author: ANN ALDRICH, District Judge.

text:
    Cordelia M. KOVAR, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. C82-3374.
    United States District Court, N.D. Ohio, E.D.
    Nov. 27, 1985.

      Anthony F. de la Pena, Cleveland, Ohio, for plaintiff.
    Carolyn Watts Allen, Asst. U.S. Atty., Cleveland, Ohio, for defendant.
   MEMORANDUM AND ORDER

ANN ALDRICH, District Judge.

Pending before the Court is the motion of the Secretary of Health and Human Services (“Secretary”) for relief from its judgment awarding attorneys’ fees in the amount of $4,060.00 to Cordelia M. Kovar’s representative, Anthony de la Pena. The Secretary argues that the amount of fees ordered by the Court exceeds the payment permitted by § 206 of the Social Security Act, 42 U.S.C. § 406(b) (1982) (“§ 406(b)”). For the reasons set forth below, the Secretary’s motion is denied.

I.

Kovar filed an application f<pr disability insurance benefits pursuant toj Title II of the Social Security Act, 42 U.S.C. §§ 401-433 (1982) (“disability benefits”’or “Title II benefits”), and for Supplemental Security Income benefits predicated on disability under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383 (1982) (“SSI benefits” or “Title XVI benefits”), on Majrch 6, 1980. After the initial denial of benefits, Kovar fought her way through the administrative labyrinth of appellate procedures, until this Court granted her motion for summary judgment and ordered the Secretary to grant benefits, on April 16, 1984. While her appeal was pursued, Kovar and her dependent adult son subsisted jon welfare benefits provided by Cuyahoga County.

On August 24, 1984, Kovar’s counsel, Anthony de la Pena, filed a motion requesting attorneys’ fees pursuant to 42 U.S.C. § 406(b)(1) (1982) , for the successful litigation of his client’s claim. Following the Court’s denial of the motion pending resubmission of the petition with required documentation, de la Pena filed a new motion for attorneys’ fees on May 1, 1985. On May 13, the Court granted the motion for a fee award of $4,060.00. The Secretary did not file a response to either fee petition, nor did she appeal the Court’s award.

In compliance with the Court’s order to award benefits based on Kovar’s disability, the Secretary computed past-dqe benefits pursuant to both Title II and ¡Title XVI. She determined that Kovar was ¡entitled to SSI benefits of $14,928.60 for thé period of March 1980 through November! 1984, and that the sum was sent to the Cuyahoga County Department of Welfare to reimburse the department for welfare benefits previously paid to Kovar. The Secretary did not withhold any amount of the SSI benefits for attorneys’ fees. The Secretary then determined that Title II disability benefits of $11,033.70 had accrued during Kovar’s appeal, but she reduced that amount by $10,106.07 — the amount which would have been deducted from Kovar’s SSI benefits if the disability benefits had been paid simultaneously each month. Of the remaining $927.63, the Secretary withheld $231.90, or twenty-five percent, for attorneys’ fees pursuant to § 406(b)(1). The Secretary also concluded that Kovar’s dependents were entitled to $5,114.00 in past-due benefits, and she withheld $1,278.50 for attorneys’ fees. Thus, a total of $1,510.40 was withheld by the Secretary for de la Pena’s fee.

On September 30, 1985, the Secretary filed her motion for relief from judgment, unaccompanied by brief, which states in full:

Now comes the defendant, the Secretary of Health and Human Services, and moves this Honorable Court to relieve her from its judgment dated May 18, 1985. The Court’s order of that date awarded attorney fees pursuant to 42 U.S.C. § 406(b) in the amount of $4,060.00.
Only $1,510.40 has been withheld from the retroactive benefits owed to plaintiff. See attached Past Due Benefits Statements. The Secretary may not authorize payment of attorney fees in excess of the amount withheld. 42 U.S.C. § 406(b).
Therefore, the Secretary requests that the May 18, 1985 order be modified to award $1,510.40.

This Court, therefore, must consider whether it erred in its attorneys’ fee award to de la Pena.

II.

Since § 406(b)(1) provides that a district court can award attorneys’ fees not in excess of twenty-five percent of past-due benefits and that the Secretary can certify a fee out of past-due benefits, the Secretary’s motion must be resolved by determining the meaning of “past-due benefits.” Although the regulations promulgated by the Secretary purport to define this term for the purposes of fee awards, this definition does not clarify the ambiguity created when retroactive awards of Title II and Title XVI benefits are made concurrently.

Section 1127 of the Social Security Act, 42 U.S.C. § 1320a-6 (1982) (“§ 1127”), requires that SSI disability benefits be adjusted when Title II disability benefits are retroactively awarded. It provides in pertinent part:

Notwithstanding any other provision of this Act, in any case where an individual—
(1) makes application for benefits under ... [Title II] and is subsequently determined to be entitled to those benefits, and
(2) was an individual with respect to whom supplemental security income benefits were paid under ... [Title XVI] (including State supplementary payments which were made under an agreement pursuant to section 212 of Public law 93-66) for one or more months during the period beginning with the first month for which a benefit described in paragraph (1) is payable and ending with the month before the first month in which such benefit is paid pursuant to the application referred to in paragraph (1),

the benefits (described in paragraph (1)) which are otherwise retroactively payable to such individual for months in the period described in paragraph (2) shall be reduced by an amount equal to so much of such supplemental security income benefits (including State supplementary payments) described in paragraph (2) for such month or months as would not have been paid with respect to such individual or his eligible spouse if the individual had received the benefits under ... [title II] at the times they were, regularly due during such period rather than retroactively; and from the amount of such reduction the Secretary shall reimburse the State on behalf of which such supplementary payments were made for the amount (if any) by which such State’s expenditures on account of such supplementary payments for the period involved exceeded the expenditures which the State would have made (for such period) if the individual had received the benefits under title II at the times they were regularly due during such period rather than retroactively. An amount equal to the portion of such reduction remaining after reimbursement of the State under the preceding sentence shall be covered into the general fund of the Treasury.

This provision was enacted to prevent a windfall to claimants entitled to both Title II and Title XVI benefits, who might receive a retroactive award of disability benefits after full SSI benefits had already been paid. S.Rep. No. 408, 96th Cong., 2d Sess. 78, reprinted in 1980 U.S.Code Cong. & Ad.News, 1277, 1356.

Several federal district courts have addressed the issue of how attorneys’ fees sanctioned by § 406(b) should be calculated when retroactive benefits under Titles II and XVI are awarded concurrently. The Secretary has repeatedly asserted the position that “past-due benefits” constitute the sum that a claimant will receive as a retroactive award after offsets, such as that required by § 1127. Thus, th¿ Secretary argues that § 406(b) entitles aj successful attorney to twenty-five percent; of the disability benefits remaining after a full retroactive award of SSI benefits is made, followed by a reduced award of disability benefits pursuant to § 1127.

This approach has been unanimously rejected by the district courts, including the only court within the Sixth Circuit to rule on this issue. In Carlisi v. Secretary of Health and Human Services, 583 F.Supp. 135, 138 (E.D.Mich.1984), the court found that the method of calculating attorneys’ fees urged by the Secretary defeated one of the purposes underlying § 406 — providing incentive for attorneys to represent Social Security claimants. The court also indicated that § 1127 was not applicable to a claimant receiving concurrent retroactive benefits, since “[t]he statute specifically provides for adjusting retroactive disability benefits when an individual ‘wasj an individual with respect to whom supplemental security income benefits were ptkd’ during any month in which the individual is found to have been entitled to disability benefits” (emphasis in original). Id. at 138. In holding that attorneys’ fees should lie calculated by computing and paying disability benefits before computing and paying SSI benefits, the court concluded:

When disability and SSI benefits are concurrently awarded the Secretary could just as easily first compute and pay the accrued disability benefits, withholding 25% of that award for attorney’s fees, and then compute the accrued SSI benefits taking into account the retroactive disability benefits paid to the claimant.

Id. at 138 (footnote omitted). Accord Burnett v. Secretary of Health and Human Services, 563 F.Supp. 789 (W.D.Ark.1983), rev’d, 756 F.2d 621 (8th Cir.1985); McKenzie v. Heckler, 602 F.Supp. 1150, order supplemented and stay denied, 605 F.Supp. 1217 (D.Minn.1985); Wheeler v. Heckler, 607 F.Supp. 646 (D.N.J.1985).

In Burnett v. Heckler, 756 F.2d 621 (8th Cir.1985), the court held that the amount of retroactive benefits payable for purposes of an award of § 406(b) fees is the amount of retroactive disability benefits reduced by the SSI windfall offset. This Court is not bound by the opinion of the Eighth Circuit Court of Appeals, and it respectfully suggests that the appellate court erred in its reversal of the district court’s decision.

First, the Eighth Circuit relies heavily upon the definition of “past-due benefits” as “the total amount of benefits payable under Title II ...” pursuant to 20 C.F.R. § 404.1703 (1985). Id. at 625. This regulation is not inconsistent with the district courts’ interpretation, however. There is no doubt that the entire retroactive Title II award is “payable” to the claimant; nevertheless, it is subject to deductions and liens, such as the attorneys’ fee award itself. Motley, 605 F.Supp. at 93.

Second, the circuit court implies that its interpretation of the interrelated provisions of the Social Security Act best fosters the policies animating these provisions. While it recognizes that § 406(b) was established in order to provide an incentive for attorneys to represent social security claimants, id. at 625, the court states that the direct payment of fees by the Secretary to attorneys, rather than the amount of the fees, is the primary incentive. This reading also advances the statute’s goal of protecting claimants from paying a large portion of their retroactive benefits to their lawyers. Id. at 626. However, this Court cannot seriously entertain the notion that the direct payment of a minimal amount of fees is an incentive for a lawyer to invest the many hours needed to prevail at the district court or appellate court level after exhausting administrative appeals. By artificially reducing the amount of fees which an attorney can receive following a concurrent award of disability and SSI benefits, the Eighth Circuit’s interpretation of § 406(b) may result in an incentive contrary to the policy of encouraging representation of these claimants — namely, an incentive to avoid applying for SSI benefits for their clients. Such a result would be intolerable, since SSI benefits by definition are available only to claimants with severe financial need. And while returning as large a payment of retroactive benefits as possible to the claimant is certainly a desirable goal, a policy which strongly encourages attorney representation is essential in order for many claimants to establish their entitlement to any benefits, prospective as well as retroactive.

Finally, the Burnett court accepts the Secretary’s argument that a district court’s award of attorneys’ fees in excess of the amount withheld by the Secretary violates § 406(b)’s command to “certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits.” Id. at 627. The Secretary’s argument is circular, since she submits that because she withheld less than twenty-five percent of the claimant’s disability benefits, the attorney must receive less than twenty-five percent. Such an interpretation would make the Secretary, rather than the Court, the arbiter of § 406(b) attorneys’ fees. This provision is clearly meant to indicate that the successful claimant, rather than the government, is responsible for payment of attorneys’ fees. It does not provide the Secretary with a shield created by her own acts. Since this Court does not find the opinion of the Eighth Circuit in Burnett persuasive, it will join in the interpretation of the Carlisi court, holding that § 406(b) fees should be withheld from Title II benefits before the § 1127 offset is performed.

The requirement of Title' 42 U.S.C. § 1383(g)(1) (1982) that the states be reimbursed for general assistance payments rendered during the pendency of an appeal does not demand a construction of the statute which minimizes attorneys! fees under § 406(b)(1). Such a construction merely provides a windfall to the state. Since the Secretary can withhold prospective SSI benefits to reimburse a state providing interim assistance, 20 C.F.R. § 416.525 (1985), the Secretary could have paid the Title II benefits initially and withheld benefits from later SSI payments to ¡compensate Cuyahoga County. Carlisi, 583 F.Supp. at 138, n. 6.

The Court holds, then, that thie maximum fee in this case is properly calculable by determining one-fourth of the gross amount of Title II benefits to which the claimant is entitled. Since the Secretary has unfairly deprived de la Pena of the fee awarded by the Court by payitig the welfare department and refusing td certify the correct amount of fees in the past-due benefits, she will bear the burden ¿f recapturing the correct amount of benefits from the claimant. As the Secretary can recover over-payments of benefits pursuant to 42 U.S.C. § 404 (1982), she shall pay de la Pena the fee awarded by the Court and recoup the withholding deficit by deducting twenty-five percent of Kovar’s current disability benefits until the repayment is complete. See Motley, 605 F.Supp. at 94.

ra.

Upon recalculation, the Court’ notes that it erred in arriving at the amount' of fees which could properly be paid to de la Pena. In order to comply with § 406(b)’s twenty-five percent limit, the Court reduces its fee award to $4,037.05.

The Secretary's motion for relief from judgment is denied, and she is ordered to perform in accordance with this decision.

IT IS SO ORDERED.

      . Title 42 U.S.C. § 406(b)(1) (1982) provides in pertinent part:
      Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Secretary may, notwithstanding the provisions of section 405(i) of this title, certify the amount of such fee for payment to such attorney out of) and not in
      addition to, the amount of such past-due benefits.

      . The letter informing Kovar of this transaction reported that "[y]ou agreed in writing to have this payment sent there to pay back the money you received from Cuyahoga County Welfare Department while we completed the work on your application for Supplemental Security Benefits." This transfer is permitted by 42 U.S.C. § 1383(g)(1) (1982), which provides:
      Notwithstanding subsection (d)(1) of this section and subsection (b) of this section as it relates to the payment of less than the correct amount of benefits, the Secretary may, upon written authorization by an individual, withhold benefits due with respect to that individual and may pay to a State (or political subdivision thereof if agreed to by the Secretary and the State) from the benefits withheld an amount sufficient to reimburse the State (or political subdivision) for interim assistance furnished on behalf of the individual by the State (or political subdivision).

      . This adjustment is permitted by 42 U.S.C. § 1320a-6 (1982). See infra at 969-70.

      . Title 20 C.F.R. § 404.1703 (1985) provides in pertinent part:
      "Past-due benefits” means the total amount of benefits payable under title II of the Act to all beneficiaries that has accumulated because of a favorable administrative or judicial determination or decision, up to but not including the month the determination or decision is made.

      . In 1984, § 1127 was amended by § 2615 of the Deficit Reduction Act, Pub.L. No. 98-369, to be codified at 42 U.S.C. § 1320a-6. However, the amendment is applicable to retroactive benefits paid after February 1, 1985. See Pub.L. No. 98-369, § 2615(b). Since Kovar’s retroactive benefits were paid in December, 1984, this decision is controlled by the unamended version of § 1127 as construed by the federal (Courts.

      . Although the amended § 1127 is not applicable in this case, it would not require a different result. The amendment was drafted by Congress to permit the adjustment of retroactive SSI benefits paid after an award of retroactive disability benefits. H.Conf.Rep. No. 98-861, 98th Cong., 2nd Sess. 1391, reprinted in 1984 U.S. Code Cong. & Ad.News 697, 2079. The amendment does not purport to legislatively overrule the decisions requiring calculation of attorneys' fees from the unadjusted amount of Title II benefits. Neither does it require the Secretary to pay retroactive SSI benefits before retroactive disability benefits. McKenzie, 602 F.Supp. at 1158. Accord Motley v. Heckler, 605 F.Supp. 88 (W.D.Va.1985).

      . Even a district court which is bound by the Burnett opinion has read it very narrowly. Before the appellate court decided Burnett, Judge Murphy of the District of Minnesota held that the Secretary’s policy of postponing the calculation of disability benefits until after calculating SSI benefits, activating § 1127 by the concurrent award, violated the Social Security Act and the Administrative Procedure Act. McKenzie, 602 F.Supp. at 1150. Relying on the intervening Eighth Circuit decision in Burnett, the Secretary petitioned the court to stay its order enjoining the payment and calculation of SSI benefits prior to disability benefits. In her opinion denying the request for a stay, Judge Murphy observed that the circuit court’s opinion merely decided the correct method of calculating attorneys’ fees, rather than the operation of the offset provision of § 1127. She remained unconvinced by the Secretary’s argument that the payment of retroactive disability benefits before SSI benefits constitutes a windfall. Further, Judge Murphy noted that the Eighth Circuit was not faced with the reconciliation of the Secretary" s interpretation of the offset provision with the policies behind the provisions which permit the payment of retroactive SSI benefits, but not disability benefits, to welfare agencies as reimbursement for interim assistances, 42 U.S.C. §§ 407, 1383(g)(1) (1982). McKenzie v. Heckler, 605 F.Supp. 1217 (D.Minn.1985).

      . Nor is the Court’s decision here controlled by Cloyd v. Weinberger, 527 F.2d 1167 (6th Cir.1975), which held that worker’s compensation benefits are reduced from the gross amount of benefits before § 406(b) fees are calculated. There is no language in that opinion indicating that the worker’s compensation benefits were awarded concurrently with the disability benefits, thereby permitting the Secretary to award disability benefits first. Furthermore, the effect of 42 U.S.C. § 424a (1982), which controls the reduction of benefits when worker’s compensation has been received, is not at issue here. Wheeler, 607 F.Supp. at 649, n. 2.

      . In a similar dispute where its Department of Welfare was reimbursed following a retroactive award of Title XVI benefits, Pennsylvania agreed to pay a proportionate share of attorneys’ fees for recovering the state's lien. Reid v. Heckler, 735 F.2d 757, 759 (3d Cir.1984).

      . Title II benefits were awarded to Kovar in the amount of $11,033.70 and to her dependents in the amount of $5,114.50. One-fourth of that $16,148.20 total equals $4,037.05.


source: Caselaw Access Project

author: WILLIAM C. LEE, District Judge.

license: Public Domain

text:
    Charles P. SMITH, Petitioner, v. STATE OF INDIANA, Respondent.
    Civ. No. F 85-479.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Nov. 27, 1985.
    Charles P. Smith, pro se.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on petitioner’s (“Smith”) motion to proceed in for- ma pauperis filed November 20, 1985. Smith requests leave to so proceed in order that he could file an “Emergency Petition for Transfer of State Court Proceedings to Federal Court” in which he seeks to have his state criminal post-conviction relief proceedings transferred to this court. For the following reasons, the motion to proceed in forma pauperis will be granted, but the petition for transfer will be denied.

Petitioner is proceeding pro se. Pro se pleadings are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The district court’s role is to ensure that the claims of pro se litigants are given “fair and meaningful consideration.” Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir.1984); Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir.1982). This court also recognizes that federal courts have historically exercised great tolerance to ensure that an impartial forum remains available to plaintiffs invoking the jurisdiction of the court without the guidance of trained counsel. Pro se motions and complaints such as the petitioner’s are held to less stringent pleading requirements; rigor in the examination of such motions, complaints and pleadings is inappropriate.

The court will grant Smith’s motion to proceed in forma pauperis so as to consider the merits of the underlying petition to transfer. In the petition to transfer, Smith alleges that the trial judge hearing his post-conviction relief motion is biased against Smith, so that the post-conviction proceedings must be removed to this federal court.

The facts alleged in the proposed “Emergency Petition for Transfer,” which the court accepts as true, reveal the following procedural history. In September, 1983, Smith was convicted of murder, and in October, 1983, was sentenced to die in Indiana’s electric chair. Smith’s conviction and death sentence were affirmed by the Indiana Supreme Court on March 26, 1985. During his appeal, Smith corresponded with Nile Stanton, who became Smith’s attorney. Stanton obtained a stay of execution on July 18, 1985, and then filed a petition for post-conviction relief, which is still presently pending before the trial judge, the Honorable Alfred Moellering.

Smith seeks to remove the' post-conviction relief proceedings under 28 U.S.C. § 1443, which provides:

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the courts or such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.'

Despite the procedural requirement of 28 U.S.C. § 1446(c)(2) that “[a] petition for removal of a criminal prosecution shall include all grounds for such removal” and that “[a] failure to state grounds which exist at the time of the filing of ithe petition shall constitute a waiver of such grounds,” Smith refers only to 18 U.S.C. § 241, the criminal statute for conspiracy to violate a person’s civil rights, and 42 U.S.C. § 1985, the civil rights statute against conspiracies to violate civil rights.

Smith’s “Emergency petition for Transfer” cannot be granted for several reasons. First, the petition is clearly untimely. 28 U.S.C. § 1446(c)(1) provides:

A petition for removal of a criminal prosecution shall be filed not later than thirty days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that forjgood cause shown the United States district court may enter an order granting the petitioner leave to file the petition at a later time.

This provision requiring the petil ion’s filing before trial “is imperative and mandatory, must be strictly complied with, and is to be narrowly construed.” United States ex rel. Walker v. Gunn, 511 F.2d 1024, 1026 (9th Cir.1975). See State of New Jersey v. Chesimard, 555 F.2d 63, 65 (3d Cir.1977). Smith’s trial was held two years before this petition was filed. The fact that the current state proceeding is for post-conviction relief accentuates this fact. Even if the post-conviction proceedings could somehow be viewed as independent, the court would look to the underlying September, 1983 trial as the critical “trial” date for purposes of § 1446(c)(1). See Edwards v. City of Batesville, 478 F.Supp. 855, 856-57 (E.D.Ark.1979). Nor has Smith shown any “good cause” for granting the petition at this late date. A claim that Judge Moellering’s prejudice has only now surfaced is not good cause because Smith’s future appellate remedies, as discussed below, can remove whatever effect the prejudice would have. Therefore, the petition is untimely.

Second, Smith has not offered a competent ground upon which to invoke § 1443. It is clear that § 1443(2) does not apply, as a prosecution for murder is certainly not a prosecution for an act “under color of authority derived from any law providing for equal rights” or for a refusal to do an act inconsistent with an equal rights law. Thus, Smith’s petition must proceed under § 1443(1). The Supreme Court requires § 1443(1) petitions to satisfy a two-pronged test:

First, it must appear that the right allegedly denied the removal petitioner arises under a federal law “providing for specific civil rights in terms of racial equality” ... Second, it must appear, in accordance with the provisions of § 1443(1), that the removal petitioner is “denied or cannot enforce” the specific federal rights “in the courts of [the] State.”

Johnson v. Mississippi, 421 U.S. 213, 219-20, 95 S.Ct. 1591, 1595, 44 L.Ed.2d 121 (1975), quoting Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 1790, 16 L.Ed.2d 925 (1966). Failure to satisfy either prong of the test is fatal. Williams v. State of Mississippi, 608 F.2d 1021, 1022 (5th Cir.1979).

Smith’s petition fails both prongs of the test. Under the first prong, the federal right allegedly denied must arise under a federal law “providing for specific civil rights in terms of racial equality.” Smith cites two statutes in his petition: 18 U.S.C. § 241 and 42 U.S.C. § 1985. Section 241 is a criminal provision which prohibits a conspiracy “to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States” or conspiring to “prevent or hinder his exercise or enjoyment of any right or privilege so secured.” Section 1985 creates a civil remedy for conspiracy to violate civil rights. Neither statute on its face indicates that it provides “civil rights in terms of racial equality,” although being civil rights statutes, they have their roots in racial turmoil. But even if they can be read as satisfying the first prong, Smith has completely failed to show how these statutes were violated. Both require a conspiracy by two or more people; the facts alleged in the petition indicate that it is only Judge Moellering who harbors a personal bias against Smith and is therefore making the post-conviction proceedings unfair. Nor has Smith indicated that the bias against him is anything other than personal; he has not even alleged the prerequisite racial element that is implicit in the first prong of the test. As the Supreme Court has stated:

Claims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination will not suffice. That a removal petitioner will be denied due process of law because the criminal law under which he is prosecuted is allegedly vague or that the prosecution is assertedly a sham, corrupt, or without evidentiary basis does not, standing alone, satisfy the requirements of § 1443(1).

Johnson, 421 U.S. at 219, 95 S.Ct. at 1595; City of Greenwood v. Peacock, 384 U.S. 808, 825, 86 S.Ct. 1800, 1811, 16 L.Ed.2d 944 (1966). Therefore, Smith’s petition does not meet the first prong of the test.

Smith’s petition fails the second prong because of the remedies yet available to him. Currently, he has a petition for post-conviction relief pending in the Allen County Superior Court. Such petitions are governed by the Indiana Post Conviction Remedy Rules (“P.C. Rules”). P.C. Rule 1, § 7 specifically provides that

An appeal may be taken by the petitioner or the state from the final judgment in [a post-conviction relief] proceeding, under rules applicable to civil actions. Jurisdiction for such appeal shall be determined by reference to the sentence originally imposed. The Supreme Court shall have exclusive jurisdiction in cases involving an original sentence of death____

Thus, Smith has an appellate remedy available should his post-conviction relief not be granted by the Allen County Superior Court. Smith has offered nothing to indicate that the Supreme Court would not recognize the rights he claims were violated in his capital trial, so that it does not appear that Smith is “denied or cannot enforce” the specific rights claimed in the courts of Indiana. Smith’s petition therefore fails the second prong of the test, so that Smith has not offered a competent basis for removal.

There is yet a third reason for denying Smith’s petition to transfer which is independent of the requirements of § 1443(1). In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that a federal court could not enjoin a state crimjinal prosecution absent a showing of umjsual circumstances that call for equitable relief. 401 U.S. at 54, 91 S.Ct. at 755. The Younger decision was premised on principles of federalism and equity:

The precise reasons for this long-standing public policy against federal court interference with state court proceedings have never been identified but the primary sources of the policy are plain. One is the basic doctrine of equity jurisdiction that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief ... This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of “comity,” that is, the proper respect for state functions____

Id. at 43-44, 91 S.Ct. at 750. The Supreme Court has repeated these concerns again and again. See e.g., City of Los Angeles v. Lyons, 461 U.S. 95,103 S.Ct. 1660, 1670, 75 L.Ed.2d 675 (1983); Trainor v. Hernandez, 431 U.S. 434, 440-44, 97 S.Ct. 1911, 1916-18, 52 L.Ed.2d 486 (1977). While the Younger abstention doctrine recognized in these cases is directed against enjoining pending state criminal proceedings, the underlying principles have a broader application in cases such as this. Given the legitimate concern for respecting the power of states and state courts to carry out criminal prosecutions, federal courts should not remove such prosecutions absent compelling reasons of equity. Here, Smith has at least two remedies at law available to him: post-conviction relief (including an appeal of Judge Mollering’s eventual ruling to the Indiana Supreme Court), and federal habeas corpus relief. Whatever injury would be worked by keeping the case in state court can be eliminated through these as yet unused remedies. There are therefore no compelling equitable considerations which justify federal court intervention. Further, the fact that this case has gone to trial, been affirmed on appeal, and is now at the post-conviction relief stage indicates that the state has made a significant investment in the adjudication of Smith’s criminal case. To intervene before the state had a chance to complete its handling of the ease is to seriously violate the principles of federalism underlying the separation between state and federal courts. With no reasons to justify ignoring these principles, this court will not damage the vital independence state courts enjoy.

Smith may some day have his day in federal court — federal habeas corpus relief can be sought if the ultimate result of the state post-conviction relief request is not favorable. However, it is premature to seek that day in court presently; the post-conviction relief proceedings cannot be removed from the state court, and this court is bound by principles of federalism to avoid involvement in this case until the post-conviction proceedings are complete.

For the reasons stated above, petitioner’s motion to proceed in forma pauperis is hereby GRANTED, and the Petition for Removal of the state court post-conviction proceedings to this court is hereby DENIED. This matter is hereby REMANDED to the Allen County Superior Court.

      . Several pages of the petition relate allegations of drug transactions by prosecutors, attorneys, and police officers in Allen County. These facts are completely irrelevant to Smith’s petition to transfer because they do not offer any competent basis for transfer.

      . Although not directly relevant to this analysis, the court also points out that Smith will have available (once he exhausts his state remedies by pursuing his post-conviction relief petition through the Indiana Supreme Court) the possibility of federal habeas corpus relief. On September 26, 1985, the Judicial Council of the Seventh Circuit adopted a new set of rules for both the district courts and the Court of Appeals governing petitions for writs of habeas corpus in cases involving petitioners under a sentence of capital punishment. See 29 Res Gestae 256-258 (Nov. 1985)). These rules will provide for orderly and efficient processing of habeas petitions in capital cases.


author: SIMMONS, District Judge.

text:
    UNITED STATES of America v. Cathy Lynn RODERICK, a/k/a Cathy L. Willey Peggy Yatsko, a/k/a Helen B. Farmer.
    Crim. No. 85-104.
    United States District Court, W.D. Pennsylvania, Criminal Division.
    Nov. 27, 1985.

      Bradley Barbin, Asst. U.S. Atty., Pittsburgh, Pa., for U.S.
    Thomas S. White, Asst. Federal Public Defender, Pittsburgh, Pa., for Roderick.
    W. Penn Hackney, Pittsburgh, Pa., for Yatsko.
   OPINION

SIMMONS, District Judge.

In this four count indictment, both of the Defendants Cathy Lynn Roderick and Peggy Yatsko, are charged in Count One with unlawfully possessing a stolen United States Treasury check, in violation of 18 U.S.C. §§ 1708 and 2; Count Two of the indictment charges the Defendant Peggy Yatsko with the uttering and publishing of that check in violation of 18 U.S.C. § 495. Count Three of the indictment charges the Defendant Cathy Roderick with possessing a stolen United States Treasury check in violation of 18 U.S.C. § 1708; and Count 4 charges the Defendant Roderick with the uttering and publishing of that check in violation of 18 U.S.C. § 495.

The Defendant Cathy Roderick has filed a Motion to Suppress Identification Evidence and a Motion to Dismiss the Indictment, the Motion to Dismiss the Indictment was later amended by the Defendant Roderick on July 2, 1985. Defendant Peggy Yatsko has moved to suppress identification evidence. Hearing and argument on all of the pre trial motions was held before this Court on June 28, 1985 and August 2, 1985, the transcripts of those hearings have been filed, all of the parties have submitted briefs in support of their respective positions, and the motions are now ready for decision by this Court.

RODERICK’S MOTION TO DISMISS AND AMENDED MOTION TO DISMISS

The Motion to Dismiss and the amended Motion to Dismiss allege that the above-captioned indictment violates the double jeopardy clause of the United States Constitution, that it is a vindictive prosecution, and finally, that the present prosecution constitutes preindictment delay.

On March 13, 1984, the Defendant Cathy Roderick was charged in a six count indictment, filed in the United States District Court for the Western District of Pennsylvania at Criminal Number 84-47, with violations of 18 U.S.C. §§ 495 and 1708, which allegedly occurred in 1982. On July 12, 1984, that case proceeded to trial before the Honorable Judge Cohill, who on July 14, 1984, granted the Defendant’s motion for mistrial. The mistrial was based on the finding by Judge Cohill that a prejudicial hearsay statement about the Defendant Roderick’s prior criminal record was made by a government witness in the presence of the jury, and that a cautionary instruction to disregard that testimony would be ineffective. (Tr. of Jury Trial, July 12-16, Docket Number 27 of Criminal Number 84-47, at 163-173). Judge Cohill later found that there was no prosecutorial misconduct on the part of the Assistant United States Attorney. (Tr. October 10, 1984, at 25). A retrial of that case was scheduled for October, 1984, and prior to the retrial, Ryan Kennedy, the Assistant United States Attorney, approached the defense concerning a possible plea to an uncharged offense which is now the subject of the above-captioned case, in exchange for the dismissal of the counts at Criminal Number 84-47. With respect to the offense charged in Counts 3 and 4 of the above-captioned indictment, Kennedy testified at the suppression hearing held before this Court on June 28, 1985, that he received information from a Postal Inspector in October of 1984 that a check of approximately $1400 had been presented to a furniture store in Washington, Pennsylvania, and the operator of that store identified the Defendant Cathy Roderick as being the person who presented the check without the authorization of the payee. (Tr. 17-18).

Kennedy did not recall discussing any laboratory reports with the Postal Inspector prior to the time he approached the Defendant’s attorney concerning this possible plea bargain. (Tr. 21). Kennedy suggested that if the Defendant plead guilty to that uncharged offense, a plea bargain could be worked out with respect to the counts which were then presently charged. However, the Defendant continued to maintain her innocence and declined to plea at that time.

A plea bargain was later reached with respect to the charges filed at Criminal Number 84-47, and the Defendant Roderick entered a guilty plea to Counts 1 and 5 of that indictment in November, 1984. Kennedy informed defense counsel that the investigation of the $1400 check involved with the Weber Furniture Company would continue. (Tr. 25).

The Defendant Roderick was sentenced November 8,1984 on Counts 1 and 5 of the indictment at Criminal Number 84-47, for a period of six months, to run concurrently with a state sentence that the Defendant was then serving, and Counts 2, 3, 4 and 6 of that indictment were thereafter dismissed. Defendant Roderick finished serving the federal sentence on April 7, 1985.

The above-captioned indictment was filed on May 2, 1985, and charges the Defendant Roderick with violations of 18 U.S.C. §§ 2, 495 and 1708, which allegedly occurred in April and May of 1984, approximately two months after the indictment at Criminal Number 84-47 was filed on March 13, 1984. The charges contained in the indictment previously filed at Criminal Number 84-47 pertain to violations of 18 U.S.C. §§ 495 and 1708 which occurred in April, August and September of 1982. Counts 3 and 4 of the present indictment pertain to the discussion of the then uncharged alleged misconduct that Kennedy discussed with Defendant Roderick and her counsel while she was awaiting retrial on the charges at Criminal Number 84-47.

The Defendant contends that the government’s conduct in delaying prosecution on Counts 3 and 4 of the present indictment, and in bringing the additional charge contained in Count 1 of the indictment, constitutes vindictive prosecution which requires the dismissal of the present indictment. Defendant cites United States v. Krezdom, 718 F.2d 1360 (5th Cir.1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d 742 in support of this motion. In Krezdorn, the Defendant was convicted on four of five -counts of forging signatures on border crossing applications, but the Fifth Circuit reversed that conviction, holding that it was reversible error for the trial court to have admitted evidence of forged border crossing applications which were not charged in the indictment. Upon remand, the Defendant was reindicted on the four counts upon which he had previously been convicted, and Krezdorn was also in-dieted for conspiracy to forge immigration documents. The forgeries in the substantive counts were charged to be overt acts in furtherance of the conspiracy. The new conspiracy charge increased the potential penalties under the four original counts by five years of imprisonment and $10,000 in fines. The Krezdorn Court held that there was no prosecutorial vindictiveness involved, and set forth the following standard:

If the defendant challenges as vindictive a prosecutorial decision to increase the number or severity of charges following a successful appeal, the court must examine the prosecutor’s actions in the context of the entire proceedings. If any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor’s decision to increase the severity of charges was motivated by some purpose other than a vindictive desire to deter or punish appeals, no presumption of vindictiveness is created. In trying the issue of vindictiveness, the prosecutor may offer proof of the sort suggested in Hardwick that as a matter of fact his actions were not vindictive. The burden of proof (by a preponderance of the evidence) remains on the defendant who raised the affirmative defense. If, on the other hand, the course of events provides no objective indication that would allay a reasonable apprehension by the defendant that the more serious charge was vindictive, i.e., inspired by a determination to “punish a pesky defendant for exercising his legal rights,” a presumption of vindictiveness applies which cannot be overcome unless the government proves by a preponderance of the evidence that events occurring since the time of the original charge decision altered that initial exercise of the prosecutor’s discretion.

718 F.2d at 1365.

The Krezdorn Court ultimately concluded that the prosecutor’s actions were taken to pursue a course indicated by the appellate opinion rather than to penalize the defendant for exercising his right of appeal, and that the additional charge would not result in Defendant receiving a greater sentence that that which was originally imposed.

In the instant case, the conduct which was charged in the above-captioned indictment could not have been charged in the indictment previously filed at Criminal Number 84-47, since the alleged offenses in the above-captioned indictment did not occur until after the indictment at Criminal Number 87-47 had been filed. This is unlike the situation in Krezdorn where the superseding indictment which charged the conspiracy could have been included in the initial charges. Here there was nothing which had occurred since the time of the original charge which would alter the initial exercise of the prosecutor’s discretion, and a presumption of vindictiveness would not apply.

Although the Defendant refused to plea bargain, the bringing of additional charges after the refusal to plea bargain does not constitute vindictive prosecution. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); United States v. Allsup, 573 F.2d 1141 (9th Cir.), cert. denied, 436 U.S. 961, 98 S.Ct. 3081, 57 L.Ed.2d 1128 (1978); United States v. Heldt, 745 F.2d 1275 (9th Cir.1984). A prosecutor’s decision to charge a defendant with a certain offense “does not impose an improper ‘penalty’ on a defendant unless it results from the defendant’s exercise of a protected legal right, as opposed to the prosecutor’s normal assessment of the societal interests to be vindicated by the prosecution.” United States v. Taylor, 749 F.2d 1511 (11th Cir.1985). An increase in charges after a threat by a prosecutor to increase the charges against a defendant who refuses to plead guilty after a mistrial on the original indictment does not constitute prosecutorial vindictiveness. United States v. Mays, 738 F.2d 1188 (11th Cir.1984).

Here, the government advised the Defendant before she entered the guilty plea at Criminal Number 84-47 that it intended to pursue the matter which resulted in the subsequent charges being filed. The above-captioned indictment was not brought to deter the defendant from the exercise of her legal rights, nor was it brought to deter or punish her for an appeal. The government did not delay any charges which could have been brought at the time the indictment was filed at Criminal Number 84-47, nor did it vindictively bring the additional charges in the above-captioned case. The Defendant was never prosecuted for an additional offense following a successful appeal on the first offense. There is no objective evidence to indicate that the purpose of the above-captioned charges was to punish the defendant for exercising her legal rights.

The Defendant contends that a presumption of vindictiveness exists because the Defendant was unnecessarily detained by the United States Marshal’s office after being released on an OR bond, because her ability to serve a state sentence was interfered with, and because she experienced problems with receiving public assistance and medical treatment. All of these events occurred after the above-captioned indictment was filed. Although there was a delay in processing the Defendant at the Marshal’s office, and the ability of the Defendant to serve her state sentence was interfered with by the fact that the above-captioned case was brought against the Defendant, it does not appear that there was any vindictive motive on the part of the Government at the time the indictment was filed. The decision to bring the above-captioned indictment did not result from the fact that Defendant exercised a protected legal right. There is also no indication in the record that the government requested Defendant’s physician to stop treating the Defendant, or that the United States ever arbitrarily interfered with Defendant’s welfare check.

The Defendant also contends that this indictment violates the double jeopardy clause and that the United States had a duty to bring all of the charges at the same time, since it knew of the additional charges prior to the disposition of the matter at Criminal Number 84-47. Defendant also claims that the instant action violates fundamentals of fairness and is therefore a violation of Defendant’s due process; and that the delaying of the prosecution of the present charges is prejudicial to Defendant’s Sixth Amendment right to a speedy trial.

The double jeopardy clause prohibits repeated attempts to convict an individual for an alleged offense through a series of prosecutions. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The double jeopardy clause prevents a person from being twice put in jeopardy and protects against the risk that an accused for a second time will be convicted of the same offense for which he was initially tried.

Here the Defendant previously plead guilty to possessing two United States Treasury checks in April and September of 1982. Although the defendant is also charged here with possessing United States Treasury checks, the misconduct alleged occurred in April and May of 1984. The above-captioned case does not arise from the same factual situation presented in the case previously brought at Criminal Number 84-47, and there is not a period of continuous and uninterrupted conduct flowing from the 1982 alleged misconduct, since nearly two years separate the misconduct alleged in the above-captioned case from the misconduct involved in the case filed at Criminal Number 84-47.

Defendant cites United States v. Keller, 624 F.2d 1154 (3d Cir.1980), as standing for the proposition that the Third Circuit disfavors multiple or fragmented prosecutions. Keller, however, was concerned with the doctrine of collateral estoppel in a criminal case where there was an evidentiary use of matters which were determined in the original proceeding; that is not the case here. The above-captioned case does not present a situation where there will be a relitigation of decided facts, hence Keller is inapplicable and the double jeopardy clause does not bar the above-captioned action. Likewise, there has been no violation of the Defendant’s due process rights.

With respect to the issue of preindictment delay, the Defendant contends that the present charges should have been brought in the time span between the first trial and the guilty plea to the charges at Criminal Number 84-47, and that due to the government’s delay in bringing the above-captioned indictment, a period of eight months elapsed. However, the United States Attorney testified that it was necessary to investigate the case at the time when the Defendant denied all of the charges, and he continued to investigate the matter after the November 8, 1984 plea in the matter at Criminal Number 84-47. Kennedy also testified that at this time he had not received a report from the Postal Inspector, and did not receive the prosecutive report until around December 21, 1984. The Defendant was also informed at the time she plead guilty at Criminal Number 84-47 that the investigation would continue with respect to the offense which is now charged in the above-captioned case. Under these circumstances, there has been no actual prejudice to the Defendant. The Motion to Dismiss will be denied.

RODERICK MOTION TO SUPPRESS IDENTIFICATION EVIDENCE

The Defendant has moved to suppress the eyewitness identification of the Defendant made by Mr. Abe Weber of the Weber Furniture Store, claiming that the procedures utilized were unduly suggestive and would lead to a substantial likelihood of misidentification, all in violation of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

The evidence presented at the suppression hearing consisted of the testimony of two witnesses, Janet Mondin and Abe Weber. The testimony of Janet Mondin, a clerk at the Weber Furniture Store, established that she knew Cathy Roderick from engaging in previous business transactions with Roderick at the furniture store. Mondin saw Defendant Roderick on May 30, 1984, the date of the misconduct alleged in Counts 3 and 4 of the above-captioned indictment. Mondin testified she remembered Defendant’s face, and although it had been a year or so since she had last seen Roderick, she had previously seen Roderick at least once a month on a regular basis because Roderick had a running account at the furniture store. Tr. August 2, 1985, at 48-52.

Mondin testified that later on May 30, 1984, the police came, but she was not shown any photographs or asked to give any description at that time. (Tr. 58-59). Mondin was shown the photo spread, Government Exhibit A, on April 23, 1985, was asked if she knew anyone in it, and Mondin then selected Cathy Roderick and her sister Peggy Brown. Mondin testified that she did not do any elimination but identified the Defendant Roderick because she recognized her photograph. Tr. 61-163. The photos did not indicate the height or weight of the persons or indicate when they were taken, according to Mondin, and she testified that she was absolutely positive of the identification. Tr. 65. Mondin picked photo number one of Government Exhibit A as the Defendant Cathy Roderick, and photo number five as Roderick’s sister, and the identification was made without Mondin being told that Roderick’s photo was included among those in the photo spread. Mondin was never shown any other photo spreads. Tr. 65, 67, 74.

Mr. Abe Weber, the owner of Weber Furniture, also testified that Cathy Roderick bought merchandise from his store, made payments for a while, and then quit paying. Weber testified that he knows Roderick when he sees her because she came in every month for two years. (Tr. 86).

The photo spread (Government Exhibit A), consists of color photographs of eight white females of the same approximate age. With the exception of one photograph, all photos include a frontal and side view. The hair length varies from short to long.

The photo spread was not impermissibly suggestive. The photos were all in color, similar in size, and were frontal and side views (with one exception, which was not the photograph of the defendant). The witness, Mondin, was not told that the Defendant’s picture was contained in the photographic array, nor was her attention was directed to any one individual. The witness had the opportunity to view the Defendant Roderick on numerous prior occasions, and Mondin testified that she did not “eliminate” anyone, but merely picked out the Defendant. Finally, it was obvious that both Ms. Mondin and Mr. Weber knew the Defendant prior to the time she cashed the check in question, and had ample opportunity to observe her on those prior occasions. Under the totality of the circumstances, this Court cannot say that the procedure was so suggestive or unreliable so as to create a substantial likelihood of misidentification. Defendant Roderick’s Motion to Suppress Identification Evidence will be denied.

YATSKO MOTION TO SUPPRESS IDENTIFICATION

The Defendant Peggy Yatsko has moved to suppress the identification testimony of Mary Jane Smith of the Pittsburgh National Bank in Washington, Pennsylvania, who was shown a photographic array on three occasions, contending that the photos as well as the procedures used created a substantial likelihood of misidentification. On April 3, 1984, Mary Jane Smith, a drive-in window teller for Pittsburgh National Bank in Washington, Pennsylvania, was presented a check payable to William Farmer by an individual purporting to be Helen Farmer, a passenger in a car at the drive-in window. The ear containing “Helen Farmer” left while Ms. Smith was checking to determine if there was an existing account under that name. According to Smith, the individual purporting to be Helen Farmer (who was later identified to be the Defendant Peggy Yatsko), reminded Smith of a former neighbor. Tr. 93. Smith was within three feet of the individual on a clear day, had the opportunity to observe the passenger from the shoulders up, and spoke to her. Tr. 94-96. Smith described the passenger as having short, straight, reddish-brown hair, no glasses, and in her thirties. Tr. 96-97. Smith spoke to an Officer Popeck on the telephone, and described the Defendant to him as resembling a former neighbor, whom Smith and the police officer both knew. Tr. 98-100. Officer Popeck then came to the bank, and showed Smith a photo spread, which was repeated the following day by Postal Inspector O’Hara. Tr. 103. Smith picked the photograph of the Defendant on both occasions, and testified that she was very certain of her identification. Tr. 104-106. She was also shown the photo spread on a third occasion, approximately a year later. Tr. 113. The pictures were spread out loosely in front of Smith, and she could not recall whether there was writing on the photos, although she assumed they must be pictures of persons who had been through the police system. Tr. 118-120. Smith said that she recognized Yatsko’s picture as soon as she saw it.

Postal Inspector Michael O’Hara testified that he presented the photo array identified as Government Exhibit A to Smith on April 4, 1984. O’Hara obtained the pictures from the Washington Police Department, and had nothing to do with the selection of the pictures contained therein. Tr. 130-131.

In determining the reliability of eyewitness identification, this Court must apply the five-part test set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and examine the following factors: (1) opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention at the time of the crime; (3) accuracy of the witness’ prior description; (4) witness’ level of certainty when identifying the suspect; and (5) the length of time between the crime and the confrontation.

Mary Jane Smith testified that she observed the passenger of the car for two or three minutes at the time of the crime, and in daylight. Smith testified that in all of her years of experience at Pittsburgh National Bank she had never seen the Farmer name, and was therefore suspicious from the beginning. Tr. 102. Smith described the passenger as having short, reddish-brown hair, a protruding mouth and a sharp nose, and as reminding Smith of a former neighbor. Tr. 96-98. This was a relatively accurate description of the Defendant under the circumstances. Additionally, Smith was absolutely certain that the person she identified was the person who had occupied the passenger seat. Moreover, Smith was shown the photo spread almost immediately after the incident happened, and the following day as well. The relatively short time between the crime and the photo spread reinforces the reliability of the identification. The photo spread itself was not unduly suggestive. Of the eight photographs shown, four were of individuals with short straight hair. The composition of the photo spread did not unduly focus attention on the Defendant Peggy Yatsko.

In the totality of the circumstances, there was no suggestiveness inherent in the photo array shown to Mary Jane Smith, and the identification was reliable under all of the circumstances. The Motion to Suppress will be denied, and an appropriate Order will be entered.


author: ANNA DIGGS TAYLOR, District Judge.

text:
    NOA AIRSCREW HOWDEN, INC., Plaintiff, v. DEPARTMENT OF the ARMY, John O. Marsh, Jr., Secretary of the Army and John T. Boone, Contracting Officer, U.S. Army Tank Automotive Command, Defendants.
    No. 85 71994.
    United States District Court, E.D. Michigan, S.D.
    Nov. 27, 1985.

      Louis D. Victorino, Los Angeles, Cal., for plaintiff.
    Ross R. Mackenzie, Asst. U.S. Atty., Detroit, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, District Judge.

This action was filed by NO A Airscrew Howden, Inc. (NOA), a disappointed bidder, after the award of two contracts by the United States Army Tank Automotive Command (TACOM) to a competitor, Ronal Industries, Inc. (Roñal). Plaintiff commenced this action pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the Armed Services Procurement Act, 10 U.S.C. § 2301 et seq., and the Office of Federal Policy Procurement Act, 41 U.S.C. § 401 et seq., alleging unfairness in defendants’ conduct of the solicitation process which led to the award of the two contracts. Plaintiff seeks an order enjoining defendants from performance of the contract with Roñal and directing defendants to award the contracts to NOA.

The contracts at issue are for the acquisition of high speed industrial fans for use by the Department of the Army as spare parts for its principal tank, the M-l. There are three separate, but similar fans involved: tubeaxial fans, right side fans and left side fans. Plaintiff had supplied each of the three types of M-l fans to TACOM on at least one prior occasion.

A brief overview of the process through which TACOM acquires its hardware is necessary for an understanding of the facts in this case. Computer-generated hardware requirements are prepared by an organization independent of TACOM in the form of Procurement Requests (PRONS). The PRONS are then forwarded to TACOM procurement officials for solicitation of bids from prospective suppliers. The source selection process may take one of two forms, negotiated or formal bidding, to which different federal acquisition regulations apply.

A Contracting Officer (CO) has ultimate responsibility for contract approval and for ensuring fair, effective contracting which safeguards the interests of the United States. A Contract Specialist (CS), who is supervised by the CO, evaluates bids, prepares documents, negotiates with bidders, and executes an award plan subject to CO approval.

On certain contracts the government requires a contractor to build and test one or more sample units before going into production in order to determine if the units meet contract specifications. These units are called first articles. The procedure may be waived if the contractor has previously produced the article or one of similar complexity. The costs associated with making the first articles and their testing are referred to as First Article Test Costs (FAC).

This case involves three separate bid solicitations which resulted in the award of two contracts to Roñal. Solicitation 544 was initially issued on July 20, 1984 seeking proposals for 196 tubeaxial fans. The solicitation resulted from receipt by TA-COM of two PRONS, one for 86 units issued on March 20,1984, and the other for 110 units issued on April 16, 1984.

Both NOA and Roñal responded to the solicitation. NOA included an FAC breakdown and requested an FAC waiver. The Roñal offer did not indicate whether its price included FAC or not. The quotations were:

With FAC Without FAC

NOA $1,560.31 $1,210.00

Roñal 1,249.00

On August 31, 1984, solicitation 544 was amended to add forty additional units which were requested in a PRON dated April 9, 1984. The CO, defendant John Boone, sent a letter to each firm affording it an opportunity to revise its prices to conform to the increased quantity. Additionally, a breakdown of FAC was requested. Revised offers were received on September 12, 1984.

With FAC Without FAC

NOA $1,489.08 $1,198.14

Roñal 1,195.00

The contract was awarded to Roñal as the low bidder on October 23, 1984.

Solicitation 526 was issued on June 29, 1984 seeking proposals for 50 right side fans. This solicitation was issued in response to a PRON dated April 2, 1984. Both NOA and Roñal bid on the contract. NOA requested and was granted waiver of FAC. The quotations were:

With FAC Without FAC

NOA FAC waived $1,074.90

Roñal $2,480.00 N/A

Solicitation 526 was cancelled on August 30, 1984.

Solicitation 525, requesting proposals for 27 left side fans, was initially issued on June 28,1984 in response to a PRON dated April 9, 1984. Prior to the submission of any bids, solicitation 525 was amended to increase the quantity of left side fans by an additional 46 units which were requested in a PRON dated June 4, 1984. NOA and Roñal both submitted proposals.

With FAC Without FAC

NOA FAC waived $1,975.00

Roñal $2,590.00 N/A

On September 6, 1984 solicitation 525 was amended again. This amendment added the 50 right side fans from cancelled

solicitation 526. Best and final offers were submitted on solicitation 525 on September 18, 1984.

With FAC Without FAC

NOA (right side) FAC waived $1,064.26

Roñal (right side) $1,049.00 N/A

NOA (left side) FAC waived $1,955.64

Roñal (left side) $1,890.00 N/A

The contract for the units identified in solicitation 525 was awarded to Roñal on October 16, 1984.

Plaintiff claims that the defendants unlawfully restricted competition in the solicitation process, converted the solicitation process into an auction and disclosed confidential information regarding one bidder to a competitor.

The Administrative Procedure Act (APA) defines the parameters for judicial review of agency action as follows:

The reviewing court shall ... hold unlawful and set aside agency action, findings and conclusions found to be ... arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law____

5 U.S.C. § 706(2)(A).

A district court’s inquiry into whether government action is arbitrary and capricious is narrow. Bowman Transportation v. Arkansas-Best Freight System, 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974), reh’g denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433. While the court may inquire into whether the decision-makers considered “relevant factors and whether there has been a clear error of judgment ... [t]he court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). It is not the function of the court to provide a reasonable basis for an agency decision; that burden is on the agency. If, however, the agency’s reasoning may be discerned, its decision should be upheld. Bowman Transportation, at 285-86, 95 S.Ct. at 441-42 citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947); Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206 (1945).

In the companion cases of M. Steinthal & Co. v. Seamans, 455 F.2d 1289 (D.C.Cir.1971) and Wheelabrator Corp. v. Chafee, 455 F.2d 1306 (D.C.Cir.1971), the United States Court of Appeals for the District of Columbia Circuit discussed the relevant factors that a court should consider before intervening in the government’s contracting process. Those decisions also delineated the scope of review to be undertaken and the plaintiff’s burden of proof in challenging a CO’s decision. The court held that:

[i]n the field of government procurement, the courts must be sedulous to heed the admonition that their authority to vacate and enjoin action that is illegal must be exercised with restraint less the courts fall into the error of supposing that they may revise ‘action simply because they happen to think it ill-considered, or to represent the less appealing alternative solution available.’

M. Steinthal, at 1298-99 quoting Calcutta East. Coast of India and East Pakistan/USA Conference v. Federal Maritime Commission, 399 F.2d 994, 997 (1968).

In reviewing a CO’s decision, courts must “fully take into account the discretion that is typically accorded officials in the procurement agencies by statutes and regulations.” M. Steinthal, at 1301. In respect to the evaluation of bids submitted in response to a solicitation, the D.C. Circuit held that:

[i]f the court finds a reasonable basis for the agency’s action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.

Id. A procurement decision should not be overturned unless the aggrieved bidder satisfies the “heavy burden” of demonstrating “either that (1) the procurement official’s decisions on matters committed primarily to his own discretion had no rational basis, or (2) the procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations.” Kentron Hawaii, Ltd. v. Warner, 480 F.2d 1166, 1169 (D.C.Cir.1973).

Plaintiff’s first claim is that the defendants purposely restricted competition on the solicitations as part of a scheme to assure award of the contract to Ronal. For this proposition, plaintiff primarily relies on the fact that another possible supplier, Able, Inc. (Able), was not solicited. Although Able had never supplied fans to TACOM, it had apparently provided such products directly to the M-1 tank manufacturer in the past. Plaintiff asserts that no rational basis existed for excluding Able and that the exclusion was in violation of 48 C.F.R. § 15.105 and the Armed Services Procurement Act, 10 U.S.C. § 2304(g).

Plaintiff bolsters its argument that competition was deliberately restricted by pointing out that in 1983, Ronal requested from the TACOM CO samples of the three fans manufactured and previously supplied by NO A for the purpose of duplicating the products through “reverse engineering.” TACOM accommodated the request by leasing the fans to Roñal for a period of one year.

Prior to its amendment in 1984, the Armed Services Procurement Act, 10 U.S.C. § 2304(g) provided:

In all negotiated procurements in excess of $25,000 in which rates or prices are not fixed by law or regulation and in which time of delivery will permit, proposals, including price, shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured____

Similarly, 48 C.F.R. § 15.105 provides:

Negotiated contracts shall be awarded on a competitive basis to the maximum practical extent. To this end: (a) Offers shall be solicited from the maximum number of qualified sources consistent with the nature of and the need for supplies or services being acquired. Acquisition information shall be publicized in accordanee with 5.101.

Plaintiffs allegation that these general requirements to maximize competition require universal solicitation is without merit. At trial, defendant Boone testified that TA-COM maintains automatic bidder lists of potential suppliers for different types of equipment. Inclusion on the list occurs when a supplier requests a solicitation. The list is updated periodically. Defendant Boone’s testimony was corroborated by the testimony of Glenn Kriese, who did not appear at trial but upon whose deposition testimony plaintiff relies. Mr. Kriese was the CS involved in all three solicitations. Both Boone and Kriese testified that potential suppliers are selected from the list for solicitation on a random or rotating basis. Mr. Kriese testified that “fifteen or twenty respondents out of perhaps a thousand” are identified as firms to whom a solicitation should be sent.

In order to provide maximum competition, each solicitation is also published in the Commerce Business Daily and a synopsis of the solicitation is available through the Document Distribution Office. Interested potential suppliers who become aware of a solicitation through these or any other channels are sent the information necessary to submit a bid. In addition to these forms of access to solicitation, any suppliers identified by the CS on the planning document and all former suppliers receive the solicitation.

There is no indication that the process was not followed in relation to any of the solicitations at issue in this case. Each solicitation was published in the Commerce Business Daily. Never having supplied fans to TACOM before, Able was properly not included on the automatic bidders list. Although NOA and Roñal were the only bidders identified on the planning document, defendant Boone testified that roughly 15 bidders were sent each of the three solicitations. Mr. Kriese testified that he was not instructed to exclude any supplier and that it was merely his “conclusion” that the solicitation should not be sent to Able.

Section 15.403 of 48 C.F.R. provides that solicitation mailing lists for negotiated acquisitions shall be used in accordance with the provisions of 48 C.F.R. § 14.205. Nothing in the language of 48 C.F.R. §§ 14.205-14.205-5 even suggests that each and every known potential source must be approached on every solicitation. In fact, 48 C.F.R. § 14.205-4 provides that known sources need not be solicited every time a requirement exists in their area of interest and clearly vests in the CO “considerable judgment” in the use and management of solicitation lists. Moreover, at trial, defendant Boone testified that between May and October of 1984, he had no specific knowledge of Able as interested in supplying fans. Under these circumstances, there is no support for the proposition that these solicitations were unlawfully restricted.

Furthermore, plaintiff's argument concerning Ronal's request to examine the fans manufactured by NOA is irrelevant. Plaintiff’s own deposition witness, Mr. Kriese, testified that such arrangements had been made in the past and were apparently not unusual. The only unusual aspect of the transaction was the structuring of a lease arrangement, but this, according to Mr. Kriese, was merely done in an attempt to legalize what was an existing practice of the agency. Thus, plaintiff’s claim of restricted competition must fail.

Plaintiff further claims that defendants violated the applicable regulations by engaging in auction techniques. Section 15.610(d) of Title 48 of the Code of Federal Regulations provides that:

The contracting officer and other Government personnel involved shall not engage in — ...
(3) Auction techniques, such as—
i. Indicating to an offeror a cost or price that it must meet to obtain further consideration;
ii. Advising an offeror of its price standing relative to another offeror (however, it is permissible to inform an offeror that its cost or price is considered by the Government to be too high or unrealistic); and iii. Otherwise furnishing information about other offeror’s prices.

Plaintiff avers that the timing of the amendment to solicitation 544, the cancellation of solicitation 526, and the addition of the 526 fans to solicitation 525 are evidence of a plan to award the contract to Roñal. In support of its assertion, plaintiff points out that all of the PRONS were received at TACOM prior to the issuance of any solicitation. The parties agree that NO A had notified the defendants in advance of the solicitations at issue in this case that a better price could be achieved by consolidating PRONS for right and left side fans into one solicitation. Consequently, plaintiff argues that TACOM bad time to consolidate the PRONS into the most economical solicitation configuration before soliciting any bids. The second round of bidding on each solicitation was necessary, according to plaintiff, only because the defendants deliberately manipulated the process in furtherance of the allegedly prearranged scheme.

In support of its argument, plaintiff cites 48 C.F.R. § 15.610(a)(6) which eliminates the requirement for written or oral discussion in acquisitions “[i]n which adequate competition or accurate prior cost experience with the product or service clearly demonstrates that acceptance of the most favorable initial proposal without discussion would result in a fair and reasonable price____” Plaintiff contends that TA-COM’s prior experience with purchasing fans from NO A and the existence of Ronal’s initial bid for comparison, provided defendants with a basis for determining the reasonableness of NOA’s initial bid.

Further, plaintiff notes that TACOM could have acquired the 40 units added by amendment to solicitation 544 by exercising its option under Special Provision H-4 of the original solicitation. This provision reserved to the government the right to purchase an additional quantity of up to 50% of the original contract quantity at the original contract price. Under these circumstances, plaintiff concludes that TA-COM’s decision to seek further bidding had no rational basis.

The court does not agree with plaintiff’s contentions. Defendants in this case neither violated the applicable regulations nor lacked a rational basis for their decisions. In relation to the amendment of solicitation 544, it must first be noted that 48 C.F.R. § 15.606(a) authorizes amendment of solicitations either “before or after receipt of proposals” if “the Government changes, relaxes, increases, or otherwise modifies its requirements.” Although 48 C.F.R. §§ 15.610(b)(6) and 15.215-16 authorize acceptance of an initial proposal under some circumstances, nothing in the language of these regulations requires it. The provisions are clearly permissive rather than mandatory.

Nor is it remarkable that TACOM chose not to accept NOA’s initial proposal and exercise its option to purchase additional units. Again, nothing in the language of 48 C.F.R. § 17.207 governing the exercise of options is mandatory. Moreover, the purpose of an option clause in a solicitation is obviously to provide a tool by which the government may gain a financial advantage in the event that it later requires a larger quantity than originally anticipated. Amending the solicitation in order to obtain a price reduction as a result of acquiring a larger quantity at the outset rather than purchasing the additional units at the original contract per unit price, is clearly in the government’s best interest.

At trial, defendant Boone testified that solicitation 544 was amended not only to increase the quantity, but also to clarify Ronal’s bid. The bid was ambiguous because Roñal had failed to indicate whether its price included FAC or not. Mr. Kriese testified that due to his oversight, solicitation 544 as first issued, did not contain a requirement on the schedule for a proposer to separately identify FAC. Although plaintiff voluntarily entered this information, Roñal had not done so. Mr. Kriese further testified that he too thought it would have been inappropriate to make a determination of low bidder under these circumstances. He indicated that resolution of the ambiguity was achieved by requesting best and final offers. In addition, the quantity was amended.

Mr. Kriese also testified that it was his understanding that defendant Boone recommended amending the solicitation because both prices seemed excessive. In fact, Mr. Kriese stated that he agreed with defendant Boone’s analysis of the bids. Both defendant Boone and Mr. Kriese testified that amending solicitations for the purpose of adding a newly requested quantity was a common occurrence. In addition, defendant Boone testified that one PRON generally resulted in issuance of one solicitation.

Plaintiff alleges, based on Mr. Kriese’s deposition, that defendant Boone was aware of the existence of the third PRON for the 40 additional tubeaxial fans prior to issuance of the original 544 solicitation and that defendant Boone specifically directed Kriese not to include them in the solicitation. At trial, Mr. Boone testified that a solicitation is generally amended upon receipt of a PRON for the same item. He was not questioned, however, regarding either the point in time at which he became aware of the third PRON or any directions he may have given to Mr. Kriese regarding it.

The court will not speculate as to the truth of plaintiff’s allegations, which plaintiff did not see fit to explore during examination of Mr. Boone. Regardless of defendant Boone’s state of mind with respect to the third PRON, ambiguity regarding FAC in Ronal’s bid and the amount of both bids provided a rational basis for the amendment. Further, plaintiff has failed to point to any provision requiring the inclusion of all known equipment needs in a single solicitation. The duty of a CO is owed first to protecting the interests of the United States. 48 C.F.R. § 1.602. In fulfilling this duty, a CO must function impartially. Id. The impartiality requirement was met by sending the amendment to both bidders.

Contracting officers are allowed “wide latitude to exercise business judgment.” Id. Moreover, the discretion granted to contracting officers in conducting negotiated acquisitions under 48 C.F.R. §§ 15.000-15.1004, is substantially broader than the discretion afforded when using formal advertising or sealed bidding procedures under 48 C.F.R. §§ 14.000-14.503. Drexel Heritage Furnishings v. United States, 71 Cl.Ct. 134, 142 (1984); Coastal Corp. v. United States, 6 Cl.Ct. 337, 343, (1984). Having violated no statute or regulation, and having as a rational basis for the action at least the necessity to clarify Ronal’s proposal, this court cannot find that defendants’ actions were arbitrary or capricious.

Plaintiff alleges that TACOM’s decisions to amend solicitation 525 and to cancel solicitation 526 lacked rational bases as well. As primary support for its argument, plaintiff notes that prior to issuing any requests for bids, TACOM had received all of the PRONS eventually incorporated into the final version of solicitation 525 and was aware that combining PRONS for left and right side fans would be cost effective for the government. Plaintiff contends that “not having taken advantage of that information at the time of originally soliciting bids, it is irrational to subsequently utilize the information after one round of bids have (sic) been received.”

The logic of plaintiff’s argument escapes this court. TACOM’s failure to utilize the information by consolidating the PRONS into one solicitation does not preclude it from subsequently benefiting from it. TACOM issued solicitation 525 for 27 left side fans on June 28,1984. Prior to submission of any bids, the solicitation was amended to increase the quantity by an additional 46 identical units. The preceding discussion regarding amendment of solicitations disposes of any argument challenging the legality of this action.

One day after issuing solicitation 525, TACOM issued solicitation 526 for 50 right side fans. Both plaintiff and Roñal submitted bids, but the solicitation was can-celled because TACOM knew it could get a better price on all its requirements by combining the requests for right and left side fans into one request for proposals. Thus, solicitation 525 was amended again; this time to add the 50 right side fans from 526.

Cancellation of a solicitation is authorized regardless of the stage of the acquisition, by 48 C.F.R. § 15.606(b)(4) “[i]f a change is so substantial that it warrants complete revision.” There is no indication that TACOM’s actions with respect to solicitations 525 and 526 were anything but an attempt to correct administrative errors. Although TACOM could have combined all the PRONS into one solicitation, its failure to do so in the first instance is immaterial so long as both bidders were treated equally. In this case there was legitimate, rational support for each of TACOM’s decisions, the competitors were treated fairly and equally and no statute or regulation was violated. Therefore, plaintiff has failed to meet its burden of establishing that defendants’ decision-making was arbitrary or capricious.

Finally, plaintiff alleges that defendants violated 48 C.F.R. § 15.610(d) by deliberately disclosing prices. Plaintiff claims that in each instance, after initial bids were submitted, TACOM communicated to Roñal that its prices were too high for award. This claim is substantiated by Mr. Kriese’s deposition testimony that defendant Boone “at least chastized Roñal for submitting bids that were too high.” Both defendant Boone and Milton Fishman, Ronal’s vice president, who also testified at trial, denied any communication whatsoever between Roñal and TACOM in relation to price. Their testimony, which the court had the opportunity to observe and evaluate first-hand at trial, was completely credible. Mr. Kriese did not testify at trial. Furthermore, even if TACOM had informed Roñal that its initial prices were too high, such disclosure fits squarely within the scope of communications specifically authorized by 48 C.F.R. § 15.610(d)(3)(ii) which provides that “it is permissible to inform an offeror that its cost or price is considered by the Government to be too high or unrealistic.”

Based on a comparison of Ronal’s initial bids on each solicitation to its final offers, plaintiff concludes that either NOA’s prices were communicated to Roñal, or that Roñal was advised of the price it would have to quote in order to have its offer considered further. Analysis of plaintiff's comparison tables does reveal that in each instance, Ronal’s price reduction in the second round of bidding approximated the amount necessary to defeat NO A. This fact alone, however, is far too speculative a basis on which to base a finding of regulatory violation.

Ronal’s price reductions on the second rounds of bidding were sizeable. NOA’s reductions, even with the increased quantities generated by the amendments, ranged only from $10.00 to $20.00 per unit. Moreover, logic dictates that Ronal’s final prices had to have been reasonable since they were very similar to NOA’s. At trial, Mr. Fishman attributed Ronal’s significant price reductions between the bidding rounds to the increase in the quantity requested and to the additional time the company had to examine the drawings. Absent evidence of wrongdoing, this court cannot hold that price variation alone supports a finding of disclosure.

For the foregoing reasons, this court finds that the actions taken by TACOM in the course of its solicitation of proposals for the spare parts at issue in this case were not arbitrary or capricious and therefore, the decision of the agency to award the contracts to plaintiff’s competitor must stand. Plaintiff’s complaint must, therefore, be dismissed.

IT IS SO ORDERED.