author: WEBER, District Judge.

text:
    The SHARON STEEL CORPORATION and the Carpentertown Coal and Coke Company, Plaintiffs, v. The VJR COMPANY and James Cook, Sr., Defendants.
    Civ. A. No. 84-753.
    United States District Court, W.D. Pennsylvania.
    Feb. 12, 1985.
    As Amended March 18, 1985.
    See also, D.C., 587 F.Supp. 544.

      Robert J. Cindrich, Pittsburgh, Pa., for plaintiffs.
    William A. Pietragallo, Pittsburgh, Pa., for defendants.
   OPINION

WEBER, District Judge.

Plaintiffs initiated this antitrust action and in response defendants jointly answered and filed a counterclaim on behalf of defendant James Cook, Sr. alleging that James Cook Sr. was wrongfully discharged from his position as outside yard superintendent at Carpentertown. Defendants have been permitted to amend their counterclaim pursuant to an earlier motion to dismiss. The case is now before the court on plaintiffs’ motion to dismiss defendants’ amended counterclaim. We will hereafter treat this as defendant Cook’s counterclaim. Both parties have supplied the court with briefs supporting their respective positions.

Defendant’s counterclaim consists of eight counts, the first of which alleges intentional interference with performance of an employment contract. Count VII alleges tortious interference with contractual relations. Both of these counts involve the factual allegations that Henry Evans, acting within the scope of his employment for Sharon Steel interfered with the employment contract between Carpentertown and James Cook, Sr.

Plaintiffs argue that Counts 1 and VII fail to state a cause of action. Plaintiffs claim that Henry Evans’ actions are privileged since he is also the president of Carpentertown. (Plaintiff’s Brief at p. 5). Moreover Carpentertown is the wholly-owned subsidiary of Sharon Steel. Thus Henry Evans, acting as an officer or employee of either and/or both plaintiffs, was in a position which required and permitted him to make employee evaluations and judgments about the termination of Carpentertown employees. Further, plaintiffs argue there is no third person interference, and Pennsylvania law does not permit a terminated employee to assert such claims against his own employer.

While we note that plaintiffs have not provided sufficient evidentiary materials to establish, without doubt, Henry Evans’ position at Carpentertown, and we therefore would be required on a motion to dismiss to assume that defendant’s allegations are true, Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), we agree with the plaintiffs that in this instance it is defendant’s responsibility to plead and prove the absence of such a privilege as an element of his cause of action. Bahleda v. Hankison Corp., 228 Pa.Super. 153, 323 A.2d 121 (1974); Geib v. Alan Wood Steel Company, 419 F.Supp. 1205 (E.D.Pa.1976). Defendant has not done so. Therefore Counts I and VII will be dismissed.

In Count II, defendant alleges wrongful discharge in violation of a public policy. A discharge in violation of a public policy is an exception to the general rule in Pennsylvania that at-will employees, absent a statutory or contractual provision to the contrary, may be terminated at any time, for any reason or no reason. Shipkowki v. United States Steel Corporation, 585 F.Supp. 66 (E.D.Pa.1983); Cisco v. U.P.S., Inc., 476 A.2d 1340 (Pa.Super.1984). The only possible reference to a public policy that the court can find in defendant's pleadings is the claim that “[ijmplicit in Pennsylvania law is the recognition that an individual cannot be unjustly dismissed.” (Amended Counterclaim, 1121). Defendant’s brief sheds no further light on the nature of the public policy alleged to have been violated. Since we can identify no well-defined and recognized public policy violation, we believe that Count II must be dismissed for failure to state a cause of action. See Wolk v. Saks Fifth Avenue, Inc., 728 F.2d 221, at 225 (3d Cir.1984); Adams v. Budd Company, 583 F.Supp. 711 (E.D.Pa.1984); Novosel v. Nationwide Insurance Company, 721 F.2d 894 (3d Cir.1983).

Defendant’s Count III alleges that the actions of Sharon Steel, Carpentertown and Henry Evans, in forcing James Cook, Sr. into quitting his job and taking early retirement, were intended to subject Cook, Sr. to suffer severe and damaging emotional distress, and were so outrageous as to constitute intentional infliction of emotional distress. We do not find the conduct alleged to be “[s]o outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Restatement, Torts 2d § 46, comment d (1979). Wells v. Thomas, 569 F.Supp. 426 (E.D.Pa.1983); Cautilli v. GAF Corp., 531 F.Supp. 71 (E.D.Pa.1982). Count III will therefore be dismissed.

Defendant’s Count IV alleges that the actions of Sharon Steel and Carpentertown constitute the violation of an oral contract. The factual allegations involved in this count are that Sharon Steel and Carpentertown, through its managing agents, extended oral commitments to James Cook, Sr. indicating that he was employed until such time as either he inadequately performed his job or there was no more work to be had at Carpentertown. It is clear from the pleadings that defendant James Cook, Sr. was an employee at will. Pennsylvania law presumes that an employee serves at the pleasure of an employer and that the relationship may be terminated by either party and at any time, absent a specific term of duration. Adams v. Budd Company, 583 F.Supp. 711, 713 (E.D.Pa.1984). Defendant does not sufficiently allege facts or circumstances from which the implied-in-fact oral contract can be inferred. Therefore Count IV will be dismissed.

Defendant’s Count V alleges that Sharon Steel and Carpentertown had an employee manual which imposed a contractual obligation to discharge an employee only for just cause and that by forcing defendant into early retirement there was a violation of an employee manual contract. Based on Richardson v. Charles Cole Memorial Hospital, 320 Pa.Super. 106, 466 A.2d 1084 (1983), and Wolk, 728 F.2d at 224, we find that this count does not state a claim upon which relief may be granted. Count V will therefore be dismissed.

Defendant’s Count VI alleges that Sharon Steel and Carpentertown followed the guidelines established in United Minie Worker’s contract and that these contracts provided discharge only on a showing of just cause. Accepting this as true, we do not believe that a nonunion, managerial employee obtained any legally enforceable rights by this voluntary choice of his employer. Count VI will therefore be dismissed.

Defendant’s Count VIII alleges that defendant was wrongfully discharged and that Sharon Steel was motivated by bad faith. No clear public policy has been violated, and therefore under Pennsylvania law, defendant, an employee at will, has no wrongful discharge action against his employer. Richardson, supra, Count VIII will be dismissed.

      . We note that the unpublished opinion cited as authority by defendants, Banas v. Matthews International Corp. (1984) Civil Action No. 1205, Pgh. 1982, was reargued en banc in December 1984. An opinion has not yet been issued.


source: Caselaw Access Project

author: SCOTT O. WRIGHT, Chief Judge.

license: Public Domain

text:
    URS COMPANY-KANSAS CITY, Plaintiff, v. TITUS COUNTY HOSPITAL DISTRICT, Defendant.
    No. 84-1289-CV-W-5.
    United States District Court, W.D. Missouri, W.D.
    Feb. 13, 1985.
    R. Frederick Walters, Linde, Thomson, Fairchild, Langworthy, Kohn & Van Dyke, Kansas City, Mo., Thoms V. Bender, Dallas, Tex., for plaintiff.
    Robert Weber, Atchley, Russell, Waldrop & Hl'avinka, Texarkana, Tex., for defendant.
   ORDER

SCOTT O. WRIGHT, Chief Judge.

Plaintiff has filed a complaint in this Court seeking an order compelling defendant to arbitrate its claim(s) against plaintiff as provided by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. Defendant has answered the complaint maintaining that the Federal Arbitration Act is inapplicable to the facts of this ease and, alternatively, that the arbitration clause in question does not cover any claim defendant may bring not sounding strictly in contract. For the following reasons, an order compelling arbitration will be entered.

Plaintiff is a Missouri corporation with its principal place of business in Jackson County, Missouri. Defendant, Titus County Hospital District, is a non-profit hospital district with the authority to sue and be sued. Defendant’s principal place of business is Mount Pleasant, Titus County, Texas. The amount in controversy exceeds $10,000, exclusive of interests and costs.

In December of 1970, the parties entered into a contract whereby plaintiff agreed to provide architectural and related services to the Hospital District. As a term and condition of the contract, Article 11.1 of the Agreement provided:

All claims, disputes, and other matters in question arising out of, or relating to, this Agreement or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining. This Agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law.

Defendant Titus County Hospital has filed an action against plaintiff for design malpractice, and breach of contract in the District (state) Court of Titus County, Texas. Defendant concedes the arbitrability of the contract aspects of their claim against URS, however, maintains their design malpractice claim, insofar as they characterize it as a tort action, is not arbitrable per the Agreement. Hence, defendant refuses to arbitrate those claims.

The Federal Arbitration Act, 9 U.S.C. § 1 et seq., provides that a written provision, in a contract involving commerce, to settle by arbitration a controversy arising out of such contract or transaction shall be valid, irrevocable, and enforceable save upon such grounds as exist at law or equity. 9 U.S.C. § 2. The Federal Act empowers a District Court to grant specific performance of such an arbitration provision. 9 U.S.C. § 4.

This Court neither resolves the underlying factual controversy nor weighs the relative merits of the parties’ claims. National Railroad Passenger Corporation v. Mo. Pacific Railroad Co., 501 F.2d 423, 429 (8th Cir.1974). The Court’s function in an action of this type does not extend beyond ascertaining whether the party seeking arbitration has made a claim which, on its face, is governed by the contract. Id. at 427-28. See, Hamilton Life Ins. Co. of New York v. Republic National Life Ins. Co., 408 F.2d 606, 609 (2nd Cir.1969). The standards to be applied are well-recognized and require a two-step analysis:

(1) Is there an agreement to arbitrate, and if so, how broad is its scope?
(2) Has there been a failure, neglect or refusal to perform said agreement?

Id. at 427, see also Galt v. Libbey-Owens-Ford Glass Co., 376 F.2d 711 (7th Cir.1967).

This Court’s first responsibility is to determine whether or not a particular dispute is arbitrable, which is to say whether or not the parties have agreed to submit the particular dispute to arbitration. National Railroad, supra, 501 F.2d at 427. This threshold question of arbitrability is a question of law, however, and must be decided in light of the well-settled federal policy to construe liberally arbitration clauses. See Davis v. Chevy Chase Financial Ltd., 667 F.2d 160, 167 (D.C.Cir.1981).

Defendant has asserted claims against plaintiff for breach of contract and design malpractice. Defendant maintains that as a tort claim, the malpractice claim is beyond the scope of the arbitration clause. It is defendant’s position that the arbitration clause only covers “contract” disputes between the parties.

In determining the scope of an arbitration clause, it must be remembered that as a matter of contractual agreement, a party should not be required to submit to arbitration any dispute which he has not agreed to so submit. However, the broad arbitration clause included in the contract herein supports a finding that all defendant’s claims against plaintiff are indeed properly arbitrable.

The arbitration clause neither expressly includes, nor excludes, tort claims from its purview. Nor does it attempt to limit its reach to contract claims. By its language it is very broad: “All claims, disputes, and other matters ... relating to this agreement ...” Defendant cannot seriously contend that their claim for design malpractice, whether sounding in tort or contract, does not relate to the contractual relationship between the parties. These claims are not of a general nature, peripheral to a narrow, specific arbitration clause. Cf. Davis v. Chevy Chase Financial, 667 F.2d 160, 166 (D.C.Cir.1981). Viewed in the context of the agreement between the parties and the nature of their relationship, claims of the type made by defendant are foreseeable and likely disputes arising out of or relating to the agreement. Consistent with the avowed federal policy to liberally construe arbitration clauses, the Court finds the defendant’s claims arbitrable.

Once finding the defendant’s claims arbitrable, their failure to perform their obligations under the agreement is obvious. Plaintiff has previously demanded arbitration of defendants, which defendants have refused. They have subsequently filed this action. 9 U.S.C. § 4 provides an abbreviated procedure for obtaining specific enforcement of an arbitration agreement. Congress’ goal was to further the use of arbitration as a method of expediting the disposition of commercial disputes and as a means of eliminating the expense and delay of extended court proceedings preliminary to arbitration. National Railroad, supra, 501 F.2d at 426. Defendant has received and responded to plaintiff’s complaint and demand for arbitration. Through the inclusion of a broad arbitration clause in their contract, they have agreed to submit these issues to arbitration. See 9 U.S.C. § 4.

This Court notes that the defendant has previously raised these claims in a pending (Texas) state court proceeding. While defendant correctly states that this Court has no power to order a stay of the Texas proceeding, neither has plaintiff requested one. The fact that the otherwise properly arbitrable claims were raised first in state court is no bar to the plaintiff’s (defensive) use of the Federal Arbitration Act. If that were the case, federal jurisdiction could be undercut by prompt commencement of state court proceedings, as that may well be the first notice a party has of the otherwise arbitrable claim.

Neither does comity diminish “the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.” See Colorado River Water Const. Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). Only in exceptional circumstances should a federal court properly defer to a state court proceeding. Factors which might justify such deference include: (1) state court assumption of jurisdiction over a res; (2) desirability of avoiding piecemeal litigation; (3) inconvenience of the federal forum; (4) order of initiation of the two actions. Id. 96 S.Ct. at 1247. Viewing the facts of this case in light of the above factors, there is no need for this Court to defer to the Texas state court action involving these parties and claims.

Accordingly, for the above stated reasons, it is hereby

ORDERED that the parties promptly proceed to arbitration in accordance with the terms and conditions of their agreement, the hearing and proceedings to be held in this district. It is further

ORDERED that the parties file a status report within sixty (60) days apprising the Court of the progress in carrying out the order of this Court.

      . The Federal Arbitration Act itself does not furnish an independent basis of federal subject matter jurisdiction; subject matter jurisdiction must exist through a source other than this title.

      . Commerce, as defined, includes "... commerce among the several states ...” 9 U.S.C. § 1, and is satisfied herein.

      . See, 9 U.S.C. § 3 (court may stay suit or proceeding in any court of the United States which involves issue referable to arbitration).


author: OBERDORFER, District Judge.

text:
    Christine KYLES, Plaintiff, v. SECRETARY OF AGRICULTURE, Defendant.
    Civ. A. No. 83-3115.
    United States District Court, District of Columbia.
    Feb. 15, 1985.
    As Corrected March 6 and March 11, 1985.

      Joel P. Bennett, P.C., Washington, D.C., for plaintiff.
    Joseph E. DiGenova, U.S. Atty., Royce C. Lamberth, Deborah A. Robinson, Asst. U.S. Attys., Washington, D.C., for defendant; Gail Cummings, U.S. Dept, of Agriculture, Washington, D.C., of counsel.
   MEMORANDUM

OBERDORFER, District Judge.

This is another “ ‘second major litigation’ ” in the “unnecessary volume of attorney fee disputes” deriving from

the policy of the United States Attorney in this District to settle fee applications without a contest in court only when counsel accept rates not in excess of $75 per hour for partners and $60 per hour for associates.

Commonwealth of Puerto Rico v. Heckler, 745 F.2d 709, 714 n. 7 (D.C.Cir.1984). For reasons stated below, plaintiff’s application for fees will be granted.

I.

By a written contract entered into on September 29, 1983, plaintiff engaged Joel P. Bennett as her attorney to prosecute an employment discrimination claim that she had previously initiated against the Department of Agriculture. Plaintiff contracted “to pay ... for attorney time at the rate of $110 (partner); $55 (associate) per hour, plus costs, ... on a monthly basis as legal services are performed.” See Contract for Legal Services 112 (attached as Exhibit 1 to Plaintiff’s Motion for Attorney’s Fees and Costs, filed Oct. 29, 1984). The time of law clerks and paralegals was billable at $35 per hour. These rates were made effective for one year; any future increase in rates was not to exceed $15 per hour per year. This undertaking was not contingent on success. The fee was payable and the costs reimbursable, win, lose or draw.

The plaintiff and Mr. Bennett have performed their contract in a thoroughly business-like way. The legal services have borne fruit in a September 26, 1984 settlement that has produced for plaintiff a substantial amount of back pay and an increase .in her annuity. She, in turn, has regularly paid the monthly bills rendered to her for services and for costs advanced by her attorney.

Each monthly bill stated the number of hours spent on the case by any partner, law clerk or paralegal during the month, the hourly rate at which that time was charged and the total time charged for each category of service. Each cost item was- substantiated by a contemporaneous voucher. The charges for services were supported by detailed diary entries that accounted for time by hours and tenths of hours. On the eve of the first anniversary of the contract, Mr. Bennett advised his client of a $5 increase in the hourly rate for the ensuing year.

On October 29,1984, after the settlement had been consummated, plaintiff filed a motion for attorney’s fees for the services of Mr. Bennett and his staff in the amount of $7,768.80, calculated at the hourly rates ($110, $55 and $35) at which Mr. Bennett had billed and the client had paid for those services. As indicated, the time charges were supported by detailed, self-explanatory diary entries and the cost items were supported by contemporaneous vouchers. The plaintiff further supported the motion by appending as exhibits an October 29, 1984 declaration by Mr. Bennett (filed under penalty of perjury) and a copy of his resumé. Mr. Bennett’s declaration disclosed that up to that time he had handled 80 cases in the employment discrimination area, and tried over 30 employment discrimination cases in federal district courts, mostly against the federal government. He stated that he usually spends between 80 and 90 percent of his clients’ billable time per month on employment discrimination and related employment matters. He listed 17 such cases filed between 1976 and 1983 in which he has collected — through settlement or judgment — fees and costs totalling $155,349.11. The declaration further stated:

My regular hourly rates during my representation of the plaintiff in this matter have been $110.00-$125.00 per hour for my time, $55.00-$60.00 per hour for associates and $35.00-$40.00 per hour for law clerks and paralegals. See Exhibit 6 hereto. I have learned from personal inquiry that these regular hourly rates are comparable to those of similarly situated attorneys in this city.... Since October 15, 1982, my regular hourly rate has been $110.00-$125.00 per hour and the vast majority of clients have retained me at that rate of [sic] had their rate raised to $110.00 or higher per hour pursuant to our retainer agreement, which routinely provides for annual adjustments.

Declaration of Joel P. Bennett at 6-7 (emphasis in original).

Plaintiff also filed as an exhibit to her original motion a further declaration by Mr. Bennett concerning hourly rates that he charged from June 1, 1982 through December 30, 1983, consisting of all of his open cases as of January 3, 1984, excluding this matter. Exhibit 6. The declaration listed 36 fee arrangements: 21 of them were listed as EEO matters, of which 9 involved private employers, 2 involved the District of Columbia, and 10 involved the United States as employer. The hourly rate for partners on all but three of the employment discrimination matters was stated to be $110 per hour or more. In two of the exceptions, the rate was $100 per hour in 1982, and rose to $110 per hour in 1983. The third exception, where the rate was $92.50, was a case that had been taken over from another firm that had fixed a reduced fee to begin with.

As evidence of the market rate in the precise field of employment discrimination, plaintiff cited fee awards by other judges of this court. In one such case cited by. plaintiff, for example, lawyers were awarded $75 per hour for work performed in 1977 and $85 per hour for work performed in 1978, Bachman v. Pertschuck, No. 76-0079 (D.D.C. March 14, 1979); $100 per hour for subsequent post-settlement work, Bachman v. Pertschuck, No. 76-0079 (D.D.C. Aug. 18, 1981), aff'd without opin ion, No. 81-2130 (D.C.Cir. June 15, 1982); and $135 per hour for more recent legal service, Bachman v. Miller, 567 F.Supp. 317, 321 (D.D.C.1983). See also Environmental Defense Fund, Inc. v. EPA, 672 F.2d 42 (D.C.Cir.1982) ($110 per hour); Jordan v. United States Dept. of Justice, 691 F.2d 514, 521 (D.C.Cir.1982) ($125 per hour); North Slope Borough v. Andrus, 515 F.Supp. 961 (D.D.C.1981) ($45 to $125 per hour), rev’d on other grounds sub nom. Village of Kaktovik v. Watt, 689 F.2d 222 (D.C.Cir.1982). Indeed, another judge of this Court has approved a magistrate’s recommendation of rates of $90 per hour until May 1982, $100 per hour until June 1983, and $110 per hour thereafter for Mr. Bennett himself in an employment discrimination case against the government. The magistrate, after meticulous review, was of the opinion that these rates were “reasonable at the time and are in accord with the prevailing community rates.” Arnold v. Secretary of Commerce, C.A. No. 81-1968, slip op. at 13 (D.D.C. July 28, 1983) (Burnett, Mag.), approved August 10, 1983 (Johnson, J.), appeal dismissed, No. 83-2143 (D.C.Cir. Jan. 6, 1984).

On November 8, 1984, ten days after plaintiff filed her fee application, defendant responded with a Motion for Enlargement of Time Within Which to Respond to Plaintiff’s Motion for Attorney’s Fees and Costs. Defendant claimed that it intended to conduct discovery by interrogatories, requests for production of documents and “at least one” oral deposition concerning the reasonableness of the hourly rate claimed. As explanation, defendant announced an intention to discover the prevailing market rate, counsel’s billing practices, his customary billing rate in this and other cases, and the amount actually paid to counsel by other clients. The motion noted that plaintiff’s application already provided “certain documents which appear to be billing records of the instant action and a declaration concerning fees awarded in certain litigation,” but argued that this “limited information is an insufficient basis upon which to predicate a response to plaintiff’s motion.” The defendant did not mention the exhibit specifying counsel’s hourly rates for the 36 cases then open in his office. See supra at 428.

Plaintiff, on November 14, 1984, opposed defendant’s motion for enlargement by charging that defendant, by seeking an “extraordinary period of 60 days to respond to a straight-forward motion ... requesting a total of only $7,768.80,” was engaging in “dilatory tactics.” Plaintiff’s Opposition to Defendant’s Motion for Enlargement of Time at 1.

Plaintiff’s opposition stressed that plaintiff had “modest means,” had borrowed the funds to pay her attorney, and that the delay cost her interest. Id. at 2. The opposition emphasized, without contradiction by defendant, that plaintiff’s counsel had offered to give defendant “whatever reasonable discovery he sought without resorting to formal discovery but counsel for the defendant indicating [sic] that she did not even know what she wanted yet____” Id. Counsel for plaintiff represented that the data contained in Exhibit 6 “is the actual amount clients have paid.” Id. at 3. Plaintiff argued that she had furnished more than enough information for a decision on her claim. Id. Plaintiff charged that the discovery sought was “excessive and merely a pretext to use the might of the Executive Branch of the United States Government to force plaintiff to compromise her claim due to the delaying tactics of defendant and his counsel.” Id. On November 20, 1984, the Court denied defendant’s motion for enlargement and directed that a response to the fee application be filed by December 3, 1984.

The December 3 response acknowledged that plaintiff had claimed that her counsel’s asserted hourly rate was his “customary billing rate,” which, according to Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C.Cir.1984), would “presumptively [be] his reasonable hourly rate” for purposes of determining the amount to be awarded. Id. at 15 n. 69. The response remarkably suggested, however, that Laffey was not the law of the Circuit because the time for petitioning for a writ of certiorari in that case had not yet expired. Defendant’s Opposition to Plaintiff’s Motion for Attorney’s Fees and Costs at 2 & n. 2 [hereinafter “Defendant’s Fee Opposition”]. The response took no issue with the reasonableness of the number of hours charged by counsel, and conceded that “ ‘... in the normal case the Government must either accede to the applicant’s requested rate or provide specific contrary evidence tending to show that a lower rate would be appropriate.’ ” Id. at 2 n. 4 (quoting Concerned Veterans, supra, at 1326). Nonetheless, the response again contended that plaintiff had failed to substantiate the rate sought, and seemed to argue that this case is one of those “occasions in which the applicant’s showing is so weak that the Government may without more simply challenge the rate as unsubstantiated.” Concerned Veterans, supra, at 1326; see Defendant’s Fee Opposition at 3 n. 4. Defendant further claimed that it was not “permitted” to challenge the reasonableness of the rate sought and was unable to address the merits of plaintiff’s application by providing specific contrary evidence because the Court had precluded discovery. Defendant’s Fee Opposition at 3 n. 4.

To demonstrate that plaintiff’s rate claim was unsubstantiated, defendant pointed to the fact that counsel did not furnish data about the rates he had been paid in contingent fee cases. Id. at 2-3. Moreover, defendant professed to find no evidence that rates agreed to by counsel and his retained clients were the same as those actually paid by those clients. Id. at 4. Finally, defendant claimed the rates were unsubstantiated because plaintiff failed to establish that the awards relied upon “ ‘were determined based on actual evidence of prevailing market rates, [that] the attorneys involved had similar qualifications, and [that] issues of comparable complexity were raised.’ ” Id. (quoting Concerned Veterans, supra, at 1325 n. 7).

Plaintiff’s December 12, 1984 reply to this opposition made several points. To meet the defendant’s professed concern that plaintiff’s counsel had failed to submit data about the manner in which he charged his non-hourly rate clients, plaintiff filed a supplemental declaration by Mr. Bennett providing such data. See Plaintiff’s Reply, Exhibit 6 at 2. The supplemental declaration also contained a statement, under penalty of perjury, asserting that the rates agreed upon with his clients were, in fact, the rates at which they paid. See id. at 2-3. As to defendant’s remaining objection, plaintiff invited the defendant’s attention to eight reported cases, the facts of which could be used to determine the comparability of counsel’s qualifications and the relative difficulty of the other cases. Plaintiff’s Reply at 5-6. Plaintiff brushed aside defendant’s unusual suggestion that, because the time for seeking certiorari in Laffey had not expired, that decision is not the law of this Circuit or even an appropriate guideline for a district court in the exercise of its statute-given discretion. Id. at 4.

In addition, plaintiff’s reply reported that she had encountered significant delays in consummation of the partial settlement of fees and expenses incurred in connection with the earlier, administrative stage of plaintiff’s case. Plaintiff’s Reply to Defendant’s Opposition to Plaintiff’s Motion for Attorney’s Fees and Costs at 2-3 [hereinafter “Plaintiff’s Reply”]. Citing this and other evidence of dilatory tactics and the resulting delay in reimbursement for the fees and costs that she had borrowed money to pay, plaintiff requested a 10 percent upward adjustment in her award as contemplated by Shaw v. Library of Congress, 747 F.2d 1469 (D.C.Cir.1984). Id. at 3-4. Also, with respect to the fees still in dispute, plaintiff sought an interim payment at the $75 hourly rate at which the United States conceded, in Commonwealth of Puerto Rico v. Heckler, supra, that it generally settled fee claims. Id.

Mr. Bennett’s supplemental declaration further chronicled his observation of a “consistent pattern of delay” in litigated attorney’s fee cases both generally and in this ease specifically. Supplemental Declaration of Joel P. Bennett at 1. For example, he noted that in all three cases where he had won a litigated award of attorney’s fees against the United States, there was a substantial delay in payment because the Department of Justice filed a notice of appeal within 60 days after the district court award, requested an extension of time to file briefs, and then dismissed the appeal without consummating it. Id. at 1-2. As to this particular case, Mr. Bennett attached to the supplemental declaration a copy of his November 21, 1984 letter to the defendant’s counsel summarizing his repeated efforts to resolve this dispute speedily. The letter reminded defendant’s counsel that he had advised her on November 5, 1984, to let him “know what you want[] [by way of discovery with respect to the hourly rate] and I would supply it, if it were reasonable, without ... formal discovery.” Id., Exhibit 7 at 1. The letter also recited that on November 16,1984, Mr. Bennett reiterated this request, and reemphasized that his client had borrowed money to pay his fee. Id. at 2. In addition, the letter requested that defendant’s counsel expedite payment on the settlement that had been negotiated for attorney’s fees for the administrative stage of the case, and further requested, once again, that she advise “informally what discovery you seek as to the hourly rate I have charged Ms. Kyles so that I can give you whatever you need that is proper.” Id. Finally, the letter — noting that the only concern in this matter was counsel’s hourly rate (since September 1983) — formally requested that the government agree to an interim payment calculated at $75 per hour, citing Shaw v. Library of Congress, supra, and Parker v. Lewis, 670 F.2d 249 (D.C.Cir.1982). Id. The letter suggested that this would “leave for litigation only the differential between the maximum your office will pay and the amount actually charged Ms. Kyles for [her counsel’s] time.” Id. These suggestions, however, were apparently to no avail, and the litigation went to issue.

II.

On December 21,1984, this Court made a finding that in this case a $75 minimum was incontestable and entered an order on the authority of Parker v. Lewis, supra, at 250, requiring defendant to make an interim payment of $5,448.75 calculated at $75 per hour. On December 27, 1984, defendant moved for reconsideration of the interim award and an enlargement of time within which to make the payment.

In support of the motion for reconsideration, defendant reiterated the contention that since the plaintiff had failed to substantiate the hourly rate sought, “this Court lacks discretion to make an award in accordance with Laffey ____” Memorandum in Support of Defendant’s Motion for Reconsideration at 2. Moreover, defendant contended, Parker v. Lewis does not contemplate that a mere district court may make an interim award. Id. at 4. Defendant argued that in that case, although the Court of Appeals did direct that an interim award be paid pending its further consideration of the only portion of the award genuinely in dispute, it did so only after a district court had already made findings below. Id. at 4. According to defendant here, moreover, plaintiff was not entitled to any upward adjustment because of delay, because such adjustment is only authorized where there has been delay in payment to the attorney; (he fact that plaintiff actually paid her attorney, defendant argued, distinguishes Shaw. Id. at 5. On January 15, 1985, the Court held a hearing on the motion for reconsideration of the interim award and at the conclusion of the hearing denied the motion.

In support of the motion for an extension of time for payment, defendant represented that it was “moving as expeditiously as possible to obtain a determination as to whether appellate review will be sought.” Defendant’s Motion for Extension of Time within which to Remit Attorney’s Fees at 4. Since defendant could notice a protective appeal in any event, the Court extended the time in which defendant was required to remit the interim payment of attorney’s fees to February 25, 1985. On February 4, 1985, defendant moved for a further extension of time to make the interim payment until 60 days after the denial of the motion for reconsideration. The Court summarily denied that second application for an extension.

III.

Before reaching the precise issue here it is appropriate to restate some fundamentals. Title 42 U.S.C. § 2000e-5(k) provides that in Title VII actions

the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs ____

(Emphasis added.) The purpose of this and related statutes is to ensure effective access to the judicial process for persons who have claims under the civil rights laws. S.Rep. No. 1011, 94th Cong., 2d Sess. 2-6 (1976), U.S.Code Cong. & Admin. News 1976, 5908, 5909-5913 (discussing purpose behind both 42 U.S.C. § 1988 and 42 U.S.C. § 2000e-5(k)). Fee awards should be “adequate to attract competent counsel, [though] ... not produce windfalls to attorneys.” See Hensley v. Eckerhart, supra, 103 S.Ct. at 1938 n. 4. Moreover, the Supreme Court has stated that “[a] request for attorney’s fees should not result in a second major litigation.” Id. at 1941. “Ideally,” the Supreme Court has said, “litigants will settle the amount of [the] fee.” Id. The Court re-emphasized “that the district court has discretion in determining the amount of a fee award.” Id.

Blum v. Stenson, supra, 104 S.Ct. 1541, provides valuable guidance as to the level at which “reasonable” hourly rates can today be expected to be set. Blum confronted the Supreme Court with the problem of determining the reasonable rate payable to the New York Legal Aid Society for successful litigating service in a civil rights case. The Society rendered such services without charge and therefore had no experience from which it could prove the rate it actually charged or the rate the consumer actually paid for its service. Defendant, supported by the Solicitor General as amicus curiae, argued that non-profit legal aid organizations should be compensated on a cost-related rate basis, rather than a market rate basis, because the market rates for for-profit organizations include elements of cost and of profit. The Court rejected the suggestion that non-profit counsel should be compensated at a lower rate than private counsel. Id. at 1547. Thus, in Blum, the Supreme Court affirmed an award by the District Court for the Southern District of New York for services rendered in 1978 to 1980 at the rates of $95 an hour for an attorney who had IV2 years legal practice, $100 per hour for another attorney who also had IV2 years of legal aid practice but had also clerked for a year for a state court judge, and $105 per hour for a third lawyer who had IV2 years of legal aid practice but who had clerked for two years for a federal district judge. Id. at 1544 n. 4.

The Supreme Court has stated in a related context that when Congress authorized federal employees to bring employment discrimination claims against the government it intended to accord them “the full rights available in the courts as are granted to individuals in the private sector under title VII.” Chandler v. Roudebush, 425 U.S. 840, 841, 96 S.Ct. 1949, 1950, 48 L.Ed.2d 416 (1976) (quoting S.Rep. No. 415, 92d Cong., 1st Sess. 16 (1971); see also Shaw v. Library of Congress, supra, at 1484.

Recent rulings of our Court of Appeals are particularly instructive. Parker v. Lewis, supra, for example, expressed concern “that the public policy dictating that attorney’s fees be awarded not be completely undercut by routine delays in payment of fees that are properly due and owing.” 670 F.2d at 250. The Parker Court felt “compelled to assure a quick conveyance of funds ... and an expeditious determination of any additional attorneys’ fees due.” Id.

Even more recently, in Commonwealth of Puerto Rico v. Heckler, supra, the Court of Appeals noted that

it is the policy of the United States Attorney in this District to settle fee applications without a contest in court only when counsel accept rates not in excess of $75 per hour for partners and $60 per hour for associates. In view of that firm policy, adhered to despite precedents approving rates considerably in excess of the $75 and $60 figures ... \e.g., $110 to $125 per hour], Puerto Rico’s' counsel suggested that presentation of their agreed-upon hourly rates or other market rate documentation would not have avoided “a second major litigation.”

at 714 n. 7. Appearing to endorse the comment of Puerto Rico’s counsel, the Court of Appeals pointedly stated in the text of the opinion illuminated by the foregoing note:

In this area, as in others, the conduct and attitudes of official actors may be contagious. That conduct will not be “worthy” of our great government,” if it is obdurate or intransigent. Nonnegotiable postures on fee awards may waste resources for all concerned. We repeat, and underscore the special importance of government attention to, the Supreme Court’s call for “conscientious effort” to resolve differences over fee awards reasonably, responsibly, and without precipitating another federal case,

at 714 (citations and footnote omitted).

The Court of Appeals issued its Laffey opinion on September 28, 1984; Commonwealth of Puerto Rico v. Heckler came down on October 16, 1984. If the defendant’s conduct of this case is characteristic of the government’s response to these clear statements of the law and admonitions about fee case administration, then the defendant has been, in the words of the Puerto Rico Court, “obdurate” and “intransigent,” and has failed to make the “conscientious effort” called for by the Supreme Court and our Court of Appeals.

Reliance upon an attorney’s own, customary billing rates was intended by Laffey to prevent the “necessity of relitigating the ground rules in each case.” Laffey, supra, at 22. Yet in this case the defendant persists in what may fairly be described as an attempt to legislate a $75 maximum rate by litigating to the hilt a claim based on a higher rate against a citizen who, like many other successful employment discrimination claimants, is lacking the means or the credit necessary to survive such attrition. See also Commonwealth v. Puerto Rico v. Heckler, supra.

IV.

The defendant’s conduct here, and the difficulty it has caused plaintiff and her counsel, not to mention the Court, is all the more regrettable because the ratio decidendi for a decision against the government has been obvious since September 28, 1984, when the Court of Appeals announced its decision in Laffey. The narrow substantive issue is the hourly rate at which plaintiffs counsel should be paid for his work. The Laffey Court reiterated the Supreme Court’s “great emphasis on the need for an efficient, objective system of awarding fees” that would facilitate settlement and “enable parties and courts to avoid ‘a second major litigation.’ ” 746 F.2d at 13. In aid of this goal, the Laffey Court set out to determine how, objectively, a “reasonable market rate” should be set. Id. at 14.

In Laffey, the district court had awarded a fee of $3,469,829.49 to lawyers in private practice based on hourly rates for lawyers’ time ranging from $75 to $175 per hour for lawyers’ work on both the merits and the fee controversy. 746 F.2d at 9 h. 24. In making this award the district court refused to restrict rates to those actually charged by counsel to their other clients, and, instead, based- the rate awarded on prevailing market rates, determined from, the rates charged by other attorneys in the community. On appeal, defendant contended that the reasonable hourly rate for a private, for-profit law firm should be based on the rates it actually charges in the market place. Id. at 11.

Noting the wide disparity in methods and results evident in fee shifting decisions with respect to hourly rates, id. at 12-13, the Court of Appeals in Laffey focused on the “rather narrow task” of determining how to set a reasonable hourly rate for a private, for-profit firm whose client has prevailed in an employment discrimination case. Id. at 14. In further defining the task, the Court carefully distinguished nonprofit public interest law firms and other firms that do not have “firmly established billing practices.” Id. n. 69, see also id. 16 n. 74. See, e.g., Blum v. Stenson, supra, 104 S.Ct. 1541; Sierra Club v. Gorsuch, 684 F.2d 972 (D.C.Cir.1982) (per curiam), rev’d on other grounds sub nom., Ruckelhaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983). Rather, the Laffey Court drew on the observation of another Court of Appeals panel that “ ‘the best evidence [of an appropriate rate] would be the hourly rate customarily charged by the affiant himself or by his law firm.” Laffey, supra, at 15 n. 69 (quoting Concerned Veterans, supra, at 1325). See also Murray v. Weinberger, 741 F.2d 1423, 1428 & n. 21 (D.C.Cir.1984).

The Court of Appeals went on to spell out the “strong policy reasons [that] support tying the ‘reasonable hourly rate’ to the firm’s own billing rates,” Laffey, supra, at 18, i.e., ease of administration, the difficulty that confronts a court attempting to evaluate market factors other than what the public actually pays for the particular services, the necessary arbitrariness of judicial rate fixing for legal services, and enhancement of the likelihood of settlement of fee questions where the rate is predictable and easily understandable. As the Laffey Court concluded:

[W]hen fixed market rates already exist, there is no good reason to tolerate the substantial costs of turning every attorneys fee case into a major ratemaking proceeding. In almost every case, the firms’ established billing rates will provide fair compensation.

Id. at 24 (emphasis in original).

To accomplish this determination, the Laffey Court directed that the fee applicant “should provide evidence of the rates charged by the firm for performing similar work in private representations.” Id. There could be, said the court, “no more ‘relevant comparison.’ ” Id. Next, the fee-fixing court should “bracket” this rate “by establishing that it falls within the rates charged by other firms for similar work in the same community.” Id. at 24-25. “So long as the firm’s own rate falls within the rate brackets, it is the market rate ----” Id. at 25.

The principles of Laffey can readily be applied to this case. Here, the fee application, especially as supplemented, shows more than adequately that, over the years of Mr. Bennett’s practice, he and his colleagues had established a regular annual billing rate and a regular billing practice. This practice is best evidenced by the exemplary contract and the thorough documentation of their charges to Ms. Kyles. The regular billing rate of $110.00 per hour during the relevant period is strongly corroborated by the declaration about the rate charged to 37 other current clients, the rates approved by other judges of this court, and particularly Magistrate Burnett’s detailed, analysis of the fee in the Arnold case. Moreover, the record fully confirms that other judges of this court have approved even higher rates for lawyers, none of whom could be more accomplished than is Mr. Bennett in the employment discrimination field. See supra at pp. 428-429 & nn. 5-6.' On the basis of the information in the fee application as supplemented, no trier of fact could reasonably dispute these findings. Clearly, this is one of those cases referred to in Laffey where “the firmf’s] established billing rate will provide fair compensation.” Id. at 24.

As stated, the defendant contends that Laffey is not the law of this Circuit because of the possibility of a petition for a writ of certiorari. Obviously, this contention is untenable. A district court applying a final decision of the Court of Appeals that is squarely on point would not be abusing its discretion in doing so, even if the Supreme Court later reversed the Court of Appeals. Moreover, the theory that there is a $75 per hour ceiling for attorney’s fees in Title VII cases — such as presumptively exists, for example, under the now suspended Equal Access to Justice Act — has been summarily rejected in this Circuit. See, e.g., Minority Employees at NASA v. Frosch, 555 F.Supp. 1, 2 (D.D.C.1981), aff'd 694 F.2d 846 (D.C.Cir.1982) (per curiam).

Defendant fails to explain satisfactorily why it insisted on formal discovery in this case before attempting the informal discovery offered by plaintiff. Our Court of Appeals has made plain its distaste for “the zeal of government counsel” requiring “applicants to expend substantial additional time supporting fee claims ...” and for “[ujnfocused requests to initiate discovery ____” Concerned Veterans, supra at 1329. See also Fed.R.Civ.P. 26(g).

Defendant fails to explain satisfactorily why it opposed an interim distribution at the $75 rate that it had advised the Court of Appeals was the basis for settlements generally and at which defendant had already agreed to settle the attorney’s fee for services provided by plaintiff’s former partner during the administrative stage of this very case. Our Court of Appeals has admonished that “the interests of justice will be served by awarding the prevailing party his fees as promptly as possible.” Concerned Veterans, supra at 1330.

Defendant fails to explain satisfactorily why the defendant should not have been more responsive to the directions of the Supreme Court and our Court of Appeals and failed to negotiate, settle and pay this well-documented fee in November 1984. See Concerned Veterans, supra, at 1330-1331. The statute authorized a “reasonable” fee. It says nothing about a $75 maximum rate. Here, the rates agreed to by plaintiff, paid by a number of Mr. Bennett’s clients and specifically approved by our courts are supported by abundant “indicia of overall reasonableness.” See Puerto Rico, supra at 714.

It is a fact of life that in most employment discrimination cases the client or the lawyer does not have the resources to hold out for as long as the government can protract a fee dispute. There are strong indications that, knowing this, some civil officers of the Executive Branch have drawn a line in the dust: any party or lawyer who claims more than $75 per hour will have to fight for it — through formal discovery and dilatory motions for extensions of time and for reconsideration, capped by automatic appeals, many of them abandoned when briefing time approaches. By this form of “jaw-boning,” these officers may well be attempting to enact a de facto ceiling of $75, contrary to the statutes enacted by Congress and authoritatively interpreted by the courts.

As Justice Jackson wrote so eloquently: It is very well to say that those who deal with the government should turn square corners. But there is no reason why the square corners should constitute a one-way street.

Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 387-88, 68 S.Ct. 1, 4-5, 92 L.Ed. 10 (1947) (Jackson, J., dissenting). The accompanying order will require plaintiff to submit a proposed order providing for prompt payment of the fee at the hourly rates at which Mr. Bennett billed the plaintiff.

V.

One unfortunate consequence of the defendant’s protraction of this dispute is its proliferation into a number of collateral issues, most of which are susceptible to quick solution. One, however, deserves special comment. As noted, plaintiff, citing Shaw v. Library of Congress, supra, has sought an upward adjustment of 10 percent of the entire amount requested in her fee application (as supplemented) to compensate her for the recurrent delay in this matter, particularly since she had borrowed money at interest to pay her attorney. Defendant’s opposition to any upward adjustment is without merit. This is not one of those “routine delays in payment” curable by an interim award. See Parker v. Lewis, supra, at 250. Rather, the delay here has some of the ominous characteristics of a “purely vindictive contest over fees.” See Concerned Veterans, supra, at 1330. Moreover, the delay caused by the tactics employed by the government here has the effect, if not the purpose, of frustrating the plan of the statute to ensure effective access to the judicial process in employment discrimination cases. See S.Rep. No. 1011, 94th Cong., 2d Sess. 2-6 (1976).

The upward adjustment in Shaw was not merely for the benefit of the lawyer, but, like the entire mechanism for fee shifting, was for the benefit of persons who have suffered discrimination and seek efficient redress in court. A plaintiff could be just as discouraged by delay in payment as could a lawyer, and just as vulnerable to coercion into disadvantageous settlement. The hope and reality of an upward adjustment for payment delay would tend to counter such discouragement and facilitate achievement of Congress’ plan to make adequately paid lawyers available to redress bona fide discrimination grievances in court. Nor should a court countenance defendant’s attempt to distinguish Shaw on the theory that there was a delay of three years there while the delay here has so far consumed only about two months. That distinction will be adequately reflected in the relatively lesser payment required to compensate for the shorter delay.

The foregoing considered, plaintiffs motion for fees and costs will be granted. To that end plaintiff should, on or before February 28, 1985, submit a proposed order for judgment, supported by a schedule of fees calculated at the rates at which Mr. Bennett billed her and expects to bill her through February 28, 1985, for services on the merits and in the fee dispute plus costs. In addition, the proposed judgment order should adjust the award upward in an amount calculated at the rate paid or incurred by plaintiff as interest to carry her loan for the funds used to pay her legal expenses, and further calculated as running from December 1, 1984 until the date on which she is reimbursed by defendant. See also Shaw v. Library of Congress, supra, at 1479, 1484.

ORDER

Upon consideration of plaintiffs motion for attorney’s fees and costs (as supplemented), defendant’s opposition, plaintiff’s reply, the arguments of counsel, and the entire record herein, and for reasons stated in an accompanying memorandum, it is this 15th day of February, 1985, hereby

DECLARED and ADJUDGED: that the reasonable rates for fees in this case are $110.00 per hour for partner time; $55.00 per hour for associate time; and $35.00 per hour for paralegal time; and it is further

DECLARED and ADJUDGED: that plaintiff is entitled to an upward adjustment of the principal amount in fees and allowable costs which she had incurred as of December 1, 1984, calculated from that date to the date of reimbursement by defendant at the rate at which plaintiff paid interest on the indebtedness that she incurred to pay her attorney’s fees and costs; and it is further

ORDERED: that plaintiff shall, on or before February 28, 1985, serve and file a proposed order and final judgment implementing this order and the accompanying memorandum.

      . Blum v. Stenson, — U.S. -, 104 S.Ct. 1541, 1550 n. 19, 79 L.Ed.2d 891 (1984) (quoting Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)).

      . National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1330 (D.C.Cir.1982) [hereinafter cited as "Concerned Veterans ”].

      . Prior to September 29, 1983, plaintiff had been represented by Mr. Bennett’s former law partner, Mr. Robert Deso. The change in counsel occurred just as plaintiff had concluded pressing her claim at the administrative stage and on the eve of her filing a complaint in federal district court, which she did on October 21, 1983. Mr. Deso’s fee is not at issue here: on November 5, 1984, plaintiff and defendant agreed to a partial settlement, formalized on December 3, 1984, whereby attorney’s fees for the administrative stage of this case were settled, at an hourly rate of $75.

      . For other forms prepared by Mr. Bennett for use in fee applications, see Bennett, Winning Attorneys’ Fees from the U.S. Government (Law Journal Seminars Press 1984).

      . For an earlier exposition of Mr. Bennett’s "most reasonable and ... fully justified” billing practice in another employment discrimination case; see Arnold v. Secretary of Commerce, C.A. No. 81-1968, slip op. at 17 (July 28, 1983) (Burnett, Mag.) (Report, Memorandum Opinion, and Recommendation).

      . The resumé discloses that Mr. Bennett graduated from Georgetown Law School in 1972, having received an A.B. degree from Brown University, and having attended the London School of Economics. At law school he was an editor of the Georgetown Law Journal. After law school he clerked for a federal district judge in Chicago, served for three years as a trial attorney at the Federal Trade Commission, and spent eighteen months in the office of Jacob Stein, Esq. Since October 1976, when he left Mr. Stein's office, Mr. Bennett has been practicing alone, or in a small firm, with some emphasis on employment discrimination cases. The resumé discloses that during his 13 years at the bar he has published 13 articles and one book, see supra note 4, and has been very active in civic and in bar activities, again with some specialization in the employment discrimination area.

      . Letters attached to plaintiffs opposition chronicled delays suffered by plaintiff in 1982 at the administrative stage in the Department of Agriculture and in 1984 in endeavoring to get the United States Attorney’s office to complete documentation of the settlement of plaintiff’s discrimination claim on the merits.

      . The government was a party to several of these cases and is chargeable with knowledge of the difficulty of these other cases and the quality of its opposing counsel.

      . See supra note 3. This partial settlement, which had been agreed to on or about November 5, 1984, was not formalized by the United States Attorney until December 3, 1984 and, as of January 15, 1985, had still not been paid.

      . It is worth noting in this connection that the hourly rate for the work of Mr. Bennett’s former law partner on the administrative stage of the case was settled at $75.00 per hour. See supra note 3.

      . Calculation of the lodestar figure and the appropriate adjustments is "inherently imprecise [so that] ... certain estimations must be made.” Copeland v. Marshall, 641 F.2d 880, 893 (D.D.C.Cir.1980) (en banc).

        . At the hearing on the motion for reconsideration, the Court reminded defendant that payment, not a request for a voucher to make payment, was due February 25, and pointed out the necessity to plan ahead to be sure the funds were available when due. The Order to be entered here will supplement, but not super-cede, the December 21, 1984 Order requiring an interim payment. See Parker v. Lewis, supra, 670 F.2d at 250.

      . Title 42 U.S.C. § 2000e-16(c), (d) makes this fee provision available to federal employees pressing employment discrimination suits against the federal government, such as in this case.

      . Indeed, the government here refuses to concede that even the $75 per hour minimum rate that was the basis for the interim award is "uncontested.” Defendant's Memorandum in Support of Motion for Reconsideration at 4; see also id. at 4 n. 6. Yet the government readily settled the fee award for the administrative phase of this case at $75.00 per hour. See supra note 3. This persistent contest of an issue conceded in another phase of this very case may fairly be described as precisely the type of behavior that concerned the Puerto Rico Court.

      . The dissent in Laffey construed the majority opinion in that case as holding that, for private law offices such as Mr. Bennett’s, "historical billing rates are virtually determinative of the 'reasonable hourly rate’____" Laffey, supra, at 31 (Wright, J., dissenting) (footnote omitted).

        . See supra at pp. 428-429. The probative value of parallel judicial findings has recently been emphasized in In re Sealed Cases, 754 F.2d 395, 400 (D.C.Cir.1985).

      . Defendant’s complaint about the government’s claimed inability to obtain formal discovery in this matter does not survive scrutiny. Despite plaintiff’s extensive substantiation, in her original fee application, of the hourly rate sought, defendant moved — on the last day of the period for filing an opposition — for a 60-day extension of time in which to respond, assertedIy to conduct formal discovery into the fee request. See supra at 429. The motion contained no specification of the particular objections giving rise to the asserted need for formal discovery, much less an explanation of why a full 60 days’ worth of discovery was necessary. See id. The Court of Appeals in Concerned Veterans has plainly instructed that "[ujnfocused requests to initiate discovery without indicating its nature or extent serve no purpose, and the District Court has full discretion to deny such requests." Concerned Veterans, supra, at 1329. Therefore, on November 20, 1984, the Court denied defendant’s motion. See supra at 429. Only in defendant’s subsequent opposition to the fee application, filed December 3, 1984, did the defendant, for the first time, identify its specific objections, asserting that the fee application failed to provide sufficient information with respect to several points. See supra at 430. Plaintiff, in turn, in her reply and supporting exhibits filed December 12, 1984, addressed these specific objections and provided the information requested, see id., thus obviating the need for any discovery that might have been indicated with respect to these particular points. At the January 15, 1985 hearing on defendant's subsequent motion for reconsideration of the interim award, various aspects of plaintiff’s fee application were discussed. No further hearing is necessary, in that "the information generated by these procedures provides an adequate factual basis," Concerned Veterans, supra, at 1330, for an award in accordance with the “established billing rate” guidelines set out in Laffey.

      . 5 U.S.C. § 504(b)(1)(A). On October 1, 1984, the Equal Access to Justice Act expired as to actions commencing after that date. Pub.L. 96-481, Title II, § 203(c), 94 Stat. 2327 (1980). The Act was re-enacted by Congress, but did not receive a timely presidential signature.

      . As noted, the government suggested that the plaintiffs fee application was "so weak" that the government could, "without more, simply challenge the rate[ ] as unsubstantiated.” Concerned Veterans at 1326. Plaintiffs application cannot be characterized as "weak”; in fact, it is difficult to imagine what more the government would need formally to seek. The government professed, for example, to need to know the hourly rate charged by Mr. Bennett in contingent fee cases. This could have been ascertained informally. Moreover, that rate would be only marginally relevant to determining the rate charged to retained clients.

      . Note that Fed.R.Civ.P. 11 provides that: The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing ■law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation____ If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

      . In a November 23, 1984 supplement to his original application, plaintiff added a $200 bill for the services of a statistical expert and corrected an arithmetical error to make $9,551.39 the adjusted claim for fees and expenses through September 1984. The supplement also signaled the necessity to augment the application to cover the fees and expenses incurred in resolving the fee dispute. The December 12, 1984 reply to defendant’s opposition to the plaintiff’s application identified fees and costs incurred in October 1984, plus some other bills omitted from the original application making the new total $11,072.95. Further supplements identifying fees and costs for still later months have also been submitted. In addition, plaintiff applied for reimbursement for annual leave time allegedly taken by plaintiff in order to prosecute her claim, plus a previously unreimbursed amount of $355.55 incurred by plaintiff herself throughout this litigation, both before and after September 29, 1983, the date of her engagement of Mr. Bennett as her attorney.
      As suggested, the disputes that have arisen with respect to these issues may be quickly resolved. The bills for experts incurred after September 29, 1983 may be added to the reimbursable costs. Plaintiff may be compensated for annual leave consumed by plaintiff in connection with her claim, see Laffey, supra at 30; Sebastian v. Texas Department of Corrections, 541 F.Supp. 970, 978-79 (S.D.Tex.1982); Davis v. Bolger, 496 F.Supp. 559, 563-68 (D.D.C.1980), as well as for direct costs incurred by plaintiff, see Laffey, supra, at 30, except that in this case the Stipulation of Dismissal filed on December 3, 1984, bars any claim for costs incurred or leave taken before September 29, 1983. The reimbursable leave is limited in this case, however, to that required for such activity as specific preparation for and appearance in court, for depositions, for conferences with counsel, and for review and preparation of court documents, and must be established with reasonable precision. To allow the Court to evaluate the reasonableness of the claim for leave time, plaintiff may file a declaration or affidavit in evidentiary form showing the amount of leave time taken in connection with this case following September 29, 1983, and how that amount was calculated; the declaration or affidavit should show the specific activities requiring plaintiff’s absence from work and the number of days or hours attributable to each specific activity. Plaintiff may also submit a declaration or affidavit containing a schedule of costs incurred after September 29, 1983.


author: EARL E. O’CONNOR, Chief Judge.

text:
    Lisa COWAN, by her Natural Parent and Next Friend, Ann COWAN, and Ann Cowan and Marvin Cowan, Individually, Plaintiffs, v. LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANIMID COMPANY, Defendant.
    Civ. A. No. 84-2165.
    United States District Court, D. Kansas.
    Feb. 19, 1985.

      Bruce Keplinger, Payne & Jones, Chartered, Olathe, Kan., for plaintiffs.
    Thomas F. Fisher, of Shughart, Thomson & Kilroy, Kansas City, Mo., James P. O’Hara, of Shughart, Thomson & Kilroy, Corporate Woods, Overland Park, Kan., for defendant.
   MEMORANDUM AND ORDER

EARL E. O’CONNOR, Chief Judge.

This matter comes before the court on defendant’s motion for summary judgment. The motion asserts that five counts of the complaint are barred by the applicable statutes of limitation and that one of the counts also fails to state a claim upon which relief can be granted. Subsequent to the filing of this motion, we granted plaintiffs leave to add a sixth count. Because recovery under this sixth count is dependent upon plaintiffs’ recovery under Count II, we will address all six counts in this memorandum.

Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56(c). In considering such a motion, the court must examine all evidence in the light most favorable to the opposing party. Mogle v. Sevier County School District, 540 F.2d 478, 482 (10th Cir.1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572 (1977). Where different inferences could reasonably be drawn from conflicting affidavits and depositions, summary judgment should be denied. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

This action is brought by three plaintiffs; plaintiff Lisa Cowan is the minor child of plaintiffs Marvin and Ann Cowan. Defendant Lederle Laboratories manufactures the drugs Achromycin V and Declomycin, both of which contain the generic drug tetracycline.

Lisa Cowan was born on December 7, 1967, and began to ingest defendant’s prescription drugs in 1968. Although her medical and pharmaceutical records indicate that Lisa received her last prescription on January 6, 1975, her parents contend that Lisa may in fact have ingested defendant’s tetracycline as late as 1980. At some point, Lisa’s teeth became noticeably gray, and plaintiffs allege that this graying was caused by the tetracycline Lisa had ingested.

This suit was filed in state court on March 9, 1984, and was subsequently removed to this court. According to the amended complaint, “Lisa Cowan has suffered the permanent discoloration of her teeth requiring further medical treatment and causing her to suffer anxiety, anguish and embarrassment, and plaintiff Marvin Cowan and Ann Cowan will be caused to incur considerable medical and other expenses.” As noted above, the amended complaint contains six counts. The basis of each count is as follows:

Count I — negligence
Count II — breach of various express and implied warranties
Count III — strict liability
Count IV — presumptive negligence, based on a violation of the Federal Food, Drug & Cosmetics Act, 21 U.S.C. §§ 301 to 392
Count V — violation of the MagnusonMoss Warranty Act, 15 U.S.C. §§ 2301 et seq.
Count VI — violation of the Kansas Consumer Protection Act, and specifically K.S.A. 50-639.

I. Magnuson-Moss Warranty Act.

The operative paragraph of plaintiffs’ fifth count reads as follows:

As a result of the breach of warranty set forth in the Second Cause of Action above, plaintiffs have a cause of action against the defendant under the Magnuson-Moss Warranty Act.

Amended Complaint, 1122. As explained below, this allegation is insufficient to bring the plaintiffs within the protective scope of the Magnuson-Moss Warranty Act.

Count II of the amended complaint alleges a mere state law personal injury claim. Yet 15 U.S.C. § 2311(b)(2) provides that “[njothing in this [Act] (other than [15 U.S.C. §§ 2308 and 2304(a)(2) & (4) ]) shall (A) affect the liability of, or impose liability on, any person for personal injury, ____” None of the provisions referred to in the parentheses is implicated by the allegation in 1122, quoted above. As to Count V, then, we must grant defendant’s motion for summary judgment. (For a lucid and comprehensive discussion of this issue, see Gorman v. Saf-T-Mate, Inc., 513 F.Supp. 1028 (N.D.Ind.1981); see also Bush v. American Motors Sales Corp., 575 F.Supp. 1581, 1582 (D.Colo.1984) (citing Gorman).)

II. Applicable Statute of Limitations.

We agree with the parties that Counts I, III, and IV are subject to the two-year statute of limitations contained in K.S.A. 60-513(a)(4). That provision applies to any “action for injury to the rights of another, not arising on contract, and not herein enumerated.” Defendant contends that Count II, alleging breaches of various express and implied warranties, is subject to the four-year statute of limitations contained in K.S.A. 84-2-725. Plaintiffs do not address this contention. For the reasons that follow, we must disagree with the defendant in this matter.

Defendant deems it “clear” that plaintiffs have elected to prosecute these warranty claims on a contract-based theory, rather than one based on tort. See Defendant’s Brief at 11-12. Even accepting this statement as true, however, such election would not be relevant in determining the proper statute of limitations. That determination turns upon the type of damages alleged in the complaint. If simple economic loss is alleged, the contract statute of limitations governs. However, “where death, personal injury or property damage is alleged the applicable statute of limitations in Kansas would be the two-year tort statute of limitations at K.S.A. 60-513____” Grey v. Bradford-White Corp., 581 F.Supp. 725, 728 (D.Kan.1984).

In this ease, Lisa Cowan alleges permanent discoloration of her teeth, anxiety, anguish, and embarrassment. Plaintiffs Marvin and Ann Cowan allege damages in the form of Lisa’s medical expenses. As to all plaintiffs, then, the damages alleged are clearly “tort-like.” Accordingly, K.S.A. 60-513(a)(4), and not K.S.A. 84-2-725, contains the proper statute of limitations.

Count VI of plaintiffs’ amended complaint alleges a violation of K.S.A. 50-639. The damages provision of that section, however, applies only “[i]f a consumer prevails in an action based upon breach of warranty.” K.S.A. 50-639(e). Plaintiffs’ success on this count is thus dependent upon their success on Count II. Necessarily, then, this count is also subject to the same statute of limitations.

Our conclusion that each of plaintiffs’ remaining five counts are subject to the two-year statute of limitations contained in K.S.A. 60-513(a)(4) does not, of course, end our inquiry. The facts as alleged require the application of two other statutes. A “discovery” statute provides that:

(b) Except as provided in subsection (c) of this section, the cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.

K.S.A. 60-513(b). Also relevant is the following “tolling” statute:

(a) Effect. If any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued or at any time during the period the statute of limitations is running, is less than 18 years of age, ... such person shall be entitled to bring such action within one year after the person’s disability is removed, except that no such action shall be commenced by or on behalf of any person under the disability more than eight years after the time of the act giving rise to the cause of action.

K.S.A. 60-515(a). All three plaintiffs would be entitled to the protection of K.S.A. 60-513(b), while only Lisa Cowan could rely on K.S.A. 60-515(a).

III. Statute of Limitations — Construction.

Any attempt to apply K.S.A. 60-513(b) to the facts of this case must begin with the definition of certain terms. Especially relevant are the following: (1) “substantial injury,” (2) “fact of injury,” and (3) “act giving rise to the cause of action.”

A. Substantial Injury.

Prior to hearing scientific testimony, we can make no definitive finding as to when “substantial injury” occurred here. Conceivably, tetracycline could cause the discoloration of permanent teeth even before those teeth penetrate the gums. At the very latest, however, “substantial injury” would have occurred when Lisa Cowan’s teeth became substantially grayer than normal teeth. Because defendant’s summary judgment motion is based on a statute of limitations, we must (for now) adopt this latest permissible definition of “substantial injury.”

B. Fact of Injury.

We see at least two plausible interpretations of the phrase “fact of injury.” Defendant interprets this phrase as referring to the actual discoloration of Lisa Cowan’s teeth. Alternatively, one might construe this phrase as referring to the time at which a plaintiff has actual or constructive knowledge that her damages have been caused by the act or omission of another human being. This would define “injury” as excluding, for example, damages attributable to genetically caused birth defects. In our view, this latter interpretation is more consistent both with the accepted definition of “injury” and with rational public policy.

Black’s Law Dictionary (5th ed. 1979) defines “injury” as follows:

Any wrong or damage done to another, either in his person, rights, reputation, or property. The invasion of any legally protected interest of another. Restatement, Second, Torts, § 7.

(Emphasis added.) As the highlighted words indicate, an injury must occur to “another” — presumably another human being. Therefore, the cause of an injury must also be human. Common usage conforms to this interpretation. One does not refer to an affliction as an “injury” when the cause of that affliction is genetic, rather than the act or omission of another person. Though the word may lack sensitivity, such afflictions are more commonly termed “abnormalities.”

On a policy basis, it seems pointless to force a plaintiff to file suit within two years after ascertaining that she has an abnormality. Who is she to sue? The discovery provision of K.S.A. 60-513(b) thus makes no sense unless “injury” is defined to require some human causation. (The last clause of this subsection, imposing an absolute ten-year limit on the filing of lawsuits, serves to protect potential defendants whose conduct is not found to have been injurious until several years later.)

Until medical science had established the link between tetracycline ingestion and the discoloration of permanent teeth, plaintiffs could not have ascertained that Lisa’s apparent “abnormality” was actually an “injury.” In this case, then, the “fact of injury” was not reasonably ascertainable until a reasonable plaintiff in these circumstances would have learned of this linkage.

C. Act Giving Rise to the Cause of Action.

The “act giving rise to the cause of action” is also ambiguous. In separate DES cases, two judges of this court have adopted differing definitions of this phrase. Under Judge Rogers’ analysis in Purcell v. Abbott Laboratories, No. 81-4237 (D.Kan., unpublished, 6/2/82), the “act giving rise to the cause of action” would have been Lisa Cowan’s ingestion of tetracycline. Such interpretation is favored by the defendant in this case. However, in Colby v. E.R. Squibb & Sons, Inc., 589 F.Supp. 714, 716 (D.Kan.1984), Judge Kelly suggested a second definition. As he noted:

This construction is ambiguous, because one cannot tell whether the words “giving rise” are to be understood as a true participle (in which case they function as a mere adjective attached to the noun “act”) or as a gerund (in which case they function as a noun attached to the preposition “of”, as in “he will not live beyond the time of the bomb exploding”.). See H. Fowler, A Dictionary of Modern Usage Fused Participle, 215-218 (2d ed. 1965).

If the latter (gerund) construction is correct, then “the time of the act giving rise to the cause of action” might be better phrased as “the time when the cause of action accrued.” One would then look to the opening lines of K.S.A. 60-513(b), which state that “... the cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury.” In other words, “the act giving rise to the cause of action” would be the causing of substantial injury — here, the discoloration of Lisa’s teeth. Plaintiffs would then have up to ten years after that in which to file suit (but no more than two years after the fact of Lisa’s injury had become reasonably ascertainable).

If one looks only at the portion of K.S.A. 60-513(b) which follows the last comma, this latter construction seems entirely reasonable. As Judge Rogers noted, however, this construction gives the phrase “act giving rise to the cause of action” two different meanings within the same subsection. Where it first appears in that subsection, the phrase could not possibly be construed as a gerund. Rather, it must refer to the time of ingestion of tetracycline. Because that construction is equally reasonable as to the second appearance of this phrase, we decline to assume that the legislature intended the phrase to have two different meanings within the same subsection. Therefore, both appearances of the phrase “act giving rise to the cause of action” must refer to Lisa Cowan’s ingestion of tetracycline.

(For purposes of this motion, we must assume that any ingestion occurring within the applicable limitations period actually did contribute to Lisa’s injuries. Eventually, of course, the plaintiffs will have to prove such a causal connection.)

IV. Statute of Limitations — Application.

Having defined these three terms, their application to the facts of this case is relatively straightforward. It seems clear from the uncontroverted facts that Lisa Cowan’s teeth were substantially grayer than normal well before March 9, 1982. Therefore, this action would have been filed more than two years after a “substantial injury” had occurred.

Hence, we must proceed to the portion of K.S.A. 60-513(b) which follows the “or.” That is, “if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, ____” In this case, when was it reasonably ascertainable to any or all of these plaintiffs that the discoloration of Lisa Cowan’s teeth was related to her ingestion of tetracycline? This is clearly a question of fact for a jury to determine. Whenever that date might have been, plaintiffs would have had two years thereafter in which to file this action.

As to Lisa Cowan, the two-year statute of limitations is also tolled by K.S.A. 60-515(a). At the time this suit was filed, Lisa was under 18 years of age. She was thus able to bring this action regardless of when she could reasonably have ascertained that she had been injured. The only circumstance under which she might lose the protection of this provision is if the “act giving rise to the cause of action” occurred more than eight years prior to the date suit was filed. Under plaintiffs’ version of the facts, the act giving rise to the cause of action (Lisa’s ingestion of tetracycline) occurred in 1980. That was less than eight years prior to the filing of this suit, on March 9, 1984. For purposes of this motion, we must accept the 1980 date as correct. Should defendant establish that Lisa’s last ingestion was actually in 1975, however, more than eight years would have elapsed between that ingestion and the filing of this suit — thus depriving Lisa of this provision’s protection.

We note, at this point, that the ten -year cutoff contained in K.S.A. 60-513(b) would apparently not be relevant in this case. Even accepting defendant’s definition of “act giving rise to the cause of action” and defendant’s allegation that Lisa last ingested tetracycline in 1975, that act would still have occurred less than ten years prior to the filing of this suit.

For statute of limitations purposes, then, the following factual questions remain unanswered:

(1) When did Lisa Cowan last ingest any tetracycline manufactured by defendant (said ingestion having contributed to the discoloration of her teeth), and
(2) When did the fact of Lisa Cowan’s injury (i.e., that the discoloration of her teeth was related to her ingestion of tetracycline) first become reasonably ascertainable to each of the plaintiffs.

Should these questions remain unresolved at the time of trial, they will be submitted to the jury for its determination. See Hecht v. First National Bank & Trust Co., 208 Kan. 84, 93, 490 P.2d 649, 656 (1971). At this point, such factual disputes mandate a denial of defendant’s motion for summary judgment as to all but Count V of the complaint.

IT IS THEREFORE ORDERED that defendant’s motion for summary judgment is granted as to Count V of the complaint, and denied in all other respects.


author: SHAPIRO, District Judge.

text:
    Arnett MURRAY and Charles Murray, Wife and Husband, v. UNITED STATES of America.
    Civ. A. No. 84-1572.
    United States District Court, E.D. Pennsylvania.
    Feb. 20, 1985.

      Allan M. Horwitz, Philadelphia, Pa., for plaintiffs.
    Serena H. Dobson, Asst. U.S. Atty., Philadelphia, Pa., for defendant.
   MEMORANDUM and ORDER

SHAPIRO, District Judge.

This is an action pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) and § 2671 et seq. Plaintiffs allege that on or about April 1, 1981, Arnett Murray slipped and fell at the entranceway to the Post Office at 441 First Avenue, Parkesburg, Pennsylvania. Plaintiffs further allege that Arnett Murray’s claim for personal injuries on the required Form 95 was timely presented to the Postal Service and improperly denied. The Government contends that no claim was timely received, so denial was appropriate. Plaintiffs appeal from this denial, and the Government has filed a motion for summary judgment on the ground that plaintiffs’ action is time-barred.

The applicable statute of limitations for FTCA cases is two years; 28 U.S.C. § 2401(b). As a prerequisite to suit under the FTCA, a claim must be “presented” to the appropriate federal agency; 28 U.S.C. § 2675(a). Mailing of an administrative claim is insufficient to satisfy the presentment requirement; “a claim shall be deemed to have been presented when a federal agency receives from a claimant ... an executed Standard Form 95 ____” 28 C.F.R. § 14.2(a) (1983) (emphasis added). The FTCA waives the immunity of the United States; the two-year statute of limitations is a condition of that waiver and, consequently, an unwaivable jurisdictional requirement. See United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); House v. Mine Safety Appliances Co., 573 F.2d 609 (9th Cir.1978).

It is undisputed that the original Form 95 was mailed to the Parkesburg Post Office and received on April 4, 1983, three days after the statute of limitations expired. Hence the Government rightly denied this claim as time-barred.

There is a dispute on the record as to when a copy of Form 95 was delivered to the Thirtieth Street Post Office and to whom it was delivered. Plaintiffs’ attorney has stated in an affidavit that he hand-delivered, on April 1, 1983, a copy of Form 95 to an unidentified postal employee at the Thirtieth Street Post Office. Defendant has submitted an affidavit from Joseph Ryan, Accident Investigator, stating that a copy of Form 95 was neither hand delivered to nor subsequently received in the Accident Investigator’s Office. This disputed fact prevents summary judgment as a matter of law.

But the court is the trier of fact in FTCA cases. Plaintiffs have the burden of showing presentment, see Bailey v. United States, 642 F.2d 344 (9th Cir.1981), and oral testimony identical to the affidavit of record is unlikely to meet this burden in view of the lack of documentary proof. The Postal Service has no record of receipt of a copy of Form 95, though a formal routine for receiving and forwarding such claims exists, and plaintiffs also have no receipt and are unable to identify the individual to whom the claim was hand-delivered. It would be reasonable to conclude that plaintiffs’ attorney must have delivered the form to someone who was not a post office employee and that no proper presentment could be established on the record.

Because it is unlikely Arnett Murray can meet her burden of presentment and will be time-barred from obtaining any relief from this court, it is not in the interests of the administration of justice to permit this case to go to trial. However, the court will hear oral testimony on a request of counsel subject to Fed.R.Civ.P. 11. But if counsel intends to offer oral testimony in substantiation of his affidavit, he cannot continue to serve as plaintiffs’ counsel. Code of Professional Responsibility D.R. 5-102.

Plaintiff Charles Murray asserts that independent of his wife’s action, he may pursue a claim for loss of consortium. But Charles Murray failed to file a separate administrative claim within the two-year statutory period. Such a separate claim is required, even where one is claiming loss of consortium. See Susanin v. United States, 570 F.Supp. 25 (W.D.Pa.1983).

Judgment will be entered in favor of defendant United States of America on the ground plaintiffs claims are time-barred unless plaintiffs request an evidentiary hearing within ten (10) days, in which case the court will hear evidence on the issue of presentment in limine.