author: SPELLMAN, District Judge.

text:
    Frank VOLPE, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 83-1808-CIV-EPS.
    United States District Court, S.D. Florida, Miami Division.
    May 28, 1985.

      Marvin J. Kristal, Miami, Fla., for plaintiff.
    Judy K. Hunt, Asst. U.S. Atty., Miami, Fla., for defendant.
   MEMORANDUM OPINION GRANTING ATTORNEY’S FEES

SPELLMAN, District Judge.

This cause is before the Court on Plaintiff’s Motion for Attorney’s Fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.

For the reasons stated below, the Court adopts the Recommendation of the United States Magistrate Peter L. Nimkoff and awards Plaintiff attorney’s fees in the amount of $2,512.50.

Claimant was a brick layer and laborer for 25 years until an industrial accident in 1974 when he was granted disability due to a herniated disc. Disability benefits continued until the Social Security Administration advised the Claimant of their termination in February, 1982. Review of this decision of termination led to a hearing on July 21, 1982, before Administrative Law Judge James P. Henry. Judge Henry found that the Claimant was disabled due to degenerative disc disease, osteoarthritis of the lumbar spine and lumbar radiculopathy. He also found the Claimant disabled by reason of severe pain caused by the above impairment, and that this pain was supported by the medical and clinical evidence.

On its own motion, the Appeals Council reviewed the decision of Judge Henry and found the Claimant was not disabled. The Appeals Council concluded the Claimant had a severe impairment that would preclude him from performing work involving heavy lifting or other strenuous activity; however, he had the capacity to perform work of at least a light level of exertion. The Appeals Council was of the opinion that Claimant’s subjective complaints of pain were not sufficient to establish that there was a physical or mental impairment. The Council noted that a claimant will never be found “disabled” based on symptoms, including pain, unless medical signs or findings show that there is a medical condition that could reasonably be expected to produce those symptoms. (TR 10).

The Appeals Council also reviewed the clinical and laboratory findings contained in the various reports of record and found they did not support the opinion of total disability or the degree of limitation indicated in the physical capacities evaluation. The Council disregarded the opinions of Claimant’s treating physicians and opined the credible clinical findings did not indicate that the Claimant’s impairment would have caused the degree of pain and limitation alleged. Thus, the Claimant was found to be no longer disabled.

Subsequently, Claimant filed a Motion for Summary Judgment and accompanying Memorandum of Law with this Court and on April 12, 1984, Magistrate Nimkoff filed his Findings and Recommendations. Judge Nimkoff recommended that the Order of the Appeals Council be reversed, and benefits be restored. This Court adopted the Report and Recommendations of the Magistrate on June 8, 1984. Claimant now seeks attorney’s fees pursuant to 28 U.S.C. § 2412(d)(1)(A) which provides:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

Under the Equal Access to Justice Act fees will be awarded unless the Government can show its position was substantially justified or special circumstances make an award unjust. Matthews v. United States, 713,F.2d 677, 682 (11th Cir.1983). The test for whether the Government action was “substantially justified” is one of reasonableness. Id. In the present case, the Government has not sustained its burden of showing that its position was substantially justified.

Without any substantial basis the Appeals Council rejected the credibility findings made by the Administrative Law Judge. The Council completely dismissed the Administrative Law Judge’s finding that Claimant’s subjective evidence of pain as testified to by Claimant was corroborated by objective medical evidence. The Council found that a claimant will not be found disabled on symptoms of pain without the medical condition to substantiate those symptoms.

The position taken by the Appeals Council ignores this Circuit’s recent decisions. Both the Fifth and Eleventh Circuits have emphatically rejected the notion that, in order to be disabling, subjective claims of pain must be supported by objective medical evidence or by clinical or laboratory findings. Wiggins v. Schweiker, 679 F.2d 1387, 1390 (11th Cir.1982); Walden v. Schweiker, 672 F.2d 835, 840 (11th Cir. 1982); Smith v. Schweiker, 646 F.2d 1075, 1082 (5th Cir.1981). Since subjective complaints of pain alone have been held to give rise to a disability, the Appeals Council erred in completely dismissing the opinions of Claimant on the basis that they were not objectively supported by medical evidence.

In reaching its conclusion that the Claimant was not disabled, the Council dismissed the opinion of total disability expressed by one of Claimant’s treating orthopedic surgeons and the physical capacities evaluation completed by another treating physician. Not only may the Council not set its own expertise against that of a physician, Gober v. Matthews, 574 F.2d 772, 777 (3rd Cir.1978), but before medical testimony can be rejected, the Appeals Council must point to some other evidence contradicting it, and to other expert opinion as to whether the Claimant is able to work. Rossi v. Califano, 602 F.2d 55, 58 (3rd Cir.1979). This the Appeals Council has failed to do. The Council here disregarded precedent, and the Government’s attempt to uphold this denial on review is clearly not justified. Thus, this Court finds Claimant is entitled to fees and other expenses incurred in this litigation.

Title 28, United States Code, Section 2412(d)(2)(A) provides in pertinent part:

[Attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the' proceedings is involved, justifies a higher fee.

Claimant seeks attorney’s fees for a total of 33.50 hours to be calculated at a rate between $100 to $125 per hour. Although this Court has the power to adjust the hourly rate of $75, this Court finds that there has neither been a cost of living increase or a special factor shown to warrant the Court deviating from the $75 announced by Congress. This Court rejects Claimant’s position that the attorney’s experience and knowledge of community practices qualify as a “special factor.” The Claimant is misguided in relying on Hornal v. Schweiker, 551 F.Supp. 612 (M.D.Tenn.1982) since that case concerned whether or not the fee arrangement of the claimant and his counsel had any bearing on the application of the prevailing market rate figure of $75. Congress has found $75 to be the prevailing market rate, and 28 U.S.C. § 2412 requires Claimant show cause why a higher figure than $75 should be used. Claimant has failed to meet this burden. Thus, this Court finds attorney’s fees should be computed at $75 per hour.

The Government takes exception with the total amount of time Claimant’s counsel indicates he spent on this matter. First, the Government notes that Claimant’s counsel asserted his practice is 30% Social Security work. Next, the Government points to the brevity in Claimant’s brief, the limited reliance on case law, and the lack of novel issues. Additionally, the Government objects to the three hours itemized in preparation for the petition of attorney’s fees. The Government asserts these three hours do not come under the statutory language of “reasonable costs ... necessary for preparation of the party’s case.” 28 U.S.C. § 2412(d)(2)(A). The Government requests this Court reduce the number of hours to a maximum of 20 hours or less at a rate not to exceed $75.

Claimant’s counsel has filed a sworn affidavit where he asserted the actual time spent in the representation of Claimant subsequent to the Appeal Council’s affirmation of the Administrative Law Judge’s decision was 33.50 hours. The hours asserted were particularly itemized, and this Court finds that 33.50 is not an unreasonable figure.

The Government contends that the three hours spent on the preparation of the petition for attorney’s fees should not be included in any attorney’s fees this Court might award. The Government is incorrect. Title 28 United States Code Section 2412(d)(2)(A) reads:

‘fees and other expenses’ includes reasonable expenses ..., which is found by the court to be necessary for the preparation of the party’s case, and reasonable attorney’s fees.

The Government seeks this Court construe the statute to allow only for attorney’s fees for time spent actually on the social security award of the Claimant. However, a plain reading of the statute shows the legislature was referring to reasonable expenses when using the phrase “preparation of a party’s case.” Along with providing for reasonable costs incurred in the preparation of the party’s case, the legislature also provided for attorney’s fees. The Government has failed to cite authority, and this Court finds no basis upon which to construe the statute as strictly as the Government wishes. Therefore, the three hours spent on Claimant’s Motion for Attorney’s Fees shall be included for a total sum of 33.50 hours.

For all of the above reasons, the decision of the Magistrate is hereby adopted, and the Claimant’s Motion for Attorney’s Fees is granted. The Claimant is awarded a total sum of $2,512.50, which amount represents 33.50 hours at $75 per hour.


source: Caselaw Access Project

author: REGAN, District Judge.

license: Public Domain

text:
    Jesse BROWN, Jr., Petitioner, v. UNITED STATES of America, Respondent.
    No. 85-366C(B).
    United States District Court, E.D. Missouri, E.D.
    May 28, 1985.

      Jesse Brown, pro se. .
    Kathianne Crane, Asst. U.S. Atty., St. Louis, Mo., for respondent.
   MEMORANDUM

REGAN, District Judge.

This action is before the Court upon the motion of Jesse Brown, Jr., to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.

In Criminal Cause No. 82-170 CR (B), movant Brown on September 3, 1982 pled guilty to one count of violating 18 U.S.C. § 641. The range of penalties for that offense was a fine of up to $10,000, or imprisonment for up to ten years, or both said fine and imprisonment. Movant was represented by counsel and the Court found that the plea was knowledgeably and voluntarily made, had a basis in fact, and contained all of the elements of the offense. On September 28, 1982 the Court sentenced movant to a term of five years imprisonment consecutive to the sentence for which he was then serving imprisonment in the Missouri State Penitentiary. At that time the government dismissed the remaining count of the indictment.

On April 26, 1983 movant Brown filed a motion for relief under § 2255. Therein he alleged that he had received ineffective assistance of counsel and that his guilty plea was involuntary. The Court carefully considered all of movant’s allegations, reviewed the record, and ultimately denied the motion.

In the instant motion for § 2255 relief, movant alleges three grounds for relief. First, he appears to allege that he received ineffective assistance of counsel. Specifically, his motion states:

Counsel allowed both the court and the defendant to be entertained into an action in the court, not related to the actual caliber of the Indictment for Possession of Stolen Money Orders. And, thus counsel failed to exercise an adequate means of effectiveness and within the best interests of both the sentencing court as well as the defendant’s interest.

In order to properly state a claim of ineffective assistance of counsel:

[a] convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.

Strickland v. Washington, — U.S.-, -, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Suffice it to say, that movant has failed to sufficiently specify a factual basis for his first ground for relief.

Reading his motion liberally, the Court perceives allegations in his second ground for relief that counsel was ineffective, because she allowed him to be prosecuted under 18 U.S.C. § 641, instead of the assertedly appropriate statute, 18 U.S.C. § 500. Movant’s third ground for § 2255 relief appears to assert that § 500 should have been the basis for prosecution, instead of § 641.

In Count I, to which movant pled guilty, he was alleged to have willfully and knowingly received and retained stolen property of the United States, a United States postal money order, valued in excess of $100.00, with the intent to convert it to his own use. The argument now asserted by movant is that at the time he received the money orders they were blank, solely a violation of § 500. The Court agrees with the United States, that § 641 is an appropriate statute for prosecution when a value can be placed upon the stolen property. United States v. O’Kelley, 701 F.2d 758, 759-760 (8th Cir.1983) (a stolen treasurey check is a “thing of value” although unendorsed); United States v. Bryant, 612 F.2d 799, 804-05 (4th Cir.1979). Prosecution under § 500 is also appropriate, if the government can prove that the money orders were blank when received or possessed. United States v. Bryant, supra, at 803. In this case movant pled guilty to receiving and retaining the stolen money order, which then had a value of $100.00. He was properly prosecuted under § 641. Because movant suffered no prejudice by any failure of counsel to contest the statutory basis of the prosecution, he suffered no ineffective assistance. Strickland v. Washington, supra. These grounds for relief are without merit.

An appropriate Order will issue.

ORDER

In accordance with the Memorandum of the Court filed herewith,

IT IS HEREBY ORDERED that the motion of Jesse Brown, Jr., for relief under 28 U.S.C. § 2255 be and it is dismissed.

IT IS FURTHER ORDERED that the motion of movant for appointment of counsel be and it is denied as moot.


author: THORNTON, District Judge.

text:
    DEAN MARKETING, INC., Plaintiff, v. AOC INTERNATIONAL (U.S.A.) LIMITED, A Missouri corporation, formerly known as AOC International of America, Inc., a Missouri corporation and AOC International, jointly and severally, Defendant.
    Civ. No. 84-CV-4158-DT.
    United States District Court, E.D. Michigan, S.D.
    May 29, 1985.

      Mark D. Goodman, Utica, Mich., for plaintiff.
    Joseph C. Basta, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for defendant.
   OPINION & ORDER

THORNTON, District Judge.

This matter is before the Court on defendant AOC International’s motion to dismiss based on improper service of process and lack of personal jurisdiction. The parties have agreed to waive oral argument and have the Court decide the motion on the pleadings filed by the parties.

I. BACKGROUND:

Plaintiff's cause of action arises from an alleged breach of a sales commission contract. AOC International (henceforth AOC-Taiwan) is engaged in the manufacturing and exporting of television sets from Taiwan. These products were purchased for resale within the United States by AOC International of America, Inc. (henceforth AOC-America), a Missouri corporation (prior to August 27, 1982), and by AOC International (U.S.A.) Ltd. (henceforth AOC-USA), a Missouri corporation (subsequent to August 27, 1982).

This cause of action arises from an alleged breach of a May 24,1982 Representative Sales Agreement between plaintiff, Dean Marketing, Inc., and defendant, AOC International of America.

The present action was originally filed in Wayne County Circuit Court and removed to this Court by the defendants.

II. IMPROPER SERVICE OF PROCESS

Service of process was attempted by service of the summons and complaint upon Ross V. Castrianni. Mr. Castrianni is the vice president of AOC-USA, and he is not an officer or a director of AOC-Taiwan, nor is he authorized to receive process on its behalf. (Affidavit of Castrianni, jfl[ 2 & 3).

Alternately, plaintiff argues that two representatives of AOC-Taiwan (Mr. Tu and Mr. Ho) presented business cards listing the Missouri corporation’s address as a “business address.” Plaintiff argues that along with service of Castrianni at this address, after removal of this action, a copy of the summons and complaint filed in Wayne County Circuit Court was sent by certified mail to the Missouri address and by mail to AOC-Taiwan’s Taiwan address in compliance with Mich. GCR 105.4(2) & 105.16 (presently MCR 2.105(D)(2) & 2.105(D)(4)).

After removal of the action to this Court, the state court no longer had jurisdiction of the matter. 28 U.S.C. § 1446. Furthermore, 28 U.S.C. § 1448 provides:

In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in eases originally filed in such district court.
This section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case.

Thus service of process must be accomplished according to federal procedure. Accordingly, plaintiffs attempted perfection of service of process after removal was ineffective where plaintiff mailed a state court summons rather than a summons issued by federal court to defendant AOC-Taiwan. Accordingly, defendant AOC-Taiwan has not been properly served.

III. LACK OF IN PERSONAM JURISDICTION

Defendant also argues that this Court has no personal jurisdiction over defendant AOC-Taiwan.

The plaintiff has the burden of establishing personal jurisdiction. Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir.1980) cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981). When jurisdiction is determined by written pleadings only, the plaintiff need only present a prima facie case. Id. Where disputed factual issues necessitate an evidentiary hearing, plaintiffs burden is one of preponderance of the evidence. Id. 439. In the present case, although plaintiff claims Castrianni is vice-president of AOC-Taiwan, it has proffered no evidence by affidavit or otherwise in support of this contention. Thus there exists no factual dispute which would necessitate an evidentiary hearing. Both parties implicitly acknowleged as much by their stipulation to have this matter heard on the briefs. All pleadings and affidavits must be construed in the light most favorable to the non-moving party. Id.

Michigan’s long arm statutes M.C. L.A. §§ 600.711, 715; M.S.A. §§ 27A.711, 715 govern whether this court has personal jurisdiction over defendant. These statutes have been construed as extending personal jurisdiction to the due process limitations of the United States Constitution. Kircos v. Lola Cars Ltd., 97 Mich.App. 379, 296 N.W.2d 32 (1980). These limitations require that jurisdiction must be consistent with “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940). In determining whether these criteria are satisfied, the Court must focus on “the relationship among the defendant, the forum and the litigation,” Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977) and on the defendant’s “minimum contacts” with the state. International Shoe, supra.

When a corporation has certain “minimum contacts” with the forum state (general personal jurisdiction) or when the controversy arises from the defendant’s contacts with the forum (limited personal jurisdiction), then personal jurisdiction exists. Helicopteros Nacionales de Colombia S.A. v. Hall, — U.S.-, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).

A court has general personal jurisdiction over a corporation when the corporation has significant “minimum contacts” with the state. For Michigan to exercise general jurisdiction over a foreign corporation, the corporation must have one of three relationships with the state:

(1) Incorporation under the laws of this state.
(2) Consent, to the extent authorized by the consent ...
(3) The carrying on of a continuous and systematic part of its general business within the state.

M. C.L.A. § 600.711; M.S.A. § 27A.711.

It is only the third of these relationships which plaintiff claims applies to the present case. However, in an affidavit unrefuted by plaintiff, Mondy Y.T. Houng, Vice President, Finance and Administration of AOC-Taiwan, states that AOC-Taiwan is a foreign corporation engaged in manufacturing and exporting television sets and has no contacts with Michigan in that (1) it has never owned, leased, or rented property here; (2) it is not qualified to do business nor does it have a business license here; (3) it has no sales tax number; (4) it has never made payment of any Michigan taxes; (5) it has no Michigan residents as employees and no agent for service of process; (6) it has no office, account books or telephone listings; (7) it does no advertising or soliciting of sales nor does it receive payment for sales in Michigan; (8) it does no manufacturing or purchasing of raw materials in Michigan; and (9) it is neither a parent or subsidiary of AOC-USA or AOC-America. Furthermore, AOC-Taiwan is not a party to the contract signed between plaintiff and defendant AOC-America. Accordingly, plaintiff has failed to establish a prima facie case of the minimum contacts necessary to establish general personal jurisdiction over defendant AOC-Taiwan.

Michigan also has a long arm statute which allows limited personal jurisdiction over corporation defendants:

The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.
(3) The ownership, use, or possession of any real or tangible personal property situated within the state.
(4) Contracting to insure any person, property, or risk located within this state at the time of contracting.
(5) Entering into a contract for services to be performed or for materials to be furnished in the state by the defendant.

M.C.L.A. § 600.715; M.S.A. § 27A.715.

In its focus on the relationship among defendant, the forum and the litigation, the Sixth Circuit requires that three criteria must be met before proper exercise of limited “single act” type in personam jurisdiction:

First, the defendant must purposely avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.

Southern Machine Co. v. Mohasco Industries, 401 F.2d 374, 381 (6th Cir.1968).

Plaintiff asserts jurisdiction based on relationships (1) and (5) of the Michigan long arm statute for limited jurisdiction.

With respect to the relationship of contract as discussed previously, the contract (Attachment to Plaintiff’s Complaint) which is the subject matter of this action is between plaintiff and defendant AOC-America only. AOC-Taiwan confirms it has never contracted with plaintiff. (Affidavit of Mondy Y.T. Houng, jf 23). Plaintiff has offered no contrary proof. Thus plaintiff has failed to present a prima facie case that defendant entered into a contract for services to be performed in Michigan.

The only remaining possible relationship significant enough to establish limited in personam jurisdiction is that of “the transaction of any business within the state.” Plaintiff relies primarily on two events as establishing jurisdiction within this category. First, plaintiff again refers to the visit and meeting in Michigan at which Mr. Ho and Mr. Tu, representatives of AOC-Taiwan were present. Although plaintiff offers no affidavits or other proofs of this meeting, defendant, through affidavit concedes that it occurred. Thus, the first criterion is met in that defendant “availed himself of the privilege of acting in the forum state.” But for limited in personam jurisdiction more is required. The cause of action must relate to or arise from the defendant’s activities in the forum, Helicópteros Nacionales de Colombia, supra; Southern Machine Co., supra. The only proof before the Court demonstrates that no contract negotiations occurred at the meeting. Thus as the present cause of action did not arise from the one occasion representatives of defendant were present in Michigan, the meeting cannot give rise to in personam jurisdiction over defendant.

Finally, plaintiff alleges personal jurisdiction because AOC-Taiwan is the manufacturer of several hundred thousand television sets purchased for resale to Michigan residents. A defendant may be subject to in personam jurisdiction when it “delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). But jurisdiction based on goods placed in the stream of commerce applies only when the cause of action arises from an alleged defect in the merchandise. Id. 297, 100 S.Ct. at 567. As the present action does not assert any alleged defect in the merchandise, the presence of the defendant’s products in the forum state is insufficient to confer in personam jurisdiction over defendant AOC-Taiwan.

Plaintiff has failed to present a prima facie case of in personam jurisdiction over defendant AOC-Taiwan. Therefore, defendant AOC International’s motion to dismiss for lack of service of process and lack of in personam jurisdiction is GRANTED and AOC International is DISMISSED from this action.

SO ORDERED.

      . The Court notes that plaintiffs allegations in this regard are unsupported as neither affidavits or copies of the business cards have been provided to the Court. Defendant, however, does not deny these allegations but merely claims it was only a “mailing address” for the AOC-Taiwan representatives.

      . The letter from Castrianni and envelope attached to plaintiffs response do not create a factual dispute as they are consistent with Castrianni’s affidavit that he is vice-president of AOC-USA.

      . Plaintiff has alleged that two representatives of AOC-Taiwan were present at a meeting in Michigan. Plaintiff further alleges that contract negotiations occurred at this meeting. Plaintiff, however, offers no evidence in the form of affidavits or other proofs in support of its contention. Moreover, defendant denies any discussion of sales commission negotiations at this meeting. Castrianni affidavit, 9.

      . See note 3, supra, and note 5, infra.

        . Castrianni affidavit, If 9 states:
      In January, 1983, a meeting occurred in Michigan, involving, among others, Ed Dean, Ross V. Castrianni, Edward Herald, Charles M. Tu, and Richard Ho. At the time of that meeting, Messrs. Tu and Ho were employees of AOC-Taiwan. Mr. Herald was an employee of AOC-USA. The meeting was only one of several stops on a tour of the United States attended by Messrs. Tu and Ho in order to familiarize AOC-Taiwan with American consumer demands and recurring AOC-Taiwan product defects. The payment of sales commissions to the plaintiff was not discussed or negotiated at any time during the meeting between [sic] Messrs. Dean Castrianni, Herald and Tu.

      . The Court notes that the presence of defendant’s products in Michigan for resale purposes is to be distinguished from the claim that defendant carries on a continuous although limited part of its business in this state. As previously stated, supra, AOC-Taiwan makes no sales in Michigan.


author: McLAUGHLIN, District Judge.

text:
    OMAHA INDEMNITY COMPANY as subrogee of Sea Treats Unlimited, Inc., Plaintiff, and Sea Treats Unlimited, Inc., and AI M. Perlmutter, Intervenors, v. WHALENECK HARBOR MARINA, INC., Leonard Maggio d/b/a Whaleneck Harbor Marina, and John Doe, a fictitious name, the true name being unknown, d/b/a Whaleneck Harbor Marina, Defendants.
    No. 84 CV 2174.
    United States District Court, E.D. New York.
    May 30, 1985.

      Rassner, Rassner & Olman, New York City, for plaintiff; Donald D. Olman, New York City, of counsel.
    Leiby & Welch, New York City, for intervenors; Kenneth L. Leiby, New York City, of counsel.
    David Jaroslawicz, New York City, for defendants.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

This is an action for negligence, breach of contract and trespass. Plaintiff and intervenors seek to recover for damage to intervenor’s yacht, the S/V Sea Roar, and they claim the action is within the admiralty jurisdiction of this Court. 28 U.S.C. § 1333. Defendants have moved to dismiss for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). For the reasons developed below, the motion is denied.

Facts

Pursuant to a contract between plaintiff, Omaha Indemnity Co. (“Omaha”), and intervenor Sea Treats Unlimited (“Sea Treats”), Omaha insured the hull and machinery of Sea Treats’ sailing vessel, the S/V Sea Roar. In autumn 1982, Sea Treats and defendants contracted for defendants to store the Sea Roar at their boatyard in Nassau County. In March, 1983, while in storage on dry land, the Sea Roar fell from its cradle and was damaged. Omaha paid Sea Treats $7,092.96 pursuant to the insurance policy.

Omaha, subrogated to Sea Treats’ rights against defendants, then commenced this action, alleging negligence and breach of contract by defendants. Sea Treats was granted leave by this Court to intervene. It, too, alleges negligence and breach of contract by defendants, and seeks to recover for the uninsured portion of their loss. Additionally, Sea Treats claims defendants wrongfully refused to return the Sea Roar after it was repaired, and seeks damages for that trespass.

Discussion

Admiralty jurisdiction over maritime torts is traditionally determined by reference to the situs of the tort and its relationship to traditional maritime activity. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253-61, 93 S.Ct. 493, 497-501, 34 L.Ed.2d 454 (1972). Admiralty jurisdiction over contract claims, on the other hand, is determined by reference to the nature and subject of the contract. Schuster v. Baltimore Boat Sales, Inc., 471 F.Supp. 321, 322 (D.Md.1979). If the contract “relate[s] to ships in their use as ships or to commerce or transportation in navigable waters,” there is admiralty jurisdiction. Ford Motor Co. v. Wallenius Lines, M/V Atlantic Cinderella, 476 F.Supp. 1362, 1365 (E.D.Va.1979).

Defendants argue that the claims by plaintiff and intervenors are simple negligence claims, which, because they arose out of damage to the Sea Roar occurring on land, while the boat was in winter storage, are not within the jurisdiction of this Court. See Executive Jet Aviation, Inc. v. City of Cleveland, supra. Further, contend defendants, the mere fact that plaintiff and intervenors have alleged contract claims does not change the nature of the action from tort to contract. This, they say, is solely a tort claim. See Schmidt v. Merchants Despatch Transportation Co., 270 N.Y. 287, 280 N.Y.S. 836, 200 N.E. 824 (1936).

Plaintiff and intervenors cannot, and do not, seriously contend that there is admiralty jurisdiction over the tort claims. See Executive Jet Aviation, Inc. v. City of Cleveland, supra; Medema v. Gombo’s Marina Corp., 97 F.R.D. 14, 15 (N.D.Ill. 1982). The tort occurred on land and had no more connection with maritime activity than if a sea captain’s car was damaged in a repair shop.

Plaintiff and intervenors do, however, maintain that they have stated admiralty claims for breach of contract over which this Court has jurisdiction, and that ancillary jurisdiction then exists for the tort claims.

Plaintiff’s complaint, fairly read, alleges that Sea Treats and defendants contracted for defendants to store the Sea Roar during the winter of 1982-83. An unexecuted copy of that contract accompanies plaintiff’s memorandum of law. When there is a contract between parties, and one party seeks to recover for damages to property or to pecuniary interests only, that party may be entitled to sue either in contract or in tort. See Paver & Wildfoerster v. Catholic High School Association of New York, 38 N.Y.2d 669, 382 N.Y.S.2d 22, 345 N.E.2d 565 (1976). I am prepared to assume that plaintiff has a claim in contract. The question remains, however, whether there is admiralty jurisdiction over these contract claims.

It is undisputed that admiralty jurisdiction exists over actions arising out of contracts to store and repair or service vessels taken out of navigable waters. Medema v. Gombo’s Marina Corp., supra, 97 F.R.D. at 15-16; Schuster v. Baltimore Boat Sales, Inc., supra, 471 F.Supp. at 322; Fireman’s Fund American Insurance Co. v. Boston Harbor Marina, Inc., 285 F.Supp. 36, 39 (D.Mass.1968), affd in part, rev’d in part on other grounds, 406 F.2d 917 (1st Cir.1969). Neither the pleadings nor the contract reflect that defendants were to perform any repairs or service on the Sea Roar; the contract required defendants only to store the vessel for the winter. Defendants claim such a contract is not subject to admiralty jurisdiction.

The question presented by defendants’ motion was addressed by the Court in Medema v. Gombo’s Marina Corp., 97 F.R.D. 14 (N.D.Ill.1982). The Medema Court rejected any distinction between contacts solely for storage and contracts to store and repair. Id. at 16. Of more significance to the Court was that the contract was only for winter storage; the vessel was to be used in navigation the remainder of the year. The Court deemed such a seasonal storage contract analogous to the storage of pleasure craft on land between intermittent weekend use: “the dry storage is analogous to docking and admiralty jurisdiction exists because ‘[t]he boats were not withdrawn from navigation.’ ” Id. (quoting American Eastern Development Corp. v. Everglades Marina, Inc., 608 F.2d 123, 124 (5th Cir.1979).

The Medema Court’s reasoning is persuasive. Storage of a vessel for the winter does not reflect an intent to take the vessel out of navigation in any permanent sense. Rather, it is a sensible response to the imperatives of winter; and its purpose is to preserve the vessel for future use in navigation. A winter storage contract, even in the absence of a repair or service provision, certainly relates to a ship in its use as a ship. See Ford Motor Co. v. Wallenius Lines, M/V Atlantic Cinderella, supra.

Accordingly, defendants’ motion to dismiss for lack of subject matter jurisdiction is denied. Because the negligence and trespass claims arise out of the same nucleus of operative facts as the contract claims, the Court will exercise ancillary jurisdiction over the former. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130,16 L.Ed.2d 218 (1966).

SO ORDERED.


author: CARRIGAN, District Judge.

text:
    Nancy J. DILLE, et al., Plaintiffs, v. COUNCIL OF ENERGY RESOURCE TRIBES, Defendant.
    Civ. A. No. 84-C-884.
    United States District Court, D. Colorado.
    May 30, 1985.
    Terry Tomsick, Denver, Colo., William E. Benjamin, Boulder, Colo., for plaintiffs.
    Harris Sherman/Laurie Bennett, Denver, Colo., for defendant.
   ORDER

CARRIGAN, District Judge.

Plaintiffs sued the Council of Energy Resource Tribes (CERT) alleging sex discrimination in employment in violation of 42 U.S.C. §§ 2000e et seq. CERT discharged the plaintiffs, all Caucasian women, and replaced them with Caucasian men. Defendant has filed a motion to dismiss arguing that it is exempt from Title VII because of its status as an Indian tribal organization. Plaintiffs have responded asserting that CERT is not a “tribe” within the meaning of the express Title VII exception covering Indian tribes. The parties have briefed the issues thoroughly and oral argument would not assist in resolving them. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1334.

Title VII defines covered employers as follows:

“The term ‘employer’ means a person engaged in an industry affecting commerce ... but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service____” 42 U.S.C. § 2000e(b) (emphasis added)

Senator Mundt, sponsor of the provision exempting Indian tribes, thus articulated the intent of the exemption:

“To a large extent many tribes control and operate their own affairs, even to the extent of having their own elected officials, courts, and police forces. This amendment would provide to American Indian tribes in their capacity as a political entity, the same privileges accorded to the U.S. Government and its political subdivisions, to conduct their own affairs and economic activities without consideration of the provisions of the bill.”
“Let me emphasize that Indian tribes in an effort to decrease unemployment and in order to integrate their people into the affairs of the national community, operate many economic enterprises, which are more or less supervised by the Indian tribes, the employees serving as apprentices in many instances, and as supervisors and regularly employed and paid employees in others.” 110 Cong. Rec. 13,702 (1964).

Thus, tribes are exempt from Title VII’s prohibition on employment discrimination for two reasons. First, the exemption recognizes that, at least for some purposes, Indian tribes are sovereign entities. See also 25 U.S.C. §§ 461-479 (1982) (Indian Reorganization Act); United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Worchester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed.2d 483 (1832). Second, the exemption recognizes that Indian tribes control certain aspects of their economic development, including the employment decisions that for many other employers are subject to Title VII. Cf 42 U.S.C. § 2000e-2(i) (1982) (no Title VII violation by employers who pursue publicly announced Indian preference in employment on or near Indian reservations); Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974); Livingston v. Ewing, 601 F.2d 1110, 1113 (10th Cir.1979).

Indian tribes, like other forms of government, exercise some of their sovereign powers through delegation to various agencies. While tribal agencies are exempt from Title VII, presumably independent contractors performing non-government services for tribes are not exempt.

The issue here presented is whether CERT is an exempt tribal agency or an independent contractor that must comply with Title VII. It is sometimes difficult to distinguish between a sovereign agency and an independent government contractor. Notably, § 2000e(b) exempts the United States and corporations wholly owned by the United States.

CERT is organized as a nonprofit corporation that only Indian tribes may join. (Defendant’s Ex. C) Its current membership consists of thirty-nine Title VII exempt tribes. (Defendant’s Ex. D) Each tribal member sends its representative to regular CERT meetings. These representatives must be the “Tribal Chairman, Tribal Governor, or Chief Executive Officer of the member unless some other individual is designated by the member and such designation is communicated in writing by said member to the Chairman of the Board.” (Defendant’s Ex. E, B-3) CERT’s board of directors, which consists of the group of member representatives, manages the organization. In short, CERT is organized as an Indian “League of Nations” or Congress.

CERT is accountable to individual tribes and their members through the tribes’ representatives on its board of directors. Exempt tribes totally comprise CERT; they control CERT’s operations directly, by voting at regular meetings, and indirectly by electing corporate managing officers from among representatives chosen by CERT’s member tribes. Thus, CERT is both directly politically accountable to the people for whose benefit it operates and controlled by established tribal sovereigns.

CERT’s first stated purpose is to “provide an organization for the establishment, coordination and/or operation of facilities, services and technical assistance to protect ... and provide prudent management of the members’ tribal energy resources____” (Emphasis added) Its second purpose is to “improve the general welfare of Indian peoples through educational, charitable and energy related activities.” (Defendant’s ex. C, A-2, Art. Ill (1)).

By “improving the general welfare of Indian peoples,” CERT serves a traditional sovereign function. Cf. United States Constitution, preamble. Moreover, prudent development of tribal energy resources has become vital to the preservation of Indian sovereignty. *

All too often in the past, unscrupulous developers have preyed on Indian tribes that lacked the technical sophistication and legal expertise needed to protect their rights. Unfortunately, even the United States government has sometimes spoken with a forked tongue, honoring its agreements with Indian tribes, only so long as they were economically convenient. A scarred history of broken promises, deceitful deals and violent slaughter has robbed those who once occupied most of this continent of all but some relatively small and typically desolate parcels of land. Some tribes have decided that control over the valuable energy resources beneath this remaining land represents a vital component of Indian self-government. A single tribe, backed into an impoverished corner, lacks the bargaining power essential to deal fairly with enormous multinational energy developers. By banding together to create their own sources of technical and legal expertise, Indian tribes can protect their resources. CERT constitutes an attempt to make that protection possible.

Because CERT is directly accountable to established tribal authorities that control its operations, and it performs traditional and vital functions on behalf of its tribal members, I find and conclude that CERT is a tribal agency exempt from Title VII. Plaintiffs’ sex-discrimination claims must be dismissed. In addition, because the federal claims are dismissed, I decline to accept jurisdiction over the pendent state-law claims.

Accordingly,

IT IS ORDERED that the defendant’s motion to dismiss all the plaintiffs’ claims is granted; the complaint and action are dismissed.

      . The plaintiffs urge a narrow construction of the statutory exemption based on definitions of a "tribe" from other contexts. See EEOC Decisions 1983 (CCH) para. 6822 (August 5, 1980). Unrelated definitions of a “tribe" do not govern here because they were formulated with very different ends in mind. To interpret § 2000e(b) accurately, a "tribe” must be defined in light of the purposes behind the statutory exemption. Plaintiffs’ limited view does not seem to include tribal agencies within its definition of a “tribe.”


text:
    Ronny ZAMORA, Plaintiff, v. Louie L. WAINWRIGHT, Defendant.
    No. 84-1895-CIV.
    United States District Court, S.D. Florida, Miami Division.
    May 30, 1985.

      Ronald S. Guralnick, Miami, Fla., for plaintiff.
    Calvin L. Fox, Asst. Atty. Gen., Tallahassee & Miami, Fla., for defendant.
   MEMORANDUM OPINION AND ORDER REFERRING PETITION TO MAGISTRATE FOR FURTHER RECOMMENDATION

SPELLMAN, District Judge.

Ronny Zamora, through counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 attacking his convictions for first degree murder, burglary of a dwelling, possession of a firearm while committing a felony, and robbery. This Court referred the petition to a United States Magistrate for preliminary consideration and report pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Court.

In her report to this Court, the Magistrate recommended that the petition be dismissed, without prejudice, because in her opinion, the petition includes both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). For the following reasons, this Court disagrees. Because the Court finds that the petitioner has adequately presented his claims to the Florida courts, this matter is referred back to the Magistrate to determine whether an evidentiary hearing should be held, to hold whatever hearings as may be necessary, and to file proposed findings and recommendations on the merits of the claim. See Rules 8 and 10 of the Rules Governing 2254 Cases in United States District Courts.

1

In his petition, Zamora contends that he was deprived of effective assistance of counsel in the following ways:

1. Counsel failed to file a motion to suppress the' confessions and admissions of Zamora and his codefendant;

2. Counsel raised a sole defense of insanity by reason of television intoxication although the trial judge warned that no such defense exists under law and counsel further failed to introduce admissible evidence in support of the novel theory but did tell the jury that Zamora understood right from wrong, thereby undercutting an insanity defense;

3. Counsel failed to attempt to plea bargain because he wanted publicity although the prosecutor would have offered Zamora the same plea to second degree murder as his codefendant bargained for;

4. Counsel inadequately defended count one by telling the jury Zamora understood right from wrong and offered no defense whatever as to counts two, three, and four, causing the Court to strike the insanity defense as to those counts and leaving Zamora defenseless.

5. Counsel labored under a genuine conflict of interest in that he was more interested in publicity for himself than in the defense of Zamora.

In her report to this Court, the Magistrate found that Zamora had not exhausted his state remedies on the third issue because the Florida courts have never considered the evidence that State Attorney Richard Gerstein would have accepted a plea to second degree murder.

At the hearing before the state trial court on Zamora’s motion to vacate the judgment and conviction, Zamora did not present any evidence that Gerstein would have accepted a plea to second degree murder. In denying the motion to vacate on the ground that counsel was ineffective in failing to pursue a plea bargain, the state trial court stated that Zamora failed to establish that he would have been willing to accept the plea, that the State would have accepted the plea, and finally, that the court would have accepted the plea. Zamora moved to reopen the hearing so that he could present testimony by himself and by Gerstein. The trial court refused to reopen because the evidence was not newly discovered in that the evidence was available to the defendant through the exercise of due diligence. The court also held that the proposed new evidence, even if it had been presented, would not change its decision.

Zamora appealed the denial of his motion to vacate to the state appellate court, but did not specifically appeal the denial of the motion to reopen to permit Gerstein to testify. The Third District Court of Appeal affirmed the trial court and found that Zamora was not denied effective assistance of counsel by defense counsel’s failure to plea bargain because Zamora had not shown that the state attorney would have accepted the plea and that the court would have ratified the plea. Zamora v. State, 422 So.2d 325, 327 (Fla. 3d DCA 1982).

The Magistrate has recommended that this Court dismiss the petition, without prejudice, so that Zamora can present Ger-stein’s testimony to the state courts. But any pursuit of this issue in the Florida courts would be futile. The Florida courts have already stated, as a matter of law, that in order to establish ineffective assistance of counsel for failure to plea bargain a defendant must establish not only that the prosecutor would have offered a plea but also that such a plea arrangement would have been acceptable to the court. Even if Gerstein testified that he would have offered a plea to second degree murder, Zamora has never even attempted to establish this other requirement.

Zamora may very well have waived his right to present Gerstein’s testimony to this Court, see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), but Zamora should not be required to go back into state court to submit evidence that would still be inadequate to warrant relief under the legal standard articulated by the Florida courts. Claims as to which pursuit in state courts would be futile are exhausted for purposes of seeking federal habeas relief. See, e.g., Shears v. Israel, 712 F.2d 1220, 1222 (7th Cir.1983) (per curiam) (futility exception met when state case law precluded relief on lesser crime jury instruction claim).

II

The Magistrate also found that there was a “serious” exhaustion problem as to the fifth issue of the petition, the claim that counsel had a conflict of interest in that he was more interested in publicity for himself than in defending his client. This issue was never framed precisely this way in the state court, but it is clear that the substance of the allegation was plainly presented.

In the Florida courts, Zamora argued that counsel intended to indict the television industry rather than defend his client. He buttressed this claim by putting into evidence a civil suit filed by defense counsel against all major television stations and by a copy of a personal services contract concerning a proposed book by counsel concerning the defense of the Zamora trial. The book was to be entitled “Television: Accessory to Murder — the Ronny Zamora Story as Told by His Attorney Ellis Rubin.” Moreover, Zamora presented the testimony of a former law clerk to Ellis Rubin. This clerk testified that when he questioned Rubin as to why he had failed to renew the motion to suppress Zamora’s confession (which had been denied by the court for failure to comply with the rules of the court), Rubin stated that the “confessions could probably be suppressed, and Ronnie would probably be found not guilty, but if he did that, the world would never get a chance to hear his defense.”

A federal habeas petitioner must first present the substance of his federal claim to the state courts. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). Moreover, he must state his claim in a manner which will allow the state courts a fair opportunity to rule on any applicable constitutional claims. Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982). In the present case, Zamora alleged ineffective assistance of counsel and specifically argued that Rubin was more interested in indicting the television industry than in defending his client. This Court is of the opinion that the Florida courts were given a fair opportunity to rule on this claim even though Zamora did not specifically refer to it, as he does now, as a “conflict of interest.”


author: POLOZOLA, District Judge.

text:
    George Ann HALE and Ray Lynn Dyer v. BILLUPS OF GONZALES, INC. and/or Charter Marketing Company.
    Civ. A. No. 85-266-B.
    United States District Court, M.D. Louisiana.
    May 30, 1985.

      John R. Rarick, St. Francisville, La., for plaintiffs.
    J. Patrick Gaffney, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, La., for Charter Marketing Co.
   POLOZOLA, District Judge.

This matter is before the Court on the motion of the plaintiffs, George Ann Hale and Ray Lynn Dyer, to remand this action to the Twentieth Judicial District Court, Parish of West Feliciana, State of Louisiana. No oral argument is required on this motion. For reasons which follow, the Court finds that plaintiffs’ motion to remand must be denied.

Plaintiffs originally filed suit in state court seeking a declaratory judgment that a lease entered into between the plaintiffs’ father and Billups of Gonzales, Inc. (“Bill-ups”), on December 27,1961, terminated on December 1, 1984, without granting an option to renew the agreement with Charter Marketing Company (“Charter”). In the alternative, the plaintiffs seek a declaration that if the Court finds that an option entered into on May 16, 1973, effectively extended the original lease until December 1, 1990, the actions of the defendant/lessee require an annulment of the lease under the option. Charter timely filed a petition for removal pursuant to 28 U.S.C. § 1441 with subject matter jurisdiction based upon diversity of citizenship. Thereafter, the plaintiffs filed a motion to remand which is now pending before the Court. Plaintiffs contend that the Court lacks jurisdiction because the amount in dispute does not exceed the requisite $10,000.00 jurisdictional amount.

No express requirement as to the amount that must be in controversy before an action may be removed is set forth in 28 U.S.C. § 1441. However, since the statute only authorizes removal of those cases that originally could have been brought in federal district court, it follows that the jurisdictional requisite amount applies to removed actions as it would apply to actions originally filed in federal court. 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3752 (2d ed. 1985). Therefore, in those cases in which jurisdiction is based upon diversity, the removal is improvident unless the dispute involves an amount in excess of $10,000.00. State of Illinois ex rel. Bowman v. Home Federal Savings and Loan Ass’n, 521 F.2d 704 (7th Cir.1975); Halter v. National Farmers Union Property and Casualty Co., 502 F.Supp. 736 (E.D.Ark.1980). See also 28 U.S.C. § 1332.

In determining whether the requisite jurisdictional amount is present, the Court must apply the “legal certainty” test which was set forth by the United States Supreme Court in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). When the jurisdictional amount is challenged, the party invoking the jurisdiction of the federal court has the burden of proving that it does NOT appear to a legal certainty that the claim is actually for less than the requisite jurisdictional amount. Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939); Diefenthal v. Civil Aeronautics Board, 681 F.2d 1039 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983); and Ortego v. Weinberger, 516 F.2d 1005 (5th Cir. 1975). Thus, in removal cases, it is incumbent upon the defendant to make the above showing. If the defendant fails to show that the court has jurisdiction, the case must be remanded to the state court from which it was removed. Lindsey v. Alabama Telephone Co., 576 F.2d 593 (5th Cir.1978). See also 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, §§ 3702, 3725 and 37839.

In the present case, the defendant has met the burden of demonstrating that it does not appear to a legal certainty that the plaintiffs’ claim is for less than the requisite jurisdictional amount. Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111; Diefenthal v. Civil Aeronautics Bd., 681 F.2d 1039; and Ortego v. Weinberger, 516 F.2d 1005. To meet the burden of proof, Charter has submitted a copy of an agreement entered into on May 16, 1973, between the plaintiffs, their father and Bill-ups, which purports to grant an additional six year option at the same monthly rent of $195.20 per month beginning December 1, 1984, and continuing to December 1, 1990. The amount in dispute, therefore, is $195.20 per month x 12 months x 6 years or a total of $14,054.40. The plaintiffs contend that since they have not alleged that the value of the controversy exceeds $10,000.00, this Court lacks jurisdiction. This contention is without merit and obviously relies upon the “plaintiff-viewpoint rule” to determine the amount in controversy. However, a different rule applies in a suit for a declaratory judgment. In Leininger v. Leininger, 705 F.2d 727 (5th Cir.1983), the Fifth Circuit stated:

... In actions seeking declaratory or injunctive relief the amount in controversy is measured by the value of the object of the litigation. Aladdin’s Castle, Inc. v. City of Mesquite, 630 F.2d 1029 (5th Cir.1980). To put it another way, the amount in controversy, in an action for declaratory or injunctive relief, is the value of the right to be protected or the extent of the injury to be prevented. Texas Acorn v. Texas Area 5 Health Systems, Inc., 559 F.2d 1019 (5th Cir. 1977).

Therefore, Leininger applies to this suit for declaratory relief. Thus, the amount in controversy must be determined by the value of the right to be protected. The value of the right to be protected in this case is the aggregate rental amount, or $14,054. Since the defendant has met its burden of establishing the requisite jurisdictional amount, plaintiffs’ motion to remand must be denied.

Therefore:

IT IS ORDERED that the motion of the plaintiffs, George Ann Hale and Ray Lynn Dyer, to remand this action to the Twentieth Judicial District Court, Parish of West Feliciana, State of Louisiana, be, and it is hereby DENIED.

      . Billups was merged into Charter in 1979.

      . 28 U.S.C. § 1441 provides:
      Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

      . See 28 U.S.C. § 1332.

      . Grubbs v. General Electric Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972); Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), reh'g denied, 391 U.S. 929, 88 S.Ct. 1801, 20 L.Ed.2d 670 (1968).

      . The United States Supreme Court explained the legal certainty test stating that “[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 285, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938).

      . The defendants assert in their memorandum that the basic lease provided for an annual payment of $400.00 plus the monthly payments of $195.20. The Court finds that it is unnecessary to decide at this point whether the agreement entered into on May 6, 1973, included this $400.00 annual payment in addition to the monthly payments since the jurisdictional amount has been met without using this annual payment.

      . In St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 285, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938), the Court held that “the sum claimed by the plaintiff controls if the claim is apparently made in good faith.”

      . See Scott-Burr Stores Corp. v. Wilcox, 194 F.2d 989, 990 (5th Cir.1952), where the Fifth Circuit upheld a district court's denial of a motion to dismiss a declaratory judgment action for lack of jurisdictional amount stating that "[t]he complaint showed the existence of a disputed claim as to the effectiveness of an attempt to renew a lease for a period of ten years at an aggregate rental of at least $51,000.00”


author: RICHARD L. WILLIAMS, District Judge.

text:
    Stanhouse C. IVY, Plaintiff, v. Elizabeth H. DOLE, Secretary of Transportation, Defendant.
    Civ. A. No. 85-177-A.
    United States District Court, E.D. Virginia, Alexandria Division.
    May 31, 1985.

      June D.W. Kalijarvi, Kalijarvi & Chuzi, P.C., Alexandria, Va., for plaintiff.
    Dennis E. Szybala, Asst. U.S. Atty., Alexandria, Va., for defendant.
   MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

This matter comes before the Court on defendant’s motion for summary judgment pursuant to Rule 56. The defendant contends that present action is barred by the Consent Decree entered by this Court in Good, v. Helms. Summary judgment is appropriate when, viewing the facts in the light most favorable to the non-moving party, no genuine issues of material fact remain and the case can be decided as a matter of law. King v. Gemini Food Services, 438 F.Supp. 964 (E.D.Va.1976).

Facts

Plaintiff, a police officer employed by the Federal Aviation Administration (FAA) at Washington National Airport, filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The event which precipitated this suit occurred on January 25, 1979, when plaintiff Ivy failed to appear for work; he was subsequently placed on AWOL status and suspended for two days for this absence. Ivy contended that he was meeting with an EEO counselor on January 25, and that therefore his absence was fully justified. On April 28, 1979, Ivy filed a formal EEO complaint alleging that his suspension was racially motivated, and that the FAA had created a work environment in which he could not be promoted.

After carefully considering all of the evidence, the Hearing Examiner recommended a finding of no race discrimination, but did find that Ivy should not have been placed on AWOL status for the two hours on January 25 when he was with the EEO counselor. The FAA accepted these findings, and paid Ivy for the two hours in question. Nonetheless, on September 21, 1983, Ivy appealed the Hearing Examiner’s findings to the EEOC. The EEOC decision, finding no evidence of racial discrimination, was sent to Ivy on December 28, 1984.

While Ivy’s appeal was pending before the EEOC, Good v. Helms, No. 83-540-A (E.D.Va. December 23, 1983), was litigated and resolved in this Court. Good was a Title VII class action alleging that the FAA was engaging in various discriminatory disciplinary and promotion practices. The class in Good, which was certified pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, consisted of “... all present and future black police officers below the rank of sergeant who are or will be employed at Washington National Airport as of August 9, 1983.” Ivy, the plaintiff in this action, was a member of the plaintiff class in Good,.

After extensive discovery and vigorous negotiations by the counsel for both sides, the parties in Good entered a proposed Consent Decree which provided the plaintiff class with a number of tangible benefits, including a revamped promotion system and a new disciplinary process. The proposed decree also contained the following provisions:

* # * * # #

Effects of Consent Decree

4. The plaintiffs and defendants enter into this Consent Decree and agree to be bound by the terms and conditions set forth herein. The purpose of this Consent Decree is to finally satisfy and extinguish the claims brought by the plaintiff class in this case. The terms and provisions of this Consent Decree constitute the entire agreement between the parties.

* # * * * *

Release

21. Final approval by the Court of this Consent Decree shall operate to discharge the defendants from all liability to the plaintiffs for claims arising under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., which are pending on the effective date of this Consent Decree and all such claims based upon events that occurred prior to this Consent Decree. This agreement is in full and complete disposition of allegations in the plaintiffs’ complaint.

jfc $ sjc

On November 17, 1983, the proposed Decree was sent to all members of the Good class, including Ivy, and notice was given that there would be a hearing on December 23, 1983, to determine whether the settlement should be approved by the Court. Ivy, as a member of the class, filed objections to the settlement prior to the hearing, charging that it was inadequate in that it did not provide for any monetary relief, and noting that approval of the decree would foreclose his right to pursue his pending EEOC claim. After carefully reviewing the terms of the settlement and considering Ivy’s objections, the Good court denied the objections and entered the Consent Decree.

Discussion

Under basic principles of res judicata, a judgment on the merits in a prior suit bars a subsequent suit between the same parties based upon the same cause of action. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). Each of the three elements — a pri- or judgment on the merits, identity of parties, and the same cause of action — has been met here.

First, both parties in this action were also parties to the Good suit. Second, the claims raised by Ivy in this action are exactly the same claims that he pursued before the EEOC, and the same claims he attempted to preserve in his objections to the Good consent decree. Ivy’s claims fall squarely within the scope of the Good consent decree, which specifically discharged the defendants from all liability to the plaintiff class members, including Ivy, which arose under Title VII and were pending on December 23, 1983. Third, the consent decree in Good constitutes a final judgment on the merits, since a valid judgment entered into by agreement or consent has the same res judicata effect as a judgment or decree entered after trial. Nash County Board of Education v. Biltmore Co., 640 F.2d 484, 486 (4th Cir.1981).

The plaintiff contends that, under the recent Supreme Court opinion in Cooper v. Federal Reserve Bank of Richmond, — U.S.-, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984), his claims are not barred by the Good Consent Decree. In Cooper, the EEOC and employees of the defendant bank brought an action for unlawful discriminatory employment practices during a specified time period. At trial, the district judge found that the bank had engaged in a pattern and practice of racial discrimination with respect to employees in certain lower pay grades, but that the bank had not engaged in such a pattern and practice of discrimination with respect to employees in higher pay grades. Thereafter, the District Court refused to consider the individual discrimination claims of certain employees in those higher pay grades in light of its finding that there was no classwide discrimination in those grades.

This latter group of employees, known as the Baxter petitioners, then filed a separate action against the bank alleging that each of them had been denied promotions because of their race in violation of 42 U.S.C. § 1981. The District Court denied the Bank’s motion to dismiss in this second action, but the Fourth Circuit reversed, holding that the judgment in the Cooper class action precluded the Baxter petitioners from pressing their individual claims against the Bank in a subsequent action. The court then reversed the order denying the Bank’s motion to dismiss, and remanded the Baxter complaint for dismissal. EEOC v. Federal Reserve Bank of Rich mond, 698 F.2d 633 (4th Cir.1983). The Baxter petitioners appealed from that judgment, and the Supreme Court reversed.

The Supreme Court’s holding in Cooper is clear: the failure of a plaintiff to prove a classwide pattern and practice of discrimination does not automatically foreclose a subsequent attempt by that plaintiff or a fellow class member to prove an individual claim of discrimination. In Cooper, although their claims of classwide discrimination failed, the Baxter petitioners never litigated their individual claims against the Bank. Therefore, the Supreme Court concluded, while the judgment in the original class suit precludes class members such as the Baxter petitioners from relitigating whether the Bank engaged in a pattern and practice of discriminatory conduct, it does not preclude them from litigating individual claims not specifically resolved in the prior litigation.

In the present matter, Ivy contends that the Consent Decree in Good only resolved the classwide claims of the police officers, that he has never had the opportunity to litigate his individual claims of discrimination, and that therefore he is not precluded from pursuing his claims in a separate suit. Ivy’s argument, however, ignores the critical difference between the Good Consent Decree and the judgment of the District Court in the Cooper class action. In Cooper, the District Court never considered the individual claims of the Baxter petitioners; in Good, the plaintiffs’ individual claims were specifically resolved in the settlement agreement. The final Consent Decree in Good, then, not only resolved the common class claims, but it also disposed of the individual claims as well.

Plaintiff urges this Court to read Cooper so broadly that judgments in class actions would never be able to preclude dissatisfied individual class members from pursuing their individual claims in subsequent law suits. This position fails to fully appreciate that, while class actions may occasionally resolve only common, class-wide issues (as in Cooper), they» frequently resolve individual claims as well, either through consent decrees (as in Good), individual “mini-trials”, or judgments which recognize that the individual class members’ claims are coextensive with the common, class-wide claims. In Cooper itself, the Supreme Court recognized that “a judgment in a properly entertained claim action is binding on class members in any subsequent litigation ... on any issue actually litigated and determined, if its determination was essential to that judgment.” Cooper, — U.S. at-, 104 S.Ct. at 2799. Since the Consent Decree in Good was properly entered by a court of competent jurisdiction, and since it specifically resolved Ivy’s individual claims of discrimination, the present action is barred by principles of res judicata.

While Ivy may complain that his individual claims were never actually litigated, and that he has not been given individual relief in the Good Consent Decree, the Court believes that no injustice is done by dismissing the present action. First, Ivy did not object when the Good class action was certified under Rule 23(b)(2). Had Ivy been able to persuade the Good court that his interests were divergent from those of the class as a whole, the class could have been certified under Rule 23(b)(3), which would have fully protected Ivy’s right to opt out of the class. Second, Ivy did have the opportunity to present his objections to the Court prior to the time that the Consent Decree was entered. Ivy submitted numerous objections to the proposed decree, and these objections were carefully considered by the Court before the decree was entered. Third, Ivy could have appealed the Good court’s denial of his objections and entry of the Consent Order; he failed to do so. Finally, as a member of the class in Good, Ivy is receiving all of the benefits of a hard-bargained, well-crafted settlement which adequately address the problems raised in his complaint.

Accordingly, the defendant’s motion for summary judgment is GRANTED and the case is DISMISSED.

Let the Clerk send a copy of this memorandum opinion to all counsel of record.


author: WILKINS, District Judge.

text:
    Betty Ann WILLIAMS and Alan Ehrlich, as members of the official staff of the Honorable Alcee L. Hastings, and the Honorable Alcee L. Hastings, United States District Judge, Plaintiffs, v. Spencer D. MERCER, as Clerk of the United States Court of Appeals for the Eleventh Circuit; and the Honorable John C. Godbold, Chief Judge of the Eleventh Circuit, the Honorable Gerald B. Tjoflat and Frank M. Johnson, Jr., Judges of the United States Court of Appeals for the Eleventh Circuit, and the Honorable Sam C. Pointer, Jr. and William C. O’Kelley, Judges serving on United States district courts within the Eleventh Circuit, as members of a committee known as the Investigating Committee of the Judicial Council of the Eleventh Circuit, Defendants.
    No. 85-1772-CIV-DAVIS.
    United States District Court, S.D. Florida.
    May 31, 1985.
    Terence J. Anderson, Coral Gables, Fla., for plaintiffs.
    G. Stewart Webb, Jr., Baltimore, Md., John Doar, New York City, for defendants Investigating Committee.
   ORDER

WILKINS, District Judge.

This case arises from investigative proceedings conducted pursuant to the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (the Act), 28 U.S.C.A. § 372(c) (West Supp.1985). Because the parties needed an expedited resolution of the issues framed by Plaintiffs’ Complaint and Motions for Emergency Relief, the Court conducted an emergency hearing on May 24, 1985 and issued an interim Memorandum Opinion on that date. This order supplements the Memorandum Opinion filed May 24, 1985 and constitutes the final order of this Court.

A special investigating committee was appointed by the Chief Judge of the Eleventh Circuit Court of Appeals pursuant to the Act in March of 1983 to investigate allegations of “conduct prejudicial to the effective and expeditious administration of the business of the courts” concerning United States District Judge Alcee L. Hastings. § 372(c)(1), (4). Pursuant to its investigation, the committee requested the issuance of subpoenas seeking the appearance of present and former staff members of Judge Hastings and the production of certain documents and records. § 372(c)(9)(A). These subpoenas were issued by the Clerk of the Eleventh Circuit Court of Appeals pursuant to 28 U.S.C.A. § 332(d)(1) (West Supp.1985). Plaintiffs objected to the validity and enforcement of these subpoenas in a complaint filed May 20, 1985.

Specifically, Plaintiffs attacked the subpoenas on the following grounds:

1. The subpoenas impinged upon privileged communications between Judge Hastings and members of his staff, and any documents or records in Judge Hastings’ possession were immune from disclosure;

2. The section establishing the committee’s subpoena powers, § 372(c)(9)(A), and the issuance and service provision of the Act, § 332(d)(1), are unconstitutional; and

3. The service of the subpoenas by agents of the FBI improperly impinged upon the confidentiality of the investigation.

Plaintiffs seek injunctive relief preventing the enforcement of the subpoenas, and a declaration that the subpoenas are invalid, the service of them improper, and the subpoena powers under the Act unconstitutional. Further, Plaintiffs seek the return of certain documents delivered pursuant to one of the subpoenas in question and protective injunctive relief regarding the use and disclosure of the documents.

On the morning of the hearing, Defendant Committee raised for the first time the issue of this Court’s jurisdiction and moved to dismiss the Complaint pursuant to Fed. R.Civ.P. 12(b)(1). Because the subpoenas compelled the attendance of many interested persons on Monday,' May 27, 1985, this Court felt it appropriate to address the jurisdictional issue as well as the merits of the Complaint. This approach was taken in an effort to avoid unnecessary delay in the event an appellate court should later rule that this court should have addressed the substantive issues raised by Plaintiffs.

SUBJECT MATTER JURISDICTION

The Act clearly confers authority to issue subpoenas only upon the clerk of the court of appeals in which a complaint pursuant to the Act is filed. Section 372(c)(9)(A) provides the committee with full subpoena powers “as provided in Section 332(d) of this title.” Section 332(d)(1) provides: “[e]ach council is authorized to hold hearings, to take sworn testimony, and to issue subpoenas and subpoenas duces tecum. Subpoenas and subpoenas duces tecum shall be issued by the clerk of the court of appeals, at the direction of the chief judge of the circuit____” No other court is granted the authority to issue subpoenas, specifically or implicitly. The court of appeals being the issuing body, it is therefore the appropriate body to which challenges to its subpoenas should first be made. A district court is without jurisdiction to entertain challenges to subpoenas issued pursuant to the Act without a specific reference from the court of appeals.

Defendant Committee's Motion to Dismiss is accordingly granted.

COMPLAINT

Plaintiffs’ assertions contained in Counts I, III and IY of the Complaint, which attacked the validity, enforceability and service of the subpoenas, are without merit. The subpoenas were issued and served pursuant to authority specifically provided under the Act. §§ 332(d)(1), 372(c)(9)(A). The exercise of this authority offended no constitutional right, guarantee, or principle. See Hastings v. Judicial Conference of the United States, 593 F.Supp. 1371 (D.D.C.1984), appeal docketed, No. 84-5576 (D.C.Cir. Aug. 24, 1984). The Court notes that the constitutionality of the Act was upheld in Hastings, and accordingly dismisses the several articles which question the Act’s constitutional validity as lacking in convincing merit. E.g., Note, Unnecessary and Improper: The Judicial Council’s Reform and Judicial Conduct and Disability Act of 1980, 94 Yale L.J. 1117 (1985). Further, the Court notes that the broad investigative authority of the committee has been thoroughly explored and found to include the power to compel the disclosure of the records of a federal grand jury proceeding. In re Petition to Inspect and Copy Grand Jury Materials, 576 F.Supp. 1275 (S.D.Fla.1983), affd, 735 F.2d 1261 (11th Cir.1984), cert. denied, -U.S. -, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984).

Count II of the Complaint alleged that Judge Hastings’ secretary, without his permission, delivered to an FBI agent copies of Judge Hastings’ personal records, including appointment diaries, schedules, calendars, telephone message books and the like. It is alleged that these documents were turned over to the FBI agent in lieu of Judge Hastings’ secretary’s appearance before the committee pursuant to a subpoena. Plaintiffs seek an order preventing the committee from retaining, using, or disclosing the documents, and for their immediate return. Since the subpoena issued for these documents was proper and review of these documents falls within the extensive investigative powers of the committee, the relief requested should be denied.

Count V of the Complaint challenged the validity and enforceability of subpoenas requiring the attendance of five former staff members of Judge Hastings. These former staff members are not parties to the proceeding. While Plaintiffs’ standing to raise this issue is questionable, these subpoenas are nevertheless likewise valid and enforceable.

      The Honorable William W. Wilkins, Jr., United States District Judge for the District of South Carolina, sitting by designation pursuant to 28 U.S.C.A. § 292(d) (West Supp.1985).


author: ELFVIN, District Judge.

text:
    William COLDICOTT, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    No. CIV-83-1354E.
    United States District Court, W.D. New York.
    June 3, 1985.
    Gerald P. Seipp, Buffalo, N.Y., for plaintiff.

      C. Donald O’Connor, Asst. U.S. Atty., Buffalo, N.Y., for defendant.
   MEMORANDUM and ORDER

ELFVIN, District Judge.

Presently before the Court is a petition by plaintiff’s attorney (“the attorney”) for fees pursuant to 42 U.S.C. § 406(b), section 206(b) of the Social Security Act [the “Act”]. While the somewhat unusual facts of the case raise questions concerning the application of that section of the Act, such need not be resolved for present purposes.

Following termination by the Secretary of his disability benefits under the Act, plaintiff had requested and received a hearing before an Administrative Law Judge (“the AU”) April 18, 1983. Plaintiff had been assisted at the hearing by a National Service Officer with the Disabled American Veterans. On June 7, 1983 the AU ruled that plaintiff was no longer disabled for purposes of the Act and plaintiff’s request for review of the AU’s decision was denied October 19, 1983 making final the decision of the Secretary.

Plaintiff then had retained the attorney in order to obtain this Court’s review of the decision and a complaint had been filed November 30, 1983. The Secretary had answered April 2, 1984 denying the Complaint’s relevant allegations. Subsequently, however, the Appeals Council of the Social Security Administration, recognizing that certain medical evidence had not been adequately considered, on its own initiative had requested a remand for the purpose of reinstating plaintiff’s benefits. This Court had ordered the matter remanded October 18, 1984 pursuant to a Stipulation For Remand signed by the attorney and counsel for the Secretary. The remand had not been prompted or brought about by any particular action by the attorney other than the preparation and signing and filing of the Complaint.

Upon remand plaintiff had been awarded slightly more than $20,000 in back benefits. On January 24th plaintiff’s attorney filed with this Court a petition seeking $5,155.15 as his fee pursuant to a signed retainer agreement by virtue of which plaintiff had promised to pay for the services rendered in this Court fees equal to 25% of any award of back benefits. Contemporaneously this Court had been made aware of certain questions surrounding the retainer agreement and the application for fees. Plaintiff had telephoned on at least two occasions and had followed such by a letter dated January 19th and another which was received January 30th. The general tenor of the calls and letters was that plaintiff questioned the size of the requested fee, that he was not certain what his rights or obligations were and that his attorney was not being responsive to his inquiries. Plaintiff also indicated he had contacted the Attorney Fee Staff of the Social Security Administration and the Erie County Bar Association without substantial clarification of these issues. Perhaps most potentially troubling was plaintiff’s indication that the attorney had in some way pressured him to remit funds or to acquiesce in certain conditions concerning payment of the attorney’s fees. For example, in the January 19th letter plaintiff wrote:

“Due to the lack of knowledge that I have, and also against my own will, I have complied with all of [the attorney’s] demands. I would be greatful [sic] and deeply appreciate your help concerning this matter in which I have been very helpless.
“The disabled American Veterans represented me through the first two years of my appeals. Although it proved fruitless, I had no other choice but to seek legal help and because I had no money, I had no choice but to sign this retainer with [the attorney].”

The retainer agreement to which plaintiff refers is dated October 28, 1983 and reads in pertinent part as follows:

“The client understands and acknowledges that the Social Security Administration may award a fee to the attorneys for the attorneys’ services rendered by them before the Social Security Administration. The client understands and acknowledges that the fee awarded by the Social Security Administration reduces the amount the client receives in past due disability benefits. The client also acknowledges and understands that such payment in no way pays the attorney for the attorney’s services rendered in the United States District Court for the Western District of New York. The client agress [sic] that he will pay to the attorneys for the attorneys’ services rendered in the United States District Court of the Western District of the State of New York an amount equal to twenty-five (25%) percent of the total amount of past due Social Security disability benefits finally awarded for the client and all members of the client’s family as a result of the efforts of the attorney. The attorneys acknowledge that if they are awarded attorneys’ fees by the Social Security Administration for work done on behalf of the client at Social Security Administration hearings, then they will deduct the amount paid directly by the Social Security Administration from the twenty-five (25%) percent fee owed by the client for services rendered in the United States District Court. As a result, the fee paid by the client will never exceed twenty-five (25%) percent of the total award for past due disability benefits. The client acknowledges and understands that he may receive his past due disability benefits in two separate checks. The client agrees that at the time of the receipt of his first check from the Social Security Administration for past due benefits, the client will deposit twenty-five (25%) percent of the total award into an escrow account for the protection of the attorneys’ fees until such time as all past due benefits are released by the Social Security Administration.”

The attorney, apparently acting pursuant to the retainer agreement but apparently also over his client’s objections, had on December 21st persuaded plaintiff to pay him $5,154.81 which was put in an escrow account in plaintiff’s name. This amount represented plaintiffs attorney’s calculation of 25% of the total award of back benefits. However, because the Secretary, as is routinely the case, was already withholding 25% of plaintiff’s award to provide a fund for potential attorney fee claims, plaintiff was left with only half of his award although no determination had yet been made as to what fees might be appropriate. Moreover, plaintiff has indicated that the attorney called him January 18th and requested that plaintiff sign a document releasing the money from the escrow account. Plaintiff, after reportedly contacting the Attorney Fee Staff and being advised that releasing the escrow account would constitute an approval of the fee sought by the attorney, did not do so. On February 1st the Secretary, through the United States Attorney for the Western District of New York, filed a cross-motion objecting to plaintiffs attorney’s petition for fees and requesting a permanent injunction prohibiting the attorney from using “the type of retainer agreements in question” and “an order that [the attorney] return to plaintiff any and all moneys taken from plaintiff, together with interest and an accounting.” The government contended, among other things, that the retainer agreement on its face violated the Social Security Act and that plaintiff’s attorney’s petition for fees was defective. On February 21st the attorney filed a Supplemental Affidavit to which was attached a xerographic copy of the services rendered portion of the earlier petition for fees, this time with hourly totals handwritten in the margin. The attorney now averred that 15.8 hours had been spent obtaining plaintiff’s benefits. Accordingly the government entered into a stipulation with the attorney February 21st withdrawing its earlier motion and approving a fee of $1,250 as “reasonable and justifiable under the circumstances.” The attorney agreed to revise his “retainer agreements in Social Security cases to eliminate any and all provisions relating to the direct taking and holding of monies in escrow accounts from client’s back benefits award” and to refrain from setting up fee-protecting escrow accounts in such cases. The attorney sent plaintiff a letter dated February 20th referring to the pending discussions with the government and enclosing a check for $5,175.81 representing the amount held in escrow plus interest. The letter further stated:

“After reviewing our time slips and our file for the services we rendered to you and discussing the time and services with the United States Attorney’s Office, we have agreed with them that a reasonable fee would be $1,250, which was computed at an hourly rate of $75 per hour. If this meets with your approval, then a stipulation for payment of attorney’s fees in the amount of $1,250 would be submitted for approval. If this meets with your approval, please you and your wife sign the enclosed copy of this letter and return it to me immediately.”

Plaintiff and his wife signed the letter February 21st, although it is questionable whether such signature was an endorsement of the indicated fee. Plaintiff challenged the fairness of such fee both before this Court February 28th, specifically stating that he did not approve of it, and by his March 5th letter to this Court in which he indicated that he had signed the earlier letter because he had misunderstood the extent to which the government had investigated the propriety of such an award and had inferred that the government had approved or validated it.

This Court denied the parties’ joint request that the petition for fees be adjourned from its scheduled February 25th hearing date. Instead, upon entertaining said motion and in consideration of all of the circumstances, an evidentiary hearing was ordered to be held February 28th. Such hearing was held and interested parties were provided an opportunity to testify and to present evidence. Thereby the foregoing factual recitations were confirmed.

This case has raised significant questions about the Act’s mechanisms for providing fees, such questions ranging from the propriety vel non of escrow accounts and/or retainer agreements to more general concerns whether its integral parts — whether the Secretary or the reviewing court determines the total amount of fees, when such determination or determinations are to be made, what is or are the quantitative limitations — can be said to function cohesively when viewed comprehensively. Such questions, however, are not squarely before this Court at this time and have not been thoroughly briefed or researched or otherwise developed. They are not ripe for disposition in the present case. The problem at hand may be resolved without reaching such fundamental issues regarding the Act, and therefore should be.

The attorney’s conduct herein is to be condemned, quite aside from the Act’s specific provisions. It was unconscionable for example, that the attorney should insist that the escrow account be funded at a time when the Secretary had already withheld 25% of past-due benefits and thus was protecting the attorney’s fee. The attorney’s argument — made at the evidentiary hearing — that the withholding of money in the escrow account does not prejudice the client because the account is interest-bearing ignores the fact that, in this and many other Social Security cases, liquidity of funds may be crucial to the making of certain immediate and necessary purchases. The entering into a retainer agreement whereby the fee is fixed at 25% of the litigative gains, rather than specifying that the fee would be fixed by the agency and reviewing court is facially overreaching.

The sheer size of the fee initially sought by the attorney and his failure to adequately examine into and respond to his client’s legitimate questions represent severe breaches of an attorney’s responsibility to his client. See e.g. paragraph EC2-23 of Canon 2 and paragraph DR2-106(A) of the Disciplinary Rules as embodied in Code of Professional Responsibility which is found in the Appendix to New York’s Judiciary Law. In this case the attorney has sought more than $5,000 for work which he acknowledges required no more than 15.8 hours, in support of which he has not submitted contemporarily maintained appropriately detailed time records, in a case involving minimal effort on the part of the attorney and posing only routine issues of law. By persisting in the application for fees without resolving questions that could and should have been handled without this Court’s intervention, the attorney has caused his client considerable and unnecessary inconvenience. Due to the attorney’s gross overreaching, his alarming neglect in responding to and protecting his client and his failure to have presented contemporarily maintained time records, no fee is warranted. Accordingly, it is hereby

ORDERED that plaintiff’s attorney’s petition for fees is denied.

      . Although the references to plaintiffs attorney are in the singular, at least two members of the single firm worked on plaintiffs case.

      . The precise total is not clear from the record. The attorney's petition for fees fixed it as $20,-620.60, but the February 1st affidavit of Jane B. Wolfe, Special Assistant United States Attorney, recites the Secretary's advice to her that $5,134.95 was being administratively withheld as 25% of the back benefits which implies that such benefits total $20,539.80.

      . A follow-up letter dated January 1, 1985 from plaintiff to the Social Security Administration’s Attorney Fee Staff reads in part as follows:
      "Endless efforts proved fruitless trying to gain support, not to pay my lawyer at this time since Social Security was holding back 25% of my award for him. I called the Erie County Bar Association and told them that [the attorney] was demanding one third of the total money sent to me in December. They told me I had to pay [him] because I signed a retainer with him. In turn, the bar assoc, called [the attorney], which triggered [him] to call me. He told me, that if I had any further questions not to call anyone else but himself. Also, the very next day in my mail, I received a copy of ‘Instructions For Using This Petition’ from [the attorney], underlining in * * * yellow marker as to reasons why I had to pay him. He also stated that I had to pay him as soon as I received my first check. He told me he could not justify the amount of work he had done to receive the 25% you were holding back as he said he had only done a couple of hundred dollars of work as far as Social Security was concerned. He also stated that Social Security had no say in what he gets paid because my case was at the Federal Court level, even though it didn't go to court. He also said he would not fill out an Attorney’s Fee Request until I paid him and then he would send a letter to you, requesting release of the 25% to me in which I would receive it faster.”

      . The government pointed to the absence in the petition of any specific contemporary indication of hours spent on the case — see e.g., New York Ass'n For Retarded Child. v. Carey, 711 F.2d 1136, 1148 (2d Cir.1983) — , certain questionable claims in the petition, and the fact that the fee sought was far out of proportion to any reasonable fee for the services involved.

      . For reasons that are unclear, the attorney has submitted to this Court as an exhibit an uncashed check for $11.87 representing the credit balance from the escrow account. Assuming such has not already occurred, plaintiff’s attorney is to reimburse to plaintiff said amount as well as any and all sums that may still be due on account of the escrow account within ten days of the entry of this decision.

      . It is not clear how such figure was reached inasmuch as the attorney contemporaneously attested to 15.8 hours work in connection with this matter.

      . Of course the ultimate responsibility for determining an award of fees in such circumstances remains with the cognizant court in any event.

      . "Perhaps no other section of any law has caused more misunderstanding, mistrust, and bad feeling between members of the Bar and [the Department of Health and Human Services] than the fee limitation provision which limits the amount of fees an attorney may charge or collect in a Social Security proceeding.” H. McCormick, Social Security Claims and Procedures (3rd Ed.) § 763.

      . If the Secretary continues willing to pay the attorney $1,250 or any other amount from a source other than this plaintiffs money, she may do so. Such could assumeably be accomplished under the aegis of the Equal Access to Justice Act and without an order from this Court.