author: WILLIAM C. LEE, District Judge.

text:
    Ronnie L.R. NIXON, Plaintiff, v. Mark J. PHILLIPOFF, Donald D. Martin and Kendall I. Vail, Defendants.
    Civ. No. S 85-177.
    United States District Court, N.D. Indiana, South Bend Division.
    Aug. 6, 1985.

      Ronnie L.R. Nixon, pro se.
    Mark J. Phillipoff, Jones, Obenchain, Johnson, Ford, Pankow & Lewis, South Bend, Ind., for Phillipoff.
    Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, Ind., for Martin.
    William J. Boklund, LaPorte, Ind., for Vail.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on motions to dismiss filed by all of the defendants in this cause. For the following reasons, the motions to dismiss will be granted.

Plaintiff is proceeding pro se. Pro se pleadings are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The district court’s role is to ensure that the claims of pro se litigants are given “fair and meaningful consideration.” Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir.1984); Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir. 1982). This court also recognizes that federal courts have historically exercised great tolerance to ensure that an impartial forum remains available to plaintiffs invoking the jurisdiction of the court without the guidance of trained counsel. Pro se motions and complaints such as the plaintiff’s are held to less stringent pleading requirements; rigor in the examination of such motions, complaints and pleadings is inappropriate.

This cause arises out of a dispute in an underlying mortgage foreclosure action in the LaPorte Superior Court of LaPorte County, Indiana. Defendant Phillipoff filed the case with defendant Vail, the clerk of the court, and paid the filing fee in federal reserve notes. The case came before defendant Martin, who is a LaPorte Superior Court judge.

Plaintiff (“Nixon”) moved for dismissal of the case on three grounds: (1) that Phillipoff had violated article 1, section 10, clause 1 of the United States Constitution by paying the filing fee with federal reserve notes instead of “lawful money” (i.e., gold and silver coin); (2) that Nixon was entitled to a jury trial, and Martin lacked jurisdiction to determine whether Nixon was entitled to a jury trial; and (3) the LaPorte Superior Court lacked jurisdiction to hear the case because a federal land patent was involved. Judge Martin denied the motion to dismiss, and this suit followed.

Nixon sues under 42 U.S.C. §§ 1983, 1985 and 1986, asserting that the cause of action arises under article 1, § 10, cl. 1, article 3, § 2, cl. 3, article 6, §§ 2 and 3, and the first, fifth, sixth, ninth, tenth and fourteenth amendments. Nixon alleges that Phillipoff violated his oath to uphold the constitution by “making a thing other than gold and silver coin a tender in payment of debt, to wit; making false and counterfeit notes a tender in payment of filing fees assessed by the authority and for the use of the state,” as well as “conspiring” with Martin to have the Superior Court take jurisdiction of the foreclosure suit. Nixon asserts that Vail violated article 1, § 10 by “receivpng] false tokens, to wit; Federal Reserve Notes, giv[ing] false receipts, mak[ing] false documents knowing the same to contain false statements; and makeing (sic) false entries in order to cover up material facts.” Nixon sues Judge Martin for his allegedly erroneous rulings concerning his jurisdiction over the foreclosure action.

Motions to Dismiss

The defendants have filed motions to dismiss. Although denominated as motions to dismiss, it is clear that the issues presented by these motions are best addressed after reference is made to the exhibits, pleadings, and other matters of record in this case. When matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss will be converted into a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See F.R.Civ.P. 12(b).

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may only be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Thus, summary judgment serves as a vehicle with which the court “can determine whether further exploration of the facts is necessary.” Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975).

In making this determination, the court must keep in mind that the entry of summary judgment terminates the litigation, or an aspect thereof, and must draw all inferences from the established or asserted facts in favor of the non-moving party. Peoples Outfitting Co. v. General Electric Credit Corp., 549 F.2d 92 (7th Cir.1977). The non-moving party’s reasonable allegations are to be accepted as true for purposes of summary judgment. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1218-19 (7th Cir.1984). A party may not rest on the mere allegations of the pleadings or the bare contention that an issue of fact exists. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). See also Atchison, Topeka & Santa Fe Railway Co. v. United Transportation Union, 734 F.2d 317 (7th Cir.1984); Korf v. Ball State University, 726 F.2d 1222 (7th Cir.1983). See generally C. Wright, Law of Federal Courts, § 99 (4th ed. 1983); 6 Moore’s Federal Practice, § 56.15 (2d ed. 1984).

Stripped to its bare essentials, Nixon’s suit is premised on three propositions: (1) that only specie (that is, gold and silver coin) are legal tender for purposes of paying a filing fee; (2) that Nixon’s “land patent” divested the LaPorte Superior Court of jurisdiction to hear the mortgage foreclosure case; and (3) that Nixon was entitled to a trial by jury in the foreclosure action. The claims against the individuals flow from these claims. Phillipoff has allegedly violated the constitution by “making false and counterfeit notes a tender in payment of filing fees” and by conspiring with Martin to have the Superior Court take jurisdiction despite the tender of federal reserve notes, while Vail allegedly violated the constitution by accepting the notes as payment for the filing fee. For both claims to succeed, proposition (1) must be true. Likewise, the claims against Martin can succeed only if propositions (2) and (3) are true. The converse of this analysis is that, if all three propositions are false, then the actions of the defendants were legally and constitutionally proper. Therefore, instead of analyzing Nixon’s claims in terms of elements of a claim under 42 U.S.C. §§ 1983, 1985, 1986, the court will examine these underlying premises each in turn.

Federal Reserve Notes as Legal Tender

Article 1, section 8, clause 5 of the Constitution gives Congress the authority “[t]o coin Money, and regulate the Value thereof____” This clause gives Congress the exclusive ability to determine what will be legal tender throughout the country. The Legal Tender Cases, 110 U.S. 421, 446, 4 S.Ct. 122, 128-29, 28 L.Ed. 204 (1884); Veazie Bank v. Fenno, 76 U.S. (8 Wall.) 533, 548, 19 L.Ed. 482, 488 (1869); United States v. Rifen, 577 F.2d 1111, 1113 (8th Cir.1978). Pursuant to that authority, Congress has declared that

United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues. Foreign gold or silver coins are not legal tender for debts.

31 U.S.C. § 5103 (1984) (emphasis supplied). It is therefore clear that federal reserve notes are legal tender for any debt or public charge.

Nixon’s argument is based on article 1, § 10, clause 1, which mandates that “No State shall ... make anything but gold and silver Coin a Tender in Payment of Debts____” Nixon asserts that this provision requires a state to accept and recognize only gold and silver coin as legal tender. The argument fails for several reasons.

First, Nixon’s interpretation of article 1, § 10 creates a rather curious inconsistency with article 1, § 8, clause 5. If states can only recognize gold and silver coin as legal tender, then Congress does not have complete power to declare what shall constitute legal tender for payment of all debts, for a declaration that a treasury note or federal reserve note was legal tender would fly in the face of the restriction of § 10. While this is the conclusion which Nixon wants this court to reach (in effect declaring federal reserve notes illegal), it flies in the face of the clear import of § 8, clause 5’s unrestricted language. The power to coin money necessarily carries with it the power to declare what is money, and the constitution does not limit Congress to gold and silver coin. Section 8 sets forth the powers of Congress, while § 10 imposes a restriction on the states. It strains logic and constitutional interpretation to claim that the framers of the constitution sought to limit Congress’ power to coin money via an implication derived from a restriction directed not at Congress but at the states.

This strain in logic suggests the second reason for the failure of Nixon’s argument: Nixon has misinterpreted the import of § 10’s prohibition. Courts have uniformly interpreted § 10 as prohibiting states from declaring anything other than gold or silver coin as legal tender, The Legal Tender Cases, 110 U.S. at 446, 4 S.Ct. at 129; Rifen, 577 F.2d at 1113; yet these cases do not interpret § 10 as requiring states to accept only gold and silver coin as tender, nor could they, as they both recognize the unrestricted power of Congress to declare what shall constitute legal tender, including bills of credit, treasury notes, and federal reserve notes. In short, § 10 acts only to remove from the states the inherent sovereign power to declare currency, thus leaving Congress the sole declarant of what constitutes legal tender. Thus, the states must abide by the dictates of Congress, and because 31 U.S.C. § 5103 declares that federal reserve notes as legal tender, the states are constitutionally compelled to accept them as legal tender.

Other reasons compel rejection of Nixon’s position. Numerous courts have recognized that federal reserve notes are legal tender. See Birkenstock v. Commissioner of Internal Revenue, 646 F.2d 1185, 1186 (7th Cir.1981); United States v. Rickman, 638 F.2d 182, 184 (10th Cir.1980); United States v. Ware, 608 F.2d 400, 402-04 (10th Cir.1979); Rifen, 577 F.2d at 1112-13; United States v. Schmitz, 542 F.2d 782 (9th Cir.1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1134, 51 L.Ed.2d 556 (1977); United States v. Wangrud, 533 F.2d 495 (9th Cir.), cert. denied, 429 U.S. 818, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976); United States v. Daly, 481 F.2d 28 (8th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973). In fact, there appears to be no cases since The Legal Tender Cases which undermine this conclusion. Such extensive and long-standing precedent offers a formidable justification for the eminently sensible conclusion that using or accepting federal reserve notes as payment for state court filing fees is completely proper under the constitution.

In short, Nixon’s position is illogical and flies in the face of established precedent. The premise underlying the claims against Phillipoff and Vail concerning the type of legal tender for court filing fees is clearly and obviously false. Therefore, the motions to dismiss the claims against Phillipoff and Vail will be granted.

“Land Patents" and State Court Jurisdiction

The premise underlying one of Nixon’s claims against Martin is that Judge Martin shoulcl have dismissed the state foreclosure action because a federal land patent was involved. This court has considered Nixon’s land patent and found it to be a frivolous legal nullity that did not and could not affect the title to the mortgaged land at issue in the underlying foreclosure action. Nixon v. Individual Head of the St. Joseph Mortgage Co., 612 F.Supp. 253 (N.Ind.1985). This court specifically found that it did not have jurisdiction over this dispute by virtue of the “land patent,” so that the assumption behind Nixon’s motion to dismiss the foreclosure action (that disputes about title involving a land patent must be brought in federal court) is incorrect. Judge Martin acted properly in denying Nixon’s motion to dismiss, so that he cannot be held liable here for failing to heed Nixon’s spurious arguments. The motion to dismiss this claim against Martin will be granted.

Trial by Jury

The final claim against Martin is that he failed to give Nixon a trial by jury in the foreclosure action. The premise underlying the argument is that Nixon was entitled to a jury trial by virtue of the seventh amendment. That amendment provides that “[i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved....” By its very terms, the amendment does not grant a right to a jury trial in all cases; it grants the right only in “suits at common law.” The Supreme Court has stated that

by common law, [the framers of the amendment] meant ... not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered ... In a just sense, the amendment, then, may well be construed to embrace all suits which are not of equity and admiralty jurisdiction____

Curtis v. Loether, 415 U.S. 189, 193, 94 S.Ct. 1005, 1007-08, 39 L.Ed.2d 260 (1974) (emphasis added). See also Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). In short, the amendment requires a court to look to the traditional distinctions between law and equity in determining whether a claim is “legal” in nature so as to justify invoking the seventh amendment. See Ross v. Bernard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). If the claim is equitable, then no right to a jury trial exists.

Under Indiana law, a mortgage foreclosure proceeding is equitable in nature. Carmichael v. Adams, 91 Ind. 526 (1883); Berkemeier v. Rushville National Bank, 459 N.E.2d 1194, 1197 (Ind.App. 1984); Farmers Bank and Trust Co. v. Ross, 401 N.E.2d 74 (Ind.App.1980). In addition, if a claim is essentially equitable, the presence of a legal issue (such as a counterclaim) is not sufficient to invoke the right to a jury trial; the case must be tried in equity. Jones Drilling Corp. v. Rotman, 245 Ind. 10, 195 N.E.2d 857 (1964); Fish v. Prudential Ins. Co. of America, 225 Ind. 448, 75 N.E.2d 57 (1947); Berkemeier. See Indiana Trial Rule 38. Thus, under the seventh amendment as interpreted by the Supreme Court, Nixon was not entitled to a jury trial in the foreclosure proceeding because that proceeding was equitable in nature. Judge Martin was correct in denying Nixon’s motion to dismiss, and thus his actions cannot be the basis of a claim against him.

In summary, Nixon’s suit is based on three faulty premises concerning the law, and when the correct interpretation of the law is applied, none of the claims asserted here have any viability. The motions to dismiss will therefore be granted.

Motion for Attorney Fees

Defendant Phillipoff has moved for an award of attorney’s fees as a sanction against Nixon for filing this lawsuit. The court interprets this motion as a motion under Rule 11 of the Federal Rules of Civil Procedure and under the equitable powers of this court.

The American Rule is that absent specific statutory or other expressed authorization, attorney fees are not recoverable by the prevailing party in a lawsuit. International Union v. J. Pease Construction Co., 541 F.Supp. 1334, 1337 (N.D.Ill.1982). An exception to this rule has been recognized where a losing party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons____” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622-23, 44 L.Ed.2d 141 (1975). See McCandless v. Great Atlantic and Pacific Tea Co., 697 F.2d 198 (7th Cir.1983).

The Seventh Circuit has made clear that bad faith can include the pursuit of meritless suits. In Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263 (7th Cir. 1983), the court held that insistence on litigating a question in the face of controlling precedents which removed every color-able basis in law for the litigant’s position amounted to bad faith justifying an award of fees. Id. at 1269-70. In Reid v. United States, 715 F.2d 1148 (7th Cir.1983), the Seventh Circuit stated that “the law may be so clear and well established that persistence in a course of litigation could be evidence of bad faith.” Id. at 1154. Thus, this court has sufficient equitable power to assess sanctions for fees and costs if it finds that plaintiff’s claim is meritless and in bad faith. See Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820, 828 (7th Cir.1984); Benner v. Negley, 725 F.2d 446, 449 (7th Cir.1984).

A second source of power to impose sanctions is found in the Federal Rules of Civil Procedure. Rule 11, which governs the signing of pleadings and motions, requires that each pleading or motion be signed by an attorney or the party (if the party is proceeding pro se). The rule then provides:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If a pleading violates this rule the court “shall impose” an “appropriate sanction,” which may include the amount of reasonable expenses and attorney’s fees incurred by the other party because of the filing of the pleading or motion.

The Notes of the Advisory Committee on the Federal Rules makes it clear that Rule ll’s provisions are designed to “discourage dilatory or abusive tactics and [to] help streamline the litigation process by lessening frivolous claims or defenses.” The rule applies to anyone who signs a pleading, motion, or other paper, and the same standards apply to pro se litigants, although the concerns of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), can be taken into account.

The core of Rule 11 is that the signature on the pleading certifies that “to the best of his knowledge, information and belief formed after reasonable inquiry it [the pleading, motion or paper] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law ...” (emphasis added). What is important to note is that this language requires more than just a belief that the law is or should be a certain way; as the Advisory Committee states, “what constitutes a reasonable inquiry may depend on ... whether the pleading, motion, or other paper was based on a plausible view of the law,” and is thus a “more stringent” standard than good faith.

The Seventh Circuit has made it clear that it now applies an objective standard to the determination of bad faith in motions for fees. See Glick v. Koenig, 766 F.2d 265, 270 (7th Cir.1985). With these principles in mind, the court now turns to the issues raised in this case.

Nixon has argued the article 1, § 10 issue about the illegality of federal reserve notes quite strenuously. He did so despite a nearly one hundred year old unbroken lines of cases which indicate that federal reserve notes (or paper money in general) can be declared legal tender. This is the kind of insistence on litigating a question in the face of controlling precedent which amounts to bad faith. In addition, this failure to discover such overwhelming precedent suggests a lack of reasonable inquiry into the law as required by Rule 11.

This court has previously found that Nixon’s claims concerning his purported “land patent” were legally incorrect and frivolous, and deserving of Rule 11 sanctions. Nixon v. The Individual Head of St. Joseph Mortgage Co., 612 F.Supp. 253 (N.Ind. 1985). The court notes this prior decision for the purpose of indicating that the second premise of the lawsuit was also litigated in bad faith.

The third and final premise of Nixon’s suit concerns the right to a jury trial. While Supreme Court doctrine on the issue has been somewhat obtuse, it is clear under Indiana law that mortgage foreclosure actions are equitable in nature, and thus not deserving of a jury trial. Nixon’s filing of this lawsuit in light of such clear precedent is the type of bad faith litigation which the Seventh Circuit finds deserving of sanctions.

Other facts in this case buttress the conclusion that Nixon’s suit was brought in bad faith. The record is replete with motions and strange filings of record that obfuscate the issues presented here. Nixon filed a Lis Pendens to encumber the property of the defendants; a “writ of mandate” demanding that Judge Martin vacate the judgment in the foreclosure action; and a “bill of information caveat and notice” to the local sheriff explaining that Martin’s refusal to grant a trial by jury was unconstitutional and therefore the trial was void, thereby justifying his refusal to obey the court’s orders. Nixon filed requests for admissions which sought admissions on such propositions as: “The 16th Amendment in common law means the same in merchant law”; “the law merchant is subject to the negative aspects and summary judgments of the lex mercatoria which operates as a state granted privilege or franchise” (Request for Admissions to Martin, April 10, 1985); “You studied the United States Constitution in High School”; “You can read.” (Second Request for Admissions to Vail, May 28, 1985). Despite the wide latitude given discovery in the federal courts, these requests seek totally irrelevant information, and suggest of attempts to prolong this suit (and thus to block the execution of the foreclosure judgment by virtue of this suit’s continuing legal cloud over it) and harass the defendants.

Perhaps the most egregious act was Nixon’s filing of a thirty-four page “Memorandum of Law.” The Memorandum was obviously not written by Nixon—the type is different from all other filings in this case, and more revealing, was written for a “Defendant”, not a plaintiff such as Nixon. The Memorandum spends twenty pages reciting the holdings of cases decided prior to The Legal Tender Cases, but few (if any) cases after. It rails against the Federal Reserve System as some kind of private corporation, and concludes by calling for a metallic currency. It may act as a policy statement for some ghost writer who seeks to change Congress’ view of what is legal tender, but it is hardly a memorandum of law on any issues pertinent to this case. It is but one more attempt to force this court to waste precious judicial resources while examining irrelevant and spurious arguments. Even in light of Haines v. Kerner, which requires that this court recognize the difficulties of a pro se litigant, this lawsuit and Nixon’s actions are dilatory, frivolous, and an attempt to harass the defendants. Such conduct is bad faith justifying an award of attorney’s fees. Glick v. Koenig, 766 F.2d 265, 270 (7th Cir.1985).

Examination of the court file in this case reveals over twenty-six motions, affidavits, notices, requests for admissions and memoranda of law filed by Nixon. These filings required the attorneys for each defendant to read, analyze, and respond to these filings. Each of these tasks required counsel to expend significant amounts of time to develop intelligent responses. In addition, counsel had to attend two conferences on this ease, one in person in Fort Wayne, and one by phone. A very conservative estimate of the fees incurred in dealing with this frivolous lawsuit is seven hundred fifty dollars ($750.00) per defendant. The court will therefore award such an amount to each defendant under Rule 11.

The burden on this court in dealing with Nixon’s numerous filings, and the responsive filings of each defendant is as great as that on defense counsel. The docket sheet in this case indicates no less than 82 different entries reflecting filings received and docketed by the court and other actions required by the court or its employees. This suit has forced a significant expenditure of judicial resources in order to fairly deal with a groundless claim. Certainly an “appropriate sanction” under Rule 11 can include a fine payable to the Clerk of this court. The court finds that a fine of five hundred dollars ($500.00) is an appropriate and justified sanction under Rule 11.

This opinion stands as public notice that this court will not tolerate baseless claims about the currency system or about the recognition of legal tender. Such suits will invoke Rule 11 sanctions just as surely as Nixon’s suit did here.

For the above stated reasons, the motions to dismiss are hereby GRANTED, and this cause is hereby DISMISSED in its entirety. Plaintiff is hereby ORDERED to pay each defendant seven hundred fifty dollars ($750.00) in attorney’s fees as a Rule 11 sanction for filing this lawsuit. In addition, plaintiff is also hereby ORDERED to pay a fine of five hundred dollars ($500.00) to the Clerk of this court as an additional Rule 11 sanction.

      . In various filings, Nixon also makes reference to article 11, §§ 3 and 7 of the Indiana Constitution. Yet it is impossible to see how these sections would indict the defendants’ actions. Section 3 provides that
      If the General Assembly shall enact a general banking law, such law shall provide for the registry and countersigning, by an officer of State, of all paper credit designed to be circulated as money' and ample collateral security, readily convertible into specie, for the redemption of the same in gold and silver____
      Section 7 requires that "all bills or notes issued as money shall be, at all times, redeemable in gold and silver____” Neither of these sections are implicated here. Section 3 applies only if the state General Assembly passes a banking law and issues paper money. It dovetails with the article 1, § 10 restriction discussed above in that § 10 removes state power to declare paper money as currency, so that § 3’s requirement of conversion into gold and silver satisfies § 10. Section 7 is likewise directed to state-issued paper money. Yet state-issued paper money is not at issue here—federal paper money is. It would be a perversion of constitutional principles to believe that a section in a state constitution could somehow limit Congress’ power under article 1, § 8 to declare what shall constitute legal tender by requiring that it be convertible into specie.


source: Caselaw Access Project

license: Public Domain

text:
    Ronnie L.R. NIXON, Plaintiff, v. The INDIVIDUAL HEAD OF the ST. JOSEPH MORTGAGE CO., et al., Defendants.
    Civ. No. S 84-488.
    United States District Court, N.D. Indiana, South Bend Division.
    Aug. 6, 1985.

      Ronnie L.R. Nixon, pro se.
    Mark J. Phillipoff and Thomas F. Lewis, Jr., Jones, Obenchain, Johnson, Ford, Pankow & Lewis, South Bend, Ind., for defendants.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendants’ motion to dismiss the amended complaint. For the following reasons, the motion will be granted.

Petitioner is proceeding pro se. Pro se pleadings are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The district court’s role is to ensure that the claims of pro se litigants are given “fair and meaningful consideration.” Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir.1984); Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir.1982). This court also recognizes that federal courts have historically exercised great tolerance to ensure that an impartial forum remains available to plaintiffs invoking the jurisdiction of the court without the guidance of trained counsel. Pro se motions and complaints such as the petitioner’s are held to less stringent pleading requirements; rigor in the examination of such motions, complaints and pleadings is inappropriate.

This cause arises out of a loan made by the St. Joseph Mortgage Company, Inc. to plaintiff Nixon. In September, 1981, Nixon and the Mortgage Company executed a loan agreement whereby the Mortgage Company loaned Nixon $24,900.00, and secured the loan with a mortgage on Nixon’s home. Nixon now sues the Mortgage Company and others, claiming breach of contract, fraud, usury, “illegality,” unjust enrichment and two counts of racketeering because the Mortgage Company did not have “legal money” (i.e., gold and silver coin) on deposit to back up the loan, but instead had only “credit and checkbook money”—a bookkeeping entry for the loan—which cannot be legal tender. Nixon claims that the Mortgage Company promised to pay “money,” and by “paying” a bookkeeping entry, they violated the constitutional provisions which Nixon believes require that all money be gold or silver coin, thus tortiously harming Nixon.

The Individual Head of the Mortgage Company filed a motion to dismiss, which this court treats as being filed on behalf of all defendants in this cause. The court therefore turns to this motion.

Motion to Dismiss

In deciding a motion to dismiss for failure to state a claim, this court must take the well pleaded factual allegations of plaintiff’s complaint as true. Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir.1980). A complaint should be dismissed for failure to state a claim only if it appears “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). However, Conley has never been interpreted literally. Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 654 (7th Cir.1984). The test is whether a complaint contains either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984). This court must consider the complaint in the light most favorable to the plaintiff and must resolve every reasonable doubt in favor of the claimant. Henry C. Beck Co. v. Fort Wayne Structural Steel, 701 F.2d 1221 (7th Cir.1983). “The heavy costs of modern federal litigation ... counsel against launching the parties into pretrial discovery if there is no reasonable prospect that the plaintiff can make out a cause of action from the events narrated in the complaint.” Sutliff, 727 F.2d at 654.

Reduced to its bare essentials, Nixon’s claim against the Mortgage Company is that it failed to have lawful money (in gold and silver coin) in its vault equal to the amount of the loan, so that it did not loan dollars to Nixon (as promised) but mere “credit or checkbook money.” The premise behind the amended complaint is that a check written on the Mortgage Company’s credit is not lawful tender, as only government-issued currency is legal tender.

The court finds Nixon’s arguments and claims absurd for several reasons. First, a check issued by a bank or mortgage company need not be “legal tender” for a loan to be valid. Here, the Mortgage Company issued Nixon a check to use in buying his residence, and Nixon in fact got the house (subject, of course, to the mortgage entered into between the parties). What fraud was possibly worked on Nixon? He claims that the Mortgage Company said it would pay in dollars but did not have dollars available to back up the representation. Yet whether money was in the vault or not, the check issued by the Company had the same effect: it allowed Nixon to buy his house.

Second, while the check was not legal tender in the sense of a dollar bill or coins, it nevertheless had many of the same qualities of negotiability. The check itself is a negotiable instrument under the terms of Articles 3 and 4 of the Uniform Commercial Code, and because of those provisions, can be negotiated and used as a medium of exchange between private parties if they agree. While dollar bills and coins have been declared by Congress as legal tender, see 31 U.S.C. § 5103, and so can be used to pay any debt, not all debts need be paid in legal tender if the parties agree. Here, the Mortgage Company issued a check to Nixon, who then gave it to the seller of the house which Nixon bought. The check apparently satisfied the seller, who has not sued Nixon for some “fraudulent payment,” and Nixon received his house in exchange for turning the check over to the seller. Such transactions occur every day, and the negotiable check used in the transaction has value, so that the sale can be consummated.

Third, a bank or mortgage company check can be converted into legal tender. The seller of Nixon’s house no doubt took the cheek to his bank and cashed it, or else used it in another transaction. Most any check (and certainly one drafted by a mortgage company) can be taken to a bank and “cashed”—that is, exchanged for federal reserve notes in an amount equal to the value stated on the check. Federal reserve notes are legal tender, see Birkenstock v. Commissioner of Internal Revenue, 646 F.2d 1185, 1186 (7th Cir.1981); United States v. Rickman, 638 F.2d 182, 184 (10th Cir.1980); United States v. Ware, 608 F.2d 400, 402-04 (10th Cir.1979); United States v. Schmitz, 542 F.2d 782 (9th Cir.1976), cert. denied, 429 U.S. 1105, 97 S.Ct. 1134, 51 L.Ed.2d 556 (1977), so that the Mortgage Company’s check is like a promise to pay legal tender, redeemable at many banks or financial institutions. This promise to pay is an obligation of the Mortgage Company, which will at some point after issuing the check be forced to pay by giving something worth the face value of the check to the bearer or indorsee of the check. It represents a liability of the company, so that the Mortgage Company has in fact given something of value—its promise to pay the face amount of the check.

Fourth, Nixon’s arguments based on the restriction of article 1, § 10 of the Constitution, which mandates that “no state shall ... make anything but gold and silver Coin a Tender in Payment of Debts ...” misses the mark here. The defendants are private individuals and a mortgage company, not the State of Indiana (or any other state). Private parties may enter into transactions to trade whatever they agree on as having equal value; they are not limited to gold and silver coins. Here, the Mortgage Company traded its check for Nixon’s promise to pay on the promissory note executed at the time of the mortgage’s creation. Nixon in turn traded the check for the house. Neither transaction implicates or violates a constitutional restriction on the states.

Finally, this lawsuit smacks of bad faith on the part of the plaintiff. Nixon obtained the check in September, 1981 and used it to purchase his residence. In late 1984, after the Mortgage Company begins proceedings to foreclose the mortgage, Nixon suddenly files this suit seeking in effect to have the loan with which he obtained his residence declared illegal so as to back out of his contractual promise to pay on the loan. He has enjoyed the fruits of what the Mortgage Company’s check bought, yet seeks to nullify that check on the basis of an absurd view that bank or mortgage company checks are worthless attempts to create “illegal tender.” Nixon’s own experience in getting a residence with the cheek indicates that the market place recognizes the value of “credit and checkbook money,” so that Nixon has suffered no damages and has no valid calim to advance here.

In Nixon’s other two cases, Nixon v. The Individual Head of the St. Joseph Mortgage Co., 612 F.Supp. 253 (N.Ind. 1985), and Nixon v. Phillipoff 615 F.Supp. 890 (N.Ind.1985) this court found Nixon’s claims frivolous and deserving of sanctions under Rule 11 of the Federal Rules of Civil Procedure. This ease warrants such sanctions as well, especially in light of the fact that Nixon used the allegedly worthless check to buy his home. Given the fact that this suit was filed near the time that the Mortgage Company began foreclosure proceedings against Nixon, there is also an element of attempting to harass these defendants through the filing of dilatory and groundless lawsuits, a practice which the Seventh Circuit has found worthy of the imposition of sanctions. Glide v. Koenig, 766 F.2d 265, 270 (7th Cir.1985).

Examination of the court file in this case reveals that Nixon, filed more than thirty-five documents, motions, affidavits, notices, and memoranda. They included such documents as a Lis Pendens, two Writs of Prohibition and Caveat and Nunc Pro Tunc, and a Notice of Common Law Lein (sic). These numerous filings required the attorneys of record to read, analyze, and respond to each filing, thereby requiring significant expenditure of time on a frivolous lawsuit. In addition, counsel attended a status conference in Fort Wayne, Indiana, and a second conference by phone which Nixon did not participate in. A very conservative estimate of the fees incurred in dealing with this case is one thousand dollars ($1,000.00), which the court will award as attorneys’ fees under Rule 11.

The burden on this court in dealing with Nixon’s numerous filings and groundless claim is equally as great as that on defense counsel. The docket sheet in this case indicates no less than 72 different entries reflecting filings received and docketed by the court and other actions required by the court or its employees. The expenditure of judicial resources in this case is especially egregious in light of the facts, where Nixon obviously used the check to buy his house, and seeks to declare the check worthless only when the loan went into foreclosure. The “appropriate sanctions” recognized by Rule 11 can certainly include fines payable to the Clerk of this court. The court will therefore assess a fine of five hundred dollars ($500.00) as an appropriate and justified sanction under Rule 11.

For the reasons above, the motion to dismiss is hereby GRANTED, and this cause is DISMISSED in its entirety. Plaintiff is hereby ORDERED to pay one thousand dollars ($1,000.00) for attorney’s fees as a sanction for filing this lawsuit. In addition, plaintiff is hereby ORDERED to pay a fine of five hundred dollars ($500.00) to the Clerk of this court as a further Rule 11 sanction.


author: THOMAS F. HOGAN, District Judge.

text:
    Ahmanullah ROSHAN, et al., Plaintiffs, v. William French SMITH, et al., Defendants.
    Civ. A. No. 84-2176.
    United States District Court, District of Columbia.
    Aug. 6, 1985.

      Rebecca L. Ross, Asst. U.S. Atty., Washington, D.C., for defendants.
    John J. McAvoy, White & Case, Washington, D.C., Arthur C. Helton, Lawyers Committee for Intern. Rights, Lucas Guttentag, Harriet Robb, Robert S. Davis, Burt Newborne, American Civil Liberties Union, New York City, Wm. P. Quigley, New Orleans, La., Arthur Spitzer, Washington, D.C., for plaintiffs.
   MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

The named plaintiffs in this action include twenty-three individuals currently being detained at various Immigration and Naturalization Service facilities throughout the United States who are potentially ex-cludable or deportable aliens, as well as seventeen attorneys and twelve advocacy and service organizations that represent and counsel detainees in immigration proceedings. The plaintiffs seek declaratory and injunctive relief that would prevent the completion and operation of an Alien Detention Center (ADC) presently under construction in Oakdale, Louisiana, and scheduled to open in October 1985. The Oakdale ADC is intended to be a 1,000 bed facility for housing individuals detained by the INS until their status is adjudicated—the largest such facility in the United States. The ADC is also intended to include an emergency expansion site for temporarily housing an additional 2,000 to 3,000 individuals in the event of a sudden influx of illegal aliens.

The detainee-plaintiffs have brought claims on behalf of themselves as well as other persons whom they assert may be detained as alleged excludable or deportable aliens at the Oakdale ADC. The plaintiffs maintain that because of the Oakdale ADC’s size and rural location detainees will be unable to obtain attorneys willing to represent them on a pro bono basis, thereby denying them constitutional and statutory rights to counsel and to meaningful access to the adjudicatory process. The detainee-plaintiffs also allege that the final Environmental Impact Statement (EIS) prepared for the project was deficient, in violation of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., and that incarceration at the Oakdale ADC will subject detainees to adverse environmental impacts.

With respect to the attorney plaintiffs and organization-plaintiffs, the amended complaint alleges that the operation of the Oakdale detention center would interfere with their First Amendment rights to continue representation of present clients who may be transferred to Oakdale, as well as to solicit and advise prospective clients.

This case is presently before the Court on defendants’ motion to dismiss, or in the alternative, for summary judgment. Upon consideration of defendants’ motion, the plaintiffs’ opposition thereto, as well as the amended complaint, this Court concludes that all claims raised in the amended complaint must be dismissed.

I.

The detainee-plaintiffs maintain that incarceration at the Oakdale ADC will violate the rights of detainees housed there to counsel and to meaningful access to the adjudicatory process as guaranteed under the Immigration and Nationality Act, 8 U.S.C. § 1362, the Administrative Procedure Act, 5 U.S.C. § 555(b), and the Due Process Clause of the Fifth Amendment.

The Immigration and Nationality Act provides that “in any exclusion or deportation proceeding ... the person concerned shall have the privilege of being represented (at no expense to the government) by such counsel ... as he shall choose.” 8 U.S.C. § 1362. The plaintiffs assert that because detained aliens are generally indigent but have no right to appointed counsel, they must almost exclusively depend on free legal services from charitable organizations or pro bono private counsel. The plaintiffs further maintain that even in urban areas with large concentrations of practicing lawyers, considerable effort is required to obtain legal representation for detained aliens in the area. Therefore, the detainee-plaintiffs allege, because the Oak-dale ADC is under construction in a remote rural area with relatively few practicing attorneys compared to the number of aliens to be detained there, the detainees will have no realistic opportunity to exercise their statutory right to be represented by counsel.

The defendants have raised both standing and ripeness challenges to the detainee-plaintiffs’ right to counsel claims. The standing doctrine considers whether the party seeking to invoke jurisdiction has alleged “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues____” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). In Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), the Supreme Court enumerated three requirements of standing. The Court held that Article Ill’s requirement of a “case and controversy” requires at a minimum that the plaintiff establish (1) that he “personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant” and (2) that the injury “fairly can be traced to the challenged actions,” and (3) “is likely to be redressed by a favorable decision.” Id. at 472, 102 S.Ct. at 758 (quoting Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979), and Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976)).

The ripeness doctrine considers whether the “conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Railway Mail Association v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945). The ripeness doctrine therefore requires the Court to “balance its interest in deciding the issue in a more concrete setting against the hardship to the parties caused by delaying review.” Webb v. Dept. of Health & Human Services, 696 F.2d 101, 106 (D.C.Cir.1982) (discussing Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)); see also Andrade v. Lauer, 729 F.2d 1475, 1480 (D.C.Cir.1984). In doing so, the Court must consider the reality and imminence of injury to the plaintiff and the adversariness of the parties’ positions. KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922, 927 (5th Cir.1983).

Therefore, as a general matter the standing and ripeness doctrines are directed to different concerns, with standing considering who may bring an action challenging alleged unlawful activity, and ripeness considering when such an action may be brought. See 13A C. Wright, A. Miller & A. Cooper, Federal Practice and Procedure, § 3531.12, at 50 (2d ed. 1984). However, to the extent that the justiciability challenge focuses on the sufficiency versus remoteness of the alleged injury, ripeness and standing concerns merge. See Duke Power Co. v. Carolina Environmental Study Groups, Inc., 438 U.S. 59, 81, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978) (conclusion through standing analysis that sufficient immediate injury alleged satisfies ripeness concerns); Kerr-McGee Chemical Corp. v. Department of the Interior, 709 F.2d 597, 600 (9th Cir.1983) (standing and ripeness issues merge into consideration of whether plaintiff-appellee injured by federal agency’s action); KVUE, Inc. v. Austin Broadcasting Corp., 709 F.2d 922, 927-28 (5th Cir.1983) (standing doctrine closely related to ripeness “case or controversy” requirement by necessity of personal stake in outcome of controversy); Spencer v. Honorable Justices of the Supreme Court of Pennsylvania, 579 F.Supp. 880, 882 & n. 1 (E.D.Pa.1984) (“ripeness” doctrine subsumed within standing’s “threatened injury” requirement); see also C. Wright, A. Miller & E. Cooper, § 3531.12 (2d ed. 1984). Thus, in Kerr-McGee, supra, the court stated:

Both standing and ripeness require some demonstration of injury. Standing requires that the plaintiff show that the challenged action has caused it threatened or actual injury. See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S.Ct. 1601,1607, 60 L.Ed.2d 66] ... (1979).
To determine ripeness, the court assesses the appropriateness of the issue for judicial resolution and the hardship that will result from the denial of relief at this stage. Toilet Goods Association v. Gardner, 387 U.S. 158, 162 [87 S.Ct. 1520, 1523, 18 L.Ed.2d 697] ... (1967). Even when the ... action challenged is “final” and the issues raised are purely legal, a case is not ripe for adjudication absent the threat of significant and immediate impact on the plaintiff. Id. at 162-64 [87 S.Ct. at 1523-24],...

709 F.2d at 600.

The named detainee-plaintiffs assert that they are sufficiently threatened with the injury of deprivation of counsel because they may be transferred to the Oakdale ADC, and separated from their current counsel. However, where a plaintiff seeks to rely on threatened as opposed to existing injury, the plaintiff must demonstrate that the injury to him would be immediate, concrete and specific, rather than merely conjectural and hypothetical. United States v. SCRAP, 412 U.S. 669, 688-89, 93 S.Ct. 2405, 2416-17, 37 L.Ed.2d 254 (1973); California Bankers Association v. Shultz, 416 U.S. 21, 69, 94 S.Ct. 1494, 1521, 39 L.Ed.2d 812 (1974). The named detainee-plaintiffs assert that because they are seeking political-asylum status, they are likely to be in long-term INS custody, and likely to remain in custody until after Oakdale begins operation. This Court need not rely on, or even consider, the affidavit filed by the government asserting that the INS anticipates filling Oak-dale with new arrestees, to be detained on a short-term basis, rather than transferring long-term detainees to the facility. Even assuming that individuals will be transferred to Oakdale from other INS detention facilities and that at least some of the named detainee-plaintiffs will still be detained when Oakdale opens, the plaintiffs still leave the Court to speculate that it is likely that they will be selected for transfer. Such speculation piled atop assumptions fails to demonstrate a sufficient threat of imminent injury to the named plaintiffs to satisfy the threshold “case or controversy” requirement of federal jurisdiction.

The uncertainty concerning whether the named detainee-plaintiffs will ever be transferred to Oakdale is not overcome by the fact that the plaintiffs seek to assert these claims through a class action or under principles of third-party standing on behalf of those persons, as yet unidentified, who will in fact be housed in Oakdale. In Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), the Supreme Court, in denying standing, noted that the plaintiffs sought to bring their claims as a class action, and clearly indicated that such an attempt did not relieve the named plaintiffs of the need to demonstrate a sufficient injury. The Court stated:

That a suit may be a class .action ... adds nothing to the question of standing, for even named plaintiffs who represent a class “must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”

Id. at 41, 96 S.Ct. at 1925 (quoting Worth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343 (1975).

Likewise, the named detainee-plaintiffs have not raised any sufficient basis under principles of third-party standing for recognizing their right to raise the claims of those who will be incarcerated at Oakdale. Putting aside all questions concerning whether those actually incarcerated at Oak-dale would be able to pursue their own claims, the named detainee-plaintiffs have failed to demonstrate any special relationship, or inter-dependence of rights and interests, between themselves and those to be incarcerated at Oakdale to justify their acting as third-party representatives. See, e.g., Craig v. Boren, 429 U.S. 190, 193-97, 97 S.Ct. 451, 454-56, 50 L.Ed.2d 397 (1976); United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). “Feelings of solidarity do not confer standing to sue.” Minority Police Officers Association v. City of South Bend, 721 F.2d 197, 202 (7th Cir.1982).

Not only is the threat of injury too conjectural at this point in time, but the nature of injury alleged is itself too attenuated to present a justiciable question. The plaintiffs argue that because the Oakdale ADC is being constructed in a rural area, and will house such a large number of individuals, there will not be enough lawyers willing to represent the detainees on a pro bono basis. These allegations require the Court to assume that not only the named detainee-plaintiffs, but virtually all persons housed at Oakdale, will in fact require pro bono counsel. Likewise, the Court is left to hypothesize as to what degree of distance between the location of lawyers and the ADC will serve as a prohibitive factor. A proper evaluation of claims such as those raised by these plaintiffs is more effectively undertaken on the basis of specific facts and circumstances, rather than suppositions.

Neither is this Court persuaded by the detainee-plaintiffs’ argument that the balance of hardships requires consideration of these claims now. See Andrade v. Lauer, 729 F.2d 1475, 1483 (D.C.Cir.1984) (challenge to anticipated injury may be permitted where plaintiff can demonstrate undue hardship from delay). Plaintiffs maintain that if the challenges that they have raised to the Oakdale ADC are not considered until the facility is completed and they have actually been transferred there, the injury of which they complain—denial of counsel—will have already occurred. Plaintiffs’ argument fails to recognize, however, that the injury does not occur simply upon their transfer to the facility, but rather upon the adjudication of the alien status without the assistance of counsel. Consequently, when threat of that injury is sufficiently imminent, an appropriate challenge to that adjudication process may be raised directly to that harm.

II.

The detainee-plaintiffs have also alleged that approval of construction of the Oakdale ADC was in violation of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq. The plaintiffs allege that the final Environmental Impact Statement prepared for the project was deficient because it failed to consider the social and health impacts of the Oakdale ADC’s size and location, failed to consider potential problems presented by housing a large number of persons at the emergency contingency site, failed to consider the potential impact of expansion of the Oakdale airport to service the ADC, and failed to adequately consider alternatives to the Oakdale ADC. Again, however, because the named detainee-plaintiffs are not at this time in sufficient threat of being transferred to Oakdale, and lack authority to bring claims on behalf of those who will eventually be housed there, plaintiffs’ NEPA claims must likewise be dismissed.

III.

The attorney-plaintiffs’ and organization-plaintiffs’ claims that they will be denied their First Amendment rights to counsel and advise current clients whom they allege may be transferred to Oakdale suffer from the same standing and ripeness problems as the right to counsel claims raised by the detainee-plaintiffs. Until such time as their clients are at least designated for transfer to the Oakdale ADC, the representative plaintiffs lack a sufficiently imminent threatened injury to permit them to litigate their claims.

Furthermore, with respect to the attorney-plaintiffs’ and organization-plaintiffs’ claims generally, but especially their claims that the operation of the Oakdale ADC will violate their rights to solicit and advise potential clients, this Court finds that they have failed to state a cause of action under the First Amendment. In support of this contention the plaintiffs cite those Supreme Court eases establishing that the rights to solicit, inform, and represent clients are “modes of expression and association” protected by the First Amendment. See NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405 (1963); In re Primus, 436 U.S. 412, 424, 98 S.Ct. 1893, 1900, 56 L.Ed.2d 417 (1979).

Those cases stand for the proposition, however, that advising individuals that their legal rights may have been violated and soliciting prospective litigants or referring them to attorneys, may be a protected form of expression when associated with the advancement of political beliefs and ideals, and under such circumstances may not be restricted or controlled on the basis of content. See Button, 371 U.S. at 428-30, 83 S.Ct. at 335-36 (state could not prohibit NAACP from soliciting prospective litigants regarding issues of race discrimination); In re Primus, 436 U.S. at 424-30, 98 S.Ct. at 1900-03 (ACLU efforts to solicit prospective litigants).

The fact that the government may be prohibited from restricting the defendants from soliciting prospective clients clearly does not require the government to provide them with clients in their locality, or otherwise make access to such clients as geographically convenient as possible. The implication of such a suggestion is clearly absurd. No allegation has been raised by the attorney-plaintiffs or organization-plaintiffs that they will be prohibited or even restricted in their access to present or prospective clients at Oakdale as a matter of fact. Compare Jean v. Nelson, 727 F.2d 957, 983 (11th Cir.1984) (attorneys’ allegations that extensive restrictions were placed on contacts between themselves and alien detainees held at Haitian Refugee Center stated claim under First Amendment). The plaintiffs’ allegations of inconvenience arising from the mere distance between themselves and clients they represent or claim they wish to represent, with the complete absence of any claim of affirmative interference with their ability to do so, fails to state a claim cognizable under the First Amendment.

Therefore, for the reasons set forth above, the claims of the detainee-plaintiffs as well as the attorney-plaintiffs and organizational plaintiffs must be dismissed. An order consistent with the ruling herein accompanies this opinion.

      . Excludable aliens are "non-resident” aliens who have reached a border of the United States but who have not been admitted. See Jean v. Nelson, 727 F.2d 957, 961 n. 1 (11th Cir.1984). Deportable aliens are “resident” aliens who succeeded in initially entering this country, either legally or illegally. Id.

      . Representatives need not be attorneys. Section 1362 also allows lay persons meeting the qualifications set forth in 8 C.F.R. § 292.1 to represent aliens. See Ramirez v. INS, 550 F.2d 560, 564 (9th Cir.1977).

      . Plaintiffs filed their motion for class certification pursuant to Fed.RXiv.P. 23(b) on December 10, 1984. By order dated February 8, 1985 this Court granted defendants’ motion to stay consideration of the class certification issue until after ruling on defendants’ dispositive motion.

      . This Court need not determine whether a challenge to the actual adjudication of alien status on deprivation of counsel grounds may be brought by persons detained at Oakdale, or at least designated for transfer to Oakdale, prior to the adjudicatory process as a challenge to a "pattern, program or scheme” by INS officials violating their Constitutional rights, see Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir.1982), or whether such a challenge may be brought only after the adjudicatory process by appeal to the Board of Immigration Appeals or by habeas corpus proceeding in the Court of Appeals. See 8 U.S.C. § 1105a; see also Louis v. Meissner, 532 F.Supp. 881, 888-89 (S.D.Fla. 1983).


author: SHADUR, Judge.

text:
    Tommy BLACKBURN, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 C 8650.
    United States District Court, N.D. Illinois, E.D.
    Aug. 6, 1985.

      Michael J. Walkup, Chicago, Ill., for plaintiff.
    James P. White, Ass’t U.S. Atty., Donna M. Weinstein, Regional Atty., Dept. of Health & Human Services, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, Judge.

Tommy Blackburn (“Blackburn”) seeks judicial review of a final decision by the Secretary of Health and Human Services (“Secretary”) denying Blackburn disability insurance and supplemental security income benefits, initially applied for under Social Security Act (“Act”) §§ 216(i), 223 and 1602, 42 U.S.C. §§ 416(i), 423 and 1381a. After a March 12, 1984 evidentiary hearing (the “Hearing”), on May 18, 1984 Administrative Law Judge Irving Stiller-man (“AU Stillerman” or simply the “AU”) denied Blackburn’s application. Blackburn then exhausted his administrative remedies in proper sequence (a process that resulted in the AU’s decision becoming Secretary’s) and brought this action against Secretary pursuant to Act § 205(g), 42 U.S.C. § 405(g).

Because this action stands in a different posture from the mine run social security case brought to this Court, Blackburn has not followed the typical course of filing a motion for summary judgment. Rather— for reasons this opinion will explore in due course—he has moved for a remand to the AU for further consideration. Secretary, however, seeks summary judgment affirming the AU’s decision. For the reasons stated in this memorandum opinion and order, each litigant’s motion is granted in part and denied in part.

Medical Background

Blackburn, who was 56 years old at the time of the hearing before AU Stillerman and who has completed eight years of schooling, was born in Kentucky, where he worked for a number of years as a coal miner. Since moving to Chicago some 15 years ago, he has worked primarily as a gas station attendant and as a machine operator for several manufacturing concerns. Most recently he worked as a laundromat attendant, a job that ended in 1978 when ownership of the laundromat changed.

Blackburn has suffered a number of injuries (some work-related) over the course of his life. Among them were amputation of the top portion of his left thumb, a broken jaw as a result of which he can open his mouth no wider than an inch, and broken ribs. In addition he suffers “mild respiratory impairment” (R. 224) deriving in part from his work in the coal mines and as a result of which he receives black lung benefits.

Those impairments, which Blackburn has suffered for some time, are not the principal basis for his application for disability benefits. Rather Blackburn focuses on a series of hospitalizations beginning in 1978 for gastrointestinal bleeding:

1. In July 1978 Blackburn was admitted to Swedish Covenant Hospital (“Swedish Covenant”), suffering from black vomiting, black stools and abdominal pain. Tests revealed no ulcer or other course of bleeding. Two days after admission Blackburn was discharged at his own insistence. His discharge summary (R. 109) reflects a diagnosis of upper gastrointestinal bleeding of unknown etiology and describes Blackburn as a “moderate alcohol abuser.” Elsewhere in the hospital records he is described as a “known alcoholic.”
2. In September 1981 Blackburn was again admitted to Swedish Covenant, this time complaining of shortness of breath and abdominal pain. He was diagnosed as a habitual alcoholic suffering from acute ethanol intoxication (R. 179). While in the hospital he suffered delirium tremens episodes, and tests gave some evidence of myocardial injury, perhaps induced by alcohol. Against medical advice Blackburn signed himself out of the hospital two days after he had been admitted (R. 180).
3. In December 1982 Blackburn was admitted to Swedish Covenant, again with gastrointestinal bleeding. He was released after five, days with a diagnosis of possible peptic ulcer disease (R. 197).
4. In October 1983 Blackburn was admitted to Swedish Covenant once again, this time with a diagnosis of chronic alcoholism, duodenal ulcer, iron deficiency anemia and chronic obstructive lung disease (R. 202). He was released ten days later.

Other evidence on the administrative record includes:

1. a January 19, 1979 report by consulting physician Dr. S. Patel, stating Blackburn suffered from possible peptic ulcer syndrome in addition to the impairments deriving from his earlier work-related injuries;
2. a January 1, 1984 report by Dr. Iraj Delfani, who has treated Blackburn since October 1983, reflecting Blackburn suffers from chronic alcoholism that has resulted in brain damage, a duodenal ulcer and iron deficiency anemia (Dr. Delfani considered Blackburn disabled, primarily on account of the alcohol-induced brain damage); and
3. a March 6, 1984 psychological/occupational evaluation of Blackburn by psychologist William Fischer, finding Blackburn’s IQ in the mid-70s and describing Blackburn as “a psychologically, if not physically, impotent individual who carries the diagnosis of alcoholism, organic brain dysfunction with psychosis, and is not capable of participating in any kind of substantial gainful activity” (R. 221).

In support of his current motion Blackburn has offered additional medical evidence discovered after the administrative record was closed. It reflects three hospitalizations in December 1979 and January 1980:

1. On December 16, 1979 Blackburn was admitted to Ravenswood Hospital (“Ravenswood”), complaining he had been coughing and vomiting blood. His discharge summary (Ex. C 44-45) reflects a history of heavy beer consumption and a diagnosis of possible gastric cancer. Blackburn discharged himself against medical advice.
2. On January 6, 1980 Blackburn was again admitted to Ravenswood for further tests designed to confirm or rule out the diagnosis of gastric cancer. Blackburn again left the hospital before tests could be completed.
8. On January 22, 1980 Blackburn was once more admitted to Ravenswood. This time the contemplated tests were performed, revealing no tumor cells. Blackburn was discharged with a diagnosis of gastric ulcer, to be followed on an outpatient basis.

Blackburn’s Claims History

Blackburn’s claims posture is complicated both by eligibility regulations and by his prior history of filing disability claims. To begin with the regulations, a claimant is ineligible for either disability insurance or supplemental security income benefits if he or she does not satisfy the special earnings requirements set out in 20 C.F.R. § 404.-130. Under Section 130(b), which states the applicable rule for present purposes, Blackburn must have acquired 20 “quarters of coverage” in the 40-calendar-quar-ter (ten-year) period ending with the calendar quarter in which he seeks the commencement of benefits. Because each quarter of coverage is credited on the basis of the claimant’s covered earnings in that quarter (Sections 140 to 146), and because Blackburn has had no covered earnings since 1977, he satisfied the special earnings requirement only through June 30, 1979 (R. 97). That termination of Blackburn’s insured status under the Act means he could be entitled to benefits only for a period of disability that began no later than June 30, 1979.

Blackburn first applied for disability benefits in July 1978, claiming he had been unable to work since July 1977. That application was initially denied. Pursuing his administrative remedies, Blackburn requested an evidentiary hearing, which took place sometime in 1979. Blackburn represented himself at that hearing. On June 8, 1979 Administrative Law Judge Dale Garwal again denied Blackburn’s application (R. 131):

The claimant was not under a “disability” as defined in the Social Security Act, as amended, at any time up to the date of this decision.

Blackburn’s request for Appeals Council review of that decision was denied, and he was notified of his right to seek judicial review of the hearing decision. Blackburn did not pursue that option.

While the record is not altogether clear, it appears Blackburn again applied for disability benefits in 1980 (Ex. C 3) and perhaps 1981 (Ex. C 2). Neither application was pursued to the point of an evidentiary hearing, because Blackburn either failed to seek review or failed to pursue his administrative remedies in proper sequence. For present purposes those two aborted applications are of no consequence.

Blackburn was thus left in a difficult situation. He had been found not disabled as of June 8, 1979, yet his eligibility for commencement of benefits had terminated after June 30, 1979. Blackburn therefore was compelled either (1) to' prove he had become disabled between June 8 and June 30, 1979 or (2) to succeed in having Secretary reopen the June 8 decision. He pursued both courses before the AU with no success. AU Stillerman ruled:

1. More than four years had passed since the June 8, 1979 decision, barring its reopening under the applicable regulations. That rendered the 1979 decision binding on Blackburn as a matter of administrative res judicata.
2. Evidence before the AU did not show Blackburn had an impairment before June 30, 1979 that was severe enough to limit his ability to perform basic work activities.

Blackburn challenges both decisions.

Refusal To Reopeii and Administrative Res Judicata

ALJ Stillerman based his decision not to reopen the 1979 decision on Section 988:

A determination, revised determination, decision, or revised decision may be reopened—
(a) Within 12 months of the date of the notice of the initial determination, for any reason;
(b) Within four years of the date of the notice of the initial determination if we find good cause, as defined in § 404.989, to reopen the case.

Then the regulation goes on to specify particular situations—none applicable to this case—sufficient to warrant reopening at any time. Noting the 1979 decision had been made well over four years before the Hearing (where Blackburn first raised the possibility of reopening the decision), AU Stillerman held he had no basis in the regulations for granting the sought-after relief. Accordingly he concluded (R. 8):

[T]he prior Administrative Law Judge’s decision stands as the final decision of the Secretary as to the claimant’s condition through June 8, 1979.

Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977) teaches Secretary’s refusal to reopen a prior decision and her concomitant invocation of administrative res judicata are not generally open to district court review. As Steebe v. United States Railroad Retirement Board, 708 F.2d 250, 255 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 496, 78 L.Ed.2d 689 (1983) put it (interpreting the Social Security Act en route to apply the same reasoning to a Railroad Retirement Act claim):

In Sanders, the Court held that neither section 10 of the Administrative Procedure Act nor section 205(g) of the Social Security Act afforded district courts subject matter jurisdiction to review a decision of the Secretary of Health and Human Services not to reopen a previously adjudicated claim for Social Security benefits.

But Sanders, 430 U.S. at 109, 97 S.Ct. at 986 did recognize an exception to that general rule where the refusal to reopen the decision raised a constitutional question not suited to resolution by administrative process (and see Steebe, 708 F.2d at 256).

That exception does not encompass the case where the only flaw shown is a claimant’s non-representation by counsel at an administrative hearing. Holland v. Heckler, 764 F.2d 1560, 1561-63 (11th Cir.1985) (per curiam). Nor may the exception be invoked on the theory it violates due process to refuse to reopen a decision that itself violated the applicant’s due process rights. Steebe, 708 F.2d at 256. One narrow window has been opened by a number of courts, exemplified by Elchediak v. Heckler, 750 F.2d 892, 893 (11th Cir.1985):

[A] claimant suffering from mental illness raises a colorable constitutional claim when he asserts that his mental illness precluded him from litigating his claim because it prevented him from proceeding from one administrative level to another in a timely fashion.

Accord, Penner v. Schweiker, 701 F.2d 256, 260-61 (3d Cir.1983); Parker v. Califano, 644 F.2d 1199, 1201-03 (6th Cir.1981); Shrader v. Harris, 631 F.2d 297, 300-02 (4th Cir.1980).

Blackburn does not claim for himself the mental impairment exception recognized by Elchediak and like cases. Instead he invokes the authority of Thompson v. Schweiker, 665 F.2d 936, 941 (9th Cir.1982) (citations omitted):

Res judicata of administrative decisions does not acquire the rigid finality of judicial proceedings____ Where the record is patently inadequate to support the findings the AU made, application of res judicata is tantamount to a denial of due process. Fairness in the administrative process is more important than finality of administrative judgments.

Blackburn claims he was a chronic alcoholic and therefore mentally impaired at the time of the 1979 hearing. As a result he says he was unable to represent himself adequately—like many alcoholics, he had then denied he had a drinking problem— and the AU did not meet his responsibility to assure a full examination of the evidence in a case where the claimant is not represented by counsel.

Because no transcript of the 1979 hearing is before this Court, it is difficult to assess the adequacy of that proceeding. But from the 1979 decision alone, it does seem the hearing officer fairly took account of the record evidence before him— evidence that included only one reference to Blackburn’s alcoholism (the July 1978 Swedish Covenant record referring to him as a “moderate alcohol abuser”). At least the limited evidence as to the 1979 record tendered this Court is not, in Thompson terms, “patently inadequate to support the findings the AU made.”

Moreover, it is doubtful Thompson represents the law in this Circuit. Effectively the Thompson doctrine holds that where an administrative decision has violated due process, a later refusal to reopen that decision does so as well. But that proposition was specifically negated by our Court of Appeals in Steebe, 708 F.2d at 256.

All of the preceding discussion compels a conclusion this Court lacks subject matter jurisdiction under Act § 205(g) to review AU Stillerman’s (1) refusal to reopen the 1979 decision and (2) invocation of administrative res judicata. Blackburn’s claim must be dismissed in those respects.

Findings as to the June 8 to June 30, 1979 Period

Blackburn advances three reasons supporting remand to determine whether he became disabled between June 8, 1979, the date of the prior decision, and June 30, 1979, the date his insured status expired:

1. New medical evidence has come to light since the Hearing, indicating Blackburn was disabled before June 30, 1979.
2. AU Stillerman failed to consider post-June 30, 1979 medical evidence that indicated Blackburn’s disability before that date.
3. AU Stillerman improperly applied the severity requirement of Section 1520(c) to deny Blackburn’s claim.

Those contentions will be dealt with in turn.

Although the AU’s decision (like the 1979 decision) addresses a number of claimed physical impairments, Blackburn’s remand motion is focused on the proposition he is—and was—disabled because he is an alcoholic. Without question that proposition accurately describes his present condition. Dr. Delfani’s report, psychologist Fischer’s opinion, hospital records and the Hearing evidence all strongly suggest Blackburn is incapable of substantial gainful activity as a result of alcohol abuse. That, however, is not enough: Blackburn must show he became so impaired between June 8 and June 30, 1979. Accordingly his first two arguments for remand are directed to that issue.

Act § 205(g) calls for a remand to take added evidence on a showing that “there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record at a prior proceeding.” Here the “good cause” requirement is satisfied by an affidavit of Blackburn’s counsel, which reflects the prior unavailability of the additional evidence was attributable to forces beyond his control. As for materiality, the prevailing standard is whether it is “reasonably possible” the new evidence would have affected the prior determination. Czubala v. Heckler, 574 F.Supp. 890, 901 (N.D.Ind. 1983). That test calls for more extended analysis of the record, but the recapitulation that follows plainly shows it has been met.

For one thing, ALJ Stillerman placed some emphasis on Blackburn’s not having been hospitalized frequently for intoxication, adding (R. 10):

Indeed he was not hospitalized at all between July 1978 and September 1981.

Relatedly the ALJ also noted most of the evidence of Blackburn’s alcohol-related impairment significantly postdated June 30, 1978. Both those points are impacted by the late 1978 and early 1980 Ravenswood records, which (1) reflect Blackburn’s hospitalization between 1978 and 1981 and (2) refer to a long history of alcohol abuse (Ex. C 34, 42, 44). That new evidence thus serves to establish a link between the 1981-83 medical evidence and the period before June 30, 1979. Because alcoholism is not a disease that arises suddenly, and in light of the AU’s express statement as to Blackburn’s hospitalization record, there is at least a “reasonable possibility” the AU would have evaluated the evidence before him differently had he had the opportunity to review the Ravenswood records.

As the preceding discussion suggests, Blackburn’s first argument also brings his second directly into play. Gallimore v. Harris, 511 F.Supp. 782, 784 (N.D.Ill.1981) confirms that linkage:

[M]edical evidence of a subsequent condition of health, reasonably proximate to the preceding time, may be used to establish the existence of this condition at a preceding time.

But of course a factfinder must have some predicate for viewing medical evidence as probative of a claimant’s condition at some prior date. Here the AU’s decision does not make at all clear whether he found no such predicate or whether he simply overlooked the ' question. While that alone might arguably warrant remand, certainly the remand to consider new evidence will allow the AU to look again at the later medical evidence in light of both the newly proffered evidence and the record as a whole.

Before moving to Blackburn’s third contention supporting remand, this Court notes one further evidentiary matter. ALJ Stillerman’s decision makes no reference to the Hearing testimony of Blackburn’s wife that Blackburn has consumed at least 12-18 cans of beer daily for many years, one result of which has been a high absentee rate at his various jobs. That testimony, of course, gives credence to Blackburn’s claim of disability. While the AU may have had reasons for discounting that clear evidence in reaching his contrary conclusion, it is important that he articulate them. Zblewski v. Schweiker, 732 F.2d 75, 79 (7th Cir. 1984); but see Stephens v. Heckler, 766 F.2d 284, 287-88 (7th Cir.1985), and this Court’s discussion of Stephens in Hennessy v. Heckler, No. 84 C 10058, slip op. at 11 n. 2, 12 n. 4 (N.D.Ill. June 27, 1985). Again the remand to consider new evidence provides a suitable opportunity in that regard.

Blackburn’s third contention for remand must be evaluated in light of last week’s decision by our Court of Appeals in Johnson v. Heckler, 769 F.2d 1202 (7th Cir.1985). Johnson affirmed Judge Bua’s holding (593 F.Supp. 375 (N.D.Ill.1984)) that Secretary’s reliance on the severity requirement—step 2 of the sequential analysis prescribed by Section 1520 and described in Garfield v. Schweiker, 732 F.2d 605, 607 n. 2 (7th Cir.1984)—was inconsistent with the terms of the Act itself. Under the Act, once the claimant bears the prima facie burden of demonstrating “an impairment which prevents him from performing his previous work,” (Johnson, at 1210, quoting Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir.1982)):

The burden then shifts to the Secretary to show that claimant remains capable of performing other work in view of the vocational factors of age, education, and work experience: “[ojnce an impairment of sufficient severity is demonstrated ... which precludes the type of work previously engaged in the burden of going forward shifts to the Secretary.”

Johnson concluded Secretary’s application of the severity requirement—her reference exclusively to medical evidence (see SSR 82-56) and particularly her reliance on a list of illustrative impairments deemed to be per se nonsevere (see SSR 82-55)— failed to respect that allocation of the burden of going forward.

True enough, ALJ Stillerman’s decision does not reflect the particular shortcoming most comprehensively addressed in Johnson—reliance on SSR 82-55. But it is seriously questionable whether the AU’s decision comports with the broader teaching of Johnson as to the allocation of burdens. At one point the AU stated (R. 8) (emphasis added):

Applying the sequential disability evaluation established by the Regulations, the Administrative Law Judge notes that the claimant has not engaged in substantial gainful activity since 1978. Therefore, it is necessary to evaluate the severity of the claimant’s medical problems and the extent to which those problems have limited his ability to perform his past or other work.

Then later the ALJ expressly found (R. 11):

The claimant did not have any impairment or combination of impairments severe enough to significantly limit his ability to perform basic work activities.

Those passages create doubt whether the discussion of Blackburn’s medical condition throughout the AU’s decision was focused on the question whether the claimant has met his burden of showing an impairment severe enough to prevent his return to his past work (a permissible inquiry), or instead on the question posed—improperly— at step 2 of the sequential analysis.

Any finding on the first of those questions remains within the AU’s purview. But post-Johnson, a finding on the second is not, at least without reference to “vocational factors of age, education, and work experience and residual functional capacity.” 593 F.Supp. at 379. Consequently a remand to Secretary is necessary for clarification of precisely what question the ALJ set out to decide, and perhaps for reconsideration in light of Johnson. In the latter respect, the aggregate effect of all Blackburn’s impairments (and not just that of alcoholism) must also be considered. Johnson, at 1212-1215.

Conclusion

This Court is without subject matter jurisdiction to review Secretary’s refusal to reopen the 1979 decision and her concomitant application of administrative res judicata. However, Secretary’s decision that Blackburn did not become disabled prior to June 30, 1979 is vacated and remanded for reconsideration in light of this opinion. In terms of the motions generating this opinion:

1. Blackburn’s motion for remand is granted in part and denied in part.
2. Secretary’s motion for summary judgment is also granted in part and denied in part.

      . Mysteriously, despite the January 1980 diagnosis, Dr. Brinkman, who treated Blackburn at Ravenswood and followed him on an outpatient basis, submitted a June 11, 1980 report in support of a disability claim indicating Blackburn suffered from stomach cancer for which surgery was planned. There is no indication (a) such surgery took place or (b) Blackburn in fact had a stomach tumor.

      . Further citations to 20 C.F.R. will simply take the form (using the regulation cited in the text as an example) "Section 130,” omitting the prefatory "404.”

      . This case is distinguishable from Hennings v. Heckler, 601 F.Supp. 919, 925 (N.D.Ill.1985) where this Court’s colleague Judge Plunkett measured the Section 988(b) four-year period from (1) the date of the hearing officer's decision on the first application (the "initial determination” in the terms of the regulation) to (2) the date of filing of the second application, on the theory that the second application was treated by Secretary as a request to reopen the first decision. Here there is no evidence Secretary treated Blackburn’s most recent application as a request to reopen the 1979 decision, and Blackburn himself did not make such a request until the Hearing. Hence the relevant period began to run June 8, 1979 (the date of notice of the initial determination) and did not end until Blackburn made his request to reopen at the March 12, 1984 Hearing—a period of nearly five years. That analysis is not altered by the fact of Blackburn’s 1980 (and perhaps his 1981) application. Though the 1980 application was plainly within the four-year period prescribed by Section 988(b) (and perhaps within the 12-month period mentioned in Section 988(a)), there is nothing to indicate it was treated as a request to reopen the prior proceeding. Again, that question was not posed to Secretary either explicitly or implicitly until the Hearing.

      . Any such contention would have to explain his apparent competence to carry his 1979 claim through to Appeals Council review. That successful negotiation of administrative procedure must render suspect any contention his failure to take the final step—to seek judicial review— was attributable to a mental impairment.

      . Again, had Blackburn been mentally impaired so as to have been unable to pursue judicial review of an allegedly constitutionally deficient decision, a refusal to reopen might well have been reviewable under the cases construing the Sanders exception. But as already noted, Blackburn has made no such claim, nor is there evidence suggesting he could.

      . Though Blackburn does not raise the issue, Secretary is at pains to point out this Court lacks jurisdiction under 28 U.S.C. § 1361, the federal mandamus statute, to review the ALJ’s refusal to reopen the 1979 decision. While it appears mandamus jurisdiction "is available where the writ would properly issue” against Secretary (City of New York v. Heckler, 742 F.2d 729, 739 (2d Cir.1984); and see Attorney Registration and Disciplinary Commission of Supreme Court of Illinois v. Schweiker, 715 F.2d 282, 290 (7th Cir.1982)), this is not such a case—as Hennings, 601 F.Supp. at 924-26 arguably was. Here the ALJ did not misinterpret the applicable regulations nor, as a consequence, deny "a clear right in the plaintiff to the relief sought." Americana Healthcare Corp. v. Schweiker, 688 F.2d 1072, 1084 (7th Cir.1982).

      . Our Court of Appeals’ most recent decision in this area, next discussed in the text, acknowledges the tension between Zblewski and Stephens and treats the subject as one not fully resolved among the judges on that Court. Johnson, at 1212.