author: BARTLETT, District Judge.

text:
    Barbarita HIGH, Plaintiff, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, Defendant.
    No. 83-1174-CV-W-9.
    United States District Court, W.D. Missouri, W.D.
    April 30, 1985.

      Dennis W. Jennings, Sharon J. Meyers, Kansas City, Mo., for plaintiff.
    Paul P. Cacioppo, Regional Atty., Region VII, Dept. of H.H.S., Kansas City, Mo., for defendant.
   ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

BARTLETT, District Judge.

Plaintiff seeks review of the final decision of the Secretary of Health and Human Services (Secretary) denying her application for disability benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401, et seq., and Supplemental Security Income (SSI) benefits under Title XVI of the Act, 42 U.S.C. § 1381-85. Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), provides for judicial review of a “final decision” of the Secretary under Titles II and XVI.

On July 12, 1982, plaintiff Barbarita High filed a claim for disability insurance benefits. On July 29, 1982, plaintiff filed a claim for SSI benefits. The Secretary made initial determinations and denied benefits on August 5, 1982, and August 11, 1982. The Secretary denied plaintiffs requests for reconsideration on October 13, 1982, and December 16,1982. On March 1, 1983, a hearing was held before an Administrative Law Judge (ALJ). On May 31, 1983, the AU found that plaintiff was not disabled as defined in the Act. On August 29, 1983, the Appeals Council denied review of the AU’s decision. Thus, the decision of the AU stands as the final decision of the Secretary.

This action is before the Court on cross-motions for summary judgment. Upon consideration of the briefs in support and in opposition, and for the reasons stated below, plaintiff’s motion for summary judgment will be granted.

The standard for judicial review by this Court is whether the decision of the Secretary was supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Hancock v. Secretary of Dep’t. of H.E.W., 603 F.2d 739, 740 (8th Cir.1979). The determination of whether the Secretary’s decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Secretary’s decision.

Substantial evidence means “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir.1983).

An individual claiming disability benefits has the burden of proving she is unable to return to past relevant work by reason of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). Once this is established the burden shifts to the Secretary to prove that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform. O’Leary v. Schweiker, 710 F.2d 1334, 1337 (8th Cir.1983).

The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled or not. The regulations referred to generally as Medical-Vocational Guidelines are codified in 20 C.F.R. §§ 404.1501, et seq. (1983), and in 20 C.F.R. §§ 416.901, et seq. (1983). The Eighth Circuit Court of Appeals summarized this evaluation process in McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir.1982) (en banc).

In an attempt to create an orderly and uniform framework for analysis and decision of disability claims, the Guidelines set out a fixed sequence of decision-making that Administrative Law Judges (AUs) are required to follow. First, a determination is made whether a disability claimant is currently engaged in substantial gainful activity; if so, he must be found not disabled. If the claimant is not engaged in substantial gainful activity, the next question is whether he is suffering from a severe impairment, defined as one that significantly limits the ability to perform basic work-related functions. If a severe impairment is not found, the claimant must be found not disabled. If there is a severe impairment, and it is one listed in Appendix 1 to Subpart P, the claimant is found disabled on the medical evidence alone. If the impairment is not listed in Appendix 1, the next inquiry is whether the claimant can perform relevant past work. If he can, a finding of no disability is required. Finally, if the claimant cannot perform relevant past work, the question then becomes whether he can nevertheless do other jobs that exist in the national economy, despite his having a severe impairment that prevents return to his previous work. At this stage, the AU must determine the claimant’s residual functional capacity (RFC), that is, what he can still do physically even with his impairment, and also the claimant’s age, education, and relevant work experience — the latter three findings being referred to as vocational factors, as opposed to RFC, which is a medical factor. The criteria of age, education, and work experience are relevant because the statute specifies them in defining disability, 42 U.S.C. § 423(d)(2)(A). If the AU’s findings as to RFC, age, education and work experience fit any of the combinations of those criteria contained in the Tables in Appendix 2 to Part 404, then the AU must reach the conclusion (either “disabled” or “not disabled”) directed by the relevant Rule or line of the applicable Table____

The AU concluded 1) that plaintiff suffered from the following severe impairments: a) poorly controlled diabetes mellitus; b) controlled hypertension; c) obesity; and d) cervical radiculopathy affecting the upper left extremity; 2) that plaintiff could not perform her past relevant work; 3) that plaintiff could perform sedentary work, and 4) therefore, plaintiff was not disabled.

It is the Secretary’s obligation to develop fully and fairly the record of the administrative proceeding. Brissette v. Heckler, 730 F.2d 548, 549 (8th Cir.1984); Warner v. Heckler, 722 F.2d 428, 431 (8th Cir.1983). Implicit in that duty is the requirement that the Secretary present a complete record for this Court to make a determination whether substantial evidence exists to support the Secretary’s findings. This Court has repeatedly admonished the Secretary for incomplete transcripts and illegible copies of medical records. E.g., Blanton v. Heckler, No. 83-1073-CV-W-9, slip op. at 7 (W.D.Mo. November 26, 1984); Shoot v. Heckler, No. 82-0709-CV-W-9, slip op. at 6 (W.D.Mo. April 9, 1985).

The transcript of plaintiff’s testimony before the Administrative Law Judge contains 105 “INAUDIBLE” designations which omit portions of plaintiff’s testimony. It is impossible to determine from the transcript whether each “inaudible” stands for only one missing word or multiple missing words.

Some of the testimony which is peppered with “INAUDIBLES” is critical to the issues presented by the appeal. For example, when asked about her prior employment, plaintiff’s response is recorded as: “I worked at ‘INAUDIBLE’ Toy from 1968 to 19 ..... to 1980. The first job, first phase of the job, I ran the lowest machine, the ‘INAUDIBLE’ as a hoser ‘INAUDIBLE’ both my hands and by machine.” Tr. 36-37. When asked how much weight she lifted at her prior employment, plaintiff's response is recorded as: “Oh, it varied from 25 to 30, 35 ‘INAUDIBLE’.” Tr., 38. When asked about discomfort when she stands, plaintiff’s response is recorded as: “Yes, my back ‘INAUDIBLE’.” Tr. 47. When asked whether she wears glasses, plaintiffs response is recorded as “I needs it but ‘INAUDIBLE’.” Tr. 51. When plaintiff was asked whether she had diabetic retinopathy, the transcript reads as follows:

A And he also checks the ____ the blood vessels in the back of the eye and certain little ‘INAUDIBLE’ he knows, I don’t know, this “INAUDIBLE” that he watches closely and for glucoma [sic].
Q Alright [sic]
A ‘INAUDIBLE’ watch that and so far, it's nothing but just far sightedness and this blurriness ‘INAUDIBLE’.

Tr. 55-56.

When asked whether she follows her diet, plaintiff responded (according to the transcript): “A There’s times ‘INAUDIBLE’ naturally but ‘INAUDIBLE’ I follow the diet. I’m under oath, Q Pardon me? A I’m under oath, so I’m telling the truth ‘INAUDIBLE’.” (Tr. 62).

When asked about pain in her left arm, plaintiff responded:

A Some of the doctor tells me I have some “INAUDIBLE” right at the back of the neck, where the nerve comes down and it affects this nerve, it controls the left arm.
Q Alright [sic]
A And the pain, I have the pain, goes across the shoulder down to the ____ radiates down to the fingers, fingertips and it hurts just something terrible. I really have “INAUDIBLE” an just kind of “INAUDIBLE” because of the neck brace, but this has given me a terrible time and right now, I can hold things in my hand and drop them and not be even aware that I drop.
Q “INAUDIBLE”.[]
A Yes

Tr. 49-50.

In considering an appeal from the Secretary’s determination, the claimant’s testimony is frequently of crucial importance. The Secretary, not plaintiff, must bear responsibility for the inadequate transcript of plaintiff's testimony.

Remand to the Secretary because of the inadequate transcript would penalize the plaintiff who filed her disability claim on July 12, 1982. If the Secretary does not have the equipment to record the administrative hearing adequately and completely, and if the Secretary does not have trained personnel to transcribe the proceedings accurately and completely, then she, not the plaintiff, must suffer the consequences. If the problem was that the plaintiff did not testify clearly, the responsibility for assuring an adequate recording rests with the AU. The Secretary should expect that every appeal with an administrative record as incomplete and unreliable as this one will be ruled against the Secretary. This Court will not remand a Social Security disability case on the basis of an inadequate record where the failure to produce an adequate record is entirely the fault of the Secretary.

Substantial evidence, independent of plaintiff’s testimony, exists to support the Secretary’s finding that plaintiff could not return to her past relevant work. Therefore, the burden of persuasion shifted to the Secretary to establish by substantial evidence that plaintiff could perform some other work that exists in the national economy. McCoy, 683 F.2d at 1146-47. The incomplete and unreliable transcript of plaintiff’s testimony is not substantial evidence. Further, even if the Court considers only the understandable portions of the transcript, and the medical records, the Secretary’s finding that there are jobs in the national economy that plaintiff can perform was not supported by substantial evidence.

The AU found that plaintiff possessed the residual functional capacity (RFC) to perform sedentary work. RFC “is not the ability merely to lift weights occasionally in a doctor’s office; it is the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy, 683 F.2d at 1147. There is no evidence in the record that plaintiff can perform sedentary work “day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” In fact, there is substantial evidence in the record that plaintiff cannot perform sedentary work on a regular basis.

Plaintiff suffers from poorly controlled diabetes. In addition, she suffers from a degenerative spine condition for which physicians have prescribed a soft cervical collar and traction. She regularly takes large doses of NPH and regular insulin for diabetes. Plaintiff also suffers from hypertension which is well-controlled through the use of medication, e.g., aldomet, hydrochlorothiazide, and potassium. In a report dated February 18, 1983, plaintiffs treating physician, Dr. Simmons, stated that plaintiff cannot perform sedentary work. Tr. 160-62.

Even if there were substantial evidence to support the AU’s determination that plaintiff has the physical capability to perform sedentary work, the Secretary erroneously applied the grid and guidelines in determining that plaintiff was not disabled. If plaintiff suffers from a combination of exertional and nonexertional impairments, “the Guidelines are first considered to determine whether [s]he is entitled to a finding based on nonexertional impairments alone. If such a finding is not directed, the AU must then consider how much the individual’s work capability is further diminished by nonexertional impairments.” McCoy, 683 F.2d at 1148.

Plaintiff testified about numerous nonexertional impairments, e.g., drowsiness, fatigue, lethargy, callouses on the bottom of her feet, swelling of the feet and pain. It is unclear whether the AU rejected all or some portion of plaintiff’s testimony.

The adjudicator may not disregard a claimant’s subjective complaints solely because the objective medical evidence does not fully support them.
The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1. the claimant’s daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.

Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). In rejecting some or all of plaintiff’s testimony, the AU failed to consider each of the Polaski factors and failed to state clearly the reasons for rejecting plaintiff’s testimony.

Further, the transcript of the plaintiffs testimony at the administrative hearing demonstrates that the AU inappropriately rejected critical testimony based on his personal experience with diabetes.

Q Why would the diabetes, in your words, not let you do it?
A The dizziness and fatigue, you’re extremely tired when you have ‘INAUDIBLE’.
Q You are?
A Uh-huh
Q That’s curious, I’ve had it for 34 years.
A Oh well.
Q Maybe you are, but I’m not.
A I am extremely tired.
Q Okay. I’m not kidding you, I’ve had it for 34 years, and I’m not tired so, apparently it depends on how you are taking care of yourself.

Tr. 32. Later during plaintiff’s testimony, the AU concluded the primary reason plaintiff’s diabetes is not well-controlled is because she does not take care of herself. “According to the medical evidence in the file, your diabetes is, Mrs. High, very frankly, not very well-controlled. There are alot of reasons for that, the primary one generally being that you’re not taking care of yourself. Do you feel you are?” Tr. 62. Although there are references in the medical records to physicians’ advice that plaintiff needs to maintain a strict diet and lose weight (Tr. 138; Tr. 139), or that she did not take her medication as prescribed (Tr. 143), there is nothing indicating that the primary reason plaintiffs diabetes is not well-controlled is because she does not take care of herself. Apparently, the AU improperly rejected plaintiff’s testimony about the effects of diabetes on plaintiff by applying his own experience with diabetes to plaintiff. There is no medical evidence indicating the drowsiness and fatigue are not symptoms of diabetes.

Where a plaintiff suffers from nonexertional impairments, the testimony of a vocational expert is required to determine their effect. Tucker v. Schweiker, 689 F.2d 777, 780 (8th Cir.1982). “The vocational expert must be asked a hypothetical question which accurately set[s] forth claimant’s impairments and resulting functional limitation so that the expert can realistically assess the availability of jobs.” Brenner v. Schweiker, 711 F.2d 96, 99 (8th Cir.1983). There must be support in the record for each of the assumptions set forth in the hypothetical question. Id. at 98. A vocational expert’s testimony that there are jobs in the national economy that plaintiff can perform is not substantial evidence when the testimony is based on a hypothetical question containing assumptions which are without support in the record. Id.

A vocational expert was called as a witness and the AU asked four hypothetical questions. The first question, which was based on the assumption that all of plaintiff’s testimony was true, related to plaintiff’s ability to perform her past relevant work. In response to the second hypothetical question which included the same assumption as the first question, i.e., that plaintiff’s testimony was entirely credible, but also included an assumption about the transferability of plaintiff’s skills, the vocational expert testified that there were no jobs in the national economy that plaintiff could perform.

The third hypothetical question covers four pages of transcript. It is impossible to determine whether the assumptions in the third hypothetical are based on the record because of the numerous omissions in the transcript of plaintiff’s testimony which are designated “INAUDIBLE.” The crucial difference between this hypothetical and the previous one was the AU’s omission of the assumption that plaintiff suffered from drowsiness and fatigue. As previously discussed, the AU improperly rejected plaintiff’s testimony about suffering from drowsiness and fatigue. Therefore, the AU should have assumed those nonexertional impairments in this hypothetical. Had the AU done so, the vocational expert’s answer would have been that there were no jobs. See Tr. 71 and Tr. 78, the vocational expert’s response to the fourth hypothetical. With the incomplete assumptions, the AU responded to the third hypothetical question that there were jobs in the national economy that plaintiff could perform.

Finally, the fourth hypothetical question included the assumptions that plaintiff suffered from dizziness, lethargy, and sluggishness. The vocational expert testified that based on those assumptions, there were no jobs in the national economy that plaintiff could perform.

For the reasons stated earlier, there is substantial evidence that plaintiff suffers from nonexertional impairments including at least drowsiness, fatigue and pain. Therefore, the vocational expert’s response to the hypothetical question which did not include any assumption about nonexertional impairments was not substantial evidence. Nevertheless, the AU relied on the one hypothetical which did not properly assume plaintiff’s nonexertional impairments. The AU ignored both hypotheticals that included proper assumptions about plaintiff’s nonexertional impairments. Therefore, there is no substantial evidence that plaintiff could perform any job in the national economy.

The Secretary had ample opportunity to develop the record in order to determine if there was substantial evidence that plaintiff was not disabled. Had the Secretary properly applied the law in this Circuit and had the Secretary properly considered the evidence, plaintiff would have been found disabled. Further, the Secretary has completely ignored her obligation to present a reliable and complete record of plaintiff’s hearing. Therefore, remand would simply delay receipt of benefits. Tennant v. Schweiker, 682 F.2d 707, 710 (8th Cir.1982).

For the reasons stated above, it is hereby ORDERED that:

1) Defendant’s motion for summary judgment is denied;

2) Plaintiff’s motion for summary judgment is granted;

3) The Secretary shall calculate the amounts due under this Order and process this claim on an expedited basis; and

4) Within thirty days from the date of this Order the Secretary shall report to the Court the amounts due plaintiff under this Order and the date when the payment of benefits will be commenced.

      . At a hearing held on January 25, 1985, in Peterson v. Heckler, No. 83-0857-CV-W-9, the Court reminded the representative of the Secretary of her obligation to provide a reliable transcript.
      If this transcript is typical of virtually every one we get, I can only tell you that I am fearful that it is only a matter of time before I make some ruling against Ms. Heckler based on the fact that it seems to me it is her responsibility to provide a legible, intelligent transcript of what happens, and that if the parties and I are unable to make heads or tails of what the transcript says, it seems to me the responsibility of that must be placed at her doorstep.
      I am sure the technology exists. I am sure there are personnel available who could accurately transcribe what happens at these hearings.
      In light of the importance to the plaintiffs of as prompt a resolution of their claims as possible, and in light of the importance of the transcript of the hearing to the prompt resolution of plaintiffs, it seems to me that the Secretary really can do a better job, and should do a better job.

      . The possibilities for what this question was are legion. Some possibilities are:
      1) Are you exaggerating?
      2) Did you scream because of the pain?
      3) Are you having a seizure?
      4) Isn’t the weather nice?

      . For instance, the ALJ stated that "[w]ithin the framework of the above definitions, the medical evidence does not show the existence of any nonexertional impairments." Tr. 9. It is not clear what definitions the ALJ is referring to. Within the same paragraph, the ALJ defines "sedentary work” and "residual functional capacity.” If these are the definitions the ALJ is relying on, this is yet another example of the ALJ's failure to analyze exertional and nonexertional impairments in the manner required by McCoy, 683 F.2d at 1148. See text, supra at p. 7.
      The ALJ subsequently wrote that "[c]laimant’s testimony as to her symptoms, limitations, and restrictions, to the extent she alleges an inability to perform sedentary work, is not credible or persuasive and is not supported by substantial evidence.” [Emphasis supplied.] Tr. 10.
      In addition, the ALJ stated that: “Despite her claim of being able to sit for only 30 minutes, claimant sat through the hearing for approximately 70 minutes without any apparent sign of distress or discomfort. As a consequence, the undersigned gives little weight to claimant’s testimony pertaining to her limitations and restrictions, and finds that it is generally nonpersuasive and not credible.” Tr. 8.


source: Caselaw Access Project

author: ALAIMO, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America v. Steve L. GILLEY and George Brown.
    No. CR 485-08.
    United States District Court, S.D. Georgia, Savannah Division.
    April 30, 1985.

      Fred Kramer, Asst. U.S. Atty., Savannah, Ga., for the U.S.
    Davis Cohen, Federal Public Defender, Savannah, Ga., for Gilley.
    James K. Jenkins, Savannah, Ga., for Brown.
   ORDER

ALAIMO, Chief Judge.

Brown and Gilley have moved this Court, pursuant to the exclusionary principle of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), to suppress evidence seized during law enforcement officers’ search of a residence in Fort Stewart, Georgia. On April 5, 1985, during a pretrial hearing in this case, the Court heard testimony regarding the factual basis of this motion. Having considered the evidence and the applicable precedent, the Court is of the opinion that the motion should be granted as to Brown and denied as to Gilley.

FACTUAL BACKGROUND

The challenged search occurred on February 1, 1985, in the residence of United States Army Specialist Fourth Class Marie Rossetti. Specialist Rosetti lives in soldiers’ family quarters on the Fort Stewart Military Reservation in the Southern District of Georgia.

Prior to the search, Army Criminal Investigation Division (“CID”) agents, working with the Liberty County Sheriff’s Office, had received information from an assertedly reliable source that individuals named “Steve” and “George” had been soliciting cocaine purchasers in Hinesville, Georgia, near Fort Stewart. The officers’ information indicated further that Steve and George had one pound of cocaine stored in their automobile, a 1980 Ford Fairmont. On February 1, 1985, officers observed a meeting between Steve, George and the informant. Subsequently, the officers followed the suspects in the Ford Fairmont to the Fort Stewart quarters of Specialist Rossetti.

Later that day, CID Agent Chang contacted Specialist Rossetti at her workplace, the Fort Stewart Motor Pool. At the investigator’s request, Rossetti went to the base CID office for questioning regarding her association with Steve and George. Rossetti explained that her boyfriend’s name was Steve and that he had recently arrived in the area from Florida. She had met a “George” with Steve that very afternoon when she went to her quarters for lunch. The individuals to whom Rossetti was referring are the current defendants.

Agent Chang related to a surprised Specialist Rossetti the suspicions concerning cocaine transactions by Gilley and Brown. At the agent’s request, Rossetti executed a written consent for officers to search her residence. Rossetti wanted to be at her home during the search, so she left the CID office with Agent Chang.

CID Agent Moran was already at the Rossetti quarters when Agent Chang and Rossetti arrived. Armed with Rossetti’s consent, Moran and other agents entered the front door of the house to conduct the search. They neither knocked nor announced themselves before entering. The agents discovered Steve Gilley and George Brown in the living room. The room smelled of burning marijuana. On the sofa beside Gilley sat a plastic tray which held cigarette rolling papers and a quantity of suspected marijuana. Gilley and Brown were promptly arrested and removed from the house. They were apparently detained just outside the house during the search. The defendants were not informed that the officers were about to search the house pursuant to their host’s consent.

Among the first items searched was a gray cloth travel bag which sat unconcealed on the living room floor, near where Gilley and Brown had been sitting. The bag’s three storage compartments were zipped shut. Agent Moran testified at the pretrial hearing that the bag attracted his attention because it did not “belong” among the furniture and fixtures in the living room. Rather, the bag’s portable character and location in the room indicated to Moran that it had been brought into the room recently. These observations, Moran testified, suggested that the bag belonged to one of Rossetti’s guests, Gilley or Brown. The bag did, in fact, belong to Brown. Although Rossetti, Gilley and Brown were all nearby, Agent Moran made no attempt to identify the bag’s owner.

Agent Moran unzipped one of the bag’s compartments. Along with the clothing and other travel needs in it, he found one pound of suspected marijuana, approximately one ounce of suspected cocaine and a variety of drug paraphernalia. The contraband was seized. The Government intends to offer it in its case-in-chief against Brown and Gilley.

DISCUSSION

A. Brown’s Motion to Suppress

Brown has conceded that he lacks standing to object to the search of the Rossetti premises in general. His motion seeks only suppression of items seized from his gray travel bag.

The CID agents searched Rossetti’s residence, including Brown’s travel bag, without a judicial warrant. It is basic Fourth Amendment jurisprudence that searches conducted without prior approval by a judge or a magistrate are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. Colorado v. Bannister, 449 U.S. 1, 2-3, 101 S.Ct. 42, 42-43, 66 L.Ed.2d 1, 3 (1980); United States v. Satterfield, 743 F.2d 827, 843 (11th Cir.1984). To avoid suppression of evidence seized during a warrantless search, the Government must show that the search fell within one of the exceptions to the warrant requirement. See Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409, 413 (1970) (stating that burden rests on Government to show that warrantless search falls within an exception).

The Government asserts that Specialist Rossetti’s consent authorized the search of the house and all effects in it, including the travel bag, without a warrant. The Supreme Court has indeed recognized that officers may conduct a warrantless search pursuant to a voluntary and authoritative consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854, 860 (1973). Brown responds that Rossetti neither owned nor had authority over his travel bag. She, therefore, could not effectively consent to its search.

In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court discussed the power of an individual to give effective consent to a search of property belonging to another. Matlock resided in a house leased by a Mr. and Mrs. Marshall. He shared a bedroom in the house with the Marshalls’ daughter, Mrs. Graff. Officers investigating a bank robbery charge against Matlock visited the house and received Mrs. Graff’s permission to search for evidence. The officers discovered $4,995 in cash, thought to be part of the loot, in the closet of the bedroom which Matlock shared with Graff.

The Court concluded that the consent of Graff might be valid against Matlock, stating:

[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

415 U.S. at 171, 94 S.Ct. at 993, 39 L.Ed.2d at 249-50. In a footnote to this passage, the Court explained that common authority rests on “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Id. at 171 n. 7, 94 S.Ct. at 993 n. 7, 39 L.Ed.2d at 250 n. 7.

The Government asserts that Rossetti had access to and control over her quarters and, thus, under Matlock, authority to consent to their being searched. This cannot be doubted. However, “authority to consent to search of a general area ... cannot be thought automatically to extend to the interiors of every enclosed space capable of search within the area.” United States v. Block, 590 F.2d 535, 542 (4th Cir.1978). Guests and co-residents in a house may have privacy interests in specific property which cannot be waived by a third party’s consent to a search of the general premises.

An individual may have a reasonable expectation of privacy in the contents of a travel bag which he has taken to the home of another person. The Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view. United States v. Ross, 456 U.S. 798, 822-23, 102 S.Ct. 2157, 2171-72, 72 L.Ed.2d 572, 592 (1982). Suitcases, footlockers and briefcases are frequently the objects of a man’s highest privacy expectations. United States v. Block, supra, at 541; see also United States v. Freire, 710 F.2d 1515, 1519 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1277, 79 L.Ed.2d 681 (1984) (“Few places outside one’s home justify a greater expectation of privacy than does a man’s briefcase.”). The expectations of privacy in such effects may be at their most intense when they are deposited temporarily in a place under the general control of others. Block, supra, at 541.

Brown did nothing which diminished his natural expectation of privacy in the contents of his travel bag. The bag was zipped shut when discovered by Agent Moran. It was found in the house’s common area, the living room, which appears to have been the only part of the house to which Brown had access. He had not been an overnight guest at the Rossetti home and, thus, would not have put his personal effects into a bedroom. Brown kept the bag within the ambit of his physical control, rather than storing it in his automobile. He did not permit Rossetti or Gilley to enter or use the bag. From all indications, he maintained the travel bag as a private enclave during his visit at the Rossetti residence.

Because Brown retained a privacy interest in the bag, Rossetti could have consented to a search of it only if she had “joint access or control” over it, in addition to her authority over the house in general. See Matlock, supra. This analysis was applied to similar facts in United States v. Block, supra. Officers in Block received Mrs. Block’s consent to conduct a general search of the Block residence. The officers discovered a locked footlocker in the bedroom occupied by Mrs. Block’s son. Mrs. Block explained that the footlocker belonged to her son and that she did not have a key to it. The officers broke the lock and examined the footlocker’s contents. The Court concluded that Mrs. Block’s access to and authority over her son’s bedroom enabled her to consent to a search of the room. 590 F.2d at 541. However, this authority did not extend to the footlocker. Mrs. Block did not share access to or use of the footlocker with her son and, thus, could not validly consent to a search of the footlocker. Id. at 542.

Similarly, the Ninth Circuit held in United States v. Wilson, 536 F.2d 883, 884-85 (9th Cir.1976), cert. denied, 429 U.S. 982, 97 S.Ct. 497, 50 L.Ed.2d 592 (1976), that, absent evidence of common use, an apartment resident lacked authority to consent to the search of suitcases left in her apartment by three guests. Accord United States v. Poole, 307 F.Supp. 1185, 1187-90 (E.D.La.1969).

The result in this case follows Block and Wilson. Brown had an expectation of privacy in the contents of his closed travel bag. Rossetti had not been authorized by Brown to open or use the bag, and she had not in fact opened the bag. It is not clear that Rossetti even noticed the bag in her living room prior to the search. As Rossetti lacked “common authority” over the bag, her consent was ineffective to authorize a search of it.

United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), established that evidence need not be suppressed if it was discovered by officers acting in good faith reliance on the validity of a search warrant, even if the warrant is subsequently found to have been invalid. This principle arguably applies to the consent search, making suppression improper where an officer has searched in good faith reliance on the validity of a consent which he has received.

Even if Leon’s good faith exception were applied to consent searches, suppression would nonetheless be required in the case at bar. Before he searched the bag, Agent Moran correctly deduced that it belonged to Gilley or Brown, rather than to Rossetti. Having so concluded, Moran had little basis for reasonably believing that Rossetti had authority to consent to a search of the bag. He should, rather, have sought the consent of the believed owners of the bag — Gilley and Brown — who were on the scene during the search. See Unit ed States v. Impink, 728 F.2d 1228, 1234 (9th Cir.1984) (stating that the validity of a third-party consent is less certain where the police intentionally bypass a suspect who is present and known by them to possess a superior privacy interest in the item to be searched).

The CID agents searched Brown’s travel bag without a warrant. The Government in the case at bar has failed to show that the challenged search fell within the consent exception, or any other exception to the warrant requirement. For this reason, Brown’s motion to suppress evidence seized from the bag shall be granted.

B. Gilley’s Motion to Suppress

Gilley moves to suppress all items found in the search of Specialist Rossetti’s quarters, including the items seized from Brown’s travel bag. Gilley contends that Rossetti’s consent was not voluntarily given; therefore, it did not provide a legitimate basis for the search. Because Gilley lacks standing to challenge the search, the Court shall deny his motion.

To prevail in a claim that evidence was seized in violation of the Fourth Amendment, the defendant bears the burden of demonstrating his legitimate expectation of privacy in the areas searched. United States v. Baron-Mantilla, 743 F.2d 868, 869 (11th Cir.1984), citing Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 424 n. 1, 58 L.Ed.2d 387, 393 n. 1 (1978). The legitimacy of a defendant’s privacy interest is determined by the totality of circumstances surrounding the defendant’s relationship with the place searched. Id. at 870. An individual can show the requisite privacy interest in a residence by showing that he either owned or leased the premises or that he had an unrestricted right of occupancy, custody or control over them. Id.; United States v. Bachner, 706 F.2d 1121, 1126 (11th Cir.), cert. denied, — U.S. -, 104 S.Ct. 247, 78 L.Ed.2d 235 (1983).

Gilley failed to prove a connection to the Rossetti residence sufficient to justify a reasonable expectation of privacy in it. Rossetti testified that on January 30, 1985, two days before the search, she and Gilley agreed that Gilley would move into her home. However, the totality of circumstances do not indicate that such an agreement had been effectuated on February 1. Rossetti had not notified the Fort Stewart housing authorities that Gilley had become a resident of her quarters. This fact becomes telling when one considers that Rossetti had given the required notification as to her sister and niece who lived with her. It was not shown that defendant had a key to the house or that he had ever visited the house except by Rossetti’s invitation. Nor was there any evidence that Gilley had moved his personal effects to Rossetti’s home.

Moreover, it is plain that Gilley and Rossetti’s personal relationship had been unsettled in the time preceding the search. Rossetti testified that she and Gilley had reconciled in January, 1985, after having broken off their relationship. In the weeks before the search, Gilley had visited Rossetti’s home only occasionally, staying on each visit for only one or two days. In light of this history, the Court is not convinced that Gilley could have been transformed from a guest to resident by the mere exchange of words.

On February 1,1985, Gilley had neither a property interest in the Rossetti quarters nor an unrestricted right of occupancy and control over them. Rather, the Court concludes that he was an invitee in the house. As such, Gilley lacked standing to challenge CID officers’ search of the house.

CONCLUSION

Brown’s motion to suppress is GRANTED as to all items found during the CID officers’ search of Brown’s gray travel bag on February 1, 1985. Gilley’s motion to suppress is DENIED.


author: BARRINGTON D. PARKER, District Judge:

text:
    EAGLE-PICHER INDUSTRIES, INC., Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. A. No. 84-1360.
    United States District Court, District of Columbia.
    April 30, 1985.
    William J. Spriggs, Joe G. Hollingsworth, Edward M. Fogarty, Gary I. Rubin, Spriggs, Bode & Hollingsworth, Washington, D.C., for plaintiff.
    Harold J. Engel, Benjamin A. Dinkens, U.S. Dept. of Justice, Washington, D.C., for defendant.
   MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

Again, this Court is faced with the claim of a manufacturer of asbestos products seeking relief from the United States for damages allegedly sustained in settling various private “underlying” suits brought against it. Plaintiff Eagle-Picher Industries (“Eagle-Picher”) has sued the United States seeking indemnity, contribution, apportionment and other money damages under the Federal Torts Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, and the provisions of several admiralty statutes. Eagle-Picher contends that the underlying suits were brought by various plaintiffs who alleged personal injury and death resulting from their exposure to harmful quantities of asbestos fibers contained in thermal insulation products which it manufactured. Eagle-Picher then filed a single omnibus action seeking reimbursement for 559 underlying claims which has culminated in this litigation.

Pursuant to Rule 12(b)(1) Fed.R.Civ.P., the government has moved to dismiss the complaint on several jurisdictional grounds: the plaintiff’s claim for various damages is barred by applicable statute of limitations; the administrative claim fails to provide sufficient information and thus the minimal notice requirements of the FTCA has not been satisfied resulting in failure to exhaust administrative remedies; and lack of admiralty jurisdiction because none of the wrongs alleged in the complaint bear a significant relationship to maritime activities.

The matter has been exhaustively briefed and ably argued by counsel for the parties. For the reasons stated below, the Court grants the government’s motion to dismiss.

BACKGROUND FACTS

On July 27, 1983, Eagle-Picher submitted an administrative claim to the Department of the Navy and to six other federal agencies. The claim sought nearly $5 million in damages under the FTCA. Eagle-Picher alleged that the United States was liable for indemnity, contribution, apportionment and other monetary relief for its costs in defending and settling 559 underlying asbestos-related actions. In support of its claim for damages as to the 559 underlying actions, Eagle-Picher submitted one Standard Form 95 with attachments. The attachments included documents identifying Eagle-Picher’s “primary” and “excess” asbestos insurance coverage (Attachment I), a list of agencies to which plaintiff forwarded copies of its administrative claim (Exhibit A), information about each of the underlying plaintiffs (Exhibit B), and the alleged damages incurred by Eagle-Picher as to each underlying plaintiff (Exhibit C). The claim itself consisted of a 42 page narrative statement of background factual information and a description of the legal claims.

In early November 1983, the government sent Eagle-Picher identical individual letters regarding approximately 343 of the underlying claimants advising that its administrative claim did “not satisfy the notice requirements of section 2675(a) of the Federal Tort Claims Act ...” Plaintiffs’ Opposition to Motion to Dismiss at Exhibit L. The letters contained specifications for information which the government considered necessary before it would declare the claims to have been filed in compliance with § 2675(a). Eagle-Picher responded in er single letter to the Department of Labor on November 29, 1983 and stated that it construed the Department’s letters as a denial of its administrative claim. Defendant’s Motion to Dismiss at Exhibit D. Six months after receiving the first set of letters from the government, Eagle-Picher filed this complaint.

ANALYSIS

A.

In its motion to dismiss, the government argued that Eagle-Picher is barred by the statute of limitations from including 219 of the 559 underlying claims in its omnibus claim. 28 U.S.C. § 2401(b) (two year statute of limitations for tort claims against the government). In its opposition to the motion, Eagle-Picher conceded that it would only be pursuing 343 of the underlying claims. Plaintiff’s Opposition to Motion to Dismiss at 2 n. 1. Because of the disposition of the adequacy of the claim issue, the Court need not make a finding as to the few disputed claims.

In its complaint, Eagle-Picher invoked this Court’s admiralty jurisdiction. The defendant argues that admiralty jurisdiction does not arise from the type of claims which Eagle-Picher presents. That proposition is unopposed by the plaintiff. It is clearly the law that admiralty jurisdiction does not lie with claims arising from asbestos exposure in shipyards or aboard vessels. See, e.g., Harville v. Johns-Manville Products Corp., 731 F.2d 775, 781 (11th Cir.1984); Lowe v. Ingalls Shipbuilding, 723 F.2d 1173, 1190 (5th Cir.1984); Austin v. Unarco Industries, Inc., 705 F.2d 1, 14 (1st Cir.1983), cert. denied, 463 U.S. 1247, 104 S.Ct. 34, 77 L.Ed.2d 1454 (1983); Keene Corp. v. United States (Keene I); 700 F.2d 836, 844-45 (2d Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967, 969 (9th Cir.1983).

B.

Section § 2675(a) of the Federal Tort Claims Act requires that an administrative complaint be filed with an appropriate federal agency prior to bringing an action in court under the Act. It is widely accepted that the filing requirement contained in that section is jurisdictional. See, e.g., Warren v. United States Department of Interior, 724 F.2d 776 (9th Cir.1984); Bush v. United States, 703 F.2d 491, 494 (11th Cir.1983); Tucker v. United States Postal Service, 676 F.2d 954, 959 (3rd Cir.1982); Adams v. United States, 615 F.2d 284, 290 (5th Cir.1980), opinion clarified, 622 F.2d 197 (5th Cir.1980). The government contends that Eagle-Picher has not adequately presented its claim to an agency prior to filing this action. Because the Court finds that the administrative claim has not been filed in accord with what is required by § 2675(a), this matter must be dismissed for lack of subject matter jurisdiction.

In what it characterizes as both an attempt to comply with the requirements set forth in the first Department of Labor letter and the Keene I decision, and to avoid litigation over the issue, Eagle-Picher contends that it compiled and submitted factual information in its Form 95 claim in excess of what it deemed necessary under § 2675(a). Eagle-Picher’s claim included ten boxes of factual data on the underlying claimants. Much of the factual information was set forth on a two-page cover sheet for each individual. The cover sheets were accompanied by copies of the complaints and settlement agreements in the underlying legal actions. (Exhibit B to Form 95 claim). The cover sheets had spaces to provide the following information about each underlying claimant: (i) caption of suit; (ii) court; (iii) court docket number; (iv) name and address of plaintiff or underlying claimant; (v) name and address of administrator or executor if death occurred; (vi) diagnosis of injury and date and cause of death, if death occurred; (vii) shipyard or government facility where exposure occurred with address and dates; (viii) plaintiff’s job title; (ix) Eagle-Picher products identified; and (x) a breakdown of damages by six components.

The goals to be achieved by the § 2675(a) notice requirement have been discussed by several courts. In Warren, 724 F.2d at 779, the Ninth Circuit held that the notice requirement is minimal. Minimal notice would enable the agency to commence an investigation and place a value on the claim. A further objective of that section is to facilitate settlement of the claims. See Adams, 615 F.2d 284, 291. The settlement objective was an important consideration of Congress when it amended § 2675. S.Rep. No. 1327, 89th Cong., 2d Sess. 4-5, reprinted in 1966 U.S.Code Cong. & Admin.News 2515.

In this Court’s past consideration and review of similar asbestos litigation, see Keene Corp. v. United States (Keene II), 591 F.Supp. 1340 (D.D.C.1984), and GAF Corp. v. United States, 593 F.Supp. 703 (D.D.C.1984), a distinction was made between tort claims involving one underlying incident and an omnibus claim which seeks compensation for literally hundreds of underlying claims. GAF, 593 F.Supp. at 709. In the single incident cases, skeletal information on claims will more than likely suffice to enable the government to commence an investigation and to evaluate the potential for settlement. Where a claim is based upon hundreds of individual incidents involving geographically and circumstantially diverse factors, then the government, at a minimum, must have enough information about the underlying claimants to satisfy the purposes of § 2675(a) — investigation of the claim and evaluation of the potential for settlement. Cf. Lunsford v. United States, 570 F.2d 221 (8th Cir.1977) (class action under FTCA may only be maintained if each claimant satisfies the jurisdictional requirements of § 2675(a)); Allen v. United States, 588 F.Supp. 247 (D.Utah 1984) (consolidated trial of many individual FTCA claims, each presumably satisfying § 2675(a) jurisdictional requirements). It is only logical that in order for the government to investigate and evaluate Eagle-Picher’s omnibus indemnity claim, it must understand the claim’s components. When essential factual information has not been supplied with the claim form when submitted, the government is at a loss to pursue the claim in its initial phase toward the investigative and settlement objectives.

Eagle-Picher asserts that the government’s rejection of its administrative claim for lack of information is a mere obstructionist tactic because the government has information available to it regarding asbestos indemnification litigation in other jurisdictions and because the government has made it quite clear that it does not accept legal liability for these claims and, therefore, will not settle. The general familiarity with asbestos litigation as a substitute for notice in a particular case principle was rejected in Keene I. 700 F.2d at 842. Moreover, the government’s ability to formulate legal arguments in other jurisdictions in defense of its liability for this type of claim is a wholly separate issue from whether it has adequate factual information with regard to the particular underlying claims in this litigation. For example, at some point between the time when Eagle-Picher submitted its administrative claim and when that claim was finally disposed of by the agency, the government’s liability for these types of claims could become the legal rule in limited situations as the result of litigation in other jurisdictions. The government would then need adequate factual information about each of the underlying claims to determine its liability and therefore, the settlement potential, for the omnibus claim.

Indeed, the need for adequate factual information in an action seeking indemnification for asbestos claims was set forth in Keene I. 700 F.2d at 842. See also GAF, 593 F.Supp. at 709; Keene II, 591 F.Supp. at 1347. Eagle-Picher attempts to distinguish the claim it filed in this case from those filed in GAF by noting that it included more information than had been included by GAF, such as identification of the disease contracted by the underlying claimants and the claimants and job titles. Plaintiff’s Opposition to Motion to Dismiss at 15 n. 21.

However, the government has pointed to many instances in which certain key information is either missing completely or is so vague as to be virtually useless. It is not enough for Eagle-Picher to proffer individual cover sheets with spaces for particular information if the information contained on them is not provided or does not measure up to what is necessary for the government to investigate or evaluate the claim. For example, one claim cites “shipyard” as the facility where exposure occurred. Defendant’s Reply at Exhibit A (Benjamin Joyner). Another cover sheet shows the facility where exposure occurred as the “U.S. Army” and provides a job title of “insulation.” Defendant’s Reply at Exhibit A (Thomas C. Smith). The dearth of information provided in those cover sheets would not permit the government to commence investigating the underlying cases with an eye toward settlement because it would not even know where the underlying claimants were employed. Further, the defendant points to numerous examples of vague job titles, defendant’s reply at Exhibit B, vague descriptions of facilities where exposure occurred, defendant’s reply at Exhibit D, no descriptions as to the time period when exposure occurred, defendant’s reply at Exhibit G, and no description of job titles, defendant’s reply at Exhibit E. In addition, Eagle-Picher does not supply information as to whether the underlying claimant’s employer is the government or a private shipyard. That information is critical to both a factual investigation and to the nature of its legal claim. See infra at 12-15. Its attempt to rectify that omission by supplying employer category information as exhibits to its Brief in Opposition to the Motion to Dismiss does not cure the jurisdictional defect in the administrative claim.

In its statement of claims attached to its Standard Form 95, plaintiff sets forth the six legal causes of action which it contends exposes the government to liability: (i) the government’s negligent design, adoption and enforcement of specifications for asbestos containing products; (ii) the government’s negligent performance of its duties it had undertaken to protect the health and safety of shipyard workers; (iii) the government’s negligent failure to implement or to enforce health and safety standards, requirements and regulations; (iv) the government’s negligent failure to exercise reasonable care in connection with the construction and repair of naval vessels at government and contract shipyards; (v) the government’s negligent selection of contract shipyards; and (vi) the government’s breach of its statutory and regulatory duties. These claims are very similar to those advocated by GAF, with the exception that GAF cited the government for selling asbestos products to it. GAF, 593 F.Supp. at 708.

Eagle-Picher perceives that the Court should not have the objections to the form of the legal complaints that it had in GAF, where it held that “[i]t is inconceivable to this Court that these acts or omissions are applicable to every claim.” 593 F.Supp. at 710, or that the Second Circuit had in Keene I with “Keene’s laundry list of potential variables [which] makes it impossible for the government — or a court — to evaluate Keene’s action against the government,” 700 F.2d at 842. Instead of the numerous Standard Form 95s submitted by GAF, Eagle-Picher has submitted only one Standard Form 95 with one list of claims, each of which it believes is applicable to all of its underlying claimants.

In its attempt to correct the error made by other manufacturers such as GAF, Eagle-Picher looked to the superficial solution — a consolidated Form 95 with legal claims ostensibly applicable to all of the underlying claimants — without looking to the source of the problem cited by the courts in GAF, Keene I, and Keene II. The courts found that “each combination of facts, moreover, may raise a different legal issue so far as to the government’s liability to Keene or our jurisdiction is concerned.” Keene I, 700 F.2d at 839. By phrasing its claims in such a manner as to appear to apply to all of the underlying claimants, Eagle-Picher cannot disguise the fact that they would not.

Initially, the fifth claim, that of negligent selection of contract shipyards would logically only apply to underlying claimants who were private employees. Further, the remaining five claims are negligence claims. A claim for negligence requires pleading elements of duty and breach of that duty by the defendant. See Johnson v. United States, 547 F.2d 688, 695 n. 47 (D.C.Cir.1976); Rest.2d of Torts § 4 (1965) (Definition of “duty”). By combining its claim for both categories of employees, Eagle-Picher is assuming that the duty owed by the government to its own employees is the same as that which it owed to private employees over which it had no direct supervision and control.

To some extent, the plaintiff itself has admitted that this duty is not the same. In the hearing held on this motion, counsel for the plaintiff stated:

There is one other difference between the two categories that we have presented here, and that is in the private shipyard cases the Government has contended — and I am sure ultimately will contend here — that as a matter of fact it did not have control over the workplace in the private shipyard context.
We say that is hogwash. We say they have very specific and complete control. That is a matter of proof. We recognize the burden of proof which we will ultimately have to carry, but those are basically the only meaningful distinctions between the two categories of cases and we have broken the cases out in a way that reflects the legal theories we rely on.

Transcript of November 15, 1984 Hearing at 44-45 (emphasis added). Eagle-Picher also noted that “while the Government’s wrongdoing consisted of a single, on-going course of conduct — the legal theory upon which its liability is based might vary between two categories of cases — viz., federal shipyard cases and government-contract shipyard cases.” Plaintiff’s Opposition to Motion to Dismiss at 14 n. 19. See also id. at 3. By failing to differentiate its legal claims by category of employees and by omitting the corresponding factual information, Eagle-Picher does not cure the defects cited in Keene I and GAF. Further, Eagle-Picher cannot fairly state that the underlying claimant’s employee status is only relevant to the government’s defense. See Plaintiff’s Post-Hearing Memorandum at 17-18. Employee status is clearly an element of its claim because it defines the duty which the government owed and which it allegedly breached. At any rate, the availability of a legal defense is a critical element in determining the settlement potential for a claim — an important purpose of the notice requirement of the FTCA. Finally, the fact that Eagle-Picher may have included up to 30 underlying claimants in its claim who were not shipyard employees, Tr. at 39, but who were employed at government facilities such as the TVA or NASA, further undermines its argument that all of its legal claims were applicable to all of the underlying claimants.

Eagle-Picher’s administrative claim fails to supply the government the adequate notice to which it is entitled under 28 U.S.C. § 2675(a). That failure is fatal to the plaintiff’s claim and the government’s motion to dismiss is clearly warranted. An appropriate order accompanies this Memorandum Opinion.

      . The Suits in Admiralty Act, 46 U.S.C. §§ 741-752; the Public Vessels Act, 46 U.S.C. §§ 781-790; the Admiralty Extension Act, 46 U.S.C. § 740; and the general admiralty law of the United States, 28 U.S.C. §§ 1333.

      . The agencies included: the Department of Justice, the Department of Defense, the Department of Transportation, the General Services Administration, the Department of Health and Human Services, and the Department of Labor.

      . Standard Form 95 is the official claim form required by the government to process claims under the FTCA.

      . The citations to the attachments to the Form 95 claim are all found in Attachment A to Defendant’s Motion to Dismiss.

      . Eagle-Picher has stated that it eventually received 211 additional letters a number of months later. Plaintiffs Opposition to Motion to Dismiss at 16 n. 22.

      . The plaintiff has included in the record evidence of correspondence with the Department of Labor, Plaintiff’s Opposition to Motion to Dismiss at Exhibit J, relating to a November 22, 1982 administrative claim filed by it of the same nature that was deemed invalid. Eagle-Picher suggests that because the only problems specifically isolated in the 1982 letter were the failure to indicate a "sum certain” for the total claim and the failure to break down the individual damage claims, the government is estopped from asserting additional grounds of invalidity regarding the 1983 claim. The Court does not accept that premise. The letter itself states that it would "detail some of the specific problems" (emphasis added) with the administrative claim; it did not represent that those grounds were the exclusive problems with the claim. Further, plaintiff admitted recognizing that Keene Corp. v. United States, 700 F.2d 836 (2d Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983), imposed additional requirements on it. See Plaintiffs Opposition at 10-11. But compare id. at 11 n. 16.

      . The Court is somewhat puzzled by the mathematics of this case. The government, in its main brief, states that 219 claims are barred by the statute. Defendant’s Motion to Dismiss at 16. Thus, according to the government’s figures, 340 cases would remain viable. However, the plaintiff claims that 212 of the 559 underlying claims are barred, Opposition to Motion to Dismiss at 2 n. 1. Yet, it concludes that it is only pursuing 343 of the original claims. Id. at 2. To make matters worse, the government, in its reply, states that there are five underlying claims in dispute concerning the statute of limitations issue. Reply at n. 1. To the Court, the difference between the government's figure of 340 and the plaintiffs figure of either 343 or 347 is not five.

      . The Court’s ruling in this case makes it unnecessary to consider whether the settlement requirements promulgated pursuant to § 2672 are also jurisdictional requirements. That question was specifically left open by the Second Circuit in Keene I. 700 F.2d at 841 n. 9. There is not a uniformity of opinion with regard to that issue. See Warren, 724 F.2d at 785-87 (Sneed, C.J., dissenting), for a discussion of some of the relevant cases.

      . See supra at n. 6.

      . The six components are settlement amount and date, paid allocated expenses, Liberty Mutual case handling charges, administrative costs, interest, and total amount of claim.

      . Eagle-Picher has satisfied the first requirement set forth in Keene I, id., that it provide a sum certain for the damage amount of its total claim and for each of the underlying claims. See Exhibit C to the Standard Form 95 claim. Indeed, the government does not even raise the sum certain requirement as an issue in this case.

      . The Court is cognizant of the fact that some of the examples cited by the defendant involve underlying claims which are no longer being pursued by Eagle-Picher because of the statute of limitations.


author: LATCHUM, Senior District Judge.

text:
    Virginia DARE, Plaintiff, v. SECRETARY OF the AIR FORCE and Commanding General, Clark Air Force Base, Defendants.
    Civ. A. No. 84-658-JLL.
    United States District Court, D. Delaware.
    May 1, 1985.
    Robert Thurston Barrett, Dover, Del., and Fredric J. Gross, Mount Ephraim, N.J., of counsel, for plaintiff.
    Joseph J. Farnan, Jr., U.S. Atty., and Charlene D. Davis, Asst. U.S. Atty., Wilmington, Del., Vincent M. Garvey and Kathleen S. Devine, Dept. of Justice Civil Div., Washington, D.C., Major Alexander S. Nicholas, Office of the Judge Advocate Gen., U.S. Air Force, Washington, D.C., of counsel, for defendants.
   MEMORANDUM OPINION

LATCHUM, Senior District Judge.

The plaintiff has brought this suit under the Parental Kidnapping Prevention Act of 1980 (“PKPA”), Pub.L. No. 96-611, § 7, 94 Stat. 3569 (codified at 28 U.S.C. § 1738A), seeking the following relief:

(1) a writ of mandamus directing the defendants to require the plaintiffs estranged husband to comply with orders of the Family Court of the State of Delaware (“Family Court”), (Docket Item [“D.I.”] 1 at 8); or

(2) an affirmative injunction directing the defendants to return to the Family Court the plaintiffs young daughter, now living at Clark Air Base with the plaintiffs estranged husband, so that the court can exercise jurisdiction to make custody determinations regarding the child, (id.); or

(3) a declaratory judgment declaring the defendants to be bound by the PKPA and thus required to obey the orders of the Family Court regarding the daughter of the plaintiff and her estranged husband. (Id. at 8-9.)

The case is before this Court on the defendants’ motion to dismiss the complaint for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), (D.I. 5), and on the plaintiffs cross-motion for summary judgment. (D.I. 7.) Because the Court agrees with the defendants that the statute cannot be read to cover the facts presented in the complaint, the defendants’ motion to dismiss will be granted and the plaintiff’s motion for summary judgment will be denied.

BACKGROUND

The factual allegations of the complaint which must be taken as true for purposes of the motion to dismiss, D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir.1984), show that the plaintiff, Virginia Dare, and United States Air Force Staff Sergeant Francis Dare are married, though living separate and apart, and are the parents of six-year-old Gabrielle C. Dare. (D.I. 1 at ¶¶ 7, 8.) Since November of 1980, the Family Court of the State of Delaware has exercised jurisdiction over the Dare family by making and occasionally modifying determinations providing for Gabrielle’s custody and the parents’ visitation rights. (Id. at ¶ 12.) In connection with his active duty service in the Air Force, Sgt. Dare was transferred in July or August of 1983 to Clark Air Base in the Republic of the Philippines. (Id. at Plaintiff’s Exhibits 1 & 3.) At that time, he moved Gabrielle from the State of Delaware and took her with him to his new assignment overseas. (Id. at ¶ 15, Plaintiff’s Exhibit 3.) On January 18, 1984, the Family Court responded to Mrs. Dare’s petition for contact with Gabrielle in order to arrange visitation rights by ordering Sgt. Dare to appear before the court on February 15, 1984, to show cause why Mrs. Dare’s petition should not be granted. (Id. at ¶ 13 and Plaintiff’s Exhibit 1.) Sgt. Dare failed to appear as ordered and on February 15, 1985, the Family Court, through Judge David P. Buckson, held Sgt. Dare in contempt and entered an order providing for the contempt to be purged by Sgt. Dare’s returning Gabrielle to the court on or before April 1, 1984. (Id. at ¶ 14 and Plaintiff’s Exhibit 2.) To date, Sgt. Dare has failed to comply with the orders of the Family Court and Mrs. Dare’s efforts through her representatives in Congress have also failed to secure Gabrielle’s return to Delaware. (Id. at ¶¶ 20-21.) The instant case is apparently a consequence of Mrs. Dare’s inability to obtain the cooperation of her husband’s military superiors (referred to collectively as “the Secretary”) in compelling him to obey the orders of the Family Court.

LAW

In response to mounting publicity about the practice of one parent removing and concealing a child from the other parent, see Parental Kidnapping Prevention Act of 1979: Joint Hearing on S. 105 before the Subcomm. on Criminal Justice of the Senate Comm. on the Judiciary and the Subcomm. on Child and Human Development of the Senate Comm. on Labor and Human Resources, 9th Cong., 2d Sess. (1980), Congress enacted the PKPA. The portion of the act at issue in this case reads:

(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify ..., any child custody determination made consistently with the provisions of this section by a court of another State.

The plaintiff contends that this language, “imposes on commanders of overseas United States military installations which have no resident civil courts a duty to enforce qualifying child custody determinations against members of their commands.” (D.I. 7.) The Secretary counters that the PKPA was established not to solve every conceivable parental child-snatching situation but simply to “avoid jurisdictional competition and conflict concerning child custody determinations between various states____” (See D.I. 6 at 4.) Although the Court understands the concern of the plaintiff, the Secretary’s assertion that the PKPA does not apply to this case is correct. Two related reasons compel this conclusion.

First, the Court cannot accept the proposition that Clark Air Base constitutes a “State” within the meaning of the PKPA. Subsection (b)(8) of 28 U.S.C. § 1738A defines a “State” as “a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.” The plaintiff argues for applicability of the statute on the theory that “the United States has possession of Clark Air Base just as surely as a lodger has overnight possession of a room at a Holiday Inn.” (D.I. 13 at 7; see also D.I. 9 at 13 & n. 8.) It should hardly require mention, however, that the sovereign Republic of the Philippines is not a Holiday Inn. The word “possession,” like any word, may have different legal significance and “may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918). The definition of a “possession of the United States” is not provided in the PKPA, nor is it provided in any authority cited by the plaintiff; nevertheless there are some clues available.

A standard legal dictionary indicates that a possession is an area over which a country exercises sovereignty only by right of conquest. See Black’s Law Dictionary 393 (5th ed. 1979) (under definition of “dependency”). That definition is supported by the Supreme Court’s remark in Posadas v. National City Bank, 296 U.S. 497, 56 S.Ct. 349, 80 L.Ed. 351 (1936), that “the Philippine Islands constituted a dependency, for they were not possessions merely, but possessions held by right of cession from Spain____” Id. at 502, 56 S.Ct. at 351. (emphasis added). Over a hundred years earlier, Justice Bushrod Washington, in his capacity as Circuit Justice, had defined “possession” in contrast to “dependency” by saying, “the mind ... is irresistably led to annex to [‘dependency’] the idea of possession, accompanied by title, in opposition to mere naked possession, obtained either by force, and against right, or rightfully acquired, and wrongfully withheld from the legal sovereign.” United States v. The Nancy, 27 F.Cas. 69, 71 (C.C.D.Pa.1814) (No. 15,854).

Of course, the citation of these authorities is not meant to suggest that there is a single, set definition for “possession,” even in the context of international law. In one of the Insular cases, three of the justices in the plurality characterized Puerto Rico as a possession, Downes v. Bidwell, 182 U.S. 244, 341-42, 21 S.Ct. 770, 807-08, 45 L.Ed. 1088 (1901) (White, Shiras, and McKenna, J.J., concurring), while the opinion for the court referred to the island as a “territory of the United States.” Id. at 248-49, 21 S.Ct. at 772. A later federal case distinguished the “organized and incorporated territory” of Alaska from “possessions of the United States such as Puerto Rico and, formerly, the Philippines____” United States v. Farwell, 11 Alaska 507, 76 F.Supp. 35, 40 (D.Alaska 1948) (citations omitted). It appears, then, that the word “possession,” like the word “territory,” has “been considered susceptible of interpretation — that is, it does not have a fixed and technical meaning that must be accorded to it in all circumstances.” Americana of Puerto Rico v. Kaplus, 368 F.2d 431, 436 (3d Cir.1966), cert. denied, 386 U.S. 943, 87 S.Ct. 977, 17 L.Ed.2d 874 (1967). The Supreme Court has counseled that determining “whether [an area] comes within a given congressional act applicable in terms to a ‘territory,’ depends upon the character and aim of the act[,]” Puerto Rico v. Shell Co., 302 U.S. 253, 258, 58 S.Ct. 167, 169, 82 L.Ed. 235 (1937), and that counsel seems equally applicable to determining what is or isn’t a possession, for

[w]ords generally have different shades of meaning, and are to be construed if reasonably possible to effectuate the intent of the lawmakers; and this meaning in particular instances is to be arrived at not only by a consideration of the words themselves, but by considering, as well, the context, the purposes of the law, and the circumstances under which the words were employed.

Id. Following that instruction, this Court has considered the word “possession” in the PKPA and has concluded that Congress did not intend for it to encompass land which, like Clark Air Base, belongs to a foreign sovereign and which the United States Armed Services occupy only at the pleasure of that sovereign. Cf. Treaty of General Relations, July 4, 1946, United States-Philippines, 61 Stat. 1174, T.I.A.S. No. 1539; Military Bases Agreement, March 14, 1947, United States-Philippines, 61 Stat. 4019, T.I.A.S. No. 1775; Amendment to Military Bases Agreement, January 7, 1979, 30 U.S.T. 863, T.I.A.S. No. 9224. Clark Air Base is therefore not a “state” as that term is defined in the PKPA.

A second and closely related reason for holding the PKPA inapplicable to the facts of this case is that the Court cannot accept the plaintiff’s inclusion of military commanders under the rubric of “appropriate authorities” bound by the act. It has long been settled that “the military is, by necessity, a specialized society separate from civilian societyf,]” Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439 (1974), and that “judges are not given the task of running the Army,” or any other armed service. Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). To insert the combined court systems of the federal and state governments into the command of armed service personnel — ordering them when and where to appear and how to deal with their dependents — would be something of such extraordinary and far-reaching effect that it may fairly be expected that Congress would never do so without being completely clear about its intent. No such clear intent is evident in the PKPA.

This Court knows and this case demonstrates that family strife breaches geographical barriers and cuts across varied occupations; and perhaps there ought to be a mechanism to deal with problems like those affecting the Dare family. But, as with other complaints connected with life in the military, “[t]he responsibility for setting up channels through which ... grievances can be considered and fairly settled rests upon the Congress and the President of the United States and his subordinates.” Id. at 93-94, 73 S.Ct. at 539-40. The Court is not empowered to grant the relief the plaintiff seeks and the case must therefore be dismissed. Having thus disposed of the case it is not necessary for the Court to further consider the meaning or scope of the PKPA.

An order will be entered in accordance with this memorandum opinion.

      . One of the two listed defendants is the Commanding General of Clark Air Force Base. (Docket Item- 1.) The brief for the defense, however, states that the correct name of the military installation is Clark Air Base and that the base does not have a commanding general, but rather is governed by several officers. (Docket Item 6 at 2 n. 1.) In any case, the Secretary of the Air Force is acknowledged to have responsibility for the command. (Id.)

      . The Philippines became an independent nation in 1946. See Treaty of General Relations, July 4, 1946, United States-Philippines, 61 Stat. 1174, T.I.A.S. No. 1539.


author: TASHIMA, District Judge.

text:
    UNOCAL CORPORATION, Plaintiff, v. T. Boone PICKENS, Jr., Jack E. Brown, Cyril Wagner, Jr., Wagner & Brown, Mesa Petroleum Co., Mesa Southern Co., Mesa Asset Co., CY-41, Inc., Jack-41, Inc., Mesa Partners II, Defendants. MESA PARTNERS II, Counterclaimant, v. UNOCAL CORPORATION, Counterdefendant.
    No. CV 85-2179 AWT.
    United States District Court, C.D. California.
    May 1, 1985.
    Walter L. Stratton, James R. Martin, Gibson, Dunn & Crutcher, Los Angeles, Cal., James Robertson, Juanita A. Crowley, Wilmer, Cutler & Pickering, Washington, D.C., George C. Bond, Jasmina A. Theodore, Dennis P. Codon, Orville A. Armstrong, P.C., Brian G. Gough, Darlene E. Rabe, MacDonald, Halsted & Layboume, Los Angeles, Cal., for Unocal Corp.
    Michael H. Diamond, Elizabeth D. Mann, Skadden, Arps, Slate, Meagher & Flom, Los Angeles, Cal., Philip J. John, Michael Paul Graham, James Edward Maloney, Baker & Botts, Houston, Tex., for Mesa Partners II.
   MEMORANDUM ORDER DENYING PRELIMINARY INJUNCTION

TASHIMA, District Judge.

BACKGROUND

This is the motion of defendant and counterclaimant Mesa Partners II (“Mesa II”) for a preliminary injunction to enjoin plaintiff and counterdefendant Unocal Corporation (“Unocal”) from completing its self tender offer (the “Offer”) unless a challenged condition to the Offer is removed.

The Offer was announced on April 17, 1985 and is to exchange senior secured notes (of varying yields and maturities) of the issuer, Unocal, of principal amounts totalling $72.00 for each share of Unocal common, for up to 87.2 million shares (just under 50%). The Offer was a part of Unocal’s response to Mesa II’s cash tender offer, announced on April 8, 1985, for 64 million shares of Unocal common at $54.00 per share. The Offer was conditioned on acceptance for payment by Mesa II of 64 million shares of Unocal common pursuant to the Mesa II cash tender offer. The 64 million shares, together with the shares owned by Mesa II and its affiliates, would give Mesa II 51 percent of Unocal common. On April 23, 1985, Unocal amended the Offer with respect to 50 million of the 87.2 million shares tendered for by waiving the condition that Mesa II successfully complete its cash tender offer. One of the conditions of the Offer (and not affected by the amendment) is that no shares which are tendered by or on behalf of Mesa II or its affiliates would be accepted for exchange. It is this condition which is put in issue by this motion.

ISSUE

Mesa II contends that this provision of the Offer violates both § 13(e) and § 14(e) of the Securities Exchange Act of 1934, as amended by the Williams Act (the “Williams Act”), 15 U.S.C. §§ 78m(e) & 78n(e). The issue raised is whether the Williams Act prohibits discriminatory tender offers, i.e., offers to less than all persons who hold the class of securities which are the subject of the offer. Of course, that issue must be determined in the context of this case where the only excluded owner of Unocal common is the competing, hostile tenderor. The issue is one of first impression — apparently, there is no reported case dealing with this issue.

DISCUSSION

Accepted rules of statutory construction require first that we examine the language of the statute itself — to determine whether the plain words of the statute support the meaning ascribed to it. See, e.g., Council of Hawaii Hotels v. Agsalud, 594 F.Supp. 449, 453 (D.Hawaii 1984). Here, nothing in the text of either § 13(e) or § 14(e) of the Williams Act (or in any other provision of the Act) plainly supports counterclaimant’s contention. Although we may look to the legislative history of the Williams Act to interpret an ambiguous statutory provision, see id. at 454 even assuming that §§ 13(e) and 14(e) are susceptible of the claimed reading, nothing in the legislative history supports counterclaimant’s implicitly sweeping reading of the Act. See, e.g., Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 30-31, 97 S.Ct. 926, 943-944, 51 L.Ed.2d 124 (1977); Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 58, 95 S.Ct. 2069, 2075, 45 L.Ed.2d 12 (1975).

Mesa II relies primarily on the failure of the Securities and Exchange Commission (“SEC”) to act, as support for its reading of the Act. The SEC has twice initiated proposed rulemakings which, if the rules had been adopted, would have required tender offers to be “open to all.” SEC Release No. 34-16385, 44 Fed.Reg. 70,349, 70,355 (1979) (proposed Rule 14e-4); SEC Release No. 34-14234, 42 Fed.Reg. 63,066 (1977) (proposed Rule 13e-4). It is more reasonable to infer, however, that the SEC’s failure to adopt such proposed rules (and its apparent failure to litigate the issue in court) is more likely based on either a view that such substantive rules are not authorized by the Act or that, if they are, as a matter of policy the SEC has chosen not to require such an “open to all” condition.

In the face of consistent judicial acceptance from the beginning of the Williams Act that Congress never intended to substantively regulate tender offers and in the face of the SEC’s apparent acceptance of that interpretation, it is unnecessary to debate the cases which are claimed tangentially to touch on this issue. Suffice it to state that the only case to impart substantive content to the Williams Act, Mobil Corp. v. Marathon Oil Co., 669 F.2d 366 (6th Cir.1981), cert. denied, 455 U.S. 982, 102 S.Ct. 1490, 71 L.Ed.2d 691 (1982), has been universally criticized by every circuit to consider the issue. See, e.g., Feldbaum v. Avon Prod., Inc., 741 F.2d 234, 237 (8th Cir.1984), and cases cited therein.

I note also that this case confirms the ability of state courts to deal with substantive issues of corporation law and corporate governance, including issues of the fairness in a corporation’s treatment of its shareholders. In a parallel state court proceeding, Mesa Petroleum Co. v. Unocal Corp., C.A. No. 7997 (Del.Ch. Apr. 29, 1985), the Delaware Chancery Court issued a temporary restraining order (“TRO”) restraining Unocal from “proceeding” with the Offer, unless Mesa II is permitted to participate in it (i.e., tender its shares) “in the same manner as all other Unocal shareholders.” The TRO was issued on the finding that Unocal was unlikely to prevail “on the issue of the overall fairness of the offers’ exclusion of Mesa.”

Finally, I find that Mesa II has failed to make the essential showing that it will suffer irreparable harm. Rondeau, 422 U.S. at 61, 95 S.Ct. at 2077; Pacific Realty Trust v. APC Inv., Inc., 685 F.2d 1083, 1086 n. 5 (9th Cir.1982). It is clear that any loss of premium is both calculable and monetarily compensable, should Mesa II prevail on the merits. Mesa II’s papers on its motion is devoid of any showing of irreparable harm. When questioned at the hearing, counsel’s response was that the mix of outstanding shares would be affected by the Offer; however, he was unable to articulate how a change in that mix from the Offer going forward could irreparably harm Mesa II. I also cannot accept the Delaware Chancery Court’s reasoning that irreparable harm (which it found for purposes of issuing its TRO) has been shown for Williams Act purposes. Its “finding” on this issue was:

However, the Unocal exchange offer cannot be viewed in isolation. As discussed above, one of the purposes of the Offer and the Mesa exclusion is to defeat Mesa’s takeover bid. Given that purpose, it seems somewhat inconsistent to argue that the only harm to Mesa will be monetary. If Mesa is prevented from acquiring Unocal in part because of an unlawful exchange offer, it will have been deprived of a unique opportunity the loss of which is not adequately compensable in money damages.

Mesa Petroleum Co. v. Unocal Corp., slip op. at 8.

With respect, I fail to see how this amounts to a showing of irreparable harm. Even assuming that Unocal’s purpose in making the Offer is to frustrate Mesa II’s takeover bid, not a single fact (other than the purpose itself) is set forth from which irreparable harm could be inferred. And while it is equally true that if Mesa is prevented from completing its acquisition of Unocal, it will have been deprived of an unique opportunity, again, there is not a single fact stated or found from which it can be inferred that the Offer will or may have that effect. The most that can be inferred is that the Offer, if completed, will reduce the value of the acquired company. Mesa II has made no argument that it has a legally protectible right to acquire Unocal at any stated value. Although the prize may be reduced in value by completion of the Offer, it can be argued that rather than preventing acquisition by Mesa II, Mesa II’s acquisition efforts will be aided, since its 13.6 percent share of Unocal common will increase to 19 percent of shares outstanding after exchange of approximately 30 percent of the now outstanding non-Mesa II shares for debt securities. In short, I cannot agree that any basis exists upon which a finding of irreparable harm can be predicated.

For the foregoing reasons, which constitute my findings of fact and conclusions of law under F.R.Civ.P. 52(a), the motion of defendant and counterclaimant Mesa II for a preliminary injunction is denied.