text:
    Wilson M. YANCY v. AMERICAN PETROFINA, INC.
    Civ. A. No. B-84-29-CA.
    United States District Court, E.D. Texas, Beaumont Division.
    Nov. 21, 1984.

      M. Diane Dwight, Provost, Umphrey, McPherson & Swearingen, Port Arthur, Tex., for plaintiff.
    Donald E. Godwin, James S. Maxwell and Howard W. Walker, Maxwell, Godwin & Carlton, Dallas, Tex., for defendant.
   MEMORANDUM OPINION

JOE J. FISHER, District Judge.

The plaintiff in this cause, Wilson Yancy, has brought suit against American Petrofina (FINA) alleging that FINA unlawfully altered an employee retirement plan in violation of the Employment Retirement Security Act of 1974, 29 U.S.C. Sec. 1001 et seq. (1976) (ERISA). Specifically, Yancy claims that FINA’s alteration of the interest rates used to compute the retirement plan’s lump-sum benefit option forced him to retire years before he would have otherwise ceased working. Yancy seeks monetary damages and an injunction prohibiting the change.

This suit seems to be a novel cause of action, and- not surprisingly, FINA has moved for summary judgment. Oral hearing was held on the motion on August 31, 1984, and both parties submitted briefs. After a careful review of the briefs, the evidence presented, and the arguments of counsel, the Court is convinced that Yancy cannot recover under ERISA as a matter of law because he was not a participant in the retirement plan at the time FINA modified the plan. Moreover, the Court believes that, as a matter of law, Yancy was never denied any retirement benefits under the plan. Accordingly, summary judgment will be entered for defendant FINA and against plaintiff Yancy.

I. THE FACTS

Wilson Yancy was employed as a welder at a Port Arthur, Texas, refinery for twenty-four years. Throughout this period, Yancy participated in a retirement benefits program, which eventually became the “Amdel Inc. Non-Contributory Retirement Plan” (the Plan). Since 1977, the Plan had contained a “lump sum” retirement option, a provision that allowed FINA employees to take their entire retirement benefits in a single payment at the time of their retirement. The lump-sum payment was computed by the use of several factors, the most important of which was a seven percent constant interest rate assumption, in use since 1977.

On January 23, 1982, the Plan administrators sent a letter to all Plan participants, including Yancy, which stated that the interest rate factor would be modified effective April 1, 1982. The modification would reflect the interest rate increase since 1977. This adjustment, as the FINA management recognized, would have the effect of substantially reducing the lump-sum benefit.

Before this letter was sent, however, and before the change came into effect, Yancy was considering retirement. In November, 1981, he requested a determination from the plan administrators of what his pension benefits would be if he took early retirement. Later, Yancy received a report containing the information, including the figure he would be entitled to under the as-yet-unchanged lump sum program. The report was based on a termination date of February 28, 1982. On March 1, 1982 Yancy did take the option to retire early, and elected to take a lump sum payment. On January 27, 1982, he signed the appropriate retirement form, and terminated his work at FINA at the end of February of that year. On March 1st, he received a lump sum payment of $66,942.00.

Yancy, however, was not through with FINA and its retirement plan. On the retirement form he signed, Yancy had written three times the- words “under protest.” This prompted a FINA investigation, which revealed that Yancy felt he was being forced to retire because of the change in the lump sum benefits. The company sent Yancy a letter explaining that the decision to retire was a voluntary one on his part, and that economic changes forced FINA to make the interest rate adjustment. Nothing further happened until after Yancy’s retirement. On May 25, 1983, over a year after Yancy retired, he filed a claim with the plan’s retirement committee. In the claim, Yancy set forth that FINA’s adjustment of the interest rate had breached the terms of the plan, forcing his retirement and causing an income loss of $300,000. The retirement committee denied the claim, and Yancy brought this suit in federal court.

II. THE ISSUES PRESENTED

As in almost every ERISA suit, the complexity of issues can confuse the determination of the legal claim. For clarity’s sake, the Court will recap the issues as they appear to it. Yancy alleges that he was forced to retire when FINA announced the interest rate change for the retirement plan. This, he says, resulted in his not receiving full credit for his contribution to the retirement plan. Moreover, he claims that the modification violated the terms of the plan, which in itself is an ERISA violation.

FINA contends that none of Yancy’s allegations give rise to any genuine issue because:

(1) Yancy retired before the adjustment took effect, and he received all the benefits due him in a lump sum at the time of his retirement. As a matter of law, then, Yancy is no longer a participant or beneficiary under ERISA, and has no standing to sue.

(2) Assuming that there was standing, Yancy’s claim is still meritless under ERISA, because the claim would be for the loss of future, income — not retirement benefits.

This Court agrees with FINA, and its reasoning follows.

III. DISCUSSION

STANDING: Is Yancy a participant or beneficiary?

Pursuant to 29 U.S.C. § 1132(a)(1)(B), a civil action under ERISA may be brought by a participant or beneficiary to recover benefits under a retirement plan, to enforce his rights under the plan, or to clarify his rights to future benefits under the plan. The term participant (and inter alia beneficiary) is stated in the ERISA statute to include any employee or former employee of an organization who is or may be eligible to receive a benefit under a plan. See 29 U.S.C. § 1002(7).

In Nugent v. Jesuit High School of New Orleans, 625 F.2d 1285 (5th Cir.1980), a case relied upon by both plaintiff and defendant, the Fifth Circuit interpreted the phrase “who is or may become eligible” and held it applied to two categories of employees. First, it could apply to a former employee who has accumulated vested benefits, but is not yet entitled to those benefits because they have not reached retirement age. Second, the language could apply to current employees. Id. at 1287. While Nugent dealt with the question of who had the right to request benefit information under ERISA, its language can give this Court direction. It seems clear that it does not allow Yancy to be deemed a participant. Yancy, of course, is not a current employee. Neither can this Court regard Yancy as a former employee who is yet to receive benefits. When Yancy retired on March 1, 1982, he received in lump sum form all the vested benefits that' were due him under the plan.

While there is a scarcity of case law, and the facts of Nugent are dissimilar, logic supports the view that Yancy should not be deemed a participant. By limiting the term “participant” to the area prescribed by Nu-gent, a cognizable class is created. The status of a current employee is easily ascertained, fulfilling the “who is” eligible requirement. Yancy retired a month before the rate changed. Therefore, he was not a current employee. The test of “who may be eligible” is also concrete: It can only be a former employee with a non-forfeitable definite sum due him. Yancy’s claim is for sums not yet earned, but perhaps capable of being earned. He does not take into account the fact that he might have died, that the plant might have closed, or any other possibility that might have kept him from working in the future. In sum, Yancy’s claim is so incapable of determination that it could not be included in the area that Congress intended to cover by the “who may be eligible” language. Yancy’s claim is simply not one for a vested right, and thus he lacks standing on that basis also.

CAN YANCY ALLEGE THERE HAS BEEN A BREACH OF A FIDUCIARY DUTY? .

Yancy has also alleged that FINA, under the terms of ERISA, is a fiduciary in respect to its retirement plan, and as such, it is required to discharge its duties with respect to the plan solely in the interest of the participant and beneficiaries.. FINA, Yancy claims, breached this duty when it changed the lump sum factors, since the intent was to reduce its contribution to the plan, and divert the saved funds to its own corporate purposes. See 29 U.S.C. § 1109.

Pursuant to 29 U.S.C. § 1132(a)(2), this sort of claim can be brought not only by a participant or beneficiary, but also by the Secretary of Labor or a fiduciary. The Court has found that Yancy is not a participant or beneficiary; and of course, he is not the Secretary of Labor. Yancy claims, however, that he is a fiduciary. The Court must reject this argument. 29 U.S.C. § 1002(21)(A) provides that a fiduciary is one who exercises discretionary authority, control, or responsibility respecting the management or administration of the plan, or one who tenders investment advice for the plan. None of these categories include Yancy, who spent his time at FINA as a welder. He cannot bring suit as a fiduciary.

DOES YANCY HAVE A CAUSE OF ACTION?

If the Court is incorrect in believing that Yancy has no standing, then as an alternative basis for summary judgment, the Court believes that Yancy has not made out a cognizable claim under ERISA. To recover in this lawsuit, this Court believes, Yancy must prove up a loss of benefits. Over- a year after his retirement, Yancy made a claim before the Plan’s retirement committee. In his letter to the committee, Yancy stated that the adjustment in the interest factors led to his forced retirement and an “income loss” of $300,000.00. As noted above, the claim was denied.

It is Yancy’s claim letter that illustrates why he has no cause of action. Yancy refers in the letter to his “income loss.” An alleged income loss on the basis of future earnings, this Court believes, does not constitute a loss of benefits under ERISA. An examination of 29 U.S.C. § 1002, the definitions section of ERISA, reveals that the term “benefits” in the statute was meant to encompass normal retirement payments made under the terms of a pension plan. See 29 U.S.C. § 1002(22-23). Yancy received all his “benefits” under the plan in the lump sum payment made at the time of his retirement. No more were due him, and thus he could not make a claim for them. Any other reading of the-term “benefits” under ERISA would replace, a determinable and finite meaning with one that would allow the word “benefits” to fit almost every claim. This could not be what Congress meant in enacting ERISA. In Paris v. Profit Sharing Plan, Etc., 637 F.2d 357 (5th Cir.1981), the Court held that a cause of action under ERISA accrues when a claim for benefits has been denied. Since Yancy has not sought lost benefits, he has not made a claim for them, nor been denied them. Thus, he has no cause of action. See also Reiherzer v. Shannon, 581 F.2d 1266, 1271-72-(7th Cir.1978).

WHY SUMMARY JUDGMENT IS APPROPRIATE HERE

At the oral hearing and in his post-trial briefs, Yancy has strenuously argued that since this is a novel question in an area in which there is a developing case law, there is a need to develop a record and conduct a full trial. Otherwise, Yancy argues, the Court will have “jumped to a decision.”

Yet summary judgment is uniquely appropriate here. Trial on this cause would be conducted non-jury. In the absence of a genuine need to assess witness credibility or demeanor, the decision of issues which would otherwise go to the jury is appropriate on a summary judgment motion when a trial is to the Court. See Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-24 (5th Cir.1978). See also Schwarzer Summary Judgment Under the Federal Rules: Defining Issues of Material Fact, 99 F.R.D. 465 (1984). Of course, the overall standard for summary judgment is that there be no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. McKee v. McDonnell Douglas Technical Services Co., 700 F.2d 260, 263 (5th Cir.1983).

The Court does not believe that there is a need to consider witness credibility or demeanor in this case. Yancy’s counsel has stated that Yancy’s testimony would establish the truth of -his claim that he was forced to retire. Yet that proves nothing. The Court’s resolution here turns on matters of law, and not on Yancy’s state of mind. It should end here. As a matter of law this Court holds that Yancy has no standing to sue under ERISA, and that he has asserted no cognizable cause of action under that statute. It is therefore

ORDERED, ADJUDGED AND DECREED that Plaintiff WILSON YANCY’s case be dismissed, that Defendant, AMERICAN PETROFINA’s motion for summary judgment is hereby GRANTED, and that summary judgment is hereby entered for the Defendant pursuant to Fed.Rule Civ.P. 56(b).

      . The Nugent opinion’s reasoning seems to be grounded on the legislative history of ERISA, which indicates that one of the primary purposes of the Act was to guarantee to former employees the payment of their vested, non-forfeitable benefits from their former employers. Thus, while Nugent turned on the narrow question of who had to request information, the underlying policy it relied on is applicable to the instant cause. See e.g. House Comm, on Education and Labor, Employee Retirement Income Security Act of 1974, H.R.Rep. No. 93-533, 93rd Cong. 2d Sess. reprinted in 1974 U.S.Code Cong. and Ad.News 4339, 4643, 4644. The Nugent court also found it significant that the agencies administering ERISA “do not regard a nonvested former employee as a ‘participant’ ’’. Nugent, 625 F.2d at 1288 n. 9. It is well-established that the interpretation of a statute by the agency charged with administration of that statute is entitled to great deference. Yarbro v. C.I.R., 737 F.2d 479 (5th Cir.1984).

      . Plaintiff originally had made a jury demand in this cause. On motion of the Defendant to strike the demand, which the Plaintiff did not respond to and which was based on sound law, the Court struck the demand.


source: Caselaw Access Project

author: KRAM, District Judge.

license: Public Domain

text:
    Montasham Ali KASHIMIRI, individually and doing business as Sunnyside Drugs, KZR Pharmacy Inc., Qazi Drugs Inc., 288 Grand Street Pharmacy Inc., Seigel Street Pharmacy Inc., Ampak Drugs Inc., West Side Pharmaceutical Inc., Super Star Drug Store Ltd., Shan Pharmacy Inc., Boroad Pharmacy Inc. and 200 Richmond Ave. MK Pharmacy Inc., Plaintiffs, v. Cesar A. PERALES, individually and as Commissioner of the New York State Department of Social Services, Defendant.
    No. 84 Civ. 7680 (SWK).
    United States District Court, S.D. New York.
    Nov. 21, 1984.
    Jerome I. Sager, New York City, for plaintiffs.
    Robert Abrams, Atty. Gen. N.Y., New York City by Gerald Slotnik, Asst. Atty. Gen., for defendant.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

The .above-captioned action is before this Court upon plaintiffs’ motion for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is denied.

BACKGROUND

Plaintiff Montasham Ali Kashimiri is a resident of New York State who apparently owns and/or operates twelve pharmacies located in Kings, New York, Queens, and Richmond Counties. The other ten plaintiffs are domestic corporations that operate eleven of those pharmacies. Each of the plaintiffs is enrolled in the New York State Medicaid Program as a provider of Medicaid services at its respective pharmacies. Plaintiffs derive approximately 90% of their gross revenues from the provision of Medicaid services. Affidavit of Montasham Ali Kashimiri, ¶ 3 (“Kashimiri Aff.”).

Defendant Perales is the Commissioner of the New York State Department of Social Services (“the Department”). As such, he has the primary responsibility for overseeing the various functions and duties of the Department (N.Y.Soc.Serv.Law §§ 17, 34 (52A McKinney 1983)), including the New York State Medicaid Program (N.Y.Soc.Serv.Law § 363 et seq.).

The Department conducted an audit of the records of the pharmacy operated by plaintiff KZR Pharmacy Inc. (“KZR”) at 1374 Broadway in Kings County (Provider No. 00350252) for the period January, 1982, through March 31, 1984. Affidavit of D. Steve Rahmas, ¶ 7 (“Rahmas Aff.”). Based upon a preliminary review of the records of that pharmacy, the Department determined that that provider was making claims for payment for unfurnished, unnecessary, or inappropriate care, services, or supplies, and that the provider may have been making false statements relating to such claims. Id. The Department estimated, based upon the preliminary findings, that it is entitled to recover approximately $140,000 for overpayments to that provider for the period' of the audit. Id.

Based upon those preliminary findings, the Department decided to audit that provider’s records for the period subsequent to March 31, 1984. Rahmas Aff., ¶ 8. On or about August 20, 1984, the Department also decided to defer payments to that provider pending pre-audit, review, and verification. Rahmas Aff., ¶¶ 12, 15.

The Department further decided, based on Kashimiri’s relationship to all the provider pharmacies, that the practices evidenced by KZR at 1374 Broadway were likely to be found pervasive for all twelve provider pharmacies. Rahmas Aff., ¶¶ 10, 11. Consequently, on or about August 20, 1984, the Department decided to defer payments to the other eleven pharmacies pending pre-audit, review, and verification. Rahmas Aff., ¶¶ 12, 15.

No notice of the decision to pre-audit plaintiffs’ claims was given at that time. Plaintiffs’ inquired into the reason they had not received any payments on their claims. Kashimiri Aff., ¶ 5. They were advised of the apparent erroneous billing by KZR, and do not deny that the Department’s preliminary findings are correct. Id. Finally, on or about October 9, 11, and 16, 1984, the Department issued written Orders for Pre-Audit, pursuant to 18 N.Y.C.R.R. §§ 540.11 and 540.8(a)(1), the general provisions of 18 N.Y.C.R.R. § 540, and N.Y.Soc.Serv.Law §§ 20, 34, 363-a, and 367-b (Rahmas Aff., ¶ 13, Exh. I; Exh. A to Complaint), which confirmed the August 20 determination to pre-audit plaintiffs’ claims prior to payment, and effected notice upon plaintiffs of that determination. By their own terms, those Orders for Pre-Audit continue in effect for a period not to exceed ninety (90) days from August 20, 1984. Rahmas Aff., ¶ 14, Exh. I, Exh. A to Complaint.

As of October 29, 1984, the Department had withheld approximately $55,806.95 in claims from KZR at 1374 Broadway (Rahmas Aff., ¶ 9) and approximately $7,015.24 in claims from plaintiff Boroad Pharmacy Inc. (id, ¶ 28) in addition to sums not listed for the other plaintiff providers. It appears that as of this date none of plaintiffs’ claims have been pre-audited as yet. Therefore, none of plaintiffs’ claims since August 20 have been either verified or rejected.

Plaintiffs brought this action, pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), seeking a declaration that 18 N.Y.C.R.R. § 540 is unconstitutional on its face and as applied and enjoining the enforcement of said provisions at least insofar as they authorize the suspension of payments to plaintiffs. Plaintiffs then moved by Order to Show Cause dated October 24, 1984, for a preliminary injunction staying the suspension of payments to plaintiffs pending the determination of this action. That motion is currently before the Court.

DISCUSSION

The standards governing the issuance of a preliminary injunction are well established in this Circuit. A preliminary injunction will issue only upon

a showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.

Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2nd Cir.1979); see also, e.g., Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2nd Cir.1979).

Based upon the affidavits and memoranda submitted, and upon counsel’s argument at the hearing held herein on November 9, 1984, the Court finds that plaintiffs have not made the required showing.

Plaintiffs argue that they will suffer irreparable harm if no injunction issues because they will go out of business if they do not continue receiving payment on their claims immediately. Plaintiffs’ claim that financial ruin is imminent seems meritorious in light of the fact that some of the plaintiffs have already been forced out of business by foreclosures and eviction proceedings. While plaintiffs therefore appear to have made the required showing of irreparable harm, that is only one part of the showing they must make. Plaintiffs have utterly failed to show either a likelihood of success on the merits or a fair ground for litigation and a bálance of hardships decidedly in their favor.

Plaintiffs contend that 18 N.Y.C.R.R. § 540 is a violation of the Due Process Clause of the fourteenth amendment and is unconstitutional, both on its face and as applied, because it permits the “de facto suspension” of payments without either a pretermination hearing or a prompt post-termination hearing. In so doing, plaintiffs’ mischaracterize the effect of defendants’ actions and essentially place the cart before the horse in addressing the nature of the process due them.

The Due Process Clause of the fourteenth amendment forbids the State from depriving any person of life, liberty, or property without due process of law. The “property interests” that that clause protects, however, are not defined in, or by, the Constitution. See Goss v. Lopez, 419 U.S. 565, 572, 95 S.Ct. 729, 735, 42 L.Ed.2d 725 (1975). Those “property interests” are “ ‘created and their dimensions are defined’ by an independent source such as state statutes or rules entitling the citizen to certain benefits.” Id. at 572-73, 95 S.Ct. at 735 (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)). Accordingly, this Court must ascertain what property rights plaintiffs have under state law before it can determine whether plaintiffs have been deprived of them without due process.

Plaintiffs baldly assert that they have “property interests in their licenses and the income derived therefrom.” To be sure, plaintiffs do have a property interest in their licenses which would preclude their termination without due process of law. See Bowens v. N.C. Dep’t of Human Resources, 710 F.2d 1015 (4th Cir.1983); Case v. Weinberger, 523 F.2d 602 (2d Cir.1975); Pelini v. Blum, 555 F.Supp. 181 (S.D.N.Y.1983). This, however, is because under New York law, plaintiffs could not be terminated except for cause. 18 N.Y.C.R.R. § 515.4(a). Likewise, plaintiffs have a property interest in the withheld payments which would preclude their suspension without due process of law. See Kimani v. Perales, No. 84-4068, slip op. (S.D.N.Y. October 30, 1984); Pelini v. Blum, 555 F.Supp. at 183; Greenspan v. Klein, 442 F.Supp. 860 (D.N.J.1977); cf. Barry v. Barchi, 443 U.S. 55, 64 n. 11, 99 S.Ct. 2642, 2649 n. 11, 61 L.Ed.2d 365 (1979) (suspension under state law “only upon proof of certain contingencies”). Again, this is because under state law, plaintiffs’ suspension would be proper only upon proof of certain things. 18 N.Y.C.R.R. § 515.4(b). In this case, however, contrary to plaintiffs’ characterization, defendant has neither terminated nor suspended plaintiffs’ rights to the claims they have filed. Siddiqui v. New York State Dep’t of Social Services, No. 8258-84, slip op. at 5-6 (Sup. Ct.Albany Co. October 1, 1984). Rather, defendant has simply imposed an additional step in the verification process to be followed prior to payment of those claims. Once those claims have been properly verified by means of the pre-audit, defendant will pay them to plaintiffs.

In order to succeed on its claim, therefore, plaintiffs must establish that they have a property interest in the immediate payment of their claims without prior verification pursuant to pre-audit procedure. This they have utterly failed to do.

It appears that under New York law, payment of these bills is required to be made promptly, but in no event more than twelve months after the services were rendered. Siddiqui supra; Bay Ridge Diagnostic & Analytical Laboratory, Inc. v. Smith, 71 A.D.2d 889, 419 N.Y.S.2d 638 (2nd Dep’t 1979); 18 N.Y.C.R.R. § 302.1.

Furthermore, the pre-audit procedures applied to plaintiffs appear to be authorized by state law as long as they do not result in a delay in payment longer than the twelve months prescribed by 18 N.Y.C.R.R. § 302.1. Regulation 540.11 provides that “[t]he public welfare official shall establish internal practices that will safeguard the proper expenditure of funds for medical care.” 18 N.Y.C.R.R. § 540.11. Regulation 540.8 provides that the public welfare official will verify bills received for medical assistance rendered. The pre-audit procedures attacked in this case have been found proper pursuant to those regulations and the general administrative duties imposed on the Department by N.Y.Soc.Serv.Law §§ 20, 34 and 363-a. Siddiqui, supra.

Accordingly, plaintiffs’ property interest in the withheld payments is defined under state law as a right to receive payment on claims submitted for services rendered after verification or within twelve months of the rendering of those services, whichever is sooner. Defendant’s conduct in this case appears to have in no way abridged that property interest; therefore, plaintiffs have not shown a likelihood of success on the merits of their claim that defendant’s conduct violated their due process rights or even that a fair ground for litigating that issue exists.

Thus, plaintiffs’ motion for a preliminary injunction is DENIED.

SO ORDERED.

      . It is not clear what relationship Kashimiri has with each of the pharmacies. None of plaintiffs’ papers herein (the complaint, the memoranda in support of the motion, the affidavits in support of the motion) details the relationship. Defendant asserts "upon information and belief’ that Kashimiri "is the owner and/or agent” of these pharmacies (Affidavit of D. Steve Rahmas, ¶ 10), and the Court will take this to be true.

      . KZR Pharmacy Inc.; Qazi Drugs Inc.; 288 Grand Street Pharmacy Inc.; Seigel Street Pharmacy Inc.; Ampak Drugs Inc.; West Side Pharmaceutical Inc.; Super Star Drug Store Ltd.; Shan Pharmacy Inc.; Boroad Pharmacy Inc.; and 200 Richmond Ave. MK Pharmacy Inc.

      . KZR Pharmacy Inc. operates two pharmacies.

      . KZR Pharmacy Inc. has one provider number for each of the pharmacies it operates.

      . Plaintiffs apparently deny that such audit was ever conducted (Affidavit of Jerome I. Sager, ¶ 6), or, at least, ever properly conducted (id., ¶ 3).

        . Nor do they admit that those findings are accurate.

      . The Complaint alleges that a total of in excess of $240,000 had been withheld from plaintiffs as of October 22, 1984.

      . Plaintiffs’ application for a temporary restraining order temporarily granting that relief was denied on October 24.

      . The Court recognizes that it is unusual to dispose of motions for a preliminary injunction without an evidentiary hearing. See, e.g., Forts v. Ward, 566 F.2d 849 (2nd Cir.1977). The Court, however, expected that the hearing on November 5 would be an evidentiary hearing. The parties chose not to offer testimony at that hearing and should not be heard to cry now or at any future date that they were not provided an evidentiary hearing. See Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 n. 11 (2nd Cir.1970); Sugarhill Records Ltd. v. Motown Record Corp., 570 F.Supp. 1217, 1221-22 (S.D.N.Y.1983). Moreover, this Court finds that there are no relevant issues of fact warranting an evidentiary hearing herein because the determination of this motion is based upon undisputed facts and upon conclusions of law. See Herbert Rosenthal Jewelry Corp. v. Grossbardt, 428 F.2d 551 (2nd Cir.1970).

      . If payment is not made upon verification, then that would be tantamount to suspension and self-help restitution, which require that the procedures outlined in 18 N.Y.C.R.R. Part 515 be followed.


author: MacLAUGHLIN, District Judge.

text:
    In re Petition for NATURALIZATION OF Enayatollah VAFAEI-MAKHSOOS.
    No. Civ. 4-84-761.
    United States District Court, D. Minnesota, Fourth Division.
    Nov. 27, 1984.
    Enayatollah Vafaei-Makhsoos, pro se.
    Michelle A. Egan, I.N.S., St. Paul, Minn., for I.N.S.
   MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on petitioner’s petition for naturalization.

FACTS

The facts in this case are undisputed. Petitioner, a resident of Burnsville, Minnesota, was born in Iran on May 14, 1946 and is a citizen of that country. His last permanent address prior to coming to the United States was in Teheran, Iran. Petitioner entered the United States in June 1968 as a student. Petitioner’s status was adjusted to that of lawful permanent resident alien, pursuant to 8 U.S.C. § 1255, on December 22, 1977.

Petitioner left the United States in July, 1978 and remained outside the country until May of 1979. He left the United States again on or about June 26, 1979 in order to attend his mother’s funeral in Iran and to take care of related family matters. Petitioner was accompanied by his wife, a citizen of Iran, and their child, a United States citizen. The American Embassy in Teheran was taken over by pro-revolutionary students in November of 1979, and the Iranian government banned all travel to the United States during the ensuing hostage crisis. Petitioner was therefore unable to return to the United States until June 1, 1981, at which time the Iranian government had lifted the travel ban.

When the petitioner attempted to reenter the United States, the immigration inspector refused to admit him as a lawful permanent resident because his reentry permit had expired. - Petitioner was admitted to the country under “parole status,” which meant that he could physically enter the United States despite his failure to comply with the legal requirements for entry. INS subsequently began deportation proceedings against him. A hearing was held before an immigration judge on January 20, 1982 and July 21, 1982. The issue at this hearing was whether the petitioner had abandoned his lawful permanent resident status due to his absence. The immigration judge held that petitioner had not abandoned this status, and allowed petitioner to remain in the United States as a lawful permanent resident.

Petitioner filed the- instant petition for naturalization on June 9, 1983. A preliminary investigation which included a sworn statement by the petitioner was conducted on that date. The INS issued its Findings of Fact, Conclusions of Law, and Recommendation on March 15,1984. The naturalization examiner recommended that the petition for naturalization be denied on the ground that the petitioner had been absent from the United States for a period of longer than one year during the five year period prior to the date on which the petition was filed. 8 U.S.C. § 1427(b).

DISCUSSION

The INS has recommended that the instant petition be denied because it is barred by section 316(b) of the Immigration and Nationality Act of 1952, as amended 8 U.S.C. §. 1427(b). That section provides, in pertinent part, that:

Absence from the United States for a continuous period of one year or more during the period for which continuous residence is required for admission to citizenship (whether preceding or subsequent to the filing of the petition for naturalization) shall break the continuity of such residence____

Id. The period of continuous residence that is required for naturalization is five years; the petitioner must be physically present in the country for periods totaling at least half of that time. Id. § 1427(a). The statutory bar in section 1427(b) for those persons absent for more than one year provides exceptions only for individuals employed by the United States government, by an American corporation engaged in foreign trade, by a public international organization, or by an American research institution recognized by the Attorney General.

The petitioner in the instant case clearly falls within the language of section 1427(b). Petitioner was outside of the United States for almost two years during the five year period preceding his naturalization petition. Moreover, he does not fall within one of the specific narrow exceptions to section 1427(b). The issue raised by the instant petition is whether petitioner’s involuntary absence constitutes “absence” within the meaning of section 1427(b). The statutory language itself draws no distinction between voluntary and involuntary absences. Moreover, the INS correctly cites two decisions which have held that a voluntary departure from the United States, followed by an involuntary absence of more than one year, precludes naturalization. United States v. Larsen, 165 F.2d 433 (2d Cir.1947); In re Hilden, 60 F.Supp. 845 (S.D.N.Y.1945) (both interpreting predecessor statute, with identical language). See also In re Holzer’s Petition, 143 F.Supp. 153 (S.D.N.Y.1956) (statute erects absolute bar to naturalization, so that absence for greater than one year constitutes break in continuity of residence, despite financial inability to return). There is no authority to the contrary.

While the strict interpretation of section 1427(b) in Larsen and In re Hilden yields a harsh result, the reasoning of these cases is persuasive. The statute provides for several specific exceptions to the one year absence rule; the involuntary character of the petitioner’s absence is not included within these exceptions. The conclusion that Congress meant to erect an absolute bar in cases of absences greater than one year is strengthened by the fact that the statute specifically allows petitioners the opportunity to demonstrate that they did not abandon their United States residence in cases of shorter absences (from six months to .one year). 8 U.S.C. § 1427(b). Finally, the purpose behind the statute which the court in In re Hilden relied upon provides support for the interpretation that the “one year absence' rule” is an absolute bar. The purpose of the five year continuous residence requirement, according to the court, was presumably to ensure that petitioners for citizenship have been considerably exposed to American institutions. 60 F.Supp. at 846. An exception for involuntary absences would undercut this purpose.

Petitioner’s argument is essentially that since the immigration judge has found that petitioner did not abandon his lawful permanent residence status due to the time he spent in Iran, this period should not be considered as an absence for the purposes of naturalization. This argument is without merit. The issues before the immigration judge at petitioner’s deportation hearing are entirely distinct from the issue presently before the Court in connection with the instant petition for naturalization. At the deportation hearing, the critical issues were whether petitioner intended to abandon his permanent resident status when he left for Iran and whether he had a valid excuse for his failure to secure valid reentry documents. The immigration judge accepted petitioner’s arguments that he did not intend to abandon his status because he planned only a temporary visit, and that the takeover of the United States Embassy constituted sufficient justification for his lack of reentry documents. The above determinations, which are highly relevant to the.question of deportability, simply have nothing to do with whether petitioner has met the statutory requirements for naturalized citizenship.

Accordingly, the Court must deny the petition for naturalization at this time since the petitioner was continuously absent from the United States for a period of more than one year during the five year period prior to the date on which' his petition was filed. The Court notes that petitioner will be allowed to remain in this country as a lawful permanent resident, and that he will be eligible to become a naturalized citizen in June of 1985.

Based on the foregoing, IT IS ORDERED that the petition for naturalization is denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.

      . In contrast to the limited exceptions for absences of greater than one year, the statute allows an individual absent for more than six months but less than one year to prove that he did not abandon his United States residence during that period. Id. § 1427(b).

      . In In re Yarina, 73 F.Supp. 688 (N.D.Ohio 1947), the district court granted a petition for naturalization filed by an individual whose absence for greater than a year was the result of his capture by the Japanese during World War II. The instant case is clearly distinguishable, since the petitioner voluntarily departed from the United States. The court in In re Yarina acknowledged that it might have reached a different result if the petitioner’s initial departure had been voluntary. 73 F.Supp. at 689.


text:
    Michael SENART, Henry Wenzler, Diane Wenzler, James Woitas, Jean Woitas, Roger Valade, Mildred Valade, Eva Callender, El Roy S. Callender, Virginia Bachman, Frank Bachman and LaVonne A. McCarty, Plaintiffs, v. MOBAY CHEMICAL CORPORATION, Upjohn Company, E.I. du Pont de Nemours & Company, Dow Chemical Company, Olin Corporation, Rubicon Chemicals, Inc., BASF Wyandotte Corporation, Monsanto Company, GenCorp Inc., Defendants. and ALLIED CHEMICAL CORPORATION and Union Carbide Corporation, Defendants and Third Party Plaintiffs, v. WHIRLPOOL CORPORATION, Third Party Defendants. Albert HEDIN and Deloris Hedin, Plaintiffs, v. WHIRLPOOL CORPORATION, Mobay Chemical Corporation, Upjohn Company, E.I. du Pont de Nemours & Company, Allied Chemical Corporation, Dow Chemical Company, Olin Corporation, Union Carbide Corporation, Rubicon Chemicals, Inc., BASF Wyandotte Corporation, Monsanto Company, GenCorp Inc., Defendants.
    Nos. Civ. 4-84-568, Civ. 4-84-569.
    United States District Court, D. Minnesota, Fourth Division.
    Nov. 29, 1984.
    David G. Martin, Doherty, Rumble & Butler, St. Paul, Minn., for plaintiffs.
    Gerald M. Linnihan, Arlen R. Logren, Jardine, Logan & O’Brien, St. Paul, Minn., for Mobay Chemical Corp.
    Louis A. Lehr, Jr., Arnstein, Gluck, Lehr, Barron & Milligan, Chicago, 111., and Miehael R. Cunningham, Gray, Plant, Mooty, Mooty & Bennett, Minneapolis, Minn., for Whirlpool Corp.
    William P. Studer, Madge S. Thorsen, W. Joseph Bruckner, Oppenheimer, Wolff, Foster, Shepard & Donnelly, St. Paul, Minn., for Upjohn Co. and Dow Chemical Co.
    William F. Forsyth, Henson & Efron, Minneapolis, Minn., for E.I. du Pont de Nemours & Co.
    Robert T. White, Steven J. Kirsch, Murnane, Conlin, White, Brandt & Hoffman, St. Paul, Minn., for Allied Chemical Corp.
    James P. Larkin, Jerome H. Kahnke, Larkin, Hoffman, Daly & Lindgren, Minneapolis, Minn., for Olin Corp.
    Richard H. Krochock, Rider, Bennett, Egan & Arundel, Minneapolis, Minn., for Rubicon Chemicals, Inc.
    Ronald E. Martell, John M. Harens, Moore, Costello & Hart, St. Paul, Minn., for Union Carbide Corp.
    Martin Burke, Mary H. Terzino, Faegre & Benson, Minneapolis, Minn., for BASF Wyandotte Corp.
    G. Marc Whitehead, Popham, Haik, Schnobrich, Kaufman & Doty, Minneapolis, Minn., for Monsanto Co.
    Robert T. Stich, Lasley, Gaughan, Stich & Angelí, Minneapolis, Minn., for GenCorp Inc.
   MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on the motion of virtually all the defendants for judgment on the pleadings on Count V of the complaints in both actions. Four defendants also seek attorneys’ fees and costs in both actions. One defendant seeks summary judgment on Counts I-IV of the complaint in both lawsuits. One defendant seeks to dismiss Count IV in both actions. Finally, one defendant seeks summary judgment on Count V in both actions.

FACTS

Both of these lawsuits are products liability cases which base their federal jurisdiction on diversity of citizenship. The product at issue is toluene diisocyanate (TDI). The Whirlpool Corporation uses TDI in manufacturing foam insulation for chest freezers. The plaintiffs in Hedin v. Whirlpool Corporation (CIVIL 4-84-569) are former Whirlpool employees who worked at Whirlpool’s Arcade Street plant in St. Paul, Minnesota. The plaintiff in Senart v. Mobay Chemical Corporation (CIVIL 4-84-568) is not a former employee of Whirlpool, but his previous job required him to spend time at Whirlpool’s St. Paul plant. Plaintiffs allege that their exposure to TDI has caused them severe and debilitating injuries, mainly to their lungs and respiratory tracts.

Aside from Whirlpool, the defendants in these cases are manufacturers of TDI. These defendants include both manufacturers who supplied Whirlpool’s St. Paul plant with TDI and manufacturers who did not supply Whirlpool’s St. Paul plant with TDI.

In each case, the first five counts in the complaints are identical. They are:

I Strict Liability
II Failure to Warn
III Breach of Implied Warranties of Merchantaility and Fitness for Use
IV Negligence
V Conspiracy/Concert of Action

Counts I-IV are traditional products liability claims, while Count V is more novel.

In order to understand the conspiracy/concert of action cause of action contained in Count V, more background is necessary. In 1972, the North American producers of isocyanate (TDI is an isocyanate product) formed the International Isocyanate Institute (Int.I.I.) Plaintiffs allege on information and belief that all defendants are or were members of the Int.I.I. In 1973, the National Institute for Occupational Safety and Health (NIOSH) recommended that the prevailing safety standard for exposure to isocyanates be made more stringent. As a response to the NIOSH proposal, in 1974 the Int.I.I. formed a Subcommittee on Toxicity and Occupational Health (Subcommittee). Most defendants had at least one employee who served on the Subcommittee.

Plaintiffs allege that defendants knew of repeated cases of workers being permanently disabled and even dying from exposure to isocyanate. Plaintiffs also allege that defendants knew of a body of scientific evidence which suggested that workers could suffer harm at exposure levels below the prevailing 0.02 parts per million (ppm) standard. Plaintiffs assert that defendants had a duty to warn of the dangers of TDI exposure. Plaintiffs further allege that defendants were aware that a more stringent exposure standard would harm their businesses. Thus, with intentional, willful, and conscious indifference to the lives of individuals, defendants allegedly conspired to influence OSHA to reject the NIOSH proposal. Plaintiffs allege that defendants made arguments against the NIOSH proposal based on inadequate scientific data. Plaintiffs allege defendants knew that users of isocyanate relied on defendants' information, and that defendants conspired to ensure that these users received uniform information. Defendants also allegedly conspired to promote the belief that exposure to isocyanate at levels under 0.02 ppm would harm only a small number of physically abnormal workers. Finally, plaintiffs allege that defendants conspired to “obfuscate and confuse” scientific findings which supported a more stringent standard. Based on this concert of action theory, plaintiffs seek to hold all TDI manufacturers liable regardless of whether they actually supplied Whirlpool with TDI.

DISCUSSION

Plaintiffs have agreed to dismiss their traditional products liability claims, Counts I-IV, against any defendant which did not actually supply Whirlpool's St. Paul plant. Accordingly, plaintiffs have entered into stipulations with all non-supplier defendants except BASF Wyandotte Corporation. BASF refuses to enter into a stipulation because BASF seeks a dismissal with prejudice. Further discovery could, however, establish that BASF did supply Whirlpool’s St. Paul plant with TDI. Consequently, the Court will, in both actions, dismiss Counts I-IV against BASF, but the dismissal will be without prejudice.

The major issue before the Court concerns Count V of the complaints in both actions. Virtually all defendants have moved to dismiss Count V pursuant to Federal Rule of Civil Procedure 12(c), judgment on the pleadings. Count V involves plaintiffs’ conspiracy/concert of action theory.

Conspiracy involves persons combining in order to achieve an unlawful objective or to use unlawful means to achieve a lawful objective. Harding v. Ohio Casualty Insurance Co., 230 Minn. 327, 41 N.W.2d 818, 824 (1950). Persons combining to achieve goals which they have a legal right to seek, even if they are maliciously motivated, do not “conspire.” Harding, 41 N.W.2d at 825. The Court in Ryan v. Eli Lilly & Co., 514 F.Supp. 1004, 1012 (D.S.C.1981) (interpreting North and South Carolina law) stated that it was impossible to conspire to commit negligence or fail to exercise due care. Civil conspiracy, the court continued, had to be based on a criminal act or an intentional tort. Id., citing W. Prosser, Handbook of the Law of Torts, § 46 at 291-93 (1971).

No case interpreting Minnesota law has explicitly adopted or even defined a concert of action theory. One source who has addressed this topic is Dean Prosser. He defines concert of action as

[a]ll those who, in pursuance of. a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him.

Prosser, Torts § 46 at 292 (footnotes omitted). See also Restatement (Second) of Torts § 876 (1979).

Although some courts may not use the label “concert of action,” the classic example of a concert of action case involves drag racing. Collins v. Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37, 46 (1984), see also Marcy v. Bjorklund, 291 Minn. 17, 189 N.W.2d 195 (1971). These cases typically involve an injured bystander suing not only the driver of the car which actually collided with the plaintiff, but also the drivers of the other cars which merely participated in the race. The courts hold even the non-colliding drivers liable because they acted in concert with the colliding driver. E.g., Marcy, 189 N.W.2d at 197.

The most recent examples of cases in which the plaintiffs raise the theory of concert of action are products liability lawsuits concerning the drug DES. E.g., Collins v. Eli Lilly Co., 116 Wis.2d 166, 342 N.W.2d 37, 46 (1984); Ryan v. Eli Lilly & Co., 514 F.Supp. 1004, 1012 (D.S.C.1981). These cases typically involve female plaintiffs whose mothers have taken DES while pregnant with the plaintiffs. These plaintiffs normally have strong cases except for one fatal flaw — they cannot establish which manufacturer provided their mother with DES. In order to circumvent their inability to pinpoint the actual supplier, plaintiffs assert a number of novel theories-including market-share liability (each defendant should pay a share of the judgment proportionate to its market share of DES production) and concert of action (all the DES producers acted in the same manner). See generally Collins, 342 N.W.2d at 42-50. DES plaintiffs have been largely unsuccessful with their concert of action theories. Morton v. Abbott Laboratories, 538 F.Supp. 593, 596 (M.D.Fla.1982), but they sometimes prevail on other theories. E.g., Collins; Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132, cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980).

In the present action, both plaintiffs and defendants apparently agree that concert of action is a possible basis for recovery as both plaintiffs and defendants cite Centrone v. C. Schmidt & Sons, Inc., 114 Misc.2d 840, 452 N.Y.S.2d 299, 302 (Sup.Ct.1982) for the proposition that “[t]he concert of action theory is not applicable where the concerted action is not tortious or inherently dangerous.” Defendants simply argue, however, that plaintiffs’ allegations do not assert an element which is necessary to support a conspiracy or concert of action claim, namely, an underlying crime or tort. The Court agrees.

Defendants did act in concert. Yet, even accepting plaintiffs’ allegations as true, defendants’ concerted action sought only permissible ends and acted only through permissible means. Defendants have never sought to deny the existence of the Int.1.1., but there is nothing inherently wrong with forming an industry-wide trade association. Payton v. Abbott Labs, 512 F.Supp. 1031, 1038 (D.Mass.1981). Defendants also readily admit that they disagreed with and criticized the NIOSH proposal for a more stringent exposure standard. In fact, defendants worked in concert to persuade OSHA to reject the NIOSH proposal. Such actions, however, are clearly permissible as first amendment rights to petition the government include advocating positions before administrative agencies such as OSHA. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611, 30 L.Ed.2d 642 (1972). Defendants, even though they are corporations, also enjoy first amendment rights. First National Bank of Boston v. Bellotti, 435 U.S. 765, 784, 98 S.Ct. 1407, 1420, 55 L.Ed.2d 707 (1978).

Defendants also readily admit that their opposition to the NOISH proposal was based on their concern that the new proposal would harm their businesses. Nevertheless, selfish motivations do not lessen one’s right to present views to the government. Eastern Railroads Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 139, 81 S.Ct. 523, 530, 5 L.Ed.2d 464 (1961). In short, plaintiffs assail defendants for taking a particular view in a scientific debate and for trying to retain a regulatory standard which defendants preferred. Not only do these actions not constitute torts, they are protected by the first amendment.

Plaintiffs also allege that defendants had a common plan not to provide adequate warnings about TDI. Defendants Dow and Upjohn, however, acknowledged the NIOSH proposed standard in the manuals that they gave to TDI users. See Precautions for the Proper Usage of Polyurethanes, Polyisocyanurates, and Related Materials, Upjohn Technical bulletin # 107 ¶ 6.12, at 11 (1973); Safe Handling and Storage of Voranate T-80, Dow bulletin, at 13 (1976). This disclosure is totally inconsistent with allegations of a cover up.

Plaintiffs, apparently anticipating that the Court would conclude that Count V did not state a viable cause of action, implore the Court to allow them to amend their complaints. The Court will not, how-the bulk of their brief to the argument that the Court should recharacterize defendants’ motions as Fed.R.Civ.P. 12(b)(6) motions and then allow plaintiffs to amend their complaint. The Court will not, however, perform this recharacterization nor allow plaintiffs to amend their complaints. The Court need not allow amendments to a complaint where, as in the case here, any efforts to amend would be futile. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

The Court also notes that in the DES cases, the plaintiffs must assert concert of action (or some other theory) in order to overcome their inability to establish who the actual supplier was. If they don’t assert a novel theory, their cases will be dismissed. The plaintiffs in Hedin and Senart, on the other hand, do know (or will be able to discover) which manufacturers actually supplied Whirlpool. These plaintiffs, unlike the DES plaintiffs, do not face the danger of having their lawsuits completely dismissed. Moreover, the traditional products liability claims (Counts I-IY) provide these plaintiffs with the opportunity to receive full compensation for their alleged injuries. The Court consequently will dismiss Count V from the complaint in each of these cases.

Three types of motions remain before the Court. First, no party will be awarded attorneys’ fees or costs at this juncture. Second, Monsanto moved to dismiss Count IV, á traditional products liability claim, in its motions. Count IV will not be dismissed in favor of Monsanto. Finally, Gen-Corp has, in addition to moving for dismissal of Count V, moved for summary judgment on Count V. In light of the Court’s decision to dismiss Count V, this motion is now moot.

Based on the foregoing, IT IS ORDERED:

1. In both Hedin and Senart, as against defendant BASF Wyandotte Corporation, Counts I, II, III, and IV are dismissed without prejudice.

2. Count V of the complaints in both Hedin and Senart are dismissed with prejudice.

3. The motions of defendants Dow Chemical Company, Upjohn Company, Olin Corporation, E.I. du Pont de Nemours & Company in both Hedin and Senart for attorneys’ fees and costs are denied.

4. Defendant Monsanto Company’s motions to dismiss Count IV in both Hedin and Senart are denied.

5. Defendant GenCorp Inc.’s motions for summary judgment on Count V in both Hedin and Senart are denied as moot.

      . Spouses are also plaintiffs in both of these actions. The spouses are suing for lost services, society, companionship, etc.

      . Whirlpool is a third party defendant in Senart.

      . One defendant, GenCorp, has provided an affidavit stating that GenCorp is not and never was a member of the Int.I.I. No other defendant has denied its membership in Int.I.I.

      . NIOSH is part of the Public Health Service, which in turn is part of the U.S. Department of Health and Human Services.

      . The Occupational and Safety Health Administration (OSHA) of the U.S. Department of Labor sets the isocyanate exposure standard. When the Int.I.I. was formed, the prevailing OSHA standard was that a worker could not be exposed to an isocyanate concentration of more than 0.02 parts per million parts of air (ppm). NIOSH recommended to OSHA that over an eight hour work day, a worker should not be exposed to more than 0.005 ppm of isocyanate as a time-weighted average. Also, NIOSH recommended 0.02 ppm as the maximum acceptable concentration standard for any 20 minute period. In sum, NIOSH wanted OSHA to reduce workers' exposure to isocyanate. OSHA did not accept the NIOSH recommendation, and the current standard remains at 0.02 ppm maximum exposure.

      . Defendants allegedly acted through organizations such as the Int.I.I.

      . Defendants Mobay Chemical Corporation and Whirlpool Corporation did not move to dismiss Count V in either Senart or Hedin.

      . For purposes of a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c), the Court accepts plaintiffs’ allegations as true. See National Metropolitan Bank v. U.S., 323 U.S. 454, 457, 65 S.Ct. 354, 355, 89 L.Ed. 383 (1945); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1368, at 691 (1969).

      . Consideration of these documents is permissible because the Court can take judicial notice of facts in ruling on a Fed.R.Civ.P. 12(c) motion. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1367, at 685 (1969).


author: DORSEY, District Judge.

text:
    TRIANGLE CORPORATION v. UNITED STATES of America.
    Civ. No. H-83-1059(PCD).
    United States District Court, D. Connecticut.
    Nov. 28, 1984.
    J. Danford Anthony, Jr., Day, Berry & Howard, Hartford, Conn., for plaintiff.
    Robert A. Brooks, Asst. U.S. Atty., Hartford, Conn., Marilla Lane Ross, Trial Atty., U.S. Dept, of Justice, Tax Div., Washington, D.C., for defendant.
   RULING ON MOTION TO RECONSIDER

DORSEY, District Judge.

In a ruling dated September 27, 1984, and reported at 592 F.Supp. 1316 (D.Conn.1984), defendant’s motion to dismiss this action to recover interest allegedly due on a tax refund, pursuant to 26 U.S.C. § 6611, for lack of subject matter jurisdiction was denied. By letter dated November 5, 1984, defendant requested reconsideration of the ruling and either dismissal of the action or its transfer to the United States Claims. Court. Defendant’s motion to reconsider is granted and for the reasons stated below the previous ruling will stand as herein clarified.

The earlier ruling held only that the United States had waived its sovereign immunity for the purposes of suits to recover interest due on federal income tax refunds, and that the district courts have jurisdiction over such actions. After noting that 28 U.S.C. § 1340 is a general grant of jurisdiction over civil actions brought under acts of Congress providing for internal revenue, the ruling followed the authorities in holding that § 1346(a)(1) waives sovereign immunity and thus vests both the district courts and Claims Court with jurisdiction over such matters. See Draper v. United States, 62-2 U.S.T.C. ¶ 9697 (E.D.Wash.1962); Citadel Indust. v. United States, 314 F.Supp. 245 (S.D.N.Y.1970).

Defendant argues that this court’s earlier reading of § 1340 was too expansive and overlooked the Claims Court’s jurisdiction over this type of case. We shall address these objections in order.

“The great weight of authority establishes that the general grant of jurisdiction contained in 28 U.S.C. § 1340 does not constitute a waiver of sovereign immunity.” Hiller v. United States, 84-1 U.S.T.C. ¶ 9301 at 83,658 (D.Kan.1984). As § 1340 simply provides a forum for the adjudication of claims arising under the internal revenue laws, without waiving sovereign immunity therefor, defendant’s dissatisfaction with the earlier ruling would be proper were § 1346(a)(1) not applicable as the source of the relevant waiver of sovereign immunity. Draper v. United States, 62-2 U.S.T.C. ¶ 9697.

Defendant also questions the court’s concern in the earlier ruling over the possibility that plaintiff could be deprived of a forum. The jurisdiction of the Claims Court was not questioned, as it was merely held that if neither the district courts nor the Claims Court had jurisdiction, then plaintiff would in effect be denied his substantive right to interest. This case involves a sum which has been “erroneously or illegally assessed or collected” within the purview of § 1346(a)(1). Cf. Draper v. United States. It follows that the district courts and the Claims Court have concurrent jurisdiction over the case, that this court may exercise its jurisdiction over this matter, and that the taxpayer may elect his forum between the alternative jurisdictions created by Congress.

SO ORDERED.

      . This holding, of course, was limited to actions to recover interest, the payment of which is mandated by § 6611.

      . As a threshold matter, the same issue is presented as in defendant’s earlier motion: Whether the district courts have jurisdiction over suits to recover interest due on federal income tax refunds. The instant motion additionally poses the question of whether the court should transfer this case to the Claims Court, which also has jurisdiction under §§ 1346(a)(1) and 1491(a)(1).
      To transfer this case to the Claims Court at this juncture would not simplify the disposition of the case. Neither fairness to the litigants nor considerations of judicial economy weigh in favor of transferring this matter. Therefore, since this court properly has jurisdiction over this action, as previously decided, and in the absence of anything persuasive to the contrary, defendant's proposed dismissal of the case for lack of subject matter jurisdiction or, in the alternative, to transfer the case to the Claims Court must be declined. Implicit in the prior ruling is a choice of jurisdictions found to have been created by Congress. To dismiss this case would deny the taxpayer the choice.

      . Section 1340 provides that ”[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue____”

      . Section 1346(a)(1) provides that:
      (a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of:
      (1) Any civil action against the United States for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal revenue laws____”

      . Jurisdiction in the district court under § 1346(a)(1) does not disparage the concurrent jurisdiction of the Claims Court over such matters. Even assuming that the Claims Court has jurisdiction of this matter under the Tucker Act, 28 U.S.C. § 1491(a)(1), "the law is clearly established that the District Courts and the Court of Claims have concurrent jurisdiction over suits for refund of taxes under the Tucker Act____”
        Tecon Engineers, Inc. v. United States, 17 Ct.Cl. 389, 343 F.2d 943, 946 (1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966).

      . Defendant has drawn the court’s attention to the recent case of New Mexico v. Regan, 745 F.2d 1318 (10th Cir.1984), to illustrate the wastefulness of litigating a case in an improper forum. This case was not an action for interest due on a wrongfully assessed internal revenue tax and, therefore, is not controlling. There is nothing wasteful, particularly to the taxpayer, in an interest refund suit being heard in the district court.


author: CHARLES R. RICHEY, District Judge.

text:
    Wilton CHATMAN-BEY, Petitioner, v. William French SMITH, et al., Defendants.
    Civ. A. No. 83-1140.
    United States District Court, District of Columbia.
    Dec. 6, 1984.
    Wilton Chatman-Bey, pro se.
    John C. Martin, Ina Strichartz, Asst. U.S. Atty., Joseph E. diGenova, U.S. Atty., Washington, D.C., for defendants.
   ORDER

CHARLES R. RICHEY, District Judge.

Before the Court is the pro se petitioner’s Motion to Alter or Amend this Court’s October 4, 1984 Opinion and Order in this case, 594 F.Supp. 718. The petitioner, a prisoner at the federal penitentiary at Lewisburg, Pennsylvania, claims that the Fedr eral Bureau of Prisons improperly calculated his parole eligibility date. He brings this motion alleging that the Court misconstrued the applicable law when it granted the defendants’ Motion to Dismiss. For the reasons herein set forth, the Court denies the current Motion to Alter the Judgment.

The petitioner is presently serving, at Lewisburg, three consecutive sentences. The first is a twenty-five year term imposed by the United States District Court for the District of Maryland on January 3, 1975. The second sentence is a ten to thirty year term imposed by the Superior Court of the District of Columbia on June 18, 1975. The third sentence is a term of five years imposed by the United States District Court for the District of Maryland on June 10, 1977. The petitioner began service of these three consecutive sentences on June 4, 1981.

The records office at Lewisburg calculated the date at which Chatman-Bey would be eligible for parole at October 3, 1999. This date was determined by aggregating the minimum terms of two of his three consecutive sentences. The minimum term of his first sentence of twenty-five years is one-third of that time, or eight years and four months. See 18 U.S.C. § 4205(a). The minimum term of the second sentence, imposed by the Superior Court of the District of Columbia, is ten years. See 24 D.C.Code § 204. Since the District of Columbia sentence was consecutive to the first federal sentence, the minimum sentences were aggregated to a total of eighteen years and four months. This calculation resulted in the October 3, 1999 parole eligibility date. It should be noted that the petitioner’s five year sentence imposed by the District Court of Maryland had no effect on this parole eligibility date.

In the present motion, the petitioner again argues that, because his sentences were aggregated for the purposes of determining his parole eligibility date, that date should be no later than ten years from the first day of the sentence by virtue of 18 U.S.C. § 4205(a). That statute, part of the federal parole act, established a ten year ceiling on parole eligibility for federal offenders. If that ceiling applied, petitioner would be eligible for parole in 1991 instead of 1999.

It is clear, however, that the petitioner is not entitled to the benefit of that statute. He has chosen to violate both federal criminal statutes and District of Columbia criminal statutes. He received consecutive sentences for these crimes, a fact which cannot be altered by aggregation of the sentences solely for the purpose of determining his parole eligibility date. To hold that petitioner is entitled to an earlier parole eligibility date would frustrate the intentions of the Superior Court of the District of Columbia, which expressly made his D.C. sentence consecutive to the first federal sentence. Thus, the provisions of the D.C.Code govern the D.C. sentence.

The Court of Appeals’ decision in Frady v. United States Bureau of Prisons, 570 F.2d 1027 (D.C.Cir.1978), also compels this conclusion. The Court there stated that the parole eligibility provisions of the District of Columbia Code, rather than those of the federal parole act, govern a D.C.Code offender: “there is no indication either in the federal parole act or its legislative history that Congress intended by its enactment to supercede the provision of the District of Columbia statute.” 570 F.2d at 1029. In essence, the petitioner claims that the federal provision supercedes that of the D.C.Code. However, Frady makes it clear that petitioner’s District of Columbia sentence is governed by the parole eligibility provisions of the D.C.Code, not those of the U.S.Code. The petitioner, however, was also sentenced under the U.S.Code, and the provisions of 18 U.S.C. § 4205 govern his parole eligibility for that sentence. Thus, because the petitioner received consecutive sentences under both the District of Columbia Code and the United States Code, his parole eligibility date was properly determined by reference to both codes. He plainly is not entitled to the benefit of the ten year parole eligibility ceiling found in 18 U.S.C. § 4205(a).

For the foregoing reasons, it is, by the Court, this 5 day of December, 1984

ORDERED that the petitioner’s Motion to Alter or Amend Judgment and for Relief from Judgment be, and the same is hereby denied; and it is

FURTHER ORDERED that this case shall stand dismissed from the dockets of this Court.


author: RESTANI, Judge.

text:
    The UNITED STATES, Plaintiff, v. GOLD MOUNTAIN COFFEE, LTD., et al., Defendants.
    Court No. 84-4-00858.
    United States Court of International Trade.
    Oct. 16, 1984.
    Rehearing Denied Dec. 17, 1984.

      Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Kevin C. Kennedy, Civ. Div., Dept, of Justice, Washington, D.C., for plaintiff.
    Barnes, Richardson & Colburn, New York City (Andrew P. Vance, Michael A. Johnson, John J. Galvin and Carl J. Lauri-no, Jr., New York City), for defendants.
   OPINION AND ORDER

RESTANI, Judge.

Plaintiff filed a cause of action under 18 U.S.C. § 545 (1982) and § 592 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1592 (1982), alleging that defendants improperly labeled coffee imported from Indonesia as coming from China. Plaintiff seeks both a penalty equal to the value of the improperly labeled coffee (alleged to be $4,961,673) and a forfeiture of the goods.

This case is before the court on defendants’ motion to quash plaintiff’s amended warrant for arrest of property. Previous to issuance of the arrest warrant, the Customs Service and defendants entered into a constructive seizure agreement governing control of the coffee beans.

Plaintiff obtained the warrant for arrest of the coffee beans pursuant to 28 U.S.C. § 2461(b) (1982), which authorizes use of admiralty procedures for seizure of goods in nonadmiralty forfeiture actions when appropriate procedures are not otherwise provided for by an Act of Congress.

In admiralty, issuance of an arrest warrant by the clerk of the district court is the correct method of seizing goods so that an in rem forfeiture action may proceed. Rule C(3) of the Supplemental Rules for Certain Admiralty and Maritime Claims. In order to decide whether § 2461(b) and, consequently, Rule C(3) apply to this action, their application must be analyzed both in the context of § 545 actions and in the context of § 592 actions.

Section 545 generally provides for forfeiture of goods smuggled into the United States in violation of that section. Forfeiture of goods is not an automatic part of a § 545 criminal conviction. United States v. Brigance, 472 F.Supp. 1177, 1181 (S.D.Tex.1979). Rather, obtaining a § 545 forfeiture requires separate civil in rem proceedings. Id.

Plaintiff asserts that this court has ancillary jurisdiction over a § 545 forfeiture action when it is brought in conjunction with a § 592 penalty proceeding.

The United States Court of International Trade, like all federal courts established under Article III of the Constitution, is a court of limited jurisdiction. United States v. Biehl & Co., 3 CIT 158, 162, 539 F.Supp. 1218, 1221 (1981). Once jurisdiction is challenged, plaintiff has the burden of proving that jurisdiction in this court is proper. Id. at 160, 539 F.Supp. at 1220.

Jurisdiction over forfeiture actions lies generally with the district courts, 28 U.S.C. § 1355 (1982). However, the district court’s jurisdiction in these actions does not include matters within the jurisdiction of this court under 28 U.S.C. § 1582 (1982). Id. Section 1582 grants exclusive jurisdiction to this Court of “any civil action which arises out of an import transaction and which is commenced by the United States — to recover a civil penalty under section 592 ... of the Tariff Act of 1930 ____” Plaintiff argues that since the § 545 action in this case arises out of the same transaction alleged in the § 592 action, “common sense” dictates that this court apply the doctrine of ancillary jurisdiction to hear the § 545 claim.

As plaintiff correctly points out, ancillary jurisdiction should attach when four conditions are satisfied: (1) the ancillary matter arises from the same transaction that is the basis of the main proceeding, or arises during the course of the main matter, or is an integral part of the main matter; (2) the ancillary matter can be determined without a substantial new fact finding proceeding; (3) determination of the ancillary matter will not deprive a party of a substantial procedural or substantive right; and (4) the ancillary matter must be resolved to protect the integrity of the main proceeding or to insure that disposition of the main proceeding will not be frustrated. Morrow v. District of Columbia, 417 F.2d 728, 740 (D.C.Cir.1969); Dillon v. Berg, 347 F.Supp. 517, 519 (D.Del.1972).

Although it may be appropriate in some instances for this court to exercise ancillary jurisdiction, the court will not exercise those powers here. First, the concept of federal ancillary jurisdiction, which developed where state court causes of action were involved, should be applied carefully when a conflict involving purely federal jurisdiction is concerned. See, e.g., Atl, Inc. v. United States, 4 Cl.Ct. 672, 676 (1984), aff'd, 735 F.2d 1343 (Fed.Cir.1984), citing United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969); Freese v. United States, 221 Ct.Cl. 963, 964-65 (1979) (both cases finding no ancillary jurisdiction). The court must not upset the jurisdictional scheme among the federal courts, over which Congress has full control. This is especially true in this case, where Congress has had a recent opportunity to review the jurisdiction of this court and did not give it jurisdiction over § 545 in rem forfeiture actions. 28 U.S.C. § 1582; see also S.Rep. No. 778, 95th Cong., 2nd Sess. 19, reprinted in 1978 U.S.Code Cong. & Ad.News 2211, 2230 (discussing § 592).

Second, although the actions are closely related, this court can fully and effectively dispose of the § 592 penalty action without considering all of the issues involved in a parallel § 545 proceeding. Resolution of the § 545 claim need not be resolved to protect the integrity of the § 592 proceeding or “to insure that disposition of the [§ 592] proceeding will not be frustrated.” In the absence of such necessity, convenience to a party, efficient use of judicial resources, or even one party’s judgment as to what constitutes “common sense” is not sufficient ground to exercise this court’s potential ancillary jurisdiction. Hence, none of these factors suffices to meet plaintiff’s burden in establishing jurisdiction in this court of the § 545 claim asserted here.

While plaintiff may be free to pursue a § 545 action in district court and to obtain an arrest warrant pursuant to § 2461(b) in that court, this court has no jurisdiction over the § 545 claim asserted here (see 28 U.S.C. § 1582); therefore, an arrest warrant may not be issued pursuant to that section in this court. Consequently, all references to 18 U.S.C. § 545 are stricken from the complaint and the propriety of the government’s arrest of the coffee beans must be evaluated under its second cause of action, that set forth in 19 U.S.C. § 1592.

Plaintiff argues that because § 1592(c)(5) does not require the return of restricted goods that are seized, forfeiture of such goods is authorized under § 1592, apart from any monetary penalty. Plaintiff would expand the language of § 1592 governing interim remedies into a permanent forfeiture in every § 1592 case involving restricted merchandise, whether fraud is involved or not. Congress’ intent to remove the general in rem forfeiture provisions of the former § 592 is made clear in S.Rep. No. 778, 1978 U.S.Code Cong. & Ad.News at 2230, which states:

The penalty for violation of section 592 would be changed from an in rem penalty, forfeiture of merchandise, to an in personam penalty, a monetary liability of the importer____ The seized merchandise would, in general, be forfeited to the United States only if the monetary penalty is not paid.

It seems that there is some room' for forfeiture under § 1592, but not as an ordinary remedy in addition to penalties. “[U]pon assessment of a monetary penalty, [seized property may be] forfeited unless the monetary penalty is paid within the time specified by law.” 19 U.S.C. § 1592(c)(5). Forfeiture also might be necessary to prevent dangerous or totally prohibited merchandise (not involved here) from entering into the commerce of the United States. But, contrary to plaintiff’s assertion, forfeiture is not the only means of preventing restricted merchandise from entering the United States in violation of the customs laws. The restricted goods might be excluded and the owner ordered to remove them from the territory of the United States. Alternatively, the merchandise might be sold for foreign consumption and the net proceeds applied against penalties. Neither of these remedies is best effected through an in rem proceeding. Furthermore, it is inappropriate to imply a requirement of in rem forfeiture where Congress, to the contrary, has indicated its intent that in rem forfeiture be replaced under § 1592. In addition, in rem arrest procedures are not necessary as a protective measure here because there is no threat of restricted or prohibited merchandise entering domestic commerce pending this determination. (Note the constructive seizure agreement). In summary, it is clear in this case that an in rem proceeding is not appropriate because in personam jurisdiction to effect appropriate relief exists.

Quite apart from the question of the propriety of in rem forfeiture proceedings under § 1592, it is clear that no compliance with § 1592(c)(5) has been shown. Section 1592(c)(5) sets forth specific conditions under which the Secretary of the Treasury (“Secretary”) may seize merchandise as security for payment of a monetary penalty for fraud or negligence. Such seizure is proper only when the Secretary has reasonable cause to believe that a person has violated § 1592(a) and that (1) the person is insolvent, (2) the person is beyond the jurisdiction of the United States, (3) seizure is otherwise essential to protect the revenue of the United States, or (4) seizure will prevent the introduction into domestic commerce of prohibited or restricted merchandise.

It is clear that a general provision such as § 2461(b) cannot be used to defeat the purpose of the detailed requirements of § 1592. See Busic v. United States, 446 U.S. 398, 406, 100 S.Ct. 1747, 1752, 64 L.Ed.2d 381 (1980). There has been no showing that the conditions of § 1592(c)(5) were satisfied during the process of obtaining the arrest warrant. In fact, plaintiff did not attempt to make such a showing. Obviously in enacting § 1592(c)(5) Congress was attempting to protect potential property rights of parties such as defendants here, and Congress may have perceived a possible Constitutional reason for requiring findings such as those set forth in § 1592 prior to seizure. See generally Sniadach v. Family Finance Corp., 395 U.S. 337, 339, 89 S.Ct. 1820, 1821, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 90-92, 92 S.Ct. 1983, 1999-2000, 32 L.Ed.2d 556 (1972). In any case, the statutory requirements of § 1592 cannot be circumvented by resorting to § 2461(b).

Furthermore, the clerk did not purport to, nor is he empowered to make the judgments required under § 1592(c)(5). Consequently, because of the special features of § 1592, goods to be forfeited in rem cannot become subject to the process of the court by action of the clerk alone, but only by action of the court in an appropriate case. Accordingly, defendants’ motion to quash plaintiff’s amended warrant for arrest of the coffee beans is granted.

      . 28 U.S.C. § 2461(b) provides in relevant part:
      Unless otherwise provided by Act of Congress, whenever a forfeiture of property is prescribed as a penalty for violation of an Act of Congress ... forfeiture may be enforced by a proceeding by libel which shall conform as near as may be to proceedings in admiralty.

      . 18 U.S.C. § 545 provides in relevant part:
      Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper; or
      Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law—
      Shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      Proof of defendant’s possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section.
      Merchandise introduced into the United States in violation of this section, or the value thereof, to be recovered from any person described in the first or second paragraph of this section, shall be forfeited to the United States.

      . 28 U.S.C. § 1355 provides:
      The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress, except matters within the jurisdiction of the Court of International Trade under section 1582 of this title.

      . In Marine Transport Lines, Inc. v. United States, 139 F.Supp. 301, 135 Ct.Cl. 874, decision set aside on other grounds, 146 F.Supp. 222 (Ct.Cl.), cert. denied, 352 U.S. 935, 77 S.Ct. 226, 1 L.Ed.2d 163 (1956), the Court of Claims did assert ancillary jurisdiction over certain admiralty claims, because in that case the court perceived a necessity to resolve those claims in order to exercise its own jurisdiction properly. The Court of Claims later found no jurisdiction over any of the causes of action asserted and dismissed the case.

      . There is an open question of whether a conviction of some person, not necessarily the owner of the goods, must occur before a forfeiture under § 545 is proper. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 234 n. 3, 93 S.Ct. 489, 491 n. 3, 34 L.Ed.2d 438 (1972). Even if conviction is not necessary, and even if a decision here has some collateral estoppel effect on a parallel § 545 case, the final requirement for ancillary jurisdiction is missing in this case. The court notes that it seems likely that conviction would not be required in a case of dangerous (or illegal per se) merchandise. That situation is not before us, and the court does not decide whether ancillary jurisdiction of a § 545 cause of action would be appropriate in such a case.

      . See discussion of potential remedies under § 592 in the following section of this opinion.

      . Plaintiff quotes Wright and Miller's discussion of federal ancillary jurisdiction over certain state court actions in support of its contention that common sense dictates the exercise of ancillary jurisdiction in this case:
      Ancillary jurisdiction exists because without it the federal court neither could dispose of the principal case effectively nor do complete justice in the dispute that is before the tribunal. Viewed from this perspective then, the concept is a common-sense solution to the problems of piecemeal litigation that otherwise would arise by virtue of the limited jurisdiction of the federal courts prescribed in Article III and the complexity of many modern lawsuits.
      13 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3523 (1975) (footnotes omitted) (emphasis added).

        Wright and Miller state that ancillary jurisdiction is appropriate (and satisfies common sense) when it is necessary, not that it is appropriate whenever it satisfies common sense.

      . Section 1592(c)(5) provides in part:
      After seizure of merchandise under this subsection, the Secretary may, in the case of restricted merchandise, and shall, in the case of other merchandise (other than prohibited merchandise), return such merchandise upon the deposit of security not to exceed the maximum monetary penalty which may be assessed under subsection (c) of this section.

      . Congress did not specifically provide for such remedies in § 1592, but considering the customs laws as a whole, it must have intended that such remedies would be available. The court may fill such interstices in the law in accordance with Congressional intent. Asahi Chemical Industry, Ltd. v. United States, 4 CIT 120, 124, 548 F.Supp. 1261, 1265 (1982).
      The court need not decide at this juncture whether one of these remedies, or another equitable remedy, would be appropriate to effectuate the provisions of § 1592 and other customs laws.

      . Contrast the necessity for in rem proceedings in admiralty foreclosure cases to which Rule C (discussed supra) specifically applies.

      . If the Secretary’s self-help measures as set forth in § 1592(c)(5) are thwarted, there is no bar to the use of Rules 64 and 65 of this court to enforce pre-judgment remedies. The only requirement is that all procedures must be consistent with § 1592.