author: FRYE, District Judge.

text:
    Glenn PANNELL, Plaintiff, v. WANKE PANEL CO., dba Wanke Cascade Co., and Warehousemen’s Union Local No. 206, Defendants.
    Civ. No. 84-651.
    United States District Court, D. of Oregon.
    Jan. 9, 1985.

      Richard Baldwin, Baldwin & Brischetto, Portland, Or., for plaintiff.
    Carrell Bradley, Schwenn, Bradley, Batchelor & Brisbee, Hillsboro, Or., for defendant Wanke Panel Co.
    Paul Hays, Carney, Buehley & Kasameyer, Portland, Or., for defendant Ware-housemen’s Union No. 206.
   ORDER

FRYE, District Judge.

Plaintiff, Glenn Pannell, brought this- action in Multnomah County Circuit Court against defendant, Wanke Panel Co. (Wanke). The complaint states that Pannell suffers from diabetes mellitus and hyperactive thyroid. Pannell alleges that Wanke discharged him because of his disability in violation of state law, failed to make reasonable accommodation before discharging him, and wrongfully discharged him for a socially undesirable motive. The action was removed to U.S. District Court upon petition of the defendants.

In the matter before the court Wanke moves for summary judgment in its favor on the grounds that no genuine issue of material fact exists and Wanke is entitled to prevail as a matter of law pursuant to Fed.R.Civ.P. 56.

UNDISPUTED FACTS

Pannell worked for Wanke from April 1976 to January 27, 1984. Pannell was first diagnosed as diabetic in 1976 and as hyperthyroid in 1974. Ken Jacobs, Wanke’s warehouse supervisor, had known of Pannell’s diabetic condition since 1979 or 1980, and of the hyperthyroid condition for about a year prior to Wanke’s being discharged. Brian Radditz, Wanke’s company president, had known of Pannell’s condition for three or four years prior to Wanke’s being discharged.

Pannell worked as a warehouseperson for Wanke. Pannell’s duties were to take orders from the shipping office, pull the ordered merchandise from the store inventory in the warehouse, label it properly, deliver the order to the shipping office for appropriate distribution and occasionally to load merchandise on a truck. Different types of heavy equipment were used in his position including forklift, open moving belts, carpet rolling machine, rolling table saws to cut linoleum, a formica saw. This equipment contains sharp blades and saws and is potentially dangerous if not handled properly. At one point, Pannell worked as a shipping clerk, an inside job which did not require him to operate heavy machinery, but he found the position too stressful and was moved back into the warehouse at his own request.

Beginning in March, 1983, Pannell suffered the first in a series of hypoglycemic reactions in the warehouse. During these seizures, which came without warning, Pannell would be beyond his own physical control and beyond the ability of others to control him. Pannell had three of these seizures in 1983 and one in January, 1984. After the January episode, Jacobs requested and received a release from Pannell so that he could review Pannell’s medical records. Jacobs met with Wanke’s physician who felt that Pannell’s condition was controllable.

On January 27, 1984, three days after the last hypoglycemic episode, Pannell and Jacobs had a disagreement over Pannell’s request to leave work early for a doctor’s appointment. The parties descriptions of the incident differ. Wanke issued a letter of termination to Pannell on January 27, 1984, indicating that he was fired but that the decision was subject to reconsideration if Pannell could provide medical facts that clearly state his ability to perform normal duties as a warehouseperson. The discharge was reviewed by Wanke, but Pannell was not reinstated.

ANALYSIS AND DISCUSSION

Pannell contends that he was wrongfully and discriminately discharged because of his physical handicap. Wanke contends that Pannell’s discharge was not a result of discrimination because of his handicap but the result of events which occurred on the job which made it impossible for Wanke to retain Pannell as an employee. Wanke contends that because of a series of uncontrollable diabetic reactions, Pannell was not able to perform the duties of his employment safely and efficiently, without risk of harm to himself, his co-workers and the general public. Wanke asserts that Pannell’s duties as a warehouseperson require him to operate and to function in proximity to a good deal of potentially dangerous equipment. Wanke asserts that the structure and configuration of the warehouse area itself, with its power tools and equipment, large stored rolls of linoleum, unprotected loading dock and its sample loft presents a significant safety hazard to Pannell. Wanke asserts that no further reasonable accommodation can be made to negate the danger.

Pannell contends that his hyperthyroid condition was temporary in nature; that the resulting hypoglycemic reactions were manageable; and that Wanke did not implement an effective plan to manage the reactions. Pannell asserts that Wanke rejected assurances from Pannell and Dr. Andrews that he was doing his best to control his condition, failed to make reasonable accommodation to assist Pannell in controlling his condition; and pressured Pannell concerning his reactions at work.

Oregon law protects a handicapped person from discrimination by an employer because of a physical impairment which, with reasonable accommodation, does not prevent the performance of the person’s work. ORS 659.425 (1) provides:

“For the purpose of ORS 659.400 to 659.435, it is an unlawful employment practice for any employer to refuse to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, conditions or privileges of employment because:
(a) an individual has a physical or mental impairment which, with reasonable accommodation by the employer, does not prevent the performance of the work involved.”

In order to be able to perform work, a handicapped individual must possess the ability to perform the job safely and efficiently with reasonable accommodation and without present risk of probable incapacitation OAR 839-06-225. An employer may discharge a handicapped employee because of the defect only where there is a probability either that the employee cannot do the job satisfactorily or that the employee can do the job only at the risk of incapacitating himself. Montgomery Ward v. Bureau of Labor, 280 Or. 163, 168, 570, P.2d 76 (1977).

The dispositive issue in this action is Pannell’s ability to perform his work safely, that is, whether Pannell was a danger to himself or whether he enhanced the risk of injury to others on the job. In order to prevail in this motion, Wanke must show that there is no genuine issue of fact remaining as to Pannell’s inability to perform his job duties without danger to himself and/or his co-workers.

CONCLUSION AND RULING

Regardless of whether Pannell’s condition was controllable, the court finds that his condition was not under control in the period at issue here. Wanke made several efforts to accommodate Pannell’s condition including transfering him to a less hazardous workplace, and modifying his warehouse position to not require him to operate a forklift, and attempting to accommodate Wanke’s eating requirements. The court finds that Wanke made reasonable accommodations.

Wanke was aware of Pannell’s handicap well before the episodes of uncontrollable behavior became a problem. The court finds that Pannell was not discharged in response to his disability but in response to the uncontrollable behavior that resulted. Wanke had a reasonable basis to conclude that Pannell could not perform his job duties without probability of harm to himself and to others.

Defendant Wanke’s motion for summary judgment is GRANTED.

      . Pannell remembers little of the incidents; however, Jacobs testified that Pannell would act violently uncontrollable requiring physical restraint.


source: Caselaw Access Project

author: GASCH, District Judge.

license: Public Domain

text:
    John W. CHILDRESS, Plaintiff, v. NORTHROP CORPORATION, et al., Defendants.
    Civ. A. No. 84-2510.
    United States District Court, District of Columbia.
    Jan. 15, 1985.

      John W. Childress, III, pro se.
    Joseph F. Cunningham, Washington, D.C., for defendant Northrop Corp.
    William J. Dean, Atty., U.S. Dept, of Justice, Washington, D.C., for defendant Egger.
   MEMORANDUM

GASCH, District Judge.

I. BACKGROUND

Plaintiff John W. Childress, III, filed this action against defendants Northrop Corpo-

ration (“Northrop”) and Commissioner Roscoe L. Egger, Jr. of the Internal Revenue Service (“IRS”) on August 15, 1984. The complaint asserts that jurisdiction is based upon the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). The essence of Mr. Childress’ claim against Northrop seems to be that Northrop issued fraudulent W-2 statements to plaintiff and to the IRS in February of 1978 that falsely claimed Mr. Childress had received $8,000 more in compensation than was in fact paid him. Mr. Childress’ claim against the Government is that the actions of the IRS in pursuing assessment and/or collections activities against him were tortious and constitute a denial of his constitutional rights.

The case is now before the Court on dispositive motions filed by each of the parties. Defendant Northrop has filed a motion to dismiss on statute of limitations grounds. The Government has filed a motion to dismiss or, in the alternative, for summary judgment. In addition to opposing these motions, plaintiff has filed his own motion for summary judgment.

II. NORTHROP MOTION TO DISMISS

Defendant Northrop’s motion to dismiss is based on its assertion that plaintiff’s claims against it are barred by the statute of limitations.

Plaintiff filed his complaint on August 15, 1984. His complaint alleges that “[o]n or about February 1978, Northrop Corporation, willfully and knowingly issued W-2 statements to plaintiff and to the other defendant, the Internal Revenue Service of the United States of America, which were false.” Complaint II2. Northrop contends that the complaint alleges the commission of tortious acts more than six years before plaintiff filed his complaint and thus that the action is time barred whether the three year limitation period contained in the D.C. Code or the two year period in the FTCA controls.

In opposing Northrop’s motion to dismiss, Mr. Childress argues that Northrop’s alleged tortious conduct was not committed on a date certain but is a continuing tort that continues to this date. Thus Mr. Childress contends that he could not have been aware of the tortious nature of Northrop’s act in 1978 as he might well have presumed it to be á bookkeeping error. Instead, Mr. Childress maintains that the basis for the alleged tort is Northrop’s subsequent refusal to correct the W-2. His opposition and complaint indicate that he initially sought such a correction in 1979 and that he did so most recently in June 1984.

In making this argument, plaintiff appears to rely on the continuing tort exception to the operation of the statute of limitations. For example, in Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 987 (D.C.Cir.1973), the Court of Appeals for this Circuit held that a complaint of racial employment discrimination by an employer and a union constituted an allegation not merely of an early isolated refusal of employment (that would have been barred under the applicable statute of limitations) but a continued discriminatory hiring system which denied appellant the right of hiring opportunity on a nondiscriminatory basis. The Court viewed the initial refusal of employment as merely a single episode in the maintenance of that continuing conspiracy and noted that plaintiff had alleged that “a discriminatory hiring system continues to exist and continues to deny [minority applicants] jobs.” Id.

Defendant Northrop challenges the applicability of the continuing tort exception to this case. In doing so, defendant relies principally on Fitzgerald v. Seamans, 553 F.2d 220, 230 (D.C.Cir.1977), where the Court of Appeals declared that “the mere failure to right a wrong and make plaintiff whole cannot be a continuing wrong which tolls the statute of limitations, for that is’ the purpose of any lawsuit and the exception would obliterate the rule.” In that case plaintiff alleged that the Air Force’s decision to discharge him and its response to administrative proceedings requiring his reinstatement constituted a single continuing conspiracy. However, the Court rejected the claim of a continuing wrong as “general and conclusory.” Id. For example, the Court rejected plaintiff’s claim that the Defense Department's tortious conduct had continued when a private employer refused to hire plaintiff as a result of the Department’s hostile attitude toward plaintiff as the Court found plaintiff had failed to allege any “active steps to blackball him.” Id.

The Court finds defendant Northrop’s reliance on Fitzgerald and its argument that the continuing tort theory is not applicable to be persuasive. Even assuming, as plaintiff contends, that plaintiff might have thought that Northrop had only committed a bookkeeping error in 1978 and that Northrop’s actions first became tortious “in 1979” when Northrop refused to correct the W-2 form by issuing an amended form, the 1979 activities would have occurred three and one-half to four and one-half years before suit was filed. The only action the complaint alleges since that time is a failure to “issue amended returns despite requests.” This seems to represent the kind of “failure to right a wrong” that the Fitzgerald court recognized is not an exception to the statute rather than a case, as in Macklin, where specific acts occurred in furtherance of the original wrongdoing. See also Page v. United States, 729 F.2d 818, 821 n. 23 (D.C.Cir.1984) (“continuing-tort doctrine, which becomes relevant only when the tortious conduct is ongoing, is to be distinguished from the rule applicable when the plaintiff’s injury continues or is manifested after the tortious conduct has ceased” (emphasis supplied)); Collins v. United Air Lines, Inc., 514 F.2d 594, 595-96 (9th Cir.1975) (fact that employer refused discharged employee’s application for reinstatement does not render the initial discharge a continuing act since request for reinstatement merely seeks to redress original termination). This reasoning appears to be consistent with the basis for application of the continuing tort theory: that “no single incident in a continuous chain of tortious activity can ‘fairly or realistically be identified as the cause of significant harm.’ ” Page, 729 F.2d at 821-22 (quoting Fowkes v. Pennsylvania R.R., 264 F.2d 397, 399 (3d Cir.1959)).

III. GOVERNMENT MOTION TO DISMISS

Plaintiff’s complaint also includes allegations challenging actions of the Internal Revenue Service. Plaintiff alleges that the IRS “refused to verify that the W-2 submitted by Northrop Corporation was in error” and that it “confiscated the plaintiffs IRA [Individual Retirement Account] and checking accounts, filed liens against the plaintiff and confiscated tax refunds____” Complaint ¶¶7, 9. He alleges that the Government’s actions were “tortious” and “designed to deprive plaintiff of his civil rights, due process of law, emotional stability and economic freedom.” Id. at 118.

The Government has filed a motion to dismiss or, in the alternative, for summary judgment. In seeking dismissal, the Government maintains: a) that plaintiff has failed to name the proper defendant for the Government; b) that the Court lacks subject matter jurisdiction over plaintiff’s complaint since the FTCA excludes any claim “arising in respect of the assessment or the collection of any tax or customs duty ... ”; and c) that the claim is barred as plaintiff failed to file a timely administrative claim.

A. Failure to Name Proper Party

As the first ground for its motion to dismiss, the Government asserts that plaintiff failed to name the proper defendant for the Government. The caption of plaintiff’s complaint identifies “Hon. Roscoe L. Eggers, [sic] Jr., Internal Revenue Service” as the defendant. The text of the complaint repeatedly identifies the Internal Revenue Service as a defendant and does not refer to “Eggers.” See Complaint HU 7-13, 17. Paragraph one of the complaint states that it is filed pursuant to the Federal Tort Claims Act.

As the Government points out, a federal agency is not a proper defendant in a suit brought pursuant to the FTCA. Instead, such actions should be filed against the United States itself. See, e.g., Sprecher v. Graber, 716 F.2d 968 (2d Cir.1983) (FTCA authorizes suits only against the United States itself and not against its individual agencies). However, given the well established judicial policy of holding pro se complaints to less stringent standards in pleading, see, e.g., Haines v. Kemer, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), Alley v. Dodge Hotel, 501 F.2d 880, 883 (D.C.Cir.1974), it would seem harsh to dismiss the action on this basis. Were this the only defect in plaintiff’s action against the Government, the Court would allow plaintiff to seek leave to substitute the United States as a defendant. However, plaintiff’s claim must be dismissed on other grounds.

B. Exclusion of Claim from FTCA

As its next basis for dismissal, the Government relies on the exclusion from the FTCA contained in 28 U.S.C. § 2680(c) of claims “arising in respect of the assessment or collection of any tax____” Plaintiff claims that this provision is not applicable as his allegations of fraud, discrimination, and violation of the Fourth, Eighth, and Fourteenth Amendments are not part of efforts in respect of collection of tax.

It is well settled that the Federal Tort Claims Act is only a limited waiver of sovereign immunity and that the United States can be sued only to the extent that it has waived its immunity. See United States v. Orleans, 425 U.S. 807, 814-15, 96 S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976); Dalehite v. United States, 346 U.S. 15, 30-31, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953) (“interpretation of the Act ... starts from the accepted jurisprudential principle that no action lies against the United States unless the legislature has authorized it” (footnote omitted)). If one of the Act’s exceptions applies to a claim for relief against the Government, that claim cannot be maintained under the FTCA. Garbarino v. United States, 666 F.2d 1061, 1065 (6th Cir.1981).

Notwithstanding the broad sweep of plaintiff’s claims, the case law construing Section 2680 is clear that this retention of the Government’s sovereign immunity encompasses such tort and constitutional claims. As the Fifth Circuit stated in Capozzoli v. Tracey, 663 F.2d 654, 658 (5th Cir.1981), “Congress retained the United States’ sovereign immunity for any claim in respect o/the assessment or collection of taxes. This language is broad enough to encompass any activities of an IRS agent even remotely related to his or her official duties” (emphasis in original). Thus in Capozzoli, the Fifth Circuit held that a complaint claiming trespass and invasion of privacy by an IRS agent alleged to have “prowl[ed] about” and photographed a taxpayer in her nightclothes while on the taxpayer’s land without consent was barred by Section 2680. See also Heritage Hills Fellowship v. Plouff, 555 F.Supp. 1290, 1294 (E.D.Mich.1983) (Section 2680(e) “broad enough” to encompass allegation that United States libeled plaintiff regarding tax liability). Similarly in Mack v. Alexander, 575 F.2d 488, 489 (5th Cir.1978), a challenge to Internal Revenue Service action in levying on a bank account was held to be within the scope of this exclusion notwithstanding the claim that the levy violated plaintiff’s constitutional rights. See also Akers v. United States, 539 F.Supp. 831, 832-33 (D.Conn.1982) (in action against Government, claim that Internal Revenue Service levy violative of Fourth and Fifth Amendments barred by Section 2680(c)), aff'd, 718 F.2d 1084 (2d Cir.1983).

In light of the above, it is clear that the Court lacks subject matter jurisdiction over this case. Accordingly, the Court will grant the Government’s motion to dismiss all claims against the Government.

      . The Court heard Mr. Childress, who instituted this action pro se, and counsel for defendants on all these motions at a hearing held on November 30, 1984, beginning at 2:00 P.M. Seven minutes before that hearing began, Mr. Childress filed an application for a temporary restraining order without notice to the adverse party (the Internal Revenue Service), as well as a motion for preliminary injunction directed against the IRS. Mr. Childress did not inform the Court that he was seeking emergency injunctive relief during the hearing held on November 30.
      After reviewing Mr. Childress’ application for temporary restraining order and motion for preliminary injunction, the Court finds no new allegations beyond those raised in the motions that the Court heard on November 30. Plaintiff’s effort to seek such relief is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a), which expressly precludes the federal courts from granting injunctive relief "for the purpose of restraining the assessment or collection of any tax____” As the Supreme Court has noted, the purpose of this provision is the "protection of the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference.” Bob Jones University v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 2046, 40 L.Ed.2d 496 (1974). The action does not fall within any of the exceptions to the Anti-Injunction Act. In addition, the Court finds that plaintiff has failed to meet the general requirements for obtaining such injunctive relief. For example, as is clear from the cases cited in this memorandum dismissing plaintiffs claim against the Government, it cannot be said that plaintiff has shown or could show a likelihood of success on the merits. See Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C.Cir.1958). Accordingly, plaintiff’s application for temporary restraining order and motion for preliminary injunction are denied.

      . D.C.Code Ann. § 12-301(8).

      . 28 U.S.C. § 2401(b).

      . Plaintiff also appears to rely on the equitable doctrine of fraudulent concealment which recognizes “where a plaintiff has been injured by fraud and ‘remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute [of limitations] does not begin to run until the fraud is discovered____’ ” Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946) (quoting Bailey v. Glover, 88 U.S. (21 Wall.) 342, 348, 22 L.Ed. 636 (1874)). Courts have held that this doctrine is to be read into every federal statute of limitations as well as the District of Columbia's limitations statute. See, e.g., Fitzgerald v. Seamans, 553 F.2d 220, 228 (D.C.Cir.1977) ("Read into every federal statute of limitations ... is the equitable doctrine that in case of defendant's fraud or deliberate concealment of material acts relative to his wrongdoing, time does not begin to run until plaintiff discovers, or by reasonable diligence could have discovered, the basis of the lawsuit” (citations omitted)); King v. Kitchen Magic, Inc., 391 A.2d 1184, 1186 (D.C.1978) (where plaintiff alleges fraud, D.C. Code § 12-301(8) requires that suit be brought "within three years from the time the fraud either is discovered or reasonably should have been discovered”). Leaving aside when plaintiff in the exercise of diligence would have known of any tortious conduct by Northrop, here plaintiff's opposition makes clear that by 1979 he was aware of the conduct he alleges to have been fraudulent. Thus under plaintiff's own view of the facts the applicable statute of limitations would have begun to run in 1979. See infra note 6. In addition, plaintiff’s claim that the doctrine of fraudulent concealment is applicable is undermined by the fact that plaintiff alleges Northrop, in issuing the false W-2’s, sent a copy to plaintiff himself in 1978. Thus it is difficult to see how plaintiff can claim that he was "prevented from ascertaining the facts or induced to refrain from filing suit” by Northrop. See Doolin v. Environmental Power Ltd, 360 A.2d 493, 497 (D.C.1976); see abo Adrian v. American Security & Trust Company, 211 A.2d 771 (D.C.1965) (unless plaintiff can establish willful concealment of tortious act with intent to deceive plaintiff, doctrine of fraudulent concealment not applicable and statute of limitations starts to run from the time the alleged wrongful act was in fact committed).

      . Plaintiff A. Ernest Fitzgerald had been Assistant Secretary of the Air Force for Financial Management. He alleged that he was discharged after revealing possible cost overruns on the C-5A transport plane.

      . Plaintiff contended in his written opposition to Northrop’s motion that Northrop’s actions first became tortious "in 1979.” See Statement of Points and Authorities [in Opposition to Motion of Defendant Northrop’s Motion to Dismiss] at 2 (“The action did not become tortious until Northrop refused to correct the W-2, initially in 1979 and continuously to date.”). As discussed above, even if plaintiff is correct that 1979 was the point at which the cause of action accrued, the claim is still barred by the statute of limitations.
      At the hearing on the Northrop motion to dismiss held on November 30, Mr. Childress took a different approach, arguing that the tort did not accrue until the Internal Revenue Service took steps in 1981 that demonstrated to plaintiff that the IRS was unwilling to accept his explanation with regard to the $8,000 and would not require Northrop to clarify the matter. However, the Court rejects plaintiff’s claim that a determination as to when defendant Northrop’s actions became tortious turns on the actions of the Government. Plaintiffs opposition and complaint make clear that he was aware of Northrop’s actions in allegedly overreporting his income in 1978 and that he was satisfied that Northrop acted with fraudulent intent in 1979. The fact that he felt a greater urgency in resolving the matter with Northrop after he realized that the IRS might initiate assessment proceedings against him does not mean that Northrop’s actions did not become tortious until that later point.

      . This conclusion stems from a reading of 28 U.S.C. § 1346(b) with 28 U.S.C. § 2679. Section 1346(b) provides that district courts should have the exclusive jurisdiction over civil actions against the United States for money damages arising from tort claims. Section 2679(a) provides that federal agencies cannot be sued in their own names under Section 1346(b). Stewart v. United States, 503 F.Supp. 59, 61 n. 3 (N.D.Ill.1980), aff'd, 655 F.2d 741 (7th Cir.1981).

      . Because of the Court’s ruling that Section 2680 excludes plaintiffs claims from the scope of the Federal Tort Claims Act, the Court need not consider the Government's contention that plaintiff failed to file a timely administrative claim as required by 28 U.S.C. § 2675(a).
      The Court notes that in filing his opposition to the Government’s motion to dismiss, the plaintiff also stated that he was seeking summary judgment and attached what he characterized as a statement of material facts as to which there is no genuine issue. Even if the Court were not granting the motions of defendants discussed above, plaintiffs effort to obtain summary judgment would be without merit. First, although Federal Rule of Civil Procedure 56(c) provides for summary judgment to be decided on the basis of “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits," the only such materials in this case are plaintiff’s complaint and the affidavit submitted by the Government concerning the Government’s contention that plaintiff failed to file an administrative complaint. Thus it is impossible on the basis of such a limited record to say that no genuine issue of fact exists. Second, to the extent that plaintiff’s list of material facts is merely a recitation of the facts he contends that defendants have failed to deny in making their motions to dismiss, it should be noted that Federal Rule of Civil Procedure 12(a) provides that an answer denying these facts which plaintiff asserts give rise to liability need not be filed until ten days after motions to dismiss have been ruled on. Obviously, there was no ruling on the two motions to dismiss filed by defendants in this case prior to the issuance of this memorandum and the order accompanying it.


author: DAUGHERTY, District Judge.

text:
    Tony Michael JULIEN, Plaintiff, v. Larry MEACHUM, Defendant.
    No. CIV-84-2414-D.
    United States District Court, W.D. Oklahoma.
    Jan. 30, 1985.

      Tony Michael Julien, pro se.
    Michael C. Turpén, Atty. Gen. of Okl. by F. Andrew Fugitt, Asst. Atty. Gen., Oklahoma City, Okl., for defendant.
   OPINION AND ORDER

DAUGHERTY, District Judge.

The Plaintiff has filed a civil rights Complaint in forma pauperis under the provisions of 42 U.S.C. Sec. 1983 to attack a condition relating to his confinement at the Lexington Correctional Center, Lexington, Oklahoma. The Court has ordered an investigation and Special Report in accordance with Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978), and a verified Special Report has been filed which provides factual explication to the Plaintiff’s claims. Plaintiff’s Complaint includes the following counts:

“Count I: The raising of plaintiff’s security because of an escape that occured [sic] in 1977 is ex post facto in that it imposes a punishment on plaintiff that was not in effect at the time of his escape or his recapture.
Count II: The raising of plaintiff’s security because of the escape that occured [sic] in 1977 constitutes double jeopardy because plaintiff had already served his sentence for said escape.
Count III: Because of the raising of plaintiff’s security, plaintiff is being denied entrance into programs that are available to other inmates serving the same amount of time, in violation of the equal protection clause of the Fourteenth Amendment.
Count IY: Because of the raising of plaintiffs security, plaintiff is being denied entrance into programs that are considered favorable towards making parole. Therefore, raising plaintiff’s security increases the amount of time plaintiff will be incarcerated without due process of law in violation of the Fourteenth Amendment.
Count V: The raising of plaintiff’s security from medium to maximum was due solely to the results of a disciplinary hearing held at the Oklahoma State Reformatory on February 3, 1984, resulting in plaintiff being punished without due process of law in violation of the Fourteenth Amendment.”

Upon preliminary review of this proceeding, the Court finds and concludes as follows:

I.

The record reflects that on September 21, 1983 the Plaintiff was reclassified under the security assessment procedure and was assessed a total of fourteen security points which is further categorized as maximum security. In accordance with the security assessment procedure, the Plaintiff was “grandfathered” to a medium security rating as provided in the inmate classification system, as revised, Operations Manual OP-060101 (Attachments B, D, Special Report). Prior to September, 1983 the Plaintiff received a two year sentence for escape which sentence was ordered to run concurrently with a sentence for second degree murder. (Attachment C, Special Report). In February 1984 the Plaintiff was found guilty of escape from the Oklahoma State Reformatory and as a result of the foregoing, Plaintiff has a current security rating of medium or above which renders him ineligible for certain programs including honor farms, work release, study release, and trustee status. Further investigation reveals the Plaintiff was subjected to a disciplinary hearing wherein he was found guilty of escaping on February 1, 1984 in accordance with Operations Memorandum for Disciplinary Procedures which provides comprehensive due process guidelines for hearings on rule violations. (Operations Memorandum OP-060401, Exhibit J, Special Report).

A comprehensive and uniform classification system has been adopted by the Oklahoma Department of Corrections utilizing objective criteria in the Operations Memorandum OP-060101 dated January 3, 1983, Subject: Inmate Classification and Case Management. (Attachment D, Special Report). This system assigns points for such factors as the nature of the offense, consecutive or concurrent violent offenses, total length of incarceration, prior incarcerations, escape history, aggravating circumstances associated with escape, and current behavior, program participation, and work performance. The culmination of the classification committee security assessment process is a security assessment score sheet, and although the points determine the security grade, the committee may exercise its discretion within guidelines which may or may not correspond to the score sheet grade. The Oklahoma Department of Corrections has been statutorily assigned the responsibility of classification of each inmate within said Department. 57 O.S. 1981 Sec. 521. The classification procedure exercised by the Department thereunder which includes the assignment of additional points to an inmate’s escape history, is a matter that is generally assigned to the sound discretion of the Institutional officials and any judicial review will only be concerned with whether said discretion has been exercised in an arbitrary or capricious manner. The Constitution does not require that a state have more than one institution to house its inmates nor does it guarantee that an inmate will be confined in any particular institution so long as the conditions or degree of confinement are not otherwise violative of the Constitution, and the Due Process Clause does not in itself subject classification procedures to judicial scrutiny. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). Further, it has been recognized that an inmate has no due process right to a hearing before change of classification even if the classification may result in a serious loss to the inmate. Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 279 n. 9, 50 L.Ed.2d 236 (1976).

The United States Constitution, art. I, sec. 9, cl. 3 prohibits Congress and the states from enacting any law which imposes a punishment for an act which was not punishable at the time it was committed or imposes an additional punishment to that then prescribed. The prohibition is deemed to be violated if the criminal or penal law is retrospective, the change effected is not merely procedural, and the offender is disadvantaged by its application. Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937); Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). It is the opinion of the Court that the changes in the security classification system are not “law” for purposes of ex post facto analysis since they were promulgated as procedural guidelines within the basic framework of the discretion of the Department of Corrections in assigning classifications and levels of security in connection with the responsibility to manage the inmates assigned to the Department. The statutory discretion assigned to the Department under Sec. 521, supra, confirms the flexible nature of the classification procedures that are necessary to prison administration. Rifai v. United States Parole Commission, 586 F.2d 695, 697-698 (9th Cir.1978); Ruip v. United States, 555 F.2d 1331, 1335-1336 (6th Cir.1977). Further, in exercising the necessary discretion under the classification procedure, it is certainly appropriate to assign security points to the propensity to escape as a necessary security consideration in prison administration, and the Plaintiffs prior record of escapes has been appropriately weighed in assigning his security classification. Seibert v. McCracken, 387 F.Supp. 275, 278-279 (E.D.Okla.1974). It has been recognized that the discretion assigned to the Director of the Department of Corrections empowers the removal of an inmate from the general population, and that he has no right to expect a particular classification. Twyman v. Crisp, 584 F.2d 352, 355-357 (10th Cir.1978).

Moreover, the Court notes that an Opinion and Order has been entered in this Court construing a related attack on the security classification system which resulted in a finding that accords with the facts herein that there were no constitutional violations thereunder. (Walker v. Oklahoma Department of Corrections, No. CIV-83-2363-R, Western District of Oklahoma, Opinion and Order filed February 27, 1984). The Court can find no arbitrariness or lack of factual basis in the exercise of discretion in the classification or disciplinary process or excessiveness of punishment that was not reasonably related to the legitimate institutional needs of safety and security.

II.

Accordingly, the Court finds that one of the essential elements for recovery under Sec. 1983 is not extant herein. That is, the Plaintiff has not shown that the Defendant deprived him of a right secured by the Constitution or laws of the United States. Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Wise v. Bravo, 666 F.2d 1328, 1331 (10th Cir.1981). In accordance with Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), the Court has construed the Plaintiffs allegations liberally and determines that Plaintiff can make no rational argument on the facts or law, and that the Complaint is legally frivolous in view of its lack of merit. Collins v. Cundy, 603 F.2d 825 (10th Cir.1979). Therefore, the Court finds that any appeal of this judgment in forma pauperis would be frivolous and not taken in good faith, and an appeal in forma pauperis is therefore denied. Fed.R.App.P. 24, 28 U.S.C.; Duhart v. Carlson, 469 F.2d 471 (10th Cir.1972), cert. denied, 410 U.S. 958, 93 S.Ct. 1431, 35 L.Ed.2d 692 (1973).

Accordingly, judgment will issue dismissing the Plaintiffs Complaint and the claims alleged therein.

IT IS FURTHER ORDERED that pending motions of the Plaintiff and Defendant are moot and are stricken under the special report procedures outlined in Martinez v. Aaron, supra.


author: JAMES McGIRR KELLY, District Judge.

text:
    STUDENT COALITION FOR PEACE v. LOWER MERION SCHOOL DISTRICT, et al.
    Civ. A. No. 84-1017.
    United States District Court, E.D. Pennsylvania.
    Jan. 31, 1985.
    Stephen F. Gold, Philadelphia, Pa., for plaintiff.
    Thomas A. Masterson, Philadelphia, Pa., for defendants.
   MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Presently before me is plaintiff Student Coalition for Peace’s (SCP) motion for reconsideration of the court’s denial of its petition for a permanent injunction. Student Coalition for Peace v. Lower Merion School District, 596 F.Supp. 169 (E.D.Pa.1984).

Plaintiff, in its motion for reconsideration, has brought to the court’s attention, the Equal Access Act, P.L. No. 98-377 (August 11, 1984). As there has been no judicial interpretation of this Act, the matter before me is one of first impression.

The plaintiff, SCP, a student organization, sought the use of one of four locations on school property for the site of an anti-nuclear war rally and peace exposition. The public was invited to attend this rally. The SCP sought one of the following locations: Lower Merion High School’s (LMHS) courtyard which surrounds the flagpole, Arnold Field, Pennypacker Field, or the LMHS Boys’ Gym. All four locations are owned by the defendant Lower Merion School District, a public school system. In my Memorandum and Order of September 28, 1984, 596 F.Supp. 169, in accordance with the United States Supreme Court opinion in Perry Ed. Assn. v. Perry Local Education Assn., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), I held that all four locations were not public or limited public forums. Further, I held that the defendants’ denial of the use of the parcels by the student group for a peace exposition was rationally related to a legitimate governmental interest and that the denial was not based upon an intent to censor a particular point of view or the content of the speech. Student Coalition for Peace v. Lower Merion School District, 596 F.Supp. at 175. (The defendants did not want the LMHS’s property to become a battleground of political thought for the community. Indeed, the plaintiff intends to invite the outside public to its exposition.)

The plaintiff contended at the hearing for a permanent injunction that because two of the locations desired had been used by other student groups, which also were permitted to invite the outside public, the defendants had converted these locations into public or limited public forums. For the sake of clarity here, I will reiterate my findings concerning these locations which are more fully set out at 596 F.Supp. 169 (E.D.Pa.1984).

(a) The LMHS’s courtyard, which surrounds the flagpole, and Pennypacker Field — have never been used for any non-school sponsored event. Id. at 173-174.

(b) LMHS Boys’ Gym — besides being a gymnasium, has been used for non-school sponsored events, but only by permission granted by the School Board. Id. at 174. The non-school sponsored events which have used the facility were primarily athletic and were initiated to raise funds for charity. However, although the fund raising events were non-school sponsored, student organizations were a force in establishing the events. The public was invited to attend the charity functions. Id. at 173-175.

(c) Arnold Field — has been used primarily by the school as an athletic field. Several times the school has permitted certain community oriented activities to take place on the field. These activities were primarily athletic activities, namely jog-a-thons and bike hikes, which were oriented to raising funds for various public charities. School students as well as the public were invited. Often times the students initiated these activities. Additionally, the school granted permission to the community to have its Memorial Day ceremonies on the field. Id. at 173-175. It must be noted, however, permission was not granted for every request made.

I turn now to the instant motion. Plaintiff contends that the Equal Access Act P.L. No. 98-377 (August 11, 1984) requires a finding of a limited public forum at the LMHS Boys’ Gym and Arnold Field.

The Equal Access Act states in pertinent part:

DENIAL OF EQUAL ACCESS PROHIBITED
Sec. 802(a). It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.
(b) A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.
(c) Schools shall be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum if such school uniformly provides that—
(1) the meeting is voluntary and student-initiated;
(2) there is no sponsorship of the meeting by the school, the government, or its agents or employees;
(3) employees or agents of the school or government are present at religious meetings only in a non-participatory capacity;
(4) the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school; and
(5) nonschool persons may not direct, conduct, control, or regularly attend activities of student groups.

The Lower Merion School District is a public school system which inevitably receives some federal financial funding. Therefore, the Equal Access Act would apply to the school district. Equal Access Act § 802(a), supra. The SCP is a student organization which is not school sponsored. A student group is not school sponsored when it does not receive funding or supervision from the school. Indeed, the SCP is a noncurriculum related student group, however, it is assigned a faculty advisor. The SCP has not been hindered in expressing itself within the school community on school property. Student Coalition for Peace, 596 F.Supp. 169, 170 (E.D.Pa.1984). The dilemma here is that the plaintiff SCP seeks to have a public peace exposition on the school property at one of the above named locations. Therefore, nonstudents will be invited to this peace exposition. The school district seeks to keep the general public from turning school property into a podium for political debate. Thus, it has denied plaintiffs request.

The plaintiff contends that because the school district has permitted other non-school sponsored activities (noncurriculum related, and initiated by students) which permitted the public to use Arnold Field and the LMHS Boys’ Gym, the defendants have created a limited open forum under the Equal Access Act. Moreover, the plaintiff argues that because it only requests that outsiders be permitted to attend one meeting annually (the peace exposition), the restriction expressed in the Equal Access Act that nonschool persons may not regularly attend, is complied with. Equal Access Act § 802(c)(5) supra.

Plaintiff interprets § 802(c)(5), supra, as to infer that since a meeting within the limited open forum does not permit regular attendance of nonstudents, but does not expressly forbid occasional or irregular attendance by nonstudents, attendance by nonstudents cannot be forbidden. Further, plaintiff argues that because the school district allowed nonstudent attendance at certain charitable functions which were activities promoted by nonschool sponsored student groups at the Boys’ Gym and Arnold Field, these two locations became limited open forums under the Equal Access Act. Specifically, plaintiff argues that § 802(b), supra, becomes operative at these two locations.

I do not read the statute broadly granting rights to outsiders, because of the express use of the limiting choice of the words used within the statute, namely, the word “student”. Furthermore, the statute expressly states: denial of equal access is forbidden to students where a limited public forum exists. § 802(a), supra. However, I do not believe that plaintiffs arguments are so strained as to end my search for the meaning of the statute here.

Accordingly, the debate in Congress during its evaluation of this statute must be examined and scrutinized so as to find the legislative intent of the statute. This must be done to determine whether or not the purpose of the statute is to alter the characterization of public property for first amendment purposes as was enunciated by the Supreme Court in Perry, supra, and most importantly in the instant matter, whether or not the Equal Access Act requires that a public secondary school which receives federal financial assistance must permit attendance of non-students in a limited public forum (as defined within the Equal Access Act) within the school. The discussion in the House of Representatives led to the following rather clear comment as expressed between two congressmen, one of which was the principal co-sponsor of the bill (Congressman Goodling):

Mr. PEPPER. Mr. Speaker, will the gentleman kindly tell me whether the student groups that may have this access are limited to the sudents of the particular school, or may students come in from other schools?
Mr. GOODLING. It is very definitely limited to the students in the school. The administration determines that.
They do not allow students to come in from other schools.
Mr. PEPPER. The language of the legislation does not say that.
Mr. GOODLING. I am sorry. I did not hear the gentleman.
Mr. PEPPER. The language of the legislation does not say that.
Mr. GOODLING. The language of the legislation says that all these decisions are local school board decisions. I do not know of any board that says that anybody who wants to come in from all over the world can just come in. We do not do that. We say that the local school district makes that decision and that determination, and that is protected.

130 CONG.REC. H7732 (daily ed. July 25, 1984).

Congresswoman Schneider, in expressing her support for the Equal Access Act stated in pertinent part: “... [Restrictions have been placed on the participation and attendance of outside individuals in these student meetings.” 130 CONG.REC. H7740 (daily ed. July 25, 1984).

During the discussion in the Senate of the Equal Access Act, much concern was expressed relative to whether or not the nonstudents would be permitted onto the school grounds. Pertinent to this discussion Senator Hatfield, a key promotor of the statute, stated:

We are not making it equal access to people outside of the schools. I have talked to people who took the phrase ‘equal access’ to mean that we were going to give equal access to every ... organization in the country to get into the schools. That is not it at all. It is purely a right of the students to have access to school facilities, to have meetings, when one or more make the request of the administration and within the context of the rules and regulations governing all school activities.
This sets no precedent of any special right, nor does it do other than give equal rights in that school, which is now being denied in many places.
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Those outsiders, if they participate at all, are to be under the same rules and regulations as any outsiders permitted on the school grounds and school facilities.

130 CONG.REC. S8337 (daily ed. June 27, 1984).

Another statement made during the discussion of this Statute in the Senate was:

... [U]nless the school generally allows outsiders to participate in student meetings on school premises, this amendment would not require the school to allow outsiders to participate in religious meetings.

130 CONG.REC. S8355 (daily ed. June 27, 1984) (Statement of Sen. Levin).

Indeed, here plaintiff argues that because the school district has allowed non-students to attend charitable events at Arnold Field and the Boys’ Gym, the school district has created a limited open forum. However, this specific matter was addressed in my September 28, 1984 Memorandum in this action. 596 F.Supp. 169 (1984). Moreover, the defendant school district has not permitted nonstudents to use the two facilities as a matter of general course. Permission to use Arnold Field has not been freely granted. Id. at 173. The defendant school district has kept close reins on the use of the Boys’ Gym by outsiders. Id. at 174. Other pertinent viewpoints expressed during the Senate discussion for the Equal Access Act are the following:

Nor does it [Equal Access Act] force a school to permit the indiscriminate incursion of any and all outsiders into the school premises.
H< H< H* H« H<
Moreover, it specifically does not authorize any school board to admit non-school personnel, ensuring that no automatic right of admission would be created for any outside individual, whether a cult leader or a mainstream minister.

130 CONG.REC. S8362-63 (daily ed., June 27, 1984) (Statement of Sen. Thurmond).

Finally, in the words of the chief senate sponsor: “... [Outsiders will gain no additional access rights to public schools.” 130 CONG.REC. S8349 (daily ed., June 27, 1984) (Statement of Sen. Denton).

From the discussion of the Equal Access Act in Congress, the intent seems to be one of codifying the Supreme Court’s opinion relative to those decisions concerning free speech on public school property. It was not the intent of Congress to expand the concept of a limited public forum as was characterized in Perry, supra; Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). Rather it was Congress’ intent to expand the application of the Supreme Court’s decision in Widmar to secondary schools.

The issue before the Supreme Court in Widmar was whether or not a state university which makes its facilities generally available for the activities of registered student groups, may close its facilities to a registered student group desiring to use the facilities for religious worship and religious discussion. Id. at 264-65, 102 S.Ct. at 271-72. Moreover, Congress, by enacting the Equal Access Act, further intended that the content of the speech which could not be discriminated against within the limited public forum to include: religious, political, philosophical, or other content of the speech at such meetings. Equal Access Act § 802(a), supra.

Senator Hatfield stated pertinent to this matter:

We could sit back and wait until some court case is appealed to the Supreme Court, and the Supreme Court, under the precedent of the Widmar case — I am not a lawyer, but I would predict that the Court would rule in the same way when it related to a secondary school.
... For those [schools] that do have [a limited open forum], what we are saying is that once this school establishes that forum, and borrowing from the Court in the Widmar case in the State of Missouri, once the school set up that forum, it should not discriminate as to the content of the speech in that forum.

130 CONG.REC. S8337, 8342 (daily ed. June 27, 1984).

Senator Levin stated relative to the expansion of the Widmar decision to public secondary schools:

Today the law is confusing and the school’s response to requests by students in different parts of the country varies depending upon the State’s interpretation of constitutional law. There is disagreement in the schools today about whether students can be permitted to meet and, if so, about how the school can honor such requests by students without offending the establishment clause. Because of the importance of free speech, we need to clarify the right of student initiated religious groups to be treated in a nondiscriminatory manner. At the same time, the pending amendment will provide clearer guidelines to school officials regarding how the religious free speech rights of students can be protected without impinging upon the establishment clause of the First Amendment. The safeguards established in the Hatfield amendment will ensure that school officials do not cross the line between accommodation of secondary student’s right to free speech and State-sponsored religion, which is prohibited by the first amendment.
I am persuaded that the pending amendment is constitutional in light of the Supreme Court’s decision in Widmar against Vincent. This amendment merely extends a similar constitutional rule as enunciated by the Court in Widmar to secondary schools. However, all we are doing here is passing a statute which will not supersede the U.S. Constitution. Ultimately, the courts will decide whether Widmar applies to secondary schools, and if so, whether the amendment before us is consistent with the first amendment. In the meantime, this amendment will clarify the law and require schools to adopt policies which do not discriminate against student-initiated religious speech. If we are to err, we should err on the side of guaranteeing that free speech is not stifled.
The Supreme Court has held in Widmar that once a university has opened its facilities for use by student groups, it cannot exclude specific groups because of the religious content of their speech. This amendment seeks to codify that principle at the secondary school level, with appropriate additional conditions thereby protecting the free speech rights of students.

130 CONG.REC. S8355 (daily ed., June 27, 1984).

Another chief supporter of the Equal Access Act in the Senate stated:

... [T]his bill seeks only to clarify and extend the law of that case [ Widmar ] a bit. The Court held in Widmar that a public university, the University of Missouri, which generally held its buildings open to student groups for meetings after classroom hours could not exclude from that policy a group of students who wanted to meet to talk about religion, and perhaps have a devotional.
}}£ Sj! S¡! SjC ifc Sfc
What we seek to do by this amendment is make clear that the same rule of law applies to students in our public secondary schools. The courts have never said that this is not the case, in fact they would probably agree with us if the proper case were before them. But the simple fact is that the Supreme Court had never had an equal access case involving secondary students.

130 CONG.REC. S8356 (daily ed. June 27, 1984) (remarks of Sen. Bumpers).

One other supporter of the Equal Access Act in the Senate stated:

It is now time for Congress to extend this protection [the ruling enunciated in Widmar ] to the public school systems of this nation.

130 CONG.REC. S8355 (daily ed., June 27, 1984) (remarks of Sen. Thurmond).

In Widmar, supra, the Supreme Court held that once a university opens its facilities to student organizations, it cannot regulate the content of the speech absent a compelling state interest. The Court further stated that the establishment clause is not offended by the mere discussion of religious topics by students within the limited public forum.

When a court evaluates the meaning of a statute, the proper analysis would dictate that the court examine the language of the statute. United States v. Rabb, 680 F.2d 294 (3d Cir.1982) cert. denied, 459 U.S. 873, 103 S.Ct. 162, 74 L.Ed.2d 135 (1982). Here the language of the Equal Access Act does not dictate that if a limited open forum is created for students on school property, as was the situation in Widmar, supra, that this limited open forum must include non-students under its umbrella of first amendment protection. The Equal Access Act specifically provides for the protection of certain types of speech within the school, where a limited public forum has been created. The Equal Access Act specifically states that nonstudents’ regular attendance may be excluded. § 802(c)(5). Conversely, it does not require that nonstudents be permitted to attend on an infrequent basis. Plaintiff interprets the Equal Access Act to the effect that it provides new expanded meaning to the status of a limited public forum. Plaintiff wishes this court to believe that the Equal Access Act would expand a limited public forum from one limited to students to one which would permit nonstudent attendance, if at some time nonstudents were permitted to attend some school activities, albeit, under conditions that required specific school permission.

When a court examines the intent of a statute, it will view the subjective intention of the legislature which enacted it. Brigham v. United States, 539 F.2d 1312 (3d Cir.1976) (The Court will view not only the language of a statute but also its intent). United States v. Rabb, supra. (Although the literal meaning of the words chosen by Congress is respected, the court no longer follows a rigid, semantic approach to statutory construction, lest the court construe a statute within its letter, but beyond Congress’ intent). After examining the extensive debate and discussion which Congress entertained, I cannot view the Equal Access Act as providing new and expanded constitutional rights of speech to a group not within the contemplation of Congress, namely outsiders or nonstudents. The Equal Access Act must be viewed in light of the hesitation many members of Congress had as they envisioned a stampede of nonstudents taking over the local schools under the cloak of being invited to attend student functions.

The plaintiff in the instant matter has argued that because on a few occasions nonstudents were permitted to attend charitable athletic events sponsored by non-school sponsored student groups, these parcels or locations in question have been converted to a limited public forum. This is incorrect. As was stated in my prior Memorandum and Order, 596 F.Supp. 169 denying the permanent injunction, these parcels in question (Arnold Field and the Boys’ Gym) are strictly regulated with permission not being freely granted. Id. at 173.

In conclusion, the Equal Access Act is not applicable to the narrow question raised by the plaintiff, namely, whether or not a school district may deny access to its facilities to a noncurriculum related student group which intends to invite nonstudents/the general public to its anti-nuclear rally and peace exposition where it has not been a policy or practice of the school to indiscriminately permit the use of the facilities in question to other noncurriculum related student groups which desired to invite nonstudents/the general public. Traditional constitutional analysis is applicable to the questions raised by the plaintiff. This analysis was applied in my prior Memorandum and Order denying the permanent injunction. 596 F.Supp. 169. Accordingly, plaintiff’s motion for reconsideration will be denied. I affirm my denial of permanent injunction.

      . Lower Merion School District, Board of School Directors.

      . The plaintiff concedes the fact that LMHS’s courtyard and Pennypacker Field cannot be a public forum or even a limited public forum, since no nonschool sponsored activities (by students or the public) take place at these locations. Moreover, plaintiff has not argued for these two locations on its motion. Accordingly, I will now affirm my holding of September 28, 1984, 596 F.Supp. 169 as to these two locations.

      . This is consistent with the Equal Access Act § 803(2) which states:
      The term 'sponsorship’ includes the act of promoting, leading, or participating in a meeting. The assignment of a teacher, administrator, or other school employee to a meeting for custodial purposes does not constitute sponsorship of the meeting.

      . See Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), affirmed 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945) where the distinguished Judge Learned Hand, so well stated:
      Of course, it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary: but to remember that statutes always have some purposes or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

      . The Court further held that the school’s limited public forum applied to the students not to nonstudents, thus the school could exclude non-students because of the content of their speech. Widmar, 454 U.S. at 267-68, n. 5, 102 S.Ct. at 273-74, n. 5 (1981). However, I am not saying that if a school district by its actions or in its exercise of discretion created a limited public forum which included nonstudents within the parameters of the limited public forum, it could exclude the nonstudents because of the content of their speech; exclusion would then be only justified where the state demonstrated a compelling state interest was being served.

      . See also Jarman v. Williams, No. 83-0406 (E.D.Ark.W.Div. February 16, 1984) affirmed 753 F.2d 76 (8th Cir.1985) (School Board’s willingness to allow gymnasium to be used for karate, gymnastics, piano lessons and by Boy Scouts, Girl Scouts and booster clubs does not transform public property into a public or limited public forum). Perhaps if the anti-nuclear/peace exposition was an athletic activity, and was for a charitable purpose, then the SCP may fall within an established limited public forum. See Student Coalition for Peace v. Lower Merion School District, 596 F.Supp. 169, 174 n. 6 (E.D. Pa.1984); Perry Ed. Assn. v. Perry Local Educators’Assn., 460 U.S. 37, 46, n. 7, 103 S.Ct. 948, 955, n. 7, 74 L.Ed.2d 794 (1983). However, this is not the case before me, therefore, I cannot rule upon it.


author: WARRINER, District Judge.

text:
    Curtis PEDIGO v. REYNOLDS METALS COMPANY, et al.
    Civ. A. 84-0292-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Feb. 7, 1985.
    William W. Davenport, Robert P. Geary, Richmond, Va., for plaintiff.

      W. Carter Younger, Eva S. TashjianBrown, McGuire, Woods & Battle, Richmond, Va., for Reynolds Metals Co.
    Jay J. Levit, Levit & Mann, Richmond, Va., for Bellwood Printing.
   OPINION

WARRINER, District Judge.

Plaintiff has filed an action against defendant Reynolds Metals Company alleging a breach of the collective bargaining contract in his discharge from employment. He has joined defendant Union claiming that defendant Union unfairly represented him in his grievance against defendant Reynolds respecting the discharge.

Plaintiff failed to respond to defendant Reynolds’ motion for summary judgment within the time permitted by Local Rule 11(F) and plaintiff’s response, filed late, will be disregarded. Defendant Union filed a motion for summary judgment on 7 January 1985. Plaintiff has filed no response to this motion and the time permitted by Local Rule 11(F) has expired. The Court will consider the motions on the present state of the record.

The facts are not in dispute. Plaintiff was a long term employee of defendant Reynolds but for several years he had been frequently absent from work both for “excused” and “unexcused” reasons. While the company makes greater allowance, apparently, for excused absences, excessive absences for whatever reason are grounds for discharge. After counseling, warning, and punishing plaintiff for his absences, defendant Reynolds finally discharged him.

Plaintiff sought help from his Union. He contended that despite the company’s undoubted right to fire an employee for excessive absences, the fact that the company had chosen not to fire other employees who had greater numbers of absences than plaintiff made plaintiff’s discharge unjust. Plaintiff further argued that a provision of the contract provided that discipline must occur within ten days of a work infraction and that his discharge came more than ten days after his latest absence.

The Union accepted its responsibility to represent the interests of plaintiff and at the fourth level of the grievance process obtained an offer from the company to reinstate plaintiff (along with two other employees discharged for excessive absences) with full seniority but without back pay. Plaintiff refused the offer and demanded the Union take the matter to arbitration. Believing that arbitration would be fruitless the Union, on advice of counsel, refused. Hence this suit.

The fact that defendant Reynolds does not always determine to exercise its right to fire an employee for excessive absences, a value judgment on its part, does not afford plaintiff a claim of right to continued employment. One would hope that an employer does not fire an employee by computer. One would hope that individual consideration is given in each case. Nothing more appears here than that the company did just that. But even assuming that the company, for its own purposes, chooses to retain certain employees despite excessive absenteeism, while firing others, the company in neither case breaches the employment contract.

With respect to the ten-day rule, the Court notes that absenteeism is a status, not an event. It makes no sense to speak of taking action within ten days of a status. The company routinely made periodic surveys of employees’ records for absences. When it reviewed plaintiff’s record the responsible official deemed plaintiff’s attendance record unacceptable. He was fired. The ten-day rule, then, could not be applicable to the facts of the case. Practice between the company and the Union under the contract confirms this necessary conclusion.

There being no breach of the employment contract, the question of the Union’s representation becomes moot. Nevertheless, the Court would point that there is not one iota of evidence supporting a claim of a lack of good faith representation. It is clear that the Union considered the contentions made by plaintiff but even if it had not, such would not, in and of itself, support a claim of unfair representation. A union is not required to consider every possible factor supporting its members’ cause — a union need not be perfect — a union simply must represent the interest of its members in good faith. In this case I see no evidence that the Union failed in this regard.

This ease is for all practical purposes indistinguishable from Blevins v. General Electric Co., 491 P.Supp. 521 (W.D.Va.1980) and it is decided on that authority and the authorities cited therein.

Defendants’ several motions for summary judgment are GRANTED. An appropriate judgment SHALL issue.

And it is so ORDERED.


author: KEVIN THOMAS DUFFY, District Judge:

text:
    GENERAL ELECTRIC COMPANY, Plaintiff, v. M.V. “NEDLLOYD ROUEN”, her engines, boilers, etc., NEDLLOYD LIJNEN B.V. (Nedlloyd Lines), Defendants.
    No. 84 Civ. 1113 (KTD).
    United States District Court, S.D. New York.
    Feb. 28, 1985.

      Bigham, Englar, Jones & Houston, New York City, for plaintiff; John E. Cone, Jr., Helen M. Benzie, Lawrence B. Brennan, New York City, of counsel.
    Kirlin, Campbell & Keating, New York City, for defendants; William Xanttopoulos, New York City, of counsel.
   MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

Plaintiff General Electric Company (“G.E.”) commenced this action pursuant to the Carriage of Goods by Sea Act (“COG-SA”), 46 U.S.C. § 1300, et seq., to recover for damage to part of its cargo intended for a power station being constructed by G.E. in Saudia Arabia. Defendant Nedlloyd Lijnen B.V. (“Nedlloyd Lines” or “Nedlloyd”) moves pursuant to Fed.R.Civ.P. 56 for partial summary judgment limiting its liability to $500.00 per package or customary freight unit. See 46 U.S.C. § 1304(5).

FACTS

On February 16, 1983, Nedlloyd issued a bill of lading to G.E. for the carriage of twenty-six items of cargo, including a generator Auxiliary Compartment (Case 101) and a Control Cab (Piece 214), from Portsmouth, Virginia to Yenbu, Saudi Arabia. Case 101 and Piece 214 were allegedly damaged en route to Saudi Arabia when, on the evening of February 19, 1984, the M.V. Nedlloyd Rouen encountered heavy weather, and both items slid from the flatbed on which they were stowed in deck 2 of the vessel. See Affidavit of William Xanttopoulos, Exh. M (deck log); Exh. H (stowage plan).

G.E. apparently had the two units repaired at a cost of approximately $59,-933.28 and then sold the units to an affiliated company for $16,000.00. See id., Exh. I (Deposition of Richard J. Condon). Thereafter, G.E. replaced the two units at a cost of $686,325.00. See id., Exh. J (letter from Condon concerning insured value of machinery); Affidavit of John E. Cone, Jr., Exh. 8. In its action, G.E. seeks to recover the cost of replacing the units, the temporary repair costs less salvage, and other expenses such as survey costs.

DISCUSSION

COGSA applies by its own force to all bills of lading covering shipments of goods from the United States in foreign trade. 46 U.S.C. § 1300; S.M. Wolff Co. v. The Exiria, 200 F.Supp. 809, 811 (S.D.N.Y.1961). Plaintiffs cargo was transported from Portsmouth, Virginia under a bill of lading that contained a “U.S.A. Clause” incorporating COGSA in the contract of carriage. See Xanttopoulos Affidavit, Exh. A (bill of lading). Thus, COGSA clearly applies to the instant contract.

COGSA § 4(5) provides:
Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier.

46 U.S.C. § 1304(5).

I.

Nedlloyd’s bill of lading form contains a box (clause 6) on the front of the form labeled “Excess Valuation” and refers the reader to clause 7(l)b on the reverse side of the form. This box was left blank on the bills of lading covering this shipment. Thus, pursuant to section 4(5) of COGSA, absent G.E.’s declaration of the value of its cargo, Nedlloyd’s liability is limited to either $500 per package or per customary freight unit. Had G.E. chosen to declare the value of its cargo, according to rule 12 of Nedlloyd’s Tarriff filed with the Federal Maritime Commission (“FMC”), it would have had to pay an additional ten percent of the total declared valuation over freight.

G.E. does not dispute the fact that it did not declare the value of the two units. Instead, G.E. advances three primary arguments which challenge Nedlloyd’s bill of lading form and the ten percent surcharge policy as unconscionable. First, plaintiff argues that Nedlloyd should not be afforded the benefit of any limitation of liability since the bill of lading merely incorporated COGSA’s limitation provision without explicitly setting forth the provision and that the other clauses on the back of the form created ambiguities that should be resolved against Nedlloyd. Second, plaintiff submits exhibits to show that the size of the print used on the back of the bill of lading form was inadequate and that the notice to plaintiff of the option of declaring the value of its cargo was insufficient. I conclude that these first two arguments are merit-less.

The burden is on the shipper to show that the “opportunity for choice of evaluations and rates did not in fact exist.” See Wuerttembergische & Badische Versicherungs-Aktiengesellschaft v. M/V Stuttgart Express, 711 F.2d 621, 622 (5th Cir. 1983) (citing Petition of Isbrandtsen Co., 201 F.2d 281, 285 (2d Cir.1953)). The Nedlloyd form clearly contained a space entitled “excess valuation” within which G.E. could have inserted a declaration of value. The combination of the form’s inclusion of such a space, the incorporation of COGSA into the contract of carriage, and the filing of the tariff with the FMC, supports the conclusion that G.E. had adequate notice of the $500 limitation. See Wuerttembergische, 711 F.2d at 622 (published tariff gave shipper notice of valuations satisfying requirement that the shipper be given an opportunity to avoid the limitation).

Furthermore, G.E.’s assertion that the print on the form was too small to provide adequate notice and that, in fact, none of its employees knew that an option to declare the value of the units existed, does not exonerate G.E. from the operation of COGSA’s limitation provision. The fact that G.E.’s agents did not read the back of the form or know what COGSA provided is irrelevant to the conclusion that G.E. was put on notice of its right to declare the value of its cargo.

G.E.’s third argument '•’-'t, as a practical matter, it was not given any choice to declare value because the cost of doing so is so exorbitant that no shipper ever would or has declared value. G.E. maintains that it would have opted to declare the cargo’s true value if the charge by Nedlloyd had been reasonable. Both the policy argument and the factual assertions advanced by G.E. are specious.

The policy argument has been addressed by Lord Diplock of the House of Lords who notes that “it is sometimes asserted, with moral indignation, that carriers have robbed shippers of their option by insisting upon excessive freight rates if their liability is to exceed the ordinary limitation figure.” Diplock, “Conventions and Moral Limitation Clauses in International Maritime Conventions,” 1 Journal of Maritime Law and Commerce, 529-530 (1970). Diplock points out that, if indeed it was more economical for the carrier to insure against the excess liability than for the cargo owner to cover it with his own cargo insurer, the carrier would quote rates which would reflect the lower cost. “There is no reason why he should allow the higher premium to go into the pocket of the cargo insurer.” Id. Furthermore, it appears from G.E.’s submissions that there was competition for this shipping route. If Nedlloyd’s rates were excessive, G.E. could have attempted to negotiate a lower rate or hire one of Nedlloyd’s competitors.

Regarding G.E.’s factual assertion, I note that there is no indication that G.E. had any desire whatsoever to declare a higher value and obtain added insurance from the carrier. Indeed, the evidence is to the contrary. An employee for G.E., Anthony A. Vinci, testified that, in his forty-three years in the transportation department of the company, G.E. never once dedared the value of its cargo to avoid the COGSA limitation. See Xanttopoulos Affidavit, Exh. D at 127-128. G.E. has presented no evidence to indicate that in this case it intended to abandon a policy it had pursued for at least the past forty-three years. Finally, because the ad valorem clause is filed with the FMC, G.E. should address to that body its argument that the additional charge is unconscionable. For all of the above reasons,-1 conclude that Nedlloyd’s bill of lading form is adequate, and its excess valuation charge policy is not unconscionable.

Thus, because plaintiff has not raised any material issue of fact, partial summary judgment is granted in favor of defendant. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The movant, Nedlloyd, has sustained its burden of establishing that there is no material fact in dispute, and that it is entitled to judgment as a matter of law. Id. Accordingly, since plaintiff failed to declare the actual value of its cargo, defendant’s liability is limited to either $500 per package or $500 per customary freight unit.

II.

The parties appear to agree, or at least G.E. does not dispute, that the amount of limitation, if any, for Piece 214 would be $500 per customary freight unit or per 40 cubic feet totalling $28,000.00. There is no such agreement, however, with respect to Case 101. I conclude, for the following reasons, that Case 101 constitutes a package within the meaning of Section 4(5) of COGSA. Therefore, defendant’s liability, if any, for the damage to this item would be limited to $500.

COGSA does not define “packages;” thus, courts have employed a “straight-forward contract analysis” in determining whether a particular piece of cargo is a “package.” See Allied International American Eagle Trading Corp. v. The S.S. Yang Ming, 672 F.2d 1055, 1057 (2d Cir.1982). Case 101 is described on the bill of lading as “CS Control Cab Contains 12 Batteries” and under the column entitled “no. of pkgs” it is listed as 1 package. The packing list and commercial invoice refer to the control cab as “1 case.” See id., Exhs. E and F.

Furthermore, the appearance of the unit and the manner in which it was prepared for shipment lends support to a finding that the parties intended Case 101 to be a package within the meaning of COGSA. See Solar Turbines, Inc. v. M/V Alva Maersk, 584 F.Supp. 32, 33-34 (S.D.N.Y.1983) (air exchange unit which was partially covered found to be a package based on intention of contracting parties and the physical description of the unit).

Although courts have held that completely uncovered or uncrated items are not necessarily packages, see, e.g., Petition of Isbrandtsen Co., 201 F.2d 281, 286 (2d Cir.1953), items which are only partially covered have been the subject of many disputes, see, e.g., Aluminios Pozuelo Ltd. v. S.S. Navigator, 407 F.2d 152, 155 (2d Cir.1968). Case 101, the control cab, was enclosed in steel on a weatherproof steel base. The base was part of the unit. Xanttopoulos Affidavit, Exh. G (Deposition of Charles M. Vandergrift). In preparation for shipping, plywood was bolted over the air conditioning holes in the cab and caulking was placed around it. Id. The unit was blocked with timber from the inside. Id. Unlike the generator in Solar Turbines, Inc. v. S.S. Al Shidadiah, in which I found the enclosure was “not preparation for shipping, but rather primarily, if not solely, part of the product itself,” see 575 F.Supp. 939, 941 (S.D.N.Y.1983), here, “some packaging preparation for transportation has been made which facilitates handling, but which does not necessarily conceal or completely enclose the goods.” Alumninios, 407 F.2d at 155. Thus, the fact that G.E.’s control cab was braced and blocked with approximately 300 pounds of material that served no purpose other than to fortify the unit for shipping lends substantial support to the conclusion that Case 101 was a package. Finally, batteries and equipment were stored in Case 101 during transport. This lends additional support to the conclusion that Case 101 was a package, and not merely a self-contained unit. See Xanttopoulos Affidavit, Exh. G. at 10.

Accordingly, defendants’ motion for partial summary judgment is granted and its liability, if any, shall be limited to $28,000 for Piece 214 and $500 for Case 101.

SO ORDERED.

      . Freight on this cargo was paid by G.E. to Nedlloyd on the basis of "measurement tons.” Defendants’ Exh. B (Deposition of Anthony J. Vinci) at 64. The “measurement ton” basis of freight permits the carrier to charge freight based upon the number of tons or upon the number of 40 cubic foot units, whichever is greater. In this case, the cargo was more volume, than weight, intensive; hence, the freight is based on measurement. Piece 214 measured 56 units. Courts have held that customary freight unit refers to the unit of the cargo “customarily used as the basis for the calculation of the freight rate to be charged.” General Motors Corp. v. Moore-McCormack Lines, Inc., 451 F.2d 24, 25 (2d Cir.1971) (citing The Bill, 55 F.Supp. 780, 783 (D.Md.1944)).
      In computing the customary freight unit in a particular case, a court must look to the unit which the carrier actually used to compute the freight charge for the shipment. Croft & Scully Co. v. M/V Skulptor Vuchetich, 664 F.2d 1277, 1282 (5th Cir.1982) (quoting Caterpillar Americas Co. v. S.S. Sea Roads, 231 F.Supp. 647, 649 (S.D.Fla.1964), aff’d, 364 F.2d 829 (5th Cir.1966)). For example, in a case in which the freight charged was calculated for each locomotive, the court held that a locomotive was the customary freight unit. See India Supply Mission v. S.S. Overseas Joyce, 246 F.Supp. 536 (S.D.N.Y.1965). Where the freight charged was for the shipment of power plants, an entire power plant was ruled to be the customary freight unit. See General Motors Corp., 451 F.2d at 26. In the present case, the carrier calculated the freight charge based on 40 cubic foot units. Piece 214 consisted of 56 40-cubic-foot freight units. Hence, Nedlloyd’s liability for this piece totals $28,000.00 (56 units x $500).


author: LAFFITTE, District Judge.

text:
    Octavio JIMENEZ NIEVES, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
    Civ. No. 80-786 HL.
    United States District Court, D. Puerto Rico.
    March 1, 1985.

      Blas C. Herrero, Jr., Hato Rey, Puerto Rico, for plaintiffs.
    Francisco A. deSosa, Asst. U.S. Atty., Hato Rey, Puerto Rico, for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

LAFFITTE, District Judge.

Plaintiffs Octavio Jiménez, his wife Josefa Rivera, and their four minor children sued the United States for damages under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671 et seq. This case has its genesis when the Social Security Administration (SSA) stopped payment on benefits checks which plaintiff Octavio Jiménez had negotiated for his now deceased mother in 1975. The checks were dishonored when an error was made by the SSA in wrongly entering a notation that plaintiff’s mother had died in 1975, instead of March 1976. Plaintiff alleges that as a result of this error he was humiliated and suffered the stress of severe financial problems, resulting in great physical, mental and emotional damages affecting him and his entire family, all of which constitutes a tort under Puerto Rico law.

The complaint was originally dismissed on the “misrepresentation” exception to the Federal Torts Claims Act, 28 U.S.C. 2681(h). The Court of Appeals affirmed insofar as the complaint alleges harm by an injury to reputation, and remanded the case for determination of plaintiff’s nonreputational injuries caused by the Government’s failure to honor its checks. Jimenez-Nieves, et al. v. United States, et al., 682 F.2d 1 (1st Cir.1982). Subsequently this Court, by order filed January 16, 1984, dismissed plaintiff’s claim based upon the Government’s criminal investigation, as averred in paragraph 17 of the complaint, on the basis of the “discretionary” exception to the Act. Thereafter, on April 11, 1984, the Court granted summary judgment on the minors’ claims as time-barred, on the Government’s unopposed motion. Consequently, the case went to trial on August 27, 28, and 29, 1984, on plaintiff’s claim that defendant’s conduct caused him and his wife direct nonreputational injuries by failure to honor its checks. Plaintiff and his wife anchor their claim on Article 1802 of the Civil Code, 31 L.P.R.A. § 5141, which in this jurisdiction is the source of claims for damages caused by fault or negligence.

FINDINGS OF FACT.

1. Octavio Jiménez and his wife Josefa Rivera were both born in Comerio, Puerto Rico, in 1936. They were married in 1959 and are still married. They have four children.

2. Octavio Jiménez’ mother received monthly social security checks prior to her death on March 26, 1976. Meanwhile, Jiménez had been negotiating the benefits checks for his mother by cashing them at the bank and other commercial establishments in Comerio, after the checks were endorsed by his mother.

3. Plaintiff’s mother died on March 26, 1976. Due to a typographical error made by the SSA, the death of plaintiff’s mother was incorrectly entered as of 1975 in the SSA records. Consequently, the SSA proceeded to dishonor eleven checks issued to Mrs. Nieves for the year preceding her death. The foregoing initiated a chain reaction by debiting all future endorsers’ checks, including plaintiff, whose bank account was debited for the corresponding amounts. This marked the beginning of plaintiff’s ordeal, who has suffered from diabetes mellitus since he was approximately 23 years old.

4. Upon learning about the dishonored cheeks from his creditors, plaintiff visited the Social Security offices, called them over the telephone, and finally a statement was taken from him and mailed to the SSA, to no avail. His bank continued to debit his account.

5. The evidence showed and the Court finds that the dishonoring of the checks contributed to plaintiff’s financial problems as his own bank started pressuring him to pay back the debited amounts. Upon the delicate balance of plaintiff’s account, the weight of the approximately $1,000 debited by the bank fell very heavily indeed. The government did not start rehonoring the checks until the middle of the following year, and did not finish repaying until October 1977. No official notice of said rehonoring was ever given to plaintiffs. They learned what they could from the creditors themselves. Plaintiff started to fail in his financial commitments.

6. Plaintiff is an accountant, a hard working man, who held sometimes two jobs and was making plans to take the C.P.A. examination. At the time his mother died in 1976, he was working and studying for the C.P.A. exam.

7. Plaintiff also suffers from a serious case of mellitus diabetes. At present he is confined to a wheelchair and suffers from diabetic neuropathy, which is an accute complication of the disease. Plaintiff had suffered episodes of uncontrolled diabetes in the past. He developed diabetic retinopathy and was referred to a retinologist for laser treatment of his right eye. After the dishonoring of the checks plaintiff’s uncontrolled diabetis worsened. He became depressed impotent, withdrawn, and commenced an accelerated rate of physical deterioration. At present, plaintiff is critically ill, receiving dialysis treatment twice a week, almost blind and totally disabled.

8. The evidence disclosed and the Court finds that as a result of his diabetes and the checks incident, plaintiff Jiménez became a victim of a descending spiral in which stress, anxiety, and depression contributed to uncontrolled diabetes. The loss of health combined with the dishonoring of the checks, the resulting fear of loss of earning capacity, and the loss of self esteem, contributed to his aggravated circumstances.

9. Plaintiff has been hospitalized various times, and suffered surgical interventions, including partial amputations of both feet. Furthermore, he has totally lost his sexual potency, which has resulted in additional emotional damage to him and to his wife. Today, plaintiff Jiménez is a crippled and almost totally blind man, given to deep bouts of depression and crying spells. His mental capacity has deteriorated and his renal functions have ceased. The quality of his life is nil.

10. Plaintiffs wife, who is also a plaintiff herein, has suffered the anxieties of seeing her husband in such a condition, and has had to cease working in order to take care of her husband.

CONCLUSIONS OF LAW.

Plaintiffs anchor their claim on Article 1802 of the Civil Code, 31 L.P.R.A. § 5141, which in this jurisdiction is the source of the action for damages caused by fault or negligence. Mendez v. Serraconte, 53 PRR 807. Reyes v. Heirs of Sanchez Soto, 98 PRR 299 (1970). In order to sustain a valid claim under Puerto Rico tort law, three elements must be present: negligent behavior, damages, and a cause and effect relationship between the two. Hernandez v. Fournier, 80 PRR 94 (1957); Perez Escobar v. Collado, 90 PRR 785 (1964). Under Article 1802, the right to claim damages in ex delicto actions, for humiliation and mental sufferings, independent of the existence of physical damages, has been long established in this jurisdiction. Muriel v. Suau, 72 PRR 348 (1951). Consequently, the law of torts in Puerto Rico has revolved around the central theme of compensation to the victim for the damages he or she has suffered. Diaz v. San Juan Light & Transit, 17 PRR 64 (1911); De Gracia v. Guardiola, 37 PRR 774 (1928); Rivera v. Rossi, 64 PRR 683 (1945); Perez Escobar v. Collado, 90 PRR 785 (1964).

It has been recognized in this jurisdiction that all that is necessary for a negligent act to be considered the effective cause of the damage is that it be the factor that most probably caused it. Nuñez v. Cintron Ortiz, 84 JTS 66. A negligent party is responsible for the damages caused if his negligent behavior is a proximate cause of said damages, even if it is not the only proximate cause. Gines Melendez v. Autoridad De Acueductos y Alcantarillados, 86 PRR 490. In First National City Bank of New York v. Gonzalez Martinez, 293 F.2d 919 (1st Cir.1961), a cause of action predicated on Article 1802 of the Civil Code was acknowledged when the banks committed error in the posting procedure and failed to credit a payment to plaintiff’s account. See also, Melendez v. Banco Credito, 99 DPR 283 (1970).

The Court finds that defendant was negligent in erroneously entering into the records of SSA the date of plaintiff’s mother’s death, and in dishonoring the checks as a result of defendant’s negligence. The issue, then, is not whether defendant incurred in negligence, but whether said negligence was a contributing factor to plaintiff Jiménez’ deteriorating condition and the damages that ensued.

The experts’ testimony on both sides of the fence testified that the dishonoring of the checks caused stress on plaintiff, and that stress has an effect on the sugar levels of a diabetic person; that the deteriorating rate of plaintiff markedly increased as a result of the emotional, economic, and stressful condition caused by the checks incident. Dr. Carlos E. Ifarraguerry, a psychiatrist and psychoanalyst, who testified on behalf of the Government and sat at counsel’s table throughout the proceedings, and who had previously evaluated plaintiff, testified in his direct testimony that SSA checks incident was a contributing factor to plaintiff’s emotional condition. He further testified that other factors contributing to Jiménez’ condition were economic stress, health stress, plaintiff mother’s death, and other significant losses such as sexual impotency and loss of vision. Dr. Ifarraguerry testified that after listening to expert testimony on the issue of damages suffered by plaintiff Jiménez, he attributed approximately 25% thereof to the dishonoring of the checks.

The evidence showed that although there were other emotional causes for plaintiff’s loss of health, the stress produced by the improper and tortious dishonoring of the checks caused at least, in the opinion of defendant’s expert testimony, approximately 25% of the damages suffered by plaintiff. The medical testimony was uncontroverted that defendant’s tortious conduct accelerated plaintiff’s rate of health deterioration. Thus, it can be safely stated, based on the testimony of both plaintiff’s and defendant’s psychiatrists, and on the endocrinologists, that plaintiff’s aggravation or the deterioration of his prior condition can be attributed, to certain extent, to the dishonoring of the social security checks. Gonzalez v. Maryland Casualty Co., 98 DPR 476 (1970); Concepcion Guzman v. A.F.F., 97 DPR 488 (1965).

On the issue of damages, plaintiff’s and defendant’s economic experts differed. Dr. Bartolomé Stipec calculated plaintiff’s present value of loss of income, based on plaintiff’s work history, education, and working history, at $423,000, including interest. The evidence showed, however, that Dr. Stipec based his assessment on an incorrect productive life of 23 years for the plaintiff, and on the assumption that plaintiff could have sustained two jobs.

Defendant’s economic expert, Dr. Jack E. Hirshbrunner was, in the Court’s opinion, more persuasive and accurate on his projections. Based on a ten-year productive life, which this Court finds persuasive as a reasonable one in the light of medical testimony, Dr. Hirshbrunner projected plaintiff’s loss of income at $70,-511.95. He also projected plaintiff wife’s loss of income for said ten-year period at $14,241.00. Accordingly, relying on Dr. Hirshbrunner’s testimony, the Court finds that 25% of plaintiff Jiménez’ damages were caused by defendant, and assess Jiménez’ loss of earnings at $17,624.98; and plaintiff’s wife, Josefa Rivera, at $2,560.00. Widow of Delgado v. Boston Ins. Co., 99 PRR 639 (1971).

Plaintiff Jiménez’ physical suffering and mental anguishes, caused by the aggravation of his health attributable to defendant’s conduct, are reasonably valued at $10,000.00, and the mental anguishes of his wife are valued at $2,500.00. Gonzalez v. Fireman’s Fund Ins. Co., 385 F.Supp. 140 (D.P.R.1974); Ganapolsky v. Park Gardens Development Corp., 439 F.2d 844 (1st Cir.1971); Cirino v. Fuentes Fluviales, 91 DPR 608 (1964); Correa v. A.F.F., 83 DPR 144 (1961); Hernandez v. Fournier, 80 DPR 93 (1957).

In appraising plaintiffs’ damages, what matters is that the existence of the damages should not be uncertain or speculative. Once it has been shown that damages exist, and their proximate cause was a tortious act on the part of the defendant, it cannot be said that the same are uncertain or speculative. It does not matter that the determination of the amount thereof may be only approximate, provided that the award rests on a reasonable basis and not on mere speculation or guess. White Star Bus Line v. Quiñones, 78 PRR 309 (1955).

WHEREFORE, plaintiff Octavio Jiménez shall recover from defendant the amount of $27,624.98; and plaintiff Josefa Rivera shall recover from defendant the amount of $5,060.00, plus their costs.

IT IS SO ORDERED.

      . Several, but not all of the checks were rehonored subsequently.

      . The evidence disclosed that after plaintiff received the first check following his mother’s death in 1976, he informed the mailman to return the check to the SSA, as he had already disenrolled her at SSA. Notwithstanding the foregoing, plaintiff was the subject of an investigation by federal agents.

      . Expert testimony presented at trial explained that in diabetic neuropathy, arteries may be affected in different parts of the body like retina, brain, heart, kidneys, legs. Impotency may also, as in this case, develop.

      . Before becoming critically ill and while he was trying to solve the problems ensuing from the dishonored checks, plaintiff would go to his home, shut himself in his room, put out the light, cover himself with a blanket, assume a fetal position, and refuse to see anybody, including wife or children.

      . Dr. Miguel A. Cubano, a psychiatrist testifying for plaintiff, testified that the collapse of Jiménez' health was probably caused by the stress, anxiety and depression produced by the Government’s dishonoring of the checks and the effects it caused on plaintiff. Dr. Cubano described plaintiff as an obsessive-compulsive type of person, who under normal circumstances succeeds in our society. Such a person, explained Dr. Cubano, is the type who, when faced with adversity does his best to overcome it, but when all efforts fail, will fall pray to severe stress, anxiety, and depression.