author: KEADY, District Judge.

text:
    Charlie F. WADE; Laverne Y. Lindsey; Bryan Keith Lindsey, Bryon Kevin Lindsey, by their mother and next friend, Laverne Y. Lindsey; Gwendolyn Durham, Joann Durham, Ja Nel Durham, Arnold Guyton Durham, by their mother and next friend, Odell Durham; and Howard T. Bailey, individually and on behalf of all others similarly situated, Plaintiffs, v. MISSISSIPPI COOPERATIVE EXTENSION SERVICE, et al., Defendants.
    Civ. A. No. EC 70-29-K.
    United States District Court, N.D. Mississippi, E.D.
    Aug. 29, 1985.
    Jere Krakoff, Lawyers’ Committee for Civil Rights Under Law, Jackson, Miss., for plaintiffs.
    James M. Ward, Starkville, Miss., Thomas E. Childs, Jr., Fulton, Miss., Edwin L. Pittman, Atty. Gen. of Miss., Jackson, Miss., for defendants.
   MEMORANDUM OF DECISION

KEADY, District Judge.

This case involves another chapter in long-standing litigation in which the Mississippi Cooperative Extension Service (MCES) petitions the court to approve the performance evaluation instrument (PEI) and procedure previously submitted and implemented pursuant to the stipulation of the parties. MCES seeks approval to allow full implementation of such instrument and procedure for the purpose of allowing pay increases for certain employees meriting same and allow use of the performance evaluation score as an additional factor in determining the objective qualifications of personnel seeking promotions. The plaintiff class, consisting of MCES black professional employees, opposes the relief sought.

The background of the present controversy may be found in Wade v. Mississippi Cooperative Extension Service, 372 F.Supp. 126 (1974), aff’d but rev’d on other grounds, 528 F.2d 508 (5th Cir.1976), in which it was determined that MCES’s professional employees would be paid and promoted in accordance with their job category, academic training and degree, technical knowledge, and tenure of employment with MCES. The court struck down a performance evaluation form then used by MCES on the ground that it was racially discriminatory. MCES was directed “to devise an objective, valid and nondiscriminatory instrument which would reliably predict job success, and which shall be developed pursuant to the standards required by the Equal Employment Opportunity Commission’s Guidelines on Employees Selection Procedure,” 29 C.F.R. § 1607, et seq., and Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The court further ordered that, at MCES’s option, an evaluation instrument validated in accordance with such standards might be used as an acceptable criterion for promotions and for merit pay, but only after the court approved the use of such form and procedure.

Since 1975, MCES has utilized for purposes of merit pay and promotions, the court-approved criteria of (a) academic training and degree; (b) tenure of employment by MCES; and (c) technical knowledge derived from in-service training and scores thereon. However, MCES has exercised its option to develop, or attempt to develop, a PEI and procedure designed as an additional factor for determining pay increases and promotions of professionals. The PEI factor would be equal in weight to all of the court-approved criteria.

On August 26 and 27, 1985, the court conducted an evidentiary hearing on the sufficiency of a new PEI and implementing procedure, received oral and documentary evidence from the parties, heard oral argument of counsel, and now makes findings of fact and conclusions of law pursuant to Rule 52(a), Fed.R.Civ.P.

I. Findings of Fact

In June 1975, MCES contracted with Roy B. Mefferd, Jr., and Timothy G. Sadler, consulting psychologists affiliated with Birkman-Mefferd Research Foundation (Foundation), of Houston, Texas, to conduct a job analysis of all MCES employees at county level positions. The consultants began with MCES professionals at the state level to determine the purposes and missions of MCES at the county level. The Foundation extensively interviewed four groups of county level professionals from which forty-three black agents and ninety-nine white agents, of both sexes, were selected. The expert interviewers were out-of-state people fully qualified to conduct such a survey. As a result of these interviews, on September 21, 1976, the Foundation submitted to MCES a document entitled “Job Analysis and Validation of a Performance Evaluation Procedure of County Level and Area Level Agents of the Mississippi Cooperative Extension Service” (D-2). The essence of this study concluded that, while it was not possible to develop quantitative measures to establish criterion validity, nevertheless forty-two elements were ascertainable arid identifiable as fairly measuring the knowledge and skills of MCES professionals and as being necessary and relevant to job performance. These elements fit into five broad categories as follows:

I. THE IDENTIFICATION AND ASSESSMENT OF NEEDS

1. The agent maintains updated knowledge of the relevant Extension needs of targeted clients.
2. The agent identifies and assesses on a regular basis throughout the year.
3. The agent identifies needs which have long-term implications.
4. The agent is open and responsive to changing needs.
5. The agent coordinates the local need assessment with the District Staffs to ensure that state-wide goals are considered.
6. The agent coordinates his/her local need assessment with other County Extension Agents and when appropriate with the District Staff to ensure a coordinated program which includes state-wide goals.
7. The agent organizes information about needs in a way to permit analyses of their relative significance, relevance, timeliness, urgency, equitability, and feasibility.

II. PROGRAM PLANNING

1. The agent completes the Annual Plan of Work and other planning and programming on time.
2. The agent plans the timely implementation of programs to meet unexpected needs.
3. The agent’s programs have realistic and measurable goals and provisions for evaluating the results.
4. The priorities, levels of effort and scheduling determined by the agent allow attainment of the goals of programs.
5. The agent plans for the use of resource people to augment (but not provide) his/her programs.
6. The agent plans programs for a cross-section of targeted clients, county-wide or within program-defined groups as required by the job assignment.
7. The agent coordinates immediate and long-term plans with those of the other county Extension agents, and when appropriate, with District Staff, so as to participate in a team effort.

III. PROGRAM IMPLEMENTATION

1. The agent is responsive to county, area, or targeted-group needs in his/her area and level of responsibility.
2. The agent implements programs of two types: (1) those that emphasize economic improvement, and (2) those that emphasize quality of life improvement as the job assignment requires.
3. The agent implements state-wide programs in accordance with MCES policy-
4. The agent adheres to his/her Annual Plan of Work while accommodating emergency or new needs.
5. The agent regularly uses non-extension resources and resource people to augment his/her program in meeting goals.
6. The agent regularly demonstrates proficiency in the use of media to reach audiences as the job assignment requires.
7. The agent utilizes but keeps a balance between both group and individual client contacts in teaching and program promotion.
8. The agent augments his/her own program efforts by utilizing Extension specialists (i.e., specialists are used to augment service, not to provide the service), as the job assignment requires.
9. The agent motivates others in Extension programs.
10. The agent exhibits a personal commitment to team efforts involving the other county professionals.
11. The agent utilizes team efforts among his/her clientele to accomplish his/her goals.
12. The agent uses regular program evaluations for the purpose of making prompt changes to improve his/her programs.
13. The agent maintains a regular program for self-improvement of his/her teaching, communication, and program promotion skills.
14. The agent maintains a regular program for self-improvement of the technical aspects of his/her job assignment.

IV. PROGRAM EVALUATION

1. The agent evidences a continuing commitment to the systematic evaluations of the impact of his/her programs.
2. The agent makes systematic and documented evaluations of his/her personal effectiveness in the delivery of the programs.
3. The agent regularly uses client feedback for the assessment of impact of his/her programs on economic and qualitative aspects of life.
4. The agent maintains regular documented progress reports for formal reviews of major or long-term programs.
5. The agent uses program evaluation information to modify the goals of his/her long-term programs.
6. The agent reviews and evaluates program activities promptly for the immediate impact using measures such as attendance, client inquiries, post-event publicity, etc.
7. The agent coordinates his/her program reviews with other agents in the county.

V. GENERAL DUTIES AND REQUIREMENTS

1. The agent is punctual in the performance of his/her duties with the public.
2. The agent plans and allocates his/her personal time so as to meet the requirement of both programmed and unscheduled duties.
3. The agent completes the necessary routine paperwork and office activities required by the job assignment without distracting from his/her on-going program work.
4. The agent maintains an orderly work area in the county offices.
5. The agent maintains public relations with clients which are in accord with his/her job assignment.
6. The agent regularly supports cooperative involvement with other county professionals.

7. The agent resolves conflict tactfully. (D-10).

The Foundation determined the weight to be given the forty-two items by ascertaining how much time a professional spent performing particular tasks. Studies showed that 10% of an agent’s time was spent in various tasks other than program planning and implementation which consumed 50% of his time. This accounts for the weight given to program planning and implementation.

The Foundation submitted a final report to the court on August 31, 1977. The parties, however, delayed presenting the matter to the court pending further experience with the plan.

On December 5, 1984, the Foundation submitted a comprehensive ten-year review of the development of PEI (D-4). This report stated that each of the forty-two elements in the PEI represents a critical job requirement as determined by the MCES professionals themselves, that the elements uniformly cover the full range of the job, and that the PEI is both content valid and reliable. The Foundation’s report concluded that PEI scores “are sensitive to changes in individual performance as well as to programmatical changes of MCES,” and reaffirmed that there were no professionally acceptable alternatives to a content valid PEI process to measure current performance, such as criterion based scores. The report concluded that the PEI is measuring actual professional performance of field-level extension agents.

Since 1979, MCES has unofficially utilized the PEI and has implemented a system of professional employee evaluation as a continuous process throughout the year. It is important to MCES to monitor the extension program, which is carried on by a professional staff dispersed throughout the eighty-two counties of the state, in order to be sure that the services embodied in MCES’s programs are being effectively carried out. Hence, a cycle for each year encompasses a county professional’s production of a detailed pre-plan of work, followed by plan of work, its implementation, and, finally, a post-plan of work. In each step, there is extensive coordination of efforts between county professionals, district program leaders, state program leaders, and review by district agents.

Documentation is maintained on an agent’s personal calendar of activities and events, in minutes of staff conferences he attended and other committee minutes, in copies of mass media messages, and various reports. There is continuous feedback to the affected professional. After the plan of work has been executed, review is made by district program leaders, district agents, and state program leader auditors. The procedure for evaluating county professionals is accomplished in the following manner. The twelve district program leaders for agriculture, home economics and 4-H youth work, which are the three fields of MCES activity, initially evaluate and score the county professionals under their individual supervision in accordance with the performance evaluation sheet (D-10) for each of the forty-two job-related elements. This preliminary scoring by a district program leader is held in abeyance until all program leaders from the four Mississippi districts meet at Mississippi State University where they discuss consistency in scoring each element. These discussions, which last for a week, are held with the state program leaders present. The consistency scoring is fully documented (D-6, P-1). In such meetings, each program leader seeks to justify or defend the scoring methodology which he has tentatively applied. If changes are found applicable, they are made. The results of the scoring are then tabulated and submitted to the district agent for his review. Next, the district program leader presents the results to the professional being evaluated and discusses the evaluative scores with him.

As regards actual scoring, the procedure is to rate the professional on a scale of 1 to 5, with 1 being below expectation and 5 being above expectation. Detailed definitions for a score of 3 are contained in the Guidebook for Performance Evaluation (D-3). If the score in any element is less than 3, the program leader reviews with the agent his work and suggests improvements. District program leaders are instructed “to professionally draw a line to separate 5, 4, 3, 2,1. Scores of 1 and 2 and sometimes 3 are easier to derive in most cases and should be derived first” (D-6). A maximum score is 244, and a minimum is l. The court finds as a fact that as a practical matter in evaluating scores in terms of “below expectation” and “above expectation,” district program leaders make interim memoranda throughout the year as poor, fair, satisfactory, good, or excellent, with a score of 3 in any element denoting satisfactory performance.

As heretofore noted, the function of the district program leaders is a strategic part of the evaluative process, although it is a responsibility shared with their peers and is subject to supervision of the state program leader. During the period under review, there were nine white and three black program leaders. Since 1979, approximately 250 agents have been evaluated on the PEI each year, resulting in some 1,263 personnel evaluations in the past five years.

The evidence shows that in 1979 and 1980 MCES leaders made a conscious effort to rate black professionals with higher scores to justify an increased salary procedure and promotions necessary to meet requirements of the court order directing such relief. Black professionals were then scored separately from white professionals. Hence, little weight and attention need be given to the results of those two years in which the evaluative process was skewed. Since 1981, however, MCES has maintained detailed data on personnel evaluations from which the Foundation has drawn significant conclusions. Plaintiffs’ expert, Dr. Erich Prein, an industrial psychologist from Memphis, Tennessee, draws the bases for his critical comments from that same data. The findings of these experts will be discussed in some detail, since the correct factual determination must necessarily be reached on close scrutiny of their testimony.

As reflected in their comprehensive report (D-4) and in their trial testimony, Mefferd and Sadler found that the criteria of level of academic training and degree, tenure of MCES employment (four years or more), and in-service training grades were factors, or correlates, of job performance. They postulated that agents with advanced education should be better prepared, that agents with greater experience or tenure should be better prepared, and that agents who scored higher on in-service training tests should be better prepared, thereby enhancing their job performance. Mefferd and Sadler ascertained that the score levels of whites were consistently above that of blacks in 1981, 1982, and 1983, and that the differences were statistically significant, ranging from 5.2% to 6.7% of the average. They proceeded to determine whether the differences between the two groups of county professionals were related only to difference in job performance or to irrelevant factors such as race.

The principal conclusions of Mefferd and Sadler are summarized as follows.

1. The race of the rater was considered, bearing in mind that there were three blacks and nine whites who served as raters in the 1981-83 period. Black raters, as well as white raters, consistently rated the white agents higher than the black agents, although the group differences were greater with white raters (D-4, 2, Appendix B, Table 4).

2. Agents having both in-service scores and PEI scores in the three-year period were correlated since higher in-service training scores were made by the same agents who scored higher on the PEI (D-4, pp. 52-53).

3. Agents with four or more years’ experience with MCES scored higher on the PEI than the average of those with less experience, with the experience effect being somewhat greater among whites than among blacks (D-4, 3, 4, Appendix B, Table 5).

4. Both black and white agents with better academic preparation scored higher on the PEI, although the effect was more substantial for black agents (D-4, 6, Appendix B, Table 6).

5. Black agents who scored higher on in-service tests and had advanced degrees from predominantly white universities compared favorably with whites having similar qualifications (D-4, 7, Appendix B, Table 7).

6. Mefferd and Sadler concluded that after all factors were taken into account, the mean scores of black agents as a group remained consistently lower than those of white agents but that

this difference between groups does not appear to be due to the irrelevant factor of race, but rather due to a factor of differential preparation. This conclusion is supported by the facts that newer Black and White agents are rated similarily (newer Black agents have typically been educated since school system integration has occurred), that Blacks and Whites with advanced degrees are rated similarly, and that Black and White agents equated for high quality of preparation have exactly the same average scores on the PEI.
Thus, the PEI is content valid, reliable and used in a fair manner.

(D-4, p. 66).

Dr. Prein, plaintiffs’ expert, stated that he examined the PEI scores for 1981-83 and found that there were differences between the scores of black and white agents that were significant both statistically and in a practical sense. He pointed out that on a review of 254 evaluations two blacks and twenty-two whites would be in the top 10% of the scores for 1980-81, four blacks and twenty whites would be in the top 10% for 1981-82, and one black and twenty-four whites would be in the top 10% for 1982-83. He regarded these scoring results as having a substantial impact on black professionals, both statistically and in a numerical sense. He took issue with the Mefferd-Sadler conclusions that the differences between the PEI scores of each race were due to differences in preparation. Prein further stated that the defendants’ experts incorrectly assumed that education and experience were valid predictors of job performance and criticized in-service training and the scores thereon as having the same infirmity. On cross-examination, however, Prein acknowledged that he did not make a job analysis for MCES professionals and did not interview any program leader at the state, district or county level. Nor did he review any documents in the files of MCES. It was brought out that Prein conducted his own tests on the correlation of PEI tests with the academic training and experience of black and white agents for the years in issue and that his tests showed significant correlation between education, experience and the PEI score. He further acknowledged that there was no material difference between the ratings of black agents and white agents by either white raters or black raters. Dr. Prein was unable to account for the statistical difference between the scores of white professionals and black professionals other than to suggest that the samples of 254, 250 and 240 professionals during the years in issue were too small and that there were three times as many white raters as black raters.

The experts of the parties also clashed on whether the implementation of the PEI procedure was objective. Mefferd and Sadler testified that the definitions contained in the MCES guidebook and consistency scoring sheets for most of the forty-two elements within the five categories were sufficiently specific and detailed to be objective, and that an accurate measure of job performance could be applied by the rater. Prein testified that the PEI lacked objectivity in that the scoring procedure of 1 to 5 was vague, that the definitions contained in the guidebook and other materials related only to a score of 3 and did not define a score of 1, 2, 4, and 5. He further was critical of terms used in the definition section such as “quality,” “variety,” and “appropriate.” In his opinion, the raters did not know what was meant by those terms, and each rater would have the opportunity, if not the necessity, of filling in his own ideas to accomplish the rating.

On this conflicting evidence, the court finds as a fact that the PEI is not racially discriminatory, even though black agents on the average may score less than white agents. Although this difference is statistically significant, it is due to difference in overall preparation. ' To the extent that blacks have the same academic training with advanced degrees and experience as whites, the differences are minimal. The court further finds as a fact that the mission of MCES is to deliver important educational services to the citizens of Mississippi in a variety of fields that are important to their welfare and that a trained corps of professionals is essential to accomplish that task. The defendants have, at a cost of $195,000 to the state, engaged professionals to develop the PEI, and the five-years’ experience with unofficial use of the PEI shows that it has a high degree of correlation to job performance. The court further finds as a fact that while the definitions contained in the MCES guidebook are elaborate in detail, they do not and cannot cover every eventuality in an educational program that MCES seeks to deliver. Such programs are subject to changing needs each year. Future program changes will, of course, necessitate definitional changes. The court further finds as a fact that the PEI and the definitions and the procedure whereby the system is implemented is objective and enables independent observers to reach the same result.

The evidence reflects that MCES has heretofore administratively granted merit pay increases and promotions to professionals scoring within the top 25%. Under this formula, merit pay increases for the fiscal year 1982-83 would have produced the following results: seven black agents out of sixty-three (11.1%) scored within the top 25%, and fifty-six white agents out of one hundred ninety (21%) scored within the top 25%. For the fiscal year 1983-84, nine black agents out of sixty-two (14%) scored within the top 25%, and fifty-two white agents out of one hundred eighty (29%) scored within the top 25%.

II. Conclusions of Law

MCES’s attempt to effectuate the remedial measures previously ordered by this court must pass muster under the Title VII standards enunciated in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), which forbid the use of employment tests that are discriminatory in effect unless the employer carries “the burden of showing that any given requirement [has] ... a manifest relationship to the employment in question.” Id. at 432, 91 S.Ct. at 854. See Wade, 528 F.2d at 518. At the outset, plaintiffs concede that the PEI was developed in accordance with EEOC guidelines and is content valid for use in promoting employees to county-level agent positions. However, they contend that the PEI is not objective and nondiscriminatory and further assert that it is not content validated for use in promotion decisions concerning district-level agent positions.

This court concludes that MCES has carried the burden of establishing that the PEI is nondiscriminatory in both form and application and is sufficiently objective to provide an accurate measure of county agents’ on-the-job performance. We accept the findings of Mefferd and Sadler which indicate that the mean score differential between blacks and whites for the years 1981-1983 is not because of race, but rather is attributable to disparities in educational preparation and experience. As to objectivity, MCES has established definitions, guidelines, and procedures which ensure that the scoring of agents by district program leaders is consistent and as non-subjective as is humanly possible. The concrete definition provided for a score of “3” on each of the forty-two elements, when considered in conjunction with the consistency scoring procedures and the district program leaders’ personal reviews of scores with each agent, adequately safeguards against intrusion of any rater’s personal whim or fancy into the scoring process. Moreover, MCES has demonstrated that it has the expertise to devise such .future definitional changes as the programs of MCES may require. The PEI is so constructed that independent persons rating a particular agent would reach the same conclusion.

The court further concludes that the PEI is objective, nondiscriminatory, and content valid for use in promotion to district agent positions. It was developed through a job analysis of all MCES professional positions and through extensive interviews with agents at all levels regarding the requirements of their jobs. A county agent’s scores on the PEI are reasonable factors to consider in determining whether or not he is qualified for promotion to the district level.

Having determined that the PEI developed by MCES is objective, nondiscriminatory, and content valid, we approve it as a job-related and necessary measure of job performance, which may be implemented by MCES in making promotion and merit pay decisions for county and area levels of the agency’s employees.

Let an order issue accordingly.

      . A professional’s score on job performance is proposed to be equal the weight to a maximum of 57‘/2 on academic training and degree, tenure of employment, and in-service training.


source: Caselaw Access Project

author: MARY LOU ROBINSON, District Judge.

license: Public Domain

text:
    George P. POST d/b/a Post Petroleum Company, Plaintiff, v. PERRY GAS TRANSMISSION, INC., Palo Duro Pipeline Company, Berter Investments, Inc., Tiltex Gas Company, United Texas South Plains, Inc., and Pandle, Ltd., Defendants.
    Civ. A. No. 2-83-158.
    United States District Court, N.D. Texas, Amarillo Division.
    Dec. 15, 1983.
   ORDER

MARY LOU ROBINSON, District Judge.

Plaintiff, George P. Post d/b/a Post Petroleum Company, is an independent producer of natural gas. On November 30, 1977, Plaintiff and Defendant Perry Gas Transmission, Inc., entered into a gas purchase contract whereby Perry agreed to purchase natural gas produced from wells in Wheeler County, Texas.

Palo Duro Pipeline Company, Inc., successor in interest to Palo Duro Pipeline Company, operates an intrastate natural gas pipeline system in the State of Texas. Palo Duro has succeeded to the rights and obligations of Perry under the gas purchase contract.

Post has instituted this suit seeking, inter alia, to recover certain amounts he claims are owed pursuant to the so-called “take-or-pay” provisions of the gas purchase contract. Plaintiff contends that Palo Duro is obligated to take delivery of a certain minimum quantity of gas and that if Palo Duro does not actually take such gas, it must nevertheless make payment.

Defendants assert that the take-or-pay provisions of the gas purchase contract are unenforceable because any take-or-pay payments would constitute additional consideration to Post above and beyond the maximum lawful price and, thus, that a violation of the Natural Gas Policy Act of 1978 would result. See NGPA § 504, 15 U.S.C. § 3414(a) (1983). Defendants have asked this Court to refer this issue to the Federal Energy Regulatory Commission under the doctrine of primary jurisdiction.

Of Primary Jurisdiction

The Supreme Court of the United States has defined the doctrine of primary jurisdiction as:

[A] principle now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.

Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494-95, 96 L.Ed. 576 (1952). Professor Davis has suggested that the rationale for the doctrine is:

[Recognition of the need for orderly and sensible coordination of the work of [administrative] agencies and of courts. Whether the agency happens to be expert or not, a court should not act upon [a] subject matter that is peculiarly within the agency’s specialized field without taking into account what the agency has to offer, for otherwise the parties who are subject to the agency’s continuous regulation may become the victims of uncoordinated and conflicting requirements.

3 Davis, Administrative Law Treatise § 1901. Four factors are usually considered in determining whether to defer to an administrative agency: (1) whether the question at issue is within the conventional experience of judges; (2) whether the question at issue lies peculiarly within the agency’s discretion or requires the exercise of agency expertise; (3) whether there exists a danger of inconsistent rulings; and (4) whether a prior application to the agency has been made. Oasis Petroleum Corp. v. United States Dep’t of Energy, 718 F.2d 1558, 1564 (Temp.Emer.Ct.App.1983).

The Court finds these factors sufficiently satisfied in this case to justify referral to the FERC. While Plaintiff has sought to characterize the issue as one of simple statutory interpretation, the fact remains that the issue of whether take-or-pay payments violate the first sale price limitations of the NGPA could affect energy policy throughout the entire nation. Congress has specifically entrusted the enforcement and administration of the NGPA to the FERC. NGPA § 501, 15 U.S.C. § 3411(a) (1983). Consequently, the FERC has both the expertise in the area of natural gas regulation and the experience in interpreting the NGPA to justify referring this case to it.

Plaintiff’s reliance on the Fifth Circuit’s comment that:

Defining [“first sale”] does not bring into play the experience which the agency has gained in administering the [Natural Gas Act] nor does this definition draw on the agency’s expertise in dealing with the technical problems associated with energy regulation,

is misplaced. Mid-Louisiana Gas Co. v. FERC, 664 F.2d 530, 534 (5th Cir.1981), vacated, 463 U.S. 319, 103 S.Ct. 3024, 77 L.Ed.2d 668 (1983). First, that case arose in the context of determining what amount of deference the court should show to the FERC’s determination of .an issue, not in the context of determining whether FERC should be asked its opinion. Secondly, resolution of the take-or-pay issue appears more likely to revolve around the definition of “other transfer for value” in § 2 of the NGPA, 15 U.S.C. § 3301(20) (1983), than around the definition of first sale. Moreover, Congress intended to give the FERC the power to define “transfer for value.” H.R.Rep. 95-1752, 95th Cong., 2d Sess. 116, reprinted in [1978] U.S.Code Cong. & Ad. News 8800, 9033.

The issue of the legality of take-or-pay clauses under the NGPA has also arisen in various forms in a number of proceedings currently on the Commission’s docket. See Northern Natural Gas Co. v. Sampson Resources Co., Docket No. GP83-21-000; Columbia Gas Transmission Corp., Docket No. CI83-304-000; Producer’s Gas Company v. Southport Exploration, Inc., Docket No. GP83-48-000; Amerada Hess Corporation, Docket No. RP83-109; Natural Gas Pipeline of America, Docket No. GP83-49. The FERC’s Acting General Counsel has commented that the issue “is not easily resolved.” Letter from Stephen R. Melton to George J. Meiburger (Sept. 15, 1983). The Fifth Circuit has noted that “[t]he advisability of invoking primary jurisdiction is greatest when the issue is already before the agency.” Mississippi Power & Light Co. v. United Gas Pipe Line Co., 532 F.2d 412, 420 (5th Cir.1976).

Consequently, this Court finds it appropriate to refer this case to the Federal Energy Regulatory Commission for resolution of the following issue:

Would enforcement of the take-or-pay provisions of the gas purchase contract at issue in this case violate Section 504 of the NGPA?

By referring this specific issue to the FERC, this Court does not intend to unduly restrict that agency’s ability to assist the Court. The FERC is free to make all findings that it believes will aid the prompt resolution of this case. Cf. MP & L, 532 F.2d at 421 n. 14.

All further proceedings in this Court are STAYED pending the FERC’s resolution of the referred issue. Because the Court believes that allowing discovery will aid in the resolution of the dispute, proceedings related to depositions and discovery under Fed.R.Civ.P. 26-37 are not stayed. Cf. MP & L, 532 F.2d at 422 n. 15.

In entering this Order, the Court is cognizant of the almost inevitable added expense and delay to the litigants, but holds true to the course charted by the Fifth Circuit:

When faced with two roads diverging, one leading through the unmarked forest of judicial guesswork and one leading through the clearing of agency expertise, this Court has preferred to take the less traveled by, that of primary jurisdiction. Although primary jurisdiction provides a temporary refuge from a difficult decision, we carefully examine the question presented to us to determine whether the rationale underlying primary jurisdiction applies and whether further determination by the agency will illuminate those issues before us. “What bears continual emphasis is that the Court neither passes off final decision on to another tribunal nor escapes from its ultimate duty to decide. For after the exercise of primary jurisdiction determination by the agency concerned, the case comes back in a suitable way for the Court, as a Court, to act.”

American Trucking Associations v. ICC, 682 F.2d 487, 492 (5th Cir.1982), quoting Usery v. Tamiami Trail Tours, 531 F.2d 224, 241 (5th Cir.1976).

Since this case has already been pending on the docket of this Court for some months, the Court urges the FERC to reach a decision as expeditiously as possible.

It is SO ORDERED.


author: ZOBEL, District Judge.

text:
    Ricardo BELL, Michael Bivins, Bobby Brown, Ronald Devoe, and Ralph Tresvant p/k/a New Edition, Infants, respectively, ppa William E. Dern, Plaintiffs and Defendants in Counterclaim, v. STREETWISE RECORDS, LTD., Defendant and Plaintiff in Counterclaim, Boston International Records, Inc., Defendant. BOSTON INTERNATIONAL RECORDS, INC., Intervenor-Plaintiff, v. Ricardo BELL, Ralph Tresvant, Robert Brown, Ronald Devoe, and Michael Bivins, Defendants.
    Civ. A. No. 83-4086-Z.
    United States District Court, D. Massachusetts.
    May 23, 1984.
    Dean Richlin, Budd & Wiley, Boston, Mass., for plaintiffs and defendants in counterclaim.
    Mark C. Weiner, A. Van C. Lanckton, Craig and Macauley, P.C., Michael Arthur Walsh, Choate, Hall & Stewart, Boston, Mass., for defendants Streetwise and Boston Intern.
   MEMORANDUM OF DECISION

ZOBEL, District Judge.

The five plaintiffs are the members of a singing group called the New Edition. Defendants developed, promoted, and marketed the group and its music. Both sides claim rights to the trademark “NEW EDITION.” Both seek preliminary injunctive relief pursuant to § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), enjoining the other from using the “NEW EDITION” mark. A hearing was held before a United States Magistrate who made a thorough report and recommended that plaintiffs’ motion for a preliminary injunction be granted. The case is before me now on defendants’ objections to the Magistrate’s Report and Recommendation.

The defendants do not object to the Magistrate’s factual findings. I accept the facts as found by the Magistrate and incorporate them by reference herein.

Defendants vehemently contend that the Magistrate erred in focusing on the meaning of the “NEW EDITION” mark in the minds of the public as dispositive of the ownership of the mark. They urge that, as the source or origin of the goods sold under the mark, they are the owners of the mark. The cases cited by defendants applying the rule of prior appropriation are inapposite, however, because, in contrast to the instant case, they involve disputes between two independent sources. Here, both plaintiffs and defendants played a role in marketing the goods under the mark. As one court has stated, “[although one may not lose rights to a trademark because the public is unaware of one’s identity, when determining who initially acquires those rights that question is significant.” Wrist-Pocket Manufacturing Co. v. Saunders, 379 F.Supp. 902, 914 (D.Nebr.1974) (citations omitted) (emphasis in original), modified, 516 F.2d 846 (8th Cir.), cert. denied, 423 U.S. 870, 96 S.Ct. 134, 46 L.Ed.2d 100 (1975); see General Business Services v. Rouse, 495 F.Supp. 526, 534 (E.D.Pa. 1980) (primary inquiry in determining ownership of trademark is “what did the public perceive to be the legal entity standing behind the mark?”); Noone v. Banner Talent Associates, Inc., 398 F.Supp. 260, 263 (S.D.N.Y.1975); Distillers Brands v. American Distilling Co., 26 F.Supp. 988, 989 (S.D.N.Y.1938).

In Kingsmen v. K-Tel International Ltd., 557 F.Supp. 178 (S.D.N.Y.1983), the court enjoined defendants from using the name “The Kingsmen” to identify recordings performed by the original lead vocalist of the popular musical group, rather than by the five performers who “were known to the public as The Kingsmen.” Id. at 182. The court concluded that defendants’ labeling of their recordings would wrongly suggest to the public “that those persons known in the public consciousness as The Kingsmen assembled in a studio to rerecord ‘Louie, Louie’—an event that all parties agree did not occur.” Id.

I accept the magistrate’s conclusion that a similar confusion would result here if defendants were allowed to use the “NEW EDITION” mark. “The decisive question is not who manufactured the article sold under a given trademark, but which business or article is symbolized by it.” 3 Callmann, The Law of Unfair Competition Trademarks and Monopolies § 17.16 (4th ed. 1983). As the Magistrate concluded, therefore, defendants are not entitled to a preliminary injunction because they have failed to demonstrate a likelihood of success on the merits. Plaintiffs, on the other hand, have met the standards for the granting of preliminary injunctive relief, having established both likelihood of prevailing on the merits and irreparable injury.

Nonetheless, I find that plaintiffs are not entitled to the equitable relief they seek. I am guided by the ancient equitable maxim that “he who comes into equity must come with clean hands.” The ‘clean hands’ doctrine is an appropriate factor in determining whether a preliminary injunction should issue. See Playboy Enterprises v. Chuckleberry Publishing, 486 F.Supp. 414, 435 (S.D.N.Y.1980). The maxim “closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief.” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814, 65 S.Ct. 993, 997, 89 L.Ed. 1381 (1945). As the Supreme Court has recognized, although “ ‘equity does not demand that its suitors shall have led blameless lives’ as to other matters, it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue.” Id. at 814-15, 65 S.Ct. at (citations omitted); see Norton Co. v. Carborundum Co., 530 F.2d 435, 442 (1st Cir.1976).

Plaintiffs in the instant case come before this Court with unclean hands. In October 1982, the five plaintiffs, all infants, signed individual contracts with defendant Streetwise. These contracts unambiguously grant all rights in the name “NEW EDITION” to defendant Boston International Records. Plaintiffs make no claims that these contracts were the product of overreaching or unfairness. The terms of the contracts were arrived at after three weeks of negotiations, during which time plaintiffs were represented by two attorneys and two managers. A year later, in November 1983, after plaintiffs had become popular and successful, in large measure due to defendants’ efforts, plaintiffs disaffirmed their contracts with Streetwise. In February 1984, they signed a new contract with MCA Records.

It is clear, therefore, that but for their disaffirmance of their contracts with Streetwise, plaintiffs would have no claim to the New Edition mark. Having disclaimed all rights to the mark, plaintiffs now seek equitable relief to assure them exclusive use of the name. Although, as infants, plaintiffs may have the legal right to disaffirm their contracts, having done so, they cannot now seek the affirmative aid of a court of equity.

Carmen v. Fox Film Corporation, 269 Fed. 928 (2d Cir.1920), cert. denied, 255 U.S. 569, 41 S.Ct. 323, 65 L.Ed. 790 (1921) is directly on point. Plaintiff, an infant movie actress, repudiated her contract with defendants and signed a contract with a competitor, Keeney Corporation, having falsely informed the latter that she was free to accept employment. Upon learning of her previous contract and hoping to avoid litigation, Keeney Corporation agreed with defendant that it would not employ plaintiff until the rights of the parties were resolved. Plaintiff then brought suit seeking to enjoin defendant from asserting the validity of the contract. The court stated, in language fully applicable to the case at hand:

If the contracts with defendants were valid, she was under a legal and moral obligation not to make the contract with the Keeney corporation. And if the contracts were voidable because of her infancy, then, while she was under no legal obligation to recognize them, she was under a moral obligation to abide by them, and good faith required her to continue to render the services she had agreed to give. In either case her action in repudiating her pledged word was misconduct of which no person of honor and conscience would have been guilty. That no action could be brought against her at law because of what she did does not alter the moral character of her act. And when she comes into a court of conscience and asks its affirmative aid to assist her in carrying into effect the inequitable arrangement into which she unfaithfully entered, the appeal falls on deaf ears. One who comes into equity must come with clean hands, and her hands are not clean.

Id. at 931. See Cataphote Corp. v. Hudson, 422 F.2d 1290, 1295 (5th Cir.1970) (unclean hands doctrine may prevent protection of wrongfully obtained trade secrets).

Plaintiffs’ unclean hands bar them from receiving the equitable relief they seek. Defendants too are not entitled to injunctive relief for they have failed to show a likelihood of prevailing on the merits. Accordingly, both plaintiffs’ and defendants’ motions for a preliminary injunction are denied.

      . Defendants make no claim to the "NEW EDITION” trademark by virtue of their contracts with plaintiffs in this proceeding. The parties are litigating the validity of plaintiffs' disaffirmanee in state court. However this issue is resolved, plaintiffs' conduct was plainly inequitable, foreclosing equitable relief.


text:
    William BAIRD, et al. v. Francis X. BELLOTTI, et al.
    Civ. A. No. 74-4992-Z.
    United States District Court, D. Massachusetts.
    July 6, 1984.

      John Reinstein, Boston, Mass., for plaintiffs.
    John H. Henn, Scott C. Moriearty, Sandra L. Lynch, Foley, Hoag & Eliot, Boston, Mass., for defendants.
   MEMORANDUM OF DECISION

ZOBEL, District Judge.

This case and, in particular, the petition for attorneys’ fees under 42 U.S.C. § 1988 of plaintiff-intervenor, Planned Parenthood League of Massachusetts (“PPLM”), comes before me after a long history in both this court, 555 F.Supp. 579 (D.Mass.1982), and the Court of Appeals. That history has been fully recounted in opinions by both courts. Neither repetition nor further elucidation is necessary. It remains only to evaluate the services rendered by counsel for PPLM to establish the fee payable for such services and to award that fee. The parties are in agreement that the Court must first determine the lodestar figure, the reasonable number of hours spent multiplied by the reasonable hourly rate. That figure may then be increased or reduced to reflect particular relevant factors, such as the delay in payment and the contingent nature of any fee, the unpopularity of the cause, the quality of representation, and the results obtained. One factor, the Court of Appeals has in this case explicitly limited. Such discretion as this court has to reduce any fee for delay in filing the fee petition may be exercised only “to protect the defendant (or the Court itself) against possible adverse consequences attributable to plaintiffs original unreasonable delay should the court, on remand, actually identify such.” Baird v. Bellotti, 724 F.2d 1032 (1st Cir.1984).

Plaintiff-Intervenor’s fee request is properly divisible into two parts; one for time spent on defendants’ appeal to the Supreme Court of the United States; the other, for time spent on the fee petition itself. PPLM claims for a total of 880 hours for the first and 355.3 hours for the second. Because the considerations in determining an appropriate award are different for each of these two claims, I will address them seriatim.

The Appeal

The computer printouts of counsel’s time records and counsel’s affidavit show that the work on the appeal consisted of the preparation of a motion to affirm and a 28-page brief in support thereof, preparation of a 91-page brief on the merits and preparation for and delivery of oral argument to the Supreme Court. Of course, counsel did considerable work incidental to all of these tasks. Preparation of the brief required not only legal research but also reviewing, indexing, and analyzing the record of the case, somewhat in excess of 700 pages. It, of course, required careful proofreading and cite checking. Preparation for oral argument required not only review of the briefs of all parties and the authorities cited therein, but review of other relevant, even tangentially relevant, authority, as well as thinking about and rehearsing the oral presentation.

Although the total time claimed is equivalent to approximately one-third of one year’s billable time of one lawyer, the affidavits filed in support of PPLM’s petition unanimously attest that it is not an excessive amount of time to spend on an appeal to the Supreme Court. All but one of the affiants were unfamiliar with the particular issues of this case, but all stressed the special efforts generally attendant on Supreme Court briefs and appearances. Janet Benshoof, a staff attorney for the American Civil Liberties Union, who knows the instant case and has considerable experience with similar cases in lower courts and in the Supreme Court, stated that the time spent by petitioner’s counsel was not only reasonable but comparatively low. The fact that other lawyers in this proceeding, including counsel in the Attorney General’s office may have spent less time is, if not wholly irrelevant, certainly not decisive of the question of the reasonableness of petitioner’s hours. That difference is attributable, at least in part, to variations in the quality of the work product and the participation of other counsel in earlier stages of this proceeding and their consequent greater familiarity with it.

Defendants charge, specifically, substantial duplication of effort, numerous conferences and telephone conferences recorded by only one lawyer, and excessive time spent on particular tasks. My review of the time records and affidavits persuades me that, with minor exceptions, these charges are unfounded. Defendants should not be billed for the attendance at oral argument by four lawyers, and 14 hours will be deducted for the “extra” attendees. The time spent preparing for argument is, even granting that it was preparation for the Supreme Court, high, and I will deduct 50 hours from the time claimed. The hours remaining, 816, I find to be reasonable.

The hourly rates of the principal lawyers on the case during the greater part of the time period involved were $90.00, $65.00 and $50.00. Two other lawyers who provided occasional advice and assistance charged $110.00 and $70.00, respectively. The fee claimed is based on an average hourly rate of $73.86. Since Messrs. Henn and Starrett, with hourly rates of $90.00 and $110.00, respectively, account for nearly one-half of the total time spent, the rate claimed is less than the actual average and is certainly not inappropriate. PPLM’s counsel were even then experienced litigators and specialists in constitutional advocacy. The billing rates used, while perhaps high for sole practitioners, were well within the norm charged by large Boston firms at that time. Mr. Henn and Ms. Lynch, the principal lawyers, unquestionably enjoyed a deserved reputation for excellence. I find an hourly rate of $74.00 reasonable and appropriate. The lodestar figure, accordingly, is $60,384.

I further find that an upward adjustment of 30% is warranted. Not only did counsel produce a brief of the highest quality, but they did so under severe time constraints. Although PPLM was not the named plaintiff, PPLM did in fact assume the primary burden on plaintiffs’ side in the Supreme Court phase of these proceedings. The cause espoused by PPLM was one not met with universal approval and defendants do not dispute PPLM’s assertion that few, if any, of the major law firms in Boston would have been, indeed, were, willing to undertake its representation in this matter. Any fee for counsel in this case was, moreover, entirely contingent. To the extent they are relevant, I have already mentioned the other factors which bear on any adjustment upward of the lodestar.

The motion for an award of attorneys’ fees was filed eleven months after the Supreme Court’s decision in plaintiffs’ favor, and eight months after denial of defendants’ petition for rehearing. Defendants never filed an opposition to the motion, but they did move to dismiss, on the grounds of laches, two years after the filing of PPLM’s motion. While defendants claim prejudice because of PPLM’s delay, they point to no specifics to support their assertion. Moreover, the detailed response they ultimately filed belies their allegation. As I cannot identify any adverse consequences attributable to plaintiff-intervenor’s initial delay, no reduction of the fee on that account is warranted.

I award PPLM the sum of $78,500 for attorneys’ fees in connection with the appeal to the Supreme Court.

The Fee Petition

PPLM claims only eighteen hours for the preparation of the fee petition in 1980. The remaining time was spent partly in attempting to get resolution of the matter by the court, but primarily in responding to defendants’ motion to dismiss and objections. In view of the decision of the Court of Appeals denying the defense of laches as against PPLM, defendants do not now challenge PPLM’s entitlement to fees for time spent litigating the fees issues. The sole issue remaining is that of the reasonableness of the amount claimed.

The fee dispute ultimately involved memoranda and argument to the District Court, a request for rehearing, an appeal to the First Circuit, with full briefing and oral argument, and another round in the District Court following remand.

Counsel claim a total of approximately 350 hours in connection with that phase of the case, approximately 40% of the time spent on the Supreme Court phase. They arrived at the proposed lodestar of $41,000 by multiplying the total hours spent in each year by the then applicable hourly billing rate. The latter ranged from $40.00 per hour for a paralegal in 1982 to $160.00 per hour for Mr. Henn in 1984. The three stages of the fee petition, initial application and response to the motion to dismiss, appeal from denial of fees, and proceedings after remand, resulted in the expenditure of approximately 135, 140 and 75 hours, respectively. So viewed, the amount of time spent on each stage is not unreasonable. Five-sevenths of all of the time is attributable to the work of PPLM’s two principal lawyers, Mr. Henn and Ms. Lynch. The remaining time was spent largely by a first-year associate, a summer associate, and paralegal assistants.

The average hourly rate for the work of Mr. Henn and Ms. Lynch during the relevant period is approximately $140.00, and that of the junior associate, clerk and paralegal, approximately $65.00. I find that principal counsel on the fee petition should be compensated at an average hourly rate of no more than $115.00 per hour, and the others who worked on the petition, at an average rate of no more than $30.00 per hour. With these rates, I reach a lodestar of $32,325. Counsel have not requested an adjustment of this figure and none is appropriate.

PPLM also claims costs in the amount of $613.10, the amount remaining after payment or settlement of all other items of disbursement. It is entitled to recover that amount.

Judgment may enter, awarding a total fee of $110,825 to plaintiff-intervenor, Planned Parenthood League of Massachusetts, plus costs in the amount of $613.10.


author: EDWARD WEINFELD, District Judge.

text:
    TAT BA, Plaintiff, v. The CHASE MANHATTAN BANK, N.A. and Citibank, N.A., Defendants.
    No. 83 Civ. 9421 (EW).
    United States District Court, S.D. New York.
    Oct. 30, 1984.
    Evans, Koelzer, Osborne & Kreizman, New York City, for plaintiff; Joel Kreizman, New York City, of counsel.
    Milbank, Tweed, Hadley & McCloy, New York-City, for defendant The Chase Manhattan Bank, N.A.; Paul T. Shoemaker, New York City, of counsel.
    Shearman & Sterling, New York City, for defendant Citibank, N.A.; Jennifer Freeman, Rachel E. Deming, New York City, of counsel.
   OPINION

EDWARD WEINFELD, District Judge.

Defendants, The Chase Manhattan Bank, N.A. (“Chase”) and Citibank, N.A. (“Citibank”), move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint upon the ground that it is barred by the applicable statute of limitations.

The allegations of the complaint are deemed admitted for the purposes of this motion. Plaintiff, a citizen of the “former Republic of Vietnam” who now resides in the State of Washington, seeks to recover funds that he deposited in several accounts at the Saigon branches of Chase and Citibank in February and March 1975. Most of the accounts involved certificates of deposit that matured between May and June 1975. The deposits were in piastres, the currency of the Republic of Vietnam. The defendants assert, and the plaintiff does not contest, that Chase’s Saigon branch closed on April 24, 1975 and Citibank’s Saigon branch also closed in April 1975 (no specific date is given); that Saigon fell to Communist forces on April 30, 1975; and that the Communist government confiscated all funds on deposit in the banks on May 1. 1975.

Plaintiff left Vietnam in October 1976 for Malaysia, where he remained until September 1977 when Canada accepted him as a refugee; in September 1981 he moved to the Seattle, Washington area, his current residence. He has not been paid by the defendants, and on December 28, 1983 he commenced this action to recover the funds deposited at the defendants’ Saigon branches with interest from the dates of deposit. Thus, the action was commenced nearly nine years after the banks closed their Saigon branches and the Communist government confiscated the funds.

Jurisdiction is based upon diversity of citizenship and the federal banking laws. Since federal law provides no applicable statute of limitations, New York law governs the timeliness of this action. Under New York law, an action to recover bank deposits is one in contract and thus must be commenced within six years after the cause of action accrues. Thus, the critical issue is when plaintiff’s cause of action accrued. The parties are in agreement that as to bank deposits a depositor generally must make a demand for payment of his deposit before his cause of action accrues and the statute of limitations starts to run. However, the defendants rely upon an exception to this rule that applies in those instances when demand would be manifestly futile. They rely upon a series of cases applying New York law which in substance hold that when a demand for the return of a deposit would be manifestly futile, as in the instance of the closing of a branch bank and the seizure of its funds by a foreign government under conditions of war or revolution, demand need not be made in order to maintain an action to recover the deposit. Accordingly, defendants contend that plaintiff’s cause of action accrued when the Saigon branches were closed in April 1975 due to turbulent conditions followed by confiscation by the Communist regime of all funds on deposit at the branches; that since this action was commenced almost nine years after the closing of the branches and the seizure of the funds, of which plaintiff had knowledge, his claim is barred by New York’s six-year limitation period for breach of contract claims.

Plaintiff appears to contend that, although the defendants’ Saigon branches closed and the funds were seized by the Communist regime, the parent banks in the United States remained operative and therefore obligated to perform under the deposit contracts outside Vietnam; that his cause of action did not accrue until he received from the banks “an unequivocal indication that he may not obtain such performance”—that is, a refusal to return the deposits; and that whether the defendants’ responses to inquiries made by plaintiff in 1978 and 1982 about his accounts constitute “the requisite unequivocal repudiations]” is a factual issue that forecloses dismissal of the complaint. The defendants counter that unequivocal repudiation is not the only instance in which demand is excused, that, as the New York Court of Appeals has noted, “where the bank has disclaimed liability, or for any other reason the demand would manifestly be futile, none need be made.” Thus, they contend that in the instant case, when the Saigon branches were closed under turbulent or revolutionary conditions and branch funds were seized by a political entity, a demand by plaintiff in Saigon would have been manifestly futile and that the situation gave rise to an immediate cause of action for breach of contract in April 1975.

The issue here is whether the defendants breached the deposit contracts with plaintiff when they closed their Saigon branches under turbulent and revolutionary conditions with the prospect of imminent seizure of the deposits (which in fact occurred) by a political entity. If the closings under such circumstances entitled plaintiff to take immediate legal action against defendants to recover his deposits without a demand therefor, then his cause of action accrued at that time and must be dismissed as untimely, not having been commenced within six years after the Saigon branches closed. Although New York law does not definitively address this issue, the cases indicate that the closings under the attendant circumstances should be regarded as breaches of the deposit contracts and that such breaches 'start the limitation period without a demand.

The New York Court of Appeals explained the exception to the statutory demand requirement in Tillman v. Guaranty Trust Co. In that case, the depositor had inquired of the bank, without making a demand, about the status of the account, and the bank “in reply stated unequivocally that the plaintiff’s assignors had no valid claim to any deposit and that the defendant held no ‘balance’ at their disposal.” The Court of Appeals held that “[thereafter no demand was necessary to entitle the plaintiff’s assignors to maintain an action for the money on deposit,” and that “[b]y failure to make a demand which is unnecessary, a depositor cannot prevent the period of limitation from running against a cause of action which he is entitled to maintain without demand.” In sum, the depositor was entitled to sue and the limitation period ran without a demand because the bank had breached the deposit contract by its announced refusal to make payment.

Tillman focused on the legal effect of a repudiation, not a branch closing. Under the rationale of that case, however, a branch closing would also start the limitation period if the closing constituted a breach of the deposit contract. In an earlier case, Sokoloff v. National City Bank, the New York Court of Appeals indicated that the closing of a foreign branch where deposits are payable on demand is a breach of the deposit contract. Sokoloff involved a deposit account maintained at the defendant’s branch in Petrograd, Russia, which ceased operation when it was seized by the new Soviet government in 1918. The court held that the depositor was entitled to maintain an action to recover the deposits against the parent bank without having made a demand for payment at the Petrograd branch. In so holding, the court stated:

The contract between Sokoloff and the bank was to pay rubles at the Petrograd Branch whenever he demanded them. They were to be held there, under contract, on his call. Should the bank fail to meet the depositor’s demand in Petrograd up to the limit of the deposit, the contract would be broken. When the bank ceased to do business so that Sokoloff, who wanted his money, could not make a demand and could not draw upon his account, the contract was broken.

The court then held that damages in that action, which the depositor had elected to treat as one for breach of contract, would be measured as of September 1,1918, when the Petrograd branch ceased to function.

Sokoloff does not completely dispose of the instant case. The Court of Appeals did not state that demand was excused specifically because the closing breached the deposit contract. Rather, the court stated:

The fact that the bank had gone out of business on that date made a demand useless and unnecessary; the law by reason of the contract between the parties will consider the case as if a demand had been made. In other words, that which becomes impossible and useless ceases to be required by the law in cases like this.

The clear tenor of this language is that demand was excused because it would have served no useful purpose. This rationale raises the question whether demand was also excused at the bank’s home office, which was functioning and at which demand would not have been futile in a practical sense. Because timeliness was not at issue, there was no need for the court to consider whether demand was still required at the bank’s home office and, if so, whether such a demand or the branch closing would start the limitation period. Thus, it could be argued that the closing breached the deposit contract for purposes of measuring damages but did not itself give rise to a cause of action against the parent bank absent a demand upon and refusal by the parent bank.

This argument appears to be foreclosed by Richard v. National City Bank, In that case, plaintiffs commenced an action in New York to recover deposits made at the defendant’s Petrograd branch before it closed in 1918. No demand had been made, either in Petrograd or New York; indeed, the first time the defendant knew that plaintiffs desired payment was when the suit was begun in 1924. Plaintiffs’ right to maintain the action without a demand upon the parent bank was not at issue. However, with regard to the measure of damages, the defendant argued, inter alia, that “in the absence of any demand other than the bringing of the suit, the value of the ruble deposit must be estimated, not at the time the Petrograd branch was closed, but at the time when suit was brought.” The court rejected the argument without discussion, stating that “the plaintiffs are entitled to the value of rubles at the time and place of the breach, which was Petrograd, on the 1st day of September, 1918, when the Petrograd branch was closed.”

After a branch closing of the kind that occurred in Sokoloff and Richard, and the instant case, a depositor’s right to relief by action against the parent bank is complete without a demand of any kind at any location. Under the rule in Tillman, therefore, such a closing also starts the limitation period. Judge Haight of this district court recently reached this conclusion in Ngoc Dung Thi Tran v. Citibank, which also involved deposits made at Citibank’s Saigon branch shortly before it closed in April 1975. Acknowledging that Citibank, unlike the bank in Tillman, had not “proclaimed] a flat refusal to pay plaintiff,” Judge Haight stated:

Within the context of the statute of limitations, there is no difference between a disclaimer of deposit and the closing of the branch in which a deposit was maintained. Both events breach the bank’s contract. Both do away with the necessity for a demand. Both give rise to an immediate cause of action.

Judge Haight dismissed the action because it had not been commenced within six years after the Saigon branch had closed.

Vishipco Line v. Chase Manhattan Bank and Garcia v. Chase Manhattan Bank, cited by plaintiff, do not require a different result. In Vishipco Line, which also involved deposits made at the bank’s Saigon branch, our Court of Appeals held that a parent bank is ultimately liable on the deposit contracts made by its foreign branches. The issue of ultimate liability on a deposit contract should not be confused, however, with that of when a breach of the contract occurs and a claim thereunder accrues. That a parent bank remains liable for deposits made at a branch bank after the branch bank has closed and its funds have been seized does not address the issue of when the deposit contract was breached and a cause of action to recover the deposits accrued. In Garcia, a depositor had inquired of the parent bank about her account at the bank’s Vedado, Cuba branch, which had closed after Fidel Castro came to power in 1959. Our Court of Appeals held that the parent bank’s response to the inquiry was not an unequivocal repudiation of the deposit contract as a matter of law and that the limitation period therefore had not started to run without a demand. Whether the branch closing had excused demand and started the limitation - period sooner was not before the court.

Because plaintiff failed to commence this action within six years after the defendants’ Saigon branches closed and his deposit contracts were breached, this action is time-barred under New York law. The defendants’ motion to dismiss the complaint is granted.

So ordered.

      . Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969).

      . 28 U.S.C. § 1332(a) (1983).

      . 12 U.S.C. § 632 (1983).

      . See Garcia v. Chase Manhattan Bank, 735 F.2d 645, 648 n. 2 (2d Cir.1984). New York’s "borrowing statute” provides that an action by a nonresident must be timely under both the law of New York and the law of the place where the cause of action accrued, if other than New York. N.Y.Civ.Prac.Law § 202 (McKinney 1972). Because the Court finds that plaintiffs action is time-barred under the applicable New York statute of limitations, Vietnamese law need not be considered.

      . See Sokoloff v. National City Bank, 250 N.Y. 69, 81, 164 N.E. 745, 749 (1928); Delahunty v. Central Nat'l Bank, 37 A.D. 434, 436, 56 N.Y.S. 39, 40 (1st Dep’t 1899).

      . N.Y.Civ.Prac.Law § 203(a); 213(2) (McKinney 1972 & Supp.1983).

      . N.Y.Civ.Prac.Law § 206(a)(2) (McKinney 1972); N.Y.U.C.C. § 3-122(2) (McKinney 1964).

      . See Vishipco Line v. Chase Manhattan Bank, 660 F.2d 854, 864-65 (2d Cir.1981), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982); Ngoc Dung Thi Tran v. Citibank, 586 F.Supp. 203, 205 (S.D.N.Y.1983); Sokoloff, 250 N.Y. at 80, 164 N.E. at 749.

      . An affidavit submitted by plaintiff in opposition to the motion indicates that starting in March 1978 he wrote a number of letters to Chase in New York inquiring about "any possibilities of claiming my deposits at your Saigon branch.” Chase responded by letter dated June 21, 1978: "Because the Chase has had no control over the Branch for three years, we cannot arrange for liquidation of the accounts. The deposit liabilities are, of course, those of the Branch, which is still subject to the laws of Viet-Nam.” In January 1982, plaintiff, then a resident of the State of Washington, again wrote to Chase in New York and inquired “regarding any chance of recover [sic] my deposit.” Chase responded that "the Chase Saigon branch was confiscated in 1975 by the new government of Vietnam” and that "the central bank in Vietnam is the sole banking enterprise in that country and is operating the banking business formerly conducted by private banks” and suggested that plaintiff direct his inquiries about his account to that entity. In August 1982, plaintiff wrote to Citibank’s Portland, Oregon branch ”ask[ing] your favor to let me have the money back,” but Citibank’s New York office responded the following month that it could do nothing to help him. In September 1982, he sought to enlist the assistance of the United States Treasury Department in the recovery of his deposits, but in November 1982 the Department suggested that he contact the National Bank of Vietnam. This he had already tried and had received no reply. Finally, approximately one year later, plaintiff commenced this action against the banks.

      . Sokoloff, 250 N.Y. at 80, 164 N.E. at 749 (emphasis added).

      . See Tran, 586 F.Supp. at 206.

      . 253 N.Y. 295, 171 N.E. 61 (1930) (per curiam).

      . Id. at 297, 171 N.E. at 61.

      . Id., 171 N.E. at 61, 62.

      . 250 N.Y. 69, 164 N.E. 745 (1928).

      . Id. at 81, 164 N.E. at 749 (citation omitted).

      . Id. at 81-82, 164 N.E. at 750.

      . Id. at 80, 164 N.E. at 749.

      . 231 A.D. 559, 248 N.Y.S. 113 (1st Dep't 1931); see United States v. First Nat’l City Bank, 379 U.S. 378, 405 & n. 27, 85 S.Ct. 528, 542 & n. 27, 13 L.Ed.2d 365 (1965) (Harlan, J., dissenting) ("The bank account is a contract for payment on demand at the Montevideo [Uruguay] branch. If demand were wrongfully refused, a cause of action for breach of contract would be created on which [the depositor] could sue in New York [the home office]. Thus, analytically, it is not the account itself which would become payable in New York, but damages for breach of the contract to pay on demand in Montevideo.”); United States v. First Nat’l City Bank, 321 F.2d 14, 20 (2d Cir.1963) "[I]f the branch be closed or if demand for payment is refused at the branch, an action against the main office will lie.”), rev'd on other grounds, 379 U.S. 378, 85 S.Ct. 528, 13 L.Ed.2d 365 (1965).

      . Id. 231 A.D. at 567, 248 N.Y.S. at 121, 122 (McAvoy, J., dissenting).

      . Id. at 560, 248 N.Y.S. at 114.

      . Id. at 565-66, 248 N.Y.S. at 120 (emphasis in original).

      . 586 F.Supp. 203 (S.D.N.Y.1983).

      . Id. at 205, 206 (footnote omitted).

      . 660 F.2d 854 (2d Cir.1981), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982).

      . 735 F.2d 645 (2d Cir.1984).

      . See Vishipco Line, 660 F.2d at 863-64.

      . See Garcia, 735 F.2d at 648-49.


text:
    Robert P. OSBORNE, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE and Federal Bureau of Investigation, Defendants.
    No. 84 Civ. 4988 (EW).
    United States District Court, S.D. New York.
    Oct. 31, 1984.
    Robert P. Osborne, pro se.
    Rudolph W. Giuliani, U.S. Atty. for S.D. of New York, New York City, for defendants (Amy Rothstein, Asst. U.S. Atty., New York City, of counsel).
   OPINION

EDWARD WEINFELD, District Judge.

Upon plaintiff’s initial application to the New York Office of the Federal Bureau of Investigation (“FBI”) for disclosure of documents pertaining to him for the period February 1 to April 1, 1983, under the Freedom of Information Act (“FOIA”) and the Privacy Act of 1974, the FBI, after a search pursuant to its established internal procedure, asserted that it had no records pertaining to plaintiff. The FBI and its codefendant, the United States Department of Justice, then moved for summary judgment pursuant to Fed.R.Civ.P. 56(b). As a result of information set forth in plaintiff’s papers in opposition to the motion which indicated that a document had previously been furnished by the FBI to plaintiff’s former attorney in connection with another proceeding, the FBI made a further search of its files and located a file containing documents that mentioned plaintiff. One such document, a record of plaintiff’s interview with a special agent of the FBI, has been released to plaintiff but the balance of the material in the file has been withheld based upon the FOIA exemption for material related to a continuing investigation. Defendants state that upon the conclusion of that investigation any new FOIA requests by plaintiff will be newly evaluated. Defendants assert that an inadvertent clerical error prevented them from locating the requested material until plaintiff provided further information which, as noted above, led to the location of the documents and the release of the one item referred to above.

The plaintiff opposes defendants’ motion for summary judgment and cross-moves for summary judgment upon an allegation made in his complaint and now repeated that defendants’ initial statements that documents pertaining to plaintiff do not exist were false. However, plaintiff provides not the slightest evidential matter to support a claim that there still exist undisclosed documents pertaining to him other than those that the FBI recently acknowledged to have located. In the face of defendants’ motion for summary judgment, supported by a sworn statement that the FBI conducted a new search of its files, located certain documents pertaining to plaintiff, and released one of them to him, plaintiff is required under Fed.R.Civ.P. 56(e) to set forth specific facts showing that there is a genuine issue of material fact for trial or face dismissal. A party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him. In addition, if plaintiff now means to allege that the FBI has improperly claimed an FOIA exemption with regard to the documents it has located, then his proper course is to appeal the FBI’s claim to the Attorney General. Until plaintiff does so, he may not seek relief from the Court.

Accordingly, defendants’ motion for summary judgment is granted and plaintiff’s cross-motion for summary judgment is denied.

So ordered.

      . 5 U.S.C. § 552 (1983).

      . 5 U.S.C. § 552a (1983).

      . See 5 U.S.C. § 552(b)(7) (1983).

      . See Wyler v. United States, 725 F.2d 156, 160 (2d Cir.1983).

      . See First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968).

      . 5 U.S.C. § 552(a)(6)(A) (1983); 28 C.F.R. § 16.7 (1983).

      . See Rivera v. Ford, 440 F.Supp. 732, 734 (D.P. R.1977); Morpurgo v. Board of Higher Educ., 423 F.Supp. 704, 714 n. 26 (S.D.N.Y.1976).


author: DITTER, District Judge.

text:
    UNITED STATES of America v. Vincent FLETCHER.
    Crim. No. 84-00170.
    United States District Court, E.D. Pennsylvania.
    Feb. 1, 1985.

      Edward S.G. Dennis, Jr., U.S. Atty., Amy L. Kurland, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.
    Willis W. Berry, Jr., Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

DITTER, District Judge.

On June 1, 1983, defendant was indicted for various drug-related offenses. After extensive pre-trial proceedings, and on the eve of trial, this indictment was withdrawn by the government. On April 16, 1984, defendant was reindicted for essentially the same conduct alleged in the prior indictment. On April 17, 1984, defendant, with counsel, appeared before Magistrate Hall and was released on $25,000 unsecured bond. Trial commenced on May 18, 1984, and on May 23, 1984, the jury returned a guilty verdict on five counts and a not guilty verdict on one count. Presently before me is defendant’s motion for a new trial or arrest of judgment.

Defendant first contends a new trial is warranted because evidence of other offenses was allowed. While counsel has not cited any specific incident, I have reviewed the record and found two occasions where the word “cocaine” was mentioned. In both instances the government’s paid informant was explaining his conversations with the defendant, conversations which were tape recorded, admitted into evidence, and played to the jury. Because these conversations were in coded language, the testimony, which in essence explained that certain words were intended to refer to cocaine, was necessary to explain what was being said. Furthermore, this testimony was necessary to put the taped conversations into perspective. See T.R. 334-36. For these reasons, I concluded the probative value of the testimony far outweighed any prejudice to the defendant. There was no error.

’ Defendant next asserts that jury selection was “impeded” because his counsel was not allowed to ask proper questions. Defendant has not enumerated those questions he was not allowed to ask but I recall much being made of my refusal to question prospective jurors as to “whether or not they would necessarily believe the testimony of a police officer or FBI agent simply because he is a police officer or FBI agent.” T.R. 83. I rejected the question because it is manifest nonsense to ask people how they will react to undescribed testimony about unstated matters in an unknown context given in an undisclosed way by a vague category of unseen witnesses.

The question is akin to the equally unanswerable query: would you believe the testimony of a policeman over that of someone who is not a policeman? Again, it is meaningless to ask prospective jurors to speculate as to how they would compare a vague something (all policemen, most policemen, or a specific policeman, no matter what is said) to an unknown nothing (everyone else, no matter who they are or what they say) where the only limit is the breadth of the veniremen’s imagination. For example, a thoughtful venireman in contemplating a response might canvas the entire universe of all “nonpolicemen.” In so doing he would surely think of someone he would believe more than some unknown, unseen policeman: a priest, parent, or paragon. Conversely, an equally thoughtful venireman, in contemplating his response, might not think of those he trusts most, but those he trusts least, a punk, perjurer, or procurer. Both potential jurors may possess the same objectivity or prejudice, but because of the overgenerality of the question and the concomitant divergence in comparisons, each may give a different response.'

Moreover, as I fully explained to counsel at the time I refused to engage in voir dire on this issue, the context of testimony is critical. The weight to be given any witness cannot, and should not, be preordained until he has testified and the jurors have had a chance not only to observe him but to compare his testimony to all the other evidence. It is this very principle which prompts trial judges to instruct jurors not to make decisions, including decisions as to credibility, until they hear all the evidence, the arguments of counsel, and the court’s instructions as to the law. In fact, such an instruction was given in this case at the request of defense counsel. T.R. 187-90.

Not surprisingly, courts have held it not to be an abuse of discretion to refuse to question prospective jurors about the weight they will give the testimony of a law enforcement officer, as opposed to the testimony of an ordinary citizen. United States v. Vadino, 680 F.2d 1329, 1336-37 (11th Cir.1982) (citing United States v. Jackson, 448 F.2d 539, 542-43 (5th Cir. 1971), cert. denied, 404 U.S. 1063, 92 S.Ct. 750, 30 L.Ed.2d 775 (1972)), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983); United States v. Gassaway, 456 F.2d 624, 625-26 (5th Cir.1972); Ross v. United States, 374 F.2d 97, 104-06 (8th Cir.1967). This is not to say, however, that there is unanimous agreement on the point, and the desirability of asking a question like that requested by counsel has been acknowledged, albeit without analysis, by a jurist no less than the Honorable Warren E. Burger when he was a court of appeals judge. See Brown v. United States, 338 F. 2d 543 (D.C.Cir.1964). However, even under the standard used in Brown, a new trial is not warranted in this case because the most incriminating evidence came, not from police officers, but from wiretaps and the testimony of an informant whose credibility was fully explored on cross-examination. See id. at 545 (“The issue turns on the degree of impact which the testimony in question would be likely to have had on the jury and what part such testimony played in the case as a whole.”). My refusal to ask the question as phrased by defense counsel was entirely proper.

Defendant’s third ground for a new trial contends he was not allowed to present his case to the jury. While counsel has not explained what he means by this assertion, I assume he is challenging my refusal to continue the trial for a week to afford defendant additional time to procure the presence of three witnesses. This is what occurred. Certain incriminating evidence had been found in the attic of the building where the defendant lived. Defendant introduced evidence to show that the room in question was occupied by another man and that he, the defendant, lived on the third floor of the building. At approximately 12:15 on the fourth day of trial, Tuesday, May 22, 1984, defense counsel asked that we recess for lunch so that defendant’s state parole officer, John Lonergan, could be afforded an opportunity to testify he visited defendant on the third floor, not the attic where the evidence was found. Lonergan had not been subpoenaed and defense counsel explained that his client “claims he may be able to get ahold of him during the lunch break maybe and get him down here.” T.R. 544. I granted defense counsel’s request and court was recessed until 1:30 p.m.

When court resumed, defense counsel said for the first time he also wanted an opportunity to subpoena Bell Telephone Company records which would show the defendant’s address to be on the third floor of the building. I refused a recess for that purpose but said we would wait another half hour for Lonergan.

At 2:08 when court resumed, Lonergan had not appeared but another half hour was used in ruling on defense counsel’s points for charge. Significantly, defense counsel, at this point, confirmed he had not interviewed Lonergan and did not know what he would say, except for what the defendant had told him, that is, Lonergan had visited defendant on the third floor. T.R. 564. As to this fact, however, the government was willing to stipulate. T.R. 557-58. There was no indication that Mr. Lonergan would testify that the third floor apartment was the defendant’s residence, and this was the testimony defendant really wanted. See id.

At this time defense counsel stated he also wanted to call Tracey Caldwell, the wife of a government witness, who would “hopefully” impeach his credibility. T.R. 558. Counsel admitted he personally did not have the “slightest idea” of what she would say, having never talked with her and having never subpoenaed her. Counsel’s only information had come to him “indirectly.” The defendant had never talked to Mrs. Caldwell either. T.R. 561. However, the FBI had interviewed Mrs. Caldwell and the assistant United States attorney stated that Mrs. Caldwell would not testify in the manner the defendant had suggested. T.R. 559. At that point, we had waited, at defense counsel’s request, for more than two hours. Defense counsel asked that the trial be continued until the following Monday. T.R. 559. I refused to do so.

Where a continuance has been requested to afford an opportunity to interview and subpoena potential witnesses, the following general rule has been stated:

A movant must show that due diligence has been exercised to obtain the attendance of the witness, that substantial favorable testimony would be tendered by the witness, that the witness is available and willing to testify, and that the denial of a continuance would materially prejudice the defendant.

United States v. Uptain, 531 F.2d 1281, 1287 (5th Cir.1976). Based on those standards, it is obvious that the continuance was not warranted. There was no showing of due diligence, no showing that there would be favorable testimony tendered by a witness, and no showing that the denial of the continuance would materially prejudice the defendant. My refusal of defendant's request for a week’s continuance was entirely proper.

Defendant’s fourth assertion of error challenges the admission of wiretaps into evidence. A specific reason for the nonadmissibility is not cited, and I remain convinced that my original decision to admit these wiretaps was correct. T.R. at 11-19. See, e.g., United States v. Baynes, 400 F.Supp. 285 (E.D.Pa.), aff’d, 517 F.2d 1399 (3d Cir.1975). Absent a more specific objection by defendant, I am unable to elaborate further on this point.

Defendant next assigns error to my permitting the jury to use transcripts of wiretaps and consent recordings. However, each time transcripts were used I gave the proper cautionary instruction. See, e.g., T.R. 243-45. In addition, the transcripts were collected whenever the tape recordings were not being played. See, e.g., T.R. 254. Finally, while there was initially some disagreement concerning the accuracy of certain parts of transcripts, T.R. 46-47; 204-06, defense counsel eventually prevailed in having the transcripts changed to reflect his version of the tape recorded conversations. T.R. 230-41. For these reasons there was no error in the use of transcripts. See United States v. Bryant, 480 F.2d 785 (2d Cir.1973); United States v. Lawson, 347 F.Supp. 144, 148-50 (E.D.Pa.1972).

Next, defendant asserts it was error to permit Agent Hershowitz “to give his opinion to the jury.” It appears defendant is challenging the admission of the agent’s opinion as to the coded language obtained by the wiretaps. However, because Agent Hershowitz was qualified as an expert on drug terminology, T.R. 207-20, admission of his opinion was entirely proper. See United States v. Smith, 519 F.2d 516 (9th Cir.1975).

Defendant’s seventh ground for a new trial is based on my refusal to give three of his requested points for charge. However, for the reasons that appear on the record, these points were properly refused. See T.R. 548-57. As to instruction 1710, a fourth instruction, the propriety of which was discussed, I deferred ruling and defense counsel never renewed his request T.R. 552. However, even if defendant had pressed the issue, I would have refused the instruction because there was no evidence of record addressing the “general reputation of the witness[es] for truth and veracity ... in the community where the witness now resides.” See Id.

Finally, defendant asserts the verdict was contrary to law. I am, however, firmly convinced the verdict was entirely proper.

For all the above reasons, defendant’s motion for arrest of judgment or in lieu thereof to grant a new trial must be denied.

      . It has been held that it is not error to refuse to ask verniremen hypothetical questions when the purpose is to have the jurors state in advance what their decisions will be under a certain state of the evidence. Commonwealth v. Moon, 389 Pa. 304, 132 A.2d 224, cert. dismissed 355 U.S. 908, 78 S.Ct. 335, 2 L.Ed.2d 270 (1957). However, I did say I would ask the prospective jurors a rephrased version of counsel’s proposed question, but he refused my offer. T.R. 85-86.

        . The question I did ask was:
      Would any of you be more apt to believe a witness just because he or she testifies on behalf of the Government than if that same witness testified on behalf of the defense? And, conversely, would any of you be more apt to believe a witness just because he or she testified on behalf of the defense than if that same person was to testify on behalf of the Government? The question simply is, would you be more apt to believe a person depending on which side happened to call that witness to testify?
      T.R. 79.

      . This ground for a continuance was subsequently rendered moot by the government’s agreement to stipulate to this testimony. T.R. 557 & 566.