author: LEE, District Judge.

text:
    Jerry L. YOUNG, Plaintiff, v. INTERNAL REVENUE SERVICE; Roscoe L. Egger, Jr.; Paul D. Williams; and Anita Wells, Defendants.
    Civ. No. F 84-135.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Sept. 25, 1984.

      Jerry L. Young, pro se.
    David H. Miller, Asst. U.S. Atty., Fort Wayne, Ind., Jerome A. Busch, Trial Atty., Tax Division, Dept, of Justice, Washington, D.C., for defendants.
   ORDER

LEE, District Judge.

This matter is before the court on defendants’ “Motion to Dismiss and for an Award of Attorney’s Fees and Costs,” filed July 20, 1984 and plaintiff’s “Motion for Summary Judgment,” filed August 2, 1984. For the following reasons, defendants’ motion will be granted, and plaintiff’s motion will be denied.

Plaintiff is proceeding pro se. Pro se pleadings are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). This court also recognizes that federal courts have historically exercised great tolerance to insure that an impartial forum remains available to plaintiffs invoking the jurisdiction of the court without the guidance of trained counsel. Pro se complaints, such as plaintiff’s, are held to less stringent pleading requirements; technical rigor in the examination of such pleadings is inappropriate.

Liberally construing plaintiff’s complaint and “statement of support” filed with the complaint, it appears that plaintiff is contesting the assessment of federal income taxes and certain tax deficiencies against him by the Internal Revenue Service (“IRS”) and its agents. According to the statutory notice of deficiency forms attached to the complaint, plaintiff owes a total of $17,968.00 in taxes for the years 1978-1981, plus penalties under 26 U.S.C. § 6653(b) totaling $8,984.00. Plaintiff has filed this suit to redress the violation of his civil rights allegedly caused by this assessment of taxes, and seeks a total of 10.8 million dollars in damages.

The complaint lists 42 U.S.C. §§ 1981, 1983, and 1986 as the basis of the claim, but also alludes to the use of a “bill of attainer” [sic] and the violation of due process rights. Plaintiff believes the tax assessment violates his civil rights because the IRS was never created by “positive law” (that is,. a law passed by the Congress) and thus has no jurisdiction over him. Also, the plaintiff believes that the Internal Revenue Code does not apply or pertain to him because he is a “sovereign citizen.”

Defendants have responded by filing a motion to dismiss. The thrust of the motion is that none of the named defendants can be sued. Defendants allege that the IRS and the United States (to the extent it is involved here) are protected by principles of sovereign immunity, while the individual defendants were improperly served and are protected by executive officer immunity. The motion also seeks fees and costs for defending this case.

Plaintiff has also filed a motion for summary judgment, alleging that the defenses offered are moot because the defendants are not “real persons.” This court then issued a stay pending resolution of the motion to dismiss. The court turns to that motion first.

MOTION TO DISMISS

Although defendants have denominated their motion as a motion to dismiss, it is clear that the issues presented by this motion are best addressed after reference is made to the exhibits and other pleadings in the case. When matters outside the pleading are presented to and not excluded by the court, a motion to dismiss will be converted into a motion for summary judgment under Rule 56. See Fed.R.Civ.P. 12(b).

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Thus, summary judgment serves as a vehicle with which the court “can determine whether further exploration of the fact is necessary.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975).

In making this determination, the court' must keep in mind that the entry of summary judgment terminates the litigation, or an aspect thereof, and must draw all inferences from the established or asserted facts in favor of the non-moving party. Peoples Outfitting Co. v. General Electric Credit Corp., 549 F.2d 42 (7th Cir.1977). A party may not rest on the mere allegations of his pleadings or the bare contentions that an issue of fact exists. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See generally C. Wright, Law of Federal Courts, § 99 (4th ed. 1983); 6 Moore’s Federal Practice, § 56.15 (2d ed. 1983).

Thus, the moving party must demonstrate the absence of a genuine issue of material fact. The court views all evidence submitted in favor of the non-moving party. Even if there are some disputed facts, where the undisputed facts are the material facts involved and those facts show one party is entitled to judgment as a matter of law, summary judgment is appropriate. Egger v. Phillips, 710 F.2d 292, 296-97 (7th Cir.1983); Collins v. American Optometric Assn., 693 F.2d 636, 639 (7th Cir.1982). Further, if the court resolves all factual disputes in favor of the non-moving party and still finds summary judgment in favor of the moving party is correct as a matter of law, then the moving party is entitled to summary judgment in his favor. Egger, 710 F.2d at 297. See also Bishop v. Wood, 426 U.S. 341, 348 n. 11, 96 S.Ct. 2074, 2079 n. 11, 48 L.Ed.2d 684 (1976).

Although not raised by the defendants directly in their motion, the court turns first to the issue of whether a proper basis of jurisdiction exists for hearing this cause. Because of the limited nature of a district court’s jurisdiction, the court may inquire into its jurisdiction sua sponte. Rice v. Rice Foundation, 610 F.2d 471 (7th Cir.1979).

A. Jurisdiction

Plaintiff’s complaint asserts that the civil rights statutes, 42 U.S.C. §§ 1981, 1983, and 1986, give this court jurisdiction over his suit. However, none of these provisions is an appropriate basis for relief in this case. Section 1981 is restricted by the import of its language to discrimination based on race or color. Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880); Willingham v. Macon Telegraph Publishing Co., 482 F.2d 535, 537 n. 1 (5th Cir.1973). In fact, the language of § 1981 militates against plaintiff’s case, because the section provides that “all persons” shall be subject to taxes. Section 1983 prohibits deprivation of rights under color of state law. However, actions of IRS officials, even if beyond the scope of their official duties, are acts done under color of federal law and not state law, thus making § 1983 inapplicable. Seibert v. Baptist, 594 F.2d 423 (5th Cir.1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980); Mack v. Alexander, 575 F.2d 488, 489 (5th Cir.1978). Section 1986 creates a cause of action for failure or neglect to prevent a § 1985 conspiracy. However, § 1985(1) deals with conspiring to prevent an official from discharging his duties, while § 1985(2) deals with obstructing justice, both of which are inapplicable here. Section 1985(3) requires that there be “some racial, or perhaps otherwise class based, invidiously discriminatory animus behind the conspirators’ action,” Griffin v. Breckenridge, 403 U.S. 88, 102. 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), none of which is alleged to be present here. It is therefore obvious that none of these statutory provisions can provide plaintiff with a basis for suit.

The court notes that two general jurisdiction statutes may have some potential applicability to this case. However, the court is convinced that neither one of these statutes will supply this court with jurisdiction over plaintiff’s claim. The first statute, 28 U.S.C. § 1340, grants the district court original jurisdiction of any civil action arising under any act of Congress providing for internal revenue. The very language of the statute indicates that this section does not create jurisdiction in and of itself. Section 1340 makes clear that the jurisdiction extends to civil actions arising under the Internal Revenue laws; as such, the suit must be based on some cause of action which the Internal Revenue Code recognizes and allows the plaintiff to bring. Absent some recognition of this kind of suit under the Internal Revenue Code, § 1340 will not create an independent basis for jurisdiction. As one court has noted, “given the limitations which Article III of the Constitution places on the jurisdiction of the federal courts, it is doubtful that the various jurisdictional statutes [like § 1340] could do more than waive the congressionally imposed jurisdictional amount requirement.” Crown Cork & Seal Co. v. Pennsylvania Human Relations Commn., 463 F.Supp. 120, 127 n. 8 (E.D.Pa.1979).

It appears that this case does not arise under the Internal Revenue Code. Plaintiff does not seek either to enforce any provision of the Code or to pursue a statutory remedy under the Code. Rather, he seeks damages for the alleged violation of his rights. In fact, the whole thrust of plaintiffs case is that he is outside the scope of the Code so that the actions of the defendants are violations of his rights. However, if the plaintiffs claim comes from outside the Code, then it logically cannot “arise under” the Code, and therefore § 1340 cannot provide plaintiff with jurisdiction.

A second possible source of general jurisdiction is 28 U.S.C. § 1331, the federal question jurisdiction statute. Plaintiff claims that he is outside the scope of the federal income tax laws. Such a claim brings into question the interpretation of several provisions of the Internal Revenue Code. This may be sufficient to create some kind of federal question jurisdiction based on the interpretation of the Code. However, this federal question would not provide a sufficient jurisdictional basis for plaintiffs damage claim. In order to recover damages, the plaintiff must show that he can recover damages for violations stemming from defendants’ alleged unconstitutional activity. Plaintiff can obtain damages against the defendants under only one of two theories: a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680; or an implied cause of action under the principles of Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). As will be discussed more fully in the next section of this order, a claim under the Federal Tort Claims Act will fail on principles of sovereign immunity. Furthermore, in Seibert v. Baptist, 594 F.2d 423, 429-32 (5th Cir. 1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980), the court refused to recognize a Bivens -type cause of action against the IRS and IRS officials and agents. The actions of the present defendants in assessing the taxes and penalties against the plaintiff and in generally operating under the IRS regulatory framework were not of the outrageous nature of those found in Bivens. This court agrees with the Seibert court and refuses to recognize a Bivens -type cause of action against the IRS or IRS officials and agents for the collection and assessment of taxes. Thus, while a federal question may exist, it provides no basis for plaintiff to recover damages. As such, § 1331 cannot provide this court with jurisdiction over plaintiff’s damage claim.

Overall this court can find no basis for assuming jurisdiction over plaintiff’s claim. However, out of an abundance of caution and a desire to give plairtiff a full review of his case, the court continues by analyzing the other issues raised by the motion to dismiss.

B. The “Suability” of the Defendants

Plaintiff has named four defendants in this action: the IRS; Roscoe L. Egger, Jr., the Commissioner of the IRS; Paul D. Williams, District Director of the IRS; and Anita Wells, “as it is she who Mr. Young was to contact if he had decided to petition the tax court.” Defendants’ arguments for dismissal revolve around the status of these defendants and whether the plaintiff can sue them. It is therefore appropriate to examine the defendants in turn.

1. The Internal Revenue Service

The core of defendants’ argument about the inability of plaintiff to sue the IRS is the doctrine of sovereign immunity. It is well settled that the United States is a sovereign and, as such, is immune from suit without its prior consent. United States v. Shaw, 309 U.S. 495, 500-01, 60 S.Ct. 659, 661, 84 L.Ed. 888 (1940); Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir.1982); Akers v. United States, 539 F.Supp. 831, 832 (D.Conn.1982), affd, 718 F.2d 1084 (2d Cir.1983). Absent consent to sue, dismissal of the action is required. Hutchinson, 677 F.2d at 1327. The United States has waived its immunity with respect to some causes of action in the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671-2680. However, the Act, in § 2680(c), specifically excluded “any claim arising in respect of the assessment of collection of any tax or customs duty----” It is therefore clear that the United States has specifically reserved its immunity with respect to claims arising out of tax collection and assessment. Thus, to the extent that any part of plaintiffs complaint can be construed as a claim against the United States, it is barred by the doctrine of sovereign immunity. See Hutchinson; Seibert v. Baptist, 594 F.2d 423 (5th Cir.1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1851, 64 L.Ed.2d 271 (1980); White v. Commissioner, 537 F.Supp. 679, 684 (D.Colo.1982).

Plaintiff has attempted to make clear that his claim is not against the United States, but rather against the IRS. That is of little help to plaintiff because courts have found that the actions of the IRS or its agents fall under the Federal Tort Claims Act exception for collection and assessment of taxes. See Morris v. United States, 521 F.2d 872, 874 (9th Cir.1975); Spilman v. Crebo, 561 F.Supp. 652, 654-55 (D.Mont.1982). It is therefore clear that the IRS is immune from suit for tax collection or assessment activities.

Plaintiff attempts to circumvent this conclusion by arguing that the IRS is “a private corporation” because it was not created by “any positive law” (i.e., statute of Congress) but rather by fiat of the Secretary of the Treasury. Apparently, this argument is based on the fact that in 1953 the Secretary of the Treasury renamed the Bureau of Internal Revenue as the Internal Revenue Service. However, it is clear that the Secretary of the Treasury has full authority to administer and enforce the Internal Revenue Code, 26 U.S.C. § 7801, and has the power to create an agency to administer and enforce the laws. See 26 U.S.C. § 7803(a). Pursuant to this legislative grant of authority, the Secretary of the Treasury created the IRS. 26 C.F.R. § 601.101. The end result is that the IRS is a creature of “positive law” because it was created through congressionally mandated power. By plaintiffs own “positive law” premise, then, the IRS is a validly created governmental agency and not a “private corporation.” It enjoys the sovereign immunity of the United States, and thus is entitled to summary judgment in this cause of action.

2. The Individual Defendants

Plaintiff names the three individual defendants apparently on the grounds that their failure to stop the assessment and collection of the taxes involved constituted a violation of his rights. The defendants have responded by asserting two reasons to dismiss the claim against them: improper service and immunity.

Defendants’ improper service argument centers on the mode of service effected on the individual defendants. It claims that the individual defendants were not served personally as is required under Federal Rule of Civil Procedure 4(d)(1) because service was effected by sending copies of the complaint and summons by certified mail addressed to each of the individual defendants at the office of the IRS in Fort Wayne, Indiana. Such service is sufficient under Fed.R.Civ.P. 4(d)(5) for service of process on an officer or agency of the United States. However, plaintiff seeks to sue the individual defendants in their individual capacity, and as the defendants correctly point out, “where money damages are sought from a public official in his individual capacity, service by mail under Rule 4(d)(5) is insufficient.” Mick lus v. Carlson, 632 F.2d 227, 240 (3d Cir. 1980). Accord Relf v. Gasch, 511 F.2d 804 (D.C.Cir.1975); Marsh v. Kitchen, 480 F.2d 1270 (2d Cir.1973). Thus, plaintiff has not yet properly served the individual defendants, but such improper service is not fatal to plaintiffs case. The court therefore turns to defendants’ second basis for dismissal: immunity.

As was noted earlier, the United States has not waived its sovereign immunity with respect to claims arising out of tax assessment or collection. One cannot avoid this sovereign immunity by simply naming officials when the judgment would impact upon the public treasury. Vishnevsky v. United States, 581 F.2d 1249, 1255 (7th Cir.1978). At least one court has held that a suit against IRS officials in their official capacity is a suit against the United States, see Nelson v. Regan, 560 F.Supp. 1101 (D.Conn.1983), so that sovereign immunity would preclude the suit.

The United States Supreme Court, in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), discussed the parameters of the immunity that a federal executive officer enjoys within the scope of a federal agency position. The Court found that a federal official enjoys only a qualified immunity, so that he could be liable individually if he knows or should have known that he is acting outside the law. Id. at 506-07, 98 S.Ct. at 2911. The Court recognized, however, that some officials need absolute immunity because it is “essential for the conduct of the public business.” Id. at 507, 98 S.Ct. at 2911. Some courts have read Butz as giving absolute immunity to IRS officials in actions for damages. Hutchinson v. United States, 677 F.2d 1322 (9th Cir.1982); Stankevitz v. IRS, 640 F.2d 205 (9th Cir.1981); Krzyske v. Commissioner, 548 F.Supp. 101 (E.D.Mich.1982); White v. Commissioner, 537 F.Supp. 679, 684 (D.Colo.1982). If the officials are alleged to have exceeded their authority and to have operated outside the scope of their official duties, then only the qualified immunity applies. Hutchinson, 677 F.2d at 1328; Nelson v. Regan, 560 F.Supp. 1101 (D.Conn.1983); Spilman v. Crebo, 561 F.Supp. 652, 655-56 (D.Mont. 1982). In order to present a situation where only the qualified immunity will apply, the complaint must contain specific allegations of the unconstitutional conduct by the official, White, 537 F.Supp. at 684, and must allege the specific statutory provision under which the official exceeded his authority. Spilman, 561 F.Supp. at 655-56.

The tenor of plaintiff’s complaint is that he seeks damages from the individual defendants in their official capacities. The exhibits to the complaint, apparently included to show the actions of these individuals, are merely statutory forms for notice of tax deficiency. Certainly, the computation of the tax and the issuance of the forms are tasks done within the official capacity of the defendants. As such, the absolute immunity applies and the suit against the individual defendants must fail.

Even if the complaint is viewed as somehow alleging that these defendants exceeded their official authority, it must fail for lack of specificity. The complaint does not in any way specify the alleged unconstitutional conduct of the defendants, nor does it specify the statutory provision they exceeded. Despite the liberal construction called for by Haines v. Kerner, this complaint simply does not state a claim of exceeding official authority sufficient to call the qualified immunity into question. Therefore, the individual defendants are absolutely immune and cannot be sued.

Under the principles governing motions for summary judgment, then, the defendants have shown that there is no genuine issue of material fact in dispute between the parties, and the immunity of the IRS and the individual defendants entitles them to judgment as a matter of law. However, again out of an abundance of caution, this court now considers the merits of the various claims made by the plaintiff.

C. Merits of the Claim

A liberal analysis of the plaintiff’s complaint and numerous other filings reveals two basic claims by the plaintiff: that the income tax laws do not apply or pertain to the plaintiff; and that the plaintiff has been the subject of a bill of attainder. The court analyzes these two contentions in turn.

1. Application of Tax Laws to the Plaintiff

Plaintiff asserts that the Internal Revenue Code does not apply to him. The basis for this claim is not easily found in the complaint. According to “plaintiffs answer to the court in re of defendant’s pleadings,” “It is a Fact that the Internal Revenue Code is NOT Postive [sic] Law. That U.S.C. Title 26 has NEVER been passed by Congress.” (Emphasis in original).

The only support that the court can find for this argument amongst plaintiff’s numerous filings is a letter dated May 7, 1981 from the American Law Division of the Congressional Research Service (plaintiff’s Exhibit 7). That letter does say that the Internal Revenue Code of 1954 “was not enacted by Congress as a title of the U.S. Code.” But this does not in any way support plaintiff’s argument that the Internal Revenue Code is not positive law. First, that very same letter, in the very same sentence, states that “the Internal Revenue Code of 1954 is positive law____” Second, although Congress did not pass the Code as a title, it did enact the Internal Revenue Code as a separate Code, see Act of August 16, 1954, 68A Stat. 1, which was then denominated as Title 26 by the House Judiciary Committee pursuant to 1 U.S.C. § 202(a). Finally, even if Title 26 was not itself enacted into positive law, that does not mean that the laws under that title are null and void. A law listed in the current edition of the United States Code is prima facie evidence of the law of the United States. See 1 U.S.C. § 204(a). As the letter offered by the plaintiff points out, “The courts could require proof of the underlying statutes when a law is in a title of the code which has not been enacted into positive law.” In short, this court has the discretion to recognize the Internal Revenue Code as the applicable law, or require proof of the underlying statute.

Consistent with that discretion, this court recognizes that the Internal Revenue Code is positive law applicable to disputes concerning whether taxes are owed by someone like the plaintiff. This court refuses to embrace the plaintiff’s position that the tax laws of the United States are some kind of hoax designed by the IRS to violate the constitutional rights of United States citizens. Quite simply, the court finds plaintiff’s position preposterous.

The plaintiff’s argument that the tax laws do not apply or pertain to him thus cannot be based on a “positive law” argument. The only other basis for the argument that this court can perceive is the possibility that the IRS assessed taxes against the plaintiff which he was not required to pay. An examination of the documents in this case, however, reveals that the plaintiff cannot rely on this argument either. The notices of deficiency attached to plaintiff’s complaint indicate that the kind of taxes assessed against the plaintiff are “1040”, or income taxes for wages received. The Internal Revenue Code makes clear that wages are gross income for taxation purposes when it states: “gross income means all income from whatever source derived, including ... compensation for services ____” 26 U.S.C. § 61(a). In the clearest language possible, the Seventh Circuit has stated that “WAGES ARE INCOME.” United States v. Koliboski, 732 F.2d 1328, 1329 n. 1 (7th Cir.1984). Many other courts have reached the same conclusion. See, e.g., Granzow v. Commissioner, 739 F.2d 265 at 267 (7th Cir.1984); Lively v. Commissioner, 705 F.2d 1017 (8th Cir. 1983); Knighten v. Commissioner, 702 F.2d 59, 60 (6th Cir.), cert. denied, — U.S. -, 104 S.Ct. 249, 78 L.Ed.2d 237 (1983); United States v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981). It is thus clear that plaintiff should have been assessed the taxes sought from him.

The actions of the IRS in assessing civil penalties against the plaintiff were also proper. Section 6653(a) of the Internal Revenue Code provides for the imposition of an addition to tax where underpayment or non-payment of taxes is caused by “negligence or intentional disregard of rules or regulations.” The plaintiff here has filed no tax returns for the years in question. Such actions could have been perceived by the IRS as intentional disregard of the tax laws, as courts have consistently held that “even good faith reliance on misguided constitutional beliefs does not relieve a taxpayer of liability for such civil penalties.” Granzow, at 267 n. 3; Edwards v. Commissioner, 680 F.2d 1268, 1271 n. 2 (9th Cir.1982). Although the court does not now rule that plaintiff in fact intentionally disregarded the rules, it does find that the IRS was not unjustified in assessing these penalties.

2. Bill of Attainder

The complaint also contains allegations that the plaintiff was somehow subject to a bill of attainder. The factual basis for this claim is completely absent from the complaint or any of plaintiffs other numerous documents. It is clear, however, that plaintiffs claim does not fall under the current interpretation of the bill of attainder clause of the constitution. A bill of attainder is generally defined as a legislative act which determines guilt and punishes an identifiable individual or group of individuals. See Nixon v. Administrator of General Services, 433 U.S. 425, 468, 97 S.Ct. 2777, 2802, 53 L.Ed.2d 867 (1977). Here, at least two of these three elements are not present. First, the Internal Revenue Code does not determine guilt. Although it authorizes the assessment of taxes and penalties, those assessments can be challenged in the tax court or in the district court. Thus, an assessment is not a conclusive determination of “guilt.” Secondly, the tax laws do not punish. The mere fact that a law is burdensome does not make it punishment for bill of attainder purposes. See Nixon, id. at 470-71, 97 S.Ct. at 2804. An assessment of penalties for failure to file income tax returns may be punishment, but the fact that the penalties can be challenged on appeal means that the punishment is not final. The third element, selection of an individual or group of individuals, is not present, as the tax laws apply to all income earners and the penalty provisions apply to all taxpayers who fail to file. Such a blanket application to the population excludes the possibility of a “selection.” It is thus clear that no bill of attainder or bill of pains and penalties (which is simply a lesser form of a bill of attainder) exists here.

Overall, it is abundantly clear that the tax laws apply with full force to plaintiff, and that his arguments are without any basis in the law. It is also clear that the exhibits offered to support his argument (in particular, the Congressional Research Service letter discussed above) undercut his argument, and in fact support the conclusion that the tax laws are positive law which apply to the plaintiff. It is in light of this obvious lack of merit in plaintiffs argument that the court now turns to defendants’ motion for fees and costs.

MOTION FOR FEES AND COSTS

The American rule is that absent specific statutory or other expressed authorization, attorney fees are not recoverable by the prevailing party in a lawsuit. International Union v. J. lease Construction Company, 541 F.Supp. 1334, 1337 (N.D.Ill.1982) . An exception to this rule has been recognized where a losing party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons ____” Aleyska Pipe Line Service Company v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622-23, 44 L.Ed.2d 141 (1975). See McCandless v. Great Atlantic & Pacific Tea Company, 697 F.2d 198 (7th Cir.1983).

The Seventh Circuit has made clear that bad faith can include the pursuit of meritless suits. In Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263 (7th Cir. 1983) , the court held that insistence on litigating a question in the face of controlling precedents which removed every color-able basis in law for the litigant’s position amounted to bad faith justifying an award of fees. Id. at 1269-70. In Reid v. United States, 715 F.2d 1148 (7th Cir.1983), the Seventh Circuit stated that “the law may be so clear and well established that persistence in a course of litigation could be evidence of bad faith.” Id. at 1154. Thus, this court has sufficient equitable power to assess sanctions for fees and costs if it finds that plaintiffs claim is meritless and in bad faith.

A second source of power to impose sanctions is found in the Federal Rules of Civil Procedure. Rule 11, which governs the signing of pleadings and motions, requires that each pleading or motion be signed by an attorney or the party (if the party is proceeding pro se). The rule then provides:

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 violates this rule, the court “shall impose” an “appropriate sanction,” which may include the amount of reasonable expenses and attorney’s fees incurred by the other party because of the filing of the pleading or motion.

The notes of the Advisory Committee on the Federal Rules make it clear that Rule ll’s provisions are designed to “discourage dilatory or abusive tactics and [to] help streamline the litigation process by lessening frivolous claims or defenses.” The rule applies to anyone who signs a pleading, motion, or other paper, and the same standards apply to pro se litigants, although the concerns of Haines v. Kerner can be taken into account.

The core of Rule 11 is that the signature on the pleading certifies that “to the best of his knowledge, information and belief formed after reasonable inquiry it [the pleading, motion, or paper] 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 ...” (emphasis added). What is important to note is that this language requires more than just a belief that the law is or should be a certain way; as the Advisory Committee states, “what constitutes a reasonable inquiry may depend on ... whether the pleading, motion, or other paper was based on a plausible view of the law,” and is thus a “more stringent” standard than good faith.

Despite the apparently objective nature of this standard, two recent Seventh Circuit opinions have emphasized that Rule 11 requires a finding of subjective bad faith on the part of the person against whom fees are to be assessed. Suslick v. Rothschild Securities Corp., 741 F.2d 1000 at 1007 (7th Cir.1984); Badillo v. Central Steel & Wire Company, 717 F.2d 1160, 1166-67 (7th Cir.1983). What constitutes subjective bad faith is not completely clear, although the Suslick court did re-emphasize that a claim lacking even a colorable basis in law can justify the award of fees. At 1006. However, it is clear that the Seventh Circuit has recognized the propriety of assessing fees in cases involving parties who claim not to owe income taxes or who file frivolous tax appeals. See Granzow v. Commissioner, 739 F.2d 265 at 269-270 (7th Cir.1984). Other circuits have also awarded costs.for groundless actions involving the tax laws. See Parker v. Commissioner, 724 F.2d 469 (5th Cir.1984); United States v. Hart, 701 F.2d 749, 750 (8th Cir.1983); McCoy v. Commissioner, 696 F.2d 1234, 1237 (9th Cir.1983).

Under both general equitable principles and the provisions of Rule 11, this case is clearly one which merits the imposition of sanctions. Here, the plaintiff has argued that the Internal Revenue Code does not apply to him; yet courts have consistently ruled that wages are taxable income. Such argumentation in light of these clear precedents constitutes insistence on litigating a question in the face of controlling precedent that remove any colorable basis in the law for the claim. This is precisely the kind of evidence which justifies a finding of subjective bad faith under the Seventh Circuit standard. Likewise, plaintiff's arguments are not based on any “plausible view of the law” as required by Rule 11. Perhaps the most egregious example of plaintiffs bad faith is that his argument for the tax laws not pertaining to him — that Title 26 is not “positive law” —is based on a letter that says that it is positive law. Any reasonable person reading that letter would have concluded that no plausible argument concerning “positive law” could be based on that letter. The fact that plaintiff proceeded with this suit in light of its obvious lack of merit indicates bad faith and that he proceeded with no reasonable expectation of success on the merits.

In an analogous situation, the United States Court of Appeals for the Seventh Circuit stated as follows:

The' doors of this courthouse are, of course, open to good faith appeals of what are honestly thought to be errors of the lower courts. But we can no longer tolerate abuse of the judicial review process by irresponsible taxpayers who press stale and frivolous arguments, without hope of success on the merits, in order to delay or harass the collection of public revenues or for other nonworthy purposes ... abusers of the tax system have no license to make irresponsible demands on the courts of appeals to consider fanciful arguments put forward in bad faith. In the future we will deal harshly with frivolous tax appeals and will not hesistate to impose even greater sanctions under appropriate circumstances.

Granzow v. Commissioner, 739 F.2d 265 at 268-269 (7th Cir.1984.) Similarly, the doors of this courthouse are open to good faith litigation but abuse of the judicial process, as in this case, will not be tolerated. The need to address these patently frivolous arguments wastes this court’s precious resources and prevents it from providing sufficient attention to litigants with meritorious claims. Rule 11 requires that this court “shall impose” sanctions to penalize the abuse of the judicial system occasioned by the frivolous arguments of the plaintiff, arguments which any reasonable person with an understanding of how this country works would reject as senseless and meritless. Consistent with the mandates of Rule 11, this court will grant the government’s request for attorney’s fees and costs, and finds that a reasonable fee is $500.00. In addition, this court will assess a fine of $500.00 as a sanction for the commencement of this frivolous suit.

Finally, the court acknowledges receipt of plaintiff’s letter on August 21, 1984, inquiring whether this court’s order of August 13, 1984, staying all proceedings in this case pending resolution of the motion to dismiss also prevented the IRS from levying plaintiff’s property and wages. With the granting of summary judgment for the defendants, of course, the stay of proceedings is lifted and the IRS is free to continue all legal efforts to collect plaintiff’s delinquent taxes. However, this court also notes that none of the actions taken by the IRS between the time of the August 13, 1984, stay and the present were in any way violative of that order. The court’s order was not an injunction against the IRS; it simply prevented the parties in this case from filing any further papers or motions in this case. By levying upon plaintiff’s property and wages, the IRS did nothing that was germane to this case.

CONCLUSION

For the foregoing reasons, the court hereby GRANTS summary judgment for the defendants, and DENIES plaintiff’s Motion for Summary Judgment. The court also hereby ORDERS that the plaintiff must pay defendants $500.00 as reasonable attorney fees for having to defend against this frivolous action, and must pay $500.00 into the court as a Rule 11 fine for filing this meritless suit.


source: Caselaw Access Project

author: CURTIN, Chief Judge.

license: Public Domain

text:
    SQUARE D COMPANY and Big D Building Supply Corp., Plaintiffs, v. NIAGARA FRONTIER TARIFF BUREAU INC.; Bondy Cartage Limited; Dominion-Consolidated Truck Lines Limited; ICL International Carriers Limited; Inter-City Truck Lines (Canada) Inc.; TNT Canada Inc., Defendants.
    No. CIV-84-158C.
    United States District Court, W.D. New York.
    Sept. 25, 1984.
    Foley & Lardner, Washington, D.C. (Douglas V. Rigler, Washington, D.C., of counsel), for plaintiffs.
    William Randolph Smith, Crowell & Moring (Donald L. Flexner, Washington, D.C., counsel), for defendants.
   CURTIN, Chief Judge.

The court has deferred ruling on various pending discovery motions and a motion for class certification. Before the court is defendants’ motion to dismiss. Fed.R.Civ.P. 12(c) and 12(h)(2).

The allegations in the complaint may be summarized as follows. The Niagara Frontier Tariff Bureau, Inc. [NFTB] is a motor carrier rate bureau with headquarters in Buffalo, New York. It is organized and operates under an agreement which has been filed with and approved by the Interstate Commerce Commission [ICC]. The NFTB is a defendant, along with various named common carrier defendants that are members of NFTB. These carrier defendants move goods between the United States and Canada.

Plaintiffs now allege that beginning in 1966 and continuing until about 1981, the defendants and their coconspirators entered into a conspiracy to fix prices and to eliminate or restrict competition for the transportation of goods between the United States and the Province o^ Ontario.

Specifically, the plaintiffs allege that the defendants and their coconspirators “[participated in a Principals Committee which was comprised of the senior management officials of NFTB carriers” but which “was not authorized or approved by the ICC to engage in rate-making conduct. [Complaint, 1123(a).] Plaintiffs allege that this Committee was used to set rates and inhibit competition. This, the plaintiffs allege, was done by way of threats, coercion, and retaliatory rate reductions. Plaintiffs allege that all of this was accomplished in secret; none of these activities was disclosed to the ICC.

As a result, the plaintiffs claim violations of section 1 of the Sherman Act [15 U.S.C. § 1] and sections 4 and 16 of the Clayton Act [15 U.S.C. §§ 15, 26] and seek treble damages for the loss of benefit of legitimately competitive rates.

Although two separate actions were filed by Square D Company and Big D Building Supply Corp., this court’s order of June 27, 1984, directed that these two actions proceed as a consolidated suit. A third and similar action filed by the United States against NFTB has been discontinued by consent of the parties and by order of this court, United States v. NFTB, No. 83-1313 (W.D.N.Y. June 26, 1984). All that remains is this consolidated civil antitrust suit.

I.

The defendants now move to dismiss, arguing failure to state a claim, and seek judgment on the pleadings. Defendants insist that Keogh v. Chicago & Northwestern Railway Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922), and its progeny completely bar plaintiffs’ antitrust damage claims.

Keogh, like the plaintiffs in this ease, was a shipper. The defendant railroads in the Keogh case formed an association and agreed to certain interstate freight rates which the ICC determined were reasonable and not discriminatory. Failing to convince the ICC that the defendants’ rates were unlawful, Keogh filed a suit in federal court challenging the rates under the Sherman Act. The Court held that Keogh could not obtain antitrust damage against the defendant carriers based upon a carrier conspiracy to fix tariff rates which were filed with the ICC and subject to that agency’s regulatory control.

The reasoning of Keogh was followed in Georgia v. Pennsylvania Railway Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945). Georgia sought money damages as well as injunctive relief. The Supreme Court held that in light of Keogh, there was no basis for the recovery of money damages, even if the conspiracy alleged were shown to exist. The complaint in Georgia also alleged coercion and discrimination, but the Court held that this did not create a basis for shipper antitrust damage claim against carriers. An injunctive action, and even a criminal prosecution, may go forward, but a claim for treble damages under the antitrust statute may not.

To avoid the directives of the Supreme Court, plaintiffs now argue that Keogh does not apply because 1) subsequent legislation has diffused the authority of Keogh, and 2) the facts of the instant case amount to a “broader conspiracy” that does not fall within the purview of Keogh.

II.

First, the legislative activity since Keogh has defined and preserved antitrust immunity where a rate agreement was implemented “in conformity with its provisions and in conformity with the terms and conditions prescribed by the Commission.” Reed-Bulwinkle Act, 62 Stat. 472 (1948). The House Report supporting this legislation states that:

[t]he bill leaves the antitrust laws to apply with full force and effect to carriers, so far as they are now applicable, except as to joint agreements or arrangements between them as may have been submitted to the [ICC] and approved by that body.”

H.R.Rep. No. 1100, 80th Cong., 1st Sess., at 5 (1947), U.S.Code Cong.Serv. 1844, at 1848.

The Reed-Bulwinkle Act was intended “to dispel the uncertainty” about the rate bureaus’ powers, for there was at that time a growing concern about the potential abuse of those powers. 94 Cong.Rec. A3888 (June 14, 1948) (remarks of Cong. Loa). It was not intended to expand antitrust liability. Certainly, this court may not infer that Congress had intended to alter the significance of the Keogh and Georgia rulings when the legislative history specifically states that the relationship with antitrust laws shall not be altered. See H.R.Report, supra.

Moreover, it is clear that courts since Reed-Bulwinkle have consistently applied Keogh without recognition of any legislative alteration of the dictates of the Supreme Court. See, e.g., McLain v. Real Estate Board, 444 U.S. 232, 243, 100 S.Ct. 502, 509, 62 L.Ed.2d 441 (1980); Litton Systems, Inc. v. Amer. Tel. & Tel. Co., 700 F.2d 785, 820-21 (2d Cir.1983); City of Groton v. Connecticut Light & Power Co., 662 F.2d 921, 929 (2d Cir.1981); In re Wheat Rail Freight Rate Antitrust Litigation, 1984-1 Trade Cas. (CCH) 1165, 861 (N.D.Ill.1984);. Asbury Graphite, Inc. v. Dehyco Co., 1981-1 Trade Cas. (CCH) II 63,980 (N.D.Cal.1980); Monticello Heights, Inc. v. Morgan Drive Away, Inc., 1974-2 Trade Cas. (CCH) ¶ 75,282 (S.D.N.Y. 1974).

Plaintiffs argue that two cases illustrate a post-Reed-Bulwinkle departure from Keogh. The earlier, Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 86 S.Ct. 781, 15 L.Ed.2d 709 (1966), concerns shipping, not motor carriers, and never mentions Keogh. The more recent, Interstate Commerce Commission v. American Trucking Association, Inc., — U.S. -, 104 S.Ct. 2458, 81 L.Ed.2d 282 (1984), specifically recognizes that antitrust immunity has limits. Under Reed-Bulwinkle and the more recent Motor Carrier Act, Pub.L. 96-296, 94 Stat. 793, rate bureaus must conform to specific guidelines in order to retain antitrust immunity. 49 U.S.C. § 10706(b)(3)(A), (B); Interstate Commerce, supra, 104 S.Ct. at 2461 n. 1. In short, neither case supports a view that Congress has in any way detracted from the Supreme Court’s instruction in Keogh.

III.

Plaintiffs’ second position deserves careful address. The complaint specifically alleges that the defendants acted outside the scope of the NFTB agreement by “engaging in conduct that either was not or could not be approved by the ICC.” [Complaint, 1122.] The plaintiffs argue that this “broader conspiracy” places the defendants outside recognized antitrust immunity.

Justice Brandéis, writing for the court in Keogh, stated:

[U]nder the Anti-Trust Act, a combination of carriers to fix reasonable and non-discriminatory rates may be illegal; and if so, the Government may have redress by criminal proceedings under § 3, by injunction under § 4, and by forfeiture under § 6____ It does not, however, follow that Keogh, a private shipper, may recover damages under § 7 because he lost the benefit of rates still lower, which, but for the conspiracy, he would have enjoyed____
A rate is not necessarily illegal because it is the result of a conspiracy in restraint of trade in violation of the AntiTrust Act. What rates are legal is determined by the Act to Regulate Commerce____ If the conspiracy here complained of had resulted in rates which the Commission found to be illegal because unreasonably high or discriminatory, the full amount of the damages sustained, whatever their nature, would have been recoverable in such proceedings____
The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate, as between carrier and shipper. The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier.

260 U.S. at 161-63, 43 S.Ct. at 49-50. The Court further explained:

This stringent rule prevails because otherwise the paramount purpose of Congress — prevention of unjust discrimination — might be defeated. If a shipper could recover under § 7 of the Anti-Trust Act for damages resulting from the exaction of a rate higher than that which would otherwise have prevailed, the amount recovered might, like a rebate, operate to give him a preference over his trade competitors.

Whatever the breadth of plaintiffs’ allegations, the complaint essentially focuses on what plaintiffs claim are unjust and excessive rates. As the court in Pinney Dock & Transport Co. v. Penn Central Corp., 600 F.Supp. 859, 886 (N.D.Ohio 1983) (“Pinney IT’ — on reconsideration), recognized, there are attendant complications with respect to a damage calculation which depends upon a hypothetical rate, since rate determinations are a matter for the ICC and not for the court. Although the plaintiffs rely on Pinney Dock for the proposition that a “broader conspiracy” avoids Keogh, they cite the original opinion on motion to dismiss — not the later reconsideration motion. Pinney Dock 1983-2 Trade Cas. (CCH) ¶ 65,607 (N.D.Ohio 1983) (“Pinney I”). The later opinion of Judge Thomas clarifies two important points: 1) Pinney was claiming antitrust damage as a competitor — not a customer; and 2) “dismissal of the plaintiff’s claim [when a customer] would appear then to be the only alternative.” Pinney II. See Monticello Heights, supra (dismissal of shipper complaint despite allegations not only of price-fixing, but also of monopolization through coercive and exclusionary conduct).

Finally, “prior ICC approval of a rate does not influence the Keogh rule.” See Monticello, supra, and Asbury Graphite, Inc. v. Dehyco Co., 1981-1 Trade Cas. (CCH) ¶ 63,980 (N.D.Cal.1980) (shipper antitrust actions dismissed without regard to whether or not the ICC had approved the rates).

Although plaintiffs claim that some “larger conspiracy” like that recognized in United States v. Bessemer and Lake Erie R.R. Co., 717 F.2d 593, 600 (D.C.Cir.1983), would evade Keogh, Bessemer involved a criminal proceeding — precisely the kind already instituted and dropped without indictment and upon consent of the parties in the instant civil action.

IV.

In sum, this court is unpersuaded that plaintiffs have a right to maintain this suit. For these reasons, defendants’ motion to dismiss is granted. Consequently, the remaining motions need not be addressed. The Clerk is directed to enter judgment dismissing the complaint.

So ordered.


author: GERRY, District Judge.

text:
    Donald E. UGLAND, Petitioner, v. UNITED STATES of America, Respondent.
    Civ. A. No. 84-2223.
    (Crim. A. No. 82-244).
    United States District Court, D. New Jersey.
    Sept. 26, 1984.

      Donald E. Ugland, pro se.
    U.S. Atty. W. Hunt Dumont by Robert B. Kurzweil, Asst. U.S. Atty., Camden, N.J., for respondent.
   OPINION

GERRY, District Judge.

The petitioner is presently incarcerated at Allenwood Federal Prison Camp pursuant to his conviction before this court of unlawfully possessing controlled substances with intent to distribute in violation of 21 U.S.C. § 841(a). The petitioner entered a guilty plea to the above charge and was sentenced in accordance with 21 U.S.C. § 841(b)(1) to four years’ imprisonment to be followed by a special parole term of four years. The petitioner, arguing pro se, now brings this habeas petition under 28 U.S.C. § 2255, challenging the constitutionality of the sentencing provision of 21 U.S.C. § 841(b)(1)(A). Specifically, the petitioner argues that the failure of Congress to indicate a maximum penalty to which an offender is subject denied the petitioner due process of law guaranteed to him by the Fifth Amendment. Further, the petitioner contends that 841(b)(1)(A) is constitutionally infirm because the unrestricted maximum sentence delegates legislative power to the judiciary in violation of the separation of powers required by Article I, Section 1. Although other circuit courts of appeals have considered the issues raised by the petitioner, and this circuit has considered related issues, the instant case is one of first impression in the Third Circuit.

Our research has uncovered only one case that specifically supports the petitioner’s claims. In United States v. Tebha, 578 F.Supp. 1398 (N.D.Ca.1984), the Northern District of California held that the defendant, Tebha, could not be sentenced to seven years’ in? risonment and a three year special parole term under 21 U.S.C. § 841(b)(1)(A) because the special parole term violated Tebha’s Fifth Amendment rights. The court found the special parole term to be either meaningless or, if meaningful, to be unconstitutional. The court concluded that the statutory provision was constitutionally infirm for failing to state a fixed period of imprisonment for a violation of the special parole term or, alternatively, for failing to give the judge at any time specific authority to determine, within statutorily defined limits, the period of imprisonment for a violation of the special parole term. The court reasoned that since a prisoner cannot be held to a sanctionless obligation and since Congress indicated no sanctions, the defendant was not given due notice of the maximum penalty that could be imposed if he violated the special parole term. Finally, the court noted that since judges cannot impose any penalty they see fit without legislative guidance, the provision violated the separation of powers doctrine of Article I, Section 1 of the Constitution.

The respondent in the instant petition asks this court to reject the conclusions of the Tebha court and adopt, instead, those of the Tenth, Fifth and Eighth Circuit Courts of Appeal. In United States v. Jones, 540 F.2d 465 (10th Cir.1976), and United States v. Kuck, 573 F.2d 25 (10th Cir.1978), the Tenth Circuit upheld the constitutional validity of 21 U.S.C. § 841(b)(1)(A). The Jones court held that Congress’ failure to provide a maximum limit to the special parole term did not violate Article I, Section 1. Moreover, the court found that 21 U.S.C. § 841(c) clearly indicated that a violation of the special parole term mandated the imposition of a new prison term for the length of the special parole term with no credit given for time served. This provision thereby eradicates any ambiguity ascribed to 21 U.S.C. § 841(b)(1)(A). The court further found that § 841(b)(1)(A) is reasonably construed to validly authorize a maximum special parole term of an indefinite life sentence. It further found that the leaving of a maximum penalty for judicial determination was not uncommon. (Citations omitted.)

The Fifth Circuit Court of Appeals has also held that the special parole term enacted in 841(b)(1)(A) is not unconstitutionally vague. In United States v. Simpson, 481 F.2d 582 (5th Cir.1973), the court reasoned that by leaving the maximum limits of the special parole term to the discretion of the trial court, Congress implicitly recognized “the equitable and remedial considerations which go into such a sentencing process and accordingly have deferred to the expertise of the sentencing tribunal who must deal with such problems on a case by case basis.” While extolling the virtues of flexible sentencing procedure, the Simpson court noted the inherent uncertainty in every sentence as the main plank in its conclusion that there is no constitutional requirement for prior notice of parole conditions. Moreover, the Fifth Circuit concluded that the issue of the validity of the special parole term was not ripe for adjudication while the defendant, Simpson, was still confined under the prison portion of his sentence. The Eighth Circuit concurred with the Simpson court in United States v. Rich, 518 F.2d 980 (8th Cir.1975), finding there was no fundamental unfairness or due process problem with Congress failing to specify maximum limits to penalties. Accord, United States v. Sims, 529 F.2d 10 (8th Cir.1976).

Turning first to the separation of powers issue, we note that normally challenges of delegated authority relate to the legislature delegating power to the executive branch of government. Here, where the petitioner challenges Congress’ authority to delegate power to the courts, there are far fewer precedents. Chief Justice Marshall realized the significance of the issue in 1825 when he wrote in Wayman v. Southard, 10 Wheat 1, 42, 23 U.S. 1, 42, 6 L.Ed. 253 (1825):

It will not be contended, that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself ____ The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details.

Today, the petitioner asks this court to draw the line between the legislative and judicial functions of government such that Congress would be prohibited from enacting criminal laws without indicating the maximum sanction to which a violator could be exposed. For the reasons stated below, we decline to do so.

As a premise, it is clearly constitutional for Congress to merely set the outer limits of sanctions without mandating a precise penalty to be imposed. Thus, if § 841(b)(1)(A) imposed a special parole term of a minimum of 3 years and a maximum of a life sentence, the discretion left to the trial court to choose some sentence at one of the extremes or any point in between would be a constitutional delegation of power. This premise is supported by the policy reasons behind sentencing. Society has several goals when it imposes sanctions on individuals who violate criminal laws. These goals include punishment, retribution, deterrence and rehabilitation. Our criminal justice system has recognized that these goals cannot be reached most effectively by uniform sentences for all offenders. Rather, trial judges with the above mentioned goals in mind tailor sentences in each case to maximize benefits to society, the victim(s) and the convict. This case by case analysis is much more in keeping with the adjudicatory process than the legislative process. Indeed, sentencing of convicts nearly always requires some exercise of judicial discretion. Accordingly, even if Congress had enacted a sanction-less criminal prohibition, that is, a prohibition containing no statement at all regarding minimum or maximum penalties, while we might be troubled by the due process problems such a provision would create, we would not find it to violate the separation of powers doctrine or to be an unconstitutional delegation of legislative power to the judicial branch of government. Therefore, § 841(b)(1)(A), which is far from a sanction-less criminal prohibition, a fortiori, does not violate Article I, Section 1 of the Constitution.

Turning to the petitioner’s Fifth Amendment claims, we are asked to decide whether § 841(b)(1)(A) puts potential violators on notice that they risk á sentence of more than 3 years’ special parole. We hold that the provision did give the petitioner adequate notice of the sentence he received.

In United States v. Walden, 578 F.2d 966 (3d Cir.1978), the Third Circuit held that § 841(b)(1)(A) authorized the imposition of a life special parole term. This interpretation of § 841(b)(1)(A) is wholly consistent with the law in other circuits. See Jones, supra; United States v. Rivera-Marquez, 519 F.2d 1227 (9th Cir.), cert. denied, 423 U.S. 949, 96 S.Ct. 369, 46 L.Ed.2d 285 (1975). Further, the Walden decision is consistent with the Circuit Court’s other statutory interpretations. For example, in United States v. Davis, 710 F.2d 104 (3d Cir.1983), the court held that the Dangerous Special Offender Act, 18 U.S.C. § 3575(b), was not unconstitutional because it failed to provide a fixed maximum sentence that could be imposed on dangerous special offenders in proportion to the maximum sentence allowed for the underlying felony. See also United States v. Greene, 510 F.Supp. 128 (E.D.Pa.1981) (Air Piracy Act, 49 U.S.C. § 1472(i), not unconstitutional for failure to provide a maximum penalty). See, generally, Andreas v. Clark, 71 F.2d 908 (9th Cir.1934) (statute prohibiting rape not unconstitutional for failure to provide a maximum sanction where the maximum penalty is fixed by a general or related statute).

This court’s function in the instant review of the petitioner’s sentence is to ensure that the sentence imposed is not at variance with the statutory requirements. Ruiz v. United States, 365 F.2d 500 (3rd Cir.1966). Section 841(b)(1)(A) mandates a special parole term of at least 3 years. As noted above, under § 841(b)(1)(A), we could have sentenced the petitioner to a life special parole term without violating the maximum limits fixed by Congress. See Walden, supra. We sentenced the petitioner to a 4 year special parole term, which is clearly within the life limit interpreted by the Walden court. Moreover, common sense suggests that a perpetrator of a crime who is presumed to have notice that he could receive at least 3 years of special parole is not unfairly surprised when he is sentenced to a 4 year special parole term. For these reasons, we find that the petitioner’s Fifth Amendment right of due process was not violated, and that his sentence was one reasonably contemplated by Congress when they enacted § 841(b)(1)(A). The accompanying order will be entered.

      . The challenged statute, 21 U.S.C. § 841(b)(1)(A), states:
      In the case of a controlled substance in schedule I or II, which is a narcotic drug, such person shall be sentenced to a term of imprisonment of not more than 15 years, a fine of not more than $25,000, or both. If any person commits such a violation after one or more prior convictions of him for an offense punishable under this paragraph, or for a felony under any other provision of this sub-chapter or subchapter II of this chapter or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment of not more than 30 years, a fine of not more than $50,000, or both. Any sentence imposing a term of imprisonment under this paragraph shall, in absence of such prior conviction, impose a special parole term of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a special parole term of at least 6 years in addition to such term of imprisonment.

      . This case is now pending before the Ninth Circuit Court of Appeals.

      . Article I, Section 1 of the United States Constitution states:
      All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

      . 21 U.S.C. § 841(c) states:
      A special parole term imposed under this section or section of 845 of this title may be revoked if its terms and conditions are violated. In such circumstances, the original terms of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term provided for in this section or section 845 of this title shall be in addition to, and not in lieu of, any other parole provided for by law.

      . 18 U.S.C. § 3575(b) provides that if the district court finds that a person convicted of a felony is also a dangerous special offender, then it shall sentence him to imprisonment "for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for the [underlying] felony.”

      . Our holding today does not reach the issue of whether the petitioner, understanding the full consequences of his decision, voluntarily and knowledgeably entered a guilty plea. See Roberts v. United States, 491 F.2d 1236 (3rd Cir. 1974); Kelsey v. United States, 484 F.2d 1198 (3rd Cir.1973); Horsley v. United States, 583 F.2d 670 (3rd Cir.1978); Moore v. United States, 402 F.Supp. 1244 (D.N.J.1975); Moore v. United States, 592 F.2d 753 (4th Cir.1979). Since the petitioner made no claim in this regard, we need not consider this possibly complex issue of law.


author: OBERDORFER, District Judge.

text:
    COUNCIL OF AMERICAN-FLAG SHIP OPERATORS, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
    Civ. A. No. 83-3578.
    United States District Court, District of Columbia.
    Sept. 26, 1984.

      Robert T. Basseches, Shea & Gardner, Washington, D.C., for plaintiffs.
    Richard K. Willard, Acting Asst. Atty. Gen., U.S. Dept, of Justice, Joseph E. DiGenova, U.S. Atty., Civ. Div. Robert G. Damus, Linda L. Cromwell, U.S. Dept, of Justice, Civ. Div., Washington, D.C., for defendants.
   MEMORANDUM

OBERDORFER, District Judge.

I.

This case presents the question of whether the Cargo Preference Act of 1954 (CPA), 46 U.S.C. § 1241(b), applies to cash assistance furnished to Israel by the Agency for International Development (AID). The Act provides that:

Whenever the United States ... shall furnish to or for the account of any foreign nation without provision for reimbursement, any equipment, materials, or commodities, ... or shall advance funds or credits or guarantee the convertibility of foreign currencies in connection with the furnishing of such equipment, materials, or commodities, the appropriate agency or agencies shall take such steps as may be necessary and practicable to assure that at least 50 per centum of the gross tonnage ... which may be transported on ocean vessels shall be transported on United States-flag commercial vessels____

Cash transfers to Israel are authorized by amendments to the Foreign Assistance Act. The amendments effective for the fiscal year 1979 and thereafter provide that:

The total amount of funds allocated for Israel ... may be made available as a cash transfer. In exercising the authority of this paragraph [of the amendment], the President shall ensure that the level of cash transfers made to Israel does not cause an adverse impact on the total amount of nonmilitary exports from the United States to Israel.

22 U.S.C. § 2346a(b)(2).

Primary responsibility for the administration of the Cargo Preference Act has been exercised by the Maritime Administration (MarAd), now an element of the Department of Transportation. The Foreign Assistance Act, including cash transfers to Israel, has been administ red by AID. At one time, financial assistance to Israel was provided under the Commodity Import Program (CIP). Under that program the beneficiary nation, in this case Israel, was reimbursed by AID for the foreign exchange expended by the beneficiary for specific nonmilitary imports. Both AID and the Maritime Administration agreed that the Cargo Preference Act applied to these transactions. From 1976 through 1978 part of the assistance to Israel was furnished pursuant to CIP, but an additional amount was provided as a nonreimbursable cash grant in order to finance such things as Israel’s withdrawal from the Sinai and the additional cost of oil incurred as a result of the withdrawal. Beginning in 1979 and thereafter, no assistance has gone to Israel pursuant to CIP; all has been by cash transfer.

After 1976, the Maritime Administration took the position that the Cargo Preference Act applied to cash grants and cash transfers. MarAd relied upon 1954 and 1955 congressional reports which expressed the view that the Cargo Preference Act would apply to programs financed in any way by federal funds in whatever form they might take. See General Counsel of the Maritime Administration, Department of Commerce, Memorandum dated March 28, 1979, at 4. AID, however, adhered to its long standing position that

the requirements of the Cargo Preference Act are inapplicable to cash grants or transfers carried out pursuant to authority contained in the Foreign Assistance Act of 1961, as amended____

Letter dated August 8, 1978 from Barry Veret, Assistance General Counsel, AID, to L. Mitchell Dick, Assistant General Counsel, United States General Accounting Office (GAO). To resolve the conflicting opinions, MarAd sought the advice of the Comptroller General (GAO) as to whether the MarAd interpretation was “acceptable.”

In an opinion dated March 3, 1980, the GAO disagreed with the Maritime Administration’s view that the CPA applies to the cash transfer program for Israel. In GAO’s view the cash transfer program was materially different from the Commodity Import Program to which the CPA applied. Under CIP, individual transactions were documented so that “money was tied to commodity purchases.” 59 Comp.Gen. 279, 279 (1980). Under the cash transfer program, “the need to document each purchase of goods made by Israel to obtain reimbursement was obviated.” Id. at 280. Instead, the United States required only an assurance from Israel that its nonmilitary imports from the United States would at least equal American assistance and that American exporters’ competitive positions would not be adversely affected. Without disparaging the administrative difficulties which would confront an effort to apply the CPA to cash transfers, the GAO based its opinion entirely on legal considerations. GAO agreed with AID that the Cargo Preference Act related to the furnishing of “equipment, materials or commodities” and that the cash transfers to Israel are not advanced in connection with the furnishing of such items. It distinguished the direct linkage of AID funds to commodities purchased under CIP from the “unrestricted” aid furnished by cash transfers. The GAO was not persuaded that the requirement that Israel maintain purchasing levels in the United States requires or justifies application of the CPA, because “shipments of nonmilitary exports ... cannot be identified as purchases made by Israel with American Funds.” Id. at 283.

Although the Comptroller General’s 1980 opinion was not binding on the Maritime Administration (and is not binding on this Court), MarAd officials have advised counsel for the United States that since 1980,

MarAd has not pursued enforcement of the requirements of the Cargo Preference Act with respect to cash assistance to Israel.

Defendant’s Post-Hearing Memorandum at 1-2.

Since 1980, the issue before the GAO has apparently been addressed by congressional committees. A subcommittee of the House Committee on Foreign Affairs referred to an “understanding” between the United States and Israel that, among other things,

Israel will also continue to follow procedures designed to assure that U.S. carriers revive [sic] a fair share of its market.

Foreign Assistance Legislation for Fiscal Year 1982 (Part 3): Hearings and Markup Before the Subcomm. on Europe and the Middle East of the House Comm, on Foreign Affairs, 97th Cong., 1st Sess. XIII 1981. A Senate Foreign Relations Committee Hearing was advised that the Government of Israel:

assures us that, regarding the transport of goods imported from the United States, it will continue to follow established procedures for bulk shipments of grain on dry bulk carriers. These procedures have been developed to insure that U.S.-flag carriers receive a fair share of the market.

Security and Development Assistance: Hearings Before the Senate Comm, on Foreign Relations, 98th Cong., 1st Sess. 393 (1983).

In 1983, the House Committee on Foreign Relations issued a “Report on Clarifying the Government Cargo Preference Laws.” The report noted “a lack of clarity” in the Cargo Preference Act of 1954 as to whether it applies to the cash transfer program for Israel. After the Committee Chairman made his position known to the Departments of State and Transportation “and after some negotiations,” the Department of State decided not to change the application of cargo preference to Israel. The report indicated that the Committee had since been advised that for fiscal year 1982 and for the first quarter of 1983 Israel had complied with the 50 percent cargo preference requirement. Finally, the Report noted that the Committee’s staff had drafted a comprehensive revision of the cargo preference laws, but that the Committee took no position on the draft. H.R. Rep. No. 5, 98th Cong., 1st Sess. 20-21 (1983). Meanwhile, in each year since the 1979 fiscal year, Congress has re-enacted the Foreign Assistance Act amendments providing for cash transfers to Israel with the general proviso for the maintenance of the pre-existing level of U.S. exports.

II.

Plaintiffs are a trade association of U.S. ship operators and two other nonprofit entities organized to promote the development of the U.S. Merchant Marine and the U.S. Flag Fleet. Each has members who provide shipping service between Israel and the United States. They allege that AID’s failure or refusal to apply the CPA to cash transfers to Israel will cause their members a substantial loss of cargo shipments. Plaintiffs’ standing is not challenged, nor is this Court’s jurisdiction. Nevertheless, the accompanying order will grant defendant’s motion for summary judgment and dismiss the complaint.

On the merits, plaintiffs have failed to persuade that the CPA applies to cash transfers that are unaccompanied by any requirement for documentation and reimbursement for each item purchased. By its literal terms, the Act, in relevant part, applies only to transactions in which the United States furnishes “without provision for reimbursement, any equipment, materials, or commodities,” or advances “funds or credits or guarantee[s] the convertibility of foreign currencies in connection with the furnishing of such equipment, materials, or commodities ____” 46 U.S.C. § 1241(b)(1) (emphasis added). There is no reference to unrestricted cash transfer". Cash deposited to a bank account without specific earmarking as to where or for what the recipient will expend it is materially different from the transactions contemplated by the statute.

Plaintiffs rely on Committee Reports and statements by Senators and Congressmen expounding a broad construction of the CPA. But it would wrench the statutory language too far beyond its plain meaning to construe the statute to apply to the cash transfers to Israel at issue here.

Moreover, the Cargo Preference Act is only one of the congressional enactments to be considered. More germane legislation is embodied in the several statutes which have authorized and renewed authorization for cash transfers to Israel. It is plain that the Congresses which enacted those authorizations had notice of the tension between the views of Maritime Administration and those of AID. If those Congresses had decided to make the CPA apply to cash transfers, exposition of that preference would have been a simple matter. See NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-5, 94 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381-82, 89 S.Ct. 1794, 1801-03, 23 L.Ed.2d 371 (1969); United States v. Bergh, 352 U.S. 40, 46-47, 77 S.Ct. 106, 109-110, 1 L.Ed.2d 102 (1956). Indeed, defendant has cited at least one such proposed bill, which conspicuously failed of enactment. Instead, for protection of American exporters, Congress has been satisfied with the precatory language in the Foreign Assistance Act amendments. This language has generated understandings between the United States and Israel that about 50% of the grain imported into Israel from the United States will be carried by U.S. flag vessels. And Congress has apparently acquiesced in this practice, as evidenced by repeated reenactment of the statute. AID has thus complied with the only law applicable to cash transfers to Israel.

Plaintiffs argue that this construction of the Foreign Assistance Act amendments and the Cargo Preference Act is contrary to the interpretation once advocated by the Maritime Administration, the agency with primary responsibility for administering the CPA. They argue that if MarAd’s interpretation is a plausible one, it should be accepted by a reviewing court. See Sea-Land Services, Inc. v. Dole, 723 F.2d 975, 979 (D.C.Cir.1983). They point to section 901(b)(2) of the Merchant Marine Act of 1936 which originally required every department or agency having responsibility for the Cargo Preference Act to administer it under regulations issued by the Secretary of Commerce. They argue that a MarAd regulation issued pursuant to this 1936 Act is binding on AID and requires it to apply the CPA to the cash transfer program. See 46 C.F.R. § 381.7. The regulation requires the affected agency to include clauses in contracts which provide that 50% of the freight revenue and tonnage of cargo generated by the grant, loan or advance be transported on privately owned U.S. flag commercial vessels. Again, however, the regulation is an interpretation of the CPA.

Plaintiffs’ argument has two principal defects. First, MarAd’s primary responsibility for the Cargo Preference Act does not extend to the Foreign Assistance Act amendments authorizing cash transfers to Israel. The latter Act is administered by AID. AID has consistently interpreted its act as exempting cash transfers to Israel and to other countries, particularly where that Act has its own built-in safeguard for American shipping and export interests. AID’s contemporaneous construction of the recent FAA amendments, confirmed by GAO, and surviving congressional re-enactment, is entitled to great deference by a reviewing court. See Delta Data Systems Corporation v. Webster, supra, at 201. Second, the Maritime Administration did once interpret the CPA as applying to cash transfers to Israel and challenged AID’s contrary interpretation by requesting General Accounting Office, an agency of Congress, to confirm the Mar-Ad view. The GAO, however, refused to support MarAd’s legal position. The Maritime Administration has apparently abandoned its effort to enforce the CPA-with respect to cash assistance to Israel. The contemporaneous AID-GAO interpretation of both statutes, advocated here by the Department of Justice, and undisturbed by Congress when, after the 1980 GAO opinion, it renewed AID’s authority to make cash transfers to Israel, appears to be the interpretation intended by Congress. As such, it will be honored in this case. See NLRB v. Bell, supra, 416 U.S. at 274-5, 94 S.Ct. at 1761-62. Accordingly, an accompanying order will grant defendant’s motion for summary judgment and dismiss the complaint.

      . Two thirds of the funds disbursed under the cash transfer program take the form of cash grants. The remaining third is in the form of loans. 59 Comp.Gen. 279, 280 (1980).

      . See Delta Data Systems Corporation v. Webster, et al., 744 F.2d 197 at 201-202 (D.C.Cir. 1984).

      . On another occasion, the House Subcommittee on Europe and the Middle East was advised that Israel and the United States have an understanding that Israel "would follow agreed procedures to achieve at least 50 percent of the grain shipped on U.S. bottoms,” and that in 1982 Israel reached "just in excess of 50 percent.” Foreign Assistance Legislation for Fiscal Years 1984-85 (Part 3): Hearings and Markup Before the Suhcomm. on Europe and the Middle East of the House Comm, on Foreign Affairs, 98th Cong., 1st Sess. 10 (1983). The Subcommittee was also advised that the additional cost to Israel of using U.S. bottoms to ship grain (instead of shipping at foreign flag rates) was $31,590,362. Id.

      . Plaintiffs’ Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Summary Judgment at 4-7; see, e.g., Cargo Preference Bill: Hearings on S. 3233 Before a Sub-

        comm, of the Senate Comm, on Interstate and Foreign Commerce, 83d Cong., 2d Sess. 1 (1954) (statement of Sen. Butler); S.Rep. No. 1584, 83d Cong. 2d Sess. 5 (1954).

      . See H.R. 6899, 96th Cong., 2d Sess. § 901 (1980); H.R.Rep. No. 935 (Part 1), 96th Cong., 2d Sess. 132 (1980). Section 901 of the bill would have applied the CPA’s preference requirements whenever the United States ad- - vanced "funds or credits ... in connection with the furnishing of such equipment, materials, or commodities, or provide[d] any form of grant, advance, credit, cash transfer, or guarantee whatsoever to any party____”

      . And no longer contested by MarAd.

      . [T]he President shall ensure that the level of cash transfers made to Israel does not cause an adverse impact on the total amount of nonmilitary exports from the United States to Israel.
      22 U.S.C. § 2346a(b)(2).

      . The 1936 Act also requires the Secretary to review the other agencies’ administration of the Act and “annually report to the Congress with respect thereto.” The authority embodied in section 901(b)(2) has since been delegated to the Secretary of Transportation. See 46 U.S.C. § 1241(b)(2).


author: THOMAS F. HOGAN, District Judge.

text:
    John McCOLLUM, et al., Plaintiffs, v. William French SMITH, Attorney General of the United States, and Bradford Reynolds, Assistant Attorney General for the Civil Rights Division, United States Department of Justice, Defendants.
    Civ. A. No. 83-2509.
    United States District Court, District of Columbia.
    Sept. 28, 1984.

      William H. Schaap, Washington, D.C., Prank E. Deale, New York City, for plaintiffs.
    David J. Anderson, Barbara L. Gordon, U.S. Dept, of Justice, Washington, D.C., for defendants.
   MEMORANDUM OPINION AND ORDER

THOMAS F. HOGAN, District Judge.

In this suit, the eight individual plaintiffs and the National Anti-Klan Network, seek a declaratory judgment that the Department of Justice for many years under the past as well as the present administration has improperly interpreted its jurisdiction to prosecute violations of certain criminal statutes. The defendants have moved to dismiss the complaint on the ground that plaintiffs lack standing. Upon consideration of defendants’ motion, plaintiffs’ opposition and defendants’ reply memorandum, the supporting memoranda of points and authorities and the arguments presented at a hearing on this motion, it is hereby this 28th day of September, 1984

ORDERED that defendants’ motion is GRANTED and the case dismissed.

The individual plaintiffs are residents of several Southern states; each alleges that he or she has been a victim of racially motivated violence by groups of Klansmen over the past several years. Each plaintiff alleges that FBI and Justice Department officials were informed of these incidents but that “on information and belief, the reason for the failure of the Department of Justice to act was the Department’s legal position, taken under the direction of defendant Smith as Attorney General and defendant Reynolds as Assistant Attorney General in charge of the Civil Rights Division, that it does not have jurisdiction to prosecute those who commit violent acts even though motivated solely by race.” Amended Complaint ¶1¶ 10,11. It is alleged in the complaint that this position was announced in 1980 in the testimony of Drew S. Days, the chief of the Criminal Section of the Civil Rights Division under President Carter.

The National Anti-Klan Network is a non-profit corporation based in Atlanta, Georgia. It was established in 1979 in response to the rise in Klan activity throughout the United States. The Network consists of a number of religious, labor, educational, political and legal organizations and individuals, and works to counter Klan activity through educational forums, political organizing, and other legal means. Each of the individual plaintiffs belongs to the Network. The Network alleges that it has been at the forefront of the struggle to alert the defendants to the erroneous construction of certain statutory provisions, and to the fact that racially motivated violence has increased because of the defendants’ unwillingness to prosecute these types of violent acts.

The statutes at issue are 18 U.S.C. §§ 241, 242 and 245. Section 245 enumerates certain federally protected activities, the interference with which may be punished pursuant to Sections 241 and 242. Section 241 authorizes the imposition of fines and a term of imprisonment where,

two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
(where) two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured ...

Section 242 provides,

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.

Plaintiffs further allege that defendants’ erroneous construction of these statutes has resulted in a deprivation of plaintiffs’ rights to be free from race discrimination and from the badges and incidents of slavery under the thirteenth amendment, and to be afforded equal protection of the laws under the fourteenth amendment. They also allege that the defendants’ failure to enforce these statutes has deprived them of their rights to be protected from racial discrimination and racially motivated violence. Plaintiffs have asked the Court to declare that there is no jurisdictional obstacle preventing federal prosecutions, based on the statutes at issue, against the perpetrators of the racially motivated violent incidents alleged by the plaintiffs.

In ruling on the standing issue presented, the Court has accepted as true all material allegations in the complaint and has construed that complaint in favor of the plaintiffs. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The relevant inquiry when the issue of a plaintiff’s standing is raised is “whether, assuming justiciability of the claim, the plaintiff has shown an injury to himself that is likely to be redressed by a favorable decision.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). Further, in order to demonstrate injury in fact, a plaintiff must show that he has suffered a “distinct and palpable injury that is fairly traceable to defendant’s challenged action.” Valley Force Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 487, 102 S.Ct. 752, 766, 70 L.Ed.2d 700 (1982). In analyzing the elements of injury in fact and redressability, this Circuit has explained,

[t]he fairly traceable causation inquiry is directed toward the connection between the injury and the defendant’s actions. The redressability inquiry, on the other hand, focuses on the connection between the injury and the action requested of the court. The fairly traceable causation requirement is therefore generally based on past or present occurrences (the effect of the defendant’s actions), while the redressability requirement is based on future probabilities (the effect of. the court’s decision). Of course, there is a correlation between the two elements. As the connection between the alleged injury and the defendant’s actions becomes more direct, the likelihood that requiring the defendant to change his behavior will redress that injury increases.

Community Nutrition Institute v. Block, 698 F.2d 1239, 1245 (D.C.Cir.1983).

The Court agrees with defendants that the causal link between plaintiffs’ injuries and defendants’ interpretation of these statutes is speculative. The defendants’ decision that they had no authority to prosecute under the particular facts of each plaintiff’s case did not cause the injuries plaintiffs allege. Additionally, even construing the complaint in plaintiffs’ favor, the Court would be required to speculate as to whether plaintiffs will again be wronged in a similar manner as the result of defendants’ decision not to prosecute the earlier incidents. See City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). The Court does not doubt that plaintiffs have been injured; the appropriate inquiry is whether these defendants’ actions have caused that injury. Cf Halkin v. Helms, 690 F.2d 977, 999 n. 81 (D.C.Cir.1982). The Court can find no such causal link here.

The Court has an even greater concern with finding that plaintiffs satisfy the redressability prong of the standing inquiry. When a challenge is brought to a criminal statute, the general rule is that a private citizen lacks a judicially cognizable interest in whether another is or is not prosecuted. Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973). In Linda R.S., the mother of an illegitimate child sought a declaratory judgment that a Texas statute making it a crime for a parent not to support his children violated the equal protection clause where the state had construed the statute as applying only to married parents. The Court found that plaintiff did not have standing to challenge the statute. According to the Court, she had failed to show the nexus between her injury and the relief she asked the court to award her. The Court reasoned,

Thus if appellant were granted the requested relief, it would result only in the jailing of the child’s father. The prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative.

Id. at 617, 93 S.Ct. at 1148.

The Supreme Court has more recently discussed this factor in Leeke v. Timmerman, 454 U.S. 83, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981). There, prison inmates claimed that during a prison uprising they were unnecessarily beaten by prison guards and were also deprived of their constitutional right of access to the courts. An investigation into the incident demonstrated that the guards had beaten the inmates. When this information was presented to the magistrate in an affidavit, he declared his intention to issue an arrest warrant. The prosecuting authorities then decided to undertake another investigation rather than arrest the guards. The Court found the case indistinguishable from Linda R.S. and stated,

[e]ven without the prosecutor’s acts, there is no guarantee that issuance of the arrest warrant would remedy claimed past misconduct of the guards or prevent future misconduct.

Id. 102 S.Ct. at 70. Cf Dohaish v. Tooley, 670 F.2d 934 (10th Cir.1982) (father could not sue prosecutor to compel prosecution of his son’s alleged murderer).

Because an individual does not have a protected interest in assuring that another is prosecuted, any injury inflicted by the perpetrator is not likely to be redressed by a court’s declaration that the government may prosecute. Furthermore, because the decision to prosecute involves consideration of numerous factors, even if this Court were to hold that the Justice Department had the jurisdiction, this would not result in the defendants’ adoption of a decision to prosecute these particular cases much less create a blanket policy of prosecuting every such ease. Since the Court finds that plaintiffs have failed to demonstrate that they have been injured in fact by defendants’ statutory construction and that the requested declaratory relief would redress the injuries they have sustained, the Court concludes that plaintiffs lack standing to bring this suit. Accordingly, the case will be dismissed.

      . See Increasing Violence Against Minorities: Hearing Before the Subcomm. on Crime of the House Comm, on the Judiciary, 96th Cong., 2d Sess., 92-93, 98-100 (1980).

        . Plaintiffs attempt to bolster the causation element by asserting that the 1980 testimony of Mr. Days reflected a modified, or at least a newly publicized, interpretation of the statutes, and that this "new" Department position had an effect on the behavior of the Klan and others. The historical record however belies the argument that the Department's interpretation is of recent vintage. As early as 1947, a presidential committee noted that “[t]he most serious difficulty which the Civil Rights Section [of the Justice Department] has encountered in using these sections [18 U.S.C. §§ 241 and 242] has been to determine the civil rights they protect. Presumably, the two laws protect any and all rights established by the Constitution or by federal statute. But the Constitution nowhere lists personal rights ... nor does any federal statute enumerate them.” To Secure These Rights: The Report of the President's Committee on Civil Rights, 117 (1947). This interpretation of the statutes corresponds closely to that given by Mr. Days at the 1980 hearing.

      . For this reason the Court is not persuaded by the dicta of Nader v. Saxbe, 497 F.2d 676 (D.C. Cir.1974). There this Circuit suggested that, “one injured by a general noncompliance ... might have standing to challenge the deficient enforcement policy." Id. at 681 n. 27. The Court also finds distinguishable the case of NAACP v. Levi, 418 F.Supp. 1109 (D.D.C.1976), dismissed 76 F.R.D. 134 (D.D.C.1977), since that case did not involve a suit by the victim of a crime challenging the construction of a federal criminal statute, and did not address the jurisdictional reach of Sections 241, 242 or 245. The Court in Levi was not faced with the issue of whether defendants’ conduct in the interpretation of a particular criminal statute actually resulted in the crime perpetrated upon the victim and did not have to speculate as to whether a different construction of the statute would prevent that crime in the future.

      . This decision should not be construed as any type of a victory for those individuals or organizations, abhorent to our society, who are alleged to have inflicted the serious injuries claimed by the plaintiffs.