author: FISH, District Judge.

text:
    James ELBAOR, Plaintiff, v. GRAND PRAIRIE HOSPITAL AUTHORITY, et al., Defendants.
    Civ. A. No. CA 3-83-0034-G.
    United States District Court, N.D. Texas, Dallas Division.
    Oct. 22, 1984.

      Frank Hill and John L. Robinson, Hill, Heard, O’Neal, Gilstrap & Goetz, Arlington, Tex., for plaintiff.
    Wayne Pearson and Larry Hallman, Bur-ford & Ryburn, Dallas, Tex., Philip Dean Phillips, Maples, DeBusk, Phillips & Lollar, Fort Worth, Tex., James S. Vecchio, Arlington, Tex., for defendants.
   MEMORANDUM ORDER

FISH, District Judge.

Introduction

Since late 1982 friction between the plaintiff, Dr. James Elbaor, and the defendants has resulted in various acts by the latter that have conditioned or restricted Elbaor’s privileges at the defendant hospital. Elbaor claims that the defendants by their actions have violated his right to due process of law under the fourteenth amendment.

This case is before the court on defendants’ motion for summary judgment and plaintiff’s motion for partial summary judgment. For the reasons stated below, defendants’ motion is granted and plaintiff’s is denied.

I. Factual Background

James Elbaor is a licensed medical doctor and a board-certified orthopedic surgeon. He has been a member of the medical staff at defendant Dallas/Fort Worth Medical Center — Grand Prairie (the “Hospital”) since 1977. Prior to the events forming the basis of this action, Dr. Elbaor’s medical staff privileges were last renewed on September 15, 1982, for the year September 1, 1982, through August 31, 1983.

A. The Probation Episode

On November 29, 1982, the Membership, Ethics and Credentials Committee at the Hospital held a special meeting to discuss certain incidents concerning Elbaor. Elbaor attended the meeting at the committee’s invitation. At the meeting the committee reviewed two incident reports and a grievance report and asked Elbaor to respond to the reports, which were then shown to him for the first time. Elbaor denied all of the charges in the reports. The meeting resulted in a committee vote to request the Executive Committee to take “corrective action” against Elbaor. The committee chairman made this request in a letter dated November 29, 1982.

Article VIII, section 1, of the Hospital’s bylaws provides that when the chairman of a standing committee of the medical staff requests that “corrective action” be taken which could be a reduction or suspension of clinical privileges, the following procedures must be followed: (1) the request shall be forwarded to the chairman of the subject physician’s department, (2) who at that time shall appoint an ad hoc investigative committee, (3) which shall report its findings to the Executive Committee within 30 days, (4) but after giving the physician an opportunity for an interview with the ad hoc committee; and (5) at such interview the physician shall be informed of the charges against him and invited to respond to them. No ad hoc committee was created to investigate Elbaor’s situation regarding the “corrective action” request.

The Executive Committee convened on December 8, 1982, to consider the request, with Elbaor in attendance. After reviewing the incident and grievance reports and hearing Elbaor’s response, the Executive Committee issued to Elbaor a letter of warning dated December 10, 1982, informing him that he had been placed on probation for one year:

The Committee further directed that as a result of such behavior you receive probationary status for one year. During that year any instances of unprofessional or unethical behavior will be cause for summary suspension of your privileges to practice at the Medical Center.

In a letter dated December 9, 1982, Elbaor requested a due process hearing on the probation action. The defendants denied the request in a letter dated December 20, 1982. The Executive Committee took no further action during Dr. Elbaor’s probationary period, and Elbaor’s privileges were never suspended. Article VIII, section 2(a), of the Hospital’s bylaws is the only provision concerning summary suspension of clinical privileges. The section provides in part as follows:

[T]he Executive Committee ... shall have the authority, whenever action must be taken immediately in the best interests of patient care in the Medical Center, to suspend summarily all or any portion of the clinical privileges of a practitioner____

B. Removal from Teaching Staff and Emergency Room Call List

In December of 1982 the resident trainer for orthopedics removed Elbaor from the teaching staff for orthopedic residents. Elbaor was given no advance notice of this action, was not presented with written charges, and was not offered a hearing. Elbaor had received no special remuneration for his participation in the teaching program.

Then, on May 13, 1983, the Emergency Room Committee removed Elbaor from the emergency room call list for a six-month period for violation of express rules against the insertion of pins in the emergency room. The suspension ended after six months, and Elbaor was reinstated on the call list. Elbaor was given no advance notice of the May 1983 meeting, nor was he provided with written charges against him prior to the meeting.

Elbaor made no request for a hearing on this action. The defendants offered Elbaor a hearing on his suspension from the call list in an unsigned draft of answers to interrogatories dated September 23, 1983, and in signed answers dated October 5, 1983, and received by Elbaor on October 11, 1983. Although Elbaor did not pursue this option, he was reinstated to the call list on November 13, 1983. By a letter dated June 12, 1984, the defendants again removed Elbaor from the emergency room call list, this time for an indefinite period. Elbaor had received no special remuneration for his participation on the emergency room call list.

In April 1984 Elbaor applied for reappointment to the medical staff of Harris Hospital in Bedford, Texas, for the 1984-1985 medical staff year. In response to questions in the application, Elbaor answered that he had been subject to disciplinary action at the Dallas/Fort Worth Medical Center — Grand Prairie and summarized the probation, teaching staff removal, and emergency room call list removal actions. An official at Harris Hospital wrote Elbaor a letter dated August 13, 1984, informing him that Harris Hospital had tabled his request until his dispute with the Dallas/Fort Worth Medical Center was resolved.

II. Contentions of the Parties

Elbaor brought this action claiming among other things that the defendants’ placing him on probation deprived him of a property or liberty interest in his continued status as a nonprobationary doctor at the hospital and that this deprivation was without procedural or substantive due process. Elbaor further contends that the defendants failed to follow their own policies and procedures in placing him on probation, thereby depriving him of property or liberty without due process. Elbaor also maintains that he had a property or liberty interest in his participation on the teaching staff and the emergency room call list, and that the defendants deprived him of these property or liberty interests without due process of law.

The defendants have moved for summary judgment, in which motion they contend that the probation did not reduce, suspend, or revoke Elbaor’s privileges at the hospi-' tal and therefore did not infringe any property right or liberty interest requiring constitutional due process. In any event, they argue, due process safeguards were observed in the probation action.

With regard to the removal of Elbaor from the teaching staff, the defendants urge that Elbaor had no recognizable property or liberty interest to be constitutionally protected: that there is no constitutional property right to teach medicine and that Elbaor’s teaching was voluntary and uncompensated and his services were not rendered pursuant to any contract or other understanding with the hospital. Finally, the defendants contend that Elbaor’s participation in the emergency room call list was voluntary and unremunerated and, therefore, did not constitute a property or liberty interest and that, in any event, Elbaor’s failure to request a hearing on the emergency room call list removal actions waived any right to procedural due process.

Elbaor argues in response to the defendants’ motion that the terms of his probation subjected him to summary suspension for unspecified reasons (“unprofessional or unethical behavior”) which were broader than those allowed under the Hospital’s bylaws (“whenever action must be taken immediately in the best interests of patient care”). Elbaor contends, with respect to his removal from the teaching staff and the emergency room call list, that his participation in both programs conferred economic benefits on him, was terminable only on a showing of good cause, and indeed constituted staff or clinical privileges. Elbaor has also moved for partial summary judgment as to liability on the grounds of recovery pleaded against the defendants.

The defendants have responded to Elbaor’s motion by maintaining that Elbaor’s participation in the teaching and emergency room call list programs was for an indefinite period of time. According to the defendants, the yearly appointment to the medical staff was merely a condition precedent to Elbaor’s participation in these programs and did not automatically renew his position on the teaching staff and call list or entitle him to such participation for the following year. The defendants argue that participation in these two programs is not a staff or clinical privilege and that the teaching program is not designed to benefit the physician but rather to educate residents. The defendants also contend that Elbaor’s probationary status did not expose him to summary suspension under circumstances other than those authorized by hospital bylaws.

In Elbaor’s reply to the defendants’ response to his partial summary judgment motion, Elbaor contends that he did not waive his right to a due process hearing regarding his six-month suspension from emergency room call list privileges. A hearing was not offered until the fifth month of his suspension, which time was' too late, Elbaor argues, to be meaningful'. Elbaor could not receive an unbiased hearing before the Executive Committee anyway, he asserts, because he had already filed suit against the Committee.

III. Probationary Employment Status

The fourteenth amendment prohibits state deprivation of life, liberty, or property except in accordance with the principles of due process. The preliminary question for decision regarding the probation episode is whether the alleged deprivation involved a property or liberty interest. Elbaor contends that the defendants’ placing him on temporary probation stigmatized him and altered his employment status, thereby depriving him of a property or liberty interest.

A. Deprivation of Property

In order to have a property interest in a particular employment status, a person must have “a legitimate claim of entitlement to it.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1971). Property interests are created and defined not by the Constitution but “by existing rules or understandings that stem from an independent source such as state law.” Id.; Moore v. Otero, 557 F.2d 435, 437 (5th Cir.1977). Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), further explains that a benefit may be “property” under the fourteenth amendment “if there are [existing] rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.” Id. at 601, 92 S.Ct. at 2699 (citing Roth, 408 U.S. at 577, 92 S.Ct. at 2709).

Whether a public employer deprives an employee of a property interest merely by placing the employee on probation is a novel question. It has been held that medical staff privileges are a property interest for fourteenth amendment purposes where there is an explicit or implicit agreement that privileges are terminable only for cause and pursuant to a hearing, see Northeast Georgia Radiological Associates v. Tidwell, 670 F.2d 507, 510-11 (5th Cir.1982), and where removal of privileges “might effectively foreclose ... practicing in the area because of harm to [one’s] professional reputation and because of the lack of other [comparable] facilities,” Christhilf v. Annapolis Emergency Hospital Ass’n, Inc., 496 F.2d 174, 178 (4th Cir.1974).

The court is persuaded by the defendants’ argument that, in the absence of an actual reduction, suspension, or revocation of staff privileges, nonprobationary employment status itself is not a property right under the fourteenth amendment. Elbaor neither contends nor presents any evidence that his right to admit and treat patients at the defendant hospital was in any way infringed during the months he was on probation. Therefore, it is undisputed that the probation action did not deprive Elbaor of any recognizable property interest.

B. Deprivation of Liberty

A person establishes a fourteenth amendment liberty interest only by satisfying the “stigma-plus” test of Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976): i.e., he must show (1) defamation by a state official (2) in connection with a denial of “a right or status previously recognized by state law.” Id. at 710-11, 96 S.Ct. at 1164-65.

Although there are no cases on all fours with Elbaor’s situation, the case of Daly v. Sprague, 675 F.2d 716 (5th Cir.1982), cert. denied, 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 802 (1983), aff’d after remand, 747 F.2d 1465 (5th Cir.1984), is close in its facts and offers guidance here. In that case the plaintiff was a tenured professor at a medical school. The plaintiff’s supervisor removed the plaintiff’s clinical privileges as a faculty member but reinstated his privileges three weeks later.

The court affirmed summary judgment for the defendants because the plaintiff had shown no property right in the clinical privileges. The record was devoid of “any facts to establish the nature of Daly’s clinical privileges as they related to his tenure or to a contract with the Medical School or to any written or oral agreement with the Medical School.” Id. at 727 (emphasis in original).

Then, analyzing the plaintiff’s liberty interest claim under the Paul “stigma-plus” test, the court held that the plaintiff failed to satisfy the second prong of the test:

While some actions could be so devastating as to amount to a “loss of employment” and implicate a liberty interest, [Moore v. Otero, 557 F.2d 435, 438 (5th Cir.1977)], Daly simply did not allege facts to show that such a drastic change in status occurred in his situation. His privileges were removed after he indicated he would be unavailable; he did not, however, suffer loss of employment; he was still a tenured professor; on his return from voluntary leave his privileges were quickly restored. Any alleged damage to reputation because Daly could not see patients or because he would be forced to reveal the temporary loss of privileges does not implicate a liberty interest.

Id. at 728.

The essence of the “plus” that Elbaor asserts in his liberty deprivation claim is that his employment status was altered because the probation subjected him to closer scrutiny and attenuated his protection from summary suspension. Defendants dispute in their summary judgment papers the assertion that the terms of Elbaor’s probation were a relaxation of the summary suspension rules.

However, even assuming that the probation letter was not merely a warning and that it did make Elbaor’s continued employment security more precarious, this showing alone is insufficient to support an issue of deprivation of liberty. The kind of probation imposed here is not a “drastic change in status” as required in Daly v. Sprague, 675 F.2d at 278.

Certainly a more severe action was taken in Moore v. Otero, 557 F.2d 435 (5th Cir. 1977). In that case the plaintiff police officer was transferred from corporal duties to patrol officer duties, and a report was filed stating that he had failed to respond to another officer’s call for aid. Affirming the trial court’s granting of summary judgment for the defendants, the Fifth Circuit held that there was no deprivation of liberty:

Assuming that the report and the assignment stigmatized Moore, his retention of employment negates his claim that he was denied a “liberty.”
When an employee retains his position even after being defamed by a public official, the only claim of stigma he has derives from the injury to his reputation, an interest that Paul reveals does not rise to the level of a liberty interest. The internal transfer of an employee, unless it constitutes such a change of status as to be regarded essentially as a loss of employment, does not provide the additional loss of a tangible interest necessary to give rise to a liberty interest meriting protection under the due process clause of the fourteenth amendment.

Id. at 438.

Elbaor, like the plaintiff in Moore, maintained his employment after the alleged stigmatizing defamation. There was no showing of a change in his status that was so drastic as to amount to a loss of employment. Therefore, there is no genuine issue of fact to support Elbaor’s claim of denial of a liberty under the fourteenth amendment.

IV. Removal from Teaching Staff and Emergency Room Call List

The parties submit contrasting theories as to the nature of the plaintiff’s teaching staff and emergency room call list privileges. The defendants contend that Elbaor had no recognizable property or liberty interest because his teaching and emergency room services were voluntary, uncompensated, and noncontractual. Elbaor argues that he has a property or liberty interest because his participation in both programs (1) was terminable only for good cause, (2) was in fact part of his clinical privileges, or (8) yielded economic benefits to him.

Elbaor’s first argument, that there was a mutually explicit understanding that his participation was terminable only for good cause, is a proper statement of a property right recognizable under the fourteenth amendment. Even probationary employees have a property interest in their continued employment if the employer has a published policy of discharging only for good cause. Bueno v. City of Donna, 714 F.2d 484, 492 (5th Cir.1983).

Elbaor’s summary judgment evidence utterly fails, however, to show that there was a mutually explicit understanding that the Hospital would remove doctors from the teaching staff and the call list only for cause. Elbaor cites various passages from depositions where one of the defendants testified that it was his “understanding” (1) that members of the teaching staff were entitled to continue to serve until good cause for termination was shown and (2) that doctors on the emergency room call list could stay on the list until there was good cause for removal.

Yet there is no evidence that such policies had ever been formally adopted or that they had been communicated in any form to Elbaor. See Engelstad v. Virginia Municipal Hospital, 718 F.2d 262, 266 (8th Cir.1983) (position as director of pathology at a hospital not a property interest where there were no oral or written assurances or adopted rules, policies, or practices indicating that removal could be only for good cause). Elbaor has failed to show “a legitimate claim of entitlement” to continued participation in the teaching program and on the emergency room call list. See Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709 (person must have legitimate claim of entitlement to benefit in order to have property interest therein).

Elbaor’s contention that participation on the teaching staff and the emergency room call list was part of his staff privileges is a closer question of law. Nevertheless, the court is persuaded by the analysis in Englestad v. Virginia Municipal Hospital, 718 F.2d 262, a factually analogous case, that the teaching staff and emergency room call list privileges are not staff privileges.

In Englestad the plaintiff and the defendant hospital had an oral contract granting plaintiff staff privileges and under which he was to provide pathology services at the hospital. In addition to his position as a medical staff member, the plaintiff had the title of chief of the department of pathology — “a largely figurehead position” (id. at 264) — and was the director of the pathology department. As director, the plaintiff had such administrative duties as keeping the department’s books and hiring and firing employees. The director’s position arose out of the same oral contract in which the plaintiff undertook to provide pathology services. In this contract the parties never agreed on any particular length of time during which the plaintiff would remain a director, nor did the contract require cause for termination. The plaintiff brought a section 1983 action claiming denial of procedural due process two years after the hospital notified him by letter that it was terminating his contract but leaving his staff privileges intact.

The Eighth Circuit affirmed the trial court in holding that the plaintiff had no constitutionally protected property interest in his continued status as director of the pathology department. Id. at 265-66. The court noted that the oral contract on which the director position was based was a personal services contract with an indefinite term and cited state law to the effect that such contracts are terminable at will. Id. at 266. The court also observed, as a further basis of its holding, that “[t]he hospital made no assurances, oral or written, and adopted no rule, policy, or practice indicating that Dr. Englestad’s contract would be terminable only upon just cause.” Id.

In addition, the court rejected the plaintiff’s contention that the termination of his contract reduced or terminated his staff privileges:

Generally, staff privileges permit a doctor to use hospital facilities to practice his medical profession.
He H< * H*
We cannot agree that the hospital’s bylaws’ procedural requirements applicable to termination or reduction of staff privileges should be expanded in this case to give Dr. Englestad a protectible property interest in his director’s position ____ Dr. Englestad’s staff privileges guaranteed him only the authority, not the wherewithal, to practice his profession. His authority to practice his profession at the hospital has not been reduced or terminated, but remains intact.

Id. at 267-268.

This court agrees with the Englestad analysis that staff or clinical privileges are those privileges which are directly related to the practice of the medical profession. Elbaor’s teaching staff and emergency room call list privileges were independent of his privileges to practice medicine at the Hospital; therefore, the Hospital’s bylaws restricting its power to summarily suspend clinical privileges should not be read to apply to Elbaor’s participation in those programs.

Elbaor also argues that because he derived economic benefits from being on the teaching staff (in that residents and interns performed tasks that otherwise would fall to the physician) and the emergency room call list (in that the physician would receive new patients by assignment), he therefore holds a protectible property interest in both programs. Because, however, he fails to show any “rules or understandings that secure” these benefits, see Roth, 408 U.S. at 577, 92 S.Ct. at 2709, this contention too fails to raise a question of fact, as to whether the Hospital violated Elbaor’s due process rights.

Conclusion

For the foregoing reasons the court finds that there is no genuine issue as to any material fact in this action and that the defendants are entitled to summary judgment as a matter of law. Accordingly, defendants’ motion for summary judgment is GRANTED, and plaintiff’s motion for partial summary judgment is DENIED.

      . "The existence of a legitimate property or liberty interest is prerequisite to the examination of any claimed threat to procedural due process.” Thurston v. Dekle, 531 F.2d 1264, 1271 (5th Cir.1976), vacated on other grounds, 438 U.S. 901, 98 S.Ct. 3118, 57 L.Ed.2d 1144 (1978) (mem.); see also, e.g., Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976); Goss v. Lopez, 419 U.S. 565, 572-73, 95 S.Ct. 729, 735, 42 L.Ed.2d 725 (1975); Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

      . On the other hand, there are numerous cases holding that discharge, failure to renew the employment contract, or demotion of an employee may be a denial of a property right. See Perry
        v. Sinderman, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972) (nonrenewal of contract); Bueno v. City of Donna, 714 F.2d 484, 492 (5th Cir.1983) (discharge); Conley v. Board of Trustees of Grenada County Hospital, 707 F.2d 175, 181 (5th Cir.1983) (discharge); Daly v. Sprague, 675 F.2d 716, 727 (5th Cir. 1982), cert. denied, 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 802 (1983), aff'd after remand, 742 F.2d 896 (5th Cir.1984), (removal of medical staff privileges); Northeast Georgia Radiological Associates v. Tidwell, 670 F.2d 507, 511 (5th Cir.1982) (removal of medical staff privileges); Glenn v. Newman, 614 F.2d 467, 471 (5th Cir. 1980) (discharge); Roane v. Callisburg Independent School District, 511 F.2d 633, 637-38 (5th Cir.1975) (discharge); Johnson v. San Jacinto Junior College, 498 F.Supp. 555, 568 (S.D.Tex. 1980) (demotion).

      . Elbaor submits that the broadened scope of summary suspension power is evident from a comparison of language in article VIII, section 2a, of the Medical Staff Bylaws ("whenever action must be taken immediately in the best interest of patient care”) with language in the December 10, 1982, letter advising Elbaor of the probation action ("any instances of unprofessional or unethical behavior will be cause for summary suspension”).

      . Elbaor also argues that a section 1983 liberty interest claim passes summary judgment examination if there is evidence that the alleged stigmatizing action creates the probability that he will lose future employment prospects. This argument is just another way of saying that Elbaor will probably suffer future injury because of the alleged defamation to his reputation. In Daly v. Sprague, 675 F.2d 716, the Fifth Circuit faced the same argument and held that mere injury to future employment prospects was not enough to implicate a liberty interest. "[Wjhen there is no loss of employment or showing of the possibility of foreclosure from future employment, no Goss [v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975),] liberty interest is implicated.” Id. at 728 n. 13 (emphasis added). Elbaor has not shown any possibility of foreclosure from future employment. Any damages he may suffer in the form of lost employment opportunities — short of foreclosure from employment — may be recoverable in an action based on Texas tort law but not in an action under the fourteenth amendment and section 1983. See Paul v. Davis, 424 U.S. at 711-12, 96 S.Ct. at 1165.

      . The court in Englestad touched on the issue of economic value in a similar context. That court noted that the mere fact that the plaintiff pathologist derived economic value from his directorship position in conjunction with his privileges to practice medicine in the defendant hospital did not mean that he could claim the directorship as part of his staff privileges:
      [Staff privileges do not] guarantee a doctor that his authorized practice in the hospital will have a particular economic value. Rather, the use a doctor makes of his staff privileges depends on some independent source. In the case of a physician or surgeon, that independent source is typically the operation of his private practice.

        Englestad, 718 F.2d at 267.

      . In view of the court's determination that Elbaor is not entitled to any relief on the merits, his motion for preliminary injunction must also be denied.


source: Caselaw Access Project

author: EGINTON, District Judge.

license: Public Domain

text:
    HYDRO AIR OF CONNECTICUT, INC., Plaintiff, v. VERSA TECHNOLOGIES, INC. and Power Draulics-Nielsen, Inc., Defendants.
    Civ. No. N-81-145 (WWE).
    United States District Court, D. Connecticut.
    Oct. 31, 1984.

      See also, D.C., 99 F.R.D. 111.

      Donald Lunt, Fay & Lunt, Wallingford, Conn., for plaintiff.
    Shaun S. Sullivan, Wiggin & Dana, Mark R. Kravitz, New Haven, Conn., Scott W. Hansen, Reinhart, Boerner, Van Deuren, Norris & Rieselbach, Milwaukee, Wis., for Versa Technologies.
    John Callagy, New York City, Taggart D. Adams, Kelley, Drye & Warren, Stamford, Conn., Paul Barenholtz, Kelley, Drye & Warren, New York City, for Power Draulics-Nielsen.
   RULING ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

EGINTON, District Judge.

Plaintiff is engaged in the business of selling hydraulic and pneumatic systems and components in the New England states. It alleges that the defendant Versa Technologies, Inc., through its Milwaukee Cylinder division (hereinafter “Milwaukee”), unlawfully terminated plaintiff as an authorized distributor/representative of Milwaukee products. Both defendants have filed motions for summary judgment dismissing plaintiff’s claim. Defendant Power Draulics-Nielsen, Inc. (hereinafter “PDN”) has also moved for summary judgment on its counterclaim.

Summary judgment should not be improvidently granted, especially in an antitrust case. Reversal of an imprudent grant of summary judgment in defendants’ favor would delay the start of plaintiff’s trial. Nevertheless, legal issues which may be resolved short of trial should be decided. In order to prevail on a motion for summary judgment, the movant must show that there is no genuine issue of material fact and that judgment should be entered as a matter of law. Robertson v. Seidman & Seidman, 609 F.2d 583, 591 (2d Cir.1979). Therefore, the court is permitted pursuant to Fed.R.Civ.P. 56(d) to ascertain those material facts which are not substantially controverted and to determine those questions of law dependent upon uncontroverted facts.

In August 1972, plaintiff was authorized to act as Milwaukee’s exclusive sales agent in southern Connecticut. Occasionally plaintiff purchased Milwaukee products from Milwaukee Cylinder as a distributor for resale. It is alleged that in 1979 Milwaukee authorized plaintiff to sell Milwaukee products throughout the entire state of Connecticut, thereby allowing plaintiff to compete with another distributor/reprer sentative, Fluid Kenetics. It is undisputed that on December 3, 1980, Milwaukee notified plaintiff that it would be terminated effective January 3, 1981. Apparently Fluid Kenetics was terminated also by Milwaukee. In their place, Milwaukee appointed defendant PDN as its exclusive distributor/representative in New England. For a period of time, plaintiff was able to place orders for Milwaukee products through a Milwaukee dealer in New York, but incurred a substantial reduction in profits.

Plaintiff claims the defendants violated Section 1 of the Sherman Act, sections 35-26, 35-2.7, and 35-28 of the Connecticut Anti-Trust Act, and the Connecticut Unfair Trade Practices Act. In addition, it is alleged that Milwaukee violated the Connecticut Franchise Act and the covenants of good faith and fair dealing. PDN is alleged to have intentionally and improperly interfered with plaintiffs business relations.

By counterclaim, PDN argues that plaintiff instituted its action for the purpose of harassment, in the absence of a colorable claim, with malice and without probable cause. Summary judgment is requested for the defendants on both the complaint and the counterclaim. For the reasons set forth beloWj the Motions for Summary Judgment are denied.

FEDERAL ANTITRUST

In count I of its complaint, plaintiff claims that the defendants entered into a conspiracy in violation of Section 1 of the Sherman Act to terminate plaintiff as Milwaukee’s representative/distributor and to appoint PDN as Milwaukee’s representative for New England. Defendants have moved for summary judgment on the basis that the mere substitution of sales agents does not violate antitrust law. Ace Beer Distributors, Inc. v. Kohn, Inc., 318 F.2d 283 (6th Cir.1963). This is a correct assessment of the law, but plaintiff is alleging more than mere substitution. Where a refusal to deal is not unilateral but is prompted by an understanding with other parties, there may be an antitrust violation. Cernuto, Inc. v. United Cabinet Corp., 595 F.2d 164, 168 (3rd Cir.1979). Plaintiff is alleging a vertical restraint, i.e., a combination of persons at different levels of the market structure, such as one between manufacturers and distributors. Oreck Corp. v. Whirlpool Corp., 579 F.2d 126, 131 (2d Cir.), cert. denied 439 U.S. 946, 99 S.Ct. 340, 58 L.Ed.2d 338, rehearing denied 439 U.S. 1104, 99 S.Ct. 883, 59 L.Ed.2d 65 (1978). Vertical restrictions are not per se violations of the Sherman Act, when the alleged agreement is an exclusive distributorship. Id. Plaintiff was Milwaukee’s sole representative in southern Connecticut. See Exhibit B to the complaint.

The “rule of reason” test must, therefore, be applied. The alleged agreement between Milwaukee and PDN is violative of section 1 of the Sherman Act only if it is anticompetitive in purpose or effect. Oreck Corp., 579 F.2d at 126.

Plaintiff claims that it has been deprived of the Milwaukee product line, which it cannot effectively replace. See Gaudet Affidavit of Aug. 24,1984 at 4. It is contended that because 40% of plaintiff’s customers in the Connecticut area were purchasing Milwaukee products and these customers accounted for 80% of plaintiff’s total sales, plaintiff lost sales not only of Milwaukee cylinders, but also of other products as well. Complaint, ¶ 37; Gaudet Affidavit of Aug. 24, 1984 at 4.

Plaintiff argues that one of the purposes of the conspiracy was to damage the ability of the plaintiff and of Fluid Kenetics to compete with PDN in the sale of other products. There is evidence that the competitors’ cylinders were not met with the same level of acceptance from plaintiff’s customers. Gaudet Affidavit of Aug. 24, 1984 at 4. In fact, plaintiff argues that because Milwaukee cylinders were the “Cadillac” of cylinders, there is no real competition at all. The facts are disputed on this issue. Milwaukee claims that there is not much difference between its cylinders and those of its competitor, Wabco. As evidence, it offered the deposition of plaintiff’s sales manager. Deposition of Pueschel, Sept. 30, 1981 at 33-34. Although the availability and price of Milwaukee products have not been affected, the market for other products may have been adversely impacted. Westman Commission Co. v. Hobart Corp., 461 F.Supp. 627 (D.Colo.1978). Hence, there is a genuine dispute as to material facts and summary judgment may not be granted as to this issue.

In addition, plaintiff argues that Milwaukee terminated two dealers, both of whom were directly competing in the sale of Milwaukee products in northern Connecticut, and replaced them with one dealer, thereby eliminating intrabrand competition. There was apparently no written agreement authorizing plaintiff to sell Milwaukee products in northern Connecticut. However, plaintiff claims that an agreement was made. Complaint ¶ 23. Milwaukee has offered no evidence to dispute this. Suppression of intrabrand competition is lawful only if interbrand competition acts as a check on the exploitation of intrabrand market power. Alladin Oil Co. v. Texaco, Inc., 603 F.2d 1107, 1116 (5th Cir.1979). Because there is a dispute as to whether there is any real interbrand competition, summary judgment is inappropriate at this time.

CONNECTICUT ANTI-TRUST ACT

The Connecticut Anti-Trust Act, Conn.Gen.Stat. §§ 35-24-35-44, incorporates various provisions of the federal antitrust laws, especially § 1 of the Sherman Act. Elida, Inc. v. Harmor Realty Corp., 177 Conn. 218, 226, 413 A.2d 1226 (1979). For the reasons stated in the previous section, summary judgment is denied as to count II of the complaint.

THE CONNECTICUT UNFAIR TRADE PRACTICES ACT

Defendants Milwaukee and PDN have moved for summary judgment also as to count III of the complaint. Conn.Gen. Stat. § 42-110b, the Connecticut Unfair Trade Practices Act (CUTPA), provides that “no person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 473 A.2d 1185 (1984) sets forth the required elements of proof under the Act. The plaintiff must establish either unfair methods of competition or unfair or deceptive acts or practices which have a potential effect on the general consuming public. A business person can maintain a CUTPA cause of action without showing consumer injury.

As noted in the McLaughlin opinion, Connecticut courts have adopted the Federal Trade Commission’s “cigarette rule” as furnishing appropriate criteria by which to determine whether a given practice is unfair.

(1) [Wjhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive or unscrupulous; (3) whether it causes substantial injury to consumers (competitors or other businessmen). 192 Conn, at 568, 473 A.2d 1185.

Based upon the preceding sections of this opinion, the court finds that there is a material issue of fact as to whether the defendants’ alleged conduct offended a public policy.

The defendants argue that CUTPA is inapplicable because there is no potential effect on the consuming public. Conn. Public Act 84-468 recently amended CUT-PA so as to not require proof of public interest or public injury. However, the act. takes effect from its passage. A statute affecting substantive rights is intended to apply prospectively only. Nagle v. Wood, 178 Conn. 180, 187, 423 A.2d 875 (1979). Thus, plaintiff must establish a potential effect on the public. As previously discussed in the antitrust section of this opinion, there is a genuine issue of material fact concerning the effect of the defendants’ alleged conduct on intrabrand and interbrand competition.

THE CONNECTICUT FRANCHISE ACT

In count IV of its complaint, plaintiff alleges that Milwaukee’s termination of its agreement with plaintiff was a violation of the Connecticut Franchise Act, Conn. Gen.Stat. §§ 42-133e — 42-133h. If a business relationship constitutes a franchise within the meaning of the Act, it may not be terminated except upon good cause and upon sixty days written notice. Defendants maintain that the Act is not applicable, because the relationship between plaintiff and Milwaukee was not than of a franchise.

Conn.Gen.Stat. § 42-133e(b) provides the definition of a franchise.

“Franchise” means an oral or written agreement or arrangement in which (1) a franchisee is granted the right to engage in the business of offering, selling or distributing goods or services under a marketing plan or system prescribed in substantial part by a franchisor ... and (2) the operation of the franchisee’s business pursuant to such a plan or system is substantially associated with the franchisor’s trademark, service mark, trade name, logotype, advertising or other commercial symbol designating the franchisor or its affiliate...

Milwaukee contends that it did not prescribe, in substantial part, a marketing plan for the plaintiff and that plaintiff’s business was not substantially associated with its trade name.

The first question is whether plaintiff was granted the right to engage in offering, selling or distributing Milwaukee products under a marketing plan or system prescribed in substantial part by Milwaukee. It is undisputed that there was an agreement between plaintiff and Milwaukee whereby plaintiff was granted the right to act as Milwaukee’s representative for the sale of Milwaukee products. In Consumers Petroleum of Connecticut, Inc. v. Duhan, 38 Conn.Supp. 495, 452 A.2d 123 (1982), Judge Daly, writing for an appellate session of the superior court, set forth a number of relevant factors for this determination. They include whether the franchisor set the hours of operation, number of employees, and placement of advertising signs. In addition, it is relevant whether the franchisor hired the employees, provided the management training or offered financial support.

In a recent unreported decision of the United States District Court for the District of Connecticut, Judge Brieant, sitting as a visiting judge, recognized that many of these factors are relevant only to retail sales businesses. Grand Light and Supply Co., Inc. v. Honeywell, Inc., Civ. Action No. N-78-342 (TFGD), slip op. at 23 (D.Conn. July 13, 1984). Because the defendant therein was obliged to hold management conferences, sales meetings and training seminars and to provide promotional assistance, the court concluded that the defendant prescribed the material elements of plaintiff’s marketing plan for the sale of defendant’s products.

The case at bar is remarkably similar. Milwaukee offered training seminars, provided promotional and sales materials, established requirements concerning credit ratings, and set sales goals and forecasts. Milwaukee has not disputed these facts in its affidavits or depositions. The court, therefore, finds that Milwaukee did- prescribe at least some elements of a market plan with' respect to plaintiff’s sale of Milwaukee products. It is for the trier of fact to determine whether it was prescribed in substantial part by Milwaukee.

The second issue is whether the operation of plaintiffs business pursuant to such a plan was substantially associated with Milwaukee's tradename. Milwaukee contends that the holding in Muha v. United Oil Co., 180 Conn. 720, 433 A.2d 1009 (1980) prohibits a finding of substantial association. In Muha, the parties’ agreements did not require the plaintiffs to sell only the defendant’s products, and the plaintiffs, in fact, derived most of their profits from other sales and services. Justice Healey stated that the plaintiff’s activities were not substantially related with the defendant’s trademark. Id. at 726, 433 A.2d 1009. However, it is recognized that this is mere dicta. The actual holding of the court was that there was no franchise because the defendant had no trademark or trade name of its own.

The Grand Light case considered the same unique issue presented herein: does the Connecticut Franchise Act apply to an authorized sales representative/distributor whose gross revenue from the sales of the alleged franchisor’s products account for only 2% of its total income. Grand Light, slip op. at 16. Judge Brieant concluded that it did. He based his decision upon the absence of any Connecticut law otherwise and the plain meaning of the statute. Conn.Gen.Stat. § 42-133e(b) requires that the “operation of the franchisee’s business pursuant to such (marketing) plan or system ” be “substantially associated” with the franchisor’s trademark or trade name (emphasis added). Although it is admittedly a difficult question, this court agrees with Judge Brieant’s conclusion.

Because this is a diversity jurisdiction action with respect to count IV of the complaint, this court must apply the substantive law of the state of Connecticut under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Mere obiter should be entitled to little weight. Nolan v. Transocean Airlines, 290 F.2d 904 (2d Cir.), cert. denied 368 U.S. 901, 82 S.Ct. 177, 7 L.Ed.2d 96 (1961). Moreover, the statute requires that the business activities relating to the market plan be substantially associated with the franchisor’s trademark or trade name. It does not require the plaintiff’s entire business to be so associated. Indeed, the court can find no reason to exclude from the operation of the statute a business that acts as a franchisee for several franchisors.

Defendant Milwaukee has not disputed plaintiff’s association with Milwaukee’s trade name. Whether or not it is sufficient to constitute substantial association is a question for the trier of fact to determine. Summary judgment is, therefore, denied as to count IV.

COVENANT OF GOOD FAITH

In counts V and VI of the complaint, plaintiff contends that defendant Milwaukee breached the covenants of good faith and fair dealing implied in the parties’ contractual relationship and imposed by Conn. Gen.Stat. § 42a-l-203. Milwaukee has moved for summary, judgment against the plaintiff as to these counts on the ground that neither a common law nor a U.C.C. good faith duty can override contract terms. In support thereof, Milwaukee has cited two cases which hold that a good faith obligation cannot be implied if it would be inconsistent with the express terms of the contract. See Cardinal Stone Co., Inc. v. Rival Manufacturing Co., 669 F.2d 395 (6th Cir.1982); Corenswet v. Amana Refrigeration, Inc., 594 F.2d 129 (5th Cir.), cert. denied 444 U.S. 938, 100 S.Ct. 288, 62 L.Ed.2d 198 (1979).

In Corenswet, the Court of Appeals for the Fifth Circuit recognized that courts have begun to read a good faith limitation into contracts. It declined to impose this limitation in Corenswet because there was no existing backdrop of Iowa state law supporting it. 594 F.2d at 137. Cardinal Stone expressly relies upon the Corenswet decision. 669 F.2d at 396.

Conn.Gen.Stat. § 42a-l-203 provides that “every contract or duty within this title imposes an obligation of good faith in its performance or indorsement.” As a commercial agreement, the Hydro Air/Milwaukee contract is clearly governed by this provision. A Connecticut trial court has applied the identical provision con-, tained in the Restatement (Second) of Contracts § 231 to an at-will employment contract. Magnan v. Anaconda Industries, Inc., 37 Conn.Supp. 38, 429 A.2d 492, 494 (1980). There is, therefore, an existing body of Connecticut law supporting plaintiff’s contention. Milwaukee’s motion for summary judgment is denied as to these counts.

WRONGFUL INTERFERENCE WITH BUSINESS RELATIONS

By counts VII and VIII of its amended complaint, plaintiff claims that defendant PDN intentionally and improperly interfered with plaintiffs business relationship with Milwaukee. PDN argues that summary judgment is appropriate because plaintiff has failed to allege independent tortious activity.

PDN relies upon the case Blake v. Levy, 191 Conn. 257, 464 A.2d 52 (1983) for its contention that plaintiff must prove fraud, misrepresentation or intimidation. However, the Blake opinion goes on to state that “in an action for intentional interference with business relations, we think the better reasoned approach requires the plaintiff to plead and prove at least some improper motive or improper means.” Id. at 262, 464 A.2d 52. Plaintiff has alleged that such conduct was intentional and improper. Amended Complaint, II43. An affidavit submitted by the plaintiff raises an inference that PDN’s actions were motivated by a desire to increase its business at the expense of plaintiff. Affidavit of Gaudet, August 24, 1984, ¶ 6.

PDN argues that its conduct was not improper. However, in view of this court’s determinations on the issues of the antitrust and unfair trade practice allegations, there are sufficient issues of disputed material facts to make summary judgment inappropriate on the counts of wrongful interference with business relations.

Defendant PDN’s counterclaim is based upon plaintiff’s alleged failure to establish a colorable claim. In view of this court’s determination on the motions for summary judgment as to plaintiff’s complaint, PDN’s motion for summary judgment on the counterclaim is DENIED. Accordingly, all motions for summary judgment are DENIED.

SO ORDERED.


author: REDDEN, District Judge:

text:
    UNITED STATES of America, Plaintiff, v. JUVENILE, Defendant.
    No. CR 84-125-RE.
    United States District Court, D. Oregon.
    Nov. 9, 1984.

      Charles H. Turner, U.S. Atty., William W. Youngman, Asst. U.S. Atty., Portland, Or., for plaintiff. ■
    Stephen R. Sady, Asst. Federal Public Defender, Portland, Or., for defendant.
   OPINION

REDDEN, District Judge:

An information was filed with this court on August 30, 1984 charging a juvenile, D.V., with assault on a mail carrier. On that same date a Certification for Jurisdiction was filed pursuant to 18 U.S.C. § 5032. The juvenile defendant moves to dismiss the information on the grounds of prejudicial preaccusation delay, violation of his speedy trial rights, selective and vindictive prosecution and lack of proper certification. I find the Certification for Jurisdiction filed on August 30, 1984 to be improper and dismiss the information on those grounds. I will, however, address the other motions brought by the defendant.

Motion to Dismiss for Prejudicial Preaccusation Delay and Violation of Speedy Trial Rights.

In determining whether preaccusation delay may bar prosecution, three elements must be considered: 1) actual prejudice to the defendant, 2) length of the delay, and 3) reason for the delay. United States v. West, 607 F.2d 300, 304 (9th Cir. 1979), United States v. Mays, 549 F.2d 670, 677-78 (9th Cir.1977). The crucial element is actual prejudice, and the burden is upon the defendant. United States v. West, supra. The prejudice shown must be actual prejudice to the defense of the case which is presently proceeding. United States v. Henry, 615 F.2d 1223, 1234 (9th Cir.1980), United States v. Tousant, 619 F.2d 810, 814 (9th Cir.1980). Further, actual prejudice to the defense of the case must be shown before the court considers the other two elements. United States v. Mills, 641 F.2d 785, 788 (9th Cir.1981).

Defendant contends that he is prejudiced by preaccusation delay in this case because it interferes with a state rehabilitation program in which he is presently involved. He further contends he was prejudiced because the delay between the occurrence of the incident and the filing of the information resulted in psychological damage to him. (The incident took place on March 31, 1984 and the information was filed on August 30, 1984, resulting in a 162 day delay).

Defendant’s contention that interference with his state court rehabilitation program results in prejudice to him is without merit. The Ninth Circuit in United States v. Henry specifically rejected this position. In that case, the defendant claimed that preindictment delay interfered with his right to contest extradiction proceedings in state court. The Court rejected his argument, stating:

Even if we accepted the defendant’s allegations as true, we would not find any prejudice to the presentation of his defense in this action.

615 F.2d at 1234.

Defendant cites P.V. v. District Court, 199 Colo. 357, 609 P.2d 110 (1980) as authority for his position that delay in juvenile proceedings is psychologically destructive and ultimately prejudicial to the defense of such cases. Defendant’s reliance on this case is misplaced. That case involved a 13 month delay from the time the juvenile was charged until he was scheduled to appear for hearing. The Court held that delay violated the juvenile s speedy trial rights. There was no discussion of preaccusation delay.

Defendant has failed to make a showing of actual and definite prejudice in the defense of this case such as the loss of witnesses or unavailability of evidence which would exonerate the defendant. United States v. Mays, 549 F.2d 670 (9th Cir.1977). Interference with defendant’s state rehabilitation program or psychological harm are not the type of prejudice which would prevent defendant from effectively defending himself in the present case. I need not consider the length of delay or the reason for it, as no actual prejudice has been shown. Defendant's motion for preaccusation delay is denied.

Motion to Dismiss for Violation of Speedy Trial Rights.

Two applicable statutes are to be considered in determining whether defendant’s speedy trial rights have been violated. 18 U.S.C. § 5036 states “[i]f an alleged delinquent who is in detention pending trial is not brought to trial within thirty days from the date upon which such detention was begun, the information shall be dismissed____” (Emphasis added). 18 U.S.C. § 3161(c)(1) allows seventy days from the time a plea of not guilty is entered until the day of trial to elapse before a defendant’s speedy trial rights are violated. Since defendant is not and has not been in detention, 18 U.S.C. § 5036 does not apply.

The juvenile entered a plea of not guilty on September 10,1984 and a hearing on the merits was set for October 3, 1984. All extensions have been at defendant’s request, and with the proviso that the extensions would not be in violation of his speedy trial rights. Accordingly, the 23 day delay between the entry of defendant’s not guilty plea and the original October 3, 1984 hearing date is not violative of defendant’s speedy trial rights. The motion to dismiss the information for violation of defendant’s speedy trial rights is denied.

Motion to Dismiss for Selective and Vindictive Prosecution.

Vindictive prosecution occurs when the government increases the severity of alleged charges in response to a defendant’s exercise of constitutional or statutory rights. United States v. Burt, 619 F.2d 831, 836 (9th Cir.1980). To succeed, the defendant must show: 1) others were not prosecuted for the same conduct, and, 2) the decision to prosecute was based on impermissible grounds. United States v. Wilson, 639 F.2d 500, 503 (9th Cir.1981), United States v. Choate, 619 F.2d 21, 23 (9th Cir.1980). Mere selectivity in prosecution creates no constitutional barrier. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962).

Defendant states that on May 30, 1984 he exercised his due process rights in the state court proceedings by challenging his commitment to MacLaren School for Boys. Because the information in this proceeding was filed subsequent to that challenge, defendant claims vindictive prosecution here. This argument fails for two reasons. First, Assistant United States Attorney William Youngman, who filed the information, has submitted an affidavit stating that the government was unaware of the defendant’s challenge of his commitment to MacLaren School for Boys until after he had received defendant’s memorandum in support of the motion. Therefore, the federal court proceeding could not have been instituted in response to defendant’s exercise of constitutional rights. Second, the government’s information contains the original and only charge brought against the defendant in any court arising out of his alleged assault on a mail carrier. Thus, the severity of the alleged charges has not been increased by the government. Defendant has not proven a claim for vindictive prosecution.

As to his claim for selective prosecution, defendant has not shown that any other person who was alleged to have committed a felonious assault on a mail carrier was not prosecuted for such conduct. Defendant has failed to allege any impermissible grounds on which the decision to prosecute was based. Defendant’s motion to dismiss the information on the grounds of vindictive and selective prosecution is denied.

Motion to Dismiss for Lack of Proper Certification.

18 U.S.C. § 5032 states:

A juvenile alleged to have committed an act of juvenile delinquency shall not be proceeded against in any Court of the United States unless the Attorney General, after investigation, certifies to an appropriate district court of the United States that the juvenile court or other appropriate court of a State (1) does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency or (2) does not have available programs and services for the needs of juveniles____”

Assistant United States Attorney William Youngman filed the Certification for Jurisdiction pursuant to 18 U.S.C. § 5032 on August 30, 1984, requesting this court assume jurisdiction over an alleged assault on a mail carrier by the juvenile defendant. The certification was filed in reliance on a letter from Multnomah County Deputy District Attorney Gary Meabe, which stated in pertinent part:

The purpose of this letter is to notify you that our office is declining prosecution on a case number 498-55669-ECR (1) which involved the assault/robbery of a postal carrier by a juvenile known as [D.V.]. I am writing to you so that you can comply with the Federal Juvenile Delinquency Act 18 U.S.C. § 5032.
This refusal is not based on the merits of the case. Nor should this be interpreted as a change in policy. It merely reflects that the nature of this particular incident makes Federal prosecution more appropriate.

Defendant argues that the certification is improper because the Multnomah County District Attorney’s Office- does not have the ultimate authority to refuse to prosecute a juvenile case. That authority, defendant argues, lies with the juvenile court.

In reviewing the sufficiency of a Certification for Jurisdiction, the specific policy behind the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042, should be considered. The certification procedure in § 5032 encompasses a recognition of the general policy of federal abstention in juvenile proceedings. The procedure was designed to insure that only where there was no jurisdiction, except in federal court, were the federal courts to intrude into juvenile delinquency jurisprudence. United States v. Sechrist, 640 F.2d 81. (7th Cir. 1981). It has long been recognized that the federal court system is at best ill equipped to meet the needs of juvenile offenders. Deference to the state courts should always be observed except in the most severe of cases. 120 Cong.Rec. 25162 (1974).

United States v. Ramapuram, 432 F.Supp. 140 (D.Md.1977) held that a state’s refusal of jurisdiction need not come from the state court, if the refusal originates from a state official having ultimate authority to assume or refuse jurisdiction. The juvenile court system in Oregon is unique. There is no statute declaring who has that ultimate authority. Rather, the system is more of a symbiotic relationship between the courts, the juvenile department and the district attorney’s office in determining which cases will and will not be prosecuted.

At the hearing witnesses explained the process by which such a decision is reached as to a particular juvenile offender.

The testimony established that when a violation of any state or local law is reported involving a juvenile, the police submit a report to the juvenile court. The district attorney’s office then reviews the charges contained in the report for legal sufficiency. If legal grounds exist for a charge, the deputy district attorney drafts a petition. The petition is referred to the juvenile department for review by a court counselor. If the counselor decides not to file the petition, but the district attorney wishes to proceed, the matter is referred to the director of the juvenile department for a final decision.

There was testimony that in routine matters, the deputy district attorney makes the initial determination whether to prosecute a particular charge against a juvenile, and that this decision is rarely challenged. However, there was testimony from Juvenile Court Judge Steven Herrell that the decision on whether to proceed in juvenile court, or to defer to federal jurisdiction, should be made only after a conference between the deputy district attorney, the juvenile court counselor, the juvenile, his attorney and the juvenile court judge.

No such procedure was followed in the present case. As a matter of fact, the police report was never seen by the court counselor who was assigned to personally supervise the juvenile. Nor was the decision to refuse jurisdiction of the alleged assault ever communicated to anyone within the juvenile court system outside of the district attorney’s office. Under the factual circumstances surrounding this case, I find that Deputy District Attorney Gary Meabe did not have the “ultimate authority” to refuse jurisdiction, and I therefore dismiss the information.

The government makes one final argument that must be addressed. The government asserts that even if the court finds its original certification deficient, its subsequently amended certification is proper. The amended certification includes a statement that the offense charged is a felony, a crime of violence, and that there is a substantial federal interest in the case. This statement was not included in the original certification and was apparently added to reflect the amendments made to 18 U.S.C. § 5032 by the Comprehensive Crime Act, signed into law on October 12, 1984. The government argues that the application of the amendments does not trigger the ex post facto clause because 18 U.S.C. § 5032 is procedural rather than criminal. I do not find this reasoning convincing.

While the government has cited several cases which state that a proceeding under the federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042, is procedural rather than substantive, none of these cases speak to the issue of the ex post facto clause, or any other constitutionally protected right of the juvenile offender. United States v. Gonzalez-Cervantes, 668 F.2d 1073 (9th Cir.1981), United States v. Allen, 574 F.2d 435 (8th Cir.1978), United States v. E.K., 471 F.Supp. 924 (D.Or.1979). These cases state only that an adjudication of delinquency is a status for the offender and not a criminal conviction. Moreover, the cases note the importance of protecting juveniles from harsh and unnecessary federal prosecution.

Although a proceeding under 18 U.S.C. § 5032 is classified as procedural rather than criminal, it cannot be said that the proceedings are not criminal in nature. The juvenile is charged in a criminal information, then arraigned to enter a plea of guilty or not guilty. He may be detained prior to the adjudication hearing, and if found to be a delinquent he faces the possibility of incarceration. Thus, the juvenile is subjected to criminal proceedings even though criminal conviction is not entered on his record.

A law is subject to the ex post facto clause if it is retrospective and disadvantages the offender. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). A law cannot be applied retrospectively to defeat a pre-existing defense to the charge. Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1976). The retrospective establishment of federal jurisdiction violates the ex post facto clause. Putty v. United States, 220 F.2d 473 (9th Cir.1955). Cf., Woxberg v. United States, 329 F.2d 284 (9th Cir.) cert. denied 379 U.S. 823, 85 S.Ct. 45, 13 L.Ed.2d 33 (1964); Pennington v. Guam, 228 F.2d 892 (9th Cir.1955).

I find that retrospective application of 18 U.S.C. § 5032 as amended would violate the ex post facto clause. The original certification is defective as a matter of law, and the amended certification does not rectify the defect, but seeks jurisdiction on an independent basis which was not available to the government when the original certification was filed. Thus, to apply the amended statute in the present case would not only disadvantage the juvenile, but would defeat his defense to the original certification and impose federal jurisdiction in a situation where none existed.

CONCLUSION

The information charging the juvenile with assault on a mail carrier is dismissed on the grounds that the certification is facially deficient. Defendant’s motions to dismiss the information on the grounds of vindictive and selective prosecution, prejudicial preaccusation delay and violation of his speedy trial rights are denied.