text:
    STATE OF OKLAHOMA ex rel. DEPARTMENT OF HUMAN SERVICES, an agency of the State of Oklahoma, Plaintiff, v. CHILDREN’S SHELTER, INC., an Oklahoma corporation; the Estate of W.H. Pat O’Bryan, Sr.; W.H. O’Bryan, Jr., individually and as the Personal Representative of the Estate of W.H. O’Bryan, Sr.; Donald L. O’Bryan, individually and as the Personal Representative of the Estate of W.H. Pat O’Bryan, Sr.; Patricia Pearl O’Bryan Etherton; the Estate of Virginia Harper O’Bryan; Donald A. Harper, Personal Representative of the Estate of Virginia Harper O’Bryan; and Teresa K. Etherton Goff, Defendants. UNITED STATES of America, Plaintiff, v. CHILDREN’S SHELTER, INC., an Oklahoma corporation; the Estate of W.H. Pat O’Bryan, Sr.; W.H. O’Bryan, Jr., individually and as the Personal Representative of the Estate of W.H. Pat O’Bryan, Sr.; Donald L. O’Bryan, individually and as the Personal Representative of the Estate of W.H. Pat O’Bryan, Sr.; Patricia Pearl O’Bryan Etherton; the Estate of Virginia Harper O’Bryan; Donald A. Harper, Personal Representative of the Estate of Virginia Harper O’Bryan; and Teresa K. Etherton Goff, Defendants.
    Nos. CIV-84-364-W, CIV-84-1369-W.
    United States District Court, W.D. Oklahoma.
    Jan. 7, 1985.
   ORDER

LEE R. WEST, District Judge.

This matter came before the Court on the United States’ suggestion that the Court dismiss without prejudice Counts I, II, and III of this action pursuant to title 31, section 3730(b)(4) of the United States Code. The requested dismissal was advanced by way of suggestion rather than by motion since the United States is not a party to this action and since it had not filed a timely notice of appearance permitting it to be a party to this action.

The complaint setting forth ten causes of action was filed by the State of Oklahoma. Counts I through III were brought by the State as a relator on behalf of the United States and each count alleges violations of the False Claims Act, 31 U.S.C. §§ 3729-3731, and seeks recovery of damages for alleged Medicaid fraud. Count IV through X were brought by the State on its own behalf and would be unaffected by the proposed dismissal.

The parties attended a status conference at which time the Court agreed to dismiss Counts I, II, and III as suggested and permitted the State to file an amended complaint setting forth only the remaining seven causes of action. The same day the United States filed a complaint in this judicial district, CIV-84-1369-W (transferred to this Court by the Honorable Ralph Thompson), setting forth essentially the same three causes of action alleged by the State in its initial complaint. At the same conference, the Court directed the parties to submit authority and argument as to whether the United States could refile these causes of action and could proceed on its own behalf.

A qui tam action such as the one initially pursued by the State is an exception to the normal procedure whereby all suits for the United States must be brought by the Attorney General or his representative. Under the qui tam procedure and in the instant context, a person as relator may present a claim on behalf of the United States, 31 U.S.C. § 3730(b)(1), and then give notice to the federal government of the existence of the litigation. Id. § 3730(b)(2). If the United States had prior knowledge of the facts of the case, it must enter an appearance in the action within sixty days after being notified by the relator and “take over” the prosecution. Id. §§ 3730(b)(2), 3730(b)(3). If the United States had prior knowledge of the case and fails to enter a timely appearance, section 3730(b)(4) requires the Court to dismiss the relator’s action or at least that portion of the action which seeks relief on behalf of the United States.

In the instant case, the State gave proper notice to the United States and under the statute, the federal government was then required to determine whether it had prior knowledge of the facts as alleged by the State. It is stipulated that the United States did have evidence and information concerning this case prior to its commencement, see Stipulation (April 13,1984), and it is undisputed that the United States failed to make a timely appearance.

Courts, based upon the wording of the statute, have regarded the federal government’s failure to enter a timely appearance in such instances as a jurisdictional bar which operates to preclude the relator’s suit. Accord, United States ex rel. State of Wisconsin v. Dean, 729 F.2d 1100 (7th Cir.1984) (construing predecessor statute, 31 U.S.C. §§ 231-235); United States ex rel. Weinberger v. Florida, 615 F.2d 1370 (5th Cir.1980); United States ex rel. MacFarlane v. Hutchinson, 519 F.Supp. 563 (D.Colo.1981). Accordingly, under the pertinent statutory provision and relevant case, this Court was without jurisdiction over Counts I, II, and III and dismissal of said counts was entirely appropriate.

The fact that the United States failed to make a timely appearance in this case, however, does not preclude the refiling of the same allegations by the United States in a separate action pursuant to section 3730(a). The dismissal of these three counts was on jurisdictional grounds only and as such does not operate as an adjudication on the merits or affect the substantive rights of the United States to proceed on its own behalf. See Rule 41(b), Fed.R.Civ.P.

Defendants Estate of Virginia Harper O’Bryan, deceased, and Donald Harper, Personal Representative of Virginia Harper O’Bryan, have objected to the filing of the complaint by the federal government and have argued that while no authority exists which renders the United States’ actions impermissible or improper, that it would be less burdensome and less prejudicial to said defendants to require the State to proceed with the action as originally instituted. The defendants have urged the Court to permit the suit to continue as filed rather than require these defendants to defend multiple suits.

The statutory authority which controls in this instance leaves the Court without discretion to act by its very language. 31 U.S.C. § 3730(b)(4) (“the court shall dismiss ...”) (emphasis added). Thus, the Court cannot permit the State as requested by the defendants to continue to litigate Counts I, II, and III.

The Court has previously permitted the dismissal of Counts I, II, and III of the State’s complaint in CIV-84-364-W and the filing by the State of an amended complaint. The Court finds that such was appropriate under the circumstances and further that the complaint filed by the United States in CIV-84-1369-W is appropriately and properly filed.


source: Caselaw Access Project

author: LOUIS H. POLLAK, District Judge.

license: Public Domain

text:
    Albert FISHMAN v. The Hon. Salvatore De MEO, et al. John J. McCREADY, et al. v. The Hon. Salvatore De MEO, et al. Ralph CALVANESE and Jack Brody v. The Hon. Salvatore De MEO, et al. Joseph CALIGURI, et al. v. The Hon. Salvatore De MEO, et al. Brian SIERACKI v. The Hon. Salvatore De MEO, et al. Thomas NILAN v. The Hon. Salvatore De MEO, et al. Vicki FREELING, et al. v. The Hon. Salvatore De MEO, et al.
    Civ. A. Nos. 81-2660, 81-2889, 81-3769, 82-2333, 82-5489, 83-2165 and 84-3150.
    United States District Court, E.D. Pennsylvania.
    Jan. 8, 1985.

      See also 590 F.Supp. 402.
    John B. Day, Philadelphia, Pa., for defendant/cross-claim plaintiff City of Philadelphia.
    Louis W. Fryman, Philadelphia, Pa., for defendant/cross-claim defendant Republican City Committee.'
   MEMORANDUM

LOUIS H. POLLAK, District Judge.

On December 5, 1984,1 entered an Order denying the Republican City Committee’s motion to dismiss the City of Philadelphia’s cross-claim. This memorandum explains the rationale of that Order.

In these seven consolidated cases, certain employees and former employees of the Philadelphia Traffic Court allege that they were fired or harrassed because of their political or union affiliations. The defendants include a number of individuals and institutions alleged to have been responsible for these employment practices. Among these are the City of Philadelphia (“City”) and the Republican City Committee (“RCC”). The City filed a cross-claim for indemnity and/or contribution against the RCC, alleging that the City’s liability, if any, was secondary to that of the RCC, which the City alleges had actual control over employment decisions at Traffic Court. The RCC moved to dismiss, on the ground that neither indemnity nor contribution is available in an action brought under 42 U.S.C. § 1983.

As a preliminary matter, I must determine what law applies to the question whether cross-claims for contribution are available to defendants in § 1983 actions. The RCC contends that federal law governs this question. The City, on the other hand, maintains that a right of contribution is granted by Pennsylvania law.

Analysis of this threshold question begins and ends with the Third Circuit’s decision in Miller v. Apartments & Homes of New Jersey, Inc., 646 F.2d 101 (3d Cir.1981). Plaintiffs in Miller brought a § 1982 action against the owners and rental agents of an apartment which plaintiffs alleged was denied them on the basis of race. Plaintiffs settled with the rental agents for $1821, and proceeded to trial against the owners. At trial, plaintiffs recovered some $29,451 plus attorneys’ fees; the district court reduced this amount by the amount of the earlier settlement. On appeal, the defendants argued that the damage award should have been reduced by the pro rata share of the rental agents’ liability, and not just by the settlement amount. The Court of Appeals for the Third Circuit held that federal law applied, and that the district court’s pro tanto reduction was the correct result.

Although the precise question before the court in Miller was the effect of settlement on non-settling defendants, the court found that question “intertwined” with the question of contribution among joint tortfeasors, id. at 105 n. 5, and the court’s choice-of-law discussion referred to contribution rules generally and not merely to rules governing settlement offsets. See id. at 106-08. The court found that the availability of contribution was to be determined in the first instance by federal law. Id. at 107-08. Only if no right of contribution arose as a matter of federal law would state-law rules of contribution be applied under 42 U.S.C. § 1988. Id.; see Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). Miller thus requires that in the instant case this court consider whether federal law creates a right of contribution in § 1983 cases.

Miller speaks to this substantive question as well. In the course of analyzing the settlement offset issue, the Court of Appeals discussed the more general question whether federal law created a right of contribution in civil rights actions. The court reviewed its then-recent decision in Glus v. G.C. Murphy Co., 629 F.2d 248 (3d Cir.1980), vacated, 451 U.S. 935, 101 S.Ct. 2013, 68 L.Ed.2d 321 (1981), which held that, as a matter of federal common law, contribution was available in actions brought under Title VII. Miller, 646 F.2d at 107 (discussing Glus, supra). The court then stated that “[njothing in this case suggests that a different analysis or a different result should follow in civil rights cases.” Id.

The Court of Appeals has thus stated that (1) the issue of the availability of contribution is a federal-law issue, and (2) there is a federal common-law right of contribution in civil rights cases. Ordinarily, such a clear directive from a higher court would resolve a motion such as the one before me without the need for any extended analysis. In this case, however, the RCC argues that the substantive discussion in Miller is no longer good law, having been undermined by the Supreme Court’s decision in Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). See also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981).

In Northwest Airlines, decided after the Third Circuit’s decisions in Glus and Miller, the Supreme Court confronted the question whether contribution was available to defendants in suits arising under Title VII and the' Equal Pay Act. The Court held that (1) neither the language, nor the structure, nor the legislative history of either statute supported the inference that Congress intended to imply rights to contribution, 451 U.S. at 91-95, and (2) given the carefully integrated remedial schemes which, in both instances, Congress had put together, it would be institutionally impertinent for the federal judiciary to undertake to improve on Congress’ careful handiwork by creating rights of contribution as exercises of judicial authority to develop interstitial federal common law causes of action. Id. at 95-98. The Glus decision, on whose Title VII analysis the Third Circuit had relied in Miller, was subsequently vacated by the Supreme Court. Retail, Wholesale & Dep’t Store Union v. G.C. Murphy Co., 451 U.S. 935, 101 S.Ct. 2013, 68 L.Ed.2d 321 (1981).

Northwest Airlines did not rule on the availability of contribution in cases arising under statutes other than Title VII and the Equal Pay Act. Nor is Northwest Airlines a general condemnation of the federal common law method; to the contrary, the Court expressly acknowledged that “[bjroadly worded constitutional and statutory provisions necessarily have been given concrete meaning and application by a process of case-by-case judicial decision in the common-law tradition.” 451 U.S. at 95,101 S.Ct. at 1582. Moreover, the Court pointed out that the right of contribution, not historically available at English common law, has become a familiar ingredient of American state remedial systems both by statute and by judicial decision. The Court’s determination that contribution was unavailable to defendants in Title VII and Equal Pay actions, stemmed from the premise that “[t]he presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement.” Id. at 97, 101 S.Ct. at 1583-84. The RCC does not contend, nor could it, that section 1983 creates the sort of detailed structure of statutory remedies that is contained in Title VII or the Equal Pay Act. Thus, neither the holding nor the rationale of Northwest Airlines requires the conclusion that contribution is unavailable to section 1983 defendants.

The Supreme Court’s decision in Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981), issued shortly after Northwest Airlines, supports this assessment. In Texas Industries, the Court faced the question whether a contribution remedy was available to defendants in private Sherman Act lawsuits. The Court concluded that no such remedy could be inferred from the Sherman Act, 451 U.S. at 639-40, 101 S.Ct. at 2066, and declined to create such a remedy as a matter of federal common law on the ground that the antitrust statutes establish a “detailed and specific” scheme of remedies for antitrust violations. Id. at 643-46, 101 S.Ct. at 2068-69. The Court contrasted the remedial provisions of the antitrust laws with the liability provisions of those same statutes, noting that with regard to the latter, the federal courts had broad power to shape doctrine within the statutory umbrella. Id. at 643, 101 S.Ct. at 2068. Texas Industries, like Northwest Airlines, thus fails to resolve the question whether contribution ought to be available as a matter of federal common law in actions brought under section 1983, a statute lacking the detailed remedial provisions of the antitrust laws or of Title VII. Accordingly, I conclude that neither Northwest Airlines nor Texas Industries of its own force robs Miller of its authority. Unless and until the Third Circuit rules otherwise, Miller’s, pronouncement that contribution is available in civil rights cases is binding on district courts in this Circuit.

      . The City’s cross-claim seeks, alternatively, indemnity and contribution. The bulk of the discussion in the briefs and in this memorandum concerns the availability of contribution, which is presumably the more broadly available remedy. The RCC does argue, briefly, that whether or not contribution is available, indemnity cannot be, because the sort of passive fault that gives rise to an indemnity claim is inconsistent with municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell holds that municipalities cannot be liable in § 1983 actions under a theory of respondeat superior. Thus, under Monell, a § 1983 plaintiff suing a municipality must show that allegedly improper actions of municipal agents arise out of a municipal custom or policy. See 436 U.S. at 690-94, 98 S.Ct. at 2035-37.

        Monell does not discuss the viability of municipalities' cross-claims against codefendants in § 1983 cases. It would appear to foreclose such claims only if the standards it sets for municipal liability are inconsistent with the prerequisites for an indemnity claim under the substantive law of indemnity. Since neither party has discussed what that substantive standard might be, I choose not to resolve the question at this time. Should the RCC wish to renew its motion with regard to the indemnity claim only, it is free to do so.

      . See 451 U.S. at 87 & n. 17, 101 S.Ct. at 1578 & n. 17 (noting that, although contribution was not generally available at common law, thirty-nine states recognize the remedy, and ten of these adopted it through judicial decision).

      . District courts in two other circuits have intimated that Northwest Airlines casts some doubt on the availability of contribution in civil rights cases. See Judge Bratton’s opinion in Valdez v. City of Farmington, 580 F.Supp. 19, 20-21 (D.N.M.1984); and cf. Melson v. Kroger Co., 578 F.Supp. 691, 696 n. 3 (S.D.Ohio 1983) (dicta). However, neither of these cases supports the proposition that Northwest Airlines forecloses contribution in § 1983 cases. After a brief discussion of the Supreme Court’s reasoning and decision in Northwest Airlines, Judge Bratton concluded that ”[t]here exists no clearly established federal authority on the question of whether, or under what circumstances, a right of contribution may exist among § 1983 co-defendants." Valdez, supra, 580 F.Supp. at 20-21. And while the court in the Melson case stated in dicta that contribution “has not been accepted in § 1983 actions,” 578 F.Supp. at 696 n. 3, the case cited to support that proposition expressly reserved decision on the question whether contribution was available in actions brought under § 1983. See Coleman v. Casey County Board of Education, 686 F.2d 428, 429-30 n. 1 (6th Cir.1982) (noting that the Supreme Court had disapproved the remedy in cases brought under Title VII, the Equal Pay Act or the federal antitrust laws).

      . In concluding that Miller is dispositive of the issues before me, I recognize that Miller was a § 1982 case, not a § 1983 case, but I can see no ground for suggesting a distinction between those categories of cases for contribution purposes. I also recognize that Miller's discussion of the availability of contribution in civil rights cases was technically dicta, in that the issue before the court involved not contribution as such, but rather the effect of a settlement on the amount which a non-settling defendant might be required to pay in damages.
      It would nevertheless be strange to read Miller to have no bearing on the contribution issue before me now, when the Miller court believed the contribution question and the settlement offset question “so intertwined that they cannot sensibly be treated in isolation." 646 F.2d at 105 n, 5. Miller analyzed the settlement offset issue in terms of the broader contribution question, and appeared to assume that contribution would be available in any civil rights action to the same extent as in Gins. Id. at 107-08. Only after concluding that the availability of contribution in civil rights actions should follow Glus’ reasoning did the court decide how that reasoning affected the question of settlement offsets. Id. at 108-09. In my view, the Third Circuit’s analysis in Miller therefore compels the finding that contribution is available in § 1983 actions.


author: CARL B. RUBIN, Chief Judge.

text:
    Johann KAHRS, Jr., Plaintiff, v. RIO VERDE ENERGY CORP., INC., Defendant and Third-Party Plaintiff, v. The SEAHAM COMPANY, Third-Party Defendant.
    No. C-1-83-1582.
    United States District Court, S.D. Ohio, W.D.
    Jan. 11, 1985.
    William P. Schroeder and Robert S. Hiller, Cincinnati, Ohio, for plaintiff.
    John E. Schlosser, Cincinnati, Ohio, for defendant.
   FINDINGS OF FACT, OPINION, AND CONCLUSIONS OF LAW

CARL B. RUBIN, Chief Judge.

Plaintiff seeks enforcement of an Order issued in the United Kingdom by the High Court of Justice, Queen’s Bench Division, Commercial Court District Registry. The parties are in agreement that the case can be decided on the basis of briefs and stipulated facts. As a preliminary matter, however, several motions must first be ruled upon. The first is that of third-party plaintiff, Rio Verde Energy Corporation (“Rio Verde”), seeking a Default Judgment against third party defendant, The Seaham Company. (Doc. no. 10). As The Seaham Company has failed to defend the Third-Party Complaint against it, the Clerk of Courts is ORDERED to enter a Default Judgment in favor of Rio Verde pursuant to Fed.R.Civ.P. 55(b)(1).

The next motions were also made by Rio Verde and go to the scope of the controversy. (Doc. nos. 16, 19). For the reasons stated below, both motions are DENIED.

I. Findings of Fact

The stipulated facts are as follows:

A. Plaintiff, Johann Kahrs, Jr., is a citizen and resident of West Germany.

B. Defendant, Rio Verde, is a Delaware corporation authorized to do business in the State of Ohio with its principal place of business in Ohio.

C. Joint Exhibit A is a true copy of an Order entered in London, England, in the High Court of Justice, Queen’s Bench Division, Commercial Court District Registry on October 22, 1982. It reads as follows:

Upon hearing counsel for the parties and upon reading the affidavit of Miss Ottilie Sefton filed herein, it is ordered (1) that the First Defendants do within 14 days pay to the credit of a joint account in the name of Plaintiff and the First Defendants at Stadtsparkasse Stade, 2160 Stade, Germany, the sum of DM. 162,750.00; (2) costs of this application be the Plaintiff’s (disallowing costs of preparation and service of points of claim); (3) leave to appeal refused.

D. At the prevailing rate of monetary exchange on October 22, 1982, DM 162,750.00 (deutsche marks) equaled $64,465.27 in United States currency.

E. Rio Verde has paid no money to any person or entity pursuant to the High Court Order.

F. The High Court had personal jurisdiction over Rio Verde.

G. Stadtsparkasse Stade is a West German bank which is not a party to this action.

II. Opinion

In order to properly formulate the issue involved in this case, Rio Verde’s Motion to Record Rulings (doc. no. 16) must be addressed. Through its Motion, Rio Verde seeks confirmation of a verbal ruling on the “finality” of the High Court’s Order. The only thing this Court decided in any ruling on finality was that it would not relitigate the underlying dispute decided by the High Court. Rio Verde was not foreclosed from attacking the “finality” of the Order, whatever that might mean. Indeed, Rio Verde did not hesitate to attack the finality of the Order in its Brief and Proposed Findings of Fact and Conclusions of Law. Those arguments have been duly noted and addressed below. The fact remains, however, that Rio Verde stipulated to the authenticity of the Order and nowhere disputes the extent of its res judicata effect. The only remaining grounds for dispute, therefore, is whether the Order qualifies for full faith and credit under the laws of this country. The Court holds that it does.

The jurisdiction of this Court is founded on the grant of alienage jurisdiction in 28 U.S.C. § 1332. In such cases, the forum state’s full faith and credit principles provide the rule of decision. Royal Bank of Canada v. Trentham Corp., 665 F.2d 515 (5th Cir.1981); British Midland Airways, Ltd. v. International Travel, Inc., 497 F.2d 869 (9th Cir.1974). Ohio has one case on the enforcement of orders rendered in foreign countries. In declining to enforce a defective Mexican divorce decree, the Ohio Court of Appeals for Holmes County noted that states may recognize such decrees when they are found to be valid under the law of the foreign state and such recognition is harmonious with the public policy of Ohio. Yoder v. Yoder, 24 Ohio App.2d 71, 72, 263 N.E.2d 913 (1970). The Court labeled such recognition “comity.” Id.

Long ago, the United States Supreme Court established the criteria for judging a foreign judgment worthy of enforcement.

When an action is brought in a court of this country, by a citizen of a foreign country against one of our own citizens, to recover a sum of money adjudged by a court of that country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendered by a competent court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs, and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged; and it should be held conclusive upon the merits tried in the foreign court, unless some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud or prejudice, or that, by the principles of international law, and by the comity of our own country, it should not be given full faith and effect.

Hilton v. Guyot, 159 U.S. 113, 205-06, 16 S.Ct. 139, 159-60, 40 L.Ed. 95 (1895). The Uniform Foreign Money-Judgments Recognition Act, enacted in 12 states and reflective of the law in a majority, repeats the grounds for nonreeognition of foreign judgments listed in Hilton, and adds lack of notice, public policy, settlement, conflicting judgments, and inconvenient forum to the list. 13 U.L.A. § 4 (1984). The High Court’s Order in the instant case satisfies all the above requirements, and Rio Verde does not assert to the contrary. Instead, it attacks the Order as being an indefinite, conditional, mandatory injunction unworthy of enforcement.

Rio Verde criticizes the conclusiveness of the Order because it does not resolve all claims against all parties under Fed.R. Civ.P. 54(b), and it orders payment to a third-party bank. The Order, when read by itself, is a plain and simple order to Rio Verde to pay money into a joint account for Kahrs and Rio Verde in Stadtsparkasse Stade. Rio Verde offers various speculations about the existence of a second defendant and about the significance of payment into a third-party bank, but it offers no hard evidence as to the role of either. The only evidence in this case, aside from the Order and stipulations, is a copy of the contract that served as the basis for Kahrs’s claim in the High Court. Rio Verde contests the admissibility of this contract on the grounds that it is beyond the scope of the full faith and credit issue. (Doc. no. 19). This Court finds to the contrary and holds that the contract is highly relevant to the issue at hand. Indeed, it resolves the very speculations raised by Rio Verde.

The contract evidences a sale by Kahrs to Rio Verde of a ship for the purchase price of DM 1,627,500. A 10% security deposit was to be paid to a joint account at the German bank, and the full purchase price was to be paid into Kahrs’s account. After hearing evidence and argument of counsel, the High Court ordered payment of the security deposit in accordance with the contract. Why the High Court ordered payment rather than rendering judgment and why it did not mention the second defendants is of no moment to this Court. Rio Verde has presented no evidence as to either question. Nor has it explained why it has not complied with the Order. What is certain, however, is that the High Court resolved the dispute between Kahrs and Rio Verde in favor of Kahrs in the precise amount called for under the contract. Speculation and innuendo are insufficient grounds for discarding the principles of comity supporting enforcement of the admittedly valid and fundamentally sound High Court resolution of the dispute.

Rio Verde’s final attack on the Order is based on a 1902 Ohio Common Pleas Court opinion that stands for the proposition that foreign injunctions are unenforceable in Ohio. Philadelphia Baseball Club, Ltd. v. Lajoie, 13 Ohio Dec. 504 (Cuyahoga C.P. 1902). The authoritative effect of this broad proposition is much in doubt. Neither Lajoie nor its rule of law have been followed by any other Ohio court, and it runs contrary to modern practice. Today, money decrees, such as the High Court’s Order, are executed in virtually the same fashion as are judgments for damages. D. Dobbs, Remedies § 2.8 (1973). Ohio’s statute on recognition of sister-state judgments applies to “any judgment, decree, or order.” Ohio Rev.Code Ann. § 2329.021 (Page 1983). Ohio Courts regularly enforce sister-states’ divorce decrees. See e.g., Williams v. Williams, 44 Ohio St.2d 28, 336 N.E.2d 426 (1975); Price v. Price, 4 Ohio App.3d 217, 447 N.E.2d 769 (1982). This Court, therefore, does not find the Lajoie case an obstacle to honoring the High Court’s Order.

In short, Rio Verde has failed to put forth a persuasive reason for not recognizing a concededly valid High Court Order. Principles of comity decidedly outweigh the speculation and innuendo offered by Rio Verde.

III. Conclusions of Law

A. This Court has jurisdiction under 28 U.S.C. § 1332.

B. The Order of the High Court of Justice, Queen’s Bench Division, Commercial Court District Registry is a valid resolution of the dispute between Kahrs and Rio Verde and is deserving of full faith and credit in this Court.

IT IS SO ORDERED.


author: EISELE, Chief Judge.

text:
    Wallace B. SHAW, Plaintiff, v. Harold GWATNEY and John O. Marsh, Jr., Defendants.
    No. LR-C-82-416.
    United States District Court, E.D. Arkansas, E.D.
    Jan. 16, 1985.

      James L. Sloan, Little Rock, Ark., for plaintiff.
    A. Doug Chavis, Asst. U.S. Atty., Curtis L. Nebben, Asst. Atty. Gen., Kathryn McGovern, Asst. U.S. Atty., Little Rock, Ark., for defendants.
   MEMORANDUM OPINION

EISELE, Chief Judge.

1. INTRODUCTION

The plaintiff, Col. Wallace B. Shaw, is a commissioned officer in the Arkansas Army National Guard. Since his appointment to the National Guard in 1957, he has held a variety of assignments. Col. Shaw had never served on extended active duty in the United States Army, however, until 1980 when, pursuant to 32 U.S.C. § 708(a), Governor Bill Clinton nominated him to serve as USPFO for Arkansas. On May 4, 1980, Lt. General LaVern E. Weber, Chief of the National Guard Bureau (CNGB) of the Department of the Army, approved the nomination of the plaintiff in accordance with section 708 and certain military regulations. The plaintiff was then ordered to active duty to commence serving as USPFO under the supervision of CNGB Lt. General Weber. Col. Shaw's tenure as USPFO became imperiled, and then ultimately terminated, over a three-month span in the spring of 1982. It is the manner in which Col. Shaw’s termination was carried out that forms the basis of this suit. Col. Shaw contends that applicable regulations and the due process clause of the United States Constitution entitle him to pre-termination proceedings. Defendants disagree, believing that Col. Shaw is not entitled to any pre-termination proceedings.

On June 8, 1982, before his termination, Col. Shaw filed a complaint in this Court seeking an injunction to prohibit defendants from removing him without any procedural protection. No motion for a temporary restraining order was made at that time because Col. Shaw understood from defendants that he would not be terminated until this lawsuit had been resolved. Apparently, Col. Shaw’s understanding was incorrect, for on June 11, Col. Shaw was terminated. That day, Col. Shaw filed a motion for a temporary restraining order. A hearing was held on the motion for a restraining order on June 15, 1982. At the hearing, this Court found that “if the plaintiff prevails, the Court has the power to reinstate and to set aside the defendants’ actions if they are not in accordance with the law.” Tr. p. 28. On that basis, the Court denied the motion for a restraining order.

Defendants then filed motions to dismiss or, in the alternative, for summary judgment. After extensive briefing, in a lengthy opinion entered on March 30, 1984, this Court denied defendants’ motions. 584 F.Supp. 1357. The Court first found this case one of the exceptional cases where federal review of a military decision was appropriate. The Court then went on to the merits and found that Col. Shaw was entitled to certain pre-termination procedural guarantees. Thus, it was determined that Col. Shaw, not the defendants, was entitled to summary judgment. The Court ordered that the parties attempt to come up with a mutually agreeable remedy. If an agreement was not reached, .defendants were directed to show cause why the plaintiff should not be reinstated to his former position.

Defendants then filed another motion to dismiss, raising for the first time the question of this Court’s jurisdiction. Plaintiff responded to this motion, and also filed a motion for partial summary judgment. Both motions are now before the Court and will be treated in turn.

II. JURISDICTION

In their present motion to dismiss, defendants argue that this action is primarily a claim for back pay exceeding $10,000, and therefore within the exclusive jurisdiction of the Court of Claims. The Court of Claims has exclusive jurisdiction over all claims for back pay in excess of $10,000. 28 U.S.C. § 1491; Graham v. Henegar, 640 F.2d 732 (5th Cir.1981). The Court of Claims and the district courts have concurrent jurisdiction over monetary claims equal to, or less than, $10,000. 28 U.S.C. § 1346(a)(2). The district courts have exclusive jurisdiction over actions where only injunctive or declaratory relief, but no damages, are sought. Berdick v. United States, 612 F.2d 533, 222 Ct.Cl. 94 (1979).

At issue in the instant ease is the relevant time period which should be used to determine the amount of the claim. At the institution of this action, this Court clearly had jurisdiction. Indeed, at that time, no back pay was sought, so that the Court had exclusive jurisdiction. Id. A few days after institution of the action, plaintiff was terminated and a back pay claim arose. Over time, the claim has grown and is now approximately $50,000. Defendants contend that this Court lost jurisdiction at the moment the claim grew to exceed $10,000.

The Court has found no case exactly on point, and only a few that even touch upon the issue. In the first, Giordano v. Roudebush, a doctor was discharged from his position at a veterans’ hospital. 617 F.2d 511 (8th Cir.1980). He filed suit in federal court, alleging denial of due process. At the time he filed suit, his back pay claim amounted to only $6,000. By the time the district court entered judgment in favor of the plaintiff, the back pay claim was over $70,000. Plaintiff was awarded that $70,-000 and reinstatement. After judgment, defendant filed a motion to vacate, asserting that the court had no jurisdiction to award back pay in excess of $10,000. The district court agreed, and ordered that the damage claim be transferred to the Court of Claims. The plaintiff “acquiesced” in that transfer. Id. at 515. The district court maintained jurisdiction over the equitable claim, and again ordered reinstatement. Defendant appealed the order of reinstatement, arguing that the district court had lost jurisdiction of the entire subject matter and that the entire case should have been transferred to the Court of claims. On appeal, the Eighth Circuit rejected that argument and affirmed the district court. The Eighth Circuit determined that plaintiff’s claims were primarily non-monetary, so the district court could retain jurisdiction over the equitable claim for reinstatement.

.The plaintiff in Giordano had not appealed the correctness of the district court’s transfer of the monetary claim. Thus, the Eighth Circuit never expressly addressed the issue of whether, given that jurisdiction was proper at the time the suit was filed, the district court could have maintained jurisdiction over the monetary claim. It could be argued that the fact that the Eighth Circuit nowhere questioned the transfer of the monetary claim, but instead assumed it correct, is implicit affirmation of the correctness of the transfer. But because the Eighth Circuit was not presented with the question and the relevant arguments, this Court does not believe that the issue was resolved by the Eighth Circuit Court.

In another case, Keller v. Merit Systems Protection Board, the Eleventh Circuit expressly addressed the issue of when a district court’s jurisdiction over monetary claims is established, but did so only in dicta. 679 F.2d 220 (1982). In Keller, the circuit court affirmed the district court’s finding that it did not have jurisdiction over a back pay and reinstatement action brought by a government employee. In deciding whether the district court had jurisdiction, the Eleventh Circuit looked at the amount of the claim at the time the suit was filed. The court stated:

Because appellee’s back pay claim exceeded $10,000 at the time he initiated this action, see note 4 supra, the district court was without jurisdiction to adjudicate that claim.

Id. at 222. Footnote 4, expanding on this point, states:

When appellee filed this action in 1975, three years had passed from the date of his termination. Although appellee’s pro se complaint did not specifically state the amount of the back pay sought, simple division indicates that an award based on three years of back pay would have exceeded $10,000. Hence, as of the date of the initial complaint, which is the relevant document for determining subject matter jurisdiction, appellee’s back pay claim against the Commission exceeded $10,000.

Id. (emphasis added) (citations omitted).

The final relevant case, Goble v. Marsh, is a recent case from the Court of Appeals for the District of Columbia. 684 F.2d 12 (1982). In Goble, Army Reserve officers contended that they were improperly released from active duty. At the time the suit was filed, the back pay claims exceeded $19,000. To come within the district court’s jurisdiction, the officers waived all sums in excess of $10,000 which had accrued at the time the suit was filed. The officers expressly did not waive those sums in excess of $10,000 which would accrue after the suit was instituted. In other words, the officers did not waive those sums which would accrue between the date of filing and the date of judgment. The appellate court affirmed the trial court’s decision that this waiver was insufficient to establish jurisdiction. The court stated:

In our view, appellants’ position would circumvent congressional intent in limiting the Tucker Act jurisdiction of the District Courts to claims not exceeding $10,000. When an individual’s back pay claim already exceeds $10,000 and a waiver is necessary to establish subject matter jurisdiction in the District Court, a partial waiver limited to pre-filing claims is not enough. By its very nature a back pay claim continues to accrue between filing of the complaint and entry of final judgment. Therefore, if a plaintiff waives only pre-filing claims in excess of $10,000, it is certain that if he prevails additional accruals in the intervening period will result in an aggregate claim of more than $10,000. In this situation the partial waiver does not reduce the back pay claim to a ‘civil action or claim against the United States, not exceeding $10,000 in amount.’ 28 U.S.C. § 1346(a)(2) (1976).

Id. at 15, 16 (footnotes omitted).

Defendants believe that this case stands for the proposition that a district court loses jurisdiction over a back pay claim once that claim reaches $10,000. The language of the opinion, however, indicates otherwise. The court stated:

We need not reach the question whether the district court may under any circumstances award a monetary judgment in excess of $10,000; our holding is limited to the waiver situation presented in these cases.

Id. at 15, n. 4.

This Court believes that none of the above described cases speak to the peculiar situation presented by the instant action. In this action, the court had jurisdiction at the time the case was instituted. The general rule is that jurisdiction is determined by reference to the time of the institution of the action. J. Moore, Moore’s Federal Practice ¶ 0.91[3] (2d ed. 1982). This rule serves to prevent constant litigation concerning whether jurisdiction is present. The rule also works to minimize manipulation by parties intended to destroy jurisdiction after an action has commenced. Finally, this rule conserves resources in that a case is not started in one court and then moved to another.

Were this Court to hold that jurisdiction, once proper, is destroyed when a back pay claim exceeds $10,000, it would encourage the above described manipulation, and possible delaying tactics, and would likely result in repetitious litigation. More important, were this Court to hold that it has lost jurisdiction, the plaintiff would be forced to litigate in two forums. It is with respect to this issue that this case most obviously differs from the Giordano and Goble cases, supra.

The Court of Claims can grant injunctive relief when such a claim is presented in conjunction with a back pay claim. So in Giordano and Goble, the plaintiffs could have chosen to have their entire action resolved in only one forum. Where plaintiffs could have chosen to have their entire action resolved by the Court of Claims, they cannot complain of having to litigate in two forums. In the instant case, by contrast, the plaintiff’s sole option initially was the district court, for Col. Shaw’s only claim was one for injunctive relief. Further, because Col. Shaw then had no back pay claim, no interpretation exists which would support a finding that his “claim” for back pay exceeded $10,000 at the time of filing. Compare Goble, supra. Thus, in the situation presented here, one where no back pay claim existed at the time the action was commenced, this Court holds that it has not lost jurisdiction over any part of the action. Defendant’s motion to dismiss will therefore be denied.

III. CAREY v. PIPHUS

In its previous order of March 30, 1984, this Court determined that plaintiff had a right to a pre-termination process. Immediately above, this Court has determined that it has jurisdiction. The remaining issue is that of relief. The specific question is whether, before providing equitable relief, the Court must decide whether plaintiff would have prevailed had he been accorded the process due him. The answer to this question depends on how broadly the Supreme Court’s decision in Carey v. Piphus should be interpreted. 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978).

In Carey, two students were suspended from school without procedural due process. Suits were filed seeking declaratory and injunctive relief, as well as compensatory and punitive damages. One of the students was readmitted to school under a temporary restraining order eight days after the start of his 20-day suspension. The other student was readmitted after 17 days of his suspension pending the outcome of preliminary injunction proceedings. After trial on a stipulated record, the district court held that the students were entitled to declaratory relief and to deletion of the suspensions from their school records. The court failed to enter an order to that effect, however, and instead just dismissed the complaint. No damages were awarded by the district court because no proof of injury was presented. On appeal, the Seventh Circuit Court of Appeals held that an order granting declaratory and injunctive relief should have been entered. The circuit court also held that respondents would be entitled to recover damages to compensate them for missed school only if no just cause for the suspensions existed. Even if no just cause existed, though, the students were entitled to “substantial non-punitive damages” simply as compensation for the denial of due process.

The Supreme Court granted certiorari to consider, in the Supreme Court’s words, “whether in an action under § 1983 for the deprivation of procedural due process, a plaintiff most prove that he actually was injured by the deprivation before he may recover substantial ‘non-punitive’ damages____” Id. at 253, 98 S.Ct. at 1046-1047. The Supreme Court then decided in the affirmative, stating that:

In sum, then, although mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983, we hold that neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused.

Id. at 264, 98 S.Ct. at 1052.

Clearly, had the plaintiff, Col. Shaw, sought damages in the instant case, Carey would require this Court (or a jury if either party so requested) to determine what the result would have been had Col. Shaw been given the process due him. Only if this Court determined that Col. Shaw would not have been fired, either because the charges against him were false or exaggerated, or because of the presence of mitigating factors, would Col. Shaw be entitled to recover his damages; such damages could include compensation for his mental and emotional distress, any physical harm suffered, back pay and moneys expended while seeking alternative employment.

The narrow interpretation of Carey would limit it just to that situation, i.e., only where damages are sought would a court be forced to resolve the substantive dispute. Under this interpretation, where a person seeks only equitable relief, as Col. Shaw has done in the instant situation, a court could grant relief without an examination of the merits.

The broad interpretation would extend Carey to all due process actions. Under this interpretation, before a court could award equitable relief, be it an injunction, a declaration, or reinstatement, the court would have to decide the underlying substantive claim.

The majority of courts have apparently chosen the broad interpretation. New York Urban Coalition v. United States Department of Labor, 731 F.2d 1024 (2nd Cir.1984); City of Ann Arbor v. United States Department of Labor, 733 F.2d 429 (6th Cir.1984); Pollock v. Baxter Manor Nursing Home, 706 F.2d 236 (8th Cir.1983) (dissenting opinion, reversed on rehearing on other grounds) Hawkins v. Board of Public Education in Wilmington, 468 F.Supp. 201 (D.Del.1979); But see Kendall v. Board of Education of Memphis City Schools, 627 F.2d 1 (6th Cir.1980). These courts, however, do. not appear to have explicitly addressed whether, given the distinction between equitable and legal relief, such a broad interpretation is either necessary or proper. In light of the important interests at stake, this lack of careful and explicit analysis is unfortunate.

The United States Constitution requires that a person be afforded due process before being deprived of life, liberty or property. In order that this important right be vindicated, courts must be able to afford appropriate relief. Traditionally that relief has been equitable relief, as distinct from the legal relief of damages.

Although the distinction between equitable and legal relief stems from an archaic and formalistic court system long since abolished, the distinction nonetheless has continued validity. With respect to due process actions, equitable relief is intended not to make a person whole but to restore the situation to what it was before the act. In other words, equitable relief is directly intended to invalidate the illegal government action and restore the status quo ante. United States v. Cotton Plant School District No. 1, 479 F.2d 671 (8th Cir.1973); Wagner v. Little Rock School District, 373 F.Supp. 876 (E.D.Ark.1973); See generally Dobbs on Remedies, § 3.1 (1973). Historically, the right to an equitable remedy for due process violations has been unquestioned. Indeed, and this is very important to note, in Carey v. Piphus, the Supreme Court never doubted the propriety of the earlier reinstatement of the students by the court. Supra. See also Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Brown v. Bathke, 566 F.2d 588 (8th Cir.1977); Kennedy v. Sanchez, 349 F.Supp. 863 (reversed on other grounds); Owen v. City of Independence, Missouri, 560 F.2d 925 (8th Cir.1977) (vacated on other grounds); United States v. Cotton Plant School District No. 1, supra; Wagner v. Little Rock School District, supra. But see Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

In the above cited cases, the plaintiff was not asked to prove that he or she should prevail on the underlying substantive claim. The court had before it a due process violation, and the court remedied that violation. (E.g., in Piphus, the Court forthwith reinstated the students.) The substantive dispute was collateral to the constitutional violation, and unnecessary to resolve.

Not only was it unnecessary for the court to resolve the merits, it was inappropriate. Courts in such cases should be interpreters of the Constitution, and not arbiters of every employment decision. If the adjudication of every due process claim required a court to examine and decide the merits of the underlying claim of entitlement, court intrusion into substantive employment and administrative decisions would greatly expand. Courts do not have the time, the expertise or the authority to take on comprehensive roles' as employment decision makers. The focus in the first instance must therefore be upon the precise relief being sought.

In cases where damages are sought, the analysis is different. Damages are intended to compensate, to make a person whole. In order to grant the requested relief, i.e., to determine how much a person should be compensated, it is necessary to compare the person’s situation, as it is, with what it would have been had he been afforded the process due. The need to determine what would have been necessitates inquiry into substantive areas collateral to the liability issue. That a person seeking monetary compensatory damages show the extent of his or her injury has always been a prerequisite to recovery. Dobbs, supra, § 3.3.

Before Carey, some courts believed that the right to due process was so special and important that the standard rule should be relaxed. Damages, instead of being proved, were presumed. Carey rejected that notion and applied the normal rules of damage recovery in due process actions. Some courts have now gone to the other extreme. These courts appear to find due process a right of such limited significance that it cannot be remedied absent a showing that substantive rights were also violated and that actual damage was suffered. Carey itself, however, nowhere states that the usual standards for awarding equitable relief are inappropriate. Surely had the Supreme Court intended to overturn the large body of settled law providing for such equitable relief, it would have done so explicitly rather than sub silentio.

Thus, this Court believes Carey should be interpreted to mean exactly what it says:

although mental and emotional distress ... is compensable ... neither the likelihood of such injury rior the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused.

(emphasis added). Supra, 435 U.S., at 264, 98 S.Ct. at 1052.

This Court joins those courts which have not read Carey to require in all cases that, before equitable relief can be awarded, a determination must be made of what would have happened had the process due been afforded. Wilson v. Robinson, 668 F.2d 380 (8th Cir.1981); Dillon v. Pulaski County Special School District, 594 F.2d 699 (8th Cir.1979); Jones v. Board of Governors of University of North Carolina, 557 F.Supp. 263, 265 (W.D.N.C.1983).

IV. BACK PAY AS EQUITABLE RELIEF

Once it is determined that this Court may grant equitable relief, the question of what constitutes equitable relief must be addressed. Specifically, can back pay be considered an. equitable remedy for an unlawful termination? Certainly the fact that back pay is a monetary award is not sufficient reason to label it legal rather than equitable. Curtis v. Loether, 415 U.S. 189, 196, 94 S.Ct. 1005, 1009, 39 L.Ed.2d 260 (1974); Dobbs, supra, § 3.3. In fact where back pay was awarded in conjunction with reinstatement, traditionally, both forms of relief were considered equitable. In some areas of law, this principle still holds true. For example, in Title VII actions, the only relief courts may grant is equitable relief. 42 U.S.C. 2000e-5(g). And in Title VII actions, back pay is routinely awarded as equitable relief, while compensatory damages are never awarded. As reported by the Eighth Circuit in Harmon v. May Broadcasting Company:

An award of back pay under Title VIII for discriminatory employment practices is an integral part of the equitable remedy of reinstatement and is not comparable to damages in a common-law action for breach of employment contract.

583 F.2d 410, 411 (1978).

In other circumstances, though, back pay may be a legal remedy. For example, in the case of Setser v. Novack Investment Company, a white male filed a section 1981 action seeking money damages for back pay, lost insurance benefits, expenses incurred in seeking alternative employment, inconvenience, humiliation and embarassment, pain and suffering, punitive damages, interest, attorney fees and costs. 638 F.2d 1137 (8th Cir.1981). The plaintiff did not seek reinstatement. The district court denied plaintiffs request for a jury trial, and the Eighth Circuit reversed. In reversing, the Eighth Circuit determined that the back pay claim was a legal, not equitable, claim.

Back pay can be, and often is, claimed as an element of damages. Bishop v. Tice, 622 F.2d 349 (8th Cir.1980). Much of the language in Setser indicates that it stands only for the uncontroversial proposition that back pay cannot automatically be labeled an equitable remedy. (“The question of the proper characterization of back pay arises here in the unusual context of a plaintiff who is not also seeking the equitable remedy of reinstatement,” supra at 1140.) Other language though is general, indicating that back pay should never be characterized as equitable. (“We conclude that back pay or lost wage determinations are inherently in the nature of legal damages.” Id. at 1142.) See also Johnson v. Wolff's Clothiers, Inc., 663 F.2d 800 (8th Cir.1981). Although the Supreme Court denied a writ of certiorari in Setser, a reading of the opinions which accompanied the denial of certiorari gives an indication of the proper reading of Setser. 454 U.S. 1064, 102 S.Ct. 615, 70 L.Ed.2d 601 (1981). In their opinions, both the majority denying certiorari and the minority opposing the denial, read Setser as limited to those situations where back pay, but not reinstatement, is sought. Id. Other courts have similarly read Setser. Powell v. Pennsylvania Housing Finance Agency, 563 F.Supp. 419 (M.D.Pa.1983); Davis v. Supermarkets General Corporation, Pathmark Division, 584 F.Supp. 870 (E.D.Pa.1984); Mitchell v. Alex Foods, Inc., 572 F.Supp. 825 (N.D.Ga.1983); Daniels v. Lord & Taylor, 542 F.Supp. 68 (N.D.Ill.1982). But see Thomas v. Resort Health Related Facility, 539 F.Supp. 630 (E.D.N.Y.1982). No Eighth Circuit Court case has interpreted Setser in light of the Supreme Court opinions. This Court will follow the interpretation of Setser given by the Supreme Court.

Under the facts presented by the instant case, this Court believes that, as in Title VII cases, the requested relief of reinstatement with back pay should be considered equitable. Brown v. Bathke, supra; Gerrin v. Hickey, 464 F.Supp. 276 (E.D.Ark.1979); Mitchell v. Alex Foods, Inc., supra; Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir.1970); Owens v. City of Independence, Missouri, supra. But see County of Monroe, Florida, supra; Wilson v. Taylor, supra; City of Boston v. Secretary of Labor, 631 F.2d 156 (1st Cir.1980); Kendall v. Board of Education of Memphis City Schools, 627 F.2d 1 (6th Cir.1980). Compare Wellner v. Minnesota State Junior College Board, 487 F.2d 153 (8th Cir.1973). In this case, the plaintiff, Col. Shaw, initially asked only for an injunction. The Court denied that request (in retrospect, perhaps unwisely so), finding that if it was later determined that plaintiff had a due process right, this Court could reinstate him. Plaintiff now seeks only that reinstatement and back pay. No compensatory damages are claimed. At the time it was requested, this Court certainly had the power to grant the injunction. Wilson v. Robinson, supra; Cantrell v. Vickers, 495 F.Supp. 195 (W.D.Miss.1980); Harris v. Arizona Board of Regents, 528 F.Supp. 987 (Ariz.1981). If it had granted the injunction, plaintiff would have kept his job and remained on the payroll until such time as defendants chose to lawfully terminate him, i.e., in accordance with the process due. An award of reinstatement with back pay is substantially that same relief, only done retrospectively rather than prospectively.

It should be further noted that the plaintiff is not responsible for the fact that the only equitable relief now available is the retrospective relief consisting of reinstatement with back pay. Plaintiff here did not wait until long after his termination to bring suit in hopes of racking up a substantial back pay award. Plaintiff filed this action before he was even terminated. Defendants had at that time an opportunity to provide plaintiff with the process due him. Defendants chose not to do so, and may not now be heard to complain about the natural ' accrual of back pay.

In sum, the Court believes that the substantive decision of continued employment for the plaintiff must be left in the hands of those people with the authority and the expertise to make it. Upon reinstatement, the employer may decide to pursue the matter and, after being afforded due process, the employee might, or might not, be terminated. Or, for any number of reasons, the employer could decide not to pursue the matter. In any event, the decision will not be that of the Court. The Court’s role will have been properly limited to determining the requirements of due process.

V. CONCLUSION

It is therefore Ordered that plaintiff be reinstated to the position of United States Property and Fiscal Officer for Arkansas, effective June 11, 1982, with back pay and all other rights and benefits pertinent to that position. It is further Ordered that defendant’s motion to dismiss be, and it is hereby, denied. All issues having been resolved, it is finally ordered that this action be, and it is hereby, dismissed.

      . Section 708(a) states in pertinent part: "the governor of each state ... shall appoint, designate or detail, subject to the approval of the Secretary of the Army ... a qualified commissioned officer of the National Guard ... to be the property and fiscal officer of that jurisdiction.”

      . A USPFO is an active-duty Army officer charged with accounting for and overseeing the use of federal property and funds provided by the federal government for use by state National Guard units. The applicable regulations set forth the numerous duties to be carried out by the USPFO. See NGR 130-6/ANGR 1102 § 3-1, 3-2 (1981).

      . In his first and second amended complaint, plaintiff sought immediate reinstatement. In his motion for partial summary judgment, however, plaintiff asks for a hearing on the charges against him, and reinstatement if at that hearing it is found that no cause existed for termination. The Court believes that the plaintiff's request for a hearing is caused by plaintiff’s belief that the Court is unwilling to order reinstatement. Although the Court is aware that it initially declined to reinstate plaintiff, the Court has examined the issue closely and now finds reinstatement an appropriate remedy. Accordingly, plaintiff's motion will, consistent with plaintiffs prior submissions, be treated as a motion for summary judgment seeking immediate reinstatement.

      . The Court notes that, had it determined that the Court of Claims had jurisdiction over plaintiff’s monetary claims, it would have retained jurisdiction over the equitable claim under the analysis described in Giordano, supra.

      . In Pollack, the plaintiff had instituted an action against a nursing home alleging that the home deprived her of procedural due process by discharging her from employment under stigmatizing conditions without according her prior notice and a hearing. The district court found that the reason for termination was true, and thus no liberty interest arose. 536 F.Supp. 673 (W.D.Ark.1982). The district court also found that "equitable back pay is not an appropriate remedy where, as here, the alleged disclosure does not. occur until over a year after the termination.” Id. at 680.
      The plaintiff appealed the adverse judgment. On appeal, plaintiff conceded that the district court’s finding that the allegations were true was not error. The issue then was, is there a liberty interest if the information is true. When the appeal was first heard, a majority of the Eighth Circuit panel affirmed the district court, and held that a liberty interest does not arise unless an employer disseminates false and defamatory statements. Judge McMillian dissented, stating that:
      I believe that the district court and the majority have misread the holding of Codd [v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977) ]. I read Codd as holding that a publicly stigmatized employee who has been dismissed need only allege falsity or deny the substantial truth of the historical facts underlying the stigmatizing information in order to establish a right to a hearing.
      To understand the Codd decision, one must first understand that there is a marked difference between proving a deprivation of a liberty interest and proving consequential damages caused by that deprivation. In Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 1053-57, 55 L.Ed.2d 252 (1978), the Supreme Court held that damages for deprivations of constitutional rights cannot be inferred. All damages, except nominal damages, must be proved separately from the fact that the deprivation has occurred. But, by the same token, Carey also stands for the proposition that a plaintiff may recover nominal damages for the constitutional deprivation in and of itself. In the context of a public employee discharge case, Carey requires a discharged public employee who is seeking reinstatement or back-pay to prove that she would not have been discharged if she had been given a due process hearing.

      706 F.2d at 238 (emphasis added).
      In a later rehearing by the same panel, the previous decision was reversed, and nominal damages and attorney fees awarded. 716 F.2d 545 (8th Cir.1983). Judge McMillian was now, along with Judge Ross, in the majority while Judge Henley dissented. The majority opinion reversing the district court did not contain the above emphasized language.
      It is this Court's belief that where the underlying substantive claim has been resolved, courts may consider that resolution in determining what relief is appropriate. See n. 4, infra. In Pollock, not only had the district court found the charges to be true, the plaintiff conceded that they were true. Thus, the facts before Judge McMillian were markedly different than those presented here. Accordingly, this court believes that Judge McMillian’s above-emphasized analysis was not focused on the problem as it is presented by the instant action, and thus, Judge McMillian’s analysis is not here dispositive.

      . In some cases, such as first amendment or discrimination cases, the court must resolve the substantive issues. In other cases, the merits have been resolved by other tribunals. Under these circumstances, courts appropriately consider the resolution of the merits when determining the relief due for any procedural due process violations. County of Monroe, Florida v. United States Department of Labor, 690 F.2d 1359 (11th Cir.1982); City of Chicago v. United States Department of Labor, 737 F.2d 1466 (7th Cir.1984); Wilson v. Taylor, 658 F.2d 1021 (5th Cir.1981); Flowers v. Area Agency on Aging of Southeast Arkansas, Inc., 574 F.Supp. 71 (E.D.Ark.1983).

      . Because in many situations it makes no practical difference whether an award of back pay is legal or equitable, courts are often lax in distinguishing between the two. Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir.1982) n. 16.


text:
    James BRYANT, et al., Plaintiffs, v. INTERNATIONAL FRUIT PRODUCTS COMPANY, INC., Defendant.
    No. C-1-84-45.
    United States District Court, S.D. Ohio, W.D.
    Jan. 22, 1985.
    Paul H. Tobias, Cincinnati, Ohio, for plaintiffs.
    Harold S. Freeman, C.J. DeMichelis, Cincinnati, Ohio, for defendant.
   ORDER

CARL B. RUBIN, Chief Judge.

This matter is before the Court on defendant’s Motion to Dismiss (doc. no. 5) and plaintiffs’ Motion for a Partial Summary Judgment (doc. no. 30). The parties have filed extensive memoranda with supporting affidavits and documentation. Pursuant to the terms of Fed.R.Civ.P. 12(b)(6), the Court will consider defendant’s motion as one for summary judgment, and dispose of it as provided in Fed.R.Civ.P. 56.

The material facts in this matter are few and are not seriously in dispute. Defendant employer maintained a defined benefit pension plan (Plan) for its employees from 1944 through 1982. The Plan was funded solely by employer contributions. Defendant terminated the Plan on July 1, 1982, and disbursed approximately $61,000 in accrued retirement benefits to the Plan participants. A $138,997 surplus remained. There is no dispute that the plaintiffs, who represent 15 of the 60 Plan participants, have received all the defined benefits they are entitled to under the Plan. The issue instead is whether they are also entitled to a share of the surplus or whether that money reverts to the defendant.

Plaintiffs base their claim for the surplus on the following language contained in a 1959 version of the Plan.

5.3 In no event and under no circumstances shall any contributions to this Trust by the Employer, nor any of the Trust Estate or the income therefrom, revert to or be repaid to the Employer; and all amounts paid by the Employer to the Trustees shall be used and applied for the sole and exclusive benefit of the participants under this Trust or their beneficiaries or estates.
13.1 The Employer expressly reserves the right to amend this Trust from time to time, either on the motion of the Trustees, or upon the Employer’s own initiative; provided, however, that no such amendment shall cause or permit any part of the Trust Estate to revert or be repaid to the Employer or be diverted to any purpose other than the exclusive benefit of the participants or their beneficiaries or estates.

In 1976, pursuant to the above section 13.1, defendant revised the Plan to comply with the newly enacted Employee Retirement Income Security' Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. That revision replaced sections 5.3 and 13.1 with sections 8.2 and 11.1, respectively.

8.2 It shall be impossible at any time prior to the complete satisfaction of all liabilities with respect to Members and their Beneficiaries under this Plan for any part of the Trust Fund to be used for, or diverted to, purposes other than the exclusive benefit of the Members and their Beneficiaries.
11.1 The Employer shall have the right to alter or amend this Plan at any time in whole or in part, provided that no amendment shall arise or permit any part of the Trust Fund to be used for or diverted to any purpose other than the exclusive benefit of the Members or their Beneficiaries, and provided further that no amendment shall serve to deprive any Member or Beneficiary of a deceased Member of any of the values to which he is entitled under this Plan with respect to contributions previously made.

On May 25, 1982, defendant’s Board of Directors amended the termination section, section 11.2, to include the following language: “After fulfillment of all obligations provided for in this Section 11.2, any portion of the Trust Fund remaining as a result of actuarial error shall be returned to the Employer.” (Doc. no. 5, Exhibit B). In the same action, defendant’s Board ordered termination of the Plan effective July 1, 1982.

The termination of employee benefit plans is governed by ERISA. See UAW v. Dyneer Corp., 747 F.2d 335 (6th Cir.1984). ERISA’s general rule on plan termination is that “the assets of a plan shall never inure to the benefit of any employer.” 29 U.S.C. § 1103(c)(1) (1982). One exception to the rule permits reversion of residual assets to the employer if the following three conditions are met: (a) all liabilities of the plan to participants and their beneficiaries have been satisfied, (b) the distribution does not contravene any provision of the law, and (c) the plan provides for such a distribution in these circumstances. Id. § 1344(d)(l)(A)-(C). The only condition that plaintiffs allege has not been met by defendant is (c).

Defendant argues that it satisfied the third condition above when, on May 25, 1982, it amended section 11.2 of the Plan to allow the recapture of surplus assets of the trust fund attributable to actuarial error. Plaintiffs’ position is that the 1982 amendment violated sections 5.3 and 13.1 of the 1959 version of the Plan.

In deciding this issue, the Court is faced with the task of interpreting the language of the Plan. The plain language of the two sections relied upon by plaintiffs clearly prohibits the defendant from sharing in any of the assets of the Plan. An explanatory booklet distributed to the employees essentially parrots that language. (Doc. no. 39A, Exhibit E). Yet, until May of 1982, the Plan had no provision for dealing with any post-termination surplus. To resolve this ambiguity, defendant offers the explanation that the “exclusivity” language of sections 5.3, 13.1, and later sections 8.2 and 11.1, is standard pension language mandated by the Internal Revenue Code. As evidence of that fact, defendant points to section 13.3 of the 1959 version that states, “[t]he Employer has created this Trust with the intent that it qualify within the terms and conditions of Section 401(a)____” (Doc. no. 5, Exhibit B). One of the conditions imposed by section 401(a) is that

“it is impossible, at any time prior to the satisfaction of all liabilities with respect to employees and their beneficiaries under the trust, for any part of the corpus or income to be ... used for, or diverted to, purposes other than for the exclusive benefit of his employees or their beneficiaries ____”

26 U.S.C. § 401(a)(2) (1982). An explanatory regulation states that

“[t]he intent and purpose of section 401(a)(2) of the phrase ‘prior to the satisfaction of all liabilities with respect to employees and their beneficiaries under the trust’ is to permit the employer to reserve the right to recover at the termination of the trust, and only at such termination, any balance remaining in the trust which is due to erroneous actuarial computations during the previous life of the trust.”

Treas.Reg. § 1.401-2(b)(l).

Defendant’s explanation of the “exclusivity” language of the 1959 version of the Plan is supported by two cases in which it was held that almost identical exclusivity language did not bar an amendment allowing the reversion of actuarial error to the employer. See In Re C.D. Moyer Co. Pension Trust, 441 F.Supp. 1128 (E.D.Pa.1977), aff'd without op., 582 F.2d 1273 (3d Cir.1978); Washington-Baltimore Newspaper Guild v. Washington Star Co., 555 F.Supp. 257 (D.D.C.1983), aff'd without op., 729 F.2d 863 (D.C.Cir.1984). See also Pollock v. Castrovinci, 476 F.Supp. 606 (S.D.N.Y.1979), aff'd without op., 622 F.2d 575 (2d Cir.1980). Washington-Baltimore Newspaper and C.D. Moyer have been cited with approval by the United States Court of Appeals for the Sixth Circuit. UAW v. Dyneer Corp., 747 F.2d 335, 337 (6th Cir.1984).

Plaintiffs cite three cases in support of their position. Such cases are readily distinguishable from the matter at hand and from both Washington-Baltimore and C.D. Moyer. In two of the cases, the employer’s original plan included a provision for distribution of post-termination surplus to the participants. Audio Fidelity Corp. v. Pension Benefit Guaranty Corp., 624 F.2d 513 (4th Cir.1980); Delgrosso v. Spang & Co., 586 F.Supp. 177 (W.D.Pa.1983). In the third case, the employee benefit plan contained no provision for reversion of surplus as required by 26 U.S.C. § 1344(d)(1)(C). Kruzynski v. Richard Bros. Punch Co., 211 Pens.Rep. (BNA) D-8 (E.D.Mich.1978). These bars to reversion are not present here.

The exclusivity language of the sections relied upon by plaintiffs must be read in light of the ERISA provisions that mandated it. Those provisions have never prohibited reversion of actuarial error to the employer, nor do they in this case. The defendant here properly amended its Plan to provide for reversion and that amendment brought it in compliance with the requirements of 29 U.S.C. § 1344(a). The Court therefore holds that the Plan’s past and present exclusivity language does not bar the reversion of Plan surplus to the defendant.

Plaintiffs have two more grounds to support their right to the Plan’s surplus. The first is that the surplus does not qualify as actuarial error, but is instead the result of intentional overfunding. There are two replies to that argument. First, plaintiffs have provided no evidence of intentional overfunding sufficient under Fed.R.Civ.P. 56(e) to support this contention. Second, even if such evidence were available it would not be controlling since the words “actuarial error” have been defined by the Internal Revenue Service in a way that includes even intentional overfunding.

Actuarial error occurs “when fixed and contingent liabilities are discharged through the purchase of a contract or contracts from an insurance company which provides the benefits with respect to individuals for whom the liabilities are determined, the remaining assets may be considered surplus arising from actuarial error____” (emphasis added). Rev.Rul. 83-52,1983-1 C.B. 87. See also Treas.Reg. § 1.401-2(b)(l). This definition has been approved by the Sixth Circuit. UAW v. Dyneer Corp., 747 F.2d 335, 337 (6th Cir.1984).

Plaintiffs’ final ground for recovery is a request for equitable relief based on state law theories of unjust enrichment, breach of fiduciary duty, and promissory estoppel. The Court declines to provide such drastic relief for the following reasons. First, ER-ISA contains a provision expressly preempting “any and all state laws, insofar as they now or hereafter relate to any employee benefit plan.” 29 U.S.C.' § 1144(a) (1982). Without deciding whether this provision bars all equitable relief in ERISA cases, it is enough to discourage the use of state equitable remedies in all but the most compelling instances. Second, the. plaintiffs have already received all the benefits they are entitled to under the Plan. Extraordinary equitable powers should not be exercised to provide plaintiffs with a windfall. To hold otherwise would undermine the policies behind the enactment of ERI-SA. As another court noted after allowing the reversion of actuarial error to an employer:

This result is consistent with the policies underlying the enactment of ERISA. Employers will continue to fund their plans under ERISA guidelines, but will not be penalized for overfunding in “an abundance of caution” or as a result of a miscalculation on the part of an actuary. Thus, employees will continue to be protected to the extent of their specific benefits, but will not receive any windfalls due to the employer’s mistake in predicting the amount necessary to keep the Plan on sound financial basis.

In Re C.D. Moyer Co. Trust Fund, 441 F.Supp. 1128, 1132-33 (E.D.Pa.1977).

Defendant’s Motion for Summary Judgment (doc. no. 5) is GRANTED. Plaintiffs’ Motion for Partial Summary Judgment (doc. no. 30) is DENIED.

IT IS SO ORDERED.

      . For a definition of "defined benefit plan,” see 29 U.S.C. § 1002(35) (1982).


author: SUHRHEINRICH, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. ONE 1983 PONTIAC GRAN PRIX VIN: 2G2AJ37H802244633, Defendant.
    Civ. A. No. 84-0750.
    United States District Court, E.D. Michigan, S.D.
    Feb. 4, 1985.

      Ross I. MacKenzie, Asst. U.S. Atty., Detroit, Mich., for plaintiff.
    Seymour Floyd, Detroit, Mich., for defendant.
   MEMORANDUM OPINION

SUHRHEINRICH, District Judge.

This matter is before the Court on Defendant’s Motion for Summary Judgment, and Plaintiff’s Motion to Dismiss Defendant-Claimant’s Claim. Alternatively, Plaintiff seeks summary judgment. The case arises out of a civil forfeiture action brought by the United States against Defendant vehicle for its alleged use in facilitating the transportation and sale of heroin, in violation of 21 U.S.C. §§ 812 and 881(a)(1). The facts giving rise to the forfeiture action are adequately described in both Plaintiff’s and Defendant’s motions, briefs, and affidavits in support of summary judgment, and are briefly set forth below.

The vehicle subject to the forfeiture action is owned by and titled to Naziem Ayoub, a resident of Ottawa, Ontario, Canada. His wife, Esther, was arrested and subsequently convicted of possession with intent to distribute heroin, and aiding and abetting in the possession with the intent to distribute heroin at Detroit, Michigan on January 19, 1984.

On October 22 and 23, 1983 Esther and Naziem Ayoub’s brother, George, travelled from Ottawa to Windsor, Ontario in the defendant vehicle. Prior to crossing the United States border, Esther Ayoub engaged a taxicab to transport her from Canada into the United States. Upon entry into the United States, an Immigration Inspector discovered heroin in Esther Ayoub’s suitcase. Esther was placed under arrest at 11:30 a.m. on October 23. She told Customs’ agents that she was to meet a man in a black car in front of the Ford Auditorium in Detroit at 1:00 p.m. to transfer the heroin. At 12:05 p.m. Customs inspectors established surveillance at Ford Auditorium and observed the Defendant vehicle. George Ayoub and Sleiman Gharib were identified as occupants of the vehicle. The DEA, in furtherance of their investigation, established a controlled delivery attempt. Esther was placed in a taxicab and proceeded to Ford Auditorium. She arrived at approximately 1:20 p.m. George Ayoub and Gharib waited in the Defendant automobile on Jefferson Avenue almost directly across from her. Eventually, Esther began walking toward the Hotel Pontchartrain as she had been instructed to do. During the walk she was followed very closely by George Ayoub and Gharib in the defendant vehicle. Later George Ayoub and Gharib made their way to her room and met Esther in the Pontchartrain Hotel.

Based upon this factual background the United States seized the defendant vehicle and instituted forfeiture proceedings. Defendant resists the forfeiture action and advances two primary arguments. First, the vehicle was not used “or intended for use to transport, or in any manner, to facilitate the transportation, sale, receipt, possession or concealment of heroin.” 21 U.S.C. § 881(a)(1). Defendant’s contention rests upon the fact that the vehicle did not contain illegal drugs at any time while in the United States. The government argues that the vehicle was used in the facilitation o/the transportation or sale of heroin within the meaning of the statute.

Next, the claimant, Naziem Ayoub, defends on the basis that he had no direct knowledge that controlled substances were in the vehicle. He alleges, that as an innocent owner of the vehicle, he should not be subject to this action.

I.

The first issue to be addressed by the Court is whether the facts attendant to this case sufficiently establish that the vehicle was used in the facilitation of the transportation of narcotics. Defendant argues that at no time while the vehicle was located in the United States did it facilitate the transportation of narcotics within the meaning of 21 U.S.C. § 881(a)(4). The government also relies upon two other forfeiture statutes, 49 U.S.C. § 781 and 19 U.S.C. § 1595a. Each contains similar language. Title 19, United States Code, Section 1595a provides:

Except as specified in the provisio to section 1594 this title [19 U.S.C. 1594] every ... vehicle ... used in, to aid in, or to facilitate, by obtaining information or in any other way, the importation, bringing in, unlading, landing, removal, concealing, harboring, or subsequent transportation of any article which is being or has been introduced, or attempted to be introduced, into the United States contrary to law, whether upon such ... vehicle ... or otherwise, shall be seized and forfeited____ (Emphasis supplied.)

At issue is whether there is a sufficient nexus between the automobile and the illegal activity. In support of its position, Defendant-Claimant relies on United States v. One 1972 Datsun, 378 F.Supp. 1200 (D.N.H.1974). In Datsun the court denied forfeiture where no drugs were actually transported in the car, nor were negotiations for the sale or purchase of illegal drugs proven conducted in the car. The automobile was only used to lead agents to the place where sales of illegal drugs were eventually made. This, the court held, was not “facilitation” within the meaning of the forfeiture statute.

The Datsun decision has, however, been criticized in subsequent cases. In United States v. One 1974 Cadillac ElDorado Sedan, 548 F.2d 421 (2d Cir.1977), the court noted:

However, when the Congress enacted Section 881 as part of the 1970 Act it provided for the forfeiture of vehicles used or intended to be used “in any manner to facilitate the transportation ... or sale” of a controlled substance. Although we have found no legislative history to explain the language which we have underscored, its' employment in a statute specifically addressed to the problem of drug abuse patently indicates a congressional intent to broaden the applicability of the forfeiture remedy provided. Hence the rule proclaimed by Datsun, based upon other statutes as well as Section 781 is perforce suspect.

Id. at 425.

In One 1974 Cadillac ElDorado Sedan, the court ultimately held that the transportation of a trafficker to the site of the drug sale, or, to a prearranged meeting with a prospective customer where the sale is proposed to be consummated would constitute grounds for forfeiture under the statute. The court noted “where contraband is not in the vehicle, what constitutes facilitation is a question of degree which is in turn a question of fact not readily susceptible to generalization.” Id. at 427. The courts within the Sixth Circuit similarly have rejected the narrow construction applied in Datsun. See United States v. One 1980 Cadillac ElDorado, 705 F.2d 862 (6th Cir.1983); United States v. One 1979 Lincoln Continental, 574 F.Supp. 156 (N.D.Ohio 1983).

The uncontroverted factual evidence in this case establishes that the defendant vehicle did transport Esther Ayoub from Ottawa, Ontario, Canada to Windsor, where she was arrested after entering the United States at the Detroit/Windsor border. The evidence also shows that George Ayoub intended to transport Esther Ayoub in the defendant vehicle after the transaction had been completed, but for the government’s intervention and arrest of Esther. In a statement given by Esther Ayoub to Special Agent Joseph Rassey on October 23, 1983, Esther was asked how she intended to get back to Ottawa. She stated: “Well I told him (George Ayoub who was driving the defendant vehicle) to pick me up at one o’clock and I was going to go back with him to Ottawa.” (Statement of Esther Ayoub at p. 4.) Further, Esther stated she expected to receive $7,000 for herself and possibly $350,000 to hold for a man in Lebanon. Thus, the uncontroverted evidence establishes that the defendant vehicle was intended to be used to transfer Esther Ayoub and at least her profit from the drug transaction from Detroit back to Ottawa. These facts, plus what this Court believes to be Congressional policy toward a broad interpretation of the forfeiture statutes, as previously outlined in One Cadillac ElDorado Sedan, provide a sufficient basis for the forfeiture of the defendant vehicle in this case.

Numerous cases have held that drugs need not actually be found within the forfeited vehicle. In United States v. One 1979 Lincoln Continental, the court upheld the seizure and forfeiture of an automobile where the owner possessed $36,000 in cash with the apparent purpose of acquiring more cash and completing a cocaine transaction. The forfeiture of an automobile used to transport two narcotics sellers to a meeting for the negotiation of a sale was upheld in One 1974 Cadillac ElDorado Sedan. In United States v. One Cadillac Coupe DeVille, 644 F.2d 500 (5th Cir.1981), the court found sufficient cause for forfeiture where the defendant vehicle was used to transport coconspirators to an apartment to negotiate the sale of cocaine. In the instant case, the totality of the circumstances supports the Court’s finding that probable cause did exist to support the forfeiture and that there was a sufficient nexus between the vehicle and the illegal activity — the drug transaction. The claimant has failed to meet its burden for the Court to find by a preponderance of the evidence that the defendant vehicle was not used in the illegal drug transaction. United States v. Twenty-two Thousand, Two Hundred Eighty-Seven Dollars in U.S. Currency, 709 F.2d 442 (6th Cir.1983); United States v. Eighty-Three Thousand Three Hundred Twenty Dollars in U.S. Currency, 682 F.2d 573 (6th Cir.1982).

II.

The claimant next contends that he was an innocent owner of the subject vehicle without knowledge of his wife’s illegal use of the automobile. This defense was first submitted to the Attorney General in the form of a Petition for Remission which was denied. A companion petition for lienholder General Motors Acceptance Corporation (GMAC) was granted by the Attorney General. The Attorney General’s disposition of the Petition for Remission is not reviewable by the District Court. United States v. One 1961 Cadillac, 337 F.2d 730 (6 Cir.1964). As the Petition has already been denied, claimant’s sole remedy is his “innocent ownership” defense based on constitutional due process grounds.

The United States Supreme Court directly addressed the issue of whether an innocent owner’s property could be taken under a forfeiture statute without offending due process protections. In Calero-Toledo v. Pearson Yacht Leasing Company, 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), the Court reviewed the constitutional limitations of forfeiture statutes. While forfeiture of an innocent owner’s property pursuant to a statute was generally held not to be violative of constitutional guarantees, the Court carved out two exceptions. First, the owner of property subject to forfeiture might have a constitutional defense where the subject property was stolen or wrongfully in the possession of another. Second, a defense may arise where the claimant was uninvolved in and unaware of the wrongful activity, and further, had “done all that reasonably could be expected to prevent the proscribed use of his property.” 416 U.S. at 689, 94 S.Ct. at 2080, 40 L.Ed.2d at 471. As no wrongful possession has been pleaded, only the second exception must be evaluated under the facts of this case.

In determining whether a property owner has done all that could be expected to prevent the proscribed use of the property, the court’s have generally required some affirmative action on the part of the claimant. In Calero-Toledo, the Court rejected the innocent ownership claim of the lessor of a yacht voluntarily entrusted to lessees. The Supreme Court noted that the claimant made no allegation or proof that it had done all that it reasonably could to avoid having its property put to an unlawful use, even though the owner had no knowledge of the unlawful activity for which lessees were employing the yacht. In United States v. One 1957 Rockwell Aero Commander 680 Aircraft, 671 F.2d 414 (10th Cir.1982), the claimant acquired title to the defendant airplane some four months prior to its seizure. He did not authorize the use of the airplane nor did he have knowledge when the plane was flown to Mexico and returned with illegal drugs. The court determined that inattentiveness may be deemed negligence and that the claimant had failed to exercise due care in entrusting his property to another, further, that “innocence, in and of itself, is an insufficient defense to forfeiture.” Id. at 417. On these facts the government’s forfeiture of the plane was held to be proper.

Similarly, the estate of John H. Naffke was not allowed to assert an innocent ownership claim where one of two co-executors embezzled funds from the estate, left the country, then illegally attempted to bring a portion of the embezzled funds back into the United States. In holding that the estate had not done all that could be expected within the meaning of the CaleroToledo innocent ownership standard, the court upheld the forfeiture of the funds against an innocent ownership claim by the estate. The court noted that the estate could have taken affirmative acts to prevent the forfeitable offense by setting up an account requiring signatures of both co-administrators for withdrawal of funds. United States v. Six Thousand Seven Hundred Dollars, 615 F.2d 1 (1st Cir.1980).

Finally, in United States v. One 1972 Toyota Mark II, 505 F.2d 1162 (8th Cir.1974) the court held that “[t]he innocence, noninvolvement or lack of negligence of the owner in allowing the vehicle to be used for the forfeitable offense is no defense to the forfeiture action.” Id. at 1165.

Here, Mr. Ayoub has failed to affirmatively show he has done “all that reasonably could be expected to prevent the proscribed use of his property.” Noninvolvement or lack of negligence is not a proper defense. United States v. One 1972 Toyota Mark II at 1165. In fact, Ayoub did little to prevent the proscribed use of his property. He failed to determine precisely where his wife was going in Detroit, whether she and George were driving through or staying overnight, which friend his brother George was visiting and for what purpose, nor ask any other questions about the trip. (Deposition of Naziem Ayoub at pp 15-28.) Ayoub stated that he failed to ask his wife any questions about her trip because he didn’t want to interfere in his wife’s business, because of friction between them. (Dep. Tr. at 35-37.)

Finally, Naziem Ayoub is in an awkward position to assert an innocent ownership claim. While the vehicle is titled to Naziem Ayoub, the vehicle was purchased with $5,000 from Esther Ayoub’s own money. (Dep. Tr. at 50-55.) In addition, Esther used the automobile whenever she needed it and had her own keys to it. These facts further militate against claimant’s innocent ownership argument. For the reasons set forth in this opinion, summary judgment shall be entered in favor of the Plaintiff^

An appropriate order in accordance with this opinion will be entered.