author: LUONGO, Chief Judge.

text:
    Marie DeMARCO v. Margaret HECKLER, Secretary of the Department of Health and Human Services.
    Civ. A. No. 83-1892.
    United States District Court, E.D. Pennsylvania.
    Aug. 26, 1985.

      I. Michael Luber, Philadelphia, Pa., for plaintiff.
    Margaret L. Hutchinson, Asst. U.S. Atty., Philadelphia, Pa., for defendant.
   OPINION

LUONGO, Chief Judge.

Plaintiff in this Social Security action, Marie DeMarco, seeks judicial review of the decision of the Secretary of Health and Human Services denying her application for disability insurance and Supplemental Security Income benefits. The Secretary has filed a motion for summary judgment. Notwithstanding plaintiff’s failure to oppose the motion, Magistrate Richard A. Powers, III, has recommended that the motion be denied and the matter remanded for a new administrative hearing. Although the Secretary has filed no objections, I find the Magistrate’s Report—Recommendation (attached hereto as Appendix A) unacceptable in several respects and, therefore, do not accept the Report—Recommendation as the opinion of this court. I will remand the case for a new administrative hearing, but on grounds much narrower than those set forth in the Magistrate’s Report.

Plaintiff is a 59 year old woman with a high school education. She worked as an ice cream packer for approximately 15 years and has not worked since 1969. She claims to have been disabled since June of 1980 because of Meniere’s disease, heart problems, a seizure disorder stemming from a stroke, tuberculosis and a nervous breakdown.

On March 20, 1984 a hearing was held before an Administrative Law Judge. The AU, in a decision dated July 5, 1984, applied the Secretary’s five-step disability evaluation procedure as set forth in 20 C.F.R. §§ 404.1520 and 416.920. He found that plaintiff did not suffer from a “severe impairment,” and was therefore not disabled under § 404.1520(c) and § 416.920(c). The AU’s ruling became the final decision of the Secretary when it was adopted by the Appeals Council on September 13, 1984.

The court’s function on review is to determine whether the Secretary’s decision is supported by substantial evidence, that is, by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). The Magistrate found such evidence lacking for several reasons. First, he asserted that the AU failed to evaluate the totality of plaintiff’s complaints. Second, he found that the AU improperly rejected plaintiffs complaints of pain on the basis of the “sit and squirm” test. Third, he stated that the AU should have applied the regulations requiring consideration of plaintiff’s advanced age and minimal work experience. See 20 C.F.R. §§ 404.1563-.1565, 416.-963-965.

With respect to the Magistrate’s first point, I conclude that the AU properly considered the totality of plaintiff’s impairments. Evaluating the medical evidence and plaintiff’s testimony, the AU found that plaintiff had recovered from some of her ailments and that the others were controllable by medication. Past medical problems and those which are under control are not severe or disabling under the Social Security Act. Bianchi v. Secretary of Health and Human Services, 764 F.2d 44 (1st Cir.1985); Jackson v. Heckler, 580 F.Supp. 1077, 1079 (E.D.Pa. 1984). If the AU is correct in his evaluation of plaintiff’s ailments I cannot say that he erred in finding those ailments, individually or in combination, not to be severe. See Bianchi, 764 F.2d at 45; Jackson, 580 F.Supp. at 1078-80.

The question then is whether the AU correctly evaluated plaintiff’s various impairments. I believe that he did. The AU carefully considered the medical evidence as to each of plaintiff’s alleged disabilities. Only after determining that the evidence did not support plaintiff’s subjective complaints did he consider other factors, including his own impressions as to plaintiff’s credibility. The AU’s conclusion that plaintiff's ailments do not significantly limit her ability to perform basic work activities is supported by substantial evidence.

Both the medical reports and plaintiff’s own testimony show that her tuberculosis was successfully treated. Plaintiff claims to have continuing symptoms of Meniere’s disease, including ringing in the ears, dizziness and loss of balance, but specifically stated at the hearing that she is “okay” if she takes her medication. There is no evidence that plaintiff continues to be troubled by nervous depression.

The AU also found that plaintiff’s seizure disorder does not constitute a severe impairment. He considered the 1982 report of Dr. Julio Kuperman, plaintiff’s attending neurologist, that even with medication plaintiff had episodes of dysphasia which could represent seizures. The AU also considered plaintiff’s testimony that she had a seizure in 1983. He noted, however, that plaintiff had submitted no documentary evidence of seizure activity since June of 1980, when she was placed on Dilantin to control her seizure disorder.

The Magistrate asserts that the AU, in finding plaintiffs seizure disorder to be controlled, improperly relied upon his own lay observations rather than upon the evidence. I disagree. The weighing of evidence is the province of the AU, Arnold v. Heckler, 732 F.2d 881, 883-84 (11th Cir. 1984); Jackson v. Heckler, 580 F.Supp. 1077 (E.D.Pa.1984), and his conclusion is supported by the record. The only evidence of plaintiffs 1983 seizure is her own testimony. Indeed, she herself testified that the seizure occurred because her Dilantin level was low, and she now takes 300 milligrams of Dilantin per day to control her seizure disorder. In declaring that plaintiff “had a seizure in 1983 while taking seizure medication,” Magistrate’s Report—Recommendation at 4, the Magistrate in effect engaged in factfinding and went beyond this court’s limited scope of review.

Plaintiff also claims to have heart trouble, which causes heaviness and pain in her chest. As the AU noted, plaintiff has undergone a series of cardiac tests which have failed to demonstrate the presence of any heart disease. Plaintiffs attending cardiologist, Dr. Pat Procacci, reported in 1981 that plaintiff’s chest discomfort responds to medication. Plaintiff testified that she takes Nitroglycerin about once a week, whenever she feels “a slight pain.” The AU concluded that the evidence would not support a finding that plaintiff had a severe heart impairment.

After setting forth his conclusions with respect to the medical evidence, the AU stated:

As to the subjective validity of the complaints, Administrative Law Judges see a lot of genuinely sick people (we grant over 50 percent of all cases) and expect in cases of genuine pain to see some of the stigmata of old, intractable pain such as premature aging, hopeless mien, lines of suffering, and a certain consistency in bodily movements or lack of them. Claimant did not impress as a person who has been disabled for four years by chest pain or other subjective symptoms. Rather, she appeared to be a healthy woman who looked well for her age and took pride in her appearance. Despite recent exaggeration, claimant has admitted to doing light housework and having an active social life. Neither her appearance, her activities, nor the documentary evidence, are consistent with a finding that she is unable to work.

Record at 13.

The Magistrate seized upon these statements to justify his rejection of the AU’s decision, declaring that the AU had applied “the infamous ‘sit and squirm’ test” and had based his conclusions on “his own incorrect lay observations.” Magistrate’s Report—Recommendation at 4, 6-7. Once again, I must disagree. The Social Security Disability Benefits Reform Act of 1984, Pub.L. 98-460, 98 Stat. 1794 (1984), provides that an individual’s subjective complaints of pain are not alone sufficient to establish disability. The Third Circuit Court of Appeals has held that while the statute does not require objective evidence of pain, it does require “objective medical evidence of some condition that could reasonably produce pain.” Green v. Schweiker, 749 F.2d 1066, 1071 (3d Cir.1984). See also Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir.1985).

In this case, the AU thoroughly considered the objective medical evidence. He found that plaintiff had no medically verified impairment reasonably capable of producing the subjective symptoms of which she complained. Only then did the AU consider whether plaintiff’s claims of pain were consistent with her physical demean- or. He used his observations to reinforce, not to supplant, a conclusion drawn from the medical evidence. This was not error. Thompson v. Schweiker, 541 F.Supp. 681, 684 (E.D.Pa.1982). Indeed, credibility determinations are an important part of an AU’s function. See, e.g., Arnold v. Heckler, 732 F.2d 881, 883-84 (11th Cir.1984); Van Horn v. Schweiker, 717 F.2d 871, 873-74 (3d Cir.1983) (AU may evaluate the credibility of witnesses, though he may not ignore medical evidence contradicting his own observations); Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir.1982).

Although I conclude that the AU’s assessment of plaintiff’s physical ailments is supported by substantial evidence, I am nevertheless constrained by recent decisions of our court of appeals to hold that a remand is required. Plaintiff claims to suffer from dizziness and drowsiness as a result of her medications. She states that she must take two-hour naps twice a day, and feels unable to work as a result. The AU did not consider these claims. Although plaintiff produced no medical evidence concerning side effects, her level of medication is such that it could reasonably produce the claimed symptoms. I must therefore remand for the AU to determine whether plaintiff is disabled because of the side effects of her medications. Green v. Schweiker, 749 F.2d 1066 (3d Cir.1984); Stewart v. Secretary of Health, Education and Welfare, 714 F.2d 287, 290 (3d Cir. 1983).

Finally, the Magistrate found that the AU erred in failing to consider plaintiff’s age, education and work experience. The AU evaluated plaintiff in accord with the Secretary’s regulations, which provide that those three factors will not be considered in determining whether a claimant has a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). The Secretary has the power to issue rules implementing the provisions of the Social Security Act. 42 U.S.C. § 405(a). Such rules can be set aside only if the Secretary acted arbitrarily or capriciously, or abused her discretion. E. g., Santise v. Schweiker, 676 F.2d 925, 933-34 (3d Cir.1982), cert. dismissed, Simmons v. Heckler, Secretary of Health and Human Services, 461 U.S. 911, 103 S.Ct. 1889, 77 L.Ed.2d 280 (1983). The Secretary has determined that certain impairments will not significantly limit the performance of basic work related functions regardless of an individual claimant’s age, education and work experience. Plaintiff has not challenged the applicable regulation, and I cannot say that the Secretary’s determination is arbitrary, capricious or an abuse of discretion. See Jackson v. Heckler, 580 F. Supp. 1077, 1081 (E.D.Pa.1984).

I note, however, that the Third Circuit has recently held that an AU’s finding of no severe impairment did not in itself justify denial of benefits where the plaintiff had established a prima facie case of inability to return to past employment. Ferguson v. Schweiker, 765 F.2d 31 (3d Cir.1985). The court did not explicitly disapprove the Secretary’s regulations. It is not clear from the opinion whether the court will require the Secretary to consider a broader range of factors in all cases, or whether the court merely concluded that the claimant before it was unable to perform basic work activities and was thus severely impaired according to the Secretary’s own definition. I need not decide this issue, as the case must be remanded in any event. Because the law is unclear, however, the AU should on remand make explicit findings as to whether plaintiff’s combination of impairments would prevent her from performing former work.

ORDER

This 26th day of August, 1985, it is

ORDERED that:

1. Defendant's Motion for Summary Judgment is DENIED;

2. This matter is REMANDED to the Secretary for further proceedings consistent with the foregoing opinion.

APPENDIX A

REPORT—RECOMMENDATION

July 11, 1985

RICHARD A. POWERS, III, United States Magistrate.

This is an action brought by the plaintiff, Marie DeMarco, pursuant to § 205(g) of the Social Security Act (hereinafter the “Act”), 42 U.S.C. § 405(g), for a review of a final determination of the United States Secretary of Health and Human Services (hereinafter the “Secretary”) denying the plaintiff’s application for disability benefits and Supplemental Security Income (SSI) benefits. Presently before the Court is the defendant’s motion for summary judgment. The plaintiff has chosen not to file an answer to the defendant’s motion for summary judgment. For the reasons that follow, I recommend that this matter be remanded for a new administrative hearing and the defendant’s motion for summary judgment be denied.

The plaintiff applied for disability benefits and SSI benefits on May 13, 1981. The plaintiff claimed disability, beginning in June, 1980, due to “Meniere’s [djisease, [sjtroke, [hjeart problems, TB, nervous breakdown.” (tr. 79). The plaintiff last met the earning requirements for disability insurance income on March 31,1974. Since she claimed disability beginning in June, 1980, she does not qualify for disability benefits. However, she still can be considered for SSI benefits. Her application was denied initially (tr. 89) and upon reconsideration on January 29, 1982. (tr. 96). Following the plaintiff’s request, a hearing was held before Administrative Law Judge (hereinafter the “ALJ”) John A. McMenamin. On October 8, 1982, the AU found that the plaintiff had no severe impairments and thus, was not disabled. However, the tape of this hearing was lost. The AU’s decision was upheld by the Appeals Council, (tr. 6).

Subsequently, the plaintiff commenced a civil action in this Court. Pursuant to a stipulation between the parties’ counsel, the Honorable Alfred L. Luongo vacated the Secretary’s decision on July 26, 1983 and remanded the case for further administrative action due to the inability of the Social Security Administration to produce a transcript of the previous hearing, (tr. 6). A de novo hearing was held before AU McMenamin on March 24, 1984. On July 5, 1984, the AU issued his decision denying the plaintiff’s application, (tr. 6-14). The Appeals Council affirmed the AU’s decision on September 13, 1984. (tr. 4). The Appeals Council’s decision is the final determination of the Secretary and is reviewable by this Court.

The question before this Court is whether the decision of the' Secretary is supported by substantial evidence. Substantial evidence is judicially defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Kent v. Schweiker, 710 F.2d 110, 114 (3 Cir.1983). Elaborating upon this definition, the Third Circuit articulated:

This oft-cited language is not, however, a talismanic or self-executing formula for adjudication; rather, our decisions make clear that determination of the existence vel non of substantial evidence is not merely a quantitative exercise. A single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence—particularly certain types of evidence (e.g., that offered by treating physicians)—or if it really constitutes not evidence but mere conclusion____ The search for substantial evidence is thus a qualitative exercise without which our review of social security disability cases ceases to be merely deferential and becomes instead a sham.

Kent, 710 F.2d at 114. (emphasis added).

As will appear, the Secretary’s decision is not supported by substantial evidence for a number of reasons. First, the AU failed to evaluate the totality of the plaintiff’s complaints as required by the Social Security Disability Benefits Reform Act of 1984, Pub.L. No. 98-460, 98 Stat. 1794 (1984) (hereinafter “Reform Act”). This Act simply codified the existing case law embodied in Bass v. Celebrezze, 238 F.Supp. 355 (E.D.S.C.1965) and Miller v. Heckler, 756 F.2d 679 (8 Cir.1985). Specifically, §§ 4(a)(1) and 223(d)(2) of the Reform Act

In determining whether an individual’s physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Secretary shall consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the Secretary does find a medically severe combination of impairments, the combined impact of the impairments shall be considered throughout the disability determination process.

Secondly, in evaluating the plaintiffs pain, the AU erred when he applied the infamous “sit and squirm” test by relying on his own incorrect lay observations of the plaintiff’s physical condition to determine that the plaintiff did not experience “genuine pain.” (tr. 13). This is evidenced by the AU’s statements that “[plaintiff’s] seizure disorder is controllable by medication” (tr. 12) although the plaintiff had a seizure in 1983 while taking seizure medication, (tr. 61-62). Third, the AU did not evaluate the plaintiff with regard to regulations concerning a person of her advanced age and the fact that she has little or no experience to perform any type of work activity. 20 C.F.R. § 404.1563(d) and § 416.963(d).

The plaintiff is presently fifty-nine (59) years old (tr. 79) and has a twelfth grade education, (tr. 51). She worked for approximately fifteen (15) years as an ice cream packer and has not worked since 1968. (tr. 102). She alleges disability commencing June, 1980 due to various ailments. (tr. 79).

The plaintiff was a patient at St. Agnes Medical Center from June 11 to June 18, 1980. She was admitted following a seizure. The final diagnosis was “[c]erebral infarction, new onset, unifocal seizure activity.” (tr. 128). Prior to this the plaintiff had a history of tuberculosis and Meniere’s disease. The Meniere’s disease was apparently treated satisfactorily by 1977 with Antivert, although recently the plaintiff has alleged continuing symptoms, (tr. 12). Plaintiff also has a history of depression. In 1977 she was subject to frequent crying and severe loss of energy. She received outpatient treatment at a Community Mental Health Center for approximately one and a half (IV2) years, (tr. 173). Plaintiff also underwent a stress electrocardiogram and an echocardiogram in December, 1980 because of chest pain. (tr. 139).

Plaintiff has been treated by Dr. Patrick Procacci, a cardiologist and Dr. Julio Kuperman, a neurologist. Dr. Procacci treats the plaintiff for “nocturnal angina [with] orthopnea” which responds to Nitroglycerine. (tr. 166). Inderal and Isordil were also prescribed, (tr. 167). Dr. Kuperman submitted a report dated January 6,1982 in which he stated that the plaintiff had a “[l]eft [f]rontal [i]nfarction” on June 25, 1980. (tr. 171). Dr. Kuperman added that although the plaintiff “[Recovered well from initial aphasia,” she continues to have a “seizure disorder.” (tr. 171). He further elaborated on this impairment in his report by explaining that the plaintiff was having “[e]pisodes of transient exacerbation of dysphasia, which may represent seizures.” (tr. 171). Although plaintiff takes Dilantin to control these episodes, as recently as 1983 she was hospitalized for another seizure. The AU simply found that the plaintiff had “controlled seizure disorder” which flies in the face of Dr. Kuperman’s report that the plaintiff continued to have seizures in spite of the medication.

The plaintiff takes several medications for her disorders: Procardia, 10 mgs. three (3) times a day, Antivert, 250 mgs. each day, Dilantin, 100 mgs. three (3) times per day, Inderal, 40 mgs. twice a day (tr. 180) and Nitroglycerine once a week under her tongue, (tr. 65). These medications cause her to become dizzy and drowsy and she is required to take naps of two (2) hours twice a day. (tr. 66). She spends most of the day sleeping and watching television and does not perform most household chores, (tr. 68). Moreover, she does not feel she could function on a job because with this combination of medications she cannot predict when she is going to pass out. (tr. 69). Despite this uncontroverted evidence, the AU failed to consider the plaintiff’s inability to work in light of the drowsiness caused by taking the combined medications.

Similarly, in evaluating the plaintiff’s pain, the AU inappropriately applied the “sit and squirm” test when he contended that the plaintiff did not appear in “genuine pain” and added:

As to the subjective validity of the complaints, Administrative Law Judges see a lot of genuinely sick people (we grant over 50 percent of all cases) and expect in cases of genuine pain to see some of the stigmata of old, intractable pain such as premature aging, hopeless mien, lines of suffering, and a certain consistency in bodily movements or lack of them. Claimant did not impress as a person who has been disabled for four years by chest pain or other subjective symptoms. Rather, she appeared to be a healthy woman who looked well for her age and took pride in her appearance, (tr. 13).

The plaintiff suffers from both nonexertional and exertional impairments which should have been evaluated by the ALJ with attention given to the plaintiffs age, work experience and inability to do substantial gainful activity. In evaluating pain, all that need exist is a medical impairment resulting from anatomical, physiological or psychological abnormalities which could reasonably be expected to produce pain. This, plus evidence based on statements by the claimant or his/her physician regarding the intensity and persistence of such pain, or other symptoms which may reasonably be accepted as consistent with medical findings, will lead to a conclusion that the claimant is under a disability. The claimant’s statements alone are not conclusive evidence as to disability but shall be considered along with objective medical evidence. Reform Act §§ 4(a)(1) and 223(d)(5). Objective medical evidence of pain or other symptoms established by medically acceptable laboratory techniques must be considered in reaching a conclusion of disability. It is impermissible for the AU, in his untutored lay opinion, to conclude that the plaintiff is not in pain simply because the plaintiff does not appear to be in pain or exhibit symptoms indicative of pain. Roberts v. Califano, 439 F.Supp. 188 (E.D.Pa. 1977). The test is whether or not the plaintiff has an objective condition which could reasonably produce pain and whether or not the effects are so subjectively real to the plaintiff to create disability. Freeman v. Schweiker, 681 F.2d 727, 731 (11 Cir. 1982).

Also at issue in relation to disability claims is the plaintiff’s age, work experience and capability of performing substantial gainful activity. The plaintiff is of advanced age, which is fifty-five (55) or older, and she must be evaluated with regard to the Regulations concerning a person of her advanced age and the fact that she has had little or no experience to perform any type of work activity. 20 C.F.R. §§ 404.1563(d) and 416.963(d). The AU’s finding that the plaintiff is not severely impaired is not supported by substantial evidence. Moreover, there is no evidence that the plaintiff could perform in any work environment due to her age and lack of experience. The AU’s attention to sporadic activities performed by the plaintiff, such as walking to church, visiting friends and relatives, and doing some light housekeeping (tr. 13) cannot be used to prove ability to do substantial gainful activity. Smith v. Califano, 637 F.2d 968 (3 Cir. 1981); Neumerski v. Califano, 513 F.Supp. 1011 (E.D.Pa.1981).

Accordingly, I make the following

RECOMMENDATION

Now, this 11th day of July, 1985, IT IS RESPECTFULLY RECOMMENDED that this matter be REMANDED for a new hearing where the totality of her exertional and nonexertional impairments shall be properly evaluated.

      . Magistrate Powers recognized that plaintiff can be considered only for SSI benefits. Plaintiff last met the earnings requirement for disability insurance benefits on March 31, 1974. Since her claimed disability began after that date, she does not qualify for disability benefits. Magistrate’s Report—Recommendation at 2 (July 11, 1985).

      . Plaintiffs present condition is difficult to determine from the record, since plaintiff has submitted no medical evidence dated later than 1982. At the hearing on March 20, 1984, plaintiff’s counsel requested and received an extension of time to submit current medical evidence. The record remained open at least until May of 1984, when counsel informed the ALJ that he had been unable to secure any further evidence. Plaintiff had ample opportunity to supplement the record and has not now suggested that any new evidence of disability exists. I therefore would not remand merely to permit plaintiff to update her medical evidence. Remand, however, is necessary on other grounds. It may therefore be advisable for the ALJ on remand to consider current medical evidence if plaintiff is now able to produce such evidence. See Thompson v. Schweiker, 541 F.Supp. 681, 684-85 (E.D.Pa.1982).


source: Caselaw Access Project

author: CALDWELL, District Judge.

license: Public Domain

text:
    Nicholas SILANO, Petitioner v. UNITED STATES PAROLE COMMISSION, Benjamin Baer, Chairman; United States Department of Justice, Bureau of Prisons, Norman Carlson, Director; Douglas Lansing, Superintendent, Allenwood Federal Prison Camp; Respondents.
    Civ. A. No. 85-0610.
    United States District Court, M.D. Pennsylvania.
    Aug. 26, 1985.

      Nicholas Silano, pro se.
    Barbara L. Kosik, Scranton, Pa., for defendants.
   MEMORANDUM

CALDWELL, District Judge.

The petitioner has filed objections to the report of the Magistrate and a brief in support of the objections. The Magistrate upheld the action of the United States Parole Commission in basing plaintiffs presumptive range of incarceration on guidelines that were in effect on the date of petitioner’s initial parole hearing (in 1983), rather than those in effect on the date of his crime (in 1981). Essentially plaintiff's contention is that Judge Conaboy’s ruling of September 14, 1984, in United States ex rel. Forman v. McCall, 709 F.2d 852 (3d Cir.1983), on remand Civil No. 81-0553 (M.D.Pa. Sept. 14, 1984), reversed 776 F.2d 1156 (3d Cir. 1985), should be applied retroactively. Judge Conaboy ruled in Forman, that parole guidelines, woodenly applied, are laws subject to the ex post facto clause of the United States Constitution (Art. I, Sec. 9). The issue there is whether Forman is to be applied retroactively to this case.

The Magistrate concluded the outcome of this case is controlled by Leonzi v. Parole Commission, M.D.Pa. 84-1684, (May 24, 1985), in which Judge Rambo ruled against retroactive application of Forman, by adopting a well reasoned Magistrate’s report which concluded the Forman relief should be granted prospectively only; that is to parole hearings held subsequent to September 14, 1984 and to habeas corpus petitions which raised the issue and were pending on September 14, 1984. Plaintiff in his brief does not address the result reached in Leonzi. We conclude that the Magistrate’s decision as to the reasons which require restrictions on the retroactive application of Forman are sound and should be followed. As concluded _in Leonzi, the retroactive application of Forman would indeed impose severe hardships on the Parole Commission, and an ample basis exists for avoiding this hardship by holding that Forman be applied prospectively. See Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).

On August 16, 1985, subsequent to Judge Rambo’s ruling in Leonzi, supra, Judge Conaboy decided the case of Williams v. United States Parole Commission, 617 F.Supp. 470 (M.D.Pa.). In a thorough opinion on the subject of retroactivity Judge Conaboy rejected the retroactive application of the result reached in Forman, supra. His opinion correctly points out that not all legal rulings are susceptible of retroactive application, and he reviewed a number of appellate decisions bearing on the question. Relying on the criteria for retroactivity established by the United States Supreme Court in Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), Judge Conaboy concluded by stating:

Thus, considering the Commission’s current caseload it is plain that retroactive application of the “Forman Rule” would, in the terms of Solem, supra, have a significant negative impact on the administration of justice. We cannot justify this negative impact in a context where the complaint does not implicate the fundamental issue of petitioner’s innocence or guilt.

Because we agree with Judges Conaboy and Rambo that Forman should be applied prospectively, plaintiff’s objections to the Magistrate’s report will be denied.

      . Plaintiff began serving his sentence on May 24, 1983 and he had his initial parole hearing in December, 1983. His administrative remedies concerning his release date were pursued by appeals. The Regional Commissioner reaffirmed his decision on April 2, 1984 and the National Appeals Board affirmed the parole decision on August 1, 1984. In December 1984 the plaintiff attempted to have his case reopened and in January 1985 the Parole Commission rejected this effort. This action was filed on May 6, 1985.


author: GLASSER, District Judge:

text:
    Timothy WILLIAMS, Plaintiff, v. Thomas ALLEN and Joseph Soviero, Defendants.
    No. 81 Civ. 1886.
    United States District Court, E.D. New York.
    Aug. 26, 1985.

      Harold F. Damm, Mineola, N.Y., for plaintiff.
    Carnell T. Foskey, County Atty. of Nassau County, Mineola, N.Y., for defendant Allen.
    Joseph F. Soviero, Garden City, N.Y., pro se.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

This is an action brought pursuant to 42 U.S.C. § 1983 in which plaintiff, a prisoner, alleges violations of his civil rights by defendant Thomas Allen, a member of the Nassau County Police Department, and defendant Joseph Soviero, an attorney, in connection with plaintiff’s prosecution for murder in the Supreme Court, Nassau County, in 1980-81. Specifically, plaintiff alleges in his amended complaint that defendant Allen used excessive force to coerce him into confessing to the murder charge, and that defendant Soviero, who was appointed by the Court to represent plaintiff, failed to do so in a competent manner. Plaintiff seeks an award of damages as well as attorneys’ fees, costs and interest.

Defendant Allen has moved to dismiss the complaint against him for failure to commence this action within the applicable limitations period, failure to file a notice of claim and failure to state a claim. For the reasons set forth below, defendant Allen’s motion is denied in its entirety. Background

The relevant facts with respect to defendant Allen are as follows. On April 20, 1980 plaintiff was arrested and allegedly beaten by defendant Allen. See Amended Complaint 11118-25. Plaintiff was subsequently convicted and sentenced, and filed this action pro se on June 8, 1981, some fourteen months after his arrest. The plaintiff’s original complaint was sixteen pages long and detailed his claims in a narrative manner. Leave to prosecute this action in forma pauperis was granted, along with a direction that process be issued to the United States Marshal for service upon the defendants, on September 2, 1981 by Judge Mishler. The Marshal attempted service on Allen by serving the Office of the Nassau County District Attorney on September 21, 1981.

On October 9, 1981, the Nassau County Attorney moved to dismiss on behalf of defendant Allen (and another former defendant) for lack of personal jurisdiction or failure to state a claim, or, in the alternative, for a more definite statement. Shortly thereafter, plaintiff requested appointment of counsel. The Clerk of the Court was directed to appoint counsel on December 6, 1982, and present counsel for plaintiff accepted appointment and filed a notice of appearance on May 16, 1983.

Neither counsel for plaintiff nor counsel for defendants prodded this action along on the court calendar, and the outstanding motion to dismiss filed in October 1981 was not heard until October 12, 1984. Counsel for Allen did not appear for oral argument of that motion; however, Allen’s motion to dismiss for improper service was granted, with leave to plaintiff to serve Allen properly within thirty days. Following some confusion as to the date by which plaintiff was to re-serve Allen, plaintiff was granted an additional twenty days during which he could personally serve Allen with a summons and an amended complaint at the conclusion of a hearing conducted on April 12, 1985. Allen was personally served with process within the twenty-day period, on May 1, 1985, at 1490 Franklin Avenue in Garden City, the same address where Allen was improperly served in September 1981. Discussion

1. Statute of Limitations

The applicable statute of limitations in an action brought pursuant to 42 U.S.C. § 1983 is the state limitations period for personal injury actions. Wilson v. Garcia, — U.S. —, 105 S.Ct. 1938, 1947-48, 85 L.Ed.2d 254 (1985). In New York, that period is three years. C.P.L.R. § 214. Rodrigues v. Village of Larchmont, 608 F.Supp. 467, 477 (S.D.N.Y.1985). A federal action is commenced upon the filing of the complaint, Fed.R.Civ.P. 3, as compared to an action brought in a New York state court, where the limitations period is tolled only after the defendant is served with process or otherwise notified of the filing of the summons and complaint. See C.P. L.R. § 203. Because this action was commenced only fourteen months after April 20, 1980, when the claim arose, it was timely filed.

Although this action was commenced in a timely manner, it is true that defendant Allen was served some 3V2 years after the filing of the complaint. Pursuant to Rule 40) of the Federal Rules of Civil Procedure, the claim against Allen could be dismissed on that basis alone. That rule, however, became effective on February 26, 1983. Prior to that time there was no fixed period during which the summons had to be served following the filing of a complaint; rather, a flexible due diligence standard was applied. Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 n. 6 (2d Cir.1985), (citing Siegel, Practice Commentaries U.S.C.A. Rule 4, at 54 (West Supp. 1985)).

Under either the Rule 40) or flexible due diligence standard, I decline to dismiss the complaint against Allen in this action. When service was first attempted upon Allen, the incarcerated pro se plaintiff depended solely upon the United States Marshal to effect service. Under such circumstances, dismissal is inappropriate. Korka la v. National Security Agency, 107 F.R.D. 229, 230 (E.D.N.Y.1985) (Glasser, J.) (where failure to serve is solely the fault of the Marshal, plaintiff has good cause for failure to serve defendants in a timely manner); Davis v. Krauss, 478 F.Supp. 823, 826 (E.D.N.Y.1979) (where Marshal served defendants three months after statute of limitations had run, complaint would not be dismissed) (pre-Rule 4(j)). In addition, the time to comply with Rule 4(j) may be extended pursuant to Rule 6(b). 4 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 1138 (Supp.1985); see also Arroyo v. Wheat, 102 F.R.D. 516 (D.Nev. 1984). In effect, by granting plaintiff additional time to re-serve Allen on October 12, 1984 and then on April 12, 1985, I granted. plaintiff an extension of the time permitted under Rule 4(j) pursuant to Rule 6(b). Because the summons and amended complaint were properly served upon Allen within 20 days of April 12, 1985, I decline to dismiss the amended complaint as untimely served.

2. Notice of Claim

Plaintiff’s failure to file a timely notice of claim with respect to his claims against defendant Allen, pursuant to N.Y.Gen. Mun.Law § 50(e), presents a more difficult problem. While Allen contends that this error by the then pro se plaintiff bars the claim against him, plaintiff urges that a notice of claim requirement is inapplicable in federal § 1983 actions brought in this Circuit. Certainly the plaintiff’s position was correct until at least 1983. See, e.g., Brandon v. Board of Education, 635 F.2d 971, 973-74 n. 2 (2d Cir.1980), cert. denied, 454 U.S. 1123, 102 S.Ct. 970, 71 L.Ed.2d 109 (1981); Davis v. Krauss, supra, 478 F.Supp. at 825. “If applied, such a notice of claim provision would substantially interfere with the exercise of an important federal right.” Id. (citations omitted). In 1983, however, the New York Court of Appeals decided the ease of Mills v. County of Monroe, 59 N.Y.2d 307, 451 N.E.2d 456, 464 N.Y.S.2d 709, cert. denied, 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725 (1983). Acknowledging that the federal district courts sitting in New York have not applied state notice of claim statutes to actions brought under 42 U.S.C. § 1981 or § 1983, 451 N.E.2d at 457, 464 N.Y.S.2d at 710, the Mills court held that a plaintiff’s failure to file a timely notice of claim in a § 1981 suit was fatal to the maintenance of her action against the municipality. The court reasoned:

[T]he flexibility with which the timeliness requirement of the notice statute may be applied and the existence of a judicially created exception to the notice requirement indicate that the statute causes no undue inhibition to the bringing of civil rights actions. In the area of civil rights, this court has recognized an important exception to the notice requirement. In Union Free School Dist. No. 6 of Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 380, 362 N.Y.S.2d 139, 320 N.E.2d 859, it held that notice of claim requirements do not apply to actions brought “to vindicate a public interest.” All actions brought to enforce civil rights can be said to be in the public interest____ But, actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group are deserving of special treatment. The interests in their resolution on the merits override the State’s interest in receiving timely notice before commencement of an action____
Even if a civil rights action seeks to enforce only the private or personal rights of the plaintiff ... the statute itself permits relief from the notice requirement through an application to the court to serve late notice (see General Municipal Law, § 50-e, subd. 5). Although the notice requirement relevant to this action provides generally that a plaintiff must file notice within 90 days after the claim arises (see County Law § 52; General Municipal Law, § 50-e, subd. 1, par. [a]), “[u]pon application, the court, in its discretion, may extend the time to serve a notice of claim,” so long as the extension does not exceed the time limit for commencement of the action (General Municipal Law, § 50-e, subd. 5). The court, in deciding whether to grant leave, will consider various factors, including when the governmental subdivision had acquired knowledge of the relevant facts and whether the delay had caused the defendant substantial prejudice in maintaining its defense (id.). For these reasons, application of the relevant notice provision to actions brought under the Federal civil rights laws cannot be said to offend the Federal policy underlying those laws.

59 N.Y.2d at 311-12, 451 N.E.2d at 458, 464 N.Y.S.2d at 711 (citations omitted). The Mills court reasoned further that due to the availability, albeit limited, of a waiver of the notice of claim requirement, discussed in the portion of Mills quoted supra, or the ability to file a late notice of claim, “application of the relevant notice provision to actions brought under the Federal civil rights laws cannot be said to offend the Federal policy underlying those laws.” Id. Finding that the plaintiffs complaint referred to conduct that related only to her and could not be characterized as an attempt to vindicate a public interest, the Mills court determined that the plaintiff was ineligible for a complete waiver of the notice of claim requirement and affirmed the Appellate Division’s dismissal of the complaint.

If the state court decision in Mills were to be applied to this ease, it is clear that this plaintiff would be barred from relief because like the plaintiff in Mills, the plaintiff here complains only of conduct that relates to himself and not to the general public interest. The only two published decisions interpreting Mills are also of no help to this plaintiff. In Brown v. United States, 742 F.2d 1498 (D.C.Cir.1984), cert. denied sub nom., District of Columbia v. Brown, — U.S. —, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985), the court concurred with the majority of federal courts in holding that state notice of claim provisions should not be borrowed in federal § 1983 actions. Id. at 1509 & n. 6. Without commenting upon the propriety of the Mills decision, the Brown court distinguished Mills based on the “unusual flexibility” of New York’s notice of claim statute. Id.

In Cardo v. Lakeland Central School District, 592 F.Supp. 765, 772-73 (S.D.N.Y. 1984), however, the court did adopt the Mills approach, thus barring the plaintiffs § 1983 claim against the School District when the plaintiff failed to file a notice of claim until five months after the last day when he had taught at the school involved. Át this time Cardo is the only decision by a federal court interpreting—and adhering to—the notice of claim borrowing rule set forth in Mills.

I decline to follow the rationale of Mills and Cardo. It is not incumbent upon a federal court to apply a procedural rule of the forum state when doing so would effectively extinguish an important federal right. See, e.g., Davis v. Krauss, supra. Applying the reasoning of Mills, the plaintiff here would not be subject to the notice of claim requirement at all if he were raising a claim on behalf of a larger group of persons allegedly subject to police brutality in the manner charged in the amended complaint; in such circumstances, his claim would be considered to be “in the public interest.” To waive the notice of claim requirement in that situation but bar the individual plaintiff from the possibility of obtaining relief here is exalting the civil rights of the many over that of the individual who, like the formerly pro se prisoner here, is less able to enforce his rights. The Second Circuit has frowned upon such re-suits in the past. See, e.g., Taylor v. Mayone, 626 F.2d 247, 253 (2d Cir.1980) (“ ‘To create different limitations periods for two similarly situated classes of defendants would create a distinction without a difference, and would engender unnecessary confusion for litigants and judges alike.’ ”) (quoting Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980) ); see also Altaire Builders, Inc. v. Village of Horseheads, 551 F.Supp. 1066 (W.D.N.Y.1982). Moreover, this conclusion appears consistent with the post-Mills, post-Cardo decision of the Supreme Court in Wilson v. Garcia, supra, where the Court was concerned with establishing some degree of uniformity in § 1983 actions:

If the choice of the statute of limitations were to depend upon the particular facts or the precise legal theory of each claim, counsel could almost always argue, with considerable force, that two or more periods of limitations should apply to each § 1983 claim. Moreover, under such an approach different statutes of limitations would be applied to various § 1983 claims arising in the same State, and multiple periods of limitations would often apply to the same case. There is no reason to believe that Congress would have sanctioned this interpretation of its statute.

105 S.Ct. at 1946 (footnotes omitted) (emphasis added). Although we are here concerned not with multiple limitations periods in the same manner as was the court in Wilson, we are confronted with the possible application of a highly restrictive notice of claim statute which, albeit somewhat flexible, would likely impinge the enforceability of the substantial constitutional rights of individuals who complain of conduct not referable to the public at large, but solely to themselves.

3. Failure to State a Claim

Defendant Allen also urges that the plaintiff has failed to state a claim under § 1983, or, in the alternative, has moved for a more definite statement. A motion to dismiss for failure to state a claim may not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (quoting Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). This Circuit has directed that this requirement should be strictly applied to a claim brought under the Civil Rights Act. Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970). To state a claim under § 1983, a plaintiff must allege that the defendant, while acting under color of state law, acted or failed to act in such a manner that caused plaintiff to be deprived of a right or rights guaranteed him under the United States Constitution or by federal statute. Without detailing the allegations of the amended complaint, it is sufficient to state that plaintiff has alleged these elements.

In addition, I note that the amended complaint clearly states the date, place and circumstances of plaintiffs claim against Allen. A motion for a more definite statement “is proper only when the pleading to which it is addressed is so vague that it cannot be responded to” and “the only information obtainable [by means of such a motion] is that which is necessary to frame a responsive pleading.” 5 C. Wright & A. Miller, Federal Practice & Procedure § 1377 at 748 (1969). While defendant Allen briefly contends in Point III of his brief that plaintiff’s claim against him is vaguely stated, it is more accurate to state that defendant’s own argument is vaguely stated.

Conclusion

For the reasons set forth above, defendant Allen’s motion to dismiss or for a more definite statement is denied in its entirety.

SO ORDERED.

      . Additional defendants have been dismissed from this action at this time.

      . This action was transferred to my docket some time after I assumed the bench in January 1982.

      . At the October 12, 1984 hearing, the Court directed either of the attorneys then present to inform Allen’s counsel of the decision rendered from the bench, and to request that she submit an order. Plaintiff's counsel notified the County Attorney, by letter dated October 16, 1984, and suggested that she submit an order as to defendant Allen and another former defendant. Court document # 24, Exh. A. Neither plaintiff nor the County Attorney submitted an order. Thereafter, in April 1985, plaintiff moved for leave to file an amended complaint, and for permission to re-serve Allen by serving the County Attorney. At that time counsel for Allen argued that plaintiff was permitted to re-serve Allen within 30 days of the October 12, 1984 decision, while counsel for plaintiff stated his belief that Allen was to be re-served within 30 days after an order was entered memorializing the October 12 decision.

      . Fed.R.Civ.P. 4(j) provides in pertinent part:
      If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed without prejudice upon the court’s own initiative with notice to such party or upon motion.

      . Section 50-e of the New York General Municipal Law provides in relevant part:
      1. When service required; time for service; upon whom service required,
      a. In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises.

        . The portion of § 50-e which governs a plaintiff’s ability to file a late notice of claims states:
      Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.
      An application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action against the public corporation.

      . The time during which the plaintiff in Cardo could file a notice of claim was governed by N.Y.Educ.Law § 3813(1), which specified a three month period. In contrast with Cardo is Brandon v. Board of Education, supra, a preMills decision, wherein the Second Circuit upheld the trial court’s refusal to dismiss the complaint for failure to comply with § 3813(1) because such compliance "is not mandatory in civil rights actions brought pursuant to 42 U.S.C. § 1983.” 635 F.2d at 973-74 n. 2 (citations omitted).

      . In Taylor, the court held that a federal civil rights suit against a sheriff would be governed by the three-year statute of limitations (C.P.L.R. § 214(2)) traditionally applied by the Second Circuit to § 1983 actions, instead of the one-year statute of limitations generally imposed by C.P.L.R. § 215(1) with respect to an action against a sheriff. In the portion of the Quinn decision referred to in the text accompanying this footnote, the court held that a federal § 1983 action against a municipality would be governed by the three-year period set forth in C.P.L.R. § 214(2) and not the one year and ninety day provision of New York Gen. Mun.Law § 50—i(l) pertaining to actions for torts against a municipality.

      . The Altaire Builders court stated:
      Like [General Municipal Law] section 50—i, the notice of claim provision was intended to restrict remedies for the tortions conduct of municipal employees. Inasmuch as section 1983 was intended to augment a citizen’s remedies for constitutional infringements by public officials, courts within this circuit have refused to apply the ninety-day limitation in a civil rights action.
      551 F.Supp. at 1076 (emphasis added).

      . The result reached here is consistent with that recently decided by another court in this Circuit in Burroughs v. Holiday Inn, 606 F.Supp. 629 (W.D.N.Y.1985). There the City of Rochester also moved to dismiss the plaintiffs § 1983 claim for failure to comply with the notice of claim requirements of Gen.Mun.L. §§ 50-e and 50—i. The City relied upon Mills and Cardo.

      Rejecting the City’s contentions, the Burroughs court denied the motion to dismiss. Finding that neither of those cases "could possibly have the effect of overruling the Second Circuit's decision in Brandon [,] nor did either rely on any doctrinal developments subsequent to that decision,” the court felt compelled to follow the rule set forth in Brandon. 606 F.Supp. at 630. In addition, however, the court criticized the results reached in Mills and Cardo, stating that the reasoning of those cases
      puts the cart before the horse, because federal courts are required to observe state procedural rules (to the extent consistent with federal law) only where there is a void ... in federal statutory law” ... rendering federal law "unsuitable or inadequate." ... Yet neither Mills nor Cardo offers any explanation as to how the absence of a notice of claim requirement in Section 1983 creates the sort of void which renders the statute incomplete or deficient without resorting to state law. Surely not every area in which the statute is silent represents a flaw or gap to be filled by consistent state laws.

        Id. at 630-31 (citations and footnotes omitted).


author: BENJAMIN F. GIBSON, District Judge.

text:
    KALAMAZOO SPICE EXTRACTION COMPANY, Plaintiff, v. The PROVISIONAL MILITARY GOVERNMENT OF SOCIALIST ETHIOPIA, Defendant.
    No. K81-17 CA.
    United States District Court, W.D. Michigan, S.D.
    Aug. 26, 1985.

      Eric V. Brown, Sr., Thomas G. Parachini, Karen L. Brissette, Miller, Canfield, Paddock & Stone, Kalamazoo, Mich., Mark B. Feldman, John P. Dean, Donovan, Leisure, Newton & Irvine, Washington, D.C., for plaintiff.
    Burt Burgoyne, Bromberg, Robinson, Shapero, Cohn & Burgoyne, Southfield, Mich., Thomas D. Carey, Carey, Durham & Risdon, Kalamazoo, Mich., Jack Weinberg, Graubard, Moskovitz, McGoldrick, Dannett, Horowitz & Mollen, New York City, for defendant.
   OPINION

BENJAMIN F. GIBSON, District Judge.

This is one of two lawsuits pending in this Court which arose out of the expropriation of a majority of the stock of the Ethiopian Spice Extraction Share Company (ESESCO) by the Provisional Military Government of Socialist Ethiopia (the PMGSE). Earlier in this litigation, the PMGSE filed a motion to dismiss, challenging this Court’s jurisdiction on several grounds. In an Opinion filed July 6, 1982, and reported at 543 F.Supp. 1224 (W.D. Mich.1982), this Court concluded that jurisdiction over plaintiff's claims was precluded by the Act of State Doctrine. The Court, therefore, did not reach all of the arguments defendant offered in support of its motion to dismiss. Plaintiff appealed that decision and the Sixth Circuit reversed, holding that the 1953 Treaty of Amity and Economic Relations between the United States and Ethiopia made the Act of State Doctrine inapplicable to the controversy presented by this lawsuit. Kalamazoo Spice Extraction Co. v. Provisional Military Government of Socialist Ethiopia, 729 F.2d 422 (6th Cir.1984).

Following the remand by the Sixth Circuit, defendant renewed its motion to dismiss based on the jurisdictional arguments which the Court had not addressed in its previous Opinion. It is that renewed motion for dismissal which is now before the Court. Central to the determination of the jurisdictional questions raised by defendant’s motion are certain facts surrounding the history of ESESCO, its relationship to the PMGSE, and the events giving rise to these lawsuits.

Plaintiff in this case, Kalamazoo Spice Extraction Company (KAL-SPICE), formed and incorporated ESESCO under the laws of Ethiopia in 1966. Just prior to the Ethiopian government’s expropriation decree in 1975, KAL-SPICE owned eighty percent of the stock of ESESCO. As the majority stockholder, KAL-SPICE exerted control over the operation of the company and the utilization of the company’s assets.

The PMGSE expropriated ESESCO and assumed operation and control early in 1975. It issued an expropriation decree declaring that, as of February 3, 1975, it assumed a majority shareholding in ESESCO. Plaintiff’s Exhibit A, at 7. A letter from the PMGSE’s Ministry of National Resources Development received by ESESCO in February, 1975, documents the PMGSE’s appointment of three members to the five member Board of Directors. Plaintiff’s Exhibit B. Minutes of a July 3, 1975, Board of Directors meeting indicate that three directors representing the PMGSE’s interests were present and conducted ESESCO business. Plaintiff’s Exhibit C.

Although it was not immediately clear whose shares had been expropriated, a November 1977 letter from the PMGSE’s Ministry of Industry informed ESESCO that the Government had taken its fifty-one percent interest proportionally from each of ESESCO’s shareholders. Plaintiff’s Exhibit B. By that formula, KAL-SPICE’s original eighty percent interest had been reduced to approximately forty percent.

Even though the government had assumed control of ESESCO, the company continued to ship oleoresin spices to KAL-SPICE pursuant to a contract existing between the parties. Those shipments and previous shipments generated accounts receivable which were payable in the United States. It is those accounts receivable which ESESCO is attempting to recover in K79-400 (Case One).

MOTION TO DISMISS

The Provisional Military Government of Socialist Ethiopia has filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b). In that motion, the PMGSE argues that dismissal is warranted on three grounds: 1) that this Court lacks subject matter jurisdiction over KAL-SPICE’s claims; 2) that the Court lacks personal jurisdiction over the government of Ethiopia; and 3) that venue is improper in this district. The Court will consider each of these arguments in turn.

Subject Matter Jurisdiction

KAL-SPICE alleges that this Court has jurisdiction over the claims against the PMGSE pursuant to the Foreign Sovereign Immunities Act of 1976 (FSIA), Pub.L. No. 94-583, 90 Stat. 2891 (1976). That statute amended Title 28 of the United States Code “to define the jurisdiction of the United States courts in suits against foreign states [and] the circumstances in which foreign states are immune from suit and in which execution may not be levied on their properties.” H.R.Rep. No. 1487, 94th Cong., 2d Sess. 1, reprinted in 1976 U.S.Code Cong. & Ad.News 6604. The grant of jurisdiction under the FSIA is codified at 28 U.S.C. § 1330 which provides in part:

§ 1330. Actions against foreign states (a) The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.

See also 28 U.S.C. § 1604.

KAL-SPICE argues that this action falls within an exception created by section 1605 and that the PMGSE is therefore not entitled to immunity. Section 1605(a)(3) provides that:

§ 1605. General exceptions to the jurisdictional immunity of a foreign state (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—
(3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property, is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.

Thus, in order to find subject matter jurisdiction under the section 1605(a)(3) exception, this Court must find: 1) that rights in property are at issue, 2) that the property was taken in violation of international law, and 3) that either of the two jurisdictional nexus requirements of the statute are satisfied. Because the Court finds that each of these requirements is met, it concludes that it has subject matter jurisdiction in this case.

The rights in property that are at issue are the assets of ESESCO. Although the PMGSE purported to seize only fifty-one percent of KAL-SPICE’s stock, KAL-SPICE’s complaint alleges that, without majority ownership and control, its remaining stock is worthless. Complaint ¶ 12. Thus, in addition to claiming an unlawful taking of its stock, KAL-SPICE claims there has been a de facto taking of its interest in the physical assets of ESESCO.

The PMGSE argues that, at the most, KAL-SPICE has lost its rights to stock in ESESCO and that section 1605(a)(3) of the FSIA was not intended to apply to intangible property rights, such as rights in stock. See Canadian Overseas Ores, Ltd. v. Compania de Acero, 528 F.Supp. 1337 (S.D.N.Y.1982) (holding that contractual rights to payment, absent an expropriation of real property, do not constitute “property” within the meaning of section 1605(a)(3)), aff’d, 727 F.2d 274 (2d Cir. 1984). The PMGSE informs the Court that, under Ethiopian law, as under United States law, a shareholder generally has no direct right to the assets of a corporation until the dissolution of the corporation. Ethiopian Commercial Code, Art. 345(1) (“Every share shall confer a right to participation in the annual net profits and to a share in the annual net proceeds on a winding up”); see also Owens v. Commissioner of Internal Revenue, 568 F.2d 1233, 1238-39 (6th Cir.1977); First National Bank v. Perfection Bedding Co., 631 F.2d 31 (5th Cir.1980). Thus, because it seized a majority of the stock of ESESCO, rather than its physical assets, the PMGSE contends that the 1605(a)(3) exception does not apply.

Without deciding whether section 1605(a)(3) would apply if the PMGSE had seized less than a majority interest in the stock of ESESCO, the Court concludes that section 1605(a)(3) can only logically be interpreted to encompass the property interest seized in this case. It would not make sense to distinguish between the expropriation of the physical assets of a company, which would clearly fall within section 1605(a)(3), and expropriation of a controlling interest in the stock of the company. In either case, the foreign state has expropriated control of the assets and profits of the corporation. Thus, the Court concludes that the property at issue in this ease is the kind of property that is subject to this Court’s jurisdiction under section 1605.

With respect to the second requirement, KAL-SPICE alleges that the PMGSE has violated international law by failing to pay compensation for the seized property. The PMGSE, in defense, alleges that it tendered an offer to pay 946,939 Ethiopian birr, approximately $460,000, as compensation. Claiming that the property was worth $11 million, KAL-SPICE rejected the offer. The PMGSE contends that, because it made the offer, it has not violated international law and that the Court, therefore, cannot find jurisdiction under section 1605(a)(3).

The Court is unable to conclude on the record before it whether or not the PMGSE violated international law in expropriating KAL-SPICE’s property. There are a number of factual disputes that the Court will have to resolve before it can determine whether there has been a violation of international law. When factual issues are determinative of both the jurisdictional question and the merits, as here, a court must assert jurisdiction unless the claim is insubstantial or frivolous. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Odom v. Slavik, 703 F.2d 212, 216 (6th Cir.1983). KAL-SPICE’s claims are neither insubstantial nor frivolous. Because plaintiff has made a substantial allegation of a violation of international law, the Court must assert jurisdiction.

Finally, the Court must determine whether either of the statutory jurisdictional nexus conditions is satisfied. The Court finds that the second condition, which requires that the property at issue be owned or operated by an agency or instrumentality of the foreign state which is engaged in a commercial activity in the United States, is satisfied in this case. The PMGSE owns a majority interest in ESESCO. Thus, pursuant to section 1603(b), ESESCO is an agency or instrumentality of the Ethiopian government. The property at issue here, ESESCO’s assets, is clearly owned by ESESCO. The only remaining question is whether ESESCO is engaged in commercial activity in the United States.

The record supports plaintiff’s claim that ESESCO is in fact involved in commercial activities here. Plaintiff’s Exhibit E, to which defendant has raised no objections, indicates that at least $1.2 million worth of oleoresins were sold to plaintiff in the United States after the February 3, 1975, nationalization. At least another $3.7 million worth were sold after the nationalization to companies in the United States other than plaintiff. Plaintiffs Exhibit F. Further, ESESCO has purchased supplies from at least one United States company. Plaintiff’s Exhibit G. Thus, the jurisdictional nexus required by section 1605(a)(3) is present in this case.

Even if subject matter jurisdiction is available under the FSIA, the PMGSE argues that Article XVII of the 1953 Treaty of Amity and Economic Relations between the United States and Ethiopia deprives this Court of any authority to hear the case. Article XVII provides that:

Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall at the request of either High Contracting Party be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.

The Court notes that Article I of the treaty identifies the “two High Contracting Parties” as the nations of the United States and Ethiopia. The dispute before this Court is between the Ethiopian government and KAL-SPICE, a Michigan corporation. KAL-SPICE is not a High Contracting Party and is, therefore, not bound by the provisions of Article XVII.

The PMGSE also argues that KAL-SPICE is precluded from bringing an action in this Court by Article VII of the Treaty which provides that “nationals and companies of either High Contracting Party shall have free access to the courts of justice and administrative agencies within the territories of the other High Contracting Party____” Article VII does not suggest that such companies are limited to relief through the courts or administrative agencies of the foreign state. Thus, it would not appear to preclude this action. Further, the governmental entity which the PMGSE suggests should hear this claim is the Ethiopian Compensation Commission, an entity that the PMGSE refers to in its brief as a “negotiating” arm of the state. Defendant’s Supplemental Memorandum at 7; see also Plaintiff’s Exhibit L ¶ 7. The Compensation Commission does not appear to fit within the category of adjudicative bodies defined by the phrase “courts of justice or administrative agencies.”

Thus, the Court finds that the section 1605(a)(3) exception to the general grant of sovereign immunity provides this Court with subject matter jurisdiction in this case. Further, the Court’s authority to hear the case is not precluded by the 1953 Treaty. Defendant’s motion to dismiss on those grounds must be denied.

Personal Jurisdiction

The PMGSE also argues that this Court lacks personal jurisdiction over it. The Court does not find this argument persuasive.

The FSIA provides that a federal court has personal jurisdiction over a defendant so long as it has subject matter jurisdiction under section 1330 and so long as proper service has been made on defendant under section 1608. 28 U.S.C. § 1330(b); see Alberti v. Empresa Nicaraguense de la Carne, 705 F.2d 250, 252 (7th Cir.1983); Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 313 (2d Cir.1981), cert. denied, 454 U.S. 1148, 102 S.Ct. 1012, 71 L.Ed.2d 301 (1982). The Court has determined that subject matter jurisdiction exists. Defendants have not objected to plaintiff’s service of process. Thus, statutory personal jurisdiction exists.

Besides determining whether the statutory requirements are met, the Court must determine whether personal jurisdiction over this defendant is constitutionally proper. The due process clause of the fifth amendment requires that certain minimum contacts must exist between a defendant and the forum before a court may assert personal jurisdiction over that defendant. World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). The minimum contacts requirement is equally applicable when the defendant is a foreign state. See, e.g., Gilson v. Republic of Ireland, 682 F.2d 1022, 1028-29 (D.C.Cir.1982); Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d at 313-15. In such a case, the weight of authority holds that the relevant question is whether the foreign state has sufficient contacts with the United States as a whole, rather than with any particular state, so that maintenance of the suit does not offend traditional notions of fair play and substantial justice. See e.g., Harris Corp. v. National Iranian Radio and Television, 691 F.2d 1344, 1352-53 (11th Cir.1982); Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d at 314; Sugarman v. Aeromexico, Inc., 626 F.2d 270, 273 (3d Cir.1980); Transamerican S.S. Corp. v. Somali Democratic Republic, 590 F.Supp. 968, 977 (D.D.C.1984). Contra Thos. P. Gonzalez Corp. v. Consejo Nacional, 614 F.2d 1247, 1255 (9th Cir.1980) (considering contacts with forum state). The Court finds the reasoning of the majority persuasive and will thus apply the due process test in context of defendant’s contacts with the United States as a whole.

If the named defendant in this suit were ESESCO, it is clear that the relevant minimum contacts would exist. As discussed above, ESESCO sold over $3 million worth of oleoresins to United States companies after the expropriation. The majority of those oleoresins were shipped to the United States. Plaintiff’s Exhibits E and F. ESESCO solicited sales from a number of United States companies. See Plaintiff’s Exhibit N ¶ 14. An officer of ESESCO has, on numerous occasions, visited at least two of its United States customers, one in New Jersey, the other in New York. Plaintiffs Exhibit N ¶ 45. Further, ESESCO is seeking the protection of this Court in Case One, its action against KAL-SPICE for money due on a contract for purchase of oleoresins.

ESESCO is not, however, the defendant in this case. Thus, the Court must resolve whether the contacts of ESESCO with the United States may be imputed to the PMGSE, the named defendant.

In First National City Bank v. Banco Para El Comerica Exterior de Cuba, 462 U.S. 611, 626-28, 103 S.Ct. 2591, 2600-01, 77 L.Ed.2d 46 (1983), the Supreme .Court held that duly created instrumentalities of a foreign state are to be accorded a presumption of independent status. The Supreme Court also recognized, however, that equitable principles would permit a court to disregard the separate identities of a sovereign and its instrumentalities where the corporation was so extensively controlled by its owner that a relationship of principal and agent is created, where recognition of the separate corporate identity would work a fraud or injustice, or where the corporate form is used to defeat legislative policies. 462 U.S. at 628-30, 103 S.Ct. 2601-02. Based on the current record, the Court is persuaded that this is a case in which the separate juridical identities of ESESCO and the PMGSE should be disregarded.

After expropriating a majority of the ESESCO stock, the PMGSE exercised direct control over the operation of ESESCO by appointing a majority of the board of directors and requiring that all checks in excess of approximately $25,000 be signed by one of the government appointed directors. Plaintiff’s Exhibits B and D. Furthermore, the Ministry of National Resources Development, the governmental agency that took over ESESCO under the Provisional Military Council Declaration of Economic Policy, approved all invoices for shipments of oleoresins exceeding approximately $13,000. Affidavit of Selashe Kebede ¶ 3. Several invoices for shipments sent to the United States bear the seal of the PMGSE. Others bear the new corporate seal of ESESCO, which reads “The Provisional Military Government of Socialist Ethiopia—Ethiopian Spice Extraction Share Company.” Affidavit of Selashe Kebede ¶¶ 6, 7. While thus controlled by the PMGSE, ESESCO invoked the jurisdiction of this Court to recover payment for shipments of oleoresins to KAL-SPICE during the period from February to May, 1975.

The Court concludes that ESESCO’s contacts with the United States must be attributed to the PMGSE for purposes of the minimum contacts due process analysis. To continue to recognize the separate legal status of ESESCO under these circumstances would insulate the PMGSE from liability for its expropriation of KAL-SPICE’s property interest in ESESCO while permitting the PMGSE, through ESESCO, to profit from its commercial activities in the United States and to even assert a claim against KAL-SPICE to recover payment for assets of ESESCO sold in this country. Based on all the above mentioned factors, the Court concludes that maintenance of this suit against the PMGSE in this forum does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Thus, this Court may assume personal jurisdiction over the PMGSE in the context of this case.

Venue

Finally, defendant PMGSE argues that venue is not proper in this district. Defendant contends that venue is appropriate only in the District of Columbia.

Although venue would be proper in the District of Columbia pursuant to 28 U.S.C. § 1391(f)(4), it is also proper in this district. Section 1391(f)(1) provides that venue exists in any judicial district in which a substantial part of the property that is the subject of the action is situated. In this case, the accounts receivable, totalling nearly $2 million, that are at issue in Case One are present in this district. Cf. Vishipco Line v. Chase Manhattan Bank, N.A., 660 F.2d 854, 862 (2d Cir.1981), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982) (accounts receivable, for purposes of the Act of State doctrine, are located at the situs of the debtor). Those accounts receivable are a substantial portion of the assets of ESESCO, the property that is the subject of this action. Thus, venue is proper in this district.

ORDER

In accordance with the Opinion dated August 26, 1985, IT IS HEREBY ORDERED that defendant’s motion to dismiss is denied.

IT IS SO ORDERED.

      . An oleoresin is a semi-processed extract from a raw spice. See Complaint ¶ 9.

      . The “foreign state" referred to in section 1330 and elsewhere in the FSIA is defined in section 1603 as follows:
      § 1603. Definitions
      For purposes of this chapter—
      (a) A "foreign state,” except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).
      (b) An "agency or instrumentality of a foreign state” means any entity—
      (1) which is a separate legal person, corporate or otherwise and
      (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
      (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.
      Because the PMGSE owns fifty-one percent of ESESCO, section 1603(a) and (b)(2) provide that ESESCO is considered a "foreign state” for purposes of interpretation of section 1605.

      . See generally Kahale & Vega, Immunity and Jurisdiction: Toward a Uniform Body of Law in Actions Against Foreign States, 18 Col.J. Transnat’l L. 211, 252-256.

      . The Court does not intend to rule at this point whether the PMGSE’s expropriation of a majority of the stock of ESESCO, as a matter of law, amounts to a de facto taking of the physical assets of ESESCO. The Court is merely noting the allegations made in KAL-SPICE’s complaint.

      . Canadian Overseas Ores, Ltd. v. Compania de Acero, 528 F.Supp. 1337 (S.D.N.Y.1982), aff’d, 727 F.2d 274 (2d Cir.1984), is not to the contrary. That case did not involve an expropriation but the simple repudiation of a contractual obligation. 528 F.Supp. at 1346-47. In this case, no one disputes that the PMGSE expropriated some kind of property, whether stock or assets.

      . See also Kahale & Vega, supra note 3, at 253 (noting that the requirement that there be a violation of international law "in effect merges the substantive cause of action with the jurisdictional issue").

      . See supra note 2.

      . The House Report on the FSIA indicates that Congress intended section 1330(b) to, in effect, serve as a Federal long-arm statute over foreign states. H.R.Rep. No. 1487, 94th Cong., 2d Sess. 13, reprinted in 1976 U.S.Code Cong. & Ad.News 6612.


author: WARRINER, District Judge.

text:
    HMK CORPORATION v. COUNTY OF CHESTERFIELD, et al.
    Civ. A. No. 84-0811-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Aug. 26, 1985.
    Steven L. Micas, Jeffrey L. Mincks, Office of Co. Atty., Chesterfield, Va., County of Chesterfield.
    John J. Beall, Jr., Sr. Asst. Atty. Gen., Richmond, Va., for Harold C. King.

      James G. Harrison, Kevin M. McGowan, Hopewell, Va., for plaintiff.
   OPINION

WARRINER, District Judge.

By order of this Court dated 18 July 1985 the parties were requested to brief the effect, if any, that the Supreme Court’s decision of Williamson County Regional Planning Commission v. Hamilton Bank, — U.S. —, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), has on this Court’s ability to adjudicate this 42 U.S.C. § 1983 action. The parties have briefed the issue and oral arguments were held on this matter on 7 August 1985. The matter is ripe for adjudication.

Plaintiff contends that the defendants conspired with Sigma Corporation by use of legislative and administrative processes to deny plaintiff equal protection and procedural and “substantive” due process, and that defendants have attempted to take plaintiff’s property in violation of the public use clause of the Constitutions of both the Commonwealth of Virginia and the United States.

The heart of plaintiff’s claim is that defendants, with Sigma Corporation, have conspired to use the State condemnation processes to take plaintiff’s property for the private use of Sigma .Corporation. To date the Virginia Department of Housing & Transportation has implemented quick-take procedures under Va.Code § 33.1-89 et seq., to acquire a part of HMK’s property. Under § 33.1-122 plaintiff has been divested of its title to the property and the Commonwealth, by way of the VDH & T, has obtained a defeasible title in that property. The Commonwealth will not gain indefeasible title to this property until condemnation procedures are completed with a favorable ruling for the Commonwealth.

In Williamson County the Hamilton Bank of Johnson City (Bank) owned certain property. The predecessor in interest to that property had obtained tentative approval of a preliminary plat back in 1973 for the development of that property.

In 1977, the county changed its zoning ordinance to require that calculations of allowable density include 10% of the total acreage to account for roads and utilities ... In addition, the number of allowable units was changed to one per acre from the 1.089 per acre allowed in 1973____ The Commission continued to apply the zoning ordinance and subdivision regulations in effect in 1973 to [the property in question] and reapproved the preliminary plat.

Williamson County, — U.S. at —-—, 105 S.Ct. at 3111-13. In August 1979, the Commission reversed its position and determined that for all further development of the property the 1977 zoning ordinance should control. The Bank acquired the property and in 1981 submitted two revised plats for approval. The plats were disapproved for a number of reasons including failure to comply with the requirements of the 1977 zoning ordinance.

The Bank then filed an action pursuant to 42 U.S.C. § 1983 in the United States District Court. The Bank alleged that its property had been taken without just compensation in violation of the Fifth Amendment of the United States Constitution. A jury trial was held and the jury found the Bank had been “denied the economically viable use of its property in violation of the Just Compensation Clause, and that the Commission was estopped under state law from requiring respondent to comply with the current zoning ordinance and subdivision regulations rather than those in effect in 1973.” Williamson County, — U.S. at —, 105 S.Ct. at 3115. The jury awarded plaintiff damages of $350,000. The court then entered a permanent injunction requiring the Commission to apply the ordinances that were in effect in 1973. Later the court granted a judgment n.o.v. on the taking issue declaring that the Bank “was unable to derive economic benefit from its property on a temporary basis only, and that such a temporary deprivation, as a matter of law, cannot constitute a taking.”

The circuit court held that a temporary denial of property could be a taking and would be treated in the same manner as a permanent taking. The Supreme Court granted certiorari “to address the question whether federal, state, and local governments must pay damages to a landowner whose property allegedly has been 'taken’ temporarily by the application of government regulations.” Id. The Court never reached that question determining instead that the action was not ripe for adjudication.

The Fifth Amendment to the United States Constitution provides inter alia “nor shall private property be taken for public use, without just compensation.” For that part of the Fifth Amendment to be violated there are three areas of inquiry: (1) whether there was a taking; (2) whether the taking was for a public or private use; and (3) if there was a taking for public use was just compensation paid. In Williamson County the only issues before the Court were whether there was a taking and if so was the taking without just compensation. The Court determined that the inquiry into both of those questions was premature and not ripe for a decision.

The Court, in dealing with the taking issue, noted that each of the eight objections the zoning commission relied on to deny the Bank’s plat could have been resolved by the granting of variances. The Court noted that the commission itself could have granted a number of variances and the board of zoning appeals could have granted the rest. The Bank asserted that under the Supreme Court’s decision in Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), plaintiffs in a § 1983 action are not required to exhaust administrative remedies. The Supreme Court distinguished Patsy from the case at bar by finding that exhaustion of administrative remedies “is conceptually distinct, ... from the question of whether an administrative action must be final before it is judicially reviewable.” Williamson County, — U.S. at —, 105 S.Ct. at 3119. The Court stated that:

the finality requirement is concerned with whether the initial decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.

The Court distinguished exhaustion of administrative remedies from the finality issue. The Court explained that:

[t]he difference is best illustrated by comparing the procedure for seeking a variance with the procedures that, under Patsy, respondent would not be required to exhaust. While it appears that the State provides procedures by which an aggrieved property owner may seek a declaratory judgment regarding the validity of zoning and planning actions taken by authorities, ... [citations omitted], respondent would not be required to resort to those procedures before bringing its § 1983 action, because those procedures are clearly remedial. Similarly, [the Bank] would not be required to appeal the Commission’s rejection of the preliminary plat to the Board of Zoning Appeals, because the Board was empowered, at most, to review that rejection, not to participate in the Commission’s decision-making.

Id. at —-—, 105 S.Ct. at 3119-21. Ultimately the Court determined as to the taking that, because the Bank had not availed itself of procedure for obtaining variances, the commission did “not conclusively determine whether [the Bank] will be denied all reasonable beneficial use of this property, and therefore is not a final, reviewable decision.” Id. at —, 105 S.Ct. at 3121.

Neither side contends that when the VDH & T employed the quick-take procedure that there was not a taking. However, as I view the quick-take procedures, in light of the variance procedures in Williamson County, it appears quite likely that the taking which vests the VDH & T with a defeasible fee is not a final taking in the sense discussed in Williamson County. It appears that until the Circuit Court grants a fee simple title to the VDH & T, as provided in § 33.1-129, the question presented to me is not ripe.

Even assuming that there has been a taking, the Supreme Court’s analysis in Williamson concerning the Just Compensation Clause would compel this Court to determine that the matter before it is not ripe for adjudication. As the court noted in Williamson “[BJecause the Fifth Amendment prescribes takings without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a § 1983 action.” Williamson Planning Commission, — U.S. at —— n. 13, 105 S.Ct. at 3121 n. 13. The Court noted that Tennessee courts have interpreted the Tennessee Code to allow recovery by instituting inverse condemnation procedures when restrictive laws or regulations affect a taking and that the Bank had not instituted such proceedings. The Court stated “if a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the just compensation clause until it has used the procedure and been denied just compensation.” Id. at —, 105 S.Ct. at 3121.

The Court in reaching its determination analogized the taking in the inverse condemnation procedures to the procedures discussed in Parratt v. Taylor, 451 U.S. 527, 529, 101 S.Ct. 1908, 1910, 68 L.Ed.2d 420 (1981). In Parratt the Court had held:

that a person deprived of property through a random and unauthorized act by a state employee does not state a claim under the Due Process Clause merely by alleging the deprivation of property. In such a situation, the Constitution does not require predeprivation process because it would be impossible or impracticable to provide a meaningful hearing before the deprivation. Instead, the Constitution is satisfied by the provision of meaningful postdeprivation process. Thus, the State’s action is not “complete” in the sense causing a constitutional injury “unless or until the State fails to provide an adequate postdeprivation remedy for the property loss.”

Williamson County (quoting Hudson v. Palmer, — U.S. —, 104 S.Ct. 3194, n. 12, 82 L.Ed.2d 393 (1984)). The Court ultimately held that there was no denial of just compensation because the Bank did not show “that the inverse condemnation procedure is unavailable or inadequate, and until it has utilized that procedure, its taking claim is premature.” — U.S. at —, 105 S.Ct. at 3121. The fact that the actions of Williamson County were not “random and unauthorized” did not deter the Court from noting the analogy between Parratt and Williamson County.

While Williamson County only dealt with the taking and the just compensation clauses the import of the decision is equally applicable when dealing with the third part of the taking clause—the private versus public use clause. Whether the State condemnation procedures considered in light of the quick-take action by the VDH & T would be considered a pre- or post-deprivation hearing, it is undisputed that there are available adequate State procedures in place to determine whether HMK’s property is being taken for a public or a private use. Accordingly, until such time as the State court determines through the available condemnation procedures the public/private use issue, the matter is not ripe in this Court for a determination of § 1983 action.

Plaintiff contends that there are no adequate provisions in State court to award damages to it if, in fact, there was a conspiracy to deprive plaintiff of its property. If it is determined that the property was taken for public use it will be afforded just compensation for that taking. Any other damages they suffer are only those damages that occur as a part of living and doing business in a civilized society. As Justice Stevens noted in his concurring opinion in Williamson County,

Every time a property owner is successful, in whole or in part, in a challenge to a governmental regulation—whether it be a zoning ordinance, health regulation, or traffic law—he is almost certain to suffer some temporary harm in the process. At the least he will usually incur significant litigation expenses and frequently he will incur substantial revenue losses because the use of his property has been temporarily curtailed while the dispute is being resolved____ [There is no] utopian requirement that [an] enforcement action may not impose any cost upon the citizen unless the Government’s position is completely vindicated.

Id. at —-—, 105 S.Ct. at 3124-27 (Stevens, Jr., concurring). Accordingly, any additional costs to plaintiff are those costs incurred in living in a civilized society and are not compensable.

I have carefully considered under the Williamson analysis whether to dismiss or to stay a federal action that is not ripe. If I were simply to stay the matter and it were never ripe, i.e., if the defeasible title of the Commonwealth was divested so that plaintiff will not have suffered by taking for private use, then neither plaintiff nor defendant would have any interest (other than courtesy) to advise this Court that the matter has been resolved. Without such notice from the parties, the unripe fruit having fallen from the bough, the action would linger until removed by this Court for failure to prosecute. Moreover, the “Williamson County finality doctrine” is an area of the law with which I am unfamiliar, as are counsel in this case, and as I have admitted from the bench, Williamson is or may be a puzzle to me. Accordingly, I would suggest my interpretation of the Williamson County application to this case is ripe for an appeal. A stay would not afford the party the ability to resolve the issue by prompt appeal. Dismissal would. For these reasons it is my decision to dismiss without prejudice. An appropriate judgment shall issue.

And it is so ORDERED.