author: ACKER, District Judge.

text:
    Effie MECKES, Plaintiff, v. REYNOLDS METALS COMPANY, Defendant.
    Civ. A. No. 84-AR-5123-NW.
    United States District Court, N.D. Alabama, Northwestern Division.
    March 11, 1985.

      Donald W. Davis, Davis & Howland, Birmingham, Ala., for plaintiff.
    C.V. Stelzenmuller, David D. Dowd, III, Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Ala., for defendant.
   MEMORANDUM OPINION

ACKER, District Judge.

Several weeks prior to trial the court denied a motion by defendant, Reynolds Metals Company (Reynolds), for summary judgment. The said motion was based on the fact that plaintiff, Effie Meckes (Meckes), did not file her administrative claim under the Age Discrimination in Employment Act (ADEA) within 180 days of the event of alleged discrimination, namely, the date upon which Reynolds assigned a young man, Craig Heuser (Heuser), to a job position to which Meckes, an employee in the protected age group, had aspired. Thereafter the court denied a request by Reynolds for a reconsideration of its said motion. When, however, the case was called for trial, and after the jury had been selected, Reynolds, at the court’s suggestion, refiled its motion for summary judgment in light of the elimination, for the first time, of all ambiguity and dispute as to the actual date upon which Heuser actually performed in his new job. In her brief opposing Reynolds’ earlier motion for summary judgment, Meckes had correctly stated:

... the affidavit of Meckes raises a factual issue of whether Heuser was physically occupying the new employment position as of July 1, 1982, as opposed to merely having been administratively replaced in that capacity for accounting and payroll purposes.

At trial, however, Meckes admitted the truth of the clear and unequivocal sworn testimony of Heuser himself that on July 1, 1982, he actually assumed and performed the job which had been sought by Meckes. Thus, despite Meckes’ conclusory affidavit it is now undisputed that if an act of age discrimination against Meckes occurred, it occurred on July 1, 1982. The court takes as true Meckes’ assertion that she only discovered the fact of Heuser’s promotion on July 19, 1982. Prior to the removal of all doubt as to Heuser’s promotion date there were two other undisputed pertinent facts: (1) that Meckes first filed an administrative claim of any kind of discrimination on December 29, 1982, a date which is 181 days after July 1, 1982; and (2) that her administrative claim was filed not with the Equal Employment Opportunity Commission (EEOC), but with the Office of Federal Contract Compliance Programs (OFCCP). Her complaint, received by OFCCP on December 29, 1982, consisted of a handwritten letter enclosing a handwritten description of alleged sex discrimination. It did not describe any act of alleged age discrimination. As she stated in her own brief:

Admittedly, plaintiff’s first charge to OFCCP did not mention her non-selection for the promotion granted to Craig Heuser.

Then, on January 5, 1983, 188 days after July 1, 1982, Meckes supplemented her administrative claim with OFCCP, mentioning for the first time Heuser’s job assignment, and saying:

I believe my qualifications are better than his and that I was blatantly discriminated against for promotion because of handicap, age and sex.

There is no evidence as to what, if anything, happened between January 5, 1983, and April 21, 1983, on Meckes’ complaint, but on April 21, 1983, OFCCP wrote a letter to EEOC saying:

Pursuant to a Memorandum of Understanding between the Office of Federal Contract Compliance Program (OFCCP) and the Equal Employment Opportunity Commission (46 F.R. 7435, dated January 23, 1981), the enclosed complaint filed by Effie Meckes against Reynolds Metals Company is being referred to you for processing under Title VII of the Civil Rights Act of 1964, as amended.

Nowhere in this purported referral did OFCCP mention the Age Discrimination in Employment Act or any claim by Meckes of age discrimination.

On June 9, 1983, Meckes first filed a written charge with EEOC. At the bottom of her charge appear the words “Original Charge Filed April 22, 1983”. Apparently April 22, 1983, is the date when her claim was received by EEOC from OFCCP. If the EEOC charge was first filed on April 22, 1983, it was filed much longer than 180 days after July 19, 1982. If it was first filed on June 9, 1983, it was filed nearly eleven months after Meckes learned of the alleged age discrimination. In any event, the EEOC charge of June 9, 1983, referred to Heuser’s promotion, and said:

I believe that I am being discriminated against because of my age ...

On June 28, 1983, OFCCP notified Meckes:

Our investigation indicates that the contractor selected an employee who was best qualified by formal education, training and total job responsibility and involvement. Of the three people considered, the male selected was the best qualified. The evidence does not support the allegation.
Based on the findings of this investigation, there was insufficient evidence to conclude that the contractor has violated its obligations under the nondiscrimination and affirmative action provisions of Executive Order 11246, as amended. Therefore, the Department’s processing of this complaint is hereby concluded.

The Failure to File with EEOC within 180 days of Discovery

It is to be noted that OFCCP was exercising the administrative jurisdiction delegated to it by the Secretary of- Labor by 41 C.F.R. §§ 60-1.2, 60-1.46, to investigate complaints of violations by Government contractors of the provisions of Executive Order 11246 which requires that Government contracts contain clauses guaranteeing equal employment opportunity “for all persons, without regard to race, color, religion, sex, or national origin, employed or seeking employment with Government contractors.” 41 C.F.R. § 60-1.1. OFCCP has no jurisdiction over, and E.O. 11246 has no application to, age. Manifestly, OFCCP only referred “the enclosed complaint” to EEOC insofar as the complaint may have involved claims within EEOC’s administrative jurisdiction, but OFCCP retained that aspect which could be a violation of Executive Order 11246 and the equal opportunity contract clauses, namely, the alleged sex discrimination, and rejected her sex claim on its merits on June 28, 1983.

OFCCP has never had any jurisdiction over ADEA complaints. The Memorandum of Understanding referred to by OFCCP is published at 46 F.R. 7435. Inter alia, it contains the following language:

This Memorandum of Understanding between the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC) is being implemented to further the objectives of Congress under Section 715 of Title VII of the Civil Rights of 1964, as amended by the Equal Employment Opportunity Act of 1972; of Executive Order 12067, 43 F.R. 28967; and Section 6 of Reorganization Plan no. 1 of 1978 (43 F.R. 19807).

Although conspicuous by its absence in this Memorandum is any reference to the ADEA, this absence is quickly explained by the fact that nothing in E.O. 11246 gives OFCCP any jurisdiction over age discrimination by Government contractors like Reynolds. In this regard, though reference is made to Reorganization Plan No. 1 of 1978 (U.S.C. Title 5, Appendix), only § 6 thereof is mentioned (purporting to transfer to EEOC all functions of the Equal Employment Opportunity Coordinating Council). All mention of § 2 thereof, which purported to transfer ADEA functions from the Secretary of Labor to EEOC is, again, conspicuously absent. It is quite evident that since OFCCP had nothing to do with age discrimination matters, the Memorandum of Understanding did not either.

The Memorandum also contains the following language:

Complaints filed with OFCCP within the jurisdiction of EEOC which OFCCP refers to EEOC shall be deemed charges filed jointly with EEOC. OFCCP shall promptly transmit all such charges to the appropriate EEOC Field Office. For the purpose of determining the timeliness of the charge under statutes administered by EEOC the date the matter was received by OFCCP shall be deemed to be the date it was received by EEOC.

To file a paper requires its delivery to the proper office, Chappell v. Emco Machine Works, 601 F.2d 1295 (5th Cir.1979). Since OFCCP was never a proper place to file any kind of age discrimination claim, plaintiff’s delivery to OFCCP of a charge of age and sex discrimination, though effective as a “filing” of her sex discrimination claim, was not a “filing” of an ADEA charge and could not constitute a “joint” filing with EEOC under the Memorandum.

The notion of quasi-legislation by “Memorandum of Understanding” between agencies rather than rule-making by an agency pursuant to the APA, 5 U.S.C. § 553, is derived solely from Executive Orders. The particular E.O. here applicable is E.O. 12067 (June 30, 1978), as amended by E.O. 12107 (December 28, 1978), calling for EEOC to “develop procedures with the affected agencies, including the use of memoranda of understanding, to minimize duplicative investigations” {Ibid., § 1-301(c)) and to “initiate cooperative programs, including the development of memoranda of understanding between agencies, described to improve the coordination of ... enforcement” {Ibid., § 1 — 301(i)). Of course, in reference to age discrimination, OFCCP was not an “affected” agency so that there can be no valid “duplicative” investigation of an age discrimination matter. Nor can there be “coordination” of enforcement with respect to an age discrimination matter properly the concern of only one agency. Therefore, E.O. 12067 cannot be construed to apply to ADEA matters, because (1) OFCCP had no concern with them; (2) the E.O. did not authorize a “Memorandum of Understanding” between these two agencies relating to that subject matter; and (3) the two agencies never purported to enter into such an understanding.

An earlier version of an EEOC-OFCCP Memorandum of Understanding .contained this provision:

10. Complaints filed with OFCCP shall be deemed charges filed with EEOC and OFCCP shall promptly transmit such charges to the appropriate EEOC District Office.

This provision was held to be valid in Reynolds Metals Co. v. Rumsfeld, 564 F.2d 663 (4th Cir.1977), cert. denied Reynolds Metals Co. v. Brown, 435 U.S. 995, 98 S.Ct. 1646, 56 L.Ed.2d 84 (1978), reversing a carefully reasoned lower court opinion at 407 F.Supp. 365 (E.D.Va.1976), but the Fourth Circuit was not there called upon to deal with a purported transfer from OFCCP to EEOC of a charge over which EEOC clearly had jurisdiction but over which OFCCP clearly had no concurrent jurisdiction. Therefore, Rumsfeld can provide no guidance in the instant fact situation.

The statute which provides the administrative timetable for an ADEA claim is 29 U.S.C. § 626. Its language at all times here pertinent provides that the charge must be filed with EEOC. Just as the Memorandum of Understanding nowhere mentions an ADEA claim, the statute itself nowhere mentions or suggests the possibility of filing such a claim with OFCCP. At the risk of repetition, the Memorandum of Understanding between EEOC and OFCCP, here necessarily relied upon by Meckes, does not refer to ADEA claims even by implication. Why? Because there is no basis whatsoever for assigning EEOC’s responsibilities under ADEA, as they existed on December 29, 1982, to any other agency. If EEOC or OFCCP should be allowed to circumvent the clear intent of 29 U.S.C. § 626 as to where an ADEA claim is to be filed, then EEOC can enter into a Memorandum of Understanding with the Environmental Protection Agency or with the Bureau of Indian Affairs so as to permit a person claiming age discrimination to file with that agency as EEOC’s surrogate or mailroom. If an individual claim of sex discrimination was erroneously but timely filed with the OFCCP, the simple fact that OFCCP has a right under Executive Order 11246 to deal with group complaints based on race, color, religion, sex or national origin, would not provide a logical reason for deeming it timely filed with EEOC. In the OFCCP documents filed by the parties here in support of and in opposition to the motion for summary judgment OFCCP clearly acknowledges these jurisdictional limitations. Only where OFCCP and EEOC have potentially overlapping or concurrent jurisdiction can a rational argument be made for deeming a filing with one as a filing with the other. No such rational argument can be made when OFCCP has no jurisdiction or connection whatsoever with Meckes’ individual ADEA charge. Therefore, Meckes’ purported filing of an age discrimination charge with the OFCCP was simply a nullity. It cannot be deemed filed with the EEOC, either on December 29, 1982, or on January 5, 1983. And, by any measure the filing with the EEOC on April 22, 1983, was not timely. Meckes’ ADEA claim is thus barred.

Although EEOC is not a party to the suit it eloquently indicated its agreement with this court on the ineffectiveness of the filing with OFCCP by typing boldly on Meckes’ EEOC complaint of June 9, 1983, the words “ORIGINAL CHARGE FILED APRIL 22, 1983”. If EEOC had for one moment believed that its Memorandum of Understanding with OFCCP was intended to make December 29, 1983, or January 5, 1983, the date upon which the original ADEA charge was deemed filed, EEOC certainly would have so noted. Instead, it noted the date when EEOC itself first received the charge, namely, April 22, 1983.

Can a “Reverse-Chadha” Argument be Made that the Delivery to OFCCP be Given Legal Effect as a “Filing” of an ADEA Charge?

The court now addresses an issue not raised by Meckes but one which concerns the court. Thus far the court has considered the date of filing upon the premise that EEOC was the only proper agency for filing an ADEA charge in December, 1982 and in January, 1983. The court is well aware, however, of the celebrated controversy as to the constitutionality of the adoption of Reorganization Plan No. 1 of 1978, arising from Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). See EEOC v. Martin Industries, 581 F.Supp. 1029 (N.D.Ala.1984). The enactment of Public Law 98-532 on October 19, 1984, retroactively ratifying and affirming Reorganization Plan No. 1 of 1978, (98 Stat. 2705; See H.R. No. 98-1104,'U.S.Code Congressional and Admin.News, December 1984, p. 4428), presumably has ended this controversy. As to the constitutionality of retroactivity see Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314-316, 65 S.Ct. 1137, 1142-1143, 89 L.Ed. 1628 (1945). The argument has been made by some employers that because of Chadha filing a charge with EEOC was invalid.

Although never argued in this case by Meckes, the court has considered the possibility of a reverse Chadha argument, namely, that the delivery of Meckes’ charge to OFCCP should be deemed a filing with the Secretary of Labor and that in view of the Chadha confusion, this fact should be considered a basis for equitable tolling. The flaw in any such argument, if and when made, is that the Secretary of Labor never delegated any authority under ADEA to OFCCP. OFCCP does not equate with the Secretary of Labor, although OFCCP is an agency within his Department. ADEA, as originally enacted, required a “notice of intent to sue” to be filed with the Secretary of Labor. The 1978 amendments changed this notice to a “charge”. Then came the Reorganization Plan No. 1 of 1978, by its terms to be effective July 1, 1979. It changed the place of filing from the Secretary of Labor to EEOC, an action which was thereafter ratified by P.L. 98-532 on October 19, 1984. ADEA § 6(a), 29 U.S.C. § 625(a), specifically authorized the Secretary of Labor to delegate his ADEA functions. Such a delegation, if undertaken, is required by the Administrative Procedure Act, 5 U.S.C. § 552(a), to be published in the Federal Register. ADEA § 7(b), 29 U.S.C. § 626(b), specifically adopted the enforcement procedures provided in sections 11(b), 16 (except for subsection (a) thereof), and 17 of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. §§ 211(b), 216, 217), and further provided that money owed under ADEA “shall be deemed to be unpaid minimum wages ... for purposes of sections 16 and 17 of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. §§ 216, 217)”. The Secretary delegated his functions, except the issuance of certain regulations, the bringing of suits, the submission of an annual report to Congress, and the recommending of criminal prosecution, under the FLSA to the Wage-Hour Division of the Department of Labor (Rules and Regulations, USDL, Organization and Functions, 16 F.R. 8147 (August 16, 1951), not codified in CFR, 1 CCH Wage-Hour Reporter ¶ 23,030.01). It is obvious from the lack of any subsequent delegation published in the Federal Register that there was no intention to delegate to OFCCP, particularly when the form of the notices under ADEA § 8 (29 U.S.C. § 627), prescribed by USDL regulations, expressly reads:

If you feel you have been discriminated against ... because of age, contact the:
U.S. Department of Labor
Wage and Hour Division
Local Address: _
(emphasis supplied).

This language was included once more in the revised poster required to be displayed by employers after the protected age was raised from 65 to 70. Furthermore, the Annual Reports filed with Congress by the Secretary of Labor under ADEA Section 13, 29 U.S.C. § 632, in January, 1968, 1969, and 1970, without exception, state that the administrative functions of the Secretary under ADEA had been delegated to the Wage and Hour Division. See also 1969 Report of ABA Section of Labor Relations Law, p. 92. Hence, if the function of filing charges was delegated at all by the Secretary, it was delegated to the Wage and Hour Division and not to OFCCP. Thus, filing an ADEA charge with OFCCP could not have been effective even assuming Chadha vitiated or confused Reorganization Plan No. 1 of 1978, and even assuming that congressional ratification was not retroactive for all purposes. The court does not speak to what “might have been” if plaintiff had written her letters directly to the Secretary of Labor or to the Wage-Hour Division.

From another perspective, Meckes could not have been misled by Chadha into filing with OFCCP, not only because she does not claim to have been misled, but because Chadha had not even been decided on December 29, 1982, and there is no possibility of any detrimental reliance on her part. Consequently, the Chadha controversy has no bearing on the question as to the place at which Meckes was required to file her charge.

The Failure of OFCCP to Transfer “Promptly”

In light of the foregoing, the question of whether or not OFCCP promptly transmitted Meckes’ ADEA claim to EEOC is academic. Nevertheless, the court will venture a dictum. The Memorandum of Understanding upon which Meckes relies requires that “OFCCP shall promptly transmit all such charges to the appropriate EEOC field office”, (emphasis supplied). For what it is worth, the court expresses the belief that the forwarding on April 21, 1983, by OFCCP of a charge received by it on January 3, 1983, is not prompt.

If, arguendo, the OFCCP filing is deemed filed with the EEOC, is it timely?

If the court is correct in holding that Meckes was required to file with EEOC itself rather than with OFCCP, the discussion which follows as to of the proper application of the statute of limitations and of the concept of “tolling” becomes dicta.

Meckes defends Reynolds’ motion for summary judgment by asserting first, that her filing with OFCCP constituted a filing with EEOC; and second, that she did not discover that she had been bypassed for the job until July 19, 1982, a date which is less than 180 days prior to December 29, 1982, and less than 180 days prior to January 5, 1983. Obviously, if her filing on December 29, 1982, as supplemented on January 5,1983, is properly deemed a claim of age discrimination filed with EEOC, and if the charging party invariably has 180 days within which to file, starting from the date when she actually discovered, or by an exercise of reasonable diligence should have discovered, the act of age discrimination, then a jury issue is presented in this case and a summary disposition would be inappropriate.

This court has already concluded that Meckes cannot jump her first hurdle because she failed to file with the EEOC until April 22, 1983, and is therefore barred by the 180 day limitation even if it runs from the date of discovery. The court now, however, concludes that Meckes faces an equally formidable second hurdle, because the court finds that the reasoning in Baldwin County Welcome Center v. Brown, — U.S. -, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984), removes from Meckes her claim of a guaranteed 180 days from the date when she allegedly discovered the facts of discrimination within which to file. When, on January 5, 1983, Meckes supplemented her administrative claim by charging for the first time an adverse employment decision based on her age, 188 days had elapsed from the now undisputed date upon which “the alleged unlawful practice occurred”, and 162 days had elapsed from her claimed date of “discovery”.

The limitations statute, 29 U.S.C. § 626(d)(1), provides in pertinent part:

No civil action may be commenced by an individual under this Section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC]. Such a charge shall be filed (1) within 180 days after the alleged unlawful practice occurred, (emphasis supplied).

It is true, of course, that in Watson v. National Linen Service, 686 F.2d 877 (11th Cir.1982), and in Stafford v. Muscogee County Board of Education, 688 F.2d 1383 (11th Cir.1982), the Eleventh Circuit has held that this 180 day period only begins to run “from the time that the complainant knows or reasonably should have known that the challenged act has occurred”. This interpretation of the ADEA would, in effect, create a possible delay in the accrual of the ADEA cause of action where the act of discrimination goes undiscovered through no fault of the employee. It is not a true “tolling” concept, that is, if “tolling” is properly defined as forgiveness of a potential plaintiff’s failure to file a claim upon which a cause of action has accrued, or, in other words, if “tolling” permits an interruption in what would otherwise be a running statute of limitations. Applied literally, Watson and Stafford would allow a complaining party to file her EEOC complaint 1180 days after an adverse employment decision based on age if it were not until 1000 days after the event, by an exercise of due diligence, that she first discovered the fact. The potential exposure by the employer to suit would be for as long as the employee lives.

Some statutes of limitations by their terms expressly recognize that the accrual of the particular cause of action occurs only upon the event of discovery by the prospective plaintiff of his cause. This is not the import of the language of 29 U.S.C. § 626(d)(1), which expressly provides for accrual upon the occurrence itself. In Watson and Stafford, the Eleventh Circuit, prior to Baldwin Welcome, understandably fashioned an extension of the accrual date by talking in terms of “equitable tolling”. Prior to Baldwin Welcome, this reasoning was a seemingly innocuous way for preventing a discriminatee from being barred when he or she had been undeniably diligent.

Then came Baldwin Welcome, which severely undercuts Watson and Stafford and, in effect overrules the Eleventh Circuit’s reasoning in those cases. Watson and Stafford simply cannot be reconciled with the following holding in Baldwin Welcome at 104 S.Ct. 1725, et seq:

This is not a case in which a claimant has received inadequate notice, see Gates v. Georgia-Pacific Corp., 492 F.2d 292 (CA9 1972); or where a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon, see Harris v. Walgreen’s Distribution Center, 456 F.2d 588 (CA6 1972); or where the court has led the plaintiff to believe that she had done everything required of her, see Carlile v. South Routt School District RE 3-J, 652 F.2d 981 (CA10 1981). Nor is this a case where affirmative misconduct on the part of a defendant lulled the plaintiff into inaction. See Villasenor v. Lockheed Aircraft, 640 F.2d 207 (CA9 1981); Wilkerson v. Siegfried Insurance Agency, Inc., 621 F.2d 1042 (CA10 1980); Leake v. University of Cincinnati, 605 F.2d 255 (CA6 1979). The simple fact is that Brown was told three times what she must do to preserve her claim, and she did not do it. One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.
Brown also contends that the doctrine of equitable tolling should apply because the Welcome Center has not demonstrated that it was prejudiced by her failure to comply with the rules. This argument is unavailing. Although absence of prejudice is a factor to be considered in determining whether the doctrine of equitable tolling should apply once a factor that might justify such tolling is identified, it is not an independent basis for invoking the doctrine and sanctioning deviations from established procedures.
Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. As we stated in Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 2497, 65 L.Ed.2d 532 (1980), “[i]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law. (emphasis supplied).

The earlier decision by the Eleventh Circuit in Baldwin Welcome, 698 F.2d 1236 (1983) rehearing den., 704 F.2d 1253 (11 Cir.1983) as to which the Supreme Court granted certiorari, is by an unpublished opinion. This court has obtained a copy of that opinion in order to understand, to the extent possible, the full import of the Supreme Court’s reversal of the Eleventh Circuit. The Eleventh Circuit decision relies upon several ideas which also inhere in its decisions in Watson and Stafford. One concept is to “liberally construe” limitations provisions in civil rights cases. The same concept is restated in terms of being “generous” in interpreting limitations periods in civil rights cases. A third, and the most important concept, was stated thusly by the Eleventh Circuit in its unpublished opinion:

Brown’s diligence in this case is sufficient to justify the district court’s attention to her matter, (emphasis supplied).

It is these concepts with which the Supreme Court markedly differs with the Eleventh Circuit in its reasoning in Baldwin Welcome and Watson and Stafford, and as to which the Supreme Court points a new direction.

Not only does the Supreme Court eliminate sympathy as a reason for tolling, but it now requires strict adherence to the statutory language set forth in limitations periods even in civil rights cases and requires “diligence” as a prerequisite for invoking “equitable tolling”. Furthermore, the Supreme Court recognizes the distinction between the two kinds of “diligence”. The first, recognized and depended upon by the Eleventh Circuit in Watson and Stafford, is the “diligence” required for ascertaining the facts giving rise to a complaint. The second kind of “diligence”, not recognized by the Eleventh Circuit in Watson and Stafford but the more important form of “diligence” in light of Baldwin Welcome, is the “diligence” required to pursue the cause of action. It is this brand of “diligence” which courts now must insist upon. Giving Meckes the benefit of every doubt, she found out on July 19, 1982, that she had been discriminated against on account of her age. Yet, she did absolutely nothing about it until 162 days later. She is, of course, presumed to know the law (29 U.S.C. § 626), which unequivocally requires that she file with the EEOC within 180 days “after the alleged unlawful practice occurred”. For aught appearing, during this 162 days before Meckes made any administrative charge, Reynolds was totally unaware that its employee had any complaint. Therefore, Reynolds during this 162 days was subject to the possibility of misplacing its records, including the personnel record which reflected that Heuser took his new position on July 1, 1982. The possible prejudice to Reynolds was and is obvious. Under the admitted facts it is impossible to find that Meckes was “diligent” waiting 162 days to file her complaint. If Baldwin Welcome says nothing else, it-says Meckes must be diligent. She was not.

If, hypothetically, Meckes had by an exercise of diligence only discovered that Heuser was given the job 179 days after the date he actually received it, the doctrine of. equitable tolling would surely come into play and would have given Meckes a “reasonable time” within which to file her charge. “Equity” would not have required her to appear at EEOC the next day. The words “diligence” and “reasonable” have a very similar connotation. One implies the other. A “reasonable time” does not always equate with 180 days. An invariable 180 days after knowledge by the employee can be inequitable for the employer if it is without blame, either for the plaintiffs failure to discover or her failure to file.

A good discussion of the 180 day filing requirement in ADEA cases, but one which does not clearly address the difference between delayed accrual and tolling, is found in Schlei and Grossman, Employment Discrimination Law, Second Edition (1983), which addresses the issue at p. 490 as follows:

Most courts have held that the 180/300-day filing requirement is akin to a statute of limitations, which can be tolled for equitable reasons.
******
The charging party must meet the burden of alleging facts which justify tolling of the period for equitable reasons.
******
Whether or not employees are diligent in pursuing their rights is a highly relevant consideration, (emphasis supplied). [This sounds like Baldwin Welcome ].

Both Schlei and Grossman, and the cases which they cite, recognize expressly or by implication the distinction between “diligence in ascertaining the facts” and “diligence in pursuing rights.” Most of the examples given to justify “tolling” involve misconduct by the employer. In the 1983 supplement to Schlei and Grossman at p. 54 the commentators say:

... the courts have continued to evince a reluctance to toll the filing period, absent misconduct or bad faith attributable to the defendant.

There is not the slightest evidence here that Reynolds was guilty of misconduct or bad faith. If it had in any way misled Meckes there would, of course, be a reason for equitable tolling.

This principle of equity which requires that a plaintiff act diligently in order to be allowed to invoke equitable tolling is well stated by Hon. Sam C. Pointer, Jr., in Rader v. United Transportation Union, 112 L.R.R.M. 2861 (N.D.Ala.1982), as follows at p. 2863:

In appropriate circumstances litigants must be relieved from the strictures of a limitations period, either on the basis of tolling or on other equitable principles. The time during which the union was considering his grievance — from August 29 to November 12, 1980 — might, for example, be treated as a period during which the statute was tolled. Rader would not, however, be entitled to claim that he had a period of one year from the date he or his counsel learned of the union’s rejection of his position — a doctrine of discovery developed by the courts where there is fraudulent concealment of a cause of action. A modified form of the discovery doctrine has been applied on equitable grounds in some cases which did not involve fraud, where the cause of action was discovered with only a very short time remaining for suit to be filed. Here, however, many months remained for suit to be filed when plaintiffs counsel was informed of all the critical events upon which the claim is based, (emphasis supplied).

In the Meckes situation there is not the slightest suggestion of any concealment by Reynolds, fraudulent or otherwise, and for 162 days after Meckes’ actual discovery of the act of alleged discrimination she did absolutely nothing. It is hard to comprehend how Meckes can seek to invoke a principle of equity.

Without specific reference to Baldwin Welcome, but following its direction, the Eleventh Circuit on October 11, 1984, in McClinton v. Alabama By-Products Corp., 743 F.2d 1483 (11th Cir.1984), dealt with an appeal from a lower court decision in which the “district court held that the equities in the case did not justify a tolling of the 180-day notification requirement and granted summary judgment to the defendants”. At p. 1484. McClinton was an ADEA case. The Eleventh Circuit said, long after Watson and Stafford, at p. 1485:

This 180-day notification requirement is a prerequisite to an action based on the ADEA, Templeton v. Western Union Telegraph Co., 607 F.2d 89, 91 (5th Cir.1979), and is intended to promote the speedy, informal, non-judicial resolution of discrimination claims, and to preserve evidence and records relating to the alleged discriminatory action. Edward v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1198-99 (5th Cir.1975).
It is now established that this notification requirement is not a jurisdictional prerequisite that deprives a court of subject matter jurisdiction, but a requirement more in the nature of a statute of limitations that is subject to equitable tolling. Coke v. General Adjustment Bureau, 640 F.2d 584, 595 (5th Cir.1981) (en banc). Whether to toll this statutory period is determined on a case-by-case basis, depending on the equities of the situation, (emphasis supplied).

Quoting from Templeton v. Western Union Telegraph Co., 607 F.2d 89 (5th Cir.1979) the Eleventh Circuit continued at p. 1485:

... an employee who is aware of his ADEA rights yet does not notify the Department of Labor [here EEOC] of his intent to sue [here his charge] within the prescribed period of time is barred from asserting a cause of action under the ADEA. (emphasis the Eleventh Circuit’s).

McClinton clearly recognizes that a person who is aware of his ADEA rights must thereafter proceed diligently. McClinton follows Baldwin Welcome rather than Watson and Stafford. It recognizes that a crucial purpose for a limitations period is to put potential controversies to rest without unduly prejudicing the rights of those who do not know of the existence of facts giving rise to their cause of action and without unduly prejudicing the rights of prospective targets. McClinton adopts a stricter view of “diligence” than does Watson or Stafford, and, in this court’s view, better accommodates to the new reality of Baldwin Welcome. If “to toll this statutory period is [to be] determined on a case-by-case basis depending on the equities of the situation”, as said in McClinton at p. 1485, this court finds that the equities in Meckes’ particular situation strongly militate against “tolling”.

In Robinson v. City of Fairfield, 750 F.2d 1507, (11th Cir.1985), decided on January 21, 1985, the Eleventh Circuit correctly points out that a civil rights complaint must be considered by a district court if it sets forth the nature and factual basis of the plaintiff’s claim of discrimination and if it is received within the limitations period by the clerk. At p. 1507. However, Robinson provides no escape for Meckes. Meckes’ charge did not set forth the factual basis of her claim of age discrimination until 188 days after the act of alleged discrimination occurred, and it was not filed with the appropriate agency until months thereafter. Robinson was clearly “diligent”. Meckes was clearly not.

The limitations concept which the court finds to bar Meckes is not an easy concept to articulate, and the court may have failed to articulate it clearly. The court may be wrong, but it does not want to be misunderstood. In a nutshell, it embraces the idea implicit in Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), where the Supreme Court was dealing with the statutory language of 42 U.S.C. § 2000e-5(e), identical to 29 U.S.C. § 626(d)(1) in requiring that a complaint be filed with EEOC “within 180 days after the alleged unlawful practice occurred”. The gist of the opinion is found at 101 S.Ct. 505, as follows:

Congress has decided that time limitations periods commence with the date of the “alleged unlawful employment practice.” See 42 U.S.C. § 2000e-5(e). Where, as here, the only challenged employment practice occurs before the termination date, the limitations periods necessarily commence to run before that date. It should not be forgotten that time — limitations provisions themselves promoted important interests; ‘the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones.’

The court then turned a deaf ear to the plaintiff who mistakenly assumed that the 180 days did not begin to run until it became clear to him that the adverse employment decision was effective as to him. The idea is that where the victim of discrimination has a reasonable time from the date of his discovery within which to meet the 180 day deadline, then the 180 days is deemed to run from the date of the act of discrimination, and the Congressionally mandated accrual date is strictly applied. However, where the discovery takes place too late during the 180 day period for the victim, by reasonable diligence, to meet the strict 180 day deadline, then he is given a reasonable extension of the deadline. In Meckes’ case there is no reason to give her such an extension.

Conclusion

For the foregoing separate and several reasons, defendant’s motion for summary judgment will be granted by separate order.


source: Caselaw Access Project

author: McCURN, District Judge.

license: Public Domain

text:
    Robert PRESLEY, on behalf of himself and all other persons similarly situated, Plaintiffs, v. Donald T. REGAN, as Secretary of the United States Department of the Treasury and Margaret Heckler, as Secretary of the United States Department of Health and Human Services, Defendants.
    No. 83-CV-630.
    United States District Court, N.D. New York.
    March 11, 1985.

      Cornell Legal Aid, Karen Hagberg, George Hayes, Keith St. John (Students), Ithaca, N.Y., for plaintiffs; Daniel A. Pozner, Ithaca, N.Y., of counsel.
    Frederick J. Scullin, Jr., U.S. Atty., Syracuse, N.Y., Louis J. Lombardo, Trial Atty., Tax Div., U.S. Dept, of Justice, Washington, D.C., for defendants; Joseph A. Pavone, Asst. U.S. Atty., Syracuse, N.Y., of counsel.
   MEMORANDUM-DECISION AND ORDER

McCURN, District Judge.

Plaintiff Robert Presley brings this action on behalf of himself and others similarly situated for declaratory and injunctive relief against the Secretary of the Treasury and the Secretary of Health and Human Services. The action challenges the constitutionality of the federal-state tax intercept program created by section 2331 of the Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, 95 Stat. 357, 860 (1981) [“tax intercept program” or “program”]. Plaintiffs contend that the tax intercept program is unconstitutional because it allows the government to deprive them of their property, namely their tax refunds, without due process of law. Plaintiffs seek injunctive relief prohibiting the defendants from withholding or interfering with their federal tax refunds and a declaratory judgment that the tax intercept program is unconstitutional because it fails to provide plaintiffs with a full and fair hearing prior to interception of their refunds.

Presently before the court are cross motions for summary judgment. For the reasons set forth below, the plaintiffs’ motion for summary judgment is denied and the defendants’ motion for summary judgment is granted. The defendants have also made a motion to join the State of Michigan as an indispensable party. The motion to join is denied.

BACKGROUND

In 1976 plaintiff Robert Presley married Shirley Ann Smith in Ithaca, New York. They subsequently had two children. In 1977, Mrs. Presley took the children and moved to Michigan where she commenced divorce proceedings against the plaintiff. In 1979, Mr. Presley received two forms in the mail; the forms were related to the Michigan divorce proceeding and were captioned “Consent to Jurisdiction” and “Appearance.” Mr. Presley cannot read or write, but he is able to sign his name. Believing that the forms would allow his wife to obtain a divorce, Mr. Presley signed the forms, apparently unaware that signing would allow the Michigan courts to enter a support judgment against him.

On March 21, 1980, the Michigan court entered a default judgment of divorce against Presley and ordered him to pay $40 per week support for each of his two children. At the time this decree was entered, Presley was unemployed. Mr. Presley never submitted any financial information to the Michigan court, has never been to Michigan, and has never paid any of the support payments ordered by the Michigan court.

Mrs. Presley applied for welfare benefits in Michigan. As a prerequisite to receiving benefits, she assigned her right to receive child support payments to the State of Michigan. As a result, Mr. Presley now owes his past due child support payments to Michigan rather than to his former wife. The support arrearages have continued to accrue, and the latest delinquency notice indicates that he owes more than $15,000 to the State of Michigan.

In April 1982, Mr. Presley received notification from the Internal Revenue Service [“IRS”] that his 1981 federal income tax refund had been intercepted and sent to the Michigan state welfare agency pursuant to the tax intercept program. The tax intercept program authorizes the seizure of federal tax refunds to reimburse state welfare agencies for monies spent to aid families who have not received support payments from a parent obligated to make such payments. Mr. Presley contends that the tax intercept program is constitutionally invalid and that the actions of the defendants in offsetting any overpayment of federal income taxes against past-due child support payments violate the plaintiffs’ right to procedural due process of law under the Fifth Amendment of the U.S. Constitution. Plaintiffs maintain that they are entitled to notice and a meaningful opportunity to be heard prior to being deprived of their federal income tax refund. The government contends that Mr. Presley and the class he represents have received all the process they are due.

DISCUSSION

Under Fed.R.Civ.P. 56(c), a party is entitled to summary judgment when it has demonstrated “the absence of any material factual issue genuinely in dispute” and, that it is entitled to judgment “as a matter of law.” See Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112, 115 (2d Cir.1984); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir.1983). Both parties are essentially in agreement regarding the procedures that were followed in Mr. Presley's case. Before turning to the merits of the plaintiffs’ due process claim, a closer examination of the tax intercept program’s structure and procedures is warranted.

The tax intercept program was enacted in 1981 as an amendment to the Child Support Enforcement Act, 42 U.S.C. § 651 et seq. The legislative history of the statute and amendment indicates that Congress was concerned about the growing problem of parents defaulting on their child support obligations with a consequent drain on limited state welfare resources. See S.Rep. No. 93-1356, 93rd Cong., 2nd Sess,, reprinted in 1974 U.S. Code Cong. & Ad. News 8133, 8145-50; S.Rep. No. 97-139, 97th Cong., 1st Sess. reprinted in 1981 U.S. Code Cong. & Ad. News 396, 787. Under the tax intercept program, any tax refund due to the defaulting parent may be intercepted by the IRS and paid to the state agency that has provided aid to the defaulting parent’s family. However, before the tax intercept program can be utilized by the States, certain prerequisites have to be met.

The normal progression of events is as follows. The custodial parent, usually the mother, seeks a divorce from the non-custodial parent. An order of support is entered against the non-custodial parent. The noncustodial parent then defaults on the support payments, often forcing the custodial parent to apply for welfare benefits. The custodial parent then assigns any rights to child support payments to the state as a condition of eligibility for welfare. When the non-custodial parent is more than $500.00 in arrears, the state welfare agency reports his name to the Secretary of Health and Human Services. The Secretary, through the Office of Child Support Enforcement, then ascertains whether a valid support order exists and whether the non-custodial parent is in default. If so, the Secretary of Health and Human Services certifies the delinquent parent’s name to the Secretary of the Treasury. The Secretary of the Treasury then directs the IRS to withhold as much of the delinquent parent’s federal tax refund as will satisfy the outstanding support payments. The refund is then transferred to the state welfare agency to satisfy the parent’s debt. A recent amendment to the statute requires the state to send the delinquent parent notice of the impending intercept before his name is certified to the Secretary of the Treasury. This amendment renders Mr. Presley’s arguments regarding notice moot as all delinquent parents are now entitled to notice before their tax refunds are intercepted and transferred. The notice informs the taxpayer of the amount of his refund, the state agency to which it was sent, and the procedure to be followed to contest the state’s determination that past-due support is owed or the amount of past-due support owed.

The tax intercept program does not, however, afford delinquent parents an opportunity for a hearing before the tax refund is transferred to the state agency. Mr. Presley argues that the failure to provide delinquent parents with a pre-transfer hearing renders the tax intercept program constitutionally defective.

It is well-settled that any significant deprivation of property by the government must “be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). This opportunity to be heard must be made available “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). Even a “temporary, nonfinal” deprivation of property has been held to be a significant deprivation under the Fourteenth Amendment in certain circumstances. Fuentes v. Shevin, 407 U.S. 67, 85, 92 S.Ct. 1983, 1996, 32 L.Ed.2d 556 (1972). A number of courts have held that the interception of one’s tax refund is a significant deprivation, “implicating due process concerns.” Coughlin v. Regan, 584 F.Supp. 697, 707 (D. Maine 1984); accord, Nelson v. Regan, 560 F.Supp. 1101, 1106 (D.Conn.1983), aff'd on other grounds, 731 F.2d 105 (2d Cir.), cert. denied sub nom. Manning v. Nelson, — U.S. -, 105 S.Ct. 175, 83 L.Ed.2d 110 (1984); Marcello v. Regan, 574 F.Supp. 586, 595 (D.R.I.1983); Sorenson v. Secretary of the Treasury, 557 F.Supp. 729, 737 (W.D.Wash.1982), affirmed 752 F.2d 1433 (9th Cir.1985). Two courts have held that due process requires the states to provide a pre-transfer hearing, Nelson, 560 F.Supp. at 1111; Marcello, 574 F.Supp. at 599, and two courts have held that no hearing is constitutionally required before transfer of an obligated parent’s refund. Jahn v. Regan, 584 F.Supp. 399 (E.D.Mich.1984); Kenney v. Secretary of the Treasury, No. 83-2427, slip op. (C.D.Cal. Oct. 11, 1983). This court, however, need not reach the question of whether the Constitution requires a pre-transfer hearing because the State of Michigan has agreed to afford pre-transfer hearings to delinquent spouses. Jones v. Ritsema, No. 82-73573, slip op. (E.D.Mich. Feb. 29, 1984). Mr. Presley is clearly entitled to avail himself of the procedures agreed to in Jones. Thus, the only question left for this court to resolve is whether Mr. Presley is denied due process because he is too poor to travel to Michigan to avail himself of a hearing. Mr. Presley argues that his opportunity to be heard.is not “meaningful” because he does not have the funds to travel to Michigan.

As a preliminary matter the court notes that the Supreme Court has declined to treat the poor as a suspect class. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); L. Tribe, American Constitutional Law, 1118-1125 (1978). The Court has also declined to recognize a fundamental right to various necessities of life. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); L. Tribe, American Constitutional Law, 1127-1136 (1978). Therefore, if Mr. Presley were to prevail here, it would not be because he is too poor to travel to Michigan, but rather because all interstate plaintiffs have a due process right to be heard in their home state.

The Supreme Court established a balancing test for determining the constitutional adequacy of governmental procedures with regard to due process in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The test requires a balancing of three factors:

First, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Mathews, 424 U.S. at 335, 96 S.Ct. at 903.

This court agrees with the Nelson and Marcello courts that the first factor weighs in favor of the plaintiff. Many families “plan for and rely on the certainty of a refund”, and an unexpected deprivation of that refund could create a budgetary crisis in a family. Marcello, 574 F.Supp. at 596; see also, Nelson, 560 F.Supp. at 1108; Sorenson, 557 F.Supp. at 738. The court also finds that, were it not for the safeguards provided by the Jones decision, the second factor would weigh in favor of the plaintiff. The risk of an erroneous deprivation in a joint federal-state program involving two, or sometimes three, levels of bureauracy is substantial. However, the procedures set up in Jones reduce the likelihood that such erroneous deprivations will be made. Thus, the second factor weighs in favor of the defendants here.

Even if the first two factors both weighed in favor of the plaintiffs, the third factor would tip the scale in favor of the defendants. The plaintiffs bring this action seeking a declaration that the federal government is the proper party to provide interstate plaintiffs with a hearing in their home state. However, this court agrees with the court in Sorenson that there “is something uniquely inappropriate in involving the Federal Government” in the hearing process. Sorenson, 557 F.Supp. at 738. Although the federal government has an indirect interest in maintaining the fiscal health of the AFDC program, it has little or no interest in the plaintiffs’ tax refunds or the intercept program itself. The federal government’s role in the tax intercept program is merely to act as the states’ bill collector. The IRS acts as a kind of clearinghouse, shuttling the refunds to either the plaintiff or a state agency on behalf of the plaintiff. See Sorenson, 557 F.Supp. at 738. Moreover, the financial and administrative burdens involved in implementing a procedure for holding predeprivation hearings on a federal level would be prohibitively high.

Plaintiffs contend that the financial and administrative burden on the government would actually be low because the IRS already provides in-office hearings for individuals with questions regarding their tax refunds. The plaintiffs, however, overlook the fact that the IRS employees conducting these in-office hearings are normally individuals with no legal training who would be unable to resolve the kind of challenge to the tax intercept program that Mr. Presley has raised here, namely, that the Michigan court did not have proper jurisdiction over him when it issued the divorce decree. Additionally, even if the challenge to the program were not based on legal arguments, all of the information necessary to resolve a dispute under the tax intercept program is within the control of the forum states. In order to resolve such a dispute, the IRS agent would have to contact the forum state, here Michigan, and have all the information sent to the plaintiffs’ home states. This procedure, in the court’s opinion, is both unnecessarily costly and inefficient. Additionally, requiring the defendants to implement new costly and burdensome procedures to provide interstate plaintiffs with predeprivation hearings in their home state would fly in the face of Cohgress’ intent to execute the tax intercept program with as little administrative burden on the IRS as possible.

Moreover, denying the plaintiffs the right to be heard by the IRS in their home state does not strip them of all due process guarantees. The plaintiffs are still entitled to a predeprivation hearing in their forum states. Even if a plaintiff decides that he cannot afford a trip to his forum state, he is free to submit his objections and any supporting documents he may have by mail.

Accordingly, the court finds the Constitution does not require the defendants to provide the plaintiffs with an opportunity to be heard in their home states before their tax refunds are intercepted. The notice and hearing afforded to Mr. Presley by the State of Michigan provide him with adequate due process safeguards. The court hereby grants the defendants’ motion for summary judgment and denies the plaintiffs’ motion for summary judgment. As to those members of the plaintiff class whose forum states do not provide them with a pre-transfer hearing, the complaint is dismissed without prejudice.

IT IS SO ORDERED.

      . The class was certified on November 27, 1984. It consists of approximately 1800 New York residents whose federal tax refunds have been intercepted pursuant to the tax intercept program and sent to states other than New York.

      . The tax intercept program is codified at 42 U.S.C. § 664 and provides:
      § 664. Collection of past-due support from Federal tax refunds
      (a) Upon receiving notice from a State agency administering a plan approved under this part [42 U.S.C. §§ 651 et seq. ] that a named individual owes past-due support which has been assigned to such State pursuant to section 402(a)(26) [42 U.S.C. § 602(a)(26) ], the Secretary of the Treasury shall determine whether any amounts, as refunds of Federal taxes paid, are payable to such individual (regardless of whether such individual filed a tax return as a married or unmarried individual). If the Secretary of the Treasury finds that any such amount is payable, he shall withhold from such refunds an amount equal to the past-due support, and pay any such amount to the State agency (together with notice of the individual’s home address) for distribution in accordance with section 457(b)(3) [42 U.S.C. § 657(b)(3)].
      (b) The Secretary of the Treasury shall issue regulations, approved by the Secretary of Health and Human Services, prescribing the time or times at which States must submit notices of past-due support, the manner in which such notices must be submitted, and the necessary information that must be contained in or accompany the notices. The regulations shall specify the minimum amount of past-due support to which the offset procedure established by subsection (a) may be applied, and the fee that a State must pay to reimburse the Secretary of the Treasury for the full cost of applying the offset procedure, and provide that the Secretary of the Treasury will advise the Secretary of Health and Human Services, not less frequently than annually, of the States which have furnished notices of past-due support under subsection (a), the number of cases in each State with respect to which such notices have been furnished, the amount of support sought to be collected under this subsection by each State, and the amount of such collections actually made in the case of each State.
      (c) As used in this part [42 U.S.C. §§ 651 et seq.] the term "past-due support" means the amount of a delinquency, determined under a court order, or an order of an administrative process established under State law, for support and maintenance of a child, or of a child and a parent with whom the child is living.
      The Internal Revenue Code was simultaneously amended to provide authority for the interception of the delinquent parent’s tax refund. Section 6402(c) of Title 26 provides:
      § 6402. Authority to make credits or refunds
      * * * * * *
      (c) Offset of past-due support against overpayments.
      The amount of any overpayment to be refunded to the person making the overpayment shall be reduced by the amount of any past-due support (as defined in section 464(c) of the Social Security Act [42 U.S.C. § 664(c) ] ) owed by that person of which the Secretary has been notified by a State in accordance with section 464 of the Social Security Act [42 U.S.C. § 664]. The Secretary shall remit the amount by which the overpayment is so reduced to the State to which such support has been assigned and notify the person making the overpayment that so much of the overpayment as was necessary to satisfy his obligation for past-due support has been paid to the State. This subsection shall be applied to an overpayment prior to its being credited to a person’s future liability for an internal revenue tax.

      . Title IV, Part A, of the Social Security Act, 42 U.S.C. §§ 601 et seq. establishes the Aid to Families with Dependent Children program [AFDC], a cooperative Federal-State program for the provision of financial aid and services to certain needy dependent children and their families. Pursuant to the AFDC program, applicants and recipients are required to assign to the States their right to receive child support payments as a condition of receiving AFDC assistance. 42 U.S.C. § 602(a)(26).

      . Mr. Presley's 1982 and 1983 tax refunds have also been intercepted and sent to the State of Michigan. The amounts of his tax refunds are ' as follows:
      1981 ...........•...................$ 165.87
      1982 ..............................$ 169.57
      1983 ..............................$ 346.20

      . Child Support Enforcement Amendments of 1984, Pub.L.No. 98-378, § 21, 98 Stat 1305, 1323 (1984).

      . Additionally, the consent judgment in Jones v. Ritsema, No. 82-73574 slip op., (E.D.Mich. Feb. 29, 1984) requires the State of Michigan to send a more detailed notice than that required by the amendment. Jones provides:
      A pre-offset notice shall be sent by the state or its assignee to all persons in the State of Michigan who may be certified to the Internal Revenue Service as delinquent in child support payments under the federal-state intercept program authorized pursuant to 42 U.S.C. 644 [sic] (West Supp.1982) and 26 U.S.C. 6402 (West Supp.1982). The notice shall be sent before the name has been certified and shall contain the following information:
      a) a statement that the person has a right to a hearing to dispute the certification if he or she believes the amount certified is in error, if he or she is currently on a wage assignment or questions the amount for any other reason;
      b) a statement informing the person that he or she may contact the Friend of the Court to request a hearing;
      c) a statement informing the recipient of the right of a non-obligated spouse to receive his or her portion of the tax refund from the Internal Revenue Service in the case of a joint return.

        Jones, slip op., ¶ 1 at 2.

      . Child Support Enforcement Amendments of 1984, Pub.L.No. 98-378, § 21, 98 Stat 1305, 1323 (1984).

      . Jones provides:
      All persons who believe that their names should not be certified as delinquent in child support obligations for the purpose of intercepting their tax refunds by the internal Revenue Service are entitled to a hearing. Kheder, of the Department of Social Services, agrees to instruct all local offices of the Friend of the Court in the State of Michigan to conduct hearings for all individuals who request one.
      Any individual requesting a hearing may do so by contacting the Friend of the Court office in the county that the support order was entered. The hearing may be informal before an employee of the Friend of the Court who has the authority to request a deletion of the individual’s name from the certification list. The individual must be allowed to appear personally or with an attorney or other individual, present documentary evidence and examine the evidence that forms the basis of the certification____

        Jones, slip op., ¶ ¶ 3, 4 at 2-3.

      . The court is aware that the class certified by this court on November 17, 1984 may contain interstate plaintiffs whose forum state does not afford them an opportunity to be heard. At this point the court does not have any evidence before it relating to such plaintiffs. While the court is of the view that the federal defendants are not the proper parties to provide such plaintiffs with additional due process safeguards, the court also believes that entry of summary judgment against these plaintiffs would be unjust in view of the lack of evidence. Thus, the complaint will be dismissed without prejudice with regard to those plaintiffs whose forum state do not afford them a predeprivation hearing.

      . By "interstate plaintiff" the court means an obligated parent whose tax refund was intercepted and sent to a state other than the state in which he resides.

      . Indeed, if the plaintiffs were entitled to a hearing in their home state it would have to be provided by the federal government. Placing the burden on the individual states would be totally unworkable because each of the remaining 49 states would have to hold hearings in the plaintiffs' home state. Thus, every state would have to hold hearings in every other state, a plan that is clearly not feasible.

      . S.Rep. No. 97-139, 97th Cong. 1st Sess., reprinted in 1981 U.S.Code Cong. & Ad.News, 1st Sess. 396, 808. The summary states:
      The child support enforcement provisions should have minimal regulatory effect. The committee understands and expects that the provision requiring the IRS to withhold tax refunds of persons owing delinquent child support payments will be administered in such a way as to strictly limit the administrative burden of the IRS.

        Id.

      . At the oral argument on thesé motions the plaintiffs’ counsel indicated that written submissions might be enough to satisfy due process. Plaintiffs’ counsel stated:
      All that we are asking for are some minimum guidelines. And the suggestion we have in the first instance, the persons who wish to object to the Secretary’s determination that his or her refund will be offset should be afforded an opportunity to submit in writing objections to the transfer of his or her tax refunds.
      Transcript of Proceedings on November 27, 1984 at 15.

      . Of course, this decision also applies to other members of the plaintiff class whose forum states provides them with a pre-transfer hearing.


author: WARREN, District Judge.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, a United States corporation, Plaintiff, v. FIRST NATIONAL BANK OF WAUKESHA, WISCONSIN, a National Banking Association, Edward Radi, an individual and Harold Erickson, an individual, Defendant.
    No. 80-C-109.
    United States District Court, E.D. Wisconsin.
    March 11, 1985.

      William J. French, Gibbs, Roper, Loots & Williams, Milwaukee, Wis., for plaintiff.
    John A. Busch, Michael, Best & Fried-rich, Milwaukee, Wis., for First Nat. Bank.
    William F. Reilly, Hippenmeyer, Reilly, Bode & Gross, Waukesha, Wis., for Edward Radi.
    Harold Erickson, defendant, pro se.
   DECISION AND ORDER

WARREN, District Judge.

Presently before the Court in this matter are the cross-motions of the principal parties for certification of portions of this Court’s Decision and Order of December 20, 1984. Specifically, the plaintiff requests that the Court amend its opinion to include a statement, as provided for under 28 U.S.C. § 1292(b), certifying for interlocutory appeal the denial of its motion to amend the complaint to add a claim for punitive damages. Similarly, defendant First National Bank of Waukesha, Wisconsin, seeks certification under 28 U.S.C. § 1292(b) of the Court’s ruling, as announced on December 20, 1984, denying its motion to dismiss the complaint for failure to state a claim upon relief can be granted.

The Court has carefully considered the respective positions of the parties both in support of and in opposition to the pending certification requests. Although it does not view the several arguments articulated as meritless, it does conclude, for the reasons stated below, that neither of the Court’s recent rulings presents an issue appropriate for certification under the statute.

BACKGROUND

As the Court fully expected on the eve of issuance of its Decision and Order of December 20, 1984, neither of the present movants has been fully satisfied with the resolution of the two, principal pretrial motions filed in this case to date. Predictably, defendant First National Bank of Waukesha, Wisconsin, continues to feel strongly that the Court’s analysis of the merits of its motion to dismiss for lack of jurisdiction was misguided, at best. In its opinion of December 20, 1984, the Court explained its ruling as follows:

While ... recognizing that proceedings under [12 U.S.C. § 192] are characteristically dissimilar from the many others routinely conducted, the Court is confident in concluding that it was a court of competent jurisdiction, constitutionally and lawfully authorized to hear and rule on the propriety of the proposed sale, on October 21, 1975. In reaching this conclusion, the Court finds persuasive the distinction between administrative and judicial review, as articulated by the United States Supreme Court in Federal Radio Commission v. Nelson Brothers Bond And Mortgage Company, 289 U.S. 266, 276-277 [53 S.Ct. 627, 632-633, 77 L.Ed. 1166] (1933) [excerpt omitted].
Examining the propriety of this Court’s proceedings of October 21, 1975, under th[is] general distinction, the Court concludes that its decision approving the proposed sale was judicial in character. As FDIC notes in its responsive brief, the Comptroller had previously determined that [American City Bank] was insolvent and unable to meet the considerable demands of its depositors — a determination not subject to judicial review unless challenged as arbitrary, capricious, or procured by fraud. Removed from this threshold determination were those issues squarely presented to the Court in its judicial capacity — namely, whether the Comptroller properly found that ACB was insolvent; whether the Comptroller duly appointed the FDIC as receiver; whether the FDIC thereafter determined that a contract for the purchase of certain assets and the assumption of certain liabilities of ACB would be appropriate; and, finally, whether the FDIC duly entered into that contract and, in that process, met the requisite statutory and administrative procedures. The Court’s review of the transcript of proceedings of October 21, 1975, convinces it that attention was properly focused on these critical issues of compliance by the Comptroller and the FDIC, mandating judicial decisions on questions of law uniquely delegated to an Article III Court such as this.
In addition, the Court does not feel that the mere fact that its approval of the FDIC’s contract for the purchase of assets and assumption of liabilities was made in the wake of an ex parte proceeding invalidates or renders unconstitutional the decision rendered____
Finally, the Court observes that the mere absence of adverse parties to any action need not divest the Court of jurisdiction in a case properly before it____

Court’s Decision and Order at 5-8 (December 20, 1984).

Likewise, the plaintiff in this action complains that the Court’s decision to deny it leave to amend its complaint significantly compromises its position in the prosecution of all claims that might arguably spring from the factual circumstances on which this action is premised. The resolution of this party’s motion was explained in the Decision and Order of December 20, 1984, this way:

... [T]he Court has looked in vain at the language, statutory schemes, and legislative histories of the principal federal statutes the FDIC now seeks to invoke ....
FDIC properly directs the Court’s attention to those four well-established factors, first articulated by the United States Supreme Court in Cort v. Ash, 422 U.S. 66, 78 [95 S.Ct. 2080, 2087, 45 L.Ed.2d 26] (1965), to be used in determining whether private rights of action may be implied from the provisions of federal statutes. Unfortunately, the Court, having addressed itself to each of these touchstones with respect to the federal statutes described above, does not reach the conclusion recommended by the movant.
First, while the FDIC undeniably has an interest in the enforcement of these federal banking laws, the Court is not convinced that any of them was passed for the “especial benefit” of this federal insurer: instead, the Court is inclined to believe that the predominant purpose behind these laws regulating the activities of national banks is to insure that the numerous investors, commercial customers, and other holders of interest in the administrative and financial welfare of these institutions are adequately protected. Although the FDIC might well be in a unique position to protect the rights of members of this class, the Court notes, as a second point, that there is little, if anything, in the legislative history of any of these statutes to suggest that the Congress intended to create a private remedy in favor of a party like the movant. Moreover, even to the extent that the United States Supreme Court has recognized the importance of protecting the FDIC through this package of federal banking legislation, see D’Oench, Duhme & Company v. Federal Deposit Insurance Corporation, 315 U.S. 447, 457, 460 [62 S.Ct. 676, 679, 680, 86 L.Ed. 956] (1942), this Court does not interpret these statutes so as to afford the FDIC special status as a “private attorney general” in prosecuting the sorts of claims it now seeks to amend to its complaint.
Finally, while an implied right of action in FDIC’s favor is certainly not inconsistent with the underlying purposes of the legislative scheme behind these statutes, and the causes of action the FDIC articulates are not traditionally relegated to state law, the Court opines that these two peripheral considerations pale in comparison with the more compelling conclusions articulated above and the more recent trend against the implication of private causes of action under federal statutes in the context of legislative silence ____

Court’s Decision and Order at 13-15 (December 20, 1984). Significantly, the Court’s decision to deny the plaintiff’s petition was also based, in part, on the threat of undue prejudice to the defendants and of unreasonable delay in the further litigation of this matter, as follows:

In further support of this conclusion, the Court finds itself somewhat sympathetic to FNB’s related contentions regarding delay and prejudice — namely, that the request for leave to amend was interposed at the conclusion of some three years of pretrial activity; that the claim as amended is sufficiently novel to warrant another round of discovery; that important witnesses may no longer be available; and that the trial, when finally conducted, might well prove significantly more complex than the proceedings to date might indicate. To be sure, the FDIC charges that the delay in its interposition of the present motion to amend was occasioned principally by the FNB’s “repeated attempts to avoid legitimate discovery during this action, and its acts of fraud and concealment prior thereto.” Plaintiff’s Reply Brief in Support of Motion to Amend at 43 (August 4, 1983). While declining to resolve any of the motivational cross-charges giving rise to the vitriolic arguments on both sides of this motion, the Court would note simply that the amendment, as proposed, would, in all likelihood, alter significantly the landscape of this already complicated litigation. Today, some 58 months after this action was initiated, the Court feels strongly, for the several reasons explained above, that final disposition of the parties’ claims should proceed apace____

Court’s Decision and Order at 16-17 (December 20, 1984).

On the same day that it announced its decision disposing of these significant pretrial matters, the Court conducted a brief hearing on the status of the action. It was at that hearing that counsel for the present movants first signaled their intentions to seek certification for interlocutory appeals of the two, hotly-disputed issues described above. By the time of the subsequent hearing on February 14, 1985, both parties had submitted formal motions, further articulating their interests in immediate appellate review. The merits and demerits of the movants’ respective positions are now fully briefed and ripe for disposition.

28 U.S.C. § 1292(b) AND THE PARTIES’ MOTIONS FOR CERTIFICATION OF INTERLOCUTORY APPEALS

Section 1292(b) of Title 28 of the United States Code sets forth those circumstances under which civil litigants may take interlocutory appeals of the decisions of the district courts, as follows:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

The statute is to be invoked only in exceptional cases. where a decision on appeal may obviate the need for protracted and expensive litigation and, accordingly, should not be used indiscriminately for ordinary litigation. Kirchen v. Guaranty National Insurance Company, 422 F.Supp. 58, 61 (E.D.Wis.1976); Kraus v. Board of County Road Commissioners, 364 F.2d 919, 922 (6th Cir.1966).

It is generally held that a question of law is not “controlling” merely because it is determinative of case at hand; rather, a question is controlling only if it may contribute to the determination, at an early stage, of a wide spectrum of cases. Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515, 525 (S.D.N.Y.1973), appeal dismissed, 496 F.2d 1094 (2d Cir.1974). Moreover, § 1292(b) was not intended merely to provide an avenue for review of difficult rulings in hard cases, and the mere fact that there is a lack of authority on a disputed issue does not necessarily establish some substantial ground for a difference of opinion under the statute. United States ex rel. Hollander v. Clay, 420 F.Supp. 853, 859 (D.D.C.1976).

The companion determination of whether an interlocutory appeal may materially advance the ultimate termination of litigation properly turns on pragmatic considerations. SCM Corporation v. Xerox Corporation, 474 F.Supp. 589, 593 (D.Conn.1979). In this undertaking, the district court is well-advised to review the procedural and substantive status of the case with respect to the progress or completion of discovery, the disposition of pretrial motions, the extent of the parties’ preparation for trial, and the nature and scope of the requested relief. Marrero v. Banco di Roma (Chicago), 487 F.Supp. 568, 579 n. 16 (E.D.La.1980) (denying certification request on basis that, among other things, appellate court would not likely be able to decide complex issues on merits prior to scheduled trial date); Black v. State of Missouri, 492 F.Supp. 848, 876 (W.D.Mo.1980) (finding that interlocutory appeal would only exacerbate delay in disposition of litigation “already sidetracked ... for a year” by disqualification motions); Beck v. Communications Workers of America (C.W.A.), 468 F.Supp. 93, 96 (D.Md.1979) (refusing to grant § 1292(b) motion where, even after years of judicial and union hearings and subsequent appeals, district court would still be required to “make the determination it is now prepared to make”); Berry v. School District of City of Benton Harbor, 467 F.Supp. 721, 727 (W.D.Mich.1978) (concluding that appeal would not shorten time needed for completion of lawsuit, would delay implementation of remedy, and would upset schedules of court’s experts).

As indicated above, defendant First National Bank of Waukesha, Wisconsin, feels strongly that its previous motion to dismiss clearly presents a controlling question of law — namely, whether the plaintiff’s purchase and sale of assets was properly consummated by a court of competent jurisdiction, pursuant to 12 U.S.C. §§ 192. Predictably, this movant also maintains that there is substantial ground for disagreement as to the proper resolution of the issue and that the circuit court’s attention to this matter would materially advance the termination of this action. While conceding that the defendant’s jurisdictional challenge may, indeed, present a controlling question of law that might advance significantly the ultimate termination of this case, the plaintiff maintains that there is no substantial ground for a difference of opinion with respect to the largely constitutional issues raised by the defendant’s dismissal request. Nonetheless, the plaintiff has sufficient confidence in the validity of its position that it “would welcome the opportunity to defend the Court’s ruling on appeal, following the trial of this matter, or, if the private rights of action issue is certified, then in connection with that issue.” Letter Brief of William J. French at 1-2 (February 25, 1985).

The Court has reviewed again the parties’ briefs on the significant threshold issue previously presented by the jurisdictional motion of defendant First National Bank of Waukesha, Wisconsin. In the wake of this supplemental review, the Court finds itself just as certain today as it was at the time of its ruling of December 20, 1984, that it was a court of competent jurisdiction, constitutionally and lawfully authorized to hear and rule on the propriety of the proposed sale at the hearing of October 21, 1975. While it is beyond dispute that a reversal of this Court’s decision by the Seventh Circuit would bring this already long-delayed litigation to a swift conclusion, the Court is less certain, based on the interpretive authority cited above, that the issue is so controlling as to necessitate certification for an interlocutory appeal.

Most centrally, however, the Court’s decision to deny this party’s certification request is premised on its strong feeling that there exists no substantial ground for difference of opinion on the jurisdictional issue presented. In this context, the Court does not interpret the 1941 decision of the Court of Appeals in Mitchell v. Joseph, 117 F.2d 253 (7th Cir.1941), as so clearly supportive of the defendant’s position as to mandate recognition of a substantial dispute over the Court’s authority under 12 U.S.C. §§ 192. This position is more fully articulated in the Decision and Order issued on December 20, 1984 — a position to which the Court closely adheres today. Based on its belief that an interlocutory appeal on this issue would only serve to shift temporarily the forum in which this action would be litigated, the Court will deny this movant’s request for certification under 28 U.S.C. § 1292(b).

For largely the same reasons, the Court finds that certification on its refusal to permit the plaintiff to amend its complaint would prove both unjustified and ill-advised. To be sure, the plaintiff has articulated a credible argument that its right to sue under the subject national banking statutes does present a controlling question of law: Contending that recognition of a private right of action is both practically and legally critical to this litigation, the plaintiff believes that the Court’s decision denying it leave to amend “seriously affects the relief available to the FDIC in this case, not only in terms of amount of damages awardable, but also in terms of the kinds of conduct the FDIC, by such lawsuits as this one, can deter.” Plaintiffs Brief in Support of Motion to Certify Interlocutory Appeal at 5 (January 25, 1985).

Pursuant to the other prerequisites for certification established by 28 U.S.C. § 1292(b), the plaintiff postulates some substantia] ground for difference of opinion as to its private causes of action under the federal banking laws and, in this context, notes that the Court itself described the question as “a close one” in its ruling of December 20, 1984. Finally, the plaintiff suggests that a reversal of this Court’s decision following a trial based solely on those theories presented in the original complaint would necessitate a retrial of the additional claims for punitive damages — a proceeding that might prompt a significant duplication of witnesses, testimony, and other evidence. In short, immediate appellate review of this Court’s denial of the plaintiff’s Rule 15(a) motion might materially advance the termination of this action, or so the argument goes.

Defendant First National Bank of Waukesha, Wisconsin, opposes the plaintiff’s certification petition on three principal bases — first, that the Court’s decision to deny leave to amend was largely discretionary and thus does not involve a “controlling question of law” for purposes of 28 U.S.C. § 1292(b); second, that there is no substantial authority to support any of the purported private rights of action, thus disproving the existence of any difference of opinion on the relevant issues; and, third, that even if a second trial on the plaintiffs punitive damages claims is mandated by the circuit court, the issues presented in that proceeding would be sufficiently distinct from those in the initial trial to render insignificant any present concern about the needless expenditure of judicial, prosecutorial, and defensive resources. Because it finds itself in substantial agreement with the opposing views raised by the defendant, the Court concludes that the plaintiffs present petition under 28 U.S.C. § 1292(b) is properly denied.

In particular, the Court harbors serious reservations about the extent to which the question of law presented by the plaintiffs motion to amend is actually controlling, as that term is used in 28 U.S.C. § 1292(b). Notwithstanding the Court’s previous observations that the resolution of the central issue presented by the plaintiff’s Rule 15(a) motion is not susceptible of simple resolution, the mere fact that disposition may prove difficult does not justify characterization of the critical question as “controlling.”

Similarly, the apparent lack of clear authority on private rights of action under the numerous federal banking laws invoked by the plaintiff suggests that any difference of opinion on this issue might prove more spurious than real. Moreover, while recognizing some validity in the movant’s interest in the conservation of litigation resources, the Court simply cannot conclude, when viewing the record of this case as a whole, that its ultimate disposition would be materially advanced by an interlocutory appeal at this stage. If, in the end, the Court of Appeals for the Seventh Circuit determines that this tribunal abused its discretion in denying the plaintiff’s motion to amend, the Court fully expects that it will be in a position to tailor and carefully limit the nature and scope of any supplemental proceedings on the proposed punitive damages claims.

Most importantly, however, the Court finds that its decision not to permit amendment of the complaint, to the extent that it was premised on the companion specters of prejudice to the opposing parties and further, undue delay in the litigation of this matter, is not a proper subject for certification under the statute. Acknowledging that the mere presence of some discretionary element in a trial court’s decision need not preclude an interlocutory appeal, the Court nonetheless finds that the nature of its decision in this case is such that the remedial purposes behind 28 U.S.C. § 1292(b) would not be promoted if the present petition were granted. As it declined to do in discussing the merits of the defendant’s certification request, the Court refuses to believe in this context that the interests of all parties in a speedy yet just resolution of their claims would be promoted by permitting the requested appeal.

If, at the conclusion of all proceedings in this forum, the Court of Appeals determines that one or both of the principal motions disposed of by the Court’s Decision and Order of December 20, 1984, should have been granted, the positions of one or both of the present movants may be vindicated. From the Court’s perspective, however, the unlikelihood that either of the subject rulings will be reversed on appeal necessitates that the present motions for certification be denied and that the prosecution and defense of this case now proceed toward some final disposition.

CONCLUSION

For the reasons articulated above, the Court hereby DENIES the plaintiff’s motion of January 25,1985, for certification of an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), of that portion of the Court’s Decision and Order of December 20, 1984, denying the plaintiff leave to amend its complaint to add a claim for punitive damages.

The Court further DENIES the motion of February 12, 1985, of defendant First National Bank of Waukesha, Wisconsin, for certification of an interlocutory appeal, likewise pursuant to 28 U.S.C. § 1292(b), of that portion of the Court’s Decision and Order of December 20, 1984, denying the defendant’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted.

Pursuant to the Court’s scheduling order at the hearing df February 14, 1985, in this case, defendant First National Bank of Waukesha, Wisconsin, shall file and serve its motion for summary judgment by April 1, 1985. Thereafter, absent stipulations of the parties, that motion shall be briefed pursuant to Local Rule 6.01.

Finally, in order to expedite resolution of the summary judgment petition once it is fully briefed, the Court has scheduled a hearing at 1:00 p.m., on Wednesday, May 22, 1985. Counsel for all parties should appear at that hearing prepared to argue their respective positions on the merits of the defendant’s motion. The Court expects to be in a position to resolve the summary judgment motion at the conclusion of the parties’ arguments or shortly thereafter.

If appropriate, the Court also anticipates establishing interim and final discovery deadlines and scheduling the case for further proceedings, including trial, at the close of the hearing on the twenty-second.