author: FEIKENS, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. Larry Wayne CASSITY, Stephen Gordon Lenk, Billy Sword, Defendants.
    Crim. No. 77-80932.
    United States District Court, E.D. Michigan, S.D.
    April 2, 1985.

      Ross Parker, Chief, Asst. U.S. Atty., Detroit, Mich., for plaintiff.
    Edward Wishnow, Southfield, Mich., for Larry Cassity and Stephen Lenk.
    Thomas Rosender, Pontiac, Mich., for Billy Sword.
   MEMORANDUM OPINION

FEIKENS, Chief Judge.

On August 11, 1978, a jury convicted defendants Larry Cassity, Stephen Lenk, Billy Sword, Terry Hines, and Raymond Dean for conspiracy to manufacture and manufacturing amphetamine. This decision was appealed twice and ultimately reversed by the United States Court of Appeals for the Sixth Circuit on the ground that the warrants obtained by police officers prior to installation and monitoring of three electronic homing transmitters (“beepers”) were invalid and, consequently, evidence obtained as a result should have been suppressed at trial. United States v. Cassity, 720 F.2d 451 (6th Cir.1983) (“Cassity III”), vacated, — U.S. -, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984). The Court of Appeals’ ruling was vacated by the United States Supreme Court and remanded for further consideration in light of the limited good faith exception to the exclusionary rule announced in United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). United States v. Cassity, — U.S. -, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984). After carefully considering the parties’ arguments on remand, I conclude that the disputed evidence in this case was obtained by officers acting in reasonable reliance on warrants issued by detached and neutral magistrates, and therefore was properly admitted at trial.

I. BACKGROUND

The pertinent facts have been explained previously in this case and can be briefly summarized here. See United States v. Cassity, 631 F.2d 461, 462-63 (6th Cir.1980) (“Cassity I”); United States v. Cassity, 546 F.Supp. 611, 612-13 (E.D.Mich.1981) (“Cassity II”), aff'd in part and vacated in part, 720 F.2d 451 (6th Cir.1983), vacated, — U.S. -, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984). The case arose because of the undercover investigative efforts of a Drug Enforcement Administration (“DEA”) Special Agent, John Graetz. Graetz posed as a supplier of precursor chemicals and equipment used in the manufacture of illegal narcotics. He supplied these goods to Jay Cody, the central figure in a conspiracy to manufacture amphetamine.

Over the course of Graetz’s contact with Cody, he supplied Cody three different items in which hidden beepers were attached. The purpose was to facilitate surveillance of Cody so that the DEA could discover who else was involved in the conspiracy as well as the location of the clandestine laboratory used for manufacturing the narcotics. Graetz testified that electronic surveillance was necessary because Cody was very adept at detecting and avoiding visual surveillance.

The beepers used in this surveillance were attached to a can of ether, a can of benzene, and a heating mantle. The installation and monitoring of the first beeper was undertaken after securing a warrant from a magistrate on July 8, 1977. This warrant did not contain a time limit. Warrants for the other beepers were issued by a second magistrate, but only one of these warrants contained a time limit.

Monitoring of the beepers, combined with visual surveillance, allowed the DEA to locate the clandestine laboratory and identify other members of the conspiracy. On August 17, 1977, DEA agents executed a search warrant at the residence in which the laboratory was located. Defendants were subsequently indicted for conspiracy to manufacture and manufacturing amphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846.

Prior to trial on these charges, defendant Cassity moved to suppress evidence obtained as a result of the beeper installed on July 11, 1977. After conducting an evidentiary hearing on this motion, I held that the evidence should not be suppressed, reasoning that beepers were merely a sophisticated substitute for visual surveillance and, in any case, the officers had sought the independent judgment of a magistrate concerning the propriety of the beeper surveillance. The charges against the defendants were then tried before a jury and each defendant was convicted.

In July, 1980, the Sixth Circuit held in an unrelated case, United States v. Bailey, 628 F.2d 938 (6th Cir.1980), that valid warrants, which included time limits, were required to monitor beeper signals. Three months later, it vacated the Cassity convictions in light of the Bailey decision, and remanded for hearings to determine whether the use of beepers violated defendants’ legitimate expectations of privacy. Cassity I.

On remand, I held that defendants Cassity, Sword, and Lenk did have reasonable, legitimate expectations of privacy in the various addresses through which chemicals were traced by the beepers, but that a fourth defendant, Terry Hines, did not have such an expectation in a van rented by the government. I then considered whether the rule announced' in Bailey should be retroactively applied. Determining that retroactive application of that rule would not further the purposes of the exclusionary rule, I held that the motion to suppress had been properly denied and reinstated the convictions. Cassity II.

This decision was appealed and the Sixth Circuit affirmed the conviction of defendant Hines, but vacated the convictions of Cassity, Sword, and Lenk. Cassity III. After agreeing with the determination that the beepers violated these defendants’ reasonable expectations of privacy, the Court of Appeals held that this Court had exceeded the scope of the remand when it considered Bailey’s retroactivity. This ruling was appealed to the Supreme Court, which vacated the Court of Appeals’ decision and remanded the case for reconsideration in light of United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). United States v. Cassity, — U.S. -, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984).

II. DISCUSSION

A. United States v. Leon

The exclusionary rule is a judicially created remedy that generally operates to exclude from criminal proceedings evidence obtained in violation of the Fourth Amendment. In United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court considered whether this rule “should be modified so as not to bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.” 104 S.Ct. at 3409.

In analyzing this issue, the Court began by indicating that “it must be resolved by weighing the costs and benefits of preventing the use in the prosecution’s case-in-chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective.” 104 S.Ct. at 3412-13. As a general matter, the Court indicated that the “substantial social costs exacted by the exclusionary rule ... have long been a source of concern,” 104 S.Ct. at 3413, while the rule’s effectiveness in deterring police misconduct — particularly objectively reasonable conduct — has frequently been questioned. 104 S.Ct. at 3419. Focusing on the situation in which officers have acted objectively reasonably, and in which a magistrate has issued a warrant, the Court found a clear imbalance in the costs and benefits of the rule:

In short, where the officer’s conduct is objectively reasonable,
“excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that ... the officer is acting as a reasonable officer would and should act under the circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty.”
This is particularly true, we believe, when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.

104 S.Ct. at 3420 (quoting Stone v. Powell, 428 U.S. 465, 539-40, 96 S.Ct. 3037, 3073, 49 L.Ed.2d 1067 (1976) (White, J., dissenting) (footnote omitted).

Finding that the “marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion,” 104 S.Ct. at 3421, the Court established a limited good faith exception to the exclusionary rule. This “good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.” 104 S.Ct. at 3421 n. 23.

The Court did indicate that in some cases exclusion would be appropriate even if a warrant was obtained, although it repeatedly noted that this would rarely be the case. See, e.g., 104 S.Ct. at 3422 (“When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.”); 104 S.Ct. at 3423 (“the rule’s purposes will only rarely be served by applying it in such circumstances”). Specifically, suppression remains appropriate:

(1) “[I]f the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” 104 S.Ct. at 3421.

(2) “[Wjhere the issuing magistrate wholly abandoned his judicial role ____” 104 S.Ct. at 3422.

(3) Where the warrant is “based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” 104 S.Ct. at 3422 (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part)).

(4) Where the warrant is “so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.” 104 S.Ct. at 3422.

B. Leon’s Retroactivity

Defendants argue as a threshold matter that Leon’s good faith exception should not be retroactively applied to this case. They rely on the Court’s elaboration of the standards governing retroactive application of Fourth Amendment decisions in United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). In Johnson, the Court retroactively applied the holding in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), that “the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home to make a routine felony arrest.” Johnson, 457 U.S. at 538-39, 102 S.Ct. at 2581 (footnote omitted). The Court indicated that “a decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.” 457 U.S. at 562, 102 S.Ct. at 2594. This rule is subject to certain exceptions such as cases establishing rules that are a clear break from the past, which “almost invariably” have been found non-retroactive. 457 U.S. at 549, 102 S.Ct. at 2587. See also Shea v. Louisiana, — U.S. —, — n. 5, 105 S.Ct. 1065, 1070 n. 5, 84 L.Ed.2d 38 (1985) (“where the new rule of law is so clear a break with the past ... it has been considered nonretroactive almost automatically”).

While the Leon decision almost certainly constitutes “a clear break from the past,” see United States v. Sager, 743 F.2d 1261, 1263 (8th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985), post-Leon cases have uniformly applied that decision retroactively. See United States v. Henderson, 746 F.2d 619 (9th Cir.1984); United States v. Thornton, 746 F.2d 39 (D.C.Cir.1984); Sager; United States v. Segovia-Melgar, 595 F.Supp. 753 (D.D.C.1984). In Sager, the only case even discussing the retroactivity issue, the United States Court of Appeals for the Eighth Circuit indicated that the Johnson approach to retroactivity was developed in a context quite different than that in which Leon arose. Johnson involved a situation in which the Court was abandoning clear principles that police officers had relied on. Because Leon is “more supportive of police conduct” it involves the reverse situation. Sager, 743 F.2d at 1264. In finding Leon retroactive, the Court rejected a literal application of the Johnson test because this would take the discussion in Johnson “completely out of context” and would fit it “into a situation wholly foreign to that for which [it was] written.” Sager, 743 F.2d at 1263. The Eighth Circuit also supported this finding by pointing to the Supreme Court’s decision to vacate Cassity and other cases, suggesting that “[t]here is at least a fair inference ... that these vacations and remands for reconsideration represent sub silentio holdings that Leon is retroactive.” Sager, 743 F.2d at 1264-65 (footnote omitted).

Without speculating on this last point, I am fully in agreement with the Eighth Circuit that this case involves a very different situation than Johnson. Leon’s retro-activity should be decided based on the relevant considerations identified in Johnson, rather than a mechanical application of the language in that case. The Court explained in Johnson that a balancing of three factors had traditionally determined “whether a ‘new’ constitutional rule should be retrospectively or prospectively applied: ‘(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.’ ” Johnson, 457 U.S. at 543-44, 102 S.Ct. at 2584 (quoting Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1070, 18 L.Ed.2d 1199 (1967)). Indeed, Johnson’s statement that rules which clearly break from the past are almost always nonretroactive was explained by the fact that in such circumstances, the second and third factors “have virtually compelled a finding of nonretroactivity.” Johnson, 457 U.S. at 549-50, 102 S.Ct. at 2587. In contrast, in the inverse situation now before me, these considerations compel the conclusion that Leon is retroactive.

First, retroactive application of the Leon rule will obviously serve the purposes of that rule. Leon is predicated on the belief that suppression of evidence when police have reasonably relied on a magistrate’s issuance of a warrant, entails significant and unacceptable social costs. Assuming that the officers in this case did act in good faith, see discussion infra, exclusion of evidence obtained from the beepers is precisely what Leon sought to avoid. Moreover, the exclusionary rule’s principal purpose— deterring police misconduct — would not be served by making Leon nonretroactive. Even if one assumes that the rule does deter in this context — and Leon expressly repudiates this assumption, Leon, 104 S.Ct. at 3418-20 — that deterrent effect is realized at the time of the officers’ conduct and would not be affected by subsequent rule changes.

Second, I agree with the Eighth Circuit that retroactive application of Leon “will not infringe on anyone’s reliance interest.” Sager, 743 F.2d at 1264. The conduct of police officers requires reliance on established, or at least predictable, Fourth Amendment prescriptions — in fact, the deterrence rationale for the exclusionary rule is founded on the assumption that the rule will encourage police to rely on these rules. In contrast, it simply ignores reality to suggest that these defendants have a comparable degree of reliance on the exclusion of evidence obtained by police who act reasonably pursuant to a warrant that is subsequently found invalid.

Finally, the Leon decision clearly indicates that applying the good faith exception to the exclusionary rule will have a beneficial effect on the administration of justice. The Court unequivocally expressed its view that suppression of evidence obtained in reasonable reliance on a warrant is antithetical to the sound administration of justice. In the Court’s words:

“Our cases have consistently recognized that unbending application of the exelusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury.” An objectionable collateral consequence of this interference with the criminal justice system’s truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains. Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. Indiscriminate application of the exclusionary rule, therefore, may well “generate] disrespect for the law and the administration of justice.”

Leon, 104 S.Ct. at 3413 (footnote omitted) (quoting United States v. Payner, 447 U.S. 727, 734, 100 S.Ct. 2439, 2445, 65 L.Ed.2d 468 (1980) and Stone v. Powell, 428 U.S. 465, 491, 96 S.Ct. 3037, 3051, 49 L.Ed.2d 1067 (1976)).

In sum, each of the considerations identified in Johnson supports the retroactive application of Leon. I conclude that the decision is retroactive, and turn to its bearing on the dispute before me.

C. Applying Leon

The warrants issued in this case were ultimately found defective because they did not contain time limits. To determine the admissibility of evidence obtained pursuant to these warrants I must decide “whether a reasonably well-trained officer would have known that the [beeper searches were] illegal despite the [magistrates’] authorization.” Leon, 104 S.Ct. at 3421 n. 23. This objective inquiry does not permit a court to rely on the benefit of hindsight, but instead focuses on the state of the law at the time the officers obtained the warrants.

In this respect, it must be emphasized at the outset that the law governing beepers was in its infancy in 1977, when the warrants at issue here were secured. Although the “actual use of such devices had been rumored or reported since the rise of transistor technology in the 1950s ... [p]rior to 1975 there were no reported court decisions involving the legality of the bumper beeper and the gathering of evidence through its use.” Dowling, “Bumper Beepers” and the Fourth Amendment, 13 CRIM.L.BULL. 266, 268 (1977).

While a number of beeper cases had been decided by 1977, the law was in a state of disarray, with courts reaching divergent results on the circumstances, if any, in which beepers were subject to the constraints of the Fourth Amendment. • See, e.g., United States v. Washington, 586 F.2d 1147, 1154 (7th Cir.1978) (“The status of surreptitiously placed electronic tracking devices in the context of Fourth Amendment searches and seizures is not settled.”); United States v. Perez, 526 F.2d 859, 862-63 (5th Cir.1976) (referring to “the riddle of whether an electronic ‘bug’ installed in the television found in Almarez’s car ... constituted a search within the strictures of the Fourth Amendment”), cert. denied, 429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118 (1976); United States v. Bailey, 465 F.Supp. 1138, 1139 (E.D.Mich.1979) (“A consistent policy with respect to beepers and Fourth Amendment rights has not yet evolved.”), aff'd, 628 F.2d 938 (6th Cir.1980); Marks & Batey, Electronic Tracking Devices: Fourth Amendment Problem and Solutions, 67 KY.L.J. 987, 989 n. 12 (1979) (referring to “the confused state of the law in this area”); Note, Electronic Tracking Devices and Privacy: See No Evil, Hear No Evil, But Beware of Trojan Horses, 9 LOY.U.CHI.L.J. 227, 235 (1977) (recognizing disagreement among courts, as well as authorities on electronic surveillance, as to “whether the use of an electronic tracking device is a search within the meaning of the fourth amendment”); Comment, Fourth Amendment Implications of Electronic Tracking Devices, 46 U.CINN.L.REV. 243, 251 (1977) (referring to “[t]he great division among federal courts in both their reasoning and results in the beeper cases”). Much of this uncertainty resulted from the fact that a beeper, unlike a bug or a wiretap, does not pick up the content of conversation — it only permits the monitoring of an object’s location and movement (and, in some cases, whether the object containing the beeper has been opened). See United States v. Emery, 541 F.2d 887, 888 n. 1 (1st Cir.1976). In this sense, beepers are arguably analogous to pen registers, which have been determined to fall outside the scope of the Fourth Amendment. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). See United States v. Bailey, 465 F.Supp. 1138, 1140 (E.D.Mich.1979) (“The nature of the [beeper’s] intrusion into privacy is not unlike the intrusion involved in card drops and pen registers.”), aff'd, 628 F.2d 938 (6th Cir.1980). The less intrusive nature of the beeper led several courts to hold that beepers did not involve “search” or “seizure” within the meaning of the Fourth Amendment.

It is in this context that I must consider whether it was reasonable for the police officers to install and monitor beepers after securing warrants that contained no time limits. Defendants point to the decisions in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and United States v. Lamonge, 458 F.2d 197 (6th Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110 (1972), holding that warrants without time limits are facially invalid, and argue that the warrants here were “so facially deficient ... that the executing officers [could not] reasonably* presume [them] to be valid.” Leon, 104 S.Ct. at 3422.

The warrants invalidated in Berger and Lamonge, however, involved devices that permitted monitoring and recording of conversations. In Berger, the Court emphasized that “[t]he need for particularity and evidence of reliability in the showing required when judicial authorization of a search is sought is especially great in the case of eavesdropping.” 388 U.S. at 56, 87 S.Ct. at 1882. The Court explained:

By its very nature eavesdropping involves an intrusion on privacy that is broad in scope. As was said in Osborn v. United States, 385 U.S. 323 [87 S.Ct. 429, 17 L.Ed.2d 394] (1966), the “indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments,” and imposes “a heavier responsibility on this Court in its supervision of the fairness of procedures____”
At 329, n. 7 [87 S.Ct. at 433 n. 7].

Berger, 388 U.S. at 56, 87 S.Ct. at 1882.

Given the Court’s emphasis on the context in which Berger arose, it certainly was not self-evident that the Berger holding would be extended to the less intrusive searches occasioned by beeper installation and monitoring. As Justice Brennan observed while dissenting in Lopez v. United States, 373 U.S. 427, 464, 83 S.Ct. 1381, 1401, 10 L.Ed.2d 462 (1963), “[t]he requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement.” A court confronting the question might have held that beepers were sufficiently intrusive to require a warrant and a showing of probable cause, but not so intrusive as to require explicit time limits in the warrant. Indeed, the very nature of beeper searches made it clear that some relaxation of the Fourth Amendment “particularity” requirements imposed in different contexts would be necessary if beepers were ever to be permissible. See United States v. Karo, — U.S. -, 104 S.Ct. 3296, 3305, 82 L.Ed.2d 530 (1984) (discussing Government's contention “that it would be impossible to describe the ‘place’ to be searched, because the location of the place is precisely what is sought to be discovered through the search”). Alternatively, it was possible that beepers would be subjected to the requirements of Federal Rule of Criminal Procedure 41(c), which would mean that the warrant would in fact have to be executed within ten days, but would not be limited in duration to ten days. United States v. New York Telephone Co., 434 U.S. 159, 169 n. 16, 98 S.Ct. 364, 371 n. 16, 54 L.Ed.2d 376 (1977).

At the time the police officers in this case had to act, not a single case had considered the necessity of time limits in beeper warrants. See United States v. Cofer, 444 F.Supp. 146, 149 (W.D.Tex.1978) (“The Court has located no case in which a court has required, or even passed on, the necessity of circumscribing the time in which surveillance by electronic beepers could be undertaken.”). As courts did begin to address this question in cases subsequent to the searches challenged here, they reached different conclusions. Notably, in United States v. Rowland, 448 F.Supp. 22 (N.D.Tex.1977), the Court rejected a challenge to beeper monitoring of an airplane 25 days after issuance of a warrant, even though the warrant did not specifically mention beeper monitoring and only authorized the search to be conducted at any time “within the next ten days.” 448 F.Supp. at 23. The Court concluded that “[t]he warrant was executed by the physical invasion of the plane which took place within the ten day limitation. A new warrant is not required for every ten days the plane is actually being tracked.” But see United States v. Cofer, 444 F.Supp. 146, 149-50 (W.D.Tex.1978). See generally Marks & Batey, supra, at 1002 n. 84 (“The issue of the length of time a warrant authorizing beeper use is valid has not yet been settled.”).

Even as a consensus that beeper warrants required time limits began to evolve in the case law, the reasoning employed to reach this conclusion varied significantly, and courts also disagreed about the nature of the time limits. In Cofer, the Court analogized to Title III of the Omnibus Crime Control Act of 1968, 18 U.S.C. § 2518(5) (1982), and concluded that beeper warrants should only be used for 30-day periods, subject to renewal. 444 F.Supp. at 150. In United States v. Bailey, 628 F.2d 938 (6th Cir.1980), the Sixth Circuit relied on the Fourth Amendment limitations articulated in Berger v. New York and held that beeper warrants required “reasonable termination date[s]” to pass constitutional muster. 628 F.2d at 945. In contrast, the lower court had reasoned that “[t]he Constitution does not require that a search warrant contain a time limitation.” United States v. Bailey, 465 F.Supp. 1138, 1141 (E.D.Mich.1979) (footnote omitted), aff'd, 628 F.2d 938 (6th Cir.1980). After indicating that “it is necessary for the judge or magistrate issuing the [beeper] warrant to interpolate so that the warrant will satisfy constitutional standards and other standards, if any, imposed by law for the issuance of warrants,” 465 F.Supp. at 1140, the Court found a “clear federal statutory policy” requiring time limits expressed in Title III and Rule 41 of the Federal Rules of Criminal Procedure. 465 F.Supp. at 1140-41.

The police officers in this case did not have the benefit of this judicial “interpolation.” Consequently, they sought authorization of the beeper searches from two magistrates, and relied on the warrants that were issued. Based on the circumstances that I have elaborated, this is a paradigmatic case in which reliance on the magistrates’ legal judgment was objectively reasonable. This conclusion is supported by the fact that two magistrates issued the warrants without time limits, cf. Leon, 104 S.Ct. at 3421 n. 23 (noting that a different magistrate’s rejection of a warrant is relevant to the determination of objective reasonableness), and the warrants were also deemed adequate in my initial consideration of the motion to suppress. Cf. Leon, 104 S.Ct. at 3423 (pointing to “the opinions of the divided panel of the Court of Appeals” as evidence of officer’s reasonableness). It is also noteworthy that prior to trial only one of the five defendants sought suppression of any evidence obtained as a result of the beepers, a rather extraordinary omission if the warrants were as patently deficient as defendants now claim.

I conclude that a reasonably well-trained officer would not have known that the beeper searches were illegal despite the magistrate’s authorization. Accordingly, the exclusionary rule did not require the suppression of evidence obtained because of these searches. New trials are unwarranted and defendants’ convictions are reinstated.

An appropriate order may be issued.

      . In Cassity II, I found that the officers had acted in "good faith” as part of my determination that the Bailey decision should not be retroactively applied. 546 F.Supp. at 620-21. While that discussion is,relevant to the analysis here, it should be noted that it was in the context of an arguably broader inquiry into "good faith.” Specifically, while the officers’ decision to obtain a warrant despite doubts about the need to do so in some sense bears upon their “good faith,” see generally Tracking Katz: Beepers, Privacy and the Fourth Amendment, 86 YALE L.J. 1461, 1464 (1977) ("In nearly every case, those attaching the beeper have done so without obtaining a search warrant. Most but not all courts have permitted this warrantless use.”), it is not clear that this factor may be considered in a Leon good faith inquiry. As Leon would not justify an officer’s failure to secure a warrant in such circumstances, there is some question whether this factor would permit an officer to seek a warrant and then rely on it even if it is facially deficient. Consequently, I have not considered this factor in determining whether the officers acted in good faith.
      At the same time, it should be noted that cases questioning the Fourth Amendment’s application to beepers do have some relevance to the narrower inquiry required here: i.e., whether the absence of time limits in the warrants rendered them so facially deficient that the officer could not reasonably presume them to be valid. Because these cases indicated that beepers were less intrusive than other surveillance techniques, they provided some support for the conclusion that time limits might be unnecessary in beeper warrants.

      . It should be noted that a police officer monitoring beepers pursuant to a warrant without time limits today would be hard-pressed to invoke Leon's good faith exception. See, e.g., United States v. Butts, 710 F.2d 1139, 1150-51 (5th Cir.1983), rev'd on other grounds, 729 F.2d 1514 (5th Cir.1984) (en banc.), cert. denied, — U.S. -, 105 S.Ct. 181, 83 L.Ed.2d 115 (1984); United States v. Bailey, 628 F.2d 938, 944-46 (6th Cir.1980).

      . Although the rationale for Smith was that peo- . pie have no reasonable expectation of privacy in the phone numbers they dial, this reasoning was sharply criticized in the dissents. It also appears that the majority was influenced by considerations that pertain to beepers as well as pen registers:

        [A] pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications. This Court recently noted: "Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed — a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers." United States v. New York Tel. Co., 434 U.S. 159, 167 [98 S.Ct. 364, 369, 54 L.Ed.2d 376] (1977).

        Smith, 442 U.S. at 741, 99 S.Ct. at 2581 (emphasis in original).

      . See, e.g., United States v. French, 414 F.Supp. 800, 803-04 (W.D.Okl.1976) (Monitoring beeper in package containing contraband made it impossible to conceal whereabouts of contraband but “did not make it impossible for [defendant] to conceal his movements____ [T]he obtaining of this type of limited information is not a search within the mantle of the Fourth Amendment.”); United States v. Carpenter, 403 F.Supp. 361, 364 (D.Mass.1975). (Because beeper did not overhear or record conversation, but only signaled that package had been opened, intrusion did not "rise to the level of a search requiring a warrant under the Fourth Amendment ____”). Courts continued to struggle with this problem after 1977. See United States v. Clayborne, 584 F.2d 346, 351 (10th Cir.1978). (While noting that monitoring beeper in private home would violate Fourth Amendment, Court held that monitoring beeper in clandestine laboratory "was vastly different from the use of the recording device in the telephone booth in [Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ]. The invasion in Katz was of great magnitude in comparison with the intrusion here.”).

      . In United States v. Bailey, 465 F.Supp. 1138 (E.D.Mich.1979), aff'd, 628 F.2d 938 (6th Cir.1980), the Court used Rule 41(c), as well as Title III of the Omnibus Criminal Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (1982), as analogies for purposes of inferring time limits on beeper warrants (although the Court reached a conclusion, based on these analogies, very different than that suggested here). Additionally, there is substantial authority indicating that when there is a statutory provision to fall back on "failure of the issuing magistrate to actually specify in the warrant the statutory period within which the warrant must be executed will not lead to suppression." 1 W. RINGEL, SEARCHES & SEIZURES, ARRESTS AND CONFESSIONS § 6.2(a) (1984) (footnote omitted).


source: Caselaw Access Project

author: JAMES E. DOYLE, District Judge.

license: Public Domain

text:
    BURLINGTON NORTHERN RAILROAD CO., Chicago & North Western Transportation Co., Green Bay & Western Railroad Co., Soo Line Railroad Co., and Richard B. Ogilvie, Trustee of the Property of Chicago, Milwaukee, St. Paul & Pacific Railroad Co., Debtor, Plaintiffs, v. The DEPARTMENT OF REVENUE OF the STATE OF WISCONSIN, Defendant.
    No. 81-C-772.
    United States District Court, W.D. Wisconsin.
    April 5, 1985.

      James E. Bauman, Michael Best & Friedrich, Milwaukee, Wis., for plaintiffs.
    John J. Glinski, Asst. Atty. Gen., Bronson C. LaFollette, Atty. Gen., State of Wis., Madison, Wis., for defendant.
   AMENDED OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This civil action for declaratory and injunctive relief is presently before the court on plaintiffs’ renewed motion for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff contends enforcement of Wisconsin’s property tax credit scheme, Chapter 20, Wisconsin Laws of 1981, § 1174, violates the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 11503 (the 4-R Act).

The factual basis for plaintiffs’ initial summary judgment motion was presented in the form of a stipulation which was reprinted in its entirety in this court’s opinion denying the motion. 570 F.Supp. 585 (W.D.Wis.1983). Subsequently, the parties have stipulated to additional facts (Docket No. 33). I find there is no genuine issue with respect to the facts appearing in both stipulations. Set forth below are facts derived from the parties’ second stipulation.

FACTS

The following chart sets forth the fair market value of each plaintiff’s rail transportation property for the years specified as determined by the Department of Revenue pursuant to Wis.Stats. § 76.07:

1981 1982 1983

Burlington Northern R.R. Co. 61,157,100 66,579,316 55,072,629

Chicago & North Western Trans. 22,699,800 23,787,175 21,355,299

Green Bay & Western R.R. Co. 8,717,500 8,813,465 8,196,521

Soo Line R.R. Co. 72,111,300 70,597,409 65,920,180

Chicago, Milwaukee, St. Paul, & Pacific R.R. Co. 23,820,600 29,721,225 30,556,747

The average rates of taxation as computed by the Department of Revenue pursuant to Wis.Stat. § 76.12 and applied against the fair market value of each plaintiff’s rail transportation property as listed above, for the years specified, are as follows:

1981 1982 1983

Average rate of taxation .0203714 .0216138 .0216721

The average rate of taxation applied against rail transportation property for each year listed is computed utilizing data for property taxes levied pursuant to Chapter 70 of the Wisconsin Statutes in the preceding year but payable in the same year, e.g. the rate of .0203714 for 1981 was computed utilizing the data for General Property taxes levied in 1980 payable in 1981.

The following charts set forth the fair market value of all property upon which a property tax was levied pursuant to Chapter 70 of the Wisconsin Statutes, the net taxes levied on such property and the effective average tax rate for the property for the years specified. The net taxes listed were computed by the Department of Revenue using a methodology which assumes that when a municipality lies in multiple school or YTAE districts, the class-by-class property distribution within each district is proportional to the class-by-class property distribution in the municipality as a whole. These net tax figures as listed are based on estimates within a reasonable range of accuracy for purposes of this action.

TAXES LEVIED IN 1980 PAYABLE IN 1981

Net Taxes Fair Market Value Effective Tax Rate

I. GENERAL PROPERTY 1,900,300,754 117,465,069,427 .0161776

A. Real Property

1. Residential 1,126,017,984 61,674,712,250 .0182574

2. Mercantile 311,229,140 14,924,562,600 .0208535

3. Manufacturing 92,068,732 4,835,876,500 .0190387

4. Agricultural 256,832,016 17,197,094,700 .0149346

5. Other 26,170,283 2,322,497,950 .0112682

B. Personalty 71,494,466 3,675,183,230 .0194533

1. Logs & Other Forest Products 5,487 319,580 .0171694

2. Boats & Other Watercraft (not exempt) 132,378 8,085,370 .0163725

3. Public Utilities (locally assessed) 31,651 1,538,800 .0205686

4. Machinery, Tools, & Patterns 23,799,962 1,242,623,360 .0191530

5. Furniture, Fixtures, & Office Equipment 35,699,428 1,771,432,980 .0201529

6. All Other Personal Property 11,825,285 651,183,140 .0181597

C. Personal Property Line A 16,488,408 12,835,142,197 .0012846

TAXES LEVIED IN 1981 PAYABLE IN 1982

Net Taxes Fair Market Value Effective Tax Rate

I. GENERAL PROPERTY 2,178,933,259 112,874,220,070 .0193040

A. Real Property

1. Residential 1,288,430,485 65,550,545,500 .0196555

2. Mercantile 369,935,488 16,630,008,700 .0222450

3. Manufacturing 108,438,259 5,289,456,300 .0205008

4. Agricultural 293,439,800 18,674,742,300 .0157132

5. Other 31,008,129 2,548,027,700 .0121694

B. Personalty 87,681,098 4,181,439,570 .0209690

1. Logs & Other Forest 11,285 541,100 .0208558 Products

2. Boats & Other Watercraft 143,608 8,646,940 .0166080 (not exempt)

3. Public Utilities (locally 15,199 1,197,300 .0126944 assessed)

4. Machinery, Tools, & 28,764,288 1,391,544,630 .0206708 Patterns)

5. Furniture, Fixtures & 44,349,846 2,041,988,360 .0217190 Office Equipment

6. All Other Personal 14,396,872 737,521,240 .0195206 Property

TAXES LEVIED IN 1982 PAYABLE IN 1983

Net Taxes Fair Market Válue Effective Tax Rate

I. GENERAL PROPERTY 2,206,639,749 118,159,120,779 .0186751

A. Real Property

1. Residential 1,303,655,960 68,132,805,500 .0191340

2. Mercantile 381,602,174 17,461,594,300 .0218538

3. Manufacturing 112,846,288 5,617,475,300 .0200884

4. Agricultural 281,445,041 19,687,669,600 .0142955

5. Other 30,634,227 2,692,777,800 .0113764

B. Personalty 96,456,058 4,566,798,279 .0211211

1. Logs & Other Forest Products 4,459 254,700 .0175057

2. Boats & Other Watercraft (not exempt) 136,722 9,039,270 .0151253

3. Public Utilities (locally assessed) 20,369 1,295,720 .0157200

4. Machinery, Tools, & Patterns 31,195,904 1,517,238,756 .0205609

5. Furniture, Fixtures & Office Equipment 49,566,009 2,239,642,663 .0221312

6. All Other Personal Property 15,532,595 799,327,170 .0194320

The following chart sets forth the fair market value of all property, other than rail transportation property, upon which a property tax was levied pursuant to Chapter 76 of the Wisconsin Statutes, the actual taxes levied on such property and the actual or effective tax rate for that property for the years specified:

Net Taxes Fair Market Value Effective Tax Rate

1981 74,203,997 3,642,560,920 .0203714

1982 80,674,779 3,732,555,531 .0216138

1983 86,177,986 3,976,175,340 .0216721

For purposes of this action all property listed in the charts above, except the following listed classes of property, is property devoted to commercial or industrial use upon which a property tax is actually levied within the State of Wisconsin, i.e., property other than transportation property and land used primarily for agricultural purposes or timber growing:

(a) Residential Real Property

(b) Agricultural Real Property

(c) Other Real Property

Personal Property Line A in 1981 was taxed at only 30% of fair market value. The assessed portion of that property totalled 3,850,542,659. If that figure were used to compute the value of General Property and the respective average effective tax rate on that property, the value and rate would be as follows:

1981

Fair Market Effective Net Taxes Value Tax Rate

General Property 1,900,300,754 108,480,469,889 .0175174

The statewide average effective ad valorem tax rates applied to commercial and industrial property were as follows:

1982 .0216779

1983 .0214117

The corresponding rate in 1981 depends upon whether the tax on Line A personal property is deemed to have been levied on 100% or 30% of the property’s fair market value. The alternative rates are:

Using 30% of fmv of Line A property .0182835

Using 100% of fmv of Line A property .0141678

OPINION

The 4-R Act prohibits levying or collecting “an ad valorem property tax on rail transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction.” 49 U.S.C. § 11503(b)(3). To determine whether railroads are victims of property tax discrimination in Wisconsin it is necessary to compare the following two figures: (1) the property tax rate applied to railroad transportation property and (2) the property tax rate applied to commercial and industrial property. If the railroad rate exceeds the commercial and industrial rate, the 4-R Act is violated and the railroads are entitled to the relief afforded by the statute.

With one exception, to be addressed shortly, the parties have stipulated to the relevant tax rates in Wisconsin, so that comparison is a relatively straightforward undertaking. There is no question that the state applied the following rates to railroad transportation property:

1981 .0203714

1982 .0216138

1983 .0216721

The property tax rate applied in Wisconsin to commercial and industrial property, to which the railroad rate must be compared, is more difficult to ascertain because “commercial and industrial property” is not a category used by defendant. I rejected plaintiffs’ original motion for summary judgment because they had failed to establish the effective rate of taxation applied to commercial and industrial property during the relevant years. I held that this rate would be found by computing “the aggregated total of all the taxes on commercial and industrial property (and only commercial and industrial property) levied by all the local taxing jurisdictions in the state, divided by the aggregate total of the assessed valuation of all the commercial and industrial property scattered among all the local taxing jurisdictions within the state.” 570 F.Supp. at 594. I expressed my hope the parties could stipulate to the facts essential to this calculation, and indeed they have. Both sides agree dividing the total tax paid on commercial and industrial property in Wisconsin by the total assessed value of such property yields the following effective tax rates:

1982 .0216779

1983 .0214117

The parties disagree over the effective commercial and industrial property rate for 1981. The disagreement stems from the fact that in that year the state appears to have assessed a certain component category of commercial and industrial property, namely “Line A Personal Property,” at only 30% of its actual fair market value. This contrasts with the assessment at 100% of fair market value of all other commercial and industrial property, as well as of railroad transportation property. Whether 30% or 100% of the fair market value of Line A Property is used in calculating the aggregate value of commercial and industrial property makes a substantial difference in the average tax rate. Line A property comprises approximately one-third of all commercial and industrial property.

The 4-R Act prohibits assessing “rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property.” 49 U.S.C. § 11503(b)(1). Plaintiffs contend assessing their rail property at 100% of fair market value is discriminatory. I agree.

The statute does not explicitly address a situation, such as here, in which some but not all commercial and industrial property is underassessed relative to rail transportation property. However, it is clear that assessment of a significant portion of commercial and industrial property at a value that has a low ratio to its true market value lowers the aggregate assessment ratio for the category of commercial and industrial property, taken as a whole. In this case, assessing Line A property at 30% of fair market value serves to lower the aggregate assessment of all commercial and industrial property to about 80% of fair market value. Rail transportation property, however, is assessed at 100% of fair market value, and is thus discriminated against by means of the assessment ratios used. When the aggregate total of the assessed valuation of all commercial and industrial property is calculated, as it should be for purposes of applying the 4-R Act, based on 100% of the fair market value of Line A property, the effective tax rate on the entire category of commercial and industrial property for 1981 is .0141678. I find, therefore, that .0141678 is the effective rate for 1981.

Having established the tax rates for rail transportation property and commercial and industrial property, it is necessary only to compare the rates to determine the excess tax, if any, charged against rail transportation property:

Rail Transportation Tax Rate Commercial/ Industrial Tax Rate Difference

1981 .0203714 .0141678 .0062036

1982 .0216138 .0216779 -.0000641

1983 .0216721 .0214117 .0002604

In 1981 and 1983, there was levied “an ad valorem property tax on rail transportation property that exceed[ed] the tax rate applicable to commercial and industrial property,” in violation of the 4-R Act. In 1982, there was not.

Plaintiffs argue the discrepancy between the tax rate on rail transportation property was actually greater than that shown in the calculations above. Their argument runs as follows: To test whether, and how much, discrimination has occurred, in 1981, for example, we must assume that rail transportation property had not been rail transportation property but, rather, had been a sub-category of commercial and industrial property (“railroad-type”) within the general category of commercial and industrial property, and then inquire, how would it have fared? The answer to that question depends critically on where this railroad-type commercial and industrial property was situated geographically, since each local jurisdiction sets its own tax rate. No one knows how this railroad-type commercial and industrial property was situated geographically, and there is no practical way to ascertain this fact from year to year. If the 4-R Act is to be given effect in this context, and it must be, it is necessary to indulge in a fiction concerning how railroad-type commercial and industrial property was scattered geographically. The alternative fictions are probably infinite. However, for the purpose of deciding what tax rate to apply to rail transportation property, the state actually did make a choice among the possible geographical fictions. It chose the fiction that the configuration of the geographical scattering of railroad-type commercial and industrial property (“railroad-type geography”) was precisely congruent with the configuration of the geographical scattering of general property (“general property geography”). When that fiction was indulged for 1981, the statewide average tax rate for “railroad-type” commercial and industrial property was in fact identical to the statewide average tax rate for general property, with one major exception. For railroad-type commercial and industrial property, the tax credit was not granted. The discrimination inheres in, and is to be measured by, this discrepancy.

This is a persuasive thesis. The effect of my earlier opinion in this case was implicitly to reject it, although I did not then perceive clearly the implications of plaintiffs’ thesis or of mine. I now believe that the contrast between my earlier opinion and plaintiffs’ thesis lies in the contrast between the geographical fiction plaintiffs urge on the court (congruence of railroad-type geography with general property geography) and another geographical fiction (congruence of railroad-type geography with non-railroad-type commercial and industrial property geography). In the earlier opinion, I implicitly asserted that for the purpose of applying the 4-R Act, the fiction to be applied was the fiction of congruence between railroad-type geography with non-railroad type commercial and industrial property geography. I made this implicit assertion in an opinion in which I was also saying that I accepted the fiction of congruence urged by plaintiffs (between railroad-type geography and general property geography).

After an effort freshly to analyze the issue, and for reasons set forth below, I conclude that one fiction may well be entirely serviceable to the state of Wisconsin for its purpose, while another, seemingly inconsistent fiction is better suited to the congressional purpose in enacting 4-R and to the court’s role in giving effect to the congressional purpose, rather than to some purpose of the state.

The geographical fiction urged by plaintiffs has been dignified by being chosen by the state for the purpose of deciding the tax rate it applies to railroad transportation property, and it has been acquiesced in by the railroads, apparently because it is a practical and sufficiently fair device to cope with the difficulty in determining the geographical situs of various items of railroad transportation property, from year to year. As I have remarked in note 1, however, so far as purpose and language of the 4-R Act are concerned, it is irrelevant how Wisconsin has arrived at the tax rate it imposes on railroad transportation property. The state may elect any objective it deems desirable, including parity or disparity between the tax rate on railroad transportation property and the tax rate on general property, and it can elect any means to that objective, including indulging a fiction that the railroad property is geographically scattered in this pattern or that. But Congress has forbidden the result to be a tax rate on railroad transportation property higher than that on a defined category of property, specifically, commercial and industrial property.

When a court in Wisconsin is called upon by the 4-R Act to compare the rate on railroad transportation property with the rate on commercial and industrial property, it encounters the same practical difficulty that the state encountered in deciding upon a rate to apply to railroad transportation property: the absence of information about where the property is located. But the court’s response to that practical difficulty must be shaped by the court’s function to fulfill the congressional purpose in enacting 4-R, not some irrelevant state purpose. That function is to make a comparison between how the state has taxed one specific category of property and how it has taxed another specific category of property. This function differs from the function which the state performed. To perform its function, the court must employ the geographical fiction most serviceable in achieving an accurate and fair comparison for purposes of the 4-R Act.

I accept plaintiffs’ suggestion that the mode of testing for discrimination is to inquire how, in a given tax year, railroad transportation property would have fared had the state treated it as a sub-category of property within the larger category of all commercial and industrial property.

But it is more consistent to follow through with an assumption that the subcategory was geographically scattered consistently with the larger category. I acknowledge that this assumption, this geographical fiction, is unsupported in the record of this case, as is the geographical fiction urged by plaintiffs. Although I do not consider it necessary to a decision that the fiction be rooted in fact, it is comforting that it does not appear unreasonable to hypothesize some correlation between the location of commercial and industrial facilities and the location of rail facilities.

I hold that the rate comparison is most reasonably and fairly made on the assumption, year by year, that the configuration in which railroad transportation property is scattered is congruent with the configuration in which commercial and industrial property is scattered, and that the presence and the extent of discrimination in rates is as it appears in the table on page 1578 of this opinion.

I depart from my earlier determination that local jurisdictions are the appropriate assessment jurisdictions for purposes of 4-R. Plaintiffs have never claimed the search for discrimination against rail transportation property should focus separately on each local jurisdiction. On the contrary, plaintiffs have been content if rail transportation property is taxed by the state at no more than an average of varying rates applied by a composite of local taxing jurisdictions. Rail transportation property actually may be distributed in a way more favorable to railroads (i.e., concentrated in low-tax jurisdictions) or more favorable to the state (i.e., concentrated in high-tax jurisdictions). However, both defendant and plaintiffs have been willing to accept a tax rate tied to an average arising from varying local rates.

Notwithstanding language to the contrary in the earlier opinion, local jurisdictions have not been treated in actuality as assessment jurisdictions under the 4-R Act; parties have not sought examination of the comparative rate situation in individual local jurisdictions. Given the statewide perspective on taxing rail transportation property adhered to by all parties, I now hold that in applying 4-R the state is the appropriate assessment jurisdiction. See Atchison, Topeka and Santa Fe Ry. Co. v. Lennen, 552 F.Supp. 1031, 1035 n. 7 (D.Kan.1982).

The state argues it is shielded from liability by de minimis. I hold otherwise. The statute has no express substantiality requirement as to discriminatory rates, as contrasted with discriminatory assessments; I infer none. That the calculations are based on estimates does not militate in the state’s favor, for just as the estimated excess may overstate the real disparity, it might just as easily understate it.

ORDER

Plaintiffs’ renewed motion for summary judgment is granted. I declare the tax rates applied to plaintiff’s rail transportation property by defendant in 1981 and 1983 were discriminatory, in violation of 49 U.S.C. § 11503(b)(3)! Defendant is enjoined from applying to rail transportation property a tax rate in excess of the average effective ad valorem rate on commercial and industrial property in Wisconsin. For the years 1981 and 1983, defendant is enjoined from taxing rail transportation property at a rate in excess of .0141678 and .0214117, respectively.

No later than April 15, 1985, counsel for plaintiffs is directed to serve and file a proposed form of judgment, consistent with this opinion, for the court’s approval and for entry by the clerk of court. Within seven days of service of such a proposed judgment, counsel for defendant may serve and file objections to the proposed form of judgment. The court will rule on any such objections and direct entry of judgment by the clerk.

      . In the stipulation, defendant asserted that Line A personal property was not commercial or industrial property. In its brief, however, defendant receded from its contention and agreed the category of commercial and industrial property includes Line A property.

      . These rates did not appear in the stipulation, but were revealed in the parties' briefs. It is clear there is no dispute as to their accuracy.

      . The state pegs the railroad tax rate to the statewide average rate applied by local jurisdictions to general property, which includes, but is not confined to, commercial and industrial property. For the purposes of determining whether discrimination exists under 4-R, however, it is irrelevant how Wisconsin arrives at its railroad tax rate.

      . As note in the prior opinion, the effective tax rate applied to commercial and industrial property reflects tax credits granted by the state to commercial and industrial property owners (but not to owners of railroad transportation property)-

      . It is also a question of how much will occur in the future, of course, if the state’s procedure remains unchanged. Analysis is facilitated, however, by referring to past years, as to which concrete data can be examined.

      . Pursuant to the uniformity clause of the state constitution, within each local taxing jurisdiction there is but a single tax rate for all types of property. See 570 F.Supp. at 594.


author: POLOZOLA, District Judge.

text:
    Charest D. THIBAUT, Jr. v. J. Clifford OURSO, Sr., et al.
    Civ. A. No. 76-373-B.
    United States District Court, M.D. Louisiana.
    June 10, 1981.

      Donald R. Mintz, Leopold Z. Sher, McGlinchey, Stafford, Mintz & Hoffman, New Orleans, La., for plaintiff.
    John Dale Powers, Michael H. Rubin, Sanders, Downing, Kean & Cazedessus, Baton Rouge, La., for J. Clifford Ourso, Sr. and David M. Ourso.
    Thomas R. Bryan, Stanford 0. Bardwell, Jr., Baton Rouge, La., for Dr. Redfield Bryan & Carol Ourso Bryan.
    John Baus, Adams & Reese, New Orleans, La., Robert L. Kleinpeter, Kleinpeter & Nevils, Baton Rouge, La., for J. Clifford Ourso, Jr.
    J.D. Pittman, Max Pace, Enloe Kee, Robert B. Bieck, Jr. of Jones, Walker, Waechter, Poitevent, Carriere & Denegre, New Orleans, La., for Rolfe McCollister.
    A. Leon Hebert, Hebert & Moss, Baton Rouge, La., for Carl Baldridge.
    John R. Martzell, Martzell, Montero & Lemothe, New Orleans, La., for George E. McNutt, Jr.
   POLOZOLA, District Judge.

On January 5, 1981, this Court issued an order enforcing a settlement agreement which had been entered into by the parties to this action. After this order was issued by the Court, George E. McNutt, Jr., Rolfe McCollister, Max Pace, Enloe Kee and J.D. Pittman filed a motion to have the Court reconsider its January 5, 1981 ruling or, in the alternative, to grant a new trial herein. The Court heard oral arguments in this case and took the matter under advisement.

The Court, after carefully reviewing the entire record, finds that no additional evidentiary hearings are required in this case and that the Court’s prior decision enforcing the settlement agreement entered into between the parties is hereby reaffirmed. Therefore, the motion filed by George E. McNutt, Jr., Rolfe McCollister, Max Pace, Enloe Kee and J.D. Pittman for reconsideration of motion to enforce settlement or, in the alternative, for a new trial, is hereby DENIED.

In the Court’s opinion of January 5, 1981, the Court gave detailed reasons in support of its decision to enforce the settlement. These reasons are again adopted by the Court by reference and shall not be repeated herein. This opinion shall supplement the Court’s opinion of January 5, 1981.

Settlement agreements have always been a favored means of resolving disputes. Williams v. First National Bank, 216 U.S. 582, 30 S.Ct. 441, 54 L.Ed. 625 (1910). When fairly arrived at and properly entered into, settlement agreements are generally viewed as binding, final and as conclusive of the rights of the parties as is a judgment entered by a court. Thomas v. State of La., 534 F.2d 613 (5 Cir.1976). Cia Anon Venezolana De Navigacion v. Harris, 374 F.2d 33 (5 Cir.1967). When the parties to a pending suit compromise the cause of action, and the terms of the compromise are complied with, the parties are bound by the agreement and the suit is ended. Cia Anon Venezolana De Navigacion v. Harris, supra; Eagle Oil Co. v. Sinclair Prairie Oil Co., 105 F.2d 710 (10 Cir.1939). The law encourages and favors the settlement of disputed claims and will sustain such settlements because it is in the interest of the state and the parties that there should be an end to litigation. D.H. Overmyer Co. v. Loflin, 440 F.2d 1213 (5 Cir.1971); Continental Oil Co. v. FPC, 373 F.2d 96 (10 Cir.1967); Petty v. General Acc. Fire & Life Assur. Corp., 365 F.2d 419 (3 Cir.1966).

Since the courts favor the settlement of disputed claims and it is presumed that the parties making settlements have consulted their own interests, settlement agreements should not be taken lightly or be interfered with or impeached. Cia Anon Venezolana De Navigacion v. Harris, supra; Kraly v. National Distillers and Chem. Corp., 319 F.Supp. 1349 (U.S.D.C.Ill.1970), aff’d. 502 F.2d 1366 (7 Cir.1974). Hence, in the absence of fraud, mistake, or other circumstances going to the validity of the agreement, a settlement voluntarily entered into cannot be repudiated by either party or set aside by the court. Likewise, a settlement agreement will not be opened merely to inquire into the equities between the parties or because one of the parties has become dissatisfied with the agreement. Kraly v. National Distillers and Chem. Corp., supra.

A valid compromise binds those who are parties thereto and those with notice who claim under them. Wise v. Braniff Airways, Inc., 622 F.2d 738 (5 Cir.1980); Southeast E. & T. Suppliers, Inc. v. American Enka Corp., 463 F.2d 1165 (5 Cir.1972). Accordingly, the parties and those with notice who claim under them cannot go behind a valid compromise made in good faith as a settlement of prior disputes, but are bound thereby as are those persons in behalf of whom and by whose authority the settlement is made and those who by their acts adopt and approve and make the settlement agreement their own. Hyman v. McLendon, 140 F.2d 76 (4 Cir.1944).

As noted earlier, five of the parties to this suit have filed the pending motion. Of these five parties, only one, George McNutt, Jr., did not sign the settlement agreement. The other moving parties did sign the agreement. Thus, the Court finds that Rolfe McCollister, Max Pace, Enloe Kee and J.D. Pittman are estopped from contesting the validity of the settlement agreement. The arguments asserted by these four parties are nothing more than frivolous assertions which have no basis or support in law or fact. It is well settled that where a party enters into a settlement agreement, the agreement is viewed as a binding final and conclusive agreement. Therefore, McCollister, Pace, Kee and Pittman have no standing to contest the agreement entered into, particularly where these parties are in accord with the terms of the agreement insofar as the agreement relates to them. In fact, during the oral argument held herein, it appeared to the Court that counsel for McCollister, Pace, Kee and Pittman was asserting arguments that seem to favor McNutt more than his own clients. Nothing was presented to the Court which would in any way show that McCollister, Pace, Kee and Pittman signed the settlement agreement because of fraud, mistake or any other circumstances which would affect the validity of the settlement agreement. These four gentlemen voluntarily signed a valid settlement and therefore are bound by the terms of that agreement.

McNutt, for reasons totally unknown to this Court, failed or refused to sign the agreement. The settlement agreement which has been filed in the record of this case does in fact substantially and accurately reflect the settlement which was entered into between the parties. McNutt contends that the agreement fails to properly reflect his tax consequences and does not provide security for the notes. These contentions are totally without merit. A careful review of Article V of the agreement clearly shows that the tax consequences of McNutt were indeed considered and provided for in the agreement. Not only does the agreement provide for payment over a three-year period (which payments incidentally would actually be made in a period of 367 calendar days), but the agreement also limits the total amount which could be paid on December 31, 1979 to 30% of the total sales price. See Article 5.4 and 5.5 of the Settlement Agreement. Furthermore, at the oral argument held in this case counsel for McNutt agreed that Irving Couvillion, a tax lawyer associated with the firm in which the defendant McCollister is a senior partner, give McNutt a tax opinion prior to the time the settlement was agreed to by the parties. Thus, the Court is satisfied that the tax consequences of the settlement were discussed and were accurately reflected in the final settlement agreement entered into between the parties.

The Court also finds that the settlement agreement also provides for security for the notes as agreed to by the parties. Articles 5.5 through 5.8 provide for the manner in which the notes were to be endorsed and paid and the penalties which would be imposed if the notes were not paid. In addition the agreement clearly provides that the stock involved herein would be delivered to the purchasers “contemporaneously” with the receipt of note and cash.

It is very important to note that the two matters complained of by McNutt are minor matters and cannot in any way be said to be the principal cause or motive for entering into the settlement proposal. Since McNutt does not and could not in good faith allege fraud, in order for the Court to invalidate this settlement agreement McNutt must show that there was an error of fact as to the principal cause of the agreement. In other words, an error of fact sufficient to invalidate the agreement must be as to the principal cause of the agreement and the other party must have been apprised and presumed to know of the principal cause. American Bank & Trust Co., Etc. v. Anderson, 377 So.2d 441 (2 Cir.1979); Cole v. Lumbermens Mutual Casualty Company, 160 So.2d 785 (3 Cir.1964); Carlton v. Great American Insurance Co., 273 So.2d 655 (4 Cir.1972), writ denied 277 So.2d 442 (1973). In Cole v. Lumbermens Mutual Casualty Company, supra, the Court stated:

“[1] Under the civilian law of obligations, legally given consent of both parties is requisite to the validity of a contract, so that there is no consent and no valid contract where the consent has been produced by error or fraud. LSA-C.C. Arts. 1779, 1819, 1824.
“[2] Compromises are a species of contract which cannot be attacked because of error of law, but which may be rescinded because of error of fact, or in the case of fraud. LSA-C.C. Arts. 3078, 3079.
“[3] An error of fact is that ‘which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.’ LSA-C.C. Art. 1821. It is not every error that will invalidate a contract, only an error as to some point ‘which was a principal cause for making the contract’, including error ‘as the motive for making the contract’. LSA-C.C. Art. 1823.
“As to error in the motive, LSA-C.C. Art. 1824 provides: ‘The reality of the cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive being that which determines the will, if there be no such cause where one was supposed to exit, or if it be falsely represented, there can be no valid consent.’ Further, ‘The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration without which the contract would not have been made.’ LSA-C.C. Art. 1825.
“Likewise, and it is important to note the words italicised by this court: ‘No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.’ LSA-C.C. Art. 1826. Additionally, ‘ * * * wherever the motive is apparent, although not made an express condition, if the error bears on that motive, the contract is void. * * * ’, LSA-C.C. Art. 1827.
"* * *
“Such principles also apply to the annulment of a compromise on the ground of error. LSA-C.C. Arts. 1828-1830. ‘But if the compromise be of all differences generally, and there were other subjects of dispute, besides that in which the error existed, of sufficient importance to raise a presumption that, even if the error had been discovered, the compromise would still have been made, then such error shall not invalidate the contract.’ LSA-C.C. Art. 1831.”

Thus, it is not every error that will invalidate a contract, but only an error as to some point which was the principal cause for making the contract, including error as to the motive for making the contract. Not only was there no error made in this case as is reflected in the record and the compromise agreement, but even assuming an error was made, the two alleged errors complained of by McNutt did not pertain to the principal cause of the agreement.

This Court is at a loss to explain why this case is still before the Court. The participants to this agreement are prominent businessmen represented by competent counsel. Many hours were devoted to reaching a settlement. This Court will not allow its Court to serve as a forum for parties to use in furtherance of their personal or business intentions, frustrations or plans. The time has simply come for the parties to set aside whatever personal feelings or animosities which have apparently surfaced in this case and bring this case to a final conclusion. Because the Court finds no error of law or fact in the agreement, the Court shall now enter an order to enforce the settlement agreement entered into between the parties.

Therefore:

IT IS ORDERED that the Motion of George E. McNutt, Jr., Rolfe McCollister, Max Pace, Enloe Kee, and J.D. Pittman for Reconsideration of Motion to Summarily Enforce Settlement Agreement or, in the Alternative, for a New Trial, be and it is hereby DENIED.

IT IS FURTHER ORDERED that on or before June 26, 1981, the defendant, George McNutt, Jr., shall sign and execute the original or a copy of the settlement agreement which is attached to this opinion as Exhibit 1.

IT IS FURTHER ORDERED that if George McNutt, Jr. has not executed the original settlement agreement or a copy thereof by 5:00 p.m. CDT on June 26, 1981, counsel for plaintiff shall by June 30, 1981 submit to the Court a judgment in the form of the settlement agreement entered into by the parties.

IT IS FURTHER ORDERED that a copy of this order shall be served on George E. McNutt, Jr. by the United States Marshal in accordance with law. The Clerk of Court shall also mail a copy of this order by certified mail to all counsel of record.

      . The settlement agreement is Exhibit B attached to plaintiff's motion to reopen the case and to summarily enforce settlement agreement, filed on November 17, 1980, and marked as document 84 in the record. A copy of this agreement is attached to the Court’s opinion as Exhibit 1. [Exhibit B is not included with the published opinion.]

      . One installment was to be paid on December 31, 1979, one installment was to be paid during 1980, and one installment could be paid on or after January 1, 1981. (Article 5.1 and 5.4 of the agreement.)


author: SHADUR, District Judge.

text:
    REFRIGERATION SALES CO., INC., Plaintiff, v. MITCHELL-JACKSON, INC., et al., Defendants.
    No. 81 C 5581.
    United States District Court, N.D. Illinois, E.D.
    Dec. 16, 1983.
    Mark K. Schoenfield, Jerome H. Torshen, Ltd., Chicago, for plaintiff.
    John F. Horvath, Conklin & Adler, Peter A. Quilici, Chicago, for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

On November 18 this Court’s memorandum opinion and order (the “Opinion”) granted summary judgment under Fed.R. Civ.P. (“Rule”) 56 in favor of defendants and against Refrigeration Sales Co., Inc. (“Refrigeration”), consequently dismissing Refrigeration’s Complaint with prejudice. 575 F.Supp. 971. Refrigeration has now filed two motions to set aside that judgment:

1. Its Motion for Reconsideration was filed November 28 and entered and continued December 5.
2. Its Motion for New Hearing, filed December 8, 1983, is nearly identical to the Motion for Reconsideration, except that it includes two affidavits in support of Refrigeration’s estoppel defense to the Rule 56 motion.

Both current motions are wholly without merit for the reasons stated in this memorandum opinion and order.

Motion for Reconsideration

Three of Refrigeration’s four grounds for “reconsideration” merely rehash its old arguments. Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983) explains the function of motions for reconsideration and concludes:

The motion to reconsider would be appropriate where, for example, the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court. Such problems rarely arise and the motion to reconsider should be equally rare.

Refrigeration’s first three asserted grounds do not fall into any of those categories. Instead they contend this Court was in error on the issues it had considered fully and spoken to in detail in the Opinion. Those arguments should of course be directed to the Court of Appeals.

Refrigeration’s fourth ground for reconsideration asserts this Court’s misunderstanding of Refrigeration’s estoppel argument. Apparently Refrigeration’s current position is that defendants are es-topped to assert the limitations period in their warehouse receipts because defendants procured a delay in the filing of this action. By contrast, this Court had understood Refrigeration’s position to be that defendants were estopped to assert the limitations provision because of actions occurring before the limitations time period began to run. That contention was rejected on the ground that acts giving rise to an estoppel must occur during the time period in which a plaintiff claims he relied on those acts to his detriment.

Reexamination of Refrigeration’s summary judgment memorandum reconfirms this Court was wholly justified in its understanding of Refrigeration’s argument, as originally posed on the summary judgment motion. Refrigeration’s Mem. 10-11 specifically identified the following alleged facts in support of its contention the six elements of estoppel under Illinois law were satisfied:

1. The defendants repeatedly misrepresented their inventory of Refrigeration’s goods and the amounts of storage charges to which M-J was entitled;
2. The defendants knew since 1977 that their inventory records were incorrect and that their monthly invoices misstated the actual inventory of Refrigeration’s goods beyond any minor fluctuations normally caused by the lag-time introduced by paperwork;
3. Refrigeration was not aware that M-J was misstating its actual inventory of Refrigeration’s goods;
4. The defendants fully expected Refrigeration to pay the storage charges assessed by M-J;
5. In reliance on the amounts stated in M-J’s monthly storage bills, Refrigeration paid all such amounts to M-J. Additionally, Refrigeration marketed its products and promised shipments to its Chicago-area customers in reliance on the misstated figures in M-J’s inventory reports;
6. Thus, Refrigeration paid storage charges on merchandise that was not actually in storage at the M-J warehouse, and Refrigeration lost customers in the Chicago area when M-J was unable to ship Refrigeration’s goods to such customers, because the quantities stated in M-J’s inventory reports were not actually in stock.

Thus Refrigeration is not really clarifying its original position. It is rather asserting a new position as a purported basis for “reconsideration.” That kind of afterthought, or shifting of ground, is also not one of the circumstances in which a motion for reconsideration is appropriate. As the next section demonstrates, with the most limited of exceptions (none of which applies here) a party gets one chance to try its case—and for that purpose summary judgment is the equivalent of trial.

Motion for New Hearing

Refrigeration’s motion for new hearing suffers from two defects. Either would be fatal. Together they are compellingly so.

First, Refrigeration’s newly-tendered submission of two affidavits in support of its position that defendants procured the late filing of its action constitutes an impermissible piecemeal presentation of evidence. In resisting defendants’ summary judgment motion, Refrigeration presented no evidence and relied on the evidence submitted by defendants. Summary judgment motions are intended to take the place of trials, and Refrigeration’s total failure to produce evidence in its own defense is no different from the failure to produce evidence at trial. What this Court wrote in Keene Corp. v. International Fidelity Insurance Co., 561 F.Supp. 656, 665-66 (N.D.Ill.1983) (footnote omitted) might well have been written for this case:

Such motions [for reconsideration or, as in this case, for new hearing] cannot in any case be employed as a vehicle to introduce new evidence that could have been adduced during pendency of the summary judgment motion. See Walker v. Hoffman, 583 F.2d 1073, 1075 (9th Cir.1978), quoting Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir.1972):
The non-movant has an affirmative duty to come forward to meet a properly supported motion for summary judgment:
A party opposing a motion for summary judgment simply cannot make a secret of his evidence until the trial, for in doing so he risks the possibility that there will be no trial. A summary judgment motion is intended to “smoke out” the facts so that the judge can decide if anything remains to be tried.
Accord, W.A. Krueger Co. v. Northern Trust Co., No. 81 C 6064, slip op. at 7 n. 7 (N.D.Ill. Jan. 7, 1983) (“a litigant cannot ‘hold back’ evidence on a summary judgment motion”).

Just this month our Court of Appeals dealt with the related issue of a failure to present evidentiary matters during trial in Canada Dry Corp. v. Nehi Beverage Co., Inc., 723 F.2d 512 (7th Cir.1983). It held such failures to act constitute a trial strategy to which the delinquent party is bound. In discussing whether computational errors in damage summary charts constituted reversible error, the court stated (At 523):

Accordingly, if Canada Dry, once it learned of the damages charts, had asked for a recess to check the underlying calculations, a refusal by the trial court to allow Canada Dry sufficient time would presumably have been an abuse of discretion. This, however, did not occur. Canada Dry never sought the opportunity during the trial to check the data, although it did ask for and receive at least the worksheets used by the chart’s preparer. Canada Dry chose instead to challenge the charts on other grounds during the trial. Canada Dry selected its own trial strategy and failed to seek an adequate recess to analyze the summary fully. It was this choice which “deprived” it of the opportunity to discover before the end of the trial that the summary charts on damages were seriously flawed.

This case really follows a fortiori from Canada Dry. There is no excuse at all for Refrigeration’s failure to act when it was necessary to do so. Both sides knew the core issue in the case was whether or not defendants could rely on the limitations provision in the warehouse receipts. All Refrigeration’s arguments dealt with reasons the receipts should not be enforced as written. One of those claimed reasons was estoppel. And Refrigeration advances no contention the affidavits contain newly-discovered evidence (indeed, the identity of the affiants and the contents of the affidavits belie that possibility).

Second, the tendered affidavits do not,satisfy Rule 56 testimonial standards. Both Leonard Kestenbaum and Leo Feldman say in general terms that Alfred L. Jackson made statements of a general character “on several occasions” and described what occurred “on such occasions.” Neither affidavit satisfies the Rule 56(e) requirement of trial-type testimony, implicit in the language that affidavits “shall be made on personal knowledge [and] set forth such facts as would be admissible in evidence....” That defect might perhaps be cured by redrafting, but that contingency need not be dealt with, for the first flaw discussed earlier in this section is incurable.

Conclusion

On any issue in a summary judgment motion, as on any issue at trial, each party is entitled to one bite at the apple. Refrigeration has had that bite on the issue whether defendants are estopped to raise the limitations provision. In filing its motions for reconsideration and for new hearing Refrigeration impermissibly seeks to retry its case. Both those motions are denied.

      . All relevant dates are in 1983.

      . That would be the case even had Refrigeration really identified and presented that version of its estoppel argument the first time around— that is, were this Court to have reached a different result on the issue discussed in the preceding section. Indeed, there would be even less excuse for Refrigeration’s posing the issue and failing to offer the allegedly relevant evidence when the original summary judgment motion was presented for decision.

      . Defendants’ December submission in opposition to Refrigeration’s motion casts further doubt on the affidavits. In light of the disposition in this opinion, no discussion of those issues is necessary.


author: WILHOIT, District Judge.

text:
    John D. LEWIS, Plaintiff, v. Margaret HECKLER, Secretary of Health & Human Services, Defendant.
    Civ. A. No. 83-175.
    United States District Court, E.D. Kentucky, Catlettsburg Division.
    May 12, 1984.
    Gary E. Conn, West Liberty, Ky., for plaintiff.
    U.S. Atty. Louis DeFalaise, Lexington, Ky., for defendant.
   MEMORANDUM OPINION AND ORDER

WILHOIT, District Judge.

This cause is before the Court on the Secretary’s motion for relief from judgment. The claimant has responded, and the motion is now fully submitted.

The judgment from which the Secretary seeks relief is an Order entered by this Court dealing with a problem that has presented itself not only in this case but virtually all social security disability appeals that come before this Court.

This Court, consistent with its opinion rendered in Edward Flannery, Jr., v. Secretary, HHS, 583 F.Supp. 347 (E.D.Ky.1984), started awarding interim benefits to social security claimants in cases in which the Secretary asks for repeated extensions of time to either comply with the time requirements of the Federal Rules of Civil Procedure or the Orders of this Court. The problem dealt with herein presents itself in slightly different factual contexts, each of which will be addressed below.

The first problem is the Secretary’s repeated delays in filing an answer and submitting a copy of the administrative transcript or record. The purported reasons for such delays, if any are offered, include: (1), the Secretary’s counsel, the United States Attorney, is presently unable to locate and/or procure a copy of the administrative transcript; (2), the tape or other record of the administrative proceedings has been lost, destroyed or is otherwise unusable; or (3), the Secretary or her counsel, the United States Attorney, simply has not had time to prepare an answer.

A related problem is that even if the Secretary answers, with or without the transcript filed, she inevitably moves for an extension of time in which to file a memorandum in support of her decision, notwithstanding this Court’s orders to file a brief on a date certain. In most cases, the Secretary moves for repeated extensions of time both to file an answer and to file a memorandum. Again, the usual excuse offered for such delays, if any is offered at all, is that the administrative record has not yet been forwarded to the United States Attorney’s Office or that the record is not presently available.

This Court has been more than lenient with the Secretary. Time and again the Court has granted the Secretary’s motions for extensions of time. Indeed a standing Order of this Court, entered in this division on October 25, 1975, gives the Secretary as a matter of course one hundred (100) days within which to file an answer in social security cases. That Order goes on to say that no further extensions of time will be granted. The Court, nonetheless, has frequently granted the Secretary’s requested extensions (although the Secretary has never provided sufficient reasons for the Court to do so) in order to accommodate the Secretary, the United States Attorney’s Office, and the Secretary’s administration, which is apparently plagued with red tape and caseload backlog.

In the fall of 1983, this Court began refusing to unconditionally grant the Secretary’s inordinate requests for extension of time. The Court in a number of cases gave the Secretary a limited extension of time, always adding that “no further extensions will be granted.” The Secretary has ignored these Orders by continuing to move for further extensions.

Confronted with the Secretary’s obstinacy, this Court fashioned a remedy, which will be called “interim benefits” herein, to accommodate the Secretary’s apparent inability to comply this Court’s Orders requiring that answers and memoranda in support of the Secretary’s decision be filed in this Court within some reasonable time frame. The Secretary now argues that this Court is without authority to order such a remedy. The Court does not agree.

At the outset, the Court feels constrained to point out that the “interim benefits” remedy it has fashioned for this case and similar eases is not the same as that awarded by other courts for relief from inordinate delays at the administrative level. See Day v. Schweiker, 685 F.2d 19 (CA 2 1982), cert. granted, 461 U.S. 904, 103 S.Ct. 1873, 76 L.Ed.2d 806 (1983); Blankenship v. Schweiker, Secretary, HHS, 722 F.2d 1282 (CA 6 1983).

The question posed in the foregoing cited cases is what remedy can be provided for the inordinate delays at the administrative level, not the judicial level. At the judicial level, unless and until Congress says otherwise, the courts are the only arbiters of what is or is not unreasonable delay and what should or should not be done about it. This is simply a matter of the inherent power of the court to control its own docket. Delays at the administrative level are matters between Congress and the executive, and the courts’ role is simply to apply the law. Delay at the judicial level, on the other hand, is a matter for the court to remedy itself.

The Federal Rules of Civil Procedure provide an orderly method of penalizing parties for their failure to prosecute or defend actions. If this were a case involving any party other than the Secretary, the Court could readily declare a default judgment. F.R.Civ.P. 55. Of course, social security appeals are brought against the Secretary, and this Court is limited in its ability to award a default judgment. F.R. Civ.P. 55(e).

The rationale for F.R.Civ.P. 55(e) is a lofty one and this Court in no way intends to undermine it. Tax funds are too scarce, especially in times of budget shortages, to be disbursed for payment of judgments that are not substantially justified on the evidence.

In the social security context, the Sixth Circuit Court of Appeals has announced a pertinent rule regarding default judgments against the government. Poe v. Mathews, 572 F.2d 137 (CA 6 1978). In Poe, the circuit court reversed the district court for awarding a default judgment against the government for the Secretary’s failure to answer and file an administrative transcript. The Sixth Circuit noted its sympathy for the district court, especially in light of its own mandate that the district courts in this circuit expedite review of social security eases (see Webb v. Richardson, 472 F.2d 529, 538 (CA 6 1972)), but went on to hold that a default judgment cannot be entered against the Secretary without the benefit of the transcript having been filed in the court. .

Other circuit courts confronted with the same problem have taken a similar view. See e.g., Alameda v. Secretary, HEW, 622 F.2d 1044, 1047-49 (CA 1 1980). In Alameda, the First Circuit announced that default can be entered against the Secretary even without the benefit of the Secretary’s memorandum. Id. at 1049. This view would not appear to be in conflict with Poe, supra, because the Sixth Circuit did not say that default judgment against the Secretary was precluded in all circumstances. See Peveler v. Schweiker, 557 F.Supp. 1048, 1050 (WD Ky.1983); Estes v. Harris, 512 F.Supp. 1106, 1109-11 (SD Oh.1981).

It is true that mandamus against the Secretary would probably lie in order to compel her to produce a transcript for the Court to consider. Cf. Poe, supra, at 138. Mandamus, however, is a severe remedy, a motion for which is seldom made, and the violation of which would only lead to a contempt citation for the Secretary or one of her employees. Moreover, as drastic as contempt may be, it still does not necessarily produce a transcript. Certainly it could not have in a case like Edward Flannery, Jr. v. Secretary, HHS, 583 F.Supp. 347, supra, in which the Secretary moved for repeated extensions of time and finally moved for a remand based upon the fact that the tape of the administrative proceedings were inaudible, in effect admitting no transcript existed.

In short, the Court is faced with the following dilemma: on the one hand, the Court must expedite its review of social security cases (see Webb, supra), and on the other, the Court must deal with the Secretary’s repeated and unjustified requests for extensions of time.

In response to this dilemma, the Court could continue to grant the Secretary’s repeated requests, ignoring Webb’s mandate, and allow the Secretary in effect to dictate, in her unbridled discretion, the speed at which social security cases proceed in this Court. Alternatively, the Court could mandamus the Secretary to produce administrative records on a day certain after a complaint is filed and declare the Secretary in default, entering default judgment, just as soon as a transcript and the plaintiff’s brief are filed.

None of the above responses, however, are satisfactory. This Court cannot ignore Webb, and in any event will not tolerate making the many deserving social security claimants that come before this Court wait years before they can receive benefits. In addition, the Court hesitates in issuing a writ of mandamus ordering the Secretary, on pain of contempt, to produce and file an administrative transcript in some reasonably timely fashion. If the administrative caseload is as backlogged as the Secretary would have this Court believe, the Court would undoubtedly have to exercise its contempt power on repeated occasions. The Court does not believe such an extraordinary power should be so lightly and frequently used.

Finally, while declaring a default judgment in every case in which the Secretary fails to file a timely memorandum might encourage the Secretary to speed up her preparation of a memorandum, the finality of a default judgment often reaches too far. If this Court defaulted the Secretary based solely on a claimant’s brief, some undeserving claimants may be awarded benefits. That award would be a final decision of this Court. While the court in Alameda recognized the importance of having the Secretary’s brief, it was content to allow a final default judgment be entered against the Secretary even though that judgment may not always be awarded to the most deserving claimants. Alameda, 622 F.2d at 1049.

This Court believes an interim benefits award to be more flexible than a default judgment, and therefore more desirable. Not only can interim benefits ultimately be recouped from those plaintiffs who cannot establish their entitlement, but the award also places the burden of expeditious disposition of the case squarely upon the Secretary. Since the Secretary’s admitted backlog of cases and administrative red tape are the sole causes for delays in social security cases, placing the burden of proceeding expeditiously on the Secretary is the natural solution.

If the Secretary’s delays are to control the speed at which social security cases proceed in this Court, the award of interim benefits—to be paid only so long as the Secretary fails to file a transcript or memorandum, whichever the case may be—will at least encourage the Secretary to proceed as expeditiously as possible. In addition, the interim benefits remedy will vindicate this Court’s authority to demand the Secretary’s cooperation.

The Secretary’s assertion that 42 U.S.C. § 405(i) precludes the ordering of interim benefits is misplaced. Cf. White v. Mathews, 559 F.2d 852, 860-61 (2d Cir.1977) (“absence of a specific congressional provision does not bar the federal courts’ exercise of its remedial power,” id. at 860 (emphasis added)). This Court must have the inherent power to fashion an equitable remedy that will protect the integrity of the judicial process. Indeed, since the interim benefits remedy fashioned by this Court is similar to the idea behind coercive civil contempt, the Supreme Court’s words in this regard are apposite:

“The power to punish contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgment, orders and writs of the courts, and consequently, to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.”

Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510, 22 L.Ed. 205 (1874) (emphasis added).

The Court has, and must have, the inherent power to make parties proceed in a reasonably expeditious fashion. At the same time, the Court has a duty to insure that deserving claimants do not suffer indefinitely while the Secretary drags her feet, whether intentionally or not, in responding to every pleading filed in this Court. As has often been said, “justice delayed is justice denied.” Never a truer word was spoken than in this context.

Accordingly, the Court being sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the Secretary’s motion for relief from judgment be and the same is DENIED.

      . What frequently happens is that the Secretary asks for several extensions and then moves for a remand because the tape or other record of the administrative proceedings is unusable or unavailable. This is what happened in LaBonne v. Heckler, 574 F.Supp. 1016 (D.Minn.1983).

      . The mandate in Webb is particularly memorable to the undersigned for the reason that he argued the case before the Sixth Circuit in 1972.

      . Whom would the Court hold in contempt should the transcript not be forthcoming: the Secretary herself or one of her employees?

      . Indeed, the Court implicitly recognized this when it said:
      "If the district court and we have been put in the predicament of flying on one wing [i.e., when the Secretary has not filed a brief in support of her decision], the flight need not be lengthy."

        Alameda, 622 F.2d at 1049.

      . Cf. Alameda, 622 F.2d at 1049 (where the court admitted that its default judgment approach does not vindicate the court's authority to command assistance from the Secretary with respect to filing a timely brief).