author: HAROLD H. GREENE, District Judge.

text:
    Richard C. BARTEL, Plaintiff, v. FEDERAL AVIATION ADMINISTRATION, et al., Defendants. Richard C. BARTEL, Plaintiff, v. UNITED STATES of America, Defendant. Richard C. BARTEL, Plaintiff, v. UNITED STATES of America, et al., Defendants.
    Civ. A. Nos. 82-0077, 82-2791 and 83-1250.
    United States District Court, District of Columbia.
    April 18, 1985.

      See also 24 MSPR 560.

      John D. Bates, Asst. U.S. Atty., Washington, D.C., for Federal defendant; John Walsh, F.A.A., Washington, D.C., of counsel.
    J.E. McNeil, McNeil & Ricks, George M. Chuzi, Kalijarvi, Delate & Chuzi, Washington, D.C., for plaintiff.
   MEMORANDUM OPINION

HAROLD H. GREENE, District Judge.

These three consolidated cases have their genesis in an investigation and subsequent disclosures by defendant Brian Vincent, a Federal Aviation Administration (FAA) supervisory official, to various individuals, to the effect that plaintiff, an FAA air safety inspector, had examined confidential personnel records of several fellow FAA air safety inspectors. Based on these disclosures, and on subsequent employment disputes, plaintiff has sued Vincent and other officials, as well as the United States, asserting constitutional and common-law tort claims; claims under the Privacy Act, 5 U.S.C. § 552a; and claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Presently pending before the Court, on remand from the Court of Appeals, are three motions. In No. 82-0077, defendant Vincent has moved for dismissal or summary judgment with respect to the claims asserted against him in his individual capacity. In No. 88-1250, all the defendants have moved for dismissal or summary judgment on the grounds that venue is lacking as to both plaintiffs Title VII employment discrimination and Federal Tort Claims Act (FTCA) claims, and that his tort elaim is barred both by the FTCA and by the applicable statute of limitations. Plaintiff has cross-moved for summary judgment with respect to the Title VII claim. For the reasons stated below, plaintiffs motion will be denied, and defendants’ motions will be granted.

I

In No. 82-0077, plaintiff seeks damages from Vincent, in his personal capacity, for alleged violations of plaintiff’s First, Fourth, Fifth, and Ninth Amendment rights, and for common-law defamation. None of these claims withstands analysis.

A. First Amendment

The precise nature of plaintiff’s First Amendment claim is unclear. His pro se complaint alleges generally that Vincent’s disclosure of plaintiff’s unauthorized examination of other employees’ personnel files violated his right to privacy guaranteed by the First Amendment. On appeal, plaintiff more specifically argued that the violation occurred as a result of Vincent’s investigation and subsequent disclosure of information which assertedly was done in retaliation for plaintiff’s attempt “to bring a reverse discrimination E.E.O. complaint.” Now, in his opposition to Vincent’s motion, plaintiff alleges for the first time that the First Amendment right involved is the right to seek information. Although Vincent’s expressed frustration with “the chameleon-like nature” of plaintiff’s claims is understandable, the Court is obligated to construe the allegations of the pro se complaint broadly, and it will therefore consider each of the theories advanced by plaintiff.

1. To the extent that plaintiff’s First Amendment claim asserts that defendant acted in retaliation for plaintiff’s pursuit of a reverse discrimination E.E.O. complaint, it is precluded by the existence of a remedy under Title VII. Both the Supreme Court and the Court of Appeals for this Circuit have held that Title VII provides the exclusive remedy for claims of discrimination in federal employment, and that a plaintiff may not circumvent the carefully crafted Title VII remedial scheme by challenging alleged constitutional violations through conduct which is also proscribed under the statute. Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976); Kizas v. Webster, 707 F.2d 524, 542 (D.C.Cir.1983); Davis v. Califano, 613 F.2d 957, 958 n. 1 (D.C.Cir.1979). Accordingly, the Court holds that plaintiff has failed to state a cognizable First Amendment claim with respect to the alleged retaliation. See also Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983).

2. As noted, plaintiffs First Amendment claim can also be read more broadly as an assertion that Vincent’s investigation order and subsequent disclosure of information violated plaintiff’s right to privacy as guaranteed in the First, Fourth, Fifth, and Ninth Amendments. However, the Supreme Court has foreclosed such a broad reading of constitutional privacy rights. See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), which explicitly refused to extend the privacy right recognized by the Court as emanating from the penumbras of the First, Fourth, Fifth, and Ninth Amendments to permit the implication of a Bivens remedy for government officials’ publication of derogatory information concerning an individual. Id. at 713, 96 S.Ct. at 1166. To the extent that plaintiff asserts such claims, they are more properly considered under the rubric of the Due Process Clause of the Fifth Amendment (Paul, supra; Doe v. U.S. Department of Justice, 753 F.2d 1092 (D.C.Cir.1985)) and they will so be considered.

3. Plaintiff’s final characterization of his First Amendment claim is that Vincent infringed his right, as a private citizen, to seek and obtain publicly available information. On this theory, Vincent’s initiation of an investigation of plaintiff for possible Privacy Act violations, and his publication and criticism of plaintiff’s examination of records infringed plaintiff’s First Amendment right to receive information. This theory, too, cannot be sustained, for several reasons.

Even assuming arguendo that plaintiff sought the information not in his official capacity but rather as a private citizen, he still has not stated a First Amendment violation. Although the First Amendment protects the right to seek and to receive information from a willing speaker, it does not grant a general right to information within the government’s control. Here the information sought concededly was not publicly available, and plaintiff therefore cannot plausibly claim that he possessed a First Amendment right to receive it. There is, accordingly, no warrant whatever for the implication by the Court of a First Amendment Bivens remedy.

To the extent that plaintiff is asserting that Vincent’s actions violated a First Amendment right to seek government information, his claim is precluded under Bush v. Lucas, supra, where the Supreme Court held that the existence of a comprehensive personnel scheme that could afford substantial relief to a government employee assertedly discharged or disciplined in violation of his constitutional rights was a special factor counselling hesitation in the creation of an additional, independent Bivens remedy. 103 S.Ct. at 2416-17. Since Bartel could, as he apparently did, recover for the agency’s wrongful refusal to hire him at the GS-13 level through the available Merit Systems Protection Board mechanism, Bush clearly precludes the implication of a Bivens remedy for the FAA’s failure to rehire Bartel at the GS-13 level.

In short, plaintiff has failed to state a valid First Amendment Bivens claim against Vincent, and the Court will therefore dismiss that claim.

B. Fifth Amendment

Plaintiff also asserts Bivens claims against Vincent under the Due Process Clause of the Fifth Amendment. In particular, he asserts that Vincent’s publication of defamatory information through letters and telephone calls to prospective employers deprived him of a constitutionally-protected liberty interest.

To establish that the government has deprived him of such an interest a plaintiff must “demonstrate that the government’s defamation resulted in a harm to some interest beyond reputation.” Doe v. Department of Justice, supra, 753 F.2d at 1111; see also Paul v. Davis, supra; Bartel, supra; Mosrie v. Barry, 718 F.2d 1151, 1162 (D.C.Cir.1983). Loss of future or present government employment satisfies that required additional interest. Id. Here, Bartel has alleged that Vincent’s actions defamed him and resulted in the denial of his right to consideration for reemployment at the GS-13 position on an equal basis with others of equivalent skill and experience. See Bartel, 725 F.2d at 1415. Thus, taking his allegations as true, he has identified a cognizable liberty interest the denial of which would constitute a due process violation.

That does not end the inquiry, however, for a Bivens remedy is not available with respect to such a violation. See Bush v. Lucas, supra, 103 S.Ct. at 2416-17. As noted above, plaintiff has apparently recovered for the denial of this liberty interest through the Merit Systems Protection Board mechanism, and he has not identified any violation stemming from the denial of this interest that was not remedied by the MSPB decision. Where, as here, plaintiff obtained a substantially adequate remedy through the comprehensive federal personnel scheme, Bush precludes the implication of an additional Bivens Fifth Amendment remedy. Bush, 103 S.Ct. at 2416-17. Accordingly, plaintiff’s Fifth Amendment claim must also be dismissed.

C. Defamation

Plaintiff has also asserted a common-law defamation claim against Vincent. This claim must also be dismissed, however, for two reasons.

First, the District of Columbia limitation period for defamation claims, which must be applied in this case, is one year from the date of publication. 4 D.C.Code Ann. § 12-301(4). The letters plaintiff alleges were defamatory were sent on January 10, 1980, and the latest of the allegedly defamatory telephone conversations occurred in April, 1980. The complaint in No. 82-0077 was filed on January 8,1982, some eight months after the last possible date for filing within the statutory time period. Plaintiff’s defamation claim is therefore time-barred and must be dismissed on that ground.

Second, the defamation claim is also barred because Vincent is entitled to immunity against that claim. A federal official is absolutely immune from common law torts allegedly committed in his individual capacity if (1) the allegedly tortious action was committed within the outer perimeter of his line of duty, and (2) it was related to a discretionary rather than to a ministerial function. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Gray v. Bell, 712 F.2d 490 (D.C.Cir.1983); Sami v. United States, 617 F.2d 755 (D.C.Cir.1979); Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 566 F.2d 289 (D.C.Cir.1977) (en banc).

The uncontroverted affidavits of Vincent and of Joseph DelBalzo, the FAA Eastern Region Director to whom Division Chief Vincent reported, and the undisputed facts in the case establish beyond doubt that Vincent’s actions were within the outer perimeter of his line of duty, if not directly within the scope of his authority. In sending letters informing three air safety inspectors that Bartel had violated their rights under the Privacy Act, Vincent acted upon the recommendation of FAA counsel. Similarly, in discussing Bartel’s problematic conduct with Bartel’s potential employers, Vincent was discussing the conduct of one of the former employees for whose supervision he was responsible.

Vincent’s communications likewise constituted the exercise of discretionary functions. The undisputed facts establish that these communications occurred only-after, and indeed upon the recommendation of, other federal officials and counsel. Such actions clearly reflect the individualized consideration and deliberation that is the essence of discretionary decisionmaking. Plaintiffs defamation claim must therefore also be dismissed.

II

In No. 83-1250, defendants have moved for dismissal or summary judgment on the grounds that venue is lacking and that plaintiffs Federal Tort Claims Act claim is barred both by the FTCA and by the applicable statute of limitations. Plaintiff has cross-moved for summary judgment with respect to his Title VII claim. Because venue is lacking as to both of the claims in No. 83-1250, defendants’ motion will be granted and these claims, too, will be dismissed.

A. Venue Generally

The Court’s June 6, 1984 Order consolidating No. 83-1250 with plaintiff’s other two pending cases in no way precludes a challenge to the claims therein on the ground that venue is lacking. The traditional rule regarding venue is that venue must be appropriate for each claim. See, e.g., International Patent Development Corp. v. Wyomont Partners, 489 F.Supp. 226, 230 (D.Nev.1980); see generally, 15 Wright, Miller & Cooper, Federal Practice and Procedure: Civil § 3808 at 42. Moreover, the consolidation of civil cases does not result in a merger of the cases in which they lose their separate identities for all purposes. See 9 Wright, Miller & Kane, supra, Civil § 2382 at 254. Indeed, it could not: Rule 82, Fed.R.Civ.P. explicitly provides that the Federal Rules of Civil Procedure (including, of course, Rule 42(a), which permits the consolidation of cases) “shall not be construed to extend ... the jurisdiction of the United States district courts or the venue of actions therein.” Fed.R.Civ.P. 82 (emphasis added). Thus, the consolidation of these cases cannot have cured any venue defects in No. 83-1250, and the Court must determine whether venue lies in this district for the claims asserted in that action.

B. The Title VII Claim

The special venue provision governing Title VII actions provides that such actions may be brought in one of three districts: (1) that in which the unlawful employment practice is alleged to have been committed; (2) that in which the employment records relevant to the practice are maintained or administered; or (3) that in which the plaintiff would have worked but for the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(f). The special venue provision reflects the clear “intent of Congress to limit venue to the judicial districts concerned with the alleged discrimination.” Stebbins v. State Farm Mutual Insurance Co., 413 F.2d 1100, 1102 (D.C.Cir.1969). An examination of the record in this case reflects that plaintiff has failed to establish venue in this district on any of the available statutory grounds.

None of the acts allegedly violative of Title VII was committed in the District of Columbia. Vincent’s alleged retaliation against plaintiff for filing his “reverse discrimination” complaint occurred either in Philadelphia, the location of the FAA office at which plaintiff was employed, or in New York City, where Vincent’s office is located. Similarly, the discrimination allegedly resulting from Vincent’s letters and telephone calls occurred either in New York City, or in the Atlanta, Georgia, or Northern Virginia or Richmond, Virginia, FAA offices. The complaint alleges no discriminatory acts occurring in the District of Columbia. Accordingly, plaintiff cannot establish that this is the proper venue for his Title VII claim under the first prong of the special venue provision.

Nor can venue be established under the second, records location prong of the venue statute. The uncontradicted declaration of Lionel Driscoll, Director of the FAA’s Personnel Management Operations Division, establishes that the personnel records of FAA Eastern Region employees such as plaintiff are maintained and administered at the Regional Headquarters at JFK International Airport in New York City. Since plaintiff’s personnel papers concerning his employment in Philadelphia and applications for employment in Atlanta and in Richmond are not maintained in Washington, D.C., he cannot establish this as a proper venue on the grounds that the relevant records are maintained and administered here.

Finally, since this is not the judicial district in which plaintiff would have worked but for the allegedly discriminatory personnel practices, venue in this district is inappropriate under the third prong of the Title VII venue statute.

The Court must consider next whether, pursuant to 28 U.S.C. § 1406, it should dismiss the claim or transfer it, in the interests of justice, to another district in which it might have been brought. Based on the allegations in the complaint, it appears that venue under this provision might be appropriate in Philadelphia, where plaintiff initially was employed by the FAA and allegedly was constructively discharged; in Atlanta, where plaintiff applied for and was denied another FAA position; or in Richmond, Virginia, where plaintiff was denied a GS-13 position (although he ultimately accepted a GS-12 position). Since several other districts may be proper venues for the assertion of plaintiff’s Title VII claim, it is appropriate that the Court afford plaintiff the initial choice as to which of the available forums is the most appropriate one in which to litigate his claim. The Court will therefore dismiss plaintiff’s Title VII claim.

C. The FTCA Claim

Venue as to plaintiff’s Federal Tort Claims Act claim is governed by 28 U.S.C. § 1402(b), the general venue statute governing suits in which the United States is a defendant. See Misko v. United States, 77 F.R.D. 425, 429 n. 7 (D.Colo. 1978); see generally, 15 Wright, Miller & Cooper, Federal Practice and Procedure: Civil §§ 3814-15 (1976 and Supp.). The statute provides that venue in civil tort suits against the United States may be brought “only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.” 28 U.S.C. § 1402(b).

Neither of those conditions is satisfied in this case. The pleadings indicate that plaintiff is a resident of Maryland, not of the District of Columbia. And, as explained previously, none of the alleged tortious acts occurred in the District of Columbia. Accordingly, there is no statutory basis for finding venue in this District as to the plaintiffs FTCA claim. His assertions that jurisdiction of the action lies in the District of Columbia, and that the FAA has its principal office in the District, are correct, but they are entirely irrelevant to the statutory tests involved, and they obviously cannot constitute a basis for concluding that venue is appropriate in this District.

As with plaintiffs Title VII claim, venue as to this claim appears to be appropriate in more than one district: plaintiff could presumably bring this action either in Maryland, where he currently resides, or in the Eastern District of Virginia, where the alleged torts occurred. Moreover, there is a significant question whether plaintiff states a valid FTCA claim. Under these circumstances, the appropriate course is to dismiss with respect to the FTCA claim as well, and the Court will do so.

Ill

For the reasons stated, the Court will dismiss plaintiffs claims against defendant Vincent in his individual capacity in No. 82-0077; it will dismiss the complaint in No. 88-1250; and it will schedule a prompt status call so that the remaining claims in these consolidated cases may be speedily resolved.

      . In Civil Actions Nos. 82-0077 and 82-2791, plaintiff alleges that the FAA improperly inititiated disciplinary action against him and refused to hire him for an Atlanta, Georgia position. In Civil Action No. 83-1250, plaintiff alleges that the FAA improperly refused to hire him as a GS-13 Aviation Safety Inspector, instead hiring him for a GS-12, Step 2 position.

      . Plaintiff asserts the constitutional and common-law tort claims (for defamation and invasion of privacy), and the Privacy Act claim, in Civil Action No. 82-0077. Similar claims are asserted against the United States in Civil Action No. 82-2791, which also includes a claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) et seq. Finally, in Civil Action No. 83-1250, plaintiff has asserted claims against the United States under Title VII and the FTCA.

      . Two of the cases. Civil Actions Nos. 82-0077 and 82-2791, were dismissed by this Court on November 30, 1982. On January 17, 1984, the Court of Appeals vacated the dismissal order and remanded the cases for further proceedings. Bartel v. Federal Aviation Administration, 725 F.2d 1403 (D.C.Cir.1984). While his appeal from the Court’s dismissal order was pending, plaintiff initiated Civil Action No. 83-1250, which was consolidated with the remanded cases on June 8, 1984. The salient facts and allegations which form the basis for the claims in these cases are set forth in the Court of Appeals opinion, id. at 1405-07, and will not be recited in detail here.

      . The constitutional damages claims against Vincent in his official capacity, and against the United States, have been held to be barred by sovereign immunity. Bartel, supra, 725 F.2d at 1414 n. 20.

      . Plaintiff can maintain this damage action against Vincent in his personal capacity under the theory elaborated in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and its progeny.

      . Because most, if not all, of the operative facts alleged in the complaint are common both to plaintiffs constitutional claims and to his common-law tort claim, the Court may properly exercise pendant jurisdiction over the latter claim under the doctrine enunciated in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). See Bartel, supra, 725 F.2d at 1405 n. 2.

      . Complaint at 8, ¶¶ 47-49.

      . Appellant’s Brief at 21. See Bartel, 725 F.2d at 1406 and note 3.

      . Opposition at 2.

      . Reply at 4.

      . Although plaintiff is, as noted, presently represented by counsel, his complaint was filed pro se, and it is therefore appropriate to construe the allegations in the complaint liberally. See Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 701, 70 L.Ed.2d 551 (1982).

      . 42 U.S.C. §§ 2000e-3, 2000e-16. See, e.g., White v. General Services Administration, 652 F.2d 913 (9th Cir.1981). Indeed, plaintiff's implicit recognition of this rule is reflected in his latest complaint, which for the first time does assert a Title VII claim. See the complaint in No. 83-1250.

      . This Court also has previously concluded that there is no warrant for implying a Bivens -type First Amendment damage action where, as here, plaintiffs conduct was also protected under Title VII. Neely v. Blumenthal, 458 F.Supp. 945, 956-60 (D.D.C.1978).

      . The narrowness of the Court's ruling in dismissing this portion of plaintiffs claim should be emphasized. Specifically, the Court does not hold that plaintiff has no privacy interest in his records. Cf. Doe v. Webster, 606 F.2d 1226, 1238 (D.C.Cir.1979). Nor, of course, does it hold that a First Amendment Bivens claim may never be implicated in a case of this type. Cf. Doe v. U.S. Civil Service Commission, 483 F.Supp. 539, 564 (S.D.N.Y.1980). The Court holds only that where, as here, a federal employee alleges that derogatory information concerning him was wrongfully disseminated, he states a claim, if he does so at all, under the Fifth Amendment, not under the First, Fourth, and Ninth Amendments.

      . See Plaintiffs Statement of Material Facts in Issue. Without disputing plaintiffs subjective intent, the Court feels compelled to observe that the documentary evidence produced to date tends to belie this assertion — or at least to suggest that plaintiff was relying on his official status in obtaining the personnel records. Plaintiff had the records sent to his government office. Deft.Ex. A. He returned them using a government buck slip. Deft-Ex. B. It is thus clear that, whatever may have been his subjective intent, plaintiff used means that would typically be used by an FAA official, not by a private citizen.

      . See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); Paton v. LaPrade, 524 F.2d 862 (3d Cir.1975).

      . Houchins v. KQED, Inc., 438 U.S. 1, 14, 98 S.Ct. 2588, 2596, 57 L.Ed.2d 553 (1977).

      . Plaintiff apparently does not dispute that the information he sought was in fact protected under the Privacy Act.

      . Moreover, were the Court to find Vincent’s actions to constitute a First Amendment violation, he clearly would enjoy qualified immunity against plaintiffs claims since he was performing discretionary functions, see text, infra, and since this newly recognized right would not have been clearly established at the time Vincent assertedly violated it. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

      . See Civil Action No. 83-1250; Defendant Ex. B (January 12,1985 Order granting Bartel retroactive promotion to GS-13 level pursuant to order of Merit Systems Protection Board).

      . If it is plaintiffs allegation that Vincent’s actions resulted in the denial of private employment opportunities, the Court of Appeals has held that such an alleged injury does not establish a Fifth Amendment Bivens claim under Paul v. Davis. See Bartel, 725 F.2d at 1415-16.

      . As noted above, the Court of Appeals has rejected plaintiffs claim that the telephone calls and other contacts which assertedly resulted in the denial of employment by a private employer infringed a protected liberty interest and plaintiff’s due process rights. Bartel, 725 F.2d at 1415-16. However, the court concluded that, to the extent that plaintiff alleged that Vincent’s letter accusing him of Privacy Act violations had resulted in his not being considered on an equal basis with other applicants for a GS-13 position, he might state a cognizable liberty interest the denial of which without due process would violate the Fifth Amendment. Id. at 1415. Accordingly, the court remanded plaintiffs Fifth Amendment claim for consideration by this Court, which was to determine whether plaintiff has stated a cognizable liberty interest; if so, whether he received his procedural due; and which, if any, of plaintiffs due process claims survive the Supreme Court's holding in Bush v. Lucas, supra. Id. at 1415 and note 21.

      . However, the mere placement of a letter in Bartel’s personnel file does not, standing alone, appear to constitute a denial of Bartel’s liberty interest in the absence of any additional disciplinary action, e.g., discharge or demotion.

      . See supra, note 20.

      . See Steorts v. American Airlines, 647 F.2d 194 (D.C.Cir.1981); Laffey v. Northwest Airlines, Inc., 481 F.Supp. 199, 200 (D.D.C.1979).

      . The statute of limitations bar also requires the dismissal of plaintiff's First and Fifth Amendment claims, which essentially are constitutional defamation claims and are therefore governed by the one-year defamation time limit. See Doe v. Department of Justice, 753 F.2d at 1114-15.

      . Actions within the outer perimeter of an official’s line of duty have been defined as those actions not manifestly or palpably beyond his authority, but rather more or less connected with the general matters committed to his control or supervision. See Briggs v. Goodwin, 569 F.2d 10, 16 (D.C.Cir.1977).

      . Bartel, 725 F.2d at 1406.

      . Discretionary functions have been defined as those in which a government official determines what action to take based on an individual, case-by-case analysis and in which his decision includes elements of judgment and discretion. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Gray v. Bell, supra; Beins v. United States, 695 F.2d 591 (D.C.Cir. 1982).

      . Bartel, 725 F.2d at 1406.

      . It is also true that there has been considerable erosion of the traditional rule, and that the federal courts have become increasingly willing to recognize the developing doctrine of “pendent venue.” See, e.g., Beattie v. United States, 756 F.2d 91, 100-03 (D.C.Cir.1984). Under this theory, federal courts may exercise their discretion to hear claims as to which venue as lacking if those claims arise out of a common nucleus of operative fact with claims as to which venue is proper. Id. at 102. The touchstones in the pendent venue analysis are judicial economy, convenience and fairness. Id. As discussed infra, however, the Court concludes that it would be inappropriate to exercise pendent venue with respect to either the Title VII claim, see infra note 32, or the FTCA claim. See infra note 38.

      . The appropriate inquiry is, of course, whether plaintiff satisfies the requirements of the special Title VII venue statute; it is not, as plaintiff suggests, whether venue is appropriate under 28 U.S.C. § 1402, the general venue statute applicable in cases involving the government as a defendant. In any event, plaintiffs reliance on the general venue statute is unavailing, since venue is inappropriate under that statute as well. See text, infra, at 198-199.

      . Although the Court has considered whether it should respect plaintiffs present forum choice and exercise pendent venue over his Title VII claim, it has concluded that it would be inappropriate to do so. In enacting the special Title VII venue statute Congress deliberately sought to limit the venues in which Title VII actions might be brought. See Stebbins, supra. Under such circumstances, the Court lacks the authority to ignore the congressional intent to limit venue by finding pendent venue. Cf. Aldinger v. Howard, 427 U.S. 1, 14-19, 96 S.Ct. 2413, 2420-22, 49 L.Ed.2d 276 (1976).

      . Moreover, it appears from the papers submitted by the parties that most, if not all, of plaintiff s Title VII claims have been resolved at the administrative level. It therefore appears that the most prudent course, which would both permit plaintiff to exercise his right of forum choice and conserve scarce judicial resources, is to dismiss plaintiff’s Title VII claim.

      . Plaintiffs allegation that he was a resident of the District of Columbia at the time the allegedly tortious acts occurred does not provide a basis for determining that venue exists under the statute. The traditional rule for determining venue in diversity actions is that venue is determined by the parties’ residence at the time the lawsuit is commenced. See generally, 15 Wright, Miller & Cooper, Federal Practice and Procedure: Civil § 3805. There is no reason to believe that Congress intended the residence test incorporated in both the federal defendant venue statute, 28 U.S.C. § 1402(b), and the diversity venue statute, 28 U.S.C. § 1391, to refer to a different point in time with respect to each statute.

      . Moreover, the Court notes that the cases cited by plaintiff in his brief all deal with the appropriateness of transferring a case to an appropriate venue, not to the initial determination whether venue is appropriate, and that they are therefore inapposite.

      . See Defendant’s Brief at 3-8.

      . Pendent venue also appears to be inappropriate with respect to the FTCA claim. See Reuber v. United States, 750 F.2d 1039, 1048 (D.C.Cir. 1984) (FTCA creates strong negative presumption against finding pendent venue where not permitted under 28 U.S.C. § 1402(b) ); see also Beattie, supra, at 103 n. 82 (Discretionary exercise of pendent venue is appropriate in FTCA case where venue exists as to some FTCA claims, but inappropriate where venue is improper as to any FTCA claim).


source: Caselaw Access Project

author: VINCENT L. BRODERICK, District Judge.

license: Public Domain

text:
    In the Matter of In re GRAND JURY APPLICATION.
    No. 85 Civ. 2235 (VLB).
    United States District Court, S.D. New York.
    April 25, 1985.

      Neal Schwarzfeld, Schwarzfeld, Ganfer & Shore, New York City, for Bandler & Kass, Robert Sylvor and William J. Werner.
    Russell, Piccoli, Phoenix, Ariz., Herbert C. Ross, Jr., Rogers Hoge & Hills, New York City, for plaintiffs.
    Susan Harkins, Asst. U.S. Atty., New York City, for U.S. Atty.
   MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

Plaintiffs, in their complaint and now by motion, seek either a writ of mandamus to compel the United States Attorney to present the “facts” concerning alleged criminal wrongdoing of certain named defendants to the grand jury or for me to request the grand jury to hear testimony by plaintiff’s attorney, Mr. Piccoli, concerning that wrongdoing. They base their complaint and motion on 18 U.S.C. § 3332(a), which states:

It shall be the duty of each such grand jury impaneled within any judicial district [special grand juries impanelled pursuant to 18 U.S.C. § 3331] to inquire into offenses against the criminal laws of the United States alleged to have been committed within that district. Such alleged offenses may be brought to the attention of the grand jury by the court or by any attorney appearing on behalf of the United States for the presentation of evidence. Any such attorney receiving information concerning such an alleged offense from any other person shall, if requested by such other person, inform the grand jury of such alleged offense, the identity of such other person, and such attorney’s action or recommendation.

At the outset, I would point out that plaintiffs do not seek to compel the U.S. Attorney to prosecute the named defendants. Rather, they seek to have either the court or the United States Attorney present certain information to the grand jury. This distinction is critical because almost the entirety of the opposition to plaintiffs’ motion is based on the mischaracterization by the U.S. Attorney and the other defendants of plaintiffs’ motion as one seeking to compel the U.S. Attorney to initiate proceedings against the other defendants.

Thus the U.S. Attorney argues that plaintiffs lack standing to bring this suit because “a private litigant lacks a sufficiently distinct interest in a criminal prosecution to compel its initiation.” Govt. Memo at 7, citing Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973); see Leeke v. Timmerman, 454 U.S. 83, 86-87, 102 S.Ct. 69, 70-71, 70 L.Ed.2d 65 (1981); Heckler v. Chaney, — U.S.-, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) and other cases. He argues that because presenting the information to the grand jury might not lead to an indictment, or conviction, or ultimately to an award in the plaintiffs’ pending civil action, plaintiffs’ interest is too attenuated from the relief sought to justify allowing them to bring the instant action.

“Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.” Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3, 93 S.Ct. 1146, 1148 n. 3, 35 L.Ed.2d 536 (1973) . See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 212, 93 S.Ct. 364, 368, 34 L.Ed.2d 415 (1972) (White, J., concurring); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6, 88 S.Ct. 651, 654, 19 L.Ed.2d 787 (1968). When determining whether a plaintiff has standing, I need only examine the complaint to see if the plaintiff has alleged that he has suffered a cognizable injury. Nash v. Califano, 613 F.2d 10, 14 (2d Cir.1980). 18 U.S.C. § 3332(a) creates a duty on the part of the United States Attorney that runs to the plaintiffs, and the breach of that duty gives the plaintiffs standing to seek its enforcement.

The defendants contend that “the decision to prosecute is the exclusive prerogative of the Executive Branch.” Govt.Memo at 10, citing United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Nathan v. Smith, 737 F.2d 1069 (D.C.Cir.1984); Inmates of Attica Correction Facility v. Rockefeller, 477 F.2d 375 (2d Cir.1973); Powell v. Katzenbach, 359 F.2d 234 (D.C.Cir.1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966), and other cases. They characterize plaintiffs’ complaint and motion as attempts to compel the U.S. Attorney to prosecute the other named defendants, and, relying on the above cited cases, argue that courts have uniformly denied such relief. But no case cited has considered the requirements imposed by 18 U.S.C. § 3332(a). The only opinion I have found that even indirectly deals with the issue presented in this case is Judge Bork’s concurring opinion in Nathan v. Smith, 737 F.2d 1069 (D.C.Cir.1984).

In Nathan, the issue was prosecutorial discretion under the Ethics in Government Act, 28 U.S.C. §§ 591 et seq. Section 591(a) provided in relevant part:

The Attorney General shall conduct an investigation pursuant to the provisions of this chapter whenever the Attorney General receives specific information that any of the persons described in subsection (b) of this section has committed a violation of any Federal criminal law other than a violation constituting a petty offense.

Judge Bork stated:

It may be thought that neither the relief granted by the district court nor that sought by the plaintiffs falls within the principle of Executive control of decisions to prosecute. The district court ordered the Attorney General to initiate a preliminary investigation; the plaintiffs seek to compel an application for the appointment of an independent counsel. The distinction between these remedies and the [prosecutorial discretion] principle discussed above has no significance, however. The only purpose of the preliminary investigation under the Ethics Act is to enable a report to the special division of this court about the need or the lack of a need for the appointment of independent counsel. The preliminary investigation is thus the first stage of the prosecutorial process and the district court has undertaken to control that stage.
Plaintiffs would have the district court control the next stage as well ordering the Attorney General to apply to the special division of this court for the appointment of an independent counsel. It is no answer to say that the courts, under either form of relief, would not control the final prosecutorial decision since that would be made by the independent counsel. There are at least two flaws in that reasoning. The first is that the principle of Executive control extends to all phases of the prosecutorial process. Thus, were this a case about an ordinary prosecution under a federal criminal statute, a plaintiff could not escape the principle discussed by demanding only an order that the Attorney General present facts to a grand jury but leaving the decision whether to sign any indictment to him. Second, if private plaintiffs have the legal ability to require an investigation of criminal charges, it is difficult to understand by what principle they could be denied a cause of action to compel the independent counsel to prosecute if that counsel had sufficient evidence to do so under the policies of the Department of Justice, which the Act requires him to follow. 28 U.S.C. § 594(f) (1982). If the execution of the laws is lodged by the Constitution in the President, that execution may not be divided up into segments, some of which courts may control and some of which the President’s delegate may control. It is all the law enforcement power and it all belongs to the Executive. It may be that answers can be given that avoid or modify these traditional views. No such answers have been offered in this case, however.

737 F.2d at 1079 (emphasis added).

Contrary to what Judge Bork stated, Congress has divided the execution of the law into segments, with the presentation of information to the grand jury concerning racketeering violations being an area where the prosecutor’s discretion was explicitly removed. Judge Bork himself recognized that judicial opinion was not unanimous on this question. The portion of his concurrence emphasized above is a criticism of the decision of the Fifth Circuit Court of Appeals in United States v. Cox, 342 F.2d 167 (5th Cir.1965). In Cox a 4-3 majority held that a United States Attorney could not be compelled to sign an indictment returned by the grand jury, and that without his signature the indictment would have no legal effect. 342 F.2d at 172. A different 4-3 majority held, however, that the United States Attorney could be required to assist the grand jury by drafting an indictment in accordance with their wishes, even if he had no intention of signing it if it were voted a true bill. 342 F.2d at 181. Accord, Report and Recommendation of June 5, 1972 Grand Jury, 370 F.Supp. 1219 (D.D.C.1974).

In other contexts, courts have acknowledged that prosecutorial discretion is not absolute. In Powell v. Katzenbach, 359 F.2d 234, 235 (D.C.Cir.1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966), the court stated: “[w]e will assume, without deciding, that where Congress has withdrawn all discretion from the prosecutor by special legislation, a court might be empowered to force prosecutions in some circumstances.” This term in Wayte v. United States, — U.S. -, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985), the Supreme Court stated that prosecutorial discretion is not “ ‘unfettered.’ Selectivity in the enforcement of criminal laws is ... subject to constitutional constraints.” — U.S. at -, 105 S.Ct. at 1531 (quoting United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2205, 60 L.Ed.2d 755 (1979)).

Also this term, in Heckler v. Chaney, — U.S. -, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Supreme Court equated an agency’s refusal to take requested enforcement action with a prosecutor’s decision not to prosecute. After reviewing the numerous reasons why judicial review of such decisions was unsuitable the court went on to say:

Thus, in establishing this presumption [of the unreviewability of agency action] in the APA, Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers. Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue.

— U.S. at-, 105 S.Ct. at 1657.

Plaintiffs argue that the language of § 3332(a) is clear and unambiguous: “Any such attorney receiving information concerning such an alleged offense from any other person shall, if requested by such other person, inform the grand jury of such alleged offense, the identity of such other person, and such attorney’s action or recommendation.” They contend that the duty to present the information is mandatory. Defendants contend that use of such mandatory language is common throughout the criminal provisions of the United States Code and has often been held to permit the exercise of prosecutorial discretion. See Heckler v. Chaney, —- U.S. at -, 105 S.Ct. at 1657; Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 381 (2d Cir.1973) (“The mandatory nature of the word ‘required’ as it appears in [42 U.S.C.] § 1987 is insufficient to evince a broad Congressional purpose to bar the exercise of executive discretion in the prosecution of federal civil rights crimes.”). The resolution of this issue lies in an analysis of the legislative history of 18 U.S.C. § 3332(a).

The forerunner of 18 U.S.C. § 3332(a) was introduced to the Senate on January-16, 1969 as part of Title I of the Organized Crime Control Act, S.30. The purpose of the Act was to eradicate organized crime. To accomplish this aim S.30 was designed to strengthen arid vitalize the various legal tools available to the government in the evidence gathering process. Title I of the Act contained proposed amendments to 18 U.S.C. § 3321 et seq. concerning grand juries. The purpose of these amendments was to “strengthen” the “broad powers of inquiry” of grand juries. Statement of Sen. McClellan, Hearings before the Subcommittee on Criminal Laws and Procedures of the Committee on the Judiciary, United States Senate, 91st Cong, at 503 (1969) (hereinafter “Senate Hearings”). As Senator McClellan, one of the bill’s co-sponsors, explained:

The jury would not be limited by the charge of the court but would have the right to pursue any violation of the criminal law within its jurisdiction. Citizens would be accorded the right to contact the jury, through the foreman, regarding any alleged criminal act.

Id.

Section 103(a) of the proposed Act contained the antecedent of 18 U.S.C. § 3332(a). It provided in pertinent part:

Section 3324, title 18, United States Code is amended as follows:
§ 3324. Powers and duties
* * Sj: * ‡
(b) It shall be the duty of each grand jury impaneled within any judicial district to inquire into each offense against the criminal laws of the United States alleged to have been committed within that district which is brought to the attention of the grand jury by the court or by any person.
(c) No person shall be deprived of opportunity to communicate to the foreman of a grand jury any information concerning any such alleged offense or instance of misconduct.

Senate Hearings at 7.

As Senator McClellan explained during the Hearings before Subcommittee No. 5 of the Committee on the Judiciary of the House of Representatives, Ninety-First Congress, Second Session on S.30 (hereinafter “House Hearings”) (1969), Title I of S.30 “guaranteed a measure of independence” to the special grand juries it authorized. House Hearings at 82. When pressed by the chairman of the House committee on the “need for granting special grand juries almost complete autonomy from the Federal district court and the U.S. Attorney,” Senator McClellan stated: “Congress has ample grounds for determining that a need exists for creation of special Federal grand juries with substantial independence of the prosecutor and court.” House Hearings at 118.

Although not the most controversial aspect of the Act, much comment both pro and con was elicited during the House and Senate hearings concerning the provisions of the bill concerning grand juries. The chairman of the House Committee on the Judiciary stated, “[wjith reference to Title I[,] ... we have opposition expressed from the Judicial Conference of the United States[,]____ the New York County Lawyers Association^] ... the Association of the Bar of the City of New York[,]____the National Association of Counties — United States Conference of Mayors and the American Civil Liberties Union oppose Title I.” House Hearings at 177-78.

Title I had powerful supporters as well. In a memorandum submitted to the Senate committee by then Attorney General John Mitchell, the Justice Department voiced its support of Title I:

Proposed section 3324(b) provides that “It shall be the duty of each grand jury impaneled within any judicial district to inquire into each offense against the criminal laws of the United States alleged to have been committed within the district which is brought to the attention of the grand jury by the court or by any person.” This provision is a statutory recognition of existing case law holding that the inquisitorial powers of a grand jury are virtually unlimited and that the grand jury can initiate a case on its own and investigate any alleged violation of Federal law within its jurisdiction. See Hale v. Henkel, 201 U.S. 43 [26 S.Ct. 370, 50 L.Ed. 652] (1906); Blair v. United States, 250 U.S. 273 [39 S.Ct. 468, 63 L.Ed. 979] (1919); United States v. Hartke-Hanks Newspapers, 254 F.2d 366 (C.A.5), cert. denied, 357 U.S. 938 [78 S.Ct. 1385, 2 L.Ed.2d 1551] (1958); In Re Grand Jury Investigation (General Motors Corp.), 32 F.R.D. 175 (S.D.N.Y.), appeal dismissed, 318 F.2d 533 (C.A.2), cert. denied, 375 U.S. 802 [84 S.Ct. 25, 11 L.Ed.2d 37] (1963); United States v. Smyth, 104 F.Supp. 283 (N.D.Calif.1952); United States v. Gray, [sic ] 187 F.Supp. 436 (D.C.D.C.1964). Consequently, we can see no objection to this proposal.
Section 3324(c) provides that no person shall be deprived of opportunity to communicate to the foreman of a grand jury any information concerning any offense against the criminal laws of the United States alleged to have been committed within the district. Section 1504 of title 18, United States Code, presently makes it an offense for anyone to attempt to influence the action or decision of any grand or petit juror upon any matter pending before it by a written communication. This provision is apparently intended to make it clear that no violation of this section is committed by a person who merely communicates to the foreman of a grand jury any information regarding any offenses against the laws of the United States. This provision could well encourage wider public participation in the fight against organized crime and we, therefore, support it.

Senate Hearings at 366-67.

In response to the many criticisms, the provisions of the proposed Act regarding grand juries were amended. During the House Hearings, Edward L. Wright presented the views of the American Bar Association, which were essentially embodied in the Act in its final form.

The American Bar Association recommends that the proposed right of a private person be modified to require that information possessed by such person be channelled through the appropriate prosecutor, and further, that the prosecutor be required in all cases to communicate his action or recommendation thereon to the special grand jury.
In suggesting this amendment, we are mindful of and are fully in accord with the well-established tradition of citizen complaints. We know that criminal justice should and must be everyone’s concern, and we favor doing everything proper to encourage greater cooperation by citizens in the war against organized crime. On the other hand, we are equally cognizant that the proper role of the professional prosecutor in the United States has been steadily emerging. It is our belief that the prosecutor should properly be vested with the responsibility of professionally screening allegations of criminal misconduct. At the same time, we recommend that there be built into the process a safeguard that will require the prosecutor to give an accounting of his screening.

House Hearings at 541 (emphasis in original).

Analysis of the language of the Act as it was finally enacted indicates that Congress intended the United States Attorney to be the channel through which ordinary citizens conveyed information about organized crime to the grand jury. To argue, as the government does (and as Judge Bork did in Nathan, supra), that the prosecutor has total discretion in deciding what information to present to the grand jury flies in the face of the Act’s legislative history. The section analysis section of the official legislative history of the bill as it was finally passed contains the following language:

Section 3332(a) makes it the duty of a special grand jury impaneled within any judicial district to inquire into Federal offenses alleged to have been committed within the district. As amended by the committee, alleged offenses may be brought to the attention of the special grand jury by the court or by any attorney appearing on behalf of the United States for the presentation of evidence. Any such attorney who receives information of an alleged offense from any person must, if requested by the person, inform the grand jury of the alleged offense, the identity of the person who conveyed the information, and his own action or recommendation.

2 U.S.Code Cong. & Adm.News, House Report No. 91-1549, 91st Cong.2d Sess. (1970) 4007 at 4015.

Thus both the language of 18 U.S.C. § 3332(a) and its legislative history indicate that Congress intended to remove the prosecutor’s discretion in deciding whether to present information to the grand jury. He retains discretion with respect to how he acts and what he recommends concerning that information.

18 U.S.C. § 3332(a) creates a right in every person to have information known by them concerning organized crime to be presented to the grand jury. It provides two ways for this to occur — either the court may bring it to the grand jury’s attention or a United States attorney can. Plaintiffs have requested one or the other form of relief, in the alternative.

In order to grant a request for mandamus a court must find: “(1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available.” Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir.1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1555, 36 L.Ed.2d 310 (1973).

Plaintiffs have urged me to request the grand jury to hear their evidence against the defendants. Although a judge may present evidence to a grand jury both under common law, see O’Bryan v. Chandler, 352 F.2d 987 (10th Cir.1965), and pursuant to the language of 18 U.S.C. § 3332(a), I decline to do so. The legislative history of Section 3332(a) suggests that Congress envisioned the United States Attorney’s office as the primary channel of information to the grand jury. In a busy district such as this, moreover, it is the United States Attorney and not the individual district judge who is familiar with, and in fact sets, the schedules of the grand juries which have been impanelled in the district. Any effort by myself to bring plaintiffs’ information to the attention of a grand jury would necessarily be channeled through the United States Attorney.

Since the United States Attorney has been requested to present certain information to the grand jury he must do so. I will not relieve him of a duty which Congress has seen fit to impose. 18 U.S.C. § 3332(a) imposes a “plainly defined and peremptory duty” on the part of the United States Attorney to present the plaintiffs’ information concerning the alleged wrongdoing of the other defendants to the grand jury.

When first presented with plaintiffs’ information in February, the United States Attorney’s Office declined to act. It cited its heavy caseload, the need to conduct its own investigation to satisfy internal policies and the need to obtain the approval of the Justice Department before proceeding, and concluded that the chances of commencing prosecution of the other defendants named herein before the statute of limitations ran in May were almost non-existent. The substantial work already done by plaintiffs’ attorneys in preparing this case and the apparent willingness of the alleged victims to come forward and testify should greatly facilitate the investigation of plaintiffs’ allegations by the grand jury. Although the statute does not specify in what way the United States Attorney should present information to the grand jury, under the circumstances of this case and in the interests of efficiency and justice, I strongly urge the United States Attorney to allow plaintiffs’ attorney, Mr. Piccoli, to appear before the grand jury as a witness. I note, in any event, that this order does not invade the realm of prosecutorial discretion. The statute requires that the information proffered by plaintiffs, and the identity of plaintiffs, be brought to the attention of the grand jury. This order requires no more.

Plaintiffs’ request for a writ of mandamus is granted.

SO ORDERED.

      . Plaintiffs have also included a request that I appoint "a special prosecutor as the Court's own representative for presenting the pertinent details of the criminal wrongdoing of [certain named defendants] to the Grand Jury for its consideration." They cite no statute or case law authorizing such relief but rely instead on the court’s "inherent” power. The only statutes dealing with the appointment of special prosecutors by the court (now called "independent counsel”) all relate to the Ethics in Government Act, 28 U.S.C. § 591 et seq., which is not relevant to this case. Plaintiffs have not briefed this issue. I do not believe the inherent powers of the court go so far. See Matter of Application for Appointment of Independent Counsel, 596 F.Supp. 1465 (E.D.N.Y.1984). See also Fed.R. Crim.P. 42(b).

      . Plaintiffs also argue that the Sedima requirement of a prior conviction gives them a direct financial interest in seeking prosecution and therefore, standing. That argument fails because of the unfettered discretion of the government's attorneys in deciding whether to prosecute.

      . Section 591(a) was amended in 1983 by Pub.L. 97-409 § 4(a)(1), which substituted "information sufficient to constitute grounds to investigate" for "specific information” after "the Attorney General receives.” In light of the holding of Nathan where the court relied on the lack of “specific information” to deny mandamus, it seems apparent that the amendment to Section 591(a) was designed to make it clear that the decision to investigate would rest with the Attorney General who would have discretion to decide whether the information received constituted "sufficient ... grounds.”

      . In its final form the Act did not simply amend the United States Code provisions concerning grand juries but created new sections requiring the appointment of special grand juries in all judicial districts with over four million inhabitants. These special grand juries were to be devoted to investigating organized crime. They had all the powers of regular grand juries plus the explicit authorization to issue reports concerning either organized crime conditions in the district or malfeasance in office by a public official.

       Editor’s note: citation should be 87 F.Supp. 436 (D.D.C.1949).


author: CALLISTER, Chief Judge.

text:
    The STATE OF IDAHO, Idaho Transportation Department, ex rel. Carl C. Moore, Lloyd F. Barron and Roy I. Stroschein, Idaho Transportation Board, Plaintiffs, v. OREGON SHORT LINE RAILROAD COMPANY, a Utah corporation, and Union Pacific Railroad Company, a Utah corporation, Defendants, Blaine County, City of Ketchum and City of Hailey, M’Lynn Childers, Joan K. Janoe, John F. Schwartz and Clarise M. Schwartz, husband and wife, and all other individuals and organizations similarly situated, Intervenors.
    Civ. No. 83-1473.
    United States District Court, D. Idaho.
    May 1, 1985.

      Robert L. Trabert, Chief Legal Counsel, Patrick W. Fanning, Leonard G. Hill, Idaho Transp. Dept., Boise, Idaho, for plaintiffs State of Idaho, Idaho Transp. Dept, ex rel. Carl C. Moore, Lloyd F. Barron and Roy I. Stroschein, Idaho Transp. Bd.
    Duane A. Bybee, Green, Service, Gasser & Kerl, Pocatello, Idaho, for defendants Oregon Short Line R. Co., Union Pacific R. Co.
    James W. Phillips, Ketchum City Atty., Ketchum, Idaho, for intervenor City of Ketchum.
    Sandra Shaw, Pros. Atty., Russell G. Pinto, Sp. Deputy Pros. Atty., Hailey, Idaho, for intervenor City of Hailey and Blaine County, Idaho.
    John C. Ward and Brian R. Hanson, Holland & Hart, Langroise, Sullivan & Smylie, Boise, Idaho, for intervenors M’Lynn Childers, Joan K. Janoe, John F. Schwartz and Clarise M. Schwartz.
   MEMORANDUM DECISION

CALLISTER, Chief Judge.

Before the Court are three motions: (1) Defendants’ motion to amend order and to strike complaint of intervenors Childers et al.; (2) Intervenor Blaine County’s motion for partial summary judgment; and (3) Defendants’ motion for summary judgment. Counsel for the parties presented oral argument on these matters on April 5, 1985, and the Court has reviewed the memoranda submitted as well as all other materials on file in this case.

The following is a brief summary of the factual and procedural history of this case.

This is a suit for declaratory relief brought by the State of Idaho, Idaho Transportation Department, and Idaho Transportation Board against two railroad company defendants, the Oregon Shortline Railroad Co. and the Union Pacific Railroad Company, both of which are Utah corporations. Jurisdiction is based on diversity.

The plaintiffs’ complaint alleges that the defendants presently hold title to a 54.19 mile strip of railroad land extending from Richfield, Idaho, to Ketchum, Idaho (referred to as the “Ketchum Branch”). The strip of land comprises approximately 1,207 acres. Of the 1,207 acres, 985 acres were acquired by the defendant railroad companies from the United States Government under the 1875 General Railway Right-of-Way Act for use as a railroad right-of-way. Plaintiffs allege that in May of 1982, the defendants applied, as required by federal law, to the Interstate Commerce Commission (ICC) for authorization to abandon the Ketchum Branch due to lack of traffic. They further allege that in June of 1982, the ICC authorized the abandonment and discontinuance of service. Under the terms of the ICC ruling, the railroads were required to notify the ICC in writing within one year if “actual” abandonment were to take place — otherwise the authorization would be revoked. In June of 1983, the defendants gave notice in writing that they had chosen not to proceed with actual abandonment but stated that they instead desired to convert the line to sidetrack; the defendants are presently using the track for storage purposes.

The State of Idaho has portions of three state highways which run parallel to the Ketchum Branch and the State has expressed interest in the railroad property. The State wishes to widen the highways using the railroad property. Plaintiffs began negotiating with defendants to acquire the land but a controversy arose as to the character and extent of the railroads’ interest in the lands and as to whether the defendants had abandoned the Ketchum Branch. In their complaint, plaintiffs state that they do not wish to pay the $5.5 million asking price of the defendants but instead wish to acquire the property as “abandoned property” under 43 U.S.C. § 912. The plaintiffs claim that on March 9, 1983, they declared their intent to embrace the land as public highway under the requirements of § 912.

In their first cause of action, the plaintiffs seek a declaration from this Court as to whether the defendants have abandoned the Ketchum Branch under § 912 and what acts would constitute abandonment. Plaintiffs also ask the Court to define the acts necessary for the State to embrace the land. In their second cause of action, plaintiffs ask the Court to determine whether the defendants are otherwise restricted from conveying good title to the land to the plaintiffs under 43 U.S.C. § 912. Plaintiffs seek a declaration “[establishing defendants’ rights to transfer to plaintiff pursuant to 23 United States Code Section 316 as limited by 43 United States Code Section 913____” Plaintiffs’ complaint, p. 7.

Shortly after the plaintiffs’ complaint was filed, three parties moved to intervene and were allowed to do so by the Court. Those intervenors are Blaine County, the City of Ketchum, and the City of Hailey. Each of the intervenors filed a complaint for declaratory relief contending that a portion of the Ketchum Branch runs through its city or county boundaries and asking the Court to declare that defendants have abandoned the portion of property within the intervenors’ boundaries under § 912 and that title is therefore vested in the respected intervenor. In the alternative, intervenors ask the Court to declare that any conveyance by the defendants to the intervenors would constitute abandonment by the defendants and/or would convey all right and title to the property to the intervenors.

On December 28, 1984, a motion to intervene was filed by M’Lynn Childers, Joan K. Janoe, John F. Schwartz, and Clarise M. Schwartz, individually, and on behalf of all individuals and organizations similarly situated. At a hearing held January 15, 1985, the Court granted this motion to intervene for the limited purpose of litigating the issues already before the Court.

Defendants’ Motion to Amend Order and to Strike Complaint of Intervenors Childers et al.

The Court stated from the bench that it would strike counts two and three from the complaint of intervenors Childers et al. Further, the Court indicated that at this time no ruling would be made on the question of class certification.

Intervenor Blaine County’s Motion for Partial Summary Judgment.

Blaine County’s motion for partial summary judgment presents the purely legal question of whether 43 U.S.C. § 912 applies to railroad rights-of-way granted under 43 U.S.C. § 934 et seq., the General Railway Rights-of-Way Act of 1875 (1875 Act). Blaine County argues that § 912 does apply to 1875 Act rights-of-way. As a corollary to its argument, Blaine County also asserts that 23 U.S.C. § 316 must apply if § 912 does; in other words, either both provisions apply or neither does. Blaine County’s position is adopted by the plaintiffs, intervenor City of Hailey and intervenor City of Ketchum. The defendant railroads do not appear to reach the question of whether § 912 applies, but instead argue that § 912 does not apply because no abandonment has occurred under the facts of this case. Thus, defendants, as the Court understands their position, do not accept or deny the threshold applicability of § 912 to 1875 rights-of-way.

The only parties, then, contesting the applicability of § 912 are intervenors Childers et al. They argue that §§ 912 and 316 apply only to pre-1871 rights-of-way and not to 1875 rights-of-way. These intervenors contend that the pre-1871 rights-of-way gave railroads a fee simple interest subject to a reversion in the United States Government. Post-1871 rights-of-way gave railroads only an easement interest which, upon its termination by abandonment or other means, merely unburdens the underlying servient estate, without any reversion to the Government. Thus, these intervenors contend that §§ 912 and 316 were not necessary as to the post-1871 grants because no reversionary interest exists.

This Court is of the opinion that § 912 does apply to 1875 Act rights-of-way.

From 1850 to 1871, Congress subsidized railroad construction through large grants of public lands. Great Northern Railroad Co. v. United States, 315 U.S. 262, 263, 62 S.Ct. 529, 533, 86 L.Ed. 836 (1942). In 1871, Congress, with a finger to the prevailing winds of public opinion, changed this policy and discontinued outright grants of land to railroads. Id. Congress, however, still intended railroads to have exclusive use and possession of railroad rights-of-way. This may be inferred from the continued use of the term “right-of-way” in the 1875 Act and from the fact that railroads must have exclusive use of their rights-of-way in order to function. The term “right-of-way,” in the context of railroad property interests, is a term of art signifying an interest in land which entitles the railroad to the exclusive use and occupancy in such land. See 65 Am.Jur.2d § 73 at p. 385 (1972), and cases cited therein. Because exclusive use and occupancy are not rights comprised within the traditional definition of an easement, definitional problems later arose in describing the nature of the railroad’s interest in its right-of-way. See, e.g., State of Wyoming v. Udall, 379 F.2d 635 (10th Cir.1967).

From 1871 to 1875, Congress passed special acts which granted rights-of-way to railroads on an individual basis. This practice becoming overly burdensome, Congress passed the 1875 Act, a general act, which reads, in pertinent part:

The right-of-way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any state or territory, except the District of Columbia, or by the Congress of the United States ... to the extent of one hundred feet on each side of the central line of said road____

43 U.S.C. § 934.

The Great Northern case, supra, contains extensive discussion of the legislative and administrative history of the 1875 Act. 315 U.S. at 273-76, 62 S.Ct. at 533-35. From this vantage point on history, it is clear that the 1875 Act was not intended to grant a fee interest to railroads. See, e.g., Cong.Rec., 43rd Cong.2d Sess., vol. 3, pp. 404-06. It is apparent, however, from Great Northern’s review of the administrative history of the 1875 Act that there were definitional problems in defining the exact nature of the railroads’ right-of-way interest, as mentioned above. For example, in some administrative statements the railroads’ interest is called an easement, in others, a right-of-way, and in others, a limited fee. Id. at 275-76, 62 S.Ct. at 534-35.

In 1903, the United States Supreme Court ruled that an 1864 Act railroad right-of-way conveyed a “limited fee, made on an implied condition of reverter in the event that the company ceased to use or retain the land for the purpose for which it was granted.” Townsend, supra, 190 U.S. at 271, 23 S.Ct. at 672. In 1915, in Rio Grande Western Railroad Co. v. Stringham, 239 U.S. 44, 36 S.Ct. 5, 60 L.Ed. 136 (1915), the Court, this time interpreting an 1875 Act right-of-way, adopted once again the use of the “limited fee” concept in reliance on Townsend and other decisions. Townsend, Stringham and these decisions were attempts to define the property interest conveyed to a railroad by the grant of a right-of-way — the result being a rather unartful coinage of the term “limited fee with an implied condition of reverter,” something of a hybrid between a fee simple interest and a mere easement interest.

The definitional problems underlying the use of the “limited fee” language has been commented on by the Tenth Circuit Court of Appeals:

The concept of “limited fee” was no doubt applied in Townsend because under the common law an easement was an incorporeal hereditament which did not give an exclusive right of possession. With the expansion of the meaning of “easement” to include, so far as the railroads are concerned, a right in perpetuity to exclusive use and possession the need for the “limited fee” label disappeared.

State of Wyoming v. Udall, supra, 379 F.2d at 640.

In Stringham, supra, the court dealt with statutory language in the 1875 Act that was identical to the language of the 1864 Act examined in the Townsend case; both the 1864 and 1875 Acts granted a “right-of-way” with no other limiting language. The 1862 Act likewise granted a right-of-way employing identical language. Thus, by the early 1920’s, the Supreme Court interpreted post-1871 rights-of-way to be “limited fees.”

Building on the foundation formed by these Supreme Court decisions, Congress, in the early 1920’s, passed a series of statutes intended to dispose of these “implied reverters”, which it believed the United States Government held in railroad rights-of-way. At least three statutes, and possibly others, were enacted in order to carry out this purpose. Title 43, section 912, passed in 1922, purports to dispose of railroad rights-of-way where there has been abandonment or forfeiture; 43 U.S.C. § 913, passed in 1920, purports to allow railroads to convey portions of their rights-of-way though not so as to diminish the right-of-way to less than one hundred feet, in total; 23 U.S.C. § 316, passed in 1921, purports to allow a railroad to convey any part of its right-of-way to state highway departments or their nominees.

The legislative history surrounding these statutes, particularly §§ 912 and 913, clearly shows that in enacting these provisions Congress was acting on the assumption that the United States possessed some type of reversionary or other interest in railroad rights-of-way — this assumption being based on the “implied condition of revert-er” language in Townsend, Stringham and other decisions. H.R.Rep. No. 217, 67th Cong., 1st Sess. 1 (1921); H.R.Rep. No. 843, 66th Cong., 2d Sess. 2 (1920).

In 1942, the United States Supreme Court modified its view of 1875 Act rights-of-way,- and acted to remove the above-mentioned definitional difficulties by holding that such rights-of-way were only easements and not fee interests. To that extent, the Stringham ease was thereby overruled. Great Northern, supra.

It is important to note exactly what the Great Northern court decided and did not decide. In that case, the United States, as owner of the underlying lands, brought suit to enjoin the defendant railroad company from extracting minerals from the government lands which underlay the railroad company’s right-of-way. The right-of-way had been granted under the 1875 Act. The Supreme Court allowed the injunction to issue against the railroad company and held that the minerals underlying the right-of-way belonged to the United States as owner of the underlying lands. 315 U.S. at 270-72, 62 S.Ct. at 532-33. Thus, the case stands only for the proposition that a railroad does not have the right to the minerals beneath the right-of-way because the 1875 Act did not convey the underlying fee. Other than merely denominating the railroad’s interest as an “easement,” however, the Court provided no discussion as to the nature of the railroad’s right-of-way interest under the 1875 Act and whether Congress had retained some interest in railroad rights-of-way under the 1875 Act or subsequent legislation.

Noticeably absent from the Great Northern opinion is any discussion of §§ 912 or 913 and their respective legislative histories, referred to above. The Great Northern court left the Townsend decision intact on the ground that it concerned pre-1871 rights-of-way, but overruled String ham, because it dealt with a post-1871 right-of-way. The Court failed to recognize that the pre-1871 and post-1871 acts contained identical language. Further, the pre1871/post-1871 dichotomy was significantly undercut by a subsequent Supreme Court decision in United States v. Union Pacific Railroad Co., 353 U.S. 112, 77 S.Ct. 685, 1 L.Ed.2d 693 (1957) reaching the same result as in Great Northern though interpreting an 1862 Act right-of-way.

This rather involved survey of the legislative history, statutes, and cases leads the Court to the following conclusions: First, Congress, in granting the 1875 Act rights-of-way, did not intend to convey to the railroads a fee interest in the underlying lands. Congress did, however, intend to give the railroads an interest suitable for railroad purposes — a right-of-way, which, by definition, carried with it the right to exclusive use and occupancy of the land. The above conclusion is in accord with sound statutory construction in that statutes should be interpreted so as to effectuate, to the full extent, legislative policy-making. Great Northern, supra, 315 U.S. at 272, 62 S.Ct. at 533.

As previously indicated, under traditional rules, a simple easement carries with it no right to exclusive use and occupancy of the land. Even if the 1875 Act granted only an easement, as opposed to a higher right-of-way interest, Congress had authority, by virtue of its broad power over interstate commerce, to grant such easements subject to its own terms and conditions — which were to preserve a corridor of public transportation, particularly the railroad transportation, in order to facilitate the development of the “Western vastness.” Congress could pre-empt or override common-law rules regarding easements, reversions, or other traditional real property interests. In other words, even if the 1875 Act granted only an easement, it does not necessarily follow that Congress would or did not intend to retain an interest in that easement. This is consistent with another well-settled rule of statutory construction which provides that conveyances by the Government will be strictly interpreted against the grantee and in favor of the grantor. Union Pacific, supra, 353 U.S. at 116, 77 S.Ct. at 687; Great Northern, supra, 315 U.S. at 272, 62 S.Ct. at 533.

Second, as the Supreme Court stated in the Great Northern decision,

It is settled that subsequent legislation may be considered to assist in the interpretation of prior legislation upon the same subject.

Great Northern, supra, 315 U.S. at 277, 62 S.Ct. at 535. This Court has the obligation to interpret § 912 (and §§ 913 and 316) in such a way to fully effectuate congressional intent: These statutes would be rendered null if this Court were to find them inapplicable to 1875 Act rights-of-way, for they were specifically enacted to dispose of the United States’ retained interest in 1875 Act rights-of-way. See H.R. 217 and 843, supra. In enacting these statutes, Congress clearly felt that it had some retained interest in railroad rights-of-way. The precise nature of that retained interest need not be shoe-horned into any specific category cognizable under the rules of real property law. Based on Townsend, Stringham and other decisions, congressional committeemen in the early 1920’s spoke of this retained interest in terms of an “implied condition of reverter.” Regardless of the precise nature of the interest, Congress clearly believed that it had authority over 1875 Act railroad rights-of-way. Sections 912, 913 and 316 evince an intent to ensure that railroad rights-of-way would continue to be used for public transportation purposes, primarily for highway transportation. With the relatively recent advent of the automobile, the 66th and 67th Congresses obviously perceived the rising importance of highway transportation; and acted to preserve, where possible, railroad rights-of-way for such use. For primarily that purpose, §§ 912, 913 and 316 were enacted.

In conclusion, the Court finds that §§ 912 and 316 apply to 1875 Act rights-of-way.

Defendants’ Motion for Summary Judgment.

In its order dated April 5, 1985, the Court, based on the agreement of all parties, determined that the factual issue of abandonment would be decided by the submission of statements of fact, affidavits, and other supporting documentation and that there would be no need for a trial as to this issue. The parties shall have twenty (20) days from the date of this order in which to submit this factual material.

      . The operative language in the 1875 Act was virtually identical to that of most or all of the pre-1871 acts: State of Wyoming v. Udall, supra, 379 F.2d at 638, note 5 (1862 Act); Northern Pacific Railway Co. v. Townsend, 190 U.S. 267, 268, 23 S.Ct. 671, 671, 47 L.Ed. 1044 (1903) (1864 Act).

      . Legislative history involving § 316 is scant. The Court believes, however, that this provision supports the discussion in the text because, in its original form, § 316 was part of a comprehensive federal highway act, see 42 Stat. 212, 216 (1921), and because § 316 was enacted at the same time as §§ 912 and 913.

      . The Union Pacific Court's decision was in part based on the "mineral lands” exception in § 3 of the 1862 Act, but the Court did attempt to distinguish the Townsend line of decisions. Id. at 118, 77 S.Ct. at 688.

      . An examination of the congressional debate on the 1875 Act reveals that there was extensive discussion of Congress' continuing commerce power over railroad rights-of-way. Cong.Rec., 43rd Cong.2d Sess., vol. 3, pp. 404-06.


text:
    The STATE OF IDAHO, Idaho Transportation Department, ex rel. Carl C. Moore, Lloyd F. Barron and Roy I. Stroschein, Idaho Transportation Board, Plaintiffs, v. OREGON SHORT LINE RAILROAD COMPANY, a Utah corporation, and Union Pacific Railroad Company, a Utah corporation, Defendants, Blaine County, City of Ketchum and City of Hailey, M’Lynn Childers, Joan K. Janoe, John F. Schwartz and Clarise M. Schwartz, husband and wife, and all other individuals and organizations similarly situated, Intervenors.
    Civ. No. 83-1473.
    United States District Court, D. Idaho.
    July 1, 1985.
    Duane A. Bybee, Green, Service, Gasser & Kerl, Pocatello, Idaho, for defendants Oregon Short Line R. Co., a Utah corporation, and Union Pacific R. Co., a Utah corporation.
    James W. Phillips, Ketchum City Atty., Ketchum, Idaho, for City of Ketchum.
    Sandra Shaw, Pros. Atty., Russell G. Pinto, Sp. Deputy Pros. Atty., Hailey, Idaho, for City of Hailey and Blaine County, Idaho.
    John C. Ward and Brian R. Hanson, Holland & Hart, Langroise, Sullivan & Smylie, Boise, Idaho, for M’Lynn Childers, Joan K. Janoe, John F. Schwartz and Clarise M. Schwartz, husband and wife.

      Robert L. Trabert, Chief Legal Counsel, Patrick W. Fanning, Leonard G. Hill, Attys., Idaho Transp. Dept., Boise, Idaho, for State of Idaho, Idaho Transp. Dept, ex rel., Carl C. Moore, Lloyd F. Barron and Roy I. Stroschein, Idaho Transp. Bd.
   MEMORANDUM DECISION

CALLISTER, Chief Judge.

In its order dated April 5, 1985, the Court, based on the oral agreement of all the parties, determined that the factual issue of abandonment would be submitted to the Court on the statements of fact, affidavits, or other supporting documentation— this in lieu of a trial or evidentiary hearing on that issue.

This is a suit for declaratory relief under 28 U.S.C. § 2201 brought by the State of Idaho, Idaho Transportation Department, and Idaho Transportation Board against two railroad companies, Oregon Shortline Railroad Company and Union Pacific Railroad Company (at times referred to as the “railroads”). Various parties have intervened since the inception of the action, including the City of Ketchum, the City of Hailey, Blaine County and various individuals. Plaintiffs and intervenors seek a declaration from this Court as to whether the defendants have abandoned the railroad line known as the Ketchum Branch and whether the defendants are restricted from conveying good title to the Ketchum Branch under 43 U.S.C. §§ 912, 913 and/or 23 U.S.C. § 316. The purpose of this decision is to determine whether an abandonment of the Ketchum Branch has occurred and to declare, in part, the rights and legal relations of the parties. Further proceedings will be necessary to determine the rights and legal relations of the parties as to other issues which are not at this time before the Court.

FINDINGS OF FACT

1. The defendant railroads hold title to a 54.19 mile strip of land extending from Richfield, Idaho, to Ketchum, Idaho (the “Ketchum Branch”). The strip of land comprises approximately 1,210 acres. Of those 1,210 acres, 988 were acquired by the railroads from the United States Government under the 1875 General Railway Right-of-Way Act. Stipulation for admission of documents No. 73 (hereafter “Stip. Doc. No. __”).

2. From the mid-1970’s to the early 1980’s, the railroads had at various times considered abandoning the Ketchum Branch but for a multitude of reasons had delayed making that decision. See, e.g., Stip.Doc. Nos. 1 through 28.

3. At some time in 1982 the Ketchum Branch was given an F.R.A. classification of “1,” which meant that railroad cars could not travel in excess of ten miles per hour on the line and that abandonment of the line was contemplated within three years. Stip.Doc. No. 46; Deposition of Michael Pécheos, pp. 16-18, 35.

4. On or about April 22, 1982, the railroads filed a notice of intent to abandon with the Interstate Commerce Commission (ICC). On or about May 17, 1982, defendants applied to the ICC for authorization to abandon the Ketchum Branch due to lack of traffic. On June 28, 1982, the ICC authorized the abandonment of the line and discontinuance of service. Under the terms of the ICC ruling, the railroads were required to notify the ICC in writing within one year if “actual” abandonment were to take place — otherwise the authorization would be revoked. In June of 1983, the defendants gave notice in writing that they had chosen not to proceed with actual abandonment but stated that they instead desired to convert the line to side track; the defendants are presently using the line as side track for storage purposes. Stip.Doc. Nos. 68, 73 and 81.

5. As of April 1985, the defendant railroads were storing approximately 600-700 railroad cars on the Ketchum Branch. Affidavit of Billy Michael Swindall; Deposition of Billy Michael Swindall, pp. 13-14; Deposition of Robert T. Bateman, pp. 6-7. These cars are generally idle awaiting assignment, repair, dismanteling, or sale as scrap material. See Bateman and Swindall depositions, supra. There are cars “switched” on and off the Ketchum Branch on an intermittent basis when weather allows. Swindall deposition, pp. 16-19; Bate-man deposition, p. 9. Most or all of the cars are stored on the southern half of the Ketchum Branch, south of Mile Post 34, i.e., the part of the track which extends from Richfield to Picabo, Idaho. Swindall affidavit, supra. The cars are so stored to make access to them economical and to place them in close proximity to the railroads’ Pocatello repair facility. See, generally, depositions of Bateman and Swindall, supra.

6. Use of railroad lines for storage purposes is a common practice in the industry. Bateman deposition, pp. 12-13; Swindall deposition, generally; Stip.Doc. Nos. 79-81.

7. The Ketchum Branch is designated as a “long-term storage” side track meaning that cars will be stored on the line for relatively longer periods of time due to weather-created access problems and the particular condition of cars stored there. It is possible for some cars to remain in storage on the Ketchum Branch for up to four-five years. Bateman deposition, pp. 12-17.

8. As of October 1984 the entire Ketchum Branch, including ties, bridges (except the bridge located at Mile Post 68.13), ballast, and fill was in excellent condition for use as side track and storage. Pecheos deposition, pp. 19-23.

9. A bridge at the extreme north end of the Ketchum Branch, at Mile Post 68.13, is impassable at the present time. Affidavit of Avery Floyd. The remainder of the Ketchum Branch, however, would be safety passable with minor maintenance work, for example, chipping away asphalt where the rails have been paved over at road crossings. Pecheos deposition, pp. 22-23; Bateman affidavit.

10. Only minor “spot maintenance” has been done in the last five years on the Ketchum Branch, which is adequate maintenance for use of the line as storage and side track. Pecheos deposition, pp. 26-27.

11. The railroad crossings between Picabo and Ketchum — the northern half of the Ketchum Branch — have apparently been given “exempt” status by the Idaho Transportation Department so that school buses and other vehicles need not stop there as required by Idaho statutes. Affidavit of George F. Oberle; Affidavit of Jim Dorr. In ruling on these exempt crossings, the Idaho Transportation Department gave its opinion that the railroad had abandoned the Ketchum Branch. Oberle affidavit and attachments.

12. Defendant railroads have paid and continue to pay property taxes to the State of Idaho and the various counties and cities through which the Ketchum Branch runs. Affidavit of P.J. Emanuel; Stip.Doc. No. 49.

13. Defendants have leased and continue to lease encroachment easements across the tracks to the State of Idaho and the various counties and cities through which the Ketchum Branch runs. First Affidavit of R.F. Niehaus.

CONCLUSIONS OF LAW

By virtue of this Court’s prior ruling, see Memorandum Decision and Order dated May 1, 1985, the statutory test of abandonment contained in 43 U.S.C. § 912, as opposed to the common-law rule, governs in this case on the question of whether an abandonment has occurred under the particular facts before the Court. Section 912 reads as follows:

Disposition of abandoned or forfeited railroad grants
Whenever public lands of the United States have been or may be granted to any railroad company for use as a right of way for its railroad or as sites for railroad structures of any kind, and use and occupancy of said lands for such purposes has ceased or shall hereafter cease, whether by forfeiture or by abandonment by said railroad company declared or decreed by a court of competent jurisdiction or by Act of Congress, then and thereupon all right, title, interest, and estate of the United States in said lands shall, except such part thereof as may be embraced in a public highway legally established within one year after the date of said decree or forfeiture or abandonment be transferred to and vested in any person, firm, or corporation, assigns, or succesors in title and interest to whom or to which title of the United States may have been or may be granted conveying or purporting to convey the whole of the legal subdivision or subdivisions traversed or occupied by such railroad or railroad structures of any kind as aforesaid, except lands within a municipality the title to which, upon forfeiture or abandonment, as herein provided, shall vest in such municipality, and this by virtue of the patent thereto and without the necessity of any other or further conveyance or assurance of any kind or nature whatsoever: Provided, That this Act [this section] shall not affect conveyances made by any railroad company of portions of its right of way if such conveyance be among those which have been or may hereafter [after Mar. 8,1922] and before such forfeiture or abandonment be validated and confirmed by any Act of Congress; nor shall this Act [this section] affect any public highway now on said right of way [on Mar. 8, 1922]: Provided further, That the transfer of such lands shall be subject to and contain reservations in favor of the United States of all oil, gas, and other minerals in the land so transferred and conveyed, with the right to prospect for, mine, and remove same.

(Brackets in original).

To state the obvious, the statute is not conducive to leisurely reading. The Court paraphrases the statute as follows:

§ 912
1) Whenever public lands which have been [may be] granted to railroads for use as right-of-way
and
2) Use and occupancy of the land for such purposes has ceased
(a) by forfeiture
or (b) by abandonment
(1) as decreed by a court with jurisdiction
or (2) as declared by Act of Congress gress
then
3) All right/title/interest of the United States in such lands shall be transferred to and vested in any person or entity to whom the United States has granted title by a conveyance purporting to convey lands traversed by a railroad.
except
(a) Lands embraced in a public highway established within one year of declaration of forfeiture or abandonment [shall belong to the state]
or
(b) Lands within a municipality upon forfeiture or abandonment, title shall vest in the municipality without need of any conveyance.
4) Provided: This Act shall not affect conveyances made by railroads which have been validated by an Act of Congress [and before abandonment or forfeiture occurred].

As the Court reads § 912, the test regarding abandonment is that “use and occupancy” of the railroad right-of-way for railroad purposes must cease in order for abandonment to occur. As the Court views the record in this case, neither use nor occupancy of the Ketchum Branch right-of-way has ceased, and thus, no abandonment has occurred.

Unfortunately, there is little case law construing § 912; that which does exist deals with issues not before the Court at this time. See, e.g., Allard Cattle Co. v. Colorado and Southern Railway Co., 33 Colo.App. 39, 516 P.2d 123 (1973) (§ 912 does not allow abandonment which serves merely to diminish the width of the railroad’s right-of-way — abandonment must be as to entire width of the right-of-way). Nor is the legislative history helpful for it deals almost entirely with the nature of the railroad’s right-of-way property interest. See this Court’s prior Memorandum Decision dated May 1, 1985. The Court is not aware of any case in which the terms “use”, “occupancy,” and “[railroad] purposes” have been construed. In such circumstances, long-established principles of statutory construction dictate that the language used by Congress in this statute be given its plain and apparent meaning.

The record shows that Ketchum Branch is being “used” for railroad purposes. This is particularly apparent as to the southern half of the line where 600-700 railroad cars are now being stored awaiting repair, dismanteling, sale, or further service. These cars are periodically switched on and off the line for the above-described purposes, though many of the cars stay on the track for long periods of time. The northern half of the Ketchum Branch is also in use for railroad purposes, if for no other reason than storage of ties, rails, ballast and fill, all items of considerable resale or salvage value according to information contained in the record. Further, there is also some indication in the record that the Ketchum Branch might at some further time be required to store a greater number of cars that are to be used for some other purpose.

The undisputed facts show that the Ketchum Branch is also “occupied” for railroad purposes. As already stated, there has been no removal of the trackage nor any other railroad structures along the entire Ketchum Branch. Railroad cars occupy the southern half of the Ketchum Branch. Further, the railroad has paid and continues to pay property taxes to the appropriate governmental entities for the entire Ketchum Branch. Under the plain meaning of the statutory language in § 912, the railroad continues to use and occupy the Ketchum Branch for railroad purposes.

In reaching its decision, the Court has also looked for guidance to the case law dealing with common-law principles of abandonment. The classic statement of the rule is that for abandonment to occur there must be (1) present intent to abandon, and (2) physical acts evidencing clear intent to relinquish the property interest. See, e.g., J. CRIBBET, Principles of the Law of Property pp. 345-46 (2d ed. 1975); O’Brien v. Best, 68 Idaho 348, 194 P.2d 608, 613 (1948).

The record, when viewed as a whole, shows no present intent to abandon the Ketchum Branch. It is insufficient that the defendants contemplated, discussed, or even made preliminary plans toward abandonment of the Ketchum Branch. For various reasons, railroad officials on a number of occasions in the past decade delayed or reconsidered abandoning the Ketchum Branch, the most recent reason being that the railroad did not want to jeopardize its ability to negotiate the sale of the right-of-way to the State of Idaho. Stip.Doc. No. 81. The Court believes that the evidence clearly weighs in favor of the finding of a lack of present intent to abandon.

Plaintiffs and intervenors argue, however, that the defendants’ application to the ICC for authorization to discontinue service on the Ketchum Branch is prima facie evidence of intent to abandon. A fair number of courts have rejected this argument. State ex rel. Washington Wildlife Preservation, Inc. v. State, 329 N.W.2d 543, 548 (Minn.1983); Hennick v. Kansas City Southern Railway Co., 364 Mo. 883, 269 S.W.2d 646, 650-51 (1954); Lacy v. East Broad Top Railroad and Coal Co., 168 Pa.Super. 351, 77 A.2d 706, 710 (1951). Defendants are correct in arguing that mere discontinuance of railroad services does not amount to an abandonment of the railroads’ entire right-of-way. By its terms, the ICC certificate of abandonment contemplated that the railroad might, in fact, choose not to proceed with “actual” abandonment:

(3) Subject to the conditions as set forth above and provided no offer for continued rail operations is received, actual abandonment may be effected by OSL and UP after the effective date of this certificate and decision.
(6) If the authority granted in this certificate and decision is not exercise within one year from its effective date, it shall be of no further force and effect.

ICC Certificate of Decision, Exhibit B to Plaintiffs’ Complaint. This is precisely what occurred in the present case. Although they discontinued service, the railroads chose to convert the Ketchum Branch to side track, a recognized use of railroad line, as opposed to actual abandonment of the line.

In addition to finding no intent to abandon, the Court also finds a corresponding absence of sufficient physical acts to constitute an abandonment. In a majority of cases reviewed by the Court, abandonment was generally found only where all or most of the following acts had occurred:

1. Railway service had been discontinued;

2. Trackage and other railroad structures had been removed;

3. Right-of-way had not been used for any railroad purpose;

4. Maintenance of the line had been discontinued. See 65 Am.Jur.2d §§ 82-83 at pp. 391-93 (1972 and 1984 Supp.) and cases cited therein.

Likewise, if some or all of the following occurred, abandonment generally was not found:

1. The railroad had paid taxes on the right-of-way;

2. The right-of-way was used for some railroad purpose even if railroad service had been discontinued;

3. Trackage was left intact along with other railroad structures such as bridges, ballast, and barricades. See id.

In weighing the above-listed factors, the Court believes that the record shows that no physical abandonment of the Ketchum Branch has occurred. The evidence shows that the Ketchum Branch is in good-to-excellent condition for side track and storage usage and that the entire line — with minor maintenance — is safely passable, with the exception of the bridge at Mile Post 68.13, located at the extreme northern end of the Ketchum Branch. For these reasons, the Court finds no physical abandonment.

As the above discussion illustrates, there has been no abandonment under either § 912 or under common-law principles of abandonment.

In accordance with the views expressed in this memorandum decision, the Court makes the following partial declaration of the rights and legal relations of the parties under 28 U.S.C. § 2201:

1. No abandonment of the railroad line known as the Ketchum Branch has occurred in the present case;

2. In order for abandonment of the Ketchum Branch to occur in the future the Court declares that the following must occur:

a. The railroads must cease paying taxes;

b. The railroads must take up the tracks and other railroad structures or the line must become completely unusable, even for side track purposes;

c. The railroads must have the intent to abandon — as evidenced by statements and conduct;

d. The railroads must cease using the line for any railroad purpose;

e. This Court or Congress must decree that abandonment has occurred.

      . Though common-law principles of abandonment are not controlling, the Court will look to them for guidance on the question of whether abandonment has occurred.