Nautor and against Plaintiff Elysium Corporation on Counts III, IV and V; and

9. That the Clerk mail copies to counsel for all parties.