author: LASKER, District Judge.

text:
    David DIXON, et al., Plaintiffs, v. Margaret M. HECKLER, as Secretary of the Department of Health and Human Services, Defendant.
    No. 83 Civ. 7001 (MEL).
    United States District Court, S.D. New York.
    Jan. 2, 1985.
    John E. Kirklin, The Legal Aid Society, Civil Appeals and Law Enforcement Unit, Nancy Morawetz, Conrad Johnson, Atty. in Charge, The Legal Aid Society, New York City, for plaintiffs.
    Robert Abrams, Atty. Gen. of the State of N.Y., Mary Fisher Bernet, Asst. Atty. Gen., New York City, for the State of New York.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., Denny Chin, Asst. U.S. Atty., New York City, for defendant.
   ENDORSEMENT

LASKER, District Judge.

Plaintiff David Dixon’s motion for judgment on the pleadings and defendant’s cross-motion to remand for further administrative proceedings were referred to Honorable Harold J. Raby, United States Magistrate, for report and recommendation.

Under date of December 12, 1984 Magistrate Raby submitted his report recommending that defendant’s cross-motion to remand be denied and plaintiff’s motion for judgment on the pleadings be granted subject to conditions.

Neither party has filed written objections and we have been advised by the Assistant United States Attorney in charge of the case that the government does not object to the Magistrate’s recommendations. Since we find the Magistrate’s recommendation to be sound on the facts and law we affirm it. Defendant’s motion to remand is denied. Plaintiff’s motion for judgment on the pleadings is granted reversing the prior adverse decision by the Secretary which declared plaintiff ineligible for receipt of social security disability payments.

The case is remanded to the Secretary for the limited purpose of computing the amount of benefits payable to the plaintiff pursuant to his application dated August 5, 1981 and for the payment of such benefits.

It is so ordered.

REPORT AND RECOMMENDATION

December 12, 1984

HAROLD J. RABY, United States Magistrate.

Pursuant to Title 28 U.S.Code § 636(b)(1)(B), you have referred to me, as a Magistrate of this Court, for report and recommendation, (1) a motion by the first-named plaintiff in this class action, David Dixon, filed October 9, 1984 (Court Document # 47), seeking judgment on the pleadings reversing outright a prior adverse decision against the plaintiff by the defendant, Secretary of the Department of Health and Human Services (hereinafter “Secretary”) and declaring plaintiff eligible for the receipt of such monthly Social Security benefits as the plaintiff would be entitled to receive based upon an assumed favorable determination of his August 5, 1981 application for Social Security disability benefits; and (2) a cross-motion by the defendant Secretary, filed by the United States Attorney on October 19, 1984 (Court Document # 49), seeking an order remanding the case, pursuant to Title 42 U.S.Code § 405(g) for further administrative action which, if pursued, might well, according to the United States Attorney, result in a final administrative decision favorable to the plaintiff Dixon, thereby obviating the need for further action by this Court as to his case.

Both motions must be viewed in the light of the prior history and background of this litigation, which may be summarized as follows.

The plaintiff Dixon, having commenced this action on behalf of himself and others “similarly situated,” thereafter, by appropriate motion, sought class action certification as well as a preliminary injunction enjoining enforcement by the Secretary of a so-called “severity regulation” claimed by plaintiff to be invalid.

In a published opinion dated June 22, 1984 granting that relief, reported as Dixon v. Heckler, 589 F.Supp. 1494 (S.D.N.Y.1984), you described and summarized the prior administrative proceedings, insofar as they related to the plaintiff Dixon, as follows:

David Dixon suffers pain in his right hip from a serious fracture which he sustained in an automobile accident in 1969, and attends the Harlem Rehabilitation Center as an outpatient for six hours a day, five days a week. He is blind in one eye, (also as a result of the automobile accident) suffers from a personality disorder, and has a verbal I.Q. of 68. The Administrative Law Judge (“ALJ”) found each of Dixon’s impairments to be non-severe under the second step of the five-step disability analysis. As to the hip fracture, The ALJ found that if Dixon underwent “intensive therapy” he would “possibly enhance [sic] his current disability.” Dixon’s blindness in one eye was found not to be a severe impairment because he retained essentially normal sight in his other eye. As to Dixon’s mental capacity and psychological problems, the ALJ stated that there was “a good possibility” that these problems would not prevent Dixon from working if he obtained “retraining and some program to help [him] with his motivation.” Because the ALJ considered each impairment not to be severe based on the medical evidence, he did not consider (and, under the regulation, was not free to consider) whether Dixon was able to return to his last job (which had ended in 1974), or whether in view of Dixon’s impairments and his age, education, and work experience, he was capable of performing any job in the national economy. There is no indication that the ALJ considered the combined effect of Dixon’s impairments. The Appeals Council affirmed.

Id. at 1498-1499 (footnote omitted).

In granting a preliminary injunction and class certification, you ruled, in effect, that the denial of federal disability claims under the so-called “severity regulation,” 20 C.F.R. §§ 404.1520(c) and 416.920(c) (1983), violates the Social Security Act because the regulation conflicts with the Act’s definition of disability. You held that the severity of an impairment must be evaluated in terms of the combined effect of the impairment and the claimant’s age, education, work experience and ability to return to prior work. You further found that the Secretary’s policy of refusing to consider the combined effects of impairments “which are individually found not to be severe is manifestly irrational and finds no support either in logic or the Social Security Act.” 589 F.Supp. at 1508. That ruling was in part based upon the Secretary’s implementation of the severity regulation in the form of a pronouncement identified as “SSR 82-55,” which you described, in your June 22nd opinion (589 F.Supp. at 1507) as follows:

SSR 82-55 provides directions to SSA personnel on how to apply the Secretary’s severity regulation. The ruling contains a list of 20 impairments that are to be considered per se non-severe. In addition, the ruling directs SSA adjudicators to evaluate the severity of a claimant’s impairments singly, not in combination. Thus, if each of a claimant’s impairments is deemed not severe standing alone, no consideration may be given to their combined effect on the claimant.

Your holding in the foregoing respect seems to me to be entirely justified, if not mandated, by prior holdings of the Second Circuit Court of Appeals. See, e.g., Felshina v. Schweiker, 707 F.2d 71, 73-74 (2d Cir.1983); Kolodnay v. Schweiker, 680 F.2d 878, 879-880 (2d Cir.1982). See also Murphy v. Schweiker, 524 F.Supp. 228, 232 (E.D.Pa.1981), wherein it is stated that

[u]nless an ALJ considers all of a plaintiff’s impairments, singly and in combination, his decision is not supported by substantial evidence.

(Emphasis in original.) (Citation omitted.)

On the basis of the abovementioned holding, you granted the plaintiff Dixon’s motion to certify this case as a class action to the extent that it involved the cases of other disability applicants whose applications had similarly been denied under color of the aforementioned “severity regulation” which, as above stated, appeared to you to be invalid, and additionally granted a preliminary injunction barring the en- . forcement pendente lite against class members, of the severity regulation on the ground that the class plaintiffs “have demonstrated a likelihood of success as to the invalidity of the severity regulation.” 589 F.Supp. at 1509.

Presumably, therefore, any and all members of the newly certified class herein can now apply to this Court for summary judgment or judgment on the pleadings, directing that the proceedings as to each movant be remanded to the Secretary, with instructions to consider the combined effect of each claimant’s physical or mental ailments in order to determine whether that claimant is to be deemed disabled.

However, in an implementing order dated July 25, 1984 (filed July 26, 1984 as Court Document #43), in which you recognized the fact that a substantial number of persons who, in addition to being entitled to the rights set forth in your July 22, 1984 decision (589 F.Supp. 1494, supra) might have additional and entirely separate and independent grounds for a reversal of prior administrative decisions made in their cases by the Secretary, with or without remand, you expressly noted as follows:

19. Nothing in this order shall be construed as precluding members of the plaintiff class from obtaining greater relief on alternative grounds____ Nothing in this order shall be construed as precluding class members who choose to proceed with their individual court cases from seeking preliminary relief in those cases.

By virtue of the above-quoted order of July 25, 1984, Dixon, as one of the plaintiffs in this class action, was clearly given the right either to accept a prior offer made herein by the Secretary to accept a voluntary remand — or to reject such offer, and instead seek judgment on the pleadings, on grounds separate and apart from the ground that the severity regulation in Dixon’s case had been misapplied. Dixon, by his counsel, has elected the latter alternative and seeks judgment on the pleadings reversing outright, and without the possibility of further remand, the Secretary’s decision, on the ground that the undisputed evidence of record in the administrative proceedings requires a finding of disability as a matter of law.

Dixon’s attempt to obtain a final judgment, without remand, by this Court is, however, opposed by the United States Attorney, on the ground that inasmuch as it is clear, and in fact conceded, that the prior administrative decision represents a misapplication of the law (as your prior decision herein appears to recognize), the Secretary should be given an opportunity to correct that misapplication, and having corrected it, to reach a new decision, which, according to the United States Attorney, may well favor the plaintiff.

If the plaintiff’s sole ground for attacking the prior administrative decision in his case were the conceded misuse by the Secretary of a presumably invalid or defective regulation, I believe that the defendant would clearly be entitled to an order remanding the proceedings for further administrative action of a corrective nature. The Court’s discretionary power to order such remand cannot be doubted. Chico v. Schweiker, 710 F.2d 947, 955 (2d Cir.1983). It would certainly be appropriate to exercise such discretion in favor of the Government and allow remand, in the interests of judicial economy and orderly procedure, if the plaintiff Dixon were relying solely upon the alleged invalidity of the severity regulation. However, here, it is clear from Dixon’s brief, that he is not now addressing himself to that issue at all, but to a separate issue. As is noted at page 2 of the plaintiff’s Reply Memorandum of Law herein (Court Document # 51 filed October 26, 1984), you issued a letter to the parties under date of July 20, 1984 in which you stated:

It appears reasonable that if a class member with a pending court action can obtain relief on a ground other than the severity regulation, he or she should be able to pursue such relief without being required to “opt out” of the class.

Accordingly, it follows, in my view, that the plaintiff Dixon is entitled to have this Court consider, irrespective of the pendency of Dixon’s complaints about the invalidity of the “severity regulation,” his separate and independent argument that by reason of his established mental incompetency and the degree thereof, he is automatically entitled to a determination of disability, as a matter of law, based upon the established facts of record.

Accordingly, and since, for reasons hereinafter stated, I am persuaded that the plaintiff is correct in his evaluation of the prior administrative procedure and that he is entitled to summary and final judgment of this Court for the relief demanded in the complaint, it follows that the granting of the Government’s cross-motion to remand would serve no useful or constructive purpose, and that the cross-motion to remand should therefore be denied.

The remainder of this Report will consist of a statement of my views concerning the merits of the plaintiffs motion for judgment on the pleadings.

The principal argument by counsel for the plaintiff made in support of the motion for judgment on the pleadings, as set forth in Point I of the plaintiffs supporting Memorandum of Law, filed October 9,1984 as Court Document # 48 (“Plaintiffs Memo”), is that the pertinent regulations of the Secretary require a determination of disability if a claimant has an “IQ of 60-69 inclusive and a physical or other mental impairment imposing additional and significant work related limited function.” Counsel for the plaintiff note that the record establishes that Dixon’s verbal IQ is only 68, and that it is also undisputed that Dixon suffers from “a number of physical and mental impairments that affect his ability to function.” (Plaintiff’s Memo at 7.) My attention is also called to the fact that Dixon suffers from a leg and hip injury which concededly causes “significant limitations of movement” and that an examining physician has concluded that his “ability to sit is so seriously impaired that he cannot even perform sedentary work.” (Id. at 7.) He also appears to suffer from a “personality disorder.” (Id. at 8.) Counsel cite the “uncontested” report of a Dr. Chlenoff indicating that Mr. Dixon has a “passive aggressive personality with antisocial features.” (Id.) The brief concludes by what appears to me to be an accurate observation that “the record in Mr. Dixon’s case shows that Mr. Dixon is a mentally retarded individual with numerous significant additional impairments. Thus, he plainly meets the criteria of Listing 12.-05(C) and must be found disabled.” (Id. at 9, citing Townsend v. Heckler, 581 F.Supp. 157, 159 (W.D.Va.1983)).

In addition to the arguments made in Point I of the plaintiff’s brief, counsel for the plaintiff urge in Point II thereof, that “the Secretary failed to meet her burden of demonstrating that there are significant numbers of jobs in the national economy that Mr. Dixon can perform.” (Plaintiff’s Memo at 9.) In support of this argument, it is pointed out that the records of the New York State Office of Disability Determinations establish that plaintiff Dixon’s job “as a truck driver and various laboring jobs ... would be too heavy at this time.” (Id., citing Tr., 63.) In view of this showing, it is urged, and I believe correctly, that the burden thereupon shifted to the Secretary “to show that there are significant numbers of jobs in the national economy that Mr. Dixon can perform.” (Id. at 10.) Counsel for the plaintiff point out, however, that the Secretary “completely failed to meet this burden; the Administrative Law Judge made no finding as to any jobs that Mr. Dixon would be capable of performing.” (Id.)

From a reading of the defendant’s Memorandum of Law on these two motions (Court Document # 50 filed October 9, 1984), I find no satisfactory answer to either of the points made by counsel for the plaintiff as hereinabove stated. Accordingly, and being persuaded of the intrinsic merit of those points, I am constrained to conclude that the prior adverse administrative determination rendered by the Secretary with respect to plaintiff’s application for Social Security disability benefits was not only not based on substantial evidence, but was in fact contrary to law and contrary to the overwhelming weight of evidence before the Administrative Law Judge. On the record presented in the administrative proceedings, I believe that a finding of disability was mandated.

CONCLUSION

Accordingly, and for the reasons herein-above stated, I recommend that the defendant’s cross-motion to remand for further administrative proceedings be denied and that the plaintiff’s motion for judgment on the pleadings be granted; that judgment issue reversing outright the prior adverse decision by the defendant Secretary declaring plaintiff ineligible for receipt of Social Security disability payments; and remanding to the Secretary for the limited purpose of computing the amount of Social Security benefits payable to the plaintiff pursuant to his prior application therefor dated August 5, 1981, in the light of this Court’s determination of his eligibility therefor, and for the payment of such benefits.

The following papers considered by me in connection with this motion are forwarded to you herewith:

1. Plaintiff's Complaint, filed September 23, 1983 (Court Document # 2);
2. Plaintiff’s Amended Complaint, filed January 9, 1984 (Court Document # 7);
3. Defendant’s Answer to Amended Complaint to which is attached copy of Administrative Record as to plaintiff Dixon, filed March 7, 1984 (Court Document # 14);
4. Your Implementing Order of 7/25/84, filed July 26, 1984 (Court Document # 43);
5. Plaintiff’s Motion for Judgment on the Pleadings, filed October 9, 1984 (Court Document # 47);
6. Plaintiff’s Memorandum of Law in Support of above Motion, filed October 9, 1984 (Court Document # 48);
7. Defendant’s Notice of Cross-Motion for Remand, filed October 19, 1984 (Court Document # 49);
8. Defendant’s Memorandum in Support of above Motion, filed October 19, 1984 (Court Document # 50);
9. Plaintiff’s Reply Memorandum in Support of Motion for Judgment on Pleadings and in Opposition to defendant’s Motion to Remand, filed October 26, 1984 (Court Document # 51).

Copies of this Report and Recommendation have been mailed this date to counsel for the interested parties herein, who are hereby advised of their right, pursuant to Rule 72(b), Fed.R.Civ.P., read in connection with Rule 6(e), Fed.R.Civ.P., to file, within 13 days after being served with a copy of this recommended disposition, any specific objections to this Report, or any part thereof, in your Chambers.

       In my Report to Judge Sofaer dated May 25, 1984 in the case of Lane v. Heckler, 83 Civ. 1184 (ADS), I reached a similar conclusion and recommended a remand to the Secretary to the end that "claimant’s alleged impairments ... be evaluated in light of their aggregate effect on the claimant." That Report was confirmed and approved by Judge Sofaer in an Order of Remand dated June 11, 1984, filed June 12, 1984.

      In commenting upon the plaintiff’s physical condition in your opinion of June 22, 1984 (589 F.Supp. at 1503), you stated as follows:
      Plaintiff Dixon, ... who is completely without sight in one eye, has a personality disorder and a verbal IQ of 68, and requires rehabilitation therapy five days a week, can hardly be said to have impairments of such a de minim-is nature that they would not be expected to interfere with anyone’s ability to work irrespective of vocational factors.


source: Caselaw Access Project

author: DAVID V. O’BRIEN, District Judge.

license: Public Domain

text:
    Letitia GITTENS, Plaintiff, v. Cora CHRISTIAN, M.D., Defendant.
    Civ. No. 1982/210.
    District Court, Virgin Islands, D. St. Croix.
    Jan. 2, 1985.

      John K. Dema, Christiansted, St. Croix, V.I., for plaintiff.
    R. Eric Moore, Christiansted, St. Croix, V.I., for defendant.
   MEMORANDUM OPINION AND ORDER

DAVID V. O’BRIEN, District Judge.

A jury in this medical malpractice case returned a verdict of $150,000 in favor of the plaintiff. At issue is a post trial motion by the defendant seeking judgment notwithstanding the verdict, or a new trial. The heart of defendant’s motion is the assertion that the Court’s instruction to the jury which. applied a national standard of care as against a locality standard, was erroneous.

For the reasons stated herein, the motion will be denied and the verdict will be permitted to stand in its full amount.

I. FACTS

The defendant, Dr. Cora Christian, (“Dr. Christian”), is a well known physician with a practice on St. Croix. In addition, she carries administrative responsibilities as an assistant commissioner of health for the U.S. Virgin Islands, making her the highest governmental health officer resident on St. Croix. After her medical school training, Dr. Christian became a family practitioner. She availed herself of additional training in that respect, and passed the rigorous requirements to be certified by the national board as a specialist in family practice. This specialty is relatively new among medical board certifications.

Among the aspects of the requirements for certification in this specialty is the development of expertise in minor surgical and quasi-surgical routines approved for performance within the confines of the physician’s own office rather than in a hospital. This included training in a technique known as cryosurgery, whereby body tissue is frozen with a certain implement. This procedure is utilized in the treatment of internal hemorrhoids.

After having been certified for this family medicine specialty, which admittedly included expertise in the cryosurgical technique described above, Dr. Christian was visited by the plaintiff, Letitia Gittens, (“Gittens”). Ms. Gittens was suffering from what Dr. Christian diagnosed as internal hemorrhoids. She recommended the same cryosurgical technique she had been trained to perform as part of the qualification process for national certification as a family practice specialist. Gittens consented, and the procedure was undertaken in Dr. Christian’s office.

In this lawsuit, Gittens claims that Dr. Christian committed medical malpractice in the performance of the cryosurgery, and that she, Gittens, suffered damages. The trial was held and evidence was heard on the issues of liability and damages. As stated earlier, the jury returned a verdict of $150,000 in favor of Gittens.

The Court, during the trial, was faced with a primary decision. Should the jury be instructed on the so-called “locality standard” encompassed in the language of Restatement of Torts 2d 299A, or should the instruction follow the national standard for specialists described in comment d of Section 299A? The Court opted for the latter instruction. The instruction given was from Alexander's Jury Instructions on Medical Issues, No. 7-3, which states:

You are instructed that negligence in the practice of medicine or surgery is the doing of a thing which an ordinarily careful, prudent and skillful physician or surgeon, practicing in the same filed of medicine or surgery, and at or about the same time, would not have done under the same or similar circumstances, or the failure to do something which a physician or surgeon would have done under the same or similar circumstances. The locality of the practice may be considered by you as one of the circumstances.

Other proposed instructions from counsel were also given, but the nubb of Dr. Christian’s argument for a directed verdict or for a new trial is that the standard of care instruction was erroneous. She argues that she should have been judged by the standard applicable to “a family practitioner in the Virgin Islands or similar community.” Defendant’s Memorandum, page 2. Additionally, Dr. Christian asserts that Git-tens did not adduce expert testimony properly aimed at the appropriate standard, since the plaintiff’s expert was a proctologist/surgeon, not a family practitioner.

Dr. Christian also raises issues of sufficiency of the evidence of the size of the verdict.

II. DISCUSSION

A. The Applicable Standard of Care

This is the first occasion on which the Court is called to apply a standard to a physician who is board certified in family medicine. A general practitioner would ordinarily have an instruction fashioned along the lines of the black letter language of Restatement 2d of Torts 299A, which reads:

Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.

But Dr. Christian would be the first to tell you that she is more than a general practitioner. She is rightly proud to hold herself out to be a specialist, with all the additional expertise the term connotes, in a certain type of medical practice. Accordingly, comment d to Section 299A notes forcefully that such a specialist “is required to have the skill and knowledge common to other specialists.” Her skill, then, is measured against that of her contemporaries who have climbed the same difficult mountain to board certification as a family medicine specialist. This certification, difficult to obtain, can only be retained by periodic certification and a demonstration that the skills which originally led to recertification have not fled or faltered. Indeed, Dr. Christian was recertified in her speciality at about the time of the incident with Gittens.

Having taken the time and trouble to advance herself professionally into the ranks of specialists, the Court is required to alert the jury in her case “to the fact that a defendant who is a specialist should be held to a higher degree of care than a general practitioner.” McPhee v. Reichel, 461 F.2d 947, 951 (3d Cir.1972).

The instruction given at trial and previously cited herein is particularly applicable to Dr. Christian, since the certification as a specialist in family medicine, by her own testimony, qualified her not only as a physician, but as a surgeon for minor procedures, such as cryosurgery. Accordingly, we are comfortable with the instruction which was given, which minimized the geographic or locality rule in favor of a standard which measured Dr. Christian’s actions against her compatriots in the specialty of family medicine.

Since we reject the argument of Dr. Christian as to the standard applicable to her, we need not reach the question raised in certain quarters as to whether the entire locality rule has become an anachronism. The commentary following Alexander’s Jury Instructions on Medical Issues, No. 7-3 (1966), suggests that even at that time there was a trend away from the locality standard in medical malpractice cases. This view is reinforced by an excellent discussion of the issue in Robbins v. Footer, 553 F.2d 123, 127 (D.C.Cir.1977). Is not the training of the physicians and medical specialists in the Virgin Islands, stateside in origin, on a par with their colleagues across the breadth of the United States? And if so, should not the locality standard be abandoned, especially since medical facilities in the territory have reached stateside standards? If the answer to these two questions is affirmative, it may well be that in the future those persons who are general practitioners in the Virgin Islands will be held to the same standard of care as their stateside counterparts. That decision however, is for another day.

B. The Plaintiffs Medical Expert

Our discussion of the applicable standard of care, however, is not ended. At the trial, Gittens called a qualified proctologist/surgeon to testify that Dr. Christian’s performance of cryosurgery was negligent, and fell below the nationwide standard. His testimony of negligence fell within his comparison of Dr. Christian’s performance of a recognized technique with that to be expected of others performing the same procedure. He had no specific knowledge concerning the Virgin Islands and did not testify according to the locality standard.

Dr. Christian, argues that because plaintiff’s medical expert was not a specialist in family medicine, he was not qualified to testify as to her performance within the range of her specialty. In addition, Dr. Christian points out that Dr. Biehl, plaintiff’s expert, did not even agree that family medicine specialists should perform cryosurgery, and he further suggested that other methods of approach to internal hemorrhoids could have been utilized before resort to cryosurgery. He did not, however, discount cryosurgery as an outmoded or unwarranted procedure, conceding that he has performed hundreds of the same procedures in his own office setting.

This is the crux of the point. While Dr. Biehl may have been a proctologist/surgeon with his own board certification, the manner and method of performing cryosurgery did not differ between his specialty and that of Dr. Christian. His testimony faulted Dr. Christian not for performing the procedure in the first place, but for what he considered her negligent implementation of a standard procedure common to their respective specialties.

Thus, he was well placed to state his opinion of her performance. As a cautionary measure, the Court gave a further instruction on “differing schools of thought”. We find no error in the totality of the instructions in regard to the standard of care.

C. Sufficiency of the Evidence

Once Dr. Biehl’s testimony is found appropriate, there is little question of the sufficiency of the evidence. As trial judge, we review the evidence in this jury case by the light most favorable to the party against whom the motion is made. Every fair and reasonable inference must be given to the non-moving party. Fireman’s Fund Ins. Co. v. Videfreeze Corp., 68 F.R.D. 484, 491 (D.V.I.1975) aff'd in part, rev’d 540 F.2d 1171, 1178 (3d Cir. 1976), cert. den. 426 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977). By that standard of review, the evidence clearly supported the verdict as to liability.

D. Size of the Verdict

Dr. Christian's final argument is that the verdict of $150,000 for a case in which there was no permanent damage and very little evidence of the other aspects of damage, was far in excess of what it should have been. Though perhaps higher than the Court as a fact finder would have awarded, the verdict does not shock our conscience, as it must to require remittitur. Gittens testified at length concerning her pain, suffering, embarrassment, humiliation and the necessity for further medical treatment as a result of what she contended was Dr. Christian’s negligence. We will not disturb the size of the verdict.

III. CONCLUSION

For all the reasons cited herein, the motion for a directed verdict or a new trial will be denied.


author: HENRY WOODS, District Judge.

text:
    John H. BELLAMY, Jr. and Grace Bellamy, Plaintiffs, v. Elgin W. JONES; Kelsey Hayes Company; Coachman Industries, Inc.; Coachman Home Corporation; and Transit Homes, Inc., Defendants.
    No. H-C-84-141.
    United States District Court, E.D. Arkansas, E.D.
    Jan. 2, 1985.

      Robert J. Donovan, Daggett, Van Dover, Donovan & Cahoon, Marianna, Ark., for plaintiff, John H. Bellamy, Jr.
    Kent J. Rubens, West Memphis, Ark., Rubens & Rubens, for plaintiff Grace Bellamy.
    Donald H. Bacon, Friday, Eldredge & Clark, Little Rock, Ark., for Kelsey-Hayes Co.
    Alvin Laser, Laser, Sharp & Mayes, Little Rock, Ark., for Coachman Industries, Inc. and Coachman Homes Corp.
    Elton A. Rieves, III, Rieves & Mayton, West Memphis, Ark., for Transit Homes, Inc. and Elgin W. Jones.
   ORDER

HENRY WOODS, District Judge.

This case comes before the Court on motion to stay proceedings pursuant to Fed.R.Civ.P. 41(d) filed by defendants Jones and Transit Homes, Inc. The operative facts for purposes of this motion are as follows: plaintiffs sued and recovered judgment on their cause of action in December, 1982, in the Circuit Court of Lee County, Arkansas. That judgment was appealed and reversed, with costs to the defendants. Upon remand to the Circuit Court of Lee County, and change of venue to the Circuit Court of St. Francis County, Arkansas, the parties were actively preparing this case for a second trial to be held in January, 1985.

On September 18, 1984, plaintiffs filed suit on the same cause of action in this court. On October 5, 1984, plaintiffs non-suited the state court action. Apparently between September 18 and October 5 no mention of the intention to nonsuit was made to defense counsel, who were proceeding with their preparations for trial in state court. The motion to stay proceedings in the federal forum ensued. Defendants allege that plaintiffs dismissed their state court action and refiled in federal court to seek a more favorable forum, and further allege that plaintiffs have failed to pay some $7,938.00 assessed against them as the costs of appeal from the earlier state court adjudication of their claim.

Each party raises multiple issues questioning the motives of the other in this matter, but the issues which must actually be resolved are quite simple. They are two in number: 1) did the plaintiffs have the right to nonsuit their state action and refile in federal court; and 2) should the plaintiffs be required to pay the defendants their appeal costs prior to actively pursuing their federal action?

It is clear that under Arkansas law plaintiffs had the absolute right to take a nonsuit at any time prior to submission of their case to the trier of fact. Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962). Regarding the federal action, it is equally clear that if sufficient grounds for federal jurisdiction exist, and the grounds for abstention set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) do not apply, then the federal court should retain jurisdiction. Gentron Corp. v. H.C. Johnson Agencies, Inc., 79 F.R.D. 415 (1978). The defendants do not argue that there is an insufficient basis for federal jurisdiction, and a review of the complaint shows that the requirements of 28 U.S.C. § 1332 have been satisfied. None of the Colorado River grounds for abstention have been advanced, and none are discerned by the Court in its review of the file.

Defendants argue that the case should be dismissed because plaintiffs have shopped for a favorable forum, and because the filing of a suit in federal court while a similar suit is pending in state court constitutes vexatious litigation. Neither of these arguments is persuasive. Defendants’ claim that the filing in federal court amounts to forum-shopping is not substantiated. A cardinal principle of diversity jurisdiction is that plaintiffs who seek to assert a state-created right in a federal district court where jurisdiction is founded upon diversity of citizenship can be placed in no better position than they would have enjoyed in state courts. Angel v. Bullington, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832 (1946). Defendants have not suggested any way in which plaintiffs will be better off in federal court than in state court, and none is perceived by this Court. The law of Arkansas will apply to plaintiffs’ claim, regardless of the forum where it is prosecuted.

As for the argument that the federal filing amounts to vexatious litigation by reason of multiplicity of lawsuits, that argument is blunted by the fact that plaintiffs took a nonsuit of their state court action after filing the federal action. Defendants are still only being required to defend one lawsuit, in spite of the fact that the action could be proceeding in both state and federal fora at the same time. The plaintiffs decided to proceed in the federal forum, and have released the defendants from the obligation to defend in state court. This Court does not find any vexation in such a procedure.

As the second prong of their Rule 41(d) motion, defendants contend that the federal proceedings should be stayed pending payment by plaintiffs of costs assessed against them on appeal in state court. It is not denied that plaintiffs have not paid those costs to defendants. Plaintiffs allege that they are financially unable to pay these costs; defendants argue that plaintiffs can liquidate certain enumerated assets to pay them. The Court notes that the costs of the appeal were reduced to a judgment against the plaintiffs, and that the Circuit Court of Lee County entered an Order and Judgment stating “that Defendants should be given the right to enforce the payment of said judgment by causing a levy of execution or garnishment on said Plaintiffs’ property without the necessity of waiting the statutory time of ten days ____” Defendants may thus execute on plaintiffs’ assets to collect this judgment. Defendants suggest that it would be more appropriate to refuse to allow plaintiffs to proceed with their action in federal court until they have paid the costs assessed against them. This Court does not find that such a position is either justified or required by the rules of civil procedure. The decision to stay a proceeding pending payment of costs of a previously dismissed action is a matter for the discretion of the courts. Fed.R.Civ.P. 41(d). This Court refuses to exercise its discretion in a manner calculated to penalize plaintiffs and deny them their day in court. The motion to stay proceedings is denied.

Defendants further seek to recover the costs of a motion for change of venue in the state court proceeding, a state pre-trial hearing, a written exchange of witnesses, and a motion for bifurcation of trial. While it may be reasonable to request payment for the motion for change of venue, no costs for such motion are itemized anywhere in the voluminous paperwork submitted on the present motion. Therefore, no action can be taken on that portion of the request. As for exchange of witnesses, pretrial, and motion for bifurcation, these items should inure to the benefit of the parties in preparing for trial in the federal forum as well as in a state forum, and costs for them are not properly compensable under Fed.R.Civ.P. 41(d).


author: WARREN, District Judge.

text:
    Marguerite DONAHUE, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84-C-0497.
    United States District Court, E.D. Wisconsin.
    Jan. 3, 1985.

      Shirin Cabraal, Legal Action of Wis., Inc., Milwaukee, Wis., for plaintiff.
    Melvin K. Washington, Asst. U.S. Atty., Milwaukee, Wis., for defendant.
   DECISION AND ORDER

WARREN, District Judge.

Presently before the Court in this matter is the plaintiff's motion for an award of attorneys’ fees, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). For the reasons stated below, the Court concludes that the motion shall be granted.

BACKGROUND

This action was initiated on April 13, 1984, when the plaintiff filed her complaint, seeking judicial review of the denial by the Secretary of Health and Human Services (the “Secretary”) of her request for waiver of certain overpayments in Supplemental Security Income benefits. Although payments to the plaintiff were terminated effective September 30, 1981, based upon a finding that her disability had ended effective July 1981, the plaintiff had opted to have her benefits continued. through the administrative appeal process. When the Administrative Law Judge upheld the disability termination, the plaintiff was notified that she had been overpaid in the amount of $2,997.40.

The plaintiff’s subsequent request for a waiver of the overpayment was denied by the Administrative Law Judge on September 26, 1983, and her request for review of that decision was denied by the Appeals Council on February 9, 1984. As indicated above, the present action, challenging the Secretary’s finding that the plaintiff “was at fault in causing the overpayment [as] not supported by substantial evidence in the record which shows that plaintiff had a firm belief that she was in fact disabled and destitute and therefore entitled to the benefit checks,” Plaintiffs Complaint at 2-3 (April 13, 1984), was filed some eight weeks later.

This Court granted the plaintiff leave to prosecute her claims in forma pauperis, pursuant to 28 U.S.C. § 1915(a), by its Order of April 17, 1984. Eight weeks after that, on June 15, 1984, the Secretary interposed her answer, denying all substantive allegations in the complaint and averring that her “findings of fact with respect to plaintiffs Title XVI claim for supplemental security income benefits are supported by substantial evidence and are conclusive.” Defendant’s Answer at 2 (June 15, 1984). Accompanying the Secretary’s answer was a certified copy of the transcript of the record upon which the challenged administrative findings and decisions had been based.

Pursuant to the Clerk of Court’s scheduling letter of June 29, 1984, the parties were ordered to file their cross-motions for summary judgment by September 12, 1984. Although the plaintiff filed such a petition, seeking summary reversal of the Secretary’s decision, the Secretary herself chose, instead, to interpose a motion for the entry of a dispositive order, pursuant to 42 U.S.C. § 405(g), based on her inability to locate and incorporate into the administrative record certain notices purportedly sent to the plaintiff, advising her that continued receipt of benefits could result in an overpayment potentially recoverable by the Government at a future time.

As counsel for the Government described his client’s position, the central issue of whether the Secretary should have waived the right to seek recoupment turned principally on the propriety of the administrative finding that the plaintiff was, in fact, notified of the recoupment option. However, the record filed with the Court

... does not contain those written notices to plaintiff listed on pages 71-72 of the record.
Due to the absence of records described, counsel for the Secretary are unable to prove to the Court that such notices were sent to and received by plaintiff, or at what times____
Counsel for the agency has also informed the [United States Attorney] that based upon discussions as recent as September 11, 1984, the client agency remains unwilling to voluntarily waive the right of potential recovery.
Counsel for the agency and the [United States Attorney] agree that, without the requisite documents in the record before the Court, they cannot in good faith argue to the Court that plaintiff had received the notice noted by the Administrative Law Judge.

Defendant’s Motion For Entry of Dispositive Order at 1-2 (September 12, 1984).

Based on this statement of position, the Court, on October 11, 1984, entered an order reversing the Secretary’s decision that the plaintiff was at fault in causing the overpayment and approving the plaintiff’s request for waiver of recovery by the Secretary. In that order, the Court also granted the plaintiff’s attorney leave to seek attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) — a request embodied in counsel’s present motion, filed on November 14, 1984. To date, the Secretary has filed no brief in opposition to that motion.

THE EQUAL ACCESS TO JUSTICE ACT AND THE PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES

The Equal Access to Justice Act provides, in pertinent part, as follows:

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.

28 U.S.C. § 2412(d)(1)(A). At the time the statute was enacted, it was clearly experimental in nature — an attempt to extend application of existing common law and statutory exceptions to the American Rule on attorneys’ fees to the Government and, in addition, to require the award of fees in those circumstances described in § 2412(d)(1)(A). Alspach v. District Director of Internal Revenue, 527 F.Supp. 225, 227 (D.Md.1981). The Court of Appeals for the Seventh Circuit has described the several purposes of the Act this way:

The EAJA was enacted largely to encourage individuals and small businesses to litigate against the government adverse determinations in administrative proceedings and civil actions, regardless of the cost of such litigation. In view of the traditional American rule regarding attorneys’ fees, however, Congress concluded that, if it were to facilitate a prevailing private party’s obtaining reimbursement for his or her legal expenses, then individuals and small businesses would be less likely to be deterred from challenging government action due to the high cost of civil litigation____
The EAJA also has a parallel objective of deterring the government from pursuing litigation — either in initiating it or defending against it — when the government’s position is not substantially justified. According to House Report 1418, the prevailing bill — S. 265 — “rests on the premise that a party who chooses to litigate an issue against the Government is not only representing his or her own vested interest but is also refining and formulating public policy.” H.R.Rep. No. 1418, 96th Cong., 2nd Sess. 9, 10, reprinted in 1980 U.S.Code Cong. & Admin.News 4984. Litigation against the government, for example, can correct an erroneous agency rule of “provide a vehicle for developing or announcing more precise rules.” H.R.Rep. No. 1418, supra, at 10.
House Report 1418 also indicates that Congress intended the EAJA to apply to appeals to the federal courts under the Social Security Act, although attorneys’ fees are not available in administrative proceedings under that Act. H.R.Rep. No. 1418, supra, at 12 [additional citations omitted]____
The EAJA accordingly was enacted to establish a general statutory exception for awarding attorneys’ fees to parties who prevail against the government. This was intended to be accomplished by “permit[ting] a court in its discretion to award attorneys’ fees and other expenses to prevailing parties in civil litigation involving the United States to the same extent it may award fees in cases involving other parties.” H.R.Rep. No. 1418 supra, at 9.

Berman v. Schweiker, 713 F.2d 1290, 1295-1296 (7th Cir.1983).

Because the statute thus represents a limited waiver of sovereign immunity, its several limitations and conditions must be strictly observed and exceptions are not to be implied. Rhode Island Committee on Energy v. General Services Administration, 561 F.2d 397, 405 (1st Cir. 1977) (quoting Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957)). Accordingly, despite the Government’s silence in the wake of the plaintiff’s present request, the Court is obliged to determine whether the movant qualifies for an award of attorneys’ fees under the Equal Access to Justice Act.

As a threshold matter, the Court must find that the movant is “a prevailing party” — a phrase broadly construed and not limited to a victor only after the entry of final judgment following a full trial on the merits. United States for Heydt v. Citizens State Bank, 668 F.2d 444, 447 (8th Cir.1982). In the wake of the Secretary's motion of September 12, 1984, and this Court’s subsequent Order of October 11, 1984, reversing the administrative decision and allowing the request for waiver of recovery of overpayments, it is clear the plaintiff in this action is the “prevailing party.”

As an additional threshold requirement, the Court must find that the movant is “an individual whose net worth did not exceed $1,000,000 at the time the civil action was filed” — a prerequisite to recovery embodied in subsection (d)(1)(B) & (2)(B) of the statute. The Court has already recognized the plaintiff’s indigent status by its Order of April 17, 1984, granting her leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). See also Plaintiff’s Affidavit In Support Of Motion For Leave To Proceed In Forma Pauperis at 2 (April 13, 1984). In addition, the plaintiff has now provided the Court with an affidavit, pursuant to the filing requirements of subsection (d)(1)(B), establishing her net worth of less than $1,000,000 at the time she commenced this action.

The critical issue to be considered by the Court is, as the plaintiff recognizes in her motion papers, whether “the position of the United States was substantially justified or ... special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The test for determining substantial justification is essentially one of reasonableness; if the Government can demonstrate a reasonable basis for litigating the dispute, both in law and in fact, no award of attorneys’ fees can be made. Ellis v. United States, 711 F.2d 1571, 1575-1576 (Fed.Cir. 1983).

In the application of this test, the Government bears the burden of proving substantial justification for its position. Dougherty v. Lehman, 711 F.2d 555, 561 (3rd Cir.1983). While there is no presumption that the Government’s position is not substantially justified simply because it lost the case, it must nonetheless make a “strong showing” regarding the viability of its position if it is to overcome a motion for an award of fees. Watkins v. Harris, 566 F.Supp. 493, 498 (E.D.Pa.1983).

Under the circumstances of the present case — and absent any showing at all regarding the viability of the Government’s position — the Court must conclude that there was no substantial justification for the challenged action. As stated above, the linchpin of the Government’s case was apparently that the plaintiff was at fault in causing the benefit overpayments because she had, in fact, been notified of the Secretary’s right to seek recoupment if the appeal proved unsuccessful.

Although the existence of such notice was plainly assumed by both the Administrative Law Judge and the Appeals Council in the context of their adverse decisions below, see Transcript of Administrative Record at 2 & 29 (June 15, 1984), the Secretary acknowledged on appeal to this Court that she would be unable “to prove ... that ... notices were sent to and received by plaintiff, or at what times.” Defendant’s Motion For Entry of Dispositive Order at 2 (September 12,1984). It was on the basis of this specific statement of position that the Court issued its Order of October 11, 1984, and directed the Clerk of Court to enter judgment in the plaintiffs favor.

Because the Court views as substantially unjustified the Government’s decision to defend this matter when it could not establish the very existence of the notice upon which its case depended, it concludes that the plaintiff’s present motion must be granted. As a peripheral matter and for the same reasons articulated above, the Court finds no special circumstances that would make an award of attorneys’ fees unjust.

Having thus concluded that an award of attorneys’ fees is appropriate under the present circumstances, the Court need only determine the precise amount of that award. In support of her request for a total of $2775.00, plaintiff’s counsel has provided the Court with an affidavit, establishing convincingly her considerable experience and expertise with cases such as this and describing the function and administrative needs of the legal services agency for which she works. Counsel has appended to her affidavit a detailed accounting of the 37 hours she spent in the prosecution of this action in the judicial forum.

The Court has carefully reviewed counsel’s affidavit and her attached accounting and concludes that both her professional credentials and the particular services she rendered in this case justify compensation at the requested level of $75 per hour, the maximum generally allowed under the statute. See 28 U.S.C. § 2412(d)(2)(A)(ii) (“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 involved, justifies a higher fee”). It identifies no basis upon which the requested award might reasonably be reduced.

CONCLUSION

For the reasons stated herein, the Court hereby GRANTS the plaintiff’s motion for an award of attorneys’ fees, pursuant to 28 U.S.C. § 2412(d), and hereby DIRECTS the Clerk of Court to enter a supplemental judgment in the amount of $2775.00, as attorneys’ fees to be assessed against the defendant Secretary.

      . Incorporated in the extensive 1980 amendments to the Equal Access to Justice Act was a so-called "sunset" provision, repealing subsection (d) of the statute effective October 1, 1984, “except that the provisions of that subsection shall continue to apply through final disposition of any action commenced before the date of repeal.” On October 11, 1984, the Congress attempted to rescue the Equal Access to Justice Act from oblivion in a form which would have substantially broadened the scope of the Government’s potential liability. Among other things, H.R. 5479, in the version with which the Senate finally concurred, would have established clearly the standard for determining whether the Government’s position is "substantially justified”: the "position” to be considered would include the prior administrative action that led to the adversary adjudication — not merely the Government’s litigation posture.
      On November 8, 1984, however, the President effected a pocket veto of the legislation by issuing a memorandum of disapproval of certain statutory changes incorporated in H.R. 5479. At the same time, the President expressed his commitment to the policies underlying the Equal Access to Justice Act and announced that he would support its prompt reauthorization by the new Congress, retroactively effective to October 1, 1984.
      While 28 U.S.C. § 2412(d) is thus presently unavailable as to actions initiated on or after October 1, 1984, it is clear that the “sunset” provision does not preclude an award of attorneys' fees in this case, commenced on April 13, 1984.

      . Parenthetically, the Court notes that the plaintiff in this case has been represented by an attorney for Legal Action of Wisconsin, Inc., an organization funded to provide legal services to low income persons. The mere fact that the plaintiff herself has thus not "incurred” attorneys’ fees in the prosecution of her claims does, however, not preclude an award under the Equal Access to Justice Act. Indeed, it has been held that claimants represented by a legal services organization qualify as otherwise entitled "prevailing parties” under the statute. See Ceglia v. Schweiker, 566 F.Supp. 118, 122-123 (E.D.N.Y.1983); Hornal v. Schweiker, 551 F.Supp. 612, 615-617 (M.D.Tenn.1982).


author: SPELLMAN, District Judge.

text:
    Jerrell QUATTLEBAUM and Sharon Quattlebaum, his wife, Plaintiffs, v. FOSTER MARINE CONTRACTORS, INC., a Florida corporation; Intercounty Construction Corporation of Florida, a Florida corporation; and William Rebozo, Fid Company, Inc., and Mulben Realty Company as General Partners d/b/a Island Developers, Ltd., a Florida Limited Partnership, Defendants.
    No. 83-2517-CIV-EPS.
    United States District Court, S.D. Florida, Miami Division.
    Jan. 4, 1985.

      John F. Romano, West Palm Beach, Fla., for plaintiffs.
    J. Frank Bradley, Malcolm W. Weldon, Robert K. Burlington, Steven P. Befera, Miami, Fla., for defendants.
   MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS

SPELLMAN, District Judge.

Plaintiffs filed their original complaint on October 5, 1983. On February 23, 1984, Plaintiffs certified service of an Amended Complaint, which was not filed until May 21, 1984. Although the Amended Complaint attempted to clarify the basis for federal jurisdiction in response to Defendants, William Rebozo, Fid Company, Inc., and Mulben Realty Company as General Partners d/b/a Island Developers, Ltd. (hereinafter referred to as IDL)’s Motion to Dismiss, filed on January 30, 1984, IDL renewed its Motion to Dismiss and Supporting Memorandum of Law on March 5, 1984.

Plaintiffs’ Amended Complaint contains: General Allegations; Count I — Principal Claim — (Jones Act Negligence of Defendant, Foster Marine Contractors, Inc.); Count II (Maritime and/or State Law Negligence of Defendant, Intercounty Construction); Count III (Maritime and/or State Law Negligence of Defendant, IDL); Count IV (Maintenance and Cure and Unearned Wages); and Count V (Consortium). It seems that Foster Marine was subcontracted by Intercounty Construction to build a subaqueous water main for IDL from Virginia Key to Fisher Island, a small island that IDL was developing. It is alleged that Plaintiff, Jerrell Quattlebaum, a diver employed on the Foster Marine barge, was seriously injured while excavating a trench on the south side of Fisher Island. Quattlebaum was allegedly “struck down by a cave-in from the sides of the trench.”

Because both Plaintiffs and all Defendants are residents of Florida, IDL claims that this Court is without jurisdiction, arguing “that neither the Jones Act nor general maritime tort law as alleged in the Amended Complaint apply (sic).” Plaintiffs contend that this Court has jurisdiction over IDL because 1) the allegations in the amended complaint state a general maritime tort cause of action, and 2) even if there is no maritime jurisdiction, pendent jurisdiction covers the state law negligence claims. Because this Court is of the opinion that the allegations in the amended complaint are sufficient to conclude that there is admiralty tort jurisdiction, there is no need to decide whether the doctrine of pendent jurisdiction should here be stretched to cover two non-diverse parties.

Historically the standard for determination of maritime tort jurisdiction was viewed as a question of the locality of the tort. Maritime law governed only those actions where the “substance and the consummation of the injury” took place on navigable waters. The Plymouth, 70 U.S. (3 Wall.) 20, 33, 18 L.Ed. 125 (1886). This strict locality test was perfunctorily repeated with great frequency, see Victory Carriers v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1970) (Footnote 2 lists an exhaustive line of cases), until the Supreme Court in Executive Jet Aviation v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454, declared that “the mere fact that the alleged wrong ‘occurs’ or ‘is located’ on or over navigable waters ... is not of itself sufficient .... It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity.” See also Kelly v. Smith, 485 F.2d 520 (5th Cir.1973). Thus, the analysis and thrust of Executive Jet, coupled with the fifth circuit’s decision in Kelly, dictate the conclusions that maritime locality alone is no longer sufficient to sustain maritime jurisdiction, and that the wrong must bear a significant relationship to maritime activity. This is known as the “locality plus” test.

In this case, IDL contracted with Intercounty Construction, for the construction of a subaqueous water main from Virginia Key to Fisher Island. At the time Jerrell Quattlebaum was allegedly “struck down” by the cave-in, he was employed as a diver and deck hand by the subcontractor Foster Marine. Quattlebaum was working from the Foster Marine barge allegedly located in navigable waters and was contributing to its mission of constructing the water main. The duty of care and negligence of IDL allegedly arose from IDL’s relationship to the marine activity of connecting two islands with a subaqueous water main. The facts and allegations contained in Plaintiffs’ Amended Complaint demonstrate that IDL has a sufficient connection with the maritime activity in this case to satisfy the “plus” portion of the “locality plus” test.

Additionally, while the cave-in occurred just inside the seawall on Fisher Island, Plaintiffs have alleged a sufficient connection to the navigable waters on the other side of the seawall to fulfill the “locality” requirement of maritime jurisdiction. When the cave-in occurred, Quattlebaum was working from the Foster Marine barge which was allegedly located in navigable waters. Plaintiffs argue that Quattlebaum would be considered a seaman under the Jones Act, see Taylor v. Packer Diving & Salvage Corp., 342 F.Supp. 365 (E.D.La.1971), and was contributing to Foster Marine’s mission of constructing the subaqueous water main from Virginia Key to Fisher Island. Quattlebaum was physically tied to the Foster Marine barge by a life and air line. And he was working as a part of a team with other members on the barge and was in continuous communication with them. Because these factual allegations must be accepted as true for purposes of the motion to dismiss, this Court must now conclude that there is general maritime jurisdiction over IDL. Defendants’ Motion to Dismiss is therefore denied.

In that one of the pivotal issues regarding the jurisdiction of this Court is whether or not Plaintiff Jerrell Quattlebaum is a seaman under the Jones Act, this Court, simultaneously with the entry of this Order has issued an Order Setting Status Conference directed solely and only to framing a discovery schedule and narrowing the issues for determination of whether Quattlebaum was in fact a seaman at the time of the accident in question and whether or not this Court has maritime jurisdiction over some or all of the Defendants not alleged to be employers.

      . Those cases which have demanded some maritime connection, see Watz v. Zapata Off-Shore Co., 431 F.2d 100, 110 n. 12 (5th Cir.1970) (listing cases), have demanded only a minimum. They have refused to assume admiralty jurisdiction in cases involving swimmers, a person falling off a dock, a crane breaking and dropping a lift-truck into the water.


author: KANE, District Judge.

text:
    CARL HIZEL & SONS, INC.; Black Diamond Land & Cattle Co., d/b/a Gerlach Roll-Off Services, Inc.; Gerlach Rubbish Removal; Trash Unlimited; Supreme Disposal Service, Inc.; B and H Sanitation Service; Ginther Rubbish Removal; Northwest Disposal Co.; Disposal, Inc.; and Blue Barrel Disposal, Inc., Plaintiffs, v. BROWNING-FERRIS INDUSTRIES, INC.; Browning-Ferris Industries of Colorado, Inc., d/b/a BFI Waste Systems, and Landfill, Inc., Defendants.
    No. 83-K-1743.
    United States District Court, D. Colorado.
    Jan. 4, 1985.
    Robert F. Hanley, Janet C. Perriman, Alan K. Palmer, Philip D. Bartz, Morrison & Foerster, Denver, Colo., for plaintiffs.
    John B. Moorhead, Baker & Hostetler, Denver, Colo., for defendants.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

Plaintiffs are eleven independently owned companies in the business of picking up and hauling away trash. Defendants, a Delaware corporation and two of its wholly owned subsidiaries are in the same business, and are alleged to own and operate four of the seven landfill dumping sites in the Denver, Colorado metropolitan area. These sites include the two most conveniently located and commercially useful landfill dump sites in the subject area. The essence of plaintiffs’ allegations is that defendants, by virtue of holding licenses to operate the above mentioned landfill dump sites, have subjected plaintiffs to a classic “price-squeeze” — simultaneously charging lower prices in the “retail” trash hauling markets adjacent to defendants’ dump sites and charging plaintiffs higher prices to use defendants’ dump sites. Plaintiffs reason that the price squeeze substantially raises the costs and lowers the revenues of BFI’s competitors in the trash hauling market and that BFI avoids the higher costs because it is in effect charging itself to use its own landfills whenever BFI trucks pay to dump at BFI landfills — an allegedly increasingly frequent occurrence done with the specific intent to monopolize the trash hauling market, 40 percent of which BFI is alleged to hold already. Jurisdiction lies in this court pursuant to 15 U.S.C. §§§ 4, 15 and 26 and pursuant to 28 U.S.C. § 1387.

Before me are 1) defendants’ motion for summary judgment; 2) plaintiffs’ motion for partial summary judgment on the issue of the Parker state action exemption; and 3) plaintiffs’ motion pursuant to Rule 11 of the Rules of Civil Procedure for expenses and attorneys’ fees incurred in rebutting an allegedly frivolous and groundless defense.

The first two motions hinge upon the same issue — whether BFI’s activities in the Denver metropolitan area were regulated by the State of Colorado, acting through Adams, Jefferson and Boulder Counties, in such a way as to qualify the defendants for the state action exemption from federal antitrust laws enunciated in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943).

The Parker decision rested on basic principles of federalism. The Parker court determined that neither the express language nor the legislative history of the Sherman Act evidenced an intention on the part of Congress to restrain state action. Id. at 350, 63 S.Ct. at 313. In Community Communications v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982), the City of Boulder was denied a state action exemption in the absence of a clearly articulated and affirmative expression of the State of Colorado’s intention to sanction anti-competitive effects in the cable television industry.

In the trash hauling and dumping industry, Colorado regulates the dumping industry under the Solid Waste Disposal Sites and Facilities Act, C.R.S. 30-20-101 et seq. Although formerly state regulated, the waste hauling industry was deregulated by the Colorado legislature in 1980. See C.R.S. 40-1-102(3), which removed trash haulers from P.U.C. jurisdiction, giving the counties authority, per C.R.S. 30-15-401, to regulate health and safety aspects of the trash hauling industry. The counties’ only authority, qua economics of trash hauling, is to assess a licensing fee with which to offset regulatory and enforcement costs, and even then only within the unincorporated areas. C.R.S. §§ 30-15-401(1)(a)(IY) and (a)(VI). Finally, trash hauling is expressly a matter of purely local concern, § 401(1), and therefore wholly outside the state’s jurisdiction to regulate. Thus, even though the state can act through the counties, see for example Colorado Investment and Realty Company v. Riverview Drainage District, 83 Colo. 468, 266 P. 501, 502 (1928), the actions of the county are not the state’s acts, nor can they be so construed, when the state declares the matter to be of local concern. It is this lack of a basis for defendants’ claim to a Parker exemption that underlies plaintiffs’ Rule 11 motion.

The applicability of the Parker doctrine to the defendants’ operation of landfill dump sites is not so easily determined. Under Colorado’s Solid Waste Disposal Sites and Facilities Act, supra, considerable attention is given to the health and safety considerations of landfill operations, yet the only purely economic utterance, C.R.S. § 30-20-115, is that “... Any county is also authorized, after a public hearing, to fix, modify, and collect service charges from users of solid waste disposal sites and facilities for the purpose of financing solid waste management in that county.” This provision of section 115 has been interpreted by the counties to mean that a county has authority to set the fees and approve rate hikes charged to the users of the landfills licensed by the county.

The depositions on file in this case, of county officials who report to the various county commissioners responsible for the ultimate decisions on the rate hikes, reveal that the several counties interpret the mandate quite differently. Boulder County, for example, goes the full nine yards, so to speak, —requiring audited financials and holding a firm line on any increases until all accounting ambiguities are clarified to the county’s satisfaction. While Boulder County takes on the responsibility of regulating the rates charged at the landfills with a thoroughness reminiscent of the P.U.C. gamut formerly required of applicants for such rate hikes, the other two counties follow a more casual procedure. For example, in Adams County, a rate hike requested on October 19, 1982 was granted October 20, 1982 without either a public hearing or the formal approval of the Board of County Commissioners.

It is against the background of these facts that the state exemption claim must be examined. Defendants’ rely most heavily on two cases — Town of Hallie v. City of Eau Claire, 700 F.2d 376 (7th Cir.1983), cert. granted, — U.S. -, 104 S.Ct. 3508, 82 L.Ed.2d 818 (1984), (holding that legislative intent to consider anticompetitive effects of municipal or state regulation as reasonable or foreseeable consequences of regulation can be inferred in the absence of its expression); and Pueblo Aircraft Service Inc. v. City of Pueblo, 679 F.2d 805 (10th Cir.1982) (holding the City of Pueblo exempt for its monopoly operation of a municipal airport).

There are some parallels between government involvement and interest in the functions of an airport and a landfill dump. The Pueblo Aircraft Service case, however, is readily distinguishable on its facts. The airlines and associated service industries, which make their living servicing the flying public, did not have an ownership interest in the airport itself. They utilized the airport to the degree that they were contractually and constitutionally permitted. The landfill dumps in this case, on which the plaintiffs’ trash hauling businesses depend in part, are not owned by the counties, but are instead regulated under the county’s police powers. The Pueblo Aircraft Service case would be apposite if the Tenth Circuit had handed down the same ruling, under hypothetical facts analogous to the facts of this case, in which one airline owned the airport and was authorized to collect gate fees from other airlines competing for the same passengers. In a suit alleging that an illegal price squeeze had been perpetrated by the airline owning the airport, it is implausible that the owning airline would be granted immunity from the antitrust laws. So to hold would, in effect, authorize an entity to exercise privileges with striking similarities to those of the classic 19th century trusts which inspired the Sherman Act. Of course, my comment on the result in the hypothetical case is not a comment on the merits of this case, the facts of which are in the earliest stages of discovery.

The Town of Hattie case, the second arrow in defendants’ quiver, is simply inapposite. In that case, several surrounding towns were refused access to the city’s sewage treatment and transportation facilities unless they agreed to annexation to the city. Furthermore, the city had a monopoly in the relevant market. The sewage treatment facilities in Town of Hattie were not operated at a profit by one company in competition with other sewage treatment “retailers” forced to use the treatment plant. Although the municipal corporations in Town of Hattie appear to have acted with all the fervor for property acquisition of a profit making business, the considerable responsibilities of government taken on by the annexing city were considered to be a reasonable consideration for the attainment of monopoly power over the sewage treatment market.

For the aforementioned reasons, I conclude that defendants’ claim to a Parker exemption cannot be sustained. Despite the thorough and conscientious attention given by the County of Boulder to its licensing responsibilities, defendants’ enthusiasm for a Parker exemption is misplaced. I am reluctant to impose a sanction for defendants’ enthusiasm demonstrated at this early stage of the proceeding. The extent of Boulder’s regulation of BFI’s licensed landfill may well be a factor in the determination of the relevant markers) in this case. The same can be said for the apparent lassitude of Adams County and Jefferson County. For a thorough discussion of relevant markets in the trash hauling industry, see United States v. Waste Management Inc., et al, 743 F.2d 976 (2d Cir.1984), reversing 588 F.Supp. 498 (S.D.N.Y.1983).

IT IS ORDERED that the defendants’ motion for summary judgment is denied, and that the plaintiffs’ motion for partial summary judgment on the issue of a state action exemption is granted.

IT IS FURTHER ORDERED that plaintiffs’ motion under Rule 11 is denied.


author: PATEL, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Felix Wayne MITCHELL, Nathan Charles Lewis, Morris McClendon, Marcus Wayne Edmundson, Alvin Gay, Donald Grogans, Randy Lamont Brown, aka Randy Lamont Patterson, Billy Ray Brown and Tony Louvell Burton, Defendants.
    No. CR-83-0130-MHP.
    United States District Court, N.D. California.
    Jan. 4, 1985.
    See also 736 F.2d 1299.
    Joseph Burton, Asst. U.S. Atty., San Jose, Cal., Michael Howard, Asst. U.S. Atty., Tax Div., George Niespolo, Criminal Div., San Francisco, Cal., for plaintiff.
    William Lathan Osterhoudt, Hallinan, Osterhoudt & Poplack, San Francisco, Cal., for Felix Wayne Mitchell.
    Robert Lyons, Hayward, Cal., for Nathan Charles Lewis.
    Gregor D. Guy-Smith, San Francisco, Cal., for Marcus Wayne Edmundson.
    Richard Mazer, San Francisco, Cal., for Alvin Gay.
    Charles Gretsch, San Francisco, Cal., for Donald Grogans.
    Marcus Topel, Topel & Goodman, San Francisco, Cal., for Randy Lamont Brown.
    Paul D. Wolf, Oakland, Cal., for Billy Ray Brown.
    John Williams, San Jose, Cal., for Tony Louvell Brown.
   OPINION

PATEL, District Judge.

Defendants Nathan Lewis and Felix Mitchell have been in custody since February 1983. On November 6 and 19, 1984, respectively, they moved for reconsideration of their bail conditions. In response to these motions the Government moved for a detention hearing pursuant to § 3142 of the Bail Reform Act of 1984 (“BRA 1984”), Comprehensive Crime Control Act of 1984, Tit. II, Ch. 1, Pub.L. No. 98-473, 98 Stat. 1837 (October 12,1984) (to be codified at 18 U.S.C. § 3141 et seq.). Defendants dispute the applicability of the Act to them on retroactivity and ex post facto grounds and challenge its constitutionality under the Eighth Amendment and the Due Process Clause of the Fifth Amendment.

Having carefully considered the parties’ papers and oral argument the court concludes that the Bail Reform Act of 1984 does not apply to defendants Lewis and Mitchell and hereby denies the Government’s motion for a detention hearing. As discussed in detail below, this ruling is based upon the finding that neither the legislative history of the Act nor its statutory provisions indicate that Congress intended BRA 1984 to be applied retroactively to individuals already admitted to bail pursuant to the Bail Reform Act of 1966 (“BRA 1966”), 18 U.S.C. §§ 3141-3152 (repealed by BRA 1984). In light of this finding on retroactivity the court need not and does not reach the ex post facto issue or the constitutional challenges to BRA 1984 raised by defendants.

Background

Defendants Felix Mitchell and Nathan Lewis were indicted along with several other individuals on February 18, 1983 on charges of conspiracy to distribute narcotics and income tax evasion. The offenses for which they were indicted occurred between 1976 and 1983. Defendants were arraigned in March of 1983 and bail was set at $2.5 million for Mitchell and $1.5 million for Lewis. A trial before Judge Orrick commenced in June 1983 and ended in a mistrial one month later. In December 1983, while defense motions arising from the mistrial were on appeal, this court reduced Mitchell’s bail to $1 million. The court reduced Lewis’ bail to $750,000 in July 1984. Defendants have not posted bail and have been in custody since their arrest nearly two years ago.

On October 22, 1984 Mitchell again moved for a reduction of bail. The court ruled it would reconsider bail conditions only upon a showing of “changed circumstances” since the previous bail order. Mitchell renewed his motion on November 19, supplementing his prior motion with evidence that he had an offer of employment in Oakland. Meanwhile, Lewis had moved for reconsideration of his bail on November 6, 1984.

In response to these motions the Government moved on November 30 for a detention hearing pursuant to § 3142 of BRA 1984. Defendants responded on December 10 challenging the constitutionality of the statute and its applicability to them. On December 11 the court heard oral argument and, since the Government in its moving papers had not addressed the issues raised by defendants, ordered the Government to file papers on the retroactivity and ex post facto issues. The Government responded on December 14 and the court took the matter under submission.

Discussion

Standards for Retroactive Application of Statutes

Laws are presumed to be prospective in application absent express Congressional intent to the contrary. Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964). In Greene, a government contract employee who lost his job when the Department of the Navy revoked his security clearance sought compensation from the Defense Department. The Court considered which of two Defense Department personnel regulations applied to petitioner’s claim — the regulation in effect at the time petitioner initiated his action against the Department or a superseding regulation which was less favorable to petitioner, promulgated while the claim was being processed. The Court refused to give the superseding regulation retroactive effect because petitioner’s rights had “matured and were asserted” under the prior regulation. The Court wrote,

“the first rule of construction is that legislation must be considered as addressed to the future, not to the past ... [and] a retrospective operation will not be given to a statute which interferes with antecedent rights ... unless such be ‘the unequivocal and inflexible import of the terms, and manifest intention of the legislature.’ ”

376 U.S. at 160, 84 S.Ct. at 621 (quoting Union Pacific Railroad Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S.Ct. 101, 102, 58 L.Ed. 179 (1913)).

The rationale of Greene is persuasive here. Defendants Mitchell and Lewis were admitted to bail and had their bail conditions modified under the provisions of the Bail Reform Act of 1966. That Act granted defendants a statutory right to bail pending trial subject only to conditions designed to assure their appearance before the court. 18 U.S.C. § 3146 (1966) (repealed by BRA 1984); United States v. Melville, 306 F.Supp. 124, 126 (S.D.N.Y. 1969) (“[T]here is no authority under existing law for confining defendants in noncapital cases prior to trial on the ground that they are likely to commit crimes other than the one already charged against them.”). Although defendants had not yet met the bail conditions imposed by the court they without question had asserted their statutory right.

In passing the Bail Reform Act of 1984 Congress intentionally altered the philosophy underlying the BRA 1966 and for the first time created statutory authority for preventive detention. The legislative history states, “[BRA 1984] marks a significant departure from the basic philosophy of the Bail Reform Act [of 1966], which is that the sole purpose of bail laws must be to assure the appearance of the defendant at judicial proceedings.” S.Rep. No. 225, 98th Cong., 1st Sess. 3 (1983) (“S.Rep.”). The new Act allows for denial of bail if a judicial officer determines following a hearing that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” BRA 1984 § 3142(e).

The statute creates a rebuttable presumption that certain defendants are to be denied bail. It reads in relevant part:

Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances, Import and Export Act (21 U.S.C. § 951 et seq.) ...

BRA 1984 § 3142(e). Since Lewis and Mitchell were indicted for violations of the Controlled Substances Act with maximum sentences of greater than ten years, they would be subject to the rebuttable presumption that they be detained without bail should a judicial officer find there was probable cause to believe they committed the offenses with which they are charged. Indeed, the Government argues that Lewis and Mitchell should be subject to the rebut-table presumption on the basis of the indictment alone. See United States Memorandum on Mitchell/Lewis Detention Hearings at 9.

Without deciding whether the indictment alone is sufficient to establish probable cause, BRA 1984 clearly mandates that upon such a finding these defendants are subject to the rebuttable presumption that they be detained without bail. In contrast, under BRA 1966 they were entitled to their liberty pending trial subject only to their ability to meet the conditions already set by the court. The court finds that the provisions of BRA 1984 significantly alter the statutory right to bail previously asserted by Lewis and Mitchell under BRA 1966. Accordingly, the court cannot apply BRA 1984 retroactively to them absent express authorization from Congress.

Construction of the Bail Reform Act of 1984

Neither the language of BRA 1984 nor its legislative history addresses the question of whether its provisions should be given retroactive effect. This silence is conspicuous inasmuch as Congress clearly recognized the “substantial change” this Act makes in existing law. S.Rep. at 10. See also S.Rep. at 3 (the Act “substantially revises the Bail Reform Act of 1966.”); S.Rep. at 12 (pretrial detention “represents a significant departure from the Bail Reform Act.”). Congress knows how to fashion retroactive legislation when it so chooses. See, e.g., Lehmann v. United States ex rel. Carson, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024, 1 L.Ed.2d 1122 (1957). Presumably, had Congress intended the substantial changes it intentionally wrought in existing bail law to be applied retroactively it would have so stated.

The legislative history does state that the pretrial detention provisions of BRA 1984 are modeled after those in the District of Columbia Code, D.C.Code Ann. § 23-1322(c)(3), and the interpretation of this provision in United States v. Edwards, 430 A.2d 1321 (D.C.App.1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982). S.Rep. at 22. The Government argued at oral argument that in placing reliance on Edwards Congress implicitly relied De Veau v. United States, 454 A.2d 1308 (D.C.1982), cert. denied, 460 U.S. 1087, 103 S.Ct. 1781, 76 L.Ed.2d 351 (1983), a ease applying certain pretrial detention provisions of the District of Columbia statute retroactively. This argument is flawed in several respects. First, the Government provided no authority at the hearing or in its papers to support the notion that Congressional reliance on a given case implies the adoption of that case’s progeny. An equally if not more compelling argument is that the citation to Edwards in the legislative history demonstrates that Congress knows how to identify the case law upon which it intends to rely so that its failure to cite De Veau indicates that no such intention existed.

Moreover, the retroactivity problem addressed in De Veau presents different issues from those in the instant case. De Veau concerned an amendment to the District of Columbia statute that made pretrial detention applicable to persons charged with first degree murder rather than to persons charged with offenses punishable by death. 454 A.2d at 1310-11. Although the offenses for which defendants in De Veau were charged occurred prior to the effective date of the amendment, their hearings regarding conditions for release pending trial occurred after the statute was amended. Id. at 1314. Thus, unlike Lewis and Mitchell, the defendants in De Veau had not been admitted to bail under any prior statute. The De Veau court ruled that the application of the amendment to the defendants in that case did not violate the principle disfavoring retroactive application of statutes because it did not deprive defendants of a “matured or unconditional right.” Id.

Congress’ failure to specify whether BRA 1984 should be applied retroactively suffices under Greene to direct the court to find that the statute should not be so construed. 376 U.S. at 160-61, 84 S.Ct. at 621-22. However, in addition to the absence of legislative history, the court finds that various provisions of the statute indicate that Congress intended it be applied prospectively only.

For example, the provision regarding procedures for detention hearings reads in part:

The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days.

BRA 1984 § 3142(f). Two aspects of this provision are relevant to this inquiry. First, the statute by its terms dictates that a detention hearing be held upon defendant’s first appearance before a judicial officer. The plain language thus indicates that Congress intended the provision apply to newly arrested individuals and not to defendants such as Lewis and Mitchell who were arrested, indicted, arraigned, admitted to bail, and brought once to trial long before BRA 1984 came into effect.

Further, the provision that the detention hearing be held immediately upon defendant’s first appearance or after an intentionally brief continuance reflects Congress’ recognition that “defendant will be detained during such a continuance.” S.Rep. at 22. This concern with a defendant’s loss of liberty prior to the detention hearing suggests that Congress did not' contemplate that the provision apply to individuals like Lewis and Mitchell who were admitted to but unable to make bail and hence already in custody.

Finally, one of Congress’ stated goals in drafting the pretrial detention provisions of BRA 1984 was that they be “workable.” S.Rep. at 7, 9. A cursory review of the Act shows that retroactive application to defendants like Lewis and Mitchell already admitted to bail under BRA 1966 would be wholly unworkable. As discussed above, the provision that a detention hearing be held immediately upon defendant’s first appearance before the judicial officer constitutes one of the due process protections Congress built into the statute. Notably, the statute provides no “triggering” date for individuals already in custody and for whom bail already has been set and the Government provides no principled means of establishing such a date. The most reasonable date would be the date on which the Act went into effect; to find otherwise would allow the Government to invoke the detention hearing provisions'without being bound by any statutory timetable. Were this the case the statute would have the anomalous effect of affording defendants already in custody fewer due process protections than newly arrested defendants.

Another problem with applying the statute to individuals already admitted to bail is that no reasonable basis exists to distinguish between defendants who remain in custody and those who have posted bail and are out of custody. Thus, were the pretrial detention procedures to apply to defendants in the former category they would likewise apply to ones in the latter. As a result, BRA 1984 would authorize the Government to initiate on its own motion proceedings to rescind the bail of any defendant admitted to bail under BRA 1966 and subject him to a detention hearing. The court believes that had Congress intended BRA 1984 to have such far-reaching consequences it would have so stated. Yet the Act is wholly lacking in any procedures for handling persons admitted to bail under BRA 1966.

Instead, the revocation provisions of BRA 1984 do not allow for revocation and detention proceedings under the Act for defendants admitted to bail under BRA 1966. The relevant section reads:

A person who has been released pursuant to the provisions of section 3142, and who has violated a condition of his release, is subject to a revocation of release, an order of detention, and a prosecution for contempt of court.

BRA 1984 § 3148(a) (emphasis added). The section applies only to individuals released pursuant to § 3142, which necessarily means § 3142 of BRA 1984, for § 3142 of BRA 1966 was repealed and was in no way related to release from custody. In addition, sanctions for individuals released on bail apply only when a bail condition has been violated. Congress apparently did not contemplate that individuals released pursuant to BRA 1966 would be subject to sanctions under BRA 1984 upon the Government’s motion.

In sum, the court finds that the pretrial detention provisions of BRA 1984 do not apply retroactively to defendants like those in the instant case who have been admitted to bail pursuant to BRA 1966. The court does not have before it and does not reach the issue of whether BRA 1984 would apply to defendants charged with offenses which occurred prior to the effective date of the Act but who were not in custody or not admitted to bail at that time. In this case the offenses were committed long before the adoption of BRA 1984; the defendants first appeared before a judicial officer before its adoption; and proceedings have been conducted and bail set under BRA 1966 long before the 1984 Act.

For the foregoing reasons the Government’s motion for a detention hearing is denied. Bail and the conditions of release imposed by this court pursuant to BRA 1966 will remain in effect. The court’s ruling on defendants’ motions to reconsider their bail has been addressed in a separate order.

IT IS SO ORDERED.

      . The situation in De Veau is similar to that in United States v. Hazzard, 598 F.Supp. 1442 No. 84-CR-771, slip op. (N.D.Ill. Dec. 11, 1984), a case the Government appended to its brief. Defendant in Hazzard was charged with offenses committed prior to the effective date of BRA 1984 but his arrest, indictment, and first hearing before a judicial officer took place after the statute’s effective date. The Hazzard court rejected defendant’s ex post facto and constitutional challenges to BRA 1984 and upheld the application of the statute to him. ¡ The retroactivity issue was not addressed.

      . The Government argues that Lewis and Mitchell triggered BRA 1984’s application to them by moving the court to reconsider their bail. See United States Retroactivity and Ex Post Facto Response at 8. The court finds nothing in the statute or legislative history to support this position. Moreover, even were the court to infer such a triggering date the Government’s motion in the instant case would be untimely since it was not brought within three days of defendants' motion. BRA 1984 § 3142(f).