author: GENE CARTER, District Judge.

text:
    Lawrence R. BLAISDELL, Plaintiff, v. SECRETARY OF HEALTH & HUMAN SERVICES, Defendant.
    Civ. No. 84-0125 P.
    United States District Court, D. Maine.
    Dec. 6, 1985.

      Marina E. Thibeau, Erna J. Koch, Legal Services for the Elderly, Portland, Me., for plaintiff.
    Paula D. Silsby, Asst. U.S. Atty., Portland, Me., for defendant.
   MEMORANDUM OF DECISION AND ORDER AFFIRMING DEFENDANT’S DECISION ON REMAND AND GRANTING PLAINTIFF’S PETITION FOR ATTORNEY’S FEES

GENE CARTER, District Judge.

Plaintiff Lawrence Blaisdell has filed a Motion for Order Affirming Defendant’s Decision on Remand and Petition for Attorney’s Fees. The Petition is based on fees incurred in an appeal to this Court from a decision of the Secretary denying plaintiff’s disability benefits, which resulted in an order vacating the Secretary’s initial decision and remanding this matter to the Secretary for additional explanation.

I. Case History

Mr. Blaisdell filed an application for a Period of Disability and Disability Insurance Benefits on August 23, 1982, alleging that he had become disabled on March 3, 1982. His application for disability insurance benefits was denied after a hearing before an Administration Law Judge (A.L.J.) in a decision on November 8, 1983. Mr. Blaisdell petitioned this Court for review of that decision pursuant to 42 U.S.C. § 405(g). This Court vacated the decision and remanded the case to the Secretary because her decision did not include any reason why the pulmonary testing results reviewed by the A.L.J. lead to the conclusion that Mr. Blaisdell’s impairment was not severe. Nor did the A.L.J. make specific findings in that decision as to the claimant’s ability to perform basic work activities as set out in 20 C.F.R. § 404.1521.

Following remand, the A.L.J. held a supplemental hearing on July 15, 1985 and issued a decision recommending that Mr. Blaisdell be entitled to disability benefits and to a period of disability commencing on October 15, 1982. The Appeals Council adopted this recommendation.

At the supplemental hearing, Dr. Albert Aranson testified as a Medical Advisor to the Office of Hearings and Appeals and offered his opinion on three pulmonary function tests which were included in the original record. Dr. Aranson stated that the second test, performed in October, 1982, showed a mild to moderate impairment that would limit Mr. Blaisdell to the performance of “light” work. Dr. Aranson further stated his opinion that the third test, performed in December, 1983, showed that Mr. Blaisdell could undertake only sedentary work activity.

After the supplemental hearing, the A.L.J. found that Mr. Blaisdell’s impairment was severe and that he was no longer capable of performing his past work as of October 15, 1982, based on the second pulmonary function test. The A.L.J. therefore made reference to the Medical-Vocational Guidelines in Appendix 2 of Subpart P. Relying on § 201.00(f), the A.L.J. found that the claimant, of advanced age and limited education, possessed skills “not transferable outside of the heavy type of work the claimant performed in the past.” Recommended Decision at 4-5. Therefore, the A.L.J. found that Rule 202.02 of Table No. 2 directed a conclusion that Mr. Blaisdell was “disabled” as of October 15, 1982.

II. Substantial Justification Standard

The applicable subsection of the Equal Access to Justice Act (EAJA) provides that a court shall award fees and costs to a prevailing party in any civil action brought by or against the United States, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The burden to prove substantial justification rests on the Secretary. H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. 10 reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984, 4989. Where the Government can show that its case had a reasonable basis both in law and fact no award will be made. Id.

In the original administrative decision in this case, the A.L.J. made a finding that Mr. Blaisdell’s condition was not severe after reviewing the medical evidence without including the reasons for his conclusion. After remand, the A.L.J. found that plaintiff was and is disabled based on the results of a pulmonary function study that was in the record during the first proceeding indicating that plaintiff could not return to work as of October 15, 1985. The Social Security Act defines disability as inability' to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. 42 U.S.C. §§ 416(i)(1), 423(d)(1). In determining the severity of plaintiff’s condition, the A.L.J. should have made findings as to whether that condition significantly limited his ability to do basic work activities. 20 C.F.R. § 404.1521(a). Trafton v. Schweiker, 575 F.Supp. 742 (D.Me.1983). He did not do. When ordered to do so by the Court, he apparently was required to find that plaintiff is in fact “disabled.” Therefore, it was a deficiency in the A.LJ.’s application of the law which required the plaintiff to appeal to this court and which resulted in a three-year delay in the award of benefits to which he was entitled.

In order to determine whether the plaintiff is entitled to a fee award under the EAJA, the Court must consider whether it was reasonable for the Secretary to arrive at her original decision or to defend that record on appeal. The answer must be in the negative. On appeal from her first decision, the Secretary’s brief discussed only the first pulmonary function study, which was done prior to the time plaintiff claimed any disability, and made the same conclusory assertions as those set forth in the A.L.J.’s decision. Defendant’s Memorandum at 5. The Secretary did not discuss plaintiff’s ability to perform basic work based on the physical condition demonstrated by the October, 1982 pulmonary function test because the A.L.J. made no such findings. A record which clearly does not follow the analysis mandated by the Social Security Act and the Secretary’s regulations and which, therefore, results in an erroneous finding of nonseverity of plaintiff’s condition cannot be the basis of a defense which is substantially justified. See Small v. Califano, 565 F.2d 797, 800, 801 n. 1 (1st Cir.1977) (inability to perform previous work is a prima facie case of entitlement; “an unknown physical condition cannot be matched to an undescribed job.”)

Defendant asserts that new evidence, the testimony of a medical advisor, was addressed on remand. However, Dr. Aranson’s testimony was based on medical reports that were in evidence at the first hearing and the A.L.J.’s decision after remand states that his testimony “is entirely consistent with the other medical evidence of record.” Recommended Decision at 3. The decision goes on to explain why this testimony is consistent with that of other physicians who did present evidence at the first hearing. Recommended Decision at 3-4.

Defendant asserts that the evidence in the first proceeding could have supported a decision either for or against a finding that plaintiff is disabled and entitled to benefits. This is not a case, however, where the Secretary based her decision on reasonable evidence which, upon judicial review, turned out not to constitute substantial evidence. See, e.g., Kerr v. Heckler, 575 F.Supp. 455 (S.D.Ohio 1983). Rather, the A.L.J. never made the requisite findings in order to arrive at a conclusion based on the evidence. Therefore, whether that evidence would have supported either conclusion as to disability is irrelevant. It is not reasonable for the Government to defend a decision where the proper legal analysis is absent. See Love v. Heckler, 588 F.Supp. 1346, 1384 (M.D.Ala.1984). Further, no special circumstances exist which would make a fee award unjust.

Amount of Fee Award

Plaintiff seeks reimbursement in the amount of $75 per hour spent by his attorneys on matters relevant to plaintiff’s appeal in this Court. Plaintiff’s counsel committed a total of 22.8 hours to the case and expended $6.44 in costs. The total amount sought 'by plaintiff is $1,716.44. The Court finds that the request for attorney’s fees in the amount of $75 per hour is reasonable. See Ouellette v. Heckler, Civil No. 84-0129 P, (D.Me. Nov. 28, 1984). The Court has reviewed the itemized account of the time spent by plaintiff’s counsel and finds it was reasonable and appropriate under the circumstances of this case.

Accordingly, it is ORDERED that plaintiffs Motion for Order Affirming Defendant’s Decision on Remand and Petition for Attorney’s Fees is GRANTED and it is further ORDERED that the defendant shall pay to plaintiff reimbursement for reasonable expenses and fees incurred by plaintiff in this action in the amount of One Thousand Seven Hundred Sixteen Dollars and Forty Four Cents ($1,716.44).

      . Blaisdell v. Heckler, No. 84-0125 P (D.Me. March 28, 1985). The defendant has been substituted in this opinion pursuant to Fed.R.Civ.P. 25.

      . The decision cites 200.00(f), however, the Court believes that the A.L.J.’s intention was to refer to 201.00(f). Section 201.00(f) states, "in order to find transferability of skills to skilled sedentary work for individuals who are of advanced age (55 and over), there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.”

      . Under the "reasonable litigation attorney” standard an attorney must ask: Is there any substantial chance of success for my client? Am I merely going through the motions of a suit when my investigation of the law and facts convinces me that my client would and should lose? Blanchette v. Heckler, 586 F.Supp. 903, 904 (D.Colo.1984); Zimmerman v. Schweiker, 575 F.Supp. 1436 (E.D.N.Y.1983).

      . Defendant also asserts that the A.L.J. did not entirely reverse his prior determination of non-severity because plaintiff alleged that he had become disabled on March 3, 1982, and the A.L.J. found, after remand, that plaintiff was disabled as of October 15, 1982, seven and one-half months later. Defendant asserts that the gap between the date plaintiff asserts disability and the A.L.J.’s finding of disability demonstrates that the record evidence also supported a finding of no disability. As explained above, this argument does not change the result in this case. Further, the A.L.J. stated that it was possible that Mr. Blaisdell’s impairment "was ‘severe’ prior to the pulmonary function studies on October 15, 1982” although not as of March, 1982. Recommended Decision at 4.


source: Caselaw Access Project

author: ALEXANDER HARVEY, II, District Judge.

license: Public Domain

text:
    Sonja M. BERRY, et al., Plaintiffs, v. Wesley W. BEAN, Jr., etc., et al., Defendants.
    Civ. No. H-85-4094.
    United States District Court, D. Maryland.
    Dec. 6, 1985.
    Allen M. Lenchek and Gaffney, Anspach, Schember, Klimaski & Marks, Washington, D.C., for plaintiffs.
    Thomas M. Barba, Staff Atty., Civ. Div., U.S. Dept, of Justice, Washington, D.C., and Alexander S. Nichols, Gen. Litigation Div., Office of the Judge Advocate Gen., Washington, D.C., and Charles P. Scheeler, Asst. U.S. Atty., Baltimore, Md., for defendants.
   MEMORANDUM DECISION

ALEXANDER HARVEY, II, District Judge.

A black teenager is here seeking the right to continue to reside with her family on Andrews Air Force Base, Maryland. By Order of the Commander of the Base, Sonja Berry, who was then in high school and 18 years of age, was on March 25, 1985, barred from residing with her stepfather and brothers on the base.

This civil action was filed on October 2, 1985 by Sonja Berry and her stepfather, Robert L. Young, who is a Technical Sergeant in the United States Air Force and who has lived at Andrews Air Force Base with his family since 1983. Named as defendants in this case are Colonel Wesley W. Bean, Jr., Commander of the Base, and the Secretary of the Air Force. When suit was filed, Sonja Berry was living off the base in compliance with the Order. In this civil action, she and her father sought injunctive relief which would permit her to return and live with the other members of her family.

Shortly after this action was instituted, plaintiffs filed a motion for a temporary restraining order (hereinafter “T.R.O.”). A hearing was held on that motion in open Court on October 24, 1985. After hearing argument of counsel, the Court in an oral opinion ruled that the motion should be granted and that Sonja Berry should be permitted to return to Andrews Air Force base to reside with her parent and the other members of her family for a period of 10 days. Thereafter, the T.R.O. was extended for an additional period of 10 days, and the Court met with counsel and scheduled a hearing on plaintiffs’ motion for a preliminary injunction for today. When defendants would not agree to an extension of the temporary restraining order until the Court had ruled on plaintiff’s motion for a preliminary injunction, another hearing was held in open Court, and the Court then ruled that the temporary restraining order should be so extended.

Memoranda and exhibits have been filed in support of and in opposition to the pending motion for a preliminary injunction. An evidentiary hearing was held, and both plaintiffs testified. With the agreement of counsel, the evidence relied upon by defendants was submitted by way of affidavits and exhibits. The Court has now had an opportunity to consider all the evidence presented in the light of counsel’s arguments and the applicable authorities. For the reasons to be stated herein, plaintiffs’ motion for a preliminary injunction will be granted. Findings of fact and conclusions of law pursuant to Rule 52(a), F.R.Civ.P., are contained in this opinion.

I

The Facts

On March 2, 1985, Sonja Berry who was then an 18 year old High School student and a dependent of Technical Sergeant Robert Young, was in the early morning hours seated in a vehicle being operated by a male companion on Base property. Air Force Security Policeman Steve A. Scott stopped the vehicle after the driver had gone through a stop sign. The Police Officer detected an odor of marijuana smoke. Stubs of marijuana were found in the car, and the driver was charged with operating a vehicle under the influence of narcotics. Ms. Berry was questioned and admitted that she had smoked a joint on the way to the base. She was later charged with possession of marijuana. The Court finds from the evidence, however, that Sonja did not use marijuana on the base.

On March 13, 1985, Colonel Bean formally advised Sergeant Young in writing that his dependent had sponsored as her guest an individual who was operating a vehicle under the influence of marijuana and had admitted to the police that she had been smoking marijuana too. Colonel Bean stated that such conduct would not be tolerated, and he advised Sergeant Young that if any further incidents involving his dependent took place it would be necessary for Bean as the Base’Commander to take more stringent measures, including restrictions and conditions on Sonja. Various counseling agencies were recommended to Sergeant Young to deal with the problem.

On March 25, 1985, without further notice to Sergeant Young, Colonel Bean issued to Sonja Berry a letter of expulsion. She was notified that she should depart from Andrews Air Force Base immediately and that she could not reenter the base except for court appearances and emergency medical care. The Bar Order further stated “This order is issued as a result of records available to this headquarters which reflect the following information: On 2 Mar. 85, you were cited for possession/use of a controlled/dangerous substance.”

Sonja Berry did not comply with this Order, because she did not want to leave, her family. After being charged with trespassing, she did finally comply, leaving the base in August, 1985 and not returning until the Court had issued the T.R.O. In August 1985, Sergeant Young approached Colonel Bean requesting that he rescind the Bar Order. Sergeant Young explained that the Bar Order caused hardship to his family by interfering with the daily care of a younger child. Sonja’s mother, who had been married to Sergeant Young for 13 years, had died in 1984, and Sonja had thereafter assisted her stepfather in caring for a 12-year old child in the family.

Colonel Bean refused to rescind the Bar Order permanently, mainly because of Sergeant Young’s attitude. He instead suggested to Sergeant Young that he move his entire family from the base. Colonel Bean did agree to permit Sonja to return to live with her family temporarily. On August 26, 1985, Colonel Bean temporarily suspended the Bar Order until October 1,1985. Sonja did not then return because she had a job in Arlington, Virginia where she had been residing with her father’s fiancee. When counsel’s request that the Bar Order be permanently rescinded was denied by Colonel Bean, this civil action was instituted.

II

The Applicable Law

Whether to grant or deny a motion for a preliminary injunction is a decision committed to the sound discretion of the trial court. First Citizens Bank & Trust Co. v. Camp, 432 F.2d 481, 483 (4th Cir.1970). The proper standard to be applied in determining whether a preliminary injunction should issue is the flexible “balance of hardship” test enunciated in Blackwelder Furniture Co. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir.1977). Four factors must be considered by the Court as follows (550 F.2d at 193):

1. The likelihood of irreparable harm to the plaintiff without an injunction;
2. The probability of success on the merits;
3. The likelihood of harm to the defendant if an injunction is issued; and
4. The public interest.

The two more important factors are those of probable irreparable injury to the plaintiff without a decree, as compared to the likely harm to the defendant if one is issued. If the balance is struck in favor of the plaintiff, it is enough that grave or serious questions are presented, and plaintiff need not show a likelihood of success. See 550 F.2d at 196. However, the Fourth Circuit in Blackwelder pointed out that the importance of probability of success increases as the probability of irreparable injury diminishes. 550 F.2d at 985. Thus, it is apparent that these two factors must be considered at the outset in relation to each other.

Ill

Discussion

Insofar as the question of irreparable harm to the plaintiffs is concerned, this Court finds and concludes that the plaintiffs have met their burden on the record here. Defendants seek to bar a teenager from living with other members of her family with whom she has resided for many years. In addition, Sonja Berry seeks to attend a Community College located on Andrews Air Force Base. If she resides with her parent on the base she will qualify for resident tuition rates. Her intention is to attend this College and when not at school assist her stepfather in caring for the younger child in the family.

Breaking up this family unit for an indefinite period of time would undoubtedly cause great harm both to Sergeant Young and to his stepdaughter Sonja Berry, as well as to others in the family. If this Bar Order is not rescinded, this teenager, who is not employed, will be required to live on her own in the metropolitan Washington, D.C. area. Moreover, it appears that if she cannot live at Andrews Air Force Base, she would not be able to attend Community College on the base, a few blocks from Sergeant Young’s home. Certainly she would suffer irreparable harm if she would not because of this Bar Order be permitted to be with and be supported by her parent and also further her education.

The harm to defendants on the other hand would be minimal. Defendants argue that Colonel Bean’s authority would be diluted in the eyes of the military community if Sonja Berry is permitted to return to live with other members of her family. Any such dilution under the circumstances here would be insignificant. Indeed, it appears that Colonel Bean was prepared to rescind the bar order permanently had Sergeant Young’s attitude been better. Colonel Bean has stated that had Sergeant Young shown concern “about Ms. Berry’s drug abuse and a willingness to take responsibility for improving her behavior, I would seriously have considered rescinding the bar letter.” In any event, in spite of Colonel Bean’s concern about the dilution of his authority, the Bar Order was temporarily rescinded, and for a period of some 5 weeks from August 26,1985 until October 1,1985, Sonja was granted permission to return to the base and live with her family. In view of these circumstances, it appears that, even in the eyes of Colonel Bean, Sonja’s offense was not so serious that some accommodation would not be possible without doing harm to the Colonel’s authority.

Colonel Bean has asserted that it is his responsibility “to see that dangerous or undesirable elements are excluded from the base.” Sonja Berry hardly qualifies on the facts here as either dangerous or undesirable. On the contrary, this Court finds that because of her youth, this teenager made an unfortunate mistake. She smoked marijuana off the base with her date. From her testimony, I am satisfied that she now acknowledges her mistake and will take steps to see that it is not repeated. Based on these facts, the finding is that the harm to defendants if a preliminary injunction is entered would be minimal.

I am further satisfied that plaintiffs have met their burden of showing a probability of success. Undoubtedly a commanding officer has broad discretion to exclude civilians from a military base. See Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). However, this power cannot be exercised in a manner that is arbitrary or discriminatory. United States v. Albertini,—U.S.-,-, 105 S.Ct. 2897, 2907-2908, 86 L.Ed.2d 536 (1985). Moreover, Colonel Bean cannot take any action which is inconsistent with statutory or regulatory limits on his power to exclude civilians from his base. Idem. Air Force Regulations state that the Base Commander’s action “must be reasonable in relation to his responsibility to protect- and preserve order on the installation and to safeguard persons and property thereon.” U.S. Air Force Reg. No. 355-11, Par. 1(b) (Sept. 10, 1971), quoted by the dissent in Albertini,—U.S.-, fn. 3, 105 S.Ct. 2909 fn. 3. Whether a post commander has acted arbitrarily or beyond the bounds of statutory or regulatory limits is a question which the courts are always open to decide. See United States v. Flower, 452 F.2d 80, 86 (5th Cir.1971), rev’d on other grounds, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972). The question here is whether the Order was rational. Weissman v. United States, 387 F.2d 271, 273 (10th Cir.1967).

In this particular case, plaintiffs have produced sufficient proof to show that they would probably succeed in establishing that Colonel Bean’s action was arbitrary and at least was not reasonable or rational. Moreover, it was beyond certain statutory limits. His original notice on March 13, 1985 indicated that the action taken was merely to warn Sergeant Young and his stepdaughter that future conduct of this sort would not be tolerated. Suddenly, less than two weeks later, Colonel Bean upped the ante and issued his Bar Order. There was nothing that Sonja did nor any additional facts which came to light within the 12-day period between March 13 and March 25, which would support the more stringent penalty imposed. Indeed, the police report had already been seen by Colonel Bean since Sonja had been cited for possession of marijuana on March 2, 1985.

Colonel Bean asserts that he did not intend the March 13 letter to dispose of the matter. A reading of the letter itself belies that contention. He stated, “If any further incidents involving Sonja take place, it will be necessary for me to consider more stringent measures. The options available to me include ... imposition of restrictions and conditions on Sonja ...” Assuredly this warning letter was intended to dispose of the matter, absent any further incidents involving Sonja—and there were none. Had Colonel Bean intended that more drastic action would be taken at a later time, he presumably would have so stated in his March 13 letter to Sergeant Young. Thus, there is nothing in the record to support Colonel Bean’s sudden and unsupported decision to change a mere warning to a teenager and her parent into an expulsion order. Under these circumstances, plaintiffs have met their burden of showing probable success as to their contention that the action taken was arbitrary.

This conclusion is supported by the letter of September 16, 1985 which Colonel Bean sent to counsel for the plaintiffs. In that letter, he refused to rescind the Bar Order and stated that his determination was based upon a number of factors. The first factor mentioned by him was that Ms. Berry had “pled guilty to possession of a controlled dangerous substance, marijuana, while within the confines of Andrews Air Force Base.” He further stated: “She was sentenced to 12 months probation and fined $125 by the federal magistrate.”

What Colonel Bean overlooked was that Ms. Berry’s case was disposed of pursuant to the provisions of 21 U.S.C. § 844(b). The plea was a conditional plea, subject to being set aside later. Section 844(b) is available for youthful first offenders such as Sonja, and it was so employed by the United States Magistrate. Since Sonja was not over 21 years of age, no judgment of guilty was entered at the time that she appeared in court, but further proceedings were deferred and she was placed on probation for one year. Under the statute, upon expiration of her period of probation, she will be discharged and the proceedings will be dismissed against her, without any adjudication of guilt. Moreover, she would have the right to apply to the Court for an order to expunge from all court records any recordation relating to her arrest and subsequent proceedings. The statute specifically provides that a dismissal of the charges should not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime “or for any other purpose.” The statute further provides that the youthful offender is entitled to an expungement order on dismissal of the charges, the effect of which is to restore such person to the status occupied before the arrest.

It is accordingly apparent from his letter of September 16, 1985, that Colonel Bean based his Bar Order on his perception that Ms. Berry had been convicted and sentenced for this offense. But clearly there was no final conviction. Unless she violates the terms of her probation (and there is no indication that there has been any such violation in the ensuing 9 month period), Colonel Bean has acted contrary to § 844 and has used Sonja’s conviction for a purpose not permitted by law.

The charges against her, contrary to the provisions of § 844(b)(1), have been used for the purpose of excluding her from the base. Moreover, she cannot, if the Bar Order is upheld contrary to the provisions of § 844(b)(2), be restored to the status she occupied before her arrest. Thus, Colonel Bean’s action is inconsistent with the statutory limits of § 844, which would not permit him to exclude a civilian like Sonja from the base for the reason assigned by him. See U.S. v. Alibertini, supra.

Once again, Colonel Bean, after the fact, has asserted in his affidavit that he did not intend to imply in the September 16, 1985 letter that his bar order was based on the magistrate’s action. Once again, this assertion was made after litigation was commenced and will not be credited. The September 16,1985 letter speaks for itself, and it is apparent that one of the principal reasons for Colonel Bean’s action was Sonja’s plea of guilty and sentence. Colonel Bean’s belated denial will be accorded no weight.

There is other evidence to support this Court’s conclusion that plaintiffs would probably succeed in showing that Colonel Bean’s bar order was arbitrary or at the very least not reasonable. Colonel Bean’s solution to the problem was his suggestion that Sergeant Young remove himself and his family from the base. But plaintiff Young has neither the desire nor the means to do this. I am satisfied from the conflicting evidence here that Sergeant Young could not afford to move this family unit off the base into rental housing which would be appropriate. I would note that his wife, who worked as a nurse, died in 1984, and her contribution to family income is no longer available. It appears that the action taken by Colonel Bean was based in part on his perception of Sergeant Young’s attitude. Colonel Bean has stated that had Sergeant Young acknowledged that his daughter’s conduct was inappropriate and had he shown genuine concern about her behavior, Colonel Bean would have considered rescinding the Bar Order. It is thus apparent that the Base Commander’s perception of this enlisted man’s attitude has played a part in barring this teenager from residing as a part of the family unit on the base.

Finally, this Court is satisfied that the public interest supports the issuance of a preliminary injunction. It is certainly in the public interest that a family unit of this sort be kept together. It is certainly in the public interest that this unemployed teenager not be required to live alone, away from the guidance and support of her parent. If, as he professed to be, Colonel Bean was genuinely concerned about Sonja Berry’s attitude and her exposure to narcotics, the very worst thing that could happen would be her removal from the family home at age 18 with the requirement that she make her own way in a large metropolitan area. Finally, the public interest would clearly favor the continuation by Sonja Berry of her education at a Community College.

Defendants argue that since Sonja initially disobeyed the expulsion Order, she comes into Court with unclean hands and equitable relief should be denied. But if the expulsion Order was invalid (as this Court has found), there has been no transgression. Sonja honestly believed that she should not have been removed from her family because of what she had done. And this Court would agree, under all the circumstances here, that plaintiffs will probably prevail on this issue.

For all these reasons, plaintiffs’ motion for a preliminary injunction will be granted. Counsel for plaintiffs should prepare and submit an appropriate Order.


author: DIANA E. MURPHY, District Judge.

text:
    Steven DOE and Margaret Doe, individually and as the natural guardians of Jane Doe and Jean Doe, minor children, Plaintiffs, v. HENNEPIN COUNTY; Hennepin County Community Services Department Social Services Division—Child Protection; Hennepin County Community Services Department Social Services Division—Child Protection—Acute Unit; Raymond Ahrens, Division Director, individually and in his official capacity; Milton Henry, Supervisor, individually and in his official capacity; Gail Guthrie, Child Protection Worker, individually and in her official capacity; Carolyn McHenry, Child Protection Worker, individually and in her official capacity; Judith DuPre, Legal Section Worker, in her official capacity; the City of Mound, Minnesota; Bruce Wold, Chief of the Mound Police, individually and in his official capacity; William Hudson, Sergeant of the Mound Police, individually and in his official capacity; and Mindy Mitnick, Defendants.
    Civ. No. 4-84-115.
    United States District Court, D. Minnesota, Fourth Division.
    Dec. 6, 1985.
    As Amended Dec. 12, 1985.

      Corey L. Gordon, Minneapolis, for plaintiffs.
    Paul Donlin, and Alan Bradberg, Donlin & McBride, St. Paul, for defendant Mindy Mitnick.
    Rolf E. Gilbertson, Maun, Green, Hayes, Simon, Johanneson & Brehl, St. Paul, for Mound defendants, but did not participate in the proceedings.
    Marilyn J. Maloney, Asst. Co. Atty., Minneapolis, for Hennepin Co. defendants, but did not participate in the proceedings.
   MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

Plaintiffs Steven and Margaret Doe, individually and as the natural guardians of Jane and Jean Doe, minor children, brought this action for damages and injunctive relief against Hennepin County, several county agencies, officials and employees, Mound Police officials, Adrian Yackley, and Mindy Mitnick. Plaintiffs allege violation of their civil rights and base their complaint on 42 U.S.C. § 1983 and various tort theories. On June 26, 1984, this court granted defendant Yackley’s motion to dismiss the complaint against him, granted the Hennepin County defendants’ motion for summary judgment on a 42 U.S.C. § 1985(3) count, denied the Hennepin County defendants’ motion to dismiss or, for summary judgment in all other respects, and granted plaintiffs’ request to amend their complaint. The matter is presently before the court on the motions of defendant Mindy Mitnick to dismiss or, in the alternative, for summary judgment. Also before the court is plaintiffs’ motion for partial summary judgment determining that defendant Mitnick acted under color of state law.

Background

The parties have submitted,- and the court has considered, affidavits and certain exhibits. For the purposes of this motion for summary judgment, the court takes as true plaintiffs’ factual assertions.

On December 21, 1982, sheriff’s deputies and police officers went to the home of Steven and Margaret Doe and removed two of the Does’ children, two-year-old Jane and five-year-old Jean. The Honorable Allen Oleisky, Judge of Minnesota District Court, had issued the warrant authorizing the childrens’ removal on the basis of an Emergency Warrant, prepared by Hennepin County authorities, which alleged that the Doe parents sexually abused their children and involved them with drugs. Plaintiffs assert that the petition was distorted and false in a number of respects and’ that the investigation which preceded it was biased, dishonest, and contrary to state law.

On December 22, the Does and their counsel appeared at a Juvenile Court hearing. Adrian Yackley, the primary source of Hennepin County’s evidence, was not present. The Does assert that other County witnesses gave misleading testimony. The Juvenile Court referee continued the emergency hold on the children. In the days following the Juvenile Court hearing, the Does deposed Yackley and his wife. The Does argue that Mrs. Yackley’s testimony casts serious doubt on the veracity of her husband’s allegations and that Yackley’s own behavior at deposition suggésted that he was distorting and possibly falsifying reports of sexual abuse.

On January 5, Hennepin County caseworker Richard Cronk went to the Doe home and interviewed the Does and their children. This appears to have been the first time a Hennepin County employee went to the Doe home and met with the family members. The Does assert that, based on his discussions with the Does and the interview of the children, Cronk felt the allegations against the Does were without foundation. They state that Cronk told them the matter would be dropped. Plaintiffs allege that defendants, in particular Ahrens, attempted to convince Cronk to change his opinion in order to justify the actions defendants had already taken. They argue further that because Cronk refused to change his opinion, Hennepin County was ultimately forced to withdraw the petition and settled the case.

On January 6, 1983, the Juvenile Court was to hear the Does’ appeal from its December 22 order. The Does allege that they and Cronk were surprised to discover that Hennepin County had that day filed a Dependency and Neglect Petition against the Does. The parties reached an agreement, however, whereby the Juvenile Court dismissed the Petition, the parents agreed to undergo regular counseling with defendant Mindy Mitnick, and the children were returned to their parents. Pursuant to this agreement, Judge Oleisky ordered the Does to consult with Mitnick. Plaintiffs admit they selected Mitnick’s name from a list of court-approved psychologists, but they claim they entered into the agreement because they feared it was the only way to win their children’s return. Plaintiffs also state that they felt a need for counseling to help their children recover from the trauma of being taken from their home. They now argue that Hennepin County’s list included only biased psychologists.

After nine sessions with Mitnick, the Does sought to terminate counseling. The Does assert that Mitnick was “positive and encouraging ... and agreed that it was appropriate for [the] counseling sessions with her to, end.” Affidavit of Margaret Doe (plaintiff’s exhibit A).

In a report to Cronk, dated April 12, 1983, Mitnick found “no information supporting the allegations of child abuse by Mr. Doe.” Mitnick did, however, recommend that the matter be referred to Hennepin County Child Welfare to ensure “ongoing monitoring” of the Doe family. Mitnick based this recommendation on her observations during counseling sessions and several tests she administered to members of the Doe family. Memorandum to Richard Cronk from Mindy Mitnick (defendant’s exhibit E). Plaintiffs assert that Mitnick’s report included “gross distortions and preposterous conclusions based on innocuous incidents” intended to demonstrate pathology and justify continuing involvement in the Doe family’s lives.

The Does’ current psychologist, who has served as an expert witness in child abuse cases, charges that Mitnick improperly administered and incorrectly interpreted the Minnesota Multiphasic Personality Inventory (MMPI), on which she based much of her conclusion of family pathology. Deposition of Ralph C. Underwager, Ph.D. (plaintiff’s exhibit B). He further finds that Mitnick misinterpreted the conduct of various Doe family members, labelled normal behavior inappropriate and pathological, and improperly relied on highly subjective lay assessments of behavior. Dr. Underwager asserts that Mitnick’s report was “not based on sound psychological principles, exceeded the scope of an evaluation normally performed by a psychologist under the circumstances, and served as an investigative evaluation rather than a therapeutic counseling report.”

On May 31, 1983, the Does notified Hennepin County of their intent to bring this litigation. Their attorney states that Cronk confirmed his intention to close the Doe file in a June 14 conversation. On June 27, 1983, defendant Milton Henry, Supervisor of Child Protection, wrote to the Does’ attorney, stating that Cronk had “completed his services on [the] ease” and that “[b]ecause of the results of the diagnostic evaluation by ... Mitnick ... and other factors that indicate the need for parental counseling” the Department was “considering the possibility of referring the case to Child Welfare for counseling.” (Plaintiff’s exhibit F.)

The Does then brought an unsuccessful motion to enjoin the County from continuing involvement in their family. Plaintiffs assert that Mitnick’s reply reiterated her concerns regarding the Doe family, expressly basing them on the Does’ “denial” of family problems and the “serious problems” suggested by the MMPIs. She also referred again to a previously mentioned incident which she considered extremely “problematic.” Mitnick requested the “intake record” to enable her to determine “whether intervention should be required.” (Letter of August 8, plaintiff’s exhibit I).

On August 12, after meeting with counsel, Henry again wrote Mitnick, stating that he would send her the original intake record. (Plaintiff’s exhibit K.) On the basis of that intake information, information which the Does have charged is deceptive and misstated, Mitnick expressed additional concerns about the Does. She noted, however, that the material did not reflect “any new information specifically related to abuse of children but more ... a pattern of minimization and denial found in abusive families as well as in other families.” (Plaintiff’s exhibit M.)

Plaintiffs argue that, while Mitnick found no evidence of sexual abuse, she acted to assist her co-workers and insulate them from liability by wrongfully interpreting psychological data to create the impression that the Doe family exhibited some psycho-pathological traits that would justify misinterpretation and concern on the part of the County defendants. Plaintiffs also allege that the Hennepin County defendants conspired to insulate themselves from a lawsuit arising from their actions. They claim the defendants sought to justify continued involvement of Hennepin County Child Protection in the lives of the Does, partly by procuring false psychological reports from Mitnick, despite all the evidence that the Doe file should be closed.

Plaintiffs assert that as a result of these activities of Mitnick and the other defendants, the Does suffered the threat of another traumatic family separation. Dr. Under-wager states that their continued fear and distress has had grave and lasting effects on all of the plaintiffs.

Discussion

Plaintiffs base their § 1983 claim against Mitnick on two theories. They argue that she conspired with other defendants to cover up their earlier violations of the Does’ constitutional rights, thus violating the Does’ right to seek redress of their grievances. Additionally, the plaintiffs argue that Mitnick acted and conspired to ensure that the County would remain involved in the Doe family’s life, thus causing long term, serious psychic trauma to the family.

Defendant Mitnick seeks dismissal or summary judgment on the claims against her, arguing that she is entitled to either absolute or qualified immunity and that plaintiffs have failed to state a claim against her because they have failed to show state action or causation, both necessary elements of a § 1983 claim. Mitnick also argues that plaintiffs’ allegations of conspiracy are vague and conclusory and should therefore be dismissed.

In passing upon a motion for summary judgment, the court must view the facts in the light most favorable to the party opposing the motion and give that party the benefit of all reasonable inferences to be drawn from the underlying facts disclosed in pleadings and affidavits. Ralph’s Distributing Co. v. AMF, Inc., 667 F.2d 670 (8th Cir.1981); Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076 (8th Cir.1980). Thus, Mitnick must establish her right to judgment as a matter of law; there must be no genuine issue of fact and no room for doubt or controversy.

Court-appointed therapists are entitled to absolute immunity for acts committed within the scope of their appointments. See In Re Scott County Master Docket, 618 F.Supp. 1534, 1552-54 (D.Minn.1985) (MacLaughlin, J.). See also Lawyer v. Kernodle, 721 F.2d 632 (8th Cir.1983) (citing Burkes v. Callion, 433 F.2d 318 (9th Cir.1970) (per curiam), cert. denied, 403 U.S. 908, 91 S.Ct. 2217, 29 L.Ed.2d 685 (1971); Bartlett v. Weimer, 268 F.2d 860 (7th Cir.1959)). Absolute immunity protects important public interests, see, e.g., Briscoe v. Latlue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), but it is not without its costs, id. at 345, 103 S.Ct. at 1121. Psychologists and other experts would be reluctant to accept court appointments if they thereby opened themselves to liability for their actions in this official capacity.

Plaintiffs argue that Mitnick was not “appointed”, but Judge Oleisky’s Order of January 26, 1983 reflects her appointment pursuant to an agreement between the Does and Hennepin County. The Does’ motive at the time does not alter Mitnick’s status.

Plaintiffs also argue that Mitnick exceeded the scope of her appointment by obtaining certain records after the Does stopped counseling with her, by revising an evaluation on the basis of those records, and by providing an opinion on the need for continued intervention in the Doe family. Judge Oleisky clearly ordered the Does to counsel with Mitnick and to sign releases necessary to allow the exchange of certain information between Mitnick and the Bureau of Social Services. Plaintiffs object to the manner in which Mitnick performed her court appointed' duties. Plaintiffs’ expert witness, Dr. Underwager, questions the psychological principles on which defendant’s report is based and the scope of her evaluation. The plaintiffs have not, however, asserted facts showing that defendant exceeded the scope of Judge Oleisky’s order. There is no showing that Mitnick was not functioning as a psychologist at all relevant times. Plaintiffs do not overcome Mitnick’s immunity by asserting that she was not a good psychologist, or that she should have been a better psychologist.

Plaintiffs agreed to participate in counseling with a psychologist and selected Mitnick from the list of available psychologists. Pursuant to their agreement she was officially appointed by Judge Oleisky, and it was in the scope of this capacity that she took the actions about which plaintiffs complain. On the record before the court defendant Mitnick has established her right to summary judgment as a matter of law.

Because of this resolution it is not necessary to reach the other issues raised by the parties.

ORDER

Accordingly, based on the above and all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that

1. The motion of Mindy Mitnick for summary judgment is granted, and plaintiffs’ claims against her are dismissed.

2. Plaintiffs’ motion for partial summary judgment is denied as moot.

      . Due to the sensitive nature of this case, plaintiffs are proceeding under the assumed name of "Doe”. See June 28, 1983 Order of District Court.

      . The parties have submitted, and the court has considered, material outside the pleadings. The court must therefore consider this motion as one for summary judgment. See Fed.R.Civ.P. 12(b)(6).

      . Plaintiffs' reliance on Judge McLaughlin’s decision in the Scott County cases concerning Bu-chart defendant DeVries is misplaced. There was no evidence that DeVries had been appointed by the court before she began meeting with plaintiffs' children; here it is clear that Mitnick was appointed by Judge Oliesky before she began meeting with the Does.


author: •LASKER, District Judge.

text:
    Barshai ALLAH, a/k/a Allah Barshai, Petitioner, v. Eugene LeFEVRE, Superintendent of Clinton Correctional Facility, Respondent.
    No. 85 Civ. 3678 (MEL).
    United States District Court, S.D. New York.
    Dec. 9, 1985.
    As Amended March 3, 1986.
    Philip L. Weinstein, the Legal Aid Society (Henry Winestine, of counsel), New York City, for petitioner.

      Robert M. Morgenthau, Dist. Atty., New York County, (Norman Barclay, Bruce Allen, Asst. Dist. Attys., of counsel), New York City, for respondent.
   •LASKER, District Judge.

Petitioner Barshai Allah seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982) on the ground that his conviction was obtained in violation of his Sixth Amendment right to effective assistance of counsel. Four years ago this court dismissed a nearly identical’petition by Allah for failure to exhaust state remedies. Allah v. Henderson, 526 F.Supp. 282 (S.D.N.Y.1981), aff'd mem., 697 F.2d 287 (2d Cir. 1982). We conclude that an evidentiary hearing is necessary and appropriate under the circumstances in order to develop the factual record.

I.

As stated in the earlier decision:

Allah was convicted of robbery, assault, and criminal possession of a weapon on September 7, 1977, following a trial by jury in the Supreme Court of New York County. The conviction was affirmed by the Appellate Division, First Department, sub nom. People v. Barshai, 72 A.D.2d 503, 420 N.Y.S.2d 526 (1979). Leave to appeal to the New York Court of Appeals was denied by certificate dated November 26, 1979.

Allah and his co-defendant, Wise Gillette (“Gillette”) were arrested together approximately an hour after the robbery in question. According to the police officers’ testimony, at the time of the arrest Allah and Gillette were in possession of property which was later determined to be the proceeds of the robbery. Prior to trial, Gillette, who was represented by separate counsel, moved to suppress the property found in his possession. A hearing was held on Gillette’s suppression motion at which one of the arresting officers stated that Gillette and Allah were stopped “because they looked like two suspicious black males in a predominantly white neighborhood.” Gillette’s motion was granted on the grounds that, at the time of the stop, the police officers did not have “a founded suspicion or reasonable belief that the defendant was armed or otherwise engaged in any criminal activity.” The indictment against Gillette was ultimately dismissed. Allah’s attorney did not join in Gillette’s motion to suppress, nor did he make a separate suppression motion after Gillette’s motion was granted.

At Allah’s trial, the only witnesses were the arresting officers, a witness to the arrest, and the victim. The victim was unable to identify Allah (see Trial Transcript at 55, Colloquy, Assistant District Attorney Kosloff: “Well, Judge, obviously this witness cannot make an identification.”) There were no witnesses to the incident other than the victim. Thus, the only evidence presented at trial which linked Allah to the robbery was the stolen property.

Allah v. Henderson, 526 F.Supp. at 283.

In the present petition, as in the previous one, Allah contends that his constitutional right to effective assistance of counsel was violated by the failure of his attorney to move to suppress the physical evidence that Allah argues was the fruit of an illegal stop. Allah maintains that since his co-defendant’s suppression motion was granted based on facts similar to those surrounding his own arrest, had his own attorney made a suppression motion it would likely have been successful. Allah also urges that but for his attorney’s omission he would not have been convicted because a successful suppression motion would have removed from the case the only evidence linking him to the crime.

The prior habeas petition was dismissed because:

[0]n th[e] record [before the court] it [was] simply not possible to divine what strategy impelled counsel to refrain from making the suppression motion in question. In the absence of any clue as to counsel’s motivation, the question of the adequacy of Allah’s counsel [could not] be properly resolved.

Allah v. Henderson, 526 F.Supp. at 284. Because the exhaustion requirements contained in 28 U.S.C. § 2254 had not been met, that is, because the additional, necessary facts had not been presented to the state courts, the petition was dismissed. Id. at 284-85.

Following dismissal of his habeas petition, Allah returned to the state courts and raised his ineffective assistance claim in a motion to vacate the judgment of conviction, pursuant to New York Criminal Procedure Law § 440.10(1)(h) (McKinney 1983). Included in the moving papers was an affirmation by Allah’s present counsel stating that he had learned by telephone from petitioner’s former trial attorney that although the latter had been aware of the co-defendant’s successful suppression motion, he believed Allah lacked standing to move to suppress. Petitioner’s Memorandum of Law at 11-12. Without holding an evidentiary hearing, Justice Rothwax of the New York Supreme Court denied the motion in an oral opinion on April 11, 1983.

On appeal, the Appellate Division unanimously affirmed the lower court’s decision. People v. Barshai, 100 A.D.2d 253, 474 N.Y.S.2d 288 (1st Dept.1984). In his opinion for the court, Judge Sandler concluded that “in the then existing state of the law, defense counsel had a solid basis for the judgment that defendant lacked standing to move to suppress items of property which he denied owning or possessing,” id. at 256, 474 N.Y.S.2d at 290, and that the trial attorney “could reasonably have believed that a motion to suppress, even if the standing obstacle was overcome, had little chance of success,” id. at 261, 474 N.Y.S.2d at 293. Notwithstanding the decision to reject Allah’s ineffective assistance claim, Judge Sandler recognized “that the central importance of the items of evidence in question to the outcome of defendant’s trial was such that any reasonable doubt counsel entertained as to the viability of a motion to suppress should have been resolved in favor of making the motion.” Id. at 256, 474 N.Y.S.2d at 289-90. Moreover, Judge Sandler acknowledged as “troublesome” and “disquieting” the fact that Allah’s co-defendant did not confront standing obstacles in making his motion to suppress. Id. at 261, 474 N.Y.S.2d at 292. Presiding Judge Murphy and Judge Carro concurred in a brief opinion by Presiding Judge Murphy. Id. at 262, 474 N.Y.S.2d at 293.

Leave to appeal to the New York Court of Appeals was denied. 62 N.Y.2d 804, 477 N.Y.S.2d 1028, 465 N.E.2d 1271 (1984). The Supreme Court denied a petition for certiorari on October 9, 1984.—U.S.-, 105 S.Ct. 257, 83 L.Ed.2d 193 (1984).

II.

Although the decision of this court dismissing Allah’s prior habeas petition had as its objective a development of the facts, the factual record in Allah’s eight-year odyssey through the state and federal courts continues to lack actual evidence as to the reasons for his trial counsel’s failure to make a suppression motion. Nevertheless, the state courts had the opportunity to pass on both the legal and factual aspects of the constitutional claim when the petitioner’s N.Y.Crim.Proc.L. § 440.10 motion placed the issue squarely before them. Consequently, Allah is found to have exhausted his state remedies. The State does not argue to the contrary.

III.

The decision on Allah’s earlier habeas petition, in addition to ruling on the exhaustion issue, also briefly considered the State’s argument that petitioner’s claim was not cognizable in a federal habeas corpus proceeding under the rule of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), as interpreted in LiPuma v. Commissioner, 560 F.2d 84 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 189, 54 L.Ed.2d 135 (1977). The State renews this argument in the present proceeding.

In Stone v. Powell the Supreme Court held that

where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

428 U.S. at 494, 96 S.Ct. at 3052 (footnotes omitted). Just a year later, the Court of Appeals for the Second Circuit in LiPuma v. Commissioner, supra, considered a habeas challenge in which the petitioner claimed his Sixth Amendment right to effective assistance of counsel had been violated by his attorney’s alleged incompetence in failing to make a suppression motion until mid-trial, at which time it was barred as untimely.

Although the Court of Appeals in LiPuma engaged in a full analysis of the petitioner’s claim under the law then governing effective assistance of counsel before concluding that his constitutional rights had not been violated, the panel held in a brief, penultimate paragraph that “a full and fair consideration was given to all of the issues in this case by the courts of the State of New York and the case comes within the holding of Stone v. Powell.” 560 F.2d at 93. The panel explained its reasoning in a footnote:

The fact that petitioner’s claim is ostensibly grounded on the Sixth, rather than the Fourth, Amendment does not negate Stone’s applicability, because at the heart of this case lies an alleged Fourth Amendment violation____ The same remedy of exclusion is now sought by way of a collateral habeas corpus proceeding, where a Sixth Amendment claim has been added for good measure.

Id. at 93 n. 6.

Basing its argument on LiPuma, the State contends, as it did on the earlier petition, that since Allah’s ineffective assistance claim is grounded in an alleged Fourth Amendment violation, he is barred from seeking habeas corpus review.

In response, Allah advances two alternative arguments that LiPuma does not preclude a habeas court from hearing a Sixth Amendment claim based on counsel’s failure to make a suppression motion. He contends first that, notwithstanding LiPuma, under Stone v. Powell a Fourth Amendment claim may always be considered in a habeas corpus proceeding if the petitioner did not have the opportunity for full and fair litigation of the claim in the state courts, and that he did not have such an opportunity. Second, Allah contends that the portion of LiPuma that construes Stone v. Powell is not only dictum but also distinguishable from the instant case on its facts and erroneously decided.

A.

Allah’s first argument rests on a questionable reading of the decision of the Second Circuit Court of Appeals in Gates v. Henderson, 568 F.2d 830 (2d Cir.1977), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978). Gates was an en banc decision on the question of whether a habeas petitioner who had raised a Fourth Amendment issue for the first time on appeal of his New York state conviction, and who had been deemed by the New York Court of Appeals to have waived his claim (under the state’s then applicable procedural law) by not making a contemporaneous objection at trial, had been given the opportunity for full and fair litigation of his Fourth Amendment claims in the state courts under the rule laid down in Stone v. Powell. The court concluded that he had and that federal habeas corpus relief was therefore unavailable. In reaching this result the court held that habeas review would be appropriate only in limited circumstances:

If the state provides no corrective procedures at all to redress Fourth Amendment violations, federal habeas corpus remains available. It may further be that even where the state provides the process but in fact the defendant is precluded from using it by reason of an unconscionable breakdown in that process, the federal intrusion may still be warranted.

Gates v. Henderson, 568 F.2d at 840 (citations omitted).

Allah does not contend that New York lacks the corrective procedures for the redress of Fourth Amendment violations. Rather, he focuses on the words, “unconscionable breakdown,” and argues that ineffective assistance of counsel constitutes such a breakdown. Though petitioner cites no subsequent cases interpreting the concept of an “unconscionable breakdown” of available corrective procedures, he suggests that Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), provides guidance in this area.

In Sykes the Supreme Court held that a procedural default such as petitioner’s failure to move to suppress at trial, which has the effect of preventing the state courts from ever considering a defendant’s claim on the merits because of a state contemporaneous objection rule, would foreclose federal habeas review unless both “cause” for failure to object at trial and “actual prejudice” from the admission of the challenged evidence could be established. 433 U.S. at 90-91, 97 S.Ct. at 2508-09. The Court also stated that it believed its holding would “not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who in the absence of such an adjudication will be the victim of a miscarriage of justice.” Id. at 91, 97 S.Ct. at 2508; see also Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982) (“cause” and “actual prejudice” not rigid concepts; “those principles must yield to the imperative of correcting a fundamentally unjust incarceration”).

Petitioner here maintains that he has satisfied the “prejudice” factor of the Sykes standard because the evidence he would have had suppressed was the only evidence that linked him to the crime of which he was convicted. The “cause” factor is also satisfied, Allah contends, because ineffective assistance of counsel that rises to the level of a Sixth Amendment violation constitutes “cause” under the law of this circuit. See, e.g., Cantone v. Superintendent, 759 F.2d 207, 218 (2d Cir.1985); Tsirizotakis v. LeFevre, 736 F.2d 57, 62 (2d Cir.), cert. denied,—U.S.-, 105 S.Ct. 216, 83 L.Ed.2d 146 (1984).

The sum of his argument, according to Allah, is that ineffective assistance of counsel constitutes “cause” under Sykes, which is the equivalent of Gates’ “unconscionable breakdown” exception, which in turn would indicate that he has not been afforded a full and fair opportunity to litigate his claim in the state courts.

Allah’s chain of reasoning breaks, however, in its attempt to link ineffective assistance of counsel to an unconscionable breakdown in state procedures for correcting Fourth Amendment violations. First, it is plain from the majority opinion in Gates that the Court of Appeals had something other than ineffective assistance of counsel in mind when it speculated that an unconscionable breakdown in state process might permit federal habeas review. 568 F.2d at 840. The court followed its speculation with citations to the case of Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915) (Holmes, J. and Hughes, J., dissenting), a Supreme Court refusal to grant a writ of habeas corpus to a petitioner convicted of murder in a state trial claimed to have been dominated by an angry mob—a decision which the later lynching of the petitioner and history, see, e.g., L. Dinner-stein, The Leo Frank Case (1968), has overruled—and to a law review article in which the author suggests situations such as the bribing of a trial judge, the prosecution’s knowing use of perjured testimony, and a guilty plea extracted by torture that would justify federal habeas corpus inquiry, Ba-tor, Finality in Criminal Law and Federal Habeas Corpus For State Prisoners, 76 Harv.L.Rev. 441, 457 (1963). Such references by the Gates court carry no implication that either ineffective assistance of counsel, specifically, or the entire range of problems encompassed by “cause” under Sykes, generally, was envisioned as falling within the “unconscionable breakdown” exception to the general rule precluding federal habeas consideration if state corrective procedures are available.

Second, were petitioner’s interpretation of the decision in Gates to be accepted, the contemporaneous holding in LiPuma barring federal habeas consideration of Sixth Amendment ineffective assistance claims grounded in Fourth Amendment objections would be drained of meaning. This is so because under Allah’s reasoning any such colorable Sixth Amendment claim would constitute an “unconscionable breakdown” of state redress procedures under Gates and thereby in all cases permit (assuming a showing of actual prejudice) the very habeas corpus review that LiPuma precludes.

Accordingly, petitioner’s first argument fails.

B.

Allah’s second argument—that LiPuma should not bar consideration of his habeas challenge—is, as we previously found in Allah, “not without force.” 526 F.Supp. at 286. It is certainly arguable that LiPuma’s construction of Stone v. Powell was dictum rather than an alternative holding, coming as it does in a single paragraph and footnote at the end of a nine-page opinion. See LiPuma, 560 F.2d at 93 & n. 6. In addition, Allah’s situation could be considered distinguishable from the facts of LiPuma in that his Sixth Amendment claim is not a subterfuge, as the Court of Appeals perceived LiPuma’s to be. Id. at 93 n. 6 (“a Sixth Amendment claim has been added for good measure”). Moreover, as stated in the earlier opinion in this case, LiPuma’s construction of Stone v. Powell is not entirely persuasive:

Were we writing on a fresh slate, we would conclude that Stone ... does not bar a federal habeas claim in which the allegation is that the petitioner has been denied a fair opportunity to litigate his claim due to the incompetence of his counsel; that is, that a bar against hearing a Fourth Amendment claim does not automatically preclude consideration of a Sixth Amendment claim which relates to a suppression matter.

Allah, 526 F.Supp. at 285-86. Indeed, the only circuit courts of appeals other than the LiPuma court to have decided this issue have held that Stone v. Powell does not bar federal habeas consideration of Sixth Amendment issues that are based on counsel’s alleged failure to advance Fourth Amendment claims. Morrison v. Kimmelman, 752 F.2d 918, 920-22 (3d Cir.), cert. granted,—U.S.-, 106 S.Ct. 59, 88 L.Ed.2d 47 (1985); Sallie v. State of North Carolina, 587 F.2d 636, 640 (4th Cir.1978), cert. denied, 441 U.S. 911, 99 S.Ct. 2009, 60 L.Ed.2d 383 (1979).

Despite the foregoing analysis, as we read LiPuma now and as we read it on the prior petition, see Allah, 526 F.Supp. at 286, it appears to be binding Second Circuit authority in this case. The rule stated in LiPuma as an alternative holding is framed broadly enough to encompass the facts of the instant case and would therefore preclude a habeas challenge such as Allah’s. The Supreme Court, however, has agreed to review the very issue of whether Stone v. Powell bars consideration of a petition such as Allah’s. Kimmelman v. Morrison,—U.S.-, 106 S.Ct. 59, 88 L.Ed.2d 47 (1985).

In light of this development, the imminent resolution by the Supreme Court of the controlling issue in this case, it is not appropriate to decide the issue at this time. In the interim, in order to shorten the time consumed in the ultimate disposition of Allah’s petition should the Supreme Court rule that federal habeas consideration is not precluded under these circumstances, an evidentiary hearing will be held to hear the testimony of Allah’s trial counsel on the reasons for his not making a suppression motion.

IY.

An evidentiary hearing in this case is appropriate. In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the Supreme Court, after describing the situations in which the holding of an evidentiary hearing in a habeas corpus proceeding was mandatory, stated:

In all other cases where the material facts are in dispute, the holding of such a hearing is in the discretion of the district judge____ In every case he has the power, constrained only by his sound discretion, to receive evidence bearing upon the applicant’s constitutional claim.

372 U.S. at 318, 83 S.Ct. at 760. The Court of Appeals for this circuit has strongly urged district judges in habeas proceedings to “hold an evidentiary hearing and develop a full factual record” so as to reveal “trial counsel’s reasons for foregoing a suppression motion.” United States v. Aulet, 618 F.2d 182, 186 (2d Cir.1980). See also Walker v. Wilmot, 603 F.2d 1038, 1041-42 (2d Cir.1979) (constitutionality of confession), cert. denied, 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 (1980).

There can be little dispute as to the existence of a factual lacuna in the record of this case. As Judge Sandler commented in his opinion affirming the denial of Allah’s motion to vacate the judgment of conviction, “The record is regrettably silent as to what, if any, had been the direct experience and observation of defendant’s trial counsel____” People v. Barshai, 100 A.D.2d 253, 258, 474 N.Y.S.2d 288, 291 (1st Dept. 1984).

The evidence adduced at the hearing at which Allah’s trial counsel will testify may well decide and will certainly inform the difficult question of whether the attorney’s assistance was effective or not. See Healy v. Malcolm, 496 F.Supp. 941, 943 (S.D.N.Y.1980). That Allah raises a serious ineffective assistance claim justifying such an evidentiary hearing can be gleaned from the State’s admission at oral argument that “nine out of ten attorneys would have made the motion” to suppress. See also People v. Barshai, 100 A.D.2d at 256, 474 N.Y.S.2d at 289-90 (central importance of items of evidence in question to the outcome of the trial was such that reasonable doubt as to viability of suppression motion should have been resolved in favor of making the motion).

Accordingly, the matter will be set down to hear the testimony of petitioner’s trial counsel as to the reasons for his not making a suppression motion.

It is so ordered.

      . Both parties have also briefed the issue of whether Allah’s trial counsel was ineffective, under the governing standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because we have decided to hold an evidentiary hearing to hear the testimony of Allah’s trial counsel, we do not reach the issue of ineffective assistance at this time.

      . LiPuma and Gates were decided within six weeks of each other, on July 11, 1977 and August 19, 1977 respectively. The majority opinion in Gates was written by Judge Mulligan, the only member of the panel that decided LiPuma who participated in the decision of Gates.

      . In this regard, petitioner makes the point that LiPuma may have been premised upon an error in logic to the extent that
      it was decided on the expressed assumption that LiPuma was seeking suppression in the habeas proceeding. However, the relief sought was not suppression, but only the opportunity for a suppression hearing in the state court, as the court itself noted in reciting the relief granted by the district court, 560 F.2d at 85.
      Petitioner’s Memorandum of Law at 23.

      . Courts of appeals in two other circuits have noted doubt on the issue but did not decide the question because they found the petitioners’ Sixth Amendment claims to be without merit. See Ryder v. Morris, 752 F.2d 327, 330-31 (8th Cir.), cert. denied,—U.S.-, 105 S.Ct. 2660, 86 L.Ed.2d 276 (1985); Christian v. McKaskle, 731 F.2d 1196, 1199 (5th Cir.1984).

      . The Court held that
      a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5)
      the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.

        Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). It is unnecessary to decide whether the instant case falls under any of the "mandatory” Townsend circumstances.