author: NEESE, Senior District Judge.

text:
    Richard WINDSOR, Plaintiff, v. A FEDERAL EXECUTIVE AGENCY, etc., et al., Defendants.
    Civ. A. No. 3-83-0509.
    United States District Court, M.D. Tennessee, Nashville Division.
    Opinion Filed Oct. 25, 1983.
    On Leave to File Amended Complaint Dec. 1, 1983.
    On Motion for Summary Judgment Feb. 3, 1984.
    On Motion to Alter or Amend Judgment Feb. 17, 1984.
    On Motion to Perpetuate Testimony March 13, 1984.

      Richard L. Windsor, pro se.
    Joe Brown, U.S. Atty., Nashville, Tenn., for defendants.
   MEMORANDUM OPINION AND ORDER

NEESE, Senior District Judge.

The rules governing pleading in the federal courts require a complaint to contain “ * * * a short and plain statement of the claim * * * ” and the averments therein must be “ * * * simple, concise, and direct.” Rule 8(a)(2), (e)(1), F.R.Civ.P.; see United States v. School Dist. of Ferndale, 577 F.2d 1339, 1345 (6th Cir.1978). This is the only permissible pleading authorized for filing in a federal district court. Harrell v. Directors of Bur. of Narcotics, Etc., 70 F.R.D. 444, 446[2] (D.C.Tenn.1975). The complaint herein is deficient.

Mr. Windsor’s complaint consists of 11 pages with a 7V2-page exhibit appended thereto. He proposes to amend such complaint so as to add thereto five more pages of allegations along with some 24 pages of exhibits. Since exhibits to a pleading are considered a part thereof, Rule 10(c), F.R. Civ.P., the plaintiff offers a complaint containing a total of 47V2 pages. This is excessive.

Stripped of its verbosity, Mr. Windsor’s claim seems to be that the defendants wronged him, by submitting to the disciplinary arm of the Supreme Court of Tennessee a document containing false information about him and that, as a proximate result thereof, he was damaged and is entitled to be compensated therefor. In the opinion of the Court, it does not require nearly four-dozen pages to state such a relatively simple claim and to outline briefly the legal grounds for recovery.

In addition to its length (and, logically, as a result), the complaint is confusing and distracting; it contains numerous allegations which are irrelevant and otherwise improper. The detailed history of Mr. Windsor’s difficulties with his former employer is well-documented, see Windsor v. The Tennessean, 719 F.2d 155 (6th.Cir.1983), and need not be rehashed herein; his earlier lawsuit is a part of the records of this Court and, to the extent such might become relevant herein, the Court can take judicial notice thereof. Rule 201(b), F.R. Evid.; Harrington v. Vandalia-Butler Bd. of Ed., 649 F.2d 434, 441[7] (6th Cir.1981).

“ * * * [T]he purpose of a pleading is to state the ultimate facts constituting the claim or defense relied upon in short and plain terms without pleading the evidence in support of such facts * * *.” Commissioner of Internal Revenue v. Licavoli, 252 F.2d 268, 272[1] (6th Cir.1958). Thus, it is not required that a plaintiff plead evidentiary matters, Mathes v. Nugent, 411 F.Supp. 968, 972[8] (N.D.Ill.1976); and “ * * * [i]t has long been basic to good pleading that evidentiary matters be deleted. * * * ” Control Data Corp. v. International Business Mach. Corp., 421 F.2d 323, 326 (8th Cir.1970). Mr. Windsor’s complaint is replete with evidentiary statements adding nothing but confusion.

Lastly, the complaint is overly-confusing because the plaintiff has not separated adequately his different claims for relief. Although Rule 10(b), F.R.Civ.P., may not require expressly the use of separate counts in the statement of different theories of recovery, such is often desirable: “ * * * Pleadings will serve the purpose of sharpening and limiting the issues only if claims based on [one theory of recovery] are set forth separately from those based on [another theory of recovery]. * * * ” O’Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 392, 70 S.Ct. 200, 205[5], 94 L.Ed. 187 (1949).

In this Circuit, a complaint seeking relief under more than a single statute must set out the different claims separately. Distributing Company v. Glenmore Distilleries, 267 F.2d 343, 345[3] (6th Cir.1959). “ * * * The objective of Rule 8, supra, was to make complaints simplier, rather than more expansive. * * * ” Harrell v. Directors of Bur. of Narcotics, Etc., supra, 70 F.R.D. at 445[2], citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103[10], 2 L.Ed.2d 80 (1957). Obviously, that objective has not been fulfilled herein, because the complaint does not comply with the requirements of Rule 8, supra. Accordingly, it hereby is

ORDERED that, not more than 20 days herefrom, the plaintiff amend his complaint herein so as to comply substantially with Rule 8(a)(2), (e)(1), supra

ON LEAVE TO FILE AMENDED COMPLAINT

Although the amended complaint tendered by the plaintiff does little to promote the concept of “notice-pleading”, it is at a minimum some improvement. Accordingly, the motion of the plaintiff for leave to file such complaint hereby is

GRANTED. Rule 15(a), F.R.Civ.P.

MEMORANDA OPINIONS AND ORDERS

ON MOTION FOR SUMMARY JUDGMENT

This is a civil action for damages brought by a former assistant United States attorney of this district, Richard L. Windsor, Esq., against the United States Department ' of Justice and certain unknown named agents of that agency. Mr. Windsor moved for a partial summary judgment (on the issue of liability), Rule 56(a), (c), F.R.Civ.P.; and the defendants moved for a dismissal inter alia for the failure of the plaintiff to state a claim upon which relief can be granted or, alternatively, for a summary judgment, Rules 12(b)(6), 56(b), F.R. Civ.P. The motion of the defendants has merit.

The thrust of Mr. Windsor’s complaint is that the defendants disseminated wrongfully false information concerning him to the Board of Professional Responsibility of the Supreme Court of Tennessee (the Board), which body serves as that Court’s disciplinary-arm over the conduct of attorneys admitted to practice law in this state. See Rule 9, § 5, Rules of Supreme Court of Tennessee. This is alleged to have occurred when the unknown defendants submitted to the Board a copy of an affidavit of Doug Thorensen, Esq. (the Thorensenaffidavit). According to Mr. Windsor, this was done to retaliate against him for his bringing of a civil action seeking to redress the circumstances surrounding his discharge from public employment.

In such affidavit, Mr. Thorensen recollects what transpired during a proffer of proof by the witness Mr. Robert Wilkerson which took place in May, 1980 at the office of the United States attorney in Nashville, Tennessee. Mr. Windsor claims that such affidavit represented falsely that during such proffer (or interview) Mr. Wilkerson did not mention the name “John Seigenthaler,” whereas in fact, Mr. Wilkerson had mentioned the name of Mr. Seigenthaler.

The plaintiff contends the defendants’ dissemination of the Thoresen-affidavit to the Board gave rise to six separate claims for relief. First, he asserts (counts 1 & 2) against the defendant agency arising under the provisions of the Privacy Act, 5 U.S.C. § 552a. Next, Mr. Windsor seeks relief (counts 3, 4 & 6) from the individual defendants under the civil-rights conspiracy-statute, 42 U.S.C. § 1985(2), (3). And lastly, the plaintiff alleges a Bivens -type claim against the individual defendants which he claims arises directly under the Constitution, Fifth Amendment. See Davis v. Passman, 442 U.S. 228, 243-244, 99 S.Ct. 2264, 2276[22], 60 L.Ed.2d 846 (1979) (recognizing a Bivens -type cause of action for violations of the Constitution, Fifth Amendment).

I.

In count 1 of his complaint, Mr. Windsor claims that the dissemination of the false information contained in the Thoresen-affidavit to the Board violated the Privacy Act. See 5 U.S.C. § 552a(b). The plaintiff alleges in count 2 that such affidavit was not maintained by the defendant-agency in accordance with the provisions of 28 C.F.R. § 16.56, thus violating 5 U.S.C. § 552a(g)(l). The Department of Justice argues that the Thoresen-affidavit did not fall within the scope of the Privacy Act. This Court agrees:

The Privacy Act “ * * * explicitly requires [federal] agencies to withhold records about an individual from most third parties unless the subject gives his permission. '* * * ” Chrysler v. Brown, 441 U.S. 281, 293, 99 S.Ct. 1705, 1713, n. 14, 60 L.Ed.2d 208 (1979). By its plain terms, however, the Act applies only to agency “records” which are contained in a “system of records”, as those terms are defined in 5 U.S.C. § 552a(a)(4), (5). See Shapiro v. Drug Enforcement Administration, 721 F.2d 215, 217 (7th Cir.1983). The Act does not prohibit the dissemination of information which is acquired from sources other than a “record” maintained in a “system of records.” Thomas v. United States Dept. of Energy, 719 F.2d 342, 345 (10th Cir.1983); see Hanley v. United States Dept. of Justice, 623 F.2d 1138, 1139[1] (6th Cir.1980).

In order to have constituted a “record” subject to the nondisclosure provisions of the Privacy Act, the Thoresen-affidavit must have been “about”, or it must have “pertained to”, Mr. Windsor. DePlanche v. Califano, 549 F.Supp. 685, 696[12] (D.C.Mich.1982). That is to say, the information alleged to have been disclosed improperly must have “ * * * reflected] some quality or characteristic of the individual involved. * * * ” Boyd v. Secretary of the Navy, 709 F.2d 684, 686 (11th Cir.1983), cert. den. sub nom. Boyd v. Lehman, — U.S.-, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984).

The pertinent legislative-history reflects that the Congress was “ * * * preoccupied] with information that is substantively, i.e., in and of itself, reflective of some quality or characteristic of an individual. * * * ” American Federation of Gov’t Emp. v. N.A.S.A., 482 F.Supp. 281, 283[1] (D.C.Tex.1980). In the . opinion of the Court, the information which Mr. Windsor claims was disclosed wrongfully when the defendants submitted a copy of the Thoresen-affidavit to the Board did not constitute a “record” within the meaning of 5 U.S.C. § 552a(a)(4), supra, and therefore, was not protected by such Privacy Act.

The only disclosed information of which Mr. Windsor complains is the representation by Mr. Thoresen that Mr. Seigenthaler’s name was not mentioned at the Wilkerson-interview. That information is not, however, “about”, nor does it “pertain to”, Mr. Windsor; instead, such revelation of Mr. Thoresen is “about”, and “pertains to”, Mr. Thoresen’s own recollection of what was not said at the interview.

The fact that Mr. Thoresen may not have recalled the mention of Mr. Seigenthaler’s name hardly reflects some quality or characteristic of Mr. Windsor. Assuming, as Mr. Windsor alleges, that reference was in fact made to Mr. Seigenthaler during the interview, then Mr. Thoresen’s averment that he did not recall the same reflects some quality or characteristic, not of Mr. Windsor, but of Mr. Thoresen — namely, that Mr. Thoresen has a bad memory or that he prevaricated.

The disclosed information of which Mr. Windsor complains simply is not the type which is afforded protection by the Privacy Act. The Congress did not intend the Act to apply to all information in the hands of government-officials; rather, it sought to avoid indiscriminate circulation of sensitive information about an individual’s private affairs. Houston v. United. States Dept. of Treasury, 494 F.Supp. 24, 27 (D.D.C.1979).

The basic purpose of that Act was “ * * * to protect an individual against an ‘invasion of personal privacy’ * * *.” Johnson v. Department of Treasury, I.R.S., 700 F.2d 971, 976[5] (5th Cir.1983); see Wren v. Harris, 675 F.2d 1144, 1145-46 (10th Cir.1982). Its legislative history makes it clear that the Act was intended to protect only personal information, and not information which reveals nothing about a person’s private affairs. Houston v. United States Dept. of Treasury, supra, 494 F.Supp. at 28-29.

The information with which the plaintiff is concerned is not “personal” and reflects nothing about Mr. Windsor’s private affairs. Thus, as a matter of law, its dissemination did not constitute an invasion of the plaintiff’s personal privacy, and consequently there was not a disclosure of a “record” within the meaning of the Privacy Act. The defendant-agency is therefore entitled to a summary judgment on the plaintiff’s Privacy Act claims.

II.

Inter alia, the defendants contend (counts 3, 4, & 6) that the statute of limitations bars the claims of the plaintiff arising under 42 U.S.C. § 1985, supra, as well as his Bivens -claim (count 5). This Court agrees:

Since the Congress has not provided a federal statute of limitations for actions brought under the provisions of 42 U.S.C. § 1985, supra, this Court must look to the analogous state statute of limitations and its coordinate tolling rules. Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-95, 64 L.Ed.2d 440 (1980); Carmicle v. Weddle, 555 F.2d 554, 555[1] (6th Cir.1977). Here, the most analogous state statute of limitations is T.C.A. § 28-3-104(a), which provides that civil actions for damages arising under the federal civil-rights statutes “ * * * shall be commenced within one (1) year after [the] cause of action accrued.” Thus, as to Mr. Windsor’s claims which arise under 42 U.S.C. § 1985, supra, this 1-year period of limitation “ * * * clearly and specifically has application. * * * ” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975); Wright v. State of Tennessee, 628 F.2d 949, 951[1] (6th Cir.1980, en banc); Brown v. Hipshire, 553 S.W.2d 570, 571 (Tenn.1977).

Likewise, because there exists no federal statute of limitations for Bivens -type actions, this Court must apply the appropriate state statute of limitations. Gaspard v. United States, 713 F.2d 1097, 1102-03, n. 11 [7], (5th Cir.1983); McClain v. Barry, 697 F.2d 366, 371 (D.C.Cir.1983); Marshall v. Kleppe, 637 F.2d 1217, 1222—23[7] (9th Cir.1980); Leonhard v. United States, 633 F.2d 599, 615 (2d Cir.1980), cert. den., 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981); Guy v. Swift and Company, 612 F.2d 383, 385-386, n. 8, (8th Cir.1980); and Beard v. Robinson, 563 F.2d 331, 334 (7th Cir.1977), cert. den., 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978); cf. Harris v. City of Canton, 725 F.2d 371, 374, n. 3, (6th Cir.1984). Accordingly, each of Mr. Windsor’s claims against the individual-defendants is governed by the 1-year period of limitation of T.C.A. § 28-3-104(a), supra.

The plaintiff alleges that the defendants committed their wrongful acts in November, 1981; however, this action was not commenced until June 28, 1983, well more than 1 year after the defendants are alleged to have disseminated wrongfully the Thoresen-affidavit. In an obvious effort to avoid the bar of the statute of limitations, Mr. Windsor alleges (in his complaint) that

* * * [t]he oppressive result of Defendants’ conduct remained in effect upon the Plaintiff until November of 1982, when the alleged charge (see para. 9, above) was dismissed by the Board. Plaintiff brought this action within one year therefrom. * * *

He, thus, appears to contend his action was timely because (1) his cause of action accrued — not in November, 1981, when the defendants acted — but in November, 1982, when the effect of their conduct ceased to have an effect upon the plaintiff; or, (2) the running of the statute of limitations was tolled, or suspended, during the period that the conduct of the defendants remained in effect upon him.

The Court finds no support whatever for the proposition that Mr. Windsor’s cause of action did not accrue until November, 1982, a year after the defendants are alleged to have disseminated wrongfully the false information. The plaintiff cited no authority supporting such a notion, and the Court’s independent research disclosed none.

Under the law of Tennessee, a cause of action accrues when the plaintiff suffers in actuality a legally-cognizable wrong and thus acquires a right to bring suit for redress. Hodge v. Service Machine Company, 438 F.2d 347, 349[2] (6th Cir.1971); Vason v. Nickey, 438 F.2d 242, 246[2] (6th Cir.1971); Armistead v. Clarksville-Montgomery Co. Sch. Sys., 222 Tenn. 486, 437 S.W.2d 527, 528-29[6] (1969). Where, as here, it is alleged that the defendants disseminated wrongfully untruthful information about the plaintiff, the cause of action accrues, and the statute of limitations begins to run, at the time such dissemination takes place. Riley v. Dunn & Bradstreet, 172 F.2d 303, 308[10] (6th Cir.1949); Heller v. Smither, 437 F.Supp. 1, 4-5[5] (D.C.Tenn.1977), aff'd. 578 F.2d 1380 (6th Cir.1978, table); Applewhite v. Memphis State University, 495 S.W.2d 190, 195[6] (Tenn.1973).

The Supreme Court has held (in an action brought under 42 U.S.C. § 1983, supra), that the applicable state statute of limitations begins to run at the time of the alleged wrongful conduct, not at the point when the consequences of such conduct became painful. Chardon v. Fernandez, 454 U.S. 6, 7, 102 S.Ct. 28, 29, 71 L.Ed.2d 322 (1981, per curiam). That being so, then it can hardly be said that the statute of limitations does not begin to run until the result of the wrongful conduct ceases to have an effect upon the plaintiff.

Neither is this Court persuaded that the running of the statute of limitations was tolled,, or suspended, during the period when the result of the defendants’ conduct remained in effect upon Mr. Windsor. “ * * * [T]his notion of tolling is a very limited one. Generally, but for outside influences which may sometimes toll the running of the limitations period (e.g. insanity, minority, etc.) the statute of limitations is not otherwise ‘interrupted.’ * * ” Harris v. City of Canton, supra, 725 F.2d at 376.

Mr. Windsor does not plead fraudulent concealment by the defendants of his cause of action, cf. Campbell v. Upjohn, 676 F.2d 1122, 1126-27 (6th Cir.1982); nor is this a situation where the plaintiff claims he did not discover, or could not have discovered, the existence of his cause of action in a timely fashion, cf. Harvey v. Martin, 714 F.2d 650, 652-653[3] (6th Cir.1983). The circumstances under which T.C.A. § 28-3-104(a) will be tolled are narrowly circumscribed, see Williams v. Hollins, 428 F.2d 1221 (6th Cir.1970); T.C.A. §§ 28-1-106, 109, 110, 111 & 114; Tennessee does not appear to have adopted the view that such statute of limitations will be tolled for so long as the result of a defendant’s wrongful conduct remains in effect upon the plaintiff.

Mr. Windsor, who sought to rely on a rule in avoidance of the statute of limitations, had the burden of establishing such exception; all presumptions were against him since his claim was against the current of the law and founded on exceptions. Akron Presform Mold Company v. McNeil Corporation, 496 F.2d 230, 233[4] (6th Cir.1974), cert. den., 419 U.S. 997, 95 S.Ct. 310, 42 L.Ed.2d 270 (1974); see Richards v. Maryland Ins. Co., 12 U.S. (8 Cranch) 84, 92, 3 L.Ed. 496, 498 (1814) (Exceptions to the operation of a statute of limitations are not favored.). The plaintiff did not meet that burden.

It appearing from the face of the complaint that the plaintiff’s claims against the individual defendants are barred by the applicable statute of limitations, the complaint fails to state a claim against those defendants upon which relief can be granted. Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702[9, 10] (6th Cir.1978). Accordingly, the individual-defendants are entitled to a dismissal of the plaintiff’s claims against them.

It results:

—that the motion of the plaintiff for a partial summary judgment hereby is
DENIED;
—that the motion of the defendants for a summary judgment hereby is
GRANTED as to counts 1 and 2 of the complaint; and,
—that the motion of the defendants for a dismissal for the failure of the plaintiff to state a claim upon which relief can be granted hereby is
GRANTED as to counts 3, 4, 5 & 6 of the complaint herein.

Judgment will enter that the plaintiff take nothing from the defendants herein.

ON MOTION TO ALTER OR AMEND JUDGMENT

The plaintiff moved the Court timely to alter or amend its judgment herein of February 3, 1984 by vacating it.* Rule 59(e), F.R.Civ.P. In support of such motion, it is urged that the Court erred in concluding that the defendants were entitled to such judgment.

Rule 59(e), supra, was added to the Federal Rules of Civil Procedure in 1949 for the sole purpose of making clear that a District Court possesses the power to rectify its own mistakes. White v. New Hampshire Dept. of Employment Sec., 455 U.S. 445, 450, 102 S.Ct. 1162, 1165-66, 71 L.Ed.2d 325 (1982). Such a motion is not intended to relitigate matters already decided by the Court but, rather, is designed to correct manifest errors of fact or law which led to the entry of judgment. Milwee v. Peachtree Cypress Inv. Co., 510 F.Supp. 284, 289—90[5] (D.C.Tenn.1978), aff'd (table) 644 F.2d 885 (6th Cir.1981), cited in Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 122 (6th Cir.1982).

The Court deliberated carefully before concluding that the defendants were entitled to a judgment, and the reasons therefor were delineated in a 20-page memorandum opinion. This Court is not convinced its ruling was erroneous but, if it is wrong, there are appellate judges whose function is to rectify errors made by trial judges. “ * * * Remedies for judicial error may be cumbersome but the injury flowing from an error generally is not irreparable * *.” Maness v. Meyers, 419 U.S. 449, 460, 95 S.Ct. 584, 592, 42 L.Ed.2d 574 (1975).

The motion of the plaintiff hereby is

OVERRULED.

ON MOTION TO PERPETUATE TESTIMONY

The plaintiff moved the Court for an order allowing the perpetuation of the testimony of assistant United States attorney Doug Thoresen pending an appeal herein. Rule 27(b), F.R.Civ.P.* The motion lacks merit.

Rule 27(b), supra, “ * * * is available in special circumstances to preserve testimony which could otherwise be lost. * * * ” Ash v. Cort, 512 F.2d 909, 912[2] (3d Cir.1975). It is applicable

“ * * * to situations where, for one reason or another, testimony might be lost to a prospective litigant unless taken immediately____ Such testimony would thereby be perpetuated or kept in existence and, if necessary, would be available for use at such subsequent time

lb., 512 F.2d at 911, quoting from Petition of Ferkauf, 3 F.R.D. 89, 91, (D.C.N.Y.1943); the rule, however, “ * * * applies only in that special category of cases where it is necessary to prevent testimony from being lost.” Id.

The plaintiff neither claims nor suggests that the taking of the testimony of Mr. Thoresen is necessary to prevent its being lost. Cf. ib., 512 F.2d at 913 n. 16 (“Rule 27(b) would seem to require some verification for a claim that testimony would be lost if unrecorded”). There is no reason to believe that, if the plaintiff does appeal, and if he prevails on such appeal, the testimony of Mr. Thorensen would not be available for use in any further proceedings in this Court.

Accordingly, the motion hereby is

DENIED.

      . " * * * Of course, lengthy exhibits containing extraneous or evidentiary material should not be attached to the pleadings. * * * ” 5 Wright and Miller, Federal Practice and Procedure: Civil, 489, § 1327.

      . In the event the plaintiff does so amend, the defendants may renew their motion to dismiss, addressing the same to the allegations of the amended complaint. See Fritz v. Standard Sec. Life Ins. Co. of New York, 676 F.2d 1356, 1358[4] (11th Cir.1982) (amended complaint supercedes original complaint).

      . All references herein to "the complaint" refer to the amended-complaint of November 14, 1983 which superceded the original complaint herein. Fritz v. Standard Sec. Life Ins. Co. of New York, 676 F.2d 1356, 1358[4] (11th Cir.1982).

      . " * * * Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions. The States prescribe the qualifications for admission to practice and the standards of professional conduct. They also are responsible for the discipline of lawyers. * * * ” Leis v. Flynt, 439 U.S. 438, 442, 99 S.Ct. 698, 700-01(4], 58 L.Ed.2d 717 (1979), reh. den., 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979). The authority of the Supreme Court of Tennessee to promulgate a rule, such as Rule 9, supra, is no longer subject to question. Ables v. Fones, 587 F.2d 850, 851-52 (6th Cir.1978); Petition of

        Tennessee Bar Association, 539 S.W.2d 805, 807[1] (Tenn.1976); Barger v. Brock, 535 S.W.2d 337, 340[1] (Tenn.1976).

      . The affidavit bore the caption and title of a prior civil action brought by Mr. Windsor, Richard L. Windsor, plaintiff, v. The Tennessean, et Al., defendants, civil action no. 80-3770, this district and division, dismissal aff’d. 719 F.2d 155 (6th Cir.1983), motion den., — U.S. -, 104 S.Ct. 546, 78 L.Ed.2d 721 (1983). Ostensibly, the affidavit was prepared for filing in that civil action, although apparently it was never filed.

      . According to the affidavit, five persons were present at such proffer of proof: Mr. Wilkerson, Mr. Thorensen, Mr. John Galese, Mr. Windsor, and an agent of the Federal Bureau of Investigation. Messrs. Thorensen and Galese were attorneys representing Mr. Wilkerson; Mr. Windsor was acting in his capacity as an assistant United States attorney.

      . Mr. Windsor appears to rely on the following two sentences contained in the 7!/2-page affidavit of Mr. Thorensen:
      * * * During the proffer of testimony, I do not recall Mr. John Seigenthaler’s name being mentioned in any respect. Because of the subject matter being discussed at this proffer and because of Mr. Seigenthaler’s position and prominence in the community, I feel confident that had his name been discussed, it would have made an impact upon me, and that I would remember. * * *

      . The only proper defendant in an action brought under the Privacy Act is the federal agency involved, not individual government-officials. Windsor v. The Tennesseean, supra, 719 F.2d at 160[4],

      . “ * * * Whenever any agency * * * fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, * * * the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection. * * * ” 5 U.S.C. § 552a(g)(l)(D).

      . The defendant-agency is not suable under 42 U.S.C. § 1985, supra, since the Congress has not explicitly authorized it to be so sued. City of Whittier v. U.S. Dept. of Justice, 598 F.2d 561, 562[1] (9th Cir.1979), citing Blackmar v. Guerre, 342 U.S. 512, 515, 72 S.Ct. 410, 411, 96 L.Ed. 534 (1952); see also N.L.R.B. v. Nash-Finch Company, 404 U.S. 138, 146, n. 4, 92 S.Ct. 373, 378, n. 4, 30 L.Ed.2d 328 (1971).

      . See Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

      . A Bivens-type action is maintainable only against individual federal-officers; the doctrine of sovereign immunity precludes the bringing of such an action against the United States or its agencies. Laswell v. Brown, 683 F.2d 261, 268 (8th Cir.1982), cert. den., 459 U.S. 1210, 103 S.Ct. 1205, 75 L.Ed.2d 446 (1983); Garcia v. United States, 666 F.2d 960, 966 (5th Cir.1982), cert. den., 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982); Contemporary Mission, Inc. v. U.S. Postal Service, 648 F.2d 97, 104, n. 4 (2d Cir.1981); see Bivens v. Unknown Named Agents of Fed. Bureau of Narc., supra, 403 U.S. at 410, 91 S.Ct. at 2012 (Harlan, J., concurring) (“However desirable a direct remedy against the Government might be as a substitute for individual official liability, the sovereign still remains immune to suit.’’)
      5 U.S.C. § 702, which operates as a waiver of sovereign-immunity in actions for nonmonetary relief brought under 28 U.S.C. § 1331, Warm v.

        Director, Dept. of Treasury, 672 F.2d 590, 591 (6th Cir.1982), is inapplicable to Bivens-type actions in which, by definition, monetary relief is sought. " * * * Bivens established that the victims of a constitutional violation by a federal agent have a right to recover [damages] against the official in federal court despite the absence of any statute conferring such a right. * * * ” Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980).

      . " * * * No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be [to certain specified recipients] * * 5 U.S.C. § 552a(b).

      . See n. 7, supra.

      . " * * * [T]he term ‘record’ means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph * * *.’’ 5 U.S.C. § 552a(a)(4).

      . " * * * [T]he term ‘system of records’ means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual * * 5 U.S.C. § 552a(a)(5).

      . “ * * * The purpose of this Act is to provide certain safeguards for an individual against an invasion of personal privacy * * Preamble to Privacy Act, § 2(b) of Pub.L. 93-579, 5 U.S.C. § 552a note.

      . The Senate report defined the concept of "privacy” as follows:
      "* * * ‘Privacy’, then, is a shorthand term for the restraint on the power of government to investigate individuals, to collect information about their personal lives and activities in society or in ways which are banned by the Constitution, or for reasons which have little or nothing to do with the purpose of government or of the agency involved, as their powers are defined by the Constitution and specific statutes. * * * ”
      S.Rep. No. 1183, 93rd Cong., 2d Sess. 17, reprinted in 1974 U.S.Code Cong. & Ad.News 6916, 6932.

      . In reaching such decision, the Court considered a matter appearing outside the pleadings — the Thoresen-affidavit — and, thus, treated the motion of the defendants in its latter alternative. See Rule 12(b), F.R.Civ.P. The Court did not consider the two affidavits submitted by the movants in support of their motion and expresses no opinion on whether the Thoresenaffidavit was contained in a "system of records."

      . Formerly T.C.A. § 28-304.

      . Mr. Windsor did not submit a response to the motion of the defendants. See Local Rule 8(b)(3) ("Failure to file a response shall indicate that there is no opposition to the motion.")

      . Such a rule would abrogate effectively the statute of limitations in instances of permanent personal injury; for, the defendant’s conduct would remain in effect upon the plaintiff permanently. If that is to be done, it is a matter for the Legislature and not the judiciary. See Kavanagh v. Noble, 332 U.S. 535, 539, 68 S.Ct. 235, 237, 92 L.Ed. 150 (1947); McIver v. Ragan, 15 U.S. (2 Wheat.) 25, 4 L.Ed. 175, 177; Peak v. Buck, 62 Tenn. (3 Baxt.) 71, 73.

      . The motion of the plaintiff, for an order disqualifying the Department of Justice from representing the defendants (including itself) herein, hereby is DENIED: the Congress has provided that" * * * the conduct of litigation in which the United States, or agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.” 28 U.S.C. § 516.
      *" * * * Rule 59(e) may be utilized in timely attempts to vacate [a] judgment. * * * ” Huff v. Metropolitan Life Ins. Co., infra, 675 F.2d at 122.
      *" * * * If an appeal has been taken from a judgment of a district court or before the taking of an appeal if the time therefor has not expired, the district court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the district court. In such case the party who desires to perpetuate their testimony may make a motion in the district court for leave to take the depositions, upon the same notice and service thereof as if the action was pending in the district court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by Rules 34 and 35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the district court.” Rule 27(b), supra.


source: Caselaw Access Project

author: VINCENT L. BRODERICK, District Judge.

license: Public Domain

text:
    Larry SMITH, Petitioner, v. Charles SCULLY, Supt., Green Haven Correctional Facility, Respondent.
    No. 83 Civ. 6712 (VLB).
    United States District Court, S.D. New York.
    Sept. 25, 1984.

      Larry Smith, pro se.
    Atty. Gen. State of New York, New York City, for respondent.
   MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

I.

Petitioner seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to set aside a judgment of the New York State Supreme Court convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and reckless endangerment in the first degree.

Petitioner was sentenced as a second felony offender on the basis of a conviction pursuant to a plea of guilty to a charge of first degree forgery in the State of Georgia in November of 1970.

The New York State Appellate Division affirmed the conviction without opinion. The New York Court of Appeals denied the petitioner’s application for leave to appeal.

II.

Petitioner asserts two grounds for relief under this petition:

(1) The gun and live ammunition seized from his apartment on the night of his arrest should have been suppressed as the product of an illegal search.

(2) His sentencing as a second felony offender was improper because his predicate felony conviction, in Georgia, was unconstitutionally tainted.

With respect to the second ground, since petitioner is challenging the sentence imposed in New York, he is required only to exhaust his New York State remedies prior to seeking federal relief. See United States ex rel. LaNear v. LaVallee, 306 F.2d 417 (2d Cir.1962); 28 U.S.C. § 2254. I find that petitioner has exhausted his New York State remedies with respect to both claims, and I have jurisdiction to address petitioner’s petition on the merits.

For the reasons which follow, petitioner’s application for a writ of habeas corpus is denied.

III.

Petitioner contends that the evidence used against him in the trial court was the product of an illegal search, and that his Fourth Amendment rights to protection against the use of illegally obtained evidence were violated. This is not, at least in New York, a proper ground for federal habeas corpus relief. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 67 (1976); McPhail v. Warden, 707 F.2d 67 (2d Cir.1983).

The Supreme Court of the United States has held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046, 49 L.Ed.2d 1067 (1976) (footnote omitted). The Stone doctrine has been consistently applied by the Second Circuit. See, e.g., McPhail v. Warden, 707 F.2d 67, 69 (2d Cir.1983); Styers v. Smith, 659 F.2d 293, 294 (2d Cir.1981); Gates v. Henderson, 568 F.2d 830, 837 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978). The focus of the Stone v. Powell standard is the word “opportunity”: it means that the state must make available “a statutory mechanism” for the suppression of evidence obtained by illegal search and seizure. McPhail, 707 F.2d at 69; Gates, 568 F.2d at 837. New York provides such opportunity. See N.Y.Crim. Proc.Law § 710, 10 et seq. (McKinney 1971 & Supp.1982-83).

IV.

Petitioner contends that his previous felony conviction in Georgia before Judge Holt rested upon a guilty plea in which he was not aware of the elements of the crime, primarily due to ineffective assistance of counsel. He does not assert ineffective assistance of counsel as a separate ground for relief, but rather claims that he was not apprised by anyone, including his attorney, of the elements constituting the crime of forgery. He also claims that his plea was tainted as the judge did not elicit a factual basis for it at the plea hearing.

Section 70.06 of the New York State Penal Law mandates increased punishment for a person committing a second felony within a 10-year period of a prior felony conviction. However, an invalid conviction cannot be used as a predicate in sentencing a defendant as a second felony offender. U.S. ex rel. Easterling v. Wilkins, 303 F.2d 883 (2d Cir.1962). A prisoner is entitled to habeas corpus relief where he was sentenced as a second felony offender and the first conviction was violative of the United States Constitution. U.S. ex rel. Compton v. Wilkins, 315 F.2d 865 (2d Cir.1963).

Petitioner cites McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), for the proposition that “a guilty plea cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” Id. at 467, 89 S.Ct. at 1171. Petitioner, however, admitted at the time of plea in Georgia that he had discussed his rights and the charges with his attorney. He also stated that he understood his rights and was pleading freely and voluntarily. When asked if he had anything to add, petitioner replied that he did not. These “solemn declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977); U.S. v. Rivera-Ramirez, 715 F.2d 453, 458 (9th Cir.1983). There is, moreover, “a strong presumption of regularity in state judicial proceedings.” Honeycutt v. Ward, 612 F.2d 36 (2d Cir.1979), cert. denied, 446 U.S. 985, 100 S.Ct. 2969, 64 L.Ed.2d 843 (1980).

Judge Edwards, in a decision following the New York predicate felony hearing, denied petitioner’s motion to dismiss the State’s application to sentence petitioner as a second felony offender. Thus Judge Edwards necessarily rejected petitioner’s assertions at that hearing that he was misled. I find that Judge Edwards’ judgments as to credibility were appropriate. See U.S. v. Rivera-Ramirez, 715 F.2d at 458. Petitioner’s self-serving conclusory assertions that he was misled are without sufficient support to overcome the strong presumption of truthfulness which the declarations contained in the Georgia record carry, see United States v. Degand, 614 F.2d 176,178 (8th Cir.1980), and the presumption of regularity which obtains with respect to the Georgia proceedings, see Honeycutt v. Ward, supra.

The Georgia Rules of Criminal Procedure required that the indictment or accusation be read to the defendant and that he be required to answer to it orally. Ga.Code Ann. § 17-7-93(a). While it does not appear that the indictment was read to petitioner on the record, from the plea colloquy it appears that constitutional requirements were satisfied. As noted infra, before accepting petitioner’s guilty plea, petitioner was questioned in Judge Holt’s presence, and petitioner stated affirmatively that he had discussed the nature of the charges and his rights with his attorney, and that his plea was entered freely and voluntarily. Judge Holt accepted petitioner’s guilty plea only after this inquiry was satisfactorily made.

Petitioner asserts that Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) requires a trial judge to elicit a factual basis for the plea prior to accepting it, and claims that Judge Holt, presiding over the Georgia plea hearing, did not elicit a factual basis for the plea.

Santobello in fact requires that when a guilty plea is induced by a prosecutorial promise, the essence of the promise must be made known to the sentencing judge, and the prosecutor must adhere to his promise. Santobello does not, in fact, seem to have particular application to this set of facts, aside from the fact that it noted that “Fed.Rule Crim.Proc. 11, governing pleas in federal courts, now makes clear that the sentencing judge must develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge.” Santobello v. New York, supra, 404 U.S. at 261, 92 S.Ct. at 498 (emphasis in original).

Rule 11 requires, inter alia, that the court “shall not enter-a judgment upon a plea of guilty unless it is satisfied' that there is a factual basis for the plea.” Petitioner maintains that the plea was defective because the requirements of Rule 11, Fed.R.Crim.P., were not met.

Obviously Rule 11, a federal rule, is not as a matter of law applicable to state courts. Roddy v. Black, 516 F.2d 1380 (6th Cir.1975), cert. denied, 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1976); Cammack v. New York, 457 F.Supp. 1190 (E.D.N.Y.1978). The question is whether its requirement that federal judges satisfy themselves that there is a factual basis for the plea is a statutory restatement of a constitutional requirement. I find that it is not.

I note preliminarily that Rule 11(f) does not particularly address itself to inquiries by the court at the time of plea. It rather constrains the judge not to enter judgment upon a plea of guilty until he has satisfied himself that there is a factual basis for the plea:

(f) Determining accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

Such inquiry should satisfy the judge that the defendant is pleading voluntarily with an understanding of the nature of the charge, and that the defendant’s conduct falls within the charge. That satisfaction may presumably be derived by making inquiry of the defendant, or of the attorneys, or it may even be derived from the presentenee report:

An inquiry might be made of the defendant, or of the attorneys for the government and the defense, of the presentence report when one is available, or by whatever means is appropriate in a given case.

Notes of Advisory Committee on Rules.

In United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979), the Court held that collateral relief was not available when it was shown that the district judge had failed to inform petitioner of a mandatory special parole term. The Court noted that the district court’s omission was a formal violation of Rule 11. “Such a violation is neither constitutional nor jurisdictional: the 1966 amendment to Rule 11 could not amend the Constitution or limit the jurisdiction of the courts.” Id. at 783, 99 S.Ct. at 2087. The Court limited its holding to formal violations of Rule 11 and emphasized that the formal violation had not prejudiced the petitioner’s due process rights. Furthermore, the Court specifically declined to determine what effect an aggravating circumstance would have had on the decision.

A factual basis inquiry is not constitutionally imposed on the states. Willbright v. Smith, 564 F.Supp. 396 (S.D.N.Y.1982), remanded, 729 F.2d 1441 (2nd Cir.1983) , on remand in unpublished opinion (1984), aff'd 745 F.2d 779 (2nd Cir.1984). Cf. Fambo v. Smith, 433 F.Supp. 590, 593 n. 1 (W.D.N.Y.), aff'd, 565 F.2d 233 (2d Cir.1977) (the court did “not find that New York State courts must follow the practice of the federal courts under the Federal Rules of Criminal Procedure, Rule 11 [citation omitted], and establish on the record that a factual basis for the guilty plea exists____”). Due process requirements are met so long as a guilty plea is intelligently and voluntarily entered. See Willbright v. Smith, 564 F.Supp. 396, 399 remand 745 F.2d 779 (2nd Cir.1984); Fambo v. Smith, 433 F.Supp. at 594; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Siegel v. State of New York, 691 F.2d 620 (2d Cir.1982), cert. denied, 459 U.S. 1209, 103 S.Ct. 1201, 75 L.Ed.2d 443 (1983). If there are no aggravating circumstances, due process is satisfied, for example, when the pleader has been advised by competent counsel and the plea was accepted by a judge familiar with the underlying facts. See Willbright v. Smith, 564 F.Supp. at 400; Godwin v. United States, 687 F.2d 585, 590 (2nd Cir.1982).

Although the record does not indicate that Judge Holt made a factual inquiry prior to accepting petitioner’s guilty plea, or that Judge Holt was familiar with the underlying facts, petitioner’s due process rights were satisfied. As set forth in the record before Judge Edwards, Judge Holt, prior to accepting petitioner’s guilty plea, had the defense counsel, the district attorney, and the probation officer for plea negotiations retire to a room and engage in off-the-record discussions. The parties then reported to Judge Holt and in his presence inquiry was made of the petitioner to make sure that he had been told by his attorney of the nature of the charges and of his rights, and that his plea was freely and voluntarily given. {See footnote 3). While ideally the explication of the charges and of the petitioner’s rights would have been on the record to facilitate review, see Fambo v. Smith, 433 F.Supp. at 593, n. 1, I am satisfied that petitioner knowingly and voluntarily pled guilty to the Georgia charges.

There are no aggravating circumstances in the instant case which would have signalled a need for a factual basis inquiry. See Suggs v. LaValle, 570 F.2d 1092 (2d Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 290, 58 L.Ed.2d 263 (1978) (plea held invalid because Suggs had been mentally incompetent when they were entered); United States ex rel. Dunn v. Casscles, 494 F.2d 397 (2d Cir.1974) (plea held invalid because defendant gave inconsistent answers at the plea allocution). As previously noted, the Supreme Court in United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), specifically limited its holding as to the lack of a constitutional requirement for a Rule 11 inquiry to situations in which there are no aggravating circumstances.

I find that, with respect to the predicate felony, Judge Holt’s failure to elicit a factual basis for the plea does not warrant holding that conviction invalid. Judge Holt could have concluded on the proceedings before him that the petitioner was aware of the nature of the crime to which he was pleading guilty. There were no aggravating circumstances which would have warranted a further factual inquiry.

SO ORDERED.

      . I directed the state to respond only to petitioner’s second claim, and to address specifically the issue of whether petitioner was required to exhaust both Georgia and New York State remedies.

      . Petitioner’s case properly falls within the statute. He was convicted of the felony of first degree forgery on November 19, 1970. He committed his second felony, criminal possession of a deadly weapon in the second degree, on September 3, 1980. See N.Y.Penal Law § 70.06 (McKinney’s 1975 & Supp. 1983-84). In New York, the second felony offender provisions of the statute are mandatory on the sentencing judge. People v. Brown, 54 A.D.2d 719, 387 N.Y.S.2d 470 (App.Div., 2d Dept. 1976).

      . The plea colloquy conducted before Judge Holt by Tom Hayes, Esq., of the Fulton County District Attorney’s office, contained the following:
      MR. HAYES: Did you discuss the nature of these charges with your attorney?
      DEFENDANT: Yes.
      MR. HAYES: Did you discuss your rights with your attorney, Mr. Smith?
      DEFENDANT: Yes, sir.
      MR. HAYES: You understand you have a right to a trial by jury?
      DEFENDANT: Yes.
      MR. HAYES: You understand you have a right at this trial to be confronted by witnesses appearing against you and having your attorney cross-examine these witnesses?
      DEFENDANT: Yes, sir.
      MR. HAYES: You understand that if you plead now you waive all these rights and the judge can sentence you here and now?
      DEFENDANT: Yes.
      MR. HAYES: Has anyone made any threats or promises in order to induce you to plead guilty?
      DEFENDANT: No.
      MR. HAYES: How do you plead to forgery in the first degree?
      DEFENDANT: Guilty.
      MR. HAYES: Is this plea freely and voluntarily given?
      DEFENDANT: Yes.
      Transcript of proceedings, November 19, 1970, p. 2-3.

      . Petitioner asserts that New York law with respect to pleas warrants a finding that the plea was tainted. First, it is not clear that New York law has any bearing on the determination of the validity of the Georgia plea. Second, New York law is not clear on the issue. While one New York Supreme Court case states that ”[i]n order for a plea to be legally sufficient, it is necessary for the defendant to admit his participation ... in such a way that all of the elements of the crime are established," People v. Jasper, 107 Misc.2d 992, 436 N.Y.S.2d 185, 187 (Sup.Ct.N.Y.Co.1981), an Appellate Division case held that "there is no requirement that the defendant shall himself admit to the underlying facts making out the crime.” People v. Colon, 77 A.D.2d 370, 372, 433 N.Y.S.2d 766 (1st Dep't 1980). The Court of Appeals has stated that “[i]t is highly doubtful that a uniform mandatory catechism of pleading defendants should be required.” People v. Nixon, 21 N.Y.2d 338, 353, 287 N.Y. S.2d 659, 234 N.E.2d 687 (1967).

      . In 1971, the year after petitioner’s conviction in that state, the Supreme Court of Georgia decided that Georgia state judges, in accepting a plea of guilty, have the same duty in satisfying themselves that there is a factual basis for the plea as do federal judges under Rule 11. Purvis v. Connell, 227 Ga. 764, 182 S.E.2d 892 (1971).

      . MR. HAYES: Is Mr. Ward Matthews your attorney? Excuse me one second. Who is your attorney?
      MR. SMITH: Mr. Smith, Mr. Andrew Smith.
      MR. MATTHEWS: Now, he has discussed this matter thoroughly with you, has he not?
      MR. SMITH: Yes.
      MR. MATTHEWS: And we have discussed it with the district attorney.
      MR. SMITH: Yes.
      MR. MATTHEWS: And Mr. Smith has asked me to stand here with you for the purpose of entering a plea, is that correct?
      MR. SMITH: Yes, sir.
      MR. MATTHEWS: Are you satisfied for me to do that?
      MR. SMITH: Yes.
      MR. HAYES: Did you discuss the nature of these charges with your attorney, Mr. Smith?
      MR. SMITH: Yes.
      Transcript of proceedings, November 19, 1970, p. 2.

      . I note that petitioner has not raised ineffective assistance of counsel as a separate ground, but only in claiming he was not apprised of the elements of the crime. As noted supra, petitioner’s statements on the record at the time of plea are to be accorded great deference.


author: BEAM, District Judge.

text:
    The ARCHBISHOP BERGAN MERCY HOSPITAL, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, et al., Defendants.
    No. Cv 84-0-791.
    United States District Court, D. Nebraska.
    Feb. 1, 1985.
    On Motion for New Trial and Stay March 18, 1985.
    Lyman L. Larsen, Patricia A. Zieg, William T. Oakes, Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., for plaintiff.

      Douglas Semisch, Asst. U.S. Atty., Omaha, Neb., and Paul P. Cacioppo, Regional Atty., Region VII, Dept, of Health & Human Services, Frances Reddis, Asst., Washington, D.C., for defendants.
   MEMORANDUM OPINION

BEAM, District Judge.

This matter is before the Court on plaintiff’s request for preliminary injunction (filing 1), defendants’ motion to dismiss (filing 12) and plaintiff’s motion for summary judgment (filing 19).

Plaintiff, the Archbishop Bergan Mercy Hospital, is a provider of hospital services under Part “A” of the Medicare Act. 42 U.S.C. §§ 1395 et seq. Defendant, Margaret Heckler, is Secretary of Health and Human Services and is the federal officer charged with the administration of the Medicare program. Pursuant to 42 U.S.C. § 1395g, the Secretary is responsible for determining the amount which should be paid to each provider for services furnished under the Medicare program. The Secretary, however, more commonly contracts with private organizations, referred to as fiscal intermediaries, to assist in the administration of the Medicare program. 42 U.S.C. § 1395h. The intermediaries perform a variety of functions under the Medicare program, such as determining the amounts which are payable to providers and making the actual payments. Defendant, Mutual of Omaha, was plaintiff’s fiscal intermediary for the year in question.

The Medicare statute requires that the Secretary reimburse Part A providers based on the provider’s “reasonable cost” of rendering covered services to eligible beneficiaries or, if lower, the customary charges for such services. 42 U.S.C. § 1395f(b). The Act defines reasonable cost as the “cost actually incurred, excluding therefrom any part of incurred cost found to be unnecessary in the efficient delivery of needed health services.” The statute further provides that the reasonable costs of services shall be determined pursuant to regulations promulgated by the Secretary “establishing the method or methods to be used, and the items to be included, in determining such costs for various types or classes of institutions, agencies and services.” 42 U.S.C. § 1395x(v)(l)(A). The Secretary has enacted an extensive set of regulations implementing and defining the reasonable cost reimbursement process. 42 C.F.R. §§ 405.-401 et seq.

In 1982, with the enactment of the Tax Equity and Fiscal Responsibility Act (TE-FRA), Congress placed limitations upon the reimbursement of a provider’s costs in anticipation of the development of a new prospective payment system, which would reimburse providers on a per discharge basis, depending upon the type of service provided for individual patients, rather than reimburse for all reasonable costs incurred in providing those services.

One such limitation, established by TE-FRA, is designated the “target amount” whereby a hospital’s operating costs, per discharge, are limited to the allowable operating costs of in-patient hospital services for the preceding twelve-month cost reporting period, which in Bergan Mercy’s case was the cost year ending June 30, 1983. 42 U.S.C. § 1395ww(b). This year, therefore, is sometimes referred to as the TEFRA base year.

The “target amount” limit on operating expenses also contains certain incentive and penalty provisions. As an incentive for hospitals to keep costs down, the Medicare Act provides that if a hospital’s operating costs are less than its target amount, the payment the hospital receives is equal to its costs plus “(i) 50% of the amount by which the target amount exceeds the amount of the operating costs, or (ii) 5% of the target amount, whichever is less; ...” 42 U.S.C. § 1395ww(b)(l). On the other hand, if the hospital’s costs are greater than its target amount, the hospital’s payment is equal to the target amount plus twenty-five percent of the amount by which the amount of the operating costs exceed the target amount. 42 U.S.C. § 1395ww(b)(l). Thus, if a hospital keeps its costs below the target amount it receives payment in excess of its cost. If, however, costs exceed the target amount, the hospital is paid less than its costs.

Congress has mandated that providers shall receive periodic payments (at least monthly) of amounts due them for services furnished under the Medicare Act. 42 U.S.C. § 1395g. At the end of a fiscal year, a provider submits a cost report to the intermediary for purposes of reaching a “tentative settlement.” This cost report is accepted as the basis for the tentative settlement unless the intermediary has reason to doubt its accuracy. The intermediary compares the hospital’s allowable costs with the amount paid to the hospital through periodic payments and determines if there has been any overpayment or underpayment to the provider. This is known as the “initial retroactive adjustment.” 42 C.F.R. § 405.454(f)(2). Any amount owed by either party must be paid within thirty days; thereafter, interest accrues on the amount due. ' 42 U.S.C. § 1395g(d); 42 C.F.R. § 405.454(f)(2). Subsequently, the intermediary more closely analyzes the cost report and informs the provider of the “final determination” of the amount of Medicare reimbursement through a Notice of Amount of Program Reimbursement (NPR). 42 C.F.R. § 405.1803. By regulation, this final settlement need not be issued for twelve months.

The issue in this case is whether the incentive payments discussed above must be paid to the provider at the time of tentative settlement, or whether it is not due until final settlement. . As required by law, plaintiff filed a cost report for the cost year ending June 30, 1984. Because it had kept its costs below its target amount, plaintiff believed it was entitled to an incentive payment of $767,726.00. On November 13, 1984, defendant Mutual of Omaha advised plaintiff that the tentative settlement review revealed an overpayment of $1,052,644.00, and requested refund of the overpayment within thirty days. In a letter dated November 20, 1984, plaintiff requested that Mutual of Omaha recognize that it need not refund the amount of the incentive payment plaintiff claimed was due. Mutual of Omaha responded on November 30, 1984. Although the intermediary did not dispute plaintiff’s calculation of the incentive payment, Mutual of Omaha contended that the incentive payment could not be made until the NPR was issued. The intermediary was complying with an August 9, 1984, policy memorandum issued by the Health Care Finance Administration Office on behalf of defendant Secretary of Health and Human Service. The Secretary’s position was that the incentive payments are not costs and, therefore, need not be reimbursed throughout the cost reporting period.

Plaintiff filed suit, seeking a court determination of its entitlement to the incentive payment at the time of tentative settlement. Plaintiff has asked for a preliminary injunction restraining the intermediary from collecting as part of the overpayment the disputed $767,726.00. The dispute is not about the amount of the incentive payment, but rather its timing. At stake is the right to hold, and draw interest on, the disputed sum between the tentative settlement and the issuance of the NPR, some twelve to eighteen months.

Plaintiff has alleged that jurisdiction is available under 28 U.S.C. § 1331, 28 U.S.C. § 1361, 28 U.S.C. § 1651, and 5 U.S.C. § 702. Defendants have filed a motion to dismiss, claiming that this Court is without jurisdiction. In addition, defendants claim that even if the Court assumes jurisdiction plaintiff’s claim does not satisfy the requirements for a preliminary injunction, as discussed in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir.1981). Finally, plaintiff has filed a motion for summary judgment.

I.

Defendants contend that under Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984), this Court does not have federal question jurisdiction over plaintiff’s claims. In Ringer the Supreme Court held that 42 U.S.C. § 405(h), made applicable to the Medicare Act by 42 U.S.C. § 1395Ü, bars jurisdiction pursuant to § 1331 as to all claims arising under the Medicare Act. Plaintiff argues that Ringer is distinguishable because in this case, unlike in Ringer, plaintiff has no adequate remedy under the Medicare scheme and no other way to obtain judicial review.

Plaintiff asserts that federal question jurisdiction exists over two categories of claims, statutory and constitutional. First, plaintiff argues that defendants have failed to comply with the Medicare Act and the appropriate regulations in refusing to pay the incentives at the tentative settlement stage. Second, plaintiff alleges that defendants’ actions violate the Constitution. For purposes of section 1331 jurisdiction, these claims must be viewed separately.

Plaintiff’s statutory claims are clearly barred by Ringer. In Ringer the Court held that jurisdiction over claims arising under the Medicare Act is precluded by section 405(h). In this case plaintiff’s statutory claims clearly arise under the Medicare Act. Plaintiff’s argument that this case is distinguishable because no other avenue of relief exists is without merit. Although in Ringer some plaintiffs did have administrative remedies to exhaust, the named plaintiff did not. As the dissent pointed out, because he had not yet had the requested operation, Ringer had no way to challenge the Secretary’s refusal to pay for it. Ringer, 104 S.Ct. at 2030. He was thus left with no avenue of administrative or judicial review. The Supreme Court held, nonetheless, that section 405(h) barred federal question jurisdiction. Plaintiff’s statutory claims, then, are clearly barred by section 405(h).

Plaintiff’s constitutional challenges present a more difficult issue. Plaintiff contends that other than by way of section 1331 there is no means available to test the constitutionality of actions taken by defendants. The Supreme Court has stated that a statute totally precluding judicial review of constitutional issues “raise(s) a serious constitutional question of the validity of the statute as so construed.” Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 2465, 45 L.Ed.2d 522 (1975). It is a “cardinal principle” that a court should determine if it is “fairly possible” to construe such a statute as to avoid such constitutional doubts. Johnson v. Robinson, 415 U.S. 361, 366-67, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389 (1974).

Prior to Ringer the Eighth Circuit held, in St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283 (8th Cir.1976), that section 405(h) cannot serve to completely bar judicial consideration of constitutional claims. The court distinguished Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), wherein the Supreme Court found that certain constitutional challenges were barred by section 405(h). In Salfi, the plaintiff could still attain review through section 405(g). The Eighth Circuit did not view Salfi as interpreting section 405(h) as a complete bar to federal question jurisdiction when no other review is available. As discussed above, such preclusion presents serious constitutional problems. Thus, the court held that where there is no other adequate form of review, section 405(h) does not foreclose section 1331 jurisdiction over constitutional claims.

This is still the law after Ringer. Although Ringer contains broad language as to the preclusive effect of section 405(h), the claims in that case were statutory, not constitutional. Ringer, then, does not speak to the issue in St. Louis University v. Blue Cross Hospital Service. Therefore, if, as plaintiff contends, there is no other form of review available, this Court has jurisdiction over plaintiff’s constitutional challenges.

Because the Court finds jurisdiction proper under 28 U.S.C. § 1361, this question of the availability of review need not be decided here. Furthermore, the availability of review is a critical component of the Court’s inquiry into the propriety of mandamus, and as such, the issue will be discussed below.

II.

The Supreme Court has not yet decided whether section 405(h) also precludes mandamus jurisdiction. Ringer, 104 S.Ct. at 2022. The Eighth Circuit, however, has found such jurisdiction to be proper. Belles v. Schweiker, 720 F.2d 509 (8th Cir.1983).

Defendants argue that mandamus jurisdiction is not available in this case because plaintiff does not have a clear right to the relief sought and because plaintiff has an adequate remedy under the Medicare Act to challenge defendants’ actions. These arguments, however, go to the availability of a writ of mandamus itself, and not to jurisdiction. The Eighth Circuit has stated, “In resolving whether mandamus jurisdiction is available, the ‘allegations of the complaint, unless patently frivolous, are taken as true to avoid tackling the merits under the ruse of assessing jurisdiction.’ ” Belles, 720 F.2d at 513 (iquoting Carpet, Linoleum & Resilient Tile v. Brown, 656 F.2d 564, 567 (10th Cir.1981). Plaintiff’s allegations are not frivolous; taking them at face value, jurisdiction under 28 U.S.C. § 1361 exists.

III.

Generally, mandamus requires the establishment of three elements: (1) plaintiff has a clear right to the relief sought; (2) a clear duty exists on the part of the defendant to do the act in question, and (3) no other adequate remedy is available. Jeno’s, Inc. v. Commissioner of Patents & Trademarks of U.S., 498 F.Supp. 472 (D.Minn.1980).

In this case the first and second elements are closely related. Plaintiff contends that it has the right, and the defendants must recognize that right, to receive the incentive payment at the time of tentative settlement. Plaintiff points first to 42 U.S.C. § 1395g, dealing with periodic payments to providers, which states, in part:

The Secretary shall periodically determine the amount which shall be paid under this part to each provider of services with respect to the services furnished by it and the provider of services shall be paid, at such time or times as the Secretary believes appropriate (but not less often than monthly) and prior to audit or settlement by the General Accounting Office from the Federal Hospital Insurance Trust Fund, the amounts so determined, with necessary adjustments on account of previously made overpayments or underpayments____” (Emphasis added.)

According to plaintiff, the incentive payment is an amount payable “with respect to services furnished” by the hospital, and, therefore, must be paid periodically and included in the tentative settlement. It is of no consequence that the incentive payment is not strictly a “cost.”

Additionally, plaintiff points out that the Medicare Act requires that interest be paid on amounts due beginning thirty days after a “final determination” is made. 42 U.S.C. § 1395g(d). “Final determination,” as defined in the regulations, includes a tentative settlement. 42 C.F.R. § 405.376. Plaintiff argues that because the Secretary has not disputed the amount of the incentive payment, plaintiff is entitled to interest if it is not allowed to retain the payments.

Defendants, on the other hand, argue that the incentive payments are a bonus, not a reimbursement of costs, and that periodic payments need not be made. The purpose of periodic payment and tentative settlement, say defendants, is to promptly reimburse providers’ costs. This rationale does not apply to a bonus payment. Defendants find support for this position in the regulations. 42 C.F.R. § 405.-463(d)(l)(iii) provides that the incentive payment is determined by comparing the provider’s target rate with its “actual allowable costs.” These “actual allowable costs” are not known until final settlement. 42 C.F.R. § 405.454(f)(1). Therefore, defendants argue, the incentive payment is not due until final settlement.

Defendants also point out that the statutory provisions for administrative and judicial review treat incentive payments differently from reimbursement of costs. 42 U.S.C. § 1395oo. Defendants contend that this further illustrates Congress’ intention that incentive payments are not due until final settlement.

The parties’ positions are both reasonable. The relevant statutes and regulations do not explicitly state when the incentive payments are due and there would be sound reasons for adopting either side’s view. Normally, in such a situation the matter would be left to the Secretary’s discretion. However, because of defendants’ own actions it is necessary to conclude that plaintiff does, in fact, have a right to receive the incentive payment at the time of tentative settlement.

As discussed previously, 42 U.S.C. § 1395ww(b)(l) contains both “bonus” and “penalty” provisions. If a provider keeps costs below its target amount, it receives an incentive or bonus of fifty percent of the amount by which it has kept costs below the target. If a provider’s costs exceed the target amount, its penalty is receiving only twenty-five percent of those costs above the target amount. Prior to the August 9, 1984, policy memorandum, issued on behalf of the Secretary, defendant Mutual of Omaha had been recognizing both the incentive and penalty provisions prior to final settlement. The Secretary’s memorandum sought to end the early payment of incentives but continued the enforcement of the penalty.

The defendants contend that there is no “penalty.” The Medicare Act provides for reimbursement of “reasonable costs.” According to defendants, when a provider’s costs are above the target amount, the excess costs are, by definition, not reasonable. The statute does provide for reimbursement of twenty-five percent of those excess costs. Defendants argue that the twenty-five percent reimbursement is not a penalty, but rather is a partial payment of the hospital’s excess costs. As a payment of costs, they contend, it must be recognized in the tentative settlement, unlike the incentive, which is not a payment of costs.

The Court disagrees. The same statutory section establishes both the incentive and the twenty-five percent reimbursement of costs above the target amount. More importantly, both are determined by a comparison of the same numbers: the provider’s costs and its target amount. If, as defendants contend, it cannot be known until final settlement whether a provider’s costs are less than the target amount, thus entitling it to an incentive payment, it can also only be known at final settlement if costs exceed the target amount, thus entitling the provider to reimbursement of only twenty-five percent of some of its costs. Under defendants’ theory, providers should be entitled to reimbursement of all costs at the preliminary settlement, subject to a reduction if the final audit showed costs in excess of the target amount.

Because defendants enforce the penalty at the preliminary settlement, they must be consistent and recognize the incentive at that time as well. Failure to do so is contrary to the Act and violates plaintiff’s Fifth Amendment right to equal protection. Therefore, the Court conclúdes that plaintiff has established the first two requirements for mandamus.

The parties have argued vigorously and at length over the third requirement for mandamus: whether plaintiff has any other adequate remedy. Defendants contend that the Provider Reimbursement Review Board (PRRB) has jurisdiction over plaintiff’s claim and can afford full relief if plaintiff prevails on the merits. Plaintiff disputes both the existence of PRRB jurisdiction and its authority to grant plaintiff the relief it requests.

If a provider is not satisfied with an intermediary’s decision, it may request a hearing before the PRRB. See 42 U.S.C. § 1395oo. A provider is entitled to such a hearing if it “is dissatisfied with a final determination of the Secretary as to the amount of the payment under subsection (b) or (d) of Section 1395ww of this Title,” which governs incentive payments. 42 U.S.C. § 1395oo (a)(l)(A)(ii). This avenue of appeal is available only after a final determination of the amount of reimbursement, which in this case would be upon the issuance of the NPR.

The PRRB can affirm, modify or reverse the intermediary’s final determination, and its decision is final unless the Secretary reverses, affirms or modifies it within sixty days. 42 U.S.C. §§ 1395oo(d) and (f)(1). Providers can seek review in federal district court of any final decision of the PRRB or the Secretary. Id. Review in federal district court is also available if the PRRB decides it does not have jurisdiction to consider the provider’s claims. Id.; 42 C.F.R. § 405.1842.

Defendants contend that the PRRB is the proper mechanism for plaintiff to challenge the timing of the incentive payment. Plaintiff disputes this, arguing first that the PRRB has jurisdiction only over the amount of the incentive payment, not its timing. Furthermore, plaintiff states that even if the PRRB has jurisdiction, its claim would effectively be moot by the time the PRRB heard the case. If plaintiff returns the amount of the incentive payment now, it loses the ability to get interest on that money until the NPR is issued. The only way the PRRB could remedy this would be to order defendants to pay interest from the time of tentative settlement. Plaintiff contends that interest is only available beginning after the PRRB’s decision. 42 U.S.C. § 1395oo (f)(2); CCH Medicare Guide 117350D, p. 2469-2.

Defendants respond that the PRRB does indeed have jurisdiction over a challenge to the timing of the incentive payment. Should, however, the PRRB conclude it does not have jurisdiction, the issue would be appealable to federal district court, which could then reach the merits. 42 U.S.C. § 1395oo (f)(1); 42 C.F.R. § 405.-1842. Defendants also argue that the PRRB or the federal district court could award interest from the tentative settlement if plaintiff prevails. According to defendants, the provision plaintiff cites is applicable when an underpayment is not indicated by the cost report, but is determined to be due only after appeal. In this case, where the intermediary did not dispute the amount of the incentive payment claimed in the cost report, defendants argue that 42 U.S.C. § 1395g(d) and 42 C.F.R. § 405.376(c)(l)(ii) would allow payment of interest beginning thirty days after tentative settlement. The defendants’ failure to pay the incentive at tentative settlement would be treated as an undisputed underpayment. They state that either the PRRB or the federal district court could award such interest if plaintiff prevails.

Although the answer to the question raised by plaintiff is not crystal clear, and although defendants seem to have indicated a contrary view to plaintiff at another time, the Court finds defendants’ position on the availability of PRRB review and the payment of interest to be reasonable. Accordingly, under defendants rationale, plaintiff does have an alternative avenue of review available and a means through which it can be paid interest from the date of tentative settlement. Therefore, this Court has no jurisdiction at this time over plaintiff’s constitutional claims. Likewise, it is inappropriate to issue a writ of mandamus at this time.

Since, after issuance of the NPR plaintiff may appeal to the PRRB, with review in this Court, a caveat is directed to the defendants. Should this matter return to this Court for review, the defendants will be bound by their interpretation of the statutes and regulations which interpretation permits the PRRB to award plaintiff interest from the time of tentative settlement upon a determination that such is the proper time for payment of the incentive.

An order in conformance with this Memorandum Opinion will be filed this date.

ON MOTION FOR NEW TRIAL AND FOR STAY

This matter is before the Court upon plaintiffs motion for new trial (filing 22) and plaintiffs motion for a stay or in the alternative to vacate order of dismissal and to retain jurisdiction (filing 23).

The Court has been advised by plaintiff that its motion for a stay is moot. Accordingly, that motion shall be denied as moot. Additionally, the Court has carefully considered plaintiffs motion for a new trial and concludes that the motion is without merit.

Plaintiff has also requested the Court to vacate the order of dismissal and retain jurisdiction pending plaintiffs effort to exhaust its administrative remedy. This is the proper course to follow. The Court originally determined that it had jurisdiction over plaintiffs claims, but dismissed the case based on defendants’ representations that the PRRB has jurisdiction to afford plaintiff a complete remedy. The Court noted that in any future action on this issue, defendants would be bound by their assertions. The interests of justice and judicial economy dictate that the Court should retain jurisdiction pending plaintiff’s exhaustion of administrative remedies. See Rosado v. Wyman, 397 U.S. 397, 421, 90 S.Ct. 1207, 1222, 25 L.Ed.2d 44-2 (1970); Granville House v. Dept. of Health and Human Services, 715 F.2d 1292 (8th Cir.1983). After PRRB review the Court can either dismiss the suit or enter the appropriate relief without the necessity of a substantially similar action being filed.

Accordingly,

IT IS ORDERED as follows:

1. Plaintiff’s motion for a stay (filing 22) is denied as moot.

2. Plaintiff’s motion for a new trial (filing 23) is denied.

3. Plaintiff’s motion to vacate the order of dismissal and to retain jurisdiction (filing 23) is granted. The Court shall retain jurisdiction pending plaintiff’s effort to exhaust the appropriate administrative remedies.

      . 42 U.S.C. § 405(h) reads as follows:
      The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under 28 U.S.C. § 1331 and § 1346 to recover on any claim arising under this subchapter.