author: JOHN GARRETT PENN, District Judge.

text:
    UNITED STATES of America v. George NADER.
    Crim. No. 85-33.
    United States District Court, District of Columbia.
    Nov. 14, 1985.

      Asst. U.S. Atty., Ronald Dixon, Washington, D.C., for plaintiff.
    David Povich, Washington, D.C., for defendant.
   OPINION

JOHN GARRETT PENN, District Judge.

The defendant is charged in a two count indictment with using or causing use of the mails for the mailing, carriage and delivery of obscene material, (18 U.S.C. § 1461), importation of obscene material into the United States (18 U.S.C. § 1462), and aiding and abetting (18 U.S.C. § 2). The case is now before the Court on one part of the defendant’s motion to suppress evidence.

In his motion to suppress evidence, the defendant contends that; (1) the search of his room was conducted pursuant to a general warrant in violation of the his rights under the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, (2) Custom officials lacked “reasonable cause” for the initial search of the envelope addressed to the defendant as required by 19 U.S.C. § 482, (3) the subsequent delivery of the envelope to the defendant’s home was in violation of federal law, 19 U.S.C. § 1305, (4) the statements allegedly made by the defendant were a direct result of the unlawful search and seizure of material from the defendant’s home and, (5) the statements allegedly made by the defendant were obtained in violation of his Fifth and Fourteenth Amendment rights because they were induced by material misrepresentations by government agents. The government opposes all aspects of the defendant’s motion. At the time of the hearing, the defendant withdrew the second and third parts of his motion and the parties elected to address only the first part of the motion which raises the question whether the search warrant issued in this case was a general warrant, and whether, in any event, the Court should decline to apply the exclusionary rule on the facts of this case. The parties agreed not to go forward on the fourth and fifth parts of the motion until after a ruling on the third part since consideration of the last two parts of the motion would require a factual hearing, and because a ruling granting the third part of the motion would render the remaining parts moot.

I

The underlying facts are as follows: On or about March 27, 1984, Andrew Taylor, a Customs Inspector, United States Customs Service, who was then assigned to make border searches of incoming mail, performed a customs inspection on a first-class letter, in the form of a brown mailing pouch type envelope, addressed to “Mr. J. Nader c/o International Insight, 2019 Connecticut Avenue, N.W., Washington, D.C. 20008, U.S.A.” The customs declaration disclosed that the package contained “books”. The return address given on the envelope was “Ralf Zonatz, 1012 LA Amsterdam, DOMRAK 42-43 Holland.” The package was opened by the Customs Inspector because he felt he had reasonable grounds to suspect that the material enclosed therein was being imported into the United States contrary to law. See 19 U.S.C. § 482. Inside he found an eight-mm movie film, four magazines and one advertisement for another film. For the purposes of the instant motion, the Court assumes that the film and the magazines are obscene. Also reviewed at the same time were two other magazines found in the package, “Boy No. 53” and “Sweet Little Sixteen, Volume 3, No. 8” and two pictures. The magazines and the pictures depict nude boys. This latter group of material differs from the earlier described material in that, while the latter group of material consisted only of pictures of nude boys, the earlier described material depicted nude boys engaged in a variety of sexual acts.

The material was reenclosed in the original package and mailed by registered mail to the Office of Investigations, United States Custom Service, Reston, Virginia. The package was then personally opened by Special Agent Don Bludworth. The material is described in the affidavit in support of the search warrant. See Bludworth Affidavit at 2.

On April 10, 1984, the “obscene” items were shown to a United States Magistrate, United States District Court for the District of Columbia. Prior to this time, Special Agent Bludworth interviewed Special Agent Hekala of the United States Custom Service, who had conducted, during the period 1975 to 1980, approximately 150 investigations of illegal importation of pornography, particularly pedophelia. Special Agent Hekala advised Agent Bludworth that in his experience, persons who order pedophelia material from overseas retain copies of order blanks and catalogues for such material and also retain evidence of payment. He further advised that pedophiles keep records of all purchases to keep tract of the reliability of suppliers and that generally, pedophiles have large quantities of pornographic material which is usually of foreign origin. All of the above is set forth in the affidavit submitted in support of the search warrant. A warrant and a supporting affidavit were submitted to the magistrate but the magistrate withheld signing the warrant until delivery to the defendant had been effected.

Thereafter, the agents twice attempted to deliver the material to the defendant. The package was finally delivered on April 12, 1984, and was signed for by the defendant’s landlord. Once the package was delivered, the agents advised another agent, who in turn presented the application for a warrant to the magistrate who then signed the warrant authorizing the agents to deliver and search defendant’s house. The government states that the magistrate informed Bludworth that it was his belief “that once the package was delivered to the addressee’s premises, probable cause existed to search the premises for the contents of the package as well as other related items.” Opposition to Motion to Suppress Evidence at 3.

When the warrant was signed, the agents returned to the defendant’s home and executed the warrant. They found the package on a table in the hallway. The package was seized and then the agents conducted a general search of the defendant’s room. They seized similar material, which can be described as obscene, and other material depicting material similar to the second group of materials described in the affidavit in support of the warrant. This latter group is not considered as obscene since it depicts only nude boys who are not engaged in any type of sexual or suggestive acts. In addition, the agents seized newspaper clippings, toys, stuffed animals and photo albums. This last group of materials relates to the personal life of the defendant and appears to have no relevance to the charges pending before the Court, except perhaps to identify the room as that of the defendant. The photo albums are nothing more than pictures of the defendant, and apparently families he has visited on his many trips overseas in the conduct of his business. Presumably, this group of material was seized to identify the defendant and to establish that the room searched was indeed his room.

The defendant, and his then counsel, met with the government agents four days after the search, but that meeting is not relevant to the part of the motion now under consideration.

II

The warrant issued in this case provided that, “there is now being concealed certain property, namely [description of the original items intercepted in the mails on March 27, 1984] in addition to other photographs, magazines, writings and documents which are evidence of violations of Title 18 U.S. Code Section 1461 and 1462”. The government agents were directed to seize the material. The defendant argues that the above is in the nature of a general warrant.

The Supreme Court in addressing the issue of general warrants observed:

General warrants of course, are prohibited by the Fourth Amendment. “[T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings____[The Fourth Amendment addresses the problem]by requiring a ‘particular description’ of the things to be seized”----This requirement “ ‘makes general searches ... impossible and prevents the seizure of one thing under a warrant describing another. As is to what is to be taken, nothing is left to othe discretiono of the officer executing the warrant.’ ”

Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976) (citations omitted). Another court noted that:

When there is probable cause to believe that a premises to be searched contains a class of generic items or goods, a portion of which are stolen or contraband, a search warrant may direct inspection of the entire class of all of the goods if there are objective, articulated standards for the executing officers to distinguish between property legally possessed and that which is not____ A search warrant authorizing inspection will not be a general warrant if such standards reasonably guide the officers in avoiding seizure of protected property, and if upon return of the warrant the magistrate may review the search to determine whether the instructions were followed and legitimate property and privacy interests were protected. The standards may be contained in the search warrant or, if certain conditions are met, in the accompanying affidavit. The search warrant may be construed with reference to the affidavit for purposes of satisfying the particularity requirement if (1) the affidavit accompanies the warrant, and (2) the warrant uses suitable words of reference which incorporate the affidavit therein.

United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir.1982) (citations omitted). A search warrant must disclose the things to be seized with the most “scrupulous exactitude” when the things are books and the basis for their seizure is the ideas they contain. Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511-512, 13 L.Ed.2d 431 (1965).

Turning to the facts of the instant case, it is noted that the warrant specifically described the items which had previously been viewed by the government agents and the magistrate and that if the warrant had stopped there and the agents had seized nothing else, the part of the motion now under consideration would be without merit. But, of course, the warrant did not stop at that point. It provided that the agents could seize, in addition to the above, “other photographs, magazine, writings and documents which are evidence of violations of Title 18, U.S. Code Sections 1461 and 1462.”

The quoted language is broad and it fails to instruct the agents executing the warrant what they are to seize. This can be illustrated by two examples. First, the warrant allows the agents to determine what evidence constitutes a violation of 18 U.S.C. §§ 1461 and 1462. In making that determination they must necessarily make a determination as to what is obscene, for it is not a violation of the statute to have mailed or imported any items from a foreign country, or indeed, to have mailed or imported pictures of nude boys or girls no matter how repugnant such activity may be to some members of the public at large.

Second, the warrant gave little or no direction as to items which one must suspect that the government agents really wanted, in addition to the “obscene materials” already seized, such as other mailings received from foreign countries, or from the sender in particular, or order forms or blanks or copies of letters to senders of the material, all of which would be a link in the chain of evidence. The warrant fails even to direct the agents to seize similar pictures, books or magazines. For example the agents in applying for the warrant seemed to draw a distinction between two types of magazines, one “Piccalo Extra No. 15” which depicts young boys commiting acts of masturbation and fellatio and “Boy No. 53” containing pictures of nude and dressed boys who are not depicted in sexual acts. Thus, the warrant could have directed the agents to seize “Piccalo” magazines since presumably the agents knew that those magazines contained the same type of pictures; or the warrant could have described in detail the types of acts which are obscene. The Court does not say that such a warrant would have been valid, but it certainly would have been closer to the requirements of the Fourth Amendment and would have evidenced an intent to describe the material to be seized with “scrupulous exactitude”.

The failure of the search warrant is that, at least with respect to “obscene” material, it leaves the definition of “obscene” to the officers executing the warrant. See Marcus v. Search Warrant, 367 U.S. 717, 731-32, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127 (warrant based on the assertion of a single police officer without scrutiny of a judge is invalid). Although Marcus dealt with the issuance of the warrant rather than its execution, the same standard would apply. In both situations, under Marcus and here, it is the officers or agents who are asked to make the determination of whether the material in question is obscene.

The defendant also cites the Court to Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979), but the primary thrust in that case was that the warrant was open-ended rather than a general warrant. There, the Town Justice signed an open-ended warrant and then accompanied the officers who were to execute the warrant to the store that was to be searched. The Supreme Court noted that the Town Justice “did not manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure.” U.S. at 326, 99 S.Ct. at 2324 (citations omitted). “He [the Town Justice] allowed himself to become a member, if not the leader, of the search party which was essentially a police operation.” Id. The Supreme Court held that the motion to suppress should have been granted.

In this case, just viewing the language of the warrant alone, this Court must conclude that the warrant is a general warrant insofar as it refers to items other than the six items described with particularity.

Ill

Notwithstanding that the warrant itself is general and does not describe the items to be seized with sufficient particularity, the question is raised as to whether a reference to the supporting affidavit will supply the specificity required to uphold the warrant.

A court in examining the validity of a warrant may look to the supporting affidavit for a description of the property to be seized only if and when the affidavit accompanies the warrant and the warrant uses words of reference which incorporate the affidavit as a part of the warrant. See United States v. Hillyard, supra at 1340; United States v. Womack, 166 U.S.App. D.C. 35, 49, 509 F.2d 368, 382 (1974); United States v. Thompson, 161 U.S.App.D.C. 339, 344, n. 4, 495 F.2d 165, 170, n. 4 (1974); Moore v. United States, 149 U.S.App.D.C. 150, 152, 461 F.2d 1236, 1238 (1972), United States v. Anderson, 618 F.Supp. 1335, 1339-40 (D.D.C.1985).

The warrant in this case does not make reference to and incorporate the affidavits filed in the case. The form affidavit seeks to incorporate any other affidavits by providing “see attached affidavit which is incorporated as part of this affidavit for search warrant”. The magistrate or the officers could have incorporated the affidavits by using similar language in the body of the warrant. Since they did not do so, the Court cannot properly refer to the supporting affidavits to satisfy the particularity requirement for a warrant under the Fourth Amendment.

Even if the affidavit had been incorporated, however, the fact is that the language contained in the affidavit does not describe the items to be seized with particularity. The affidavit sets forth background information and then describes the items which were reviewed by the Customs Inspector and taken to the magistrate. The affidavit establishes probable cause to search for and seize the items identified in the warrant and in the affidavit. However, in referring to other items to be seized, the affidavit merely states “that there is currently secreted inside of 2019 Connecticut Ave., N.W., Washington, D.C., 20008, items described herein [the items described with particularity which were originally reviewed on March 27, 1984] as well as other photographs, magazines, writings, and documents which are evidence of violations of Title 18 U.S.C. §§ 1462 and 1461 ” (emphasis the Court’s). Thus, the affidavit adds nothing which would assist the agents and officers executing the warrant in determining what they should seize. In short, the same defect found in the warrant is also found in the affidavit. See Part II, supra. The agents and the officers are required to determine what is evidence of a violation of 18 U.S.C. §§ 1461 and 1462 and what is obscene. Such “evidence” can range from pictures, magazine, books and writings to tickets, stamps and mailing covers. The agents and officers executing the warrant also thought that it included newspaper interviews conducted by the defendant in a nationally known newspaper having nothing to do with obscenity or sex, toys and family type photo albums depicting the defendant with friends.

The Court concludes that the warrant does not incorporate the affidavits. The Court concludes further that even if it did, the language contained in the affidavits is not sufficient for the Court to find particularity as would satisfy the requirements of the Fourth Amendment.

IV

The next issue presented is whether the exclusionary rule should be applied under the facts of this case. Recently, the Supreme Court has had occasion to decide that the exclusionary rule should not be applied when the officer conducting the search acted in “objectively reasonably reliance” on a warrant issued by a detached and neutral magistrate that subsequently is determined to be invalid. United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Massachusetts v. Sheppard, — U.S. -, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).

The facts in this case are more closely identified with the facts in Sheppard than those in Leon. In Leon, the state court determined that the warrant was invalid because the supporting papers did not establish probable cause. 104 S.Ct. at 3412 (the Supreme Court accepted the Court of Appeals conclusion that probable cause was lacking). In Sheppard, the supporting papers established probable cause but the warrant did not describe the property to be seized.

The investigation in Sheppard related to a homicide which occurred on Saturday, May 5, 1979. That day, the officers received information which led them to focus their investigation on Sheppard and, as a result, they sought to obtain a warrant to search Sheppard’s house. An affidavit was prepared, but by that time, it was Sunday and the officers had difficulty in locating an appropriate warrant application and form. The warrant they ultimately used was a form warrant which was designed to authorize a search for “controlled substances”; i.e., illegal drugs. Although the officers and the judge who issued the warrant attempted to modify the form warrant, everyone omitted changing that part of the warrant which authorized a search for “controlled substances”. The search was conducted pursuant to the warrant and the items found were eventually introduced during Sheppard’s trial after which he was found guilty. The trial court and the majority of the justices on the Supreme Judicial Court for Massachusetts found that the warrant was constitutionally defective “because the description in the warrant was completely inaccurate and the warrant did not incorporate the description found in the affidavit.” 104 S.Ct. at 3428, n. 5. The state courts found, however, that the officers believed that the warrant authorized the search that they conducted and that there was an objectively reasonable basis for the officers’ mistaken belief. 104 S.Ct. at 3428-3429. The Supreme Court affirmed, noting that “a reasonable police officer would have concluded [as did the officers in Sheppard] that the warrant authorized a search for the material outlined in the affidavit.” 104 S.Ct. at 3429.

The instant case is distinguishable from Sheppard for a number of reasons. In Sheppard “[t]he scope of the ensuing search was limited to items listed in the affidavit.” In that case the police found a pair of blood stained boots, blood stains on a concrete floor, a blood stained envelope, a pair of men’s jockey shorts and women’s leotards with blood on them, three types of wire, and a woman’s hair piece, subsequently identified as the victim’s. 104 S.Ct. at 3428 n. 4. When one reads the affidavit and the description of the items which were the subject of the search, and compares that description with what was actually found and seized by the officers, it is clear that the officers seized only those items described in the affidavit. Although the Sheppard affidavit did not disclose the exact items to be seized, for example, “an earring” or “a blood stained envelope”, it did authorize a search for, among other things, “any possessions of Sandra D. Boulware, similar type wire and rope that matched those on the body of Sandra D. Boulware, or in [the defendant’s automobile]____ A blunt instrument might have been used on the victim, men’s or women’s clothing that may have blood, gasoline burns on them. Items that may have finger prints of the victim.” 104 S.Ct. at 3427. Such language was sufficient to comply with the requirements of the Fourth Amendment. That language was also consistent with what was found at the scene of the crime. The problem was that the warrant itself did not give a description of the property to be seized and the warrant did not incorporate the descriptions contained in the affidavit. Id.

Here, of course, the facts differ. Neither the warrant nor the affidavit describe the items to be seized other than those six items which were described with particularity. See Parts II and III, supra. Rather, it was left up to the agents and the officers to decide what was evidence demonstrating a violation of 18 U.S.C. §§ 1461 and 1462. Necessarily, they had to decide what was obscene. The lack of particularity in this case allowed the officers to rummage, at will, through the defendant’s room as is evidenced by the items seized during the search.

A further distinction is that this case, unlike Sheppard or Leon, involves First Amendment issues. This is not a case where officers were directed to seize specific tangible items such as weapons, or drugs, or gambling paraphernalia. Here they were told to seize material which was obscene. “To tell the officers to seize anything which, in their opinion, [is obscene] is not ‘scrupulous exactitude’. Nor does it become such by adding ‘of the same tenor’ as three named magazines; especially when the sameness is so broadly defined as to include any communicative material, from books to prints to motion pictures.” United States v. Guarino, 729 F.2d 864, 867 (1st Cir.1984) (en banc). In Guarino, there was a dissent, but it seems unlikely that the dissent would have upheld the present warrant because the dissent found that the particularity requirement in that case was satisfied by the magistrate’s order which sought to define obscenity for the officers executing the warrant. 729 F.2d at 872 (Breyer, J. dissenting).

Nor can this Court accept the government’s oral argument that in conducting the search the officers were concerned that the defendant, a suspected pedophile, was likely to seek to contact children and that therefore this somehow justified the broad language of the warrant and the scope of the search actually conducted. The government, after seizing the material, may have attempted to contact the parents of some of the children named or pictured in the defendant’s albums. But, as the Court has observed, those pictures were not suggestive of any illegal activity; rather they were family scenes some of which included the defendant, and some of which included pictures of children taken with their parents. If those albums had not been connected with this defendant, it is extremely doubtful that anyone would have given a second thought to them. The above actions of the officers demonstrates the risk of a general warrant, especially in a First Amendment case. No evidence was presented at the time of the issuance of the warrant, or at the time of the hearing in this case, that suggested that the defendant was attempting to contact children for any illegal activity. The comments of the Court in this regard are not to be taken as an overall criticism of the agents and officers conducting the search; indeed, this Court believes that they were only attempting to conduct a legitimate search because of suspected activities of the defendant and for the protection of any children who may have been involved. But the issue before the Court cannot be based upon the intuition of the agents and officers, but rather, must be based upon the requirements of the Fourth Amendment.

The Supreme Court has not held that all the government must do to override the exclusionary rule is to show that the search was authorized by a warrant signed by a detached and neutral magistrate. If that was the import of the ruling then it would seem that defendants would have lost the right to challenge the sufficiency of a warrant, for under such a ruling, a victory would be academic. Indeed, the Supreme Court has stated that, “depending on the circumstances of a particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it is valid.” Leon, 104 S.Ct. at 8422 (citation omitted, emphasis the Court’s). The instant case is such a case.

Here the warrant is so general that the executing officers could not reasonably presume it to be valid. While the officers are not experts in the First and Fourth Amendments, the fact that the warrant and affidavit gave them unfettered discretion to seize anything which in their opinion is evidence of a violation of one or both of the involved federal statutes should have been enough to give them reason to pause. For these reasons, nothing in this case demonstrates that the exclusionary rule should not be applied.

V

The Court has concluded that the warrant is a general warrant, and further, that there is no basis not to apply the exclusionary rule. The question remains whether the seizure of the six items described with particularity in the warrant can be upheld by severing the general part of the warrant. In other words, may the government now use the materials originally intercepted on March 27, 1984, in its prosecution of the defendant.

It is clear that once the six items were intercepted by the governments agents and determined to be “obscene” by the magistrate, and once delivery was made to the defendant, there was probable cause to issue the search warrant. See Part I, note 3, supra. It is also clear that the six items were described in the warrant with “scrupulous exactitude”. Thus, if the offending part of the warrant may be severed, the remaining part is valid.

A number of courts have held severance to be appropriate where a part of the warrant is invalid. See United States v. Fitzgerald, 724 F.2d 633 (8th Cir.1983), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 538 (1984); Sovereign News Co. v. United States, 690 F.2d 569 (6th Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983); United States v. Riggs, 690 F.2d 298 (1st Cir.1982); United States v. Christine, 687 F.2d 749 (3d Cir.1982); United States v. Freeman, 685 F.2d 942 (5th Cir.1982); United States v. Torch, 609 F.2d 1088 (4th Cir.1979). In Freeman, the court observed that “[i]f the police have probable cause to search for Item A but not for Item B, and a warrant is issued for both, it seems unfair to law enforcement officials not to allow A in if the search was otherwise properly conducted.” 685 F.2d at 952 (citation omitted).

Moreover, although most of the above cases relate to searches for property other than allegedly “obscene” materials, a search for obscene materials was involved in Sovereign News, Riggs and Torch. In Sovereign News, the magistrate issued a warrant for specifically identified films and magazines said to be obscene, and authorized the seizure of “other magazines of the same kind and nature.” The defendant argued that the warrant was impermissibly broad but the court stated that, “[w]e refuse to invalidate the entire warrant as appellant requests. Where the police and the issuing magistrate have listed the titles of the primary targets of the search, we will not invalidate the entire warrant. Rather, we will sever those portions containing the overbroad language and allow the items seized under the proper section to stand as evidence.” 690 F.2d at 576 (citations omitted). The court in Riggs reached the same result. It severed the impermissible part of the warrant and upheld that part which described the film to be seized with particularity. 690 F.2d at 300-301. Finally, the court in Torch recognized that the district court had properly severed the invalid part of the warrant and upheld that part of the warrant which described the film to be seized. 609 F.2d at 1089.

The Court of Appeals for this circuit has had occasion to address the issue of severence. See In Re Search Warrant Dated July 4, 1977, 215 U.S.App.D.C. 74, 667 F.2d 117 (1981), cert. denied, sub-nom, Hubbard v. United States, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 441 (1982); Huffman v. United States, 152 U.S.App.D.C. 238, 470 F.2d 386 (1971). In Huffman, the warrant incorporated the supporting affidavit which described the items to be seized as “Modern Girls” and “Girls”, which had been viewed by the judge who issued the warrant, “as well as other magazines of a similar appearance and contents.” The court recognized the severability of the seized evidence and upheld the seizure of the items described with particularity. U.S.App.D.C. at 245, n. 7, 470 F.2d at 393, n. 7.

The Court concludes then that it is proper to sever the offending portions of the warrant and uphold so much of the warrant as described the six items with particularity.

VI

In sum, this Court holds that the warrant read in its entirety amounts to a general warrant which is impermissibly broad and in violation of the Fourth Amendment to the Constitution. The Court further holds that there is no basis not to apply the exclusionary rule in this case. Finally, the Court rules that the offending portions of the warrant may be severed and that the search and seizure of the six items described with particularity in the warrant may be upheld.

An appropriate Order has been issued.

      . See United States v. Leon, — U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Massachusetts v. Sheppard, — U.S. -, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).

      . The Speedy Trial Act, 18 U.S.C. § 3161 et seq., is still tolled in view of the agreement of the parties that the Court should not address the fourth and fifth parts of the motion at this time. See 18 U.S.C. § 3161(h)(1)(F).

      . The Court has viewed the material and cannot quarrel with the conclusion of the government agents and the magistrate that the material is obscene.

      . It is significant that the agents in applying for a warrant distinguished between the two groups of material.

      . It was ascertained at the time of the search that the defendant rented a room from an elderly couple in a private home.

      . The defendant does not challenge the actions of the magistrate in advising the government agents on how to establish probable cause. Although the Court need not address this issue, it notes that the facts relating to the magistrate’s participation differs from those involved in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979). There, the Town Justice signed the warrant, which was incomplete and open ended, and then accompanied the officers searching the store. The Supreme Court noted that ”[t]he Town Justice did not manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application for a search and seizure.” U.S. at 326, 99 S.Ct. at 2324 (citation omitted). That issue is not raised here where the magistrate advised the government agents that probable cause would not arise until after the package was delivered, since absent delivery, there was no basis to conduct this search for the items described with particularity in the warrant. See U.S. at 327 n. 6, 99 S.Ct. at 2325, n. 6. (“Magistrate [does not] loose [ ] his character as such merely because he leaves his regular office in order to make himself more readily available to law enforcement officers”), Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1983) (judge went to theatre and after viewing the film signed the search warrant while still in the theatre).

      . There is no doubt that some members of the public might well object to some works of art imported by art galleries, museums or collectors.

      . Sheppard consented to a search of his automobile and at that time the police found "[b]lood stains and pieces of hair [ ] on the rear bumper and within the trunk compartment____ Strands of wire in the trunk similar to wire strands found on and near the body of the victim." 104 S.Ct. at 3426.


source: Caselaw Access Project

author: McCURN, District Judge.

license: Public Domain

text:
    Thomas QUINN, Plaintiff, v. NEW YORK STATE ELECTRIC AND GAS CORPORATION, Defendant.
    No. 82-CV-716.
    United States District Court, N.D. New York.
    Nov. 14, 1985.

      Syracuse University College of Law Public Interest Law Firm, Daan Braveman, Syracuse, N.Y., for plaintiff.
    Hinman, Howard & Kattell, James S. Gleason, Binghamton, N.Y., for defendant.
   MEMORANDUM-DECISION AND ORDER

McCURN, District Judge.

Plaintiff Thomas Quinn brings this action seeking relief from a practice and policy of discrimination based on age in the selection of employees for positions in the Utility Construction & Maintenance Department (UC & M) of defendant New York State Electric & Gas Corporation (NYSE & G). It is alleged that as a result of defendant’s practice and policy, plaintiff was subjected to the deprivation of rights secured by the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (ADEA). Jurisdiction is conferred on this court by 29 U.S.C. § 626(b).

Plaintiff Quinn was a forty-four year old employee of the defendant at the time this action was commenced. On September 14, 1981, NYSE & G posted a notice that positions would become available in its UC & M training program. The plaintiff applied to enter the training program, but his application was not considered because of his age. At the time the application was made, the defendant had in effect a policy that limited entry into the UC & M training program to those persons under thirty-two years of age. The plaintiff contends that, as a result of this policy, his rights under the ADEA were violated. He seeks injunctive and compensatory relief.

In its answer to the complaint, NYSE .& G admits that it set a maximum age limit for UC & M trainees and that the plaintiff was precluded from competing for a position in the program due to his age. In response to the plaintiff’s claims alleging violations of the ADEA, the defendant originally set forth four affirmative defenses: (1) failure to state a claim upon which relief can be granted; (2) exemption of the defendant’s training program from the provisions of the ADEA by Equal Employment Opportunity Commission (EEOC) regulation 29 C.F.R. § 1625.13, which permits bona fide apprenticeship programs to be limited to youths; (3) the age limitation is a bona fide occupational qualification within the meaning of 29 U.S.C. § 623(f)(1); and (4) the plaintiff is estopped from challenging an age limitation that is part of a collective bargaining agreement ratified by the plaintiff’s union.

On August 17, 1983, this court held, inter alia, that although “NYSE & G’s UC & M apprenticeship and progression program complies with the provisions of 29 C.F.R. § 1625.13 and would be exempt from the prohibitions of the ADEA if that regulation were valid,” the regulation conflicts with the language and intent of the ADEA and should not be given effect. Quinn v. New York State Electric and Gas Corporation, 569 F.Supp. 655, 660, 664 (N.D.N.Y.1983) (McCurn, D.J.). The court proceeded to grant the plaintiff’s motion for partial summary judgment, striking the defendant’s first, second, and fourth affirmative defenses and denied the defendant’s motion for summary judgment. Id. at 664.

On November 7, 1983, the court granted the defendant leave to file an amended answer. That answer, filed on November 28, 1983, sets forth as an affirmative defense:

12. Defendant’s Utility Construction & Maintenance Apprentice and Progression Program is a bona fide apprenticeship program which conforms with the requirements of 29 C.F.R. § 1625.13 as published by the Equal Employment Opportunity Commission.
13. In retaining the age limitation for entry into the Utility Construction & Maintenance Apprentice and Progression Program, defendant in good faith relied upon 29 C.F.R. 1625.13 and the predecessor to that section, 29 C.F.R. § 860.106, as published by the Department of Labor.
14. Pursuant to § 7(e) of the Age Discrimination in Employment Act. (29 U.S.C. § 626(e)) and § 10 of the Portal-to-Portal Act (29 U.S.C. § 259), defendant has no liability to the plaintiff in this action.

The defendant maintains that, when it precluded the plaintiff from competing for a position in the UC & M training program, it was acting in good faith reliance on 29 C.F.R. § 1625.13, and it is therefore protected from liability by the Portal-to-Portal Act defense, 29 U.S.C. § 259, which is made applicable to actions arising under the ADEA by 29 U.S.C. § 626(e). The defendant thus asserts that summary judgment should be granted in its favor.

The plaintiff argues that the defendant has not established that it is entitled to the protection of the Portal-to-Portal Act defense and that summary judgment should be granted in his favor. Moreover, the plaintiff contends that, in the event that the court does find that the defendant is protected from liability by the defense, it is still within the court’s power to grant injunctive relief in favor of the plaintiff and award him attorney’s fees.

I.

When considering a motion for summary judgment, a court must insure that there is no genuine issue as to any material fact, that all reasonable inferences are drawn against the moving party, and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Equal Employment Opportunity Commission v. Home Insurance Co., 672 F.2d 252, 256-57 (2d Cir.1982). Further, a case involving a Portal-to-Portal Act defense necessarily involves issues regarding a defendant’s state of mind. This court is well aware of the Second Circuit’s caution that summary judgment is “rarely appropriate where the moving party’s state of mind is a material issue.” Id. at 257. However, the circumstances in the instant case differ significantly from those in Home Insurance. Further, Home Insurance does not preclude the granting of summary judgment in all cases where state of mind may be an issue, and in this circuit and others, summary judgment has been found to be an appropriate tool to dispose of cases involving a Portal-to-Portal Act defense. See Marshall v. Atlantic Container Line, G.I.E., 470 F.Supp. 71 (S.D.N.Y.1979); Clifton D. Mayhew v. Wirtz, 413 F.2d 658 (4th Cir.1969); Kam Koon Wan v. E.E. Black, Limited, 188 F.2d 558 (9th Cir.1951) (a case involving a Portal-to-Portal Act defense based on 29 U.S.C. § 258). Accordingly, the court must determine whether summary judgment should be granted in the case sub judice.

The Portal-to-Portal Act defense, as codified at 29 U.S.C. § 259, provides in pertinent part:

[N]o employer shall be subject to any liability or punishment ... if he pleads and proves that the act or omission complained of was in good faith in conformi-^ ty with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation____ Such defense, if established, shall be a bar to the action or proceeding, notwithstanding that after such act or omission, such administrative regulation, order, ruling, approval, [or] interpretation ... is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect.

Id.

As held in Home Insurance:

[T]he Portal Act defense requires the employer to establish three interrelated elements: (1) that its action was taken in reliance on the ruling of the (agency), (2) that it was in conformity with that ruling, and (3) that it was in good faith.

Id. at 263.

To establish the first element of the Portal-to-Portal Act defense, the defendant must show that its challenged action was taken in reliance on 29 C.F.R. § 1625.13; the EEOC regulation exempting bona fide apprenticeship programs from the provisions of the ADEA. The regulation was first promulgated by the Department of Labor in 1969 as 29 C.F.R. § 860.106 when that department was charged with enforcing age discrimination laws. When that responsibility was shifted to the EEOC in 1979, 29 C.F.R. § 860.106 was republished as 29 C.F.R. § 1625.13, and it provides as follows:

Age limitations for entry into bona fide apprenticeship programs were not intended to be affected by the Act. Entry' into most apprenticeship programs has traditionally been limited to youths under specified ages. This is in recognition of the fact that apprenticeship is an extension of the educational process to prepare young men and women for skilled employment. Accordingly, the prohibitions contained in the Act will not be applied to bona fide apprenticeship programs which meet the standards specified in §§ 521.2 and 521.3 of this chapter.

The defendant first set a maximum age limit for entry into the UC & M training program in 1958, eleven years before the existence of the regulation. However, the defendant contends that it retained the age limitation in years subsequent to the promulgation of the regulation in reliance on the regulation.

According to William Walker, the employee of the defendant charged with insuring that the UC & M training program complied with federal and state regulations, the defendant was well aware of the promulgation of 29 C.F.R. § 860; 106 in 1969 through information contained in a variety of legal periodicals. Walker Affidavit at ¶ 12. Further, Walker made sure that the UC & M program complied with the requirements of the regulation by looking to the regulation itself. Walker Deposition at 38-40.

The plaintiff argues that the defendant cannot claim that it relied on the regulation when it never sought an opinion from the Department of Labor or the EEOC regarding whether the UC & M program was in compliance with the regulation. The plaintiff relies on Home Insurance in support of this argument. In that case, the Second Circuit held that an employer cannot be left to its own devices to insure compliance with the provisions of the ADEA when the information upon which it relies provides no guidance as to what is expected of it. Id. at 265. In the instant case, 29 C.F.R. § 1625.13, as well as the regulations referred to therein, 29 C.F.R. §§ 521.2 and 521.3, provide clear guidance as to what is required for a program to qualify as a bona fide apprenticeship program. The defendant was not required to seek approval of its program with either the Department of Labor or the EEOC.

The plaintiff also argues that the defendant could not have relied on the regulation, at least as to any action taken regarding the plaintiff, because the EEOC proposed rescinding the regulation in September of 1980. However, the proposed rescission does not, in any way, lead to the conclusion that the defendant was unjustified in relying on the regulation. First, it was proposed that the regulation be rescinded; it was not in fact rescinded. The regulation was actually reaffirmed in September of 1981. The fact that the EEOC undertook reconsideration of the regulation did not serve as a warning to the defendant that it should not rely on the regulation. It was perfectly reasonable conduct on the part of the defendant to assume the validity of the regulation until it was actually rescinded, which, of course, it never was. When neither the agency charged with enforcing the regulation nor any court had concluded that the regulation was invalid, the defendant could hardly have been expected to reach such a conclusion on its own.

Second, the plaintiff was not precluded from competing for entry into the UC & M training program until well after the regulation was reaffirmed. The defendant was justified in relying on the regulation regarding the challenged action in this case that affected the plaintiff.

Therefore, the court concludes that, as a matter of law, the defendant relied on the regulation allowing an exemption from ADEA provisions for bona fide apprenticeship programs when it continued to maintain the maximum age limit for entry into the UC & M program.

To establish the second element of the Portal-to-Portal Act defense, the defendant must prove that the UC & M program was in conformity with the regulation. The court has already concluded that the program did conform to the regulation. Quinn, .569 F.Supp. at 660. Since the court’s earlier decision in this case, no evidence has been presented that would lead to a different conclusion.

The final element of the defense is that the defendant must have acted in good faith in relying on the regulation. To establish that it acted in good faith, an employer must show that it “acted as a reasonably prudent man would have acted under the circumstances, [that] it have honesty of intention and no knowledge of circumstances which ought to put him upon inquiry.” 29 C.F.R. § 790.15(a)

First, the regulation in question, 29 C.F.R. § 1625.13, as well as the regulations referred to therein, 29 C.F.R. §§ 521.2 and 521.3, set forth very clear requirements for bona fide apprenticeship programs. As already stated, the defendant’s UC & M program complied with those requirements, and there was no necessity that the defendant seek approval of the program from either the Department of Labor or the EEOC. The court cannot conclude, then, that the defendant acted anything other than reasonably when it relied on the regulation, nor is there any basis upon which the court can conclude that the defendant did not have honesty of intention.

Finally, the fact that the EEOC proposed rescinding the regulation should not have put the defendant upon inquiry. The type of inquiry to which 29 C.F.R. § 790.15(a) refers is explained in the comment of the then-Congressman Walter, which is set forth in Wirtz:

The defense of good faith is intended to apply only where an employer innocently and to his detriment, followed the law as it was laid down to him by government agencies, without notice that such interpretations were claimed to be erroneous or invalid. It is not intended that this defense shall apply where an employer had knowledge of conflicting rules and chose to act in accordance with the one most favorable to him. Vol. 93, Part 4, Cong.Rec. 4390.

Id. at 661.

In Wirtz, the employer’s attorney became aware of a bill, which had been adopted by the Senate, that changed the current law in that it required the employer to comply with the provisions of the Fair Labor Standards Act. In asserting a Portal-to-Portal Act defense, the employer claimed that he had relied on an earlier interpretative bulletin of the administrator that he believed exempted him from coverage under the Act. The court held, though, that the employer had not met the good faith prong of the Portal-to-Portal Act defense when he was aware that the law was about to be changed and still chose to rely on the earlier interpretative bulletin.. Id. at 663.

In the case sub judice, the law was not changed. The fact that there was a proposal by the EEOC to rescind 29 C.F.R. § 1625.13 did not create a conflict that should have put the defendant upon inquiry. The plaintiff would create a conflict between the proposed rescission of the regulation and the regulation itself. The court cannot adhere to this logic. It would be unfounded to conclude that the defendant was attempting to avoid having to comply with the provisions of the ADEA, or that it lacked good faith, because it chose to follow a regulation that was lawfully in effect at that time. Furthermore, not only was the proposed rescission abandoned and the regulation reaffirmed, the reaffirmance occurred months before the plaintiff was precluded from competing for entry into the UC & M training program. As a matter of law, the defendant acted in good faith in relying on the regulation. Accordingly, the defendant has established the necessary elements of the Portal-to-Portal Act defense.

II.

The plaintiff contends that, even if the defendant is exempt from liability due to the establishment of the Portal-to-Portal Act defense, the court can still grant injunctive relief in favor of the plaintiff and award him attorney’s fees.

At least one court has held that, once a Portal-to-Portal Act defense has been established, a court is deprived of any further jurisdiction to grant injunctive relief for a plaintiff. Marshall v. Baptist Hospital, Inc., 668 F.2d 234, 238-39 (6th Cir.1981). The Marshall court based its holding on the language of the statute itself, which states that, “Such a defense, if established, shall be a bar to the action or proceeding____” 29 U.S.C. § 259. Other courts have granted equitable relief despite the establishment of the defense. See Northwestern-Hanna v. McComb, 166 F.2d 932 (8th Cir.1948); Spirt v. Teachers Insurance and Annuity Association, 93 F.R.D. 627 (S.D.N.Y.1982).

Even if this court assumes that it has jurisdiction to grant the plaintiff injunctive relief, there is no basis here upon which to do so. The defendant has already eliminated the maximum age limit for entry into the UC & M program to comply with a New York State law that was enacted subsequent to the institution of this action. Walker Supplemental Affidavit at ¶ 2; N.Y. Exec.Law § 296 (McKinney 1985).

Furthermore, none of the cases cited by the plaintiff supports his assertion that he should be placed in the UC & M training program, notwithstanding the establishment of a valid Portal-to-Portal Act defense by the defendant. First, the plaintiff was- precluded from competing for entry into the training program. There is no evidence before the court that he definitely would have been selected for entry into the program. Second, even when a plaintiff is successful on an age discrimination claim, reinstatement is not mandatory, and “[t]he determination of whether reinstatement is appropriate in a particular case lies solely within the sound discretion of the trial court.” Kiel v. Goodyear Tire & Rubber Co., 575 F.Supp. 847, 848 (N.D.Ohio 1983); Combes v. Griffin Television Inc., 421 F.Supp. 841, 846 (W.D.Okla.1976).

This court is disinclined, at this point in time, to order that a person who may be well into his or her training in the UC & M program be removed to make room for the plaintiff. Such “bumping” of innocent employees has been viewed with disfavor in both age discrimination and race discrimination cases, even where no good faith defense has been established. See Spagnuolo v. Whirlpool Corp., 717 F.2d 114 (4th Cir.1983); Briseno v. Central Technical Community College Area, 739 F.2d 344 (8th Cir.1984); Vaughn v. Westinghouse Electric Corporation, 471 F.Supp. 281 (E.D.Ark.1979). This court will not order that the plaintiff now be placed in the UC & M training program. He should, however, be given full consideration for the next available opening in the program.

The plaintiffs final contention is that he is entitled to an award of attorney’s fees. The penalty provision of the ADEA, 29 U.S.C. § 216(b), provides in relevant part that, “The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” This language has generally been interpreted to mean that an award of attorney’s fees should be made to the plaintiff when he or she prevails. Hagelthorn v. Kennecott Corp., 710 F.2d 76, 86 (2d Cir.1983); Rogers v. Exxon Research & Engineering Co., 550 F.2d 834, 842 (3rd Cir.1977). The key question here, then, is whether the plaintiff has, in any way, prevailed.

In his complaint, the plaintiff sought the following: (1) a declaratory judgment that the defendant’s policy of setting a thirty-two year old age limit for entry into the UC & M training program was unlawful; (2) an injunction preventing the defendant from discriminating on the basis of age; (3) an order that he be appointed to the UC & M training program; and (4) an award of back pay, costs, and any other relief that the court deems proper.

In order for a court to conclude that a plaintiff has prevailed, the plaintiff must have achieved at least some of the benefit that he sought in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (a case involving an award of attorney’s fees under 42 U.S.C. § 1988); Rosenfeld v. Southern Pacific Co., 519 F.2d 527 (9th Cir. 1977). See also Uviedo v. Steves Sash & Door Co., 738 F.2d 1425 (5th Cir.1984). The court did hold that 29 C.F.R. § 1625.13 should not be given effect in light of the language and intent of the ADEA. That result, though, was not a goal of the plaintiff’s, whose complaint was obviously filed in order for him to be placed in the UC & M training program and to recover damages. Because the plaintiff has not achieved some of the benefit that he sought in bringing suit, he is not a prevailing party. His request for an award of attorney’s fees is therefore denied.

For the reasons adduced herein, the defendant’s motion for summary judgment is granted.

It is So Ordered.

      . The defendant's third affirmative defense, which alleged that age is a bona fide occupational qualification, has been abandoned by the defendant. The defendant originally had five affirmative defenses. The fifth, alleging lack of jurisdiction due to improper service, was stricken by stipulation of the parties.

      . Although the context of the discussion should indicate whether it is 29 C.F.R. § 860.106 or 29 C.F.R. § 1625.13 that is being referred to, for the purposes of this decision, it makes no difference, because the language of the regulations is identical. Thus, when reference is made to the "regulation," it can be the former or the latter.


author: ENSLEN, District Judge.

text:
    Tim A. ELLIOTT, Plaintiff, v. UNITED STATES POSTAL SERVICE, National Post Office Mail Handlers, Watchmen, Messengers, and Group Leaders Division of the Laborer’s International Union of North America, AFL-CIO, and Mail Handlers Local 307, Defendants.
    No. K84-360.
    United States District Court, W.D. Michigan, S.D.
    Nov. 14, 1985.

      James M. Marquardt, and Alexander C. Lipsey, Kalamazoo, Mich., for plaintiff.
    John A. Smietanka, U.S. Atty. by Thomas O. Martin, Asst. U.S. Atty., Grand Rapids, Mich., for U.S. Postal Service.
    Miller, Cohen, Martens & Ice by Bruce A. Miller and Peter A. Caplan, Detroit, Mich., for Unions.
   OPINION

ENSLEN, District Judge.

This case is currently before the Court for the second time on Defendants’ motions for summary judgment. Plaintiff, a former mail handler for the United States Postal Service (USPS), was discharged from his employment on July 18, 1983. On August 27, 1984, after exhausting his contractual remedies, Plaintiff filed the instant suit claiming (1) that his termination constituted handicap discrimination in violation of Sections 501 and 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 and 794; (2) that said termination constituted a breach of the collective bargaining agreement between the USPS and the National Post Office Mail Handlers, Watchmen, Messengers, and Group Leaders Division of the Laborers’ International Union of North America, AFL-CIO (National Union), in violation of 39 U.S.C. § 1208(b); and (3) that the National Union and Mail Handlers Local 307 (Local 307) breached their duty of fair representation. Plaintiff’s claim of Title YII handicap discrimination in Count I was dismissed by this Court on October 8, 1985.

The Union Defendants have brought a motion for summary judgment on Count III claiming that neither the National Union nor Local 307 breached their duty of fair representation and, in any event, Plaintiffs suit is barred by the applicable statute of limitations. Defendant USPS has also moved for summary judgment on Count II claiming alternatively that Plaintiff’s discharge was not in breach of the labor contract and that it cannot be liable for wrongful discharge under the contract absent a showing of unfair representation on the part of the Union Defendants. The standard for deciding motions for summary judgment is well known in this Circuit and need not be repeated here. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Adams v. Union Carbide Corp., 737 F.2d 1453, 1455-56 (6th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 545, 83 L.Ed.2d 432 (1985); Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir.1962). After a brief background discussion, the two motions will be discussed seriatim.

I. BACKGROUND

Plaintiff, a Vietnam veteran, was hired by the USPS on November 13, 1978. The reason given for his 1983 discharge was excessive absenteeism. The following is a capsulization of Plaintiff’s disciplinary record relating to attendance:

July 18, 1983 Discharge Absence Without Official Leave (AWOL) and Failure to be in Regular Attendance (FRA)

June 13, 1983 Notice of Proposed AWOL and FRA Removal

February 7, 1983 14-Day Suspension AWOL

August 10, 1982 Notice of Proposed AWOL and FRA Removal (held in abeyance for one year as of November 2, 1982)

May 21, 1981 14-Day Suspension AWOL

August 14, 1980 14-Day Suspension FRA

March 24, 1980 14-Day Suspension AWOL

January 23, 1980 11-Day Suspension AWOL

October 31, 1979 10-Day Suspension FRA

March 29, 1979 7-Day Suspension AWOL

March 20, 1979 Letter of Warning AWOL

(Union Brief, Ex. C).

Local 307 filed a grievance on Plaintiff’s behalf over his discharge. (Elliott Dep.Ex. 3). After the grievance was denied in the first three steps of the contractual procedure (Elliott Dep.Ex. 4-7), the National Union certified the matter to the fourth and final step — binding arbitration. (Elliott Dep.Ex. 8-9). The arbitration hearing was held on December 2, 1983, and the arbitrator’s opinion of February 28, 1984 upheld Plaintiff’s termination. (Elliott Dep.Ex. 13).

In a nutshell, it is Plaintiff’s contention that his frequent absences were caused by a military service-connected disability and that most of these absences were medically documented as required by the labor contract. (Elliott Dep. at 47-48). For this reason, Plaintiff argues that his discharge was in violation of both the “just cause” and “handicap discrimination” clauses of the collective bargaining agreement. Plaintiff also contends that his dismal disciplinary record is the result of a pattern and practice of arbitrary and discriminatory representation of his claims by Local 307 officers, specifically John Green and David Mead, due to alleged personal animosity and collusion between these officers and certain members of management. Finally, Plaintiff argues that his representation at the arbitration hearing by Local 307 president Jimmie Compton constituted “gross ineptitude.” (Plaintiff’s Brief at 13).

II. UNION’S MOTION

The Union Defendants argue in their motion for summary judgment that there is no evidence that either the Local or National Union breached their duty of fair representation in the handling of Plaintiff’s final grievance. In this respect, the following facts are uncontested. Neither Green nor Mead, the two Union officers who Plaintiff alleges were motivated by personal animosity and acted in bad faith, had any involvement in the grievance arising out of the June 13, 1983 Notice of Proposed Removal. (Elliott Dep. at 113). Rather, another Union steward, Shirley Grimm, handled the matter through the first two steps of the grievance procedure. Glenn Berrien, a Local 307 officer, handled Plaintiffs grievance at step three. Plaintiff testified at his deposition that he had no reason to believe that either Grimm or Berrien acted arbitrarily or in bad faith in representing him in this matter. (Elliott Dep. at 94-99).

After the Union made the decision to appeal the step three decision to arbitration, the case was taken over by the Local’s president, Jimmie Compton. Again, Plaintiff does not believe that Compton harbored any personal animosity toward him. (Elliott Dep. at 99). ° Nevertheless, Plaintiff testified that he was dissatisfied with Compton’s efforts at the arbitration hearing, and on that basis, concluded that Compton’s actions constituted bad faith.

Q. Any reason to believe that he [Compton] was acting towards you in bad faith?
A. Just the way he handled my arbitration.
Q. You disagree with the way he handled your arbitration?
A. Very much so.
Q. Do you feel it was because he was acting out of bad faith or just because he didn’t handle it the way you wanted him to?
A. I think it was kind of out of bad faith.
Q. What facts do you have to support that claim?
A. I don’t have any. It’s just sort of a gut feeling. He never wrote me a letter saying I’m going to represent you in bad faith.

(Elliott Dep. at 99-100) (emphasis added). Plaintiff’s dissatisfaction with the presentation of his case at arbitration stems from his perception that Compton virtually ignored, or at lest down-played, arguments relating to Plaintiff’s military disability and the fact that most of his absences were documented, and relied primarily on the argument that the termination was procedurally flawed because management had not followed its own regulations regarding internal review. Plaintiff characterizes the latter argument as a mere “technicality.” (Elliott Affid. 1111 Í0, 13).

As an initial matter, Plaintiff’s allegation that Compton’s presentation to the arbitrator concentrated on the single procedural technicality theory is simply incorrect. In fact, the Union’s Opening Statement at arbitration advanced a detailed contractual argument that Plaintiff’s discharge was not for “just cause.” (Compton Affid.Ex. F). At the hearing itself, Plaintiff testified as to the reasons for his absences and the nature of his military disability. (Compton Affid. 116). Exhibits were submitted to the arbitrator outlining the USPS policy regarding medical leaves and documenting Plaintiff’s physical condition. (Compton Affid. H117-8 & Ex. E, G). Furthermore, a post-hearing brief was submitted to the arbitrator three and one-half weeks after the hearing summarizing all of the arguments listed above. (Compton Affid.Ex. H). Finally, the arbitrator addressed these very issues in his Opinion and Award of February 28, 1984. (Compton Affid.Ex. I). Plaintiff’s bald allegation that “virtually all of Mr. Compton’s presentation was based on the procedural technicality defense, and that all other defenses, including handicap or disability discrimination, were mentioned by Mr. Compton only in passing” (Elliott Affid. If 13), cannot withstand the Union’s specific evidentiary submissions.

All parties recognize that “[a] breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). Conclusory allegations of bad faith, absent an affirmative showing by the Plaintiff, will not sustain a cause of action against the Union for breach of its duty. Whitten v. Anchor Motor Freight, Inc., 521 F.2d 1335, 1341 (6th Cir.1975), cert. denied, 425 U.S. 981, 96 S.Ct. 2188, 48 L.Ed.2d 807 (1976); Balowski v. UAW, 372 F.2d 829, 835 (6th Cir.1967). Of course, a showing of bad faith is not an absolute prerequisite to the maintenance of a cause of action for unfair representation. It will suffice if the Plaintiff can establish that the Union’s conduct was arbitrary. Whitten, 521 F.2d at 1341; Dill v. Greyhound Corp., 435 F.2d 231, 238 (6th Cir.1970), cert. denied, 402 U.S. 952, 91 S.Ct. 1622, 29 L.Ed.2d 122 (1971). While mere negligence on the part of the Union is insufficient, Ruzicka v. General Motors Corp., 523 F.2d 306, 310-11 (6th Cir.1975) (Ruzicka I), gross mistake or inaction without a rational explanation may constitute arbitrariness and breach. Milstead v. Teamsters, Local 957, 580 F.2d 232, 235 (6th Cir.1978); Balowski, 372 F.2d at 834.

I find, as a matter of law, that Plaintiff’s allegation that his arbitration was handled ineptly does not constitute a claim of gross mistake or inaction without a rational explanation. In the first place, Plaintiff’s grievance was taken to fourth-step arbitration and therefore, there was no “inaction.” Cf. Williams v. Teamsters, Local 984, 625 F.2d 138 (6th Cir.1980) (per curiam); Ruzicka I, supra. Secondly, even assuming that Compton did not advance every argument at the arbitration hearing that Plaintiff requested, an assumption that is unwarranted by the facts of the case as discussed above, such negligent misrepresentation constitutes at most an error in judgment and does not amount to the reckless disregard required to establish arbitrariness. Castelli v. Douglas Aircraft Co., 752 F.2d 1480, 1482-83 (9th Cir. 1985); see also Poole v. Budd Co., 706 F.2d 181, 185 (6th Cir.1983) (“Union representatives are not to be strictly held to the standards of attorneys.”). Accordingly, I find that the Union’s representation of Plaintiff in his final grievance was not conducted in bad faith or arbitrarily.

Plaintiff makes a third argument relating to racial discrimination. Plaintiff alleged at his deposition that he was discriminated against because he was white:

Q. Do you have any reason to believe that anyone connected with the National Union was motivated by discriminatory intent toward you?
A. Just race.
Q. And what leads you to believe that someone or anyone connected with the National Union was motivated by race towards you?
A. They’re all black.
Q. What else do you have to support your claim?
A. You get too many blacks, you get in trouble in the post office.

(Elliott Dep. at 119). Plaintiff never did specifically say who discriminated against him because of his race or set forth any particular instance in which he was the victim of racially discriminatory animus. Indeed, Plaintiff admitted that he had never even met any of the Union officers who he alleged were motivated by racial considerations. (Elliott Dep. at 119). Once again, bald allegations of impropriety without so much as an attempt at an affirmative showing by the Plaintiff cannot withstand a properly supported motion for summary judgment. Whitten, supra; Balowski, supra.

The only evidence that Plaintiff offers with respect to arbitrary, discriminatory or bad faith conduct by Union representatives relate to past incidences of grievance representation by John Green and David Mead. Plaintiff alleged that Green, Local 307’s Administrative Vice President, only properly represented his personal friends in grievances. (Elliott Dep. at 85). He further alleged that Green regularly colluded with members of USPS management on grievances to the detriment of Plaintiff. (Elliott Dep. at 77-81). This contention is largely concurred in by Shirley Grimm, a former Union steward who worked with both Plaintiff and Green. Grimm testified that “Green admitted to her in Union meetings that he routinely ‘played ball’ with Postal Service management in resolving some grievances, but did not in others.” (Grimm Affid. II11). Moreover, Grimm stated that Green colluded with management in the handling of many of Plaintiff’s grievances up to and including the one resulting from the May 1981 suspension. (Grimm Affid. H 12). Grimm also offers some “Absence Analysis” records purportedly maintained by USPS management for the calendar years 1982-1983 that indicate that at least three other employees on Plaintiffs shift had “absences and/or tardinesses at least equal to, if not more severe than, those shown on Elliott’s record,” yet these three employees did not receive similar discipline. (Grimm Affid. lili 13-15 & Ex. K-N). Yet another former steward, Marvin Dow, testified at deposition that Green maintained close personal relationships with certain members of management while he was a Union officer (Dow Dep. at 12-14, 53), and speculated that these relationships may have influenced him in his handling of grievances. (Dow Dep. at 7). However, none of the matters that Dow testified to directly relate to Plaintiff’s representation.

With respect to representation by David Mead, Plaintiff does not claim that Mr. Mead harbored any personal animosity toward him or that Mead discriminated against him personally. Rather, Plaintiff claims that Mead’s actions in his Union capacity were regularly controlled by John Green. It is Plaintiff’s contention that in every instance over the years that Mead represented him, Mead acted “incompetently].” Once again, however, Plaintiff can point to no specific instance in which Mead breached his duty of fair representation as a Union officer. (Elliott Dep. at 86-89).

While I have already made reference to it earlier in this opinion, it is worth repeating that neither Green nor Mead had any contact with Plaintiff’s final grievance. Indeed, the last grievance in which either of these individuals represented Plaintiff was the one arising out of the August 1982 Notice of Proposed Discharge. (Elliott Dep. at 113-14). Therefore, none of the instances of alleged unfair representation involving John Green or David Mead are actionable as they all occurred outside the six month statute of limitations period found in Section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). Del-Costello v. Teamsters, 462 U.S. 151, 155, 103 S.Ct. 2281, 2285, 76 L.Ed.2d 476 (1983); Smith v. General Motors Corp., 747 F.2d 372, 375 (6th Cir.1984).

Plaintiff, however, seeks to characterize the past acts of alleged bad faith or discriminatory representation by Green and Mead as part of a pattern of culpable conduct that contributed to his ultimate discharge. In Plaintiff’s opinion, the years of unfair representation damaged his disciplinary record to such an extent that he went into his final grievance with “the deck stacked against him.” (Plaintiff’s Brief at 9). Plaintiff cites three cases from the Third and Ninth Circuits for the proposition that a pattern of union conduct over the course of an employee’s tenure may be considered in determining whether a single act constitutes a breach of the duty of fair representation. See Peterson v. Lehigh Valley District Council, 676 F.2d 81, 87 (3d Cir.1982); Castaneda v. Dura-Vent Corp., 648 F.2d 612, 618 (9th Cir.1981); Hughes v. Teamsters, Local 683, 554 F.2d 365, 367-68 (9th Cir.1977) (per curiam). I do not find these cases persuasive. In both Peterson and Hughes, the past acts in question all occurred within the applicable statute of limitations period. Peterson, 676 F.2d at 83; Hughes, 554 F.2d at 366— 67. Castaneda merely remanded the case back to the district court to reconsider the claims in light of Hughes. 648 F.2d at 618. In the principal case, all the alleged discriminatory acts of Green and Mead unquestionably occurred outside the six month period.

An analogy can be drawn to the “continuing violation” theory often used in Title VII cases. A past act of alleged employment discrimination “may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). Therefore, a Plaintiff claiming a continuing violation of Title VII must establish “a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discrimina-

tory system both before and during the [limitations] period.” Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C. Cir.1982) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (Supp.1979)). The fact that the victim of the discrimination continues his employment long after the past discriminatory act does not, by itself, extend the statutory period in which he can bring suit on that act. Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980); Evans, 431 U.S. at 558, 97 S.Ct. at 1889. In applying this Title VII theory to the principal claim of unfair representation, it is obvious that all of the allegations of arbitrary, discriminatory and bad faith conduct on the part of John Green and David Mead are irrelevant unless Plaintiff can prove, or in this ease, allege sufficient facts to establish a genuine issue in dispute as to, the unfairness of his union representation during the limitations period (i.e., the representation in his final grievance).

The Court has already held that the Union Defendants did not breach their duty of fair representation in representing Plaintiff in his grievance arising out of his June 1983 discharge. Furthermore, Plaintiff does not allege any other breaches of this duty within the six month statute of limitations period. For this reason, the Court grants summary judgment in favor of the National Union and Local 307 on Count III of Plaintiffs complaint.

III. USPS’ MOTION

The USPS has also moved for summary judgment on Plaintiff’s claim for breach of the employment contract brought under 39 U.S.C. § 1208(b). If this was a traditional hybrid Section 301/unfair representation case, the Court’s grant of summary judgment in favor of the Union on the representation claim would compel the grant of summary judgment in favor of the employer on the contract claim. This is because an employee’s ability to maintain a cause of action for discharge in breach of a labor contract is predicated on his ability to demonstrate that his union breached its duty of fair representation. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570-71, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976). The result is the same when the employer is the United States Postal Service and the action is brought under Section 1208(b). Abernathy v. United States Postal Service, 740 F.2d 612, 617 (8th Cir. 1984); Melendy v. United States Postal Service, 589 F.2d 256, 260 (7th Cir.1978); see generally supra note 1. Therefore, summary judgment is granted in favor of the USPS on Count II of Plaintiff’s complaint.

An appropriate judgment order will be entered forthwith.

      . Actually, Count II was pled as a violation of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. However,"all parties agree that the claim is properly brought under 39 U.S.C. § 1208(b). Section 1208(b) is the Postal Service’s analog to Section 301, and Section 301 precedent is applied in Section 1208(b) cases. Bowen v. United States Postal Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983).

      . Count III originally alleged claims against two additional individual Defendants, John R. Green and David Mead. Pursuant to stipulation, the claims against these individuals were dismissed on September 23, 1985.


author: CARRIGAN, District Judge.

text:
    Deborah S. TOLBERT, Plaintiff, v. MARTIN MARIETTA CORPORATION, Defendant.
    Civ. A. No. 83-C-1465.
    United States District Court, D. Colorado.
    Nov. 15, 1985.

      Jack Wesoky, Englewood, Colo., for plaintiff.
    John Webb, Denver, Colo., for defendant.
   MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

The plaintiff, a secretary at Martin Marietta Aerospace, while on her way to lunch within the facility, was assaulted and raped by Arthur Martinez, a Martin Marietta janitor. She has sued Martin Marietta, alleging that it negligently hired the assailant, and negligently failed to make its premises reasonably safe for employees. Plaintiff claims that Martin Marietta knew or should have known that Martinez had a record of past behavior indicating that he might assault or rape persons on its premises. Jursidiction is grounded on diversity of citizenship. 28 U.S.C. § 1332.

Martin Marietta previously filed a motion to dismiss on the ground that worker’s compensation is the plaintiff’s exclusive remedy. I denied that motion because there were factual issues to be resolved before it could be decided. Discovery now has been conducted, and Martin Marietta has filed a motion for summary judgment asserting the same ground. Plaintiff has not contended that there are disputed issues of material fact nor have I discovered any. The case, therefore, is ripe for resolution of the summary judgment motion.

The sole issue is whether the Colorado Workmen’s Compensation Act (“the Act”), Colo.Rev.Stat. 8-40-101 et seq. (1973 and 1984 Cum.Supp.), covers the plaintiff’s injury. If it does, worker’s compensation is her exclusive remedy and this tort action is barred. Colo.Rev.Stat. 8-42-102 (1974 Cum.Supp.). Plaintiff asserts that her injury is not covered by worker’s compensation, presumably because she expects that a tort action would yield a larger recovery. Martin Marietta, on the other hand, apparently is willing to pay the worker’s compensation award to avoid risking a large tort verdict.

Whether worker’s compensation is invoked as a defense by an employer or as the basis of a claim by an employee the test of applicability is the same. Compensation is to be awarded, and thus the tort remedy is abolished, if the statute’s list of conditions are all met. Thus, worker’s compensation applies:

“(a) Where, at the time of the injury, both employer and employee are subject to the provisions of said articles and where the employer has complied with the provisions thereof regarding insurance;
(b) Where, at the time of the injury, the employee is performing service arising out of and in the course of his employment;
(c) Where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of his employment and is not intentionally self-inflicted.” Colo.Rev. Stat. 8-52-102 (1974 Cum.Supp.) (Emphasis added.)

Here it is undisputed that condition (a) is met, and condition (b) does not appear to be seriously disputed. Thus the issue is whether the injury “arose out of and in the course of” the plaintiff’s employment within the meaning of subsection (c). Although the injury did arise in the course of her employment, the plaintiff contends that it did not “arise out of” the employment. The “arising out of” condition creates a prerequisite that there be some causal relationship between the employment and the injury.

Courts have interpreted the “arising out of” language in a number of different ways and have developed different tests of causality. Because the injury occurred in Colorado and the Colorado Workmen’s Compensation Act is to be construed, the Colorado test of causation must be applied in this diversity case.

Unfortunately, Colorado courts have not consistently applied any single test to determine whether an assault by a co-employee arises out of the employment relationship. The defendant argues that positional-risk analysis applies to categorize the case as one covered by compensation. The positional-risk doctrine has been defined thus by a leading authority:

“An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured____ This theory supports compensation, for example, in cases of stray bullets, roving lunatics and other situations in which the only connection of the employment with the injury is that its obligations placed the employee in the particular place at the particular time when he was injured by some neutral force, meaning by ‘neutral’ neither personal to the claimant nor distinctly associated with the employment.” 1 Larson, Workmen’s Compensation Law, § 650 at p. 3-5.

Invoking this rule, Martin Marietta asserts that the plaintiff’s injury is covered by Colorado worker’s compensation because: (1) her employment placed her within the building where she was injured, and (2) the assault was a “neutral” force within the above definition.

Defendant further relies on Industrial Commission v. Ernest Irvine, Inc., 72 Colo. 573, 212 P. 829 (1923), a case in which a car salesman was mistakenly shot and killed by a friend as he was parking a “demonstrator” car belonging to his employer in his friend’s garage in order to protect the car from freezing. The Colorado Supreme Court there upheld an award of worker’s compensation, affirming the Commission’s conclusion that the injury “arose out of” the employment because the employment subjected the decedent to a risk not common to the general public. In Ernest Irvine, Inc., however, the result turned on the Commission’s specific findings that “the decedent was killed while performing (job) duties ...” and that “he was shot while attempting to take care of his employer’s property.” Id. 212 P.2d at 831. In contrast, the rape here was not causally related to any employment duties being performed by the plaintiff when she was assaulted, for she was performing none.

Ernest Irvine supra, applied the “increased-risk” test of causality. Under the increased-risk test, compensation is awarded only if the employment increases the worker’s risk of injury above that to which the general public is exposed. See 1 Larson, Workmen’s Compensation Law, § 6.30 at p. 3-4. Thus, in Ernest Irvine, Inc. the Colorado court held,

“The hazard out of which arose the injury which caused the death ... was not common to the general public, the injury would not have occurred but for his employment, and the act being performed by him was within the scope of his duties. He was doing the duty which he was employed to perform, hence received the injury ‘in the course of,’ the employment; a reasonable person familiar with the entire transaction on that evening would have contemplated the result as probable from the exposure occasioned by the nature of the employment, hence the injury ‘arose out of’ the employment.”

It is apparent that if Colorado presently applies the “increased risk” analysis, the instant plaintiff would not be covered by worker’s compensation. Certainly her employment as a secretary within a secured defense facility would not be expected to increase her risk of sexual assault above that to which women in the general public are exposed.

Colorado first applied “positional-risk” analysis four years after Ernest Irvine, Inc. was decided. Aetna Life Insurance v. Industrial Commission, 81 Colo. 233, 254 P. 995 (1927).

In Aetna Life the court upheld an award of compensation to a farmhand who was struck by lightning while returning from working on a neighbor’s farm. The court there formulated the “positional-risk” test as follows:

“When one in the course of his employment is reasonably required to be at a particular place at a particular time and there meets with an accident, although one which any other person then and there present would have met with irrespective of his employment, that accident is one ‘arising out of’ the employment of the person so injured.” 254 P. at 996. (Emphasis added).

It can readily be seen that the “positional-risk” test provided substantially broader coverage of injuries than did the formerly applied increased-risk test. Unfortunately, the Colorado courts on several more recent occasions have departed from the “positional risk” test to impose a higher standard of causal relationship to the employment as the reason for denying worker’s compensation in assault cases. For example, in Industrial Commission v. Strome, 107 Colo. 54, 108 P.2d 865 (1960), worker’s compensation was denied to a claimant who had been hit on the head by a shovel wielded by a fellow employee. Strome adopted the rule that:

“Ordinarily assaults by co-employees cannot be considered as incidental to the employment and so an injury to an employee assaulted by a fellow workman does not generally arise ‘out of the employment.’
Injuries resulting from an assault may, however, be found to arise out of or in the course of the employment where the assault is one which might be reasonably anticipated because of the general character of the work, or of the particular duties imposed on the workman____” 108 P.2d at 865.

Notably, in Strome there was a greater causal link to the employment than is present here, for Mr. Strome was struck by a shovel, a work tool in the hands of a co-employee. Moreover, both the victim and assailant in Strome were apparently on duty, at the assigned work place, and performing tasks for which they had been hired. The Strome rule was reiterated in Wisdom v. Industrial Commission, 133 Colo. 266, 293 P.2d 967 (1956).

On the other hand, the plaintiff here alleges that no “condition or obligation” of her employment required her to go to lunch, or to take the route where she was walking when she was assaulted. She asserts that she was not on duty when attacked, nor was she performing any task on behalf of the employer. She was not at her usual assigned work place, or at any place where her job required her to be. Apparently it was a matter of indifference to the employer whether she chose to lunch at her desk, at the company cafeteria, or elsewhere.

Moreover, the parties here agree that the assault on Ms. Tolbert had no relation to her personal life. Prior to the assault, Tolbert and Martinez had had only the slightest contacts, and those were only at Martin Marietta. These contacts involved the plaintiff incidently seeing her assailant perform janitorial duties in her work area. When asked through interrogatory to describe “any facts or circumstances tending to show that the attack was directed against the plaintiff as opposed to any other woman who might have been present at the place and time of the assault,” the plaintiff answered that she was not aware of any such facts or circumstances.

Thus it is clear that the rape was neither distinctly associated with her employment, nor personal to her. It was a non-employment motivated act of wanton brutality directed at the plaintiff because she was a woman. There is nothing to indicate that any other woman — whether or not a Martin employee — who happened to be in the same area at the time of the attack would not have become the victim. Ms. Tolbert, on the other hand, might well have escaped unharmed had she chosen to lunch at her desk that day. It is clear that she was not raped because of the nature of her duties or the nature of her workplace environment, nor because of any incident or quarrel growing out of the work.

Here, too, the very nature of the tort is intensely personal rather than of the type one might expect to arise out of employment. Worker’s compensation was intended as a beneficient plan to provide financial help for workers who incur on-the-job injuries caused by job risks. In the broad sense, considering the policy and purpose of workers’ compensation, the rape of a worker is simply not the type of injury intended to be covered.

Moreover, the justification for making worker’s compensation an exclusive remedy, and requiring employees to give up their traditional negligence actions against their employers, was the rationale of tradeoff. The employee gave up the right to sue the employer in tort in exchange for the employer’s giving up the defenses of contributory negligence, assumption of risk and fellow servant liability. Serious state constitutional questions would have been presented had employees been forced to relinquish their vested and long-recognized common law tort remedies without receiving any concomitant benefits through requiring the employer to give up defenses. Yet here, if Tolbert is relegated to her worker’s compensation remedy, she will be deprived of her tort remedy without receiving any off-setting benefits, for the fellow servant rule, assumption of risk and contributory negligence could not have been invoked by an employer as defenses in tort cases like this one. Here the employer’s negligence allegedly occurred in the employment screening process. Plaintiff had nothing to do with that process; she could not have been charged with contributory negligence or assumption of risk absent some participation in the process.

The type of fault asserted by the plaintiff further distinguishes the instant claim from the kind of cases intended to be covered by worker’s compensation. Plaintiff here does not complain of injury through employer negligence in her work-place. Rather she complains that those in charge of pre-employment screening — of employment decisions at the management level— were careless in letting a potential rapist be employed. The core conduct from which the injury ultimately resulted is simply not — by its nature — the kind of employer conduct intended to be immunized from tort liability by the worker’s compensation scheme.

Both applicable Colorado precedent and sound rationale support holding that the worker’s compensation statute has not abolished the plaintiff’s tort claim in the circumstances here alleged. Adopting this position has the additional advantage of providing employers an incentive to make reasonable efforts to screen prospective employees so as to avoid hiring rapists or those having the identifiable characteristics of potential rapists. Tort law does not impose strict liability — far from it; the plaintiff has the burden of showing negligence, causation, and damages. Women in the workplace are surely entitled to at least the protection of reasonable care where a prospective employee’s available past record indicates a substantial foreseeable risk that, if employed, he may rape some woman he encounters on the employee’s premises.

The defendant’s motion for summary judgment is denied.


author: WEXLER, District Judge.

text:
    Nicholas SILANO, Petitioner, v. UNITED STATES of America, Respondent.
    No. CV 84-4906.
    United States District Court, E.D. New York.
    Nov. 15, 1985.

      Nicholas Silano, pro se.
    Raymond J. Dearie, U.S. Atty. by Catherine E. Palmer, Asst. U.S. Atty., Brooklyn, N.Y., for respondent.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

In 1982, petitioner Nicholas Silano was tried and convicted of conspiracy to import marijuana, importation of marijuana and possession with intent to distribute. 21 U.S.C. §§ 963, 952 and 841. He was sentenced to three concurrent four-year terms of incarceration, a fine of $5,000.00, and two concurrent special parole terms of five years. His co-defendant, Joseph Frank, was also convicted after trial, but his sentence of three concurrent four-year terms of imprisonment was suspended to three months imprisonment and three years of special parole.

After judgment of conviction Mr. Silano’s attorney filed an appeal to the U.S. Court of Appeals for the Second Circuit, which affirmed the conviction, and then a petition for a writ of certiorari to the U.S. Supreme Court, which was denied. Next, a motion for a new trial was made to the district court. This was denied after an evidentiary hearing.

Petitioner now seeks a writ of habeas corpus, 28 U.S.C. § 2255. He contends that judgment and sentence should be vacated because he received ineffective assistance of counsel. Mr. Silano’s ground for alleging ineffective assistance of counsel is his attorney’s failure to act on his request that a motion for reduction of sentence be made on his behalf pursuant to Rule 35(b), Fed.R.Crim.P. According to the Assistant United States Attorney, the 120-day period for a Rule 35(b) motion ended on or about October 18, 1983. The petition for habeas corpus relief was not filed until December 1984. In any event, Mr. Silano’s stated bases for a Rule 35(b) motion are that his father is ill, the sentence is severe relative to his involvement in the crime, and “his state case and other factors, including events which have transpired since he was sentenced, ... are significant and could result in a reduction of sentence” (Petitioner’s Memorandum of Law).

It is settled that a convicted federal criminal defendant cannot use the habeas corpus statute, 28 U.S.C. § 2255, in place of a motion to reduce sentence properly sought under Rule 35(b), Fed.R.Crim.P. United States v. Patterson, 739 F.2d 191, 196 (5th Cir.1984). Petitioner has avoided that bar by claiming ineffective assistance of counsel at a level sufficient to justify vacating his sentence and re-sentencing him to what he apparently hopes will be a reduced sentence.

Recently, Judge Getzendanner of the U.S. District Court for the Northern District of Illinois addressed the same issue. In an unpublished opinion in James Smith v. United States, No. 80 CR 545, (N.D.Ill. Jan. 2, 1985), Judge Getzendanner, after a thorough and well-reasoned discussion, concluded that counsel’s failure to act on a criminal defendant’s request that counsel move for reduction of sentence under Rule 35(b), Fed.R.Civ.P., does not constitute ineffective assistance of counsel for purposes of 28 U.S.C. § 2255. The Court is persuaded by the reasoning and holding of that case. As the Smith case is not published, the Court here recapitulates much of Judge Getzendanner’s reasoning.

First, the Court notes that the 120-day limit for filing a Rule 35(b) motion is jurisdictional and cannot be waived or extended. United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242-43, 60 L.Ed.2d 805 (1979). The question, then, is whether by in effect waiving petitioner’s opportunity to ask for a reduction of sentence, counsel’s action has “actually had an adverse effect on the defense” of petitioner. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). Under the Strickland analysis there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 2068.

Mr. Silano argues that he need not show the probability of a different result. He relies on a line of cases holding that counsel’s failure to appeal a conviction or sentence, or inform defendant of his right to appeal is itself ineffective assistance and no showing of probable success on appeal is necessary. E.g., Collins v. United States, 418 F.Supp. 577, 580-82 (E.D.N.Y. 1976) (and cases cited therein). At the foundation of this holding is the principle that appeal from a judgment of conviction in the federal courts is a matter of right. Coppedge v. United States, 369 U.S. 438, 441-42, 82 S.Ct. 917, 919, 8 L.Ed.2d 21 (1962). In contrast, an application for reduction of sentence under Rule 35(b), Fed. R.Crim.P., is a plea for leniency addressed to the district court’s discretion. E.g., Shraiar v. United States, 736 F.2d 817, 818 (1st Cir.1984). As such, it is not analogous to an appeal as of right, but is analogous to a discretionary review. See, e.g., Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982). Therefore, failure of counsel to file timely a Rule 35(b) motion is not in itself ineffective assistance of counsel. United States v. Hamid, 461 A.2d 1043 (D.C.1983), cert. denied 464 U.S. 1046, 104 S.Ct. 718, 79 L.Ed.2d 180 (1984).

Mr. Silano would base his Rule 35(b) motion on his father’s illness, other unspecified circumstances, and the severity of his sentence. The first two grounds are clearly pleas for leniency. As petitioner’s sentence is within legal limits, reduction based on the severity argument is also an act of leniency discretionary with the Court. Obviously, where granting a motion is discretionary with the Court reasonable probability of success is a matter of speculation. There can be no contention that the Court probably would have granted Mr. Silano’s Rule 35(b) motion had counsel filed it timely.

Nevertheless, this ignores the more important point. Where review is discretionary no Sixth Amendment right to counsel attaches. Wainwright v. Toma, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475. Therefore, Mr. Silano had no right to the assistance of counsel for a Rule 35(b) motion, much less a right to effective assistance. Id.; Smith v. United States; No. 80 CR 545 slip. op. at 7, (N.D.Ill. Jan. 2, 1985); United States v. Hamid, 461 A.2d 1043 (D.C.1983), cert. denied 464 U.S. 1046, 104 S.Ct. 718, 79 L.Ed.2d 180 (1984). Thus, counsel’s failure to move for a reduction of sentence did not violate Mr. Silano’s Sixth Amendment rights.

In light of the foregoing discussion, the Court concludes that counsel’s failure to file timely a motion for reduction of sentence pursuant to Rule 35(b), Fed.R. Crim.P., does not rise to the level of a violation of constitutional rights. Accordingly, Mr. Silano’s petition for a writ of habeas corpus, 28 U.S.C. § 2255, is denied.

The Clerk of the Court is hereby directed to enter judgment in favor of the respondent and denying the petition for habeas corpus.

SO ORDERED.

      . Docket No. CR 81-609 (E.D.N.Y.).