author: BIGGERS, District Judge.

text:
    Wendell WASHINGTON, Plaintiff, v. OTASCO, INC., a Nevada Corporation, and the Murray Ohio Manufacturing Company, an Ohio Corporation, Defendants.
    No. DC84-25-NB-O.
    United States District Court, N.D. Mississippi, Delta Division.
    March 11, 1985.

      John H. Cocke, Clarksdale, Miss., for plaintiff.
    Robert L. Wells, Jackson, Miss., for defendants.
   MEMORANDUM OPINION

BIGGERS, District Judge.

This cause came before the court on the defendants’ motion for partial summary judgment regarding the plaintiff’s cause of action and claim for attorney fees under the Magnuson-Moss Warranty Act. Having considered the pleadings, briefs, and affidavits submitted by the parties, and being fully advised in the premises, the court is now in a position to rule on this motion.

This cause arose due to personal injuries suffered by the plaintiff Wendell Washington on a ten-speed bicycle manufactured by the defendant The Murray Ohio Manufacturing Company (Murray) and purchased by the plaintiff from the defendant Otasco, Inc. (Otasco). These injuries allegedly resulted due to a defective gear mechanism which locked and caused the plaintiff to be thrown from the bicycle. The plaintiff asserts product liability claims against the defendants Murray and Otasco based on breach of warranty, strict liability in tort, negligent manufacture and testing of the bicycle, and the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312 (1982) (hereinafter “the Act”). Federal jurisdiction is predicated both on complete diversity among the parties and on 15 U.S.C. § 2310(d)(1)(B) of the Act, which provides an independent basis for federal jurisdiction under certain circumstances.

The defendants contend that the Act does not provide a federal cause of action for plaintiffs with personal injury claims; thus, that the plaintiff herein has no cause of action under the Act. Similarly, the defendants contend that the plaintiff is not entitled to attorney fees under the Act. Alternatively, the defendants argue that the plaintiff failed to satisfy 15 U.S.C. § 2310(e), which requires as a condition precedent to recovery under the Act that a consumer give the manufacturer a reasonable opportunity to cure the defect. Thus, the defendants again assert that the plaintiff may not recover damages or attorney fees under the Act.

APPLICATION OF THE MAGNUSON-MOSS WARRANTY ACT TO PERSONAL INJURY ACTIONS

Courts have uniformly held that the Act does not create a federal cause of action for personal injury claims which are otherwise state law claims for breach of warranty. See Bush v. American Motors Sales Corp., 575 F.Supp. 1581, 1582 (D.Col. 1984); Gorman v. Saf-T-Mate, Inc., 513 F.Supp. 1028, 1029-36 (N.D.Ind.1981). Instead, personal injuries arising out of the sale of allegedly defective products generally remain a matter of state law. Bush, 575 F.Supp. at 1582; see also Walsh v. Ford Motor Co., 588 F.Supp. 1513, 1527 (D.D.C.1984). The court has studied the case law in this area and is convinced that the Act generally should not apply to personal injury actions.

The Act clearly is intended to eliminate deceptive warranty practices. In fulfilling this purpose, the Act provides a statutory cause of action when a product of relatively small value fails to conform with its warranty. Furthermore, the Act protects against misleading language in warranties and to some extent regulates attempts to limit liability for personal injuries. Since claims brought under the Act are generally of small value, the Act guards against prohibitive legal expense by allowing a successful plaintiff to recover attorney fees.

15 U.S.C. § 2310(d)(1), which creates the private cause of action, provides in part:

[A] consumer who is damaged by the failure of a supplier, warranter, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty,' or service contract, may bring suit for damages and other legal or equitable relief____

Id. Despite the Congressional purpose of the Act, § 2310(d)(1) does not by its terms exclude actions for personal injury.

However, § 2311(b)(2) addresses the limited effect of the Act upon actions for personal, injury:

Nothing in this chapter (other than sections 2308 and‘2304(a)(2) and (4) of this title) shall (A) affect the liability of, or impose liability on, any person for personal injury, or (B) supersede any provision of State law regarding consequential damages for injury to the person or other injury.

Id. Thus, with three exceptions which restrict a warranter’s power to disclaim or modify implied warranties, including limitations on- personal injury, the Act specifically has no effect upon personal injury liability. Conversely, § 2311(b)(2) mandates that the remaining provisions of the Act neither affect nor limit a warranter’s liability for-personal injury.

The construction argued by the plaintiff could dramatically affect the liability for personal injury in many cases. For example, a personal injury suit could be brought in federal court rather than state court solely on the basis of the Act under the interpretation urged by the plaintiff. In the absence of a clear Congressional direction, this court declines to accept a statutory construction which so dramatically expands federal jurisdiction. Cf. United States v. Bass, 404 U.S. 336, 349-50, 92 S.Ct. 515, 523, 30 L.Ed.2d 488, 497-98 (1971) (no. alteration of state-federal relationship absent clear Congressional statement of intent); Apex Hosiery Co. v. Leader, 310 U.S. 469, 513, 60 S.Ct. 982, 1002, 84 L.Ed. 1311, 1334 (1940) (same).

The defendants alternatively assert that the plaintiff’s cause of action under the Act is barred due to the “right to cure” provision contained in § 2310(e), which provides in part:

No action ... [with inapplicable exceptions] may be brought under [§ 2310(d) ] ... for failure to comply with any obligation under any written or implied warranty or service contract ... unless the person obligated under the warranty or service contract is afforded a reasonable opportunity to cure such failure .to comply....

Id. Congressional reports and case law clearly demonstrate that this provision establishes a mandatory condition precedent to an action under the Act. Inasmuch as the plaintiff in deposition admitted his failure to give the warranter the opportunity to cure the defect, i.e., to replace or repair the bicycle or to refund the plaintiff’s purchase price, his suit under the Act is also barred in any event due to this failure.

The condition precedent in § 2310(e) clearly demonstrates the propriety of the court’s determination that the Act generally does not apply to personal injury actions. However, the “right to cure” requirement serves no purpose in a personal injury context, inasmuch as a plaintiff has no knowledge of the defect until the injury occurred, and replacement or repair of the product, would not be an adequate remedy for a personal injury plaintiff. The absurdity of the “right to cure” requirement in a personal injury context, contrasted with the reasonableness of such requirement in a breach of warranty situation, underscores that the Act should not apply to personal injury actions.

For the foregoing reasons, this court is persuaded that the plaintiff herein cannot prevail under the Magnuson-Moss Warranty Act. See generally Gorman v. Saf-T-Mate, Inc., 513 F.Supp. 1028 (N.D.Ind.1981) (discussion of general inapplicability of the Act to personal injury actions). Inasmuch as the plaintiff cannot prevail under the Act, he may not recover attorney fees under corresponding provisions of the Act. Accordingly, the defendants’ motion for partial summary judgment as to the plaintiff’s cause of action under the Magnuson-Moss Warranty Act and for attorney fees under such Act, should be GRANTED.

Let an order issue accordingly.


source: Caselaw Access Project

author: COHILL, District Judge.

license: Public Domain

text:
    Arthur H. SLENKAMP, Plaintiff, v. BOROUGH OF BRENTWOOD, Defendant.
    Civ. A. No. 84-65.
    United States District Court, W.D. Pennsylvania.
    March 11, 1985.

      Joseph S. Hornack, Abes & Begler, Pittsburgh, Pa., for plaintiff.
    Joseph J. Bosick, Meyer, Darragh, Buckler, Bebenek & Eek, Pittsburgh, Pa., for defendant.
   OPINION

COHILL, District Judge.

The Complaint in this case, filed by Plaintiff against the Borough of Brentwood (the “Borough”), a suburb of Pittsburgh, alleges violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”) in connection with a Borough ordinance setting a mandatory retirement age of 65 for its police officers. Defendant has moved for summary judgment on three different grounds: 1) statute of limitations; 2) failure to timely file with the Equal Employment Opportunity Commission (“EEOC”); and 3) a Bona Fide Occupational Qualification (“BFOQ”) defense.

FACTS

Plaintiff was the Chief of Police of the Borough from 1958 until May 31, 1981, the month he reached the mandatory retirement age of 65. Plaintiff alleges that he was told at a Police Committee meeting of the Borough Council in March 1981 of his required retirement at the end of May. The Committee, in response to Plaintiff’s oral request for reconsideration, allegedly reviewed the request, but issued an official denial at an April 21, 1981 public meeting of the Borough Council.

Plaintiff did not file a charge of age discrimination with the Pennsylvania Human Relations Commission. On March 2, 1982, Plaintiff filed a charge with the Equal Employment Opportunity Commission. The Complaint in this case was filed on September 12, 1984.

Summary Judgment

Rule 56 provides, in part, that summary judgment shall be granted only

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c).

When considering a motion for summary judgment, the court must determine if there are material facts in dispute and must view the facts in the light most favorable to the nonmoving party. Goclowski v. Penn Central Transp. Co., 571 F.2d 747, 751 (3d Cir.1977). The moving party has the burden of establishing that no genuine issue of fact exists. Butz v. Hertz Corp., 554 F.Supp. 1178, 1181 (W.D.Pa.1983).

A. Statute of Limitations

A suit alleging a nonwillful violation of the ADEA must be brought “within two years after the cause of action has accrued.” 29 U.S.C. § 626(e)(1). The statute of limitations for willful claims is three years. Id. The ADEA employs the term “willful” in two contexts. One, the statute of limitations provision, extends the limitations period to three years when a violation is “willful.” See 29 U.S.C. § 626(e)(1) (incorporating 29 U.S.C. § 255(a) of the Portal-to-Portal Act). The second provides that liquidated damages shall be payable only in case of “willful” violations. 29 U.S.C. § 626(b). While Congress provided that the rights created by the ADEA were to be enforced in accordance with the powers, remedies and procedures of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219 (1976), it declined to adopt the mandatory liquidated damages portion of section 16(b) of the FLSA. See TWA v. Thurston, — U.S. —, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985).

Defendant argues that summary judgment is appropriate because the action was filed more than two years after the alleged discriminatory act and because the violation alleged is not “willful” so as to extend the statute of limitations to three years. In so arguing, Defendant urges us to adopt a different standard for “willful” when considering statute of limitations than for liquidated damages issues.

We believe two inquiries are necessary to decide this issue: 1) the appropriate standard for “willfulness” under section 626(e)(1); and 2) whether summary judgment is appropriate under that standard and the facts of this case.

Defendant urges us to consider cases construing the statute of limitations contained in 29 U.S.C. § 255(a) and argues that the appropriate standard is “[whether] the employer knew the [ADEA] was in the picture.” See Defendant’s Brief, at 4 (citing Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139 (5th Cir.1971), cert, denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 219 (1972)). In support of its motion, Defendant has submitted identical affidavits of two Borough Council members, James Joyce and Earl Swanson. These affidavits stated that it never occurred to either council member that the mandatory retirement age of 65 might violate any laws prohibiting age discrimination, and that it never occurred to the Borough Council that the ADEA might be implicated as a result of the retirement policy. See Defendant’s Memorandum, Ex. 2, 3. Defendant argues that summary judgment is appropriate because under Defendant’s proposed standard, the Borough had no knowledge that the ADEA was “in the picture.” Id. at 4.

We have found no cases which discuss the standard for “willfulness” specifically as it relates to § 626(e)(1) of the ADEA. The more hotly-debated issue in ADEA cases in recent years has been the definition of “willfulness” as used in § 7(b) of the Act, providing for liquidated damages. 29 U.S.C. § 626(b). The Supreme Court recently decided this issue, holding that an employer acts “willfully” so as to be subject to liquidated damages under § 7(b), if it “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” TWA v. Thurston, — U.S. at —, 105 S.Ct. at 624, 83 L.Ed.2d at 536. In so holding, the Court rejected a more expansive “in the picture” standard urged by Respondents in reliance on cases construing § 255(a). Id. at —, 105 S.Ct. at 625, 83 L.Ed.2d at 537. Thus, Thurston also overrules the even more expansive standard of the Third Circuit, which held that an employer acts “willfully” for purposes of § 7(b) if the violation was “intentional, knowing or voluntary as distinguished from accidental and it is used to characterize conduct marked by careless disregard whether or not one has the right to act....” Wehr v. Burroughs, 619 F.2d 276, 283 (3d Cir.1980). See also Avtex Fibers, Inc. v. McDowell, 740 F.2d 214 (3d Cir.1984), cert. granted, vacated and remanded for consideration in light of TWA v. Thurston, — U.S. —, 105 S.Ct. 1159, 84 L.Ed.2d 312 (1985).

The Supreme Court stated, in Thurston, that “[e]ven if the ‘in the picture’ standard were appropriate for the statute of limitations, the same standard should not govern a provision dealing with liquidated damages.” — U.S. at —, 105 S.Ct. at 625, 83 L.Ed.2d at 537. The Court then noted that the Courts of Appeals are divided over whether Congress intended the willfulness standard to be identical for determining liquidated damages and for purposes of the limitations period. Id. n. 21 (comparing Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1113 (4th Cir.), cert. denied, 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158 (1981) (standards identical) with Kelly v. American Standard, Inc., 640 F.2d 974, 979 (9th Cir.1981) (standards different)).

The position of the Third Circuit is unclear on this point. As the court noted in Kneisley v. Hercules, Inc., 577 F.Supp. 726 (D.Del.1983), “[t]he Wehr court stated that its definition of willfulness under the ADEA’s liquidated damage provision was identical to the statute of limitations’ definition in section 255, and its holding was limited to ADEA’s liquidated damages provision.” Id. at 737. See also id. at 738 (speculating as to whether Third Circuit would adopt uniform or different tests with regard to statute of limitations section and liquidated damage section). We do not believe, after Thurston, that Wehr is controlling on the question we now consider.

We hold, for the following reasons, that the two standards should be uniform and, thus, apply to § 626(e)(1) the standard set forth in Thurston for § 7(b) of the ADEA. Second, we hold that the determination of “willfulness” is a matter of fact, and, on the record before us, inappropriate for summary judgment.

B. A Uniform Standard for “Willfulness”

In considering the standard for “willfulness” under § 7(b) of the ADEA, courts have relied, in part, on cases construing the FLSA statute of limitations provision. See, e.g., Wehr v. Burroughs, 619 F.2d 276, 282-83 (3d Cir.1980) (citing Hodgson v. Hyatt, 318 F.Supp. 390 (N.D.Fla.1970) (defining “willful” for FLSA statute of limitations)). In Wehr, the Third Circuit adopted the FLSA statute of limitations definition of “willful” as “knowing and voluntary,” and applied it to § 7(b) of the ADEA. See Wehr, 619 F.2d at 283. Other courts also looked to the FLSA, but differed as to the definition of “willful.” See, e.g., Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1113-14 (4th Cir.) (instruction governed by experience under FLSA appropriate for ADEA, standard is whether employer knows or has reason to know that conduct is governed by [ADEA]), cert. denied, 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158 (1981); EEOC v. Prudential Savings & Loan Ass’n, 741 F.2d 1225, 1233-34 (10th Cir.1984) (adopting FLSA definition of “willfulness” for § 7(b) of ADEA; standard is whether employer was, or should have been, cognizant of appreciable possibility that employees were covered by statutory provisions); cert, granted, vacated and remanded in light of TWA v. Thurston, — U.S. —, 105 S.Ct. 896, 83 L.Ed.2d 913 (1985). But see Kelly v. American Standard, Inc., 640 F.2d 974, 979-80 (9th Cir.1981) (distinguishing FLSA statute of limitations cases which require knowledge of implications under the FLSA and adopting Third Circuit standard of “knowing and voluntary” for § 7(b)). Cf. TWA v. Thurston, — U.S. at —, 105 S.Ct. at 624, 83 L.Ed.2d at 536 (noting and adopting standard of cases imposing criminal liability for “willful” violation under § 16(a) of FLSA; standard is whether employer wholly disregards the law without making any reasonable effort to determine whether plan would constitute violation of law) (citing Nabob Oil Co. v. United States, 190 F.2d 478, 479 (10th Cir.), cert. denied, 342 U.S. 876, 72 S.Ct. 167, 96 L.Ed. 658 (1951); Darby v. United States, 132 F.2d 928 (5th Cir.1943)).

None of the Courts of Appeals, however, suggested that the two provisions of the ADEA were subject to different definitions of “willful.” Inasmuch as Kelly v. American Standard, 640 F.2d 974 (9th Cir.1981) suggests such a conclusion, we respectfully reject it.

“Willful” is not defined in the ADEA. We believe, however, that its use in the damages and statute of limitations provisions should be read in pari materia. To hold otherwise would, we believe, create a practical quagmire in ADEA cases. To accept Defendant’s argument that an “in the picture” standard applies to § 626(e)(1) might require a judge to instruct a jury as to two different meanings of “willful” within the same statute; the possibility also arises that a jury might find a violation to be willful for statute of limitations purposes but not for liquidated damages purposes. The dual standard might thus allow a suit filed more than two years after the alleged act of discriminátion to proceed because the employer knew the act was “in the picture” but preclude relief because the violation was not willful under the Thurston standard. We doubt that Congress intended such a result. The statute of limitations is extended for “willful” violations, and liquidated damages are awarded for such violations.

Apart from the practical problems raised, we agree with the Supreme Court’s observation in Thurston, in reference to the “in the picture” standard that, “[a]s employees are required to post ADEA notices, it would be virtually impossible for an employer to show he was unaware of the Act and its potential applicability.” Thurston, — U.S. at —, 105 S.Ct. at 625, 83 L.Ed.2d at 537. Cf. Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1191 (6th Cir.1983) (“[s]ubjecting the defendant to excess damages permitted only in instances of a specific finding of ‘willful’ discrimination upon charge that jury should determine if the employer [knew] the Act was in the picture, is at best vague and of little real value to the factfinder, and at worst destructive of Congress’ specific choice of a legal term of art with certain precise and well-understood consequences.” (emphasis in original). For the same reasons, we believe that the “in the picture” standard is too vague a basis on which to extend liability.

We hold that “willful” as used in § 626(e)(1) and § 626(b) are both subject to the definition set out in Thurston; the effect of a finding of “willfulness” will subject the defendant to an additional year of potential liability and liquidated damages. See generally Donovan v. M & M Wrecker Service, Inc., 733 F.2d 83, 84-86 (10th Cir.1984); Donovan v. Simmons Petroleum Corp., 725 F.2d 83, 84 (10th Cir.1983); EEOC v. Kansas Medical Center, 705 F.2d 1270, 1275 (10th Cir.1983) (FLSA cases).

Second, we do not believe that Defendant’s affidavits from the two commissioners are a sufficient basis on which to grant summary judgment. Under the Thurston standard a violation may be “willful” if the Borough showed “reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” 83 L.Ed.2d at 536. Such a finding, under our holding in this case, would make the suit a timely one.

In this case, Plaintiff stated in his deposition that no signs were posted informing employees of their rights under the ADEA until after May 31, 1981. Plaintiff also stated that he noticed that a sign was posted after that date. Deposition of August Slenkamp, at 57-58. Counsel for Defendant stated at oral argument that the Court could assume, for purposes of this motion, that no sign was posted. Tr. at —. We believe these facts raise a material issue as to recklessness. See Crosland v. Charlotte Eye, Ear & Throat Hospital, 686 F.2d 208, 217 (4th Cir.1982) (question of what constitutes actual or constructive knowledge that conduct is “governed by Act” necessarily open to interpretation depending on circumstances); Marshall v. American Motors Corp., 475 F.Supp. 875, 883 (E.D.Mich.1979) (willfulness is an issue of fact not appropriately decided on motion for summary judgment).

C. Equitable Tolling

A charge of discrimination must be filed with the EEOC 1) within 180 days after the alleged unlawful practice occurred; or 2) in a case to which § 633(b) applies, within 300 days after the alleged unlawful practice occurred. 29 U.S.C. § 626(d). Plaintiff concedes that the 300-day notice period prescribed by § 626(d)(2) does not apply since Mr. Slenkamp did not institute proceedings under state law, nor could he have done so since the Pennsylvania Human Relations Act, at the time, only protected employees from age discrimination up to and including the age of 62. See Amendment to Pennsylvania Human Relations Act, effective Dec. 15,1982, P.L. 1267, No. 288 § 1, codified at 43 Pa.Stat.Ann. § 954(h) (Purdon 1982) (extending protection limit from age 62 to age 70).

We must then decide 1) when the unlawful employment practice occurred; 2) whether Plaintiff filed his charge within 180 days of the alleged practice; and 3) if not, whether Plaintiffs action should be allowed to proceed under the doctrine of equitable tolling.

We hold that the alleged unlawful employment practice occurred at the public meeting of the Borough Council on April 21, 1981, when Plaintiff was informed that he would have to retire at the end of May 1981, the month he turned 65. See Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1980) (per curiam); Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1978). Ricks and Chardon have been held applicable to cases brought under the ADEA. EEOC v. Home Ins. Co., 553 F.Supp. 704, 710 (S.D.N.Y.1982) (citing cases). Since the case was filed with the EEOC on March 2, 1982, it is clearly barred by the 180-day statute of limitations, absent equitable considerations.

The 180 and 300-day limitations periods for filing with the EEOC have been held not to be jurisdictional, and thus subject to equitable tolling. Bonham v. Dresser Indus., 569 F.2d 187, 193 (3d Cir.1977). The burden is on the Plaintiff to establish that the statute has been tolled. Butz v. Hertz, 554 F.Supp. 1178, 1181 (W.D.Pa. 1983) (citing Swietlowich v. County of Bucks, 610 F.2d 1157 (3d Cir.1979)).

Plaintiff argues that the limitations period should be tolled because 1) Plaintiff was assured by several officers and agents of the Borough, including the Borough Solicitor, at the time of the discharge, that the ordinance was legal and non-discriminatory; and 2) from April 21 to May 31, 1981, the Borough did not have posted, at Plaintiffs place of employment, the ADEA notice required by 29 U.S.C. § 627.

The Court of Appeals for the Third Circuit has stated that equitable tolling may be appropriate where 1) the defendant has actively misled the Plaintiff; 2) the Plaintiff has “in some extraordinary way” been prevented from asserting his rights; or 3) Plaintiff timely asserted his rights in the wrong forum. See Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 751 (3d Cir.1983) (citing School Dist. of Allentown v. Marshall, 657 F.2d 16, 20 (ed Cir.1981)), cert. denied, — U.S. —, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983). More specifically, in Bonham v. Dresser Indus., Inc., the Court of Appeals held that failure to post the required notice will toll the running of the 180-day period, at least until such time as the aggrieved person seeks out an attorney or acquires actual knowledge of his rights under the ADEA. 569 F.2d at 193 (emphasis added).

Plaintiff testified at his deposition, and counsel for Defendant stipulated at oral argument, for purposes of this motion, that there was no poster in Plaintiffs place of employment before May 31, 1981. See Plaintiffs Deposition, at 56-58; Tr. at —. Defendant argues, however, that Plaintiff, as early as March, 1981, consulted with an attorney about a possible age discrimination claim, and was arguably knowledgeable enough to know that he had a potential cause of action. We disagree, under the facts of this case.

Plaintiff inquired of the Borough Solicitor as to the legality of the ordinance. The solicitor affirmatively stated to Plaintiff that the town ordinance was dispositive on the subject. See Plaintiffs Deposition, at 39. Plaintiff then made inquiries of the solicitor for the Western Pennsylvania Police Chiefs and the solicitor of the State of Pennsylvania Police Chiefs as to the legality of his forced retirement. The solicitor of the Western Pennsylvania Chiefs, one Mr. Segal, informed Plaintiff that he had no information other than the fact that the ordinance was binding under Pennsylvania law. Id. at 39-40. Segal also told Plaintiff that, in his opinion, Plaintiff had no case under Pennsylvania law. Id. at 34. The solicitor of the Pennsylvania Chiefs, talking with Plaintiff at a convention, was unable to provide Plaintiff with any information. Id. at 33. After Plaintiff resigned his position as Treasurer of the Allegheny County Police Chiefs, he continued to submit queries to the State Chiefs’ solicitor by way of friends travelling to meetings or conventions. Id. at 34-35. Plaintiff testified that, in March or April of 1981, 7-8 months after he first approached the solicitor for the Western Pennsylvania Chiefs, the solicitor for the State Chiefs wrote to him directing him to the Wage and Hour Commission at the Federal Building. Id. at 33-35. Plaintiff went to the Wage and Hour Commission within three weeks of receiving the information. Id. at 56. Employees of the Wage and Hour Commission directed Plaintiff to the EEOC. Id. at 35. Plaintiff testified that he did not go to the EEOC any sooner because he had no knowledge of any rights except those under state law. Id. at 70.

We believe the circumstances of this case justify equitable tolling of the 180-day period. First, no notice informing employees of their rights under the ADEA was posted. Second, we do not view Plaintiff’s contacts with the solicitors of the Western Pennsylvania or State of Pennsylvania to amount to the kind of consultation with an attorney contemplated by Bonham. Plaintiff never retained either solicitor as his attorney. His questions to them about mandatory retirement ordinances may or may not have elicited the attention a retained lawyer would give to his client’s problems. In sum, we do not find that these contacts were evidence of an attorney-client relationship. See Jacobson v. Pitman-Moore, Inc., 582 F.Supp. 169, 174 (D.Minn.1984). Once Plaintiff was directed to the Wage and Hour Commission, he acted promptly.

Finally, we find the town solicitor’s statement to Plaintiff that the town ordinance was controlling to be an additional factor. A misrepresentation, if proven, will equitably toll the statute of limitations even if not made negligently or fraudulently. See Kamens v. Summit Stainless, Inc., 586 F.Supp. 324, 328 (E.D.Pa.1984) (citing Ott v. Midland Ross Corp., 600 F.2d 24, 31-32 (6th Cir.1979); Restatement of Torts (Second), § 552(c) (1977)).

We find Defendant’s reliance on Kazanzas v. Walt Disney World, 704 F.2d 1527 (11th Cir.), cert. denied, — U.S. —, 104 S.Ct. 425, 78 L.Ed.2d 360 (1983) misplaced. Kazanzas held that where an employer simply failed to post the required notice, equitable modification of the 180-day period did not mandate tolling of the two-year statute of limitations. Id. at 1530. At trial, the jury had returned a special verdict stating that Disney did not willfully discriminate. Thus, the two-year statute of limitations applied. Id. at 1529. In the present case, it remains to be decided whether the two or three-year statute of limitations applies. No question has yet been raised as to the tolling of the two-year period because Plaintiff has alleged a willful violation. If, at trial, a violation is found and the violation is found not willful, it may well be that the two-year statute of limitations would act as a bar to recovery. See, e.g. Herman v. NBC, 744 F.2d 604, 606 (7th Cir.1984) (two-year statute of limitations bar to nonwillful claims); EEOC v. Home Ins. Co., 553 F.Supp. 704, 713-14 (S.D.N.Y.1982) (finding after trial that defendant’s violation willful and not barred by statute of limitations); Kimball v. Goodyear Tire & Rubber Co., 504 F.Supp. 544, 549 (E.D.Tex.1980) (FLSA; three-year statute of limitations held at trial on finding of willfulness).

D. BFOQ

Defendant argues that, notwithstanding any other arguments, it is entitled to summary judgment based on the Bona Fide Occupational Qualification defense (“BFOQ”) provided for by 29 U.S.C. § 623(f). Whether or not Defendant ultimately prevails under this theory, we find this question one to be resolved after a full trial. The courts are not in agreement as to whether mandatory retirement for law enforcement officers is justifiable as a BFOQ in all eases. Compare Mahoney v. Trabucco, 738 F.2d 35 (1st Cir.), cert. denied, — U.S. —, 105 S.Ct. 513, 83 L.Ed.2d 403 (1984), and Johnson v. Mayor and City of Baltimore, 731 F.2d 209 (4th Cir.1984) (BFOQ defense upheld) with Heiar v. Crawford County, Wisconsin, 746 F.2d 1190 (7th Cir.1984) (BFOQ defense not made out). We note that the Supreme Court has granted certiorari to decide whether a city’s mandatory retirement policy for firefighters who had reached 55 is a valid BFOQ in light of the mandatory federal retirement for federal firefighters who reach 55. See Johnson v. Mayor and City of Baltimore, 731 F.2d 209 (4th Cir.1984); EEOC v. Mayor and City of Baltimore, 731 F.2d 209 (4th Cir.1984), cert, granted, — U.S. —, 105 S.Ct. 901, 83 L.Ed.2d 917 (1985). We will, therefore, deny Defendant’s motion for summary judgment as to its BFOQ defense.


author: DAVID S. NELSON, District Judge.

text:
    Thomas MORRELL, Plaintiff, v. FORBES, INC., Defendant.
    Civ. A. No. 83-1099-N.
    United States District Court, D. Massachusetts.
    March 11, 1985.

      Leonard Rose, Falmouth, Mass., for plaintiff.
    John T. Williams, Victor Bass, John T. Harding, Palmer & Dodge, Boston, Mass., for defendant.
   MEMORANDUM AND ORDER

DAVID S. NELSON, District Judge.

In September 1973, a local newspaper photographer took a photograph of the plaintiff, a fisherman by trade, while he was unloading a catch of crabs on the Boston Fish Pier. A few days later, the photograph appeared in the Boston Globe as a human interest item. The plaintiff objected neither to having his picture taken nor to its publication.

Then in April 1982, the defendant Forbes, Inc. published that same photograph in Forbes Magazine to illustrate a short article on the relatively weak presence of organized crime in wholesale fish markets in cities other than New York. The photograph of the plaintiff and the short article accompanied a feature detailing organized crime’s alleged domination of New York City’s Fulton Fish Market. Underneath the photograph appeared the caption “The Boston Fish Pier: smaller fry in a fishy business.” The only other photograph of a recognizable person in the feature article was of alleged “[fjish market mobster Socks Lanza.”

The plaintiff, Thomas Morrell, moves for summary judgment on all counts in this diversity suit, asserting that the publication of his photograph in this manner was clearly defamatory and claiming invasion of privacy under Mass.Gen.Laws Ann. ch. 213, § IB (West 1984), unlawful appropriation of his picture for advertising or commercial purposes, id. § 3A, and intentional infliction of emotional distress. The defendant Forbes, Inc. denies any liability and also moves for summary judgment, claiming that it followed the customary procedures in obtaining the plaintiff’s photograph from a photographic stock agency and that the publication in any event did not defame or otherwise harm him.

The Court, however, does not find either the plaintiff’s or the defendant’s arguments entirely persuasive and disagrees with their respective positions that summary judgment, under Fed.R.Civ.P. 56 is appropriate as to all counts. The Court is of the opinion that there are disputed issues of fact that are both genuine and material, thereby rendering summary judgment at least as to the defamation and invasion of privacy claims inappropriate. See Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976).

In order to prevail on his allegation of defamation, the plaintiff Morrell must show that Forbes, Inc. negligently published untrue statements that discredited him “in the minds of any considerable and respectable segment in the community.” Stone v. Essex County Newspapers, 367 Mass. 849, 853, 330 N.E.2d 161 (1975). Conversely, the defendant Forbes, Inc. is not liable if either it did not act negligently, see id. at 858, 330 N.E.2d 161; Cefalu v. Globe Newspaper Co., 8 Mass.App. 71, 76, 391 N.E.2d 935 (1979), or the publication of the photograph of Morrell could not reasonably be understood to so discredit him, see Tropeano v. Atlantic Monthly, 379 Mass. 745, 751, 400 N.E.2d 847 (1980); Colby Haberdashers v. Bradstreet Co., 267 Mass. 166, 170, 166 N.E. 550 (1929); cf. Clark v. American Broadcasting Cos., 684 F.2d 1208, 1213-14 (6th Cir. 1982).

Under these standards, the photograph of a fisherman unloading a catch of crabs is not in itself defamatory. However, such a photograph taken together with the caption referring to “smaller fry in a fishy business” (emphasis added), and the accompanying text, that appraised the extent of any organized crime influence in wholesale fish markets in cities other than New York, may be defamatory. Although a reasonable person might conclude that the photograph of the plaintiff was merely a stock picture of a fisherman on the Boston Fish Pier, the Court also finds that the context of the photograph was such as to suggest that Morrell, himself, may have been one of the “smaller fry” involved with organized crime. Cf. Clark, 684 F.2d at 1213-14. Especially in the overall context of a feature article on the allegedly extensive involvement of organized crime in New York City’s Fulton Fish Market, the Court is reluctant to find that such publication cannot reasonably be construed to be defamatory in any sense.

Nor is the Court persuaded that Forbes, Inc. was not negligent in so publishing the photograph. Even assuming that the defendant obtained the photograph of Morrell from a stock photographic agency in the usual way, if the publication is ultimately found to be defamatory, then it is possible that a reasonably prudent editor would have realized the “substantial danger to reputation” that the treatment of the photograph would have posed to the plaintiff. Cefalu, 8 Mass.App. at 76, 391 N.E.2d 935 (citing Gertz v. Welch, 418 U.S. 323, 348, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789 (1974)). Therefore, the Court denies both the plaintiff’s and the defendant’s motions for summary judgment on the defamation claim.

The Court likewise denies the motions for summary judgment on the plaintiff’s allegation of invasion of privacy under Mass.Gen.Laws Ann. ch. 214 § IB (West 1984). It would be premature to dismiss this cause of action when Massachusetts courts have not had the opportunity to delineate the elements a plaintiff must prove to prevail under the state’s relatively new privacy statute. Cf. Cefalu, 8 Mass.App. at 77, 391 N.E.2d 935 (1979) (stating only that “[w]hatever conduct may rise to a violation of this statute, the publication of the photograph of a line of people in a government building is not it.”)

As for plaintiff’s claims of unlawful appropriation of his picture for advertising or commercial purposes under Mass. Gen.Laws Ann. ch. 214, § 3A, and intentional infliction of emotional distress, the Court grants summary judgment for the defendant. First, as for the unlawful appropriation allegation, the publication of Morrell’s photograph even without his consent is not appropriation for advertising or commercial purposes. Such publication has been held to be a “legitimate, noncommercial use” only “incidental” to any advertising or trade purposes. Tropeano, 379 Mass, at 751, 400 N.E.2d 847 (1980). Second, the plaintiff on the basis of the facts he himself alleges cannot prove the defendant’s actions amounted to the kind of “extreme and outrageous” conduct “beyond all possible bounds of decency” necessary to prove the intentional infliction of emotional distress. Agis v. Howard Johnson Co., 371 Mass. 140, 145, 355 N.E.2d 315 (1976) (quoting Restatement (Second) of Torts § 46, comment d (1965)).

For the foregoing reasons, the Court hereby DENIES the plaintiff’s motion for summary judgment in its entirety, ALLOWS the defendant’s cross motion for summary judgment insofar as it applies to the plaintiff's unlawful appropriation and intentional infliction of emotional distress claims, and DENIES the remainder of the defendant’s motion.

SO ORDERED.

      . Even if the defendant had been aware of Morrell's activities in the fishermen community before publishing his photograph, the plaintiff is not a public figure within the meaning of Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), for he has neither achieved “such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts" nor “voluntarily inject[ed] himself or [been] drawn into a particular public controversy and thereby becoming] a public figure for a limited range of issues,” id. at 351, 94 S.Ct. at 3013.


author: GLEN M. WILLIAMS, District Judge.

text:
    Lucille HONAKER and Mozella Meade, Plaintiffs, v. Margaret H. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. Nos. 84-0208-A, 84-0291-A.
    United States District Court, W.D. Virginia, Abingdon Division.
    March 12, 1985.
    Larry Grant Browning and Gregory Herrell, Lebanon, Va., for plaintiffs.
    John P. Alderman, U.S. Atty., Roanoke, Va., for defendant.
   MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

These consolidated challenges to final decisions of the Secretary of Health and Human Services (Secretary) present an issue of first impression to the court in light of the recent decision by the Fourth Circuit Court of Appeals in Evans v. Heckler, 734 F.2d 1012 (4th Cir.1984). Lucille Honaker (Civil Action No. 84-0208-A) challenges a final decision of the Secretary denying her application for widow’s disability insurance benefits on account of her husband’s earnings. Mozella Meade (Civil Action No. 84-0291-A) challenges the Secretary’s final decisions which denied her concurrent application for widow’s disability insurance benefits on account of her husband’s earnings as well as supplemental security income benefits pursuant to 42 U.S.C. § 1381 et seq. Jurisdiction of the court is founded upon 42 U.S.C. § 405(g), and the questions before the court are whether the decision of the Secretary is supported by substantial evidence or whether there is good cause to remand for further proceedings.

Following the lead taken by the Eleventh Circuit in Brady v. Heckler, 724 F.2d 914 (11th Cir.1984), the Fourth Circuit Court of Appeals, in Evans, held that in a claim for benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416 and 423, a claimant’s impairment (or impairments) can be considered non-severe only if such impairments) constitute a “slight abnormality” having a “minimal effect” on the claimant’s ability to work irrespective of the claimant’s age, education or work experience. Counsel for the plaintiffs in these consolidated cases innovatively seeks to bootstrap this Title II principle into the administrative deliberative process for widow’s claims. Simply put, it is argued that in order to reach a determination as to whether a widow’s impairments) meets or is the regulatory equivalent of the impairments set forth in the Secretry’s Listings of Impairments (20 C.F.R. § 404.1525, Appendix 1) there must be an adjudication of severity. If this adjudication must occur, it is suggested by plaintiffs that the Evans standard should apply. As to the plaintiffs’ claims for widow’s disability benefits pursuant to 42 U.S.C. § 423, the court disagrees. However, as to Mozella Meade’s concurrent claim for supplemental security income benefits based on disability under 42 U.S.C. § 1381 et seq., it is clear that the standards set in Evans are applicable.

Both statutorily and regulatorily, widow’s disability claims are to be considered under standards different from claims for either disability insurance benefits or supplemental security income benefits based on disability. Congress makes this differentiation patently clear in the language of 42 U.S.C. § 423(d)(2)(B) as follows:

A widow, surviving the divorced wife, widower ... shall not be determined to be under a disability (for purposes of' section 402(e) or (f) of this title) unless his or her physical or mental impairment or impairments are of a level of severity which under regulations described by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity.

The Secretary has promulgated her regulations governing the deliberative process for Title II, Title XVI (SSI) and widow’s claims. 20 C.F.R. Parts 404 and 416 (20 C.F.R. § 404.1501 and § 416.901 et seq.). The validity of these regulations is not an issue.

Both 20 C.F.R. § 404.1501 et seq. and § 416.901 et seq. provide the pertinent regulatory framework. The general rules for evaluating disability are set forth in §§ 404.1520 through 404.1523 and §§ 416.-920 and 416.923 respectively. These rules have commonly been referred to as the sequential evaluative process. That process includes, should the evidence so compel, a consideration of whether a claimant’s impairment(s) is severe. 20 C.F.R. §§ 404.-1520(c) and 404.1521; 20 C.F.R. § 416.-920(c) and 416.921.

Carved out of the sequential evaluative process, however, are the considerations to be made in determining disability for widows, widowers and surviving divorced spouses. 20 C.F.R. § 404.1577 through § 404.1580. As stated, in order for a surviving widow to qualify, her impairment, either physical or mental, must reach a level of severity that prevents her from doing any gainful activity. 20 C.F.R. § 404.1577. A widow will be found disabled if her impairments) meets specific clinical findings that are set forth in the Secretary’s Listings of Impairments, 20 C.F.R. § 404.1525, Appendix 1, or constitute the medical equivalence of those set forth in the Listings. In addition, the impairment must meet the durational requirements of the Act. 20 C.F.R. § 404.1578. Therefore, the initial steps in the sequential evaluative process, i.e. determining whether the claimant is engaged in substantial gainful activity or has a severe impairment or combination thereof, are not determinative considerations; the only consideration being whether the claimant’s impairment(s) meets or equals the listings for the durational limit. While plaintiffs, in the cases at bar, proffer innovative suggestions as to the standards applicable in determining whether a widow suffers an impairment that either meets or is the medical equivalent of the impairments set forth in the Secretary’s Listings, such principles simply do not apply.

As indicated, however, a determination of Mozella Meade’s application for concurrent supplemental security income benefits is governed by the sequential evaluative process. This was recognized both by the Law Judge in his decision of May 21, 1984, and by the Secretary when the Appeals Council adopted the Law Judge’s decision on July 12, 1984 (See TR 16). However, the court cannot conclude that the standard applied by the Law Judge in adjudicating the severity issue, namely whether the impairments “significantly limit her ability to perform basic work related activities,” comports with the standards set forth in Evans. (See TR 17, Finding 4). It is the court’s view that the Secretary has inadequately adjudicated plaintiff’s claim to this extent.

Additional reasons exist to remand Mozella Meade’s claim for further consideration of her SSI claim. The Secretary, in her memoranda before the court, points out that new rules were adopted by Congress in the Social Security Disability Benefits Reform Act of 1974 which pertain to determinations of claims based solely, or in part, on allegations of disabling pain. While the Secretary suggests that the new legislation compels a finding by this court that the Secretary’s final decision is supported by substantial evidence, it is the court’s opinion that such compels a remand for reconsideration especially in light of Evans.

Accordingly, the court will enter orders in these cases as follows:

1. The final decision of the Secretary denying Lucille Honaker’s claim for widow’s disability benefits will be affirmed.

2. The Secretary’s final decision denying Mozella Meade’s application for widow’s disability benefits will be affirmed but the Secretary’s final decision denying Mozella Meade’s application for supplemental security income benefits will be remanded for further proceedings. Upon remand, should the Secretary be unable to determine that Mozella Meade is entitled to supplemental security income benefits on account of disability on the record as now constituted, she shall be directed to recommit this action to an Administrative Law Judge wherein both sides will be entitled to present such evidence as may be relevant to the issue of plaintiff’s disability within the meaning of the Act and wherein all questions posed by the sequential evaluative process may be properly addressed.

The Clerk is directed to send a certified copy of this Memorandum Opinion to all counsel of record.

      . As to each plaintiffs claim for widow’s benefits, it is conceded by counsel that should Evans not apply, the Secretary’s final decision is supported by substantial evidence.


author: ARONOVITZ, District Judge.

text:
    Robert L. DONAHUE, etc., Plaintiff, v. UNITED STATES PAROLE COMMISSION, Federal Bureau of Prisons, Defendants.
    No. 85-0493-Civ.
    United States District Court, S.D. Florida.
    March 12, 1985.

      Maria Arista-Volsky, Asst. U.S. Atty., Miami, Fla., for defendants.
    B. Douglas Hind-Marsh, Miramar, Fla., for plaintiff.
   ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND DENYING MOTION FOR DISCHARGE FROM SENTENCE AND DISMISSING THE INSTANT ACTION

ARONOVITZ, District Judge.

THIS CAUSE came on for a hearing before the Court upon Plaintiff’s (1) Motion for Temporary Restraining Order (filed February 22, 1985) and (2) Motion for Discharge from Sentence (filed February 22, 1985). The Court heard argument by counsel and considered the motions, the supporting and opposing memoranda filed thereto, the pertinent portions of the record, the applicable law, and being otherwise fully advised in the premises, it is

ORDERED AND ADJUDGED as follows:

1. Plaintiff’s Motion for a Temporary Restraining Order (filed February 22, 1985), be, and the same is, hereby DENIED on the face of the papers as a matter of law.

2. Plaintiff’s Motion for Discharge from Sentence (filed February 22, 1985), be, and the same is, hereby DENIED. Caselaw and rules of statutory interpretation make it clear that the instant motion must be denied pursuant to 18 U.S.C. § 4163 and 18 U.S.C. § 4164.

Plaintiff seeks a Certificate of Discharge from the sentence imposed upon him by the United States District Court for the Eastern District of New York for his conviction on April 22,1982. He claims entitlement to Certificate of Discharge by virtue of having been discharged on mandatory release on February 1, 1985. Plaintiff argues that under 18 U.S.C. § 4163, he has served his entire four-year sentence less the “good time” award of a reduction by four hundred and seventy-five (475) days, pursuant to 18 U.S.C. § 4161 and 18 U.S.C. § 4162. Plaintiff was granted 475 statutory and extra good time days as a reward for his continued good conduct and work. Accordingly, Plaintiff argues that his constitutional rights would be violated if he is forced to adhere to the terms and conditions imposed by the Parole Board as a condition of his release. Plaintiff more specifically argues that he should not be subject to the terms and conditions of Section 4164 because they are unconstitutional and ex post facto as applied to him.

Sections 4163 and 4164 must be read in pari materia. Robinson v. Willingham, 369 F.2d 688 (10th Cir.1966); Cooper v. United States Board of Parole, 337 F.Supp. 235 (E.D.Ark.1972). Section 4163 provides in pertinent part:

Except as hereinafter provided a prisoner shall be released at the expiration of his term of sentence less the time deducted for good conduct. A certificate of such deduction shall be entered on the commitment by the warden or keeper....

Section 4164 provides:

A prisoner having served his term or terms less good-time deduction shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.

Cases which construe the operation of these two statutes squarely hold that this statutory language means precisely what it says. A prisoner released as a mandatory release is subject to the same conditions of release as a parolee. Coronado v. United States Board of Parole, 540 F.2d 216 (5th Cir.1976); Humphrey v. U.S. Board of Parole, 488 F.2d 1214 (3d Cir.1971); Robinson, supra; Burgos v. United States Board of Parole, 360 F.Supp. 316 (N.D.Ill.1973); Cooper, supra. There is nothing constitutionally infirm about imposing parole conditions upon persons like Plaintiff DONAHUE who are released under mandatory release for good time. As the Fifth Circuit Court of Appeals articulated in Coronado:

The argument that the attachment of parole-type conditions under 18 U.S.C. § 4164 to a prisoner freed under the mandatory release provisions of 18 U.S.C. 4163, without more, constitutes a violation of the double jeopardy clause of the fifth amendment or is otherwise unconstitutional is meritless.

540 F.2d at 218.

Moreover, Plaintiffs refusal to sign his Certificate of Mandatory Release is irrelevant to his being subject to the terms and conditions enunciated therein. Congress has fixed the conditions attached to a mandatory release and those conditions are not affected by the failure or refusal of the releasee to sign the release agreement. Robinson, supra; Burgos, supra.

Finally, Plaintiff’s additional argument that 18 U.S.C. § 4164 is unconstitutional and ex post facto as applied to him is also without merit for the reason that Section 4164 was not changed or promulgated after the commission of the offense by Plaintiff. The ex post facto contention was addressed by the Court in Harris v. United States Board of Parole, 429 F.Supp. 199, 201 (E.D.Okla.1977), wherein it was stated:

The contention that 18 U.S.C. § 4164 is an ex post facto law was specifically rejected in Burgos, (citation omitted):
“Equally without validity is the plaintiff’s assertion that Section 4164 is an ex post facto law. The definition of ex post facto includes ‘every law that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed.’ Calder v. Bull, 3 Dall. 386, 390, 3 U.S. 386, 390, 1 L.Ed. 648 (1798). However, as the defendant observed, the prohibition against ex post facto laws is only relevant when the law is promulgated or changed after a person has committed a crime. Graham v. Thompson, 246 F.2d 805 (10th Cir. 1957). There is absolutely no indication in the instant case that Section 4146 was changed or promulgated subsequent to the plaintiff’s commission of the aforementioned offense. Therefore, the provision is not an ex post facto law as applied to the plaintiff.”

For all of the above-stated reasons which caselaw overwhelmingly supports as well as for all the reasons set forth by the Court in its ore tenus ruling announced at the conclusion of the hearing on the instant motions held March 1, 1985, the Motion for Discharge from Sentence must be denied. The Court further notes that no authority was cited by Plaintiff in support of his position either in his initial papers or at oral argument.

3. The Court hereby DISMISSES the instant action pursuant to the ruling herein.


author: HAROLD H. GREENE, District Judge.

text:
    Renate KLINE, et al., Plaintiffs, v. The REPUBLIC OF EL SALVADOR, et al., Defendants.
    No. 83-2917.
    United States District Court, District of Columbia.
    March 12, 1985.
    As Amended March 14, 1985.

      William E. Genego, University of S. Cal. Law Center, Mark D. Rosenbaum, ACLU Foundation of S. Cal. Los Angeles, Cal., Leonard I. Weinglass, New York City, Arthur B. Spitzer, Elizabeth Symonds, American Civil Liberties Union Fund of the Nat. Capitol Area, Washington, D.C., for plaintiffs.
    Stuart H. Newberger, Asst. U.S. Atty., Washington, D.C., for Federal defendants.
   OPINION

HAROLD H. GREENE, District Judge.

This case arises out of the circumstances surrounding the death of Michael Kline, an American citizen, while travelling in El Salvador in October 1982. According to the complaint, Kline was beaten and killed by El Salvadorean soldiers. It is further claimed that the government of El Salvador did not investigate the killing or prosecute the responsible individuals and instead attempted to cover up and distort the true cause of death. In addition, the complaint alleges that United States government agencies and certain named officials attempted also to cover up the circumstances of Michael Kline’s death, obstructed the plaintiffs in their attempt to obtain information and refused to undertake an investigation of the relevant events.

The complaint contains four counts. Count One is directed against the government of the Republic of El Salvador, claiming that its agents beat, tortured, and executed Michael Kline; that they blocked any meaningful investigation or prosecution, and that these actions caused severe emotional distress to members of Mr. Kline’s family in the United States. Counts Two through Four, which are brought against various United States agencies and officials, allege the commission of common law and constitutional torts. Presently before the Court are two motions to dismiss — that of El Salvador and that of the United States.

I

El Salvador

In Count I of the complaint, plaintiffs allege that actions taken by the government of El Salvador in that country relating to the death of Michael Kline constituted the tort of intentional infliction of emotional distress and that, since the distress occurred in the United States, the courts of this country have jurisdiction notwithstanding the fact that El Salvador is a foreign sovereign generally immune from suit. Under established law, there is no basis whatever for that contention.

The Foreign Sovereign Immunities Act (FSIA) governs claims of immunity in civil actions brought in the courts of the United States against a foreign state. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). Under the Act, a foreign state is immune from suit, and the court lacks jurisdiction, unless a specific statutory exception is found to be applicable. The exception claimed by plaintiffs to apply here provides that a foreign state is not immune where money damages are sought against it “for personal injury or death, or damage to property, occurring in the United States (emphasis added).”

The language of the exception suggests, and the legislative history of the Act as well as the decided cases make it entirely clear, that United States courts have jurisdiction under the terms of this statute only if the tort as well as the injury occurred in this country.

In Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C.Cir.1984), the parents of a United States Marine taken hostage at the American embassy in Iran sued for the mental and emotional distress they suffered in the United States as a consequence of their son’s detention in Iran. The Court of Appeals flatly rejected their claim, holding that “both the tort and the injury must occur in the United States” for a court to have jurisdiction under the Act. 729 F.2d at 842. See also Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517 (D.C.Cir.1984); McKeel v. Islamic Republic of Iran, 722 F.2d 582, 589-90 n. 10 (9th Cir.1983); Frolova v. Union of Soviet Socialist Republics, 558 F.Supp. 358, 362 (N.D.Ill.1983); Matter of Sedco, Inc., 543 F.Supp. 561, 567 (S.D.Tex. 1982). In the instant case, of course, the complaint itself alleges that the tort occurred in El Salvador, and under the precedents that nation is immune from suit in the courts of the United States.

Wholly aside from precedent, it is clear that the construction argued by plaintiffs is inappropriate. If plaintiffs are correct, every alleged governmental tort occurring in any foreign country would be subject to review in the courts of the United States at the request of any member of the family of the victim who claimed to have suffered emotional distress here as a consequence of the foreign act. Such international judicial interference would be entirely unprecedented, and a court would not be justified in engaging in it unless congressional intent to grant jurisdiction therefor were manifestly plain. That, as indicated, is not true here. The claim against the government of El Salvador will accordingly be dismissed.

II

Official Capacity

The complaint states three claims against the federal defendants: (1) intentional infliction of emotional distress; (2) denial of First Amendment rights; and (3) denial of equal protection under the Fifth Amendment.

The federal government, its agencies, and federal officials when sued in their official capacities, are absolutely shielded from tort actions for damages unless sovereign immunity has been waived. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). The only waiver for common law torts conceivably applicable to the present situation is the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2679(a). However, the statute itself constitutes an insuperable obstacle to plaintiffs’ claims insofar as they seek relief against the Department of State, the Federal Bureau of Investigation, and the various officers in their official capacities, for three reasons.

First, the Act directs that the exclusive remedy for common law tort claims is an action against the United States rather than against the individuals or the particular governmental agencies (28 U.S.C. § 2679). Since plaintiffs elected to sue the agencies and the officials rather than the government itself, the “official capacity” aspect of their lawsuit must fail for that reason alone. Second, prior to instituting suit, the plaintiffs must exhaust certain administrative remedies (28 U.S.C. § 2675(a)). Plaintiffs have failed to comply with that requirement of the Act as well, and that defect, too, bars their suit. Third, the Federal Tort Claims Act does not waive sovereign immunity with respect to constitutional torts; accordingly, there is no applicable waiver of sovereign immunity for either the First Amendment or the Fifth Amendment claim. Laswell v. Brown, 683 F.2d 261, 267-68 (8th Cir.1982); Birnbaum v. United States, 588 F.2d 319, 327-28 (2d Cir.1978).

For these reasons, all of plaintiffs’ claims against the agencies, as well as their claims against the individual officers to the extent that they are being pursued against them in their official capacities, must be dismissed. What remains to be discussed are the claims against the named officials in their individual capacities.

III

Common Law Tort

Count II of the complaint alleges that the federal defendants failed to investigate the causes and circumstances of Michael Kline’s death and refused to provide information regarding that death, and it seeks damages from these defendants for the common law tort of infliction of emotional distress.

A federal official has absolute immunity from actions for common law torts he is claimed to have committed in his individual capacity provided that (1) these actions were within the outer perimeter of his line of duty; and (2) they are related to a discretionary rather than a ministerial function. Barr v. Mateo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Gray v. Bell, 712 F.2d 490 (D.C.Cir.1983); Sami v. United States, 617 F.2d 755 (D.C.Cir.1979); Expeditions Unlimited Aquatic Enterprises v. Smithsonian Institution, 566 F.2d 289 (D.C.Cir.1977). Plaintiffs have not alleged that the activities here involved were beyond the limits of defendants’ official duties, and any such claim would be without merit in any event, for these activities were directly related to defendants’ positions as officials of the Department of State or of the Federal Bureau of Investigation. Thus, defendants are immune if they were engaged in discretionary functions when they committed the allegedly tortious acts.

A discretionary function has been defined as one in which a government official must determine what action to take based upon a case-by-case analysis of relevant factors and in which his decision includes elements of judgment and discretion. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Gray v. Bell, supra; Beins v. United States, 695 F.2d 591 (D.C.Cir.1982); Sami v. United States, supra. In contrast, ministerial functions are acts or duties required by law in response to a specific state of facts without the exercise of individual judgment or discretion.

In support of their claim that defendants were engaged only in exercising a ministerial duty, plaintiffs rely on a regulation codified in 22 C.F.R. § 72.4 which requires State Department officials to complete an administrative report “providing essential facts concerning the death of a United States citizen” abroad to his closest known relative. In their view, because that report is required by regulation, immunity is not available to the defendants.

The regulation certainly imposes upon State Department officials the function of filing a notification of death report. They must prepare such a report whenever an American citizen dies in a foreign country; and such filing is plainly a ministerial duty. However, it does not at all follow either that the breadth and scope of the report are not substantially dictated by discretion or judgment, or that the filing of the form is the only permitted response to a citizen’s death overseas. Depending upon circumstances and policy considerations, the Department of State may obviously take a variety of actions both with respect to the scope of the report and with respect to other measures. That is. the essence of a discretionary function.

Indeed; plaintiffs implicitly recognize the element of discretion, for their complaint asserts that defendants should have done more to investigate the death of Michael Kline. There is nothing in the regulation to require Department of State officials to undertake actual investigations of the deaths of Americans abroad, let alone to dictate the scope of such investigations; to pressure the foreign state to conduct its own inquiry; to assist relatives attempting on their own to investigate the circumstances of death; or to disclose all information they may have relating to the death of an American abroad.

Yet it is the failure of the defendants to carry out these functions — nowhere mentioned in the regulation and discretionary to a substantial degree — that is the crux of this lawsuit. In- brief, whatever may be the ministerial character of the report required by section 72.4, the question of the scope of actions beyond the mere minimum of information that must be included in that report are matters of discretion. Failure of the defendants to exercise their discretion in the manner requested by plaintiffs is not a violation of the regulation, and defendants are therefore absolutely immune from common law tort suit with respect thereto.

IY

First Amendment

The complaint next alleges the commission of a constitutional tort based upon the First Amendment right to receive information. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Here again, an analysis of immunity doctrines is required.

Executive branch officials “whose special functions or constitutional status requires complete protection from suit” have absolute immunity from constitutional torts. Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982). The government asserts that the defendants in this case are absolutely immune because they are engaged in “extremely sensitive duties directly related to the formulation and exercise of United States foreign policy.” However, the government has entirely failed to meet its burden of demonstrating that the functions here involved are so sensitive as to require such broad immunity {Harlow v. Fitzgerald, supra, at 812-13, 102 S.Ct. at 2735-36), and the claim to absolute immunity accordingly cannot be sustained.

Qualified immunity from suit is available to executive officials to the extent that, in the performance of discretionary functions, “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, supra, 457 U.S. at 818, 102 S.Ct. at 2738. As noted above, the functions at issue here were discretionary in character, so that the determinative question on immunity is whether the conduct of the officials violated clearly established statutory or constitutional rights.

The First Amendment does protect the right of citizens to receive information as well as to disseminate it, and on this basis it prohibits government interference with the transmission of information from a willing speaker to a willing listener. However, that constitutional provision has never been interpreted as affirmatively requiring the government either to collect and disseminate information or as requiring a government official who is an “unwilling speaker” to impart information. “Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.” Houchins v. KQED, Inc., 438 U.S. 1, 15, 98 S.Ct. 2588, 2597, 57 L.Ed.2d 553 (1978) (Burger, C.J.).

Plaintiffs’ arguments to the contrary notwithstanding, it is plain, therefore, at a minimum, that defendants’ conduct does not constitute the violation of a clearly established constitutional right of which a reasonable person would have known and for the violation of which he may therefore be required to pay damages. On this basis, the defendants are likewise protected from suit with respect to the First Amendment claim.

V

Fifth Amendment

Plaintiffs’ final claim is that they were denied the equal protection of the laws under the Fifth Amendment because the federal defendants refused, for improper political motives, “to furnish investigatory personnel and resources to investigate the murder of Michael Kline in the same manner by which they have furnished personnel and resources to investigate the murder of LCDR Albert Schaufelberger.”

Plaintiffs are correct in their assertion that equal protection is denied when there is unlawful discrimination in the administration of an otherwise neutral law. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). To make out a cause of action under this principle, a plaintiff must be able to allege that a facially neutral law was applied to similarly situated individuals in a different manner based upon an unlawfully discriminatory motive. The claim of these plaintiffs fails to meet that test for two separate, though interrelated, reasons.

First. Neither the Department of State nor the Federal Bureau of Investigation has the authority to conduct an official investigation under the circumstances present here.

One theoretical source of authority is 18 U.S.C. § 1116 which permits the Department of Justice (including the FBI) to investigate crimes against the United States where the offense is committed against an “internationally protected person,” that is, a representative, officer, employee, or agent of the United States government entitled pursuant to international law to special protection against attack. See generally, United States v. Layton, 509 F.Supp. 212 (N.D.Cal.1981). There is no allegation, and no reason for believing, that Michael Kline, a tourist, was an “internationally protected person” within the meaning of that statute.

The only other law with possible relevance is 28 U.S.C. § 533(3) which permits the Attorney General to appoint officials to conduct such investigations regarding “official matters under the control of the Department of Justice and the Department of State” as he may direct. Plaintiffs contend that the killing of Michael Kline should have been considered an “official matter under the control of the Department of State” because Congress has required the President to make a determination and to certify to the Congress that the government of El Salvador had taken all reasonable steps to investigate that killing. See P.L. 98-53, 97 Stat. 287, 22 U.S.C. § 2370 (note), amending § 728(e) of the International Security and Development Cooperation Act of 1981.

That congressional enactment, however, requires only a certification that El Salvador has conducted an investigation, and the sole sanction for noncompliance is a cutoff of aid to that country. There is nothing in the statute to indicate that Congress intended to require anything of the Executive Branch other than political and diplomatic efforts to induce the government of El Salvador to investigate; it contains no language which could be construed as authority, let alone a mandate, for an investigation by United States law enforcement officers into the Kline killing.

Second. Even if the federal defendants had authority to conduct an investigation, plaintiffs cannot prevail on their equal protection claim unless these defendants failed for improper motives to investigate the death of Michael Kline in the same manner as they investigated the death of what is alleged to be the similarly-situated Lieutenant Commander Schaufelberger. Again, there is no basis for such an argument.

Kline and Schaufelberger were not similarly situated. According to the complaint itself, the former was a tourist in El Salvador while the latter was a military officer officially assigned to the post of Deputy Commander of the United States Military Assistance Group in El Salvador. Thus, Schaufelberger, unlike Kline, may well have been an “internationally protected person” within the meaning of section 1116 and therefore encompassed under the special investigative authority granted by that statute. In any event, there is nothing inherently irrational' or arbitrary for a law enforcement agency to make a distinction in the context of an inquiry in a foreign country between United States citizens stationed in that country on official business and those who travel there solely for private purposes.

Prosecutorial and investigative officers have very wide discretion (Washington v. United States, 401 F.2d 915 (D.C.Cir. 1968)), and selectivity in the exercise of their authority has long been held not to constitute per se a constitutional violation. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). What is impermissible is selective prosecution based upon such grounds as race, religion, the exercise of free speech rights, or protected political activity. Teague v. Alexander, 662 F.2d 79, 83 (D.C.Cir.1981); United States v. Blitstein, 626 F.2d 774, 782 (10th Cir.1980); Cox v. Louisiana, 379 U.S. 536, 581, 85 S.Ct. 453, 470, 13 L.Ed.2d 471 (1965) (Black, J., concurring). Plaintiffs here do not allege discrimination on any of these bases; their claim is that the defendants are concerned over the potential political consequences to the Administration of the results of an investigation — a matter which may give rise to political debate and action in the Congress, the press, and elsewhere, to be sure, but not to an action for damages for impermissible discrimination based on the denial of rights.

VI

Conclusion

All the claims for damages under this lawsuit must be dismissed as barred by sovereign immunity or qualified individual immunity. These defenses may in some circumstances be regarded as technical or anachronistic — relics of the theory that “the King can do no wrong.” Scheuer v. Rhodes, 416 U.S. 232, 239, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974). Decision after decision has reiterated, however, that the immunity doctrines remain available as defenses to lawsuits against government and its officials. Moreover, whatever may be their philosophical vitality in other circumstances, these doctrines are plainly pertinent in a case such as this where the plaintiffs are seeking enormous damages against United States officials essentially because these individuals did not conduct the kind of inquiry into the killing of an American tourist on the soil of a foreign nation or exert the degree of pressure on another government that plaintiffs have demanded.

The violent death of an American abroad is a tragic occurrence. By virtue of their offices, United States diplomatic officials have the obligation to use their best efforts to protect and assist American citizens and their families in dealing with events in foreign lands, and to conduct vigorous inquiries and to take other diplomatic and political action when foreign governments do not provide adequate protection to the citizens of this nation. But the manner in which these obligations are exercised, and the conduct of foreign relations generally, are constitutionally entrusted to the Executive Branch, with oversight by the Congress, not to the Judiciary.

For a court to hold executive officials liable in damages because in its view their inquiry on foreign soil was not sufficiently vigorous, their pressure on a foreign government not sufficiently severe, or the information they released not sufficiently extensive, would be to involve the Judicial Branch in matters with respect to which it has neither expertise nor jurisdiction. These are highly judgmental matters, and the officials to whom decision thereon is entrusted are for that reason protected from damage suits by the immunity doctrines discussed above.

Since there is no basis for judicial action, the complaint will be dismissed.

      . Renate Kline is Michael Kline’s mother; Julie-Anne Kline is his sister.

      . 28 U.S.C. §§ 1330, 1332(a), 1391(f), 1441(d), 1602-1611.

      . 28 U.S.C. § 1605(a)(5).

      . See H.R.Rep. No. 94-1487, 94th Cong., 2d Sess. 21 (1976); S.Rep. No. 94-1310, 94th Cong., 2d Sess. 20 (1976), U.S.Code Cong. & Admin. News 1976, p. 6604.

      . Every case upholding jurisdiction under this exception involved a tort that occurred within the United States. See Olsen by Sheldon v. Government of Mexico, 729 F.2d 641 (9th Cir. 1984); Letelier v. Republic of Chile, 488 F.Supp. 665 (D.D.C.1980); De Sanchez v. Banco Central de Nicaragua, 515 F.Supp. 900 (E.D.La.1981).

      . Plaintiffs, recognizing the existence and the binding effect of these decisions, argue only that “Persinger ... was wrongly decided.” Plaintiffs’ Response at 2. That, obviously, is not a basis upon which this Court would be justified in ignoring precedent from its own Court of Appeals, even if it concluded, contrary to fact, that the statute and the legislative history pointed in that direction.

      . The federal defendants are George Shultz, in his individual capacity and in his official capacity as United States Secretary of State; the United States Department of State; Deane R. Hinton, in his individual capacity and in his official capacity as United States Ambassador to El Salvador; Thomas Pickering, in his individual capacity and in his official capacity as an American Counsel in El Salvador; Thomas Pickering, in his individual capacity and in his official capacity as an American Counsel in El Salvador; Patricia Butenis, in her individual capacity and in her official capacity as American Vice consul in El Salvador; William Webster, in his individual capacity and in his official capacity as Director of the Federal Bureau of Investigation; and the Federal Bureau of Investigation.

      . Where public policy requires that a government official weigh competing interests, immunity from tort actions is necessary to ensure that he is not deterred from taking actions in the public interest by a concern over personal liability for the consequences of those actions. Barr v. Mateo, supra. Furthermore, such immunity “prevent[s] tort actions from becoming a vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the government" Sami v. United States, supra, 617 F.2d at 766; Blessing v. United States, 447 F.Supp. 1160, 1170 (E.D.Pa.1978).

      . When faced with a ministerial duty, a government official must act in a prescribed manner; thus, concern over personal liability is not a factor in determining the official’s actions — it is set by rule. Furthermore, judicial review of a ministerial function does not represent an intru.sion on the policy-making branches of government, again because the performance of such functions is delineated by law, and a court need only determine whether or not a departure from the lawful standard occurred.

      . It further follows, according to plaintiffs, that defendants would also lack immunity if they performed discretionary actions beyond the scope of the described ministerial duties. Blessing v. United States, supra, 447 F.Supp. 1160, 1177 (E.D.Pa.1978); Griffith v. United States, 500 F.2d 1059 (3d Cir.1974). But these cases merely hold that violation of a ministerial command takes what otherwise might be a discretionary function outside the scope the statutory exception for discretionary acts. See 500 F.2d at 1068-69. '

      . Federal Defendants’ Motion to Dismiss at 11.

      . Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).

      . Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S.Ct. 2576, 2581-82, 33 L.Ed.2d 683 (1972).

      . As Justice Stewart stated "There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy ... The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.” Stewart, "Or of the Press,” 26 Hastings L.J. 631, 636 (¿975), quoted in Houchins v. KQED, Inc., 438 U.S. 1, 14, 98 S.Ct. 2588, 2596, 57 L.Ed.2d 553 (1977) (Burger, C.J.).

      . Assuming arguendo that such a right exists at all.

      . The claim is that the defendants had a fear of “the political consequences from the disclosure of the information and the results of a proper investigation upon the Administration’s policy and aid and support to the government and military of El Salvador.” Complaint at ¶ 44.

      . See 28 U.S.C. § 533.

      . In fact there was compliance. On July 20, 1983, the Secretary of State certified that the government of El Salvador "has taken all reasonable steps to investigate the killing of Michael Kline in El Salvador in October 1982.” El Salvador, Certification to Authorize Continued Assistance, 48 Fed.Reg. 36554-55 (August 11, 1983). If the Congress is dissatisfied with that certification or if it believes the certification to be inaccurate, it has of course the means to make its displeasure known. But the statute cannot be construed to give standing to private persons to bring an action for damages.

      . For that reason, the statute did not transform the death of Michael Kline into an “official matter under the control of the Department of State” within the meaning of section 533(3) of title 28 so as to authorize an investigation. Moreover, even if the Department of State should be deemed to have determined that the death of Michael Kline was such an "official matter," it is doubtful that this would have enabled the FBI to conduct an investigation preparatory to a criminal prosecution, for that agency’s criminal investigative authority is limited by section 1116.

      . Plaintiffs’ claim — that they have a legal right which may be vindicated in an action for damages to have the FBI investigate in El Salvador — suffers from two additional defects: (1) the conduct of such an investigation depends in the final analysis neither upon the FBI nor upon the Department of State but upon the government of El Salvador on whose soil such an investigation would have to be carried out, and (2) in view of all these problems and difficulties, it can hardly be found that a failure to investigate constituted a violation of a clearly established right within the meaning of Harlow v. Fitzgerald, supra.

      . Assuming that, as the complaint alleges, there was an investigation of the Schaufelberger killing. Such an inquiry, if it took place, could have been based on Lt. Cdr. Schaufelberger’s special status under the statute or it might have had the express sanction of the government of El Salvador. Moreover, it is far more likely that the killing of an officer stationed in El Salvador by direction of the United States government could legitimately be regarded as an "official matter under the control of the Department of State” than the killing of a tourist.

      . Plaintiffs are asking for compensatory damages in excess of $5 million and for punitive damages in excess of $10 million.

      . These, in fact, are among the reasons why the United States maintains vast ambassadorial and consular establishments around the world. See generally, 22 C.F.R. § 71.1.

      . Plaintiffs have sought leave to file an amended complaint adding a claim under the Freedom of Information Act, 5 U.S.C. § 552. The government does not object to the amendment, and it will be granted. The FOIA claim, a clear direction by the Congress for the release of certain types of information, of course survives the present ruling.

      . But see note 24, supra.


author: HAIGHT, District Judge:

text:
    UNITED STATES of America, v. Edward MOTT, Defendant.
    No. 84 Cr. 950-CSH.
    United States District Court, S.D. New York.
    March 12, 1985.

      Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for the U.S.; Mary T. Shannon, Asst. U.S. Atty., New York City, of counsel.
    Harry E. Youtt, New York City, for defendant.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Defendant is accused in a two count indictment of embezzling funds from his employer, J. Henry Schroder Bank, in violation of 18 U.S.C. § 656. He moves pursuant to Rule 12(b), Fed.R.Crim.P., for dismissal of the indictment on grounds that 1) the activities alleged in the indictment do not violate § 656, and 2) the indictment duplicitously mixes a number of separate violations, some of which, charged separately, would constitute misdemeanors.

The facts underlying the indictment appear to be these. Defendant was a First Vice President with the bank. As “operations officer” for “trust operations and special services,” he assisted clients engaged in “special projects.” Apparently the most common of those projects was the conversion of Savings and Loan Associations from mutual to stock companies. Such conversions entailed a number of complex operations, which defendant directed. In order to accomplish these operations, he was given authority to incur expenses on behalf of the clients. Apparently the bank paid for or reimbursed defendant for these expenses, but ultimately, either periodically or upon completion of the project, the expenses were billed to the client. Thus although the bank initially paid for these expenses from its own funds, it never intended to and did not bear ultimate financial responsibility for them. The Government contends that defendant bilked the bank and its clients by submitting excessive and improper expense bills.

I.

The defendant claims, and the Government does not dispute, that the bank was directly reimbursed for approximately ninety percent of these expenses by the clients. Further, both the clients and the bank understood that the expenses were incurred on behalf of the clients and were paid by the bank as a convenience. The bank did not intend to, and did not, pay them itself as its own business expense. Defendant claims that because the bank never intended to bear ultimate financial responsibility for these expenses, the funds used to pay for them were neither “moneys, funds or credits” of the bank nor “moneys, funds, assets or securities intrusted to the custody or care” of the bank, as required by the statute. Instead, because the bank intended to pass on the expenses, it is argued that they were funds of the bank’s clients.

Defendant’s first argument is that this situation falls outside of the statutory language. It plainly does not. Defendant submitted his bills to the bank and was paid from funds of the bank. It is true that the bank intended to, and subsequently did, seek reimbursement for the funds, but the money with which defendant was paid was the bank’s. Only later did the bank seek reimbursement. Thus his behavior falls directly within the statutory language, for the money which he is accused of misapplying came from the bank.

Even if it is assumed that, contrary to a literal reading of its language, the statute does not consider to be bank funds those which were to be directly reimbursed by clients, examination of the possible consequences of discovery of defendant’s alleged scheme demonstrates that his willful misapplication was nevertheless of bank, not client, funds. The bank was legally responsible for the business-related behavior of defendant, its employee. If a client discovered that some of the bills for expenses purportedly incurred by defendant were falsified or in some other way improper, the client would have been entirely justified in refusing to pay the bills. Whatever the exact terms of the agreement between the clients and the bank, they presumably did not include an open-ended consent by the clients to pay any expense bills submitted by the bank’s employees, legitimate or not. The argument must have been only to reimburse legitimate and reasonable expenses. Thus every improper bill submitted was one for which the bank could not reasonably expect to be reimbursed. So long as defendant submitted legitimate bills, he was drawing on, ultimately, the bank’s clients’ money. Every time he submitted a fraudulent bill, however, he was drawing on the bank’s money, for he was paid money for which the bank could not reasonably expect to be reimbursed. If the bank did submit the bill and receive reimbursement, it was simply lucky. Thus every fraudulent bill was in fact paid out of the bank’s money, even if the bank was fortunate enough to escape bearing the loss from the fraud.

Defendant’s arguments from the statutory purpose fare no better. The purpose of the statute is a general one, to “protect the funds of banks with a federal relationship.” United States v. Barket, 530 F.2d 181, 186 (8th Cir.1975), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976). As noted, by accepting money from the bank in return for fraudulent expense billings, defendant was placing bank funds at risk. If the fraudulent nature of the billings was discovered, the bank, not the client, would have borne the loss. Thus his actions fall within those which the statute aims to prevent.

Defendant claims that the Government cannot prove an essential element of the offense, his intent to “injure and defraud the bank.” United States v. Giordano, 489 F.2d 327, 330 (2d Cir.1973). He cites United States v. Cleary, 565 F.2d 43 (2d Cir.1977), cert. denied, 435 U.S. 915, 98 S.Ct. 1469, 55 L.Ed.2d 506 (1978). Cleary was a bank officer who, it was alleged, knowingly approved loans to a person who had fraudulently filled out the bank loan forms by falsifying his creditworthiness. The Court of Appeals, noting that “loans of this character are improper only if the lending officer had no reason to expect that the named debtor would repay them,” 565 F.2d at 47, reversed a jury charge which permitted a finding of intent to injure to be inferred from Cleary’s knowledge that his action exposed the bank to a risk of loss.

Cleary is simply inapplicable here. The loan there was legitimate, in that the named debtor incurred it and apparently intended to repay it. Some of defendant’s billings — for example, for personal expenses — were improper from the start, and the jury could find that he must have known that if he was found out the bank could not reasonably expect to be reimbursed for them. This would provide grounds for finding intent to injure.

II.

The two counts of the indictment cumulate “over 200” different allegedly fraudulent billings. Some of these were for amounts under $100, and thus alone constituted misdemeanors, and some were for amounts over $100, constituting felonies. Defendant contends that this admixture makes the indictment duplicitous.

The Government’s theory is that defendant pursued two schemes to defraud, one involving travel expenses and one apparently involving other types of expenses. The Government acknowledges, however, that the offenses could have been set out individually. It argues that to have indicted for 200 offenses might have unfairly prejudiced defendant.

It is not clear that this indictment is duplicitous — or, on the contrary, that it is not multiplicitous. The question of whether a series of incidents should be considered as one offense or a series of individual offenses depends at times on the precise facts of the case, thus presenting a question which cannot be determined until after trial. See, e.g., United States v. Billingslea, 603 F.2d 515, 518-520 (5th Cir. 1979). Judged by the test applied in Billingslea, the bare bones of the scheme outlined by counsel appear to create separate offenses, but that is not certain. The Government’s justification for indicting on two counts rather than one (or any other number), on the other hand, seems at best somewhat confused.

To assume for now that each of the offenses could be charged separately raises the problem of duplicity. Rule 8, Fed.E. Crim.P., which requires separate offenses to be charged separately, can be relaxed in appropriate circumstances. United States v. Margiotta, 646 F.2d 729, 733 (2d Cir.1981), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983). The important inquiry is whether combining the offenses creates a risk of the type of unfairness against which the rule was meant to guard. As set out in Margiotta, 646 F.2d at 733, the primary risks include a general verdict of guilt which hides a finding of guilty as to one offense and not guilty as to another, a lack of unanimity as to any one offense, inadequate notice, and difficulty in ascertaining the scope of double jeopardy protection.

In view of the Government’s thorough pre-trial disclosures, I do not view the latter two risks as significant, nor does defendant argue them to be. There are risks, however, that the jury may not unanimously agree on the improper nature of any one particular expense billing or that the jury may unanimously settle upon a bill of under $100 and yet convict on the felony count.

The Government sensibly argues that these risks may be avoided through the use of jury instructions requiring a unanimous finding of at least one individual improper billing in excess of $100 on each count. Ordinarily the fact that prejudice from a duplicitous indictment could be avoided would not necessarily be grounds for permitting it to stand. In these circumstances, however, I believe that permitting the indictment to stand is the least prejudicial course. If it is assumed that each billing is a separate offense, strict compliance with Rule 8 would require the Government to set out over 200 counts. Such a tremendous indictment might well prejudice the defendant in the eyes of the jury in ways which, unlike the risk presented by the two-count indictment, cannot be thoroughly cured by an appropriate charge. Faced with two risks of prejudice, one more certainly curable than the other, I choose the curable one and will permit the current indictment to stand.

Because the question of multiplicity which I raised above is one which turns on the facts of the case, Billingslea, supra, 603 F.2d at 520; United States v. Brown, 688 F.2d 1112, 1120 (7th Cir.1982), and may be cured by merger at the end of trial, United States v. Reed, 639 F.2d 896, 904 n. 6 (2d Cir.1981), I need not address it now. I do not believe that the existence of two counts where one is appropriate — if such is the case — will prejudice defendant at this point.

The motion is denied.

It is SO ORDERED.

      . In the following discussion, I assume only for purposes of this motion that defendant did indeed submit false bills for improper purposes. He apparently claims to have been justified in whatever actions he took, an issue which is a proper subject for trial but must be ignored on this Rule 12(c) motion.

      . The dichotomy arises from the wording of 18 U.S.C. § 656, which, after providing penalties of a $5000 fine or five years’ imprisonment or both, goes on to say:
      "... but if the amount embezzled, abstracted, purloined or misapplied does not exceed $100, [defendant] shall be fined not more than $1000 or imprisoned not more than one year, or both.”

      . Arguably the jury need not find a single billing of over $100 if all billings were pursuant to a common scheme and the total exceeds $100. See United States v. Davis, 592 F.2d 1325, 1329 n. 4 (5th Cir. 1979). The Government, however, does not urge this theory, and I do not reach it.