source: Caselaw Access Project

author: BATTISTI, Chief Judge.

license: Public Domain

text:
    Howard MORLEY, Plaintiff, v. The Honorable Harold BROWN, Secretary of Defense, et al., Defendants.
    No. C78-116.
    United States District Court, N.D. Ohio, E.D.
    April 5, 1985.

      Mary J. Paolano, Cleveland, Ohio, for plaintiff.
    Mark Kinot, Asst. U.S. Atty., Cleveland, Ohio, for defendants.
   MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

Plaintiff on August 27, 1982 filed a motion for attorneys fees and expenses. As of January 10, 1984, plaintiff sought the total amount of $10,798.68 for two attorneys in fees and expenses covering the period December 7, 1977 through January 8, 1984.

I.

CASE HISTORY

On February 2, 1978, plaintiff, an employee of the Defense Logistics Agency (hereinafter DLA), filed a complaint challenging a promotion decision which was made between April 1, 1975 and June 11, 1975. Plaintiff, a white male who was 59 years old in 1978, claimed that despite receiving a higher score from the promotion panel (based on his qualifications) he was denied the promotion; a black male, approximately ten years younger, received the promotion to the post of Chief, Office of Contract Compliance, Defense Supply Agency. Plaintiff claimed he was denied the promotion because of race and age discrimination in violation of 42 U.S.C. § 1981; 42 U.S.C. 2000e-16; 5 U.S.C. §§ 7151, 7154, and 5 C.F.R. 713 et seq. He also claimed the DLA violated procedures under the Federal Merit Promotion Program.

Before filing his action in federal court, plaintiff filed a formal grievance on July 18, 1975 with his commander at the Defense Contract Administrative Services Region (DCASR). On August 19, 1975, plaintiff rescinded his formal grievance. However, on that same date the DCASR rejected his grievance. On November 15, 1976, plaintiff was reassigned. On November 10, 1976, plaintiff appealed his 1975 non-promotion and reassignment to the Federal Appeals Board, Civil Service Commission. The Board denied his request on December 9, 1976. On November 18, 1976, plaintiff wrote a letter to the Director of the Defense Logistics Agency protesting his non-selection and reassignment. On February 3, 1977, the DLA rejected plaintiff’s grievance. On February 2, 1978, plaintiff filed the instant action in this Court.

On January 13, 1982, this Court granted the defendants’ motion to dismiss for lack of subject matter jurisdiction as it applied to plaintiff’s race and age discrimination claims but denied defendants’ motion to dismiss regarding alleged violations of the Federal Merit Promotion Program. The Court remanded the latter claim as a grievance to the DLA and reactivated the grievance procedure for plaintiff; the Court found that the agency could continue the investigation but that the Court lacked jurisdiction to pursue a de novo review of the matter. Opinion at 6.

On May 7, 1982, plaintiff renewed his DLA grievance and requested attorneys fees and expenses from DLA. On June 10, 1982, the DLA decided in plaintiff’s favor as to the grievance but denied the request for attorneys fees. The DLA found that plaintiff had been harmed by an “unjustified or unwarranted personnel action.” On June 29, 1982, the DLA Civilian Personnel Director notified plaintiff of the retroactive promotion and corrective pay actions in his case. On July 13, 1982, the promotion document was executed. On July 23, 1982, plaintiff received his first check from the Department of Defense.

On July 9, 1982, plaintiff submitted to the DLA a request for reconsideration of the DLA’s denial of attorneys fees. On August 5, 1982, DLA stated that it lacked authority to award attorney fees to plaintiff under the Equal Access to Justice Act.

On August 27, 1982, plaintiff filed the instant motion for attorney fees and costs totaling $6,878.41 for the period December 7,1977 through August 26,1982. On January 10, 1984, plaintiff submitted a revised affidavit listing the amount sought for December 7, 1977-August 26, 1982 as $7,234.66 and adding the amount of $3,564.02 for the period August 27, 1982-January 8, 1984.

II.

Although the traditional “American Rule” holds that a prevailing party ordinarily cannot collect attorneys fees, Alyeska Pipeline Service Co. v. Wilderness Soc’y., 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), Congress has enacted statutes to permit the award of such fees in federal courts. The Equal Access to Justice Act, P.L. 96-481 (effective October 1, 1981), which amends 28 U.S.C. § 2412, states in pertinent part:

(a) Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency and any official in the United States acting in his or her official capacity in any court having jurisdiction of such action.
(b) Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.
* * * * * *
(d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the Court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. (Emphasis added)

28 U.S.C. § 2412 (as amended Oct. 21, 1980, Pub.L. 96-481, Title II, § 204(a), 94 Stat. 2327.)

Thus, there are two bases for awarding fees against the United States; § 2412(d) is mandatory and § 2412(b) is discretionary. Keasler v. United States, 585 F.Supp. 825, 830 (E.D.Ark.1984); Dubose v. Pierce, 579 F.Supp. 937, 946 (D.D.C.1984). Hence, § 2412(d) makes the award of attorney fees obligatory (note “shall”) for cases pending or commenced on or after October 1, 1981 and before October 1, 1984 unless the government was substantially justified in its position or special circumstances exist. Defendant, however, alleges that the Equal Access to Justice Act [hereinafter EAJA] is inapplicable in the instant case because plaintiff failed to timely file his application for fees. The requirements for applicability of the EAJA will be considered in turn. First, the current action was pending on October 1, 1981. Although initiated in February 1978, the case was not resolved by the Court until January 1982 by the entry of a partial dismissal and remand opinion and order. Once final judgment is entered, the prevailing party has thirty days to file an application for attorney fees and costs. 28 U.S.C. § 2412(d)(1)(B). The Judgment Entry in this matter was filed on January 13, 1982. However, plaintiff did not file an application for fees and other expenses until August 27, 1982.

Plaintiff responds that the Court’s January 13, 1982 judgment entry was not a “final judgment.” Rather, it was a disposition of the age and sex discrimination claims but it did not conclude the litigation regarding the Federal Merit Promotion program and plaintiff’s right, if any, to the promotion and back pay. Plaintiff claims that the “final judgment has not been made [in this case]. The 30 days limitation set forth in 28 U.S.C. § 2412(d)(1)(B) has not begun to run.” Reply to Memorandum of Defendant Harold Brown Regarding Applicability of 28 U.S.C. § 2412(d) in this Action, at 10.

Defendant’s answer is that the DLA’s decision to promote plaintiff and award back pay on June 10, 1982 or July 13, 1982 cannot be used as the date from which the thirty day period begins to run since “the DLA’s determination was not a ‘final disposition in [an] adversary adjudication’.” Defendant’s Memorandum Regarding the Applicability of 28 U.S.C. § 2412(d) to the Instant Action, at 7.

This Court must therefore decide what constitutes a “final judgment” in an action like this where the Court’s earlier judgment calls for further administrative action. Because the EAJA is a waiver of sovereign immunity, the statutory time limit is a “jurisdictional prerequisite” to the award of attorney fees under the EAJA. Clifton v. Heckler, 755 F.2d 1138, 1145 (5th Cir.1985); Action on Smoking and Health v. C.A.B., 724 F.2d 211, 225 (D.C.Cir.1984).

The question of what, constitutes a timely filing and a “final judgment” under the EAJA has been litigated several times before. The clearest statement of the meaning of those terms is found in Taylor v. United States, 749 F.2d 171 (3d Cir.1984). In that case, a serviceman sought an injunction in district court to prevent the Navy from transferring him from American custody to Spanish authorities. The district court issued the injunction and ordered plaintiff released from custody on July 15, 1982. On June 21, 1983, the district court’s decision was affirmed in Taylor v. United States, 711 F.2d 1199 (3d Cir.1983). The Third Circuit denied rehearing en banc on July 21, 1983. On August 2, 1983 the district court received the Third Circuit’s affirmance. On August 25, 1983, plaintiff filed his application for fees under the EAJA. The district court denied Taylor fees on the grounds that his application was not timely filed within thirty days of the district court judgment, Taylor v. U.S., 580 F.Supp. 687 (E.D.Pa.1984).

In considering plaintiff’s appeal, the Third Circuit noted that the circuits have been split on what constitutes a “final judgment.” Essentially, the Seventh Circuit decision in McDonald v. Schweiker, 726 F.2d 311, 315 (7th Cir.1983) and the Ninth Circuit position in McQuiston v. Marsh, 707 F.2d 1082, 1085 (9th Cir.1983) form the poles of interpretation of this term.

In McDonald v. Schweiker, 551 F.Supp. 327 (N.D.Ind.1982), plaintiff filed an action seeking judicial review of the Secretary of Health and Human Services’ decision on her old age insurance benefits. The District Court granted plaintiff's motion for summary judgment on October 5, 1981. On April 22, 1982, defendant Health and Human Services notified plaintiff it would begin awarding her benefits. On April 20, 1982, plaintiff filed for attorney’s fees under the EAJA. Defendants in McDonald contended that plaintiff’s request was not timely made. Noting the legislative purpose of EAJA and that, a judgment could be ‘final’ in one legal context but ‘not final’ in another, the Court held:

The requirement in EAJA that an application for an award of fees be filed within thirty days of the final judgment means that an application must be filed within thirty days of the expiration of the time to appeal or within thirty days of the terminating action in the court of last resort. This still permits an application for fees upon entry of final orders at earlier stages of the litigation. The court may award fees at such stages or defer its ruling until the final judgment on the merits.

McDonald, 551 F.Supp. at 330.

The Court found the application timely and appropriately filed. The Seventh Circuit affirmed the district court’s reasoning as to the timeliness issue: “[W]e interpret the ... [term] ‘final judgment’ [to] mean the final decision of the appellate court.” McDonald, 726 F.2d at 314. The Seventh Circuit, however, reversed the district court’s award of fees, finding that the government’s position was substantially justified.

However, in McQuiston v. Marsh, 707 F.2d 1082 (9th Cir.1983), the Court rejected the holding of McDonald v. Schweiker, 551 F.Supp. 327, 329 (N.D.Ind.1982). Accord Massachusetts Union of Pub. Housing Tenants v. Pierce, 577 F.Supp. 1499, 1503 n. 4. (D.D.C.1984) In that case, plaintiff sought to enjoin the Army from awarding a contract. The Court granted the government’s motion to dismiss on January 14, 1982 and plaintiff moved for fees on April 12, 1982. The Court stated: “ ‘[F]inal judgment’ should be defined by its common usage in contexts such as 28 U.S.C. § 1291, Fed.R.App.P. 4(a), and Fed.R.Civ.P. 54. Therefore, a request for attorneys’ fees under [28 U.S.C. § 2412] subsection (d) is untimely if filed more than 30 days after the district court has entered judgment.” McQuiston, 707 F.2d at 1085.

However, the Third Circuit in Taylor found that “Congress has clarified the meaning of ‘final judgment’ for purposes of the EAJA, adopting the Seventh Circuit McDonald approach.” Taylor, 749 F.2d at 173.

Specifically, the Taylor court cited the Senate Judiciary Committee report on S. 919, S.Rep. No. 98-586, 98th Congress, 2d Sess. 16 (1984), which sought to reenact the EAJA. The Senate report stated that:

The issue was raised in the hearings as one in need of clarification.... This issue is important since the thirty-day deadline for filing the fee application is jurisdictional and cannot be waived.
The Committee believes the interpretation of the Court in McDonald v. Schweiker, 726 F.2d 311 (7th Cir.1983) regarding this issue is the correct one.
... [In that case] [t]he EAJA did not require that the application be submitted within 30 days of the rendering of the. district court decision.
The EAJA allows a prevailing party to file a fee petition within 30 days of the final disposition of a ease on the merits i.e. when a party’s right to appeal the order has lapsed.

Taylor, 749 F.2d at 174.

The Court noted that S. 919 had not been signed by the President and made law; however, the clarification of the meaning of “final judgment” could still be used to determine Congressional intent for cases still covered by the EAJA. Id.

In the absence of 6th Circuit guidance on this issue, this Court finds the Third Circuit’s analysis in Taylor pen suasive and adopts the interpretation of “final judgment” therein. Hence, for a EAJA fee petition to be timely, it must be filed no later than thirty days after the expiration of the time to appeal, or after the termination of the litigation by the court of last resort, or after a losing party asserts that no further appeal will be taken.

In applying this interpretation of “final judgment” to the facts of the instant case, the Court is guided by another Third Circuit case, Miller v. United States, 753 F.2d 270 (3d Cir.1985). Miller, an employee of the Army, was discharged from his job on the ground that he was overqualified. Miller appealed this discharge to the Merit System Protection Board (MSPB) which dismissed his appeal. Miller sought Third Circuit review of the MSPB’s dismissal. On September 21, 1983, the Third Circuit remanded Miller’s case to the MSPB for reconsideration on the merits. On November 21, 1983, Miller applied for fees under EAJA. On April 11, 1984, the MSPB ordered Miller reinstated. Miller amended his fee application and also appealed to the Court of Appeals for the Federal Circuit to get backpay and benefits. On October 17, 1984, the appeal was dismissed since the government did make a backpay and benefits award. Miller then amended his fees application. The government attacked Miller’s petition as untimely since it was filed more than thirty days after the Third Circuit’s order remanding the case to the MPSB. Miller contended his application was timely since it was filed prior to thirty days after time had expired for the government to appeal the Third Circuit remand decision. The Court, using the Taylor rule, found the Miller application for fees timely.

Another case is valuable in applying the timeliness rule. In Haney v. Heckler, No. 82C-7714, slip op. at 14 (N.D.Ill. Sept. 10, 1984) (Getzendanner, J.), plaintiff sought review in district court under 42 U.S.C. § 405(g) for termination of his Social Security disability benefits. On January 26, 1984, the court remanded his case to the Secretary of Health and Human Services for reconsideration. Plaintiff applied for attorneys fees under EAJA on March 13, 1984. Id. at 4. In Haney, the Court adopted the rule of McDonald v. Schweiker (the same case endorsed by Taylor) and found “final judgment” to be the time at which the government’s time to appeal expired. Under Federal Rule of Appellate Procedure 4(a)(1), the United States has 60 days from the date of entry of the district court’s judgment to file an appeal. The Haney court went on to state “[wjhere no appeal is filed, the completion of appellate proceedings is simply the expiration of the time in which to appeal.” Id. at 4. Hence, the “final judgment” occurs 60 days after the district court decision.

In the instant case then, “final judgment” occurred 60 days after the remand decision; since the remand decision was entered on January 13, 1982, final judgment occurred on March 12, 1982. Plaintiff then had another 30 days under § 2412(d)(1)(B) to apply for fees, pushing the application deadline to April 11, 1982. However, plaintiff did not file his application under § 2412(d)(1)(B) with this Court until August 27, 1982. Not only did plaintiff not file an application until more than 4 months had passed from the April 12, 1982 deadline but the docket reveals no documents were filed with this Court by either party between the entry of the Court’s order and the August 27, 1982 fee application. Hence, under the interpretation of “final judgment” in § 2412(d)(1)(B), plaintiff’s application was untimely and should be denied.

It is indeed true that plaintiff filed an application for fees with DLA on May 7, 1982 and then resubmitted the fee request under EAJA to the DLA on July 9, 1982. The May 7, 1982 request was made pursuant to 5 CFR § 550.806.

However, in plaintiff’s July 9, 1982 letter to defendant DLA renewing his request for payment of attorney fees, there is no reference made to the EAJA. Plaintiff’s counsel’s letter merely states:

As to the denial of the request for payment of attorney fees, we except. This denial is in error. Howard Morley is entitled to attorney fees and costs incurred in prosecuting [his case in federal court, which resulted in the administrative review.
The request for attorney fees and expenses is therefore resubmitted. We are requesting that the agency reconsider the request for attorney fees and costs.

The only reference to the EAJA appears in the affidavits which itemize the services rendered, time expended and cost. On page C2, the service description for July 7, 1982 includes “research re: attorney fees, Equal Access and Justice Act, other statutory sections; regulations.” There is no reference to the EAJA in the DLA’s August 5, 1982 letter to plaintiff’s counsel denying the fee request. It merely states “This agency has no authority to pay either litigation expenses or expenses in connection with the administrative proceeding.”

Plaintiff describes the July 9, 1982 request as “comporting with the requirements of the Equal Access to Justice Act, 5 U.S.C. 504 et seq.” Motion for Attorney Fees and Expenses, Aug. 27, 1982, at 2. Nowhere, however, in that document does plaintiff state the reconsideration request is made pursuant to EAJA. Furthermore, the Court is puzzled why counsel would even submit a fees request based on EAJA to the DLA. It is clear from the EAJA statute that fee applications are to be filed with the Court, not with the administrative agency who is the defendant. The statute repeatedly talks about “the court awarding” fees. Hence, the only institution with both the authority to enter judgment and enforce such a fee award is the Court. It is therefore incredible that plaintiff would file a fee request under EAJA with the DLA and hope to prevail. Therefore, the only document which can truly be considered a fee application under the EAJA was the August 27, 1982 Motion for Attorney Fees filed with the Court.

However, this Court believes it would undermine the intent and spirit of the EAJA were plaintiff required to file for attorney fees prior to the resolution of the administrative proceeding ordered by the Court. Indeed, as in Miller v. United States, 753 F.2d 270, 273 (3d Cir.1985), if plaintiff filed his fee request on April 12, 1982, he would not have been a prevailing party. “When a court vacates an administrative decision and remands the matter for reconsideration, the successful party generally should not recover attorney’s fees at that particular time since the claimant’s rights and liabilities have not yet been determined.” Id. at 273-74 (quoting Brown v. Secretary of Health and Human Services, 747 F.2d 878, 883 (3d Cir.1984)). The Miller Court went on at great length in footnote 1 to recognize that problems would arise for litigants who receive Court orders remanding their case. See Id. at 274 n. 1. This Court finds the solution of the Third Circuit appropriate and consistent with principles of federal jurisdiction, namely that the “final judgment” was the decision of the appropriate administrative agency following the remand order since the Court “retained jurisdiction over the case to ensure that the mandate was carried out.” Id. at n. 1. While other problems may arise with this interpretation as it applies to the acts, see Guthrie v. Schweiker, 718 F.2d 104, 106 (4th Cir.1983), the date of the administrative agency’s decision satisfies the need for a clear date from which to count the time period. See Monark Boat Co. v. NLRB, 708 F.2d 1322 (8th Cir.1983).

The date of the DLA’s decision awarding plaintiff back pay and promoting him as the final judgment is June 10, 1982. Hence, plaintiff had thirty days from that date to file an application for fees with this Court. He did not. In fact, plaintiff waited nearly thirty days to file a request for reconsideration on July 9, 1982.

The Court cannot consider the instant motion for fees timely filed without straining not only principles of statutory interpretation but reasonableness. It is true that the Court could start the thirty day period running from August 5, 1982, the date when the DLA denied plaintiff’s request for reconsideration. But to do so would legitimate what has already been determined to be an inappropriate motion: there was no reason for plaintiff to believe that the DLA had jurisdiction to award fees under EAJA and any application should have been filed in district court. Clearly plaintiff and his counsel have engaged in lengthy and complicated proceedings; to contest a decision made in 1975, they waged approximately a 7-year battle. It is to the credit of not only these plaintiffs, whatever the outcome, but all persons in similar situations who have the tenacity and determination to pursue their claims through the courts and the labyrinth of the. modern administrative state. Despite the confusion and complexity of the statutes and regulations involved here, however, the Court cannot permit plaintiff to decide when it is appropriate to file a fee application under EAJA given the time bar of § 2412(d)(1)(B). It would, of course, been a different matter if counsel had made a preliminary application for fees with the Court or sought extensions of time for its application pending the administrative determinate of its fee request. J.H. Miles & Co. v. U.S., 3 Cl.Ct. 10 (1983). (motion for enlargement of time within 30-day period of filing for award of attorney fees does not toll running of limitation period). However, the docket is bare of any such filing. Therefore, this Court finds plaintiff’s motion for fees under § 2412(d) untimely filed and dismisses it for lack of jurisdiction.

III.

Although the Court has found plaintiff’s request under § 2412(d) untimely (and consequently the Court is without jurisdiction), the issue remains whether plaintiffs are entitled to fees and expenses under § 2412(b), the second, discretionary basis for fees under the EAJA.

There is no time limit for fee applications under § 2412(b). “In the absence of a specific time restriction, a request is timely if filed within a reasonable period after entry of judgment and if it does not unfairly surprise or prejudice the affected party.” Massachusetts Union of Pub. Housing Tenants v. Pierce, 577 F.Supp. 1499, 1501 (D.D.C.1984); McQuiston v. Marsh, 707 F.2d 1082, 1084 (citing White v. New Hampshire, 455 U.S. 445, 454, 102 S.Ct. 1162, 1167, 71 L.Ed.2d 325 (1982)); Gordon v. Heimann, 715 F.2d 531, 539 (11th Cir.1983). In Massachusetts Union, the Court found a time period of 86 days after the entry of judgment as reasonable and found the § 2412(b) application timely. Mass. Union, 577 F.Supp. at 1501. In the instant case, nearly 240 days passed before a motion for fees was made. However, the Court need not determine whether this time was reasonable. Finding that defendants were aware that plaintiff was seeking fees based on the requests of May 7, 1982 and July 9, 1982, there is no chance that defendants were surprised or prejudiced. Hence, this Court regards plaintiff’s application for § 2412(b) fees as timely-

The common law rule, incorporated in § 2412(b) to apply to the government, is that attorneys fees are recoverable if the non-prevailing party acted in “bad faith” or the prevailing party’s success created a “common benefit” or “common fund” in which others share or the non-preventing party willfully disobeyed a court order. Alyeska Pipeline, 421 U.S. at 247, 257-59, 95 S.Ct. at 1616, 1621-23. There is no statute prohibiting an award of fees in the instant case. Plaintiff does make a claim for attorney fees under § 2412(b) claiming “In Morley’s case, the conduct of the agency on all levels was vexatious, obstructive, insulting, and unjust and constitutes bad faith on the part of the agency.” Motion for Attorney Fees and Expenses, Aug. 27, 1982, at 10. Recovery of attorney fees is permitted when a party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Alyeska, 421 U.S. at 258-9, 95 S.Ct. at 1622-3. Plaintiff’s only theory for recovery is bad faith under § 2412(b); there is no basis for a common fund or benefit recovery nor is there any allegation that defendants disobeyed a court order. “Bad faith” has also been identified as conduct which constitutes “insult added to injury.” Fitzgerald v. Hampton, 545 F.Supp. 53 (D.D.C.1982). Bad faith can be found in conduct either prior or during litigation. Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Mass. Union, 577 F.Supp. at 1503. Because an award of attorneys fees is extraordinary and punitive, the standards for bad faith are “stringent”. Mass. Union, 577 F.Supp. at 1504.

First, plaintiff bases his claim of “bad faith” on the fact that the DLA directly violated certain provisions of the Federal Merit Protection Program and DSA regulations. He also claims bad faith may be inferred from “DLA’s [repeated] [refusals] on all levels to process Morley’s grievance of his non-selection”, the abolition of his position and reassignment; and threats from superiors if he pursued his grievance. Plaintiff’s Motion for Fees, at 9-10.

It would not comport with the fundamental notion of attorney fees as a sanction to punish defendant for the non-selection alone. Indeed, it was the very purpose of the administrative proceeding ordered by this Court to determine if agency procedures and regulations had been violated and a mistake made. In this case, in his June 10, 1982 decision and letter to plaintiff, DLA Colonel Melvin Brown found that the promotion decision which plaintiff raised in his grievance “was not accomplished in accordance with DCASR Cleveland’s Merit Promotion Program. Further, I have determined that, as a result of [your non-selection], you were affected by an unjustified or unwarranted personnel action which resulted in the denial of pay otherwise due you.” Plaintiff’s receipt of back pay and promotion constitute adequate vindication of his claim that agency procedures were violated. A violation of an agency’s procedures is not a prima facie act of bad faith.

Considering the remainder of plaintiff’s grounds, the Court concludes that none of defendants actions rise to the level of bad faith. Plaintiff’s claims of harassment from a superior and reassignment and demotion have not been conclusively established. Indeed, there is a dispute, judging from various filings in this case, whether these events occurred and whether the abolition of his position was unique in the country so as to create an inference that plaintiff was the object of an effort to intimidate and injure him. No opinion can be expressed on whether age or racial discrimination was a motivating factor. The Court dismissed these claims because plaintiff failed to raise them in his grievance at any administrative level. However, were these discriminatory practices found there may have been grounds for a finding of bad faith. As it stands, there is no basis to find bad faith on defendants’ part.

Plaintiff cites only one case in his Motion for Attorney Fees as supporting a finding of bad faith in conduct occurring before litigation commenced: Fitzgerald v. Hampton, 545 F.Supp. 53 (D.D.C.1982). In that case, the court stated “prelitigation conduct provides the basis for an award of attorney’s fees when a party, confronted with a clear statutory or judicially imposed duty towards another, is so recalcitrant in performing that duty that the injured party is forced to undertake otherwise unnecessary litigation to vindicate plain legal rights.” Id. at 57. In Fitzgerald, an Air Force employee was dismissed following his testimony before Congress on costs for the C-5A transport plane. Fitzgerald processed his claims through the Civil Service Commission and finally sought judicial review of the decision. The CSC ordered Fitzgerald restored and promoted. The Court found the CSC’s failure to find that plaintiff had suffered a reduction in rank arbitrary and capricious and ordered Fitzgerald reinstated to his prior position. Id. at 54. In his request for fees under § 2412(b), plaintiff alleged that the Air Force had “flouted” the court and CSC’s order to restore Fitzgerald to an equivalent position. The Court found that the Air Force was under a clear duty from the CSC order to restore plaintiff and that the Air Force failed to do so. The Court detailed at length the Air Force’s use of “unconventional tactics,” id. at 59, and “extraordinary steps,” id. at 58, including memos and threats, to prevent the reinstatement. Hence, plaintiff “was compelled to resort to litigation, first at the administrative level and then in this Court, in order to vindicate his legal rights.” Id. at 60.

This Court agrees with defendant in finding Fitzgerald distinguishable from the instant case. There is no standing administrative order here, as in Fitzgerald, which created an obvious statutory or judicial duty for the DLA. Secondly, there is no allegation that the DLA flouted this Court’s order of January 13, 1982 to reinstate plaintiff’s grievance. Plaintiff resubmitted his grievance on May 7, 1982 and by June 10, 1982, the DLA rendered a favorable decision. Certainly, there was no undue delay in processing this grievance. By July 13, 1982, plaintiff’s promotion was executed and by July 23, 1982 plaintiff received his first payment. Hence, there is no evidence that once the appropriate agency order issued, defendants failed to discharge their promotion and back pay obligations.

Thus, this Court finds no basis for finding that defendants acted in bad faith. Accordingly, plaintiff’s application for fees under section 2412(b) is denied.

IV.

Section 2412(d) grants courts powers to award only those fees and expenses incurred by a prevailing party during “actions in court.” Miller v. United States, 753 F.2d 270, 272 (1985). Section 2412 allows recovery for fees at both trial and appellate levels. Keasler, 585 F.Supp. at 830, n. 2. However, § 2412(d)(3) states that a court reviewing an adversary adjudication shall include in its award fees for work done before the agency to the same extent [the agency is] authorized to award fees under 5 U.S.C. § 504(a). Id. at 275. However, this Court has already found that it is without jurisdiction to consider the § 2412(d) fees request based on the untimeliness of the application. Based on this ruling and the denial of plaintiff's § 2412(b) claim, plaintiff will not receive fees for work done at the trial court level nor recover fees for work done before the DLA under § 2412(d).

Plaintiff, nonetheless, claims that he was wrongfully denied attorney fees by the DLA under 5 U.S.C. § 504. 5 U.S.C. § 504 states in pertinent part:

Any agency that conducts an adversary adjudication shall award, to a prevailing party, other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency as a party to the proceeding was substantially justified or that special circumstances make an award unjust.

Under 5 U.S.C. § 504(c)(2), a party dissatisfied with the fee determination made under subsection (a) may petition for leave to appeal to the court retaining jurisdiction to review the merits of the underlying decision of the agency adversary adjudication. Each agency is to establish uniform rules for agency determinations of fee requests. 5 U.S.C. § 504(c)(1). Since the Court is reviewing only the fee determination here and not the underlying decision, it is bound by the restrictions of 5 U.S.C. § 504(c)(2). In other words, the Court cannot award fees but only determine if there was an abuse of discretion.

It appears that the DLA in processing applications for attorney fees follows the procedures laid out in 5 C.F.R. § 550. 5 C.F.R. § 550.806(a) permits recovery of attorney fees for an “unjustified or unwarranted personal action that resulted in the withdrawal, reduction, or denial of all or part of the pay, allowances, and differentiates otherwise due to the employee.” The section goes on to say fees shall be awarded to an employee affected by an unjustified or unwarranted personnel action if it is the interest of justice, as judged by the standards of the Merit Systems Protection Board, and a specific finding that the payment is in the interest of justice is made by the agency. 5 C.F.R. § 550.806(c)(1)-(c)(2).

In the instant case, the DLA did not reach the issue of “the interest of justice.” Instead, it found that since 5 C.F.R. § 550.-806(h) states “This section does not apply to any administrative proceeding that was pending on January 11, 1979,” and plaintiffs action was initiated before that date, the fee request should be denied.

Plaintiffs argue that “since the DLA ... refused to process Howard Morley’s grievance, under the law of this case, no administrative proceeding was pending on January 11, 1979, and not until May, 1982, when Howard Morley was able to file his grievance and the Agency was compelled to process it.” Plaintiffs Brief in Support of Motion for Attorney Fees, June 10, 1983, at 16. Defendants respond by finding the effective date as July 18, 1975 when plaintiff submitted his grievance to the DLA. Defendant notes that the 1975-77 administrative proceedings are the basis for the cause of action. Memorandum Contra Motion for Attorney Fees and Expenses, at 3.

In its June 10, 1982 decision denying fees, the DLA justified its action on the grounds that 5 CFR 550.86 does not retroactively apply to any administrative proceeding that was pending on January 11, 1979. The DLA interpreted “pending on” to mean “initiated before”; since plaintiffs grievance was submitted on July 18, 1975, DLA concluded that 5 CFR 550.86 did not apply. See Defendant’s Reply to Plaintiff’s Brief in Support of Motion for attorney Fees and Expenses Sept. 28, 1982, at 2-4. Plaintiff contends that the administrative proceeding was not pending until May 7, 1982, after the Court had ordered the remand of plaintiff’s case to the DLA. Motion for Attorney Fees and Expenses, August 27, 1982, at 4-5. The Court must therefore address the meaning of “pending” under 5 C.F.R. § 550.806(h) to determine whether the DLA abused its discretion in denying plaintiff fees incurred in his administrative proceedings.

As Judge Marshall noted in Berman v. Schweiker, 531 F.Supp. 1149 (N.D.Ill.1982), “there is little legislative history or case law on the meaning of the word ‘pending.’ ” Berman, 531 F.Supp. at 1151. The generally accepted meaning is that a case is “pending” so long as the losing party’s right to appeal has not yet been exhausted or expired. Dubose v. Pierce, 579 F.Supp. 937, 947 (D.D.C.1984).

The general rule regarding the impact of intervening statutes on pending cases is that a court is to apply the law in effect at the time it renders its decision unless to do so would result in “manifest injustice” or there is statutory direction or legislative history to the contrary. Nibali v. United States, 634 F.2d 494, 495, 225 Ct.Cl. 8 (1980). However, here the Court has the provisions of the Code of Federal Regulations.

Plaintiff does not challenge defendant’s authority to promulgate 5 CRF § 550.-806(g) nor the validity of the rule under 5 U.S.C. § 5596(b)(1)(A)(ii), which authorizes reasonable attorney fees for back pay awards due to unjustified personnel actions. 5 U.S.C. § 5596 refers to standards established in 5 U.S.C. § 7701(g).

The seminal ease interpreting the word “pending” as it applies to 5 U.S.C. § 7701(g) is Skinner v. EEOC, 551 F.Supp. 333 (W.D.Mo.1982). In that case, plaintiff sought attorney fees for work done before the Equal Employment Opportunity Commission in pursuing her sex discrimination claim. Plaintiff sought fees on two separate grounds: (1) the provisions of the Civil Service Reform Act of 1978, 5 U.S.C. § 7701(g) and (2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). The Court denied plaintiff fees on both grounds. Specifically with regard to the § 7701(g) claim, the Court stated that “plaintiff [could not] take advantage of that section because her proceedings were instituted prior to the effective date of the Act.” Id. at 336. To support its holding, the Court cited the Merit Systems Protection Board’s interpretation of the rules promulgated under the Civil Service Reform Act:

(b) Administrative proceedings and appeals therefrom.
No provision of the Civil Service Reform Act shall be applied by the Board in such a way as to affect any administrative proceeding pending at the effective date of such provision. “Pending” is considered to encompass existing agency proceedings, and appeals before the Board or its predecessor agencies, that were subject to judicial review or under judicial review on January 11, 1979, the date on which the Act became effective. An agency proceeding is considered to exist once the employee has received notice of the proposed action. [5 C.F.R. § 1201.191(b) (1982)]

Id.

The Court cited several cases, including Nibali, which interpreted the “savings” provision of the Civil Service Reform Act to be inapplicable to any proceeding subject to judicial review on January 11, 1979. In Skinner, the Court held that since plaintiff Skinner received notice of her termination on November 30, 1978 (before January 11, 1979), her claim was subject to judicial review and therefore “pending” before the effective date of the CSRA.

In the instant case, it is clear that plaintiff’s appeal from the DLA’s administrative actions between 1975 and 1978 was subject to judicial review on January 11, 1979; plaintiff filed the complaint on February 2, 1978. Since plaintiff’s case was indeed “pending” on January 11, 1979, the DLA did not abuse its discretion in denying plaintiff fees; the DLA correctly (according to the MSPB’s own interpretation) followed the provisions of 5 U.S.C. § 5596. Therefore, plaintiff is not entitled to attorney fees for work done before the DLA.

Y.

It is not necessary for the Court to consider plaintiffs entitlement to fees under the Civil Rights Attorney Fees Award Act of 1916, 42 U.S.C. § 1988. Plaintiff is not the “prevailing party” with respect to the race and age discrimination claims. This Court dismissed plaintiffs age and sex discrimination claims in its January 13, 1982 order because plaintiff had failed to exhaust his administrative remedies. Furthermore, following the remand of his case for further administrative proceedings, plaintiff failed to reassert his discrimination claims to either the DLA or the EEOC.

Plaintiff, however, contends that despite not receiving a judicial or administrative judgment in his favor on the age and sex discrimination claims, plaintiff can be found to have “prevailed” because of the nexus between his claims and the relief he received. Plaintiff relies on Johnston v. Jago, 691 F.2d 283 (6th Cir.1982) and other fees cases where the litigation ended in settlement. In order to determine who was the “prevailing party,” the various appeals courts formulated tests to determine if “[plaintiff’s] lawsuit was causally related to securing the relief obtained.” Id. at 286.

In the instant case, the absence of any record on the relationship between plaintiff’s age and sex discrimination claims and his eventual back pay and promotion does not permit any inference that they are linked. Plaintiff repeatedly asserts that racial discrimination was the primary factor in the DLA’s finding of an “unjustified or unwarranted personnel action.” Brief in Support of Motion for Attorney Fees, at 22. However, mere allegations by plaintiff that there was a relation do not satisfy this Court. Since the DLA officer was only examining whether DLA procedures were violated in denying plaintiff his promotion, the motivations for the non-selection and specific violations found are subject to speculation. In any case, the lack of an adequate record leads this court to conclude that plaintiff was not a “prevailing party” under 42 U.S.C. 1988 with respect to the age and sex discrimination claims. Since a party is not entitled to fees for time spent litigating claims upon which it did not prevail, Copeland v. Marshall, 641 F.2d 880, 891-92. (D.C.Cir.1980) the plaintiff may not recover these fees.

VI.

Plaintiff is entitled to recover costs incurred in litigation under 28 U.S.C. § 2412(a) and Federal Rule of Civil Procedure 54(d). Plaintiff is the prevailing party in this action. Plaintiff may recover those costs enumerated in 28 U.S.C. § 1920.

The defendants have not contested plaintiff’s entitlement to costs nor overcome their burden of overcoming the presumption that plaintiff is entitled to these costs. See Popeil Bros. Inc. v. Schick Electric Co., 516 F.2d 772, 775 (7th Cir.1975). Plaintiff is entitled to all the costs permitted under 28 U.S.C. § 1920 and the law interpreting that section.

Plaintiff will have thirty days to submit a list itemizing those costs incurred in this action and allowed under 28 U.S.C. § 1920. Plaintiff will also obtain a bill of costs from the Clerk of Courts and attach it to his list.

VII.

The Supreme Court has stated that “request[s] for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). This advice has not been followed in the instant case. More unfortunate than the number of filings concerning fees and extensions sought by the parties since judgment is the quality of the filings. The briefing in this matter while lengthy has often been little more than photocopied excerpts of cases taken directly from reporters. Cases cited have often not been directly to the point or very useful in resolving this matter. Simply put, the court has had to struggle to find the statutory, administrative and ease law citations necessary to resolve this matter. Despite the absence of counsel’s efforts to effectively educate the Court, today’s opinion represents the Court’s attempt to be both correct on the law and fair to the parties.

For the reasons stated above, plaintiffs motion for attorney fees and expenses is denied. Plaintiff is entitled to costs and shall submit the list of costs for the Court’s approval within thirty days.

IT IS SO ORDERED.

      . Plaintiff claimed that the promotion panel did not consider his outstanding awards (which they were required to do) in calculating his score. Complaint of February 2, 1978, at 2 (item 14).

      . Section 204(c) of P.L. 96-481 repealed subsection (d) of § 2412, effective October 1, 1984. However, the § 2412(d) continued to apply "through final disposition of any action commenced before the date of repeal."

      . 28 U.S.C. § 2412(d)(1)(B) states:
      A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under thi? subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses are computed. The party shall 'also allege that the position of the United States was not substantially justified.

      . It is not clear which date defendants are referring to. However, since the defendants state "plaintiff submitted to the DLA a [fee application pursuant to 5 U.S.C. 504] on the 29th day after the DLA’s favorable determination”, defendant apparently is referring to the June 10, 1982 back pay authorization decision.

      . Legislative history on the EAJA can be found at H.R.Rep. No. 1434, 96th Cong. 2d Sess. 26 (1980), reprinted in 1980 U.S.Code Cong. & Ad. News 4953, 5003, 5015 and H.R.Rep. No. 1418, 96th Cong. 2d Sess. 18 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4997.

      . F.R.App.P. 4 reads in pertinent part:
      (a) Appeals in civil cases
      (1) In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry....
      (2) Except as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof.

      . The Court does not consider whether the date the opinion and order was filed or the date that the judgment entry was docketed should be used as the starting date for the running of the 30-day time period. In Berman v. Schweiker, 531 F.Supp. 1149, 1152 (N.D.Ill.1982), the latter date was chosen. In the instant case, the Court uses the date that judgment was entered, January 13, 1982, which was also the date on which the opinion was filed.

      . 5 U.S.C. § 504(c)(2) states:
      A party dissatisfied with the fee determination made under subsection (a) may petition for leave to appeal to the court of the United States having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication. If the court denies the petition for leave to appeal, no appeal may be taken from the denial. If the court grants the petition, it may modify the determination only if it finds that the failure to make an award, or the calculation of the amount of the award, was an abuse of discretion.

      . 5 U.S.C. § 5596(b)(1) states:
      An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee—
      (A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect—
      (ii) reasonable attorney fees related to the personnel action which, with respect to any decision relating to an unfair labor practice or a grievance processes under a procedure negotiated in accordance with chapter 71 of this title, or under chapter 11 of title I of the Foreign Service Act of 1980, shall be awarded in accordance with standards established under section 7701(g) of this title.
      5 U.S.C. § 7701(g) states:
      Except as provided in paragraph (2) of the subsection, the Board, or an administrative law judge or other employee of the Board designated to hear a case, may require payment by the agency involved of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party and the Board, administrative law judge, or other employee (as the case may be) determines that payment by the agency is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency’s action was clearly without merit.

      . Because the Court has found that 5 U.S.C. § 5596's attorney fees provisions are not applicable to plaintiff, it does not reach the issue of whether the DLA decision was an "adversary adjudication." However, the absence of counsel representing the government at the proceedings following the remand suggests that these were not adversary adjudications.


author: WILLIAM C. CONNER, District Judge.

text:
    In the Matter of the Arbitration Between William COLAVITO, as President of Shopmen’s Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Petitioner, and HOCKMEYER EQUIPMENT CORPORATION, Respondent.
    No. 83 Civ. 7375(WCC).
    United States District Court, S.D. New York.
    April 8, 1985.

      Sipser, Weinstock, Harper, Dorn & Leibowitz, New York City, for petitioner; Vicki Erenstein, of counsel.
    Giblin & Giblin, Hackensack, N.J. for respondent; Paul J. Giblin, Jr., David A. Biederman, of counsel.
   OPINION AND ORDER

WILLIAM C. CONNER, District Judge.

Petitioner William Colavito (“Colavito”), as President of Shopmen’s Local 455, International Association of Bridge, Structural and Ornamental Workers, AFL-CIO (“the Union”), commenced this action pursuant to the United States Arbitration Act, 9 U.S.C. § 9 (“the Arbitration Act”), and the Labor Management Relations Act, 29 U.S.C. § 185(a). He seeks herein an order confirming three New York arbitral awards rendered against respondent Hockmeyer Equipment Corporation (“Hockmeyer”) in connection with alleged violations of a collective bargaining agreement between the Union and Hockmeyer. He also seeks attorney’s fees. Respondent has moved to dismiss the petition to confirm on grounds that the Court lacks personal jurisdiction and that petitioner failed to comply with the relevant statute of limitations. In the alternative, Hockmeyer seeks vacatur of two of the three awards under 9 U.S.C. § 10, citing the “evident partiality” of arbitrator Nathan Cohen. For the reasons below, Colavito’s petition to confirm is granted in all respects and Hockmeyer’s cross-petition is denied.

Background

Colavito’s petition, which was filed on October 7, 1983, involves three areas of dispute. The first concerns Hockmeyer’s assignment of non-bargaining-unit employees to perform work previously performed by a foreman named Parilla, following Par-ilia’s involuntary reassignment to another position. The dispute was submitted to arbitration in accordance with the parties’ collective bargaining agreement, and hearings were subsequently held before George Moskowitz, an arbitrator appointed by the American Arbitration Association. On October 12, 1982, Moskowitz rendered an award in which he concluded that Hockmeyer had violated the collective bargaining agreement. He ordered respondent to reinstate Parilla to his position as a foreman, and to reimburse another employee for losses he incurred in a layoff resulting from Parilla’s wrongful re-assignment. According to Colavito, Hockmeyer has taken no steps to comply with the provisions of the award. Petition to Confirm at ¶¶1 5-11.

With reference to the second dispute, the Union asserts that Hockmeyer violated the collective bargaining agreement by giving bargaining-unit work to a non-unit individual. It contends, moreover, that the matter was duly presented to arbitrator Nathan Cohen, and that Cohen rendered an award in favor of the Union on September 10, 1983. The award required that Hockmeyer assign certain work only to employees in the bargaining unit, and that it remedy the violation by making certain contributions to employee benefit trust funds. According to Colavito, respondent has failed to comply with these terms. Pet. to Confirm at ¶¶ 13-22.

Finally, Colavito asserts that Hockmeyer has failed to comply with the terms of another award rendered in favor of the Union by arbitrator Cohen, this one in connection with a dispute over respondent’s failure to provide a covered employee with vacation benefits. The award, dated August 29, 1983, directed Hockmeyer to reimburse the employee either in wages or paid time off. Pet. to Confirm at ¶¶ 24-29.

Respondent filed an answer and a counter-petition on November 7, 1983, asserting that its contacts with New York are insufficient to confer personal jurisdiction under New York’s Civil Practice Law and Rules (“C.P.L.R.”), and that the petition is barred by New Jersey’s three-month statute of limitations. For reasons not at all apparent to the Court, Hockmeyer also asserts that Colavito’s action fails to state a claim upon which relief can be granted. According to Hockmeyer, these grounds mandate dismissal of Colavito’s petition.

With respect to the two awards rendered by Nathan Cohen, Hockmeyer asserts that they should be vacated for the additional reason that they were “procured by evident partiality of the arbitrator.” Counter-Pet. at p. 5, 1112. Respondent contends specifically that the awards were improper because Cohen was “compensated by the same funds to which the respondent has been directed to contribute.” Id.

DISCUSSION

Respondent’s attempt to avoid compliance with these arbitration awards on personal jurisdiction and statute of limitations grounds cannot succeed. For the reasons below, Section 9 of the Arbitration Act confers upon this Court both subject matter jurisdiction over the controversy and personal jurisdiction over Hockmeyer. It also provides a one-year limitation period.

Jurisdiction

Section 9 of the Arbitration Act provides that if the parties have agreed that “a judgment of the court shall be entered upon the award” and have specified the court, an application to confirm the award may be made in that court. Section 9 goes on to state that when no court is specified in the parties’ agreement, an application to confirm may be made “to the United States court in and for the district within which such award was made.” The Court of Appeals for the Second Circuit has held that these provisions empower the federal district courts to confirm and enter judgments upon arbitration awards. Reed & Martin, Inc. v. Westinghouse Electric Corp., 439 F.2d 1268, 1276 (2d Cir.1971). see also Kallen v. District 1199, 574 F.2d 723, 726 n. 6 (2d Cir.1978).

The Arbitration Act then provides: Notice of the application shall be served upon the adverse party, and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding.... If the adverse party shall be a non-resident, the notice of the application shall be served by the marshal of any district within which the adverse party may be found in like manner as other process of the court.

9 U.S.C. § 9. Thus, Congress has manifested its intention to permit a federal court sitting in the district where the arbitration award was rendered to exert personal jurisdiction over the party opposing confirmation, wherever that party may be found.

Respondent’s argument that personal jurisdiction must be invoked under the long-arm provisions of the C.P.L.R. expressly presupposes that diversity is the basis of this Court’s subject matter jurisdiction. See Resp.Mem. at 6. However, as noted above, subject matter jurisdiction derives from § 9 of the Arbitration Act, and where the federal statute itself provides for the exercise of personal jurisdiction by means of extra-territorial service of process, reference to the C.P.L.R. is unnecessary. Moreover, Hockmeyer’s assertion that it lacks constitutionally required “minimum contacts” with the State of New York is unavailing. As the Second Circuit recognized in Mariash v. Morrill, 496 F.2d 1138 (2d Cir.1974), it is not the State of New York but the United States which would exercise jurisdiction over respondent, and where, as here, respondent resides within the United States, “the ‘minimal contacts’ required to justify the federal government’s exercise of power ... are present.” Id. at 1143.

In light of the authorities cited above, the Court perceives only one ground upon which Hockmeyer could possibly challenge personal jurisdiction: the absence of any provision in the parties’ collective bargaining agreement “that a judgment of the court shall be entered upon the award.” 9 U.S.C. § 9. The agreement here provides only that “[t]he Arbitrator’s decision shall be final and binding upon the employees involved and upon the parties to this Agreement.” Agreement, Ex. B to Resp. Mem. at § 10. Thus, conceivably respondent could argue that § 9 is inapplicable by its own terms. Respondent has not, in fact, articulated this argument, and the parties have not addressed its merits. Nonetheless, having reviewed the opinion of the Second Circuit in Kallen v. District 1199, 574 F.2d 723 (2d Cir.1978), I am satisfied that under § 9, this Court has both subject matter and personal jurisdiction over Hockmeyer despite the absence of any specific provision in the collective bargaining agreement that a court should confirm this award.

In Kallen, the Second Circuit was faced with a challenge to the subject matter jurisdiction of a district court in circumstances where the collective bargaining agreement underlying the arbitration award at issue provided only that the award would be “final, conclusive and binding” upon the parties. There was no mention of enforcement by any court, and the employer therefore challenged the applicability of 9 U.S.C. § 9. The Court of Appeals ruled that where the dispute involved interpretation of a collective bargaining agreement governed by federal law, and where the employer had participated fully in the arbitration process, the employer could not avow that the award would be “final, conclusive and binding upon it” without implicitly agreeing that federal court intervention could be sought to compel compliance. 574 F.2d at 276. Accordingly, the court found federal jurisdiction to confirm the award despite the absence of any express agreement between the parties. See also International Longshoreman’s Association v. Hellenic Lines, 549 F.Supp. 435, 438 (S.D.N.Y.1982).

The instant dispute also arises under a collective bargaining agreement, and is therefore governed by federal law. Moreover, Hockmeyer participated fully in arbitration proceedings conducted within this district, and therefore may be deemed to have “implicitly agreed” to the exercise of this Court’s subject matter jurisdiction pursuant to § 9 of the Arbitration Act.

As subject matter jurisdiction is proper under 9 U.S.C. § 9, it follows that respondent is bound by the personal jurisdiction provision of that section as well. My confidence in this conclusion is bolstered by the fact that a similar result was reached by Judge Pierre N. Leval of this Court in the context of another arbitration dispute between the same parties. Colavito v. Hockmeyer, No. 83 Civ. 3139, slip op. at 3 (S.D.N.Y. Sept. 14, 1983) (citing Hallen). Although respondent has indicated that it “disagrees with said decision,” Resp. Mem. at 11, it has articulated no reason for its position and I can conceive of none. Accordingly, I conclude that the Court has personal jurisdiction over Hockmeyer and I turn, next, to its contention that Colavito’s petition is barred by the statute of limitations.

Statute of Limitations

The statute of limitations argument, like the personal jurisdiction argument above, is premised upon respondent’s misapprehension that this is a diversity action. Respondent suggests that under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), this Court must apply the substantive law of New York, which includes New York’s choice-of-law rules. It asserts that New York requires the Court to determine “which state has the most significant contacts with the matter in dispute,” Resp.Mem. at 13, and then concludes that New Jersey is the logical choice primarily because respondent’s plant is there. Hockmeyer characterizes the fact that the arbitration took place in New York as “entirely fortuitous,” and urges the Court to adopt New Jersey’s three-month limitation period for confirming arbitration awards instead of New York’s one-year period. As might be inferred from respondent’s raising of the issue, parts of petitioner’s action would be barred under the former provision.

Having concluded above that § 9 of the Arbitration Act establishes an independent federal basis for this Court’s jurisdiction, I must also conclude that respondent’s discussion of Erie and state statutes of limitation is irrelevant to the instant dispute. Section 9 also provides that “any time within one year after the award is made any party to the arbitration may apply to the court ... for an order confirming the award.” This Court need look no further for the applicable limitation period.

I note that the parties litigated precisely this issue before Judge Leval in Colavito v. Hockmeyer, No. 83 Civ. 3139, and that Judge Leval held the Arbitration Act’s one-year period applicable on the ground that jurisdiction arose under the federal statute rather than the parties’ diversity of citizenship. Slip op. at 4. Notwithstanding respondent’s perfunctory expression of disagreement with Judge Leval’s ruling, I conclude that Colavito’s petition was timely because it was filed within one year of the dates these arbitration awards were rendered.

Respondent’s counter-petition to vacate the awards, on the other hand, was untimely, at least with respect to the award rendered by arbitrator George Moskowitz on October 12, 1982. The limitation period for an action to vacate an arbitration award is three months, calculated from the date of the award. See 9 U.S.C. § 12; Florasynth, Inc. v. Pickholz, 750 F.2d 171 (2d Cir.1984). Thus, Hoekmeyer’s November 7, 1983 filing was untimely with respect to the 1982 award, and the Court will therefore direct that judgment be entered confirming that award.

Evident Partiality of the Arbitrator

The Court is now squarely presented with a timely petition to confirm the awards rendered in August and September of 1983, and a timely counter-petition to vacate those awards on the ground of the arbitrator’s “evident partiality.” Respondent contends that arbitrator Nathan Cohen had an undisclosed pre-existing relationship with the Union that creates a presumption of his bias in this matter. Specifically, Hockmeyer cites the fact that during the tax year ending June 30, 1981, Cohen received $3,106 from the Board of Trustees of the Local 455 Welfare Fund, and $2,417 from the Board of Trustees of the Local 455 Pension Fund, in payment for his services as an arbitrator. Exs. A and B to Resp.’s Counter-Pet. Respondent argues that because these are precisely the funds to which Cohen ordered it to contribute in this action, and because he failed to disclose his pecuniary relationship with the Union at a time when objection could have been raised, his integrity and impartiality have been cast into doubt and the awards should be vacated. In support of its position, Hockmeyer relies primarily on Commonwealth Coatings Corp. v. Continental Casualty, 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968), in which the Supreme Court set aside the award of an arbitrator who had engaged in undisclosed business dealings with one of the parties.

Colavito responds that the funds referred to by Hockmeyer “are not funds of the Petitioner.”

The Local 455 Welfare Fund and The Pension Fund for Iron Workers Local 455 are industry-wide funds which are jointly administered by an equal number of trustees representing Shopmen’s Local Union No. 455 and the Allied Building Metal Industries, Inc. (hereinafter “Allied”), an employer association with whom Local 455 has a collective bargaining agreement.

Erenstein Reply Aff. at 117. According to petitioner, the collective bargaining agreement between Allied and Local 455 specifically designated Cohen as the impartial arbitrator to resolve disputes between the Union and employers concerning contractual obligations to the Funds. See Collective Bargaining Agreement, Ex. D to Erenstein Reply Aff. at § 33. Apparently, Cohen did, in fact, serve in the capacity of impartial arbitrator pursuant to that agreement, and the payments made by the bipartisan Boards of Trustees reflected payment for his services. Colavito insists that, contrary to respondent’s contention, the existence of this “relationship” demonstrates Cohen’s impartiality rather than his bias.

Petitioner also distinguishes this case from those cited by respondent, noting that in each of respondent’s cases, the arbitrator’s undisclosed business dealings were unconnected with his role as an arbitrator. Colavito suggests that there is no presumption of bias where, as here, an arbitrator has previously acted impartially in proceedings between one of the parties and a third party. See Colavito v. Joseph Charla Iron Works, Inc., No. 15089/79, slip op. (Sup.Ct., N.Y.Co. Sept. 24, 1979) (also involving arbitrator Nathan Cohen).

Petitioner argues, finally, that the awards should be confirmed because Hockmeyer knew of Cohen’s relationship with the Union. In support of this contention, counsel has submitted copies of six notices sent to Hockmeyer during 1979 and 1980; each notice advises Hockmeyer of a hearing scheduled before Cohen in connection with delinquent fund contributions. Ex.A to Erenstein Aff. According to counsel, Hockmeyer’s president wrote to the Union in response to these notices, and objected to the scheduling of hearings before Cohen on the ground that the collective bargaining agreement between Hockmeyer and the Union provided for the submission of disputes to the American Arbitration Association. Erenstein Aff. at ¶ 5. While petitioner has not provided documentary evidence of these objections, Hockmeyer has not denied that they were raised and has not, to be precise, denied knowledge of Cohen’s relationship with the Union. Respondent has simply denied knowledge of Cohen’s “financial ties to the funds.” Biederman Aff. at 119.

The burden of proof on a claim of evident partiality falls on the party seeking vacatur of the arbitration award. Saxis Steamship Co. v. Multifacs International Traders, Inc., 375 F.2d 577 (2d Cir.1967). That party must demonstrate that “a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration.” Morelite Construction Corp. v. New York City District Council Carpenters Benefit Funds, et al., 748 F.2d 79, 84 (2d Cir.1984). Having reviewed the arguments and evidence submitted by both parties, I must conclude that respondent has failed to meet its burden. In fact, I remain thoroughly unconvinced that Cohen’s “financial relationship with the Union” raises even the slightest spectre of bias. To the contrary, I am inclined to agree with Colavito that Cohen’s appointment to serve as impartial arbitrator in disputes between the Union and Allied is a testament to his impartiality and integrity. Obviously, Cohen’s fees had to come from somewhere, presumably from the parties to the arbitration. Hockmeyer’s suggestion that he had some questionable financial relationship with the Union simply because he was paid from a fund administered jointly by representatives of the Union and employers in the industry is feeble at best.

In any event, I am also satisfied that Hockmeyer knew or should have known of Cohen’s “connection” with the Union. Under the circumstances, Hockmeyer can be deemed to have waived any objection to Cohen’s participation as arbitrator of the instant disputes. Accordingly, the petition to confirm the two awards rendered by Nathan Cohen is granted.

Attorney’s Fees

Attorney’s fees are not ordinarily recoverable by the prevailing party in federal litigation absent statutory authorization for such awards or circumstances suggesting bad faith. The Arbitration Act includes no express provision for attorney’s fees in suits to confirm arbitration awards, and I cannot conclude, based upon the facts before me, that Hockmeyer mounted its resistance to confirmation in bad faith. I note, however, that Hockmeyer’s total reliance on diversity jurisdiction arguments in the face of Judge Leval’s previous ruling that a similar action between the same parties was not exclusively a diversity case, combined with its failure to disclose any grounds for its “disagreement with Judge Leval,” is poor practice at best, and might invite a bad faith finding if raised again in future litigation. Moreover, counsel for Hockmeyer should have anticipated that the “evident partiality” argument would not prevail. While it is difficult to conclude that the argument was “frivolous,” the Court could readily have drawn the inference that it was raised principally for purposes of delay and with little hope of success.

The Clerk of the Court is hereby directed to enter judgment with costs in favor of petitioner, granting the petition to confirm in all respects and denying respondent’s counter-petition to vacate. Each party will bear its own attorney’s fees.

SO ORDERED.


author: LASKER, District Judge.

text:
    Marianne McKAY, Plaintiff, v. CAPITAL CITIES COMMUNICATIONS, INC., Capital Cities Media, Inc., Fairchild Publications, Inc., Fairchild Publications, Inc. Salaried Employees Retirement Plan, Defendants.
    No. 82 Civ. 6642(MEL).
    United States District Court, S.D. New York.
    April 9, 1985.
    Wendy, Adler & Liss, New York City, for plaintiff; Solomon Liss, New York City, of counsel.
    Satterlee & Stephens, New York City, for defendants; Henry J. Formon, Jr., New York City, of counsel.
   LASKER, District Judge.

From March of 1973 until February of 1982 plaintiff Marianne McKay was employed by the Fairchild Publications Division (“Fairchild”) of defendant Capital Cities Media, Inc. She was initially hired by Gene Fahy, advertising director of Women’s Wear Daily (“WWD”) and W, as an advertising salesperson. Both WWD and W are periodicals devoted to charting the ever-changing course of women’s fashions. WWD is a daily trade newspaper read widely in the fashion industry, while W, began in 1972 as a WWD “spin-off,” is a somewhat more sophisticated bi-weekly publication intended to be read by “a select high income consumer, particularly women....” Affidavit of Gene Fahy ¶ 4, Sept. 20, 1983, reprinted in, Defendants’ Notice of Motion, filed Sept. 20, 1983.

In May of 1976, Fahy promoted McKay to the position of advertising manager for WWD and W, which, according to Fahy’s affidavit, made McKay the second person in charge and gave her considerable authority over advertising matters. See id. ¶ 6. McKay was compensated on the basis of a fixed salary and bonus formula, the latter of which was based upon the amount of advertising appearing in WWD or W for a particular year. The bonus formula changed on an annual basis, as W’s advertising revenues continued to rise, and was memorialized each year in a confidential memorandum from Fahy to McKay.

All went well for McKay between 1976 and 1982 as, year after year, advertising revenues for W reached record proportions, boosting McKay’s bonus. Accordingly, from her first full year as advertising manager until her last, McKay’s bonus rose from $25,000 to over $114,000. However, defendants apparently came to believe that the growth in W’s advertising revenues was not due solely to McKay’s efforts and in early 1982 they attempted to control her bonus by notifying her, as reflected by a series of memos between Fahy and McKay, that her bonus for 1982 would be determined on a “discretionary basis.” McKay refused to accept Fahy’s new formula and the dispute between them came to a head at a February 26, 1982 meeting in which, McKay testified at her deposition, Fahy wanted her to resign because she would not agree to the new formula. When McKay refused to resign, Fahy fired her. See Deposition of Marianne McKay, April 21, 1983, at 277-28, reprinted in Defendants’ Memorandum of Law, filed Sept. 20, 1983, at 11-12.

McKay subsequently commenced this action on the grounds of wrongful discharge and breach of contract.

Defendants earlier moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim upon which relief can be granted, and plaintiff has cross-moved to amend her complaint to add a federal claim alleging that defendants terminated her employment, inter alia, for the purpose of interfering with her pension rights contrary to Section 510 of the Employee Retirement Security Act of 1974 (“ERISA”). 29 U.S.C. § 1140 (1982). The proposed amended complaint alleged that McKay was terminated after nine years of employment by Fairchild, one year before she would have been eligible to receive pension benefits. We found that plaintiff adequately “alleges that the purpose of her discharge with the vesting of her rights” to state an ERISA claim, granted her motion to amend and denied defendants’ motion to dismiss. See McKay v. Capital Cities Communications, Inc., 82 Civ. 6642(MEL), mem. at 1-2 (S.D.N.Y. July 26, 1983).

Defendants now move for summary judgment to dismiss the amended complaint arguing that plaintiff’s ERISA claim is without merit because it is undisputed that McKay’s termination was not related to her pension benefits, and was caused solely by her rejection of the formula to fix her 1982 bonus.

After defendants’ motion was submitted, we asked McKay to provide an additional submission on the issue of jurisdiction. In response, McKay provided an affidavit which states that defendants’ pension plan requires ten years of service for vesting, that Fahy intended to deprive McKay of her pension rights, and that evidence as to the hiring and firing practices at Fairchild lends support to her allegation that the deprivation of her pension rights was one of the considerations which led to her discharge. McKay states that Fahy told her on numerous occasions that it was preferable to force employees to resign so that Fairchild would not have to make severance payments, that she was aware of at least two Fairchild employees who were harassed into resigning, and that data obtained through discovery reveals that between 1973 and 1982 twenty four employees were discharged by the defendants after eight or nine years of employment.

Section 510 of ERISA makes it unlawful for an employer to take steps against an employee who participates in a benefit plan “for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan”, 29 U.S.C. § 1140 (1982), and an employee discharged before his or her retirement vests may sue for redress under this provision. See Titsch v. Reliance Group, Inc., 548 F.Supp. 983, 985 (S.D.N.Y.1982), aff’d mem., 744 F.2d 1441 (2d Cir.1983); Calhoun v. Falstaff Brewing Corp., 478 F.Supp. 357, 359-60 (E.D.Mo.1979). While Section 510 can be invoked without requiring, a plaintiff to prove that the sole reason for his or her termination was to interfere with pension rights, see Titsch v. Reliance Group, Inc., supra, 548 F.Supp. at 985, in order to prevail under this provision, a plaintiff must show that a defendant specifically intended to violate ERISA, not that the loss of pension benefits was a mere consequence of a termination. See Watkinson v. Great Atlantic & Pacific Tea Co., Inc., 585 F.Supp. 879, 883 (E.D.Pa.1984); Titsch v. Reliance Group, Inc., supra, 548 F.Supp. at 985.

In this case, McKay’s affidavit presents circumstantial evidence as to defendants’ intent at the time they terminated her employment. Although the evidence presented indicates that a central reason for firing McKay was her refusal to accept a formula which would limit the size of her annual bonus, McKay’s allegations are sufficient to create a question of fact as to whether the defendants intended to defeat her eligibility for pension benefits at the time they elected to terminate her employment. The issue thus presented cannot be eliminated by additional submissions from the defendants and prevents granting this motion for summary judgment. Accordingly, that portion of defendants’ motion which seeks to dismiss plaintiff’s ERI-SA cause of action is denied.

Defendants also move for summary judgment to dismiss the amended complaint’s state law claims based upon wrongful discharge and breach of contract on the ground that McKay was an “at will” employee and is accordingly precluded from asserting these causes of action under New York law. See Murphy v. American Home Products Corp., 58 N.Y.2d 293, 448 N.E.2d 86, 461 N.Y.S.2d 232 (1983). McKay contends that a question of fact exists as to whether she was employed at will or pursuant to a written contract because from 1977 onwards she received from the defendants on an annual basis memoranda setting forth her bonus formula for a particular year and other memoranda calculating her bonus for the preceding year. McKay argues that in her view, these memoranda establish a contractual basis for her employment and that each annual memorandum constituted an employment agreement for a single calendar year.

In Murphy v. American Home Products, Corp., supra, the New York Court of Appeals reaffirmed that New York law does not recognize the tort of wrongful discharge and that a claim for breach of an employment contract arising out of the termination of employment cannot be brought unless there exists, inter alia, an express limitation on the employer’s right of discharge in the contract of employment. See id., 58 N.Y.2d at 306, 448 N.E.2d at 91, 461 N.Y.S.2d at 237. Such a limitation has been recognized to exist in an express provision found in a company’s handbook on personnel policies limiting the employer’s right to dismiss employees only for “just and sufficient cause,” see Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 459, 461-62, 443 N.E.2d 441, 442, 457 N.Y.S.2d 193, 194 (1982), and in a collective bargaining agreement containing a similar provision. See Parker v. Borock, 5 N.Y.2d 156, 159-60, 156 N.E.2d 297, 298-99, 182 N.Y.S.2d 577, 579-80 (1959); see also Bergamini v. Manhattan and Bronx Surface Transit Operating Authority, 62 N.Y.2d 897, 899, 467 N.E.2d 521, 522, 478 N.Y.S.2d 857, 858 (1984).

In this case, McKay has produced no documents setting forth a comparable limitation upon defendants’ right to terminate her employment and Murphy, supra, precludes a finding an implied limitation upon the employer’s “unfettered right” to terminate at will employees at any time. See Carlson v. Viacom International, Inc., 566 F.Supp. 289, 290-91 (S.D.N.Y.1983) (discussing Murphy’s explicit language that the obligation to act in good faith will not be implied to destroy the employer’s right of termination). Accordingly no question of fact exists as to whether McKay was an “at will” or contract employee and defendants’ summary judgment motion to dismiss the amended complaint’s state law wrongful discharge and breach of contract claims is granted.

In sum, defendants’ motion for summary judgment is granted as to the state law claims and denied as to her ERISA claim. Defendants’ motion for sanctions under Federal Rule of Civil Procedure 11 is denied.

It is so ordered.

      . For example in 1977, McKay's bonus was determined by a formula which awarded her $5,000 for the first $1.6 million of W advertising display revenues, 1.5 percent of all revenues between $1.6 and $2 million, and 2 percent of all revenues over $2 million.

      . By letter dated May 14, 1984 defendants wrote to object to McKay’s affidavit and requested an opportunity to respond to it by a formal submission. Inasmuch as, for the reasons discussed infra, McKay’s affidavit establishes that questions of fact exist as to defendants' intent, further submissions on this issue are unnecessary.

      . Defendants’ motion for sanctions under Federal Rule of Civil Procedure 11 is denied. Defendants contend that the representation made by plaintiffs counsel in support of the motion to amend the complaint, that he learned of the basis of the amended complaint’s ERISA claim only after the deposition of McKay and Fahy had been taken, violated Rule 11 because nothing in the depositions supports counsel’s representation. Defendants’ assertion is undercut by a portion of McKay’s deposition reprinted in defendants’ memorandum of law in support of this motion in which she testified that Fahy told her to stay at Fairchild another year in order to receive her pension benefits. See Defendants’ Memorandum of Law, filed Sept. 20, 1983, at 24. Further evidence favoring plaintiffs position is found in her affidavit which states, as McKay points out, that she had personal knowledge of defendants’ hiring and firing practices during the period she worked for the defendants. As we noted above, these practices provide circumstantial evidence supporting plaintiffs allegation that defendants’ intended to interfere with plaintiffs pension benefits. Under such circumstances, and in the absence of affirmative evidence of bad faith on McKay’s part, imposition of sanctions under Rule 11 would be unjustified.


author: JACKSON, District Judge.

text:
    Robert KALMIN, Plaintiff, v. DEPARTMENT OF the NAVY, Defendant.
    Civ. A. No. 84-1399.
    United States District Court, District of Columbia.
    April 9, 1985.

      Edna Earle Johnson, Arlington, Va., for plaintiff.
    Wayne P. Williams, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM AND ORDER

JACKSON, District Judge.

This case follows the now familiar pattern of a FOIA/Privacy Act request for documents from a recalcitrant agency in pursuit of evidence to be used in connection with some other controversy between the same parties. As in all such cases the issues and the acrimony accompanying the underlying dispute permeate, and on occasion tend to overwhelm, the document request alone.

I.

Plaintiff Robert D. Kalmin, formerly a grade 14 financial manager for the Navy’s Trident Submarine Ship Acquisition Project, contests the Navy’s refusal to release to him various “personal notes” made by certain of his supervisory co-workers, and some 27 documents concededly belonging to the Navy, all of which pertain to him and are presently in the possession of people attached to the Naval Sea Systems Command (“NAVSEA”), Kalmin’s employer, and the Consolidated Civilian Personnel Office (“CCPO”), an agency providing personnel support services for NAVSEA. Both species of documents, he asserts, were utilized by his superiors in effecting his “de facto demotion”—by reassignment to a less responsible position which the Navy says he requested—and his unexplained ostracism from the “management process” in February, 1983. The following December Kalmin filed a grievance; in February, 1984, he received the first negative performance evaluation of his career which, he believes, was retaliatorily motivated, and, moreover, was based upon the same “secret documents” made available to his rating superior. Appeals to more senior officials were unavailing, and, accordingly, Kalmin made an informal request for the “secret documents” from the Vice Commander of NAVSEA which was refused.

In February, 1984, Kalmin made the first of several formal FOIA/Privacy Act requests for, in effect, copies of all documents of which he was the subject to be found in both NAVSEA and CCPO. When duly processed to their administrative conclusions in late July, the requests had resulted in the release of some 770 pages of NAVSEA and CCPO material to Kalmin, excepting, however, he says, the “secret documents” he really wanted.

His original complaint pursuant to 5 U.S.C. § 552(a)(4)(B) and 5 U.S.C. § 552a(g)(l)(B) in this Court to obtain the documents withheld from him was filed May 7, 1984, while his administrative requests were still being processed. In November he was allowed to amend his complaint to elaborate upon the wrongs he believes were done him by the Navy in misusing the documents to derogate his work performance, and to seek damages pursuant to 5 U.S.C. §§ 552a(g)(3) and (4). His principal objective, however, remains the acquisition of the documents before he proceeds for vindication in another forum.

The matter is now before the Court on defendant’s motion for summary judgment, plaintiff’s cross-motion for partial summary judgment, and defendant’s motion to dismiss. For the reasons set forth below, the Court will grant defendant’s motion for summary judgment and dismiss the complaint with prejudice.

II.

The Navy has filed a Vaughn index (which Kalmin insists is insufficient) describing the 27 Navy documents withheld as, for the most part, one- or two-page “memoranda” recording encounters with or observations about Kalmin, all located within the confines of NAVSEA or CCPO, but randomly retained without attribution to Kalmin by name, or by any peculiar label, number, or symbol. (The index omits any reference to the “personal notes.”) Moreover, it has filed the declarations of all of the authors/custodians of both the “personal notes” and the “agency records,” describing the documents with which they were respectively involved and the circumstances of their making.

The declarations of Kalmin’s coworkers who made “personal notes” about him state unequivocally that the notes were made for the sole purpose of refreshing the writer’s memory; were either maintained at their homes, in miscellaneous private files at work, or in chronological logs or diaries; were never circulated; and were never under Navy control and could have been discarded at will in the writer’s sole discretion. See Declarations of Matteo, ¶¶ 4-5; Salko, H 3; Marczynski, ¶ 4; Yo-well, ¶ 2; Logan, 112; Gros, 117. In the absence of evidence to the contrary, the Court concludes that the notes are the personal property of the authors which defendant is neither obliged to produce or to account for under FOIA or the Privacy Act.

The Privacy Act, in terms, applies only to “records” kept or “maintained by an agency,” 5 U.S.C. § 552a(a)(4), and the published Guidelines to the Act indicate that by the limitation Congress intended the Act to reach only those “documents under the control of an agency,” OMB Guidelines, 40 Fed.Reg. 28949 (July 9, 1979), or, in other words,

to separate agency records from records which are maintained personally by employees of an agency which are not agency records, such as uncirculated personal notes, papers and records which are retained or discarded at the author’s sole discretion and over which the agency exercises no control or dominion.

40 Fed.Reg. at 28952. See Chapman v. NASA, 682 F.2d 526, 529 (5th Cir.1982). Moreover, the fact that the agency exercises no control or dominion over such “personal” materials, places them beyond the scope of FOIA as well. Cf. Forsham v. Harris, 445 U.S. 169, 182, 100 S.Ct. 977, 985, 63 L.Ed.2d 293 (1980); British Airports Authority v. CAB, 531 F.Supp. 408, 416 (D.D.C.1981).

As to the “agency records” it has withheld, defendant argues, not having been maintained in the Navy’s own system of records, they, too, are likewise not subject to production. Under the Privacy Act, records, to be producible, must be contained in a “system of records,” 5 U.S.C. § 552a(d), which the Act defines as “a group of records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.” 5 U.S.C. § 552a(a)(5) (emphasis added). Since the documents at issue here were kept as, or in or among, private papers and files, without descriptive labels relating them to Kalmin at all (most of them without identifiers of any kind), see Declarations of Young, 112; Matteo, ¶ 4; Salko, H 4; Marczynski, HU 3-6; Logan, 113; Rumpler, ¶ 4, defendant maintains they are not covered by the Privacy Act. See, e.g., Smiertka v. Department of the Treasury, 447 F.Supp. 221, 228, remanded on other grounds, 604 F.2d 698 (D.C.Cir.1979). Accord, Grachow v. Customs Service, 504 F.Supp. 632, 636 (D.D.C. 1980).

To the extent the Navy documents might nevertheless be regarded as producible under FOIA, defendant contends that it is properly withholding them pursuant to Exemptions 5 and 6 of FOIA, 5 U.S.C. §§ 552(b)(5) and (6). Exemption 5 protects from disclosure, inter alia, so-called “deliberative” documents, the purpose being to protect the advice, recommendations and opinions of those involved in an agency’s decision-making process. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975). In order for the exemption to apply, the agency must show that the documents are, indeed, part of a deliberative process leading to a final decision, Vaughn v. Rosen (II), 523 F.2d 1136, 1146 (D.C.Cir.1975), and are “predecisional,” Jordan v. Department of Justice, 591 F.2d 753, 774 (D.C.Cir.1978) (en banc), i.e., are not, formally or informally, the final agency decision. See Murphy v. TVA, 571 F.Supp. 502, 505 (D.D.C.1983). Defendant asserts (and plaintiff assuredly can be said to agree) that the documents at issue were generated in the course of the agency’s deliberations on personnel matters within NAVSEA—specifically, the matter of Kalmin—and that they otherwise conform to the description of exempt documents, and its Vaughn index and supporting declarations appear to confirm it.

In summary, as the record here presently stands, the Navy has supported its motion for summary judgment with the declarations of the NAVSEA FOIA/PA Co-ordinator who directed its document search, and of each of the individuals who made the “personal notes” or have custody of the “agency records” making mention of Kalmin which have not been released to him. All of the documents, as the declarants describe them and the manner of their keeping, appear to be entitled to the immunity from production on the several grounds the Navy claims for them. And Kalmin has offered no contradictory evidence on those discrete issues.

Kalmin is acutely aware that the Navy, for reasons neither he nor the Navy has chosen to articulate, suspects that he is emotionally unstable. He vehemently denies it, and he has submitted a lengthy affidavit of his own, and the declaration of the psychologist and report of the psychiatrist who have, respectively, treated and examined him. In his own affidavit he relates the course of a Kafkaesque persecution to which he has been subjected by his NAVSEA superiors; the psychologist and psychiatrist attest to the absence of any mental pathology on his part which might suggest that his perception of it is hallucinatory.

III.

Although FOIA and Privacy Act actions may certainly, on occasion, substitute for civil discovery, they are unlike civil discovery proceedings in that the statutes accord no discretion to the trial court to consider and balance the competing interests favoring and opposing disclosure. See Soucie v. David, 448 F.2d 1067, 1076-77 (D.C.Cir.1971); ACLU v. Department of Justice, 548 F.Supp. 219, 222 (D.D.C.1982). The material sought is, as a simple matter of fact, either disclosable or it is not.

The only evidence relevant to a FOIA/PA case now before the Court is the Navy’s, which demonstrates that what Kalmin wants the Navy need not produce—because it does not belong to the Navy; because it does not inhabit a “system of records” relating uniquely to him to which he would be entitled under the Privacy Act; and because it is comprised of pre-decisional work which is protected by Exemption 5 of FOIA.

Kalmin’s position is, in essence, that the Navy’s evidence cannot be taken as undisputed—or, at least, is called into question— by his own uncontroverted showing of his superiors’ unexplained malevolence towards him which taints any evidence the Navy has offered to prolong its concealment from him. But the possibility that certain evidence may be suspect is not the equivalent of affirmative proof that it is wrong, see Cruzan v. New York Central & Hudson River R.R., 227 Mass. 594, 116 N.E. 879 (1917), and plaintiff has offered no evidence at all, other than his own suspicions that the documents he seeks are not what, or not to be found where, the Navy’s declarants say they are. Defendant has, therefore, made the required evidentiary proffer in support of its motion for summary judgment, without encountering a contradictory proffer by plaintiff of admissible evidence from which it could be found that any facts material to the case as a FOIA/Privacy Act action, as distinguished from an employment grievance, remain in dispute. See Catrett v. Johns-Manville Sales Corp., 756 F.2d 181 (D.C.Cir.1985).

ORDERED, that defendant’s motion for summary judgment is granted, and the complaint is dismissed with prejudice.

      . Kalmin, a 16-year career civil servant with a superior work history, took a three-month leave of absence for a "stress-related ailment" in July, 1983, for which he consulted a psychologist. At the request of the Vice Commander of NAVSEA he was interviewed by a private psychiatrist in April, 1984, who found him “physically and emotionally capable of performing his duties and working harmoniously" with others.

      . Plaintiff maintains that the Navy’s procrastination in providing him with what he has been given to date is further manifestation of its unexplained hostility towards him.

      . Plaintiffs administrative recourse is, presumably, to the Merit Systems Protection Board, see 5 U.S.C. § 1205, which, it should be noted, has both subpoena power, Id., subpara. (b)(2)(A), and rules for discovery comparable to those of the Federal Rules of Civil Procedure. See 5 C.F.R. § 1201.72(c) (1985).

      . Also presently pending are plaintiffs motions for leave to amend his complaint once again and to compel defendant to amplify its Vaughn index of the documents withheld.
      Further amendment of the complaint would not, however, expand plaintiffs right to relief in any respect, for he can presently maintain no cause of action here upon the facts alleged other than under the FOIA/PA, or against any prospective defendant other than the Navy. See Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). And as to plaintiffs motion to compel compliance with this Court's order requiring the Vaughn index, it appears that defendant's 66-page index is wholly adequate insofar as the "agency records” for which it must alone account are concerned.

      . Plaintiff contends that although these documents may presently be dispersed throughout the offices without identifiers, they have been allowed to remain so for the purpose of evading his request for them under the Privacy Act, which is, of course, impermissible. See Waldorf v. Department of the Air Force, 3 GDS ¶ 81,013 (S.D.Ill.1981); Fiorella v. HEW, 2 GDS ¶ 81,363 (W.D.Wash.1981). He fails to support the allegation with evidence of any kind, however, relying instead upon the inference that, as they obviously resulted in his de facto demotion, so also must they be considered a de facto "system of records” relating to him, if only for that purpose.

      . Exemption 6 excuses the production of matter "which would constitute a clearly unwarranted invasion of personal privacy." It is, however, unnecessary to decide whether, as the Navy contends, anyone’s privacy (or safety) would be jeopardized were the documents to be disclosed to Kalmin, which would entail an inquiry into the legitimacy of the Navy’s concern with Kalmin’s mental state and an issue very much still in dispute.