author: SANDERS, District Judge.

text:
    John E. BRADLEY, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, PATENT AND TRADEMARK OFFICE, Defendant.
    Civ. A. No. 3-84-0421-H.
    United States District Court, N.D. Texas, Dallas Division.
    July 2, 1984.
    John E. Bradley, pro se.
    Stafford Hutchinson, Asst. U.S. Atty., Dallas, Tex., for defendant.
   MEMORANDUM OPINION AND ORDER

SANDERS, District Judge.

This case is before the Court on Defendant’s Motion to Dismiss Without Prejudice, Brief and Exhibits in Support thereof, filed May 14, 1984. No responsive pleading has been filed, although the time for doing so has long since elapsed. Local Rule 5.1(e). The Motion, therefore, is ripe for adjudication. For the following reasons, the Court is of the opinion that Defendant’s Motion should be granted.

Factual Background

Plaintiff’s Complaint, filed pro se on March 19, 1984, asserts that Defendant wrongfully and erroneously denied him a patent for his “J.B. Lantern Stand”. The denial, he alleges, was motivated by discrimination based on Plaintiff’s race, black. He seeks issuance of the patent from this Court.

The uncontroverted record before the Court establishes the following: Plaintiff filed his patent application with the Patent and Trademark Office on April 13, 1979. Defendant’s Exhibit A, pp. 5-12. After examination of the application, it was rejected on April 1, 1980, for failure to comply with the specification requirements of 35 U.S.C.A. § 112 (West Supp.1984) and for failure to comply with the non-obvious subject matter requirement of 35 U.S.C.A. § 103 (West 1954). Defendant’s Exhibit A, pp. 13-19. Plaintiff responded to this action by sending several photographs of the J.B. Lantern Stand and reurging issuance.

On November 28, 1980, the Examiner sent a communication to Plaintiff that explained in detail the procedure Plaintiff must follow in order to be entitled to a reexamination of his application, and provided an expanded discussion of the basis for the earlier rejection. Enclosed with this communication were copies of the applicable statutes and regulations. Defendant’s Exhibit A, pp. 22-25. By letter dated February 23, 1981, Plaintiff again requested that his patent be issued and inquired whether an additional fee was required. He enclosed a drawing of the J.B. Lantern Stand that closely resembled the drawing submitted with the initial application. Defendant’s Exhibit A, pp. 26-28.

On June 9, 1981, the Examiner posted a letter to Plaintiff notifying him that his application was deemed abandoned for failure to address the deficiencies found in the April 1, 1980, decision. The accompanying remarks explained the procedure for reviving the application. Defendant’s Exhibit A., pp. 29-32. On June 30,1983, Plaintiff’s application was revived by the Commissioner of Patents and Trademarks based upon a finding that Plaintiff’s delay in prosecuting his application was unavoidable. Defendant’s Exhibit A, p. 88.

After a reexamination of the application, it was again rejected on July 28, 1983. In the accompanying memorandum the examiner cited the same deficiencies as had been cited in the earlier rejection of April 1, 1980. The notice provided that Plaintiff’s response, if any, must be filed within three months. If no response was filed, the application would become abandoned pursuant to 35 U.S.C.A. § 133 (West 1954). Defendant’s Exhibit A, pp. 89-94. By letter dated March 8, 1984, Plaintiff was notified that his application was deemed abandoned due to his failure to respond to the July 28 communication. On March 19, 1984, he filed his suit in this Court.

Defendant’s Motion, brought pursuant to Fed.R.Civ.P. 12(b)(1), challenges this Court’s subject matter jurisdiction over Plaintiff’s claim. By submitting the administrative record of the Patent and Trademark Office concerning Plaintiff’s patent application, Defendant has made a factual attack on the issue of subject matter jurisdiction. By doing so, Defendant has shifted to Plaintiff the burden of proving, by a preponderance of the evidence, that this Court does have subject matter jurisdiction. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981).

Defendant’s argument, in sum, is that: (1) Plaintiff has allowed his patent application to become abandoned; (2) Without revival of the application, he can proceed no further with either his administrative or his judicial remedies; (3) Plaintiff cannot obtain judicial review of the Patent Office decision until he has appealed to the Patent Office Board of Appeals; (4) Judicial review of the decision of the Board of Appeals can only be undertaken in the United States Court of Appeals for the Federal Circuit or the United States District Court for the District of Columbia.

Analysis

Title 35 of the United States Code, Chapter 13, sets forth the statutory scheme for judicial review of decisions of the Patent and Trademark Office. Section 141 provides, in pertinent part:

An applicant dissatisfied with the decision of the Board of Appeals may appeal to the United States Court of Appeals for the Federal Circuit, thereby waiving his right to proceed under section 145 of this title ....

35 U.S.C.A. § 141 (West Supp.1984) (emphasis added). Section 145, entitled “Civil action to obtain patent”, provides:

An applicant dissatisfied with the decision of the Board of Appeals may unless appeal has been taken to the United States Court of Appeals for the Federal Circuit, have remedy by civil action against the Commissioner in the United States District Court for the District of Columbia____

35 U.S.C.A. § 145 (West Supp.1984) (emphasis added). The availability of administrative review is established by Section 134, which provides:

An applicant for a patent, any of whose claims has been twice rejected, may appeal from the decision of the primary examiner to the Board of Appeals, having once paid the fee for such appeal.

35 U.S.C.A. § 134 (West 1954).

Thus, for the patent applicant seeking an order compelling issuance of a patent, the statutory scheme clearly contemplates administrative review by the Board of Appeals followed by judicial review in either the Federal Circuit Court of Appeals or the U.S. District Court for the District of Columbia. Ellis-Foster Co. v. Union Carbide Corp., 179 F.Supp. 177, 178-79 (D.C.N.J.1959), rev’d on other grounds, 284 F.2d 917 (3d Cir.1960), cert. denied, 365 U.S. 813, 81 S.Ct. 693, 5 L.Ed.2d 692 (1961): The uncontroverted record establishes that Plaintiff has not pursued his administrative remedy. Moreover, even if he had, jurisdiction would not be proper in this Court. Paley v. Wolk, 262 F.Supp. 640, 642 (D.C. Ill.1965), cert. denied, 386 U.S. 963, 87 S.Ct. 1031, 18 L.Ed.2d 112 (1967).

Accordingly, this Court is of the opinion that it lacks subject matter jurisdiction over Plaintiffs claim. Defendant’s Motion should be, and it is hereby, GRANTED. Plaintiff’s Complaint is hereby DISMISSED without prejudice to refiling in the appropriate forum at the appropriate time.

SO ORDERED.


source: Caselaw Access Project

author: ROY, District Judge.

license: Public Domain

text:
    Wanda PHILLIPS, Plaintiff, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Defendant.
    No. LR-C-83-569.
    United States District Court, E.D. Arkansas, W.D.
    July 13, 1984.
    Philip E. Kaplan, Karen Arndt, Little Rock, Ark., for plaintiff.

      Tara Levy, Youngdahl & Larrison, Little Rock, Ark., for defendant.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

ROY, District Judge.

FINDINGS OF FACT

1. Plaintiff Wanda Phillips is a white female citizen of the United States and a resident of McNeil, Columbia County, Arkansas.

2. Defendant United Brotherhood of Carpenters and Joiners of America, AFL-CIO (“UBC”), is a labor union within the meaning of 29 U.S.C. § 101, et seq., and an employer within the meaning of 42 U.S.C. § 2000e(b).

3. Plaintiff filed a timely charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC) on November 16, 1982, within the statutory one hundred eighty (180) days of her termination, and she brought this lawsuit on July 1, 1983, within the statutory ninety (90) days from receipt of the Notice of Right to Sue from the EEOC.

4. Plaintiff began her employment with the defendant on January 4, 1981, as an organizer. She was assigned to the Southern States Organizing Office in Atlanta, Georgia, to concentrate on union organizing campaigns in Arkansas.

5. During her employment with the-defendant, plaintiff was the only female union organizer on the Southern States Organizing Office staff, until January, 1982, when Alice Beck was hired. Defendant had a 70,000 membership loss between 1981 and 1982.

6. Plaintiff had done organizing work for the UBC since mid-1979, when she was involved in organizing employees of the Can-Tex plant in Magnolia, Arkansas, after she was terminated from that plant for union activity. Although the organizing work plaintiff performed from mid-1979 to 1981 consisted of voluntary activities undertaken prior to her employment with defendant, she was reimbursed for her expenses in assisting the defendant, from special vouchers filed through the UBC Southern States. Plaintiff testified that she received $50.00 per week and twenty cents on the mile. During this time, plaintiff assisted Ed Fortson, a white male and a UBC organizer in the Southern States region, on several campaigns in Arkansas.

7. After being hired onto the UBC payroll in January, 1981, plaintiff spoke to then Director of the Southern States Office, W.J. Smith, regarding the terms of her employment with the UBC. James A. Parker, Director of Organization for the General President, subsequently confirmed in a letter dated January 8, 1981, that she would be paid from the Southern States’ Temporary Organizers’ Revolving Fund, and would be carried on a probationary status for a period of one year, “during which time you will have an opportunity to see if the work is satisfactory to you and we will have an opportunity to assess your progress and development as an Organizer-Representative.” Mr. J.B. Smith and plaintiff subsequently agreed that plaintiff would be paid $375.00 a week and $50.00 a day per diem and $10.00 a day for miscellaneous expenses.

8. During the course of her employment, plaintiff participated in two successful organizing campaigns which resulted in successful NLRB elections; one at Falcon Products, Inc., in Lewisville, Arkansas, and the other at Klipsch Associates, Inc., in Hope, Arkansas. Plaintiff had also worked on two successful union campaigns prior to going on to the Revolving Fund payroll in Monticello, Arkansas, at MonArk Boat Company, and at Williamette Industries in Emerson, Arkansas. Because Ed Fortson was gone from the Williamette campaign much of the time, there was a period when plaintiff was working the campaign only with the assistance of a fired employee.

9. In January, 1981, plaintiff was assigned to the International Paper campaign in Gurdon, Arkansas, and was ostensibly placed in charge of that campaign. The campaign formally ended in October, 1984, without an election as a direct result of large economic layoffs at the plant. W.J. Smith, Director of the Southern States Office, observed plaintiff for one week at the Gurdon plant during June, 1981, and praised her performance on that campaign. Plaintiff received praise on this campaign as late as January, 1982. This favorable comment was confirmed in Earl Hamilton’s letter recommending that plaintiff be placed on permanent staff.

10. During her assignment to the International Paper campaign, plaintiff was also assigned to continue her work at Falcon Products and Klipsch, where she assisted representative Ed Fortson. The International Paper campaign had been in progress when plaintiff was assigned there, and four previously assigned representatives in prior years had been unsuccessful in bringing that campaign to an election. Other than the International Paper assignment, Earl Hamilton gave the plaintiff all of her assignments.

11. Plaintiff testified that during her employment, Earl Hamilton asked her if she would fool around, and asked her if anyone had told her she had “a cute butt.” She also testified that he was always making sexual jokes about different things.

12. On February 8, 1981, UBC General President William Konyha appointed Earl Hamilton Acting Director of the Southern States Organizing Office, effective February 23, 1981.

13. In June, 1981, defendant hired Paul Pinkard, a white male, as an organizer assigned to the Southern States region, to work on organizing campaigns in Arkansas and surrounding southern states along with Ed Fortson and plaintiff.

14. Plaintiff was assigned to travel to Neosha, Missouri, while she was working on the Color Tile campaign in Melbourne, Arkansas. She was told to go and work on the Lazy-Boy campaign with others, to help them out. However, when she arrived, she was asked to go to a picnic the company was having to “go and see what you can find out, see if there’s any kind of company things that you can come back and tell us, if they are hiding anything.” Plaintiff went to the picnic with another gentleman designated by Jake Stewart. The gentleman was a member of the in plant committee. When the gentleman plaintiff accompanied to the picnic became drunk, plaintiff rode back with some other people and was thereafter told by Jake Stewart that “We’re through with you.” Although defendant denies plaintiff was sent there only for a date, the facts clearly indicate that the assignment turned out to be just that.

15. On January 8, 1982, one year after plaintiff’s hire, Regional Director Hamilton wrote to James Parker recommending that plaintiff be assigned to the UBC staff as a regular staff member. In the letter, Hamilton continues to adhere to what he characterizes as an outstanding reference. Furthermore, at a convention in Chicago, attended by plaintiff, Fortson, and Hamilton, Hamilton told Ed Fortson and plaintiff that they were doing real good work and had several wins. At a training seminar held in Houston in January, 1982, Hamilton told plaintiff she was “super-doing a good job.” When Hamilton was asked by plaintiff why he had put the “Fame” campaign in Paul Pinkard’s name instead of plaintiff’s name, Hamilton told plaintiff she didn’t have anything to worry about — “you’re a woman.”

16. Although there is conflicting evidence as to what plaintiff was told when her probationary status was extended in the spring of 1982, the Court finds that the defendant’s account cannot be credited. Defendant contends that plaintiff was told that her probation was extended to allow her an additional opportunity to demonstrate her ability to independently develop a campaign to a successful conclusion. Plaintiff contends, which is supported by testimony of Ed Fortson who was present during some of the conversations, that she was never given a negative appraisal, or was advised that her work performance was inadequate, but was merely told it was due to the economy. There is no dispute as to the fact that nothing other than a glowing letter of recommendation exists with respect to a written evaluation of plaintiff’s performance. The Court accepts the testimony of plaintiff and Ed Fortson.

17. During the course of her employment, plaintiff was transferred from one organizing assignment to the next in rapid succession without adequate time to devote to any of the organizing campaigns. During 1981, plaintiff was involved in two out of six successful elections. According to Earl Hamilton, there were some representatives who never got to an election. During 1982, although plaintiff was assigned the Mid-South Cabinet campaign in Conway on her own, she was unsuccessful. However, in that instance, the people plaintiff recruited to help her were fired. Even the defendant acknowledges that when this happens, reaching a successful election becomes difficult. Another campaign plaintiff was assigned to on her own was Mid-South Manufacturing in Marked Tree. However, when plaintiff was directed to leave the campaign to assist in others, there was no one there to continue the campaign, unlike campaigns conducted by Ed Fortson. At no time did plaintiff have the option of exercising her own initiative to pick a place to go or how long to stay. At no time did Earl Hamilton tell plaintiff she was doing something wrong by not going back to Conway to capitalize on the charges that were filed.

18. Plaintiff was notified by letter on June 1, 1982, that she was to be terminated effective June 26, 1982, due to a lack of work. Plaintiff had spoken to Director Hamilton on the telephone and had learned of her termination prior to receipt of the letter. Director Hamilton told plaintiff that economic conditions forced them to layoff plaintiff. After plaintiffs termination, she never received any written explanation of the basis for her discharge, although she subsequently made inquiries. The plaintiff’s performance in 1982, after the letter of recommendation was written, did not differ greatly from her performance in 1981, which resulted in a letter as well as words of praise. When plaintiff inquired whether she might be recalled in the future, Director Hamilton told her he did not know. The Court is aware that the defendant testified that there is no probationary organizer who failed to organize a member during 1981 who remains on the staff. However, the court finds that plaintiff was never given any reason other than that the economic conditions in the region for her layoff, and that the defendant has supplied shifting reasons for the plaintiff’s layoff.

19. Paul Pinkard, who had been hired after plaintiff to work in the same region, and who had been classified as a “temporary” organizer, was retained after plaintiff’s termination and he continued to work in Arkansas until he was transferred to Tennessee in March, 1982.

20. Earl Hamilton, the Southern Regional Director, obtained knowledge of the organizer’s activities through the weekly reports, visits to campaign sites and telephone conversations with the organizer.

21. Although no written evidence was presented setting out the way an organizer can generate members, James Parker testified that the primary method an organizer can generate members would be through the process of organizing a unit of employees and filing a petition and obtaining certification, which would eventually culminate into membership if the election were successful. Even the defendant indicated that probationary employees need to be told if they are doing something right or wrong.

22. Although Earl Hamilton testified that he did not include a negative appraisal of plaintiff’s organizing ability in her termination letter in order to facilitate her ability to obtain unemployment benefits and subsequent employment, the Court does not find this testimony to be credible in light of the facts and circumstances and contradictory testimony presented in the case.

23. During the relevant time period in which defendant’s actions occurred, defendant employed only two female organizers and 39 male organizers on its staff.

CONCLUSIONS OF LAW

1. The Court has jurisdiction of the subject matter and the parties to this action pursuant to 42 U.S.C. § 2000e, et seq.

2. In a disparate treatment case, “proof of discriminatory motive is critical.” Kirby v. Colony Furniture, 613 F.2d 696, 702 (8th Cir.1980). However, willfulness on the part of the employer is not a prerequisite. Kober v. Westinghouse Electric Corp., 480 F.2d 240 (3rd Cir.1973). In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 1854, n. 15, 52 L.Ed.2d 396 (1977) the Supreme Court states:

“Disparate treatment” such as is alleged in the present case is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although in some situations it can be inferred from the mere fact of differences in treatment ... Undoubtedly, disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII.

In the present case, the plaintiff has clearly established a prima facie case of sex discrimination. In order to establish a prima facie case, plaintiff must establish that: (1) she belonged to the protected group of employees: (2) she was capable of performing the job; (3) she was discharged from the job. Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th Cir.1981). Plaintiff has met her burden under the above standard. She is a member of a protected class, e.g. females; the evidence shows that she was capable of performing the job; and, in spite of her past commendable performance, she was terminated, for “lack of work”, and defendant continued to employ a “temporary” organizer, with less experience than plaintiff, i.e. Paul Pinkard, and placed him on the permanent payroll. Although defendant states that plaintiff did not present any evidence that defendant failed to terminate a male organizer whose performance produced the same lack of results, the plaintiff did provide sufficient evidence indicating that her treatment with respect to her assignments, did not enable her to successfully initiate and conduct a campaign. The Court cannot speculate as to whether those male organizers who were terminated were treated the same as plaintiff. However, the Court does conclude that the evidence presented by the plaintiff indicates that plaintiff was not provided the same opportunities to conduct successful campaigns as was Paul Pinkard, and this was not sufficiently rebutted by the defendant.

Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to rebut it by articulating some legitimate, non-discriminatory reason for the discharge. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Articulating some legitimate, non-discriminatory business reason only requires an employer to present admissible evidence sufficient to raise a genuine factual issue as to whether plaintiff was discriminated against. Johnson v. Bunny Bread Co., supra, 646 F.2d at 1254. The defendant argues that plaintiff did not have a successful campaign which she handled on her own. The burden then shifts to the plaintiff to show that the proffered reason is pretextual and not the true reason for the decision. Burdine, supra, 450 U.S. at 252-56, 101 S.Ct. at 1093-95. The Court finds that the reasons asserted by the defendant for terminating plaintiff are pretextual. The Eighth Circuit has held that when an evaluation is in any degree subjective and when the evaluators themselves are not members of the protected minority, the legitimacy and non-discriminatory basis or the articulated reasons for the decision should be subject to particularly close scrutiny by the trial judge. Paxton v. Union National Bank, 688 F.2d 552, 563, n. 15 (8th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983).

The record in the instant case reflects that the defendant altered its reasons for terminating plaintiff. Both reasons were patently pretextual. Plaintiff’s letter of termination cites economic conditions as the reason for her layoff. There was no reference, direct or indirect, to her inability to perform her job as a basis for termination, either in writing or by oral communication to the plaintiff.

The chief defense asserted by the defendant at trial was plaintiffs failure to initiate and successfully conduct a campaign on her own. However, during the trial, defendant again shifted to a “depressed economy” as the basis for its termination of plaintiff. Furthermore, plaintiff worked on those campaigns which she was assigned to, and was not able to independently initiate a campaign on her own.

The evidence advanced by the defendant in support of either position is deficient and supports a finding of pretext. Plaintiff had been praised by Director Hamilton for her aggressive, enthusiastic approach on January 8, 1982. Any inadequacies in her performance were never documented in plaintiffs’ file. Plaintiff was never advised of a need to improve her performance prior to her termination.

As stated by the Supreme Court, the plaintiff may succeed in proving intentional discrimination by “either directly persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.

Gardner v. Buffalo Rock Co., 527 F.Supp. 505, 509 (N.D.Ala.1981), citing Burdine, supra, 450 U.S. at 256, 101 S.Ct. at 1095.

The defendant has failed to rebut successfully the presumption of unlawful discrimination by articulating a legitimate nondiscriminatory reason for its discharge of the plaintiff.

Based upon the foregoing, the Court hereby awards back pay and reinstatement, plus attorney’s fees and costs. Plaintiff’s attorneys shall submit their fee request to the defendant’s attorneys within fourteen days of receipt of this Order. The Court encourages the attorneys to reach an agreement on the amount of the fees and costs. If an agreement cannot be reached, then plaintiff’s attorneys shall submit their request to the Court by affidavit no later-than August 1, 1984, and the defendant may respond within seven days thereafter.


author: CHRISTIAN, Chief Judge.

text:
    OCEAN BARGE TRANSPORT CO., Plaintiff, v. HESS OIL VIRGIN ISLANDS CORP., Defendant/Third-Party Plaintiff, v. MINTEC/INTERNATIONAL, A DIVISION OF BARBER-GREENE COMPANY, Third-Party Defendant.
    Civ. No. 80-18.
    District Court, Virgin Islands, D. St. Croix.
    Aug. 8, 1984.

      Robert H. Ruskin, Christiansted, St. Croix, V.I., for plaintiff.
    John E. Lenahan, Bryant, Lenahan & Eltman, Christiansted, St. Croix, V.I., for defendant/third-party plaintiff.
    James E. Hymes, Charlotte Amalie, St. Thomas, V.I., for third-party defendant.
   MEMORANDUM

CHRISTIAN, Chief Judge.

The question here presented is whether this Court may make an award of attorney’s fees to the prevailing party in this admiralty action pursuant to the provisions of Title 5 V.I.C. § 541(a)(6).

Under the provisions of the section of the Virgin Islands Code referred to above costs which may be allowed in a civil action include attorney’s fees. Plaintiff Ocean Barge Transport Co. prevailed against defendant Mintec/International. Also prevailing in the law suit was Hess Oil Virgin Islands Corp. (hereinafter Hess) as Third-Party Plaintiff against Third-Party Defendant Mintec/International (hereinafter Mintec).

Mintec contends that the court lacks authority to award attorney’s fees in an admiralty action. The prevailing parties on the other hand, relying on the peculiar status of the District Court of the Virgin Islands, argue that this court may refer to the laws of the Virgin Islands when defining costs, albeit the action before the court is a purely federal matter. The complicating factor in addressing the instant issue stems from the fact that the District Court of the Virgin Islands is not an Article III District Court of the United States but rather a creation of the Congress of the United States pursuant to its Article IV powers. Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1057 (3d Cir.1982). And, as ordained by the Congress this Court has not only jurisdiction in admiralty and in all causes arising under the Constitution and laws of the United States, but it is also the court of general original jurisdiction of the Territory of the Virgin Islands. Revised Organic Act, 48 U.S.C. § 1612 (1984 Supp.).

Rule 54(d) of the Federal Rules of Civil Procedure, made applicable to our Court by the Revised Organic Act, 48 U.S.C. § 1615 (1984 Supp.) empowers this Court to award costs to a prevailing party. However, costs as generally allowed under Rule 54(d) do not include attorney’s fees. It would appear therefore, that whether we may rely on 5 V.I.C. § 541 in defining costs must depend on the nature of the case before the Court.

Under what is commonly referred to as the “American Rule,” district courts of the United States, when the basis of their jurisdiction is other than diversity of citizenship, may not normally grant attorney’s fees absent a statute or an enforceable contract providing therefor. Alyeska Pipe Line Service Co. v. Wilderness Society, 421 U.S. 240, 955 S.Ct. 1612, 44 L.Ed.2d 141 (1975). When federal courts sit in diversity cases, they should look to the law of the state in which they sit for guidance regarding attorney’s fee awards, providing that the state law does not run counter to a federal statute or rule of court. Id. 421 U.S. at 259 n. 31, 95 S.Ct. at 1622 n. 31, quoting 6 J. Moore, Federal Practice 11 54.77[2], pp. 1712-1713 (2d ed. 1974); see Cohen v. Beneficial Loan Corp., 337 U.S. 541, 555-557, 69 S.Ct. 1221, 1229-1231, 93 L.Ed. 1528 (1949). By the same token,

a federal territorial court should similarly apply territorial law [in a non-federal case]. However, where the plaintiff has based his action on federal law he may not invoke a state or territorial law to obtain attorney’s fees.

Id, at pp. 1713-1714 (1983-84 Supp.).

For the foregoing proposition, Moore cites Sanabria v. International Longshoremen’s Ass’n Local 1575, 597 F.2d 312 (1st Cir.1979), in which the Court, in considering the applicability of Puerto Rico’s attorney’s fees statute to a federal question case, while agreeing that the statute was applicable in a diversity case, went on to say, “[b]ut we have never extended the allowance of such costs arising under federal law.” 597 F.2d at 313-314. See also Gradmann & Holler GMBH v. Continental Lines, 679 F.2d 272 (1st Cir.1982) (local statute on attorney’s fees not applicable in admiralty action), and cases cited therein.

While this Court, because it is a court of general original jurisdiction, has no diversity jurisdiction, we believe the principles discussed above apply with equal force here. Henceforth, therefore, we will apply 5 V.I.C. § 541 to cases which arise under the Court’s general original jurisdiction only, and not in matters grounded in federal law.

Admiralty is a body of law which is peculiarly federal in nature. Gilmore and Black, The Law of Admiralty, § 1-9 (2d ed. 1975); U.S. Const. Art. III, § 2; 28 U.S.C. 1333. Consequently, in considering the pending requests for attorneys’ fees in this case, we must look to the federal law of admiralty to determine if fees may be awarded.

With respect to the matter of award of attorney’s fees in admiralty cases, the so called “American Rule” referred to above, generally prevails. Noritake v. M/V Hellenic Champion, 627 F.2d 724, 730 (5th Cir.1980); Sandoval v. Mitsui Sempaku K.K. Tokyo, 460 F.2d 1163, 1171 (5th Cir.1972): American Union Transport Co. v. Aguadillo Terminal, Inc., 302 F.2d 394, 396 (1st Cir.1962). See also Walker v. The Tug Diane, 9 V.I. 285, 350 F.Supp. 1388 (D.V.I.1972). There are, however, well established exceptions to the general rule above stated. Under one such exception, attorney’s fees may be awarded in an admiralty action in the discretion of the court where it is deemed that the non-prevailing party has acted in bad faith. Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). Such, however, is not the case here. There is an exception, however, which does have application to the instant case. Under this exception, where an indemnitee has been required to defend a law suit, such indemnitee may recover attorney's fees from his indemnitor. A. C. Israel Commodity Co. v. American-West African Line, Inc., 397 F.2d 170 (3rd Cir.1968); Cotten v. Two “R” Drilling Co., 508 F.2d 669, 671 (5th Cir.1975).

The contract for the sale of the sulfur loading device which malfunctioned causing damage and thus giving rise to this law suit was made up of various memoranda including printed forms. One such printed standard Hess form contained a clause under which Mintec was obligated to indemnify Hess for “all claims, demands, judgments and liabilities for ... property damage arising out of or in any way connected with the performance by Mintec, its agents, contractors or employees hereunder.” A memorandum from Mintec to Hess, subsequently reaffirmed by letter acknowledging Hess’ purchase order, altered the above quoted printed standard indemnity clause. Mintec predicated its acceptance of the purchase order on the following clarification, inter alia: “Mintec/International has no responsibility for consequential damages such as loss of profits, downtime, etc., howsoever caused.” Under a standard canon of contract construction of wide acceptance,.a typewritten term included in a contract prevails over a printed term in a standard form. Restatement of Contracts (Second), section 203, comment f. We, therefore, construe the contract as a whole between Hess and Mintec as providing that Mintec would indemnify Hess for a claim such as that made herein by Ocean Barge, to the extent of property damage only, but not to include any award for demurrage. The defense of this law suit had been tendered by Hess to Mintec on the basis of the indemnity clause of their contract construed above. The tender, however, was refused by Mintec. Thus, under the “indemnification exception” to the general rule in admiralty, that attorney’s fees are not awarded to a prevailing party, an award of costs to Hess may include, in this situation, attorney’s fees for defending that portion of plaintiff’s action which demanded recovery for property damage to the Barge Pavel. Hess sought a fee award in the total amount of $10,030. This Court concludes that an award of attorney’s fees of $4,500 is reasonable under the “indemnification exception” as hereinabove explained.

Plaintiff Ocean Barge Transport Co., however, will not meet with such good fortune. None of its claims against Mintec fall within any of the exceptions to the general admiralty rule. The plaintiff’s application for attorney’s fees must therefore be denied.

      . There are some limited exceptions to this rule. See Alyeska, 421 U.S. at 257-259, 95 S.Ct. at 1621-1622. See discussion, infra, at p. 48.


author: DAUGHERTY, District Judge.

text:
    James ALDERSON, Plaintiff, v. POSTMASTER GENERAL OF the UNITED STATES, Defendant.
    No. CIV-81-1454-D.
    United States District Court, W.D. Oklahoma.
    Aug. 21, 1984.
    Jim Grennan, Oklahoma City, Okl., for plaintiff.

      William S. Price and Eleanor Thompson, Oklahoma City, Okl., William H. Brown, Jr., Memphis Tenn., Kevin B. Rachel, U.S. Postal Service, Washington, D.C., James D. Burroughs, U.S. Postal Service, New York City, for defendant.
   OPINION

DAUGHERTY, District Judge.

This matter was tried to the Court sitting without a jury on July 19-20, 1984. The Court has weighed the evidence and, upon considering the contentions of the parties, including post-trial letters from Counsel, the Court finds and concludes as follows:

Plaintiff brings this action for reinstatement and back pay. He alleges that the Defendant discriminated against him by reason of a handicap or a perceived handicap, in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. (the Act).

The operative prohibitory section of the Act, 29 U.S.C. § 794, provides in pertinent part:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this Title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive Agency or by the United States Postal Service, [emphasis added]

The term “handicapped individual” is defined in 29 U.S.C. § 706(7)(B) as:

“any person who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.

Pursuant to statutory authority, the Equal Employment Opportunity Commission issued regulations interpreting the Act, including a definition of the term “major life activities” as including “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1613.-702(b), (c).

The Plaintiff contends that at the time he was fired by the Defendant Postal Service, he was a “handicapped individual” within the meaning of the statute. Specifically, the Plaintiff has variously contended that he was fired (1) because he had an actual, substantially limiting physical impairment and (2) because, while he had no such actual impairment, the Defendant regarded him as having such an impairment. The Plaintiff’s pleadings herein clearly allege the “actual impairment” contention, but the pretrial order clearly indicates that the “perceived impairment” contention (factual issue (l)(c) in the pretrial order) is also in issue. Hence, although defense counsel expressed surprise in closing arguments that the “perceived impairment” contention was in issue, the Court must deal with that issue under the above circumstances. Further, although Plaintiff's counsel seemed in closing arguments to deemphasize, if not abandon the “actual impairment” contention, the Court will treat it as still being in issue, as it was clearly pleaded, there was evidence to support it, and the Plaintiff in closing arguments continued to assert that he was entitled to “reasonable accommodation” on account of it. Plaintiff’s “reasonable accommodation” contention, which is grounded on the regulation 29 C.F.R. § 1613.704, would seem to assume that he was fired because of an actual, rather than a perceived, handicap, but the Plaintiff, in his February 21, 1984 response to Defendant’s Motion for Summary Judgment (at 4-5), has argued that he was entitled to accommodation if he was either actually or perceivedly handicapped.

Plaintiff was hired by the Postal Service as a City letter carrier on a part-time flexible schedule basis and subject to a 90-day probationary period, beginning June 28, 1980. Under the applicable collective bargaining agreement, such a probationary employee may be separated at any time without access to the grievance-arbitration procedure. Plaintiff was assigned to the Del City Station under the supervision of Carl A. Weckenmann. Plaintiff received training from a nonsupervisory letter carrier, William Richter. Messrs. Weckenmann and Richter both testified very credibly at trial regarding the job performance of the Plaintiff. The essential elements of the City letter carrier job were the collection, “casing,” and delivery of the mail. Collection and delivery are done on routes, while “casing” is done at a postal service center. “Casing” consists of picking up magazines and letters from a long table and reaching up with the individual items and putting them in the proper slots in the case. The slots are organized in the order in which they are to be delivered on the delivery route. Ordinarily, the casing and delivery functions are joined so that a carrier spends per working day approximately two and one-half hours casing the mail in order to put it in the order of delivery, and then the carrier spends approximately five-and-a-half hours delivering the mail. The casing function requires standing in front of the case, picking up the mail, moving back and forth and reaching to the slots in order to sort or arrange the mail. It also requires, in order to be efficient, a fairly aggressive effort to work rapidly, and the Postal Service considers the standard rate of casing to be 18 pieces of first class mail per minute or 8 magazines per minute. An experienced letter carrier is expected to reach this speed on a case which is new to him within two weeks, but an inexperienced carrier is expected to achieve that speed a little more slowly. While a new carrier is expected to be slower than an experienced carrier would be on a new ease, the Plaintiff was one of the slowest new men ever observed according to testimony by Mr. Richter and Mr. Weckenmann. Both Mr. Richter and Mr. Weckenmann gave Plaintiff express instructions as to how to speed his casing, and the Plaintiff ignored and refused to follow these instructions, including an instruction from Mr. Richter that he should pick up and hold the mail in his left hand and slot it with his right hand, whereas, the Plaintiff insisted on picking up the mail with both hands. The Plaintiff also did not try hard to do his job but withheld effort. When Mr. Richter was showing him how to case mail, he held back to let another do the work while he watched rather than plunge in and show that he could do the job. Mr. Richter told the Plaintiff during this training that he would have to case mail faster.

Mr. Richter also trained the Plaintiff in delivering the mail. This consisted of taking him on a “park and loop” route, in which the carrier drives to a location with cased mail in a Jeep, parks the vehicle, and carries part of the mail on a walking route that begins at the parking spot and returns thereto. The typical “park and loop” route consists of 600-800 houses and requires delivering approximately a 100 or more houses per hour. Mr. Weckenmann, as part of his expressly required duties, observes his carriers on their routes in order to check their speed of progress, and on the Plaintiffs last day, July 16, 1980, he observed the Plaintiff at 12:15 p.m. and 4 p.m. at points on Plaintiff’s route which indicated that he had delivered only approximately 100 houses in a time span when he should have delivered several times that number. Prior to Mr. Weckenmann’s thus checking on Plaintiff’s progress, Mr. Richter remarked to Mr. Weckenmann that the Plaintiff “would never make it.”

The accident involved herein occurred at approximately 4 p.m. on July 16, 1980. Plaintiff was walking his route when he was accosted by a large dog. The Plaintiff had been given cards to inform him where the vicious dogs were, but there was no credible evidence as to whether he had a card on that dog on that day. Plaintiff was also given as a matter of course a can of dog spray or “mace.” He had been instructed that when accosted by a hostile dog, he should put his mail bag between him and the dog and fend it off rather than allow the dog to chase him. This was a standard safety procedure, and the Plaintiff violated it. He failed to put the bag between him and the dog and allowed the dog to chase him. He fell over something, which he testified at trial was a hedge. The fall twisted his knee and thereby injured it. He walked a couple more blocks on his route and returned to the station complaining of his knee and gave the remainder of his mail to other carriers to complete his route.

The following day, the carriers who delivered that route picked up dozens of misdelivered pieces of mail, enough to make a “handful.” This was a very excessive number of misdelivered pieces, even for a new man.

During his orientation, the Plaintiff was informed that a carrier in his position was expected to deliver the mail promptly in all kinds of weather conditions and that the job was typically arduous, as it involved hefting and walking with bags full of mail. The Plaintiff understood and signed a statement to this effect and accepted the part-time flexible-schedule (PTF) position. The PTF position meant that he was on call at the request of his supervisor, but after working a day or two, the Plaintiff refused a request to work, asserting that he was sick with a sore throat. A day or two later during his training time, Mr. Weckenmann talked him into working even though he again claimed to have a sore throat. A sore throat is considered by the Postal Service to be a minor ailment that does not interfere with mail delivery or the performance of the carrier’s duty. The Plaintiff testified that the outside temperature in the afternoon about this time was at the 106° Fahrenheit level, but this was not a sufficient excuse for lack of full performance by the carrier, in the view of the Postal Service.

Following his injury, the Plaintiff promptly filed a Federal Employees Worker’s Compensation claim and went to a Dr. McCown, a Board Certified orthopedist. He first saw Dr. McCown on July 17, 1980. Dr. McCown noted that he claimed never to have had previous problems with his right knee, that the collateral ligaments were stable, and that x-rays showed a little squaring off of the medial femoral condyle which would suggest possibly an old previous problem, but the Plaintiff denied to Dr. McCown that he had such history. Dr. McCown’s impression was of a possibly damaged meniscus of the right knee. Dr. McCown treated him with a splint and gentle exercise and discouraged returning to work until reexamination in one week. At the second examination, Dr. McCown noted that the knee was better and encouraged Plaintiff to do his exercises, to get rid of his knee brace, and to be less fearful. At the third and final appointment, Dr. McCown noted that the knee continued to improve and had full motion, even though the Plaintiff was not doing his strengthening exercises as instructed. Dr. McCown found loose ligaments on both knees but no meniscus problem. He returned the Plaintiff “to full work duty activities without restrictions.” He offered to do an additional test, which was refused, and indicated there appeared to be no permanent impairment but that the case should remain open.

The Plaintiff testified that Dr. McCown released him to return to work because he, the Plaintiff, requested such release. The Plaintiff also testified that he promptly called Mr. Weckenmann and informed him that he could return to work and was then told that he was being terminated. The Plaintiff identifies this conversation as being on August the 4th or 5th, while Mr. Weckenmann places a similar conversation on different dates, but this discrepancy is immaterial. It is however significant that from the date of injury to August the 4th, the Plaintiff continued to receive full pay under the Federal Worker’s Compensation Program, which indicates, in the Court’s opinion, that the Plaintiff considered his injury to be sufficiently healed that he could return to the physically demanding work of the mailman on foot.

Following the Plaintiff’s July 17, 1980 examination by Dr. McCown, Dr. McCown sent a copy of his examination notes to the office of Workers Compensation in the Central Oklahoma City Post Office, and after his August 4, 1980 appointment, Dr. McCown sent a copy of his notes from all three sessions, which was received in the compensation office on August 7th. In the meantime, Mr. Weckenmann reported the Plaintiff’s injury on July 17, 1980 (Plaintiff’s Exhibit 2), made a routine “30 day” evaluation report on July 29, 1980 (Plaintiff’s Exhibit 5), and made a “45 day” evaluation report (Plaintiff’s Exhibit 6) on August 2, 1980 upon request for a special (i.e. 45 day) report from the Central Oklahoma City office. Mr. Weckenmann’s recommendations to terminate the Plaintiff were approved by his superiors, and Mr. Dudley, the Oklahoma City Postmaster, sent a termination notice dated August 14, 1980 to the Plaintiff, stating that his termination would be effective as of August 22, 1980. Not until August 19, 1980 did the Plaintiff go to Dr. Harsha for what Dr. Harsha terms “another opinion.” None of Dr. Harsha's reports were seen by Postal Service employees prior to the August 14 decision by Mr. Dudley. Dr. McCown’s findings were that the Plaintiff had apparently sustained a minor injury on July 16 but was fully recovered as of August 4th and could return to work as of that date without restrictions and having no disability. Dr. McCown’s findings do not at all support the assertion that the Plaintiff was handicapped at any time, and there is no evidence that the Postal Service interpreted his findings as indicating a handicap. Although Dr. Harsha repeatedly found that the July 16th affair with the dog caused the Plaintiff to be unable to do letter carrier duties, which findings Dr. Harsha always reported promptly to the Worker’s Compensation Office, the Court is satisfied from the findings of Dr. McCown and the subsequent examinations by Dr. Bell and Dr. English that the Plaintiff was never handicapped in any sense prior to the termination decision of August 14, 1980. Nor did Postal Service employees infer from doctor reports that the Plaintiff was handicapped prior to the termination decision.

The Court also finds that the Postal Service management never believed that the Plaintiff was handicapped in any sense of the word. The Plaintiff has made much of the fact that the first written criticism of the Plaintiff which is in the record is a comment by Mr. Weckenmann on a routing slip attached to his July 17, 1980 report of the Plaintiff’s injury (Plaintiff's Exhibit 2). But, in the Court’s opinion, the main thrust of this comment is to suggest that the Plaintiff was not really injured but was malingering. Mr. Weckenmann says therein that the Plaintiff “states he was injured,” that in nearly four hours on July 16, 1980 he observed the Plaintiff to have delivered approximately 100 residences “which normally takes 1 hour,” and then goes on to say:

I believe this injury should be controverted. He has only been employed at the Post Office approx 2 weeks. During this time he has stated that he had a sore throat on three different occasions. In my opinion this employee will never become satisfactory and should be terminated at the earliest possible.

Rather than suggest that Mr. Weckenmann thought that the Plaintiff was handicapped, this suggests that he thought the Plaintiff was an uninjured malingerer who did not like working in the very hot weather. Given the fact that Mr. Weckenmann was aware of the Worker’s Compensation Program, he was probably aware that any genuine injury which occurred in the course of employment was compensable, and he evidently thought that this injury either was not real or was not incurred while working. The Plaintiff has argued that Mr. Weckenmann’s notation on the July 29 and August 2 evaluations (Plaintiff’s Exhibits 5 and 6) that, in the category of safety, the Plaintiff was unsatisfactory because he was “injured on the job” shows that Mr. Weckenmann’s recommendation of termination was based on his perception that the Plaintiff was handicapped. Such assertion is not a fair inference from the comment, but even if it were fair, it is belied by the narrative explanation from Mr. Weckenmann on the July 29 evaluation, in which he comments that the Plaintiff “did not abide by safety instructions given him in his training.” Considering this evidence and all the other evidence, the Court finds that neither Mr. Weckenmann nor other Postal Service management perceived the Plaintiff at any time to be handicapped in any sense of that term and that his termination was not, even in part, because of or by reason of a handicap or a perceived handicap. The' sole reason for his termination was their well-founded perception that the Plaintiff was performing poorly in his job and had an attitude which indicated that he would probably never perform well.

Based on these findings and the statutory and regulatory provisions quoted above, the Court concludes that the Plaintiff was not “handicapped” within the meaning of the Act. The Court further concludes that the Plaintiff was fired because of poor job performance and not because of any actual or perceived handicap and therefore is not entitled to the relief he seeks in this action.

REASONABLE ACCOMMODATION

The findings and conclusions stated above moot the question of reasonable accommodation. As Plaintiff is neither handicapped nor perceived to be handicapped, he is not entitled to such accommodation. However, assuming that the Plaintiff had the actual or perceived handicap at the time he was fired, and further assuming that he was fired solely by reason of such handicap, the Court concludes that he would not be entitled to such accommodation.

The first reason for this conclusion is found in 29 U.S.C. § 794, quoted above. A handicapped individual who is “otherwise qualified” may not be discriminated against, but one who is not qualified is not protected thereunder. If the Plaintiff actually had the physical handicap claimed, he would not be able to do the physically arduous work of the City letter carrier. He would not be able to walk the necessary distances over the various terrain encountered carrying satchels full of mail. To do so in such circumstances would endanger his own health and safety, and the job could not be restructured to eliminate such walking and carrying without eliminating its essential features. The Supreme Court has decided that the term “otherwise qualified” in the statute means that the handicapped person must be able to perform all of the job requirements “in spite of” his handicap. Davis v. Southeastern Community College, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979). The Supreme Court expressly rejected the view that the handicapped person was protected by the Act if he was able to meet all the requirements except as to limitations imposed by his handicap. If the Plaintiff in the instant ease were handicapped, as claimed, by reason of having a tendency to be severely strained or dislocated or twisted in the knee, sometimes as often as 20 times per year, as he testified, and requiring from days to months of recuperation for each occurrence, he would not be able to sustain the physical requirements of the City letter carrier position. In fact, it is extremely doubtful whether he could perform the function of casing the mail, which requires standing for two-and-a-half hours per day. The regulations promulgated by the Equal Employment Opportunity Commission are consistent with this conclusion. The term “qualified handicapped person” is defined in 29 C.F.R. § 1613.702(f) to mean:

with respect to employment, a handicapped person who, with or without reasonable accommodation, can perform the essential functions of the position in question without endangering the health and safety of the individual or others

Secondly, Plaintiff’s assertion that he would be entitled to “reasonable accommodation” if the Defendant perceived him to be handicapped even if he was not actually handicapped is not well taken. The requirement that an agency make “reasonable accommodation” is found in the regulations, 29 C.F.R. § 1613.704(a), which provides:

An agency shall make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant on employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program, [emphasis added]

The emphasized phrase in the quoted regulation clearly refers to an actual handicap rather than merely a perceived one. Certainly, it would be incongruous for the Court to find that the Plaintiff was “handicapped” within the meaning of the Act only because his employer regarded him as handicapped if the Court ordered that the Plaintiff was then entitled to some “accommodation.” If the Plaintiff were capable but the employer perceived him as incapable, the Court would simply order the agency to recognize his capability.

Thirdly, even if the Plaintiff had been fired solely because of the claimed handicap, he would not be entitled, as an “accommodation” required by the regulations, to be assigned to a different job. The Court has been cited to no authority indicating such an entitlement. The Plaintiff cites the provision in 29 C.F.R. § 1613.-704(b) that accommodation may include “job restructuring.” But there is nothing in that regulation which requires' assignment to a different job. The cited regulation provides:

Reasonable accommodation may include, but shall not be limited to: (1) Making facilities readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, the provision of readers and interpreters, and other similar actions.

The quoted regulation clearly refers to making the particular job, not another job for which the handicapped person was not hired, accessible to handicapped persons. In fact, the primary relief which the Plaintiff desires to obtain by way of this lawsuit appears to be getting another job within the Postal Service, not reinstatement to the physically demanding job of letter carrier. When his own counsel asked if he were willing to take back his old job, he reluctantly testified that he would try. In contrast, he enthusiastically indicated that he would like to attempt the positions of postal clerk, management, or postal inspector. However, even if Plaintiff were entitled to another job by way of “accommodation,” there was no evidence as to whether he would qualify for such positions. The Plaintiff has argued that a letter from the Worker’s Compensation Office to Dr. McCown indicating that “limited duty” assignments were available to a disabled employee indicated that the Postal Service did accommodate handicapped persons by placing them in “limited duty” or “light duty” positions. The conclusion does not follow, however. The Postal Service provides such assignments to disabled persons in order to reduce its losses while it continues the pay of a person entitled to Worker’s Compensation payments. And, under the contract with the Union, the Postal Service provides “light duty” jobs to certain persons who apply for such duty, but the Plaintiff never applied for such jobs under the Union contract. Moreover, the “limited duty” provisions of the Worker’s Compensation Program do not appear to be a right of the disabled worker, and in any case the instant lawsuit is not based on rights of the Plaintiff under the Worker’s Compensation law or the Union contract. Hence, any such questions are not involved herein.

The Court concludes that the Plaintiff is entitled to no relief. Based on this Opinion, a separate Judgment will be entered by the Court.


author: FITZGERALD, Chief Judge.

text:
    Caralyn S. DEAN, Petitioner, v. UNITED STATES of America, Respondent.
    Civ. No. A 84-237.
    United States District Court, D. Alaska.
    Aug. 30, 1984.

      Caralyn S. Dean, pro se.
   MEMORANDUM AND ORDER

FITZGERALD, Chief Judge.

This court issued an order on August 3, 1984 directing petitioner Caralyn Dean to show cause why this action should not be dismissed for lack of subject matter jurisdiction. Minute Order, August 3, 1984. Dean is petitioning to quash an Internal Revenue Service (IRS) summons directed to her employer from 1980-1983, Providence Hospital, for various employment records relating to her. Petition to Quash, June 20, 1984. Dean has responded to this court’s order to show cause, arguing that this court has subject matter jurisdiction over her action under 26 U.S.C. § 7609, which pertains to I.R.S. summonses directed to “third-party reeordkeepers”. Petitioner’s Response to Order to Show Cause, August 17,1984, p. 1. She argues that because the term “third-party recordkeeper” is defined in 26 U.S.C. § 7609(a)(3) to include “any accountant,” and because the employment records relating to her which I.R.S. is seeking to obtain are “under [the] control” of Providence Hospital’s Accounting Department, § 7609 authorizes her to petition this court to quash the I.R.S. summons and vests this court with subject matter jurisdiction over her action. Id. at 1-2; 26 U.S.C. § 7609(a)(3)(F). I cannot agree.

Not every I.R.S. summons which directly or indirectly requires an accountant to turn over financial records triggers the procedural protections of 26 U.S.C. § 7609. A business or corporation that “retain[s] an accountant for purposes of maintaining its own business records” but which “is not engaged in the business of [performing] accounting [services]” for others does not automatically constitute a third-party recordkeeper under § 7609(a)(3)(F). Nuttleman v. Vossberg, 585 F.Supp. 133, 136 (D.Neb.1984); see also Donaldson v. United States, 400 U.S. 517, 530-531, 91 S.Ct. 534, 542-543, 27 L.Ed.2d 580 (1971). Otherwise every corporation or employer that utilizes the service of accountants would be a third-party record-keeper under the Internal Revenue laws.

Unless an accountant is involved in a direct accountant-client relationship with an individual, he is not considered a third-party recordkeeper vis-a-vis that individual under § 7609. See Schlick v. United States, 586 F.Supp. 433, 434-435 (D.Ill. 1984). Petitioner Dean is plainly not in an accountant-client relationship with the Accounting Department of Providence Hospital. Therefore, Dean cannot claim that the Hospital’s Accounting Department constitutes a third-party recordkeeper under § 7609.

Dean’s claim that she has a right to bring this action under the general terms of Article III of the U.S. Constitution is also without merit. See Petitioner’s Response, p. 3; see generally Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580.

For these reasons, I DISMISS petitioner Dean’s action for lack of subject matter jurisdiction.

ORDERED ACCORDINGLY.

      . It is not clear from the record in this case whether Dean continues to be employed by Providence Hospital.


author: VAN PELT, Senior District Judge.

text:
    LIBERTARIAN PARTY OF NEBRASKA; an unincorporated voluntary association; Daniel Salem, an individual; Barbara Flick, an individual; and Beverley Starkey, an individual, Plaintiffs, v. Allen BEERMANN, Secretary of State of the State of Nebraska; and Paul L. Douglas, Attorney General of the State of Nebraska, Defendants.
    Civ. No. 84-L-451.
    United States District Court, D. Nebraska.
    Aug. 31, 1984.

      Lavern R. Holdeman, Nelson, Morris & Holdeman, Lincoln, Neb., for plaintiffs.
    Terry R. Schaaf, Asst. Atty. Gen., Lincoln, Neb., for defendants.
   OPINION

VAN PELT, Senior District Judge.

The plaintiffs, the Libertarian Party of Nebraska, an unincorporated voluntary association and three individuals to wit: Daniel Salem, Barbara Flick, and Beverley Starkey, all residents of Douglas County, Nebraska, brought this action in the United States District Court for the District of Nebraska against Allen Beermann, Secretary of State, and Paul L. Douglas, Attorney General. The Secretary of State in Nebraska is responsible for the conduct of state elections, including the certification of parties and candidates for a position on the general election ballot. Jurisdiction is claimed under 28 U.S.C. Section 1331(a); 28 U.S.C. Section 1391(b); 28 U.S.C. Sections 1651, 2201, 2202; 42 U.S.C. Sections 1983, 1988.

Plaintiffs sought to enjoin defendants from enforcing Subsections (1), (3), and (8) of Nebr.Rev.Stat, Section 32-526 (1982 Cum.Supp.), which pertain to the formation of new political parties by petition, alleging violations of their First and Fourteenth Amendment rights to freedom of speech and association and due process under col- or of state law. This suit was instituted three weeks before the state statutory deadline of August 1, 1984, for submitting petitions to place a new political party upon the general election ballot. The hearing in this case was held July 26,1984. An Order was entered July 30, 1984 (see filing 10).

The parties stipulated and the Court finds that the following facts are uncontested. The relevant portions of Nebr.Rev. Stat., Section 32-526 (1982 Cum.Supp.) reads as follows, with the contested language underscored:

32-526. New political party; formation; procedure; violations; penalty.
(1) In order to form a new political party there shall be presented to the Secretary of State petitions containing signatures totaling not less than one per cent of the total votes cast for the office of Governor at the most recent general election for such office. The signatures of registered electors on such petitions must be so distributed as to include qualified registered electors totaling at least one per cent of the votes cast for Governor in the most recent gubernatorial election in each of at least one-fifth of the counties in this state____ If the new political party desires to be established and have ballot position for the general election and not in the primary of that year, such petitions must be filed with the Secretary of State on or before August 1 of that year____ The form of the petition for the formation of a new party shall be substantially as follows:
FORMATION OF A NEW POLITICAL PARTY
The object of this petition is to form a new political party in the State of Nebraska to be known as--
To the Honorable_, Secretary of State for the State of Nebraska: We, the undersigned qualified and registered voters of the State of Nebraska, and the county of _, being severally qualified to sign this petition, respectfully request that the above named new political party be formed in the State of Nebraska, and each for himself or herself says: I have personally signed this petition on the date opposite my name; I am a qualified voter of the State of Nebraska, and county of _, and am qualified to sign this petition; my city, village, or post-office address, and my street and street number or voting precinct, are correctly written after my name.
Further, we the undersigned hereby pledge to support the new party, support its candidates and to change our registration to affiliate with such new party.
(3) Every circulator of a petition shall be, not less than the constitutionally prescribed age of an elector, and a resident, and registered voter of the State of Nebraska and of the county wherein the petitioners reside.
(8) Any person signing any name other than his or her own to any petition or knowingly signing his or her name more than once, or who is not, at the time of signing or circulating the same, a legal voter and qualified to sign or circulate the same, or any person who shall falsely swear to any signature upon any such petition, or any officer or person willfully violating any provision of this section, shall be guilty of a Class V misdemeanor.

In the 1982 gubernatorial election, 547,-902 legal voters cast ballots for the office of governor. The Court finds a minimum of one percent of this number is 5480. Therefore, to comply with the statute, 5480 names must be collected to place a new party on the ballot.

Nebraska now has, and has had for some time in the past, 93 counties legally formed and acting as such. Thus, circulating in and filing of petitions from one-fifth of 93 counties as provided in N.R.S. Section 32-526(1) requires that petitions be obtained from not less than 19 counties.

It was further agreed between attorneys for the parties that in the event any injunctive relief was granted to plaintiffs, to which the defendants do not consent by the stipulation, that defendants would have 20 days after August 1, 1984, to wit: to and including August 20, 1984, to place the name of plaintiff Libertarian Party of Nebraska on the ballot in Nebraska to be used at the November 6, 1984, general election with the same force and effect as though the plaintiffs had submitted their completed petitions on or before August 1, 1984. The Court approved this agreement.

Plaintiffs allege that the portion of Section 32-526(1) which requires signatures equalling one percent of the electors voting in the previous gubernatorial race in each of at least 19 counties is a violation of the “one man, one vote” principle. It is claimed that this section unconstitutionally infringes upon their freedom of speech and association under the First Amendment. The portion of subsection (1), Section 32-526 which requires petitioners to support the new party, support its candidates, and to change their registration to affiliate with the new party is also claimed to be an unconstitutional infringement of their rights of free speech and association. Plaintiffs further allege that subsection (3) of Section 32-526 requiring that petition circulators be residents and registered voters of the State of Nebraska and of the county wherein they are circulating petitions unduly burdens their efforts to form a new political party and, as a result, is also an unconstitutional restriction on the exercise of their First and Fourteenth Amendment Rights.

Defendants claim that such requirements are necessary to advance legitimate State interests in protecting the integrity and efficiency of the electoral system and, as such, are valid and constitutional exercises of the State’s power.

By reason of the nature of the matter and the stipulations of the parties, the Court concluded that an Order should be entered immediately after due consideration of the arguments presented at the hearing. Such Order was entered July 30, 1984. In this Order, the Court reserved the right to file a Memorandum or Opinion which would constitute its Findings of Fact and Conclusions of Law as soon as was reasonably possible, with the same effect as though filed prior to or as part of the Order.

Upon consideration of the facts and arguments presented in this case, the Court finds that part of Section 32-526(1) which requires signatures equal to the one percent of the persons voting in the 1982 gubernatorial race to be distributed among at least 19 counties to be unconstitutional and void as a violation of the “one man, one vote” principle. It also finds that portion of Section 32-526(1) which requires signers of petitions for the formation of new parties to pledge to support the party, support its candidates, and to change their registration to affiliate with the petitioning party is unconstitutional and void as an invasion of privacy, to freedom of choice and the right to cast a secret ballot. The Court further finds that N.R.S. Section 32-526(3) requiring petition circulators to be registered voters and residents of the state and county in which they are circulating petitions is a valid exercise of the state’s power to protect its compelling interest in maintaining the integrity of the election process by preventing fraud and misrepresentation among petition circulators.

In this case, plaintiff, Libertarian Party of Nebraska, was requesting a temporary restraining order or a preliminary injunction. The criteria to be considered before such an order or injunction is issued are set forth by the Court of Appeals of the Eighth Circuit in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir.1981).

Whether a preliminary injunction should issue involves consideration of (1) the threat or irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest. Id. at 114.

There can be little argument about the importance of the issues involved here. “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968), quoting Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534, 11 L.Ed.2d 481 (1964). Competition in ideas and governmental policies is at the core of the electoral process and of the First Amendment freedoms. The right to form a party for the advancement of political goals, means little if a party is denied an equal opportunity to win votes or if the right to vote is heavily burdened by restricting the elector’s choice to one or two parties when other parties are clamoring for a place on the ballot. State laws governing access to the ballot either as independent candidates or via the formation of a new political party place burdens on two overlapping rights: the right of qualified voters, regardless of their political persuasion, to cast their votes effectively, and the right of individuals to associate for the advancement of their political beliefs. These rights are protected from infringement by the states by the First and Fourteenth Amendments. Williams 393 U.S. at 30-31, 89 S.Ct. at 10.

Because these are fundamental rights, States must demonstrate a compelling interest which is addressed by the statute in question. Williams at 31, 89 S.Ct. at 10; Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); McLain v. Meier, 637 F.2d 1159 (8th Cir.1980); MacBride v. Exon, 558 F.2d 443 (8th Cir. 1977). Among state interests which have been recognized are maintaining the integrity of the political process by preventing party fragmentation and interparty raiding, Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); assuring that candidates have some significant backing from the community thus reducing voter confusion as a result of overcrowding ballots or clogging the election machinery; and the prevention of frivolous and/or fraudulent candidacies. Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Storer 415 U.S. at 732, 94 S.Ct. at 1280; Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982). However, “[t]his legitimate state interest ... must be achieved by a means that does not unfairly or unnecessarily burden either a minor party’s or an individual candidate’s equally important interest in the continued availability of political opportunity.” Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974).

In applying the Dataphase criteria, it would probably go without saying that where fundamental rights of association and speech are involved, public interest is inextricably present also. Politics probably occupies more media coverage time than any other activity except sports. There is also little debate of an irreparable injury. Once persons are injured by infringement or burdens upon their constitutional rights, they cannot be restored to their original condition and can only be protected from further damage in the future.

Thus, whether or not an injunction should issue involves consideration of whether the movant will succeed on the merits. There is no “litmus paper” test as pointed out in Anderson v. Celebrezze, Jr., 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). It is necessary to (1) analyze the character and magnitude of injury to the asserted rights the plaintiff seeks to vindicate and, (2) identify and evaluate the precise interest put forward by the State as justification for the burden imposed by its rule and the extent to which those interests make it necessary to burden the plaintiff’s rights. Id. at 789, 103 S.Ct. at 1570.

The Court in its Order, filing 10, has found that the language of Section 32-526(1) which requires a new political party to file petitions containing signatures of at least one percent of the persons voting in the most recent gubernatorial election in each of at least one-fifth (19) of the counties in the state is an unconstitutional violation of equal representation and the “one man, one vote” principle. The Court further found in its Order that that portion of Section 32-526(1) which requires petition signatures from 19 counties in an amount totaling not less than one percent of the vote in the last gubernatorial election from each county, is also unconstitutional and void.

In reaching its decision, the Court is influenced by a line of cases founded upon the United States Supreme Court decisions set forth in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), and extended in Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979). Moore dealt with an Illinois law which required an independent candidate to submit petitions containing 25,000 signatures, including 200 signatures from each of 50 of 102 counties. Ninety-three percent of the voting population resided in 49 counties, while 6.6 percent resided in the other 53 counties.

The Supreme Court ruled the state law unconstitutional. “This law discriminates against the residents of the populous counties of the state in favor of the rural sections. It, therefore, lacks the equality to which the exercise of political rights is entitled under the Fourteenth Amendment.” Moore 394 U.S. at 819, 89 S.Ct. at 1496. In Illinois Elections Board v. Socialist Workers Party, the Supreme Court struck down another Illinois statute which distinguished between the number of signatures required for formation of a new party with candidates in statewide elections as opposed to purely local elections. The result was that it took more signatures for a candidate to gain ballot position in Chicago than for a similar place on a state ballot.

Moore was cited and followed in Socialist Labor Party v. Rhodes, 318 F.Supp. 1262 (SD Ohio, 1970). In Ohio, .two-thirds of the voting population lived in 16 counties, 50 percent of the total population lived in seven counties. The state law required a petition candidate to obtain seven percent of the vote case in the prior gubernatorial race, including 200 signatures from 30 out of 80 counties. The Court ruled these requirements were too restrictive, and noted that the 30 county distribution resulted in the dilution of the voting strength of the urban counties.

Federal Courts do recognize the state’s needs to eliminate frivolous candidates and splintering of political parties by assuring that independent candidates and new parties have some degree of statewide support. District and Circuit Courts generally uphold a requirement for a percentage of either total state electors or a percentage of electors in each congressional district where the voting population is evenly distributed among the districts. See: American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Arutunoff v. Oklahoma State Election Board, 687 F.2d 1375 (10th Cir.1982); Libertarian Party of Florida v. State of Florida, 710 F.2d 790 (11th Cir.1983); Hudler v. Austin, 419 F.Supp. 1002 (ED Mich.1976); Udall v. Bowen, 419 F.Supp. 746 (SD Ind.1976). Cases which apparently do not follow this pattern can be explained or distinguished. Before McCarthy v. Garrahy, 460 F.Supp. 1042 (D RI 1978), Rhode Island required a minimum 25 signatures from each of the state’s five counties to place an independent candidate on the ballot.

When figured on a percentage basis, 25 votes represented .09 percent of the voters in Bristol County, but only .008 percent of the voters in Providence County, and thus the voters in Bristol County had ten times the power of a voter in Providence County. It was on the basis of this analysis that the Court ruled that the statute resulted in art unconstitutional dilution of the “one man; one vote” principle, and in doing so was in actuality following the majority case line.

Low statewide population was a significant factor in McLain v. Meier, 637 F.2d 1159 (8th Cir.1980) in which the North Dakota statutory requirements were held to be so oppressive as to discourage the formation of new parties. Plaintiffs demonstrated great difficulty in meeting the requirements while the State made no showing of a compelling need for stringent measures.

In Zautra v. Miller, 348 F.Supp. 847 (CD Utah, 1972) the Court upheld a Utah statute requiring 10 signatures from 10 counties out of a total of 500 signatures needed for a new political association to place a candidate on the ballot. The Utah District Court placed the burden on the plaintiffs by saying plaintiffs had not shown any “real and significant” impact on the exercise of their franchise.

It appears to this Court that the most equitable means of assuring that the petitioning candidate or party demonstrates the necessary evidence of statewide support without unduly burdening such party would be to require that the petitions be signed by a percent of the voters in each congressional district. Congressional districts must be nearly equal in voting population. This would avoid a rural-urban split such as could easily arise in Nebraska if the number of names on a petition were based upon a flat one percent of the electors voting in the last gubernatorial race. In this situation, for instance, the petitioning party could obtain all of the necessary names in Omaha and Lincoln, thus ignoring residents in Western Nebraska altogether, just the opposite result of the present unconstitutional requirement of a percentage of names from 19 counties where rural residents could overrule the desire of residents in the more .populated counties.

A requirement that signatures be distributed among congressional districts rather than counties avoids what could be an extremely heavy burden on petitioners should a percent of electors voting for governor from every county be required.

As above noted, plaintiffs objected to the statutory requirement that persons signing the petition for new party formation must pledge to (a) support the candidate, (b) support the party, and (c) change their registration to affiliate with the new party. N.R.S. 32-526(1). They argued that requiring thousands of voters to make a commitment to join and support the party is unrealistic and oppressive. The Court found that the provision of Section 32-526(1) requiring that the signers of the petition must “pledge to support the new party, support its candidates, and to change [their] registration to affiliate with such new party,” is an unlawful and unconstitutional invasion of privacy and of the secret ballot.

The right to a secret ballot has been recognized as one of the fundamental civil liberties in our democracy, despite the fact that the Constitution does not specifically guarantee such a right. This principle safeguards the honesty of the election process by lessening or eliminating violence, intimidation, bribery and other corrupt practices. A requirement that a person publically pledge to support a candidate or party and change his affiliation to do so operates to discourage citizens from participation in the election process simply because they do not wish others to know how they will vote. The Nebraska pledge requirement is stronger than the Kentucky statute which required that petitioners, by signing, “desired to vote” for the candidate. This statute was declared unconstitutional in Anderson v. Mills, 664 F.2d 600 (6th Cir.1981), as a direct and unacceptable abridgement of the right to a secret ballot.

It is only those electors wishing to sign a petition who must declare their desire to vote for a specific individual. Electors who support other candidates have to make no such public declaration. The chilling effect that such a practice has an associational and voting rights is obvious. The voting citizen must decide whether to sign the petition, having his political preference clearly and unmistakably disclosed, or to refrain from signing. A potential subscriber, who is uncertain about whom he will support in the general election, but with an interest in the candidate, will be unable to sign the petition because of the requisite declaration.

Id. at 609.

In addition, many voters have no desire to change basic political affiliations, but neither do they vote a straight political ticket in the general elections. Such voters as these would be discouraged from signing the petitions for third parties by the requirement to change their political affiliation. Where enough such voters are kept from signing, all voters are diminished in their freedom of choice. Many voters in the general elections do not make their final decisions until very near or at the actual time of voting. As recognized in the cases dealing with deadlines for submitting petitions for independent or new party candidates, “most voters in fact look to third party alternatives only when they have become dissatisfied with the platforms and candidates put forward by the established political parties.” McLain v. Meier, 637 F.2d 1159, 1163 (8th Cir.1980). As previously mentioned, competition in ideas and governmental policies is the core of the electoral process. Third parties have contributed creative political philosophies in the past. No doubt they will do so in the future. States do have a compelling interest in controlling fragmentation which, if too great, can paralyze the entire political system above and beyond the mere mechanics of balloting. States also have a compelling interest in assuring that new parties have some reasonable distribution of support and that the new party is sincere in its efforts to organize successfully. However, the burdens placed upon the fundamental rights to ballot access, expressed by the “one man, one vote” principle and secret ballot must be only those burdens necessary to achieve the goal and no more. Those burdens must be the result of the least restrictive means. “The measures adopted by a state may not go beyond what the state’s compelling interests actually require, and broad and stringent restrictions or requirements cannot stand where more moderate ones would do as well.” MacBride at 448.

Nebraska’s statutory wording may be less restrictive than South Dakota’s requirement that the voter, in signing a petition for a new party, states that the signer intends to affiliate with that party and, in effect, had so affiliated for the purpose of forming the party, which was declared unconstitutional in Libertarian Party of South Dakota v. Kundert, 579 F.Supp. 735 (D SD 1984). It is much less restrictive than the North Carolina statute declared unconstitutional in North Carolina Socialist Worker’s Party v. North Carolina State Board of Elections, 538 F.Supp. 864 (ED NC 1982) in which by the act of signing the petition, signers directed the county board of elections to change their party affiliation to the new party immediately following its certification. Nevertheless, the Nebraska statute is too restrictive and the burden it places on an individual’s freedom to choose privately and to express his choice privately by means of the secret ballot is unacceptable as a result.

Plaintiffs’ third point of complaint was the requirement that petition circulators must be registered voters of the state and residents and registered voters of the county in which they are circulating petitions. See 32-526(3). Plaintiffs contend that requiring persons soliciting petition signatures to be residents and registered voters of the county in which they are circulating petitions severely limits solicitation in public areas such as shopping malls or the state fair where large numbers of persons are easily approached and forces the petition drive to relative immobility. Both cases upon which plaintiffs rely, West Virginia Libertarian Party v. Manchin, 270 SE.2d 634 (W.VA 1980), and The Coalition for Political Honesty v. Illinois State Board of Elections, No. 81 C 2718 (ND Ill. April 23, 1982) (Unreported), can be distinguished from the situation in Nebraska. The magisterial districts in West Virginia were very small subdivisions of the state’s counties. In ruling West Virginia’s statute unconstitutional, the Supreme Court of Appeals recognized the difficulties attendant upon restricting circulators to the district in which they were residents and registered voters, (West Virginia Libertarian Party at 640-642). However, West Virginia also required that petition circulators be certified by state officials and receive identification cards prior to the circulation drive. This provision was upheld as a means of controlling fraud and misrepresentation in the solicitation process. Id. at 642-643. In the unreported Illinois case, some of the election districts were state-formed counties and some were subdivisions of counties, the boundaries of which were unclear even to election officials. The Court, in removing the election district residency requirement, did uphold the provision which required petition circulators to be registered voters of the state.

“The requirement that circulators be registered voters appears to be the only procedure available to the state which might protect against the type of fraud described above [bogus solicitors misrepresenting themselves to reduce or damage competing parties]____ [T]he Ccurt is not convinced that the registration requirement is at all burdensome or that it infringes in any way the right to petition.” The Coalition for Political Honesty at 19.

Since there is no provision for certification of solicitors in Nebraska, the requirement that petition circulators be registered voters of the State serves a compelling state interest to prevent misrepresentation and fraud by either the prospective new party or its political opponents. While Nebraska goes somewhat further in requiring solicitors to remain within county boundaries, this is not a prohibitive burden on petitioners. Even the court in West Virginia distinguished between the very small magisterial districts and the state’s counties. All Nebraska voters can be expected to know the county in which they reside and short questioning by the solicitor would suffice to determine the potential signer’s county of residence. Since the formation of a new party, by necessity, entails a large amount of time and effort, recruitment of a nucleus of supporters in counties in which petitions are being circulated serves to demonstrate both the seriousness of the party organizers and the distribution of support for the party ideals.

The Court finds, therefore, that there is a compelling state interest to prevent misrepresentation and fraud. It is reasonable that petition circulators as described in Section 32-526(3) be registered voters of the State of Nebraska and residents and registered voters in the county in which they are circulating petitions. It follows that each such provision is a valid requirement. The Court finds that the state has a legitimate reason for the requirement that the circulators be registered voters in the State of Nebraska in that residents should have a familiarity with, and the ability to ascertain by questions or otherwise, and to determine, whether the persons signing such a petition are or are not residents of such county.

      . All further references to the Nebraska Statute are to Section 32-526 as found in the 1982 Cum.Supp.