author: POLOZOLA, District Judge.

text:
    Lester J. BERGERON and Bennett A. Bergeron v. AMOCO PRODUCTION COMPANY and Gulf Oil Corporation.
    Civ. A. No. 82-1151-B.
    United States District Court, M.D. Louisiana.
    Nov. 19, 1984.

      William S. Strain, Strain, Mayhall, Bates & Palmer, Baton Rouge, La., John Wayne Jewell, Jewell & Jewell, New Roads, La., for plaintiffs.
    Tom F. Phillips, J. Clayton Johnson, Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for defendants.
   POLOZOLA, District Judge.

The issue before the Court in this suit is whether the plaintiffs’ undivided interest in property located within the gas rich Tuscaloosa Trend is subject to a mineral lease executed by their deceased mother, Caroline Mix Bergeron. Lester J. Bergeron and Bennett A. Bergeron have filed this action against Amoco Production Company (Amoco) and Gulf Oil Corporation (Gulf) seeking to have the Court declare that their property is not subject to the mineral lease. The defendants, Amoco and Gulf, have filed a counterclaim seeking a declaration that any undivided interest of the plaintiffs not subject to the Caroline Bergeron lease is covered and affected by other mineral leases executed by the plaintiffs contemporaneously with the lease executed by the plaintiffs’ mother.

In September of 1976, James Mixon, a lease broker employed by Thomas Durham, contacted Lester Bergeron relative to leasing certain property in Pointe Coupee Parish owned by the Bergeron family. Lester, his brother Bennett, and their mother, Caroline M. Bergeron, agreed to lease all the Pointe Coupee property to Durham. On September 21, 1976, four leases were granted by the Bergerons affecting six contiguous tracts comprising the entire Bergeron property. One lease was executed by Caroline Bergeron alone and purported to lease the entirety of a 40 acre tract in the center of the Bergeron property. Lester and Bennett each executed leases affecting 80 acre tracts owned by them individually, and a fourth lease was jointly executed by Bennett and Lester covering three tracts totalling 250 acres owned by them in indivisión. These leases were subsequently assigned to the defendants.

Each of the four leases was prepared by James Mixon on a standard printed form. Included in each lease was a standard warranty clause which provided:

10. Lessor hereby warrants and agrees to defend the title to said land..... If Lessor owns less than the entire undivided interest in all or any portion of the lands or mineral rights relating thereto (whether such interest is herein specified or not) rentals and royalties to the land in which an interest is outstanding in others shall be reduced proportionately to the interest of the Lessor therein, but the failure of the Lessee to reduce rentals shall not affect Lessee’s rights to reduce royalties; and all outstanding royalty rights shall be deducted from the royalties herein provided for.

Annexed to the form lease was a typewritten addendum prepared by Tom Jewell, the Bergeron’s attorney. This addendum contained the following provision modifying the warranty clause.

(c) Lessor’s warranty of title to the minerals leased shall be limited to the obligation to return to Lessee any royalties received from the portion of the leased premises to which title shall fail.

Shortly after the leases were signed on October 27, 1976, Caroline Bergeron died. The plaintiffs then discovered that their mother had owned only 513/2880ths of the red strip and that they had acquired the remaining 2367/2880ths in 1954 through their father’s succession. In the succession proceedings filed on May 26, 1977, plaintiffs accepted the succession of their mother unconditionally, and a judgment of possession was rendered sending the plaintiffs into possession of their mother’s interest in the red strip.

The plaintiffs contend that at the time the red strip lease was executed by their mother, it affected only her interest in the property and not the 2367/2880ths interest which they owned. Both plaintiffs and defendants agree that the plaintiffs assumed any warranty obligations existing under the lease by unconditionally accepting their mother’s succession. The parties disagree, however, on the extent of that warranty obligation.

The plaintiffs, relying on the language of the typewritten addendum, contend that their warranty obligation under the lease is limited to a return of royalties received from the portion of the leased property to which their mother did not have title.

The defendants contend that the typewritten addendum modified only the damages provision of the standard warranty clause and that the plaintiffs have assumed their mother’s warranty of good title, including her obligations to defend title and maintain peaceable possession. The defendants base this contention on the following: (1) Paragraph 10, the standard warranty clause, was not striken from the lease; (2) the language of the addendum is similar to the second sentence of Article 120 of the Louisiana Mineral Code, which is solely a limitation of liability; and, (3) the addendum begins with the words “Lessor’s warranty of title ...,” indicating that a warranty of title does exist.

The defendants first argument, that the failure of the lessor to strike the warranty clause from the form lease indicates an intent to retain full warranty of title, ignores the preamble to the typewritten addendum, which states: “[I]n the event of conflict, said following provisions shall control over any of the printed provisions appearing in said lease.” As. the warranty clause of the addendum conflicts with Paragraph 10 of the printed form, the deletion of Paragraph 10 was accomplished without physical alteration of the printed form.

The second argument of the defendants is likewise without merit because the language of the second sentence of Article 120 of the Mineral Code and the language of provision (c) of the addendum clearly are not analogous. Article 120 provides for an implied warranty of title unless excluded or limited by the parties. The second sentence of that article, which begins with “The liability of the lessor for breach of warranty is limited ...,” deals specifically with the amount of damages for breach of warranty where the lease is silent. In contrast, provision (c) of the addendum, which begins “Lessor’s warranty of title to the minerals leased shall be limited ...,” is clearly a limitation of warranty, not merely a limitation of liability-

Finally, the defendant’s assertion that retention of a full warranty is indicated by the language “Lessor’s warranty of title” at the beginning of provision (c) takes those words completely out of context. Under Article 1945(3) of the Louisiana Civil Code, the intent of the parties to the contract is to be determined by the words of the contract when they are clear and unambiguous and lead to no absurd consequences. Battig v. Hartford Accident & Indemnity Co., 482 F.Supp. 338 (W.D.La.1977), aff'd. 608 F.2d 119 (5th Cir.1979). The words of provision (c) of the addendum clearly and unambiguously limit the warranty given by Caroline Bergeron to “the obligation to return to Lessee any royalties received from the portion of the leased premises to which title shall fail.” Thus, under Articles 1056 and 1423 of the Louisiana Civil Code, the warranty obligation assumed by the plaintiffs is likewise limited.

Since the plaintiffs were not parties to the lease executed by Caroline Bergeron, and since the plaintiffs have no obligation to defend title to the leased property or to maintain peaceful possession in the defendants under that lease, this Court finds that the plaintiffs’ 2367/2880ths interest in the 40 acre red strip tract in question is not subject to the lease executed by Caroline Bergeron.

The next issue to be resolved by the Court is whether plaintiffs’ interest in the 40 acre red strip tract, which is located in Sections 51 and 123, is subject to other leases executed by the plaintiffs contemporaneously with the Caroline Bergeron lease. Each of the four leases executed by the Bergerons on September 21, 1976, contained the following language, commonly referred to as a “cover all clause,” immediately following the property description:

All land owned by the Lessor in the above mentioned Section or Sections or Surveys, ... are included herein, whether properly or specifically described or not. Whether or not any reductions in rentals shall have previously been made, this lease, without further evidence thereof, shall immediately attach to and affect any and all rights, titles, and interests in the above described land, including reversionary mineral rights, hereafter acquired by or inuring to Lessor and Lessor’s successors and assigns.

Both the lease jointly executed by Bennett and Lester and the lease executed by Lester individually included tracts located in Sections 51 and 123. The defendants in their counterclaim contend that the 40 acre red strip tract is subject to these other leases granted by the Bergerons in Sections 51 and 123 by virtue of the coverall clause.

The plaintiffs, relying on Texas jurisprudence, argue that coverall clauses generally are disfavored in law and that the sole purpose of such a clause is to add small parcels of land inadvertently omitted from the specific property description. The Texas decisions, however, are based on public policy of the State of Texas discouraging separate ownership of small parcels of land. Smith v. Allison, 157 Tex. 220, 301 S.W.2d 608, 615 (1956). This Court is aware of no similar public policy of the State of Louisiana. In the only Louisiana case involving an identical coverall clause, Melancon v. Melancon, 199 So.2d 573, 576 (La.App.3d Cir.1967), the court referred to the clause with apparent approval, stating it was inserted for the protection of the lessee should the lessor own additional property adjacent to the property described in the lease. Further, in Williams v. Bowie Lumber Co., 214 La. 750, 38 So.2d 729 (1948), the Louisiana Supreme Court upheld a similar coverall clause. Williams involved a deed which particularly described 19 tracts and then stated it also conveyed “all property owned by [the vendor] in the Parish of Lafourche.” The court stated that as between the parties to the contract and their privies, a sale of real property by omnibus description is just as effective and binding as though the property were particularly described.

The plaintiffs, citing United Gas Public Service Co. v. Mitchell, 188 La. 651, 177 So. 697 (1937), argue that even if the clauses are applicable, they are valid only between the original parties to the lease and cannot affect third parties. In Mitchell, the court held a coverall clause inapplicable where the rights of third parties had intervened. Where a third party was the one seeking to sustain the validity of the clause, however, as in this case, the court upheld the clause. O’Meara v. Broussard, 162 So.2d 777 (La.App. 1st Cir.1963). The Court finds that the coverall clause contained in the Bergeron leases, which was inserted for the lessee’s protection, clearly is valid under the applicable Louisiana law, and the effect thereof is to subject the plaintiffs’ 2367/2880ths interest in the 40 acre red strip tract to the other leases granted by the plaintiffs which include tracts located in Sections 51 and 123.

Under Louisiana law, where there is clear and convincing proof of mutual error, either party is always permitted to correct any error in an instrument purporting to evidence the contract, so as to make it truly and correctly express the intention of the parties. Weber v. H.G. Hill Stores, 210 La. 977, 29 So.2d 33 (1946), citing Hearne v. Marine Ins. Co., 20 Wall. 488, 87 U.S. 488, 22 L.Ed. 395 (1874); Phoenix Indemnity Co. v. Marquette Casualty Co., 320 F.2d 486 (5th Cir.1963), cert. denied 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 658 (1964). The testimony of Lester and Bennett Bergeron evidences their clear intent to grant a lease to Thomas Durham of any and all interest owned by them in the six tracts involved herein. The testimony of James Mixon further evidences the intent of Thomas Durham, the original lessee, to lease from the Bergerons their entire interest in these tracts. The Court finds the evidence clear and convincing that the 2367/2880ths interest of the Bergeron brothers in the red strip was omitted from the specific property description in the lease executed by the brothers jointly covering all other property owned by them in indivisión only due to mutual error on the part of all parties to the instrument. Thus, the Court concludes that the lease Lester Bergeron-Bennett Bergeron should be reformed to reflect the true intent of the parties.

In summary, the Court finds in favor of the plaintiffs on the original complaint and declares that the 2367/2880ths interest of the plaintiffs in the 40 acre red strip tract in question is not subject to the lease executed by Caroline Bergeron. On . the defendants’ counterclaim, the Court finds in favor of Gulf and Amoco and declares that the lease jointly granted by Lester Berger-on and Bennett Bergeron covering and affecting property owned by them in indivisión be reformed to include in the specific property description their 2367/2880ths interest in the 40 acre red strip tract in question.

The parties shall, within fifteen days, prepare and file with the Court a proposed judgment in accordance with this opinion.

      . Plaintiffs own a 2367/2880 interest in the property.

      . This 40 acre tract will be referred to as the "red strip” to coincide with the testimony presented at the trial.

      . Paragraph 10 the lease.

      . Emphasis supplied by Court.

      . Id.


source: Caselaw Access Project

license: Public Domain

text:
    ALLIED OIL WORKERS UNION v. ETHYL CORPORATION.
    Civ. A. No. 83-1298-B.
    United States District Court, M.D. Louisiana.
    Nov. 20, 1984.

      Randall G. Wells, Lindsay & Marcel, Baton Rouge, La., for plaintiff.
    G. Michael Pharis, Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for defendant.
   POLOZOLA, District Judge.

Allied Oil Workers Union (AOWU) has filed this action pursuant to 29 U.S.C. § 185 to compel arbitration as provided in a collective bargaining agreement between the union and Ethyl Corporation (Ethyl). This matter is now before the Court on cross-motions for summary judgment filed by the parties. The sole issue before the Court is whether the dispute complained of is a grievance under the terms and conditions of the contract, and, therefore, subject to arbitration. For reasons which follow, the Court finds that the contract does not require arbitration of the current dispute between the parties under the facts of this case.

AOWU is a labor organization which is the exclusive and certified collective bargaining representative acting for and on behalf of two separate bargaining units at the Ethyl plant. One unit is composed of the clerical and office employees, including cafeteria workers and hospital employees. The other unit is composed of wage roll hydrocarbon maintenance and production employees and R & D laboratory assistants. The parties have a written collective bargaining agreement which was signed on June 2, 1981 and was in force at the time of the acts complained of. The union contends that Ethyl improperly laid off certain employees in violation of this agreement. Ethyl contends the employees who were laid off were supervisory personnel who were specifically excluded from the terms of the agreement.

The Court finds that the agreement specifically excludes supervisors from the terms and conditions of the collective bargaining agreement. Since supervisors are not considered employees within the meaning of the agreement, the dispute is not a grievance subject to arbitration. It is clear from the terms of the contract that the parties never contractually agreed to arbitrate layoffs involving supervisors.

The facts leading up to the layoffs are not in dispute. In September of 1983, Ethyl advised the union that it was shutting down the entire PVC area of the Baton Rouge plant. Ethyl also decided to close the vinyl chloride (VC1) and methyl chloride (MeCl) units in the hydrocarbon area of the plant. On October 11, 1983, Ethyl advised the AOWU that as a result of this decision, 125 persons would be affected by the shutdown. A total of forty-four persons were laid off on November 10, 1983. In the initial layoff, there was no reduction in the number of supervisory employees, and no supervisory employees were returned by Ethyl to the bargaining unit as was permitted under the agreement.

O.T. Vince, president of the AOWU, filed a grievance with Ethyl on November 8, 1983. In his letter, Vince contended Ethyl violated Section 1237, paragraph 2, of the agreement: Thereafter, ten supervisory employees chosen by Ethyl were returned to the bargaining unit. After these supervisory employees were returned to the bargaining unit, ten bargaining unit employees were laid off. The record reveals that some employees who were laid off had more plant seniority than four supervisors who remained on the job. It is this result which the union now complains of. The union seeks to have Ethyl arbitrate whether Section 1237 of the agreement applies to supervisors.

Whether or not a party is bound to arbitrate and what issues it must arbitrate is a matter to be determined by the Court on the basis of the contract entered into by the employer and the union. The employer has no duty to arbitrate issues which it has not agreed to arbitrate and cannot be compelled to arbitrate if the arbitration clause does not bind him to do so. John Wiley and Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Atkinson v. Sinclair Refining Company, 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962); Piggly Wiggly Operators’ Warehouse, Inc. v. Piggly Wiggly Operators’ Warehouse Independent Truck Drivers Union, Local No. 1, 611 F.2d 580 (5th Cir.1980). Because the duty to arbitrate is of contractual origin, “a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty.” John Wiley and Sons, Inc. v. Livingston, supra. 84 S.Ct. at 913.

Thus, it is necessary to review the collective bargaining agreement in this case to determine whether the contract calls for arbitration and, if so, whether the arbitration clause is broad enough to cover the issue before the Court. Article V of the agreement sets forth the procedure for the “Adjustment of Grievances or Complaints”. Section 502 defines a grievance as follows:

“A grievance, as that term is used in this Agreement, means any dispute the UNION or employee has with the COMPANY involving the proper application, interpretation, or compliance with the specific written provisions of this Agreement. If the UNION or any employee has a complaint that does not come under the meaning of the above, the adjustment of said complaint will be limited to the first four (4) steps of the grievance procedure outlined below.”

Article VI of the agreement contains an arbitration provision. Article VI provides that the “following steps shall be followed in processing UNION or employee grievances:

602. Function of the Arbitrators

“The sole function of the arbitrators shall be to determine whether the COMPANY or the UNION is correct with reference to the proper application and interpretation of, or compliance with, the written provisions of this Agreement and the arbitrators shall not have any authority to change, amend, modify, supplement or otherwise alter in any respect whatsoever this Agreement, or any part thereof. It is further understood and agreed that the provisions of this Article shall not apply to matters affecting the change in salaries and rates of pay as set forth in Exhibit “A” attached hereto; the provisions of this Article shall not apply to the administration and contents of the COMPANY’S Industrial Relations Plans which are listed in Article XIII hereof; also, the provisions of this Article shall not apply to or change the procedure set forth in Article VIII hereof with reference to the evaluation of jobs by an outside arbitrator; nor shall the provisions of this Article apply to working practices unless said practices are set forth in this written Agreement executed between the COMPANY and the UNION. It is understood and agreed that this provision will not alter or change any part of this Agreement. (Emphasis supplied.)

The issue which the union wishes to arbitrate is whether Section 1237 of the agreement applies to supervisors. More specifieally, the issue before the Court is whether supervisors are covered by the bargaining agreement. It is clear that the union’s dispute with the company is over the question of whether Ethyl has the right to return the supervisor with the least plant seniority to the bargaining unit. Ethyl contends it has the right to determine who its supervisors will be and that there is no obligation under the agreement to promote or terminate a supervisor on the basis of seniority.

The collective bargaining agreement defines the term “employees” as it is used in the agreement and also clarifies the status of supervisory employees under the agreement. Thus, Article 1, Section 101 defines the term “employee” as follows:

“Unless the language otherwise clearly indicates, the term ‘employees’, as used herein, means any or all and only those employees of the COMPANY included within the unit appropriate for collective bargaining purposes as defined in the first paragraph of this Agreement.” The first paragraph of the agreement provides:
“THIS EXTENDED AGREEMENT entered into this 2nd day of June 1981, between ETHYL CORPORATION, a corporation, hereinafter referred to as the COMPANY, and the ALLIED OIL WORKERS UNION, hereinafter referred to as the UNION, acting for and on behalf of all those production, maintenance, shipping, receiving and laboratory employees of the COMPANY’S plant at Baton Rouge, Louisiana, included in the collective bargaining unit established by the National Labor Relations Board in Case No. 15-R-1441, which excludes office, clerical, professional and all supervisory employees with the right to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action.” (Emphasis supplied.)

After reading the above provisions it is clear that the contract specifically exempts supervisors from the term or definition of employees as that term is used in the collective bargaining agreement.

Furthermore, Section 1211 of the agreement specifically provides that supervisors “shall not be subject to the terms and conditions” of the agreement.

A careful review of the contract, including the unambiguous provisions cited above, reveal that supervisors are not employees within the meaning of the collective bargaining agreement and, therefore, are not members of the bargaining unit represented by the union. Thus, it is clear that Section 1237 does not apply to supervisors since supervisors are neither employees nor members of the union’s bargaining unit. It is only after Ethyl decides to return the supervisor to the bargaining unit that Section 1237 would apply.

The clear intent of the parties to exclude supervisors from the bargaining unit and from the provisions of the bargaining agreement is also reflected in Section 1611 of Article XYI of the contract which pertains to “union activities” and “work clause”. Section 1611 provides in part that “[fjoremen and supervisory employees shall not be assigned to work which is usually performed by UNION-represented employees ...”.

In summary, the Court finds as follows:

“Supervisory positions above the rank of the highest classification of each department shall not be subject to the terms and conditions of this Agreement but employees so promoted shall retain and continue to accumulate seniority in the classification from which they were promoted.” (Emphasis supplied.)

The union has never negotiated for or on behalf of any supervisor. Ethyl has always determined who to select as supervisors and for how long; what salary will be paid to the supervisor; the benefits supervisors are to receive; and, when and where the supervisors will work. At no time has the union participated in the selection or termination of a supervisor. Seniority is not a controlling factor in determining who to promote to a supervisory position, or who should be terminated as a supervisor. Supervisory employees have been excluded from the collective bargaining agreement since 1947.

The parties never intended for all disputes to go to arbitration. Since supervisory personnel are not covered by the collective bargaining agreement, the Court cannot require Ethyl to arbitrate the layoff of supervisors. The dispute plaintiff complains of is not a grievance within the meaning of the collective bargaining agreement and, therefore, is not subject to arbitration.

Therefore, plaintiff’s motion for summary judgment shall be denied and defendant’s motion for summary judgment shall be granted. Judgment shall also be entered dismissing plaintiff's suit with prejudice at plaintiff’s cost.

      . 29 U.S.C. § 185 gives federal district courts jurisdiction over suits for alleged violations of contracts between employers and labor unions which represent employers in an industry affecting commerce as defined by the Labor Management Relations Act. Thus, the Court has jurisdiction herein.

      . The AOWU is a labor organization within the meaning of 29 U.S.C. § 152(5).

      . Ethyl is an employer within the meaning of 29 U.S.C. § 152(2), (6), and (7).

      . Both AOWU-represented wage and clerical employees and some non-AOWU represented supervisory personnel were affected by the layoff in the hydrocarbon area.

      . Grievance Number V-5-83.

      . Section 1237 of the collective bargaining agreement, paragraph 2, sentence 1, provides as follows:
      “In the event of a layoff, the employees with the least plant seniority will be laid off.”

      . When a supervisory employee is returned to the bargaining unit, he is permitted to exercise his retained seniority rights under Section 1211 of the agreement. No grievance was filed over the return of these ten employees to the bargaining unit.

      . The parties agree that a supervisory employee who is removed as a supervisor may be returned to the bargaining unit.

      . The Court is aware that national labor policy favors arbitration of labor disputes. United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). However, in the United Steelworkers case, the United States Supreme Court noted that arbitration “is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit.” 363 U.S. at 582, 80 S.Ct. at 1353.

      . "If any party refuses to arbitrate a question, the crucial issue is whether the collective bargaining agreement requires it to do so. In that event arbitrability is ordinarily a question of contract interpretation for the courts.” Piggly Wiggly, supra, 611 F.2d at 583.

      . There are five separate sections in Article V. Only Section 502 is applicable herein.

      . Sections 601 to 608 set forth the rules and procedures for arbitration under the contract.

      . Article III of the agreement provides for Management Rights. Article III states in part that the "management of the COMPANY'S Baton Rouge, Louisiana, Plant, including the direction of its working forces, is vested in the COMPANY, except as otherwise specifically relinquished or limited by the provisions of this Agreement. * *

      . Section 1211 is included under Article XII of the contract dealing with seniority.

      . Section 1211 reads as follows:

      . Section 1611 reads as follows:
      1611. Supervisory Work Clause

      Foreman and supervisory employees shall not be assigned to work which is usually performed by UNION-represented employees, except that Foreman, Supervisors and technical employees may perform such work in emergencies or when acting as instructors. Current practices on experimental work will be continued.
      Foreman, Supervisors and technical employees may also perform such work when engaged in the start-up of new equipment or in attempting to correct problems during periods of unusual and upset operations. The COMPANY shall exercise this privilege in a reasonable manner and for reasonable times, and shall not employ it as a means of decreasing the usual number of wage-roll employees required for an efficient operation.


author: HARGROVE, District Judge.

text:
    BUTLER & CO., INC., Plaintiff, v. Elzy Forest CALDWELL and Florence Caldwell, Defendants.
    Civ. A. No. HAR 83-1660.
    United States District Court, D. Maryland.
    Nov. 23, 1984.
    Melvyn J. Weinstock, Weinberger & Weinstock, Sidney S. Friedman, Baltimore, Md., for plaintiff.
    Jonathan E. Clairborne, Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, Md., for defendants.
   MEMORANDUM OPINION

HARGROVE, District Judge.

Before the Court is Defendants’ Motion to Dismiss the Complaint, filed July 21, 1983. Plaintiff’s Opposition was filed on August 4, 1983 and Defendants’ Reply on August 15, 1983.

Plaintiff’s claim against Defendants involves the collection of monies due and payable to Plaintiff, in the amount of $23,-400.00, for unpaid rent on a refrigerated trailer leased to Defendants. The Plaintiff Corporation is a resident of the State of Maryland, its principal place of business located in Howard County, Maryland. Elzy Forest Caldwell and Florence Caldwell are residents of Waynesville, North Carolina. Plaintiffs have alleged an amount in controversy in excess of $10,000.00. On July 6, 1982 Plaintiff and Mr. Caldwell entered into an Equipment Lease Agreement setting forth the terms and conditions of the rental of the trailer. The lease was executed in North Carolina. It contains a clause at part 17 that it “... has been delivered in the State of Maryland and shall in all respects be governed by and construed in accordance with the laws of the State of Maryland.”

On the same date, both Mr. and Mrs. Caldwell signed a guaranty agreement, assuring that all sums due on the lease would be paid. The guaranty authorizes,

any attorney at law to appear for them before any court having jurisdiction within the United States or elsewhere, and after one or more declarations filed, confess judgment against them as of any term after the Liabilities are due (whether by normal maturity or upon acceleration) for the unpaid balance of the Liabilities declared due, and interest____

It also provides that its interpretation should be governed by Maryland law.

Plaintiff contends that these clauses give the courts of Maryland jurisdiction over the Defendants in this dispute pursuant to the Maryland Longarm Statute at Md. Courts and Judicial Proceedings Code Ann. § 6-103(b)(1) (1957). Defendants have filed a motion to dismiss and a reply stating that this Court does not have personal jurisdiction over them because they are residents of North Carolina, and, because they do not and have never had any contacts with the State of Maryland.

Plaintiff, in its opposition, states that the aforementioned clauses in the lease and guaranty agreements, providing that said agreements were delivered in Maryland and would be construed according to Maryland law in connection with the confessed judgment phrase in the guaranty agreement, give this Court jurisdiction over the defendants.

For the [Maryland Longarm] statute to apply it is sufficient if any of the provisions of subsection (b) are satisfied. United Merchants & Mfrs., Inc. v. David & Dash, Inc., 439 F.Supp. 1078, 1082 (D.Md.1977); Lawson v. Baltimore Paint & Chemical Corp., 298 F.Supp. 373, 377 (D.Md.1969). Application of the long arm statute is essentially a two-step process. The court must first determine whether a particular subsection purports to authorize service of process on the non-resident. Second, the court must determine whether that service and the attendant exercise of personal jurisdiction comports with due process. See Haynes v. James H. Carr, Inc., 427 F.2d 700, 703 (4th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 238, 27 L.Ed.2d 245 (1970); Geelhoed v. Jensen, 277 Md. 220, 224, 352 A.2d 818 (1976).

Craig v. General Finance Corp. of Illinois, 504 F.Supp. 1033, 1036 (D.Md.1980). With respect to Step 1, § 6-103(b)(l) of the Courts and Judicial Proceedings article of the Maryland Code states:

(a) Condition — If jurisdiction over a person is based solely upon this section, he may be sued only on a cause of action arising from any act enumerated in this section.
(b) In general — A court may exercise personal jurisdiction over a person, who directly or by an agent:
(1) Transacts any business or performs any character of work or service in the State;
(2) Contracts to supply goods, food, services, or manufactured products in the State;
(3) Causes tortious injury in the State by an act or omission in the State;
(4) Causes tortious injury in the State or outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services or manufactured products or consumed in the State;
(5) Has an interest in, uses, or possesses real property in the State; or
(6) Contracts to insure or act as surety for, or on, any person, property risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing.

Defendants do not fall into any of the 6 possible categories of persons over whom Maryland courts have jurisdiction pursuant to this statute. Plaintiffs have not articulated what acts Defendants have committed which rise to any level of the “transacting business” requirement of § 6-103(b)(l).

With respect to step 2 of the longarm statute application process, federal law is controlling concerning the question of whether the exercise of personal jurisdiction violates due process. United Merchants & Mfrs., Inc. v. David & Dash, Inc., supra at 1801. Such exercise of personal jurisdiction is, therefore, subject ultimately to the constitutional limitations set forth by the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. Craig v. General Finance Corp. of Illinois, supra.

The Supreme Court in International Shoe stated that

... it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.

326 U.S. at 319, 66 S.Ct. at 160.

The Lease and Guaranty Agreements were executed in North Carolina. No mention has been made of any negotiations having taken place in Maryland, or through the mails or via telephone, to Maryland. No proof is shown that the parties had travelled to Maryland or that the trailer had ever been used in Maryland.

[M]erely entering into a contract with a forum resident does not provide the requisite contacts between a defendant and the forum State. See Aaron Ferer & Sons Co. v. American Compressed Steel Co., 564 F.2d 1206, 1211 (8th Cir.1977). This is particularly true when all elements of the defendant’s performance are to take place outside the forum. Id. at 1210. See also Barnstone v. Congregation Am Echad, 574 F.2d 286, 288 (5th Cir.1978); American Steel, Inc. v. Cascade Steel Rolling Mills, Inc., 425 F.Supp. 301, 303 (S.D.Tex.1975), aff'd., 548 F.2d 620 (5th Cir.1977).

Iowa Electric Light & Power Co. v. Atlas Corp., 603 F.2d 1301 (8th Cir.1979) (footnotes omitted).

Even if such communications had been made, the Courts have found that the “minimum contacts” standard articulated in International Shoe requires more. See Thomas P. Gonzalez Corporation v. Consejo Nacional De Produccion de Costa Rica, 614 F.2d 1247 (9th Cir.1980) (fact that defendant regularly entered into sale and purchase agreements with plaintiff, a California resident, for purchases of grain, made payment in California by confirmed letters of credit, and frequently contacted plaintiff, did not subject defendant to long-arm jurisdiction in California with respect to a dispute arising out of one of the agreements. Court held that defendant had not performed any act relating to the contract at issue by which it purposefully availed itself of the privilege of conducting business in California); Lakeside Bridge & Steel Co. v. Mountain State Construction Co., Inc., 597 F.2d 596 (7th Cir.1979) (Acts of out-of-state defendant in ordering goods from plaintiff, a Wisconsin Company, with knowledge that they were likely to be manufactured in Wisconsin and shipped from there and in using mail and telephone to communicate with plaintiff in Wisconsin during negotiation and performance of contract were insufficient, even with alleged acceptance of purchase order in Wisconsin, to satisfy due process “minimum contacts” test for asserting personal jurisdiction over out-of-state defendant in diversity contract action brought in Wisconsin where, though defendant in a sense caused activity in Wisconsin by placing order, contract between parties left plaintiff in absolute control over where it would conduct that activity, and defendant did not purposefully avail itself of privilege of conducting activities within forum State.)

In the instant case, the clause designating Maryland law as the appropriate law governing the interpretation of both the lease agreement and the guaranty agreement was a choice of law provision, not a provision indicating that the parties had consented to the jurisdiction of the courts of the State of Maryland. The defendants did not, thereby, avail themselves of the privilege of coordinating activities in Maryland, as International Shoe, supra, requires. Further, the consent judgment clause is triggered only when the court in which the judgment is to be rendered has jurisdiction over the defendants. Not only must the court have subject matter jurisdiction but it must also have personal jurisdiction over the defendants. It has not been shown that such personal jurisdiction exists here. The court may have found personal jurisdiction over defendants if they had actually consented to the jurisdiction of the Maryland courts. See G.H. Miller & Co. v. Hanes, 566 F.Supp. 305 (N.D.Ill.1983).

If it does have personal and subject matter jurisdiction, then, venue determinations may be made and, then, a decision as to choice of lav? may be rendered. None of the cases which the parties have cited truly clarifies the distinction between personal jurisdiction and choice of law.

In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), it was urged that, because the settlor and most of the appointees and beneficiaries of a revocable deed of trust made in Delaware were domiciled in Florida, and, because the settlor executed in Florida the power of attorney, that the State courts of Florida should have been able to have exercised personal jurisdiction over the nonresident trustees. The Court held that, under Florida law,

the trustee is an indispensable party over whom the court must acquire jurisdiction before it is empowered to enter judgment in a proceeding affecting the validity of a trust. It does not acquire that jurisdiction by being the “center of gravity” of the controversy, or the most convenient location for litigation. The issue is jurisdiction not choice for law.

Id. at 254, 78 S.Ct. at 1240. This clearly separates the question of personal jurisdiction from that of choice of law.

Accordingly, Plaintiffs have not articulated sufficient acts committed by Defendants which would allow this Court to exercise jurisdiction over the Defendants without violating the standard of “traditional motions of fair play and substantial justice”, as articulated by the Supreme Court in International Shoe, supra.

The complaint is, therefore, dismissed as to both defendants for lack of personal jurisdiction. The Court will enter a separate order.


author: ROBERT L. CARTER, District Judge.

text:
    UNITED STATES of America, v. Thomas J. CIAMBRONE, Jr., Jerry A. Chambrone, and Joseph Vincent Riggio, Jr.,
    No. SS 83 Cr. 716 (RLC).
    United States District Court, S.D. New York.
    Dec. 5, 1984.

      Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for the United States of America; Anne C. Ryan, Asst. U.S. Atty., New York City, of counsel.
    Stillman, Friedman & Shaw, P.C., New York City, for defendant Thomas J. Ciambrone, Jr.; Charles A. Stillman, Daniel E. Casagrande, Mary C. Kennedy, New York City, of counsel.
   OPINION

ROBERT L. CARTER, District Judge.

On April 16,1984, a jury convicted Thomas Ciambrone, Jr. and Jerry Chambrone of conspiracy and various counts of racketeering. 18 U.S.C. §§ 1951 and 1952. The government has moved for an order of restitution pursuant to the Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 3579 and 3580 (“the Act”), which requires the court, as part of the sentence of each defendant, to order that he make restitution to each victim. If the court does not order restitution, it must state on the record its reasons for not doing so. Both defendants oppose the government’s motion on the grounds that the Act violates the 5th, 7th and 8th amendments of the Constitution.

At the time defendants filed their memoranda challenging the Act’s validity, only one court had considered directly this constitutional ■ challenge. United States v. Welden, 568 F.Supp. 516 (N.D.Ala.1983), held that the Act violated the 7th, 5th and 14th amendments. Since the submission of this matter to the court, however, Welden has been reversed, sub nom. United States v. Satterfield, 743 F.2d 827 (11th Cir.1984), and the Second Circuit has handed down United States v. Brown, 744 F.2d 905 (2d Cir.1984) giving “unqualified approval to Congress’ determination that victim restitution should be added to the sentencing options of federal judges.” Id. at 912. Following the two circuit court decisions, the court finds that the Act’s imperfections do not rise to the level of constitutional transgressions.

Nevertheless, for the reasons set out in the second portion of this opinion, an order of restitution will not issue on the present record before the court. Consistent with the provisions of the Act, the court finds a hearing is required on material questions of fact raised by defendants. The issues to be addressed at the hearing are defined below.

Constitutional Challenge

Due Process

Defendants attack the Act’s failure to detail the procedures to be followed in making an order of restitution. They maintain that the Act’s vague provisions “open a Pandora’s box of constitutional and practical problems in applying the statute,” echoing the sweeping attack leveled by the district court in Welden. The Welden district court criticized Congress for granting “too much discretion to the courts and to the Attorney General ... creatpng] a potential Frankenstein.” 568 F.Supp. at 534. Because, the court found, the restitution order was res judicata and collectible as other civil judgments, procedural safeguards additional to those recognized in §§ 3579 and 3580 were necessary. Unlike 18 U.S.C. § 3651, which allows restitution as a condition of probation, Judge Acker concluded that these sections were not “fair” or “reasonable” in authorizing a civil judgment against a person on the hearsay testimony of a witness without any discovery and without cross-examination. Id. at 535.

Defendants also press the equal protection argument raised by the Welden district court. The court found that there was a high probability that disparate results would obtain from the application of §§ 3579 and 3580. 568 F.Supp. at 535. Specifically, defendants fault the Act for failing to specify the relative importance of the factors to be considered in determining whether to order restitution, and for failing to provide for the apportionment of restitution among defendants based on their relative culpability.

As a general comment, there is no doubt that §§ 3579 and 3580 are not among the more well-crafted bits of legislation to issue forth in recent years. Speed rather than care in construction seemed the Congress’ dominant concern in passing the Act; President Reagan signed the Act into law on October 12, 1982, less than two months after it left Committee in the Senate. But, in evaluating the charges that too many-discretionary loopholes were left in the Act, as well as defendants’ other constitutional attacks, the court must examine whether the Act can be construed so as to pass constitutional muster. See Village of Hoffman Estate v. Flipside, Hoffman Estate, 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 1191 n. 5, 71 L.Ed.2d 362 (1982) citing Steffel v. Thompson, 415 U.S. 454, 474, 94 S.Ct. 1209, 1223, 39 L.Ed.2d 505 (1974) (law is facially unconstitutional only if incapable of valid application); International Ass’n of Machinists v. Street, 367 U.S. 740, 749, 81 S.Ct. 1784, 1789, 6 L.Ed.2d 1141 (1961) (federal statutes are to be so construed as to avoid serious doubt of their constitutionality). There are enough limiting provisions in the Act which place it within constitutional bounds, especially if these are considered in light of the Act’s legislative history and judicial constructions of 18 U.S.C. § 3651.

The Act does not leave a void with respect to procedural guidelines for ordering restitution. Although the Act may be characterized as “procedurally conservative,” it clearly directs the court to follow certain steps in deciding the propriety and amount of a restitution order. Section 3580(a) prescribes that “the court ... shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.” The section need not provide detailed guidance as to the relative importance of each factor. All forms of sentencing require the court to take account of a variety of considerations about the defendant, including his background and financial situation without attaching specific weight to each piece of information. The factors listed in the Act adequately define parameters of uniformity without infringing upon the individualized nature of the sentencing process. See Roberts v. United States, 445 U.S. 552, 556, 100 S.Ct. 1358, 1362, 63 L.Ed.2d 622 (1980). As the government points out, it is the invidious exercise of discretion against which the court must guard, not the exercise of discretion per se. United States v. Batchelder, 442 U.S. 114, 124-25, n. 9, 99 S.Ct. 2198, 2204-05, n. 9, 60 L.Ed.2d 755 (1979).

Moreover, the Act provides a check on the accuracy of the material presented to the court. See Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). The court must, pursuant to § 3580(c), disclose to both the defendant and the government all portions of the presentence or other report pertaining to the background factors described above. The defendant, as well as the government, thus are afforded the opportunity to refute or supplement the information on which the court will rely in making a restitution determination. In addition, Rule 32(a)(1)(C), F.R.Cr.P. gives the defendant the opportunity “to make a statement in his own behalf and to present any information in mitigation of punishment.” See Satterfield, supra, 743 F.2d at 839-41.

The Act also addresses the standard and burdens of proof in a determination of restitution. § 3580(d). The Act provides that the burden of proving, by a preponderance of the evidence, the amount of loss sustained by the victim is on the government, while the burden of demonstrating, by the same standard, the financial resources of the defendant rests with the defendant. This distribution accords with general notions of justice. The burden is placed on the proponent of a motion, see United States v. Veon, 538 F.Supp. 237, 245-46 (E.D.Cal.1982), and on the party to whom pertinent information is much more readily available. See Communist Party of United States v. United States, 331 F.2d 807 (D.C.Cir.1963). It would not seem difficult for the court to assign similarly the burden of proof on other issues that might arise, as the Act provides, § 3580(d), and, therefore, it is not fatal that the Act does not spell out all possible allocations.

The Act’s so-called “res judicata ” provision does not persuade the court that a full-scale trial, with attendant formal evidentiary and discovery rules is needed. The Act provides that “[a] conviction of a defendant for an offense involving the act giving rise to restitution ... shall estop the defendant from denying the essential allegations of that offense in any subsequent Federal civil proceeding or State civil proceeding ... brought by the victim.” § 3580(e). The Committee’s stated intention in enacting this provision was to “obviate a victim’s need to establish a defendant’s liability in a civil suit for punitive and/or compensatory damages.” S.Rep. No. 532, 97th Cong., 2 Sess. 32, reprinted in 1982 U.S.Code Cong, and Ad.News, p. 2515, 2538. Thus, the Act emphasized the effect to be given to the conviction underlying the restitution order, but it did not, as Judge Acker, the District Judge in Welden implied, give additional effect to the restitution order itself. Satterfield, supra, 743 F.2d at 838.

In any event, the provision was not a necessary step in achieving the Committee’s goal. Criminal convictions operate as collateral estoppel in favor of a plaintiff in a civil suit against the same defendants. United States v. Podell, 572 F.2d 31, 35 (2d Cir.1978). The impact of this provision does not, therefore, escalate the process due in restitution determinations.

The Act’s standards are also sufficient to assure that defendants’ equal protection rights will not be infringed even though it does not specifically direct the apportionment of restitution among multiple defendants. See Williams v. Illinois, 399 U.S. 235, 243, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586 (1970) (disparate sentencing of two persons convicted of the same crime does not necessarily violate equal protection); United States v. Wyzynski, 581 F.Supp. 1550, 1551 (E.D.Pa.1984) (“appropriate restitution does not involve a comparison between [defendants] and their relative culpability, but involves the law’s policy, as recently stated by Congress, ‘to ensure that the Federal Government does all that is possible within limits of available resources to assist victims’ of crime”) (citations omitted). Section 3580(a) sets out the factors a court is to take into account in fixing an appropriate amount of restitution. When a court properly exercises its discretion within the parameters set by § 3580(a), there is no violation of equal protection. Satterfield, supra, 743 F.2d at 841-42. In suni, the Act incorporates sufficient procedural protections to avoid infringing a defendant’s due process or equal protection rights, and the court finds it neither unfair nor unreasonable. United States v. Brown, supra.

Right to trial by jury

Defendants argue, again tracking Judge Acker’s opinion, that the Act violates defendants’ seventh amendment rights by denying defendants the opportunity for a jury trial. They maintain that a restitution order is indistinguishable from a civil judgment, to which the right to trial by jury attaches where the value in controversy exceeds twenty dollars, as it does here. The court cannot agree.

It is clear that Congress intended victim restitution to be a criminal, not a civil penalty. The Act considers restitution part of the defendant’s “sentencing” — a feature of criminal, not civil proceedings. Under § 3580(a), the sentencing court can order restitution only after taking into account the financial resources of the defendant, his earning ability and the financial needs of his dependents — considerations generally not relevant to the amount of damages awarded in a civil case. The legislative history also reflects Congress’ intent that restitution be a criminal penalty. For example, while Congress was considering the Act, Rep. McCollum noted that under the Act “[restitution would become a sentence that could, in and of itself, be imposed.... This legislation does not intend that restitution become a substitute for civil damages....” 128 Cong.Rec. H8467 (daily ed. Oct. 1, 1982). Satterfield, supra, 743 F.2d at 836-37. There is no constitutional requirement that a jury determine any aspect of a criminal penalty. United States v. Brown, supra at 908.

It is true that a restitution order has some of the characteristics of a civil judgment — it is compensatory, and enforceable at civil law. However, “these characteristics do not transform a criminal sentence into a civil adjudication requiring fact-finding by a jury.” Id. Though restitution may serve some of the same functions of a civil judgment, it also achieves the traditional purposes of punishment — it can deter potential offenders, serves society’s legitimate interest in peaceful retribution, and can be a useful step toward rehabilitation. Jo long as the restitution provision is a Jirmissible form of punishment, it is not Iftject to civil requirements simply bejBise it also achieves some of the purposes «a civil judgment.” Id. at 909-10.

Moreover, restitution has been imposed as a condition of probation under 18 U.S.C. 113651 in scores of cases in recognition of tMfact that it is an integral part of a criminal case—part of the sentencing court’s discretion — not a separate civil proceeding. See, e.g., Fiore v. United States, 696 F.2d 205 (2d Cir.1982) and cases cited therein; United States v. Berger, 145 F.2d 888 (2d Cir.1944), cert. denied, 324 U.S. 848, 65 S.Ct. 685, 89 L.Ed. 1408 (1945). Sections 3579 and 3580 granting the court authority to order a convicted defendant to make restitution independent of whether the defendant is placed on probation do not transform restitution into a civil judgment.

Nor does the availability under § 3579(h) of a civil mechanism to enforce a restitution order transform the criminal sentencing hearing into a civil trial to which the right to a jury would apply. This enforcement provision was enacted to “increase [ ] the victim’s chances of collecting restitution,” S.Rep. No. 532, 97th Cong., 2d Sess. 32, reprinted in 1982 U.S.Code Cong. and Ad.News 2515, 2539, and parallels existing law for the collection of fines by the government. 18 U.S.C. § 3565 (fine “may be enforced by execution against the property of the defendant in like manner as judgments in civil cases”). The act “merely extends this right to the victims themselves.” Satterfield, supra, 743 F.2d at 838-39. See also United States v. Brown, supra at 910-11.

Cruel and Unusual Punishment

Finally, defendants argue that because the Act authorizes revocation of probation or parole if restitution obligations are not met, 18 U.S.C. § 3579(g), they face the prospect of being imprisoned for failure to pay a debt in violation of the eighth amendment’s prohibition against cruel and unusual punishment. Before this sanction may be imposed, however, certain factors must be taken into account. Specified for consideration are defendants’ “employment status, earning ability, financial resources, the willfulness of the defendant’s failure to pay, and any other special circumstances that may have a bearing on the defendant’s ability to pay.” Id. Defendants submit that the recitation of these “vague factors” are, nevertheless, insufficient to avoid the Act’s collision with the Supreme Court’s proscriptions in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). The Court held there that a state defendant’s probation could not be revoked for failure to pay a fine in the absence of a determination by the court that he had not made “bona fide efforts” to pay, or that adequate alternative forms of punishment did not exist to meet the state’s interest in punishment and deterrence. Id. at 2074. While Congress obviously failed to anticipate the precise langauge of the Bearden opinion, it came sufficiently close to avoid a constitutional problem on eighth amendment grounds.

Congress clearly provided that matters surrounding a defendant’s ability to pay the amount due, as well as in particular the defendant’s willfulness in not paying that amount, play important roles in a court’s decision as to whether defendant’s probation or parole should be revoked. It is difficult to imagine that a court’s consideration of these factors would exclude the bona fides of the defendant’s efforts to meet his or .her restitution obligations. Moreover, the Act’s list of factors relevant to the revocation decision is not exclusive and, in light of the Bearden decision, it is apparent that courts should consider, prior to imposing a prison sentence for failure to comply with a restitution order, whether alternative forms of punishment are available. As even Judge Acker concluded, it is possible to construe the Act so that it passes muster under the 8th amendment. United States v. Welden, supra, 568 F.Supp. at 533.

Defendants’ constitutional challenges are rejected and the court finds the Act constitutional.

Factual Questions on the Amount of Restitution

Despite the court’s finding that the Act withstands constitutional scrutiny, it is not possible to decide at this point what amount, if any, defendants should be required to pay. Defendants have come forward with substantial factual questions as to whether the “losses” claimed by Computer Sciences Corporation (“CSC”) are to be considered losses “sustained by ... [a] victim as a result of the offense,” 18 U.S.C. § 3580(a).

The government claims that CSC suffered damages in the amount of $157,-970.09. A substantial portion of that figure is attributed to payment of security (investigative and surveillance) personnel and purchase of security equipment ($132,-371.25). The remainder is catalogued as expenditures in relocating Brison Weeks, a CSC employee whose car was fire-bombed, (including travel and out-of-pocket expenses) and for payment (business/travel and out-of-pocket expenses) of Fred Matsuyama, the CSC supervisor assigned to the White Plains Data Center to coordinate and control the security and legal problems which allegedly arose in June and July of 1983. The affidavit of Matsuyama states that all of the expenses “were incurred as a direct result of the firebombing of Weeks’ car in an effort to protect CSC employees from any further violence and to prevent any additional incidents of CSC premises.” (Aff. at ¶ 9).

Defendants suggest, however, that CSC’s hiring of security personnel stemmed from CSC’s desire to find reasons to terminate its contract with T.J. Associates, Ciambrone’s firm, citing a confidential report to CSC which indicated that one reason Burns International Security Services, Inc., and investigative agency, was hired by CSC was “to disclose reasons for CSC to terminate T.J. Associates contract with cause.” (Exhibit A, defendants’ memorandum). Moreover, defendants allege that Weeks would have been relocated in any event since CSC was planning to and did eventually sell its White Plains division to another company in the fall of 1983. Finally, defendants argue, the “security” expenditures made by CSC were “wholly voluntary”, which excludes them from the class of damages traditionally included in restitution orders.

The premise behind the Act’s restitution provisions is that measures were required to insure “that the wrongdoer made goods [sic], to the degree possible, the harm he has caused his victim.” S.Rep. No. 532, 97th Cong., 2d Sess. 32, reprinted in 1982 U.S.Code Cong. and Ad.News, 2515, 2536. Congress provided that, in the case of property loss, the property be returned or the value of the property be repaid. 18 U.S.C. § 3579(b)(1)(A), (B). Members of Congress indicated in discussion that restitution was to be limited to the victim’s readily identifiable expenses, not to damages which are difficult to calculate. 128 Cong.Rec. H8207 (daily éd. Sept. 30, 1982) (statement of Rep. McCollum). The order of restitution was to be “as fair as possible to the victim,” but restitution was not intended to unduly complicate the sentencing process. 18 U.S.C. § 3579(d).

Despite the Congress’ victim-orientation in passing the Act, it did not contemplate that all possible financial consequences of a defendant’s acts would be covered by a restitution order. Causal connections are not always neatly drawn, but it seems apparent from the Act’s mandates that the government must show that the expenses claimed resulted directly from defendants’ actions. Cf. United States v. Tiler, 602 F.2d 30 (2d Cir.1979) (restitution may be ordered as a condition of probation only for actual damages flowing from specific crime charged of which defendant is convicted). As a practical matter, to the extent that CSC’s expenditures relate more to independent and pre-existing business concerns, and less to safety and security measures necessitated by the firebombing incident, the appropriateness of a restitution award, and its amount, are proportionately diminished.

The court does not find it possible to determine, from the itemized lists submitted by the government on CSC’s behalf, whether the expenses claimed by CSC are within the scope of a restitution order pursuant to the Act. Moreover, as defendants assert, such factual questions cannot be decided fairly without a hearing in which the court can explore more fully the purpose and character of CSC’s reported costs. The risk of error in not holding such a hearing, which, despite its informal nature, affords defendants the opportunity to confront the government directly, is greater than whatever burden the hearing may impose. See Note, Victim Restitution in the Criminal Process: A Procedural Analysis, supra n. 3, 97 Harv.L.R. at 945-56. The parties are, of course, bound to proceed with great deference to the statute’s admonition against allowing restitution to inject unwarranted complexity into the sentencing process. 18 U.S.C. § 3579(d).

The court also finds that a hearing is necessitated by defendants’ contentions that their financial resources do not reasonably permit them to make the requested restitution payments. The government contests the financial information which they have submitted. The court is again unable to resolve this dispute on the papers presented and is again moved by due process considerations to order a hearing on the issue.

Conclusion

At such a hearing to be scheduled at a time permitted by the court’s calendar and the convenience of counsel, the government must come forward with evidence on the nature of CSC’s expenditures demonstrating that they resulted from the actions for which defendants were convicted. The burden of proof is on defendants to show their inability to meet any additional financial obligations, but because the government contests the information presented to the court by defendants, it must be prepared at the hearing to elaborate the basis on which it challenges reports of defendants’ financial status.

It should be added parenthetically that the court realizes that the parties desired to submit the matter to court on papers without resort to a hearing. The matter was accepted by the court on that basis. However, after full consideration of the documents and memoranda presented by the parties, the court does not feel competent to make a fair and rational determination of the matter without a hearing.

IT IS SO ORDERED.

      . See Note, Restitution in the Criminal Process: Procedures for Fixing the Offender’s Liability, 93 Yale L.J. 505, 505 n. 2 (1984).

      . Note, supra note 1, at 508 n. 13 (act requires that basic principles of victim-oriented restitution be served without “unduly complicat[ing] or prolonging] the sentencing.” 18 U.S.C. § 3579(d) (1982)). See also S.Rep. No. 532, 97th Cong., 2d Sess. 31 reprinted in 1982 U.S.Code Cong. & Ad.News, 2515, 2537.

      . See Note, Victim Restitution in the Criminal Process: A Procedural Analysis, 97 Harv.L.Rev. 931, 942 (1984).

      . Although the Act does not mandate that a hearing be held, a hearing is entirely consistent with the Act's provisions, see 18 U.S.C. § 3580(d) and Note, supra, note 3, at 945.

      . The court does not attach significance to the statute’s wording which places the burden on “the attorney for the government," 18 U.S.C. § 3580(d).

      . In describing the problems of current law, the Committee wrote,
      Crime victims and their advocates have called on state legislators to restore restitution to its proper place in the criminal law. They point out that the average dollar losses victims suffer total hundreds of dollars, not thousands, and that most ex-offenders, not just those on probation, have some means to undo the financial harm they have done. There is no reason to believe that victims of federal crimes do not have the same grievances.
      S.Rep. No. 532, 97th Cong., 2d Sess. 30 reprinted in 1982 U.S.Code Cong. & Ad.News 2515, 2536.

      . It is clear that the expenses claimed by Donald Miller, whose house was firebombed, are damages flowing from defendants’ acts.


text:
    Leslie LEWIS, Plaintiff, v. Charles C. SAVA, District Director, Immigration and Naturalization Service, New York District, Defendant.
    No. 83 Civ. 8397 (RLC).
    United States District Court, S.D. New York.
    Dec. 12, 1984.
    James M. Hartmann, New York City, for plaintiff.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendant; Thomas E. Moseley, Sp. Asst. U.S. Atty., New York City, of counsel.
   OPINION

ROBERT L. CARTER, District Judge.

Plaintiff Leslie Lewis is an 81-year old citizen of Barbados. In September, 1954, he entered the United States as a tourist and did not leave when his visa expired. Deportation proceedings were commenced against him in March, 1983, and a hearing was held on April 15, 1983. At the hearing, Lewis conceded his deportability, but applied for suspension of deportation pursuant to § 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1). The immigration judge granted Lewis’ application, and the Immigration and Naturalization Service did not appeal the case to the Board of Immigration Appeals, making the immigration judge’s decision the final order of the Attorney General. 8 C.F.R. § 242.-20.

Under § 244(c)(1) of the Act, 8 U.S.C. § 1254(c)(1), the Attorney General is required to report his suspension of deportation to Congress. Section 244(c)(2), 8 U.S.C. § 1254(c)(2), provides that either House of Congress may veto the Attorney General’s decision not to deport during the session of Congress at which the suspension is reported or during the following session. If neither House vetoes the Attorney General’s decision during the two-session “report and wait” period, the suspension of deportation becomes final as of the end of the second Congressional session. The Attorney General is to record the alien’s lawful admission for permanent residence as of the date of final cancellation of deportation. § 244(d), 8 U.S.C. § 1254(d).

On June 23, 1983, before these statutory requirements were completed in Lewis’ case, the Supreme Court declared the one-House legislative veto provision in § 244(c)(2) unconstitutional. Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Lewis now contends that Chadha also struck down the two-session “report and wait” requirement in § 244(c)(2), and that the Attorney General should immediately record Lewis’ status as a permanent resident. The government contends that Chadha left the “report and wait” provision in § 244(c)(2) intact, and that the Attorney General cannot yet record permanent resident status for Lewis. The plaintiff has moved for summary judgment, and the government has cross-moved for dismissal of the complaint or, alternatively, summary judgment.

In Chadha, the Supreme Court expressly stated that the “report and wait” period survived the excision of the one-House veto provision, and that even without the one-House veto clause, suspension of an alien’s deportation is not to be considered final until after the two Congressional sessions have elapsed. Chadha, supra, 103 S.Ct. at 2776. The plaintiff argues, however, that this statement by the Court is dicta, and therefore should not control in this case. The government responds that the statement is not dicta and is dispositive here.

This court need not decide whether the statement in Chadha is dicta. Even if it is, in the absence of any clear authority to the contrary, the court is obliged to follow it. United States v. Kahn, 251 F.Supp. 702, 708 (S.D.N.Y.1966) (McLean, J.). See also United States v. Bell, 524 F.2d 202, 206 (2d Cir.1975) (Supreme Court dicta “must be given considerable weight and can not be ignored in the resolution of ... close question^]....”). The most that can be said is that the Court has not definitively upheld the “report and wait” provision. It is certainly incorrect to say, however, that Chadha struck down that requirement. If the Court had meant to strike down the “report and wait” language, it would not have stated, even in dicta, that the provision survives the finding that the one-House veto is unconstitutional.

Chadha did not intend, as plaintiff argues, to end Congressional oversight of the Attorney General’s actions in immigration proceedings. Rather, the Court meant to excise the one narrow provision in the Act that offended the Constitution — the one-House veto—and to leave the rest of the Act in place. Chadha, supra at 2774-76. Without the one-House veto, the Court said, § 244 resembles the “report and wait” provision approved in Sibbach v. Wilson, 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941). In Sibbach, a statute, 48 Stat. 1064, 28 U.S.C. § 723 (1934) (prior to repeal), gave Congress one session to review the newly promulgated Federal Rules of Civil Procedure, and to pass legislation barring their effectiveness if the Rules were found objectionable. Chadha, supra, 103 S.Ct. at 2776 n. 9. Similarly, § 244 now gives Congress two sessions to review the Attorney General’s decision to suspend deportation, and to pass legislation requiring the Attorney General to deport the alien if suspension is found objectionable.

Plaintiff counters that, unlike Sibbach, any legislation Congress conceivably might pass in this case during the “report and wait” period to overrule the Attorney General would’ be unconstitutional and void as a violation of due process or as a bill of attainder. Consequently, plaintiff argues, the “report and wait” period no longer serves any function, and should be considered inoperative. The Supreme Court raised the question of the constitutionality of legislation that Congress might pass during the “report and wait” period, but expressly refused to rule on it. Chadha, supra, 103 S.Ct. at 2776 n. 8, 2785 n. 17. Likewise, this court declines to decide the constitutionality of hypothetical actions that Congress might or might not take at some future date. Federal courts do not render advisory opinions. E.g. Princeton University v. Schmid, 455 U.S. 100, 102, 102 S.Ct. 867, 868, 70 L.Ed.2d 855 (1982). Consequently, the “report and wait” provision remains in force.

[50 In short, plaintiff has provided no convincing authority to support his contention that the “report and wait” provision in § 244(c)(2) has been or should be struck down. Accordingly, plaintiff’s motion for summary judgment is denied, and defendant’s motion is granted.

IT IS SO ORDERED.

      . Section 244(c)(1) provides:
      Upon application by any alien who is found by the Attorney General to meet the requirements of subsection (a) of this section the Attorney General may in his discretion suspend deportation of such alien. If the deportation of any alien is suspended under the provisions of this subsection, a complete and detailed statement of the facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such suspension. Such reports shall be submitted on the first day of each calendar month in which Congress is in session.

      . Section 244(c)(2) provides:
      In the case of an alien specified in paragraph (1) of subsection (a) of this section— if during the session of the Congress at which a case is reported, or prior to the close of the session of the Congress next following the session at which a case is reported, either the Senate or the House of Representatives passes a resolution stating in substance that it does not favor the suspension of such deportation, the Attorney General shall thereupon deport such alien or authorize the alien’s voluntary departure at his own expense under the order of deportation in the manner provided by law. If, within the time above specified, neither the Senate nor the House of Representatives shall pass such a resolution, the Attorney General shall cancel deportation proceedings.

      . The court stated:
      "There can be no doubt that § 244 is 'fully operative' and workable administrative machinery without the veto provision in § 244(c)(2). Entirely independent of the one-House veto, the administrative process enacted by Congress authorizes the Attorney General to suspend an alien’s deportation under § 244(a). Congress' oversight of this delegated authority is preserved since all such suspensions will continue to be reported to it under § 244(c)(1). Absent the passage of a bill to the contrary, deportation proceedings will be cancelled when the period specified in § 244(c)(2) has expired. Clearly, § 244 survived as a workable administrative mechanism without the one-House veto.” Chadha, supra, 103 S.Ct. at 2775-76 (footnotes omitted).


text:
    Patrick C. LOVETRO, Plaintiff, v. UNITED STATES of America, Trinidad Corporation & Captain John Mangas, Defendants.
    No. 83 Civ. 6206 (RLC).
    United States District Court, S.D. New York.
    Dec. 12, 1984.
    Phillips & Cappiello, P.C., Attorney for Plaintiff, New York City, for plaintiff; Edward M. Katz, New York City, of counsel.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Rudolph W. Giuliani, U.S. Atty. S.D. New York, Janis G. Schulmeisters, Attorney in Charge Torts Branch, Civil Division Attorneys for United States of America. U.S. Dept, of Justice, New York City, for defendants; Marie Louise Hagen, Washington, D.C., of counsel.
   OPINION

ROBERT L. CARTER, District Judge.

On February 4, 1983, while serving as a crewman aboard the USNS Neches in Diego Garcia, plaintiff Patrick Lovetro was found to be unfit for duty because he lost his glasses. He was repatriated, and $1,100 was withheld from his wages.

The USNS Neches was a public vessel owned by the United States and operated under contract by defendant Trinidad Corporation. Defendant John Mangas was master of the ship. Plaintiff has sued the United States, Trinidad Corporation, and Mangas to recover the $1,100 which he claims was wrongfully withheld and to obtain pursuant to 46 U.S.C. § 596, double wages for each day that amount was withheld.

Defendants claim that plaintiff was paid the $1,100 in November, 1983, but plaintiff has not acknowledged the payment and is, apparently, still seeking to recover that sum in addition to the double-wage penalty. (Plaintiff’s Affidavit in Opposition to Defendants’ Motion to Dismiss at 2). Plaintiff’s claim against the United States was voluntarily withdrawn on December 7, 1983.

On February 23, 1984, the court denied defendants’ motion for summary judgment pursuant to Rules 12(b)(2), 12(b)(6) and 56, F.R.Civ.P. Defendants now move to dismiss for lack of subject matter jurisdiction. Rule 12(b)(1), F.R.Civ.P.

Claims against the United States and its agents arising out of the operation of a public vessel are subject to the Suits in Admiralty Act, 46 U.S.C. §§ 741-752. Pursuant to that Act, § 742 to be precise, the United States waives its sovereign immunity. Section 745 states that the remedy under the Act shall be exclusive against the agent or employee of the United States. Defendants argue that § 742’s waiver of sovereign immunity provides a remedy against the United States, and that they, as agents of the United States, are therefore immune from suit under § 745. Consequently, they assert, the court does not have subject matter jurisdiction. See United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941) (“The United States, as sovereign, is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit”).

Plaintiff contends that the immunity granted to agents of the federal government by § 745 should not extend to actions such as this one under § 596. Such immunity, they argue, would frustrate the purpose of § 596 by enabling masters and other agents of the United States wrongfully to withhold seamen’s earned wages with impunity.

Cabales v. United States, 300 F.Supp. 1323 (S.D.N.Y.1968) (Ryan, J.), aff'd, 412 F.2d 1187 (2d Cir.1969), is directly on point. In Cabales, the plaintiff, a seaman, sued the United States as shipowner and a private steamship company acting as agent of the United States in husbanding the ship, for wages withheld and for the double-wage penalty under § 596. This court held that § 745 confers immunity on agents of the United States, even in claims brought under § 596. That decision was affirmed on appeal and remains the law of this circuit.

Plaintiff argues that defendant Trinidad Corporation should not be considered an agent of the United States under § 745, but rather owner pro hac vice of the USNS Neches, and, as such, liable under § 596 in its own right. Whether Trinidad Corporation was an agent or an owner pro hac vice is irrelevant under § 745, however, since “in the Congressional view the general statement of an agency concept as enacted included any instrumentality through and by which public vessels were operated.” Petition of the United States (USNS Mission San Francisco), 367 F.2d 505, 510 (3d Cir.1966), cert. denied, 386 U.S. 932, 87 S.Ct. 953, 17 L.Ed.2d 805 (1967), reh. denied, 386 U.S. 1000, 87 S.Ct. 1303, 18 L.Ed.2d 354 (1967). “Whether the agreement constituted [defendant] a charterer, an owner pro hac vice or an independent contractor is merely an academic ascertainment. In any of these capacities [defendant] could still be an agent. An owner pro hac vice is a charterer, and its competency to act as an operating agent has been expressly recognized.” Smith v. United States, 346 F.2d 449, 453 (4th Cir.), cert. denied, 382 U.S. 878, 86 S.Ct. 163, 15 L.Ed.2d 119 (1965). See also Lopez v. Trinidad Corporation, No. 82-1215, slip, op. (E.D. Pa. Aug. 25, 1982). Thus even if Trinidad Corporation were held to be an owner pro hac vice, it would be immune as an agent and the court would not have subject matter jurisdiction.

Trinidad Corporation and Mangas as agents of the United States are immune from suit for claims brought under § 596. Accordingly, defendants’ motion to dismiss is granted.

IT IS SO ORDERED.

      . Section 596 was repealed on August 19, 1983, and the relevant provisions may now be found, in substance, at 46 U.S.C. §§ 10313(f)(g) and 10504(b)(c). Since the cause of action accrued before § 596 was repealed, § 596 still governs the case. 1 U.S.C. § 109; United States Gypsum Co. v. Uhlhorn, 232 F.Supp. 994 (E.D.Ark.1964), aff’d, 366 F.2d 211 (8th Cir.1966), cert. denied, 385 U.S. 1026, 87 S.Ct. 753, 17 L.Ed.2d 674 (1967).

      . Section 745 provides:
      [W]here a remedy is provided by this chapter it shall hereafter be exclusive of any other action by reason of the same subject matter against the agent or employee of the United States or of any incorporated or unincorporated agency thereof whose act or omission gave rise to the claim...


author: SCHNACKE, District Judge.

text:
    David CONFORTI, Plaintiff, v. Margaret HECKLER, Defendant.
    No. C-81-1397 RHS.
    United States District Court, N.D. California.
    Dec. 12, 1984.
    Kim Malcheski, Malcheski, Parker & Randolph, San Francisco, Cal., for plaintiff.
    Jeffrey L. Bornstein, Asst. U.S. Atty., Dept, of Justice, San Francisco, Cal., for defendant.
   ORDER

SCHNACKE, District Judge.

Under submission in this civil action are certain motions by plaintiff. The complaint challenges defendant Secretary of Health and Human Services’ denial, through the Social Security Administration (hereinafter, “SSA”), of plaintiff’s claim for Social Security disability benefits. The explanation for that denial is contained in the October 1980 written opinion of an Administrative Law Judge (hereinafter, “AU”), which opinion was issued after an August 1980 hearing before the AU.

On April 3,1981, the complaint was filed. On May 4, 1982, this Court issued an order: (a) denying the parties’ motions for summary judgment; and (b) granting plaintiff’s motion to remand this action to defendant’s SSA. On January 31, 1984, the SSA’s Appeals Council issued a written opinion determining that plaintiff is entitled to Social Security disability benefits.

On May 31, 1984, plaintiff filed motions: (a) to require defendant to file the post-remand record or, alternatively, for entry of judgment; and (b) for attorney’s fees and other expenses.

On August 2, 1984: (a) this Court issued an order giving defendant until August 3, 1984 to file a brief opposing plaintiff’s motions; and (b) defendant filed a brief opposing plaintiff’s motion for attorney’s fees and other expenses.

On Friday, November 30,1984, there was entered a judgment: (a) reversing, in accordance with the Appeals Council’s opinion, defendant’s denial of plaintiff’s claim for Social Security disability benefits; and (b) indicating that plaintiff’s motion for attorney’s fees and other expenses will be the subject of a separate order.

In view of the entry of judgment, this Court hereby denies plaintiff’s motions: (a) to require defendant to file the post-remand record; and (b) for entry of judgment.

Plaintiff’s motion for attorney’s fees and other expenses is made pursuant to the Equal Access to Justice Act (hereinafter, “EAJA”). Because an EAJA motion is to be made after entry of judgment [see 28 U.S.C. § 2412(d) ], this Court hereby deems the motion for attorney’s fees and other expenses to have been filed Monday, December 3, 1984, the first business day after entry of judgment.

Defendant has not disagreed with the proposition that, in the period since plaintiffs January 22, 1980 myocardial infarction, plaintiff has been unable to perform his past relevant work as a construction carpenter, because of medically-determinable impairments which have lasted, or can be expected to last, for a continuous period of at least 12 months. Thus, defendant has had the burden of showing plaintiffs ability — in view of such factors as plaintiffs mental and physical condition, his age, his education, and his work experience — to engage, in the period since January 22, 1980, in substantial gainful work, other than that of construction carpenter, which exists in the national economy [see 42 U.S.C. § 423(d)(1)-(3); Hall v. HEW Secretary, 602 F.2d 1372, 1375-1377 (9th Cir.1979)].

At all relevant times, the parties have agreed that plaintiff: (a) was born in 1924; (b) has a high-school education; and (c) has skilled or semiskilled work experience. Furthermore, defendant has pointed to no evidence that plaintiffs high-school education provides for direct entry into skilled work. And defendant has not disagreed substantially with the proposition that, in the period since January 22, 1980, plaintiffs medically-determinable impairments have precluded him from performing work that is not light or sedentary.

Defendant’s SSA has published a table containing rules on whether or not someone is disabled, if his medically-determinable impairments are consistent with his performing light, but not more strenuous, work. In view of plaintiff’s aforementioned age, education, and work experience, the only such rules potentially applicable to plaintiff would be 20 C.F.R. Part 404, Sub-part P, Appendix 2, Table 2, Rules 202.06, 202.07. However, Rule 202.07,' which points to a finding of non-disability, is applicable only if plaintiff’s skills are readily transferable to a significant range of semiskilled or skilled light work [20 C.F.R. Part 404, Subpart P, Appendix 2, § 202.00(c); see also 20 C.F.R. Part 404, Subpart P, Appendix 2, § 201.00(f) ].

Defendant’s brief in opposition to the motion for attorney’s fees and other expenses states that, at the hearing before the AD, a “vocational expert testified that plaintiff’s skills were readily transferable to light work.” However, defendant’s brief: (a) does not state that the vocational expert' testified that plaintiff’s skills are readily transferable to a significant range of semiskilled or skilled light work; (b) does not refer at all to the Appeals Council’s statement that the vocational-expert testimony does not establish that plaintiff’s skills are transferable to a significant range of semiskilled or skilled light jobs.

Therefore, defendant has not shown that applying Rule 202.07 is reasonable. That leaves only Rule 202.06, which points to a finding of disability. And while there is vocational-expert testimony as to light or sedentary jobs that plaintiff allegedly could perform, defendant does not explain why it is reasonable for defendant to rely on such testimony to show non-disability, where the proper application of defendant’s own SSA rules table shows plaintiff to be disabled.

In sum, defendant has not shown that a finding of non-disability has a reasonable basis in law and in fact. This Court hereby: (a) declines to find that defendant’s position, which favors a finding of non-disability, has been substantially justified either before or after commencement of this action; (b) declines to find that special circumstances make an award of attorney’s fees and other expenses unjust; and (c) thus rules that plaintiff is entitled to such an award [see 28 U.S.C. § 2412(d)(1)(A); Wolverton v. Heckler, 726 F.2d 580, 583 (9th Cir.1984); Rawlings v. Heckler, 725 F.2d 1192, 1195-1196 (9th Cir.1984) ].

Plaintiff has been somewhat unclear as to the precise amount of attorney’s fees and other expenses being requested. However, on the last page of plaintiff’s brief in reply to defendant’s brief opposing the motion for attorney’s fees and other expenses, plaintiff requests, pursuant to EAJA: (a) $3375 attorney’s fees, which is the product of 45 hours and $75/hour; and (b) $610 other expenses. Defendant has filed a certificate in reply to plaintiffs reply brief. But in neither that certificate nor any other document does defendant deal with the question of how much EAJA relief plaintiff should receive, if plaintiff should receive any EAJA relief at all.

In view of defendant’s failure to address that question, this Court hereby: (a) deems $3375 attorney’s fees and $610 other expenses to be appropriate amounts of EAJA relief for plaintiff; and (b) awards these amounts to plaintiff. Plaintiff need not comply, beyond his past degree of compliance, with U.S.Dist.Ct., N.D.Cal., Local Rule 270. That rule, which deals with applications for attorney’s fees, is not cited in defendant’s papers opposing the motion for attorney’s fees and other expenses.