author: CARL 0. BUE, Jr., District Judge.

text:
    Lawrence R. ALBERTI, et al. v. Johnny KLEVENHAGEN, Sheriff of Harris County, Texas, et al.
    Civ. A. No. 72-H-1094.
    United States District Court, S.D. Texas, Houston Division.
    April 10, 1985.

      Jim Oitzinger, Houston, Tex., for plaintiffs.
    Roderick Lawrence, Asst. County Atty., Houston, Tex., atty. for defendants Commissioners Court.
    Ray Speece, Asst. Dist. Atty., Houston, Tex., for defendant Sheriff Klevenhagen.
   ORDER

CARL 0. BUE, Jr., District Judge.

On December 18, 1984, after listening in two separate hearings to nine days of testimony and reviewing scores of documents, this Court issued an Order (“the December 1984 Order”) directing the defendants to hire and train additional deputies and sergeants for actual guard duty on the housing floors of the Harris County Jails in order to correct the existing constitutional deficiencies prevailing therein. The functions and assignments of utility deputies, recreation deputies, deputies necessary to meet the shift relief factor, or deputies involved in other miscellaneous duties, both on and off of the jail premises, were outside the scope of the Court’s Order as those issues did not directly impinge upon the actual safety of the inmates on a given floor and were thus better left to the administrative discretion of the sheriff. Moreover, the Court recognized its judicial limits when fashioning a remedy, considered carefully the testimony of four highly qualified outside penological experts, and adopted a staffing plan designed solely to accomplish the goal of eradicating or at least minimizing unsafe living conditions for inmates within the Harris County Jails which conditions under the law constitute cruel and unusual punishment.

Now, some two months later, the defendants reappear, not to seek a modification of the Court’s plan or of the time limits within which it is to be implemented, but rather to stay its execution entirely until the appeal process is completed. Not unexpectedly, plaintiffs, along with their memorandum in opposition to defendants’ motions to stay, also have filed their motion for contempt for failure to comply with the Court’s December 1984 Order. Having carefully reviewed the arguments and submissions of counsel in these matters, the Court is abundantly aware of the applicable law when a stay is requested, as well as defendants’ actions in responding to the December 1984 Order. Thus, it needs little time to reach its decision that the motions to stay should be denied in all respects and that an order directing defendants to answer why they should not be held in contempt should be issued at once.

I.

The Fifth Circuit has reviewed many times the criteria to be applied in determining whether a court should stay an injunction pending appeal. So well-established in this circuit as to be a rubric, the criteria required to be established by the movant are as follows:

(1) whether the movant has made a showing of likelihood of success on the merits;
(2) whether the movant has made a showing of irreparable injury if the stay is not granted;
(3) whether the granting of the stay would substantially harm the other parties; and
(4) whether the granting of the stay would serve the public interest.

Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (per curiam) (citing cases). However, “on motions for stay pending appeal the movant need not always show a ‘probability’ of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.” Id. Nonetheless, “[ljikelihood of success remains a prerequisite in the usual case even if it is not an invariable requirement. Only ‘if the balance of equities (i.e. consideration of the other three factors) is ... heavily tilted in the movant’s favor’ ” will a stay be issued in its absence, “and, even then, the issue must be one with patent substantial merit.” Ruiz v. Estelle, 666 F.2d 854, 857 (5th Cir.1982), quoting, Ruiz, 650 F.2d at 565-66. Guided by these principles, the Court considers defendants’ present motions.

II.

Likelihood of Success on the Merits

In this circuit, the threshold question to be answered when determining whether a federal court may interject itself into the administration of a jail facility is “whether the totality of the circumstances violates ‘contemporary standards of decency’,” thus constituting cruel and unusual punishment. Sampson v. King, 693 F.2d 566, 568-569 (5th Cir.1982) (citations omitted). If that question is answered in the affirmative, then a federal court has both the power and the duty to intervene. Smith v. Sullivan, 611 F.2d 1039, 1044 (5th Cir.1980). However, despite the clear authority of a federal court to intervene to prevent further constitutional deprivations, a court is limited when fashioning a remedy: “[t]he remedy must be designed to accomplish that goal [of eradicating cruel and unusual punishment], not to exercise judicial power for the attainment of what we as individuals might like to see accomplished in the way of ideal prison conditions.” Taylor v. Sterrett, 600 F.2d 1135, 1141 (5th Cir.1979) (quoting Newman v. Alabama, 559 F.2d 283, 287 (5th Cir.1977), modified, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114, cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1144 (1978)). It was with these considerations in mind that the Court analyzed the testimony of witnesses, the scores of exhibits, and the arguments and submissions of counsel; it was with these considerations in mind that the Court determined which course of action to follow.

The December 1984 Order requires that defendants maintain a specified minimum staffing plan within sixty (60) days of its issuance. Alberti v. Sheriff of Harris County, Texas, 600 F.Supp. 443, 461-463 (S.D.Tex.1984). Simply stated, the Court’s plan, arrived at after careful consideration of all of the evidence presented, requires that two guards per quadrant and one guard in “the picket” be present at all times on the housing floors in the central jail, each of which is an acre and a quarter in size, as well as the detention center during the day and evening watches. The Order requires also that the deputies visit the inmate cells at a frequency of no less than once per hour. Id. at 462. However, as stated earlier, the Court’s plan did not address the use of utility deputies, recreation deputies, deputies necessary to meet the shift relief factor, or deputies involved in other miscellaneous duties, as the Court believed that these issues were better left to the Sheriff’s administrative discretion.

Apart from the enormous areas to be patrolled and the large number of inmates to be supervised, there were several reasons why the Court concluded that two guards per quadrant constituted the minimum number of guards required to meet Constitutional muster. First, the Court had no difficulty in determining from the evidence that a high level of violence existed in the jails. Id. at 460. The inmates’ testimony, corroborated in large measure by the expert witnesses of both parties, established that the violence in the jails was widespread and will likely increase as the jail population approaches capacity, that there was a high degree of inmate control within the housing units, and that the existing plan and supervisory regulations were insufficient to protect adequately the inmates personal safety. Id. at 450, 452-455. In addition, the inmates and experts testified that the electronic call-button system was an ineffective and ineffident substitute for human surveillance. Id. at 451, 453, 454, 456.

Moreover, to the Court’s surprise and dismay, all experts uniformly agreed that the physical design of the new jail from a security point of view was one of the poorest that they had ever seen. Id. at 451, 452, 454, 455. In short, the physical design contains so many blind spots and routinely unobservable areas that the officers’ ability to supervise the inmates on a continuing basis is ineffective. Id. In addition, the cell configuration contains a mix of dormitories, multiple occupancy cells and single cells. Id. at 451. Consequently, in order to check the well being of the people in the cells, the officers must physically go into the cell areas. Id. at 451, 452, 455. Finally, Mr. Buchanan, the classification expert, testified that all levels of security risk inmates were assigned to each floor, thus making it impossible to staff the floors on a security classification basis. Id. at 451.

It was the Court’s conclusion that the high level of violence, sexual assault, and inmate control could not be attributed to one source. Rather, inadequate staffing levels, inadequate supervisory techniques, a poor physical design, and an unreliable communications system all contributed to the problems found in both facilities. Id. at 457. Thus, the Court concluded that the sum total of all of those acts and practices resulted in deprivations of the rights of inmates to a safe and suitable place of incarceration and thereby constituted a violation of the Eighth Amendment.

Second, when formulating an appropriate plan, the Court was forced to abandon its prior order (“the May 1983 Order”) to which defendants had agreed which required the implementation of a one-to-forty-five (1:45) ratio. Id. at 459-460. All parties criticized the use of a strict state-wide ratio that applied to jails of all sizes and designs and contended that most experts in the penological field now prefer staffing plans based on “post” assignments rather than ratios. Id. at 452, 454, 456, 459. Accordingly, both defendants’ and plaintiffs’ experts submitted proposed staffing plans based upon a post assignment theory.

The state’s own regulatory body for jails, the Texas Commission on Jail Standards (“Commission”), although previously relied on heavily by the Court, was now of dubious assistance in formulating an appropriate staffing plan. First, their newly adopted jail standard, restructured at the instance of defendants’ efforts before the Commission, contained no meaningful guideline from which to formulate a minimum staffing plan. Second, had it relied on the state standard as it presently exists, the Court would be left to review whatever staffing plan the defendants' had successfully lobbied the Commission to approve. After reviewing the transcripts of the proceedings before the Commission in which the standard was amended, the Court had serious doubts as to the capacity of that body to maintain its required objectivity in the face of the political pressures of Harris County. Id. at 460. Accordingly, the Court was persuaded that it must look elsewhere and that the fashioning of an appropriate staffing plan to meet constitutional standards must be based largely on the testimony of the outside jail experts.

Thirdly, when comparing the plans proposed by the experts, the Court concluded that one guard per quadrant, as proffered by defendants’ expert, Mr. Norman R. Cox, was inadequate. As stated previously, the evidence at the hearings clearly established that actual entry into and touring of the dayrooms is the only way guards can see into the sleeping cells. In addition, for a guard to safely make regular rounds into the dayrooms, he must have a back-up guard in the security vestibule. Finally, the defendants base their recommendation, in part, upon the implementation of a “racking out” procedure which this Court found counter-productive to achieving the goal of reduced violence among inmates. Id. at 456, 461.

Reluctantly injecting itself further into the area of jail administration, the Court ordered that deputies visit the inmate cells at a frequency of no less than once per hour. Id. at 462. While plaintiffs’ experts recommended a higher frequency, both the Minimum Jail Standards as they now exist as well as the Sheriff’s post orders of July 9, 1984, provide for “a full and complete inspection of each cellblock” “at a frequency not less than hourly.” Id. at 449, 455, 456 n. 8. Notwithstanding the require-merits of the state or of defendants’ own post orders, the testimony indicated clearly that the officers at the jails now make a visual inspection of the cells no more than twice per eight (8) hour shift. Indeed, it is the position of defendants then and now that more frequent “intrusions” would result in a decrease in privacy of the inmates and a consequent increased level of tension. Nonetheless, “the great weight of credible evidence at the hearing demonstrated clearly that there is a lack of adequate inmate supervision by the deputies, and that such lack of supervision is a causative factor in the level of inmate control and violence in the jails.” Id. at 462.

Thus, despite its clear authority to become involved in the present staffing problems of the jails in light of the totality of conditions therein, the Court carefully limited itself in fashioning an appropriate remedy to the main objective of achieving safe living conditions for inmates by eradicating conditions constituting cruel and unusual punishment. A number of courts have condemned as unconstitutional similar unsafe prison environments which resulted from the lack of sufficient security staffing and have subsequently ordered increases in staffing and supervision. See Smith v. Sullivan, 553 F.2d 373, 374 (5th Cir.1977) (jail guard visit each inmate-occupied area once an hour and one non-inmate guard present on each floor at all times); Williams v. Edwards, 547 F.2d 1206, 1213 (5th Cir.1977) (two guards in open dormitories at all times); Gates v. Collier, 501 F.2d 1291, 1309 (5th Cir.1974) (three guards in each barracks during nighttime hours); Pugh v. Locke, 406 F.Supp. 318, 333 (M.D.Ala.1976) aff'd sub nom Newman v. Alabama, 559 F.2d at 283 (one guard inside and one outside each living unit at all times); Jones v. Metzger, 456 F.2d 854 at 855 (6th Cir.1972) (re-assignment of the sheriff’s employees to provide more guards in the jail.) See also Ruiz v. Estelle, 503 F.Supp. 1265, 1303-07 (S.D.Tex.1980), aff'd in relevant part, 679 F.2d 1115 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983); Vest v. Lubbock Cty. Commissioners Court, 444 F.Supp. 824, 835 (N.D.Tex.1977).

Considering the Court’s alternatives, the staffing plan and post order for supervision of inmates seemed to be the least intrusive method of correcting the existing constitutional deficiencies. Accordingly, it is the conclusion of this Court that defendants have failed to make a showing of either “likelihood of success on the merits” or “substantial case on the merits.”

III.

Irreparable Injury to the Defendants

Defendants contend that should they be required to hire and train and pay the additional deputies necessary to implement the Court’s plan, they will suffer irreparable injury and financial loss. In addition, defendant Klevenhagen asserts that “the monies required to be expended for compliance with the Court’s Order would have to be taken from other portions of the Harris County budget and other essential services would have to be cut back, services which could not be provided in the absence of the funds expended in complying with the Court’s Order other than by a tax increase, imposing the cost on all the citizens of Harris County, Texas, who would thus be irreparably harmed.” (Memorandum in Support of Defendants’/Appellants’ Motion to Suspend Injunction at 31). The Court is unimpressed by defendants’ assertions in this regard. Furthermore, such a position based on county budgetary considerations does not comport with the law. See Stewart v. Winter, 669 F.2d 328, 332 (5th Cir.1982); Smith v. Sullivan, 611 F.2d 1039 at 1043-44 (5th Cir.1980); Newman v. Alabama, 559 F.2d at 286; Smith v. Sullivan, 553 F.2d at 378; Williams v. Edwards, 547 F.2d at 1212-1213; Gates v. Collier, 501 F.2d at 1319.

Following the issuance of the December 1984 Order, both the Houston Post and the Houston Chronicle quoted defendants as stating that three hundred (300) additional guards would be needed to comply with the Court’s order at a cost of $8,000,000.00 yearly to the county. (Houston Chronicle, Dec. 19, 1984, at 1; Houston Post, Dec. 19, 1984, at 1.) However, in defendant Commissioners Court’s motion to stay and memorandum in support thereof, filed only two months after the issuance of the December 1984 Order, two drastically different figures were offered as being representative of the number of guards needed to implement the Court’s order:

The plan required the hiring and training of some two hundred sixty seven (267) additional guards. (Motion to Stay at 1.) The implementation of the Court’s order would require a substantial increase ... over and above the Defendant’s already approved increase of 43 deputies and 22 sergeants for fiscal 1985. The additional number of deputies required by the Court’s plan and order is 116 at an annual cost of $3,287,788. (Memorandum in Support of Defendant’s Motion to Stay at 8.)

Likewise, in his memorandum, defendant Klevenhagen contends that, after taking into account the number of sergeants and deputies present on the housing floors as well as the shift relief factor, a total of one hundred eighty-one (181) deputies and sergeants would have to be hired to implement the Court’s plan at a cost to the county of $5,130,000.00. However, a budget request for the fiscal year beginning March 1, 1985 which provides for the hiring of forty-three (43) deputies and twenty-two (22) sergeants has been approved by the Commissioners Court. Thus, to implement the Court’s order, defendant Klevenhagen asserts that he will need to provide “116 additional deputies above and beyond the number stated to be on duty after fulfillment of the Sheriff’s budget request” at a cost of $3,287,-788.00. (Memorandum at 29, 30).

In sum, defendants, who were quoted by the local newspapers as stating that they would have to hire three hundred (300) additional guards as a result of the Court’s Order at a cost to the County of $8,000,-000.00 yearly now contend that for them to implement the Court’s Order they must hire one hundred sixteen (116) additional guards at a cost to the County of $3,287,-788.00, or, less than half of the guards and expenditures represented to the press and public as being necessary. Moreover, it is of noteworthy significance that the Court’s staffing plan of May, 1983, which was agreed upon by defendants and essentially arrived at as a result of the testimony of Sheriff Heard, required the deployment of approximately three hundred thirty-three (333) guards for the central jail and detention facilities for a twenty-four (24) hour period. Alberti 600 F.Supp. at 465 app. The present staffing plan, although arrived at by using a post assignment theory rather than a guard-to-inmate-ratio theory, requires the deployment of three hundred twenty-eight (328) guards per twenty-four (24) hour period. Although these figures do not take into account a shift relief factor, it is this Court’s conclusion that if defendants had complied in good faith with the May 1983 Order, they would have very few, if any, additional guards to hire today. In short, defendants’ current complaints are a direct result of their failure to live up to their prior representations that they would abide by the Court’s staffing plan of May, 1983.

Accordingly, given the discrepancies in the figures presented to the public vis a vis the press and legal memoranda on file as well as the failure of the defendants to comply with the May 1983 Order, the Court concludes that the defendants’ contentions as to irreparable harm, are spurious, misleading and designed primarily for the purpose of mobilizing public sentiment in their favor.

IV.

Substantial Harm to Plaintiffs

Defendants assert that there is no evidence to suggest that the plaintiffs will be significantly harmed or injured in the time during which the appeal is pending. Noting that the number of incidents of violence and sexual assaults which were reported and referred for prosecution to the Harris County District Attorney’s Office was limited to seventeen (17) for the year 1984, defendants assert that the rate of such assaults are “well within accepted constitutional limits and less than the rate of such assaults in the general population” in the Houston metropolitan area. (Klevenhagen Memorandum at 32; County Commissioners Memorandum at 9). The Court finds this contention to be without merit as well as illustrative of defendants’ insensibility to the safety of the inmates housed in the Harris County Jails.

At the hearings held during July and September of 1984, this Court heard the testimony of a cross-section of inmates in the central jail. Despite the inherent credibility problems normally attached to inmate testimony, the Court was persuaded that a high level of inmate violence and inmate control still existed in the jails. This impression was corroborated in large part by the expert witnesses of both parties. Alberti, 600 F.Supp. at 453, 455. The Court then and now believes that:

The physical conditions of both jail facilities, their physical design and their manner of operation have resulted in conditions that can only be classified as cruel and inhuman under any current standards concerning human decency. Inmate beatings and homosexual rapes and attacks are prevalent, (citations omitted). Inmates without any homosexual tendency have been forced by other stronger inmates to perform acts of oral sodomy as well as anal intercourse. Many of these attacks have endured for long periods at a time. Among the female inmates, unwelcomed lesbianism is apparent.

Id. at 457. Accordingly, the sum total of “inadequate staffing levels, inadequate supervisory techniques, a poor physical design and an unreliable communication system” all lead the Court to the inescapable conclusion that members of the plaintiff class will continue to be substantially injured during confinement if the execution of this Order is stayed.

V.

Public Interest

As the defendants so aptly state, “[p]ublic policy requires compliance with the dictates of the Constitution, the supreme law of the land.” (Klevenhagen Memorandum at 33). The Court is greatly dismayed by the defendants’ persistent failure to do so.

On February 4, 1975, a Consent Judgment was entered in this case whereby the defendants promised to bring themselves into compliance with federal and state standards. Specifically, the Commissioners Court agreed to “provide jail guards/staff sufficient for security for jail facilities without the use of inmate assistance,” and the Sheriff agreed to use “diligent good faith efforts” to “employ a sufficient and adequately trained staff, guards and deputies to assure the protection of persons incarcerated in the Harris County Jails.” Alberti, No. 72-H-1094, slip op. at 3 (S.D.Tex. Feb. 4, 1975).

Thereafter, defendants’ compliance therewith has been questioned and examined in numerous proceedings before this Court. After the hearings held in 1975, this Court found that despite the entry of the Consent Judgment, the jails continued to be unsafe and understaffed. Alberti, 406 F.Supp. 649, 669 (S.D.Tex.1975). As a result, defendants were ordered to provide for the hiring of a sufficient jail staff based upon a ratio of one jailer for every twenty (20) inmates. It was further ordered that inmates were not to act in a supervisory or administrative capacity nor administer disciplinary action over other inmates. Id. at 678. That order was never appealed.

Although the ubiquitous issue of adequate minimum staffing levels surfaced several times, the Court relied heavily upon the Sheriff’s assertions that once the new central jail was completed, the defendants would see to it that the facilities would be staffed adequately. Accordingly, in late 1982 and in early 1983, shortly after the new jail was completed, hearings were held to determine an appropriate staffing plan for both the new facility and the detention center. The defendants admitted that both facilities were critically understaffed on the housing floors, but assured the Court that they would be in compliance with state law, the one-to-forty-five (1:45) ratio, by the end of June, 1983. Accordingly, at the vigorous insistence of the defendants, the Court adopted the one-to-forty-five (1:45) minimum staffing ratio for purposes of staffing the Harris County jails. Alberti, slip op. at 1, 2, 8 (S.D.Tex. May 20, 1983). That Order, too, was never appealed. However, rather, than hiring and training the additional staff needed to comply with that Order, basically designed by them, the defendants set out to change the state standards on jail staffing promulgated by the Texas Commission on Jail Standards, thereby paving the way for a drastic modification of the May, 1983 staffing plan. Although their actions before the Commission were cloaked in sophistication and professionalism, their ultimate goal is apparent to this Court: less security staff for the Harris County Jails. Alberti, 600 F.Supp. at 447-450.

In the hearings held before this Court in 1984, as well as in the legal memorandum on file, the defendants changed direction. Instead of admitting that the Sheriff's latest staffing plan was constitutionally defective,- the defendants demand to be left alone by the Court, stating that “the Court’s Order violates judicial authority” and is questionably unconstitutional. (County Commissioners Memorandum at 10). Yet the Sheriff’s proposed plan, which was later set aside by defendants in favor of Mr. Cox’s plan, required sixty-five (65) less security staff on the housing floors than that recommended by their own expert, Mr. Cox, as being the minimum staff needed to provide a safe and suitable jail and was far below the one-to-forty-five (1:45) ratio requirement then in place. In addition, while Mr. Cox found in his report, dated July, 1984, that the poor configuration of the new central jail requires that officers make rounds more often to provide effective supervision, that it was improper for the Sheriff to rely upon the call-button system as the primary emergency response mechanism, that the level of sexual abuse was high, that there remained at the jail vestiges of inmate control, and that twenty-two (22) additional sergeant posts and forty-three (43) additional deputies would be necessary, defendants failed to heed his advice; not until March of 1985 did defendants address the problem and provide the necessary budgetary assistance to ensure the implementation of the minimum staffing plan as recommended by Mr. Cox.

The defendants contend that the Court should use as a measure of violence the number of cases of assault reported by the inmates which were ultimately referred for prosecution, a total of seventeen (17) for 1984. The insistence of the defendants that the incidents of violence to be considered are only those which are prosecuted by the Attorney General furthers the impression that fights in the jail are an accepted reality. Such an acceptance of fighting has been considered by the Fifth Circuit and is considered by this Court to be evidence of deliberate indifference to the security needs of inmates. See Stokes v. Delcambre, 710 F.2d 1120, 1125 (5th Cir.1983).

Thus, given the procedural history of this case, the evidence presented at the hearings over the course of the last twelve years, and the memoranda submitted concurrent with these motions to stay, it has become clear that the defendants not only have failed to abide by the constitutional mandate, the Court’s Order, or their own Consent Judgment to provide a safe and suitable jail, but have no intention of doing so. Such an affront to the public interest should not and cannot be tolerated by this Court which is obligated to articulate and uphold the applicable law as pronounced by the Supreme Court and the Court of Appeals for the Fifth Circuit.

VI.

Conclusion

In sum, it is this Court’s view that defendants have failed to satisfy the requirements necessary for the granting of a stay pending appeal. While the constitutional questions are indeed substantial, it is clear in light of the totality of conditions at the Harris County Jails that the defendants are and have been in continuous violation of the constitutional mandate against cruel and unusual punishment. That inmates are subjected to a constant fear of violent attack, and that the defendants have failed, throughout the history of this case to provide a security staff adequate in training or in numbers to satisfy the minimum constitutional standard is strikingly apparent. Nonetheless, once a determination was made that the inmates were being subjected to deprivations of constitutional magnitude, the Court carefully tailored its remedy to achieve the sole goal of eradicating cruel and unusual punishment, as many courts in this and other circuits have done before. Given these parameters, it is this Court’s view that defendants have shown neither a "probability of success on the merits” nor “a substantial case on the merits” as is required in order to stay the execution of a court order pending its appeal.

When balancing the equities in this case — irreparable harm to the defendants, substantial injury to the plaintiffs, and the public interest — the Court takes also into consideration a fourth equitable prong: the bad faith, indifference and inactions of the defendants. In short, any harm which might result to the defendants or to the taxpayers as a result of higher taxes is solely a result of defendants’ own making. Had they complied with the staffing plan virtually designed by them and subsequently proposed and adopted by this Court in May of 1983, almost two years ago, the defendants would have relatively little additional hiring or expenditures to concern themselves with today. Having failed to do so and having been exposed by evidence in the 1984 hearings, defendants now wish to obfuscate the issues by creating the fiction in the eyes of the taxpayer that their dilemma is attributable to the orders of this Court. Nothing could be further from the truth. While the payment of additional taxes, if necessary, is distasteful to all of us, defendants cannot use this as an excuse to evade compliance with the laws of this country, even if it involves the constitutional rights of the inmates at the Harris County jails.

In contrast, should the Court grant a stay of the December 1984 Order, the inmates, many of whom are not convicted of any crime but are merely awaiting trial, will continue to be subjected to conditions long ago condemned by the Eighth Amendment of the Constitution. Further, in light of defendants’ cavalier indifference to the mandates of their own Consent Judgment of 1975, the Court’s orders, and the Constitution, this Court believes that to grant a stay would do serious violence to the public interest. Considering all of the above, it is the opinion of this Court that defendants have failed to establish a balance of equities favorable to them, much less a balance “heavily tilted” in their favor.

Finally, the Court is aware that the Fifth Circuit Court of Appeals may look favorably upon any motions to stay filed by the defendants. If the Court of Appeals does so, it will be out of an abundance of caution and out of a desire to be fair to all parties in view of the complexities of this case and their unfamiliarity therewith. However, having had before it for twelve years the law and facts concerning the defendants and their administration of the Harris County Jails, anything short of denying summarily defendants’ motions to stay would be an abdication of this Court’s judicial responsibility. It being clear that defendants have made no attempts to comply with the Court’s Order of December, 1984, and that they have no intention of doing so, it is ordered that the defendants show cause at a hearing set for Friday, the 10th day of May, 1985, at 10 o’clock A.M. where counsel can be heard as to why defendants should not be adjudged to be in contempt. “Should the Court make a specific finding of contempt based on clear and convincing evidence at the conclusion of that hearing, the defendants shall be allowed an additional fourteen (14) days to implement the Court’s order. Continued noncompliance will result in the imposition of sanctions commensurate with current caselaw.” Alberti, 600 F.Supp. at 468. Counsel will submit legal memoranda containing all relevant cases on sanctions in a jail context ten (10) days beforehand.

It is so ORDERED.

      . The total number of guards to be hired, given the parameters of the Court’s post staffing plan, was left to the parties to calculate and was not a part of the December 1984 Order.

      . The defendants seem to prefer the holdings of the Fourth and Ninth Circuits. Although the Court believes that the facts of this case satisfy also the standards of those Circuits for determining a federal court's authority with respect to jail reform, the Court is constrained to follow Fifth Circuit precedent.

      . "The picket” is the trade name for the central floor control center where one deputy electronically monitors the floor. Alberti, 600 F.Supp. at 450.

      . The Court’s plan requires also the deployment and hiring of additional sergeants, the number of which was agreed upon by plaintiffs’ and defendants' experts alike.

      . The applicable standard, or "one-to-forty-five” (1:45) ratio as it has come to be known, required the following:
      Inmates shall be supervised by an adequate number of corrections officers to comply with the requirements of state law and these standards and to carry out the facility plans established pursuant to these standards. In no event shall this be fewer than one corrections officer on each floor of the facility on which 10 or more inmates are housed, nor less than one corrections officer per 45 inmates.
      Minimum Jail Standards § 217.14.004 (1980).

      . The new rule for supervision of inmates reads as follows:
      Supervisory personnel. Inmates shall be supervised by an adequate number of corrections officers to comply with state law and these standards. One corrections officer shall be provided on each floor of the facility where 10 or more inmates are housed, with no less than one corrections officer per 48 inmates or increment thereof for direct inmate supervision. This officer shall provide visual inmate supervision not less than hourly____ A waiver may be granted by the commission as to minimal supervisory personnel-to-inmate ratios required elsewhere in these rules. A plan, concurred in by both commissioners court and sheriffs department may be submitted to the commission which provides for adequate and reasonable staffing of a jail facility. This rule shall not preclude the Texas Commission on Jail Standards from requiring staffing in excess of minimum requirement when deemed necessary to provide a safe, suitable and sanitary jail nor preclude submission of variance requests as provided by statute or these rules. (Adopted 12/26/83.)
      Minimum Jail Standards § 217.14.004 (1984).

      . As Mr. Cox explained it, “racking-out” is a procedure whereby the mid to high risk inmates in multiple occupancy housing units are locked out of their sleeping cells during the daytime hours and forced to spend their time in the common dayroom. This procedure allows the guards to observe all inmates from the safety vestibule without the necessity of actually venturing into the dayroom to view the inmates who may be in their sleeping cells. (Defendant’s Exhibit No. 44 at pp. i and 13.)

      . According to defendant Klevenhagen, there were two hundred twenty-seven (227) deputies assigned to the living floors and engaged in supervising inmates on January 17, 1985. When a relief factor of five (5.0) is considered, the total number of additional deputies needed to implement the Court’s plan is one hundred sixty-nine (169). Defendant Klevenhagen contends also that there were twenty (20) sergeants present on January 17, 1985. Using the same relief factor, he asserts that he would be required to hire twenty-two (22) more sergeants in order to comply with the Court’s mandate. Consequently, he contends that a total of one hundred eighty-one (181) deputies and sergeants would have to be hired to implement the Court's plan. (The Court questions how defendants arrived at the figure of one hundred eighty-one (181) as the sum total of one hundred sixty-nine (169) plus twenty-two (22). By its own calculations, the Court concludes that one hundred sixty-nine (169) plus twenty-two (22) equals the sum total of one hundred ninety-one (191)). According to defendant Klevenhagen, the total cost of the additional deputies and sergeants required by the Court’s December 1984 Order is approximately $5,130,000.00 per year.

      . These figures, which represent the sergeant and deputy post assignment plan recommended by the defendants’ expert, Mr. Cox, were rejected by the Court after carefully examining the safety needs of the inmate. Hence, a budget providing for the procurement of deputies and sergeants in accordance with the "Cox plan” runs directly counter to the Court’s December 1984 Order.

      . Likewise, the Court questions how defendants arrived at the figure of one hundred sixteen (116). Given the difference in calculations set forth in note 8 above, the Court concludes that this figure should correctly be one hundred twenty-six (126), at a cost of $3,571,218.00. This is accurate, of course, only if the other figures presented by defendants are accurate.

      . The Court notes also the fact that defendants have never sought a modification of the sixty (60) day mandate issued by the Court. This fact, too, leads the Court to the conclusion that any harm incurred by the defendants or the taxpayers as a result of a later finding of contempt and consequent sanctions is a result of the actions or inactions of defendants themselves.


source: Caselaw Access Project

author: McMILLAN, District Judge.

license: Public Domain

text:
    Lisa A. MILLER, Administratrix of the Estate of Raymond Miller, Plaintiff, v. MECKLENBURG COUNTY; Former Sheriff of Mecklenburg County, John Kelly Wall, personally and in his official capacity as former Sheriff of Mecklenburg County; Amos Charles Pellerin, personally and in his official capacity as Sheriff's Deputy for Mecklenburg County; Eric D. Moore, personally and in his official capacity as Mecklenburg County Pre-Trial Release Counselor; and Richard Lee Blanks, personally and in his official capacity as Charlotte Police Officer, Defendants.
    No. C-C-83-754-M.
    United States District Court, W.D. North Carolina, Charlotte Division.
    April 10, 1985.

      Lawrence U. Davidson, III, Davidson & Harvey, Charlotte, N.C., for plaintiff.
    Jonathan E. Buchan, Helms, Mulliss & Johnston, Charlotte, N.C., for Tex O’Neill.
    James 0. Cobb, Edward Hinson, Jr., Grant Smithson, Frank B. Aycock, III, Charlotte, N.C., for defendants.
   ORDER

McMILLAN, District Judge.

On February 6, 1985, the court ordered Tex O’Neill, reporter for the Charlotte Observer, to reveal the name of a witness to the alleged application of a choke hold to plaintiff’s deceased, Raymond Miller. 602 F.Supp. 675. The court deferred ruling on the motion to compel Tex O’Neill to reveal the name of the confidential source, who identified this witness and provided the reporter with an account of the alleged choking.

The reporter complied with the court order and at a deposition stated that the confidential source had told him that Eric Moore (already a defendant in this suit) was the witness to the alleged choking. Eric Moore had been previously deposed and had denied having seen a choke hold applied to Raymond Miller. In addition, Eric Moore filed an affidavit repeating his contention that he never saw any type of choke hold applied to Mr. Miller.

Plaintiff renewed her motion to compel the name of the confidential source, asserting that the revelation of the name of the witness had not removed her compelling need for the name of the confidential source. All of the defendants joined in the motion to compel and asserted their own compelling needs, in addition to plaintiff’s need. A hearing was held on March 25, 1985.

In the previous order, the court stated that plaintiff appeared to have met her burden to overcome the reporter’s qualified privilege. When faced with the reporter’s qualified privilege, the court is to balance the seriousness of the suit, the need of the moving party for the information, the reasonable alternative sources for the information, and the public’s interest in having a reporter free to prepare stories without being forced to disclose confidential sources. See, e.g., Carey v. Hume, 492 F.2d 631, cert. denied 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974); Zerilli v. Smith, 656 F.2d 705 (D.C.Cir.1981); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir.1980).

The court will not repeat the legal analysis contained in the previous order. Plaintiff and defendants have investigated the leads from the reporter’s naming of the witness to the alleged choking. That information has not changed in any material way the need for the identity of the confidential source.

The confrontation of this reporter’s qualified privilege and this plaintiff’s need for the information finds each interest at its highest. The reporter is being asked to identify a confidential source who gave the reporter information that was the direct lead to a major story. The reporter was not a witness to the event, nor was he reporting an incident then in the public’s attention. Instead, his story was the result of dogged investigative reporting. The reporter hás stated that the confidential source would not have given him information without a promise of confidentiality. Compelling revelation of the name may cause future sources not to bring potentially important matters to the press’s and public’s attention out of fear of losing confidentiality. On the other hand, plaintiff’s suit against defendants under 42 U.S.C. § 1983 presents a serious claim of constitutional deprivations. Although counsel for the reporter is correct in stating that plaintiff may be able to prove her case on either the theory of death by a choke hold or the theory of death by blows to the head, plaintiff is entitled to pursue both theories. The confidential source has told the reporter that he witnessed the choking of Mr. Miller, which rendered him at least unconscious. This information would be vital to plaintiff’s claim that Mr. Miller died because of the application of a choke hold. Despite exhaustive efforts, plaintiff has been unable to obtain alternative evidence for the alleged choking immediately outside or inside the jail cell, as related by the confidential source. The court stated in its earlier order that this information may not only go to the heart of plaintiff’s case, it may well be the heart of the case.

The court finds that the intermediate step of naming the witness, but not the confidential source, has not changed the balance of interests. Plaintiff has shown a compelling need for the information and has overcome the qualified privilege of the reporter. Therefore, the court will reluctantly order the reporter to reveal the name of the confidential source.

Defendants have asserted their own compelling needs for the information. In light of the court’s granting plaintiff’s motion to compel and the fact that the name of the confidential source will be given to all counsel, the individual motions of the defendants are moot and need not be addressed.

Plaintiff has requested not only that the reporter reveal the name of the confidential source, but that he also produce his notes on the story and that he answer questions about his contact with the source, including why the source requested confidentiality in giving the information. The court finds that plaintiff does not have a compelling need for this information. Forcing the reporter to reveal this material and information would be an unwarranted, additional intrusion. The compelling need only reaches the identity of the confidential source, and the court will only order revelation of this limited information.

The court will grant plaintiff’s motion to compel to the limited extent of requiring the reporter to identify the confidential source in an affidavit. Tex O’Neill will not be ordered to produce the affidavit until the court has finalized a protective order.

This court has a strong aversion to secret trials and sealed materials. However, these circumstances present unusually good cause for a protective order, at least before this case goes to trial. See, e.g., Seattle Times Co. v. Rhinehart, — U.S. -, 104 S.Ct. 2199, 81 L.Ed.2d 17 (May 21, 1984). Although the reporter’s promise of confidentiality will be compromised by compliance with the court order, the extent of the intrusion into the functions of the press can be limited somewhat by not requiring that the disclosure be made in open court, as requested by plaintiff.

The court will order that Tex O’Neill identify the confidential source in an affidavit that shall be given to counsel for plaintiff and counsel for all defendants as well as being filed under seal with the court. The attorneys are prohibited from revealing the name of the source to anyone other than the court and other counsel. The attorneys specifically are prohibited from revealing the name of the source to their clients. Any additional pleading that may tend to identify the source, including a notice of deposition, shall be filed with the court under seal and shall be served upon counsel in such a way that only counsel will see the document. The name of the confidential source shall not be revealed by counsel except upon leave of the court. Failure to comply with these terms may result in the application of sanctions.

The court will reconsider the protective order once the case is set for trial. The court does not anticipate that the protective order shall apply to trial proceedings.

Counsel will be given seven days within which to respond to the terms of this protective order and identify any additional protection or clarification that is needed. After such response, the court will finalize the protective order and set a date by which Tex O’Neill shall identify the confidential source.

IT IS THEREFORE ORDERED:

1. That plaintiff’s motion to compel Tex O’Neill to identify the confidential source is GRANTED. The motion is DENIED to the extent that it requires Tex O’Neill to reveal additional information.

2. That defendants’ motions to compel are MOOT in light of the above ruling.

3. That counsel shall have seven (7) days from the filing of this order in which to respond to the proposed protective order.

4. That after the protective order is finalized, the court will set a date by which Tex O'Neill shall file the affidavit revealing the identity of his confidential source.


author: VERON, District Judge.

text:
    UNITED STATES of America v. Willard S. CARLOCK, Sr., et al.
    Civ. A. No. 85-20002-02.
    United States District Court, W.D. Louisiana, Lake Charles Division.
    April 11, 1985.

      Joseph S. Cage, Jr., U.S. Atty., W.D. La., Shreveport, La., Larry J. Regan, Asst. U.S. Atty., W.D. La., Lake Charles, La., William S. Lynch Sr., Counsel for Litigation Criminal Div., U.S. Dept, of Justice, and Peter Sprung, Trial Atty., Criminal Div., U.S. Dept, of Justice, Washington, D.C., for United States.
    Oliver “Jackson” Schrumpf, Sulphur, La., for Willard S. Carlock, Sr.
    John P. Navarre, Oakdale, La., for Columbus J. Laird.
    J. Michael Small, Kathrine S. Williamson, Alexandria, La., for Willard S. Carlock, Jr.
    John R. Martzell, New Orleans, La., William B. Baggett, Jr., Lake Charles, La., for Mitchell J. Scimemi.
    John E. Demoruelle, Kinder, La., for Houston Byrd, Jr.
    C. Frank Holthaus, Baton Rouge, La., Glen D. Yamvoras, Lake Charles, La., for Monroe Brabham.
    Alva Jones, Oakdale, La., for Michael Greer.
   RULING ON MOTION BY DEFENDANT COLUMBUS J. LAIRD FOR INSPECTION OF JURY LISTS

VERON, District Judge.

This matter comes before the Court on the motion of defendant COLUMBUS J. LAIRD for permission to inspect, reproduce and copy (1) all records and papers used during selection and empanelment of the grand jury which returned the instant indictment, and (2) all corresponding materials pertaining to the selection of the prospective members of the petit jury that will hear this case. The defendant contends that he must have access to these materials in order to determine whether he has a potentially meritorious challenge to the jury-selection procedures actually employed in this case.

The decision in Test v. United States, 420 U.S. 28, 95 S.Ct. 749, 42 L.Ed.2d 786 (1975), establishes that 28 U.S.C. § 1867(f) grants both criminal and civil litigants “essentially an unqualified right to inspect jury lists.” 420 U.S. at 30, 95 S.Ct. at 750 (first emphasis added). Both the Test case and controlling Fifth Circuit authority further establish that the trial court cannot deny access to the jury selection materials on the ground that the motion for inspection is not accompanied by an affidavit establishing a prima facie case of defective jury selection. 420 U.S. at 29 n. 2, 95 S.Ct. 750 n. 2; Government of Canal Zone v. Davis, 592 F.2d 887, 889 (5th Cir.1979). Moreover, the trial court cannot require a litigant to file a motion to dismiss for defective jury selection procedures as a prerequisite for gaining access to the materials. Davis, 592 F.2d at 889. Section 1867 guarantees this preliminary right of inspection for the very purpose of “preparation ... of a motion” to dismiss for defective jury selection procedures. 28 U.S.C. § 1867(f) (emphasis added). Thus, the defendant should be allowed access to at least those materials pertaining to the preparation of the master jury wheel and the qualified jury wheel for the Lake Charles Division. United States v. Foundas, 615 F.2d 1130 (5th Cir.1980).

Although “essentially unqualified,” the right of access involved here is not without limitations, especially with respect to the list of prospective jurors drawn for a particular case. The Test Court itself observed that inspection under the statute is limited to “reasonable times,” and specifically noted that an issue of timeliness of access was not before the Court. 420 U.S. at 30 n. 4; 95 S.Ct. 750 n. 4; see also 28 U.S.C. § 1867(f) (“The parties in a case shall be allowed to inspect, reproduce and copy such records or papers at all reasonable times during the preparation and pendency of such a motion.” [emphasis added]). This notation by the Supreme Court is quite significant in light of the long line of Fifth Circuit cases which hold that the trial court may withhold the list of prospective jurors until the time of trial. See, e.g., United States v. Scallion, 533 F.2d 903, 913-14 (5th Cir.1976); Stone v. United States, 324 F.2d 804, 806-07 (5th Cir.1963). The Circuit has adhered to this rule in cases decided under the statute relied upon here, the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1862-1869. See United States v. Tucker, 526 F.2d 279, 282-83 (5th Cir.1976). In line with this authority to limit inspection to reasonable times, Subparagraph 5(4) of the Plan of the United States District Court for the Western District of Louisiana for the Random Selection of Grand and Petit Jurors provides that “[njames drawn from the qualified jury wheel in criminal cases shall not be disclosed until the jurors have been empaneled by the Court.” Thus, in accordance with the Plan and the supporting Fifth Circuit authority, the Court will deny the defendant access to the list of prospective jurors drawn for this case and to the materials used in selecting a petit jury from these prospective jurors until after the jury is empaneled. The defendant will have seven days from the empaneling of the jury to review these materials and file any resulting motions. See 28 U.S.C. § 1867(a).

Similarly, the Court does not find that the present is a reasonable time for access either to the list of jurors who served on the grand jury that returned the instant indictment or to the materials used in selecting this particular grand jury. Through discussion with personnel in the Clerk’s Office, the Court has learned that the grand jury that returned this indictment is still in session. Revelation of the names of the jurors at this time may well “chill” the individual jurors in the exercise of their duty to investigate criminal activity in the district. The Court will therefore deny the defendant access to the list of grand jurors and accompanying materials until (1) the present grand jury has been discharged, and (2) the defendant demonstrates that he has inspected the materials pertaining to the master and qualified jury wheels for this division and that inspection of the materials pertaining to the list of grand jurors nonetheless remains necessary to determine whether the grand jury was selected properly. Cf. United States v. McLernon, 746 F.2d 1098, 1122-23 (6th Cir.1984) (on the facts before the Court, the defendant’s unqualified right to inspection was satisfied by disclosure of the master lists and the relevant demographic data about the general pool from which the specific grand jurors were selected and the district court therefore did not err in refusing to grant access to the names, addresses, and demographics of the specific grand jurors who returned the indictment). The defendant will have seven days from the granting of any such motion for access to review the materials and file any resulting motions.

Accordingly, the motion by defendant COLUMBUS J. LAIRD for inspection of jury selection material is GRANTED IN PART to the extent that it seeks access to the selection materials pertaining to the master and qualified jury wheels for the Lake Charles Division, subject to the limitations set forth in the accompanying order. In all other respects, the motion is DENIED at this time.

ORDER

This matter having come before the Court on the motion of defendant COLUMBUS J. LAIRD for inspection of jury lists and the issues having been heard and in accordance with the written reasons assigned this date

IT IS ORDERED

(1) The Clerk of Court shall afford defendant COLUMBUS J. LAIRD access to the records and materials used in selection of the master jury wheel and qualified jury wheel for the Lake Charles Division for the purposes of inspection, reproduction and copying. This right of access specifically includes supervised access to the Clerk’s Office in Shreveport, Louisiana for inspection, reproduction and copying of the completed juror qualification forms pertaining to the master and qualified jury wheels for the Division and supervised access to the computer center in Metairie, Louisiana that handles the District’s jury wheels. The defendant may exercise this right of access only by appointment and must bear all accompanying expenses, including any computer costs incurred in producing printouts of the master and qualified jury wheels that are not otherwise available.
(2) Until further contrary order of this Court, the Clerk of Court, his staff, and the staff at the computer center in Metairie, shall NOT afford, and defendant COLUMBUS J. LAIRD is specifically DENIED, access to (a) the list of prospective jurors drawn for this case, (b) materials pertaining to the selection of a petit jury from this list of prospective jurors, (c) the list of jurors on the grand jury that returned the instant indictment, and (d) materials pertaining to the selection of that grand jury. Furthermore, the Clerk, his staff, and the staff at the computer center in Metairie shall in no way indicate any manner in which the list of prospective jurors or the list of grand jurors might be determined by reference to the master and qualified jury wheels. Violation of this paragraph will be considered not only as contempt of court, but also as a violation of 28 U.S.C. § 1867(f), which imposes a maximum sentence of $1000 and imprisonment for one year. If the court or computer personnel are confronted with an attempt by the defendant to determine the contents of these lists, or if the court or computer personnel have any questions as to their duties under this Order, they are to contact the Court immediately at (318) 437-7211.
(3) No Government or defense attorney in this action, or any defendant, or any other person acting on their behalf, shall himself, or through any investigator or other person acting for him, interview, examine, question or contact any prospective juror for this case, or any juror on the grand jury that returned the instant indictment, or any relatives, friends or associates of such prospective juror or grand juror, either prior to trial, during the pendency of trial, or with respect to the deliberations or verdict of the grand and petit juries in this action, except on express written leave of this Court on good cause shown. Violations of this paragraph will not only be considered as contempt of court, but will also be reported to the Justice Department for investigation.


author: WALTER S. SMITH, Jr., District Judge.

text:
    William D. BROWN, Plaintiff, v. Ruth E. ROBERTSON, formerly Ruth E. Brown; John D. Marsh, Jr., Secretary of the United States Army; Major General Paul P. Burns, Commander U.S. Army Finance and Accounting Center; Major R.M. Zimmerman, Chief of the Pay Service Division, Retired Pay Operation of the United States Army Finance and Accounting Center, Defendants.
    No. W-84-CA-24.
    United States District Court, W.D. Texas, Waco Division.
    April 11, 1985.

      Tyce S. Smith, Sr., Smith & Muxlow, Waynesville, Mo., Jerry Sutton, Harker Heights, Tex., for plaintiff.
    Helen Milburn Eversberg, U.S. Atty., Harold 0. Atkinson, Asst. U.S. Atty., San Antonio, Tex., for defendants.
   WALTER S. SMITH, Jr., District Judge.

ORDER

Came on this day for consideration Federal Defendants’ Motion to Dismiss the above-numbered and styled cause.

FACTS

Plaintiff, WILLIAM D. BROWN, and Defendant, RUTH E. ROBERTSON, were married on December 5, 1953. During their marriage, Plaintiff was employed by the United States Army. The marriage ended in divorce on October 20, 1972, in the District Court of Bell County, Texas. The divorce decree provided, inter alia, that Defendant ROBERTSON should receive a percentage, specifically lk of 19/2i, of Plaintiff BROWN’s United States Army pension benefits upon his retirement. Plaintiff BROWN now seeks to have this portion of the divorce judgment set aside by this Court.

Plaintiff commenced this suit in the United States District Court for the Southern District of Indiana, Indianapolis Division. The suit was transferred by order of that Court to the U.S. District Court for the Western District of Texas, Waco Division.

DISCUSSION

Plaintiff’s complaint seems to be premised upon two grounds. The first ground is a challenge to the state court’s jurisdiction to render that part of the judgment relating to the retirement benefits. Plaintiff claims the divorce decree violates the Supremacy Clause of the United States Constitution. The Court does not find that argument to be persuasive. As one court has stated:

Because state law was so firmly entrenched before the Court sounded the warning in McCarty that state interests must yield to Congressional objectives, there can be no contention that a clear prohibition existed rendering state intervention into a heretofore exclusive federal area a nullity.

Ex parte Hovermale, 636 S.W.2d 828, 833 (Tex.App. — San Antonio 1982). Accordingly, the prior state judgments rendered before McCarty are not void ab initio and the state judgment may not be collaterally attacked. Humble Oil & Refining Co. v. Fisher, 152 Tex. 29, 253 S.W.2d 656 (1952); Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876 (1895). The Court must therefore be concerned with the issue of whether the judgment rendered in this case is affected retroactively by the Supreme Court’s decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). The McCarty opinion itself did not indicate whether it was to be applied retroactively. The Court finds the language of Federated Department Stores v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) to be instructive in another case.

The res judicata consequences of a final unappealed judgment on the merits [are not] altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.

Federated Department Stores, supra. The Fifth Circuit has adopted this view in holding that McCarty is not to be applied retroactively and that unappealed state court divorce decrees and property settlements remain unaffected. Erspan v. Badgett, 659 F.2d 26 (5th Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658, Wilson v. Wilson, 667 F.2d 497 (5th Cir.1982). See also Segrest v. Segrest, 649 S.W.2d 610 (Tex.1983), cert. denied, — U.S. -, 104 S.Ct. 242, 78 L.Ed.2d 232 (1983) (holding McCarty was not to be applied retroactively and that final judgments rendered prior to McCarty dividing military benefits, while possibly erroneous, were not void and were entitled to the same res judicata effect and immunity from collateral attack as other judgments).

The doctrine of res judicata provides that a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Federated Department Stores, supra. The reason for this doctrine was set forth in Baldwin v. Traveling Men’s Association, 283 U.S. 522, 525, 51 S.Ct. 517, 518, 75 L.Ed. 1244 (1931) to be:

Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.

Erspan, supra, held that McCarty does not overcome the res judicata effect of a final divorce decree apportioning military retirement benefits among husband and wife. This Court is required to give the same full faith and credit to the divorce decree that a state court would give it. Title 28, United States Code, Section 1738. Plaintiff has not appealed his state court decision; therefore, that decision is considered to be a final judgment. Since Plaintiff could have appealed or raised the points he now makes in that proceeding, res judicata acts as a bar in this suit. This Court is bound by the previous state court judgment.

■ The Court also notes that McCarty was subsequently overruled by Congressional action in the passage of the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408 (1983). This Act provides that a state court may treat military retirement pay as separate property of the retired spouse or as community property “in accordance with the law of the jurisdiction of such court.” Neese v. Neese, 669 S.W.2d 388 n. 2 (Tex.App. — Eastland 1984). The Texas courts have consistently held such benefits to be the community property of the couple. Cameron v. Cameron, 641 S.W.2d 210 (Tex.1982); Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977); Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976) (other citations omitted).

This brings the Court to Plaintiffs second ground for setting the state court judgment aside. Although it need not be addressed by the Court since the Court has found the doctrine of res judicata bars Plaintiffs suit, the Court feels it is important to show Plaintiff that this ground is totally without merit. The second ground for challenge to the state court action is premised upon the notion that the retirement benefits were not yet in existence at the time they were awarded by the judge in the divorce decree. Thus, plaintiff claims, the court lacked jurisdiction to divide this property. This same claim was rejected by the Texas Supreme Court in Cearley v. Cearley, 544 S.W.2d 661 (1976).

There is little doubt that military pension benefits earned during marriage is classified as community property under Section 5.01 of the Family Code. Plaintiffs argument, like the argument made in Cearley, is that the trial court could not apportion these benefits because they had not yet vested. The Texas Supreme Court in Cearley concluded that these benefits gave rise to a contingent interest. This contingent interest will vest at the time the retirement benefits are received. The benefits have been held to be community property at the time of the divorce even though they had not matured and were not at that time subject to possession and enjoyment. Busby v. Busby, 457 S.W.2d 551 (Tex.1970). The Texas courts have recognized that military retirement benefits are to be viewed as deferred compensation which is earned during each month of a spouse’s military service. Cearley, supra at 665.

The portion that he earned during the months of coverture became contingent earnings of the community which may or may not bloom into full maturity at some future date. We hold that such rights, prior to accrual and maturity, constitute a contingent interest m property and a community asset along with other property in the division of the estate of the parties under Section 3.63 of the Family Code.

Cearley, supra at 666.

The Uniformed Services Former Spouses’ Protection Act, supra, provides that state law will determine whether such military retirement benefits should be characterized as separate or community property in accordance with state law. Texas state law provides that they are considered community property. As such, the trial court properly apportioned them in the property settlement of the parties’ divorce decree. Accordingly,

IT IS, THEREFORE, ORDERED that the Federal Defendant’s Motion to Dismiss this action is hereby GRANTED. This action is hereby DISMISSED WITH PREJUDICE since the court lacks subject matter jurisdiction of the suit under Rule 12(b) of the Federal Rules of Civil Procedure.

IT IS FURTHER ORDERED that said dismissal shall be in effect as to all parties named in the suit. Costs of this suit shall be assessed against Plaintiff.


author: GOETTEL, District Judge:

text:
    Luis CASTILLO, Plaintiff, v. The SHIPPING CORP. OF INDIA, Defendant.
    No. 84 Civ. 7347 (GLG).
    United States District Court, S.D. New York.
    April 11, 1985.
    As Amended April 23, 1985.

      Kreindler & Kreindler, New York City (Paul S. Edelman, New York City, of counsel), for plaintiff.
    Healey & McCaffrey, New York City (John F. McHugh, New York City, of counsel), for defendant.
   OPINION

GOETTEL, District Judge:

The defendant, the Shipping Corp. of India (“SCI”), is a corporation wholly owned by the government of India and formed under the laws of that country. It is engaged in shipping activities in the United States and throughout the world. SCI owns and operates a fleet of vessels, including the State of Andhra Pradesh. That ship has not called at the Port of New York since 1980 and is presently assigned to an Asian route.

On October 14, 1981, Luis Castillo, a citizen and resident of the Dominican Republic, was injured in the Dominican Republic while working aboard the Andhra Pradesh. Castillo alleges that SCI committed numerous negligent acts that were the direct and proximate causes of his injuries. Castillo now brings this action seeking $300,000 in damages. SCI’s New York agents and the Indian Embassy in Washington, D.C., have been served with a summons and complaint.

SCI moves to dismiss the action for lack of personal- jurisdiction and forum non conveniens. SCI asserts that it is a “foreign state” under the Foreign Sovereign Immunities Act of 1976 (the “FSIA” or the “Act”), 28 U.S.C. §§ 1330, 1602-1611 (1982), entitled to immunity from the jurisdiction of the United States’ federal and state courts. Both parties buttressed their arguments on this motion with affidavits. Consequently, we treat this as a motion for summary judgment pursuant to Fed.R. Civ.P. 56. We may grant the motion only if the memoranda and supporting materials before us “disclose ‘that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2725 (2d ed. 1983) (quoting Fed.R. Civ.P. 56(c)). For the reasons stated below, the Court is convinced that the defendant qualifies for the immunity provided by the FSIA. Therefore, its motion for summary judgment is granted.

1. Discussion

A. The Foreign Sovereign Immunities Act

The FSIA regulates the Court’s jurisdiction in this case. This relatively new statute raises difficult interpretive questions, but provides little guidance in the resolution of those questions. See Gibbons v. Udaras na Gaeltachta, 549 F.Supp. 1094, 1106 (S.D.N.Y.1982). A tangled web of provisions in the FSIA governs the central issues of subject matter jurisdiction, personal jurisdiction, and sovereign immunity. These, in turn, determine a foreign state’s amenability to suit. Section 1330(a) of the Act confers subject matter jurisdiction upon the district courts in certain actions against foreign states “not entitled to immunity.” Personal jurisdiction exists when the district court has subject matter jurisdiction and process has been served in conformity with section 1608. 28 U.S.C. § 1330(b) (1982). Thus, the absence of sovereign immunity is essential for the existence of subject matter jurisdiction, which, in turn, is necessary for the attainment of personal jurisdiction.

Section 1604 governs claims of sovereign immunity by foreign nations. It provides as follows:

Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.

28 U.S.C. § 1604 (1982). Although this section gives foreign countries a general grant of immunity, it limits the applicability of that immunity. First, the grant may be subject to international agreements. Second, the party seeking refuge under the Act must be a foreign state within the meaning of the FSIA. Finally, the immunity is subject to exceptions contained in other sections of the Act.

That the first two conditions are not germane is undisputed. Neither party alleges or attempts to prove the existence of any international agreement affecting section 1604’s grant of immunity. Similarly, both the plaintiff and the defendant agree that SCI is a foreign state as section 1603(b) of the Act defines that term. The sole dispute between the parties and the central issue in the case is whether any of the exceptions to immunity embodied in sections 1605 to 1607 remove the cloak of immunity from the defendant and render it subject to the jurisdiction of this Court. Specifically, the plaintiff asserts that the exception to immunity in the first clause of section 1605(a)(2) and the exception contained in section 1605(b) apply to the defendant and subject it to our jurisdiction.

1. Section 1605(a)(2)

The first clause of section 1605(a)(2) provides that a foreign nation is not immune in actions “based upon a commercial activity carried on in the United States by [that] foreign state.” 28 U.S.C. § 1605(a)(2) (1982). Plaintiff Castillo claims that this negligence action, which arose in the Dominican Republic on one of the defendant’s vessels, is “based upon” SCI’s United States shipping operations within the meaning of section 1605(a)(2). The defendant disputes this contention. Resolution of their dispute requires us to examine the FSIA’s language and purposes as well as the cases interpreting the Act.

A commercial activity carried in the United States is one having substantial contact with this country. 28 U.S.C. § 1603(e) (1982). Castillo alleges that SCI engages in shipping operations in the United States, that its ships call regularly at U.S. ports, and that it earns a large portion of its revenues here. In a supporting affidavit, the plaintiff claims that a spot check of a Lloyd’s listing revealed that two of SCI’s vessels recently called at the Port of New York. Taking these allegations as true for purposes of this motion, we conclude that SCI carries on shipping activities having substantial contact with the United States. See In re Rio Grande Transport, Inc., 516 F.Supp. 1155, 1161 & n. 5 (S.D.N.Y.1981) (citing similar activities as support for asserting jurisdiction under the Act). Moreover, the shipping activities involved in this case are commercial, not governmental, in nature. See China National Chemical Import & Export Corp. v. M/V Lago Hualaihue, 504 F.Supp. 684, 689 (D.Md.1981) (the operation of commercial cargo vessels is a commercial activity). The issue, then is whether this action is “based upon” SCI’s United States shipping activities within the meaning of section 1605(a)(2).

Courts, attempting to define the words “based upon,” have employed a number of formulations to describe the specific connection required between the lawsuit and the United States activity relied upon for jurisdiction. In Ministry of Supply, Cairo v. Universe Tankships, Inc., 708 F.2d 80, 84 (2d Cir.1983), the Second Circuit stated that the acts sued upon must “comprise an integral part of the state’s” U.S. activities. The same court, in Gemini Shipping, Inc. v. Foreign Trade Organization for Chemicals and Foodstuffs, 647 F.2d 317, 319 (2d Cir.1981), held that an action on a guarantee was “based upon” the United States activity because it was “part and parcel” of the United States activity. Finally, in Sugarman v. Aeromexico, Inc., 626 F.2d 270, 272 (3d Cir.1980), the Third Circuit required that a “nexus” exist between the grievance and the activity carried on in this country. In the case before us, jurisdiction would not lie under any of these formulations.

Neither the act complained of nor the injury sustained had any impact on or tie to SCI’s commercial activities in this country. The plaintiff’s alleged injuries were caused by acts that occurred in the Dominican Republic on a foreign government-owned ship, on a voyage having no connection with the United States. This lawsuit’s only link to SCI’s shipping activities in the United States is that it occurred on one of the defendant’s 144 vessels, some of which occasionally call at United States ports. The mere happenstance of an accident on one of SCI’s ships moored anywhere in the world cannot convert an ordinary negligence action into one “based upon” SCI’s United States activities. To hold otherwise would rob the words “based upon” of all meaning and would convert a federal long arm act, see H.R.Rep. No. 1487, 94th Cong., 2d Sess., 13, reprinted in 1976 U.S.Code Cong. & Ad.News 6604, 6612 [hereinafter cited as House Reports], into a “doing business” statute. Vencedora Oceanica Navigacion, S.A. v. Compagnie Nationale Algerienne de Navigation, 730 F.2d 195, 202-03 (5th Cir.1984) (per curiam); Harris v. VAO Intourist, 481 F.Supp. 1056, at 1059-63. The result would be to open our courts to suits against most of the world’s governmentally-owned transport lines (air as well as sea), since most countries trade with the United States.

The plaintiff relies on In re Rio Grande Transport, Inc., 516 F.Supp. 1155 (S.D.N.Y.1981), for support. Rio Grande involved an action against a foreign instrumentality for wrongful death, personal injury, and cargo loss arising out of a collision in the Mediterranean Sea between the foreign state’s ship and an American-owned vessel. The court interpreted the phrase “commercial activity” to encompass the foreign state’s world-wide shipping operations, and held that the suit was “based upon” those activities within the meaning of section 1605(a)(2). In re Rio Grande Transport, Inc., supra, 516 F.Supp. at 1161-62.

Rio Grande’s far-reaching interpretation has been the subject of much criticism, see, e.g., Vencedora Oceanica Navigacion, S.A. v. Compagnie Nationale Algerienne de Navigation, supra, 730 F.2d at 201-03, and is at odds with the overwhelming majority of cases. See, e.g., Paterson, Zochonis (U.K.) Ltd. v. Compania United Arrow, S.A., 493 F.Supp. 621 (S.D.N.Y.1980); Harris v. VAO Intourist, supra, 481 F.Supp. 1056. The court itself was sufficiently troubled by its novel interpretation that it also rested its decision upon the third clause of section 1605(a)(2). See In re Rio Grande Transport, Inc., supra, 516 F.Supp. at 1162. Although we do not disagree with the Rio Grande court’s ultimate result, we find the reasoning relied upon by the plaintiff unpersuasive.

Surely, Congress did not intend the FSIA “to open the floodgates to any controversy around the world, against any foreign entity ‘doing business’ in the United States.” Vencedora Oceanica Navigacion, S.A. v. Compagnie Nationale Algerienne de Navigation, supra, 730 F.2d at 202; see also Jurisdiction of U.S. Courts in Suits Against Foreign States: Hearings Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm, on the Judiciary on H.R. 11315, 94th Cong., 2d Sess. 31 (1976) (statement of Brunon A. Ristau, Chief of the Foreign Litigation Section of the Civil Division of the Justice Department) (the bill was designed to confer jurisdiction only over those disputes having a relation to the United States). Rather, Congress sought to harmonize two competing principles. On one hand, it wanted to further the very purpose of sovereign immunity — the fostering of harmonious relations between nations. On the other hand, Congress sought to provide a forum for persons aggrieved by foreign nations in ordinary legal disputes. House Reports at 6605. Congress struck the balance by conferring a general grant of immunity upon foreign states and then carving out specific exceptions to that immunity. House Reports at 6616. Thus, the FSIA limits the exercise of jurisdiction over foreign states, Harris v. VAO Intourist, 481 F.Supp. 1056, 1059 (E.D.N.Y.1979), to those instances in which the propriety of asserting jurisdiction outweighs the possibility of a harmful impact upon foreign relations. This case is not such an instance. To conclude otherwise would be to strain the language of the Act, ignore its legislative history and frustrate Congressional intent. Accordingly, we hold that this action is not “based upon” the commercial shipping activities carried on in the United States by SCI.

2. Section 1605(b)

The plaintiff next argues that section 1605(b) provides a basis for exercising jurisdiction. That section states that immunity will not extend to admiralty actions brought to enforce maritime liens against vessels of foreign states where the lien is based upon the commercial activity of that foreign state. A further prerequisite to the assertion of jurisdiction under section 1605 is that service be made upon “the person, or his agent, having possession of the vessel,” 28 U.S.C. § 1605(b)(1) (1982), and upon the foreign state or instrumentality, 28 U.S.C. § 1605(b)(2) (1982). Castillo contends that the service upon SCI’s general agents in New York is sufficient under section 1605(b)(1) and that section 1605(b) is applicable despite the vessel’s continued absence from this forum. These contentions are wholly without merit.

Section 1605(b) provides a substitute for the usual in rem proceeding to enforce a maritime lien. China National Chemical Import & Export Corp. v. M/V Hualaihue, supra, 504 F.Supp. at 689 & n. 1. The notice requirements replace the conventional requirement that attachment of the foreign vessel precede the exercise of jurisdiction. Jet Line Services, Inc. v. M/V Marsa El Harigo, 462 F.Supp. 1165, 1174 (D.Md.1978). Once service has been made, the suit is deemed an in personam claim limited to the value of the vessel. 28 U.S.C. § 1605(b) (1982).

Under this section, service must be made on the master of the ship or his second in command, House Reports at 6620. Service on the general agent of the corporate owner is insufficient. Moreover, although Congress has changed the procedures for obtaining jurisdiction, it has not altered the fundamental requirement that the ship be present in the forum when service is effected. The defective service and the vessel’s absence from the forum defeat the plaintiff’s claim under the Act. Thus, section 1605(b) does not provide a basis for exercising jurisdiction over the defendant.

II. Forum Non Conveniens

Even if we were to conclude that the FSIA sanctions the exercise of jurisdiction in this case, we would decline to do so because of the doctrine of forum non conveniens. The FSIA has not altered that doctrine, Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 490 n. 15, 103 S.Ct. 1962, 1970 n. 15, 76 L.Ed.2d 81 (1983), under which courts have the discretionary power to decline to exercise jurisdiction when a suit would be more appropriately tried elsewhere. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). In applying the doctrine, courts weigh two factors, the parties’ convenience and the forum’s interests. Id. at 508, 67 S.Ct. at 843. They consider the availability of compulsory process for unwilling witnesses, the cost of obtaining witnesses, the ease of access to sources of proof, the relation of the litigation to the forum, and the court’s familiarity with the applicable laws. Id. at 508-09, 67 S.Ct. at 843. That this is an action in' admiralty does not alter those considerations. Nor does the fact that a plaintiff can expect a larger verdict in American courts. This would be true even if the plaintiff was an American citizen. Alcoa S.S. Co. v. M/V Nordic Regent, 654 F.2d 147 (2d Cir.1981) (en banc).

Turning to the facts of this case, it is clear that New York is an inconvenient forum. SCI is a foreign corporation whose witnesses, the crewmen aboard the vessel, are Indian citizens. Castillo is a citizen of the Dominican Republic and his witnesses are located there. Not one witness for either side resides in the United States and all are outside the reach of this Court’s compulsory process power. The laws of the Dominican Republic would, in all likeli-* hood, govern this action. Moreover, not one act connected with this lawsuit occurred here. In sum, this litigation has no connection to New York and New York has no interest in this litigation. This action should be dismissed on grounds of forum non conveniens.

The plaintiff contends that this Court cannot dismiss the action on forum non conveniens grounds because New York is his only available forum. The plaintiff had a most convenient forum, the Dominican Republic. But, through his own inaction, he lost access to it. He let the Dominican Republic’s six-month statute of limitations pass and has lost his remedy there, as well as in India, which presumably would follow the Dominican Republic’s statute. It would be a strange world if a litigant could “bootstrap” himself into a New York court by missing the statute of limitations in the proper forum.

In re Air Crash Disaster Near Bombay, 531 F.Supp. 1175 (W.D.Wash.1982), is inapposite. In that case, a number of Indian citizens brought wrongful death actions against United States manufacturers of component parts of an aircraft that had crashed in India. The plaintiffs had instituted their suit within the time limits prescribed by the Indian statute of limitations. By the time the court decided the forum non conveniens issue, the Indian statute of limitations had run. The court recognized that forum non conveniens would normally apply, even though the defendants were American citizens and the product had been manufactured in this country. Nevertheless, the court declined to dismiss the action because the plaintiffs no longer had an alternative forum for their claims since, under prevailing Indian law, the limitations period could not be waived by the defendant. Unlike the plaintiffs in In re Air Crash Disaster Near Bombay, Castillo did not file suit within the time limitations imposed by the Dominican Republic. Had he done so, dismissal here would be conditioned on the defendant not raising a limitations defense to a new action filed promptly in the Dominican Republic. Therefore, we conclude that the doctrine of forum non conveniens is both applicable and appropriate in this case. Were we possessed with jurisdiction, we would, nonetheless, dismiss this action.

III. Conclusion

The defendant’s motion to dismiss this action is granted. The Clerk will enter judgment accordingly.

SO ORDERED.

      . SCI does not argue that this Court lacks subject matter jurisdiction. However, if immunity is recognized under the FSIA, the Court possesses neither subject matter nor personal jurisdiction over the defendant. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 485 n. 5, 103 S.Ct. 1962, 1967 n. 5, 76 L.Ed.2d 81 (1983). A court can raise the issue of subject matter jurisdiction on its own motion at any time. Fed.R. Civ.P. 12(h)(3).

      . Section 1608 prescribes acceptable methods of service of process upon a foreign state or its instrumentality. For purposes of section 1605(a)(2), the plaintiffs service upon SCI’s agents in New York was proper, 28 U.S.C. § 1608(b)(2) (1982); however, service upon the Indian embassy was improper and ineffective. House Reports 1976 U.S.Code Cong. & Ad.News 6604 at 6625.

      . Confusion has arisen as to the relationship between the statutory provision relating to personal jurisdiction and the due process limitations of the fifth and fourteenth amendments. Some courts, relying on the legislative history of the Act, assert that the FSIA’s immunity provisions should be interpreted to embody the due process requirements set forth in International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. See, e.g., Alberti v. Empresa Nicaraguense de la Carne, 705 F.2d 250 (7th Cir.1983). However, the Second Circuit treats the statutory and constitutional questions separately. See Texas Trading & Milling Corp. v. Federal Bank of Nigeria, 647 F.2d 300, 308 (2d Cir.1981), cert, denied, 454 U.S. 1148, 102 S.Ct. 1012, 71 L.Ed.2d 301 (1982). The Second Circuit's mode of analysis enhances the resolution of the interpretive questions raised by the Act and helps untie "the FSIA’s Gordia knot." Id. at 307.

      . Section 1603 defines a foreign state to include an instrumentality of a foreign nation
      (1) which is a separate legal person, corporate or otherwise, and
      (2) which is an organ of a foreign state ... or a majority of whose shares ... is owned by a foreign state or a political subdivision thereof, and
      (3) which is neither a citizen of a State of the United States ... nor created under the laws of any third country.
      28 U.S.C. § 1603(b) (1982). The defendant, a legally distinct corporation, wholly owned by the government of India and incorporated in that country, clearly fits within the definition of a foreign state set out in section 1603. See, e.g., Sugarman v. Aeromexico, Inc., 626 F.2d 270 (3d Cir.1980) (holding that a Mexican corporation that was wholly owned by the Mexican government was a "foreign state”).

      . The broad or classical theory of sovereign immunity shielded foreign states from any action against them in the court of another sovereign unless they consented to defend the action. Sugarman v. Aeromexico, Inc., supra, 626 F.2d at 274. The FSIA codified in large part a more restrictive theory of sovereign immunity. See Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 487-88, 103 S.Ct. 1962, 1968-69, 76 L.Ed.2d 81 (1983); Sugarman v. Aeromexico, Inc., supra, 626 F.2d at 274-75. This "restrictive” theory accords immunity only to a foreign state's governmental acts, not to its commercial or private activities. Sugarman v. Aeromexico, Inc., supra, 626 F.2d at 274.

      . Of course, the acts giving rise to the cause of action need not take place in the United States, as long as the acts sued upon were performed in connection with the commercial activity carried on in the United States. Gibbons v. Udaras na Gaeltachta, 549 F.Supp. 1094, 1108 n. 5 (S.D.N.Y.1982). Nor does the plaintiff have to be a United States citizen to sue under the Act. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). These factors merely contribute to the overall analysis.

      . We have found no case decided in the four years since Rio Grande that has relied upon the reasoning advanced by the plaintiff.

      . Our analysis precludes the need for considering section 1605(b)(2) in this context. See supra note 2.