author: STUART, District Judge.

text:
    William Miles ANTHONY, an individual, William Miles Anthony Administrator of the Estate of Rena K. Anthony, and Jason Wendall Anthony and Jenesa Erin Anthony, Minors, by William Miles Anthony their Father and Next Friend, Plaintiffs, v. UNITED STATES of America, Defendant.
    Civ. No. 83-665-A.
    United States District Court, S.D. Iowa, C.D.
    May 17, 1985.

      Arvid D. Oliver, Des Moines, Iowa, for plaintiffs.
    Richard C. Turner, U.S. Dist. Atty., Robert C. Dopf, Asst. U.S. Atty., Des Moines, Iowa, for defendant.
   RULING AND ORDER

STUART, District Judge.

Defendant, the United States of America, filed a motion for summary judgment on January 25, 1985. Plaintiff resisted the motion on February 13, 1985. The parties presented their oral arguments on defendant’s motion for summary judgment on April 8, 1985. Appearances are noted in the clerk’s minutes for that date. The Court finds the motion fully submitted and ready for ruling.

The parties are agreed as to the material facts. John McConnell was admitted as a voluntary patient to the Veterans Administration Medical Center in Knoxville, Iowa several times between 1980 and March 1982 for treatment of alcoholism. While at the Medical Center, McConnell was diagnosed as having Korsokoff’s Syndrome secondary to alcoholism. During his admissions to the Medical Center, McConnell developed a habit of leaving the center when he received his pension check, spending the proceeds of his check on an alcoholic binge, and returning to the center when his funds were exhausted. Although he had lost his driver’s license years before, McConnell often drove a car while on his drunken binges.

The officials at the Medical Center knew that McConnell had this inclination. Medical records disclose that certain officials at the Medical Center felt that McConnell was dangerous to himself and others because of his habit of driving while intoxicated. The officials attempted to keep McConnell from driving by confiscating his car keys. McConnell overcame this by having his car towed and the car locks changed. Subsequently, McConnell’s car was locked in a fenced enclosure and its distributor wires were removed.

In January 1982, certain officials at the Medical Center decided to attempt to have McConnell involuntarily admitted so as to make him incompetent to handle his funds and bar him from leaving for his drunken binges. A commitment hearing was held on February 8, 1982. Objection was made to the notice provided McConnell. The presiding judge sustained the objection, ordered that process issue properly, and continued the commitment hearing until February 16, 1982. After reviewing its grounds for seeking involuntary commitment, the Veterans Administration determined that it could not prove sufficient grounds for McConnell’s involuntary commitment. Thus, the V.A. abandoned the commitment proceeding.

On March 1, 1982, McConnell was still a voluntarily admitted patient at the Medical Center. McConnell was granted privileges to leave the Medical Center grounds on that date. At approximately 5:15 p.m. on that date, a car driven by McConnell crossed the center line on Iowa Highway 5 in Warren County, Iowa, and collided with plaintiff’s car, causing plaintiff serious injuries and the death of plaintiff’s wife.

Plaintiff sued defendant for recovery of damages on behalf of himself, his children, and his deceased wife’s estate, alleging that defendant negligently failed to control the conduct of McConnell so as to keep McConnell from causing the March 1 accident. Plaintiff’s claims are made under 28 U.S.C. 1346(b), which provides for jurisdiction if plaintiff’s claims allege facts that would make defendant, if it were a private entity, liable to plaintiff under the applicable state law. The law of the State of Iowa applies here.

Defendant contends that Iowa law does not create a duty in hospitals to confine or control known chronic alcoholics who are known to drive while intoxicated, and that, if such a duty were deemed to exist, it would extend only to readily identifiable persons.

Plaintiff bases his theory for recovery on Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976) (en banc). In Tarasoff, Tatiana Tarasoff was killed by a young man who had told a university psychologist that he intended to kill Tatiana two months before the killing. The psychologist reported the threat to the campus police, who briefly detained the patient. However, the patient was released when he appeared to be rational and he promised to stay away from Tatiana. The psychologist’s superior then directed him not to take any further action to confine the patient. No one warned the victim or her parents. Under these facts, the Tarasoff court stated:

[Defendant therapists cannot escape liability merely because Tatiana herself was not their patient. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances.

Id. 551 P.2d at 340. The Tarasoff Court relied on Restatement (Second) of Torts § 315 in holding that the relationship between a patient and his doctor or psychotherapist “may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons.” Id. at 343.

The California Supreme Court limited the scope of Tarasoff in Thompson v. County of Alameda, 614 P.2d 728 (1980) (en banc). In Thompson, a juvenile offender indicated that, if released, he would take the life of an unspecified young child in the neighborhood. Shortly after being released by defendant, the juvenile killed a young boy. The Thompson Court ruled that defendant did not owe a duty to warn the neighborhood parents. The Court distinguished Tarasoff on the ground that the decedent therein “was the known and specifically foreseeable and identifiable victim of the patient’s threats.” Id. at 734. Accordingly, the Court determined that “the duty to warn depends upon and arises from the existence of a prior threat to a specific identifiable victim.” Id. at 738.

Plaintiff acknowledges that the Iowa Supreme Court has not adopted the rule of Tarasoff and its progeny, In re Estate of Votteler, 327 N.W.2d 759, 760 (Iowa 1982), and that he asks for an extension of that rule to the facts herein. In support of his contention that the Tarasoff rule should be extended to establish a basis for liability, plaintiff cites Freese v. Lemmon, 210 N.W.2d 576 (Iowa 1973).

In Freese, a patient who had previously suffered a seizure consulted a doctor for diagnosis. The doctor misdiagnosed the cause of the seizure and advised the plaintiff that he could drive an automobile. Subsequently the patient suffered another seizure while driving and struck plaintiff with his car causing plaintiff serious injuries. The plaintiff sued the doctor alleging that he was negligent in failing to properly diagnose the cause of the patient’s first seizure and in advising the patient that he could drive.

The plurality opinion in Freese was based on Restatement (Second) of Torts § 311(l)(b), which conditions liability on a person negligently giving false information to another person that results in physical harm caused by action taken in reasonable reliance on the information, where such harm results to third persons who are reasonably foreseeable to the speaker. The Freese plurality accepted, in the context of a motion to dismiss, that it must accept as true that the doctor had negligently advised the patient that he could drive, and that in the exercise of due care the doctor should have expected that members of the public, such as plaintiff, would be put in peril by the misdiagnosis and advice. Accordingly, the plurality determined that plaintiffs complaint could not be dismissed for failure to state a claim.

The Court finds that Freese is distinguishable from this case for two reasons. In Freese, the doctor affirmatively acted in providing the patient information that caused him to drive, causing the accident. Here, the Medical Center officials did everything short of forcibly confining McConnell to keep him from driving an automobile. More importantly, the result in Freese is to provide more incentive to doctors (and others providing information) to take care to provide accurate information based on an appropriate analysis. As explained more fully below, the “duty to control” proposed by plaintiff would require all health care providers caring for alcoholics to confine all alcoholics voluntarily seeking treatment and known to have the urge to drive while intoxicated. The Court finds that Freese does not offer support for such an expansive (and probably unconstitutional) duty.

The duty that plaintiff seeks to have the Court enforce would have a far-reaching affect on all health care providers. The Court can see no principled limit to the proposed “duty to control.” Without commitment of the chronic alcoholic with the known tendencies to drive while intoxicated, the health care provider would be ultimately responsible for the conduct of such patients. Thus, the duty to control would give incentive to all health care providers caring for alcoholics to either refuse to treat voluntary patients or to seek involuntary commitment as a means to limit liability. At the same time, alcoholics would be more opposed to seeking treatment for their condition if they knew they faced confinement as a condition of treatment. Public policy is directed toward treatment for alcoholism and encourages, rather than discourages, voluntary participation. The Court will not create such a far-reaching duty to control without a clear indication that Iowa law provides for it.

The majority of courts that have addressed the issue at bar have determined that Tar as off- type liability should not extend to create a duty to protect unspecified, unidentified persons. Brady v. Hopper, 570 F.Supp. 1333, 1339 (D.Colo.1983); Leedy v. Harnett, 510 F.Supp. 1125, 1130-31 (M.D.Pa.1981); Thompson, supra, at 738. The “threats to specific victims” rule is based on a duty to warn and limits what would otherwise be unlimited and strict liability for health care providers who care for and counsel known dangerous persons. Brady, supra, at 1139; Leedy, supra, at 1130. The Court finds the rationale of those courts persuasive.

Finally, the Court rejects plaintiffs proposed duty to control. Plaintiffs specification of negligence is bottomed on defendant’s failure to confine McConnell. Defendant had no duty or authority to confine McConnell against his will without a valid civil commitment order.

IT IS THEREFORE ORDERED that defendant’s motion for summary judgment shall be and hereby is granted.


source: Caselaw Access Project

author: SAMUEL P. KING, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Charles HOLLINSHEAD, Defendant. UNITED STATES of America, Plaintiff, v. Gaspar DINOSO, Defendant. UNITED STATES of America, Plaintiff, v. Boyce McBRIDE, Defendant. UNITED STATES of America, Plaintiff, v. Henry ROSSI, Defendant.
    Cr. Nos. 84-03477, 84-02758, 85-00329 and 85-00482.
    United States District Court, D. Hawaii.
    May 20, 1985.
    Richard A. Jaynes, Sp. Asst. U.S. Atty., Daniel A. Bent, U.S. Atty., Honolulu, Hawaii, for plaintiff.
    Hayden Aluli, Asst. Federal Public Defender, Michael R. Levine, Federal Public Defender, Honolulu, Hawaii, for defendants.
   ORDER AFFIRMING MAGISTRATE

SAMUEL P. KING, District Judge.

All defendants were arrested on Army installations and charged with driving under the influence of intoxicating liquor (Hawaii Rev.Stat. § 291-4) and refusal to submit to a chemical test to determine blood alcohol content (Hawaii Rev.Stat. § 286-155).

The Government sought convictions for failure to submit to the blood alcohol test under the Assimilative Crime Act (ACA). 18 U.S.C. § 13. The ACA subjects persons on federal lands to federal prosecution in federal court for violations of criminal statutes of the state in which the federal lands are located. United States v. Kiliz, 694 F.2d 628 (9th Cir.1982). The ACA transforms a crime against the state into a crime against the federal government. United States v. Press Publishing Co., 219 U.S. 1, 31 S.Ct. 212, 55 L.Ed. 65 (1911). The ACA incorporates into federal law only the criminal law of the jurisdiction within which the enclave exists. United States v. Best, 573 F.2d 1095, 1098 (9th Cir.1978). Non-penal rules, regulations and sanctions are necessarily excluded. United States v. Rowe, 599 F.2d 1319 (4th Cir.1979).

The question raised on this appeal is whether Hawaii’s implied consent law is a civil or criminal statute.

In Best, the Ninth Circuit held that a California statute under which the Department of Motor Vehicles was to revoke the driver’s license after a conviction for drunk driving was not assimilated under the ACA. The court held that in determining whether a statute is civil or criminal, Congress’ purpose:

can best be achieved by application of state interpretations of what constitutes “punishment” since this accomplishes the Act’s objective of providing criminal law for federal enclaves while at the same time effectuating the policy of conforming to local law.

Id. at 1094.

In United States v. Rowe, 599 F.2d 1319 (4th Cir.1979), the Fourth Circuit reversed the district court’s conviction of a defendant under Virginia’s implied consent law and the ACA. The court held that the Virginia Supreme Court’s determination that Virginia’s implied consent statute was civil and not criminal was binding upon the federal court. The court cited Best in reaching that result.

However, it is clear that federal courts are not bound by state court decisions which determine that a statute is criminal. United States v. Mareyes, 557 F.2d 1361, 1364 (9th Cir.1977); Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 389 n. 8, 64 S.Ct. 622, 625 n. 8, 88 L.Ed. 814 (1944). Unless the federal court independently determines whether statutes are criminal “a state could ... force its regulatory systems on the federal jurisdiction by making criminal any failure to comply with those regulations.” Mareyes, 557 F.2d at 1364.

This rationale does not apply when a state court decides that a statute is civil rather than criminal. Indeed, for a federal court to assimilate a statute after a state court had found it to be civil would be to encroach on state regulatory systems. See, Best, 573 F.2d at 1102.

The Government argues that the Hawaii statutes invite the federal government to enter this area. Hawaii Rev.Stat. § 286-122. This section merely provides for recognition of legitimate actions of other jurisdictions. It does not grant any powers to the federal courts nor change the application of the ACA in Hawaii.

The Government cites United States v. Kiliz, 694 F.2d at 629, for the proposition that the federal court must determine whether a state law is civil or criminal. The Ninth Circuit has held that federal courts are free to interpret extrapolated state criminal statutes just as if they were interpreting federal statutes, because the assimilated state law, in effect, becomes a federal statute.

The Government’s argument falls short. Kiliz does not allow the federal court to determine which state statutes are criminal. The holding in Kiliz goes only to the interpretation of criminal statutes which are assimilated. The statute in Kiliz was plainly criminal and the court did not reach the question of a federal court’s power to determine whether a state law is criminal or civil. Kiliz, 694 F.2d at 629 & n. 1.

Under the Ninth Circuit’s holdings this court is bound by the decision of the Hawaii Supreme Court that the implied consent law is civil in nature. State v. Severino, 56 Haw. 378, 388, 537 P.2d 1187, 1189 (1975); State v. Brown, 3 Haw.App. 386, 390, 651 P.2d 488, 491 (1982).

Alternatively, it is the independent judgment of this court that the implied consent law is civil in nature. The law provides only for the revocation of a license rather than fines or imprisonment. Furthermore, the revocation procedures are more consistent with a civil than a criminal statute. Other states have reached the same result reached in Hawaii. See, Severino, 56 Haw. at 380-81, 537 P.2d 1187 (collecting cases).

As a civil statute Hawaii’s implied consent law is not assimilated under the ACA.

Magistrate Bert S. Tokairin also correctly determined that the defendants had not been charged under 40 U.S.C. § 318a.

IT IS HEREBY ORDERED that the magistrate’s order granting defendants’ motion to dismiss for lack of federal court jurisdiction is AFFIRMED.


author: SUHRHEINRICH, District Judge.

text:
    John O’KEEFE, Individually and as Next Friend of Denis O’Keefe, a Minor, Plaintiffs, v. CITY OF DETROIT, a Municipal Corporation, and the Detroit City Zoo, Jointly and Severally, Defendants.
    Civ. A. No. 84-CV-0885-DT.
    United States District Court, E.D. Michigan, S.D.
    May 21, 1985.

      Edward G. Youmans, Dearborn, Mich., for plaintiffs.
    Laurel McGiffert, Asst. Corp. Counsel, Law Dept., Detroit, Mich., for defendants.
   MEMORANDUM OPINION

SUHRHEINRICH, District Judge.

Defendant, City of Detroit, filed a Motion for Summary Judgment with the Court on February 22, 1985, shortly after the Michigan Supreme Court announced its decision in Ross v. Consumers Power, 420 Mich. 567, 363 N.W.2d 641 (1985). In Ross, the Michigan Supreme Court thoroughly reviewed the governmental immunity doctrine, announcing comprehensive guidelines to assist the courts in construing governmental immunity issues. The disposition of this matter requires the Court to examine the Ross opinion with reference to the precise facts in this case.

This action arose out of an incident at the Detroit Zoological Park where plaintiffs two year old son fell into an ostrich pit. Plaintiffs’ brought this action essentially alleging that the City was negligent, grossly negligent and guilty of willful and wanton misconduct in connection with the maintenance and design of the ostrich pit and in rendering assistance to plaintiff’s son after his injury was incurred. Defendants resist liability on the basis that the City is immune from suit based upon the doctrine of governmental immunity. The City argues that the operation and maintenance of a zoo is a governmental function.

Plaintiffs offer two primary theories in opposition to the City’s Motion for Summary Judgment. First, plaintiffs assert that the City was engaged in a proprietary function, rather than a governmental function in operating the zoo and was, therefore, not immune from liability. Secondly, plaintiffs argue that the ostrich pit falls within the “public buildings exception” to the immunity statute. M.C.L.A. § 691.1406. Each theory is discussed below.

The State’s Governmental Tort Liability Act confers immunity upon governmental agencies engaged in the exercise or discharge of a “governmental function.”

Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all eases wherein the government agency is engaged in the exercise or discharge of a governmental function.

M.C.L.A. § 691.1407 (emphasis added).

The courts have struggled with the precise definition of activities which constitute a governmental function. As such, a substantial body of case law has evolved relative to the interpretation of this provision. “This Court has struggled for more than a century to reach a consensus on this term’s definition and application in a myriad of factual situations.” Ross v. Consumers Power, 420 Mich, at 595, 363 N.W.2d 641. In Ross, the court formulated a definition for the term governmental function which imparts broad immunity for “most activities” undertaken by governmental agencies. Id. at 621, 363 N.W.2d 641. The Michigan Supreme Court, in Ross, announced its “new” definition of the term governmental function.

We therefore conclude that a governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability unless the activity is proprietary in nature or falls within one of the other statutory exceptions to the governmental immunity act____

Id. at 620-21, 363 N.W.2d 641.

The Ross court acknowledged the broad grant of immunity afforded to governmental agencies under its revised definition.

We realize that the definition we have formulated is broad and encompasses most of the activities undertaken by governmental agencies. We have adopted this approach because we believe that this is the result envisioned by the en-actors of the governmental immunity act.

Id. at 621, 363 N.W.2d 641.

The Court’s task here, therefore, is to determine if the operation and maintenance of a zoo is “mandated or authorized by constitution, statute or other law” in accordance with the new Michigan governmental immunity test announced in Ross. In an effort to make this showing, defendants' cite the Court to the Michigan Home Rule Cities Act. This Act specifically permits cities to provide by charter for the acquisition of zoological gardens and for “the costs and expenses thereof.” M.C.L.A. 117.4e. Pursuant to this authority, the Detroit City Charter authorizes the operation and maintenance of the Detroit Zoological Park.

The zoological department is headed by a 5-member commission. The members of the commission shall be appointed by and serve at the pleasure of the mayor----

The zoological department shall maintain and operate the City’s zoological parks. Detroit City Charter, Chapter 16, Sec. 7-1601.

The Michigan Supreme Court in one of the nine Ross companion cases, Trezzi v. City of Detroit, held that Detroit was protected by governmental immunity in the operation of a “911 emergency assistance system.” Ross, 420 Mich, at 654, 363 N.W.2d 641. The Court reasoned that the Michigan Constitution, Art. 7 § 22, grants the power to electors of each City to adopt a charter and to adopt ordinances relating to municipal concerns. Further, as a home rule city, Detroit is responsible for the public health, peace and safety of persons and property. M.C.L.A. § 117.3(j). Detroit, the Ross court found, advanced the statutory and constitutional provisions by its charter and ordinances implementing its charter through the promulgation of the 911 emergency assistance system. Id. at 653-54, 363 N.W.2d 641.

The facts in the present case are quite similar. While the operation of a zoo does not appear to be expressly mandated by law, the constitutional, statutory and Detroit City Charter provisions certainly authorize the maintenance and operation of the zoo. Id. at 620-22, 363 N.W.2d 641. The Home Rule Cities Act, M.C.L.A. § 117.1 et seq., permits cities by charter to allocate funds to civic, artistic and cultural activities. M.C.L.A. § 117.4k. Further, the Detroit City Charter, Chapter 16, § 7-1601 establishes a zoological department to maintain and operate the zoological parks. These grants of authority clearly authorize the City to operate the zoo. Therefore, the Court concludes that the City of Detroit was engaged in a governmental function and entitled to immunity in its operation of the zoo.

The primary focus of the arguments of counsel, pursuant to this motion, devolved upon the statutory exceptions to the immu-nity statute. Plaintiffs argue that the “public buildings exception” is applicable to the case at bar, and, that the operation of a zoo is a proprietary function, operated primarily for pecuniary profit. Each of these statutory exceptions has been fully considered by the Court and is discussed below.

I.

Plaintiffs’ first attack in an attempt to penetrate the City’s shield of governmental immunity focuses upon the statutory “public buildings” exception. M.C.L.A. § 691.-1406. The statute provides:

Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition____

M.C.L.A. § 691.1406.

Plaintiffs rely upon several cases which have construed the statutory provision as applicable to outdoor areas adjacent to public buildings. The Court notes at the outset that none of the cases relied upon by plaintiffs, nor any that the Court has discovered, extend this statutory exception to the facts and circumstances attendant to this case.

The most recent cases construing the public buildings exception and pertinent to this case are Pichette v. Manistique Public Schools, 403 Mich. 268, 269 N.W.2d 143 (1978) and Tilford v. Wayne County Hospital, 403 Mich. 293, 269 N.W.2d 153 (1978). In Pichette, the court determined that the statutory public buildings exception applied to a permanently attached slide located upon school property. Pichette, 403 Mich. at 284, 269 N.W.2d 143. The court, in reaching its decision, rejected a narrow interpretation of the statute.

To be sure, Jeffrey Pichette would not have encountered the dangerous condition which led to his injuries but for the existence of defendant’s school. To bar plaintiff recovery because he was injured by a defective condition on the premises of a public building, which were under the control of the governmental entity, rather than inside the building, would have no basis either in logic or justice. That such a narrow construction of the “public buildings” exception has no rational basis is amply demonstrated by the case at bar.

Pichette, 403 Mich, at 285, 269 N.W.2d 143 (emphasis added).

Pichette fails to support plaintiffs’ position for the reason that the zoo’s ostrich pit is not ancillary to a public building. Rather, plaintiffs urge the Court to construe the ostrich pit as a “building” in and of itself.

Even in its avowedly broad interpretation of the public buildings exception in Pichette, the Michigan Supreme Court has not reached the limits propounded upon the Court by the plaintiffs herein. Pichette discussed the nexus between the surrounding playground and the school building. The school building in that case obviously was a structure or building in the traditional sense of the term. Here, plaintiff asks the Court to declare a manmade park structure, an ostrich pit, to be a building within the meaning of the statute.

In further support of their position, plaintiffs cite Monfils v. City of Sterling Heights, 84 Mich.App. 330, 269 N.W.2d 588 (1978). Monfils, however, offers no greater support to plaintiffs’ position than Pichette. In Monfils the Michigan Court of Appeals determined that an injury to a child which occurred when the child was struck by a rock thrown from a mound of sand on a school playground, was covered by the public buildings exception. Monfils, 84 Mich.App. at 335, 269 N.W.2d 588. The court there concluded that a school playground, as in Pichette, was part of a school building within the meaning of the statute. The Monfils court concluded:

Accordingly, in order to save the constitutionality of the statute this writer would expand the definition of public building in MCLA 691.1406 to include not only that which one regards as a building, but also the immediate outside physical environs owned, controlled and considered a necessary part of the essential governmental function of the building.

Monfils, 84 Mich.App. at 333, 269 N.W.2d 588, citing with approval Pichette v. Manistique Public Schools, 50 Mich.App. 770, 213 N.W.2d 784 (1973) (Holbrook, J. dissenting).

Again, as in Pichette, the Monfils court concerned itself with expanding the buildings exception statute to the surrounding grounds of a public building. These cases do not expand the definition of the term “building” to parks or other open areas, and do not support plaintiffs’ argument that this Court should do so.

Finally, plaintiffs rely upon Tilford v. Wayne County General Hospital, 403 Mich. 293, 269 N.W.2d 153 (1978). Tilford involved a plaintiff injured in a parking lot while walking to an adjacent hospital. Again, as in Pichette and Monfils, the court found the hospital’s parking area to be inextricably bound with the hospital it served. Tilford, 403 Mich. at 299, 269 N.W.2d 153.

The Court’s duty in interpreting a statute is basically to effectuate the intent of the legislature. In this regard, the legislative intent may be ascertained from the clear language of the statute itself or from materials which clearly reveal a legislative intent. In Re Arnett, 731 F.2d 358 (6th Cir.1984).

The statute being considered here expressly provides for the abrogation of immunity for injuries suffered by reason of dangerous or defective conditions in public buildings. M.C.L.A. § 691.1406. The cases cited by plaintiffs have extended the scope of the statute to areas surrounding public buildings or inextricably bound with a building. See Pichette v. Manistique Schools, supra; Tilford v. Wayne County General Hospital, supra; Monfils v. City of Sterling Heights, supra. Plaintiffs now ask the Court to judicially transform the definition of public building in the subject statute to embrace public areas such as the park-like outdoor setting of the zoo. The Court is constrained to enforce the intent of the Michigan legislature. Marsh v. Board of Education of the City of Flint, 581 F.Supp. 614 (E.D.Mich.1984). Where the legislature has chosen to abrogate immunity to public “buildings,” the Court cannot read into the statute an intention to abrogate immunity to all public “places” absent some clear legislative intent to do so. The Court presumes the legislature chose the word “building” rather than public “place” and will not supplant plaintiffs preferred definition for that which the legislature has chosen. Therefore, the Court concludes the ostrich pit at the Detroit Zoological Park is not a building within the intendment of the buildings exception statute, M.C.L.A. § 691.1406.

II.

Plaintiffs’ second major argument is that the City’s operation of the zoo is proprietary in nature. The starting point in this analysis is the Michigan Statute defining proprietary function and abrogating immunity for governmental units engaged in such functions.

The immunity of the state shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as herein defined. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the state, excluding, however, any activity normally supported by taxes or fees____

M.C.L.A. § 691.1413.

The issue, then', which the Court must address, is whether the City of Detroit’s operation of the zoo is a proprietary function within the meaning of the above referenced statute. The most recent construction of the proprietary function test was decided by the Michigan Supreme Court in the matter of Regulski v. Murphy, one of the nine companion cases decided in Ross v. Consumers Power, supra. There, the court concluded that a school district’s vocational classes to construct houses were not conducted primarily to realize a pecuniary profit and, therefore, was not a proprietary function. In analyzing this ease the court reasoned:

Although at one time any incidental profit generated by an activity was sufficient to defeat an agency’s claim of immunity, the Legislature in § 13 has modified this rule to require that the activity be conducted primarily for pecuniary profit. On the- basis of these facts, we conclude that the operation of the building trades class was not a proprietary function.

Ross v. Consumers Power, 420 Mich. at 649, 363 N.W.2d 641. (Emphasis in original).

Plaintiffs, in this case, argue that the City was engaged in the operation of the zoo primarily for profit, a proprietary function. In support, plaintiffs argue that the zoo charges admission, parking and other fees.

A similar argument was addressed by the Michigan Court of Appeals in Smith v. Board of Commissioners of the Huron Clinton Metropolitan Authority, 49 Mich. App. 280, 212 N.W.2d 32 (1973). In Smith, the court upheld a summary judgment decision in favor of defendant based upon undisputed facts that the defendant park authority had operated the subject facility at a loss for four consecutive years. This, the Court found, was substantial evidence that the park was not being operated for profit and was not, therefore, a proprietary activity. Id. at 283. The facts before the Court in this action are even more persuasive. Defendant has submitted affidavits of Walter I. Stecher, City Budget Director stating that fees collected from the zoo only represent a portion of the zoo’s operating cost, that remaining operating costs have annually been paid from the City's general fund and that the zoo was not operated for profit. Further, an affidavit of Beverly Davis, Business Manager of the Detroit Zoological Department states that revenues generated at the zoo only account for a percentage of its operating cost (from 40% to 72% of operating costs between 1967 and 1984). Based upon these facts and defendants’ failure to proffer any contrary evidence, the Court is fully convinced that the Detroit Zoological Park is not operated primarily for a pecuniary profit. See Smith v. Board of Commissioners of the Huron Clinton Metropolitan Authority, supra, and Ross v. Consumers Power Company, supra.

CONCLUSION

The Court’s obligation in this case is to apply the law of the State of Michigan to determine whether plaintiffs’ claims are barred by virtue of governmental immunity. Bank One Trust Company, N.A. v. County of Iosco, 597 F.Supp. 586 (E.D. Mich.1984). Based upon the foregoing analysis, the Court concludes that the City of Detroit was engaged in a governmental function in its operation and maintenance of the Detroit Zoological Park and defendants’ activities did not fall within the statutory exceptions, M.C.L.A. §§ 691.1406, 1413, as argued by plaintiffs. Therefore, defendants’ motion for summary judgment shall be granted. An appropriate order in accordance with this opinion shall be entered.


author: HAIGHT, District Judge:

text:
    UNITED STATES of America, v. Peter BENNERSON, Defendant.
    No. S84 Cr. 1012-CSH.
    United States District Court, S.D. New York.
    May 28, 1985.
    On Motion To Dismiss Second Superceding Indictment Aug. 1, 1985.

      Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for United States; Peter M. Lieb, Asst. U.S. Atty., New York City, of counsel.
    Caesar D. Cirigliano, The Legal Aid Society, Federal Defender Services Unit, New York City, for defendant; Jack Lipson, Catherine Foti, Student Intern, New York City, of counsel.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Defendant was arrested upon reports that he had stolen a federal Social Security check payable to another, forged an endorsement on it, and cashed it. In a complaint filed December 4, 1984, he was charged with “uttering as true” a forged endorsement on a United States Treasury check, in violation of 18 U.S.C. §§ 495 and 510, and possessing stolen mail in violation of 18 U.S.C. § 1708.

A two-count indictment was filed on December 21. Count one charged theft and conversion of a Treasury check in violation of 18 U.S.C. § 641; count two charged forgery of an endorsement on the check in violation of 18 U.S.C. § 510.

Sometime after defendant’s indictment, the Government realized that the theft occurred outside the Southern District. In consequence, venue did not lie in this district to prosecute defendant for theft and conversion under § 641. The Government cured venue by filing a superceding indictment on March 21, 1985. The one-count superceding indictment charges defendant with uttering as true a forged writing with intent to defraud the United States in violation of 18 U.S.C. § 495.

Sections 495 and 510 are similar. Section 495 forbids, in its first paragraph, the forgery of a writing for the purpose of obtaining money from the United States. The second paragraph forbids uttering as true any such forged writing with the intent of deceiving the Government. Forged endorsements on Treasury checks have long been recognized as falling within those provisions of § 495. A more narrowly tailored statute, § 510 deals solely with United States Treasury checks. Section 510(a)(1) forbids forging an endorsement on a Treasury check, and § 510(a)(2) forbids uttering a Treasury check bearing a forged endorsement. Defendant’s alleged behavior fits into all four categories.

Defendant moves to dismiss the superceding indictment on two grounds: 1) that the crime charged in it may be properly charged only under 18 U.S.C. § 510, as the original indictment charged and 2) that he was not timely indicted on the § 495 charge under the Speedy Trial Act.

I will address the latter argument first. The Speedy Trial Act requires that “any ... indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested ... in connection with such charges.” 18 U.S.C. § 3161(b). If the indictment is not obtained within thirty days, 18 U.S.C. § 3162(a)(1) mandates dismissal of the charge upon which the defendant was arrested.

Defendant’s argument is straightforward. He was arrested in December and charged in a complaint with uttering a falsely endorsed instrument in violation of §§ 495 and 510. He was timely indicted only on forgery charges under § 510. Thus the complaint’s uttering charges under § 495 must be dismissed. The Government responds in essence that it satisfied the Act by indicting defendant on substantially similar charges within the thirty day time limit.

I am unimpressed by defendant’s emphasis on the change in statutory basis for the charged crime. If the switch in the two indictments from § 510 to § 495 entailed nothing more than changing the number of the statute under which defendant is charged, I would be tempted to analogize it to the alteration in the defendants’ names which was found insignificant for purposes of § 3161(b) in United States v. Mitchell, 723 F.2d 1040, 1044-45 (1st Cir.1983).

More is involved here, however. In the first indictment, defendant was charged with forging an endorsement on a Treasury check of value under $500, a misdemeanor. In the superceding indictment, defendant is charged with uttering a writing bearing a forged endorsement, a felony. Not only are the penalties different, the offenses underlying them differ. Although uttering a check with a forged endorsement may entail the forging of an endorsement by the defendant (and did in this case), the offense is not the forging but the uttering. Uttering the check requires an act wholly separate from the act of forging the endorsement. Plainly the elements of the offenses are different. Further evidence that the two offenses differ is the fact that they are listed in separate paragraphs within both §§ 495 and 510.

Defendant, as noted, was arrested and charged with uttering the check. Although he was timely indicted for forging an endorsement—an act mentioned in the factual allegations of the complaint but not charged—-he was not indicted for uttering the check until several months after his arrest. A prima facie violation of § 3161(b) is present.

Two recent Second Circuit decisions provide guidance in this area. The first, United States v. Gonzalez, 748 F.2d 74, 79 (2d Cir.1984), construes § 3161(b). Defendant in Gonzalez was charged in a complaint with wire fraud of Bank A. He was timely indicted, however, for using essentially the same fraudulent scheme to defraud Bank B. Some months later, a superceding indictment was filed charging him with defrauding both banks. The Court of Appeals dismissed the charges alleging fraud on Bank A, finding that defendant had not been indicted on the charges until several months after his arrest in connection with them. 748 F.2d at 79. The court noted that “[t]he two charges [against Banks A and B], of course are related and grow out of the same fraudulent scheme, but they are not based on the same conduct or the sending of the same wires. Thus [the count alleging fraud against Bank A], rather than being an unchanged restatement of part of the original indictment, was a first indictment on a new charge.”

In addition, the Court of Appeals recently construed § 3162(a)(1) in United States v. Napolitano, 761 F.2d 135 (2d Cir.1985). Defendant was arrested for applying for and using a bank account under a false name. No timely indictment was filed. Nearly two years later, an indictment was returned charging defendant with bank larceny and conspiracy to commit bank larceny, offenses different from those contained in the complaint. The trial court denied defendant’s motion to dismiss the indictment as violating § 3161(b).

The Second Circuit affirmed. It rejected defendant’s argument that the Act bars untimely prosecution “not only for the charge alleged in the complaint, but also for any conduct ‘arising] out of the same criminal episode’ which was ‘known or reasonably should have been known’ at the time the complaint was filed,” At 137, and adopted a literal construction of § 3162(a)(1). The Act requires dismissal of “such charge ... contained in such complaint,” which the Court took to refer only to precisely the offense charged in the complaint. During debate on the original bill, Congress had rejected broad language such as that proposed by defendant. At 138. Thus the Court concluded, citing earlier cases, that

a subsequent prosecution may be barred if it is based on an indictment which merely “gilds” an earlier charge or if the subsequent charge is a mere difference in accusational dates. In this case, the initial charge against the defendant for making a false application for a bank account was entirely different from and based on different proof than the later indictment for larceny of bank funds.

At 138.

The Government seeks to avoid the effect of Gonzalez by arguing that by implication Gonzalez permits a superceding indictment charging a new offense where the complaint, indictment, and superceding indictment are all “based on the same conduct.” Gonzalez, supra, 748 F.2d at 79. This may well be true, but I cannot accept the characterization of the charges in the two indictments as being based on the same conduct. Defendant’s uttering of the cheek was irrelevant to the forgery charges in the initial indictment, but it is an essential element of the count in the superceding indictment. Although it is true that, on the Government’s account of the events, the uttering occurred nearly simultaneously with the forgery, was a part of the same scheme as the forgery, and as an offense includes forgery (although not necessarily by the defendant) as an element, uttering is not the same conduct as forgery. The two offenses are based on different, if related, actions.

The Government seems to argue that because the defendant was indicted “in connection with” the arrest charges, the Act’s requirement of a timely indictment was satisfied. (Gov.Mem. at 7). This twists the statute’s language. The Act does not require indictment in connection with an arrest. Rather, it requires timely indictment “charging ... an offense” to be filed within thirty days of the defendant’s arrest “in connection with” the offense. As noted above, defendant was arrested for uttering the check in December; he was not indicted for this offense until March. Napolitano would seem to dictate close adherence to the language of the statute. I can see no principled reason for evading that language in this case.

On the contrary, I conclude that the principles articulated in Gonzalez and Napolitano are controlling, and require dismissal. The uttering charge, when one considers the elements and the requisite proof, is clearly “a first indictment on a new charge.” Gonzalez, supra.

Because defendant was not indicted for uttering a check bearing a forged endorsement within thirty days of his arrest on that charge, the superceding indictment, which charges only that offense, must be dismissed under 18 U.S.C. § 3162(a)(1). Because I find that the superceding indictment violates the Speedy Trial Act, I need not reach defendant’s second ground for dismissal.

The question then arises, in the words of the second sentence of § 3162(a)(1), “whether to dismiss the case with or without prejudice____” The statute gives the trial court discretion on the matter, and requires consideration of several specific factors. But the briefs of counsel in the case at bar do not address how I should exercise that discretion, and I am not prepared to do so until counsel have been heard.

It follows that the superceding indictment is dismissed. Trial will not commence on June 3, 1985, as presently scheduled. Counsel are directed to serve and file briefs on the issue of dismissal of “the case with or without prejudice” not later than June 12, 1985.

In order that this important question be fully briefed and considered, I continue the case under § 3161(h)(8)(A), being of the opinion that the ends of justice served by taking, such action outweigh the best interest of the public and the defendant in a speedy trial.

It is SO ORDERED.

On Motion to Dismiss Second Superceding Indictment

Defendant is alleged to have stolen a $274 Treasury check, forged an endorsement on it, and cashed it. In a two-count indictment filed December 21, 1984, he was charged with stealing a thing of value of the United States, in violation of 18 U.S.C. § 641, and forging an endorsement on same in violation of 18 U.S.C. § 510. Upon realizing that the theft, although not the forgery, occurred outside the Southern District of New York, the Government on March 21, 1985, filed a one-count superceding indictment charging defendant with uttering as true a false writing in order to obtain money from the United States, in violation of 18 U.S.C. § 495. In an opinion dated May 28, 1985, the Court dismissed that indictment as filed in violation of the Speedy Trial Act, specifically 18 U.S.C. § 3161(b). Undaunted, the Government filed a second superceding indictment on June 13, 1985, once again charging a violation of § 641. The venue problem was avoided by charging the defendant with concealing and retaining within this district the check which he allegedly stole in a borough outside the district.

Defendant moves to dismiss the second superceding indictment on the ground that Congress did not intend the various acts connected with theft and forgery of a Treasury check of value less than $500 to be chargeable as a felony. Section 641, enacted in 1948, forbids the theft of “any record, voucher, money, or thing of value of the United States” and the knowing receipt or concealment of such stolen property. The language of the statute seems broad enough to encompass the acts of which defendant is accused, and defendant does not contest its facial applicability. He contends, however, that 18 U.S.C. § 510,. enacted in 1983, was intended to displace all other federal criminal statutes which could conceivably forbid the various acts connected with concealing and fraudulently cashing stolen government checks. Section 510 proscribes the forging of endorsements on, inter alia, government checks, the passing of falsely endorsed government checks, and the receipt or concealment of stolen or falsely endorsed government checks. If the face value of the check involved is under $500, as here, a violation of § 510 is a misdemeanor. A violation of § 641 is a felony unless, as is not the case here, the value of the stolen property is under $100.

The leading modern case in this .area is United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). Batchelder concerned two statutes prohibiting the receipt by convicted felons of firearms which have traveled in interstate commerce. Both 18 U.S.C. § 922(h) and 18 U.S.C. § 1202(a) forbid, in similar language, such conduct. Section 922(h) provides a maximum penalty of five years; § 1202(a) provides a maximum sentence of two years. The defendant in Batchelder was prosecuted and convicted under § 922(h). He argued on appeal that the maximum permissible sentence was the two years provided by § 1202(a), which was enacted after § 922(h).

After noting the redundancy of the two provisions, the Supreme Court reviewed their histories. Based on the declarations during Congressional debate, the Court found that the act containing § 1202(a) was enacted as a complement to, rather than a replacement for, the Act which contained § 922(h). Finding no express will to repeal § 922(h), the Court concluded that the two statutes were intended to operate independently. 442 U.S. at 121, 99 S.Ct. at 2202. It then rejected the suggestion that § 1202(a) was implicitly intended to repeal the penalty provision applicable to § 922(h), holding that

... it is “not enough to show that the two statutes produce differing results when applied to the same factual situation.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 [96 S.Ct. 1989, 1993, 48 L.Ed.2d 540] (1976). Rather, the legislative intent to repeal must be manifest in the “ ‘positive repugnancy between the provisions.’ ” United States v. Borden Co., 308 U.S. 188, 199 [60 S.Ct. 182, 188, 84 L.Ed. 181] (1939). In this case, however, the penalty provisions are fully capable of coexisting because they apply to convictions under different statutes.

422 U.S. at 122, 99 S.Ct. at 2203. After finding no constitutional bar to Congress’ delegating to the Justice Department the discretion to prosecute under either of two substantively identical statutes providing different penalties, the Court affirmed the conviction under § 922(h). 442 U.S. at 125, 99 S.Ct. at 2205.

The factual parallels between Batchelder and this case are obvious and strong. In both, Congress enacted overlapping criminal statutes, setting the maximum penalty in the later-enacted statute lower than the maximum penalty set in the earlier-enacted one. However, the factual differences also cannot be ignored. In Batchelder, the two statutory provisions forbid, with minor exceptions, precisely the same behavior. Neither could be said to be more specific or clearly tailored to the crime than the other. By contrast, § 641 is a very general statute dealing with concealment of stolen governmental property, while § 510 explicitly governs the concealment of stolen Treasury checks. The difference is significant, for the very specificity of § 510 tends strongly to imply that, whatever Congress thought an appropriate penalty for the concealment of stolen governmental property in general, it considered the concealment of stolen checks under $500 face value to be a misdemeanor. Indeed, it was the strength of this implication which persuaded Chief Judge McNichols of the Eastern District of Washington to dismiss a felony prosecution for forgery of an endorsement on a Treasury check under $500 in favor of a § 510 misdemeanor charge. United States v. Jimicum, 608 F.Supp. 1530, 1534 (E.D. Wash.1985). It is this implication, as bolstered by the prosecution history of § 510, which defendant claims prevents a § 641 indictment in this case.

There is very little law on this topic in the Second Circuit. Several other circuits, however, have rejected the argument that a more specific statute of necessity displaces or partially repeals a more general statute. These courts have consistently held that the existence of a specific statute, without more, does not prevent prosecution under a more general statute. In United States v. Computer Sciences Corp., 689 F.2d 1181 (4th Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983), for example, the government sought to prosecute several individuals for conspiring to file false claims with the government. In addition to indicting the defendants under 18 U.S.C. § 287, which proscribes false claims against the government, the prosecution joined counts covering the same conduct under the general wire and mail fraud statutes. Although noting that the defendants might not be susceptible to punishment under all statutes, the Court held that the government was not limited to charging the crime only under the most specific statute available. 689 F.2d at 1187-88. See similarly, United States v. Brien, 617 F.2d 299, 310 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980) (commodities fraud may be prosecuted under mail and wire fraud statutes despite the existence of the more narrowly tailored Commodity Futures Trading Act: “Although the statutes prohibit similar conduct, they operate independently and harmoniously. The government’s election to prosecute appellant under the statute which, at the time, provided the more severe penalty, was an exercise of discretion which violated no rights of appellants. [citing Batchelder].” 617 F.2d at 310.). To similar effect is United States v. Mackie, 681 F.2d 1121, 1123 (9th Cir.1982). Defendants in Mackie were accused of selling whole eagles and eagle beaks to undercover agents. This conduct violated not only the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 and 707(b), under which the defendants were prosecuted, but the more specific Bald and Golden Eagle Protection Act, 16 U.S.C. § 668(a). In response to the defendants’ argument that they could only be prosecuted under the more specific statute, the Ninth Circuit held that in the absence of an affirmative indication in the legislative history that the more specific statute was intended to preempt or partially to repeal the more general statute, the government could proceed under either.

A similar result has obtained even when the more specific statute is a misdemeanor while the more general is a felony. In United States v. Fern, 696 F.2d 1269, 1273-74 (11th Cir.1983), defendant was prosecuted for making false statements to an Internal Revenue agent. Such conduct is a misdemeanor under 26 U.S.C. § 7207, which specifically forbids it. Nevertheless, the Court affirmed a felony conviction obtained under 18 U.S.C. § 1001, a more general statute governing the making of false statements to government officials. To similar effect is United States v. Schaffner, 715 F.2d 1099, 1102 (6th Cir.1983), in which the government sought to prosecute an attorney for helping a witness to evade service of a subpoena. The district court dismissed felony charges under 18 U.S.C. § 1503, prohibiting obstruction of justice, because of the existence of a more specific misdemeanor statute forbidding interference with a process server. The Court of Appeals reversed. See also, United States v. Boggs, 739 F.2d 1376, 1378 n. 2 (8th Cir.1984) (in prosecution of defendant common carrier for granting a rebate of shipping charges, government could charge under either a misdemeanor statute prohibiting such rebates or under a felony statute specifically prohibiting acceptance of prices lower than regulated rates).

These cases demonstrate, in circumstances virtually identical to those of the instant case, that no inference regarding Congressional intent may be drawn from the mere existence of a specific statute carrying a lighter penalty than a more general one. They represent an elaboration of the holding of Batchelder, supra, 442 U.S. at 122, 99 S.Ct. at 2203, that no partial repeal will be found from the mere existence of two redundant statutes carrying different penalties unless the two are positively repugnant—that is, unless they cannot coexist independently.

This does not end the inquiry. This general principle of interpretation is not intended to override Congressional intent. As the Ninth Circuit pointed out in United States v. Mackie, supra, 681 F.2d at 1123, partial repeal will be found if there is an affirmative indication in the legislative history of either statute that the more specific statute was intended by Congress to override the more general statute when both are applicable. Defendant argues with vig- or that such indications are present in the history of § 510.

The history of § 510 is sparse. The statute was apparently first proposed by Senator DeConcini in June, 1981, see 127 Cong. Rec. S6448 (daily ed. June 18, 1981), but was not passed until November, 1983. In the relevant Congressional report, § 510 receives only brief comment. S.Rep. No. 225, 98th Cong., 1st Sess. 371-72, reprinted in U.S.Code Cong. & Ad.News 3182 (November, 1984). The focus of the comment is on § 510(a), which prohibits the forging of false endorsements on government checks and securities. The conduct covered by § 510(a) was, until its enactment, prosecuted solely under 18 U.S.C. § 495, a felony statute which prohibits the forgery of a “deed ... receipt, contract, or other writing” for the purpose of obtaining money from the government. False endorsements were held to constitute “other writings” as long ago as Prussian v. United States, 282 U.S. 675, 51 S.Ct. 223, 75 L.Ed. 610 (1931), but the absence of their express mention in § 495 was perceived by Congress as creating gaps in the criminal law prohibiting the wrongful use of government checks. Section 510 was intended to bridge these gaps by expressly prohibiting wrongful conduct which, according to the report, was not prohibited by § 495. The report makes no mention of the sentencing provisions of § 510 or their relationship to those of § 495 or § 641. Indeed, no mention of § 641 appears in the legislative history. Although it is clear from the report that § 510 was intended to bridge gaps in § 495, and implicitly § 641, the report manifests no express intention for § 510 entirely to supplant § 495. The report is simply silent on the question of whether Congress intended for the two statutes to coexist.

Comment on the floors of Congress was barely more extensive. Apparently uncontroversial, § 510 provoked no floor debate. See, e.g., 129 Cong.Rec. S15862-63 (daily ed. November 10, 1983) (remarks of Sen. Stevens). The only legislative statement which amounts to more than an echo of the comments in Senate Report No. 98-225 is an introductory speech given by Senator DeConcini in 1983. 129 Cong.Rec. S9342-43 (daily ed. June 28, 1983). The Senator first declared that the legislation he was introducing would, “if adopted, correct certain omissions in current law and prescribe penalties for forging endorsements on Treasury checks, ... passing such obligations bearing forged endorsements, or possessing, selling or exchanging such obligations if they are stolen or bear forged endorsements. This legislation will make it possible for the Justice Department to prosecute both forgeries of endorsements and related crimes involving obligations of the United States under one section of the United States Code____” 129 Cong.Rec. at S9342. Defendant argues that this statement demonstrates Congressional intent to make § 510 the exclusive means for prosecuting and punishing these crimes. The argument has some force. However, it can also be argued that the Senator was simply summarizing the effects of the individual provisions of § 510, without meaning to imply that they would thereafter be exclusive. The statute does prescribe penalties, but this does not necessarily mean that they are intended to be the only available penalties. Similarly, to say that § 510 makes it possible for the government to prosecute under one section of the Code is not necessarily to say that the. government must do so.

Senator DeConcini proceeded in his remarks to discuss the gaps in § 495 which are also cited in the Senate Report. Then, in discussing penalties, he commented that “[w]hile section 495 is strictly a felony statute, the proposed section 510 also allows for prosecution as a misdemeanor for those obligations which do not exceed $500. This will greatly enhance the judicial process since the great majority of such cases are under the $500 amount.” 129 Cong.Rec. at S9342. It seems significant that the Senator commented that § 510 “also allows” a misdemeanor prosecution. The phrase suggests an alternative—that is, that § 510 allows, but does not require, a misdemeanor prosecution. The alternative, of course, would be a felony prosecution under § 495. Further, although the purported benefit to the judicial process, the ease of prosecuting misdemeanors as opposed to felonies, is greater- if all such cases must be brought as misdemeanors, the goal is not necessarily undercut by giving the prosecutor an option. This would permit the Justice Department to target its expenditure of resources, and thus that of the judiciary, at the most serious offenders. Either way, the judicial process is “enhanced.”

Finally, Senator DeConcini addressed in more detail the drafters’ aims in creating a misdemeanor statute:

According to GAO, Secret Service and U.S. attorneys’ offices throughout the country generally agreed that various benefits would result if a Federal misdemeanor forgery statute were enacted, including the following specific benefits: First. Result in more forgers being prosecuted by U.S. attorneys;
Second. Eliminate the need for creating “legal fictions” which result from prosecuting under misdemeanor laws that may not directly address the forgery offenses;
Third. Increase plea negotiation flexibility and guilty pleas;
Fourth. Increase use of the U.S. magistrates in check forgery cases and reduce the number of felony trials; thereby reducing the burden on the Federal district courts.
Fifth. Provide more accurate conviction records which may be useful in future prosecutions of repeat offenders; and Sixth. Provide a realistic penalty structure.

129 Cong.Rec. at S9342.

The last purported benefit supports defendant’s position. By stating that misdemeanor treatment is a “realistic” penalty for forgery of an endorsement on a check under $500, it can be argued that the Senator was implicitly indicating that felony treatment permits an excessively harsh punishment. On the other hand, the third and fifth listed benefits provide talking points for the government. It is difficult to see how the creation of a misdemeanor statute will increase plea negotiation “flexibility” if it becomes the exclusive penalty. Flexibility implies choice of action; surely it is increased most effectively by permitting the misdemeanor statute to exist side-by-side with the preexisting felony statute. The fifth benefit perhaps less clearly weighs in the government’s favor. Presumably the availability of a misdemeanor statute will provide more accurate conviction records because the government will prosecute known cases of forgery which it currently deems insufficiently serious to justify felony prosecution. Arguably, at least, the importance of accurate conviction records is that they would permit the government to ascertain repeat offenders and seek more severe punishment for them by prosecuting them as felons. If repeat offenders continue to be subject only to misdemeanor treatment, the range of punishment which can be imposed upon them is arguably so narrow as to make their identification of small practical significance.

This is the extent of the relevant legislative history. Senator DeConcini did not expressly state whether he viewed the statute as replacing all others which have historically governed forged endorsements. Certain aspects of his testimony support this view; other aspects seem inconsistent with it. In view of presumption against implicit repeal, Batchelder, supra, 442 U.S. at 122, 99 S.Ct. at 2203, however, it is appropriate to require an express or “affirmative” indication of intent to repeal. Mackie, 681 F.2d at 1123. No such indication is present here. As a result, the Government may avail itself of any applicable statute. Since it appears to be uncontested that § 641 prohibits the acts alleged, the motion to dismiss the indictment must fail.

It is SO ORDERED.

      . Section 495 states in relevant part:
      Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money; or
      Whoever utters or publishes as true any such false, forged, altered, or counterfeited writing, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited ...
      Shall be fined not more than $1,000 or imprisoned not more than ten years, or both.

      . Section 510 states in relevant part:
      (a) Whoever, with intent to defraud—
      (1) falsely makes or forges any endorsement or signature on a Treasury check or bond or security of the United States; or
      (2) passes, utters, or publishes, or attempts to pass, utter, or publish, any Treasury check or bond or security of the United States bearing a falsely made or forged endorsement or signature shall be fined not more than $10,000 or imprisoned not more than ten years, or both ...
      (c) If the face value of the Treasury check ... or the aggregate face value, if more than one Treasury check ... does not exceed $500, in any of the above-mentioned offenses, the penalty shall be a fine of not more than $1,000 or imprisonment for not more than one year, or both.

      . Section 3161(b) states in relevant part:
      (b) Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges____
      Section 3162(a)(1) states:
      (a)(1) If, in the case of any individual against whom a complaint is filed charging such individual with an offense, no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped. In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.

      . In the May 28 order, I dismissed the superceding indictment, but I reserved for further briefing the question of whether the indictment should be dismissed with or without prejudice under 18 U.S.C. § 3162(a)(1). Upon the Government’s agreement to enter a declaration of nolle prosequi as to the initial and superceding indictments following disposition of this prosecution, the parties elected not to pursue the question.

      . The full text of 18 U.S.C. § 641 is as follows:
      § 641. Public money, property or records

      Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
      Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
      Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.
      The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.

      . The full text of 18 U.S.C. § 510 is as follows:
      § 510. Forging endorsements on Treasury checks or bonds or securities of the United States.

      (a) Whoever, with intent to defraud—
      (1) falsely makes or forges any endorsement or signature on a Treasury check or bond or security of the United States; or
      (2) passes, utters, or publishes, .or attempts to pass, utter, or publish, any Treasury check or bond or security of the United States bearing a falsely made or forged endorsement or signature shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
      (b) Whoever, with knowledge that such Treasury check or bond or security of the United States is stolen or bears a falsely made or forged endorsement or signature buys, sells, exchanges, receives, delivers, retains, or conceals any such Treasury check or bond or security of the United States that in fact is stolen or bears a forged or falsely made endorsement or signature shall be fined not more than $10,000 or imprisoned not more than ten years, or both.
      (c) If the face value of the Treasury check or bond or security of the United States or the aggregate face value, if more than one Treasury check or bond or security of the United States, does not exceed $500, in any of the above-mentioned offenses, the penalty shall be a fine of not more than $1,000 or imprisonment for not more than one year, or both.

      . Jimicum was not a § 641 case, but the felony statute there used to prosecute the forgery, 18 U.S.C. § 495, is also a very general one. It forbids the forgery of a writing for the purpose of obtaining money from the government.

      . In United States v. Ruggiero, 472 F.2d 599, 606 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973), the Court of Appeals found no constitutional infirmity in the government’s prosecution of a defendant for perjury under 18 U.S.C. § 1623, governing false declarations before a grand jury, rather than § 1621, the general perjury statute, despite the applicability of the "two-witness rule” and less severe penalties to the latter. In so doing, the court commented that "where criminal statutes overlap the government is entitled to choose among them provided it does not discriminate against any class of defendants.” 472 F.2d at 606. See abo, United States v. Coppola, 300 F.Supp. 932 (D.Conn.), aff’d., 425 F.2d 660 (2d Cir. 1969) (per curiam), in which District Judge Mansfield (as he then was) found no constitutional prohibition against the government’s choosing to prosecute under a felony statute conduct which could have fit within a similar misdemeanor statute. 300 F.Supp. at 934. However, in Coppola the misdemeanor and felony statutes were not identical; each had elements which the other did not share. The argument that the misdemeanor statute repealed the felony statute would have been difficult to make, for a violation of one was not necessarily a violation of the other. Thus neither Coppola nor Ruggiero, while perhaps suggestive, is controlling.

      . Nor are United States v. Simpson, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) and United States v. Busic, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980), the latter cited by defendant, to the contrary. Both cases concerned the propriety of applying general sentence enhancement provisions to statutes which contained their own enhancement provisions, creating a pyramid of two enhancements above the base sentence. In both cases, the Supreme Court found that the specific enhancement provision preempted the general provision, but in doing so it relied not only upon their general-specific character but also upon express indications in the legislative history that the general statute was not to be applied when the specific statute was available. See United States v. Mackie, 681 F.2d 1121, 1123 (9th Cir.1982).

      . Defendant’s counsel and his student intern are to be commended for the thoroughness with which they have researched the limited legislative history of § 510.

      . As defendant notes, the Supreme Court has termed such reports “the authoritative source for finding the Legislature’s intent.” United States v. Garcia, — U.S. —, 105 S.Ct. 479, 483, 83 L.Ed.2d 472 (1985).

      . The full text of the explanatory comment, quoted below, follows a paragraph describing current prosecution strategy under § 495:
      Because section 495 was not drafted to deal with obligations of the United States, many of the variations of offenses involved with the forgery of obligations are not included within that section and cannot otherwise be prosecuted under Federal law. For example, it is currently possible for a thief to steal a Treasury check endorsed by a payee, endorse his own name and obtain the proceeds, and not violate section 495. In addition, it is possible for a thief to steal one or more government checks or bonds from the rightful owner and sell them to a middle man and not violation [sic] section 495.
      S.Rep. No. 225, 98th Cong., 1st Sess. 371 (1983), U.S.Code Cong. & Admin.News 1984, p. 3512.

      . Of course, it could also be argued that by terming the new penalty structure "realistic" the Senator merely meant to indicate that felony treatment is not appropriate for every forgery case involving a check under $500.


author: DONALD J. PORTER, Chief Judge.

text:
    Esther V. BIXLER and Trevor W. Bixler, Co-Executors of the Estate of Walter L. Bixler, Deceased, Plaintiffs v. UNITED STATES of America, Defendant.
    Civ. No. 84-1059.
    United States District Court, D. South Dakota, N.D.
    May 31, 1985.
    Richard H. Battey, Gallagher & Battey, Redfield, S.D., for plaintiffs.

      Frank G. Gokey, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendant.
   MEMORANDUM OPINION

DONALD J. PORTER, Chief Judge.

CASE SUMMARY

This case has been submitted to this Court on stipulated facts, and with but one issue for this Court to determine: whether decedent’s estate is entitled, under the Economic Recovery Tax Act of 1981, to retroactively qualify for the special use valuation of Internal Revenue Code Section 2032A. The Court finds that decedent is not so entitled, and must enter judgment for defendant.

BACKGROUND

The Tax Reform Act of 1976, as codified at 26 U.S.C. § 2032A, provided that, under certain circumstances, real property used in a farm or other closely held business could be included in a decedent’s gross estate at a value less than its fair market value, thus substantially reducing a decedent’s federal estate tax liability. One test under the original version of § 2032A was that the property must have been actually operated as a farm, with “material participation” by the decedent. Property rented to another person, with the decedent receiving the earnings as investment income, was not eligible for the special use valuation.

When decedent here died on September 5, 1979, with his estate tax return filed on June 2, 1980, the executor was unable to elect special use valuation because the real estate was not being operated by the decedent, but had been leased to decedent’s son. Accordingly, the estate tax return originally filed stated “no” in response to the question, “Do you elect the special valuation ...?”. Decedent’s estate paid a total of $19,927.18 in estate taxes.

Subsequently, however, Congress enacted, as a part of the Economic Recovery Tax Act of 1981 (hereinafter ERTA), a variety of changes in the special use valuation rules under § 2032A. Among these amendments was one that, had it been in effect at the time decedent’s original return was filed, would have qualified decedent’s estate for special use valuation. Section 425(b)(1) of ERTA. This particular amendment, as well as several others, was made at least partially retroactive under § 421(k)(5), and it was on the basis of § 421(k)(5) that decedent’s estate filed the necessary forms on February 8, 1982 to attempt to qualify for the special use valuation. Had decedent’s claim been allowed, decedent’s estate tax would have been reduced to zero, and the estate would have been entitled to a refund of the $19,927.18 previously paid. Defendant denied the claim, and this action seeking the refund was timely commenced in this Court.

DISCUSSION

As both sides of this action agree, the interpretation of § 421(k)(5) of ERTA, which is necessary to the resolution of this case, is not a simple matter, and is done in the absence of case law. The text of § 421(k) provides:

ECONOMIC RECOVERY TAX ACT OF 1981, SECTION 421(k) EFFECTIVE DATES.—

(1) In general.—Except as otherwise provided in this subsection, the amendments made by this section shall apply with respect to the estates of decedents dying after December 31, 1981.
(2) Increase in limitation.—The amendment made by subsection (a) shall apply with respect to the estates of decedents dying after December 31, 1980.
(3) Subsection (I).—The amendments made by subsection (d) shall apply with respect to the estates of decedents dying after December 31, 1981.
(4) Subsection (e).—The amendments made by subsection (e) shall apply with respect to involuntary conversions after December 31, 1981.
(5) Certain amendments made retroactive to 1976.—
(A) In general.—The amendments made by subsections (b)(1), (c)(2), (j)(l), and (j)(2) shall apply with respect to the estates of decedents dying after December 31, 1976.
(B) Timely election required.—Sub-paragraph (A) shall only apply in the case of an estate if a timely election under section 2032A was made with respect to such estate. If the time for making an election under section 2032A with respect to any estate would have otherwise expired after July 28, 1980, the time for making such election shall not expire before the date 6 months after the date of the enactment of this Act.
(C) Reinstatement of elections.—If any election under section 2032A was revoked before the date of the enactment of this Act, such election may be reinstated within 6 months after the date of the enactment of this Act.
(D) Statute of limitations.—If on the date of the enactment of this Act (or at any time within 6 months after such date of enactment) the making of a credit or refund of any overpayment of tax resulting from the amendments described in subparagraph (A) is barred by any law or rule of law, such credit or refund shall nevertheless be made if claim therefore is made before the date 6 months after such date of enactment.

Plaintiffs argue that § 421(k)(5)(A) clearly allows them to take the special use valuation, since it makes subsection (b)(1), broadening the “material participation” definition and qualifying decedent under § 2032A, retroactive to estates of decedents dying after December 31, 1976. The decedent here, of course, died on September 5, 1979, and if § 421(k)(5)(A) was read standing alone, plaintiffs would be entitled to the refund claimed.

The essence of defendant’s counter argument, however, stems from the language of § 421(k)(5)(B), which states that § 421(k)(5)(A) is applicable only “if a timely election under section 2032A was made to such an estate.” Defendant points out that decedent’s estate tax return did not elect special use valuation. The extension of time for making an election provided by § 421(k)(5)(B), defendant further contends, is limited by the terms of § 421(k)(5)(B) to those estates whose time for “making an election under section 2032A ... would have otherwise expired after July 28,1980.” (Emphasis supplied). Because the last date on which decedent’s estate tax return could be filed was June 5, 1980, nine months after decedent’s date of death, 26 U.S.C. § 2032A(d)(l), defendant argues that plaintiffs are not entitled to any extension of time to make the election, and are bound by the “no” box checked on the original return.

Plaintiffs’ not unpersuasive response is that, given the law as it stood when the estate tax return was filed in June, 1980, it would have been impossible to lawfully elect the special use valuation. Under defendant’s interpretation of § 421(k)(5)(B), plaintiffs could get the valuation now only if, in effect, they had been able to divine that what had been illegal in 1980 would be made legal in 1981. Such an absurd result, plaintiffs contend, robs § 421(k)(5)(A) of any meaning, and to avoid this result, this Court must allow plaintiffs to make the election.

If § 421(k)(5)(A) applied to only the set of circumstances present in this case, the Court would be inclined to agree with plaintiffs’ position. As the full text of the statute cited supra, however, indicates, § 421(b)(1) is not the only provision made retroactive; § (c)(2) (property passing to discretionary trusts made eligible), (j)(l) (property purchased from estate by qualified heir made eligible), and (j)(2) (two-year grace period during which failure to make qualified use of property will not result in recapture tax) are all made retroactive. It is clear that at least some of these changes address situations in which the special use valuation would necessarily have been timely elected. This is particularly true of the change made by § 421(j)(2). Obviously, the new two-year grace period could only be available in situations in which the estate had elected special use valuation; if such valuation had not been elected there would be no need for any grace period during which the property was not being used in accordance with the requirements placed upon it by reason of a special use election.

From this perspective, it was not absurd to draft the statutes in question to impose the requirement that an estate have already elected special use valuation to be eligible for some of the retroactive changes under ERTA. Further, it was not entirely unreasonable, given an undoubted potential for claimed refunds and the resulting drain on the fisc, for Congress to limit the ability to change the original return and to make a new election to those estates whose return was due after a certain date, in this case July 28, 1980. While the rather ill-chosen method of drafting this statute has produced the unfortunate result, in this case, of depriving plaintiffs of a substantial benefit to which they would have been entitled had the decedent died seven weeks later, this is the language Congress has chosen, and this Court is powerless to change it. Judgment must accordingly be entered for defendant.

This opinion constitutes the Court’s findings of fact and conclusions of law.

      . Plaintiffs also argue that their authorization to seek this refund can be found in § 421(k)(5)(D), which states that "if ... the making of a ... refund of any overpayment of tax resulting from the amendments described in subparagraph (A) [including § 421(b)(1) ] is barred by any law or rule of law, such ... refund shall nevertheless be made if claim therefor is made before February 17, 1982.” This court must agree with defendant, however, that any claim for refund under § 421(k)(5)(A) that might arise must be construed in light of the explicit limitations imposed on § 421(k)(5)(A) by § 421(k)(5)(B), including the requirement that the special use valuation has been timely made, and that § 421(k)(5)(D) does not override these limitations.


author: TOM S. LEE, District Judge.

text:
    Bertha SMITH, Plaintiff, v. FRIENDS OF CHILDREN OF MISSISSIPPI, INC., Defendant.
    Civ. A. No. E84-0147(L).
    United States District Court, S.D. Mississippi, E.D.
    May 31, 1985.

      Louie M. Bishop, Quitman, Miss., for plaintiff.
    Fred L. Banks, Jr., Jackson, Miss., for defendant.
   MEMORANDUM OPINION

TOM S. LEE, District Judge.

This cause is before the court on the defendant’s motion for reconsideration of order overruling motion for summary judgment, and the court, having considered the motion with additional submissions, is of the opinion that the defendant’s motion for summary judgment should be granted.

The plaintiff was employed in 1983 as a teacher’s aide by the defendant, Friends of Children of Mississippi, Inc. (FCM). Her duties required her to serve as a bus monitor on alternate weeks for thirteen hours and forty-five minutes over her paid work time for ten weeks. Plaintiff was paid at the rate of $4.03 per hour for seventy hours every two weeks, although she worked thirty-five hours one week and approximately 48.75 hours in the succeeding week while performing her bus monitoring duties. She claims a right for payment of actual regular and overtime compensation allegedly owed for the ten week period plus reasonable attorney’s fees under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. The basis of the plaintiff’s claim is that, during the alternate weeks in which she worked fourteen hours and forty-five minutes overtime, she should have been paid her regular wage of $4.03 per hour for forty hours and overtime computed at time and one-half for all hours in excess of forty hours in accordance with the applicable provisions of the FLSA, 29 U.S.C. §§ 206, 207.

FCM is a non-profit corporation operating a Headstart program funded by the Department of Health and Human Services. Headstart programs were originally funded by the Office of Equal Opportunity under the Economic Opportunity Act of 1964, 42 U.S.C. §§ 2701 et seq. The section of the Economic Opportunity Act on which the defendant relies, 42 U.S.C. § 2951(a), was subsequently repealed but reenacted in nearly identical language at 42 U.S.C. § 9848, Subchapter II of Chapter 105, Community Services Programs, 42 U.S.C. §§ 9801 et seq. 42 U.S.C. § 9848 provides:

The Secretary shall take such action as may be necessary to assure that persons employed in carrying out programs financed under this subchapter shall not receive compensation at a rate which is (1) in excess of the average rate of compensation paid in the area where the program is carried out to a substantial number of the persons providing substantially comparable services, or in excess of the average rate of compensation paid to a substantial number of the persons providing substantially comparable services in the area of the person’s immediately preceding employment, whichever is higher; or (2) less than the minimum wage rate prescribed in section 206(a)(1) of Title 29.

Id. In 1972, the Fifth Circuit, construing 42 U.S.C. § 2951(a), held that Job Corps employees were not covered by the overtime provisions of the FLSA, 29 U.S.C. §§ 201 et seq., since the provisions of that Act and the Economic Opportunity Act, which governs the Job Corps program, were incompatible. The Fifth Circuit stated:

We are convinced that in the case of Job Corps advisers there are instances ‘where compliance with one Act makes it impossible to comply with the other.’ That impossibility stems from the fact that EOA 610-l(a)(l) [or 42 U.S.C. § 2951(a) ] sets a maximum ‘rate of compensation’ or salary at a level equal only to that prevailing in the area for similar work or equal to that prevailing in the area from which the applicant was employed immediately prior to his or her Job Corps service. It is clear from the plaintiff advisers’ request in this case that a strict compliance with Section 7 of the Fair Labor Standards Act (the overtime provisions) would violate our understanding of EOA 610-l(a)(l). Under these circumstances we are compelled to conclude that EOA 610-1 is the sole controlling provision for Job Corps compensatory standards.

Bowman v. Texas Educational Foundation, Inc., 454 F.2d 1097, 1102 (5th Cir. 1972). As stated previously, the statute in question in this case, 42 U.S.C. § 9848, is nearly identical to 42 U.S.C. § 2951(a), and both the Job Corps Program and Project Headstart were governed by the Economic Opportunity Act.

The plaintiff argues that the Bowman decision is no longer controlling because of the enactment of amendments to the FLSA subsequent to the 1972 Fifth Circuit decision. Those amendments expressly designate that a "preschool” is an "enterprise” subject to the provisions of the FLSA. 29 U.S.C. § 203(r)(l); 29 U.S.C. § 203(s)(4). The plaintiff cites a Tenth Circuit opinion, United States Department of Labor v. Elledge, 614 F.2d 247 (10th Cir.1980), in further support of her contention that a Headstart program is a “preschool” covered by the FLSA. In that case, the Tenth Circuit held that a center which accepted children ranging in age from infancy to twelve years; contained rooms equipped with cribs, cots, television, toys, books and games; designated time periods for breakfast, lunch, naps and outdoor play; and transported the children to school from the center to their school and back to the center was a “preschool” such that the provisions of the FLSA applied. Id. at 251. In reaching the decision, the court noted an administrative opinion of the Department of Labor defining a “preschool” as:

any establishment or institution which accepts for enrollment children of preschool age for purposes of providing custodial, educational, or developmental services designed to prepare the children for school in the years before they enter the elementary school grades. This includes day care centers, nursery schools, kindergartens, head start programs and any similar facility primarily engaged in the care and protection of preschool children, (emphasis added).

Id. at 250.'

The Department of Labor urged the adoption of this opinion in a lawsuit against two corporations engaged in providing day care services for infants of working mothers, charging the corporations with violations of the minimum wage and overtime provisions of the FLSA. Dunlop v. Alhambra Nursery & Accred. Kindergarten, 409 F.Supp. 309 (D.Ariz.1976), aff’d sub nom., Marshall v. Rosemont, Inc., 584 F.2d 319 (9th Cir.1978). The sole issue before the district court was whether the centers operated by the corporations were “preschools" under the FLSA. The court noted that, while the Department of Labor’s opinion should be accorded substantial deference in certain circumstances, where the Department’s views were not supported by a record before the committees of Congress which held hearings on the amendment or in the final House and Senate reports, resort to the statute itself was proper. 409 F.Supp. at 311. The court then quoted from the House Report amending the Act as follows:

Section 1009 amends section 3(r)(l) of the Fair Labor Standards Act of 1938, relating to the definition of the term ‘enterprise’ for the purposes of the Act, by adding ‘preschool’ to the existing listing of ‘an elementary or secondary school’ as types of activities performed for business purposes.

409 F.Supp. at 311-12. An ‘elementary school’, as defined by the Act, is “a day or residential school which provides elementary education, as determined under State law.” 29 U.S.C. § 203(v). A “secondary school” is defined as “a day or residential school which provides secondary education, as determined under State law.” 29 U.S.C. § 203(w). As the district court stated, the Act failed to provide a separate definition of the term “preschool”. Interpreting the definitions of “elementary school” and “secondary school”, the district court concluded that a “preschool”, like a “secondary” or “elementary school”, must be an institution certified or recognized under state law. 409 F.Supp. at 312. Since the nursery and kindergarten centers operated by the defendant corporations were not shown to be certified under state law, the court concluded that they were not “preschools” according to the FLSA and, consequently, employees of the corporations were not covered by the minimum wage and overtime provisions of the FLSA. Id. On appeal, the Ninth Circuit affirmed, rejecting the Department of Labor’s contention that a “preschool” need not be certified or recognized under state law. 584 F.2d at 321.

Since the Headstart program is not certified or regulated by the Mississippi Department of Education, the court concludes that the defendant is not operating a “preschool” within the provisions of the FLSA and that the plaintiff is not entitled to the requested relief. The court is further of the opinion that the terminology used in 42 U.S.C. § 9848 is incompatible with the provisions of the FLSA in accordance with Bowman v. Texas Educational Foundation, Inc., 454 F.2d 1097. As the Fifth Circuit reasoned in that case:

Congress took some pain to include Section 6 of the Fair Labor Standards Act specifically within the provision of the minimum wage rate acceptable under the Economic Opportunity Act, but did not include specifically Section 7 of the Fair Labor Standards Act within the provisions regarding maximum rates of compensation under the Economic Opportunity Act. It appears to this court that if Congress had intended the maximum payments prescribed by 610-l(a)(l) to be hourly wage rates as set forth in Section 7 of the Fair Labor Standards Act, it would have been a rather simple matter and an obvious parallelism to set that fact out in haec verba in the statute, as was specifically done with regard to the minimum in 610-l(a)(2). (emphasis original)

Id. at 1100-01. Since 42 U.S.C. § 9848 tracks the language of the Economic Opportunity Act of 1964 § 610-l(a), as amended at 42 U.S.C. § 2951(a), construed in Bowman, the court concludes that the Fifth Circuit Bowman decision is controlling even though 42 U.S.C. § 2951(a) has been repealed. 42 U.S.C. § 9848 was enacted in 1981, nine years after the rendition of the Bowman decision. If Congress had intended that Headstart programs be required to provide overtime compensation, it seems that Congress would not have reenacted 42 U.S.C. § 9848 with terminology nearly identical to that used in 42 U.S.C. § 2951(a).

For the reasons stated above, the court concludes that the defendant’s motion for summary judgment should be granted. A separate judgment shall be submitted in accordance with the local rules.

      . As stated previously, the plaintiff seeks not only overtime compensation but also payment at $4.03 per hour for hours she worked up to forty hours per week while performing her bus monitoring duties. The court concludes that she is entitled only to compensation for all hours worked at a rate not less than the minimum wage rate of $3.35 per hour up to that amount received by persons providing "substantially comparable services". 42 U.S.C. § 9848. The evidence before the court is that all employees of the defendant were paid $4.03 per hour for seventy hours every two weeks, satisfying the "substantially comparable services” limitation. The plaintiff received, at this pay rate, $282.10 every two weeks. This amount slightly exceeds the $280.56 required by 42 U.S.C. § 9848. Therefore, the plaintiff is not entitled to compensation for regular-time hours worked while performing her bus monitoring duties in excess of thirty-five hours.