author: BATTISTI, Chief Judge.

text:
    Robert Anthony REED, et al., Plaintiffs, v. James A. RHODES, et al., Defendants.
    No. C73-1300.
    United States District Court, N.D. Ohio, E.D.
    Nov. 27, 1984.

      James L. Hardiman, Cleveland, Ohio, Herbert Henderson, N.A.A.C.P., Brooklyn, Ohio, for plaintiffs.
    James G. Wyman, Cleveland, Ohio, Thomas Simiele, Bratenahl, Ohio, George Meisel, James Murphy, William Baughman, Jr., Squire, Sanders & Dempsey, Mark O’Neill, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, Ohio, for defendants.
    Jeremiah Glassman, Civ. Rights Div., U.S. Dept, of Justice, Washington, D.C., for amicus curiae.
   MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

On November 21, 1984, this Court in a very brief order denied the motion of three members of the Cleveland Board of Education for a temporary restraining order to prevent defendant Cleveland Board of Education from “unilaterally deciding on the sale of the school (board’s administration) building.” This memorandum opinion will not only address “the legitimate concerns of the parties as stated in the Request,” as noted in this Court’s November 21st order, but will also set forth the reasons that the motion for a temporary restraining order was denied.

FACTS

On November 20, 1984 at 11:30 a.m,, Mildred R. Madison, Edward S. Young and Stanley E. Tolliver, three members of the Cleveland Board of Education, filed a “Request for Order of Court”. This brief request made the following assertions:

1. The Cleveland Board of Education was to meet on November 20, 1984 at 6 p.m. to consider the sale of the Cleveland Board of Education Administration Building to the City of Cleveland.

2. Attached to the Request was the proposed resolution to be voted on by the Cleveland Board stating that the purchase of the administration building by the City was “for purposes of making the Property available for development of a first-class downtown hotel ... by a private developer selected by the City.”

3. The Board of Education had received “no management impact studies, cost/benefit analyses or any other reports from the Superintendent [of the Cleveland Public Schools].

4. The sale of the administration building would “fragment the facility utilization five year master plan” that the Cleveland School District was to develop under order of this Court.

5. The impact of the sale of the building on the Remedial Orders of this Court [regarding desegregation of the Cleveland Public Schools] is “unknown.”

6. The Board’s sale of the building would violate Ohio Revised Code section 3313.41 and that by selling the building to the City, the Board is “circumventing said law.”

The three Board members [hereinafter referred to as “the moving parties” or “the movants”] asked this Court to “issue a Temporary Restraining Order preventing the Defendant Cleveland Board of Education from unilaterally deciding on the sale of the school building until the Court approves of a facility master or until such time as a complete and comprehensive study is completed on the effect the sale would have on the Remedial orders and said study be received by the community.” In addition, the moving parties asked the Court to rule on “the legality of circumventing state law by selling the Administration Building to a developer through the city.”

The Court takes judicial notice of the fact that at the Board meeting on November 20,1984, the Cleveland Board of Education voted to table the proposed resolution on the sale of the administrative building.

STANDING OF THE MOVING PARTIES

The initial question this Court must answer is whether the moving parties, three members of the Cleveland Board of Education, have standing to move for a temporary restraining order in this action. In other words, this Court must examine the identity of the moving parties, what their status is in relation to the already existing parties to this action, and finally the moving parties’ real interest in the act which they complain about and seek to temporarily enjoin.

While it is true that the Cleveland Board of Education is one of the named defendants in this action, none of the movants was individually named as a party in the original action. At the same time, none of the movants are plaintiffs to this action; the named plaintiffs are Robert Reed, other students attending the Cleveland Public Schools, and the NAACP. However, to the degree that Federal Rule of Civil Procedure 25(d) would substitute the moving parties for the individuals who were on the Board of Education at the time this suit was commenced, the movants would be automatically substituted as defendants.

Even if the movants qualify as party defendants in an individual capacity, the issue of whether they have standing to enjoin the proposed sale of the administration building remains. Under principles of prudential standing, a party must assert an injury' peculiar to himself or a distinct group of which he is a part and not simply a generalized grievance shared substantially in equal measure by all or a large class of citizens. Wisconsin v. Zimmerman, 205 F.Supp. 673 (W.D.Wisc.1962). In other words, the movants must show as citizens that they will sustain a concrete injury which differentiates them from all other citizens. See Korioth v. Briscoe, 523 F.2d 1271 (5th Cir.1975). The moving parties in this case do not state in their Request why they as Board members will be uniquely injured by this sale; their only claim is that with additional information • “which could have been subject to community input,” they would have had “sufficient information [as] board members ... to protect the Orders of the Court and the interests of the community and its students.”

While it is true that members of the Board of Education have a responsibility to execute the orders of this Court, their obligation is no greater than that upon other members of the school district, including school administrators, teachers, other district personnel, parents and students. Indeed, the Board has never acted in the past, nor has this Court ever designated the Board, as the guardian or protector of the Court’s orders. To grant standing to organizations or individuals would be dangerous in that it would allow segments of the community to designate which policies promote the Court’s orders and which do not. While individuals and groups may hold such opinions, the sole power to “protect” and interpret this Court’s orders lies with this Court itself.

Of greater concern to this Court is the apparent objective of movants to prevent the making of a political decision which they did not agree with by asking the Court to intervene. It has been held that an elected official lacks standing to challenge a particular decision or course of action that he has the power to vote upon unless he asserts that his voting power or rights have been impeded. See Korioth v. Briscoe, 523 F.2d 1271, 21 Fed.Rules. Serv.2d 380 (5th Cir.1975) (state legislator lacks standing to challenge constitutionality of a state statute where he cannot allege that the effectiveness of his vote or any other legislative power he might have had was impeded either by the majority vote or by implementation of the statute). In the instant case, the three members of the Board of Education do not allege that they were prevented from voting on the proposed sale; that their efforts to persuade and campaign for their point-of-view on the proposed sale were interfered with or that if the sale were approved, their voting power on future actions would be circumscribed. This Court is reluctant to insert itself into the legislative functionings of the Board; the Court does not wish to play the role of referee between various factions on the Board.

Thus, even were the defendants to establish that their interest as members of the Board subjects them to special injury were this proposed sale to be passed (which they have not shown), this Court may decline to pass on the case since it presents a political question. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

Thus, the movants lack standing to bring this motion for a temporary restraining order. Plaintiff NAACP possessed the requisite standing to challenge the proposed sale and the vote; however, this group nor others which may have been able to demonstrate a specific harm did not bring this motion. Since the movants lack standing, the temporary restraining order request must be denied. '

II.

While this Court is respectful of the legal requirements which compel it to deny the temporary restraining order, it is also aware that movants’ Request raises serious issues about the effect of the proposed sale of the school administration building on this Court’s Remedial Order and othér orders it has issued in this case.

In the wake of numerous school-closings by the Cleveland Board of Education and the implementation of this Court’s Remedial Order in 1979, this Court on February 23, 1981, ordered the Cleveland Board to prepare a comprehensive facilities utilization plan. On February 25, 1982, the Board approved a resolution entitled “A Management Approach for the Preparation of a Five-Year Facility Utilization Program” [hereinafter referred to as “the Program”]; the resolution was filed with this Court on March 3, 1982.

The Board’s Facility Utilization Plan, which was to be the outgrowth of its own Program document, was to be submitted to this Court on November 1, 1982. However, the Board did not meet the submission deadline and the Court reluctantly granted the Board numerous extensions. Finally, the Court ordered that the Facility Utilization Plan would have to be submitted no later than December 1, 1983.

On December 1, 1983, two years after the original deadline and four years after the start of implementation of the Remedial Order, the Board submitted its Facility Utilization Plan to the Court. In its order of June 4, 1984, this Court found it could not approve the Board’s Facility Utilization Plan. The Court accepted the conclusion of the Ohio State Board of Education and State Superintendent’s Analysis that “the Board has not done sufficient planning and does not possess sufficient resources to guarantee successful implementation.” Order of June 4,1984, at 10-11. The Court therefore ordered the Board to consult with the State Superintendent to work toward the creation of a revised Facilities Utilization Plan. The State Superintendent was to have primary responsibility for the supervision of a revised Plan. Order, supra, at 16. Based upon a work schedule submitted by the State and the parties the revised Plan was to be submitted to the Court by June 1, 1985 for the Court’s approval.

This Court has yet to receive the revised Plan from the State and the Board. Nor has the Court received any interim communications from the State Superintendent as to the effect of the sale of the administration building on the Remedial Order or the revised Plan.

This Court has set forth at considerable length the history of the school facilities proceedings before it to demonstrate the absence of timely, thoughtful, and coherent planning on the part of the Cleveland City School District and Board of Education when it comes to facilities. Although “school authorities are traditionally charged with broad power to formulate and implement educational policy,” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971), the Cleveland Board of Education and School District have repeatedly shown either a lack of will or ability to administer their system. This conclusion is not simply that of this Court; as already noted, the Ohio State Board of Education and State Superintendent both concluded that the Board had not sufficiently planned and was unable to write its own Facilities Utilization Plan.

This Court is very concerned that in the absence of a comprehensive and Court-approved Facilities Utilization Plan, Defendant Cleveland Board of Education would take a formal vote on the sale of its own administrative building. In calling for the Board to examine the consequences of its actions, the Court is doing no more than holding the Board to its own promises. In the Program it submitted to this Court, the Board said it would not only develop a plan for school closings but create a plan encompassing “all sites and facilities, including the following: properties, schools, warehouses, food preparation and service facilities, vehicle storage and maintenance facilities, administrative facilities, service facilities, operations facilities.” Program, supra, at 31 (emphasis added).

Furthermore, this Court has already issued an order which specifically includes the School District’s administration building. See, Order, Reed v. Rhodes, No. C731300 (N.D.Ohio), filed July 25, 1983). In that order, in response to the Parties’ agreement to exempt the School District’s administration building from the Facility Utilization Program, this Court stated “the parties may not, on their sole authority, alter the terms of the Facility Utilization Program which was approved by Court Order.” This Court has never exempted the administration building from any facilities Plan, and the Board was put on proper notice and should have been aware from this Court’s July 25, 1983 order that the administration building was to be within the proper scope of its facilities planning.

Even if through lack of care and attention to the orders of this Court the Board had forgotten that its planning was to include the administration building, there is no reason for the Board to have neglected consideration of the consequences of the proposed sale. This Court takes judicial notice of discussion in the community about the relocation of the administrative staff in the event the current administration building is sold. One suggestion which has come to the attention of this Court has been to transfer the administrative offices to the Cleveland School of Science, the so-called “science magnet,” at Lakeside Avenue and E. 14th Street. The result of such a move would be the inevitable displacement of the students at the science magnet and the “closing” albeit only temporarily of a school. Thus, the potential closing of a school should have alerted the Board for the need to consider the consequences of the proposed sale. What strikes this Court as so disturbing is the fact that the Board has not even fully laid out proposed relocation sites and their effect on the system as a whole. Instead, it has left not only this Court but the entire community to engage in speculation about the effects of the proposed sale. Even if the science magnet were successfully relocated, the Board has not fully thought out the “domino” or “ripple effect” displacement will have; given limited resources, the question is what will be the final straw, namely “who will be left out in the cold?” This is not only irresponsible as a prudential matter but constitutes “bad government”; the community does not expect its elected leaders to promote misinformation and fear but assumes they will seek to enlighten and elucidate.

Another “plan” which has circulated in the community without clarification or comment by the Board is to relocate the administrative staff to William Dean Howells school on the near West Side. Presently William Dean Howells contains a registration center and administrative offices. Another possible relocation site mentioned is the Harvard School at Broadway and Miles. Without further discussion of the danger of displacing students and closing schools, it concerns this Court that the administrative offices of the Board might be divided between two or three separate buildings. Given the numerous administrative failures when the administrators have all been housed together, this Court is troubled with the coordination and managerial problems that may arise if the District’s administrators have to deal with one another over a distance of even a few blocks. In any case, this Court believes the Board should once again consider how it will divide or unify its various officers, facilities and personnel. Although this Court has ordered the School District to implement a “unitary and decentralized organizational framework,” see Order filed April 6, 1981, at 3, this decentralization does not necessarily mean physically divided or separated offices. Decentralization is more an issue of a chain of command or the concentration of managerial authority than where particular managers sit.

This Court has also been asked to rule on Ohio Revised Code section 3313.41. Whether the proposed sale of the administration building violates the statutory requirement for public bidding or complies with the exemption for transfers to municipalities appears to be solely a matter of state law; this Court is not required to rule on this matter particularly in light of its denial of the temporary restraining order. However, to the degree that the school sale affects the Remedial Orders of this Court, the state law may be discussed.

The proposed resolution attached to the movants’ Request makes it clear that the Board is disposing of the property to the city to promote “the development of a first-class downtown hotel.” By the Board’s own admission, this sale to the City appears to be a means of getting the property into the hands of a private developer. This Court does not expect the School Board to wear formalistic blinders, couching sales to the City in language which makes the Board appear to be unaware of the city’s ultimate purposes. At the very least, the Board should have sought official legal advisory opinions as to whether its proposed sale to the City would comply with ORC § 3313.41.

In all of these remarks, however, the point should not be lost: development of the City is not the responsibility of members of the School Board or the School Administration. This Court finds it lamentable how much time has been spent by Board members and other officials on a matter which has little if anything to do with education. The sale of the administration building has not been handled as a purely managerial disposition of school district assets; this Court takes judicial notice of the political battle being waged over the potential value of the administrative building site to the economic development of downtown Cleveland. However, such concerns are properly those of the Mayor and other city officials. The Board's mission is to comply with the Remedial Order of this Court, which means in the broadest sense to deliver the finest education possible to the school children of Cleveland. At this critical stage of the implementation process, anything which distracts and detracts from efforts to achieve educational excellence and efficient school district operations is not only a waste of time but counterproductive.

This Court is hopeful that the State Superintendent and the Board will include its analysis of the effects and relocation options in its Revised Facilities Utilization Plan. The Board should exercise prudent judgment and take no further action on the proposed sale until it has fully examined the implications of such action. Certainly if the State Superintendent submitted a report to this Court on the proposed sale or submitted its revised Facilities Utilization Plan including discussion of the administrative building before June 1985, this Court could consider an appropriate motion from the Board. However, this Court remains steadfast in (1) requiring a comprehensive Facilities Utilization Plan from the State and the Board and (2) reserving its approval on such a Plan.

This Court does not wish to become involved in the multitude of administrative decisions the Board must take to operate a school district. At the same time, at this late stage of the implementation of the Remedial Orders, the Court cannot remain silent in the face of administrative shortsightedness. This Court owes a duty to the Constitution of the United States as its local guardian to see that public education in Cleveland is furnished in obedience to the 14th Amendment. In this regard, it is the responsibility of this Court in the face of what may appear to be purely “administrative” or electoral matters to never lose sight of their consequences on the education and sound management of the Cleveland School District.

The temporary restraining order is hereby denied.

IT IS SO ORDERED.


source: Caselaw Access Project

author: BILLINGS, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Richard Mario LESLIE.
    No. Cr. 84-48-3
    United States District Court, D. Vermont.
    Nov. 28, 1984.
    Peter Langrock, Langrock, Sperry, Parker & Wool, Middlebury, Vt., for plaintiff.
    Robert F. O’Neill, Asst. U.S. Atty., Burlington, Vt., for defendant.
   MEMORANDUM DECISION

BILLINGS, District Judge.

This matter came before the Court on Defendant’s Motion to Suppress and for the Return of One Datsun Truck. For the reasons recited below, that motion must be and is GRANTED.

facts’

On September 10, 1984, an arrest warrant was obtained for the arrest of Defendant, Mario Leslie. On September 20, 1984, Mr. Leslie turned himself in to DEA authorities.

The Defendant’s truck, the subject of this motion, had been earlier observed in connection with the drug trafficking activities for which all five defendants in this case stand charged. On August 29, 1984 Defendant Leslie was present, along with his truck, when Defendant Ketcham was arrested and a search warrant was executed at the Ketcham residence in Cabot, Vermont.

At that time, an inspection of Leslie’s truck revealed a map, on which certain locations were highlighted, and a receipt for 30 pounds of lime. Lime was observed on the ground at the Ketcham residence and is often used in the cultivation of marijuana. On the same day, Defendant Leslie arrived at his property in Sheffield, Vermont, in his truck and told Defendant Pradayrol to start cutting marijuana plants.

Upon the issuance of the September 10 arrest warrant for Defendant Leslie, law enforcement officials took steps to locate his truck. Officials conducted a sustained surveillance of Defendant’s residence in Westminster, Vermont. On September 20, 1984 when Defendant turned himself in, officials also searched for the truck at the Federal Building in Burlington, Vermont, and at the law offices of Langrock, Sperry, Parker and Wool, both in Burlington and Middlebury. After September 20, 1984 officials tried to locate Defendant’s truck in Boston, where he was reportedly visiting his girlfriend. Except for one or two “sightings” of the truck at Defendant’s residence in Westminster, efforts to locate, and permanently seize, the truck proved unavailing.

Finally, on October 8, 1984 State Trooper Holton called DEA Agent Raybourn in Burlington to report that he observed the truck at Defendant’s Westminster residence. Thereupon Officer Kuzmeskus, a police officer with the Vermont Drug Task Force, was directed by Agent Raybourn to go to Defendant Leslie’s residence to conduct surveillance of the truck. Officer Kuzmeskus did so and maintained surveillance until approximately 8:30 p.m. Surveillance ended at that time because there appeared to be little activity within the house.

Surveillance was re-established on the morning of October 9, 1984. Trooper Holton contacted Officer Kuzmeskus and reported that the truck was still located in the driveway of Defendant Leslie’s Westminster residence. Kuzmeskus then prepared to and did proceed to Leslie’s residence. In the interim, Agent Raybourn had initiated procedures to obtain a seizure warrant. When Officer Kuzmeskus arrived at Leslie’s residence, the truck was no longer in the driveway. Kuzmeskus then proceeded beyond Leslie’s residence and into a nearby intersection. Shortly thereafter, Kuzmeskus observed the truck traveling west beyond the intersection where he was parked and, then, into Leslie’s driveway. Kuzmeskus then proceeded from the intersection beyond Leslie’s driveway to a point where he could conduct surveillance. Once there, he observed Defendant pull out of his driveway in his truck, and proceed toward the officer. After Leslie passed Officer Kuzmeskus’ location, the officer turned and started following the truck. Shortly thereafter, Defendant Leslie turned around and once again began proceeding toward Officer Kuzmeskus. Officer Kuzmeskus then pulled into the center of the road and flashed his lights in an effort to pull Defendant Leslie to the side of the road.

Once pulled over, Kuzmeskus approached Leslie’s truck and asked if he could speak with him, to which Defendant Leslie responded in the affirmative. Kuzmeskus then informed Leslie that he was seizing the truck.

At no time during this occurrence was Defendant Leslie speeding. Nor was there ever any suspicion that Defendant’s truck contained any contraband. It should also be noted that Officer Kuzmeskus seized the truck before Agent Raybourn was able to obtain a warrant for that purpose.

DISCUSSION

It is undisputed that Defendant’s truck was seized pursuant to 21 U.S.C. § 881, which provides, inter alia, for forfeiture of vehicles used in connection with the sale and/or transportation of controlled substances. Section 881(b) sets forth the manner in which such property may be seized. Generally, the Attorney General must obtain a warrant pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims. Under subsection (b)(4), however, the Attorney General may seize property subject to forfeiture without process when there is “probable cause to believe that the property has been used or is intended to be used in violation of this sub-chapter.”

Based upon the facts recited above, there can be little doubt that there was probable cause under the forfeiture statute to believe that Leslie’s truck had been used to “facilitate the transportation ____ [or] possession ____ of a controlled substance.” See, e.g., United States v. Johnson, 572 F.2d 227 (9th Cir.1978) (standard of probable cause to support forfeiture is less precise and rigorous than that required to obtain a search warrant under ordinary circumstances); United States v. U.S. Currency Amounting to the Sum of $20,294, More or Less, 495 F.Supp. 147 (E.D.N.Y.1980) (in a forefeiture proceeding, probable cause is something more than a mere suspicion and generally must be regarded as reasonable under all the circumstances). Leslie’s truck was twice observed at known areas of marijuana cultivation. Materials observed in the truck— the map and lime receipt — led to the reasonable inference that the truck was used in the aide of marijuana cultivation. We note in this regard that contraband need not ever have been in Defendant’s truck to sustain forfeiture. It is sufficient that there is a nexus between the vehicle and alleged drug trafficking. See United States v. One 1974 Cadillac Eldorado Sedan, 548 F.2d 421 (2d Cir.1977.)

On its face, then, subsection (b)(4) would appear to authorize the seizure in question since probable cause existed to believe the truck was an instrumentality of drug trafficking. The existence of probable cause notwithstanding, Defendant argues the government must also show, under subsection (b)(4) that probable cause was contemporaneous with the seizure and that the seizure was accompanied by exigent circumstances.

In support of his position, Defendant relies primarily on United States v. Pappas, 613 F.2d 324 (1st Cir.1979) (en banc), noting that the Second Circuit has yet to rule on the issue. Pappas held that the probable cause exception under (b)(4) justifies a warrantless seizure “only when the seizure immediately follows the occurrence that gives the federal agents probable cause to believe the automobile is subject to forfeiture under § 881(a) and the exigencies of the surrounding circumstances make the requirement of obtaining process unreasonable or unnecessary.” Id. at 330 (emphasis in original). See also, United States v. Spetz, 721 F.2d 1457 (9th Cir.1983); O’Reilly v. United States, 486 F.2d 208 (8th Cir.) (Lay, J. dissenting), cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 334 (1973); United States v. McMichael, 541 F.Supp. 956 (D.Md.1982).

Weighing against the Pappas court’s interpretation of the statute, however, is the plain language of the statute itself as well as its legislative history. As noted above, the wording of subsection (b)(4) requires no more than the existence of probable cause to justify a warrantless seizure. Where, as here, the language of a statute is clear, we must give effect to its plain meaning. Aaron v. Securities and Exchange Commission, 446 U.S. 680, 700, 100 S.Ct. 1945, 1957, 64 L.Ed.2d 611 (1980).

The Pappas court concluded that a literal reading of subsection (b)(4) renders the statute internally inconsistent. The court there reasoned that, without the requirement of contemporaneous probable cause and exigent circumstances, “every case requiring process would also qualify for the [ (b)(4) ] exception to the requirement.” United States v. Pappas, supra, 613 F.2d at 328. This conclusion, however, is predicated upon the assumption that probable cause is a necessary prerequisite for a warrant under the general provision of § 881(b). However, under rule C(3) of the Supplemental Admiralty Rules, once a verified complaint is filed, the clerk is directed to issue a warrant for the arrest of the vessel or other property “forthwith”. There need be no showing of probable cause. This interpretation renders the general provision of subsection (6) entirely consistent with the (b)(4) exception.

Moreover, this interpretation is consistent with the legislative history behind the forfeiture statute. Section 881(b) was enacted as part of the Comprehensive Drug Abuse Prevention and Control Act, one of the aims of which was to strengthen existing law enforcement authority in the field of drug abuse. House Report No. 1444, 91st Cong.2d Sess. 1 (1970) reprinted in U.S. Code Cong. Ad. News 4566 (1970). In short, there is simply no authority either in the statute itself or in its legislative history for the proposition that Congress intended to restrict the authority of law enforcement officers in the manner urged by Defendant.

We must also consider, however, whether the seizure in question comports with the requirements of the fourth amendment; for, “ ‘no Act of Congress can authorize a violation of the Constitution.’ ” United States v. Spetz, 721 F.2d 1457, 1470 (9th Cir.1983) quoting Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973). See also United States v. Bush, 647 F.2d 357, 368-9 (3rd Cir.1981) (“Having concluded that the warrantless seizure was authorized by [21 U.S.C. § 881], we must now consider whether that seizure was consistent with the ... Fourth Amendment”). Thus, the seizure will survive scrutiny only if it falls within one of the recognized exceptions to the warrant requirement of the fourth amendment.

In this case, the Government argues that exigent circumstances existed to justify the warrantless seizure of Defendant’s truck. It is by now well established that where a vehicle is in transit and where law enforcement officers have probable cause to believe that the vehicle contains contraband, a warrantless seizure may be justified. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). It is uncontroverted, however, that the law enforcement officers who surveilled and seized the truck did not have reason to believe that at the time of seizure the truck contained contraband.

The government maintains, however, that the act of driving the truck off the property, together with changing the direction of travel, amount to exigent circumstances sufficient to justify a warrantless seizure. However, absent a showing that the officers had probable cause to believe the truck contained contraband, we do not believe the ordinary operation of a vehicle suffices as an exigent circumstance that justifies a warrantless seizure. Any other conclusion would reduce the automobile exception to a “talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 2035-36, 29 L.Ed.2d 564 (1971).

Accordingly, it is hereby ORDERED that Defendant’s Motion to Suppress and for Return of One 1982 Datsun Truck is hereby GRANTED.

      . That subsection states in pertinent part:
      Any property subject to forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court of the United States having jurisdiction over the property, except that seizure without such process may be made when—
      (1) the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant.
      (2) the property subject to seizure has been the subject of a prior judgment in favor of the United States in a criminal injunction or forfeiture proceeding under this subchapter.
      (3) the Attorney General has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
      (4) the Attorney General has probable cause to believe that the property has been used or is intended to be used in violation of this subchapter.

      . We recognize some scholars have questioned whether use of maritime seizure procedures in the criminal context is constitutional. See, e.g., 7A Moore’s Federal Practice, ¶ C.12 at 33 (4th ed. Supp. 1978-79), cited in United States v. Pappas, supra, 613 F.2d at 328 n.1. However, that issue has not been raised by the parties, and, therefore, we take no position with respect to that question.

      . H.R. Rep. No. 2751, 81st Cong. 2d Sess. (1950) states in part:
      Enforcement officers of the Government have found that one of the best ways to strike at commercialized crime is through the pocketbooks of the criminals who engage in it. Vessels, vehicles, and aircraft may be termed the operating tools of dope peddlers, and often represent major capital investments to criminals whose liquid assets, if any, are frequently not accessible to the Government. Seizure and forfeiture of these means of transportation provide an effective brake on the traffic in narcotic drugs. The proposed legislation is intended to provide additional means of combating this nefarious activity.


author: HIRAM H. WARD, Chief Judge.

text:
    CREST STREET COMMUNITY COUNCIL, INC., Residents of Crest Street Community, and Save Our Church and Community Committee, Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, North Carolina Board of Transportation and William R. Roberson, as Secretary of the North Carolina Department of Transportation and Chairman of the North Carolina Board of Transportation, Defendants.
    No. C-83-1239-D.
    United States District Court, M.D. North Carolina, Durham Division.
    Nov. 29, 1984.

      Michael D. Calhoun and Alice A. Ratliff, N.C. Legal Assistance Program, Durham, N.C., for plaintiffs.
    Rufus L. Edmisten, Atty. Gen., N.C., and James B. Richmond, Asst. Atty. Gen., N.C. Dept, of Justice, Raleigh, N.C., for defendants.

      . In addition to alleging that the freeway proposal was violative of Title VI, the Administrative Complaint also challenged the proposal under provisions of the National Environmental Policy Act, 42 U.S.C. § 4331, the Federal-Aid Highway Act, 23 U.S.C. § 109, and Title VIII of the Civil Rights Act of 1968 (fair housing), 42 U.S.C. § 3601 et seq.

   MEMORANDUM OPINION AND ORDER

HIRAM H. WARD, Chief Judge.

This is an action to recover attorney’s fees incurred in previous administrative and judicial proceedings either between or involving the parties to this action. Before the Court are defendants’ Motion to Dismiss (August 8, 1984) for failure to state a claim and for judgment on the pleadings, Fed.R.Civ.P. 12(b) & (c), and plaintiffs’ Motion for Summary Judgment (August 8, 1984) pursuant to Rule 56, Fed.R.Civ.P. Inasmuch as matters outside the pleadings were presented and not excluded, the Court will treat and dispose of defendants’ Rule 12 motion as one for summary judgment pursuant to Rule 12(b)(6) & (c), Fed.R. Civ.P. The parties submitted extensive briefs and documentary evidence and were heard in oral argument on November 1, 1984.

FACTS

The plaintiffs are organizations representing residents of Crest Street community, a cohesive, predominately black, low-income neighborhood in Durham, North Carolina. For quite some time the City of Durham had requested, and defendant North Carolina Department of Transportation (NCDOT) had planned, extension of a highway known as the East-West Freeway through, and with a major interchange in, the midst of the Crest Street community. As proposed by NCDOT in 1976, the highway extension would displace much of the community.

In March 1977, the North Carolina Legal Assistance Program was retained to represent residents of the Crest Street community concerning efforts against the East-West Freeway. In September 1978, plaintiffs Residents of Crest Street Community and Save Our Church and Community Committee, through counsel, filed an Administrative Complaint with the United States Department of Transportation (USDOT) seeking an investigation of the practices of NCDOT and the Federal Highway Administration for compliance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and 49 C.F.R. § 21. Title VI provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Part 21 of the Code of Federal Regulations was promulgated to effectuate the provisions of Title VI in any program or activity receiving federal money from the USDOT. 49 C.F.R. § 21.1. The Administrative Complaint sought prohibition of further planning or construction of the freeway by NCDOT and rejection by USDOT of the NCDOT Environmental Impact Statement until the freeway project was brought into compliance with applicable laws. Affidavit of Willie Patterson, Exhibit A (August 8, 1984).

USDOT conducted a field investigation into the freeway proposals and the allegations of the Administrative Complaint. On February 20, 1980, the USDOT Director of the Office of Civil Rights informed NCDOT of its preliminary judgment finding reasonable cause to believe that construction according to the NCDOT proposal would constitute a prima facie violation of Title VI, in particular, section 21.5(b)(3), 49 C.F.R., which provides:

In determining the site or location of facilities, a recipient or applicant may not make selections with the purpose or effect of excluding persons from, denying them the benefits of, or subjecting them to discrimination under any program to which this regulation applies, on the grounds of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act of this part.

Patterson Affidavit, Exhibit B. This belief led the complainants, NCDOT, and the City of Durham into extensive negotiations towards conciliation of their differences.

In February 1982, plaintiff Crest Street Community Council, Inc. (Council), the City of Durham, and NCDOT reached a preliminary agreement for the freeway design, relocation assistance benefits, and other assistance in mitigation of the construction. Negotiations for a final mitigation plan toward ultimate resolution of all issues raised by the Administrative Complaint continued.

In August 1982, NCDOT moved to dissolve a 1973 injunction in ECOS, Inc. v. Brinegar, C-352-D-72 (M.D.N.C. February 20, 1973), which had enjoined construction of the freeway. The Council and Willie Patterson, a resident of the Crest Street community, moved to intervene in ECOS on October 15, 1982. Patterson Affidavit, Exhibit C. The intervention motion was never ruled on, but the applicants for intervention were parties to a December 14, 1982 Consent Judgment dissolving the injunction and dismissing the ECOS action. The Consent Judgment provided, inter alia, that the state highway defendants and applicants for intervention had

resolved the things and matters in controversy between them by agreement adopted by the North Carolina Board of Transportation on November 19, 1982. The plaintiffs and applicants for intervention do not or no longer oppose the State defendants’ motion to dissolve the injunction and do not wish to prosecute this action any further except that the applicants for intervention explicitly reserve the right to pursue all claims in their application for intervention in the event said agreement is not fully implemented, and in addition reserve their claim for attorney fees against the State defendants and the North Carolina Department of Transportation and the plaintiffs reserve their right to pursue all claims relating to the section of expressway proposed to be constructed between U.S. Highway 15-501 and Interstate 85.

Patterson Affidavit, Exhibit F, 118.

On December 15,1982, the day following the filing of the Consent Judgment, the Council, NCDOT, and the City of Durham executed the Final Mitigation Plan (Plan). The Plan sets out in a comprehensive fashion efforts to be made by the City and NCDOT to mitigate the detrimental impact of the freeway on the Crest Street community. Plaintiffs contend that under the terms of the Plan, they were accorded very substantial relief. First, a new community site will be developed in the same area and will allow the residents to remain intact as a community. Second, the defendants moved the proposed highway right-of-way and modified an interchange so as to preserve the community church and park. Plaintiffs state that defendants estimated the cost of implementing their major direct responsibilities under the Plan to be $3,072,000. Brief in Support of Plaintiffs’ Motion for Summary Judgment at 8 (August 8, 1984).

In August 1983, plaintiffs’ counsel sent defendants a request for attorney’s fees with a detailed listing of hours, expenses, hourly rates for various personnel, and notice of intent to seek an upward adjustment if court action became necessary. NCDOT denied liability for any fees, and plaintiffs filed this action on November 30, 1983.

DISCUSSION

The Civil Rights Attorney’s Fees Awards Act of 1976, amending 42 U.S.C. § 1988, in pertinent part, provides:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of [the Education Amendments of 1972] or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the cost.

In broad terms, the issue in this case is whether plaintiffs, are prevailing parties within the meaning or scope of section 1988. More specifically, the question before the Court is whether section 1988 authorizes an award of fees for the administrative enforcement of Title VI.

Defendants contend that the plaintiffs are not entitled to relief because (1) the eleventh amendment shields defendants from an award, (2) plaintiffs failed to exhaust administrative remedies, and (3) section 1988 does not support an independent cause of action. The eleventh amendment does not preclude an award under section 1988 which would be paid out of a state treasury. Congress has plenary power to set aside states’ immunity from retroactive relief in order to enforce the fourteenth amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). When Congress passed section 1988, “it undoubtedly intended to ... authorize fee awards payable by States.” Hutto v. Finney, 487 U.S. 678, 693-94, 98 S.Ct. 2565, 2575, 57 L.Ed.2d 522, 536 (1978). Hutto rejects the argument that section 1988 is insufficient to overcome the eleventh amendment immunity. Maher v. Gagne, 448 U.S. 122, 131-32, 100 S.Ct. 2570, 2575-76, 65 L.Ed.2d 653, 662-63 (1980).

Defendants’ suggestion that plaintiffs must administratively exhaust their claim for fees before proceeding in this Court is also without merit. First, Title VI does not require exhaustion. Chowdhury v. Reading Hospital and Medical Center, 677 F.2d 317 (3d Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 3569, 77 L.Ed.2d 1411 (1983). Second, the administrative procedures of part 21, 49 C.F.R., for hearings and judicial review are available to recipients of federal funds to challenge an adverse decision to cut off funding, not complainants like plaintiffs. And third, under section 1988 only a court, as opposed to an administrative agency, may determine and award fees.

The Court has considered whether this claim for fees should have been brought as a motion in the cause of the ECOS action. There is authority that section 1988 does not support an independent action. E.g., Horacek v. Thone, 710 F.2d 496 (8th Cir.1983). However, such authority is premised on Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), a case decided prior to the 1976 statutory amendment which authorized attorney’s fees. The amending language does not on its face deviate from this holding, but the Supreme Court has recognized that section 1988 raises issues “uniquely separable” and “collateral” to the main cause of action, and that flexibility in the manner of pursuing section 1988 fees exists. White v. Department of Employment Security, 455 U.S. 445, 451-52, 102 S.Ct. 1162, 1166-67, 71 L.Ed.2d 325, 331 (1982) (Rule 59(e), Fed.R.Civ.P., does not apply to postjudgment fee requests, and district courts may adopt local rules establishing timeliness standards for the filing of attorney’s fees claims).

Plaintiffs never formally intervened in ECOS. During oral argument counsel stated that the presiding judge in ECOS did not rule on any matter concerning their claims and, therefore, would not be in a position of familiarity with the efforts for which plaintiffs now seek fees. The overwhelming majority of the fees sought were incurred in the context of the administrative proceedings or pursuant to the USDOT findings. While the Court may ultimately conclude that the fees are not recoverable because they were not incurred in the context of a judicial proceeding, to dismiss the case merely because of its nature as an action instituted independent of prior proceedings would without justification evade the real issue at hand — the propriety of awarding fees under section 1988 for Title VI administrative proceedings.

Plaintiffs’ fee request spans five years and eight months, from March 1977 to December 1982, and totals 1,261.25 hours. All but thirty-seven hours, or approximately three percent of the total request, were incurred prior to the motion to intervene filed in ECOS. Counsel documented seven hours in preparation of the intervention motion and proposed complaint and two and one-half hours preparing the Consent Judgment. The remaining twenty-seven and one-half hours involved negotiations towards, and review of, the Final Mitigation Plan. Plaintiffs contend that the fees incurred prior to the intervention motion are compensable irrespective of the recoverability of fees for administrative work because the vast majority of counsel’s efforts were necessary for the ECOS proceeding notwithstanding the existence of a prior administrative proceeding. The Court cannot accept this contention. The motion for intervention and proposed complaint are short and uncomplicated pleadings. Plaintiffs’ motion for intervention was never tested and except for the Consent Judgment, they had no other participation in ECOS. It is true that the intervening twenty-seven and one-half hours of negotiations and review of the Plan would have been much greater had not the administrative matters preceded. However, to retroactively declare that efforts done over a five year period would have been required in the course of litigation later initiated would result in a highly speculative, uncertain, and unfairly surprising award of fees. Thus, the fee request for 1,224.25 hours incurred prior to any action by plaintiffs in a judicial forum may not be piggybacked onto the ECOS related hours but may be granted only to the extent, if any, that section 1988 applies to administrative proceedings.

This is a question not yet answered by the United States Supreme Court or the Court of Appeals for the Fourth Circuit. See Cain v. Virginia, 582 F.Supp. 531 (W.D.Va.1984) (Fourth Circuit has not decided whether section 1988 permits fees in optional administrative hearings or prior state judicial proceedings not an integral part of the federal remedy). There is, however, persuasive authority from other circuit courts of appeals holding that section 1988 does not authorize fees for actions or proceedings other than judicial in nature. Webb v. Board of Education, 715 F.2d 254 (6th Cir.1983), cert. granted, — U.S. —, 104 S.Ct. 1906, 80 L.Ed.2d 456 (1984); Latino Project, Inc. v. City of Camden, 701 F.2d 262 (3d Cir.1983); Redd v. Lambert, 674 F.2d 1032 (5th Cir.1982); Blow v. Lascaris, 668 F.2d 670, 671 (2d Cir.), cert. denied, 459 U.S. 914, 103 S.Ct. 225, 74 L.Ed.2d 179 (1982).

In Latino Project, Inc. v. City of Camden, 701 F.2d 262, the plaintiff filed an administrative complaint with the Department of Housing and Urban Development (HUD) challenging the use of federal housing funds under Title VI. HUD did not find a violation but the defendant later revised its housing proposals in such a way which led the plaintiff to believe it had prevailed in the administrative Title VI efforts. As a result, it filed a section 1988 action without having filed a complaint on the merits.

The Third Circuit began its review of the case, as this Court must, with the words of the statute and found the phrase “civil action or proceeding” subject to different interpretations.

Despite the literal ambiguity of the words “civil action or proceeding”, the statutory context of those words indicates that Congress intended section 1988 to authorize an award of attorney’s fees only to a party who substantially prevails on a civil rights claim in a lawsuit. Specifically, section 1988 provides that “in any civil action or proceeding ... the court ... may allow reasonable attorney’s fees.” (emphasis added). Congress’ use of the term “court” within the same sentence that contains the words “civil action or proceeding” leads us to believe that Congress had in mind only a lawsuit when it used those words.

Latino Project, Inc. v. City of Camden, 701 F.2d at 264.

The Supreme Court has examined identical language from the attorney’s fee provision of Title VII, 42 U.S.C. § 2000e-5(k), in New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980), and found that “proceeding” included state administrative and judicial proceedings. Plaintiffs contend that Carey is precedent for adopting an identical interpretation under section 1988. There are, however, reasonable grounds upon which to distinguish the Carey holding from section 1988. Carey was not decided solely on an interpretation of the phrase “civil action or proceeding.” The Supreme Court was persuaded only after examining the history of section 2000e-5(k), 42 U.S.C., other provisions of Title VII, and the nature of the congressionally mandated enforcement mechanism of Title VII. New York Gaslight Club, Inc. v. Carey, 447 U.S. at 61-62, 100 S.Ct. at 2029-2030, 64 L.Ed.2d at 732-33; see Webb v. Board of Education, 715 F.2d 254 (Carey does not control issue under section 1988; “action or proceeding” is ambiguous).

The legislative history also invites differing analyses. As stated by the Senate Committee on the Judiciary, the purpose of section 1988 “is to remedy anomalous gaps in our civil rights laws created by ... Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 [95 S.Ct. 1612, 44 L.Ed.2d 141] (1975) and to achieve consistency in our civil rights laws,” and “it is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act.” S.Rep. No. 1011, 94th Cong., 2d Sess. 1, 4 reprinted in 1976 U.S.Code Cong. & Ad. News 5908, 5909, 5912. However, the same Senate Report more strongly supports the opposite conclusion because the notion that attorney’s fees are available for services rendered in court permeates the legislative history. Webb v. Board of Education, 715 F.2d at 258; Latino Project, Inc. v. City of Camden, 701 F.2d at 264; Blow v. Lascaris, 668 F.2d at 671.

Title VII requires that claimants timely seek prelitigation administrative relief either from authorized state or local agencies or from the EEOC. 42 U.S.C. § 2000e-5(c) & (e). In contrast, neither Title VI nor any of the other laws encompassed by section 1988 require exhaustion of administrative remedies. Webb v. Board of Education, 715 F.2d at 257. While administrative remedies are available under Title VI, unlike Title VII there is no congressional policy favoring exhaustion of any of the laws listed in section 1988. This is a critical distinction between Carey and the instant case and justifies limiting the effect of Carey to its facts.

Plaintiffs argue that denial of fees for administrative proceedings will render such proceedings obsolete. Given attorneys’ obligation to serve the best interests of their clients, proceedings such as those invoked here surely would not become things of the past. Moreover, issues in litigation which are suited for administrative resolution may be directed to an administrative agency by a presiding court. See NAACP v. Wilmington Medical Center, Inc., 689 F.2d 1161, 1163 (3d Cir.1982), cert. denied, 460 U.S. 1052, 103 S.Ct. 1499, 75 L.Ed.2d 390 (1983) (district court temporarily stayed action and ordered HEW investigation). On the other hand, construction of section 1988 to include fees for administrative related events could open the door to fee requests for an array of nonjudicial proceedings which are not required or are not integral parts of one’s federal court remedy. Administrative proceedings under Title VI and Title IX of the Education Amendments of 1972, which prohibit discrimination by recipients of federal funding, seem particularly unsuited for an award of fees because individuals, beyond filing an administrative complaint, have little input or control into the decisional process. This puts them at a disadvantage and likewise would make a subsequent court decision of reasonable fees, for matters which by regulation are principally between the federal government and the funding recipient, much more difficult. All things considered, while section 1988 was patterned after the counsel fee provisions of Title VII and uses the familiar “courts or proceedings” phrase, its application cannot mirror Title VII because the rights accorded by Titles VI and VII are remedied in significantly different manners. The Court will, therefore, follow the persuasive authority of those appellate courts which have concluded that section 1988 does not authorize a fee award for work done in conjunction with administrative proceedings. “[A] plaintiff who has not filed a civil complaint on the merits of a claim under one of the civil rights statutes enumerated in ... section 1988 is not entitled to attorney’s fees ... even though he may have obtained substantial relief in administrative proceedings.” Latino Project, Inc. v. City of Camden, 701 F.2d at 265.

Plaintiffs argue that because in September 1978 when they filed their administrative complaint “several courts” had held that administrative exhaustion was a prerequisite to a Title VI lawsuit, it was reasonable for them to believe that an administrative complaint was mandatory. In Cain v. Virginia, 582 F.Supp. 531 (W.D.Va.1984), fees for state administrative and judicial work were allowed because of a federal district court decision that an employee allegedly denied due process must appeal an arbitration decision to state court before starting a federal court action. The pendency of that ruling justified the Cain plaintiff’s state court actions even though the district court decision was later reversed. Counsel does not suggest that he made a calculated decision to file an administrative complaint rather than institute a lawsuit after having considered the optional or mandatory nature of part 21, 49 C.F.R. The Court recognizes that in September 1978, there was authority holding that exhaustion was necessary under Title VI. Santiago v. City of Philadelphia, 435 F.Supp. 136, 158 (E.D.Pa.1977); NAACP v. Wilmington Medical Center, 426 F.Supp. 919 (D.Del.1977), rev’d, 599 F.2d 1247 (3d Cir.1979). However, it is well settled that the doctrine of exhaustion of administrative remedies does not apply where the particular agency lacks procedure for complainants to trigger and participate in the administrative process. Rosado v. Wyman, 397 U.S. 397, 406, 90 S.Ct. 1207, 1214, 25 L.Ed.2d 442, 452 (1970). While one may, as the Council did in 1978, file a complaint with the USDOT, filing does not initiate an adversary type proceeding involving the complainant nor is there any remedial provision for the complainant. 21 C.F.R. § 21.11. From that point forward, the complainant is not a mandatory party to the USDOT investigation nor to any action or inaction taken with respect to the recipient of federal funds. The Supreme Court recognized the shortcomings of such an administrative format in Cannon v. University of Chicago, 441 U.S. 677, 706-07 n. 41, 99 S.Ct. 1946, 1962-63, n. 41, 60 L.Ed.2d 560, 581-82 n. 41 (1979), noting that exhaustion under Title IX is not appropriate because, as in Title VI, a complainant is not assured an investigation on the merits, participation in any investigation, or relief even if the government finds a violation. The permissive and limited nature of a complainant’s role in the administrative enforcement mechanism illustrates, as it did in 1978, that exhaustion is not required under Title VI.

Even though the Court finds that the administratively initiated work is not compensable under section 1988, the question remains whether any of the ECOS related work is compensable. A prevailing party is one who succeeds on any significant issue in litigation which achieves some of the benefit the party sought in bringing the suit, Hensley v. Eckerhart, 461 U.S. 424, -, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40, 50 (1983), and a consent judgment short of final adjudication may support an award of fees. DeMier v. Gondles, 676 F.2d 92, 93 (4th Cir.1982). In such circumstances,

the court must focus on the condition that the fee claimant sought to change so as to gain a benefit or be relieved of a burden. With this condition as a benchmark, the inquiry then becomes “whether, as a quite practical matter the outcome, in whatever form it is realized, is one to which the plaintiff fee claimant’s efforts contributed in a significant way, and which does involve an actual conferral of benefit or relief from burden when measured against the benchmark condition.”

DeMier v. Gondles, 676 F.2d at 93 (quoting Bonnes v. Long, 599 F.2d 1316, 1319 (4th Cir.1979), cert. denied, 455 U.S. 961, 102 S.Ct. 1476, 71 L.Ed.2d 681 (1982)).

Plaintiffs did not initiate the ECOS action and they were never allowed to intervene. Through intervention, they sought (1) an injunction prohibiting extension of the highway and (2) declaration that the defendants’ practices violated Title VI and other laws. Patterson Affidavit, Exhibit C. They obtained neither. Furthermore, even if plaintiffs had been allowed to intervene, their opposition to dissolution of the injunction would not be entitled to fees because the ECOS injunction had only prohibited construction pending compliance with laws other than Title VI. The proposed highway was never judicially enjoined, at the behest of plaintiffs or anyone, on the ground that it would violate Title VI.

Although not set forth in the intervention motion and proposed complaint, it is obvious that the purpose of the attempted intervention was to prompt speedy execution of the Final Mitigation Plan. The Plan was executed the day following the Consent Judgment; however, the Consent Judgment recites that the state defendants and applicants for intervention had already resolved their differences by agreement adopted November 19,1982. As a practical matter, there is no evidence that the ECOS fee efforts, limited to seven hours of preparing the intervention motion and two and one-half hours for drafting the Consent Judgment, significantly contributed to the execution of the Plan. The twenty-seven and one-half hours of final negotiations between these two events were preceded by many months and numerous hours of serious negotiations following the USDOT prima facie finding of a Title VI violation. Plaintiffs do not suggest that resolution of final details had become uncertain. Final settlement seemed imminent. Plaintiffs have not shown that their “participation” in ECOS, an action to which they were not parties, was even a catalyst to the Plan.

CONCLUSION

The issue presented by this case is a difficult one. Without question the plaintiffs’ interests were well served by their counsel. Yet, the general rule in this country in the absence of specific legislative authority is that litigants bear their own costs. The argument that section 1988 is authority for fees incurred administratively as well as judicially is not an unreasonable one. However, in the absence of persuasive direction from Congress or controlling judicial authority and considering the nature of remedies afforded by Title VI and the other laws encompassed by section 1988, the Court concludes that the argument must fail.

IT IS, THEREFORE, ORDERED that defendants’ motion to dismiss or for judgment on the pleadings be, and the same hereby is, GRANTED, and that plaintiffs’ motion for summary judgment be, and the same hereby is, DENIED.

A Judgment will be entered accordingly.

      . Plaintiffs in the ECOS action were ECOS, Inc. (a nonprofit, educational, ecological corporation), an association of Duke University students and some of its members, and two Durham residents. The defendants were state and federal transportation officials and a construction company. The action had alleged violations of the public hearing requirement and the preservation of parkland requirements of the Federal-Aid Highway Act, 23 U.S.C. §§ 128 & 138, the parkland preservation policy of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f), and the National Environmental Policy Act of 1969, 42 U.S.C. § 4332. The injunction enjoined steps toward construction of a particular section of the proposed freeway until full compliance with the statutes allegedly violated had been achieved.

      . Apparently, plaintiffs are quite satisfied with the highway plan in its present form for they have, somewhat ironically, intervened in West Durham Lumber Co. v. North Carolina Department of Transportation, C-84-234-D (M.D.N.C.July 6, 1984) (action to enjoin construction) on the side of the state, local, and federal defendants in support of the proposed highway.

      . Ironically, an exhaustion of administrative remedies requirement would actually further plaintiffs’ fee request rather than bar it as defendants have suggested. See infra pp. 264-265.

      . In Moor v. County of Alameda, the Supreme Court ruled that section 1988, then free from any attorney’s fee provision, does not create an action but only compliments various federal civil rights causes of action by authorizing federal courts to look to principles of state law when the federal law is unsuited or insufficient to furnish suitable remedies. 411 U.S. at 702-03, 93 S.Ct. at 1792-93, 36 L.Ed.2d at 606.

      . Local Rule 210, effective January 1, 1985, provides that the parties to an action shall attempt to agree on a statutory attorney’s fees award, and if they are unable to agree may move within 90 days of final judgment that the Court enter an award.

      . The starting point for interpreting a statute is the language of the statute itself. Consumer Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766, 772 (1980).

      . Fees for federal administrative proceedings under Title VII, such as those before the EEOC, were not at issue in Carey, but the Supreme Court noted that several Courts of Appeals, including the Fourth Circuit in Johnson v. United States, 554 F.2d 632 (4th Cir.1977), had upheld awards for work done in required administrative proceedings. New York Gaslight Club, Inc. v. Carey, 447 U.S. at 62 n. 2, 100 S.Ct. at 2030, n. 2, 64 L.Ed.2d at 733 n. 2.

      . For example,
      [Section 1988] is designed to allow courts the familiar remedy of reasonable counsel fees to prevailing parties in suits to enforce the civil rights acts____ In many cases arising under our civil rights laws, the citizen who must sue has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights ... [they] must have the opportunity to recover what it costs them to vindicate these rights in court.
      S.Rep. No. 1011, 94th Cong., 2d Sess. 2, reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5909-10.

      . The Court recognizes that the standards for awarding fees under section 1988 are to be generally the same as in these model statutes. Hensley v. Eckerhard, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40, 50 n. 7 (1983). However, the "standards” for fees refers the interpretation of who is a “prevailing party," not where their prevalence is entitled to statutory fees.

      . Plaintiff cites three cases which if followed would lead to a contrary result. One, NAACP v. Wilmington Medical Center, 689 F.2d 1161 (3d Cir.1982), cert. denied, 460 U.S. 1052, 103 S.Ct. 1499, 75 L.Ed.2d 930 (1983), was specifically rejected in Latino Project, Inc., a subsequent Third Circuit case, as standing for the proposition that “action or proceeding” included administrative proceedings. The other two, Ciechon v. City of Chicago, 686 F.2d 511 (7th Cir. 1982) and Brown v. Bathke, 588 F.2d 634 (8th Cir.1978) are rejected because they ruled without addressing the crucial optional/mandatory distinction between Title VII and the laws encompassed by section 1988.

      . The regulations in effect in 1978 are not different in any manner relevant here from those currently in effect. 49 C.F.R. § 21 (1978).


author: CHARLES R. RICHEY, District Judge.

text:
    I.A.M. NATIONAL PENSION FUND BENEFIT PLAN C, et al., Plaintiffs, v. STOCKTON TRI INDUSTRIES, Defendant.
    Civ. A. No. 81-2907.
    United States District Court, District of Columbia.
    Nov. 29, 1984.

      Robert T. Osgood, Joseph P. Martocci, Jr., Washington, D.C., and Edward Lev, Laura Steinberg, Katherine Ross, Boston, Mass., of counsel, Sullivan & Worcester, Boston, Mass., for plaintiffs.
    John T. Hayden, Samuel F. Hoffman, Steven A. Inkellis of Littler, Mendelson, Fastiff & Tichey, San Francisco, Cal. and, Steven A. Inkellis of Squire, Sanders & Dempsey, Washington, D.C., for defendant.
   CHARLES R. RICHEY, District Judge.

Introduction

This case is before the Court after having been remanded from the United States Court of Appeals for the District of Columbia Circuit. I.A.M. National Pension Fund Benefit Plan C, et al., v. Stockton Tri Industries, 727 F.2d 1204 (D.C.Cir.1984) (“I.A.M.”). Upon consideration of the parties cross motions for summary judgment, oppositions thereto, the entire record herein, and in light of the recent congressional enactment of Section 558 of The Deficit Reduction Act of 1984, Pub.Law No. 98-369 (“Section 558”), 98 Stat. 494, the court hereby grants the defendant’s motion for summary judgement.

Background

I.A.M. National Fund Benefit Plan C (“The Plan”) brought action in this Court to collect withdrawal liability under the retroactive provisions of the Multi-Employer Pension Plan Amendments Act of 1980 (“MPPAA”), 29 U.S.C. §§ 1381, et seq., from the defendant, Stockton Tri Industries (“Stockton”). On December 2, 1982, this Court granted Summary Judgment in favor of Stockton, holding that, within the meaning of 29 U.S.C. § 1383 (a)(1), Stockton had completely withdrawn from participation in The Plan before the retroactive date upon which MPPAA imposed withdrawal liability. The Court of Appeals interpreted Section 1383(a)(1) differently and reversed this Court’s decision, holding that Stockton had not completely withdrawn before the liability date. I.A.M. I, supra, at 1210, 1211. Thereupon, the case was remanded to this Court for consideration of Stockton’s other arguments against imposition of withdrawal liability which this Court did not reach in light of its decision on the statutory issue. Id., at 1212.

I. The Recent Congressional Enactment of the Deficit Reduction Act Voids Any Withdrawal Liability Stockton May Have Heretofore Had.

In Stockton’s original motion for Summary Judgment, it attacked the constitutionality of MPPAA’s retroactive withdrawal liability provision. The constitutionality of this provision is no longer in question, however, as it was recently upheld by the United States Supreme Court in Pension Benefit Guar. Corp. v. R.A. Gray & Co., — U.S. —, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984). Nevertheless, because of the July, 1984, enactment of Section 558 of the Deficit Reduction Act, Stockton has been released from any withdrawal liability which it may have heretofore had.

Section 558 states that “any withdrawal liability incurred by an employer ... as a result of the complete or partial withdrawal of such employer from a multiemployer pension plan ... shall be void.” 98 Stat. 899. Thus, The Plan no longer has a cause of action against Stockton, and this suit must be dismissed.

II. Section 558 Is Constitutional.

The Plan argues that, because MPPAA afforded The Plan a legal claim against Stockton for withdrawal liability, Section 558 is unconstitutional in that it violates the due process clause of the 5th Amendment by denying them a “vested property right.” The Court disagrees.

First, it is clear that by enacting subsequent statutes Congress may withdraw rights granted by previous statutes without violating any provision of the Constitution. Kline v. Burke Construction Co., 260 U.S. 226, 234, 43 S.Ct. 79, 82, 67 L.Ed. 226 (1922); State of Louisiana v. Mayor, 109 U.S. 285, 287-88, 3 S.Ct. 211, 212-13, 27 L.Ed. 936 (1883); Battaglia v. General Motors Corp., 169 F.2d 254, 259 (2d Cir.1948), cert. denied, 335 U.S. 887, 69 S.Ct. 236, 93 L.Ed. 425 (1948); Murray v. Homestead Valve Mfg. Co., 84 F.Supp. 572, 573 (W.D.Penn.1947). As the United States Supreme Court stated in State of Louisiana:

[Where] liability for the damages is created by a law of the legislature, [it] can be withdrawn or limited at [the legislature’s] pleasure____ The imposition [of the original law] is simply a measure of legislative policy ... and subject, like all other measures of policy, to any change the legislature may see fit to make. Id. at 287-88, 3 S.Ct. at 212-13.

Second, any legislation in the field of national economic policy is constitutional so long as it is not arbitrary or irrational. Pension Benefit Guar. Corp., supra, at —, 104 S.Ct. at 2717-18.

[I]t is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature had acted in an arbitrary and irrational way. See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); Williamson v. Lee Optical Co., 348 U.S. 483, 487-88, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955). (Pension Benefit Guar. Corp., supra, quoting Usery v. Turner Elkhom Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976)).

There is no evidence that Section 558 is arbitrary or irrational. Congress originally enacted the retroactive withdrawal liability provision of MPPAA in order to ensure the financial stability of the multiemployer pension plan system. Because MPPAA was going to place burdensome liability on withdrawing employers, Congress was concerned that employers would withdraw en masse from multiemployer plans prior to the enactment of MPPAA. Thus, by imposing withdrawal liability, retroactive from the date of MPPAA’s enactment, Congress hoped to dissuade these feared widespread withdrawals during the time in which the legislation was being considered by Congress. Pension Benefit Guar. Corp., 104 S.Ct. at 4814.

Section 558, on the other hand, was enacted because the concerns that originally prompted retroactive imposition of withdrawal liability have already been fulfilled and retroactive withdrawal liability is no longer necessary. As the Senate Finance Committee report states:

The committee believes that the amounts of money involved in the withdrawals that took place during the retroactive period are not necessary to protect the financial integrity of the multiemployer defined benefit pension plans.

Senate Comm, on Finance, Deficit Reduction Act of 1984, Explanation of Provisions Approved by the Committee, March 21, 1984 (Vol. I), S.Rpt. 98-169 (98th Cong., 2d Sess.) p. 377.

In addition, Congress believed that retroactive withdrawal liability imposed undue hardship on employers who withdrew from pension plans during the retroactive time period:

Many employers who withdrew from multiemployer plans prior to the date of the enactment of the MPPAA may have unexpectedly incurred significant withdrawal liability. Id.

Finally, it is important to note that Section 558 was vigorously considered in the legislative process. As stated by Congressman Rosténkowski: “This provision [Section 558], which our colleagues on education and labor opposed, was hard fought and one of the most difficult items to deal with in this conference ____” 130 Cong. Rec.H. 7091 (daily ed. June 27, 1984) (remarks of Rep. Rostenkowski).

From the foregoing, it can be seen that Section 558 is clearly not “arbitrary” or “irrational.” On the contrary, the Section was thought about, argued over, and finally enacted — for at least two explicit reasons. Congress determined that the retroactive imposition of withdrawal liability was unnecessary and unduly harsh and that such liability should, therefore, be can-celled. Section 558 represents an entirely rational means toward achieving that end.

Courts have also been known to strike down legislation when it is retroactive and is so “wholly unexpected and disruptive that harsh and oppressive consequences follow.” Hazelwood Chronic & Convalescent Hospitals, Inc., v. Weinberger, 543 F.2d 703, 708 (9th Cir.1976), vacated on other grounds, 430 U.S. 952 (1977) (Shelter Framing Corp. v. Pension Benefit Guar. Corp., 705 F.2d 1502, 1510 (9th Cir.1983). Although Section 558 is retroactive legislation, this Court finds that it was neither “wholly unexplained” nor “harsh and oppressive.” Rather, this Court finds the effect of Section 558 to be limited and reasonable.

The employee pension plan area is one that is subject to constantly changing statutory and regulatory requirements. See, e.g., P.B.G.C. v. R.A. Gray & Co., supra. Participants in this volatile field are presumed to have knowledge of that fact and any “vested” reliance on statutory or regulatory standards would clearly be misplaced. Shelter Framing, supra, at 1512. But there is an even more compelling reason why The Plan cannot claim that Section 558 disrupts their “vested” rights. Ever since The Plan tendered their demand for withdrawal liability to Stockton, Stockton vigorously contested that it owed The Plan anything. In fact, this case has been in litigation since the day MPPAA was originally enacted. Thus, this Court finds that there could not have been any reasonable reliance on The Plan’s part so as to constitute any “vesting” of rights and section 558, therefore, did not work an undue hardship on The Plan. For the foregoing reasons, this Court will grant summary judgment for the defendant.


text:
    Anthony CROSBY-BEY, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.
    Civ. A. No. 84-2104.
    United States District Court, District of Columbia.
    Nov. 29, 1984.

      Charles A. Ailstock, Asst. Corp. Counsel, D.C., Washington, D.C., for defendants.
    Michael Jaffe, Arent, Fox & Kintner, Washington, D.C., for plaintiff.
   CHARLES R. RICHEY, District Judge.

INTRODUCTION

The plaintiff in this action is a prisoner at the Maximum Security Facility at Lorton, Virginia. He seeks relief from his placement in administrative segregation on May 3, 1984. He also seeks relief from punishment imposed upon him as a result of three disciplinary reports issued later in May, 1984. The plaintiff asserts that the procedures which the Lorton officials followed in imposing the segregation and punishments upon him violated Due Process.

The defendants have submitted a Motion to Dismiss Or In the Alternative for Summary Judgment. The Court also has before it Opposition thereto from court-appointed counsel for the plaintiff, and supporting memoranda. For the reasons herein set forth, the Court has, by Order of even date herewith, denied the defendants’ Motion to Dismiss, and granted the defendants’ Motion for Summary Judgment.

THE IMPOSITION OF ADMINISTRATIVE SEGREGATION DID NOT VIOLATE DUE PROCESS

On May 3, 1984, defendant Vincent, a guard at Lorton, observed that the plaintiff had sustained some facial bruises and a lip injury. When questioned about his injuries, the plaintiff stated that he had walked into a cell door. Fearing that the plaintiff might have been involved in a fight with other inmates, he was removed from the general population and placed in administrative segregation for his own safety and for the safety of others. (Indeed, the plaintiff now admits that his injuries had been caused by a fight with another inmate, and not by a cell door.) (Opposition at 4).

The plaintiff asserts that his placement on administrative segregation deprived him of many liberties which he enjoyed while in the general prison population. The plaintiff also asserts that the Lorton regulations, which outline procedures for placement on administrative segregation, create a protected liberty interest in remaining in the general prison population. Because it will not affect the holding in this case, the Court assumes that the regulations do create a liberty interest in the plaintiff. However, as demonstrated below, the process which the plaintiff received easily satisfied the minimum requirements of the Due Process Clause.

The Supreme Court recently considered the constitutional issues concerning a prisoner’s placement on administrative segregation. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). The administrative segregation in that case, although nonpunitive, “imposed severe hardships” on the respondent. Id. at 467, n. 4, 103 S.Ct. at 869 n. 4. The Court held that while the Due Process Clause did not create an interest in being confined to the general prison population instead of administrative segregation, the specific Pennsylvania regulations there involved did create such a liberty interest. Id. at 468, 472, 103 S.Ct. at 870, 874. Nevertheless, the Court held that Due Process only required “an informal, nonadversary review of the information supporting respondent’s administrative confinement, including whatever statement respondent wished to submit, within a reasonable time after confining him to administrative segregation.” Id. at 472, 103 S.Ct. at 871-72; Because the respondent in that case received such procedures, there was no Due Process violation.

Hewitt is the controlling authority for this case. The plaintiff’s administrative segregation in the present case, like that in Hewitt, was nonpunitive. Therefore, even assuming that the Lorton Regulations created a liberty interest for the plaintiff to remain in the general prison population, the Lorton officials were only obligated to provide an “informal, nonadversary review” of the surrounding circumstances.

The record is clear that the Lorton officials satisfied the procedures announced in Hewitt. An Institutional Classification Report in the record details Mr. Crosby-Bey’s injuries and his explanation for them. (Defendants’ Exhibit C). That report concluded that Mr. Crosby-Bey should be placed in administrative segregation because he appeared to be a threat to himself and to others. The record also contains a similar memorandum by defendant Vincent. (Defendants’ Exhibit B). Furthermore, on May 4, 1984, the day after the incident, a Housing Board was convened to review the plaintiff’s status. Although the Board denied Mr. Crosby-Bey’s request for a continuance, it is plain that this hearing provided him with the opportunity to submit “whatever statement [he] wished.” Hewitt, 459 U.S. at 472, 103 S.Ct. at 871-72. In short, the undisputed facts make it clear that the Lorton officials easily satisfied the requirements of Hewitt, supra.

THE DISCIPLINARY ACTIONS TAKEN AGAINST THE PLAINTIFF SATISFIED DUE PROCESS REQUIREMENTS

The plaintiff in this action also challenges three disciplinary reports issued as a result of his behavior. These disciplinary actions may be judged by the standards set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Although involving a prisoner’s deprivation of good-time credits, certainly a more severe punishment than the disciplinary actions in this case, Wolff only required that a prisoner be given notice of the charges against him and a hearing at which he must have some opportunity to call witnesses. Id. at 563-366, 94 S.Ct. at 2978-79. Additionally, Wolff required that the prison officials state in writing the facts relied upon in reaching the disciplinary action. Id. at 564, 94 S.Ct. at 2978.

A review of the procedures used in disciplining Mr. Crosby-Bey demonstrates that they were in full compliance with the requirements of Wolff. On May 8, 1984, Mr. Crosby-Bey threatened a guard. (Brown Affidavit). The guard filed a disciplinary report on May 10, which report stated the facts underlying the charge. (Defendants’ Exhibit J). A hearing was held on May 14, which resulted in a sentence of fourteen days in (punitive) administrative segregation. The findings of the hearing board were plainly stated at the bottom of the disciplinary report. Thus, the prison officials clearly satisfied the requirements of Wolff on this occasion.

The plaintiff was involved in two other instances of misconduct on May 17 and May 19,1984. On each occasion the Lorton officials followed the same procedure: Mr. Crosby-Bey was written up in a disciplinary report, appeared before the Disciplinary Board or hearing officer, which stated the reasons for upholding the disciplinary reports. (See Defendants’ Exhibits K, L). Again it is clear that the Lorton officials satisfied the Due Process requirements set forth in Wolff.

CONCLUSION

This case, brought by a prisoner, challenges on Due Process grounds his initial confinement in administrative segregation, and certain disciplinary actions taken thereafter. These are areas which the Supreme Court has squarely addressed. See Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (administrative segregation); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (disciplinary actions). On each occasion challenged herein, the prison officials plainly complied with the Due Process requirements enumerated by the Supreme Court. Therefore, the Court has today issued an Order granting the defendants’ Motion to Dismiss.