text:
    David APPLE, et al., Plaintiffs, v. MIAMI VALLEY PRODUCTION CREDIT ASSOCIATION, et al., Defendants.
    No. C-3-84-516.
    United States District Court, S.D. Ohio, W.D.
    May 21, 1985.

      Charles W. Ewing, Columbus, Ohio, for plaintiffs.
    Roger F. Carroll, Columbus, Ohio, for defendant Continental Grain Co.
    John R. Butz, Springfield, Ohio, for defendant Miami Valley Production Credit.
   DECISION AND ENTRY SUSTAINING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT IN THEIR ENTIRETY; TERMINATION ENTRY

RICE, District Judge.

This case comes before the Court for resolution of the Motions for Summary Judgment filed by Defendant Miami Valley Production Credit Association (PCA) (Doc. # 15) and Defendant Continental Grain (Continental) (Doc. # 14).

The facts reveal that Defendant PCA is a federally-created cooperative association which extends credit to member-farmers such as Plaintiffs David and Betty Lou Apple. Defendant PCA made its first loan to Plaintiffs in 1977, and requested in exchange that Plaintiffs execute a financing statement and Security Agreement. These were filed in Miami County on November 14, 1977. Plaintiffs obtained another loan from PCA in 1978, twenty percent of which went for capital improvements, and the bulk of which was a refinancing of the 1977 loan. A continuation of the existing financing statement was filed on October 19, 1982.

In March, 1983, Plaintiffs executed a contract to participate in the federal government’s Payment in Kind (PIK) program. Under this PIK agreement, the federal government agreed to provide Plaintiffs with 9,569 bushels of corn in exchange for Plaintiff’s promise not to raise any corn on their land in 1983. Plaintiffs subsequently contracted to sell their PIK corn entitlement, slated for shipment in October, 1983, to Defendant Continental Grain. In mid-1983, Defendant PCA called in Plaintiffs’ loan, and, on July 12, 1983, filed an action in state court seeking a money judgment and foreclosure of Plaintiffs’ real estate. Plaintiffs filed their petition in bankruptcy on June 1, 1984, pursuant to Chapter 11 of the U.S. Bankruptcy Code. They filed their Complaint in the instant action on June 5, 1984 (Doc. # 1).

I. Defendant PCA’s Motion for Summary Judgment on Count I.

Citing the “unique relationship” of Defendant PCA to its member farmers, Plaintiffs allege in Count I that Defendant PCA violated its fiduciary duty to them when it refused to extend additional credit to Plaintiffs in 1981 and in subsequent years. Plaintiffs cite the Farm Credit Act of 1971, 12 U.S.C. § 2001 et seq., as the source of Defendant’s duty to them as well as the source of their remedy in this Court. Defendant PCA contends in its Motion for Summary Judgment that no private right of action exists under this latter statute. This Court is inclined to agree.

No provision within the Farm Credit Act directly creates a private remedy for those aggrieved by a violation of the Act. The Court thus must consider the four factors which the Supreme Court has set forth to assist the lower courts in determining whether a federal statute impliedly confers a private right of action, namely:

(1) Whether the Plaintiffs are members of the class for whose especial benefit the statute was enacted;
(2) Whether the legislative history either explicitly or implicitly reveals an intent to create or deny a private cause of action;
(3) Whether the implication of a private remedy would be consistent with the legislative scheme; and
(4) Whether the cause of action is one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law.

Marx v. Centran Corp., 747 F.2d 1536, 1544 (6th Cir.1984) (citing Cort v. Ask, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975)); Howard v. Pierce, 738 F.2d 722, 724 (6th Cir.1984). Apparently, no one factor in this analysis is to be considered paramount. Howard, 738 F.2d at 724 n. 4.

With respect to the first of the factors enumerated supra, the Court notes that the purpose of the Act, as stated in 12 U.S.C. § 2001(a), was to improve “the income and well-being of American farmers and ranchers by furnishing sound, adequate and constructive credit.” The Act pursued this goal by creating instrumentalities such as production credit associations from which American farmers and enumerated others could obtain credit. Arguably, then, Plaintiffs might be said to be within the class for whose benefit the statute was enacted, in that the Act was aimed to assist farmers in need of credit.

Scrutiny of the legislative history of the Act, while it contains some seeds of uncertainty, persuades this Court that Congress did not intend for the Act to confer the type of private right of action sought by Plaintiffs herein. As originally enacted, the Act prohibited production credit associations, with a few limited exceptions, from being able to sue or be sued in federal district court. 12 U.S.C. § 2258 (1971). This provision of the Act was deleted in 1975. The Senate Report accompanying this amendment of the Act explained:

The provision in the Act which states that the district courts of the United States shall not have jurisdiction (except in certain limited situations) of any suit by or against a production credit association presents substantial difficulties in enforcing a lien of a preferred ship mortgage and serves as an impediment to financing fishermen.
The amendment of the Act to permit production credit associations access to the Federal district courts will provide a mechanism by which the associations themselves can enforce a lien on ships if the need arises. The ability of a production credit association to take an enforceable lien on a fishing vessel, just as it now can on a farmer’s property, equipment, or livestock, will make credit service more readily available to producers and harvesters of aquatic products.

Sen.Rpt. No. 94-554, reprinted in 1975 Cong.Code & Adm.News 2148, 2150 (1975). Senate Report No. 94-554 also noted that adoption of the 1975 amendment to 12 U.S.C. § 2258 would give production credit associations the same access to federal courts enjoyed by private citizens and other corporations. Id.

The Report provides no further explanations as to any implications which such federal court access might have with respect to private enforcement under the Act. While letters from the Department of Agriculture and from the Farm Credit Administration, all in support of the 1975 amendment of the Act, are included in the published legislative history, they, too, focus primarily on the need for fishing vessel liens as the motivating rationale for the amendment. In a letter of support, however, Governor Harding of the Farm Credit Association also noted rather opaquely that “[t]he proposal, if enacted into law, will permit persons and other entities to pursue their claims against production credit associations in Federal district courts, if jurisdictional elements are present, the same as if the defendant were not the PCA.” Id. at 2155. Governor Harding’s allusion to “jurisdictional elements” could conceivably have referred to the necessity of complete diversity in any suit brought against PCA, thus negating the position that the Farm Credit Act itself created a federal enforcement mechanism. Said phrase could also, however, be construed as a reference to the $10,000 amount in controversy still required at that time in “federal question” cases. Governor Harding’s statement also reflected his perspective that the claims which would be brought by potential plaintiffs against PCAs upon the deletion of the federal court bar would be indistinguishable from the claims which could be brought by the same plaintiffs against other defendants in federal court. This apparent view of a PCA as simply another potential defendant in federal court would undermine, or at least fail to support, the notion that the 1975 amendment signalled an intent for the Farm Credit Act to serve as a source of a unique set of federal duties and obligations to be enforced under the Act by a member against his or her PCA.

The third consideration for this Court is whether the implication of a private remedy would be consistent with the legislative scheme which Congress designed to implement its purpose of facilitating the extension of credit to farmers. The Court notes the authority given to the Farm Credit Association, pursuant to 12 U.S.C. § 2252, to promulgate rules and regulations to carry out the Act. At the same time, under 12 U.S.C. § 2258, a production credit association is considered a citizen of the state in which its principal office is located, and thus is subject to that state’s laws. As stated by the Eighth Circuit in rejecting the argument that federal common law, rather than state law, was necessary to effectuate the Act’s purpose: “Even if the fiduciary law varies from state to state, no burden to the [Farm Credit] system is perceived____” Boyster v. Roden, 628 F.2d 1121, 1125 (8th Cir.1980).

Inquiry into the fourth and final factor in this case carries along the theme of the third factor supra. Breach of fiduciary duty is a traditional area of state concern. As such, it is inappropriate to infer a cause of action based solely on federal law. While this Court is not at all indifferent to the allegations lodged by Plaintiffs, they have an adequate remedy, governed by the four-year statute of limitations set forth in Ohio Rev.Code § 2305.09, for breach of a fiduciary duty in state court.

Analysis of the four relevant criteria persuades this Court that no federal cause of action should be implied in this case under the Federal Credit Act. Accord Hartman v. Farmers Prod. Credit Ass’n of Scotsburg, No. NA 81-163-C (S.D.Ind.1983). Summary judgment is thus entered in favor of Defendant PCA and against Plaintiffs. In light of this ruling, the Court does not consider the merits of Plaintiffs’ breach of fiduciary duty allegations.

II. Defendants’ Motions for Summary Judgment on Counts II and III.

As noted supra, Defendant Continental purchased Plaintiffs’ PIK corn entitlement. It paid Plaintiffs roughly $28,-000.00 for said corn in October, 1983, by means of four checks. Counts II and III of Plaintiffs’ Complaint focus upon their dissatisfaction at Defendant Continental’s insistence upon making these four drafts payable jointly to Plaintiffs and Defendant PCA.

Defendant Continental’s refusal to issue the checks payable solely to Plaintiffs, and Defendant PCA’s refusal to endorse the joint checks over to Plaintiffs, stemmed from their belief that Plaintiffs’ PIK entitlements were subject to the outstanding security interest of Defendant PCA. The security agreement and extension filed by PCA provided that, in addition to the crops, equipment and livestock specifically listed in the agreement, “all proceeds of the sale or other disposition by the Plaintiffs of any of the enumerated items were also subject to the agreement.” (Doc. # 14, Exh. 2). Plaintiffs argue that PIK entitlements are not within Ohio Rev.Code § 1309.25(A)’s definition of “proceeds” and that, as such, Defendants violated the fifth amendment’s proscription of deprivations of property without due process in their handling of the PIK payment checks. Both Defendants have moved for summary judgment on this issue.

Only if Plaintiffs satisfy the threshhold requirement of showing that they were deprived of a constitutionally protected property interest can this Court determine whether they were afforded sufficient procedural protection. Yashon v. Hunt, 696 F.2d 468, 469 (6th Cir.1983). This Court cannot accept Plaintiffs’ contention that Defendants deprived them of their property with respect to the joint payee payment checks. Instead the Court finds persuasive authority to the effect that Plaintiffs’ PIK entitlements were subject to a valid security interest held by PCA.

A number of bankruptcy courts have had cause to consider whether PIK entitlements are “proceeds” of crop collateral which allow the holder of a valid security interest to validly assert a lien on such entitlements. The In Re Cupp decision, 38 B.R. 953 (Bankr.N.D.Ohio 1984), involved a security agreement nearly identical to that filed by Defendant PCA herein. As in the instant case, the debtor in Cupp initiated his participation in the PIK program prior to the filing of a foreclosure action by his production credit association. His filing in bankruptcy then ensued. The bankruptcy court was then faced with the issue of whether PIK payments were “proceeds” under Ohio Rev.Code § 1309.25(A) in order to determine whether the security interest included said payments. The court reasoned as follows in reaching the conclusion that the payments were to be considered “proceeds:”

The PIK program was initiated to promote certain federal policies. In pursuit of these policies, the program was designed to compensate farmers for not producing crops which they otherwise would have raised. In that respect, the participants are receiving the products of their business without having to actually perform the work. Since the term “proceeds” is intended to apply to that which is produced from a creditor’s collateral which, in the absence of the PIK program, would have been grown, it must also apply to that which is produced as though it had been grown. Therefore, it would follow that PIK proceeds are proceeds of the crops within the meaning of the security agreement. 38 B.R. at 955.

Numerous other decisions have echoed the Cupp rationale, namely, that a determination that PIK payments are not “proceeds” creates an artificial distinction which would allow a farmer to unconscionably defeat a creditor’s security interest. See, e.g., In Re Lee, 35 B.R. 663 (Bankr.N. D.Ohio 1983); Matter ofMunger, 495 F.2d 511 (9th Cir.1974). Although the context in which this issue is presented in the instant case varies somewhat from these cited decisions, the Court is persuaded by the reasoning and policy rationales expressed in said decisions as to the liberal construction to be given to the definition of “proceeds” in the security agreement filed by PCA. Plaintiffs argue that PIK payments are “general intangibles,” citing In Re Sunberg, 35 B.R. 777 (Bankr.S.D.Iowa 1983), aff'd, 729 F.2d 561 (8th Cir.1984). The Court notes that the Sunberg courts so defined PIK entitlements in order that payments made pursuant to the PIK program be found within the scope of a PCA security agreement which covered afteracquired “general intangibles.” As observed by the Sunberg bankruptcy court:

The very breadth of the omnibus clause of the security agreement is indicative of an intent to include all of the Debtors’ farm property interests. There are two economic features that have dominated modern farming, the farm credit system as a lender and government sponsored farm subsidies in one form or another. The PCA is a part of the farm credit system and the debtors [are] farmers. Both would have to be conscious of the impact of the various farm programs in existence or that might come into existence on the farmer borrower’s ability to meet his financial obligations. In the absence of any evidence to the contrary, the court must conclude that the omnibus clause in the parties’ security agreement was intended to cover possible future property interests arising from the government’s farm programs and in the last instance, PIK, the government’s largess.

35 B.R. at 781.

In determining that PCA herein had a valid security interest in Plaintiffs’ PIK proceeds, the Court must also conclude that Defendant Continental did not act improperly in issuing checks for Plaintiffs’ PIK entitlements payable jointly to Plaintiffs and PCA. As Plaintiffs’ claim under the fifth amendment turns on the alleged impropriety of the joint payee checks, the Court finds that no genuine issues as to any material fact exists, and that a judgment for Defendants may be entered on Counts II and III of Plaintiffs’ Complaint as a matter of law.

In light of the above rulings, this case is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.

      . In Plaintiffs’ Memorandum Contra Defendant PCA’s Motion for Summary Judgment (Doc. # 20), Plaintiffs contend that they do not in any way assert a private cause of action under the Farm Credit Act, but merely seek relief for the alleged unconstitutional deprivation of property. Count I of Plaintiffs’ Complaint, however, which clearly puts forward the Farm Credit Act as a vehicle for relief, has not been the subject of a Motion to Amend by Plaintiffs, deleting said Count, or of a stipulation voluntarily dismissing Count I. In the absence of same, the Court cannot but rule on Defendant PCA’s Motion for Summary Judgment as to Count I.
      Plaintiffs' Memorandum Contra also contained a request for an oral hearing on Defendants’ Motions for Summary Judgment. This request is denied.

      . Ohio Rev.Code § 1309.25(A) provides that " ‘[proceeds' includes whatever is received upon the sale, exchange, collection, or other disposition of collateral or proceeds.”

      . The Court also believes it unlikely that 7 C.F.R. 770.6(f) (1983) was intended to affect the lien rights of creditors of farmers participating in the PIK program. Moreover, under United States v. Security Industrial Bank, 459 U.S. 70, 103 S.Ct. 407, 74 L.Ed.2d 235 (1982), the Court does not believe that said regulation, even were it so intended, could be retroactively applied so as to destroy lien rights acquired by creditors prior to the regulation.


source: Caselaw Access Project

author: BILLINGS, District Judge.

license: Public Domain

text:
    Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor v. Marilyn FORBES.
    Civ. A. No. 84-238.
    United States District Court, D. Vermont.
    May 21, 1985.

      Albert H. Ross, Regional Sol., David A. Snyder, U.S. Dept, of Labor, Office of the Solicitor, Boston, Mass., for plaintiff.
    Chester S. Ketcham, Middlebury, Vt., for defendant.
   OPINION AND ORDER

BILLINGS, District Judge.

This is an action under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et. seq., to enjoin defendant’s practice of paying her employees less than minimum wage. It is also claimed that defendant failed to keep adequate records of hours worked and wages earned by her employees, all in violation of 29 C.F.R. § 516. Plaintiff seeks an injunction, back wages and costs.

The matter is presently before the Court on defendant’s motion, filed on April 8, 1985, to compel answers to interrogatories and requests to produce. Opposition to the motion was filed by plaintiff on April 17, 1985.

Defendant’s Motion to Compel

On December 21, 1984, defendant served interrogatories and requests to produce upon plaintiff. Plaintiff objected to certain interrogatories and requests to produce and, consequently, defendant filed this motion to compel. At issue are defendant’s interrogatories 16, 17, and 19 as well as requests to produce 3 and 7:

16. Please state all persons whom you, or any of your agents, contacted who were engaged in the knitting of sweaters or the embroidery of sweaters for the Defendant.
17. Please state the address and telephone number of all those persons whom you or any of your agents contacted in person, by telephone, or by letter, and the manner in which each such contact was made.
19. Please state the names and addresses of all of the home knitters who responded to any questionnaire which you forwarded to them.
3. Please produce copies of all statements obtained from those persons who embroider or knit sweaters for the Defendant.
7. Please produce copies of all questionnaires completed by persons who embroider or knit sweaters for the Defendant, including but not limited to, those provided on “Form Approved Budget No. 44-R0370”.

Plaintiff objected to the above interrogatories and requests, and now opposes defendant’s motion to compel, on the ground that the information sought is protected under the so-called “informer’s privilege.” Additionally, plaintiff also objected, and still objects, to the requests to produce on the ground that the material sought is protected under the attorney work-product rule, as they were prepared in anticipation of litigation.

There is now little doubt, and indeed defendant concedes, that the informer’s privilege applies in civil cases and, in particular, in cases under the Fair Labor Standards Act (FLSA). Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303 (5th Cir.1972). Therefore, absent a showing of special circumstances to warrant against it, the identities of present or former employees who have provided information to the Department of Labor under FLSA will be protected from disclosure. Id. at 306. See also Wirtz v. B.A.C. Steel Products, Inc., 312 F.2d 14 (4th Cir.1962). The purpose of the privilege in the labor context is to promote enforcement of the Act and to protect present or former employees from economic reprisal. Disclosure is warranted, however, when the defendant will be denied a fair trial by failure to disclose.

In this case, defendant claims she will be denied a fair trial if the names of the employee-informers are not released to her because she must be able to determine whether those putative employees are, in fact, independent contractors and, thus, are not covered by the FLSA. Defendant claims that plaintiff has also calculated the amount of her liability based on employee questionnaires which plaintiff claims are protected under the informer’s privilege. Without access to such questionnaires, argues defendant, she cannot defend as to the extent of her liability. Finally, defendant argues that her needs far outweigh the possibility of economic reprisal against her employees since she has virtually ceased operations in Vermont.

After considering defendant’s arguments, the Court has concluded that, although her reasons for disclosure are meritorious, she is nevertheless not entitled to the demanded discovery since there are other means available to obtain the requested information. For example, perusal of her own records should identify whether defendant hired independent contractors or employees. Additionally, defendant should be able to discern from her own records whether, in fact, her workers were incorrectly compensated and, if so, by how much.

Finally, plaintiff has made a copy of the questionnaires available to the defendant and the Court. From the questionnaires the defendant can easily discern the formula utilized by the Department of Labor to calculate the defendant’s liability. Insofar as the desired information is available from other sources, the only other possible ground for disclosure is impeachment. It is, however, clearly improper to permit disclosure on this basis.

Therefore, in view of the fact that defendant has other sources from which to obtain the requested information and in view of the fact that disclosure may be harmful to the informers in particular and to enforcement of the Act in general, the Court declines to order disclosure of the informer’s names.

With regard to defendant’s requests to produce questionnaires, to the extent that such disclosure would reveal the identity of defendant’s employees who approached the plaintiff, production of those documents would violate the informer’s privilege. We also believe that the content of the employees statements and the questionnaires falls under the attorney work-product rule and, therefore, are protected from disclosure. See Fed.R.Civ.P. 26(b)(3). See also Hickman v. Taylor, 329 U.S. 495, 516, 67 S.Ct. 385, 396, 91 L.Ed. 451 (1947) (“Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.”) Therefore, disclosure of the documents requested in defendant’s requests to produce number 3 and 7 is not warranted.

ORDER

For the above-stated reasons, defendant’s motion to compel is DENIED.


author: PAINE, District Judge.

text:
    Marvin FRANCOIS, Petitioner, v. Louie WAINWRIGHT, Respondent.
    No. 85-1918-CIV-PAINE.
    United States District Court, S.D. Florida.
    May 25, 1985.

      Alton G. Pitts of Pitts, Eubanks, Hannah, Hilyard and Marsee, P.A., Orlando, Fla., for petitioner, Marvin Francois.
    Calvin Fox, Asst. Atty. Gen., Miami, Fla., for the State of Fla.
   ORDER DETERMINING PETITION FOR WRIT OF HABEAS CORPUS

PAINE, District Judge.

Before the Court is the second petition of Marvin Francois, a person in custody of the State of Florida, for a writ of habeas corpus authorized by 28 U.S.C. § 2254. Also before the Court are several motions ancillary to the petition for writ of habeas corpus. This order determines each of the pending applications for relief.

The procedural history of this case has been described in this Court’s order dated October 13, 1983, and in the decision of the Court of Appeals dated August 31, 1984, up to the latest of those two dates.

It will not be repeated here. No petition for rehearing nor for certiorari followed the Court of Appeals decision. Therefore, on April 23, 1985, the Governor of Florida signed a death warrant ordering that Francois be executed between May 22, 1985, and May 29, 1985. His execution has been scheduled for 7:00 AM May 28, 1985. On May 21, 1985, Francois filed in the Florida Supreme Court a petition for writ of habeas corpus. On May 22, 1985, Francois filed a second motion for post-conviction relief in the Circuit Court for the Eleventh Circuit in and for Dade County, Florida. Both these requests for relief have been denied.

The bases for habeas corpus relief are briefly summarized as follows:

Claim I (Claim III in State Court)
Francois was denied an individualized sentencing determination in violation of the eighth and fourteenth amendments to the U.S. Constitution because (a) the trial attorney reasonably believed Florida law restricted him to presentation of statutory mitigation evidence, and (b) the trial judge restricted himself to consideration of the statutory mitigation circumstances.
Claim II (Claim I in State Court)
The trial court’s instruction on first degree murder did not adequately guide the jury in its determinations of guilt and the verdict contains an insufficient finding of intent to support a sentence of death under the eighth and fourteenth amendments to the U.S. Constitution. Claim III (Claim II in State Court) Insufficiency of evidence to show that defendant killed, attempted to kill or intended that a killing take place to support a death sentence under the eighth and fourteenth amendments to the U.S. Constitution.
Claim IV (Claim IV in State Court)
The State’s closing arguments injected fundamental error because of prosecutorial misconduct in violation of the eighth and fourteenth amendments to the U.S. Constitution.

In response to each of these claims the state asserts that the second petition should be dismissed even if new grounds are shown, unless defendant can show why these claims were not earlier presented. 28 U.S.C. § 2254 Rule 9(b). This assertion is not supported by the record as to claims I, II and III. As will be hereinafter held, this abuse of writ response is determinative of claim IV.

As to claim I, whether Francois was denied individualized sentencing determination because his trial attorney reasonably believed until shortly before sentencing that he was precluded from presenting non-statutory mitigating evidence and because the trial judge restricted himself to consideration of statutory mitigating circumstances, the Court finds that such evidence was actually presented and that further development or enhancement of the same cannot reasonably be expected to have shown a significantly different factual picture. This conclusion was reached by the Court of Appeals in Francois v. Wainwright 741 F.2d 1275 (11th Cir.1984) in its evaluation of the claim of ineffectiveness of trial counsel. In its discussion of whether prejudice resulted to Francois as a result of allegedly unpresented mitigating evidence the Court said:

“And we agree with the district court that the unpresented mitigating evidence, which relates to Francois’ education, work history, and family life, would have no effect on the sentencing proceedings.” Id. at 1285.

Also, the sentencing jury in Francois’ case was provided with an instruction consistent with the subsequent evaluation of the law regarding mitigating factors in that the jury was told:

“The aggravating circumstances which you may consider are limited to those upon which I just instructed you. However, there is no such limitation upon the mitigating factors which you may consider.” (TR 1262)

There is no necessity in this case to decide whether Francois was prejudiced at the sentencing phase of his proceedings because mitigating factors beyond those specifically listed in the Florida statutes were introduced and because the jury was instructed properly on the point. It is inconceivable that the en banc re-consideration of Hitchcock v. Wainwright 745 F.2d 1332 (11th Cir.1984) will alter the result of the facts and procedures which the record of the instant case reveal.

Francois takes the position that because the instant case is in a procedural posture almost identical to that of Carl Ray Songer and because Songer’s execution has been stayed pending the en banc decision in Hitchcock, supra that Francois’ execution should be similarly stayed. However, in Songer non-statutory mitigating factors were not presented. Here, indeed, such factors were presented. The assertion that they were not fully developed or enhanced does not give rise to a conclusion of constitutional violation.

The Enmund/Ross Claims

Petitioner argues in claims II and III, that the jury instructions and the verdict rendered were insufficient on the issue of intent and that there was insufficient evidence of intent to kill to support imposition of the death penalty. The claims were addressed as one by counsel during the course of the May 25, 1985 hearing before this Court. For that reason they will be dealt with together in this order.

Initially the Court notes its rejection of the State’s abuse of writ argument directed towards the Enmund/Ross claims. There is arguable merit to the position that failure to raise an Enmund claim in the initial 2254 petition was inexcusable neglect. However, the fact that Tafero v. State, 459 So.2d 1034, 1035 (Fla.1984) firmly established that an Enmund claim was cognizable in post conviction proceedings lends arguable credence to the claim of excusable neglect. In light of the conflicting arguments which raise substantial issues as to the asserted abuse of writ the Court is compelled to resolve the conflict in favor of Petitioner and will proceed to discuss the merits of the Enmund/Ross claims.

The Court in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) held that

in the absence of proof that Enmund killed or attempted to kill, and regardless of whether Enmund intended or contemplated that life would be taken, we reverse the judgment upholding the death penalty____

Id. at 801, 102 S.Ct. at 3379. (Emphasis added). In Enmund the evidence at most supported an inference that Enmund had been the driver of a get-away car located some 200 yards from the scene of the murders. Id. at 784, 102 S.Ct. at 3369. In this case however the evidence, at most, supported a finding that Francois was the perpetrator of at least five out of six coldblooded murders. As such the facts in the instant case do not even remotely resemble those in the Enmund case. Clearly the Supreme Court’s mandate that the “circumstances” in Enmund were inconsistent with imposition of the death penalty do not apply to the instant case. Id. at 788, 102 S.Ct. at 3371.

Rather, this case is akin to that of Ross v. Kemp, 756 F.2d 1483 (11th Cir.1985). This Court need not go into a detailed recitation of the facts supporting the jury’s determination of guilt as to the charges of

first degree murder. Those facts have been exhaustively set forth time and again in the opinions of other courts considering Francois’ claims. Francois v. Wainwright, 741 F.2d 1275, 1277-78 (11th Cir.1984); Francois v. State, 423 So.2d 357 (Fla.1982); Francois v. State, 407 So.2d 885 (Fla.1981).

This Court further notes that the Ross decision, which is controlling on this Court, directs that the Court may make the Enmund intent finding on its review of the record. Ross, 756 F.2d at 1488. Despite the fact that the issue of whether the jury must make the finding of intent for the sentencing phase is pending before the United States Supreme Court on certiorari, Cabana, Supt. v. Bullock, — U.S.-, 105 S.Ct. 2110, 85 L.Ed.2d 476 (1985), this Court will refuse Petitioner’s request of a stay of execution pending the Supreme Court’s decision in Cabana. While Autry v. Estelle, — U.S. -, 104 S.Ct. 24, 78 L.Ed.2d 7 (1983) evidences Justice White’s preference of a stay, such action is not mandated by his review sitting as a Circuit Justice and will not be taken in this instance.

CLAIMS BASED ON PROSECUTOR’S STATEMENTS

Petitioner’s fourth claim is based upon alleged unconstitutional arguments made to the jury during both the guilt and sentencing phases of the proceedings below. The conviction itself is not challenged on this ground, but rather that the statements in toto “created an intolerable risk that the jury based its later sentencing and recommendation on the extraneous, inflamatory, and unreliable matters ‘injected’ through argument.”

The State responds that the assertion of this argument at the eleventh hour constitutes a blatant abuse of writ and therefore the State urges the Court to summarily reject this argument. It is axiomatic that if a habeas petitioner foregoes opportunities to present cognizable claims in initial petitions, assertion of those claims in successive petitions shall be barred unless the failure to assert those claims at an earlier proceeding was the result of excusable neglect. Johnston v. Estelle, 548 F.2d 1238, 1240 (5th Cir.1977).

Petitioner counters with the assertion that because the Eleventh Circuit’s decision in Hance v. Zant, 696 F.2d 940 (11th Cir.1983) was not rendered until after the first petition for writ of habeas corpus was presented to this Court, such failure was the result of excusable neglect. In Zant it was recognized that in the State of Georgia “it is most important that the sentencing phase of the trial not be influenced by passion, prejudice, or any other arbitrary factor.” Id. at 951.

Although it may be said that a case utilizing language which precisely deals with prosecutors’ comments during the sentencing phase was unavailable at the time Judge Aronovitz considered the initial petition, there was certainly ample authority upon which to make the argument. See, Donnelly v. De Christoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Cobb v. Wainwright, 609 F.2d 754, 756 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980). Consequently this Court finds the assertion of this claim to be abuse of the writ as the failure to raise the claim based on the prosecutors’ comments is a result of inexcusable neglect.

In the alternative the Court notes by way of dicta, the applicability of the rule of procedural default based on the applicability of the contemporaneous objection rule in Florida. See, Wainwright v. Sykes, 433 U.S. 72, 87-91, 97 S.Ct. 2497, 2506-08, 53 L.Ed.2d 594 (1977).

In this case it appears at least arguable that the Florida Supreme Court reached the merits of Petitioner’s claim as to prosecutorial comments as well as ruling on the question of procedural default. See, Exhibit B to State’s Response; Opinion of Florida’s Supreme Court in Francois v. State, 470 So.2d 687, 689 (1985).

In Dobbert v. Strickland, 718 F.2d 1518, 1524 (11th Cir.1983) the Court stated “[w]e have held, however, that where a state court clearly and correctly applies a procedural default rule, Sykes requires the federal court to abide by the state court’s decision even though the state court discusses the merits as an alternate ground for rejecting a claim.” Id. (emphasis added). In Dobbert the state court addressed the merits first in rejecting the claim, then found that “furthermore” petitioner therein had waived the right to present the claim because of a procedural default. Id. at 1525. In this instance, however, the Florida Supreme Court announced its rejection of the Petitioner’s claim because of procedural default and then went on to state that “[mjoreover, the comments in question were within the bounds of permissibility under the circumstances of the case.” This treatment by the Florida Supreme Court leaves no doubt that a clear finding of procedural default was made, mandating recognition by the dictates of Sykes.

Moreover, this Court notes its agreement with the Supreme Court’s finding that the comments made in this instance do not rise to the level of constitutional error to warrant remand for re-sentencing. See, Donnelly v. De Christoforo, supra and Cobb v. Wainwright, supra.

Having considered the petition for writ of habeas corpus as well as the ancillary motions now pending, memoranda and oral argument, it is

ORDERED AND ADJUDGED THAT

1. The motion of petitioner to proceed in forma pauperis is granted.

2. The motions of petitioner and respondent to exceed the page limit are granted.

3. The motion of respondent to transfer the proceedings to the docket of Hon. Sidney A. Aronovitz is denied.

4. The motion of the petitioner for an evidentiary hearing on the question of whether the second petition for writ of habeas corpus constitutes an abuse of the writ is denied.

5. The petition for writ of habeas corpus, for reasons stated herein, is denied and this action is dismissed.

6. The motion of petitioner for a stay of execution is denied.


author: ROY, District Judge.

text:
    BUSTER’S, INC. v. UNITED STATES of America, Internal Revenue Service.
    No. LR-C-85-103.
    United States District Court, E.D. Arkansas, W.D.
    May 31, 1985.
    Charles Darwin Davidson, Davidson Law Firm, Ltd., Little Rock, Ark., for Buster’s Inc.
    George Proctor, U.S. Atty. by Paul M. Predmore, Atty., Tax Div., Dept, of Justice, Washington, D.C., for the U.S.
   ORDER

ROY, District Judge.

Pending before the Court is the motion of the defendant to dismiss this action for lack of subject matter jurisdiction. Plaintiff has filed this action seeking a refund of overpayment taxes during certain stated periods. Plaintiff alleges that the IRS has attempted to assess Buster’s, Inc. with liability for certain quarters in the past several years for employment taxes, and Buster’s Inc. asserts that it is owed a refund of overpayment of taxes during certain periods.

The defendant states that this court lacks subject matter jurisdiction over plaintiff’s claim and gives two reasons therefor: 1) plaintiff has failed to allege the necessary jurisdictional grounds for an action in district court; and 2) plaintiff has failed to plead facts sufficient to effect a waiver of the defendant’s sovereign immunity.

As indicated by the defendant, nowhere in the complaint has plaintiff alleged any jurisdictional source for this action. Nor has plaintiff alleged any of the jurisdictional prerequisites to a refund action.

26 U.S.C. § 7422(a) provides:

No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.

Plaintiff does not allege that any such claim for refund was ever filed with the Secretary for any of the periods placed in dispute prior to the commencement of any legal action. It is clear that a filing of a timely administrative claim for refund is a prerequisite to the bringing of a tax refund suit. Zernial v. United States, 714 F.2d 431 (5th Cir.1983); Bruno v. United States, 547 F.2d 71 (8th Cir.1976). Since the requirement is jurisdictional it cannot be waived. Shanker v. United States, 571 F.2d 8 (8th Cir.1978). Since the plaintiff does not allege that a claim for refund was filed, this Court has no choice but to hold that it lacks subject matter jurisdiction.

The defendant also states that the district court does not acquire jurisdiction over a refund action until the taxpayer has made full payment of the disputed amount, and that nowhere has plaintiff alleged the taxes for each period in dispute have been paid. This point was the only substantive issue addressed by the plaintiff in his response to the motion to dismiss. Plaintiff contends that if an assessment involves separate taxable units such as divisible withholding taxes, the entire tax need not be paid. Even if the Court were to agree with the plaintiff on this issue, the complaint would nevertheless reveal a jurisdictional defect because no claim for refund has been asserted.

With respect to the sovereign immunity issue, it is well established that the United States as a sovereign, is immune from suit, except where Congress by specific statute has waived its immunity. Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 141, 92 S.Ct. 1456, 1466, 31 L.Ed.2d 741 (1972), reaffirming, United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941), and describing the “long-established principle” that the United States may not be sued without its consent. In granting its consent to be sued, the United States may attach such conditions as it deems proper, and in order to institute suit against the United States there must be strict compliance with all of those conditions. United States v. Sherwood, supra; Bear Valley Mutual Water Co. v. Riddell, 493 F.2d 948, 950 (9th Cir.1974). Such waiver of sovereign immunity is to be strictly construed. United States v. Michel, 282 U.S. 656, 660, 51 S.Ct. 284, 285, 75 L.Ed. 598 (1931).

To effect a waiver of sovereign immunity in a refund suit, the taxpayer must comply with Code Section 7422(a), (filing of a refund claim) and Code Section 6532(a) (period of limitations of refund suits). Because the plaintiff has failed to allege any of the above jurisdictional requirements, the sovereign immunity of the United States has not been waived.

Based upon the foregoing, the Court hereby dismisses this action.

      . The Court finds that there is no need to resolve this particular issue since the holding below disposes of the case entirely.

      . The plaintiff, in its response to the motion to dismiss, asks the Court to substitute the United States as a defendant.


author: STEGER, District Judge.

text:
    SIERRA CLUB, a non-profit corporation; the Wilderness Society, a non-profit corporation, Texas Committee on Natural Resources, a non-profit trust v. John R. BLOCK, in his official capacity as Secretary of Agriculture, et al.
    No. L-85-69-CA.
    United States District Court, E.D. Texas, Lufkin Division.
    June 4, 1985.

      Larry Daves, Daves & Hahn, Tyler, Tex., Douglas L. Honnold, Sierra Club Legal Defense Fund, Inc., Denver, Colo., for plaintiffs.
    Robert Wortham, U.S. Atty., Ruth L. Harris, Asst. U.S. Atty., Tyler, Tex., for defendants.
   ORDER

STEGER, District Judge.

I. BACKGROUND

On May 24, 1985, the Court heard the plaintiff’s Motion for a Preliminary Injunction together with the government’s responses to the plaintiff’s Motion. The focus of this dispute concerns the effectiveness of cutting pine trees to control the spread of Southern Pine beetles in Texas Wilderness Areas. Plaintiffs contend that the Forest Service’s present control techniques should be more carefully examined in a specific Environmental Impact Statement. The government believes exhaustive research has already been completed that establishes the usefulness of present control techniques.

Pending a trial on the merits and the possible preparation of a new impact statement, the plaintiffs have asked this Court to halt all timber cutting in the Texas Wilderness Areas. This Court is unwilling to impose such a rigid and comprehensive restraint on the management of these areas in light of the disastrous effects it could have. The Court finds it necessary, however, to grant plaintiffs some limited relief as outlined below.

To merit preliminary injunctive relief, the plaintiffs must establish four facts: (1) There is a substantial likelihood that plaintiffs will succeed on the merits, (2) there is a substantial threat of irreparable harm absent an injunction, (3) the irreparable harm threatened is greater than the harm that an injunction could cause, and (4) the public interest would be served by issuing an injunction. Tubwell v. Griffith, 742 F.2d 250, 251 (5th Cir.1984); Canal Authority of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974). Because the Court is unwilling to grant plaintiffs’ draconian request, yet finds it necessary to grant some relief, these four elements must be examined twice.

II. PLAINTIFFS’ REQUESTED RELIEF

A. Success on the Merits

For the purposes of this motion, the plaintiffs chose to develop only one of their three claimed violations. This discussion will be limited, therefore, to the likelihood that plaintiffs would succeed on the merits of the National Environmental Policy Act (NEPA) claim.

In the brief supporting their application for a preliminary injunction, the plaintiffs make the assumption that no Environmental Impact Statement was prepared prior to choosing a method for the control of Southern Pine Beetles in Texas. In response, the government enumerated five Environmental Impact Statements, one Environmental Assessment with two amendments, and numerous reports and studies all directed in whole or in part to the control of beetle infestations in the Texas National Forests. The question now is not whether these documents exist, but whether they are sufficient to comply with the requirements of NEPA.

In general, NEPA requires all federal agencies to evaluate any unavoidable adverse environmental impacts that may attend agency actions. Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 103 S.Ct. 1556, 1560, 75 L.Ed.2d 534 (1983); 42 U.S.C. § 4332(C). NEPA’s ultimate goal is to ensure that federal agencies make fully informed and well-considered decisions. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551, 98 S.Ct. 1197, 1215, 55 L.Ed.2d 460 (1978). To attain that goal, NEPA created the Council on Environmental Quality and empowered it to promulgate regulations designed to guide federal agencies in the preparation of the Environmental Impact Statements that were vaguely defined by NEPA. 42 U.S.C. §§ 4342, 4344.

One section of the Council’s regulations has earned a spotlight in this action. See 40 C.F.R. § 1508.28 (1984). The government maintains that its five prior Environmental Impact Statements discussed the pine beetle issue in a broad framework. Its subsequent Environmental Assessment incorporated the findings of these earlier statements and examined the control issue only in regard to the Texas Wilderness Areas. In the government’s opinion, this procedure satisfies NEPA’s review requirements as outlined in the Council’s regulations.

Plaintiffs contend that the environmental assessment and its two amendments are insufficient to allow the government to make a reasoned decision in this case. Plaintiffs have cited three cases where courts have decided that Environmental Assessments were inadequate, yet all three are distinguishable from the present action. In Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985), an Environmental Assessment was prepared analyzing the environmental impacts from the construction of a gravel logging road in a section of the Nezpearce National Forest in Idaho. The assessment did not discuss the adverse impacts of the timber cutting that the road was designed to facilitate, however. The court ordered the compilation of an Environmental Impact Statement that would consider the cumulative future impacts of the road and subsequent timber cutting. 753 F.2d at 760. Similarly, in Conner v. Burford, 605 F.Supp. 107, 22 E.R.C. 1605 (D.Montana 1985), an environmental assessment considered the effects of leasing mineral rights in the Flathead and Gallatin National Forests of Montana. The assessment failed to consider the impact of possible development of those mineral rights after they were leased. The court ordered a new statement that would account for these potentially deleterious effects. 605 F.Supp. 107, 22 E.R.C. at 1608.

In both Thomas and Conner, the environmental assessments were insufficient because they failed to consider potentially harmful developments that were certain to flow from the initial agency actions. It was as if the government had examined the consequences of building a dam without considering the effects of the water that would collect behind the dam. No such deficiency infects the assessment in this action. The cutting of timber to control pine beetles is not a necessary prelude to other, more extensive activities.

The third case cited by plaintiffs to attack the sufficiency of the assessment is National Wildlife Federation v. U.S. Forest Service, 592 F.Supp. 931 (D.Oregon 1984). Environmental groups filed suit to halt the sale of timber from the Siuslaw National Forest in Oregon. The trial court decided that the Environmental Assessments were inadequate for two reasons. First, a separate assessment was prepared for each harvest, thus preventing an evaluation of the cumulative effects of all the harvests. 592 F.Supp. at 942. By contrast, the assessment in this case is directed to an evaluation of the overall impacts from beetle control operations. There is not a separate assessment prepared for each area controlled. Second, the Oregon assessments failed to discuss the efficacy of the measures planned to prevent landslides in the harvested areas. 592 F.Supp. at 943. By contrast, the plaintiffs in this action failed to suggest any similar omission in the Environmental Assessment now under consideration.

That Environmental Assessment, issued in July of 1983, considers all of the potentially adverse environmental implications that could result from control of Southern Pine beetles in what were then “RARE II” Recommended Wilderness and Further Planning areas. In addition, it reviews the consequences of alternative methods of control and of no control. The second amendment to the assessment, which is in effect an additional assessment, further investigates the effects of beetle control in the new Texas Wilderness Areas.

In light of the facts presently developed, the Court believes that the defendants have evaluated the environmental effects of the control program in good faith, objectively, and in detail, and they have examined the alternatives sufficiently to permit a reasoned choice from among various options. See Texas Committee on Natural Resources v. Marsh, 736 F.2d 262, 266 (5th Cir.1984). Under these circumstances, it is apparent that the government has complied with NEPA, and plaintiffs have failed to demonstrate the likelihood of success on the merits.

B. Irreparable Harm

For the purposes of deciding this motion, the Court will presume that the loss of a significant number of trees constitutes an irreparable harm, at least to the extent that decades are required to replace the lost trees and their accompanying undergrowth. Once this presumption is adopted, however, one of the unique features of this case becomes apparent. If the plaintiffs are correct, continued timber cutting will mean the loss of thousands of pine trees in Texas Wilderness Areas for no valid reason. If the government is correct, a cessation of timber cutting will lead to the proliferation of Southern Pine beetles and the loss of even more thousands of pine trees in the Wilderness Areas. Either way, irreparable harm results. Since the merits of these contrasting positions remain to be determined, the resolution of this dilemma must lie in the balancing of the two potentially irreparable losses.

C. Balancing the Losses

To satisfy the third prerequisite for injunctive relief, the irreparable harm identified by the movant must be greater than the harm that an injunction could cause. It is in this regard that the Court finds the plaintiffs’ motion at its weakest.

The irreparable harm identified by the plaintiffs consists of the trees that will be cut as the Forest Service’s control program continues. The harm is easily identified and quantified. The losses are certain to occur. They are not without a purpose, however.

The Forest Service earnestly believes that fewer trees are lost because of its control program than would be lost if Southern Pine beetles were allowed to proliferate without restraint. By saving more trees in the long run, and by focusing particular attention on areas inhabited by the endangered Red Cockaded Woodpecker, the Forest Service also believes that its control methods best prevent the spread of beetles to lands adjoining the Wilderness Areas and best protect the threatened woodpeckers. Since this Court must choose the path of least destruction, these beliefs must be carefully considered. They will be evaluated in the light of the criticisms levelled by the plaintiffs.

Plaintiffs initially argue that since there is no scientifically established method for the direct control of Southern Pine beetles, the Forest Service’s timber cutting effort does nothing but waste the trees and their accompanying undergrowth. See, e.g., hearing testimony of Dr. David Wood. The government agrees that there is no known method to eradicate these beetles on an area wide basis, but are convinced that techniques directed at containing spot growth of beetles are 90% effective and essential. See hearing testimony of Dr. Ron Billings and David Oates. In short, the Forest Service has found that no way exists to prevent beetle outbreaks, but when outbreaks do occur, their program contains the new infestations to the spot area where they started.

The plaintiffs maintain that this spot cutting is ineffective. The government concedes that new smaller outbreaks sometimes follow such a cutting. Empirical studies indicate, however, that spot control methods result in a much smaller overall infestation than no control, and therefore cause a much smaller loss of trees. See Gov.Ex. No. 6, at 40, 47; R. Billing and H. Pase, “Spot Proliferation Patterns as a Measure of the Area-Wide Effectiveness of Southern Pine Beetle Control Tactics.” (Discusses effects of spot cutting on the serious beetle outbreaks of the mid-1970’s and compares those effects to the activity in uncontrolled spots.)

Plaintiffs contend that no method exists to predict the growth of beetle infestations or determine hazard areas of likely infestations. See Affidavit of Dr. Frederick M. Stephen; hearing testimony of Dr. David Wood. Defendants agree that population predictions on an area-wide basis are speculative, but that growth in individual spots can be predicted. See Gov.Ex. No. 6 at 31, R. Billings and B. Hynum, “Guide for Predicting Timber Losses from Expanding Spots in East Texas.” The Billings and Hynum method takes into account the number of trees infested, the size of the infestation, and its growth over the first 30 days after discovery, and extrapolates that data to predict future growth of that spot. In addition, the government has rated the Texas Wilderness Areas based on the likelihood of future spot infestations. The hazard ratings primarily focus on the fact that these areas contain the older stands of pine trees preferred by Southern Pine beetles. See Gov.Ex. No. 6 at 53, W. Nettleton and J. Smith, “Hazard Rating, Predicted Losses, and Control Alternatives for Southern Pine Beetle Damage on RARE II Proposed Wilderness and Further Study Areas on the National Forests in Texas.” Three of the five Texas Wilderness Areas are partially or entirely in high hazard areas. See Gov.Ex. No. 24. Overall, these predictive studies have been proven accurate by subsequent experience. See hearing testimony of Dr. Ron Billings.

Plaintiffs challenge the conclusions of these studies because they have not been replicated. See hearing testimony of Dr. David Wood. This challenge overlooks the fact that the Forest Service’s cutting techniques have been used for 15 years on over 5,000 spot infestations. Hearing testimony of Dr. Ron Billings. Numerous opportunities have arisen where the effectiveness of these techniques could be compared to uncontrolled spots. See, e.g., Gov.Ex. No. 6 at 40 (Billings and Pase study). The most striking examples of the effects of no control can be found in the Four Notch area and the Beech Creek Unit in the Big Thicket. In both areas, over 2,000 acres of pine trees were lost before delayed control techniques could bring the infestations under control. In the Four Notch area, 3,500 acres were ultimately lost, with the bulk of the losses occurring within six months. Hearing testimony of Dr. Ron Billings. Even if the plaintiffs have a valid complaint about the accuracy of some of these studies, they never indicated how serious the flaws were or what margin of error should be allowed.

Finally, plaintiffs contend that the beetle is a part of nature, and should be allowed to run its course. They believe that most infestations will quickly die out of their own accord. Empirical reviews, however, indicate that in 1984, only 50 to 60% of infestations containing fewer than 10 trees went inactive without control. See Gov.Ex. No. 20(h) at 7. When the infestations consisted of more than 10 trees but fewer than 30, only 14 to 26% went inactive without control. Where infestations included over 30 trees, only 5 to 20% went inactive without treatment. The Forest Service monitors all areas and uses control methods only when necessary. In Wilderness Areas, the restrictions on control are even more severe. See Gov.Ex. No. 9. The empirical data suggest that in most spots, if the Forest Service allowed the beetles to run their course in Wilderness Areas, that course could quickly encompass thousands of acres.

Many of the Texas Wilderness Areas are in high hazard zones, meaning they are particularly susceptible to beetle infestations. Summer months are the most important times for controlling beetles. Hearing testimony of Dr. Ron Billings; Gov.Ex. No. 6. The control techniques result in a net saving of timber. Gov.Ex. No. 20(h). The control techniques best protect Red Cockaded Woodpecker colonies. Where no control was used in the Four Notch area, three colonies were lost, three threatened, and only four remained intact. Affidavit of William M. Lannan at 8; see also Gov.Ex. No. 17. Halting the control efforts now would prevent the government from containing beetles during the critical summer months and during a period of peak cyclical infestations. The result would be the loss of thousands of acres of pines instead of hundreds.

On the basis of the facts now developed, the balance weighs heavily against injunctive relief. An injunction halting all cutting could lead to irreparable losses far in excess of those that will occur if the government’s cutting program continues. In light of this, the public interest would be disserved if such an injunction were granted. Plaintiffs’ Motion for a Preliminary Injunction is DENIED.

III. COURT-ORDERED RELIEF

While the plan outlined in Government Exhibit 9 for the control of Southern Pine beetles in Texas Wilderness Areas appears sound and well-reasoned, there is evidence to suggest that it is not strictly followed. The evidence offered by the plaintiffs revealed the following unexplained deviations:

1. Numerous hardwood trees (oaks, gums, dogwoods, and others) are being cut. Southern Pine beetles do not infest hardwood trees. At one cutting site, as many as 40% of the felled trees were hardwoods. Affidavit of James R. Jackson, 114. In another area, over 100 hardwoods were cut. Affidavit of Larry D. Shelton, ¶ 12. In some instances, cut hardwoods outnumber cut pines by a two to one margin. Jackson Affidavit, 115.

Since beetles only attack pines, the cutting of hardwoods is unnecessary. In past control efforts, hardwood trees have not been cut. In testimony before the Subcommittee on Public Lands and National Parks of the House Interior Committee, Dr. Ron Billings (the government’s primary witness at the hearing) made the following comments while describing a photograph of the Four Notch controlled area:

[T]he reason the buffer doesn’t show up well in the picture is because the hardwoods weren’t cut. The beetles only attack the pines, so it is only necessary to cut the pines ahead of the infestation. (Emphasis added.)

Gov.Ex. No. 19 at 105. The cutting of hardwoods at recent beetle control spots was unexplained at the hearing. The only justification offered was the need to remove dense hardwood stands that prevented pines from falling completely to the ground. According to Dr. Billings’ testimony, it is important that the cut pines be in a horizontal position. Plaintiffs’ Exhibit 3, however, is a slide showing a cut hardwood tree in the foreground, with no nearby pines, and in the background a cut pine, caught on another tree and not in a horizontal position.

2. Some cuts in the Wilderness Areas are in spots where no cuts should take place. The purpose behind control efforts in the Wilderness Areas is twofold: The first goal is to protect Red-Cockaded-Woodpecker-inhabitated pines from beetle attack, and the second is to prevent the spread of beetles to lands outside the Wilderness Areas. Gov.Ex. No. 6 at 1; Gov.Ex. No. 9 at 1. Cutting should only occur where necessary to accomplish these two goals. Nevertheless, some cuts are reportedly far away from both woodpeckers and wilderness boundaries. Affidavit of Edward C. Fritz, If 15.

3. Pine trees are at times cut in a manner that will do more to spread beetle infestations than control them. . Rather than cutting the trees so that they will fall into the already infested area, they are felled out into uninfested areas. Affidavit of Larry D. Shelton, 11 5; Affidavit of George Russell, 1111.

4. The Forest Service does not take advantage of natural boundaries when controlling spot infestations. In some areas, buffer zones have been created despite the existence of nearby natural boundaries such as rivers, cleared land, dense stands of hardwood trees, and developed roads and railroad rights-of-way. Russell Affidavit H 8; Shelton Affidavit 1117; Fritz Affidavit ¶ 12; James Jackson Affidavit H 4.

These four types of activities are outside the scope of the Forest Service’s own control guidelines as they are established in Government Exhibit 9. Restraining these activities satisfies the four prerequisites for injunctive relief. The large-scale cutting of hardwood trees does not control beetles since pine beetles only attack pine trees. The cutting of hardwoods and the other activities mentioned above are probably beyond the necessary measures for insect control allowed by law in Wilderness Areas. See 16 U.S.C. § 1133(d)(1). There is, therefore, a probability of success on the merits regarding these actions.

The unnecessary loss of trees, especially hardwood trees, is an irreparable harm under the presumption made earlier for the purposes of this order.

To the extent that the four activities listed above do not aid in the control of beetles, restraining them will not cause losses that would outweigh the losses incurred by the activities themselves. For the same reason, the public interest will not be disserved by restraining unnecessary activities.

IV. INJUNCTION

Plaintiffs’ affidavits and hearing testimony demonstrate that the defendants are going beyond their own prescribed control policies in at least some beetle control spots. It is the intent of this Court that the defendants strictly follow their own guidelines as set out in Government’s Exhibits 6, 7, 8, and 9. It is, therefore, ORDERED that:

(1) All cutting of hardwood trees shall cease except where absolutely essential to control operations. The presumption is now against the cutting of any hardwood trees, and the government shall bear the burden of justifying any hardwood cutting that is done.

(2) As provided in the Government’s Exhibit 6, control activities within Texas Wilderness Areas shall only be conducted where necessary to protect existing Red Cockaded Woodpecker Colonies or to prevent the spread of beetles to lands bordering the wilderness areas.

(3) Pine Trees should be cut in the manner referred to in Government’s Exhibits 6, 7, 8, and 9 and specifically explained in Government’s Exhibit 14(a). Of primary importance to the Court is the felling of trees in the direction of the infestation rather than away from it.

(4) Wherever possible, the government should take advantage of natural boundaries that will stop beetle proliferation as efficiently as buffer zones. In some places, roads, rivers, hardwood stands, and railroad rights-of-way may be just as effective in containing the beetles and may obviate the necessity for cutting some trees.

(5) The Court recognizes that cutting activities must vary according to the divergent areas and different sizes of infestations that will be encountered. To account for this, the regulations on cutting imposed by this Order, even as limited as they may be, must provide some discretion to the defendants. This discretion must be exercised with one goal in mind: that in Texas Wilderness Areas, only minimally sufficient steps should be taken to control Southern Pine beetles.

(6) To ensure compliance with this Order, the Court will require two things of the government. First, they must supervise cutting activities in Texas Wilderness Areas to ensure that those who actually implement the control measures follow the Forest Service’s own guidelines. Second, as each cutting operation is completed, the government must supply plaintiffs’ attorneys with information regarding the location and extent of the cut.

(7) In accordance with Rule 65(c) of the Federal Rules of Civil Procedure, applicants will be required to post a bond of one dollar ($1.00). The relief granted is not all that plaintiffs requested, and it only requires the government to more carefully follow its own guidelines. No damages could be incurred under these circumstances.

(8) A trial on the merits will be scheduled as soon as possible in the fall. This will allow both sides adequate time to conduct discovery and otherwise prepare for trial. The Court will contact the attorneys in the next few weeks in order to discuss appropriate scheduling deadlines.

      . The five Texas Wilderness Areas involved in this dispute are known as Big Slough (in the Davy Crockett National Forest), Turkey Hill (Angelina), Little Lake Creek (Sam Houston), Upland Island (Angelina), and Indian Mounds.

      . The five Environmental Impact Statements are entitled as follows: Strategy for Control of the Southern Pine Beetle in the Southeastern United States (1974) (includes Texas); Final Unit Plan and Environmental Impact Statement for the Sabine National Forest (1978); Final Environmental Impact Statement and Land Management Plan for the Sam Houston National Forest (1978); Final Environmental Impact Statement and Timber Management Plan for the Angelina National Forest (1978); and the Final Environmental Impact Statement and Timber Management Plan for the Davy Crockett National Forest (1980).

      . The Environmental Assessment Report is entitled “Southern Pine Beetle Control in RARE II Recommended Wilderness and Further Planning Areas in the National Forests in Texas” (July 1983), with a first amendment issued in October 1983 and a second amendment issued in October 1984.

      . The various reports and studies may be found in Government's Exhibits 10 through 23.


author: JAMES McGIRR KELLY, District Judge.

text:
    Linda J. SELLERS v. LOCAL 1598, DISTRICT COUNCIL 88, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, et al.
    Civ. A. No. 84-2373.
    United States District Court, E.D. Pennsylvania.
    June 10, 1985.

      Doris Applebaum, Bensalem, Pa., for plaintiff.
    Alaine S. Williams, Philadelphia, Pa., for defendants, Local 1598, Dist. Council 88, AFSCME and Frank Flatch, President.
    Clayton H. Thomas, Philadelphia, Pa., for defendant, Bensalem Tp.
   MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Presently before this court is defendant Local 1598, District Council 88, American Federation of State, County and Municipal Employees, AFL-CIO’s (AFSCME) motion for attorney’s fees pursuant to 42 U.S.C. § 1988.

Before addressing the fee award issue a review of the procedural and factual history of this case is necessary. Ms. Sellers is a township employee and a member of the local AFSCME union which operates under a collective bargaining agreement (CBA) with the township. The plaintiff was suspended without pay for chronic lateness but she alleged that the suspension for “cause” was merely a pretext for the township’s disparate treatment of her because she is a vocal political opponent of the township supervisors. Ms. Sellers was a registered member of the same party that controlled the local board of supervisors, however, she supported another faction within her party.

The CBA provides that an employee may appeal the suspension. The appeal process has four stages to it and Ms. Sellers had unsatisfactorily completed the first two stages. A step three hearing was to be held in front of the Board of Supervisors, which is composed of five (5) members, three Republican and two Democrats. Plaintiff believed that because of political animosity, she would be unable to receive an impartial hearing. Ms. Sellers commenced suit in this court seeking a temporary restraining order (TRO) to prevent the hearing from taking place. The TRO was denied. The basis of her claim was that the hearing as structured violated her procedural due process rights under the fourteenth amendment. Thereafter, Ms. Sellers amended her complaint appending civil rights claims against the union and the township as well as state pendent law claims.

The union and the township agreed to waive the hearing before the Board of Supervisors and submit the grievance to an arbitrator where a full evidentiary hearing would take place. I held that: “[b]y offering Ms. Sellers the opportunity to present her grievance in a forum which allows for a full evidentiary hearing along with an impartial arbitrator, the defendants have supplied relief which eradicates the effects of the alleged violations.” Sellers v. Local 1598, 600 F.Supp. 1205, 1209 (E.D.Pa.1984). I dismissed count I, II and IV of her amended complaint as moot.

In Count III Ms. Sellers claimed that she was entitled to a pre-suspension hearing. I noted that plaintiff had cited no case law for that proposition, nevertheless, I undertook an examination of her private interests, the risk of erroneous deprivation of her property rights and the government’s interest and found that a pre-suspension hearing was not warranted by the fourteenth amendment. Id. at 1211. Count VI of the complaint stated that the defendants conspired to deny her equal protection of the law because of her right wing political affiliation. 42 U.S.C. § 1985(3). In dismissing this count, the court held that § 1985(3) does not cover non-racial politically motivated conspiracy. Id. at 1212. Since no federal causes of action remained, the court declined to exercise jurisdiction solely over the pendent claims.

AFSCME contends that the basis for Ms. Sellers’ suit was frivolous, unreasonable and without factual foundation and since they are the “prevailing party” they are entitled to reasonable attorney’s fees under 42 U.S.C. § 1988.

DISCUSSION

The Civil Rights Act, 42 U.S.C. § 1988 provides the district court with discretionary power to award reasonable attorney’s fees to a prevailing party in any action under §§ 1981, 1982, 1983, 1985 and 1986.

The Supreme Court, in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) set forth the standard lower courts shall apply in determining whether awards should be made. The award of an attorney’s fee should only be made to the successful defendant where the action brought is found to be unreasonable frivolous, meritless or vexatious. Id. at 421, 98 S.Ct. at 700.

The Court went on to expound upon the meaning of these terms by underscoring the point that meritless is synonymous with groundless and/or without foundation. It is never meant to imply that because plaintiff failed to prevail on the merits the cause of action was “groundless’!. Lastly, a showing of the plaintiff’s subjective bad faith was not a prerequisite to a finding that the suit was motivated by the vexatious feelings of plaintiff towards defendant.

“In sum, a district court may in its discretion award attorney’s fees to a prevailing defendant ... upon a finding that the plaintiff’s action was frivolous, unreasonable or without foundation even though not brought in subjective bad faith.” Christiansburg, 434 U.S. at 421, 98 S.Ct. at 700.

The defendant can be said to have prevailed on two of the six causes of action stated in the complaint. This court, after close inspection, found no legal merit in Ms. Sellers’ claims that a presuspension hearing was warranted under the fourteenth amendment or that § 1985(3) was intended to provide a cause of action for non-racial, politically motivated conspiracy.

A threshold inquiry for the court to determine is can a defendant be a “prevailing party” when the plaintiff’s claims are either dismissed as moot or dismissed for lack of jurisdiction?

It is axiomatic that federal courts “are without power to decide questions that cannot affect the rights of litigants in ... case(s) before them”. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). The court determined that defendants’ agreement to waive the step three hearing in front of the Board of Supervisors rendered moot any issue of the procedural defects at that particular hearing. Thus, the court never addressed the issues of whether due process was violated by the lack of a full evidentiary hearing before a neutral arbitrator. A defendant cannot be said to have “prevailed” on an issue which evaporated prior to the court addressing it. Compare Cramer v. Virginia Commonwealth University, 486 F.Supp. 187, 192, n. 7 (E.D.Va.1980).

In the same light when a complaint is dismissed for lack of jurisdiction, the defendant cannot be a “prevailing party”. Defendant has not “prevailed” over the plaintiff on any issue central to the merits of the litigation. It is impermissible for the court to engage in post hoc analysis of the facts. Christiansburg, 434 U.S. at 422, 98 S.Ct. at 700. This is what would occur were we to now begin to sift and weigh the “facts” surrounding these four claims. They were not before the court and it would be an abuse of discretion to place them before it now.

Having disposed of these claims, our attention is drawn to the two remaining claims on which defendant prevailed. After careful consideration of plaintiffs legal position, the court concludes that her actions were not frivolous. I will address her § 1985 claim first.

This court did not have to examine whether Ms. Sellers presented credible evidence which showed or inferred that a conspiracy to deprive her of constitutional rights was conceived by the defendants. The decision to grant the union’s motion was based upon, inter alia, my reading of law which indicated that a non-racial politically motivated conspiracy is not actionable. Whether Ms. Sellers produced sufficient facts to indicate the existence of a conspiracy was immaterial and thus did not influence the outcome. Our inquiry bypassed the issue whether facts supported her claim and concentrated solely upon whether the breadth of § 1985(3) was intended to reach non-racially motivated acts. The final determination was that even had Ms. Sellers shown the defendants conspired to deny her rights because of a political affiliation, she would not state a cause of action under § 1985(3). Because neither the Supreme Court nor our own court of appeals has passed upon this issue it can be said to be an unsettled area of law. Counsel for Ms. Sellers had no precedent to draw on in guiding her and I am unwilling to characterize a novel legal theory as groundless because it did not succeed. As to the frivolity of Ms. Sellers’ request for a presuspension hearing, I noted in the memorandum addressing this issue that plaintiff cited no case directly supporting this proposition. The court’s research was unable to turn up any indication that presuspension hearings were constitutionally mandated. In spite of this paucity of case-law, the court does not believe that this issue was baseless, groundless and without merit. Ms. Sellers had already received two suspensions. Her next suspension would carry with it a thirty day penalty. Thirty days without any financial support can be a debilitating experience, equal in short term effect to a termination.

With the prospects of greater debt and without the means to support herself and her family, the plaintiff had a vested interest in determining whether, in view of the length of the suspension, a presuspension hearing was required. Examined in light of all the circumstances surrounding this issue, I do not believe that it was a frivolous claim on plaintiff’s part.

      . This process was the fourth and final step afforded an employee under the CBA.

      . The Cramer decision involved a plaintiff who was a "prevailing party”.