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

text:
    Roy A. DAY, Plaintiff, v. AMOCO CHEMICALS CORPORATION, Defendant.
    Civ. A. No. H-83-2953.
    United States District Court, S.D. Texas, Houston Division.
    Oct. 23, 1984.

      Roy A. Day, pro se.
    Donald J. Horton, Chamberlain, Hrdlicka, White, Johnson & Williams, Houston, Tex., for defendant.
   AMENDED ORDER

CARL O. BUE, Jr., District Judge.

Pending before the Court is defendant’s Motion to Amend Judgment To Award Attorney’s Fees and Costs. After careful consideration of the law and memoranda of the parties, this Court is of the opinion that defendant’s motion should be granted.

The cause of action was initially brought in state court and removed to federal court on May 5, 1983. Plaintiff was thereafter granted leave to proceed in forma pauper-is. On May 7, 1984, this Court granted defendant’s motion to dismiss with prejudice on the ground that plaintiff’s case was frivolous and malicious within the meaning of 28 U.S.C. § 1915(d). Subsequently, defendant timely filed his Motion to Amend Judgment to Award Attorney’s Fees and Costs pursuant to FED.R.CIY.P. 59(e). Final Judgment was entered thereafter on July 2, 1984.

In the motion before the Court, defendant contends that attorney's fees and costs should be assessed against plaintiff pursuant to the Court’s inherent equitable powers, Rule 11 of the Federal Rules of Civil Procedure, and/or 28 U.S.C. § 1927.

Equitable Doctrine

Unless a statutory or contractual authorization exists, the “American Rule” dictates that the prevailing litigant is not entitled to attorney’s fees from the loser. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Espino v. Besteiro, 708 F.2d 1002 (5th Cir.1983). However, the Supreme Court has acknowledged the “inherent power” of the courts in awarding attorney’s fees when the losing party has acted oppressively or in bad faith. Alyeska, 421 U.S. at 258-259, 95 S.Ct. at 1622. Therefore, an exception to the general rule exists when the opposing party has acted vexatiously “not only in actions that led to the lawsuit, but also in the conduct of the litigation.” Roadway Express Inc. v. Piper, 447 U.S. 752, 766, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980) (citing Hall v. Cole, 412 U.S. 1, 15, 93 S.Ct. 1943, 1951, 36 L.Ed.2d 702 (1973)).

The underlying purpose in assessing attorney’s fees against the losing party is punitive. Moreover, the essential element necessary to activate that punitive rationale is bad faith. Id., at 4-5, 93 S.Ct. at 1945-1946. The bad-faith exception is not without limitations, however. Case law indicates that an award of attorney’s fees under the bad-faith exception can be imposed only in exceptional cases , and for dominating reasons of justice. As a result, invocation of the bad-faith exception requires more than a showing of a frivolous claim. Schmidt v. National Organization for Women, 562 F.Supp. 210 (D.C.Fla. 1983). Plaintiff’s claim was dismissed as being not only frivolous, but also malicious. Consequently, the additional ground of maliciousness in the dismissing of plaintiff’s claim enables this Court to exercise its discretion in requiring plaintiff to assume defendant’s attorney’s fees in furtherancé of substantial justice.

Rule 11

Rule 11 of the Federal Rules of Civil Procedure was promulgated primarily as a deterrence against the filing of false claims by obligating the attorney or party signing the documents to certify, after reasonable inquiry, that the cause of action was well grounded. Since its inception, Rule 11 has provided for imposition of disciplinary sanctions. However, much confusion among the federal district courts occurred as to when sanctions should be imposed. As a result, the 1983 Amendments were enacted to build upon and expand the equitable doctrine discussed above. The amendments, therefore, indicate a trend toward curtailing spurious claims and enhancing judicial economy in litigating legitimate claims. The advisory committee noted,

Greater attention by the district courts to pleading and motion abuses and the imposition of sanctions when appropriate, should discourage dilatory or abusive tactics and help streamline the litigation process by lessening frivolous claims or defenses. See 1983 Amendment, Advisory Committee Notes.

The rule applies to anyone who signs a pleading, motion, or other documentation in a lawsuit. Moreover, the standard is the same for unrepresented parties. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Although the Advisory Committee Notes to the 1983 amendments indicate that absence of legal counsel is an appropriate factor to be considered when imposing sanctions, “the court, however, retains the necessary flexibility to deal appropriately with violations of the rule. It has discretion to tailor sanctions to the particular facts of the case, with which it should be well acquainted.” Further, the committee stated, “if the duty imposed by the rule is violated, the court should have the discretion to impose sanctions on either the attorney ... or an unrepresented party who signed the pleading, and the new rule so provides.”

Rule 11, therefore, is a response to unfounded claims in an effort to end abuse of the judicial process. If the court were to tolerate the kind of conduct evidenced in this proceeding, the capability of the judicial system to serve the ends of justice would be greatly impaired.

28 U.S.C. § 1927

Section 1927 provides for the imposition of attorney’s fees where a suit is unreasonably instigated. The standard for awarding fees under this statute is vexatious multiplication of litigation. Nilsen v. City of Moss Point, Mississippi, 621 F.2d 117 (5th Cir.1980). See also Lewis v. Brown & Root, Inc., 711 F.2d 1287, 1292, n. 7 (5th Cir.1983); Overnite Transportation Co. v. Chicago Industrial Tire Co., 697 F.2d 789, 794 (7th Cir.1983). The second prong of the test requires subjective bad faith on the part of the attorney. See McCandless v. Great Atlantic and Pacific Tea Co., Inc., 697 F.2d 198, 201 (7th Cir. 1983). Moreover, while lack of merit of the action is evidence of bad faith, the claim must also lack a colorable basis in law to justify an award of fees. Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1269 (7th Cir.1983). In the present litigation, plaintiff’s malicious act in filing his frivolous claim has caused defendant to incur an inordinate amount of legal fees. Through unqualified abuse of the judicial process, plaintiff has vexatiously multiplied litigation which was brought in bad faith.

The spirit of the rules should be enforced not only to spare parties the financial expense and waste of time in defending against frivolous allegations, but to prevent the exploitation of a judicial system already weighted to the breaking point with legitimate claims. The Court’s valuable time should not be wasted on harrassing, annoying lawsuits such as the one filed by plaintiff. In an effort to deter such claims, sanctions should be imposed upon the instigator of the afflicting and disrupting action where the court finds that the judicial process is being exploited and abused. Therefore, this Court is of the opinion that plaintiff should pay attorney’s fees to defendant. As a result of this determination, the Court will “explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected [its] decision” in its computation. Graves v. Barnes, 700 F.2d 220 (5th Cir. 1983) (citing Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir.1980) (Copper Liquor II)) (referring to Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). “What we require is not a meaningless exercise in parroting and answering of Johnson’s twelve criteria, but some assurances that the Court has arrived at a just compensation based on appropriate standards.” Davis v. Fletcher, 598 F.2d 469, 470-71 (5th Cir.1979). Although all twelve factors must be considered, the Court will pay “special heed to Johnson criteria numbers (1) the time and labor involved; (5) the customary fee; (8) the amount involved and the results obtained; and (9) the experience, reputation and ability of counsel.” Copper Liquor, supra, at 583.

(1) The Time and Labor Required

In determining the reasonableness of attorney’s fees the necessary starting point is to assess the amount of time spent by counsel on the case. Johnson v. Georgia Highway Express, supra, at 717. In addition to the time-sheet affidavits submitted by counsel, the Court should weigh the hours claimed by counsel in light of the Court's own experience and observations and fashion a total time allowance which rationally reflects the services rendered. Id.; McDonald v. Oliver, 525 F.2d 1217, 1233 (5th Cir.), cert. denied, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77 (1976). Moreover, investigation, clerical work, and other work which could be performed by a layperson should be distinguished from time expended by counsel directed toward the merits. Lindy Bros. Builders, Inc, v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3rd Cir.1973); Foster v. Boise-Cascade, Inc., 420 F.Supp. 674 (S.D.Tex.1976), aff'd, 577 F.2d 335 (5th Cir.1978). In addition, counsel should indicate whether the person performing each task is a partner, associate, or paralegal. Johnson v. Georgia Highway Express, supra, at 718-719.

In support of defendant’s motion pending before the Court, counsel has submitted an affidavit detailing the nature of the services rendered by him, including the amount of time spent on such services, and the date on which such services were performed. According to his affidavit, counsel seeks an award of fees based upon having spent over 471 hours defending this lawsuit.

The Court has no difficulty in concluding that the hours claimed by counsel are reasonable and represent an efficient use of counsel’s time in performing the task described in the detailed time records. Further, the Court is very familiar with the history of this case, the work performed by counsel on behalf of the defendant, and the work product resulting from the tasks described in the time records. However, since fee awards are, at bottom, an equitable matter, Hall, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702, and a discretionary function of the trial court, Mitchell v. M.D. Anderson Hospital, 679 F.2d 88 (5th Cir. 1982), the Court should not hesitate to take the relative wealth of the parties into account. See Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). After careful consideration of the mitigating factors, the Court will diminish the hours claimed by counsel to 100.

(2) Novelty and Difficulty of the Issues

While the lawsuit filed by plaintiff did not present particularly novel or difficult issues, defendant nevertheless was required to spend an inordinate amount of time responding to the various documents and attempted legal issues raised by plaintiff. The responses were time consuming and of the utmost importance in order to defend the lawsuit. Accordingly, the Court will take this factor into consideration in awarding counsel attorney's fees.

(3) The Skill Requisite to Perform the Legal Services Properly

The best method the Court can utilize in assessing the skill of defense counsel is its own observation of the attorney’s work product and conduct before this Court. Further, the affidavit by counsel sets forth his expertise in the area of the law involved in this lawsuit. After careful consideration, the Court finds that counsel for defendant ably and skillfully performed the legal services involved in this litigation.

(4) The Preclusion of Other Employment by the Attorney due to Acceptance of the Case

The court in Johnson set forth a two prong test for this factor: (1) preclusion of other legal business because of conflicts of interest, and (2) preclusion from other work due to considerations of time. Johnson v. Georgia Highway Express, supra. The representation of defendants by counsel did not preclude counsel from engaging in other employment due to conflict of interest. However, counsel was required to expend over 471 hours in preparation of the defense. Obviously, counsel’s time could have been spent on other projects rather than defending plaintiff’s meritless claim. Accordingly, this factor will be considered by the Court in determining a reasonable fee to be awarded counsel.

(5) The Customary Fee

The court in Johnson v. Georgia Highway Express, Inc. supra, declared that the district court should select an hourly rate which reflects the “customary fee for similar work in the community.” Id. at 718. The court emphasized also that the hourly rate should be varied by the district court in accordance with the type of work being considered. Id. at 717. Accordingly, trial work should command a higher rate than pretrial work. See, e.g., Barth v. Bayou Candy Co., 379 F.Supp. 1201 (E.D.La. 1974); United States v. Gray, 319 F.Supp. 871, 875 (D.R.I.1970).

A customary hourly fee in cases similar to the instant cause range from $100.00 to $160.00 per hour. After careful consideration of the customary legal fees charged in the Houston legal community, and since the work by defense counsel was pretrial in nature, the Court concludes that an hourly rate of $100.00 per hour is reasonable and should be the basis for an award of attorney’s fees in this case.

(6) Whether the Fee is Fixed or Contingent

Defendant, as a regular client, was customarily charged a fixed fee of $100.00 per hour for legal services.

(7) Time Limitation Imposed By The Client or the Circumstances

The services rendered by counsel in the performance of the tasks described in counsel’s affidavit were not performed under time constraints. Accordingly, the Court considers this factor irrelevant in determining the amount of the award.

(8) The Amount Involved and the Results Obtained

Rule 11, 28 U.S.C. § 1927, and the equitable power of the court allows recovery of fees for bad-faith, frivolous claims. This Court dismissed a frivolous and malicious claim which clogged the court system, the filing of which caused defense counsel to expend numerous hours in preparation of its defense. The attorney’s fee award will reflect the inordinate amount of time defense counsel spent in preparing his case, and deter plaintiff from filing similar frivolous claims.

(9) The Experience, Reputation, and Ability of the Attorneys

The Court has presided over all phases of this case since its inception, and is thoroughly familiar with the litigation and the extent and quality of services rendered by counsel for defendant. Defense counsel is experienced in the area of labor law. As evidenced by the record and the benefits conferred on defendant, the Court finds that defendant has been ably served by its counsel who skillfully met the substantive and procedural challenges presented in this case. At all times, counsel displayed a professional level of expertise in the substantive areas. Accordingly, the Court places considerable emphasis on this factor in determining an award.

(10) The Undesirability of the Case

The case was dismissed as being frivolous and malicious within the meaning of 28 U.S.C. § 1915(d). Accordingly, the Court will consider this factor in calculating the award of attorney’s fees.

(11) The Nature and Length of the Professional Relationship with the Client

Aside from his representation of defendant in the instant cause, defense counsel, for over a year, has maintained a working relationship with defendant on all labor matters.

(12) Awards in Similar Cases

Once again, the Court finds that the amount to be awarded defendant’s counsel is not unreasonable in comparison to the awards made in other cases which were determined frivolous. See Lewis v. Brown & Root, Inc., 711 F.2d 1287 (5th Cir.1983).

Award of Attorney’s Fees

After taking all of the relevant factors into consideration, and affording the appropriate weight to factors (1), (5), (8), and (9), the Court finds that defendant’s counsel is entitled to reasonable attorney’s fees in the total amount of $10,000.00, as well as interest on that amount at the current rate of 11.36% per annum until this amount is paid.

Costs

Attorney’s fees usually are not among the costs the winning party may recover. Roadway Express, supra. See also Coleman v. McLaren, 92 F.R.D. 754 (D.C.Ill. 1981), affirmed, 699 F.2d 401 (7th Cir. 1983). Costs as embraced in 28 U.S.C. § 1927 are awarded as a result of an attorney’s vexatious behavior and multiplication of proceedings. Id. However, a litigant proceeding in forma pauperis must recognize he is not immune from the consequences of pursuing a vexatious claim and the resulting taxable costs. Chevrette v. Marks, 558 F.Supp. 1133 (M.D.Pa.1983). Needless to say, a litigant who burdens his adversary with a frivolous claim invariably tends to escalate the already high cost of litigating a lawsuit. If the vexatious litigant loses his case, sanctions may be imposed requiring him to pay costs to the prevailing party. See FED.R.CIV.P. 54(d) and 11 (amend.1983). Since the costs would not have accrued but for the plaintiff’s contumacious conduct in initiating and litigating this frivolous lawsuit, it seems quite fair to place the financial burden on the plaintiff.

The Court, after careful consideration of all relevant law, memoranda of the parties, and mitigating factors, is oí the opinion that plaintiff should pay taxable costs.

Accordingly, it is ORDERED that defendant’s Motion to Amend Judgment to Award Attorney’s Fees and Costs is granted.

      . On October 10, 1984, plaintiff filed a Supplemental Trial Brief in Support of Plaintiff's Response In Opposition to Defendant’s Motion to Amend Judgment to Award Attorney’s Fees and Costs. In the brief, plaintiff argues that Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974), is misplaced and not applicable in the instant case. Further, plaintiff alleges that the real issue concerns the definition of a malicious and frivolous claim within the meaning of 28 U.S.C. § 1915(d). However, in an award for attorney's fees, the Fifth Circuit has stated that the standard for governing the computation of attorney’s fees is Johnson. Graves v. Barnes, 700 F.2d 220 (5th Cir.1983). The Court previously has determined that plaintiffs claim was frivolous and malicious within the meaning of 28 U.S.C. § 1915(d), and this Court’s decision remains. The issue before the Court is whether or not defendant should be awarded attorney’s fees and costs, not what in the law constitutes a frivolous and malicious claim. Plaintiffs contention in the supplemental trial brief filed on October 10, 1984, is without merit.
      Attached to plaintiff’s supplemental brief is plaintiffs appellate brief to the Fifth Circuit. In order to clarify the history of the case, a chronological history of relevant points will be given. On May 7, 1984, plaintiffs cause of action was dismissed with prejudice. Subsequently, three post-dismissal motions were filed. These motions included Plaintiffs Motion to Correct Misstatement in the Record, Plaintiffs Motion to Disqualify Judge, and Plaintiffs Second Motion to Vacate Judgment. After due consideration all three post-dismissal motions were denied. Pro se plaintiff has not been a stranger to the court system. Several other lawsuits have been filed in the Southern District of Texas. See Civil Action Numbers H-83-3491, H-83-5082, H-83-5108 and H-84-2677. In all but the latest cause, plaintiff has filed a motion to disqualify the judge.

      . The Court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), listed the following 12 factors as bearing on the question of reasonable attorneys’ fees:
      (1) the time and labor required;
      (2) the novelty and difficulty of the question;
      (3) the skill requisite to perform the legal task properly;
      (4) the preclusion of other employment by the attorney due to acceptance of the case;
      (5) the customary fee;
      (6) whether the fee is fixed or contingent;
      (7) time limitations imposed by the client or the circumstances;
      (8) the amount involved and the results obtained;
      (9) the experience, reputation, and ability of the attorney;
      (10) the "undesirability” of the case;
      (11) the nature and length of the professional relationship with the client; and
      (12) awards in similar cases.
      488 F.2d at 717-19.


source: Caselaw Access Project

author: JAMES T. FOLEY, Senior District Judge.

license: Public Domain

text:
    Sonia JOHNSON, Citizens Party Candidate For President of the United States of America, Susan Bewley, Patricia Hughes, Andrea Natalie and Desmond Michael Kahn, Plaintiffs, v. Mario CUOMO, Governor of the State of New York, the State of New York and George D. Salerno, Chairman, State Board of Elections, Defendants.
    No. 84-CV-1374.
    United States District Court, N.D. New York.
    Oct. 23, 1984.

      Walter, Thayer & Long, Albany, N.Y., for plaintiffs; Lanny E. Walter, Albany, N.Y., of counsel.
    Robert Abrams, Atty. Gen. of the State of N.Y., Albany, N.Y., for defendants; James McSparron, Deputy First Asst. Atty. Gen., Paul D. Silver, Asst. Atty. Gen., Albany, N.Y., of counsel.
   MEMORANDUM-DECISION and ORDER

JAMES T. FOLEY, Senior District Judge.

The complaint in this action alleges that four specific sections of the New York Election Law placed unconstitutional burdens upon plaintiffs’ voting and associational rights in violation of 42 U.S.C. § 1983 and the First and Fourteenth Amendments to the United States Constitution, and deprivation of the right to equal protection of the law under the Fourteenth Amendment. The specific portions of the New York Election Law challenged are Sections 1-104(3), 6-138(1), 6-140(1), 6-142(1), all set forth in 17 McKinney Edition (1978). The complaint was filed on September 28, 1984. A motion by the plaintiffs, returnable October 12, 1984, for a preliminary injunction was then filed upon which oral argument was heard in Chambers on that date. The motion seeks preliminarily, pending adjudication on the merits of the unconstitutional claims alleged in the complaint, an injunction directing the New York State Board of Elections to certify to each New York County Board of Elections the names of and residences of Sonia Johnson and Richard Walton as candidates of the Citizens Party for President and Vice President of the United States, and directing such State Board of Elections to prepare a ballot including such names for such offices in time for the general elections on Tuesday, November 6, 1984. An Order signed by me was filed on October 19, 1984, denying and dismissing this motion for a preliminary injunction. That Order stated that this memorandum-decision and order, setting forth the reasons for such denial, with findings of fact and conclusions of law, would be filed on Tuesday, October 23, 1984 at 3:30 p.m.

The factual background shall be set forth briefly. The Citizens Party describes itself as a national progressive political party. Its first candidates for President and Vice President of the United States were on the ballot in thirty (30) states for the 1980 Presidential election and received a total of 236,148 votes. Sonia Johnson, the lead plaintiff in this action, was designated in 1984 as the candidate of the Citizens Party for the office of President of the United States of America. It is stated in the plaintiffs’ substantial memorandum of law that Sonia Johnson has qualified for the ballot in seventeen (17) states and has litigation pending in three other states to secure a ballot position for the high office she seeks. Efforts were made by party representatives and supporters on her behalf and for Richard Walton as Vice President candidate to obtain the necessary 20,000 signatures with a minimum of 100 from one-half of the thirty-two (32) New York State Congressional districts as required by the New York Election Law for independent nominations. Such efforts were unsuccessful. See N.Y. Election Law § 6-142(1). Admittedly, only 6,000 signatures were obtained on the nominating petition, and it was not submitted to the New York State Board of Elections until September 28, 1984, the same date the complaint in this action was filed in this federal district court. The statutory date for the filing of an independent nomination petition was no later than September 18, 1984. See N.Y. Election Law § 6-158(9). Thomas W. Wallace, Executive Director of the New York State Board of Elections, has submitted an affidavit in opposition to the preliminary injunction motion. Attached thereto is Exhibit 1, the Determination of the State Board of Elections, dated October 2, 1984. It states that the independent nominating petition naming Sonia Johnson and Richard Walton as President and Vice President of the United States respectively is determined to be null and void since it was not timely filed, and it is not necessary to consider said petition with respect to form and content.

At the oral argument on the motion, Assistant Attorney General Paul D. Silver, for the defendants, stated that irreparable harm, an essential element for the grant of a preliminary injunction under Court of Appeals, Second Circuit rulings, would not be contested. However, the position, as in the detailed opposition brief, was maintained strongly that the other requisites under Second Circuit rulings, either the likelihood of success on the merits, or sufficiently serious questions going to the merits to make them a fair ground for litigation with a balance of hardships tipping decidedly toward the plaintiffs have not been met. Also, as urged at the oral argument by Assistant Attorney General Silver, it was conceded on the record by Attorney Walter that the Eleventh Amendment to the United States Constitution barred the maintenance of the action against the State of New York. Accordingly, the complaint was dismissed on the record against the named defendant State of New York. The court appreciates these concessions, and the submissions of competent briefs with helpful review and analysis of federal and state cases pertinent to the constitutional problems presented in relation to the particular New York Election Law provisions applicable to the situation.

There is raised for the defendants a substantial threshold question that the failure to timely file the nominating petition at issue herein renders moot the plaintiffs’ constitutional challenges to the specified New York Election Law statutes. As noted by the attorney for the defendants, it is very significant that there is no challenge by the plaintiffs to the New York Election Law § 6-158(9) prescribing that an independent nomination petition shall be filed not later than seven weeks before the general election. It is evident that a time period, at least of this extent, is permissible and necessary for the checking and processing of independent nominating petitions and for the orderly preparation of the ballot for the general election. The support for mootness comes from the United States Supreme Court ruling that if a candidate is absolutely and validly barred from the ballot by one provision of the laws, he cannot challenge other provisions as applied to other candidates. Storer v. Brown, 415 U.S. 724, 736-737, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974); see also Gammerman v. Bd. of Elections of City of New York, 550 F.Supp. 1031 (S.D.N.Y. 1982). There is reservation on my part to proceed, but in view of clear United States Supreme Court rulings on statutes similar to the New York ones in issue here, the better course, in my judgment, is to reach evaluation of the New York Election Law statutes in regard to showing at this stage of their unconstitutionality. In agreement with the defendants, the review standard for these statutes shall be the “rational basis” test. Storer v. Brown, supra, 415 U.S. at p. 730, 94 S.Ct. at p. 1279.

The United States Supreme Court recognized in a noted case involving state requirements for nominating petitions, Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569, 75 L.Ed.2d 547 (1983), that not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally suspect burdens on voters’ rights to associate or choose among candidates. The opinion of the court in Anderson, quoted this statement from Storer v. Brown, supra, 415 U.S. at p. 730, 94 S.Ct. at p. 1279, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” There has been recognition by the Supreme Court that there is an important state interest in requiring some preliminary showing of a modicum of support before printing names on the ballot, and to prevent the clogging of its election machinery and to avoid voter confusion. See Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971); Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972). These principles and guides shall be followed in the consideration of the challenged New York Election Law statutes.

New York Election Law § 1-104(3) defines the term “party” to mean any political organization which at the last preceding general election for Governor polled at least fifty thousand (50,000) votes for its candidate for Governor. The achievement of this minimum confers official status to a party, and allows it to participate in the primary process instead of the independent nomination petition course for its candidates as provided in § 6-138(4). A general election for the high office of Governor in New York State attracts substantial numbers of voters to the polls, and I find the minimum of fifty thousand (50,000) to be fair and sensible, and by no means an unconstitutional obstacle to qualify for the privilege of official party status. The Citizens Party did not achieve official party status in the New York 1982 gubernatorial election. Impressive support for this particular New York requirement is stated in American Party of Texas v. White, 415 U.S. 767, 782-83, 94 S.Ct. 1296, 1306-07, 39 L.Ed.2d 744 (1974):

But we think that the State’s admittedly vital interests are sufficiently implicated to insist that political parties appearing on the general ballot demonstrate a significant measurable quantum of community support. So long as the larger parties must demonstrate major support among the electorate at the last election, whereas the smaller parties need not, the latter, without being invidiously treated, may be required to establish their position in some other manner.

Accord, Anderson v. Celebrezze, supra, 460 U.S. at 788, n. 9, 103 S.Ct. at 1570, n. 9. Likewise, I find that this reasoning justifies approval of New York Election Law § 6-142(1) requiring that an independent nominating petition must be signed by at least twenty thousand (20,000) voters, of whom at least one hundred (100) shall reside in each of one-half of the Congressional districts of the State. The number of twenty thousand (20,000) is not an unreasonable requirement in view of the large New York State population. The requirement to obtain at least one hundred (100) signatures from residents of seventeen Congressional districts, although undoubtedly necessitating the availability of manpower and travel energy, cannot be considered unconstitutional. Similar distribution requirements were struck down in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), but only because the required signatures were to come from a certain number of counties which varied greatly in population, and thus there was violation of the “one voter, one vote” principle. See also Blomquist v. Thomson, 739 F.2d 525 (10th Cir.1984). These cases are inapplicable to the situation here since New York State’s Congressional Districts have been judicially found by the State’s highest court to have nearly equal population. Moritt v. Governor of the State of New York, 42 N.Y.2d 347, 351, 397 N.Y. S.2d 929, 366 N.E.2d 1285 (1977).

Attorney Walter in his brief and at the oral argument stressed much more forcefully his unconstitutional challenge to New York Election Law §§ 6-138(1) and 6-140(1) than the New York Election Law statutes above discussed. New York Election Law § 6-138(1) provides that the name of a person signing an independent nominating petition shall not be counted, if the person voted at a primary election for the same office for which the petition purports to nominate a candidate, or that person has signed another petition designating or nominating the same or a different person for the same office. In this instance, the effect of this statute prevented persons who voted in the New York April 1984 Presidential primary election, or signed a petition for any other candidate for the Presidency from signing the independent nomination petition of Sonia Johnson and Richard Walton. Restrictions of this kind have been expressly upheld by the United States Supreme Court. American Party of Texas v. White, supra, 415 U.S. at 785, 94 S.Ct. at 1308; Anderson v. Celebrezzo, supra, 460 U.S. at 801, n. 29, 103 S.Ct. at 1576. Such a policy reflects a legitimate and approved interest to confine each voter to a single nominating act.

New York Election Law § 6-140(1) requires that a person who witnesses a signature to a nominating petition must be a qualified voter of the State and qualified to sign the petition. This means that a person who voted in the Presidential New York primary in April 1984, or who signed another nominating petition could not witness such signatures. The plaintiffs complain that this restriction placed an unfair and unconstitutional burden upon the candidacy of Sonia Johnson. I find this witnessing restriction a reasonable one that helps protect the integrity of the state nominating process with a proper additional safeguard in the signature canvassing. It prevents the signature canvassing from becoming free-wheeling and irresponsible. Further, there is an alternative method of witnessing in § 6-140(2). A form is authorized by this Section that allows the signature page of the petition to be sworn to before a Notary Public or Commissioner of Deeds. This alternative is not shown to be an impractical assistance to the signature gathering. See American Party of Texas, supra, 415 U.S. at p. 787, 94 S.Ct. at 1309. Also, it should be noted that persons who are not qualified to witness signatures are, as pointed out by the defense, free to solicit signatures for a nominating petition, as well as being able to engage in any other political activity for such candidates in whom they are interested. The limitation only affects the witnessing of signature, and, in my judgment, is permissible and not in violation of the federal Constitution.

Mention should be made of the earnest argument advanced for the plaintiff by Attorney Walter under a totality of circumstances concept. The contention is that many of Sonia Johnson’s eventual supporters had initially supported Jesse Jackson and either signed his nominating petition, authorized to be circulated in January 1984, for the New York April primary or voted for him at the April primary. Thus, such persons would be disqualified from signing or witnessing signatures of others on the Johnson-Walton nomination petition that could not be circulated until August 1984. It is argued that to avoid this problem Sonia Johnson and the Citizens Party supporters would have to begin organizing petition canvass in December 1983, or else try to organize volunteers before January 10, 1984 to discourage persons from supporting Jesse Jackson, or some other candidate in the April 1984 primary. I find these arguments unpersuasive and conjectural with no resemblance to the facts in the Anderson case. The circumstances of the real political world pointed out are remote and have no relationship to the specific statutes challenged herein.

My Order of October 19, 1984, denying and dismissing the motion of the plaintiffs and this memorandum-decision and order remain as it must be in the preliminary injunction context. See University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981). I am firm in my belief that the plaintiffs have not demonstrated either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the plaintiffs. These settled standards of the Second Circuit for the preliminary injunctive relief sought have not been met. Sperry International Trade, Inc. v. Government of Israel, 670 F.2d 8, 11 (2d Cir.1982); Mattel, Inc. v. Azrak-Hamway, International, Inc., 724 F.2d 357, 359 (2d Cir.1983). I agree totally with the Supreme Court principle that new parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past. Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968).

My conclusion of law is that the New York Election Law statutes challenged herein afford that opportunity and are supported by Supreme Court approval of similar statutes. My findings of fact are contained herein. It is unlikely unconstitutionality can be shown on the merits or a serious question presented in that regard. The denial and dismissal Order of October 19, 1984 is reaffirmed. In view of the Notice of Appeal filed by the plaintiffs to the Court of Appeals, Second Circuit, from that October 19, 1984 Order, the Clerk is directed to send by expedited mail a copy of this memorandum-decision and order to the Clerk of that court. I treat the complaint and motion as filed in good faith and possessing arguable merit. F.R.Civ.P. 11 sanctions are denied.

It is so Ordered.


author: REYNOLDS, Chief Judge.

text:
    Dean Justin McKEEVER, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 80-C-512.
    United States District Court, E.D. Wisconsin.
    Oct. 23, 1984.

      Dean Justin McKeever, pro se.
    Joseph P. Stadtmueller, U.S. Atty. by Melvin K. Washington, Asst. U.S. Atty., Milwaukee, Wis., and Donna Morros Weinstein, Dept, of Health and Human Services, Chicago, 111., for defendant.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

This is an action for review of a final decision of the Secretary of Health and Human Services (“the Secretary”) pursuant to 42 U.S.C. § 405(g). The case was referred to a United States Magistrate for a recommendation on the parties cross-motions for summary judgment. When the Magistrate issued his recommendation, neither party objected, and pursuant to the recommendation the case was remanded to the Secretary for further proceedings.

Plaintiff subsequently filed a “Motion to Command Defendant to Comply With This Court’s Order.” In support of his motion, plaintiff states that despite the Court’s explicit directive, an agent of the Secretary told plaintiff that he had previously been given three hearings, that his case was now officially closed and that it would not be reopened for any reason. After plaintiff telephoned the Court to inquire of the status of this motion, the Court asked the United States Attorney to respond to the motion. The United States Attorney has no objection to the Court’s granting plaintiffs motion.

The Court’s July 19, 1984 order explicitly remands the action to the Secretary for the purpose of taking additional evidence on the issue of plaintiff’s earnings during the first quarter of 1973. This is not a mere suggestion that the Secretary so reconsider plaintiff’s claim, it is an order of the Court. Failure to obey the Court’s order subjects the recalcitrant party to the contempt powers. The Secretary will be ordered to schedule a hearing on plaintiff’s claim. If the Secretary fails to do so, the Court will schedule a hearing to show cause why she should not be held in contempt.

THEREFORE, IT IS ORDERED that within ten days of this order, the Secretary shall establish a date certain for a hearing on plaintiff’s claim for disability benefits, as delineated in the Court’s order of July 19, 1984. The hearing shall be within sixty days of this order.

IT IS FURTHER ORDERED that after the ten day period has expired, but no later than twenty days after the date of this order, the plaintiff shall inform the Court whether a hearing has been scheduled.


author: DeANDA, District Judge.

text:
    UNITED STATES of America v. James D. BARESH, William E. Satterwhite, Jr., Ben Snyder, Jesus Vasquez.
    Crim. No. H-83-191.
    United States District Court, S.D. Texas, Houston Division.
    Oct. 23, 1984.

      Gordon M.S. Young, Paul Coselli, Asst. U.S. Attys., S.D. Tex., Houston, Tex., for plaintiff.
    Michael Ramsey, William M. Thursland, William E. Satterwhite, Jr., Wendell Odom, Jr., Kent A. Schaffer, Houston, Tex., for defendants.
   MEMORANDUM OPINION AND ORDER

DeANDA, District Judge.

Claiming constitutional violations, including a denial of due process, Defendant William E. Satterwhite, Jr. has filed a motion for acquittal. The motion is predicated on his contention that a plea bargain agreement between the prosecution and the co-conspirator witness Cesar Quiroga so tainted Quiroga’s testimony as to result in the denial of a fair trial.

The Prelude

In February, 1982, Cesar Quiroga and several confederates were arrested by state officers while they were engaged in unloading several thousand pounds of marijuana from a vessel at or near Baytown, Texas. Faced with the inevitable prospect of a minimum penal term of 15 years and a massive fine, Quiroga and his attorney engaged in plea negotiations with the Harris County District Attorney’s Office and state drug enforcement officers.

The Quid Pro Quo

There followed preliminary discussions between the attorneys during which defense counsel apparently disclosed the nature of the information her client might provide. Assistant District Attorney (Mr. Ted Wilson) made known his desire to prosecute the Defendants Jorge Ubeda and Satterwhite, as well as his assessment that Quiroga’s assistance in making a case against Satterwhite would be sparse.

An agreement was made that Quiroga would cooperate with the state. By its written and oral terms, Quiroga was to provide evidence against these Defendants both as to past acts and contemplated future transactions.

Conditioned upon Quiroga’s truthful information and testimony being sufficient to bring about the arrest and indictment of these specific Defendants, among others, on aggravated controlled substance violations, either state or federal, the prosecution was committed to dismiss the pending state indictment and immunize Quiroga from any subsequently disclosed narcotics violations. Further, there would be no fines or forfeitures of any assets owned by Quiroga and obtained with narcotic profits; and he would not be required to testify against his cohorts in the pending state case. But the government’s generosity did not end here. According to Quiroga’s testimony, the prosecution reduced his bond and permitted him to use property owned by him (and now secure from seizure) as collateral on the bond. Thereafter, when it was necessary for Quiroga to refinance this property, the government further accommodated him by releasing the prior lien it held on the property.

In a subsequent agreement dated June 29, 1983, the same parties were joined by federal authorities. Its substance is the same as the earlier one except that the seven-year contingency for “doing” Ubeda (but not Satterwhite) was omitted.

It is clear that Quiroga’s plea bargain agreements were contingent upon the production of information and testimony about past and future criminal activities which would result in the indictment of both Satterwhite and Ubeda. If Quiroga told the truth, the whole truth and nothing but the truth but it did not result in indictments against these Defendants, the case pending against him in state court would not be dismissed and the collateral benefits he received would disappear as well. Finally, the agreement contemplated Quiroga’s testimony at trial as a condition to dismissal of the charges against him.

The Harvest Reaped

On November 28, 1983, Satterwhite was indicted by a federal grand jury on various charges of conspiracy and substantive offenses constituting violations of the controlled substances act relating to marijuana.

Quiroga testified before that grand jury and subsequently in this trial that he had met Satterwhite in May, 1980 in Houston. He claims that he and Satterwhite transported 11 Cubans recruited by Quiroga in Miami to offload marijuana and that he and Satterwhite transported the workers to the unloading site. Since Quiroga was not familiar with the location, Satterwhite drove the lead vehicle. He states that Satterwhite remained at the unloading site while the marijuana was transferred from boat to trucks. According to Quiroga, he and his crew received only .partial payment for that night’s work and an an effort to contact Ubeda for payment of the balance of the money due him, Quiroga contacted Satterwhite by phone and in person on several occasions over a period of several months. He stated that he made several trips to Houston by plane. On one occasion he was accompanied by five members of his underpaid crew. He named the motel at which he stayed during these visits. He rented cars and on more than one occasion talked to the secretarial staff at Satterwhite’s office. Finally, his efforts were rewarded when Satterwhite paid him $25,000 by a cashier’s check as partial payment on the amount owed.

On the record before this Court, there was never any mention by Quiroga of Satterwhite’s involvement in these events to any state or federal authority prior to his grand jury testimony in 1983.

The government has diligently and efficiently documented much of the testimony of other co-conspirators with motel invoices and registration cards, with documentary evidence of lease, purchase and rental transactions, with invoices, telephone records, bank records, and unimpeached witnesses. Yet Quiroga’s devastating testimony against Satterwhite stands alone. He denied knowing even the names of the men he had recruited in Florida and who accompanied him to Houston on more than one occasion. This testimony was patently false. It deprived Satterwhite of an opportunity to refute the charge. No one was called to testify from Satterwhite’s office to corroborate Quiroga’s testimony that he had been there; no explanation for this failure was made. No documentation was produced to corroborate the payment by cashier’s check. No car rental agreements were produced. No telephone records were offered. No motel records were shown. Having observed the astuteness and industry of government counsel in corroborating other co-conspirators’ testimony, the Court can only conclude that the documentation does not exist.

It is apparent from this record that the largess of the prosecution’s benevolence to Quiroga placed far more stress upon his veracity (though buttressed by the government’s requirement of truthfulness) than its gossamer frailness could withstand.

In the recent case of United States v. Waterman, 732 F.2d 1527 (8th Cir., 1984), a contingent agreement with the government’s key witness similar to the one at issue was held to violate due process. The substance of the agreement was that if the witness’s testimony led to indictments of certain individuals, the government would recommend a substantial reduction in the witness’s sentence, but if the testimony did not result in these indictments, no reduction would be recommended, irrespective of the truthfulness of the evidence. Subsequent to his conviction, predicated in part on this evidence, Waterman questioned the constitutionality of this arrangement on 5th and 6th Amendment grounds of denial of due process and entitlement to fair criminal proceedings. The precise issue before the Waterman Court was whether an agreement to procure testimony about accomplished facts, which places a premium on testimony adverse to a defendant, creates a risk of perjury so great that even the jury’s full knowledge of the agreement is insufficient to protect the fundamental fairness concepts inherent in the due process clause. The Court concluded that the government cannot offer favorable treatment to a prosecution witness contingent upon the success of the prosecution. Such an agreement is an invitation to perjury since the premium set by the government relates not to complete and truthful testimony but rather to result-oriented testimony. Id., at 1531-1532.

In Williamson v. United States, 311 F.2d 441 (5th Cir., 1962), cert. denied, 381 U.S. 950, 85 S.Ct. 1803, 14 L.Ed.2d 724 (1965), the Court reversed a conviction for possession of illicit liquor because the informer who made the government’s case had been promised a specified sum of money for successfully incriminating specific defendants. The Williamson Court, referring to the law of entrapment, stated that, absent some proper justification or explanation, the courts cannot sanction a contingent fee arrangement to produce evidence against particular named defendants as to crimes not yet committed. Id., at 444. The Court noted that such an arrangement might tend to cause a “frameup” and that the opportunities for abuse are too obvious to require elaboration. In his special concurrence to Williamson, Judge John Brown agreed with the result, but noted that the case was not so much an aspect of entrapment but rather presented questions regarding the fundamental rights of defendants in the means used to “make” the case. Id., at 445 (emphasis added). The progeny of Williamson make it clear that a contingent arrangement with an informer is improper when as here, “the specific defendant was picked out for the informer’s efforts by a government agent.” United States v. Lane, 693 F.2d 385, 387-388 and cases cited therein (5th Cir.1982).

Perhaps the most detailed discussion of the scope of Williamson lies in United States v. McClure, 577 F.2d 1021 (5th Cir. 1978). The McClure Court discussed the facts, holdings and concurring opinion in Williamson and determined the facts of McClure to be outside the ambit of Williamson. McClure reviewed subsequent decisions of the Supreme Court which have left open the possibility that there may be some cases “in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” This “possibility” reflects the concerns expressed by Judge Brown in Williamson. See McClure, supra, at page 1022 and cases cited therein.

Williamson has been confined to a narrow set of circumstances. Factors that militate against application of Williamson include the possibility that the informant has been instructed in the law of entrapment, that a government agent rather than the informant “made the buy,” and that the government agent did not know the identity of the suspect or defendant and therefore “did not target appellant as his prey.” McClure, at page 1022. Other possible factors which would preclude the application of Williamson to a case include possession by the government agents of “such certain knowledge” that a targeted defendant has engaged in illicit dealings as to justify a contingent agreement {Williamson, at 444), or the attendance at or witnessing of transactions involving the targeted defendant so as to foreclose the possibility of fabrication on the part of the informant. McClure, supra; see also, United States v. Jenkins, 480 F.2d 1198 (5th Cir.), cert. denied, 415 U.S. 913, 94 S.Ct. 256, 38 L.Ed.2d 151 (1973).

The Court cannot find, on the evidence before it, that any of the above factors are present in this case. On the contrary, at the time the agreement was made with Quiroga, it is clear from the transcript of the debriefing that state agents and prosecutors were quite uncertain whether they or Quiroga could “do” Satterwhite. Further, no agents or other government witnesses or evidence corroborates Quiroga’s testimony regarding the essence of the allegations leveled against Satterwhite. The totality of the circumstances indicate that Quiroga was indeed sent out on a mission to specifically “get” Satterwhite, propelled by the substantial emoluments offered by the state prosecutors.

The government seeks comfort in United States v. Kimble, 719 F.2d 1253 (5th Cir. 1983), cert. denied, — U.S.-, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984). The Defendants in that case were convicted largely on the testimony of a key witness who earlier entered a guilty plea, agreeing to cooperate with federal authorities and testify before grand and petit juries. He was to receive a lenient sentence conditioned on the acceptance of the adequacy of his cooperation. The convicted Defendants contended on appeal that the testimony should have been excluded due to the nature of the plea agreement. Kimble is not controlling here. In that case there was no mention of any specific Defendant being targeted by the government. Williamson and the issues presented therein were not even addressed by the Kimble Court. It is simply not applicable.

When the facts of this case are viewed in light of the above discussion, the Court is convinced that the admission of Quiroga’s testimony violates due process. However unwittingly done, the Assistant District Attorney and state agents, totally consumed with the obsession to “get” Satterwhite, created a situation which was indeed an invitation to Quiroga to commit perjury. The state’s attorney made it abundantly clear to Quiroga that knowing the truth would not make Quiroga free. Quiroga must learn more “truth,” he must seek truth sufficient to obtain an indictment against Satterwhite. Further, while he did not obtain one shred of additional evidence nor testify about a single incriminating fact occurring after his plea bargain, it develops that Quiroga was somehow loaded with information and knowledge that would indict and convict Satterwhite with ease.

The government expresses concern that exclusion of this testimony imperils its right to obtain evidence from informants and co-conspirators under prearranged plea agreements. This is not so. This type of evidence has proven consistently dependable and often times essential to apprehend and convict violators of our laws. It is exceptionally valuable in combating the narcotics problem that plagues us. Contingent agreements similar to the one in issue are proper under compelling justifications and circumstances (as defined by Williamson’s progeny) which are absent here.

Accordingly, the Court holds the testimony of Cesar Quiroga inadmissible and excludes such evidence from the record. Appropriate instructions will be given the jury concerning this evidence.

However, in light of the evidentiary record in this case, absent the testimony of Quiroga, the Court DENIES the motion of the Defendant Satterwhite for acquittal. For reasons stated elsewhere, the Court does GRANT said Defendant’s motion for a mistrial. The Court having heretofore overruled the motions of the remaining Defendants for dismissal and, alternatively, for mistrial, this case shall proceed as to the Defendants Snyder, Vasquez and Baresh.

      . Wilson: "The best I can understand from talking to Ms. Akins is that it appears that you are fairly comfortable that you can do Jorge Ubeda, that you can give the information that's going to wrap up Jorge Ubeda ... however, Bill Satterwhite, you may or you may not be able to do him.”

      . Exhibit D(B)5, the written agreement dated May 28, 1982; and Wilson’s oral statement (tape transcript). In substance Wilson told Quiroga that he, Wilson, had already cleared the offer with the district attorney and that “if you are able to provide information and the assistance that results in the arrest and indictment of Jorge Ubeda and Bill Satterwhite ... if we get an arrest and indictment of Ubeda and Bill Satterwhite, for any aggravated controlled substance offense, I don't care if it’s cocaine or marijuana, then Mr. Holmes has authorized me to dismiss your case. Like you never got in any trouble.” Mr. Wilson further stated, "If your assistance and if the information that you give these officers results in the arrest and indictment of Jorge Ubeda, and the seizure of a large shipment of marijuana coming in on a boat, but you can’t do Bill Satterwhite, I don't care how hard you work at it, and everything, but for one reason or another we cannot arrest or indict him for anything, then what I have told Ms. Akins and what I’m telling you is that you are starting at 15 years in the pen (and the things that you are charged with, if you are found guilty, then the least you can get is 15 years in the penitentiary, the most you can get is 99 or life). I will plead you for seven years which is half of what the minimum would be... ”
      After making it clear that the agreement applied either to a state or federal case, Mr. Wilson continued “federal laws are a little bit different than state laws. In federal laws some times you can indict some one without having all of the evidence that you might need in a state case but I’m not an expert on federal law, I’m not a federal prosecutor ... frankly I prefer to indict him in state court, Satterwhite, no question about that. But if I can’t, and if you have got the information and taking what you have done for these guys coupled with some things you know, there is enough there to where they can indict him in federal.”
      When Quiroga’s lawyer voiced concern that her client’s property might be seized under drug forfeiture laws Wilson assuaged Quiroga’s fears by stating "if he owns a hotel on Miami Beach that he got by dealing drugs, we are not going to forfeit the hotel.”

      . Exhibit D(B)6.

      . Again quoting Mr. Wilson: "... then after you testify or even once they are arrested and indicted you are going to be alright. You don’t need to worry about your case any more. But. you are going to have to testify, and I can tell you right now what I would do with your case. I wouldn’t dismiss your case until you finished testifying. It is my guarantee that you are going to show up in court and be the witness in this thing.”
      Making reference to that part of the plan dealing with future narcotics deals and the possibility of catching the targets “red handed with the dope" Wilson continues, "but if it doesn’t work that way we may need you to testify before a grand jury and we may need you to testify before a trial court. That will be in the agreement. It will be part of your requirements, that you will have to do those things before I will do what I say I am going to do, which is dismiss your case.”


author: WEBER, District Judge.

text:
    Nancy J. STEVENSON v. Margaret M. HECKLER, Secretary of Health and Human Services.
    Civ. A. No. 84-81 ERIE.
    United States District Court, W.D. Pennsylvania.
    Oct. 23, 1984.

      James Bukac, Northwestern Legal Services, Franklin, Pa., for plaintiff.
    Donald E. Lewis, Asst. U.S. Atty., Erie, Pa., for defendant.
   OPINION

WEBER, District Judge.

This matter is before us on cross-motions for summary judgment. The Secretary has denied plaintiff’s application for disability insurance benefits, and she now appeals the denial pursuant to 42 U.S.C. § 405(g).

Ms. Stevenson is 27 years old. She has received a General Equivalency Diploma, and recently attended Clarion University through a plan established by the Bureau of Vocational Rehabilitation. She was employed most recently as an aide at the Polk Center, an institution for retarded persons. Injury or illness interrupted her tenure there four times. She has worked there since her disability hearing in a specially created part-time position. She complains, however, that poor health causes her frequently to take days off from this activity even though her responsibilities have been significantly reduced.

The medical evidence of record begins when Ms. Stevenson was treated for an elbow injury in November 1980. In April 1981, her car struck a tree. She suffered a concussion, a fractured scapula, and various cuts and bruises. She then was hospitalized in June 1981 for an injury to her spinal column that eventually required surgical fusion of two vertebrae. She also received treatment for her knee and ankle. She later underwent surgery on her knee in August 1981, and on her ankle in October 1982, In April and September 1983, she was treated for numbness in her extremities, neck pain, dizziness, and headaches, and she continues to complain of these symptoms.

Dr. R. Loring, a psychiatrist, evaluated plaintiff’s mental condition in February 1983, and began treating her for major depressive illness. Dr. J.B. Johnston, a clinical psychologist, reported in October 1983 that plaintiff’s psychiatric impairment was moderate or moderately severe in six of eight categories which describe psychological competency for common job-related tasks. (Record at 222-23). Ms. Stevenson claims to have lost some of her memory and dislikes being around groups of people.

Plaintiff first filed for disability insurance benefits in December 1980. She subsequently withdrew her application two months later, expecting to return to regular employment. Her illness persisted, however, so she renewed her application in January 1983. The Secretary denied her application initially and after reconsideration. Ms. Stevenson then requested a hearing and appeared before an Administrative Law Judge (AU). A witness and a vocational expert also testified. The AU determined that plaintiff was not disabled within the meaning of the regulations. The Appeals Council denied her request for review, resulting in this action.

Congress has limited the scope of our review of the Secretary’s decisions on disability. We must affirm the findings of the Secretary if they are supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir.1979). In applying this standard, we examine the entire record to ensure that the AU considered all probative evidence.

The ALJ followed the five step sequence outlined at 20 C.F.R. § 404.1520 (1983) in determining that plaintiff was not disabled. He found that she was not capable of returning to her former job as an aide at the Polk Center. He also found, however, that Ms. Stevenson had the physical and psychological ability to perform sedentary work.

The ALJ undoubtedly relied on the vocational expert’s testimony in rendering a decision. For example, the expert testified about the type of sedentary jobs available in significant number in the local economy. The AU repeated these job descriptions, inventory clerk and file clerk, in his findings as the type of job he believed plaintiff could perform.

When the expert offered his opinion, however, the AU had asked him to make certain assumptions about the degree of plaintiff’s physical and psychological impairments. When he suggested that Ms. Stevenson could work as an inventory clerk or file clerk, for example, the expert was asked to assume “that the claimant, with respect to her external limitations has the residual functional capacity to perform light work, [and] that she has non-exertional or psychiatric limitations of a mild degree.” (Record at 59). The expert’s answer remained unchanged when the AU asked him whether plaintiff would work at such clerical jobs if she were capable of performing only sedentary, rather than light, work. When the AU asked the expert to assume that Ms. Stevenson had moderate, rather than mild, psychiatric limitations, however, the expert changed his answer and responded that there would be no work available to plaintiff if she fit that diagnosis. (Record at 60-63).

Plaintiffs ability to perform substantial gainful activity thus would appear to hinge on whether she had mild (or less than mild) non-exertional limitations. The ALJ found tht she had no non-exertional limitations. (Record at 15). The record contains a supplemental questionnaire dated October 27, 1983, however, in which Dr. J.B. Johnston evaluated Ms. Stevenson’s “current psychiatric impairment”. In six of eight categories of behavior occurring in a routine work setting, Dr. Johnston diagnosed her impairment as “moderate” or “moderately severe”. (Record at 222-23). Despite this report issued just two weeks before the hearing, the AU failed to consider that plaintiff suffered from certain non-exertional limitations. Such psychiatric diagnosis should have been given special attention considering that the expert gave them decisive weight in determining whether plaintiff was able to work. We therefore find that the ALJ’s decision is not supported by substantial evidence.

Plaintiff returned to a specially-created part-time position on November 23, 1983 following her hearing. This intermittent work activity should be considered a trial work period pursuant to 42 U.S.C. § 422(c) and 20 C.F.R. § 404.1592 (1984). A person who is disabled may be allowed a trial work period after five months. 42 U.S.C. § 423(a) and (c)(2); Martell v. Heckler, 568 F.Supp. 729, 731, n. 2 (E.D.Pa. 1983). Since we have determined that the Secretary erred in denying plaintiffs claim filed in January 1983, she satisfies the eligibility requirements. A claimant need not actually be receiving disability benefits at the time she engages in trial work. McMillen v. Califano, 443 F.Supp. 1362, 1363 (N.D.N.Y.1978).

According to the provisions for a trial work period, a claimant may hold employment as part of a rehabilitative effort while still being considered disabled. The trial period lasts for nine months, though the months need not be consecutive. The claimant’s disability is reconsidered at the end of the trial period. The court recognizes that such activity can greatly assist persons seeking to recover from physical and psychological impairments. We believe that ordering the trial work period is appropriate in light of both the AU’s failure to consider all the evidence and plaintiff’s return to a specially created part-time position at the Polk Center since her hearing.


author: CHARLES R. RICHEY, District Judge.

text:
    Frances E. KING, Plaintiff, v. Elizabeth H. DOLE, et al., Defendants.
    Civ. A. No. 83-2828.
    United States District Court, District of Columbia.
    Oct. 23, 1984.

      David H. Shapiro, Kator, Scott & Heller, Washington, D.C., for plaintiff.
    John H.E. Bayly, Jr., Asst. U.S. Atty., Washington, D.C., for defendant. Joseph E. diGenova, U.S. Atty., Royce C. Lam-berth, Asst. U.S. Atty., and Timothy B. Shea, of counsel, Maritime Administration, Washington, D.C., on brief for defendant.
   CHARLES R. RICHEY, District Judge.

INTRODUCTION

Before the Court is the defendants’ Motion to Dismiss, opposition thereto presented by the court-appointed counsel for the plaintiff, and supplemental memoranda. For the reasons stated below, the Court has today issued an Order granting the defendants’ Motion to Dismiss.

FACTS

The defendant has moved to dismiss the complaint for lack of subject matter jurisdiction. The defendant contends that the complaint in this action was untimely filed under the governing statute, 5 U.S.C. § 7703(b)(2), and the applicable regulations, 5 C.F.R. § 1201.173. The Court agrees.

The jurisdictional facts are not in dispute. On September 4, 1981, the plaintiff was removed from her GS-6 secretary position at the Maritime. Administration in the Department of Transportation. Plaintiff appealed her termination to the Merit Systems Protection Board (“MSPB”). In this appeal the plaintiff alleged that the decision was arbitrary and capricious, that it was a form of prohibited discrimination on the basis of race, sex, and age, and that it was a prohibited form of reprisal against the plaintiff. On August 2, 1982, the MSPB presiding officer sustained the decision to remove the plaintiff. The plaintiff sought judicial review of this decision in the United States Court of Appeals for the District of Columbia Circuit.

In an unpublished opinion, the Court of Appeals determined that the presiding officer’s decision contained erroneous instructions regarding how the plaintiff could obtain judicial review of that decision. The Court “remanded [the case] to the Board so that it may enter a fresh order on the basis of which Ms. King may bring a timely action in the District Court.” King v. Merit Systems Protection Board, App. No. 82-2171 (D.C.Cir. May 19, 1983).

On July 19, 1983, the MSPB presiding officer reissued the earlier decision with an amended notice detailing how the plaintiff could obtain judicial review. Although issued on July 19, 1983, the amended notice stated that “[i]t will become a final decision of the Merit Systems Protection Board on August 23, 1983”, unless a petition for review shall have been filed with the MSPB. Because the sole purpose of the remand was to instruct the plaintiff as to the proper method of obtaining judicial review, the amended notice was very clear in those instructions:

If [plaintiff] wishes to pursue a claim of discrimination in court, the action must be filed in the district court, claiming discrimination, no later than 30 days after the date shown above [August 23, 1983], upon which this initial decision becomes final, or, if petitions for agency review have been filed, no later than 30 days after a final administrative decision.

These instructions were consistent with the governing statute and regulations. Under 5 U.S.C. § 7703(b)(2), complaints for judicial review of MSPB cases involving discrimination “must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702.” (Section 7702 concerns MSPB review of actions involving discrimination.) The relevant MSPB regulations contain similar provisions. Under 5 C.F.R. § 1201.173:

Notwithstanding any other provision of law, all cases decided under 5 U.S.C. 7702 must be filed within 30 days after the individual received notice of the judicially reviewable action.

In the present case, because the final decision date was designated to be August 24, 1983, more than a month after the actual decision on remand, the plaintiff had to file her complaint in this Court by September 22, 1983. In fact, the plaintiff filed her complaint on September 23, 1983, one day late. The defendants contend that this untimely filing deprives the Court of jurisdiction.

The plaintiff admits that this filing is one day late. Despite her late filing, more than sixty days after the MSPB decision, and more than thirty days from the date the decision was to become a final decision, the plaintiff claims that the statutory time limit should be tolled, and her complaint should be considered timely.

THE TIME LIMITS IN THE PRESENT CASE CANNOT BE TOLLED

The plaintiffs amended complaint presents two attacks on her discharge from employment. She claims that the termination was arbitrary and capricious under the Civil Service Law, 5 U.S.C. § 7702, and that it was an act of discrimination based on race, sex, age, and reprisal in violation of Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e-16 et seq., and the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 633a.

This case is brought under 5 U.S.C. § 7703(b)(2), noted above, which provides for judicial review of MSPB decisions concerning charges of discrimination. That section provides as follows:

Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702.

5 U.S.C. § 7703(b)(2).

Judicial interpretations of this section’s thirty day time limit are sparse. However, the nearly identical thirty day time limit of subsection (b)(1), which concerns judicial review of MSPB decisions not involving discrimination, has been interpreted by several courts. The Court considers those interpretations instructive in the present case because the language of the two subsections is very similar. Subsection (b)(1) provides as follows:

Except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review must be filed within 30 days after the date the petitioner received notice of the final order or decision of the Board.

5 U.S.C. § 7703(b)(1).

Interpreting subsection (b)(1), the Court of Appeals for this Circuit has stated that “[generally, statutory time limits for filing petitions for judicial review are not subject to enlargement.” Brown v. National Highway Traffic Safety Administration, 673 F.2d 544, 545 (D.C.Cir.1982). Brown went on to hold “that when a federal employee seeks judicial review of a decision of the Merit Systems Protection Board under 5 U.S.C. § 7703(b)(1), he or she has thirty days from the date of personal receipt of notice to do so.” Id. at 546.

In Miller v. United States Postal Service, 685 F.2d 148 (5th Cir.1982), cert. denied 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983), the petitioner claimed that he mailed his petition before the end of the thirty day period. The Court held that such a mailing would not suffice under subsection (b)(1) — to be reviewable, the petition had to be received within the thirty day period of the statute. Id. at 149. Because the petition was received three days late, it was dismissed as untimely.

The Court of Appeals for this Circuit very recently reiterated that the thirty day period of the statute is jurisdictional, and not subject to enlargement:

“Notwithstanding any other provision of law,” section 7703(b)(1) declares, such petitions “must be filed within 30 days after the date the petitioner received notice of the final order or decision” of the arbitrator. This requirement is jurisdictional, Miller v. United States Postal Service, 685 F.2d 148, 149 (5th Cir.1982); Parton v. MSPB, 684 F.2d 530, 533 (8th Cir.1982) (per curiam); Boehm v. Foster, 670 F.2d 111, 113 (9th Cir.1982) (per curiam), and the statutorily specified filing period is not subject to enlargement, Brown v. National Highway Traffic Safety Administration, 673 F.2d 544, 545 (D.C.Cir.1982) (per curiam); see Fed.R.App.P. 26(b).

Devine v. White, 697 F.2d 421, 429 (D.C. Cir.1983).

The plaintiff asserts that, because this case involves claims based on discrimination in violation of the Civil Rights Acts, rather than an appeal of a straight personnel decision by the MSPB, the statutory limitations periods should be subject to equitable tolling. The plaintiff relies on Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). Zipes held that the statutory requirement that a timely charge of employment discrimination be filed with the Equal Employment Opportunity Commission in order for a Title VII suit to be maintained in a district court was not a jurisdictional prerequisite. Rather, that statutory time period was subject to the principles of waiver, estoppel, and equitable tolling. 455 U.S. at 393, 102 S.Ct. at 1132.

Zipes did not consider the statutory sections presently before the Court. Zipes permitted tolling of the initial administrative filing for employees, but it did not address court filing requirements. The rationale for the Zipes decision was that strict compliance was inappropriately required where “ ‘laymen, unassisted by trained lawyers, initiate the process.’ ” 455 U.S. at 397, 102 S.Ct. at 1134 (quoting Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972)). The statute at issue here, 5 U.S.C. § 7703, is not intended to be the layman’s first, unassisted encounter with the administrative procedure. Indeed, Zipes does not apply to the comparable provisions of Title VII. The most relevant provision of Title VII is § 717(c), 42 U.S.C. § 2000e-16, which section is specifically incorporated in § 7703(b)(2). Section 717(c) establishes a thirty day filing limitation after a party receives notice of final action taken by the Equal Employment Opportunity Commission. As shown below, that section of Title VII is jurisdictional.

In Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the district court dismissed the complaint because the plaintiff did not file within thirty days as required by § 717(c), 42 U.S.C. § 2000e-16. The Supreme Court upheld the dismissal. 425 U.S. at 835, 96 S.Ct. at 1969. Although Brown v. GSA did not specifically address the possibility of equitable tolling, this Circuit has clearly held that the thirty day limitation is jurisdictional. Hofer v. Campbell, 581 F.2d 975, 977 (D.C.Cir.1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979); Richardson v. Wiley, 569 F.2d 140, 142 (D.C.Cir.1977). Even after Zipes, this provision has been held to be jurisdictional. Miller v. Smith, 584 F.Supp. 149, 153 (D.D.C.1984). Thus it is clear that the court filing requirements, as distinguished from the time limitations for initiating an action before an administrative agency, are jurisdictional and not subject to enlargement. Because § 7703(b)(2) specifically incorporates § 717(c) of the Civil Rights Act of 1964, these holdings apply with equal force to actions seeking review of MSPB decisions under § 7703(b)(2).

Similarly, the language of the statute itself compels the conclusion that the time limit is not subject to tolling. See 5 U.S.C. § 7703(b)(2). That section first states that any discrimination case seeking review of a MSPB decision shall be brought under Title VII, the Age Discrimination in Employment Act, or the Fair Labor Standards Act. The section then clearly states that “[notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days____” Plainly the equitable tolling principles of Zipes do not apply to actions brought under this section. And, as hereinbefore stated, the pertinent regulations contain the same mandatory language. 5 C.F.R. § 1201.173.

The Court concludes, therefore, that the thirty day time limit of 5 U.S.C. § 7703(b)(2), like the thirty day limits of § 7703(b)(1) and 42 U.S.C. § 2000e-16, is jurisdictional, and not subject to enlargement. E.g. Brown v. NHTSA, supra; Miller, supra. The equitable tolling principles of Title VII, which might apply to a layman’s initiation of the formal complaint process, are inapposite.

EVEN IF THE STATUTE IS NOT JURISDICTIONAL, TOLLING IS NOT WARRANTED IN THIS CASE

Even if the principles of waiver, estoppel, and equitable tolling apply to judicial review, under § 7703(b)(2), of MSPB decisions, the facts of this case hardly compel the court to exercise its discretion in favor of the plaintiff. The plaintiff received the MSPB’s decision, after the remand, on July 25, 1983. Although the statute states that the petitioner has 30 days from the receipt of the notice to file in court, the MSPB letter explicitly informed the plaintiff that she had thirty days from August 23, 1983 in which to file her complaint. Thus, plaintiff was advised on July 25 that she had a total of fifty-nine days, not just the statutory thirty days, in which to file her complaint. Under such circumstances, it is clear that the MSPB was being extremely lenient, because of the Court of Appeals’ remand, to explain to the plaintiff her avenue for judicial relief. The plaintiff cannot be heard to complain about an application of the timeliness provisions of the statute under such circumstances of lenity. Particularly in this case, where the Court of Appeals specifically remanded to have the MSPB correctly inform the plaintiff of her opportunity for judicial review of its decision, and where the MSPB clearly explained the plaintiff’s course of action, the plaintiff has no reasonable excuse for her untimely filing.

CONCLUSION

The case law is clear that the time limits of 5 U.S.C. § 7703(b) are jurisdictional, and not subject to enlargement. The rationale of the Supreme Court’s decision in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), does not compel a different result. Zipes speaks, to plaintiffs who do not know where to turn in the first instance to seek relief from discrimination. Zipes does not concern plaintiffs, such as the plaintiff herein, who have already taken their grievances to the Court of Appeals, and who have specific instructions on where and when to file suit to redress an adverse administrative decision. Moreover, even if the equitable tolling of Zipes applies to plaintiffs who proceed under 5 U.S.C. § 7703(b)(2), this case is not one in which the statutory time limits should be tolled. The MSPB generously granted the plaintiff nearly double the time in which to file a suit to review its decision, but the plaintiff missed even that deadline. That the plaintiff only missed it by one day does not, on the facts of this ease, compel any different conclusion. Accordingly, the Court has issued an Order, of even date herewith, granting the defendants’ Motion to Dismiss.

      . Indeed, under different circumstances, the Court of Appeals for this Circuit, while interpreting subsection (b)(1), specifically equated the nearly identical notice provisions of subsections (b)(1) and (b)(2). Brown v. Nat'l Highway Traffic Safety Admin., 673 F.2d 544, 546 (D.C. Cir.1982). The Court noted that it was not faced with a civil rights case, which would be appealed under section (b)(2), but stated that, because of the similar language, the two sections should probably be subject to the same interpretation. "It is a settled principle of statutory construction that '[w]hen the same word or phrase is used in the same section of an act more than once, and the meaning is clear as used in one place, it will be construed to have the same meaning in the next place.’ ” Brown, 673 F.2d at 546, n. 5 (citations omitted). The same reasoning applies to the thirty day time limits of the two subsections. Because they track very similar language, they should be subject to the same interpretation.

      . Section 7703(b)(2) provides that cases such as this “shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-16(c)).” 5 U.S.C. § 7703(b)(2). Indeed, the plaintiff herein proceeds under that section. Complaint ¶ 2.