author: BULLOCK, District Judge.

text:
    Lawrence A. UZZELL and Robert Lane Arrington, Individually, and upon behalf of all others similarly situated, Plaintiffs, and William Gwynne Head, III, and Richard Jeffrey Kania, Individually, and upon behalf of all others similarly situated, Intervening Plaintiffs, and Myra Susan Creed, Katharyn Luanne Holshouser, Jay Allen Kania, Sue Ann Kania, Myra Ann Mandeville, Patricia Dawn McKissick, Michael J. Morris, John Malcolm Overton, Edward B. Munyer, Michael L. Walker, and Timothy E. Walker, Individually, and upon behalf of all others similarly situated, Intervening Plaintiffs, and Donald Lewis Elmore, II, Individually, and upon behalf of all others similarly situated, Intervening Plaintiff, v. William C. FRIDAY, Individually, and as President of the University of North Carolina; Christopher Columbus Fordham, Individually, and as Chancellor of the University of North Carolina at Chapel Hill; Kevin Monroe, President of the Student Body of the University of North Carolina at Chapel Hill; The Board of Trustees of the University of North Carolina at Chapel Hill; and the Board of Governors of the University of North Carolina, Defendants, and Jessie Cureton, Jr., and Greg Cranford, Intervening Defendants, and Kevin Monroe, James J. Exum, Sherrod Banks, and Kevin D. Jones, Intervening Defendants.
    No. C-74-178-D.
    United States District Court, M.D. North Carolina, Durham Division.
    Sept. 27, 1985.

      Richard L. Voorhees, Gastonia, N.C., for plaintiffs and all intervening plaintiffs.
    Elizabeth C. Bunting, Asst. Atty. Gen., Andrew A. Vanore, Jr., Deputy Atty. Gen., Raleigh, N.C., for defendants Friday, Ford-ham, Monroe, Bd. of Trustees, and Bd. of Governors of the University of North Carolina.
    Napoleon Williams, NAACP Legal Defense Fund, New York City, and James C. Fuller, Jr., Raleigh, N.C., for all intervening defendants.
   MEMORANDUM OPINION

BULLOCK, District Judge.

This action was commenced on June 4, 1978, by two students at the University of North Carolina at Chapel Hill (UNC at Chapel Hill) seeking declaratory and injunctive relief against three practices of the student government at that institution: subsidization of a campus organization, the Black Student Movement (BSM), which until after the suit was filed excluded whites from membership; the requirement that up to two minority race students be appointed to the student legislature if a like number of such students was not elected thereto; and the requirement that a student defendant before the honor court be permitted to require that a majority of judges on an individual panel be of his race or sex. These practices were alleged to violate the fourteenth amendment and the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the first practice — funding of the BSM — Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., as well.

Hearing the case on motions, this court per then Chief Judge Eugene A. Gordon granted summary judgment for all Defendants on the grounds that the claim relating to BSM had been mooted by BSM’s admission of whites and that the other claims were nonjusticiable. Uzzell v. Friday, 401 F.Supp. 775 (M.D.N.C.1975). The case subsequently went before the United States Court of Appeals for the Fourth Circuit on four separate occasions and before the Supreme Court of the United States once. See Uzzell v. Friday, 625 F.2d 1117, 1119-20 (opinion of Winter, C.J., for the court), 1121-23 (Widener, J., dissenting) (4th Cir.), cert. denied, 446 U.S. 951, 100 S.Ct. 2917, 64 L.Ed.2d 808 (1980). The court of appeals eventually upheld this court’s ruling that the claim relating to BSM had been mooted but remanded the two remaining claims to this court for trial. Following trial without a jury, this court on August 23, 1984, entered judgment for Plaintiffs on the remaining claims. Uzzell v. Friday, 592 F.Supp. 1502 (M.D.N.C.1984). The case is presently before the court on Plaintiffs’ motion for attorney’s fees pursuant to 42 U.S.C. § 1988, filed January 23, 1985, and related motions as follows: Plaintiffs’ motion to compel discovery regarding attorney’s fees, filed July 11, 1985; intervening Defendants’ motion for an order barring the assessment of fees against them, filed May 31, 1985; and Plaintiffs’ motion to intervene, filed September 21, 1984.

The court finds at the outset that the record is sufficiently complete to permit it to rule on the motion for attorney’s fees. The motion to compel discovery shall accordingly be denied. Although Plaintiffs initially requested a hearing, they have subsequently waived it and the court does not otherwise find one necessary.

The award of attorney’s fees to Plaintiffs’ counsel is clearly authorized in this case under 42 U.S.C. § 1988. That statute empowers a district court to “allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs” in certain civil rights actions, including those to enforce 42 U.S.C. § 1983 and Title VI of the Civil Rights Act of 1964. The court finds here that Plaintiffs are “the prevailing party” with respect to all three of their claims. In the case of the claims challenging the student legislature and honor tribunals, this court granted essentially all the relief Plaintiffs requested. The claim regarding BSM, having been mooted before trial by BSM’s admission of whites, was never the subject of court-ordered relief, but evidence at trial established that the filing of this lawsuit was a substantial factor in BSM’s taking this remedial action. E.g., Williams v. Leatherbury, 672 F.2d 549, 550-51 (5th Cir.1982); McManama v. Lukhard, 464 F.Supp. 38, 41 (W.D.Va.1978), aff'd, 616 F.2d 727 (4th Cir.1980).

The task now becomes to calculate the amount of fees to be awarded Plaintiffs’ counsel. Under precedent of the Fourth Circuit, Anderson v. Morris, 658 F.2d 246 (4th Cir.1981); Barber v. Kimbrell’s, Inc., 577 F.2d 216 (4th Cir.), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978), and more recently of the Supreme Court, Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the determination of the appropriate amount of fees is to be made in light of twelve factors delineated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 716-19 (5th Cir.1974). These factors are: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal service properly; the preclusion of employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the “undesirability” of the case; the nature and length of the professional relationship with the client; and awards in similar cases.

The most useful starting point in consideration of these factors is to calculate the so-called lodestar; it is the product of the number of hours reasonably expended times a reasonable hourly rate set in accordance with prevailing market rates in the relevant community. Blum v. Stenson, 465 U.S. at - - -, 104 S.Ct. at 1546-1547, 79 L.Ed.2d at 899-900; Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939; Anderson v. Morris, 658 F.2d at 249. The lodestar may then be adjusted upward or downward on the basis of factors not subsumed in calculating it, Blum v. Stenson, 465 U.S. at - - -, 104 S.Ct. at 1548-1549, 79 L.Ed.2d at 901-03; Hensley v. Eckerhart, 461 U.S. at 434 & n. 9, 103 S.Ct. at 1940 & n. 9; Anderson v. Morris, 658 F.2d at 249, although the Blum decision teaches that it is a “rare case in which an upward adjustment to the presumptively reasonable fee of rate times hours is appropriate.” Blum v. Stenson, 465 U.S. at - n. 18, 104 S.Ct. at 1550 n. 18, 79 L.Ed.2d at 903 n. 18; see also Murray v. Weinberger, 741 F.2d 1423, 1428 (D.C.Cir.1984). One factor which may justify enhancement is the “results obtained,” Hensley v. Eckerhart, 461 U.S. at 434, 103 S.Ct. at 1940; they will normally, however, be subsumed in the lodestar calculation, Blum v. Stenson, 465 U.S. at -, 104 S.Ct. at 1549, 79 L.Ed.2d at 903. Although the Supreme Court in Blum, 465 U.S. at - n. 17, 104 S.Ct. at 1550 n. 17, 79 L.Ed.2d at 903 n. 17, expressly left open whether the contingency of the fee and thereby the risk of not prevailing may also be the basis of an upward adjustment, the Fourth Circuit as well as other courts of appeals have held since Blum that they can be. Vaughns v. Board of Education of Prince George’s County, 770 F.2d 1244 (4th Cir.1985), aff'g 598 F.Supp. 1262 (D.Md.1984); Murray v. Weinberger, 741 F.2d at 1430-32; Craik v. Minnesota State University Board, 738 F.2d 348, 350-51 (8th Cir.1984). Enhancement of a fee because of its contingent nature is, however, to be reserved for cases presenting “exceptional circumstances.” Vaughns v. Board of Education of Prince George’s County, at 1246 (4th Cir.); see also Blum v. Stenson, 465 U.S. at -, 104 S.Ct. at 1549, 79 L.Ed.2d at 903; Murray v. Weinberger, 741 F.2d at 1428. The burden of supporting a request for fees rests with the claimant. Blum v. Stenson, 465 U.S. at -, 104 S.Ct. at 1548, 79 L.Ed.2d at 901.

In their motion for fees, Plaintiffs seek a fee award totaling $285,756.00. The fee is requested on behalf of the following: Hugh Joseph Beard, Jr., who was counsel of record for Plaintiffs until September 1981 when he began a tour of service with the federal government which continues to the present; Richard L. Voorhees, an attorney who performed services in this case as early as May 1981 and has been counsel of record for Plaintiffs since September 1981; and several attorneys, two law students, and one paralegal who at various times assisted Messrs. Beard and Voorhees. Each of these claims shall be analyzed in turn.

Beard

Beard claims a fee in the total amount of $233,405.00 broken down as follows: for all substantive work (i.e., work not on fee motions, including travel time), 1,161.80 hours at the rate of $100.00 per hour or $116,180.00, multiplied by an upward adjustment factor of 100% for a total of $232,360.00; for work on fee motions, 10.45 hours at the rate of $100.00 per hour or $1,045.00, without any upward adjustment.

In support of his claimed time, Beard relies primarily on a listing of the purported number of hours he expended on this litigation on a daily basis while counsel of record. The court finds that this documentation suffers a serious deficiency: in a substantial portion of the entries, the work performed is described in only general terms. A principal reason is that Beard lacks contemporaneous records for much of the time he claims, and he has had to reconstruct his hours from memory and other ad hoc sources. The absence of detailed documentation precludes the court, as well as opposing counsel, from making “a fair evaluation of the time expended ... [and] the nature and need for the service.” Hensley v. Eckerhart, 461 U.S. at 441, 103 S.Ct. at 1943 (Burger, C.J., concurring). The deficiency has occurred despite Beard’s expressed intention from the commencement of this action to request fees and the long-standing professional responsibility of attorneys to keep detailed fee records. The number of hours claimed by Beard for substantive work shall accordingly be reduced 25% (290.45 hours) to 871.35 hours in order to eliminate the possibility of duplicative or unreasonable time. See Hensley v. Eckerhart, 461 U.S. at 433, 438 n. 13, 103 S.Ct. at 1939, 1942 n. 13; Chrapliwy v. Uniroyal, Inc., 583 F.Supp. 40, 47-48 (N.D.Ind.1983). No separate deduction for travel time shall be made. See Craik v. Minnesota State University Board, 738 F.2d at 350; cf. Sun Publishing Co. v. Mecklenburg News, Inc., 594 F.Supp. 1512, 1520 (E.D.Va.1984) (travel time allowed but at lower than usual hourly rate). In the case of the fee motions, the court finds that the time claimed is reasonable and adequately documented and it shall not be reduced.

The claimed hourly rate of $100.00 represents the estimated current prevailing market rate for the services Beard performed. He has supported this claim with a survey of fees prepared by the North Carolina Bar Association as well as an affidavit by another attorney, which, being conclusory, is of limited value. See National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1325-26 (D.C.Cir.1982). The court’s own knowledge of fees in the relevant area has also been taken into consideration. Vaughns v. Board of Education of Prince George’s County, 598 F.Supp. at 1280.

The court finds the rate is reasonable and it shall be approved. The use of a current, as opposed to historic, rate is appropriate here as a means of compensating Beard for the long delay in payment of his fee and of simplifying fee calculations. Murray v. Weinberger, 741 F.2d at 1433; Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir.1983); Graves v. Barnes, 700 F.2d 220, 224 (5th Cir.1983). Although this rate is somewhat above the average listed in the survey for attorneys in cities the size of Charlotte, North Carolina, where Beard practiced, the higher rate is justified by the novelty and complexity of the issues involved in this case, the skill required, the high quality of work Beard performed, the very successful results obtained, and Beard’s experience. The $100.00 per hour rate is also consistent with awards in other civil rights cases in North Carolina. Other Johnson factors have no relevance to calculation of Beard’s hourly rate, namely: preclusion of other employment, the “undesirability” of the case, time limitations, and his relationship with Plaintiffs. The lodestar figure for Beard’s substantive work is thus $87,135.00 (871.35 hours at $100.00 per hour). The comparable figure for time on fee motions is $1,045.00.

Beard seeks a 100% upward adjustment of the lodestar for his substantive work as compensation for the purported contingent nature of his fee. (No upward adjustment is available for work on the fee motions. Flowers v. Wiley, 675 F.2d 704, 707 (5th Cir.1982); Vulcan Society of Westchester County, Inc. v. Fire Department of White Plains, 533 F.Supp. 1054, 1066 [S.D.N.Y.1982].) In support of this claim he points out that at the time of commencement of the suit Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), had not yet been decided, there was little if any other authority supporting his clients’ position, and the opposing party was a well-financed governmental entity.

The court finds that Beard’s fee was contingent and that he should receive an enhancement for the risk he assumed. As Beard’s contentions suggest, such a risk constitutes an “exceptional circumstance” within the meaning of Vaughns v. Board of Education of Prince George’s County, at 1246 (4th Cir.). It eventually resulted in his expending an average of more than $12,000.00’s worth of time each year over the course of seven years without any assurance of payment. Moreover, he bore the risk alone, except for minimal assistance, having been a sole practitioner at the time. See Richardson v. Restaurant Marketing Associates, Inc., 527 F.Supp. 690, 702 (N.D.Cal.1981). The size of the enhancement sought by Beard is, however, excessive. The court finds that an upward adjustment of 10% or $8,713.50 would be fully compensatory. Adding this figure to Beard’s lodestar, his total fee for substantive work becomes $95,848.50. To this amount must be added the allowance for fee motions ($1,045.00), yielding a total overall fee of $96,893.50.

Although Beard has not requested it, the court has considered but found unwarranted an upward adjustment based on the results obtained. The success he achieved is adequately reflected in the hourly rate allowed.

Voorhees

Voorhees claims a fee in the total amount of $37,384.00 calculated as follows: for all non-trial substantive work 177.2 hours at $80.00 per hour or $14,176.00, multiplied by an upward adjustment factor of 100% for a total of $28,352.00; for all trial work, 24.0 hours at $100.00 per hour of $2,400.00, multiplied by an upward adjustment factor of 100% for a total of $4,800.00; and for work on the instant fee motion, 52.9 hours at $80.00 per hour or $4,232.00, without any upward adjustment.

In support of his claimed hours, Voorhees has submitted detailed contemporaneous records which the court finds to be adequate documentation. The hours claimed for substantive work are reasonable with the exception of 2.7 hours spent by Voorhees in securing admission to the bar of this court. This time shall be disallowed and the total for substantive non-trial work reduced accordingly to 174.5 hours.

The number of hours claimed for the fee petition is high, equaling over one-quarter of the time spent on substantive work. However, in view of the size of the total award, the complexity of several issues presented (e.g., liability of intervening defendants), and the usefulness to the court of the papers Voorhees has submitted the court cannot say that the request is unreasonable and it shall be approved.

In support of his request for hourly rates of $80.00 for non-trial work and $100.00 for trial work, Voorhees has submitted his own affidavit indicating that these are his current rates in federal cases, the North Carolina Bar Association fee survey discussed previously, and conclusory affidavits of two other attorneys, which affidavits again are of limited probative value in the court’s eyes. The court, having also considered its own knowledge of relevant fees, finds these rates reasonable and shall approve them. The use of current rates in lieu of historic rates is appropriate for the same reasons set forth previously with respect to Beard. These rates are above the average cited in the survey for attorneys in communities the size of Voorhees’ (Gastonia) but several considerations justify a higher fee. These are the high quality of work Voorhees performed, the excellent results obtained, the novelty and complexity of the issues presented, and the skill required. Both rates are consistent with fee awards in comparable cases in North Carolina. Johnson factors not relevant to the fee award are Voorhees’ reputation and experience in civil rights cases (no such special reputation or experience was claimed or documented), the “undesirability” of the case, preclusion of other employment, time limitations, and Voorhees’ relationship with his clients. The lodestar figure for Voorhees for all substantive work therefore becomes $16,360.00, calculated as 174.5 hours of non-trial work at $80.00 per hour or $13,960.00 plus 24.0 hours of trial work at $100.00 per hour or $2,400.00. The comparable figure for work on the fee motion is $4,232.00, the amount claimed.

Voorhees claims a 100% upward adjustment of the lodestar for substantive work on the basis of the contingent nature of his fee. The court finds that no such enhancement is warranted. By the time Voorhees entered the litigation the risk of not prevailing was appreciably less than that which Beard initially confronted as a result of, among other factors, the issuance of the Bakke decision and other supportive authority. In addition, the time eventually invested by Voorhees — $4,000.00’s worth a year for four years — was less than a quarter of that expended by Beard. Not an “exceptional circumstance” within the meaning of Vaughns, this level of risk is comparable to that faced in many cases which seek to extend existing legal principles. Voorhees is fully compensated for the risk he assumed by the hourly rate approved.

The total fee for Voorhees’ substantive work thus is equal to the corresponding lodestar. Adding to this figure the amount allowed for the fee motion, the total overall fee is $20,592.00. Upward adjustment of Voorhees’ fee on the basis of the results obtained has been considered by the court and rejected because compensation for this factor is already included in the hourly rate allowed.

Other Attorneys and Legal Assistants

Included in Plaintiffs’ motion is a request for $14,967.00 in fees by persons assisting counsel of record. The following fees are requested for persons assisting Beard: David A. Boone, a law student at the time he performed his services, 5.0 hours at $20.00 per hour or $100.00, multiplied by an upward adjustment factor of 100% for a total fee of $200.00; Robert E. Morey, an attorney at all times relevant to this litigation, 4.2 hours at $80.00 per hour or $336.00, multiplied by an upward adjustment factor of 100% for a total fee of $672.00; Lyman J. Parrigin, III, a law clerk at the time he performed a substantial portion of his services, 72.0 hours at the rate of $80.00 per hour or $5,760.00, multiplied by an upward adjustment factor of 100% for a total fee of $11,520.00; John K. Molen, an attorney at all times relevant to this litigation, 5.0 hours at the rate of $85.00 per hour or $425.00, multiplied by an upward adjustment factor of 100% for a total fee of $850.00; and Thomas J. Ashcraft, also an attorney at all times relevant to this litigation, 3.5 hours at $75.00 per hour or $262.50, multiplied by an upward adjustment factor of 100% for a total fee of $525.00. The following fees are requested for persons assisting Richard L. Yoorhees: Edward Booher, a law student at the time he performed his services, 10.2 hours at the rate of $25.00 per hour or $255.00, multiplied by an upward adjustment factor of 100% for a total fee of $510.00; and Josephine S. Mills, a paralegal, 11.5 hours at the rate of $30.00 per hour or $345.00, multiplied by an upward adjustment factor of 100% for a total fee of $690.00.

The documentation Plaintiffs have provided in support of the various time claims by Beard’s assistants is inadequate. This documentation consists of an affidavit by Beard and affidavits from the claimants themselves. No contemporaneous records have been provided. The documents which have been submitted provide only very general information about the work performed, precluding the court and opposing counsel from making a meaningful assessment of the reasonableness of the time claimed. The deficiencies in documentation are greater than in the case of the submissions in support of Beard’s own claim. The claimed hours for each attorney and legal assistant aiding Beard shall accordingly be reduced 35%.

In the case of Voorhees’ assistants, the documentation, consisting of an affidavit by Voorhees and a detailed listing of work done, is adequate. The time claimed is reasonable and shall not be reduced.

In support of the various rate claims, Plaintiffs rely on the aforesaid affidavits and the North Carolina Bar Association survey discussed previously. The court has also considered a comparable North Carolina Bar Association survey from the prior year with regard to law student and paralegal fees and its own knowledge of relevant fees. After careful consideration, the court finds that this evidence supports a rate of $75.00 per hour for attorney’s time and $25.00 per hour for paralegal and law student time. These rates are estimated current prevailing market rates for the services performed. They are consistent with awards in comparable cases. Applying these rates to the hours previously determined, the lodestar figures for the various attorneys and legal assistants are as follows: Boone, 3.25 hours at $25.00 per hour or $81.25; Morey, 2.73 hours at $75.00 per hour or $204.75; Parrigin, 15.93 hours (law clerk time) at $25.00 per hour or $398.25, plus 30.88 hours (attorney time) at $75.00 per hour or $2,316.00 for a total of $2,714.25; Molen, 3.25 hours at $75.00 per hour or $243.75; Ashcraft, 2.28 hours at $75.00 per hour or $171.00; Booher, 10.20 hours at $25.00 per hour or $255.00; and Mills, 11.50 hours at $25.00 per hour or $287.50.

Evidence which could conceivably have provided support for higher rates is noticeably absent. For instance, affidavits of two of the three persons in private practice set forth merely estimates of the reasonable value of the services performed rather than their actual billing rates. Although Plaintiffs’ reply brief contends that the rates set forth in the respective affidavits are actual billing rates, the brief is unattested and cannot appropriately be relied upon by the court. Plaintiffs also did not submit evidence relating directly to the market rate for law students and paralegals in North Carolina, leaving uncontested the relevant survey data submitted by Defendants. There was also no evidence submitted establishing that the claimants possessed any special experience (excluding the number of years of practice, which the court has considered), ability or reputation. Indicating that the work performed by Voorhees’ assistants was of a basic nature, the record also does not justify elevation of their rates on the grounds of the novelty and difficulty of the questions presented, skill required, or the results obtained. The court was precluded from considering these factors in the case of Beard’s assistants because their supporting documentation did not identify with sufficient certainty the nature of the services each claimant performed. Other Johnson factors which the court has found irrelevant to determining these rates are: the preclusion of employment by the attorney or legal assistant due to his responsibilities in this case, time limitations imposed by the client or circumstances, the “undesirability” of the case, and the professional relationship between the attorney or legal assistant and the Plaintiffs.

Plaintiffs claim a 100% upward adjustment of each claimant’s lodestar on the basis of the purported contingent nature of the fees. The court shall allow no such upward adjustment because the amounts involved are too small in light of the facts of this case to warrant compensation for the risk of not prevailing, see Craik v. Minnesota State University Board, 738 F.2d at 351, and, except in the case of Parrigin, Plaintiffs have not established the contingent nature of the fees. The total fee for each claimant shall accordingly be his lodestar. The sum of such fees or the total overall fee award to be allocated among legal assistants is $3,957.50.

The total fees to be allowed for all legal services on behalf of Plaintiffs are thus $121,443.00. The vast majority of the fees are allocable to the original Defendants and only a small portion to the intervening Defendants. UNC at Chapel Hill shall, however, be responsible for payment of all fees attributable to intervening Defendants since intervening Defendants participated in this litigation solely in their official capacities as leaders of student organizations. See Kentucky v. Graham, — U.S. -, -, 105 S.Ct. 3099, 3104-05, 87 L.Ed.2d 114, 120-21 (1985); Brandon v. Holt, — U.S. -, -, 105 S.Ct. 873, 878, 83 L.Ed.2d 878, 885 (1985); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, -, 104 S.Ct. 900, 908, 79 L.Ed.2d 67, 79 (1984). Intervening Defendants’ motion for an order barring assessment of fees against them shall accordingly be dismissed as moot. UNC at Chapel Hill shall also be responsible for all fees attributable to individual original Defendants because they too appeared only in their official capacities (notwithstanding Plaintiffs’ initial allegations that certain University officials were being sued individually as well).

In addition to fees, Beard claims expenses, including secretarial time, in the amount of $8,870.60 and Voorhees $6,401.04 for total expenses of $15,271.64. (The legal assistants do not claim any expenses.) No Defendants challenge these requests. The court finds them reasonable and shall approve them. Although supplemental secretarial costs are not ordinarily recoverable, they are where, as here, the large number and oftentimes great length of necessary filings created for counsel as sole practitioners an “extraordinary need” for such services. Wheeler v. Durham City Board of Education, 585 F.2d 618, 623 n. 7 (4th Cir.1978); see also Vaughns v. Board of Education of Prince George’s County, 598 F.Supp. at 1289-90. As in the case of fees, all expenses are payable by UNC at Chapel Hill. The total award for fees and expenses for all claimants is $136,-714.64, allocated as follows: for Beard $105,764.10; for Voorhees $26,993.04; and for legal assistants $3,957.50.

Because the resolution of the matter of attorney’s fees represents the final stage in this protracted litigation, the intervention of additional Plaintiffs at this point would serve no useful purpose. The motion to intervene shall therefore be dismissed as moot. An appropriate order and judgment shall be filed contemporaneously herewith.

ORDER AND JUDGMENT

For reasons stated in a memorandum opinion filed contemporaneously herewith,

IT IS HEREBY ORDERED that Plaintiffs’ motion for attorney’s fees pursuant to 42 U.S.C. § 1988, filed July 11, 1985, is GRANTED in the amount set forth herein; and

IT IS FURTHER ORDERED that Defendant Board of Trustees of the University of North Carolina at Chapel Hill pay to counsel for Plaintiffs and their assistants as fees and costs incurred in this litigation the sum of ONE HUNDRED THIRTY-SIX THOUSAND SEVEN HUNDRED FOURTEEN AND 64/100’s DOLLARS ($136,-714.64) to be allocated as follows: One Hundred Five Thousand Seven Hundred Sixty-Four and 10/100’s Dollars ($105,-764.10) to Hugh Joseph Beard, Jr.; Twenty-Six Thousand Nine Hundred Ninety-Three and 04/100’s Dollars ($26,993.04) to Richard L. Voorhees; Eighty-One and 25/100’s Dollars ($81.25) to David A. Boone; Two Hundred Four and 75/100’s Dollars ($204.75) to Robert E. Morey; Two Thousand Seven Hundred Fourteen and 25/100’s Dollars ($2,714.25) to Lyman J. Parrigin, III; Two Hundred Forty-Three and 75/100’s Dollars ($243.75) to John K. Molen; One Hundred Seventy-One and no/100’s Dollars ($171.00) to Thomas J. Ashcraft; Two Hundred Fifty-Five and no/100’s Dollars ($255.00) to Edward Boo-her; and Two Hundred Eighty-Seven and 50/100’s Dollars ($287.50) to Josephine S. Mills; and

IT IS FURTHER ORDERED that Plaintiffs’ motion to compel discovery regarding attorney’s fees, filed July 11, 1985, is DENIED; and

IT IS FURTHER ORDERED that Intervening Defendants’ motion for an order barring the assessment of fees against them, filed May 31,1985, is DISMISSED as moot; and

IT IS FURTHER ORDERED that Plaintiffs’ motion to intervene, filed September 21, 1984, is DISMISSED as moot.

      . By placing severe limitations on upward adjustments, the Blum decision effected a significant change in pre-existing law. As one court has observed, the decision was an apparent response to severe criticism of seemingly excessive fee awards in cases brought under 42 U.S.C. § 1983. May v. Cooperman, 582 F.Supp. 1458, 1463 (D.N.J.1984). The impact of Blum is evident in this case where pre-existing law may well have permitted upward adjustments which are now precluded.

      . See infra n. 8.

      . Although Beard has apparently consulted with Voorhees about the case since his withdrawal in September 1981, his fee request covers only services performed up to the time of his withdrawal.

      . Beard claims fees for two fee motions previously filed in this case but not the instant motion, which was filed after his withdrawal. This court never had occasion to act on the previous fee motions as a result of the extensive appellate proceedings in this case.

      . Plaintiffs state in their memorandum without elaboration that Beard’s time was documented contemporaneously but that many of these records were lost when he closed his law office in 1981. This statement is obviously inadequate to excuse Beard’s failure to produce the requisite detailed documentation.

      . Since Beard’s withdrawal from the case, several courts — not including the Fourth Circuit— have adopted requirements for contemporaneous documentation whereby the lack of such documentation can be an independent basis for denial of a fee request. New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir.1983); National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1324, 1327 (D.C.Cir.1982); Fifth Cir.R. 47.8.1. Each of these courts adopted its requirement prospectively. Original Defendants nevertheless contend that such a requirement should be imposed retroactively on Beard. In view of the cited precedent, this court declines to do so.

      . Cf. Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 923 n. 41 (3d Cir.1985) (use of current rates may not always adequately compensate for delay in payment); New York State Ass’n for Retarded Children, Inc.
        v. Carey, 711 F.2d at 1152-53 (use of both current and historic rates permitted for protracted litigation).

      . In their filings (Reply to Defendants’ Response, Exhibit B), Plaintiffs erroneously list Parrigin’s requested lodestar as $5,400.00. This error results in shortfalls in various totals incorporating it, including a shortfall of $720.00 in the figure listed for total claimed fees and expenses.

      . See Uzzell v. Friday, 592 F.Supp. at 1507 n. 5, 1508.

      . This figure reflects a payment of $1,028.00 already made by Defendants toward Beard’s expenses.

      . This figure includes $287.50 claimed for Peggy C. Whitcomb, who was identified in Plaintiffs’ filings only as a “legal assistant.”

      . The North Carolina Fund for Individual Rights, a nonprofit organization that is now insolvent, previously paid Voorhees a portion of his expenses and Beard a portion of his expenses and fees. Both counsel have represented to the court that, pursuant to the Internal Revenue Code, all such amounts will be refunded to that organization out of their respective awards.


source: Caselaw Access Project

author: RALPH M. FREEMAN, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Michael J. SWANSON, D.O., Defendant.
    Civ. No. 84-2985-DT.
    United States District Court, E.D. Michigan, S.D.
    Sept. 30, 1985.

      Karl Overman, Asst. U.S. Atty., Detroit, Mich., for plaintiff.
    Alan Gilchrist, Detroit, Mich., for defendant.
   MEMORANDUM OPINION

RALPH M. FREEMAN, District Judge.

This matter is presently before the Court on a motion for summary judgment by the United States to recover triple damages plus interest for an alleged breach of contract by Defendant, Michael J. Swanson, D.O., a recipient of scholarship funds under the National Health Service Corps Scholarship Program, 42 U.S.C. § 254l. Plaintiff contends that Defendant breached his contract with the government by failing to begin his service obligation in the Public Health Service Corps.

Defendant contends that numerous affirmative defenses raised in this action for breach of contract render summary judgment inappropriate. The Defendant basically contends that the government, through its agent, misrepresented that he could obtain a deferment from his service obligation to pursue a surgical residency, and that the government should now be estopped from denying such representation. Defendant also claims that the contract was unconscionable and that the liquidated damage provision of the contract operates as a penalty and consequently is unenforceable. Further, Defendant contends that his due process rights were violated as he was not afforded a hearing prior to termination of government benefits to which he was entitled and before imposition of civil money damages. Defendant also contends that the written contract with the government was orally modified by an agent to provide that surgery would be a deferrable residency. Finally, Defendant contends that the Secretary acted contrary to the regulations governing operation of the scholarship program in refusing Defendant a waiver or suspension of his service obligation or payment under the scholarship program.

I. BACKGROUND

The scholarship program in question was established by Congress as part of a comprehensive legislative effort to rectify the shortage of health resources in the area of primary health care services for urban and rural medically underserved populations in the United States. See House Report 94-266, 94th Cong. 1st Sess., p. 22 (1975); Senate Report 94-998, 94th Cong. 1st Sess., pp. 48-54 (1975), U.S.Code Cong. & Admin. News 1976, 4947, 4964.

Pursuant to such a scholarship program administered by the Secretary of Health and Human Services, scholarships are provided to eligible students in professional health degree programs who, according to a written contract, agree to serve upon the completion of their training a “period of obligated service” in exchange for receipt of scholarship funds. 42 U.S.C. § 254i.

Eligibility for and the conditions upon which a scholarship is awarded under the NHSC program are clearly and succinctly outlined in the statute.

Eligibility; application; written contract
(b) To be eligible to participate in the Scholarship Program, an individual must—
“(1) be accepted for enrollment, or be enrolled, as a full-time student (A) in an accredited (as determined by the Secretary) educational institution in a State and (B) in a course of study or program, offered by such institution and approved by the Secretary, leading to a degree in medicine, osteopathy, dentistry, or other health profession;
(2) be eligible for, or hold, an appointment as a commissioned officer in the Regular or Reserve Corps of the Service or be eligible for selection for civilian service in the Corps;
(3) submit an application to participate in the Scholarship Program; and
(4) sign and submit to the Secretary, at the time of submittal of such application, a written contract (described in subsection (f) of this section) to accept payment of a scholarship and to serve (in accordance with this subpart) for the applicable period of obligated service in a health manpower shortage area.

42 U.S.C. § 254Z (b).

The terms of the written contract signed by each applicant for such a scholarship are established by statute, 42 U.S.C. § 254f. The essence of such a contract requires the recipient of scholarship funds to perform one year of obligated service in the full-time clinical practice of his or her profession for each school year for which the applicant was provided a scholarship for a minimum of two years, as a member of the National Health Service Corps in a health manpower shortage area to which the applicant has been assigned or in a unit of the Department of Health and Human Services to which an applicant may be assigned, if the Secretary determines that there is no need in a shortage area for a Corps member of the profession of the applicant. The applicant is required to perform one year of obligated service for each school year for which the applicant was provided a scholarship, for a minimum of two years. 42 U.S.C. § 254l (f)(l)(B)(iv).

In applying for such a scholarship, the Secretary is required to provide each applicant with a “fair summary of the rights and liabilities of an individual whose application is approved and whose contract is accepted, including in the summary a clear explanation of the damages to which the United States is entitled under Section 254o ... in the case of the individual’s breach of contract[.]” 42 U.S.C. § 254l (c)(1); see Declaration of Dr. Edward D. Martin, paragraph 3 (hereinafter referred to as “Declaration”).

The recipient’s period of obligated service is to commence upon completion of his or her medical training unless a deferment is granted to allow the recipient to complete advanced clinical training, an inter-ship or residency. 42 U.S.C. § 254m(b)(5)(A); 42 C.F.R. § 62.9. Pursuant to the terms of the statute, a recipient with a degree in osteopathy is not, however, entitled to a deferment of his or her service obligation for more than three years unless the Secretary determines that the deferment for such advanced training is consistent with the needs of the NHSC. Such information on deferments is conveyed to each applicant in the Applicant Information Bulletin which is provided to each applicant as part of the application process prior to execution of a scholarship contract. Declaration ¶ 3. This is the same bulletin which explains the rights and liabilities of an applicant under the scholarship contract.

Damages for breach of a scholarship contract are also clearly outlined in the written contract submitted to each applicant as required by statute. 42 U.S.C. §§ 254l (c)(1), § 254o (b)(1). If a recipient of scholarship funds fails to begin his or her service obligation in accordance with the provisions of either Section 254m or 254n, the damages which the government are entitled to receive are determined by the algebraic formula A = 30, the theta being the sum of the amounts paid to the recipient and the interest thereon at the maximum legal prevailing rate as determined by the Treasurer of the United States. Under such algebraic formula, the total sum which the United States would be entitled to recover would be an amount equal to three times the scholarship funds plus interest.

Scholarships are not automatically awarded to every individual who submits an application. In 1978 when Dr. Swanson first applied for the scholarship, there were 5,364 applicants. Dr. Swanson was one of the 3,346 applicants whose application was accepted. Declaration, 115. Priority in awarding scholarships is given to those applicants in medical or osteopathic programs who indicate their intention to enter family practice, internal medicine, pediatrics, or osteopathic general practice residencies or other types of clinical practice in health manpower shortage areas, 42 C.F.R. §§ 62.6(c)(1), (2). Legislative history makes it clear that the NHSC Scholarship Program was not created solely to subsidize the medical education of future health care practioners:

The Committee wishes to emphasize in the strongest possible terms that it does not view the National Health Service Corps scholarship program as a mechanism solely intended to subsidize health professional education. Rather, in return for substantial subsidization of the costs of education, the committee views the National Health Service Corps Scholarship program as a means to overcome a geographic maldistribution of health professionals.

Senate Report 94-887, 94th Cong. 1st Sess. p. 201 (1975).

In the matter presently before the Court, the undisputed facts concerning the scholarship contract in question are as follows: In May of 1978, while a student at the College of Osteopathic Medicine and Surgery in Des Moines, Iowa, Defendant Michael J. Swanson, D.O., applied for a scholarship award through the National Health Service Corps Program. As part of the application process, Defendant was provided with a copy of the Applicant Information Bulletin wherein the rights and liabilities of an individual whose application is accepted by the government and the damages to which the government would be entitled to receive for breach of the contract were clearly explained. Declaration, 1f 3. In addition, such bulletin also informed the Defendant that applicants indicating an interest in primary health care or who have no plans for postgraduate training would be given priority in the awarding of any scholarships. Declaration, ¶ 3. The Bulletin likewise informed the Defendant that graduates in osteopathic medicine would not be granted a deferment for completion of residency training for a period in excess of three years. Finally, the Bulletin informed Defendant that scholarship participants were required to fulfill their service obligation in designated manpower shortage areas as either an officer of the Commissioned Corps in the Public Health Service or as a Federal employee of NHSC.

In his application for such scholarship funds, Dr. Swanson responded to questions concerning his career goals and directions in a manner which directly corresponded with the stated priorities of the Secretary to award scholarships to those individuals interested in pursuing primary care medicine in medically underserved areas. In response to the following questions in the application, Defendant stated as follows:

A. After fulfilling your scholarship commitment period, do you intend to continue practicing your profession in a medically underserved area?
Dr. Swanson: Probably yes. At present, I would like to live and practice medicine in the rural intermountain West; that is, in the area between Canada and Mexico bordered by the Rocky Mountains on the East and the Sierra-Cascade crest on the West. This area is largely rural and medically underserved, and will likely remain so in the foreseeable future. However, my primary interest lies in medicine as a vocation and as a service to the human community, and I would like to practice in an area where this interest would be served regardless of geographical, economical, or political circumstances. It is very probable that I will practice in a medically under-served area for the rest of my life.
B. Would you prefer a research orientation in your practice?
Dr. Swanson: No. I am not research oriented, and it is unlikely that I would have a research-oriented practice. I do not think that I would consider a research-oriented practice unless it could be integrated into a general or family practice without diminishing the quality of the latter.
C. Do you intend to obtain an additional educational degree as part of the current training for which you are seeking scholarship?
Dr. Swanson: No. I cannot in any way foresee the pursuit of any additional educational degree. Further, I have neither the need nor the desire to do. so. The D.O. degree will allow me to practice primary care medicine, and that is sufficient for my vocational interests.
E. In your future professional practice, do you see yourself primarily as a first contact health care provider?
Dr. Swanson: Yes.

As a result, Defendant’s application for scholarship funds under the National Health Corps Scholarship Program was given special consideration pursuant to the selection criteria outlined in 42 C.F.R. § 72.6(c). Declaration, ¶ 4.

On September 1, 1978, the contract signed by the Defendant and submitted with his application for scholarship funds, was accepted by the Secretary. Pursuant to such contract, Defendant received, in total, some $14,232.00 for tuition, fees and a stipend for the period of July 1, 1978, to June 30, 1979. Declaration, ¶ 5. On May 25, 1979, Defendant was awarded a continuing scholarship award for the period beginning July 1,1979, and ending June 30, 1980, in the amount of $14,437.00. Declaration, ¶ 6. Such scholarship for the second year of medical training was awarded pursuant to an extension and amendment of the original scholarship contract signed by the Defendant on March 21, 1979. Declaration, Exhibit D. Finally, on May 29, 1980 Defendant was awarded an additional continuing scholarship award for the period of July 1, 1980, and ending June 30, 1981, in the amount of $15,829.00, pursuant to an extension and amendment agreement signed by the Defendant on February 12, 1980. For three years of medical training, Defendant received some $44,498.00 in scholarship funds and consequently incurred a three year service obligation upon completion of his medical education in July of 1981. Declaration ¶ 8; 42 U.S.C. § 254m(b)(5)(A); 42 C.F.R. § 62.9.

Prior to Defendant’s graduation in July of 1981, Defendant applied for and was granted a one-year deferment of his service obligation to complete an internship at an osteopathic hospital in Farmington Hills, Michigan. Declaration, 1110. Sometime prior to completion of Defendant’s internship, the NHSC sent Defendant placement materials and a site selection questionnaire (SSQ) in anticipation of Defendant commencing his service obligation in July of 1982. When Defendant returned his SSQ in August 1981, he indicated an interest in pursuing further medical training prior to starting his service obligation. Declaration, 1111. Dr. Swanson was informed that he was required to submit a formal request for additional deferment to the Secretary, and that if such a deferment was not approved, he would be required to contact the NHSC to begin the matching process for his July 1982 placement. Declaration, 1111. Defendant submitted a formal request for an additional deferment to the Chief of the Deferment Branch of the NHSC Scholarship Program by letter dated September 26, 1981. Declaration, f 11. Defendant’s request for an additional four year deferment to complete surgical training was denied by letter from the Chief of the Deferment Branch in October of 1981. Declaration, 1112. The letter of denial merely reiterated the terms of Defendant’s initial written contract with the government and the subsequent extensions regarding deferments for residency training. As the letter of denial explained, requests to complete residence programs which exceed three years cannot be approved under Section 338 B of the PHSA unless the specialty was “specifically designated and approved by the Secretary as needed by the NHSC to fulfill its mission in health manpower shortage areas.” Declaration, Exhibit J. Defendant was informed by the Secretary that surgery neither met the time-limitation for deferments or a designated need. Declaration, ¶ 12.

Upon denial of Defendant’s request for an additional deferment, Defendant was required to begin his service obligation upon the expiration of his approved deferment on June 30,1982. Declaration, 1113. When Defendant did not begin his service obligation as scheduled in July of 1982, and instead elected to pursue a nondeferable surgical residency, he was placed in breach of his scholarship contract, effective November 29, 1982, and informed that the United States was entitled to recover an amount equal to three times the scholarship funds paid to Defendant, plus interest. Declaration, ¶113; 42 U.S.C. §§ 254m, o (b)(1).

This action was subsequently commenced by the federal government in this Court to recover damages pursuant to 42 U.S.C. § 254o (b)(1) for breach of contract under the National Health Scholarship Corps program, and is presently before the Court on Defendant’s motion for summary judgment.

II. SUMMARY JUDGMENT PRINCIPLES

Before addressing the claims of the parties, it is incumbent upon this Court to review the principles of law governing a motion for summary judgment. Rule 56(c) provides that summary judgment shall be granted:

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The Sixth Circuit recently reiterated the principles governing consideration of a motion for summary judgment in Watkins v. Northwestern Ohio Tractor Pullers Ass’n., 630 F.2d 1155 (6th Cir.1980);

The District Court may grant a motion for summary judgment only if it finds from the whole record before it that there are no material facts which are in dispute. It may not make findings of disputed facts on a motion for summary judgment. The movant has the burden of showing conclusively that there exists no genuine issues as to a material fact and that the evidence together with all inferences to be drawn therefrom must be considered in the light most favorable to the party opposing the motion. The movant’s papers are to be closely scrutinized while those of the opponent are to be viewed indulgently.

Id. at 1158; see also Ghandi v. Police Department of the City of Detroit, 747 F.2d 338 (6th Cir.1984).

The party moving for summary judgment “bears the burden of clearly establishing the non-existence of any genuine issue of fact material to a judgment in his favor.” United States v. Article of Device . . . , 527 F.2d 1008, 1011 (6th Cir.1975); see also United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1970); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979). If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, the opposing party must come forward with “specific facts showing that there is a genuine issue for trial.” First National Bank of Arizona v. Cities Services Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1967), reh. denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968); see also Daily Press, Inc. v. UPI, 412 F.2d 126 (6th Cir.1969), cert. denied, 396 U.S. 990, 90 S.Ct. 480, 24 L.Ed.2d 453 (1969); Bufalino v. Michigan Bell Telephone Co., 404 F.2d 1023 (6th Cir.1968); Doff v. Brunswick Corp., 372 F.2d 801 (9th Cir.1967). Rule 56(e) makes clear that parties are not entitled “to get to the jury on the basis of allegations in their complaints, coupled with the hope that something can be developed at trial ...” First National Bank of Arizona v. Cities Services Co., 391 U.S. at 289-90, 88 S.Ct. at 1592-93. The opponent must at least produce “sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” Id. at 289, 88 S.Ct. at 1592; see also Ghandi v. Police Department of the City of Detroit, 747 F.2d 338 (6th Cir.1984).

The Court will now address the arguments of the parties.

III. BREACH OF CONTRACT

This Court begins by noting that in the absence of a contrary statute, the general 'principles governing the rights and duties and construction of a contract apply to contracts entered into by the United States. As the Supreme Court stated in Perry v. United States, 294 U.S. 330, 55 S.Ct. 432, 79 L.Ed. 912 (1935):

When the United States, with constitutional authority, makes contracts, it has rights and incurs responsibilities similar to those of individuals who are parties to such instruments.

294 U.S. at 352; see also United States v. Essley, 284 F.2d 518, 520 (10th Cir.1960); United States v. Standard Rice Co., 323 U.S. 106, 65 S.Ct. 145, 89 L.Ed. 104 (1944); Gilbert v. United States, 1 Ct.Cl. 28, 37 (1863), Aff'd, 8 Wall. 358, 75 U.S. 358, 19 L.Ed. 303 (1869).

Asa general rule, the validity, interpretation and construction of contracts with the federal government, including the rights and obligations of the parties thereto, is governed by principles of general Federal contract law. See Priebe & Sons v. United States, 332 U.S. 407, 68 S.Ct. 123, 92 L.Ed. 32 (1947). This is particularly true where, as in the instant case, overriding Federal interest in promoting the express Congressional purpose underlying the NHSC scholarship program dictates that the remedy for enforcement of such a contract should not depend upon the peculiarities or variances found in State laws. See United States v. Riley, 340 F.Supp. 1164 (D.C.W.D.La.1972); United States v. Hext, 444 F.2d 804 (5th Cir.1971).

In the instant case, it seems clear to this Court that a valid and binding contract was created between the parties to this action on September 1, 1978, when the Secretary approved the Defendant’s application for a scholarship under the NHSC scholarship program and signed the contract previously submitted and signed by the Defendant as part of the application process. This contract was renewed by subsequent agreements signed by the parties in May of 1979 and again in 1980. Certainly, it goes without saying that this original contract and each of the subsequent agreements is supported by adequate consideration.

The terms and conditions set forth in the contract are clear and unambiguous. The contracts clearly and succinctly set out the rights and obligations of both the United States and the Defendant under the scholarship contract and the statutory authority governing such contractual arrangement. The contracts signed by the Defendant and accepted by the government likewise clearly provide that deferments may not be granted for advanced clinical training or residencies in excess of three years. The extension contracts in 1979 and 1980 provide by way of amended regulations that deferments beyond three years are only permissible “if the Secretary determines that the extension is consistent with the needs of the National Health Scholarship Corps.” 42 C.F.R. § 62.9. Clearly, the determination of deferments beyond the three year period is within the sole discretion of the Secretary. Moreover, the contract clearly outlines the Defendant’s duty under the contract to perform obligated service upon completion of his medical training in an area designated by the Secretary as a health manpower shortage area. Finally, it is undisputed that Defendant failed to commence his three year period of obligated service according to the terms of the contract.

This Court rejects Defendant’s suggestion that it is bureaucratic meglomania and the refusal of the government to “negotiate” the terms of his service to the NHSC that forced Defendant into default. Defendant entered into the contractual agreement with open eyes. He was not forced to apply for or accept the scholarship money offered by the government. However, once having done so, the government and the people it serves, have a right to the Defendant’s service. Indeed, the Defendant has a duty to meet his obligation by serving in the PHSC in an area and manner in which the Secretary determines Defendant’s services are most needed. Defendant points to no evidence in the contract, or otherwise, that would lead anyone to believe that the service obligation of a physician is a negotiable item.

Thus, it seems clear to this Court that Defendant stands in breach of contract under his NHSC contract unless there is a genuine issue of material fact as to any of the defenses raised by the Defendant.

IV. ESTOPPEL AND ORAL MODIFICATION

Defendant’s first affirmative defense is estoppel. Defendant’s estoppel argument is premised entirely on Defendant’s assertion that certain unnamed and unknown individuals, including a chief of surgery from several Public Health Service Hospitals, were acting as agents of the Secretary and represented to the Defendant in July of 1979 that deferments for a residency in surgery were available and that these residencies were acceptable to the NHSC. (Affidavit, Swanson.) Defendant asserts that he relied upon such representations in planning his career in surgery and such representations “instilled in Defendant the expectancy that he could serve as a surgeon.” Defendant contends that the government should now be estopped from denying such representations.

Aside from the question of whether such unnamed individuals are agents of the Secretary, estoppel is rarely, if ever, a valid defense against the government absent proof of some affirmative misconduct by a government agent. See Heckler v. Community Health Services of Crawford Co., 467 U.S. 51, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984) (hereinafter referred to as Heckler); United States v. River Coal Company, Inc., 748 F.2d 1103, 1108 (6th Cir.1984); Schweiker v. Hansen, 450 U.S. 785, 788, 101 S.Ct. 1468, 1470, 67 L.Ed.2d 685 (1981).

In order to prevail on the estoppel argument, the Defendant would be required to demonstrate at trial that at least the traditional elements of estoppel are present. Heckler, 104 S.Ct. at 2224. The Supreme Court outlined the elements of traditional estoppel in the recent case of Heckler v. Community Health Services of Crawford Co., supra, as follows:

If one person makes a definite misrepresentation of fact to another person having reason to believe that the other person will rely upon it and the other in reasonable reliance upon it does an act ... the first person is not entitled
(b) to regain property or its value that the other acquired by the act, if the other in reliance upon the misrepresentation and before discovery of the truth has so changed his position that it would be unjust to deprive him of that which he thus acquired.

104 S.Ct. at 2223 (quoting Restatement (Second) of Torts § 894(1) (1977). The Court in Heckler went on to explain that “the party claiming the estoppel must have relied on its adversary’s conduct ‘in such a manner as to change his position for the worse,’ and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary’s conduct was misleading.” 104 S.Ct. at 2223.

In the instant case, this Court is convinced that the alleged representations by government agents as to the availability of deferments for surgical residencies is riot the type of “affirmative misconduct” on the part of the government which would give rise to estoppel against the government. Moreover, there is no evidence that Defendant relied upon such representations to his detriment or changed his position for the worse. Defendant does not allege that such representations were an inducement for entering into the original contract in 1978. Indeed, such alleged representations were not made until some four months after Defendant renewed his contract with the government in March of 1979. Defendant points to no evidence to raise any issue as to his reliance. In fact, Defendant’s affidavit merely indicates that such alleged representations were made but does not aver that he relied upon them in any manner. Aside from the allegations in Defendant’s pleadings that he relied upon such representations in planning his career in surgery, there is no evidence before the Court to raise any issue for trial as to Defendant’s reliance. Moreover, even if Defendant did rely upon these statements by planning a career in surgery, this is not the type of detrimental reliance required by the rule. The mere “expectancy” that he would be permitted to have a deferment for a surgical residence and some unspecified “arranging for such a career” are not the types of acts necessary to prove a change for the worse under the estoppel doctrine. At the most, Defendant’s career in surgery would have merely delayed until after he performed his period of obligated service with the government. Defendant was not permanently deprived of the opportunity to pursue a surgical residency as the result of any alleged misrepresentations.

Finally, any argument Defendant might advance as to his detrimental reliance on such representations is completely contradicted by his admission in his letter to the Chief of the Deferment Branch on September 26, 1981, that he “fully realize[s] that this [a deferment for the purpose of completing a residency in surgery] is not acceptable to the P.H.S.C____” Declaration, Tab I. See Heckler, 104 S.Ct. at 2228 n. 10.

For these reasons, Defendant defense of estoppel must fail.

In a related argument first raised at oral arguments on this motion, Defendant asserts that summary judgment is inappropriate because there is a material question of fact as to whether the contract between the parties was orally modified by representations of unknown individuals that Defendant coiild obtain a deferment for a surgical residency. Aside from the fact that this argument was not raised as a defense in Defendant’s answer or otherwise, Plaintiff has never admitted the agency status of these unknown persons.

The Court has no quarrel with the proposition that a written contract may be orally modified. However, Defendant premises his entire argument of oral modification upon the assumption that these unknown individuals were acting as agents of the government with the requisite authority to bind the government to an oral modification of the scholarship contract. Assuming arguendo that such representations concerning deferments were in fact made by these unknown individuals, this fact alone is not sufficient to bind the government to an alleged modification of the contract absent a finding that these individuals were acting in the capacity of agents for the Secretary.

Aside from Defendant’s bald eonclusional statement in his pleadings that these individuals were agents of the government, there is no evidence before the Court to raise a genuine issue for trial as the agency status of these individuals. Moreover, given that these individuals are both unnamed and unknown, Defendant would be unable to bring forth any evidence at trial to prove that these individuals were agents of the government and that these statements were made within the scope of their authority. Since the Court would be required to direct a verdict in favor of Plaintiff on this issue at the close of all the proofs, summary judgment on the defense of oral modification is appropriate. See Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 103 S.Ct. 2161, 2171 n. 11 (1983); Wilcox v. Transamerican Freight Lines, Inc., 371 F.2d 403 (6th Cir.), cert. denied, 387 U.S. 931, 87 S.Ct. 2053, 18 L.Ed.2d 992 (1967).

V. LIQUIDATED DAMAGE PROVISION UNENFORCEABLE AND OPERATES AS A CRIMINAL PENALTY

Defendant next contends that summary judgment is inappropriate for the reason that the provision in the scholarship contract providing for multiple damages is unenforceable because it operates as a penalty. Defendant also asserts that such a damage provision is so onerous as to constitute a criminal penalty, thereby requiring the Court to provide Defendant with the full due process protections accorded to a defendant in a criminal trial.

The Court finds this position absurd. As the Defendant Correctly notes, the Courts have long upheld statutory imposition of multiple damages as a civil penalty and the imposition of punitive damages. For instance, it is well established that a private right of action for treble damages under the antitrust laws, 15 U.S.C. § 15, is not by its nature a criminal penalty to which all the constitutional safeguards of a criminal proceeding attach. See Herald Company v. Harper, 410 F.2d 125 (8th Cir.1969) (even if treble damages provision was punitive in nature, that is not enough to label it a criminal statute); see also United States v. Hess, 317 U.S. 537, 548-52, 63 S.Ct. 379, 386-88, 87 L.Ed. 443 (1942) (mere fact that more than precise amount of actual damages recovered or that “punishment” may result from imposition of multiple damages is not sufficient to label it as a criminal statute).

In the instant case, neither the statutory provision which governs the amount of damages nor the legislative history reveal that Congress intended the statute to operate as a penalizing mechanism. See 42 U.S.C. § 254o (b)(1). The mere fact that the provision on damages for breach of the scholarship contract may result in “punishment” for failure to complete the service obligation does not make the statute criminal. Hess, 317 U.S. at 551, 63 S.Ct. at 387. Review of the legislative history of the statute reveals that the major purpose of the NHSC program is to remedy the shortage of medical care providers in manpower shortage areas. Certainly, imposition of multiple damages upon a doctor for his failure to meet his service obligation in these critical areas is an equitable remedy and entirely compensatory in its effect. Who is to measure the reasonable value of a doctor’s services for three years in an underserved area? Certainly it is far greater than the precise amount of the money expended by the federal government in financing the doctor’s education. To suggest otherwise would be totally illogical.

For these reasons, the Court rejects Defendant’s argument that the statutory damages provision for breach of the NHSC contract is criminal in nature within the meaning of United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980).

Defendant also claims that the liquidated damage provision in the scholarship contract is void because it operates as a penalty. Defendant contends that the principle of compensation has been totally disregarded and that the damages provision was strictly to deter physicians from breaching their contracts.

A liquidated damage provision is “a sum fixed as an estimate made by the parties at the time when the contract is entered into, of the extent of injury which a breach will cause.” Williston, Contracts § 776; see also Pacific Hardware & Steel Co. v. United States, 48 Ct.Cl. 399, 406 (1913). At common law, contractual provisions calling for damages without regard to the extent or character of a subsequent breach were regarded as penalties and consequently unenforceable. Van Buren v. Digges, 11 How. (52 U.S.) 460, 461, 476, 13 L.Ed. 771 (1850); Sun Printing & Publishing Assoc. v. Moore, 183 U.S. 642, 22 S.Ct. 240, 46 L.Ed. 366 (1902). The modern trend is to permit the parties to a contract to determine damages in the event of breach without judicial interference unless such a provision is unreasonable or unconscionable. United States v. Bethlehem Steel Co., 205 U.S. 105, 27 S.Ct. 450, 51 L.Ed. 731 (1907); Jennie-O Foods, Inc. v. United States, 217 Ct.Cl. 314, 580 F.2d 400, 412 (1978).

Whether a liquidated damage provision is in fact unconscionable or an unenforceable penalty provision is a matter of law to be determined by the Court in light of all the circumstances. See In re United Merchants & Mfrs., Inc., 674 F.2d 134, 141 (2d Cir.1982) (New York law); In re Construction Diversification, Inc., 36 B.R. 434, 436 (1983) (applying Michigan law).

The general rule for determining if a liquidated damages provision is valid and enforceable was aptly stated by the United States Supreme Court in Priebe & Sons, Inc. v. United States, 332 U.S. 407, 68 S.Ct. 123, 92 L.Ed. 32 (1947):

* * * When they [liquidated damages provisions] are fair and reasonable attempts to fix just compensation for anticipated loss caused by breach of contract, they are enforced. * * * They serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. * * * And the fact that the damages suffered are shown to be less than the damages contracted for is not fatal. These provisions are to be judged as of the time of making the contract.

332 U.S. at 411-12, 68 S.Ct. at 125-26; see also Higgs v. United States, 546 F.2d 373, 377, 212 Ct.Cl. 146 (1976); Steffen v. United States, 213 F.2d 266, 270 (6th Cir.1954); United States v. Bethlehem Steel Co., 205 U.S. at 120-21, 27 S.Ct. at 455-56.

In the instant case, the damages for breach of the scholarship contract under the NHSC scholarship program are clearly outlined by statute. Where a scholarship recipient fails to complete his medical training, the amount of the damages required to be repaid to the government is simply the amounts which have been paid to such person under the scholarship program. 42 U.S.C. § 254o (a). However, where a recipient completes his or her medical training and fails to commence his or her service obligation under the contract, the damages are set according to an algebraic formula at approximately three times the principal plus the interest. 42 U.S.C. § 254o (b)(1). Defendant, Dr. Swanson, failed to commence his obligated service as required under the contract, the government having paid on Defendant’s behalf some $44,-498.00. The government indicates that the interest on such principal balance as of June 30, 1984, is $29,544.19. When such interest and principal are added together and multiplied times three, the damages under the liquidated damage provision of the contract would be $222,126.57 as of June 30, 1984.

The Defendant contends that such an amount completely disregards the principle of compensation and operates strictly as a penalty upon physicians who fail to meet their obligation by serving in the NHSC.

The Court finds that the damage provision in the scholarship contract which provides for triple payback in addition to interest does not operate as an unenforceable penalty. As the Defendant accurately noted in his pleadings, a physician or health care professional is not a “fungible handyman.” To estimate the damages which would be suffered by the loss of the services of a trained osteopathic physician for a three year period in a medically under-served area is difficult, if not impossible, to accurately determine. The Court cannot say that damages, which the government would be entitled to receive for Defendant’s breach of the contract bears no relation to the actual damages suffered by the government, or that they were not a fair and reasonable attempt to fix just compensation in the event of breach.

Contrary to Defendant’s contention, the actual damages in this case are not limited solely to the monies given by the government to finance the Defendant’s education. The fact that the government may also have intended that the damage provision deter physicians from reneging on their service obligation and would ensure that the public would obtain the services of trained health care professionals in areas of need is of little moment given the Court’s determination that the damages were impossible of accurate estimation and are a reasonable pre-estimate of the probable loss.

For the above reasons, this Court holds that the liquidated damage provision does not operate as a penalty and is valid and enforceable in a court of law. In addition, to the extent the Defendant raises the argument that the damage provision and the contract in question are unconscionable, this Court rejects this assertion in light of the previous conclusion.

VI. DUE PROCESS CLAIM

Defendant next contends that summary judgment is inappropriate because of his defense that he has a due process right to a hearing prior to the government depriving the Defendant of government benefits to which he claims he is contractually entitled, namely the right to participate in the NHSC program and government employment.

The Court finds this position totally meritless. This is a matter of breach of contract. Defendant points to no authority which requires the government to provide Defendant with a due process hearing prior to holding him in default for breach of contract and commencing this lawsuit. While the Defendant might have been accorded some “property” interest and concommitant right to a hearing if he had performed according to the terms of the contract and was terminated from his employment during the course of his service, his “right” to a government benefit was nothing more than an expectancy at the time of his breach. The law is clear that such an expectancy does not create a property interest within the meaning of the due process clause. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The Court rejects Defendant’s claim as wholly without merit that the regulations governing partial or total waiver of a service obligation or payment under the NHSC program are arbitrary and capricious. See 42 C.F.R. § 62.12. The regulations provide that the Secretary may waive or suspend a service obligation or payment where a participant suffers from a physical or mental disability and his service is rendered impossible. The Secretary may also waive or suspend service or payment under the regulations as imposing undue hardship and being against equity and good conscience. The Secretary may take into consideration the participant’s financial resources and obligations and the extent to which the participant has problems of a personal nature which would intrude upon the participant’s present and future ability to perform. 42 C.F.R. § 62.12(2)(d). The circumstances under which waivers and suspensions of obligations may be granted has been committed to the discretion of the Secretary. The Court will not intrude absent a showing of bad faith or that the regulations are repugnant to statutory authority. See Board of Trade of City of Chicago v. Commodity Futures Trading Commission, 605 F.2d 1016, 1021-22 (7th Cir.1979), cert. denied, 446 U.S. 928, 100 S.Ct. 1866, 64 L.Ed.2d 281 (1980). Defendant has made no such showing in the matter presently before the Court. For this reason, the Court declines to review the action of the agency.

VII. CONCLUSION

In summary, the Court holds that Defendant has breached his contract with the government in failing to perform his period of obligated service and that the government’s motion for summary judgment will be granted. The government shall submit an appropriate order reflecting the opinion of this Court.

      . The National Health Service Corps was established in 1970 as part of the Public Health Service under the auspices of the Department of Health and Human Services, 42 U.S.C. § 254d, and consists of three categories of members: (1) commissioned officers of the Regular and Reserve Corps of the Public Health Service (PHS Commissioned Corps); (2) civilian employees of the United States; and (3) other individuals who are not employees of the United States. 42 U.S.C. § 254d(a)(l). The National Health Scholarship Program was established by Congress to “assure an adequate supply of trained physicians, dentists and nurses for the National Health Service Corps.” 42 U.S.C. §§ 254/, m.

      . The Secretary is required by statute to identify those geographic areas, population groups or medical facilities which have a shortage of health manpower. Such designation of health manpower shortage areas is revised on an annual basis. See 42 C.F.R. § 5.3. In making such a determination, the Secretary takes into consideration various indicators of need and the ratio of health manpower and the percentage of physicians serving an area, population group or facility. 42 U.S.C. § 254e(b), (c). Upon an area or facility being designated a shortage area, it is the duty of the NHSC to assign physicians, dentists and other health professional to such area to rectify the maldistribution of health services.

      . A recipient of a scholarship may be released from his or her service obligation under 254m(a) if the individual agrees to engage in a full-time private clinical practice of his or her health profession in a health manpower shortage area for a period of time equal to the period of his or her service obligation. 42 U.S.C. § 254m. Similarly, a recipient may meet his service obligation by serving under a National Research Award. 42 U.S.C. § 254m(e).

      . As the government noted, at the time Defendant applied for a NHSC Scholarship in May of 1978, the NHSC Scholarship Program had no statutory authority to grant deferments which exceeded three years. In 1979, this provision was amended by Pub.L. 96-76, to give the Secretary discretionary authority to approve deferments in excess of three years if such deferments were consistent with the needs of the NHSC.

      . The yearly extensions of the written contract for the scholarship funds signed by the Defendant specifically provides that the Defendant agrees to comply with the obligations imposed by the Scholarship Program Contract and Section 751 of the Public Health Service Act 42 U.S.C. § 254/, and with the obligations imposed by the regulations implementing the scholarship program in 42 C.F.R. Part 62. The regulations specifically provide that the Secretary will defer beginning obligated service to allow a participant to complete an approved graduate training program. The period of this deferment may not exceed 3 years for a graduate in osteopathy. The regulations also provide that "[t]he Secretary may, however, extend this period of deferment if the Secretary determines that the extension is consistent with the needs of the National Health Service Corps.” 42 C.F.R. § 62.9(a).

      . This Court agrees with the Plaintiffs position that Defendant’s defense in which he raises the claim that there was no consideration to support these contracts is totally without merit and should be stricken.

      . The Supreme Court in Heckler also made it clear that estoppel against the government cannot be premised on oral representations:
      The necessity for ensuring that governmental agents stay within the lawful scope of their authority, and that those who seek public funds act with scrupulous exactitude, argues strongly for the conclusion that an estoppel cannot be erected on the basis of the oral advise that which underlay respondent’s cost reports.
      104 S.Ct. at 2227.

      . The Court also notes that it Defendant’s claim of reliance in this case would not have been reasonable under the circumstances. The contracts and regulations governing deferments clearly provide that no deferments in excess of three years are possible unless the Secretary determines there is a need for the specialization. There is nothing in the contract or regulations which would lead a reasonable person to believe that any other person would have the authority to grant Defendant a deferment, especially the head of surgery at a Public Health Service Hospital. Defendant was fully aware of the procedure for obtaining a deferment as he had already applied for a deferment for one year from the Secretary through the proper channels.
      Defendant’s separate argument that this contract must fail due to misrepresentation also must fall for the same reasons cited by this Court in rejecting Defendant’s estoppel argument.


author: SPELLMAN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Carlos Antonio PAVON, Defendant.
    No. 85-339-Cr-SPELLMAN.
    United States District Court, S.D. Florida, Miami Division.
    Sept. 30, 1985.
    Roy J. Kahn, Asst. U.S. Atty., Miami, Fla., for plaintiff.
    Michael W. Burnbaum, Miami, Fla., for defendant.
   MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR NEW TRIAL AND HEARING TO DETERMINE JUROR MISCONDUCT

SPELLMAN, District Judge.

This CAUSE comes before the Court on the Defendant’s Motion for a New Trial, or alternatively, for a hearing to determine the existence of jury misconduct in the proceedings. The Defendant states that on August 15, 1985, after the verdict was entered, the foreperson of the jury made certain unsettling remarks to the Defense Counsel. She indicated that the reason for the conviction of the Defendant was the fact that he failed to take the stand in his own defense. The attorney proffered these remarks to the Court just prior to a hearing on release pending sentencing pursuant to 18 U.S.C. § 3143(a). The Defendant emphasizes the fact that the Court instructed the jury on at least three occasions not to -even discuss or consider the Defendant’s choice not to testify in the trial. According to the Defendant, such consideration, contrary to law and to the specific instructions, warrants the granting of a new trial, or at the very least, an investigation into the possibility of jury misconduct. For the following reasons, said Motion must be DENIED.

II

The Defendant asserts that conducting an investigation into jury misconduct lies within the discretion of the trial judge. To suggest, however, that such discretion is limitless is to ignore a respected precept dating from Lord Mansfield’s time — jurors may not impeach their own verdict. A jury has the obligation to follow the law and abide by the court’s instructions, but once that verdict is rendered, the court may not inquire into the jury’s deliberative process.

The case most frequently cited for this proposition, McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915), elucidates the values sought to be promoted by such limitations on investigations into the jury’s mental process. In McDonald, attorneys brought suit to recover an amount alleged to be due them for legal services. The Defendant moved to set aside the verdict on the ground that when the jury retired, the Foreman suggested that each juror write down an appropriate amount, that they divide the aggregate of these amounts by twelve, and that they return to the court a quotient verdict. The courts below refused to permit the jurors to testify on the grounds that they are incompetent to impeach their own verdict. The United States Supreme Court affirmed, and discussed the considerations of public policy behind the shroud of secrecy surrounding the deliberative process. Whenever a party seeks to use jury misconduct as the basis of a Motion for a New Trial, the court faces a choice: it may right the wrong of the single litigant or inflict an injury on the public at large. The Court in McDonald elaborated on the consequences of investigations into verdicts:

But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation the constant subject of public investigation— to the destruction of all frankness and freedom of discussion and conference. Id. at 267-68, 35 S.Ct. at 784.

In sum, the ostensible harshness of this rule is mitigated by significant values: the freedom of deliberation, the finality of verdicts, and the protection of jurors. A consequence of this ban on probing the mental process of the jury is that some convictions must stand despite suspicions or even clear indications of misconduct. See United States v. D’Angelo, 598 F.2d 1002, 1004 (5th Cir.1979).

Our law has also accommodated countervailing interests in justice and regularity in the jury process. The rule allows for an exception in the case of extraneous prejudicial information or in instances where outside influences are brought to bear upon a juror. In Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892), the Defendant was found guilty and sentenced to death. After the jury had retired and before they had agreed on their verdict, a newspaper was introduced into the jury room, the tendency of which was injurious to the accused. The Defense Counsel offered affidavits of the jurors of this fact in support of a Motion for a New Trial and the court rejected them. The United States Supreme Court in finding reversible error, stated:

[ 0]n a motion for a new trial on the ground of bias on the part of one of the jurors, the evidence of jurors as to the motives and influences which affected their deliberations, is inadmissible either to impeach or to support the verdict. But a juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind. Id. at 149 [13 S.Ct. at 53]. See also Stimack v. Texas, 548 F.2d 588 (5th Cir.1977); United States v. Howard, 506 F.2d 865, 868 (5th Cir.1975).

This exception for extraneous prejudicial information and outside influences is likewise embodied in the.Federal Rules of Evidence.

Ill

The misconduct alleged in the instant case does not fall within the ambit of either exception. The Defendant is not contending that extraneous information was brought to the jury’s attention. The Defendant is not claiming that outside influence was improperly brought to bear upon any juror. The Defendant does not suggest that through the media injurious information crept into the jury room. Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892). Nor does the Defendant assert that jurors received threats to themselves or their families. Stimack v. Texas, 548 F.2d 588 (5th Cir.1977). Instead, the Defendant advances as a reason for a new trial or an inquiry into juror misconduct the possibility that the jury had considered as a basis for conviction the Defendant’s failure to testify. Were this Court to make such a determination, it would be forced to conduct a post-verdict fishing expedition into the mental process behind the finders of fact. Resolving the question of whether the jurors improperly disregarded the Court’s instructions inevitably entails an anatomization of the thought behind the verdict.

This Court’s refusal to investigate the Defendant’s contention that the jurors held it against the accused that he failed to take the stand in his own defense is not anomalous. In Davis v. United States, 47 F.2d 1071 (5th Cir.1931), the court upheld a conviction despite the post-trial testimony of jurors that the jury had considered the Defendant’s failure to take the stand as evidence of guilt and that the jurors disregarded the court’s instructions not to consider such a failure to testify. In United States v. DiCarlo, 575 F.2d 952, 960 (1st Cir.1978), the court found that the Defendant’s claim to a new trial based upon the juror’s consideration of the defendant’s failure to take the stand “flies in the face of the familiar principle that a verdict may not be impeached by a juror’s testimony.” In sum, this Court’s unwillingness to inject itself into the ratiocinations of the finders of fact complies with sound policy and accepted principles.

IV

This Court also wishes to address the two cases the Defendant cites in support of its Motion for a New Trial. The Defendant construes United States v. Neary, 552 F.2d 1184 (7th Cir.1977) as inferring that a defendant who can demonstrate that the jury failed to follow instructions will be successful in obtaining a new trial. This Court finds this to be an inexact construction of Neary. In Neary, during the week following the defendant’s trial, a juror who had served in the defendant’s case appeared as a prospective juror in another matter. On voir dire, she indicated that she had previously served in a “civil case.” The defendant argued that this reference to his case as “civil” demonstrated her incapacity to grasp the extent of the government’s burden of proof and revealed her incompetence in serving in his case. In rejecting this argument out right, the court commented that the juror’s remark did not show that “she failed to follow, or was incapable of following the instructions with respect to reasonable doubt and the like.” Id. at 1190. The Seventh Circuit did not find that a court could inquire into the deliberative process. In fact, the court explicitly reaches the opposite conclusion: “A juror will not be heard to impeach the verdict by testimony concerning his misconception of the court’s instructions.” Id.

Further, the Defendant proffers United States v. Khoury, 539 F.2d 441, 443 (5th Cir.1976) for an accurate proposition: the granting of a mistrial for jury misconduct is largely within the discretion of the trial judge, and this discretion extends to the type of investigation required. It is interesting to note that in Khoury, the Fifth Circuit found that the trial judge did not abuse his discretion when he refused to inquire further into the deliberative process upon learning that two jurors had heard about the death of a government witness on the day after he testified. This Court too elects not to make any such inquiry.

V

In conclusion, this Court declines to interfere with the freedom of jury deliberation or to upset the stability of verdicts. An inquiry into whether the jury improperly considered the Defendant’s failure to testify would undoubtedly defy the time-honored rubric that jurors may not impeach their own verdict. Since the exceptions for extraneous prejudicial information and for outside influences do not embrace the instant case, it is hereby

ORDERED AND ADJUDGED that the Defendant’s Motion for a New Trial, or alternatively, for an inquiry into jury misconduct is DENIED.

      . Prior to 1785, a juror’s testimony was sometimes received. In Vaise v. Delaval, 1 T.R. 11, Lord Mansfield would not permit the introduction of an affidavit of jurors to demonstrate that the verdict had been made by lot.

      . Rule 606(b) provides: "Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occuring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes."

      . See also United States v. D’Angelo, 598 F.2d 1002 (5th Cir.1979) which relies on Davis in refusing to allow the jury’s verdict to be impeached on the basis of a note the jurors sent to the judge during their deliberations.