author: KANE, District Judge.

text:
    Rodney D. GOMEZ, Plaintiff, v. The CITY OF SHERIDAN, COLORADO, By and Through the following Officers: Ann HERRING, Mayor, Ronald Salee, Police Commissioner, James Curnes, as City Manager, Wayne Peck, Theresa Vallejos, John Anderson, Ailene Marble, Carol Jonkoniec, as Councilmembers; J.A. Stephenson, as Chief of Police; and J.A. Stephenson, Individually, Defendants.
    Civ. A. No. 83-K-1545.
    United States District Court, D. Colorado.
    June 19, 1985.

      Peter H. Blair, Jr., Stutz, Dyer, Miller & Delap, Denver, Colo., for plaintiff.
    Brad W. Breslau, Deisch and Marion, P.C., Denver, Colo., John E. Hayes, McMartin, Burke, Loser & Fitzgerald, Englewood, Colo., for defendants.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

Plaintiff was discharged as an employee of the Sheridan Police Department on July 26,1983. He instituted this action claiming that the city’s actions denied him due process protections insured by the Fourteenth Amendment of the United States Constitution. Plaintiff also asserts a pendant cause of action for defamation. Trial is scheduled July 11, 1985. Before me today is defendants’ motion for summary judgment.

Summary judgment is a drastic remedy. The Tenth Circuit has cautioned that any relief pursuant to Rule 56, Fed.R.Civ.P., should be applied with care. Jones v. Nelson, 484 F.2d 1165, 1168 (10th Cir.1973). The burden is on the moving party to show the absence of a genuine issue of material fact. Pleadings and factual issues of material fact must be viewed in the light most favorable to the party opposing summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970); Rea v. Wichita Mortgage Corp., 747 F.2d 567, 573 (10th Cir.1984). However, a party opposing summary judgment may not rest on allegations contained in pleadings to rebut the movant’s factual proof in support of the motion for summary judgment. The party opposing the motion must respond with specific facts demonstrating genuine issues requiring resolution at trial. Unless the moving party can demonstrate his entitlement beyond a reasonable doubt, summary judgment must be denied. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980).

The uncontroverted facts are as follows. On June 21,1982, the Sheridan City Council approved a recommendation that the probationary period for police employees be extended from the six-month period in effect on that date to a full year. On August 6, 1982, plaintiff was hired by the Sheridan Police Department as a police officer. Plaintiff was advised when he was hired that he would be a probationary employee of the police department for a one-year period. On July 26, 1983, the Chief of Police recommended to the city council that plaintiff be dismissed as a police officer. The city council accepted and approved the recommendation and plaintiff was discharged. Plaintiff was not afforded a hearing regarding his termination.

Defendants’ motion for summary judgment argues that: 1) plaintiff had neither a property nor a liberty interest protected by the Fourteenth Amendment which would require a hearing; and 2) the police chief was privileged in publishing the allegedly defamatory comments regarding the reasons for plaintiff’s termination to the city council on July 26, 1983. In response, plaintiff contends that: 1) he was a permanent employee at the time he was discharged and, as such, he had a property interest at stake; and 2) the police chief’s comments to the city council were made maliciously and, therefore, exceeded the scope of any privilege. Plaintiff does not respond to defendants’ motion for summary judgment regarding the asserted liberty interest apparently in the belief that there is a sufficient showing of a property interest and that it was infringed.

I.

Procedural Due Process

“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). When either of these protected interests is implicated, the plaintiff is entitled to a pretermination hearing. Roth, 408 U.S. 564, 570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548, see also Cleveland Bd. of Educ. v. Loudermill, — U.S. -, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1984); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); Miller v. City of Mission, Kan., 705 F.2d 368, 369 (10th Cir.1983). However, plaintiff must first establish that there is a protected interest at stake: "

A public employee facing discharge is entitled to the safeguards of procedural due process only if he can demonstrate that the termination implicates a property or liberty interest protected by the Due Process Clause; if a property or liberty interest is not implicated, “he must settle for whatever procedures are provided by statute or regulation.”

Sipes v. United States, 744 F.2d 1418, 1420 (10th Cir.1984) (citation omitted).

A.

Property Interests

Determination of a plaintiff’s property interests is a question of state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). As the United States Supreme Court has stated:

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548. Ultimately, the question is whether the plaintiff has a “legitimate claim of entitlement” to the benefit alleged to constitute a property interest. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548.

In this case, the issue is whether the plaintiff had a protected property interest in his employment as a police officer. Defendants claim that plaintiff was a probationary employee at the time he was dismissed. In support, defendants point to the city council resolution extending the probationary period from six months to one year which was implemented pursuant to § 2-4 of the Sheridan Municipal Code before the plaintiff was hired. Section 2-4 provides:

Rules, Regulations of Police Department. All officers and members of the police department shall be subject to such rules and regulations as shall be prescribed from time to time by the chief of police and approved by the city council.

In response, plaintiff first asserts that the city council’s action, increasing the probationary period for police employees, was an ordinance or was intended to amend § 2-55(e) of the Sheridan Municipal Code. This section provides:

Each employee receiving an appointment or a promotion to a position with the city must serve a probationary period of six (6) months before his/her appointment or promotion shall be considered permanent ... An employee terminated during the probationary period does not have the right of appeal or a hearing ...

Because Sheridan is not a home rule city, it cannot enact ordinances without following the publication requirements specified in Colo.Rev.Stat. §§ 31-16-105, 31-16-106 (1984 Cum.Supp.). Plaintiff asserts that since the publication requirements were not complied with, the city council’s action was ineffective in changing the six-month probationary period for police employees. Therefore, plaintiff maintains that his employment was permanent, rather than probationary, at the time he was discharged.

Additionally, plaintiff argues that § 2-36(g) of the Sheridan Municipal Code controls. This section provides that department directors such as the police chief, “[h]ave power, when authorized by the council, to appoint and remove, subject to any personnel system regulations for personnel, all subordinates under him.” Plaintiff maintains that “personnel system regulations” refers to those ordinances within Article IV of the Sheridan Municipal Code, and not those prescribed pursuant to § 2-4. Specifically, plaintiff contends that § 2-55(e) is one of the “personnel system regulations” referred to in § 2-36(g) and that the six-month probationary period applied.

These contentions give rise to two issues. First, whether § 2-36(g) applies only to those ordinances within Article IV of the Sheridan Municipal Code. Second, whether the council’s extension of the probationary period was made pursuant to § 2-4 or was intended to amend § 2-55(e).

The same rules of construction are used in construing legislative enactments whether they are statutes or ordinances. Martin v. King, 417 F.2d 458, (10th Cir.1969). It is a basic rule of statutory interpretation or construction that statutes are to be

construed in a manner so as to effectuate the intent of the enacting body, and that in construing a statute the court should first look to the language of the statute itself. If the language is clear and the purpose appears with reasonable certainty, there is no need to resort to other rules of construction to ascertain its meaning. United States v. Ray, 488 F.2d 15 (10th Cir.1973). An unambiguous statute must be given effect according to its plain and obvious meaning. United States v. Western Pacific Railroad Company, 385 F.2d 161 (10th Cir.1967).

Colorado Public Interest Research Group, Inc. v. Train, 507 F.2d 743 (10th Cir.1974), rev’d on other grounds, 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976); see also People v. Deadmond, 683 P.2d 763 (Colo.1984); Engelbrecht v. Hartford Acc. & Indem. Co., 680 P.2d 231 (Colo.1984); Colo. Rev.Stat. § 2-4-101 (1980 Repl.Vol.).

In the present case, § 2-36(g) refers to “any personnel system regulations.” Because the word “any” in § 2-36(g) is unambiguous, I find that this section does not refer only to those ordinances within Article IV of the Sheridan Municipal Code. Rather, the plain meaning of § 2-36(g) is to refer to all personnel regulations, including those prescribed pursuant to § 2-4.

Section 2-55(e) is a general provision which applies to all city employees. Section 2-4, on the other hand, is a specific provision which applies only to police employees. The apparent intent of the city council, in enacting § 2-4, was to allow the police chief to subject police employees to separate and distinct rules and regulations. Pursuant to § 2-4, in order to prescribe a different rule or regulation for police employees, the city council need only approve the rule or regulation recommended by the police chief. The city council need not enact a new ordinance or amend an existing one to change a rule regarding police employees.

Plaintiff’s contention that the city council’s extension of the probationary period was ineffective because it was not published pursuant to state regulations does not take into account the city council’s power to change police regulations under § 2-4. It is clearly implied that the city council did not intend to amend § 2-55(e) or to enact a new ordinance in changing the probationary period for police employees. Rather, it intended to act pursuant to § 2-4, prescribing a different rule or regulation for police officers.

The extended probationary period for police officers under § 2-4 thus conflicts with the six month period provided all city employees under § 2-55(e). It is impossible to give effect to both of these regulations. Under Colorado law, where “the conflict between provisions is irreconcilable, the special or local provision prevails as an exception to the general provision____’’ Colo.Rev.Stat. § 2-4-205 (1980 Repl.Vol.). Since § 2-4 is a specific provision, and § 2-55(e) is a general provision, regulations made pursuant to § 2-4, such as the one year probationary period, prevail as an exception to the general six-month probation rule. Accordingly, plaintiff was still a probationary employee when he was terminated. As such, he had no legitimate entitlement to his employment as a police officer and there was no property interest at stake. Since there was no property interest at stake, the Fourteenth Amendment’s protections were not implicated and the plaintiff was not entitled to a prior hearing complying with due process. See Owens v. City of Derby, Kan., 586 F.Supp. 37 (D.Kan.1984).

B.

Defendants claim, in their motion for summary judgment, that plaintiff also does not have a constitutionally protected liberty interest. Plaintiff fails completely to respond to this issue in his brief.

Absent a property interest, a public employee facing discharge is entitled to the safeguards of procedural due process only if he can demonstrate that the termination implicates a liberty interest protected by the Due Process Clause. Sipes, 744 F.2d 1418, 1420 (10th Cir.1984). As the Tenth Circuit has stated,

“The concept of liberty recognizes two particular interests of a public employee: 1) the protection of his good name, reputation, honor and integrity, and 2) his freedom to take advantage of other employment opportunities.” Weathers v. West Yuma County School District RJ-1, 530 F.2d 1335, 1338 (10th Cir.1976) (quoting Lipp v. Board of Education, 470 F.2d 802, 805 (7th Cir.1972)) ... The manner in which a public employee is terminated may deprive him of either or both of these liberty interests.

Miller, 705 F.2d 368, 373.

For a public employee to make a successful liberty deprivation claim under the first type of liberty interest, he must first show that the dismissal resulted in the publication of information which was false and stigmatizing. Sipes, 744 F.2d 1418, 1421; see also Asbill v. Housing Authority for the Choctaw Nation of Oklahoma, 726 F.2d 1499, 1503 (10th Cir.1984). In the present case, the reasons given for plaintiffs dismissal included failure to appear at court and administrative hearings and training sessions which he was required to attend; failure to follow procedures on completing paperwork; and general problems in planning and organization, accepting directives, and quality of work.

Defendants allege that plaintiff cannot show that the reasons given for plaintiffs discharge were sufficiently stigmatizing. In support for this contention, defendants cite a recent Tenth Circuit opinion which draws a distinction between dismissal for misconduct and reasons which “call into question plaintiffs good name, reputation, honor and integrity.” Sipes, 744 F.2d 1418, 1422. In Sipes, the plaintiff was “discharged for being tardy, failing to schedule leave (noted as ‘lack of reliance’), and for engaging in ‘horseplay’ ”. Sipes, 744 F.2d 1418, 1422. The court found that these reasons were insufficient to implicate a constitutionally protected liberty interest, implying that much more is required such as allegations of dishonesty or immorality. Sipes, 744 F.2d 1418, 1422. Similarly, I find that the reasons given for plaintiff’s dismissal were not sufficiently stigmatizing to constitute an infringement of a liberty interest. There is no suggestion that plaintiff’s interest in his “good name, reputation, honor, or integrity” is at stake.

A liberty interest may also be impinged if the employer “imposed on him a stigma or disability that foreclosed his freedom to take advantage of other employment opportunities.” Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548. The Court in Roth, however, cautioned that a liberty interest is not implicated merely because “nonretention in one job, taken alone, might make him somewhat less attractive to some other employers____” Roth, 408 U.S. 564, 574 n. 13, 92 S.Ct. 2701, 2708 n. 13, 33 L.Ed.2d 548. In the present case, the plaintiff has admitted that he has no knowledge of any facts to support a position that defendants have communicated in any way with a prospective employer or that the decision of any prospective employer not to hire plaintiff was affected by communications by defendants. Plaintiff merely alleges that he has tried to gain further employment as a police officer but has not been successful in doing so. Without evidence that he has been foreclosed from other employment opportunities, beyond the fact that his dismissal might make him less attractive to other employers, a constitutionally protected liberty interest is not implicated.

For these reasons, I find that no protected liberty interest was infringed.

II.

Defamation

Plaintiff’s second claim for relief is based on a state claim for defamation. On motion for summary judgment, defendants assert that the police chief’s communications to the city council regarding the reasons why plaintiff should be dismissed were privileged because the police chief made them in good faith and was required to obtain the council’s approval. Plaintiff, on the other hand, contends that the police chief maliciously misrepresented the reasons for dismissal, thereby exceeding the scope of any qualified privilege. Plaintiff, through his brief and affidavits, clearly has established the existence of a factual determination to be made by the trier of fact as to scope of the privilege. Therefore, summary judgment is inappropriate.

III.

Jurisdiction

Defendants also move for dismissal of the pendant defamation claim for lack of jurisdiction. Since there are no federal questions remaining, I grant the motion for dismissal without prejudice.

The issue whether pendant jurisdiction has been properly assumed is one which remains open throughout the litigation. United Mine Workers of America v. Gibbs, 383 U.S. 715, 727, 86 S.Ct. 1130, 1139,16 L.Ed.2d 218 (1966). As the United States Supreme Court has stated,

Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a súrer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.

United Mine Workers, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218, see also Network Project v. Corporation for Public Broadcasting, 561 F.2d 963 (D.C.Cir.1977).

IT IS, THEREFORE ORDERED:

1. Defendants’ motion for summary judgment regarding the issue of a constitutionally protected property interest is granted.

2. Defendants’ motion for summary judgment regarding the issue of a constitutionally protected liberty interest is granted.

3. Defendants’ motion for summary judgment regarding the state claim of defamation is denied.

4. Plaintiff’s pendant state claim for defamation is dismissed without prejudice.

5. The trial date of July 11, 1985 is vacated.

6. Each party shall bear his or its own costs.

      . Plaintiff based his assertion of a property interest solely on his alleged status as a permanent employee. This assertion alone would not be sufficient to overcome the employment-at-will doctrine which also must be considered in determining whether there is a protected property interest. As I have stated before, "[t]he case law in this and other jurisdictions generally provides that where the police officer can be fired without cause on the decision of the city manager alone there is no constitutionally protected property interest." Kuhns v. City of Commerce City, Colorado, No. 84-K-1317, slip op. at (D.Colo. April 22, 1985); see also Owens v. City of Derby, Kan., 586 F.Supp. 37 (D.Kan.1984).

      . Plaintiff has failed to respond to defendants’ motion for summary judgment regarding alleged infringement of a constitutionally protected property interest. Under some circumstances, this might be grounds to grant defendants’ motion for summary judgment under Fed.R. Civ.P. 56(e) which provides:
      ... When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in his pleading, but his response, by affidavits or otherwise provided in this rule, must set forth specific facts that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
      This rule makes clear the substantial risk of an adverse judgment to a nonresponding party. See, e.g., Casper v. Neubert, 489 F.2d 543 (10th Cir.1973). However, it must still be determined whether summary judgment is appropriate. Thus, I am obligated to search the record and determine independently whether a genuine issue, of fact exists. See Higgins v. Baker, 309 F.Supp. 635 (S.D.N.Y.1970). Here, I am satisfied that there is no genuine issue of fact regarding the liberty interest issue.


source: Caselaw Access Project

author: EDELSTEIN, District Judge:

license: Public Domain

text:
    The ORE & CHEMICAL CORPORATION, Petitioner, v. STINNES INTEROIL, INC. and Sergeant Oil & Gas Co., Inc., Respondents.
    No. 84 Civ. 6553 (DNE).
    United States District Court, S.D. New York.
    June 19, 1985.

      Milgrim, Thomajan Jacobs & Lee, P.C., New York City, David P. Langlois, New York City, of counsel, for petitioner.
    Parker, Auspitz, Neesemann & Delehanty, P.C., New York City, Jack C. Auspitz, New York City, of counsel, for respondent Stinnes Interoil, Inc.
    Healy & Baillie, New York City, Raymond A. Connell, New York City, of counsel, for respondent Sergeant Oil & Gas Co., Inc.
   OPINION AND ORDER

EDELSTEIN, District Judge:

By opinion and order dated April 22, 1985, this court denied the petition of the Ore & Chemical Corporation (“OCC”) to compel consolidated arbitration, pursuant to 9 U.S.C. § 4. Ore & Chemical Corp. v. Stinnes Interoil, Inc., 606 F.Supp. 1510 (S.D.N.Y.1985). Familiarity with the facts of this case as set forth in that opinion is assumed. OCC’s petition had also sought an order: (1) directing arbitration before the American Arbitration Association (“AAA”) and (2) directing the AAA to appoint neutral arbitrators. The court explicitly deferred its ruling on this portion of the petition. The court gave the parties until May 13, 1985 to reach agreement on the issue of appointment of arbitrators, at which time, if no agreement was reached, the court would reconsider the exercise of its authority, pursuant to 9 U.S.C. § 5, to appoint arbitrators. Ore & Chemical Corp. v. Stinnes Interoil, Inc., supra, at 1516.

By letter received by the court on May 13, 1985, OCC informed the court that the parties were unable to agree on the appointment of arbitrators. OCC also informed the court that it was no longer seeking appointment of an arbitration panel by the AAA. OCC requested the court to appoint one arbitrator to preside at both the OCC-Sergeant Oil & Gas, Inc. (“SOG”) arbitration and the OCC-Stinnes Interoil, Inc. (“Stinnes”) arbitration, because “a single arbitrator serving in both disputes would be readily able to consolidate the arbitrations without needing to add a chairman and would also provide the salutary benefits of consistency in interpretation of fact and testimony.” Stinnes, by letter received by the court on May 15, 1985, and SOG, by letter received on May 16, 1985, have objected to OCC’s application of May 13. SOG requests an order directing the SOG-OCC arbitration to proceed before a three man panel, with each party choosing one arbitrator and those two arbitrators choosing a third. In the alternative, if the court deems a sole arbitrator necessary, both SOG and Stinnes request that the court appoint one arbitrator for the SOG-OCC arbitration, and a different arbitrator for the OCC-Stinnes arbitration.

DISCUSSION

Jurisdiction.

The first issue to be addressed is one of jurisdiction. On May 23, 1985, OCC filed a notice of appeal of the court’s April 22, 1985 Opinion and Order. By letter received by the court on May 29, 1985 counsel for SOG stated: “We assume the matter of arbitrator selection will be held in abeyance pending the outcome of the appeal.” Also by letter received by the court the same day, counsel for Stinnes requested the court to “take no action with respect to appointing an arbitrator until the pending appeal is resolved.” Stinnes states that “it would appear that OCC’s action has deprived this Court of jurisdiction to take further action with respect to OCC’s petition.” By letter received by the court on June 5, 1985, Ore, the petitioner, contends that the court retained jurisdiction to appoint arbitrators, because the consolidation issue is “collateral” to the appointment of arbitrators issue.

It is well settled that the filing of a notice of appeal divests the district court of jurisdiction over those aspects of the case involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). This rule, however, does not bar the court’s exercise of jurisdiction over the remaining portions of OCC’s petition. Notice of appeal from an unappealable order does not divest the district court of jurisdiction. Leonhard v. United States, 633 F.2d 599, 610 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981). Moreover, a premature notice of appeal has no effect and does not divest the district court of jurisdiction. Griggs v. Provident Consumer Discount Co., supra, 459 U.S. at 61, 103 S.Ct. at 403. There is a question as to whether the April 22, 1985 order is appealable as a “final decision of the district court,” pursuant to 28 U.S.C. § 1291. Although orders compelling arbitration are appealable under Section 1291, Karavos Compania, Etc. v. Atlantic Export Corp., 588 F.2d 1, 7 (2d Cir.1978), the court’s April 22 order did not compel arbitration, but denied consolidated arbitration. This denial did not terminate the litigation and, in fact, the court, at Stinnes’ suggestion, gave the parties additional time to reach agreement on the appointment of arbitrators. Cf. Compania Espanola de Pet., S.A. v. Nereus Shipping, S.A., 527 F.2d 966, 973 (2d Cir.1975), cert. denied, 426 U.S. 936, 96 S.Ct. 2650, 49 L.Ed.2d 387 (1976) (order consolidating arbitrations held appealable, because “order not only mandated the procedural step of consolidation, it also obligated the parties to arbitrate, thereby affecting their substantive rights”). Moreover, review of the April 22, 1985 order is available on appeal from a final judgment. See Papilsky v. Berndt, 503 F.2d 554, 556 (2d Cir.), cert. denied, 419 U.S. 1048, 95 S.Ct. 624, 42 L.Ed.2d 643 (1974). Ultimately, determination regarding appealability is for the court of appeals. Schlehan v. Olympic Worldwide Communications, Inc., 763 F.2d 135, 138 (2d Cir.1985). However, if the April 22, 1985 order is not appealable, this court’s jurisdiction is not disturbed.

If, on the other hand, the court of appeals finds the April 22, 1985 order appeal-able pursuant to Section 1291, the court would still have jurisdiction to decide the issue of appointment of arbitrators. The only basis for appealability of the April 22 order is that it is a “collateral order.” See 15 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure (Civil), § 3911 (1976). As one commentator has noted, “[s]ince [under the collateral order doctrine] there is no pretense that the appeal is from an order that finally terminates the litigation, there is no reason to treat the appeal as transferring the entire litigation to the court of appeals. Instead, the district court should have the same power to proceed as it enjoys pending frankly interlocutory appeals under 28 U.S. C.A. § 1292(a) or § 1292(b).” Id. § 3911, at 497. Moreover, this court’s retention of jurisdiction to enter an order appointing arbitrators would not cause harm or prejudice to any party. See Silberman v. Bogle, 486 F.Supp. 70, 73 (E.D.Pa.1980) (despite its power to proceed during pendency of appeal of collateral order, district court should “weigh heavily” the possible harm or prejudice of continued proceedings). The parties have nothing left to do; there is no discovery to take and the parties had already set forth their positions on the issue of appointment of arbitrators before the notice of appeal was filed. Thus, there are no “subsequent proceedings” that a reversal of the April 22, 1985 order would “vitiate.” 15 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure, § 3911 at 497 (1976). In sum, whether or not the April 22, 1985 order is determined to be appealable, the court retains jurisdiction to finalize the judgment and appoint arbitrators.

The Petition to Appoint Arbitrators.

9 U.S.C. § 5 provides:

If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, ... then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.

The arbitration agreements in this case contain only one sentence: “Laws of the State of New York to Apply with Arbitration in New York.” It is undisputed that the agreements contain no provision for the appointment of arbitrators. Because the parties have not “otherwise provided in the agreement,” the statute binds the court to compel arbitration by a single arbitrator. Thus, SOG’s application for appointment of a panel of arbitrators is denied.

Respondents contend that the appointment of one arbitrator for both arbitrations would violate the spirit of the court’s April 22 opinion. This contention is rejected. The court held that under 9 U.S.C. § 4, it had no authority to compel consolidated arbitration, and that even if it had such authority, in the exercise of its discretion it would decline to order consolidation, leaving the decision as to consolidation to the arbitrator(s). The court did not rule, however, that 9 U.S.C. § 4 requires the court to take all measures to assure that the arbitrations will remain separate and autonomous. If consolidation of these arbitrations is appropriate, that decision can best be made by one arbitrator who is familiar with both the SOG-OCC and the OCC-Stinnes transactions. While 9 U.S.C. § 4 does not give the court authority to force the procedural posture of consolidation on the arbitrator, the statute does not preclude the court from making consolidation easier for the arbitrator to effect. See Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1068 (2d Cir.1972) (“federal law is to be implemented in such as way as to make the arbitration effective and not to erect barriers ... ”).

Stinnes contends that “[t]here is no statutory authority for the appointment of a single arbitrator with respect to each of two separate arbitrations.” The statute, however, clearly provides authority for the appointment of an arbitrator in each of the two arbitrations. The fact that an arbitrator has been appointed once by a court does not preclude the court from choosing that arbitrator again for another arbitration. Moreover, the fact that the arbitrator has a complete picture of the facts involved in the transactions does not constitute grounds for his disqualification.

SOG contends that under petitioner’s proposal, OCC would have a “double opportunity” to influence the arbitrator, thereby placing respondents at a procedural disadvantage. If this is truly SOG’s concern, then it should consent to a consolidated arbitration to avoid any appearance by OCC before the arbitrator without SOG being present. Moreover, if the two disputes are separate, as respondents have contended before this court throughout, and the arbitrator so finds, the fact that OCC appears in both arbitrations is of no concern. The court cannot assume that the arbitrator will give OCC’s position more weight merely because OCC appears before it more often.

The appointment of one arbitrator to preside over both arbitrations is not contrary to the parties’ intent as expressed in the language of the arbitration agreement. Both SOG and Stinnes could have inserted provisions in the arbitration agreements preserving their rights to particular arbitrators or to a particular method of selection. The agreements, however, are silent as to the appointment issue.

One arbitrator will be in a better position to determine whether the two actions should be consolidated and, if he so determines, to act on that decision. Alternatively, if the arbitrator finds that consolidation is not appropriate or that he is not empowered to consolidate the arbitrations, the arbitrator can take other measures to assure that OCC is not exposed to duplicative liability. Such measures include, but are not limited to, regulating the timing of hearings and conducting discovery in tandem. In any event, one arbitrator presiding over both arbitrations will have a more complete picture of the transactions in this case, which will decrease the risk of inconsistent verdicts.

Respondents request the court to appoint a lawyer to serve as arbitrator. Petitioner contends that “a commercial person is as well qualified as a judge, if not, [sic] better qualified to place events in the context of industry norms and standards and to interpret the law of the merchant.” An appropriate compromise would entail the appointment of a lawyer who is familiar with commercial transactions involving the shipment of gasoil. Accordingly, the court appoints Mindes Hershman, Esq., of Rosenman, Colin, Freund, Lewis & Cohen, 575 Madison Avenue, New York, New York 10022, to preside at both arbitrations.

CONCLUSION

OCC’s petition for appointment of one arbitrator to preside at both the SOG-OCC arbitration and the OCC-Stinnes arbitration is granted. The court appoints Mendes Hershman, Esq. to preside at both arbitrations. The clerk is directed to enter final judgment as provided in this opinion and the opinion and order dated April 22, 1985.

SO ORDERED.

      . A reversal of the April 22, 1985 order would, of course, "vitiate" this opinion and order and require the court to reconsider the issue of appointment of arbitrators. However, a reversal would require the court to reconsider the appointment issue whether or not it issues this opinion. The important point is that the parties will suffer no prejudice from the court’s retention of jurisdiction to enter this order.


author: WHITMAN KNAPP, District Judge.

text:
    UNITED STATES of America, v. Jose MORALES, Defendant.
    No. 85 CR 182 (WK).
    United States District Court, S.D. New York
    June 19, 1985.
    As Modified June 21, 1985.

      Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., by Vincent L. Briccetti, Asst. U.S. Atty., New York City, for plaintiff.
    Gerald J. McMahon, New York City, for defendant.
   MEMORANDUM & ORDER

WHITMAN KNAPP, District Judge.

Defendant moves to suppress certain statements made by him as well as physical evidence obtained from his person in the course of his arrest for violations of the narcotics laws. He asserts that his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were violated and that his arrest was unlawful.

The facts which emerged at the hearing held on this motion and from defendant’s affidavit made in support thereof are as follows. At about 5:00 p.m. on February 6, 1985, a team of five narcotics law enforcement police officers executed a search warrant at a building on the lower east side of Manhattan. They were admitted into the apartment after they requested entry, were refused, and then attempted a forced entry. Transcript of May 9, 1984 Hearing (“Tr.”) at 11,14. They found three persons inside: the elderly tenant, Maria Hernandez, her infant niece, and defendant Jose Morales. The first person they observed was Hernandez. Tr. 11. The officers then noticed defendant, who was standing in or near a doorway between the living room and a back bedroom. Tr. 11, 58. They directed defendant to sit on a couch in the living room. Tr. 11, 24. After frisking defendant and ascertaining that no other persons were present, the officers holstered their guns. Sergeant Katowitz, the leader of the team, advised Maria Hernandez of her Miranda rights in the kitchen of the apartment, Tr. 26, while defendant remained under guard in the adjacent living room. Sergeant Katowitz did not know whether defendant heard what was said to Hernandez, Tr. 26, and he was not at this time separately advised of his Miranda rights. Defendant and Hernandez were not told they were under arrest, Tr. 13, 42, and neither was handcuffed, Tr. 14, 59, but neither was free to leave the premises, Tr. 14, 28-29.

The officers commenced their search of the apartment. During this time defendant remained in the living room under the guard of another officer. Tr. 25-26. Hernandez, whom Sergeant Katowitz described as a person who “appeared to be no threat to anyone,” Tr. 11, may have been directed to go from the kitchen to the living room because “it was a little more comfortable, she was an elderly woman,” with a small child. Tr. 39. After approximately 45 minutes, Officer Cannon found three glassine envelopes containing white powder on the floor of the back bedroom, Tr. 16, 44, which bore the appellation “AIDS.” Tr. 44. He picked them up and gave them to Officer Solberg, Tr. 46, who went to the living room, held up the envelopes and asked, “Whose are these?,” Tr. 61, or “Who do these belong to?” Tr. 16, 28. Officer Sol-berg stated that he was not talking to anyone in particular, although Officer Cannon remembered that Solberg had approached and addressed the defendant. Tr. 46. Defendant responded that the glassines were his, Tr. 46, and that they were for his own use. Tr. 66. He was thereupon placed under arrest, handcuffed, and read his Miranda rights by Sergeant Katowitz. Defendant stated that he understood these rights, Tr. 31, though Sergeant Katowitz could not remember whether he said he wished to talk. Ibid.

The search proceeded for about another 30 minutes. Tr. 27. No other narcotics were found. Tr. 61. The officers then informed defendant that he would be strip searched and asked if he wanted to tell them whether he had anything on his person. Tr. 36, 62. Defendant informed them that he had seven more glassine envelopes in the waistband of his pants. He was then asked, “you have seven in your waistband, why was there three in the bedroom? If you were looking to dump, why didn’t you dump all of them?” Tr. 36. Defendant responded that he had had a hard time getting them out, that he had heard the police coming through the door, that he was afraid and that he was in a rush trying to remove them. Tr. 36-37. The defendant then showed the officers where the seven glassines were secreted in his pants, Tr. 37, 62, and Officer Cannon reached inside and removed them. Tr. 62. These envelopes were marked in the same way as the three glassines found in the bedroom. Tr. 48.

Defendant was interviewed later that night by Assistant United States Attorney Franklin Stone, who again advised him of his Miranda rights. He asked to see a lawyer and no statement was taken. The charges against Maria Hernandez, who was also arrested, were later dropped.

By letter dated June 14, 1985, the Government informed defendant’s attorney that it would seek to introduce at trial a further statement made by defendant after his arrest. From this letter it appears that on the day of his arrest defendant had been taken to the 7th Precinct where he asked an officer, Bill Bradley, to tell him about the federal system. The officer asked defendant what he wanted to know about it, and defendant “stated, in substance, that he had been caught with ten bags and had no choice but to plead guilty.” This statement was not before us at the hearing and was not explored.

DISCUSSION

The Detention

We first find that defendant was permissibly detained pursuant to the police officers’ execution of a valid search warrant under the rationale of Michigan v. Summers (1981) 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340, and that this detention did not itself rise to the level of an arrest. The Court in Summers, 452 U.S. at 705, 101 S.Ct. at 2595, held that

for Fourth Amendment purposes, ... a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.

The Court’s holding was framed in terms of “occupants,” not solely “owners,” and defendant fell within its scope by his presence in the searched apartment. See United States v. Taylor (4th Cir.1983) 716 F.2d 701, 707. Furthermore, defendant’s detention satisfied two of the three justifications given for the Summers rule by “preventing flight in the event that incriminating evidence [was] found,” 452 U.S. at 702, 101 S.Ct. at 2594, and insuring the safety of the police. Ibid. The fact that defendant, not the tenant of the apartment, was unable to facilitate “the orderly completion of the search,” the third rationale presented by Summers, id. at 703, 101 S.Ct. at 2594, does not undermine the otherwise valid interest in detaining him.

Further, we do not find the circumstances of the detention to have suggested an arrest. The officers’ display of drawn guns in the apartment was permissible even in the absence of probable cause to arrest, United States v. Harley (2d Cir.1982) 682 F.2d 398, 401, and defendants’ detention for approximately 45 minutes pri- or to discovery of the heroin glassines was within the scope of a permissible detention. See United States v. Timpani (1st Cir.1981) 665 F.2d 1 (45 minutes); Summers, supra (detention of sufficient length to discover drugs underneath bar in basement of house).

Pre-Arrest Statements

As defendant was not informed of his Miranda rights until after he admitted ownership of the three glassines of heroin and was arrested, his pre-arrest statements must be suppressed if they were the result of custodial interrogation. Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Defendant was detained for almost an hour in an apartment that was not his home. He was directed by an officer with a drawn gun to sit on a couch in the living room where another of the five police officers kept watch over him. We believe this clearly constituted such a deprivation of his freedom of action as to render him “in custody.” Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612; see Orozco v. Texas (1969) 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (custodial interrogation in defendant’s bedroom).

The Government’s citation of Michigan v. Summers, supra, is inapposite. While the holding in Summers justified defendant’s detention as an occupant of the premises for which a valid search warrant was being executed, the Court’s opinion nowhere suggests that the mere fact a “detention” may have been permissible for Fourth Amendment purposes made it any less “custodial” for Miranda purposes.

Nor are we persuaded by the Government’s citation of Berkemer v. McCarty (1984) — U.S. -, 104 S.Ct. 3138, 82 L.Ed.2d 317, where the Court held that a roadside traffic stop was not “custodial” for purposes of Miranda. The deprivation of defendant’s liberty here was certainly far greater than that of a subject of a roadside stop which lasts “only a few minutes,” id. at 3149, and which is made in public with only one or two police officers present. Id. at 3150.

Having found that defendant was in custody, we further find that he was subjected to “interrogation” prior to being given the Miranda warnings. Even assuming that both he and Maria Hernandez were in the living room when Officer Solberg asked, “Whose are these?” and that the question was directed at both rather than at defendant alone, this gathering of suspects was sufficiently small that defendant might have felt he was being questioned individually. Furthermore, while defendant was told to stay in the living room under police guard, Maria Hernandez, who “appeared to be no threat to anybody,” Tr. 11, and whose movements none of the officers could recall with the same detail as those of defendant, was apparently more free to roam. In this situation, we believe it plausible that defendant felt it was he who was being questioned and find that Sergeant Solberg’s question was one which “the police should [have known was] reasonably likely to elicit an incriminating response,” Rhode Island v. Innis (1980) 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, especially when we focus “primarily upon the perceptions of the [defendant], rather than the intent of the police.” Ibid.

As defendant was subjected to custodial interrogation without the benefit of his Miranda rights, we conclude that his responses to the question “Whose are these?” must be suppressed. Oregon v. Elstad (1985) — U.S. -, 105 S.Ct. 1285, 84 L.Ed.2d 222.

The Arrest and Post-Arrest Statements

Morales was not the tenant or owner of the apartment under search. Probable cause to arrest him therefore did not arise from the officers’ discovery of drugs in the bedroom, compare Summers, supra (presence of drugs in house creates probable cause to arrest house owner), but from defendant’s admission that the three glassines were his. See Rawlings v. Kentucky (1980) 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (once petitioner admitted ownership of drugs in co-defendant’s purse, police had probable cause to arrest him).

This admission was taken in violation of defendant’s Miranda rights, however, and we are guided by this Circuit’s opinion in United States v. Marchand (2d Cir.1977) 564 F.2d 983, cert. denied (1978) 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760, to find that such illegality rendered his consequent arrest invalid. In Marchand, Judge Friendly described defendant’s contention that “the arrest was illegal since it was based on [evidence obtained] in the course of an unlawful search ...,” id. at 991, and stated that

[i]f the arrest stemmed solely from the discovery of Marchand’s name [from an illegal search], we would be constrained to agree ...”.

Ibid. Finding that a properly obtained basis for probable cause otherwise existed, however, the Court declined to invalidate the arrest. Here, probable cause for Morales’ arrest derived entirely from his unwarned admission. As there was no other basis on which to find probable cause, the arrest must be declared illegal. See United States v. Taheri (9th Cir.1981) 648 F.2d 598, 601 (where only basis for arrest was illegally seized evidence, the court, citing Marchand, supra, held that “the arrest is also illegal since it was not supported by any independent factual basis providing probable cause at the time it was made”).

Defendant’s post-arrest surrender of seven heroin glassines from his waistband and his explanation as to why he had not “dumped” them were made in response to the officers’ threat that he would be strip-searched, which threat was validly made only as incident to defendant’s arrest. Similarly, but for the arrest he would not have been in a police station to make the' statement to Officer Bradley, or any other police officer. His surrender of the drugs and statements thereafter must be suppressed as fruits of his unlawful arrest. Wong Sun v. United States (1963) 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441.

Defendant’s motion to suppress his prearrest statement, post-arrest statements, and the seven glassine bags of heroin recovered from his person is granted.

SO ORDERED.

      . The Sergeant advised her that "she had a right to remain silent, anything she said could be used against her in a court of law. I advised her she has a right to have an attorney present during any questioning. If an attorney could not be afforded, one would be provided free of cost; that if she decided to talk, she could stop at any time and request an attorney presence [sic]." Tr. 12-13.

      . Sergeant Katowitz testified that he "told him he had a right to remain silent, anything he said could be used against him in a court of law. I advised him he had a right to have an attorney present during any questioning. I advised him that if an attorney — he could not afford an attorney, one would be provided free of cost. I advised him that if he decided to talk, any time he wanted to stop and have an attorney present he would be allowed to do so." Tr. 35.


author: JOYCE HENS GREEN, District Judge.

text:
    Alan CRANSTON, et al., Plaintiffs, v. Ronald W. REAGAN, et al., Defendants.
    Civ. A. No. 84-1545.
    United States District Court, District of Columbia.
    June 20, 1985.
    Eldon V.C. Greenberg, Galloway & Greenberg, Washington, D.C., for plaintiffs.
    R. Lawrence Dessem, David J. Anderson, Vincent M. Garvey, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendants.
   MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

This action is brought by three members of Congress (one United States Senator and two United States Representatives) and six self-described public interest organizations against various individuals within the executive branch of the United States Government. Each of the defendants was allegedly involved in the negotiation, review, recommendation, and/or authorization of identical provisions of Agreed Minutes which are an integral part of the Agreement for Cooperation between the United States of America and Sweden Concerning Peaceful Uses of Nuclear Energy (the Swedish Agreement) and the Revised Agreement for Cooperation between the United States of America and Norway Concerning Peaceful Uses of Nuclear Energy (the Norwegian Agreement) (collectively “the Agreements”). Plaintiffs assert that these Agreements (in particular, the Agreed Minutes thereto) violate provisions of the Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2282, as amended by the Nuclear Non-Proliferation Act of 1978 (“the NNPA”), Pub.L. No. 95-242, 92 Stat. 120 (Mar. 10, 1978), in that they grant the advance long term consent of the United States to the transfer by Sweden and Norway of spent nuclear reactor fuel for reprocessing at facilities in the United Kingdom and France, subject to certain limitations.

This action involves interpretation of the Atomic Energy Act/NNPA provisions concerning international management of spent nuclear reactor fuel. Spent fuel is nuclear reactor fuel that has been irradiated in a nuclear reactor in order to produce power through nuclear fission. The physics of the nuclear fission reaction need not be described here. For our purposes, it will suffice to recognize a nexus between the civilian nuclear power process and the risk of proliferation of nuclear explosives. While spent fuel used in a civilian fission reactor cannot be directly fashioned into a nuclear explosive, it can be reprocessed to provide weapons grade plutonium suitable for nuclear weapons manufacture. Thus, a spent fuel management policy is essential to prevent diversion of nuclear materials into the hands of would-be weapons manufacturers. One aspect of that policy under the Atomic Energy Act and NNPA is the focus of this case.

Plaintiffs seek a judicial determination that the Norwegian and Swedish Agreements violate certain spent fuel management provisions of the Atomic Energy Act as amended by the NNPA. They further seek a mandatory injunction requiring the Secretary of State of the United States and the Secretary of Energy of the United States to review case by case all transfers from Sweden and Norway of spent reactor fuel subject to the Agreements for purposes of reprocessing. Complaint at 27. Defendants have moved to dismiss the complaint on the grounds that (1) the case presents a nonjusticiable political question, (2) plaintiffs are without standing to sue, and (3) Congress intended to preclude judicial review of agreements for nuclear cooperation, including the Agreements at issue here.

Statutory Background

Under the Atomic Energy Act of 1954, an agreement for cooperation is the fundamental mechanism for nuclear cooperation between the United States and other nations or international organizations. Such bilateral agreements provide the framework for technical cooperation and for export of certain nuclear materials from the United States to nations abroad, and for safeguarding of exported items against theft, diversion or illicit use; moreover, an agreement for cooperation is a prerequisite to the licensing of certain nuclear exports. See Note, Nuclear Proliferation and Subsequent Arrangements for Retransfer for Reprocessing (hereinafter “Nuclear Proliferation”), 20 Va.J. Int’l L. 99, 100 n. 13 (1979), citing Library of Congressional Research Service, United States Agreements for Cooperation in Atomic Energy, prepared for Senate Comm, on Government Operations, 94th Cong., 2d Sess. (Comm. Print 1976) at CRS-24; see also 42 U.S.C. § 2153.

Section 123 of the Act, 42 U.S.C. § 2153, sets forth substantive and procedural requirements applicable to agreements for cooperation. Substantively, Section 123 as amended provides that a proposed agreement “shall include” nine particular elements. The mandatory elements at issue in this case are the following:

(5) a guaranty by the cooperating party that any material or any Restricted Data transferred pursuant to the agreement for cooperation and ... any production or utilization facility transferred pursuant to the agreement for cooperation or any special nuclear material[] produced through the use of any such facility or through the use of any material transferred pursuant to the agreement, will not be transferred to unauthorized persons or beyond the jurisdiction or control of the cooperating party without the consent of the United States.
(7) [except in cases not here applicable] a guaranty by the cooperating party that no material transferred pursuant to the agreement for cooperation and no material used in or produced through the use of any material, production facility, or utilization facility transferred pursuant to the agreement for cooperation will be reprocessed, enriched or (in the case of plutonium, uranium 233, or uranium enriched to greater than twenty percent in the isotope 235, or other nuclear materials which have been irradiated) otherwise altered in form or content without the prior approval of the United States.

Complaint ¶¶ 26, 42.

Procedurally, section 123 allocates responsibilities and establishes steps for negotiation, review and approval of agreements for cooperation. Under this section, agreements are to be negotiated by the Secretary of State, “with the technical assistance and concurrence of the Secretary of Energy and in consultation with the Director of the Arms Control and Disarmament Agency” (“ACDA”). 42 U.S.C. § 2153(a). The President then is to consider the recommendations of these officials and of the Nuclear Regulatory Commission, as well as an unclassified nuclear proliferation assessment statement prepared by ACDA. Id. Presidential approval of an agreement requires a written determination by the President that “the performance of the proposed agreement will promote, and will not constitute an unreasonable risk to, the common defense and security.” 42 U.S.C. § 2153(b). The Act also provides for Congressional review of agreements for cooperation: certain agreements (including the Norwegian and Swedish Agreements at issue here) must be “submitted to the Congress, together with the approval and determination of the President, for a period of sixty days of continuous session ... and referred to the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate.” 42 U.S.C. § 2153(d). Procedures for Congressional consideration of Presidential submissions are set forth at 42 U.S.C. § 2159. That section provides for consideration by the relevant committees and the respective Houses of Congress, debate, and passage of a concurrent resolution approving or disapproving the agreement under review. 42 U.S.C. § 2159(b)-(f). In keeping with Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), Congress cannot veto an agreement for cooperation by a concurrent resolution pursuant to this section.

Section 303 of the NNPA added to the Atomic Energy Act section 131, which deals with “subsequent arrangements” arising under agreements for cooperation, 42 U.S.C. § 2160. Such subsequent arrangements are entered into by the United States and another country after the agreement for cooperation between those parties takes effect, and may involve, inter alia,

[United States] approvals for the transfer, for which prior approval is required under an agreement for cooperation, by a recipient of any source or special nuclear material, production or utilization facility, or nuclear technology____

42 U.S.C. § 2160(a)(2)(B). Section 131 further provides that:

(1) Prior to entering into any proposed subsequent arrangement under an agreement for cooperation ... the Secretary of Energy shall obtain the concurrence of the Secretary of State and shall consult with the Director, the Commission, and the Secretary of Defense: Provided, That the Secretary of State shall have the leading role in any negotiations of a policy nature pertaining to any proposed subsequent arrangement regarding arrangements for the storage or disposition of irradiated fuel elements or approvals for the transfer, for which prior approval is required under an agreement for cooperation, by a recipient of source or special nuclear material, production of utilization facilities, or nuclear technology. Notice of any proposed subsequent arrangement shall be published in the Federal Register, together with the written determination of the Secretary of Energy that such arrangement will not be inimical to the common defense and security, and such proposed subsequent arrangement shall not take effect before fifteen days after publication____

42 U.S.C. § 2160(a). If, in the view of the ACDA Director, a proposed subsequent arrangement “might significantly contribute to proliferation”, he may prepare an unclassified risk assessment “to ensure that assistance to be furnished pursuant to the subsequent arrangement will not be used to further any military or nuclear explosive purpose.” 42 U.S.C. § 2160(b). Preparation of an assessment statement may delay the Federal Register publication referenced in paragraph (a). 42 U.S.C. § 2160(a).

With regard to exports of certain nuclear materials from the United States to another country, section 131 further provides for submission by the Secretary of Energy to the House Committee on Foreign Affairs and the Senate Committee on Foreign Relations, at least 15 days of continuous session in advance of entry into any subsequent arrangement (except in emergency circumstances), of a report containing his reasons for approving any transfers to a third country for purposes of reprocessing. 42 U.S.C. § 2160(b)(1). In addition, if the subsequent arrangement is for the reprocessing of nuclear material or the retransfer of more than 500 grams of plutonium to a non-nuclear-weapon state, the Secretaries of Energy and of State must both determine that such reprocessing or retransfer will not significantly increase the risk of nuclear proliferation. 42 U.S.C. § 2160(b)(2) and (3). In making this judgment, the Secretaries must give “foremost consideration to whether or not the reprocessing or retransfer will take place under conditions that will ensure timely warning to the United States of any diversion well in advance of the time at which the non-nuclear-weapon state could transform the diverted material into a nuclear explosive device.” Id.

The Norwegian and Swedish Agreements and Plaintiffs’ Claims

In this action, plaintiffs contend that the statutory scheme outlined above, and specifically 42 U.S.C. §§ 2153 and 2160, require that decisions regarding transfer and reprocessing of spent nuclear reactor fuel be made subsequent to initial agreements for cooperation, in the context of case by case scrutiny of the proliferation risks associated with the particular materials being transferred. Plaintiffs’ Memorandum at 3. On that basis they challenge the validity of the Norwegian and Swedish Agreements. By their terms, those Agreements permit Norway and Sweden to retransfer spent fuel to facilities in the United Kingdom and France for reprocessing throughout the 30-year life of the Agreements. The advance consent provisions are subject to some limitations and oversight by the United States, but absent certain circumstances they do not call for case by case review of retransfers.

The Norwegian and Swedish Agreements are the product of some five years of negotiation, which included extensive discussions of the prior consent issue. The advance consent provisions in those Agreements reflect a policy change brought about by the Reagan administration: previous presidential administrations, both before and after the passage of the NNPA, considered requests to retransfer and reprocess irradiated fuel elements on a case by case basis as they arose. See Plaintiffs’ Memorandum at 5. The Norwegian and Swedish Agreements — the first to include advance consent provisions — were adopted through the process prescribed by statute and outlined above; that is, the Agreements were reviewed by the Secretaries of State and Energy, and the Director of ACDA, and those officials submitted to the President statements, findings, and/or recommendations as required under the Act. Each of those officials specifically addressed the matter of advance consent to retransfers for reprocessing with respect to proliferation risks; each concluded that execution of the Agreements would be compatible with United States nonproliferation policy. The Director of ACDA further concluded that the proposed Agreements met all substantive requirements of the Atomic Energy Act and NNPA. See Swedish Message, supra n. 7 at 45; Norwegian Message, supra, n. 7 at 89. Upon review of those submissions, the Agreements, and the views of the Nuclear Regulatory Commission, the President approved the Agreements and authorized their execution by memoranda dated November 21, 1983. Swedish Message at 45; Norwegian Message at 41.

Pursuant to Section 123, 42 U.S.C. § 2153(d), the President submitted the Agreements, together with statements of the Secretaries of State and Energy, the-Director of ACDA, and the NRC, to the Congress on January 26, 1984. During the 60 days of continuous session that followed, neither House of Congress held hearings or requested the views of any of the affected agencies and departments as provided for in the Act, nor did either House of Congress attempt to pass a concurrent resolution disapproving either of the Agreements or take any other legislative action to disapprove the Agreements. After passage of the 60-day period and after approval of the Swedish Agreement by the Swedish Government, on April 11, 1984, the United States and Sweden exchanged diplomatic notes bringing that Agreement into force. On June 5, 1984, the Parliament of Norway approved the Norwegian Agreement, and the diplomatic notes bringing this Agreement into effect were exchanged on June 2, 1984.

Defendants deny that the Norwegian and Swedish Agreements — including the advance consent provisions — run afoul of the Atomic Energy Act and NNPA. Leaving aside the merits of the case, defendants argue in the instant motion that plaintiffs’ claim is of a nonjusticiable nature, that plaintiffs lack standing to pursue it, and that the statute precludes judicial review of the Agreements.

Justiciability

Defendants argue that plaintiffs’ attempt to invalidate the advance consent provisions of the Norwegian and Swedish Agreements presents a nonjusticiable political question. In defendants’ view, this case places at issue United States nuclear nonproliferation policy and foreign relations, matters best (and necessarily) left to the political branches of government.

Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) supplies the standards for identifying nonjusticiable political questions. That case sets forth six separate formulations:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

369 U.S. at 217, 82 S.Ct. at 710; see also Consumer Energy, Etc. v. FERC, 673 F.2d 425, 452 (D.C.Cir.1982), aff'd 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402, 77 L.Ed.2d 1403, 77 L.Ed.2d 1413 (1983); Sanchez-Espinoza v. Reagan, 568 F.Supp. 596, 599 (D.D.C.1983); Crockett v. Reagan, 558 F.Supp. 893, 898 (D.D.C.1982), aff'd 720 F.2d 1355 (D.C.Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 3533, 82 L.Ed.2d 839 (1984). If any one or more of these conditions is inextricable from the case at bar, dismissal for nonjusticiability under the political question doctrine may well be appropriate. Greenham Women Against Cruise Missiles v. Reagan, 591 F.Supp. 1332 (S.D.N.Y.1984), aff'd 755 F.2d 34 (2d Cir.1985); see also Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710.

The Baker v. Carr criteria may be grouped and stated as three inquiries:

(i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?

Goldwater v. Carter, 444 U.S. 996, 998,100 S.Ct. 533, 534, 62 L.Ed.2d 428 (1979) (Powell, J., concurring); Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C.Cir.1984), vacated on other grounds sub nom. Weinberger v. Ramirez, — U.S.-, 105 S.Ct. 2353, 86 L.Ed.2d 255 (1985). Turning to the first of these, defendants contend that plaintiffs’ claim raises issues of nuclear nonproliferation policy which concern both national security and foreign policy matters generally committed to the political branches of government. Given the statutory provision for executive negotiation and approval and legislative review of agreements for cooperation, defendants argue, judicial review of the Norwegian and Swedish Agreements would be particularly inappropriate.

At one level of analysis, plaintiffs’ claim certainly relates to foreign policy and national security; however, “it is error to suppose that every case or controversy which touches on foreign relations lies beyond judicial cognizance.” Baker v. Carr, 369 U.S. at 211, 82 S.Ct. at 706; Ramirez de Arellano v. Weinberger, 745 F.2d at 1512; see also Adams v. Vance, 570 F.2d 950, 954 (D.C.Cir.1978). Plaintiffs do not call for a judicial determination of what nuclear nonproliferation policy should be, or whether the United States would be wise to export nuclear materials to Norway and Sweden under any particular agreement of cooperation. The sole question presented here is whether a statutory scheme with specific provisions governing “subsequent arrangements” to agreements for cooperation — including arrangements for retransfers which require prior approval under an agreement — will permit advance consent for retransfers as an element of the agreement itself. The issue is one of statutory interpretation, a matter within the province of the Courts. See generally Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243,_n. 25, 104 S.Ct. 1776, 1785 n. 25, 80 L.Ed.2d 273 (1984) (issue of whether agency order is inconsistent with Warsaw Convention does not raise political question). The fact that plaintiffs seek as a remedy the abrogation of international agreements does not bear on whether the issues to be adjudicated are political in nature, although the consequences of judicial action (i.e. the grant of a remedy) may be relevant under another formulation of the political question test. See Greenham Women Against Cruise Missiles v. Reagan, 591 F.Supp. at 1335-36, but see affirmance, 755 F.2d at 37; see also Ramirez de Arellano v. Weinberger 745 F.2d at 1512-15; id. at 1547 and n. 5 (Tamm, J., dissenting).

The nature of the remedy sought is, in this case, directly relevant to the category of Baker v. Carr criteria labelled “prudential considerations”. See generally Goldwater v. Carter, 444 U.S. at 998, 100 S.Ct. at 534. These considerations — the need to maintain respect for coordinate branches of government, the need for adherence to a political decision already made, and the interest in avoiding the embarrassment of “multifarious pronouncements”, see Wright, Federal Courts at 77 (1933) — would all be called into play by a decision to set aside agreements which are the product of delicate and extensive international negotiation. Defendants correctly point out that an about-face on the advance consent issue at this time would damage United States credibility in the civilian nuclear arena and undermine United States efforts to persuade other nations of our views on nonproliferation. As the Court of Appeals for this Circuit has stated in another context:

This country’s interests in regard to foreign affairs and international agreements may depend on the symbolic significance to other countries of various stances____

Adams v. Vance, 570 F.2d 950, 955 (D.C.Cir.1977). The challenged Agreements incorporating the United States’ stance as to advance consent have progressed through the political processes of three nations and taken effect. Were this Court to adopt a new stance, “ignoring the delicacies of diplomatic negotiation, the inevitable bargaining for the best solution of an international conflict, and the scope which in foreign affairs must be allowed to the President”, Mitchell v. Laird, 488 F.2d 611, 616 (D.C.Cir.1973), the “symbolic impact” would be grave indeed. See Adams v. Vance, 570 F.2d at 956; see generally Sanchez-Espinoza v. Reagan, 568 F.Supp. at 600.

Defendants further observe that under customary international law, a party may not invoke the provisions of its internal law as justification for disregarding the terms of an international agreement. See Restatement (Second) of Foreign Relations Law of the United States §§ 138, 140 (1965). The reasons for this custom are self-evident. In this case, unilateral modification of the Norwegian and Swedish Agreements could well convey the message that in the eyes of the United States, nonproliferation agreements need not be taken seriously. Nothing could be further from the truth.

In sum, this is a case in which the legal issues presented fall within the Court’s province to decide, but the “possible consequences of judicial action” render the case nonjusticiable. See Baker v. Carr, 369 U.S. at 211-12, 82 S.Ct. at 706-07; Greenham Women Against Cruise Missiles v. Reagan, 591 F.Supp. at 1339; Atlee v. Laird, 347 F.Supp. 689, 705 (E.D.Pa.1972) (three-judge panel), aff'd sub nom. mem. Atlee v. Richardson, 411 U.S. 911, 93 S.Ct. 1545, 36 L.Ed.2d 304 (1973); see also Ramirez de Arellano v. Weinberger, 745 F.2d at 1547 (Tamm, J., dissenting). The concerns underlying this complaint could have been aired before execution of the Norwegian and Swedish Agreements through enactment of a Congressional concurrent resolution, see 42 U.S.C. § 2153(d); however, neither House of Congress protested the inclusion of the advance consent provisions, despite their statutorily-guaranteed opportunity to do so. Accordingly, at this late hour the Court will not disturb the “single-voiced statement of the Government’s views” on this issue. Baker v. Carr, 369 U.S. at 211, 82 S.Ct. at 706.

Conclusion

Because this case presents a nonjusticiable political question, the Court need not reach the' remaining issues raised in defendants’ motion to dismiss, standing and statutory preclusion of judicial review. Parenthetically, even if the Congressional plaintiffs had standing to bring this action, the Court would deny the requested relief in an exercise of remedial discretion. See e.g., Moore v. U.S. House of Representatives, 733 F.2d 946, 954-55 (D.C.Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 779, 83 L.Ed.2d 775 (1985); Riegle v. Federal Open Market Committee, 656 F.2d 873, 881 (D.C.Cir.1981), cert denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981); Sanchez-Espinoza v. Reagan, 568 F.Supp at 600-01 n. 5; Crockett v. Reagan, 558 F.Supp. at 902-03, affd 720 F.2d at 1355; cf. United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375 (D.C.Cir.1984).

Accordingly, and for the reasons set forth above, it is by the Court this 20th day of June, 1985

ORDERED that defendants’ motion to dismiss the complaint on the basis of nonjusticiability is hereby granted, and this case stands dismissed.

      . Plaintiff Alan Cranston is a United States Senator and a member of the Senate Committee on Foreign Relations. Plaintiff Howard E. Wolpe and plaintiff Michael D. Barnes are United States Representatives and members of the House Committee on Foreign Affairs. Complaint ¶¶ 4-6.

      . The organizational plaintiffs are: the Nuclear Control Institute, the Union of Concerned Scientists, Greenpeace, U.S.A., the Natural Resources Defense Council, Inc., the Energy Research Foundation and Greenpeace, Sweden. The first five of these are U.S. organizations; the sixth is based in Sweden. Complaint ¶¶ 7-12.

      . The defendants named are Ronald W. Reagan, President of the United States, George P. Schultz, Secretary of State of the United States, Donald P. Hodel, Secretary of Energy of the United States, Kenneth L. Adelman, Director, United States Arms Control and Disarmament Agency, and the Chairman and members of the United States Nuclear Regulatory Commission. The current Secretary of Energy is John S. Herrington.

      . For a concise description of the process, see Note, Nuclear Proliferation and Subsequent Arrangements for Retransfer for Reprocessing, 20 VaJ. Int’l L. 99 (1979).

      . Id. at 102 n. 18.

      . "Special nuclear material” is defined at 42 U.S.C. § 2014(aa) (1976).

      . For example, both Agreements provide that: "The understandings concerning fuel disposition may be terminated in whole or in part, if either party considers that exceptional circumstances of concern from a non-proliferation or security standpoint so require; to the extent time and circumstances permit, the parties will consult prior to any such termination. Such circumstances include, but are not limited to, a determination by either party that the foregoing understandings cannot be continued without a significant increase of the risk of proliferation or without jeopardizing its national security." See January 26, 1984 Presidential Message: "Cooperation Concerning Peaceful Uses of Nuclear Energy Between United States and Sweden,” ("Swedish Message”) at 37; January 26, 1984 Presidential Message: "Revised Agreement for Cooperation Concerning Peaceful Uses of Nuclear Energy Between the United States and Norway,” ("Norwegian Message”) at 35. Both Presidential messages are contained in the Appendix filed with Defendants’ Motion to Dismiss.

      . The NRC stated that it "[did] not object” to the proposed Agreements "in view of the advanced state of [the] negotiations ... and the nonproliferation credentials of the country involved.” The Commission’s message to the President noted that two Commissioners were concerned by the 30-year advance consent provisions. Norwegian Message at 99-100; Swedish Message at 102-103.

      . Both the political question doctrine and the doctrine of remedial discretion turn on separation of powers concerns, which do not enter into the standing inquiry. See Moore v. U.S. House of Representatives, 733 F.2d at 954; McGowan, Congressmen in Court: The New Plaintiffs, 15 Ga.L.Rev. 241 (1981); see generally Baker v. Carr, 369 U.S. at 210, 82 S.Ct. at 706 ("the nonjusticiability of a political question is primarily a function of the separation of powers").


author: MacMAHON, Senior District Judge.

text:
    SALEM TRANSPORTATION COMPANY OF NEW JERSEY, INC., Metropolitan Limousine Service, Inc. and Salem Transportation Company, Inc., Plaintiffs, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Defendant.
    No. 84 Civ. 5756 (LFM).
    United States District Court, S.D. New York.
    June 20, 1985.

      Stein, Davidoff & Malito by Richard C. Stein, Matthew Feigenbaum and Ronni M. Rothbart, New York City, for plaintiffs.
    Patrick J. Falvey by Arthur P. Berg, Richard K. Helman and Anne M. Tannenbaum, New York City, for defendant.
   MacMAHON, Senior District Judge.

Plaintiffs, Salem Transportation Company of New Jersey, Inc., Metropolitan Limousine Service, Inc. and Salem Transportation Company, Inc. (“Salem”), move, pursuant to Rule 56, Fed.R.Civ.P., for partial summary judgment on the issue whether permit fees imposed by defendant Port Authority of New York and New Jersey (“Port Authority”) violate 49 U.S.C. § 1513(a) and the Commerce Clause of the United States Constitution, Article 1, Section 8, Clause 3. Defendant Port Authority moves, also pursuant to Rule 56, for summary judgment dismissing the complaint.

FACTS

Plaintiffs are engaged in the business of transporting air passengers to and from and between the New York area metropolitan airports by means of ground transportation. Some passengers are transported from one airport to another according to agreements between plaintiffs and certain airlines.

Port Authority, an agency of New York and New Jersey, created by an interstate compact, maintains various public terminals, transportation and other facilities of commerce, including John F. Kennedy International Airport, LaGuardia Airport and Newark International Airport. It is within Port Authority’s sole discretion to control the financing, construction, leasing charges, rates, tolls, contracts and operation of the air terminals.

Although ground access to the terminals is free, anyone desiring to solicit business at the airports must pay a fee. A permit is normally granted upon agreement to pay a gross receipts fee, which is sometimes in addition to a fixed minimum charge. In return for gross receipts fees, the permit-tee receives (1) the right to manned counters and/or courtesy phones and to have its services sold through consolidated counters in all Port Authority operated terminals and in all airline operated terminals; (2) the right to use roadways in front of, and adjacent to, terminals and waiting/parking areas; (3) a number of airport promotion and advertising benefits and (4) identification as a Port Authority permittee.

Starting in or about 1971, plaintiffs received certain permits from Port Authority which allowed plaintiffs to conduct their ground transportation operations at the airports in return for a fee based on a percentage of their gross receipts. The amount of permit fees depends on the number of passengers transported by plaintiffs and the price charged per passenger.

DISCUSSION

Plaintiffs first contend that the imposition of the gross receipts fee for transportation of air travel passengers violates 49 U.S.C. § 1513(a), which prohibits the imposition of a head tax by local or state governments either on passengers or on the carriage of such passengers in air commerce. Specifically, § 1513(a) provides:

(a) No State (or political subdivision thereof, including the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the District of Columbia, the territories or possessions of the United States or political agencies of two or more States) shall levy or collect a tax, fee, head charge, or other charge, directly or indirectly, on persons traveling in air commerce or on the carriage of persons traveling in air commerce or on the sale of air transportation or on the gross receipts derived therefrom; except that any State (or political subdivision thereof, including the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the District of Columbia, the territories or possessions of the United States or political agencies of two or more States) which levied a tax, fee, head charge, or other charge, directly or indirectly, on persons traveling in air commerce or on the carriage of persons traveling in air commerce or on the sale of air transportation or on the gross receipts derived therefrom prior to May 21, 1970, shall be exempt from the provisions of this subsection until December 31, 1973.

The statute was enacted in response to the United States Supreme Court’s decision in Evansville-Vanderbush Airport Authority v. Delta Airlines, 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972).

In Evansville, the Supreme Court upheld passenger head taxes for aviation purposes enacted by New Hampshire and Evansville, Indiana. “The Court, in essence, ruled that states and cities could constitutionally impose a reasonable charge on interstate and intrastate air passengers in order to underwrite airport operational and developmental costs. Yet, the decision did not sufficiently define the ruling as, for example, what constitutes a reasonable charge, or just how far a state or municipality could go in levying head taxes.” 1973 U.S.Code Cong. & Ad.News 1446.

In 1970, congress passed the Airport and Airway Development Act, which established a national Aviation Trust Fund for improvements in the national air transportation system. An 8% charge was levied on domestic passenger airline tickets, while $3.00 per person was charged for international trips. However, the congressional committee “never intended that air travelers would be subject to state and local head taxes as well as to national user charges.” Id., at 1450.

The legislative history, as well as the few decisions which address § 1513(a) indicate that congress was concerned with the imposition of a double tax on air passengers traveling in air transportation or air commerce. Id., at 1434-1463; 119 Cong.Rec. 3349-3350 (1973); Aloha Airlines v. Director of Taxation of Hawaii, 464 U.S. 7, -, 104 S.Ct. 291, 293, 78 L.Ed.2d 10 (1983); Island Aviation, Inc. v. Guam Port Authority, 562 F.Supp. 951, 957 (D.Guam 1982); Arizona v. Cochise Airlines, 128 Ariz. 432, 436, 626 P.2d 596, 600 (Ariz.1981). In 1973, congress enacted § 1513(a) to ensure that double taxation would not result.

Plaintiffs contend that, since their ground passengers either have traveled, or will travel, by aircraft, a fee imposed on their gross receipts is equivalent to a head tax prohibited by § 1513(a). In support of their contention, plaintiffs rely on the statutory definitions of “interstate air commerce” and “interstate air transportation.” Those terms mean the carriage by aircraft of persons or property for compensation or hire in commerce, between certain points “whether such commerce moves wholly by aircraft or partly by aircraft and partly by other forms of transportation.” 49 U.S.C. § 1301(23), (24). Plaintiffs contend that their ground transportation is an “other form of transportation” and therefore a part of interstate air commerce or of interstate air transportation.

Plaintiffs, however, fail to apply the correct definitions of “air commerce” and “air transportation.” “Air transportation” means “interstate, overseas, or foreign air transportation or the transportation of mail by aircraft.” 49 U.S.C. § 1301(10) (emphasis added). “Air commerce” means “interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or navigation of aircraft within the limits of any Federal airway or any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or, foreign air commerce.” 49 U.S.C. § 1301(4) (emphasis added). These are the definitions which should be applied to § 1513(a) to determine its parameters. 1973 U.S. Code Cong. & Ad.News l452; Cochise Airlines, supra, 128 Ariz. at 435, 626 P.2d at 599.

Contrary to plaintiffs’ assertions, there is no mention of “other forms of transportation” in these definitions. Even if plaintiffs’ definitions were employed, they must be read in context. There is no evidence that congress intended that § 1513(a) would include a prohibition of fees on ground transportation service. Section 1513(a) was intended to include only air transportation and air commerce by aircraft and not other forms of service or transportation which may affect air transportation or air commerce by aircraft. The broad reading which plaintiffs assert would defeat the purpose of the statute and would cripple Port Authority’s effective operation of the airports.

The legislative history is replete with references to air travelers, air passengers and air transportation. 1973 U.S.Code Cong. & Ad.News 1450-1453. The legislative discussions also indicate that the prohibition on state and local taxes only refers to taxes imposed on air transportation of airline passengers and not to other forms of transportation. 119 Cong.Ree. 3349-3350 (1973).

“Congress passed § 1513(a) to deal primarily with local head taxes on airline passengers.” Aloha Airlines, supra, 464 U.S. at-, 104 S.Ct. at 294-295. The section was not passed to prohibit the imposition of fees on ground transportation service.

Plaintiffs also contend that the permit fees violate the Commerce Clause of the Constitution, Article 1, Section 8, Clause 3, because § 1513(a) preempts Port Authority from levying a tax based on their gross receipts. This contention fails because we have found that § 1513(a) does not prevent Port Authority from imposing a permit fee based on plaintiffs' gross receipts derived from their ground transportation service.

Plaintiffs further contend that the fees constitute an undue burden on interstate commerce and violate the Commerce Clause because they (1) are discriminatory against interstate commerce; (2) are not based on a fair approximation of use or privilege and (3) are excessive.

In a similar situation, “the fee charged by the Port Authority [was] not subject to challenge under the Commerce Clause.” Transport Limousine of Long Island v. Port Authority of New York and New Jersey, 571 F.Supp. 576, 581 (E.D.N.Y.1983). As a market participant, Port Authority is not subject to the restraints of the Commerce Clause. Id. The challenged fee does not constitute a burden on interstate commerce. Plaintiffs’ conclusory allegations are insufficient to show that the fees charged are not reasonable and fixed according to some fair and practical standard. Id. at 582.

Accordingly, plaintiffs’ motion for summary judgment is denied. Defendant’s motion for summary judgment is granted and the complaint is dismissed.

So ordered.


author: McMILLEN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. William HALEY and Jeffrey Berry, Defendants.
    Nos. 84 CR 529-1, 84 CR 529-5.
    United States District Court, N.D. Illinois, E.D.
    June 21, 1985.
    Ira Raphaelson, Asst. U.S. Atty., N. D. Ill., Chicago, Ill., for United States.
    Richard Jalovec, Chicago, Ill., for defendant Haley.
    Nicholas Syregelas, Chicago, Ill., for defendant Berry.
   DECISION

McMILLEN, District Judge.

Defendant Haley filed numerous pretrial motions in this case which were assigned to Magistrate Gotschall for a recommendation. Defendant Berry filed a motion to dismiss and other pretrial motions which were assigned to Magistrate Lefkow. Since the motions cover substantially the same subject matters, we will decide them together.

Most significant are the motions to dismiss Count Three which alleges a violation of 18 U.S.C. § 371, the general conspiracy statute. Defendants contend that this count should be dismissed because a conspiracy to distribute a controlled substance was alleged in Count One and a conspiracy to import a controlled substance was alleged in Count Two. Therefore, they contend that Count Three should be dismissed as duplicitous, and both magistrates have so recommended. The government has filed a timely objection which requires that the issue be considered de novo. 28 U.S.C. § 636(b)(1)(C).

Count One is brought pursuant to 21 U.S.C. § 846. Count Two is brought pursuant to 21 U.S.C. § 963. Count Three is brought pursuant to 18 U.S.C. § 371. The overt acts alleged in Counts One and Two are the same, whereas the overt acts alleged in Count Three are travels which are not alleged in the first two counts. In fact, Counts One and Two could be proved without any travelling being involved. Count Three charges knowingly travelling in interstate commerce (§ 1952) to promote the violations alleged in Counts One and Two.

The same defendants are alleged to be members of the conspiracies in all three counts, and the dates and places where the conspiracies allegedly existed are the same and the controlled substance is marijuana in all three counts. Thus the government has charged the defendants with three separate offenses all arising out of the same series of events. Apparently the government is attempting to divide one continuing conspiracy into violations of three different statutes, in order to obtain multiple convictions and possibly heavier penalties.

We see nothing particularly wrong with this, since the objectives of each conspiracy and the statutes allegedly violated are different. The indictment could have been pleaded in one count, but we see no reason why it cannot be divided into three counts, so long as the objectives are distinguishable. If the forbidden acts did not all involve drugs, but involved successive mail frauds or transportation of stolen goods, for example, they would stand. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).

On the other hand, the magistrates point out that the sentences should not be cumulative if the defendants are found guilty on more than two counts. The Fifth Circuit held in United States v. Mori, 444 F.2d 240 (1971), cert. denied, 404 U.S. 913, 92 S.Ct. 238, 30 L.Ed.2d 187 (1971) that consecutive sentences could not be imposed for importing marijuana in violation of 21 U.S.C. § 174 and for travelling in foreign commerce to promote that importation in violation of 18 U.S.C. § 371, although that decision antedated Albernaz, supra. A somewhat similar result was reached in Ward v. United States, 694 F.2d 654 (11th Cir.1983) where the court held that a § 371 conspiracy to violate 18 U.S.C. § 659 was “subsumed” in a § 371 conspiracy to violate 18 U.S.C. § 2313. These cases involved sentencing, not dismissal of counts or vacating convictions. Furthermore, the Ward decision was based upon the allegation of a lesser included offense in the second count.

On the other hand, the Second Circuit held in United States v. Thomas, 757 F.2d 1359 (1985) that cumulative sentences could be imposed for a conspiracy to violate narcotics laws (21 U.S.C. § 1846) and a conspiracy to violate R.I.C.O. (18 U.S.C. § 1962(d)). This was based upon the court’s belief that additional matters were required to prove a violation of R.I.C.O. and that the case therefore fell within the holding of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Judge Newman dissented in Thomas on the ground that Congress did not intend that cumulative penalties could be imposed when a Section 846 narcotics conspiracy is a lesser-included offense within a R.I.C.O. narcotics conspiracy. 757 F.2d at 1376.

The magistrates base their recommendations that Count Three should be dismissed on the grounds that it is duplicitous, perhaps fearful of double jeopardy. We do not agree because each count does allege a different objective of the conspiracy and requires different facts for a conviction. It is our opinion that cumulative sentences perhaps should not be imposed upon the three counts if the evidence shows that they were all parts of one continuing conspiracy. If, on the other hand, it should develop that there were two or more conspiracies or objects of the conspiracies, then the sentences could be cumulative.

Magistrate Lefkow issued a second report dated May 10, 1985 with respect to defendant Jeffrey Berry. He had made a motion to transfer this case to Florida, which the magistrate recommended denying. We agree with this recommendation and overrule Berry’s objection, since the conspiracies are alleged to have existed in this jurisdiction and all of the other defendants will be tried here.

No other objections were filed with respect to the reports of either magistrate. They appear to us to be in accordance with the law, and therefore the magistrates’ recommendations on the remaining pretrial matters are adopted. This case has been set for trial by jury on Tuesday, July 30, 1985 at 10:00 o’clock a.m.