author: REYNOLDS, Chief Judge.

text:
    BRANDON E. and his parents, Mr. and Mrs. E., Plaintiffs, v. The WISCONSIN DEPARTMENT OF PUBLIC INSTRUCTION; Herbert Grover, individually and in his official capacity as the Wisconsin Superintendent of Public Instruction; Victor J. Contrucci, individually and in his official capacity as the Assistant Superintendent of Education; Mequon-Thiensville School District Two; Mequon-Thiensville School District Two Board of Education, a body politic; and the members of the Board in their official capacities as follows: David Hasey, Carol Hanson, Christine Neurnberg, Mary Etta Hanley, Neil Trilling, Nancy Parris, and Theodore Egelhoff; Ellen Meister, individually and in her official capacity as Superintendent of Schools of District Two; Harry Thompto, individually and in his official capacity as the Assistant Superintendent of District Two; Ozaukee County Handicapped Children’s Education Board; Arthur Baranowski, individually and in his official capacity as Director of Special Education for the Handicapped Children’s Education Board; Anthony J. Earl, individually and in his official capacity as Governor of Wisconsin; Lloyd LaRoque, individually and in his official capacity as school psychologist in the employ of District Two; the United States Department of Education; Terrel H. Bell, individually and in his official capacity as Secretary of the United States Department of Education, Defendants.
    Civ. A. No. 83-C-581.
    United States District Court, E.D. Wisconsin.
    Oct. 4, 1984.

      Brooke R. Whitted, Canel, Aronson & Whitted, Chicago, 111., and Paul Soglin, Schultz & Soglin, Madison, Wis., for plaintiffs.
    Charles R. Larsen, Asst. Atty. Gen., Madison, Wis., and Mary Brooks Fraser, Wisconsin Dept, of Public Instruction, Madison, Wis., for defendants, Wisconsin Dept, of Public Instruction, Herbert Grover, Victor Contraed, and Anthony Earl.
    Warren L. Kreunen, von Briesen & Redmond, S.C., Milwaukee, Wis., for defendants Mequon-Thiensville School Dist., Mequon-Thiensville Bd. of Educ., David Haase, Carol Hanson, Christine Nuernberg, Mary Etta Hanlewy, Neil Trilling, Nancy Parris, Theodore Egelhoff, Ellen Meister, Harry Thompto, and Lloyd La-Rogue.
    Timothy F. Méntkowski, Riordan, Crivello, Carlson, Méntkowski & Henderson, Milwaukee, Wis., for defendants Arthur Baranowski and Ozaukee County Handicapped Children’s Educ. Bd.
    Patrick W. Schmidt, Quarles & Brady, Milwaukee, Wis., and Morgan R. Butler III, Corp. Counsel, Port Washington, Wis., for defendants, Ozaukee County Handicapped Children’s Educ. Bd., and Arthur Baranowski.
    Joseph P. Stadtmueller by Charles A. Bohl, Asst. U.S. Atty., Milwaukee, Wis., for defendant, Secretary of the U.S. Dept, of Educ. and Terrel H. Bell.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

This case involves claims brought by a handicapped child and his parents for declaratory, injunctive, and monetary relief. In Count I, the plaintiffs allege that Brandon E. is being deprived of an appropriate education at public expense in violation of the Education for All Handicapped Children Act (EHA) (20 U.S.C. § 1401 et seq.); § 504 of the Rehabilitation Act of 1973 (§ 504) (29 U.S.C. § 794); the Wisconsin School Code (Wis.Stat. § 115.76 et seq.); the equal protection clause of the fourteenth amendment to the United States Constitution and Articles I and III of the Wisconsin Constitution. In Count II, the plaintiffs claim denial of their due process rights as guaranteed by the EHA, § 504, the fourteenth amendment, and the Wisconsin Constitution. Counts III and IV are pendent state claims seeking damages for educational malpractice. Finally, in Count V, the plaintiffs seek a declaratory judgment that the Wisconsin plan is inconsistent with the EHA, an injunction against its future use, and an order compelling the U.S. Department of Education to withhold funding to the state under the EHA.

The defendants include four groups and will be designated the local, county, state, and federal defendants. Each group of defendants has moved for dismissal on various grounds. A motion by the plaintiffs to compel limited discovery and allow an additional response to the dismissal motions is also pending. Counts I and II will be dismissed for failure to exhaust administrative remedies under the EHA. Count V will be dismissed for failure to state a claim under the EHA. Consequently, the plaintiffs’ motion will be denied and the pendent state law claims dismissed along with the federal claims.

FACTS

As on any motion to dismiss, the Court must accept the well pleaded facts as true. Those facts, as shown by the complaint, are as follows.

Brandon E. is fourteen years old and lives in the Mequon-Thiensville District Two school district. He was identified as a handicapped student by District Two and attended public schools from September 1976 through June 1979. Pursuant to EHA requirements and state law, an individualized education plan (IEP) was prepared and periodically reviewed by a multidisciplinary team (M-team). During this period Brandon’s classification was changed from educably mentally handicapped to emotionally disturbed. The May 1979 M-team report indicated that Brandon’s condition was speech/language disability and noted he was a target of ridicule by other students. Brandon’s parents did not request a due process hearing to challenge the M-team’s recommendations. Instead, they withdrew Brandon from public school due to his lack of progress and placed him in a private facility where his condition improved.

At plaintiffs’ request, an M-team convened in March 1981 to reassess Brandon and found him to have speech/language disability, learning disability, and behavioral/emotional disability. A public school special education placement was recommended, and the parents were urged to continue outside psychiatric support. Specialists at the private facility disputed this assessment and recommended that Brandon be placed in a highly structured, treatment-oriented program with daily psycho-therapeutic intervention. Again, no due process hearing was requested, and Brandon was placed in a different private facility. Brandon developed severe problems at this facility and was transferred to a psychiatric hospital for two months. Hospital tests indicated Brandon exhibited multiple difficulties including infantile autism, severe emotional problems, and borderline mental retardation.

In June 1982, an M-team convened at the parents’ request and again recommended a public school special education placement. This time Brandon’s parents made a timely request for a due process hearing and agreed to mediation in the interim. According to the plaintiffs, during the mediation proceeding, “District Two officials consistently refused to consider opinions of Mr. and Mrs. E. and showed total unwillingness to consider the recommendations of Brandon’s doctors that he absolutely required residential placement____” (Complaint, par. 27, p. 11.) Four days later, the parents withdrew their request for a due process hearing, and Brandon remains at a private facility at his parents’ expense.

DISCUSSION

A. Exclusivity of EHA

The EHA is a funding statute under which federal funds are made available to states to assist them in providing educational services for the handicapped. To receive federal funds under the EHA, states must establish procedures to protect the right of handicapped children to a “free appropriate public education.” 20 U.S.C. § 1415(a).

Section 1415(b)(1)(E) requires the state to provide “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” Upon receipt of the complaint, the parents must have an opportunity for “an impartial due process hearing” by the local agency. 20 U.S.C. § 1415(b)(2). The aggrieved party may then obtain an impartial review of the local agency’s decision at the state level. 20 U.S.C. § 1415(c). Finally, judicial review is guaranteed to any party aggrieved by the final decision of the state level agency. 20 U.S.C. § 1415(e)(2). The State of Wisconsin receives EHA funds and has provided the required administrative procedure by statute. Wis.Stat. § 115.76 et seq.

The plaintiffs contend that only a residential treatment facility can provide Brandon an appropriate education. This suit followed an M-team recommendation of public school placement. In Count I, the plaintiffs contend that the actions of District Two constitute the following violations of the EHA:

(1) Failure to provide a free appropriate public education, in violation of 20 U.S.C. § 1412(2)(B);

(2) Failure to properly evaluate and identify the severity of Brandon’s handicap, in violation of 20 U.S.C. § 1412(5)(C);

(3) Failure to provide special education and related services to enable Brandon to meaningfully benefit from his education, in violation of 20 U.S.C. § 1401(16) and (17);

(4) Failure to provide a full continuum of services, including therapy and residential placement, in violation of 20 U.S.C. § 1412(2)(B) and (5)(B); and

(5) Failure to consider independent educational evaluations obtained by Brandon’s parents at their expense, in violation of 20 U.S.C. § 1415(b)(1)(A).

The same actions by District Two are alleged to show four different violations of § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); five violations of the Wisconsin School Code implementing the requirements of the EHA; three violations of the fourteenth amendment’s equal protection clause; and three violations of Article I of the Wisconsin Constitution. Similarly, Count II alleges that procedural inconsistencies between Wisconsin’s implementing statutes and the EHA are actionable under the EHA, § 504, and the tenth and fourteenth amendments to the United States Constitution.

Joining parallel statutory and constitutional claims adds nothing to the plaintiffs’ action under the EHA. Congress intended the EHA to be the exclusive vehicle for challenging the educational placement of handicapped students. The Supreme Court recently decided that a parallel § 1983 claim cannot be the basis for an award of attorneys’ fees because the EHA has no fee provision.

“We conclude, therefore, that where the EHA is available to a handicapped child asserting a right to a free appropriate public education, based either on the EHA or on the Equal Protection Clause of the Fourteenth Amendment, the EHA is the exclusive avenue through which the child and his parents or guardian can pursue their claim.” Smith v. Robinson, — U.S.-,-, 104 S.Ct. 3457, 3470, 82 L.Ed.2d 746 (1984).

This is especially important when exhaustion of administrative remedies is at issue, as in the present case. “Allowing a plaintiff to circumvent the EHA administrative remedies would be inconsistent with Congress’ carefully tailored scheme.” Id. Therefore, the plaintiffs’ substantive claims must be considered solely under the EHA.

The Seventh Circuit has applied the same reasoning to procedural EHA challenges. Discussing the applicability of § 504 to procedural claims, that Court held:

“... it cannot be used to circumvent the procedural requirements imposed by the EAHCA when the two claims are parallel, because to do so would thwart the intent of Congress, manifested in the structure of the more detailed and specific EAHCA. This is true for procedural challenges to state and local agency action as well as for challenges regarding substantive placement decisions, because the EAHCA provides for scrutiny of alleged procedural irregularities.” Timms v. Metropolitan School District of Wabash County, Indiana, 722 F.2d 1310, 1318 (7th Cir.1983). On parallels 1983 claims, see Anderson v. Thompson, 658 F.2d 1205 (7th Cir.1981); Doe v. Koger, 710 F.2d 1209 (7th Cir.1983).

The plaintiffs have not alleged any claims in Counts I and II that are not cognizable under the EHA. Consequently, whether these claims survive the defendants’ dismissal motions must be determined solely by reference to the EHA.

B. Exhaustion Under the EHA

The EHA mandates extensive procedural guarantees which must be exhausted before seeking judicial review. 20 U.S.C. § 1415(e)(2). The exhaustion doctrine enables the states to apply their educational expertise to resolve disputes prior to judicial involvement. In its first discussion of the EHA, the Supreme Court recognized that: “The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.” Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982). For this reason, the Court cautioned that reviewing courts are not to substitute their own notions of sound educational policy for those of school authorities. Id.

The administrative proceedings also create a record for the Court to review. Although the reviewing court may hear additional evidence, 20 U.S.C. § 1415(e)(2), the administrative record performs a vital function on review.

“If the expert agency cannot resolve the problem finally, the record made in the administrative proceedings will be extremely helpful to the court, since the administrative agency will likely have probed the issue with more expertise than a federal court could bring to bear, and therefore, have illuminated the issue for final decision in the federal court.” Riley v. Ambach, 668 F.2d 635, 640 (2d Cir.1981).

The primary responsibility and expertise of state and local educational agencies cautions against premature court interference in the administrative procedures mandated by the EHA. Nonetheless, the plaintiffs request that this Court determine an appropriate placement for Brandon without the input that the record from a due process hearing would provide.

An exception to the exhaustion requirements under the EHA has been recognized in cases where the exercise of state administrative remedies would be futile. See Ezratty v. Commonwealth of Puerto Rico, 648 F.2d 770 (1st Cir.1981); Riley v. Ambach, supra; and Monahan v. Nebraska, 645 F.2d 592 (8th Cir.1981). The plaintiffs contend that exhaustion would be futile in Brandon’s case because they allege problems that infect the entire administrative process in Wisconsin. These alleged problems can be summarized under two headings: state-wide policies against residential placement resulting in predetermination of any administrative challenge, and violations of state procedures which are themselves inconsistent with the EHA. The Court will consider these contentions in turn.

1. Predetermined Result — Some of plaintiffs’ arguments are intended to demonstrate that administrative exhaustion by plaintiffs seeking residential placement is futile because Wisconsin has predetermined the result. In their motion, the plaintiffs seek to compel the state, county, and local defendants to disclose whether residential placements have ever been approved for handicapped children and whether there is any written policy concerning such placements. They also refer to the rationale in Parks v. Pavkovic, 536 F.Supp. 296 (N.D.Ill.1982), where the court found that plaintiffs had no meaningful administrative remedy because they were challenging state-wide policies regarding payment of educational expenses for handicapped children.

There are significant differences between Parks and the present case that make application of the above rationale inappropriate. In Parks, the plaintiffs challenged the state’s refusal to fund all the expenses related to the residential placement of their handicapped child. After going through the complete due process hearing, the plaintiffs filed suit only because the decision on appeal by the state reviewing agency was pending beyond the statutory thirty-day limit and the residential facility was threatening to discharge the plaintiff’s son. As a result, the court first ruled that the press of time made exhaustion impractical. Id. at 302. The statewide policies cited by the court in its second rationale were codified in the state’s statutes. Id. at 303.

In the present case, there are no time constraints that would make exhaustion impractical. Brandon was enrolled in a residential facility when the challenged IEP was developed and remains there today. The plaintiffs do not allege that time spent in the administrative process would have any effect on Brandon’s treatment. In addition, plaintiffs cite no state statutes or regulations on residential placement that dictate a particular administrative result in Wisconsin.

Lacking statutes or regulations governing residential placement, the plaintiff’s motion seeks to discover whether such placement has ever been approved and whether there are written policies in this area. The motion will be denied, since it could not affect the requirement of exhaustion in this case. See Riley v. Ambach, supra. The argument assumes that only residential placement can provide Brandon an appropriate education. This assumption cannot be made without the benefit of an administrative record, especially because the EHA does not require states to maximize the potential of each handicapped child so long as they receive an appropriate education. Rowley, supra, at 20., Exhaustion should be required if only to give the state the opportunity to consider its policy on residential placement in the context of a concrete case.

The plaintiffs also contend that exhaustion would be futile because the administrative hearing officer has no authority to award the damages they seek. Although the EHA does not expressly authorize damages as a remedy, two narrow exceptions have been recognized. Anderson v. Thompson, 658 F.2d 1205 (7th Cir.1981). These exceptions do not alter the primary thrust of the EHA which clearly contemplates exhaustion of administrative remedies before seeking review in the courts.

2. Procedural Violations and Inconsistencies —In Count I, allegations of futility are partially based on violations of the state implementing statutes by the M-team established by District Two. The plaintiffs contend that because the M-team ignored their suggestions when developing Brandon’s IEP, and failed to consider reports prepared by outside experts, the entire administrative process is futile as a practical matter.

The due process hearing is expressly intended to deal with the procedural violations raised by the plaintiffs. Under Wis. Stat. § 115.81, parents have a right of access to all records, reports, and evaluations relating to their child’s educational program. They have the right to introduce evidence, including outside evaluations of their child, to call and cross-examine witnesses, and to be represented by an advocate. Because they are given the opportunity to challenge any claimed substantive or procedural violations by the M-Team, such violations cannot justify their failure to raise these issues in the administrative process.

The plaintiffs also contend that the due process hearing is biased because the Wisconsin Department of Public Instruction maintains the list of hearing officers and makes no determination of their qualifications. These claims are meritless. 34 C.F.R. § 300.507 requires the state agency to maintain such a list, and the only qualification that section requires of hearing officers is impartiality.

Alleged procedural inconsistencies between the EHA and Wisconsin’s implementing statutes are similarly meritless. The plaintiffs contend that Wisconsin’s use of county boards to make some decisions related to handicapped education conflicts with the EHA’s requirement that local agencies make all such decisions. The plaintiffs misread the EHA since 20 U.S.C. § 1414(a) applies on its face to “A local educational agency or an intermediate educational unit____” Similar language is used in § 1415. Plaintiffs also contend that the superintendent is precluded from conducting an appeal of the due process hearing by § 1415. The Superintendent of Public Instruction is a constitutional officer in the State of Wisconsin and is not a school employee. Wis. Const, art. X, § 1. Section 1415 expressly requires the state agency to conduct such a review.

The remaining allegations of procedural inconsistency are similarly groundless or have not been applied to Brandon. The obvious lack of merit in the procedural issues raised by the plaintiffs indicate they are presented simply to justify their withdrawal from the substantive due process hearing. The EHA’s comprehensive structure depends primarily on state and local administrative actions to provide appropriate education to the handicapped. A showing of futility sufficient to overcome this structure is possible only in extraordinary cases.

C. Claims III, TV, and V

The federal defendants’ motion to dismiss Count V will be granted. In Count V, the plaintiffs seek to compel the Secretary of Education to withhold EHA funds from Wisconsin based on the procedural inconsistencies discussed above. Not only are these procedural inconsistencies nonexistent, but the plaintiffs have no standing to request the enjoining of fund disbursement to the state. State funds may be withheld only if the Commissioner of Education of the United States, after notice and hearing, determines that there has been no substantial compliance with the EHA. 20 U.S.C. § 1416. Nothing in that section empowers an individual to institute an action seeking the withholding of funds. The decision to institute compliance proceedings is wholly within the discretion of the Commissioner of Education.

Counts III and IV are state law negligence, claims for damages from the local defendants and the school psychologist for educational malpractice. This is a novel area of state law which the Court would hesitate to hear as a matter of comity. United Mineworkers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Because all of the plaintiffs’ federal claims have been dismissed, however, the pendent state law claims must also be dismissed.

IT IS THEREFORE ORDERED that the plaintiffs’ motion to compel discovery is denied.

IT IS FURTHER ORDERED that the' defendants’ motions are granted, and this case is hereby dismissed.


source: Caselaw Access Project

author: ASPEN, District Judge.

license: Public Domain

text:
    UNITED STATES of America ex rel. Ellis DAMPIER, Plaintiff, v. Michael O’LEARY, Warden, and Neil F. Hartigan, Attorney General of Illinois, Defendants.
    No. 84 C 2073.
    United States District Court, N.D. Illinois, E.D.
    Oct. 5, 1984.

      Ellis Dampier, pro se.
    James E. Fitzgerald, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge.

Ellis Dampier (“Dampier”) was convicted of murder and is serving a term of life imprisonment following a jury trial in Illinois state court. He has petitioned this Court pro se under 28 U.S.C. § 2254 for a writ of habeas corpus. Dampier alleges three constitutional violations: (1) that his warrantless arrest in his home violated the Fourth Amendment; (2) that he received ineffective assistance of counsel at his trial; and (3) that he was prejudiced by prosecutorial misconduct at trial. Defendants (“the State”) have filed a motion to dismiss or for summary judgment, and Dampier has filed a cross-motion for summary judgment. For the reasons stated below, the Court grants the State’s motion and denies Dampier’s petition for a writ. The relevant facts in the context of each of the issues Dampier raises are developed below.

The Fourth Amendment Claim

Dampier argues first that his warrantless arrest at his home violated the Fourth Amendment, as interpreted in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). To the extent that Dampier bases his petition solely on the argument that his arrest was illegal, we deny him habeas relief, whether or not his arrest was in fact illegal. An illegal arrest by itself does not warrant relief under 28 U.S.C. § 2254 from an otherwise valid conviction. See U.S. ex rel. Canity v. Lane, 569 F.Supp. 808, 812 (N.D.Ill.1983); see also Crowell v. Zahradnick, 571 F.2d 1257, 1259 n. 3 (4th Cir.1977), cert. denied 439 U.S. 956, 99 S.Ct. 357, 58 L.Ed.2d 348 (1978); Shuman v. Wolff, 543 F.Supp. 104, 110 (D.Nev.1982); Burtis v. Dalsheim, 536 F.Supp. 805, 806-07 (S.D.N.Y.1982). A federal court may consider the legality of an arrest if the habeas petitioner also challenges the introduction at his trial of evidence which was the fruit of the allegedly illegal arrest. See, e.g., Canity, 569 F.Supp. at 812. Dampier’s petition does not challenge the introduction of any fruits of his arrest, and normally that omission would end our analysis of this issue. However, since Dampier is proceeding pro se and his former counsel did move in state court to suppress a confession which was a fruit of the arrest, we will assume that Dampier’s petition for habeas relief also rests on the ground that the illegal arrest produced tainted evidence.

But even acting under that assumption, we must deny Dampier’s writ. Under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), we cannot grant habeas relief for Dampier’s Fourth Amendment claim if the State afforded him a full and fair opportunity to litigate that claim. Dampier had a full and fair chance to raise his arguments in state court. He admits that the trial court conducted a full evidentiary suppression hearing, considering his own testimony as well as that of police officers; the court made several factual findings and applied relevant law to those facts. Dampier appealed to the Illinois Appellate Court, which affirmed after fully considering his arguments. Because Dampier enjoyed this full and fair opportunity to ventilate his Fourth Amendment arguments, Stone bars our collateral review of the merits, even if we would want to reach a different result. See U.S. ex rel. Maxey v. Morris, 591 F.2d 386, 389 (7th Cir.1979), cert. denied, 442 U.S. 912, 99 S.Ct. 2828, 61 L.Ed.2d 278 (1979). Accordingly, we deny Dampier’s writ with respect to the Fourth Amendment issue.

The Ineffective Assistance of Counsel Claim

Dampier contends that his defense counsel gave him ineffective assistance within the meaning of the Sixth Amendment. The Supreme Court recently defined the standard of review of such claims. Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 2064. We apply a two-part test to see whether we can “rely on” the trial result. First, we judge whether Dampier has shown that counsel’s performance was “deficient.” Id. An objective, “reasonableness” standard applies. Dampier must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 2066. Second, Dam-pier “must show that the deficient performance prejudiced the defense.” Id. at 2064. To prove prejudice, Dampier must persuade the Court that “there is a reasonable probability that, but for counsel’s unprofessional errors, the [trial] result would have been different.” Id. at 2068; see also United States v. Payne, 741 F.2d 887 at 890-891 (7th Cir.1984) (per curiam). After carefully considering Dampier’s claim in light of the above standards, we conclude that he has not met his burden of establishing that he received ineffective assistance within the meaning of Strickland.

Dampier charges his former counsel with five deficiencies, which, he claims, add up to “deficient” representation. We will consider each in turn.

a. Motion to Suppress. Dampier points us to his counsel’s original motion to suppress on the Fourth Amendment issue, which the trial court refused to consider because it was so poorly drafted. “This is the first time I’ve ever seen a motion like this,” the trial judge said. However, because the trial court allowed counsel to amend the motion to quash and eventually conducted a hearing, we believe that Dam-pier was not prejudiced by the original inartfully drafted motion. Dampier alleges no deficiency in the amended motion or in counsel’s conduct at the suppression hearing. Moreover, different counsel raised the same Fourth Amendment issue on appeal. In sum, Dampier has not met the second or “prejudice” part of the Strickland test.

b. Tardy Counsel. Dampier argues that his lawyer was incompetent because he arrived late for the voir dire of the jury, which prompted the trial judge to reprimand counsel before the jury venire and ultimately to hold counsel in contempt. We do not believe that the contempt holding prejudiced Dampier, since it was made outside of the jury’s presence. While counsel’s isolated tardiness was improper, it did not amount to “unreasonable professional assistance” under Strickland. Nor can we say that “but for” counsel’s tardiness, and the judge’s resulting and understandable irritation, the trial would have produced a different result. The lateness occurred only at the beginning of jury selection and the evidence itself eventually pointed overwhelmingly to guilt. Moreover, the state trial judge specifically admonished the jury not to consider counsel’s lateness in evaluating the evidence.

c. Motion in limine. Dampier asserts that his counsel should have filed a motion in limine to bar Anita and Eugene Shanklin, eyewitnesses, from testifying at trial. We agree with the State that Dampier gives no legal reason for excluding their testimony. He perhaps is arguing that they should have been barred because they used drugs heavily, but counsel established their drug use on cross-examination for the jury to consider in assessing their credibility. We cannot call counsel’s conduct unreasonable, and neither can we find that Dampier was prejudiced. Thus, this claim fails to meet both parts of the Strickland test.

d. Failure to call expert. In a related argument, Dampier states that his lawyer should have called an expert to testify about the effects of drugs on Anita Shanklin when she witnessed the murder. In evaluating this alleged omission, our “scrutiny of counsel’s performance must be highly deferential.” Strickland, 104 S.Ct. at 2065. We must “eliminate the distorting effects of hindsight ... reconstruct the circumstances of counsel’s challenged conduct, and ... evaluate the conduct from counsel’s perspective at the time.” Id. Given this standard, we cannot say that counsel’s failure to call an expert was constitutionally deficient; indeed, even from hindsight his choice does not seem unwise. He established on cross-examination and argued in closing that Anita Shanklin used drugs regularly and was under their influence when she witnessed the material events. The jury was fully able to weigh her credibility. Trial counsel could reasonably conclude that an expert’s testimony in this context would add little, if any, help to Dampier’s defense. In sum, Dampier has not overcome the “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.” 104 S.Ct. at 2066.

e. Failure to object. Finally, Dampier alleges that counsel was deficient for not objecting to alleged prejudicial remarks made by the prosecutor during closing. The record shows that counsel did object to the prosecutor’s “Gacy” remark (discussed in the next section), and so that part of Dampier’s argument is without merit. As for other prosecutorial remarks, we will assume, for argument, that counsel should have objected. Nevertheless, we hold that counsel’s failure does not create a “reasonable probability that, but for [the error], the result of the proceeding would have been different.” Strickland, 104 S.Ct. at 2068. Counsel’s failure to object could have prejudiced Dampier only if the grounds for the objection had merit. As our discussion in the next section shows, the prosecutor’s closing comments did not deprive Dampier of a fair trial, so counsel’s failure to object was unprejudicial.

Accordingly, we deny the writ with respect to Dampier’s Sixth Amendment arguments.

The Prosecutorial Misconduct Claim

Dampier points to three statements made by the prosecutor in closing argument which he believes denied him a fair trial. The Seventh Circuit has made clear that the Court must proceed on a case-by-case basis in deciding whether a prosecutor’s conduct deprived an accused of a fair trial:

In United States v. Carter, 720 F.2d 941 (7th Cir.1983), our court recently reiterated the proper standard to be applied when determining whether a prosecutor’s comments deprived an accused of a fair trial. There we recognized that:
“To determine whether the prosecutor’s comments were so egregious as to require reversal, we must ask whether the
‘statements were so inflammatory and prejudicial to the defendant petitioner as to deprive him of a fair trial and thus deprive him of his liberty without due process of law as proscribed by the Fourteenth Amendment. The standard for the court to apply in making a determination of whether the petitioner was afforded a fair trial is [by] jurisprudential necessity a broad one____ [E]aeh case must be decided on its unique facts.’
United States v. Zylstra, 713 F.2d 1332 at 1339 (7th Cir.1983); United States ex rel. Clark v. Fike, 538 F.2d 750, 760 (7th Cir.1976), cert. denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977). ‘It is thus necessary to examine the allegedly prejudicial remarks of the prosecutor in the context of the trial as a whole.’ United States ex rel Garcia v. Lane, 698 F.2d 900, 902 (7th Cir.1983).”
Id. at 950.

Jentges v. Milwaukee County Circuit Court, 733 F.2d 1238, 1242 (1984). With this approach in mind, we move to Dampier’s claims.

a. The Gacy remark. Dampier argues that the prosecutor’s reference to the Gacy and Atlanta mass murders prejudiced him in the eyes of the jury. The relevant colloquy went as follows:

[Prosecutor]: —there was no reason to frame anyone. The kind of cases that have to be solved are the Atlanta murder, the Gacy killings, not this case— [Defense counsel]: Oh, objection.
[The Court]: He may argue.

By mentioning these two notorious mass murders, the prosecutor no doubt entered dangerous terrain and would be well advised to avoid such references in the future. Certainly, if the prosecutor had directly or indirectly likened Dampier to Gacy, he would have committed misconduct. See People v. Barnes, 107 Ill.App.3d 262, 437 N.E.2d 848 (1982). However, taken in the context of the prosecutor’s argument, and the case as a whole, this reference was not so inflammatory and prejudicial as to deprive Dampier of a fair trial. As the State points out, the prosecutor was responding to a defense theory that the police were framing Dampier because he was a drug dealer. The prosecutor argued in reply that the police had no pressure or incentive to frame a defendant, as they might in a high-publicity case like a mass murder. The prosecutor, then, was saying that this case differed from a Gacy-type case. Because the prosecutor was not directly or indirectly likening Dampier to Gacy, and in fact was distinguishing the two cases with regard to how the police would approach the case, we do not believe that the statement inflamed the jury and deprived Dampier of a fair trial.

b. The “puff of smoke” remark. Dampier’s next complaint concerns the prosecutor’s reference to the defense’s “frame” theory, as “a puff of smoke to confuse you, to detract your attention from the real evidence in this case.” In general, a prosecutor may certainly comment on a defense theory. A state prosecutor, like a U.S. Attorney, “ ‘may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.’ Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Of course, one of the ‘hard blows’ that an attorney, including a government attorney, may strike is comment upon his opponent’s arguments. [Citation omitted].” United States v. West, 670 F.2d 675, 688 (7th Cir. 1982), cert. denied, 457 U.S. 1124 (1982). In general, “characterization of a defense as fabricated, standing alone, is no more improper than characterizing a witness as a liar.” United States v. Craig, 573 F.2d 455, 494 (7th Cir.1977), cert. denied, 439 U.S. 820, 99 S.Ct. 82, 58 L.Ed.2d 110 (1978). We hold that the few characterizations of the defense as a “puff of smoke,” standing alone, fell within the bounds of fair play and did not deny Dampier a fair trial.

Finally, Dampier argues that the prosecutor improperly “vouched” for the credibility of the State’s witnesses. However, we do not believe he did so. In the context of conflicting testimony, the prosecutor was free to argue that the State’s witnesses were more believable than the defendant.

Conclusion

For the foregoing reasons, Dampier’s petition for a writ of habeas corpus is denied and summary judgment is granted for the state. It is so ordered.

      . Because the Illinois courts considered his arguments and applied relevant law, we disagree with Dampier that Gamble v. Oklahoma, 583 F.2d 1161 (10th Cir.1978), pertains to this case. The court there affirmed the granting of habeas relief because the state courts had ignored Supreme Court case law directly on point. It concluded that the state courts had thereby denied Gamble a “fair” opportunity to litigate his Fourth Amendment defense. Dampier has not shown us that the State "flagrantly disregarded” controlling federal constitutional law, as was done in Gamble. U.S. ex rel. Maxey v. Morris, 591 F.2d 386, 390 (7th Cir.1979), cert. denied, 442 U.S. 912, 99 S.Ct. 2828, 61 L.Ed.2d 278 (1979). To the contrary, the Appellate Court considered and plausibly distinguished the cases that Dampier had cited.

      . State trial judge Eugene Pincham made several comments about counsel’s tardiness, including the following:
      THE COURT: ... I am irritated about it. And my judgment tells me that when I am irritated to keep my mouth shut. That is what I am going to do now until such time as he arrives.
      I will take it up with him probably out of your presence about him being late. ... But I will assure you appropriate action will be taken. (R. 85-86)
      ******
      Likewise, the attorneys in this case have other cases and sometimes they may be late. It is my judgment that they won't be late again after today, but if they are, you that that is not to be a factor that concerns you at all. You are not to in any way concern yourself with it. You are not to hold it against or for either side. (R. 121)

      . In that regard, this case differs from People v. Barnes, supra, where the court held that a prosecutor’s reference to Gacy in closing prejudiced the defendant. In that case, the prosecutor’s remark indirectly linked the defendant’s character to Gacy’s. In the present case, the prosecutor did not even remotely compare Dampier to Gacy.

      . This case is unlike U.S. ex rel. Crist v. Lane, 577 F.Supp. 504, 508-09 (N.D.Ill.1983) (Shadur, J.), where the prosecutor repeatedly called the defense a "smoke screen," mounted an extended campaign to “villify the defense,” id., and committed several other acts of misconduct. In the present case, the prosecutor's isolated puff of smoke comments do not rise to the egregious and unethical campaign of the Crist prosecutor. See also Craig, 573 F.2d at 494 (if terms like "fabrication” are used excessively, defendant is denied a fair trial).


author: JACKSON, District Judge.

text:
    UNITED STATES of America v. Marcelino SEGOVIA-MELGAR, Maria Angela Carillo, Maria Olympia Segovia, and Maura Diaz — Perez.
    Crim. No. 84-0157.
    United States District Court, District of Columbia.
    Oct. 5, 1984.

      William J. O’Malley, Jr., Asst. U.S. Atty., Washington, D.C., for plaintiff.
    David C. Woll, Washington, D.C., for defendants.
   JACKSON, District Judge.

MEMORANDUM AND ORDER

Four individual defendants are charged in separate informations consolidated for pretrial proceedings with possession of false identification documents of the United States in violation of 18 U.S.C. § 1028(a)(6). All four were arrested in a fourth-floor apartment unit at 1601 Argonne Place, N.W., Washington, D.C., following execution of a search warrant on the premises at approximately 6:00 a.m., Wednesday, April 4, 1984, by three Immigration and Naturalization Service (“INS”) agents. The warrant was issued by a U.S. Magistrate at 3:30 p.m. the preceding day, directed to the “special agent in charge or any authorized special agent of the INS,” and commanded a search of the premises for “counterfeit identification cards, typewriters, and records of sales of counterfeit identification cards.”

Defendants have moved to suppress the articles seized in the course of the search, namely, counterfeit “green cards” and social security cards bearing their respective names, and certain statements made by them to the INS agents before being advised of their rights.

I.

The evidence establishes, and the Court finds, that the warrant was properly executed, and that the INS agents acted throughout in good faith. The search team, with a bilingual immigration officer in charge, and accompanied by several uniformed Washington, D.C., police officers, knocked on the locked apartment door three times, announcing their identity and purpose in both English and Spanish, and waited for a response after each knock. Hearing nothing, the agents forced the door and, with weapons drawn, entered the apartment, unaccompanied, however, by the police officers. The defendants were all found in the vicinity of the bedroom or bathroom in various stages of undress in keeping with the hour. Once dressed they were taken to the living room and kept there while the search progressed. The allegedly counterfeit green cards and social security cards were taken from the males’ wallets and the females’ purses, respectively, found among their personal belongings at various places in the apartment. The defendants were asked their citizenship and each responded, “El Salvador.” They were next asked for documents justifying their presence in the United States and each denied having any. They were then arrested as illegal aliens and given appropriate bilingual Miranda warnings. At no time did the INS agents consider the defendants at liberty to leave, and each defendant was at some point handcuffed before departing the premises in custody. They were ultimately transported to INS headquarters and thereafter taken before a U.S. magistrate.

II.

Defendants contend that INS agents cannot be authorized by warrant to search for property subject to seizure under the general criminal laws of the United States. The authority of INS agents to search pursuant to warrant derives from the Immigration and Nationality Act, 8 U.S.C. § 1357, which provides, in pertinent part, that any officer or employee of the INS:

shall ... have the power to execute any warrant or other process issued by any officer under any law regulating the admission, exclusion, or expulsion of aliens.

Id., § 1357(a)(4). (Emphasis added). The warrant at issue here does not specify the crime suspected, but the affidavit of the investigator upon which it is based establishes probable cause to believe only that evidence of a violation of a provision of 18 U.S.C. § 1028, the False Identification Crime Control Act of 1982, would be found on the premises to be searched, and the warrant commands a search for and seizure of only that evidence.

The False Identification and Crime Control Act of 1982 makes no reference to aliens at all. In general, it makes unlawful the possession or transfer of false or stolen “identification documents” by anyone. The government argues here that it is a “law regulating the admission, exclusion, or expulsion of aliens,” because its legislative history mentions illegal immigration among the social ills facilitated by the use of spurious credentials. But so also were drug- and arms-smuggling, flight from justice, myriad frauds against business and government, and tax evasion, all of which are committed by citizens and aliens alike. See generally House Report 97-802, at 2-3, 1982 U.S. Code Cong. & Admin.News, pp. 3519, 3520-22. Indeed, virtually any unlawful activity can be facilitated by the deceptions made possible through the use of false identification, not merely illegal immigration; correlatively, illegal immigration may on occasion be “facilitated” by violating any other criminal law which stands in the way. If the False Identification Crime Control Act can be said to be a law regulating the admission, exclusion, or expulsion of aliens, so also might every other criminal statute.

There are other indications, moreover, that Congress never intended the authority of INS agents to include searches in aid of general law enforcement. INS’ mandate under the Immigration and Naturalization Act is primarily one of civil enforcement of the immigration laws, not criminal law enforcement. Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1222 (D.C.Cir.), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1981). In considering INS agents’ use of a warrant to search commercial premises for employees found to be deportable aliens, the court said:

The Supreme Court has explicitly held that the detention and deportation of illegal aliens is not criminal law enforcement activity. There are no sanctions of any kind, criminal or otherwise, imposed by law upon a knowing employer of illegal aliens. This warrant in particular was issued to aid the agency in the enforcement of its statutory mandate, not to aid police in the enforcement of criminal laws.

Id. at 1218, citing Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586 (1952). See also Yam Sang Kwai v. Immigration and Naturalization Service, 411 F.2d 683 (D.C.Cir.) cert. denied, 396 U.S. 877, 90 S.Ct. 148, 24 L.Ed.2d 135 (1969) (“[section 1357(a)(1) ] ... gives the officers [of INS] the authority to interrogate any alien as to his right to be in the United States. It does nothing more. It does not authorize interrogation of the alien concerning criminal matters____” Id. at 686-87 (emphasis omitted)).

Then, too, the legislative history of the Immigration and Nationality Act, while not determinative, lends support to the proposition that the authority to execute warrants under § 1357(a)(4) is properly limited to searches for illegal aliens only. In the original version of H.R. 5678, the bill destined to become the Immigration and Nationality Act of 1952, section 287 (codified at § 1357(a)(4)) read:

When the Attorney General or any officer, designated either individually or as one of a class by the Attorney General for that purpose, has information indicating a reasonable cause to believe that in any designated lands or other property aliens are illegally within the United States, he shall issue his warrant authorizing the immigration officer named therein to go upon or within such designated lands or other property, other than a dwelling, in which the warrant states there may be aliens illegally within the United States, for the purpose of interrogating such aliens concerning their right to enter or remain in the United States.

H.R.Rep. No. 1365, 82d Cong., 2d Sess. 3-4; see also, id. at 55. While the language of the statute was substantially changed before final passage, without illuminating debate, this early version of the section shows Congress’ attention to the search powers being given to INS agents focussed on enabling them to locate people present in the country illegally, not evidence of any crimes they may have committed.

Lastly, implying a sweeping grant of authority for INS agents to execute search warrants for general law enforcement purposes from the language of § 1357(a)(4) does not withstand comparison to corresponding statutory provisions intended to empower other federal law enforcement officers to do likewise. Compare 21 U.S.C. § 878 and 18 U.S.C. § 3107.

It is, however, unnecessary to determine whether the INS agents had actual authority to execute the warrant at issue here to decide the instant motion, for the question of the availability of relief does not turn upon their authority to search. The circuit courts have heretofore been divided as to whether the exclusionary rule ought to be applied to suppress otherwise admissible evidence seized pursuant to a warrant which later proves to have been improvidently or incorrectly issued. Compare U.S. v. Burke, 517 F.2d 377, 386-87 (2d Cir.1975) and U.S. v. Pennington, 635 F.2d 1387, 1389-90 (10th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 reh’g denied, 452 U.S. 955, 101 S.Ct. 3100, 69 L.Ed.2d 966 (1981) with U.S. v. Martin, 600 F.2d 1175, 1184 (5th Cir.1979) and U.S. v. Hare, 589 F.2d 1291, 1297 (6th Cir.1979). But decisions of the U.S. Supreme Court last term have held that the exclusionary rule does not operate in circumstances such as those presented by this case. See United States v. Leon, — U.S.-,-, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677 (1984); Massachusetts v. Sheppard, — U.S.-, -, 104 S.Ct. 3424, 3427, 82 L.Ed.2d 737 (1984).

In Leon, supra, the Supreme Court reversed a decision of the Ninth Circuit upholding the application of the exclusionary rule to suppress evidence seized pursuant to a “facially valid” warrant obtained on the basis of an affidavit later held by the district court to be insufficient to establish probable cause. Reiterating observations made in several of its other recent cases to the effect that imposition of the “exclusionary sanction” is an issue to be divorced from the existence vel non of a Fourth Amendment violation, see Illinois v. Gates, 462 U.S. 213,-, 103 S.Ct. 2317, 2324, 76 L.Ed.2d 527 (1983), and that indiscriminate application of the rule “to enforce ideals of governmental rectitude” may impede the search for truth by preventing the use of otherwise inherently trustworthy tangible evidence, see U.S. v. Payner, 447 U.S. 727, 734, 100 S.Ct. 2439, 2445, 65 L.Ed.2d 468 (1980), the court held the exclusionary rule inapplicable in those situations in which its minatory potential could not have deterred the official conduct later called into question. — U.S., at -, 104 S.Ct., at 3418. According to Leon the rule will continue to apply when an affidavit proffered to a magistrate to establish probable cause is wilfully or recklessly false — and the police know it. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978). It will also apply when the magistrate who issues the warrant acts as an “adjunct law enforcement officer” rather than as the neutral and detached judicial officer he is supposed to be — and the police know it. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326, 99 S.Ct. 2319, 2324, 60 L.Ed.2d 920 (1979). And it will apply if, despite the absence of falsehood in the affidavit or magisterial error in issuing a warrant, either or both instruments are so patently deficient that the police ought to know that one or the other, or both, cannot reasonably be relied upon. Leon, supra, — U.S. at -, 104 S.Ct. at 3422. If, however, the law enforcement officials have acted honorably, and in an objectively reasonable fashion, the exclusionary rule no longer operates to bar the use of evidence obtained by a technical Fourth Amendment violation.

In the instant case there is no evidence whatsoever of inaccuracy, much less falsehood, in the affidavit submitted to the magistrate in support of the warrant. Nor is there evidence that either the INS agents or the magistrate were aware of any uncertainty as to the authority of the INS agents to search for evidence of violations of the False Identification Crime Control Act. Finally, the warrant itself conforms to all the requirements of Rule 41 save for the occult circumstance that the officer to whom it is directed is, perhaps, not “authorized to enforce” 18 U.S.C. § 1028. To exclude the evidence seized from the government’s case-in-chief at trial of these cases would likely result in dismissals or acquittals solely to punish non-eulpable Fourth Amendment violations, a consequence beyond the purpose of the exclusionary rule as redefined by Leon. The motion to suppress the documents seized will, therefore, be denied. .

III.

The questions posed to defendants by the INS agents regarding their citizenship and immigration status were entirely proper and admissible for purposes of civil deportation proceedings under the Act, 8 U.S.C. § 1251 et seq. See INS v. Lopez-Mendoza, — U.S. -, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984); Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586 (1952); accord, Blackie’s House of Beef, Inc. v. Castillo, supra, at 1218. The answers they elicited were, however, inculpatory in that they tend to prove both a motive for and knowledge of the illegal character of defendants’ possession of the false identification documents found. In the context of a criminal prosecution, such interrogation must comport with the requirements of Miranda. It is clear that defendants were in custody at the time they were questioned, and the law is equally clear that statements made by suspects in direct response to custodial interrogation, but before being advised of Miranda rights, may not be used in criminal prosecutions for an offense to which the statements related.

It is, therefore, for the foregoing reasons, this 5th day of October, 1984,

ORDERED, that defendants’ motions to suppress the tangible evidence seized at Apartment 430, 1601 Argonne Place, N.W., Washington, D.C., on April 4, 1984, are denied; and it is

FURTHER ORDERED, that defendants’ motions to suppress their statements to INS agents to the effect that they are citizens of El Salvador and without valid documents evidencing their lawful presence in the United States made prior to their receipt of Miranda warnings are granted.

      . An affidavit of an INS investigator describing a six-month investigation into the production and sale of counterfeit alien registration cards ("green cards”) and social security cards, including sales made to an undercover INS agent at the premises, established probable cause for the issuance of the warrant.
      The INS officers also obtained a warrant for the arrest of one Luis Alonzo Segovia, the principal suspect, who has since been convicted of a violation of 18 U.S.C. § 1028.

      . Two defendants, testifying through an interpreter, gave accounts of the search which suggest otherwise. The Court does not credit their testimony to the extent it charges the INS agents with improper conduct.

      . All defendants were apparently living in the apartment, and the government has not contested the standing of any of them to raise the issue of the validity of the search.

      . The government suggests two other sources of authority: 18 U.S.C. § 3105 and Fed.R.Crim.P. 41(c). Title 18 U.S.C. § 3105 provides that "[a] search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution____” But it is established law that § 3105 confers no substantive authority to execute warrants. It merely enlarges upon the common law rule that required search warrants to be directed to and executed only by a particular person. See U.S. v. Martin, 600 F.2d 1175, 1181 (5th Cir.1979); U.S. v. Sigal, 341 F.2d 837, 843 (3d Cir.), cert. denied, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965).
      Subparagraph (c) of Rule 41, Fed.R.Crim.P., states that a search warrant “shall be directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States.” Rule 41, however, is concerned with the exercise of judicial, not executive, power, i.e., which judicial officers may authorize searches by warrant, and in what circumstances. It does not purport to determine which "civil officers” of the United States are authorized to enforce which specific laws.

      . U.S. v. McCormick, 468 F.2d 68 (10th Cir. 1972), cert. denied, 410 U.S. 927, 93 S.Ct. 1361, 35 L.Ed.2d 588 (1973) and Valenzuela Garcia v. U.S., 425 F.2d 1170 (9th Cir.1970), cited by the government, are not to the contrary. While those cases did state that "[i]mmigration officers and U.S. Customs Agents are not limited to investigate solely for the presence of illegal aliens,” McCormick, 468 F.2d at 73, quoting Valenzuela-Garcia, 425 F.2d at 1173, the statements were premised on the fact that the agents were lawfully within the confines to be searched at the outset. In both cases defendants had been stopped in border searches for illegal immigrants, and the subsequent discovery of contraband was thus incidental to the initial lawful search for deportable aliens.
      It should be noted that INS agents’ powers of criminal arrest are limited as is their authority to search; they may arrest without warrant for only those felonies "cognizeable under [laws] regulating the admission, exclusion, or expulsion of aliens ____" 8 U.S.C. § 1357(a)(4).

      . 21 U.S.C. § 878(2), which authorizes execution of search warrants by agents of the Drug Enforcement Administration, reads, in pertinent part:
      "Any officer or employee of the Drug Enforcement Administration designated by the Attorney General may ...
      (2) execute and serve search warrants, arrest warrants, administrative inspection warrants, subpenas [sic], and summonses issued under the authority of the United States.”
      18 U.S.C. § 3107, which authorizes execution of search warrants by agents of the Federal Bureau of Investigation, provides:
      "The Director, Associate Director, Assistant to the Director, Assistant Directors, agents, and inspectors or the Federal Bureau of Investigation of the Department of Justice are empowered to make seizures under warrant for violation of the laws of the United States.”

      . At least one other district couit case has, but only by implication, sanctioned a search by INS agents pursuant to warrant for evidence to be used in the prosecution of nonimmigration-related crimes. See U.S. v. Medows, 540 F.Supp. 490, 500 (S.D.N.Y.1982).


author: THORNTON, District Judge.

text:
    Sollie BOONE, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. No. 83-CV-4637-DT.
    United States District Court, E.D. Michigan, S.D.
    Oct. 5, 1984.

      Richard M. Amsbaugh, Detroit, Mich., for plaintiff.
    Karl Overman, Asst. U.S. Atty., U.S. Dept, of Justice, Detroit, Mich., for defendant.
   OPINION

THORNTON, District Judge.

This is an action filed under Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g) to review a final decision of the Secretary of Health and Human Services denying plaintiffs application for disability benefits. Plaintiff filed a motion for summary judgment, the Magistrate issued his Report and Recommendation that the Secretary’s decision be affirmed and plaintiff filed objections thereto.

Plaintiff argues that the Administrative Law Judge’s application of Rules 202.10 and 202.11 of the grid regulations was erroneous as there was not substantial evidence in the record to support the Administrative Law Judge’s finding that plaintiff is not illiterate. He states that correct application of Rule 202.09 results in a finding the plaintiff is disabled and entitled to benefits.

The Magistrate acknowledged that there was “... the possibility, which I concede to be substantial, that the Law Judge’s finding regarding illiteracy may be flawed”. Magistrate’s Report and Recommendation, page 3. He concluded, however, that due to plaintiff’s nonexertional impairments, the grid regulations serve only as a guideline.

The Administrative Law Judge concluded that plaintiff had a severe respiratory impairment which limited his residual functional capacity to light exertional level precluding his return to the construction industry. He also concluded that plaintiff’s respiratory condition demonstrated a nonexertional limitation precluding plaintiff from working in dusty environments (Tr. 14) .

The Administrative Law Judge concluded that plaintiff, age 50, had a severe impairment, was closely approaching advanced age and had no transferable skills (Tr. 14-15) .

He also concluded that plaintiff’s seventh grade education warranted a finding of “limited education” as there was no evidence of illiteracy (Tr. 14-15).

As the Magistrate suggested, this finding of illiteracy is flawed. This Court agrees with the court in Bailey v. Heckler, 576 F.Supp. 621, 623 (D.D.C.1984) that a claimant’s grade level completion is not conclusive evidence of his educational abilities. 20 C.F.R. § 404.1564(b) (1981). Under the regulations, a claimant’s grade level gives rise to an inference of his educational abilities which may be contradicted by other evidence. 20 C.F.R. § 404.1564(b) (1981). Illiteracy, 20 C.F.R. 404.1564(b)(1) is defined as:

Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.

At the hearing, the Administrative Law Judge questioned plaintiff as to his educational abilities:

“Q. (By AU) ... Can you read and write okay?
A. No.
Q. Well, what do you have problems doing?
A. Well, I have problem trying spell, you know, if-a-you know try to read. I don’t have no kind-a-read-in’. I can’t write, I don’t have no-a-I can’t write a letter-letter.
Q. Could you write a note telling me where you went if you left the house for awhile, could you tell, me where you went, in a note?
A. No, I tell you the truth.
Q. What about reading, can you read a newspaper?
A. No.
Q. Can you read a simple letter that somebody sends to you?
A. No, my daughter have to me.”

(Tr. 34-35).

This evidence of illiteracy is further buttressed by the record which is replete with references indicating that plaintiff’s forms and applications were completed by others and that plaintiff needs his daughter’s assistance in processing his claim. This Court must conclude that there was not substantial evidence in the record to support the Administrative Law Judge’s conclusion that plaintiff has a limited education. Rather, the evidence strongly supports the conclusion that plaintiff is illiterate.

The Magistrate correctly noted that where nonexertional limitations are the focus of a claimant’s impairment, the grid serves only as a guideline. Kirk v. Secretary, 667 F.2d 524 (6th Cir.1981). However, that is not the situation presented to the Court in this case.

Under 20 C.F.R. Subpart P, Appendix II, § 200.00(e) (1981), a claimant’s nonexertional limitations become the focus of his impairment only after it is determined that his exertional limitations do not warrant a finding of disability:

However, where an individual has an impairment or combination of impairments resulting in both strength limitations and nonexertional limitations, the rules in this subpart are considered in determining first whether a finding of disabled may be possible based on the strength limitations alone and, if not, the rule(s) reflecting the individual’s maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individual’s work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations. (Emphasis added).

The disability decision must consider plaintiff’s residual functional capacity limited to light work, his proximity to advanced age, his lack of transferable skills and his illiteracy. 20 C.F.R. Subpart P, Appendix II, § 200.00(d) (1981). This requires application of Table 2, Rule 202.09 which results in a determination of disability-

Accordingly, the decision of the Secretary denying disability benefits in this case is reversed and plaintiff’s Motion for Summary Judgment is GRANTED.


author: BARKER, District Judge.

text:
    The POPULIST PARTY, et al., Plaintiffs, v. Robert D. ORR, et al., Defendants.
    No. IP 84-1311-C.
    United States District Court, S.D. Indiana, Indianapolis Division.
    Oct. 5, 1984.

      Jeffrey S. Rasley, David A. Gray, Price & Gray, Indianapolis, Ind., for plaintiffs.
    Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, Ind., for defendants.
   ORDER

BARKER, District Judge.

This matter came to be heard on plaintiffs’ September 20, 1984 complaint for a preliminary and permanent injunction 1) declaring certain of the election laws of the State of Indiana unconstitutional, 2) directing defendants, their agents and employees to place the name of the Populist Party and its certified candidates and presidential electors on the November, 1984 Indiana general election ballot, and 3) for an expedited hearing on the merits. The Court, having heard and considered the evidence and arguments on September 28, 1984, and the briefs of counsel, now issues its findings of fact and conclusions of law. In accordance therewith, plaintiffs’ prayer for injunctive relief is DENIED.

Finding of Fact

1. The Populist Party is a national political organization in the United States which was founded in February, 1984. The Populist Party has affiliate branches in forty-nine (49) states, including Indiana, and candidates for state and federal offices.

2. The Indiana Chapter of the Populist Party was certified as the Indiana affiliate of the national political organization on July 25, 1984.

3. Darlene V. Sartore is the Chairperson of the Central Committee of the Indiana Chapter of the Populist Party.

4. Defendants are officials of the State of Indiana who have varying powers and responsibilities regarding the administration of Indiana state election laws, including members of the Indiana State Election Board. The defendants have been named in this lawsuit in their respective official capacities only.

5. Indiana Code Section 3-1-11-1 requires a political party which previously has not qualified for permanent ballot status to gather signatures of registered voters equal in number to at least two percent (2%) of the total number of votes cast for Indiana Secretary of State in the preceding general election in which that office was contested, in order to qualify for placement on the general election ballot.

6. The number of signatures of registered voters required for placement on the Indiana General Election ballot for the November, 1984 General Election is thirty-five thousand forty (35,040).

7. In July, 1984, Darlene Sartore contacted the State Election Board to obtain information relating to registration procedures for the Populist Party and its candidates for the 1984 General Election ballot in Indiana. During the last week of July, the State Election Board approved the form of petitions the Populist Party was to use in Indiana to establish support for the placement of the party and its candidates on the 1984 General Election ballot.

8. The Indiana Populist Party began gathering signatures to meet the statutory petition requirements in late July of 1984. Thereafter, approximately one thousand (1,000) signatures were collected and submitted to the respective county election boards for certification pursuant to state law. Of the one thousand (1,000) signatures submitted, however, only three hundred ninety seven (397) were officially certified by the September 4,1984 deadline set by the State Election Board.

9. By letter dated September 4, 1984, Ms. Sartore was notified by Robert D. Orr, Governor of the .State of Indiana, that because the Populist Party was unable to obtain the requisite number of certified signatures, it would not be permitted to appear on the November, 1984 General Election ballot in Indiana. Ms. Sartore received a similar letter dated September 11, 1984, from Craig C. Campbell, Deputy Indiana Secretary of State.

10. On September 20, 1984, plaintiffs initiated this action, seeking a temporary restraining order preventing defendants from distributing ballots for the 1984 General Election in Indiana without including thereon the candidates of the Populist Party. Plaintiffs further sought a preliminary and permanent injunction declaring the election laws of the State of Indiana unconstitutional and directing defendants to place the Populist Party candidates on the ballot for the 1984 General Election.

11. The Court was advised on September 20, 1984, that defendants had already mailed for distribution the ballots for the November General Election prior to the filing of this lawsuit. Being so advised, the Court ruled that plaintiffs’ motion for a temporary restraining order was moot and the matter was set for expedited hearing on the merits on September 27, 1984.

12. The plaintiffs’ request that the Populist Party be placed on the ballot for the November, 1984 General Election in Indiana was rejected by defendants solely because plaintiffs failed to tender the requisite number of certified signatures pursuant to Indiana Code Section 3-1-11-1.

13. The Indiana State Election Board has also rejected requests from the Communist Party and the Citizens Party for placement on the 1984 General Election ballot because those parties also failed to tender the requisite number of certified signatures pursuant to Indiana law.

14. Four parties — the Republican, Democratic, Libertarian and American parties— are on the 1984 General Election ballot because in 1982 their candidates for the office of Secretary of State polled sufficient votes to qualify those parties for permanent ballot status.

15. With the exception of the four (4) parties referred to in Finding 14, all parties seeking access to the 1984 General Election ballot have been required by defendants to meet the petition signature requirement set forth in Finding 5, and no party has been placed on the ballot without meeting such requirement.

16. Plaintiffs introduced no evidence that “but for” the September 4, 1984 deadline, they would have been able to obtain the requisite number of signatures, and, in fact, plaintiffs made no attempt to obtain any signatures after the September 4,1984 cut-off date.

17. Defendants have imposed no requirements for ballot access on the plaintiffs other than those permitted in Indiana Code Section 3-1-11-1.

18. Plaintiffs have not been treated differently by defendants compared with all other parties seeking placement on the November, 1984 General Election in Indiana.

19. Any conclusion of law stated below, to the extent that it constitutes a finding of fact, is herein incorporated by reference as an additional finding of fact by the Court.

Conclusions of Law

1. The Court has jurisdiction over the parties and the subject matter of this cause. 28 U.S.C. §§ 1331, 1343.

2. The State of Indiana has a compelling interest in requiring candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with the names of frivolous candidates. See Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 1570 fn. 9, 75 L.Ed.2d 547 (1983); American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1979); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971).

3. The Indiana ballot access requirement that sufficient support for candidates and parties be demonstrated by a specified number of signatures is a reasonable, non-discriminatory means of protecting the state interest referred to in Finding 2.

4. The two percent (2%) signature requirement set forth in Indiana Code Section 3-1-11-1 does not unreasonably or unfairly encroach on ballot access by the plaintiffs or anyone else similarly situated.

5. The two percent (2%) signature requirement is a constitutionally permissible means of requiring candidates and parties to demonstrate substantial support in order to protect the state’s compelling interest. (See Conclusion 2).

6. The plaintiffs have failed to state any other cognizable claim under federal law entitling them to relief.

7. The law is' with the defendants and against the plaintiffs.

8. Any finding of fact stated above, to the extent that it constitutes a conclusion of law, is herein incorporated by reference as an additional conclusion of law by the Court.

9. Judgment shall be entered for the defendants.

Memorandum

This is a ballot access case in which the plaintiffs challenge the statutory procedure whereby third party candidates and parties are placed on the general election ballot in Indiana. Plaintiffs also seek an injunctive order directing defendants to place the name of the Populist Party and its candidates on the November, 1984 Indiana General Election ballot.

The specific statute challenged is Indiana Code Section 3-1-11-1, which requires that, in order to be placed on the ballot, a candidate must submit to the State Election Board petitions containing certified signatures of at least two percent (2%) of the total number of votes cast for Indiana Secretary of State in the last general election in which that office was contested. For purposes of the upcoming 1984 General Election, the statute required plaintiffs to submit petitions by September 4, 1984, containing thirty-five thousand forty (35,040) certified signatures of registered voters to the State Election Board in order to appear on the ballot by party affiliation.

After ascertaining from the State Election Board the requirements for registering the Populist Party for the November General Election ballot in July, 1984, see Finding 7, the plaintiffs began their signature-gathering campaign. Initially, the plaintiffs relied on volunteers, but in late August the party’s national organization contracted with a private consulting firm known as “WCF” to undertake a professional petition drive.

Despite plaintiffs’ efforts to gather the requisite number of signatures, only about one thousand (1,000) signatures were obtained by the September 4, 1984 deadline for filing, and of those one thousand (1,000), only three hundred ninety-seven (397) were officially certified as being signatures of registered voters in Indiana. Thus, plaintiffs’ petitions were deficient by thirty-four thousand six hundred forty-three (34,643) signatures. Stated otherwise, plaintiffs gathered slightly over one percent (1%) of the minimum number of signatures needed to appear on the November, 1984 General Election ballot.

As stated in Finding 10, supra, plaintiffs initiated this action seeking a declaration that the signature requirement in Indiana’s ballot access statute unconstitutionally deprives them of their First Amendment rights of free speech and expression, and asking the Court for an order directing defendants to place the Populist Party candidates on the ballot for the November, 1984 General Election, despite their inability to secure the required minimal showing of popular support.

The Supreme Court in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), held, “[although ... [First Amendment] rights of voters are fundamental, not all restrictions imposed by the states on candidates’ eligibility for the ballot impose constitutionally-suspect burdens on voters’ rights to associate or to choose among candidates. We have recognized that, ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’ ” 103 S.Ct. at 1569 (citation omitted, emphasis added).

The law is well-settled that a state has a compelling interest “in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot — the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election.” Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971). See also, Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 1570, fn. 9, 75 L.Ed.2d 547 (1983); Lubin v. Panish, 415 U.S. 709, 715, 94 S.Ct. 1315, 1319, 39 L.Ed.2d 702 (1974); Storer v. Brown, 415 U.S. 724, 740, 94 S.Ct. 1274, 1284, 39 L.Ed.2d 714 (1974); American Party of Texas v. White, 415 U.S. 767, 782 fn. 14, 94 S.Ct. 1296, 1307 fn. 14, 39 L.Ed.2d 744 (1974); Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972). Certainly, Indiana’s interests in regulating ballot access are as compelling as those of other states, even if the particular regulation — here, Indiana Code Section 3-1-11-1 —“inevitably effects — at least to some degree — the individual’s right to vote and his right to associate with others for political ends.” Anderson, supra, 103 S.Ct. at 1569.

Having determined the existence of Indiana’s “compelling state interest” in regulating ballot access, the question becomes whether there are not “significantly less burdensome” or “less drastic” means available to protect that interest. See American Party of Texas v. White, 415 U.S. at 781, 94 S.Ct. at 1306. See also, Libertarian Party of Fla. v. State of Fla., 710 F.2d 790, 793 (11th Cir.1983). However, the Eleventh Circuit Court of Appeals in Libertarian, supra, found that:

“Obviously any percentage or numerical requirement is ‘necessarily arbitrary.’ American Party of Texas v. White, 415 U.S. at 783, 94 S.Ct. at 1307. Once a percentage or number of signatures is established, it would probably be impossible to defend it as either compelled or at least drastic. At any point, probably a fraction of a percentage point less, or a few petitioners less would not leave the interests of the state unprotected. Any numerical requirement could be challenged and judicially reduced, and then again, and again until it did not exist at all. This is not the thrust of the Court’s teachings, however. Rather, a court must determine whether the challenged laws ‘freeze’ the status quo by effectively barring all candidates other than those of the major parties, Jenness v. Fortson, 403 U.S. at 439, 91 S.Ct. at 1974, and provide a realistic means of ballot access. American Party of Texas v. White, 415 U.S. at 783, 94 S.Ct. at 1307. The focal point of this inquiry is whether a ‘reasonably diligent [ ] candidate [can] be expected to satisfy the signature requirements.’ Storer v. Brown, 415 U.S. at 742, 94 S.Ct. at 1285. Thus, the test is whether the legislative requirement is a rational way to meet this compelling state interest. The least drastic means test becomes one of reasonableness, i.e., whether the statute unreasonably encroaches on ballot access. See Anderson v. Celebrezze, 460 U.S. at 788 & n. 9, 103 S.Ct. at 1570 & n. 9 (1983) (state’s important regulatory interests are generally sufficient to justify reasonable restrictions).”

710 F.2d at 793.

In scrutinizing Indiana’s ballot access statute in light of the foregoing authorities, and by comparing the relative burdens it imposes to those countenanced and upheld in other jurisdictions, it becomes clear that Indiana Code Section 3-1-11-1 does not unreasonably encroach on ballot access, and certainly not in unconstitutional proportions. Indiana’s statute, for instance, is substantially less burdensome than a similar Florida petition requirement of three percent (3%) of all registered voters within the state, which also was upheld as constitutional. See Libertarian Party of Fla. v. State of Fla., supra.

In contrast to Florida’s requirements, Indiana requires signatures representing only two percent (2%) of the total number of votes actually cast for Indiana Secretary of State in the preceding general election in which that office was contested, rather than of all registered voters in the state. Further, unlike Florida, Indiana charges no fee to verify the signatures. The Indiana ballot access requirement that sufficient support for candidates and parties be demonstrated by a specified number of certified signatures is not only reasonable, it is imminently reasonable both on its face and in comparison to standards in many other states.

Plaintiffs’ difficulties in obtaining the requisite number of signatures are probably more easily attributable to their inexperience, their late start, and the failure of their paid consultants than to the state’s ballot access requirement. As stated in Finding 8, plaintiffs did not begin gathering signatures until late July, 1984; accordingly, they had less than six (6) weeks to demonstrate through the petition procedure “a significant modicum of support.” See Jenness, supra. To assign fault for plaintiffs’ failures to the Indiana statute is at best misplaced blame. It bears repeating that plaintiffs have made no showing that any other party or candidate beset by the same problems and failures would have fared better than they did.

Finally, plaintiffs have argued that these circumstances — where their political party came into existence relatively late but made reasonably diligent efforts to gather the requisite number of signatures — warrant a “waiver” of the statutory requirements and placement of the Populist Party candidates on the ballot. Though plaintiffs argue for an alternative which would vest discretion in the State Election Board to decide on an ad hoc basis whether a particular party or candidate “deserves” inclusion, a plain reading of Indiana Code Section 3-1-11-1 makes it clear that no such discretion is permitted. In this respect, plaintiffs’ cause is better advanced legislatively rather than judicially.

The evidence demonstrates that defendants and the State Election Board have treated all candidates and parties in a fair and even-handed manner under the statute. See Findings 13 through 15. Had the two major parties on the ballot also failed to demonstrate substantial support, they, too, would have been omitted from the ballot. In addition, to waive the signature requirements for the plaintiffs while enforcing them against the Communist Party and the Citizens Party, (see Finding 13) would deprive the latter two political organizations of the very rights plaintiffs seek to enforce in this lawsuit, and surely would subject defendants to discrimination charges from that direction. A discretionary, ad hoc approach such as that advanced by plaintiffs holds the potential for invidious and arbitrary abuses far worse than anything plaintiffs have suffered under the present state of the law.

Plaintiffs’ prayer for injunctive relief is DENIED. Judgment shall be entered in accordance herewith.


author: MIHM, District Judge.

text:
    Michael J. McKEON and R. Dean Peterson, Plaintiffs, v. TOLEDO, PEORIA AND WESTERN RAILROAD COMPANY and/or Atchison, Topeka and Santa Fe Railway Company, Defendant.
    No. 84-1189.
    United States District Court, C.D. Illinois, Peoria Division.
    Oct. 5, 1984.
    Robert J. Lenz, Bloomington, 111., for plaintiffs.
    Ronald A. Lane, Chicago, 111., Robert V. Dewey, Peoria, 111., for defendant.
   MEMORANDUM OPINION

MIHM, District Judge.

FACTUAL BACKGROUND

Prior to 1980 the Toledo, Peoria and Western Railroad Company was a 50%-owned subsidiary of the Atchison, Topeka and Santa Fe Railway Company. The other 50% of TP & W’s capital stock was owned by the Pennsylvania Transportation Company. On July 20, 1979 the Santa Fe Railway reached an agreement with the Pennsylvania Transportation Company under which it purchased the other’s 50% interest in TP & W. In a decision dated December 17, 1980 the Interstate Commerce Commission approved the sale of all of the Pennsylvania Company’s stock to the Santa Fe Railway.

Because the transaction involved the merger of a wholly-owned subsidiary and was thus classified as a “corporate simplification”, the Santa Fe Railway Company was exempt from the requirement of Commission approval. Therefore, a special agreement incorporating the New York Dock conditions for employee protection was necessary. This was effected in a Notice of Exemption dated August 17, 1983, stating:

“... accordingly, as a condition to use of the subject exemption for this merger, any employee of TP & W or Santa Fe affected by the merger shall be protected pursuant to the conditions in New York Dock.”

At the time of the merger, the Plaintiff Michael McKeon had been employed by TP & W since September of 1979, and the Plaintiff R. Dean Peterson since June 30, 1972. Both were, therefore, covered under the employee protection agreement.

A further term of the merger was the abrogation of an agreement between TP & W and Consolidated Rail Corporation (Conrail), which guaranteed the maintenance of existing rates, routes and services of TP & W. Thereafter, in June of 1981, Conrail closed the Logansport Gateway. The Plaintiffs claim that, as a result of that closing, both lost their positions on November 1, 1982 in violation of the protection agreement under New York Dock. The Plaintiff McKeon claims losses of $94,482.83 and the Plaintiff Peterson claims losses of $38,981.52.

The issue presented for resolution is whether this Court has jurisdiction to decide the applicability of the protective conditions of New York Dock in this case.

THE POSITION OF THE DEFENDANT

The Defendants claim that the employee protection arrangement under which Plaintiffs seek relief includes mandatory arbitration, and that this arbitral remedy is exclusive, depriving the Court of the authority to hear this case. The claim is that the controlling law is set out in the “conditions” of New York Dock Railway-Control-Brooklyn Eastern District, 360 ICC 60 (1979). The relevant portion of the New York Dock conditions is section 11, which establishes a grievance mechanism to resolve, through final and binding arbitration, disputes relative to the interpretation, application, or enforcement of its provisions.

Section 11 reads in relevant part:

“Arbitration of Disputes, (a) in the event a railroad and its employees or their authorized representatives cannot settle any dispute or controversy with respect to the interpretation, application or enforcement of any provision of this appendix, except sections 4 and 12 of this article I, within 30 days after the dispute arises, it may be referred by either party to an arbitration committee.”

Although the language of the section implies that arbitration is discretionary, it is the contention of the Defendants that the federal courts have definitively established over the years that the arbitration remedy is compulsory and exclusive, and that the courts lack jurisdiction of claims under those conditions. The Defendant places particular emphasis on Walsh v. United States, 723 F.2d 570 (7th Cir.1983), arguing that this case decisively establishes the Seventh Circuit position that Plaintiffs have a plain, effective and compulsory arbitral remedy. For that reason, Defendants maintain Plaintiffs’ complaint should be dismissed.

A second issue is raised by the Defendants’ motion. Does the fact that TP & W’s corporate existence had ceased but its rights, interests and liabilities have devolved by operation of law upon Santa Fe require the dismissal with prejudice of any claim against TP & W? Santa Fe is currently named as a co-defendant in the case. THE POSITION OF THE PLAINTIFF

Addressing first the motion for dismissal, Plaintiffs claim Walsh v. United States, supra, does not address the issue before the Court because the Seventh Circuit "... was not presented with the issue of whether an employee has a private right of action against a railroad for the denial of protective conditions under the New York Dock decision.”

Plaintiffs rely heavily on Modin v. New York Central Company, 650 F.2d 829 (6th Cir.1981), in which the Sixth Circuit, citing Norfolk and Western Railway Co. v. Nemitz, 404 U.S. 37, 92 S.Ct. 185, 30 L.Ed.2d 198, stated:

“Employees have a private right of action for damages against a railroad for violation of the employee arrangements imposed by the ICC in connection with the approval of railroad mergers.”

The Plaintiffs argue that, since Modin was decided nearly two years after New York Dock, the Sixth Circuit must have been aware of the arbitration provisions contained in New York Dock when it ruled that employees do have a private right of action for redress of violations of protective conditions. Apparently, Plaintiffs believe that Modin bears more directly on the question than does Walsh, which is the Seventh Circuit case.

The Plaintiffs further argue that Defendants’ failure to comply with a 90-day notice provision of the New York Dock conditions constitutes a waiver of the right to mandatory arbitration. They have alleged that they were given two weeks’ notice of the change or elimination of their positions.

With respect to the summary judgment alternative in Defendants’ motion, Plaintiffs claim there exist genuine issues of material fact making summary judgment inappropriate. And, in response to Defendants’ move to dismiss the action against TP & W, Plaintiffs cite Illinois Revised Statutes, ch. 32, § 157.94 to the effect that an action may be brought against the dissolved corporation up to two years after its dissolution.

DECISION

There appear to be three steps involved in the resolution of a complaint such as the one Plaintiffs present. The first step is a factual determination of whether the specific action or omission complained of is a result of the merger. The second is a determination by the ICC of whether or not that action violates the applicable employee protection arrangement. The third and final step is a decision by the federal court, on appeal, that the ICC’s decision is or is not arbitrary and capricious.

In this case, Plaintiffs are alleging that the loss of their jobs is a direct result of Conrail’s closing of the Logansport Gateway and a violation of the protections afforded them by New York Dock and by 49 U.S.C. § 11347 (which the courts generally agree is a codification of the New York Dock conditions). Because of the attenuation between the merger itself and the loss of Plaintiffs’ jobs, it would seem that the case would require a factual determination of whether the merger did in fact cause the loss. Thus, it is a step one problem.

Defendants’ contention that “the federal courts have definitively established that this arbitration remedy is compulsory and exclusive, and the courts lack jurisdiction of claims under these conditions”, seems to be a fair and accurate one. Such decisions have come down in the Fifth, Sixth, Seventh and Eighth Circuits. Of particular interest is the pre-New York Dock case of Burlington Northern, Inc. v. American Railway Supervisor’s Association, 503 F.2d 58 (1974), the Seventh Circuit ease. The case involved a merger of railroads under the Railway Labor Act. The ICC had imposed, as a condition of its approval of the merger, an employees’ merger protection agreement which included an agreement to arbitrate. The court held that, “when an agreement to arbitrate is one of the protections afforded employees under § 5(2)(f) of the Interstate Commerce Act the obligation to arbitrate will be enforced by the courts.”

In 1979, the ICC decided New York Dock, supra, in which the Commission developed and standardized the requirements of employee protection which are to condition its approval of mergers. These conditions include a section 11 which establishes a grievance mechanism, subsection (a) of which was set out above. Subsection (e) reads as follows:

“(e) In the event of any dispute as to whether or not a particular employee was affected by a transaction, it shall be his obligation to identify the transaction and specify the pertinent facts of that transaction relied upon. It shall then be the railroad’s burden to prove that factors other than a transaction affected the employee.”

The Eighth Circuit case, Sorensen v. Chicago & M. W. Transportation Co., 627 F.2d 136 (8th Cir.1980), was decided after New York Dock and held that arbitration deprives the court of jurisdiction over alleged violations of protective conditions.

On December 13, 1983 the Seventh Circuit decided Walsh v. United States, supra. Plaintiffs rightly point out that the court in Walsh is construing the Staggers Rail Act; however, the court’s analysis makes clear that they feel that the relationship between the Staggers Rail Act and the conditions of New York Dock is very clear and straightforward. The court notes that § 219(g) requires the ICC to provide employees of rate bureaus with arrangements no less protective than those established pursuant to 49 U.S.C. § 11347. The Seventh Circuit court quoted the ICC in Western Railroads-Agreement, 364 ICC 782 (1981) as follows:

“It is clear that Congress intended that affected employees of these [rate] bureaus are to have at least the same minimum protection as granted to rail employees affected by mergers, acquisitions, consolidations and similar transactions. These protections developed pursuant to 49 U.S.C. § 11347 are set forth in New York Dock.”

The Court goes on to say, “accordingly, we do not dispute the ICC’s determination that the minimum protective arrangements established pursuant to 49 U.S.C. § 11347 are, in fact, the New York Dock conditions.” The court then bases the rest of its analysis, and apparently its opinion, on the New York Dock conditions.

After noting that the phrase “may be referred by either party to an arbitration committee” would ordinarily connote discretion, the court said that the real meaning of “may” is dependent on the intention of the legislature to confer a discretionary power or to impose an imperative duty. Thus, the court found it necessary to determine the ICC’s intention in using the word “may”. Following its examination of the language of the ICC in New York Dock and language of the United States Supreme Court in interpreting a similar provision of the Railway Labor Act, the court decided:

“Based upon the deference due the ICC’s interpretation of its own language and the Supreme Court’s directive we conclude that the New York Dock conditions impose mandatory arbitration for disputes such as petitioner’s that require a factual determination of whether or not a rate bureau employee’s dismissal was caused by the ICC’s deregulation of a rate bureau industry.”

The court went on to dismiss, as of no consequence, the petitioner’s status as a non-union employee. This could have been, but was not, raised as an issue in this case.

It appears that, although the Seventh Circuit in Walsh is construing the Staggers Rail Act, in effect and in actuality its analysis is also of the New York Dock conditions and whether or not arbitration under those conditions is mandatory.

In Walsh, the ICC had refused to hear a case involving a factual dispute under § 219(g) and the plaintiff petitioned the Seventh Circuit to review the ICC’s decision dismissing petitioner’s complaint. The Seventh Circuit affirmed that decision of the ICC based on the foregoing analysis.

It seems clear that the Seventh Circuit is saying that the initial factual dispute must be submitted to arbitration, that only after such arbitral finding is the ICC required to make a decision regarding whether or not the protective conditions have been violated, and only when the ICC decision is appealed is there jurisdiction for a court to review. That review rests appropriately with an appellate court and the standard of review is whether or not the agency action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.

Thus, it would seem that this Court does lack jurisdiction in this matter and the Defendant’s Motion to Dismiss is hereby GRANTED.