Goldhaber v. Foley, Civ. A. No. 81-0672.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Citation519 F. Supp. 466
Docket NumberCiv. A. No. 81-0672.
PartiesEmil GOLDHABER, et al., Plaintiffs, v. William E. FOLEY, et al., Defendants.
Decision Date16 July 1981

519 F. Supp. 466

Emil GOLDHABER, et al., Plaintiffs,
v.
William E. FOLEY, et al., Defendants.

Civ. A. No. 81-0672.

United States District Court, E. D. Pennsylvania.

July 16, 1981.


519 F. Supp. 467
COPYRIGHT MATERIAL OMITTED
519 F. Supp. 468
Edward I. Swichar, Faith R. Greenfield, Wexler, Weisman, Forman & Shapiro, P. C., Philadelphia, Pa., for plaintiffs

Peter F. Vaira, U. S. Atty., Antoinette R. Stone, Asst. U. S. Atty., Philadelphia, Pa., for federal defendants.

Kenneth E. Aaron, Davidson & Aaron, Philadelphia, Pa., for defendants Abovitz and Nitchie.

OPINION

BROTMAN,* District Judge.

In recent years the courts have frequently been thrust into the unenviable position of overseeing various governmental institutions—for example, school systems, mental hospitals, and prisons — in order to prevent or redress deprivations of constitutional and statutory rights. These cases raise troublesome questions regarding the role of courts in our society and the competency of judges to render appropriate relief. The instant case presents an interesting variation on this theme; here we are asked to resolve a dispute regarding the administration of an institution with which we are uniquely familiar — the courts.

Plaintiffs in this action are the Honorable Emil F. Goldhaber, a Judge of the United States Bankruptcy Court for the Eastern District of Pennsylvania, and two court reporters currently serving that court, Martin Katz and Helen Mattis.1 Defendants are William E. Foley, Edward Garabedian, Donald Seay, and Paul R. Tuell ("federal defendants"), all of whom are officials of the Administrative Office of the United States Courts ("A.O."), and Rhoda Abovitz and Sally Nitchie ("Abovitz & Nitchie" or "non-federal defendants"), who have contracted with the federal defendants to provide court reporting services in the bankruptcy court in Philadelphia. In essence, plaintiffs raise two claims: first, that judges of the bankruptcy court have exclusive authority to appoint reporters for their court pursuant to the Bankruptcy Reform Act of 1978; and second, that the federal defendants acted arbitrarily, capriciously, and beyond the scope of their authority in awarding the bankruptcy court reporting contract to Abovitz & Nitchie. The defendants contend that the A.O. has the authority to determine whether contractual reporting services should be used in lieu of full-time reporters and the authority, if it determines to use contract reporters, to enter into the

519 F. Supp. 469
appropriate contracts. Moreover, the federal defendants argue that they acted rationally and within the scope of their authority in selecting Abovitz & Nitchie to provide reporting services for the bankruptcy court. Subject matter jurisdiction is predicated on 28 U.S.C. § 1331. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946)

Currently being considered by the court are defendants' motions for dismissal or summary judgment on the grounds of lack of personal jurisdiction, improper venue, and failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b), 56. Also before the court is plaintiffs' motion for a preliminary injunction. For the reasons indicated below, we shall deny defendants' motion to dismiss but partially grant the motion for summary judgment. In addition, we find that preliminary injunctive relief is warranted. In accord with Rule 52(a), the court now renders the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff, Judge Emil F. Goldhaber, and Judge William A. King, Jr. (not a party to this action) are United States Bankruptcy Judges for the Eastern District of Pennsylvania. Martin Katz and Helen Mattis, plaintiffs, are professional court reporters appointed by plaintiff Goldhaber and by Bankruptcy Judge William A. King, Jr., respectively.

2. At all times relevant to this proceeding, federal defendant William E. Foley has been the Director of the Administrative Office of the United States Courts; federal defendant Edward Garabedian has been its Assistant Director; and federal defendants Donald Seay and Paul R. Tuell have been contracting officers of the Administrative Office of the United States Courts. The federal defendants have been served with process by means of certified mail.

The federal defendants solicited bids for court reporting services for the United States Bankruptcy Court for the Eastern District of Pennsylvania and, over the objections of plaintiff Goldhaber and Bankruptcy Court Judge King, the federal defendants awarded the court reporting contract to court reporters who had not been appointed by plaintiff Goldhaber and Judge King.

3. Defendants Rhoda Abovitz and Sally Nitchie, d/b/a Abovitz & Nitchie, are the court reporters to whom the federal defendants awarded the bankruptcy court reporting contract in the Eastern District of Pennsylvania.

4. (a) Plaintiffs Martin Katz and Helen Mattis, for the past 23 years, have been the official bankruptcy court reporters for the United States Bankruptcy Court for the Eastern District of Pennsylvania by reason of their judicial appointment to such position and pursuant to contract.

(b) Plaintiffs Katz and Mattis render services to the bankruptcy court of a technical nature.

5. In or about October of 1980, the federal defendants, while acting under color of title and authority, caused solicitations to be mailed out to obtain competitive bids in the Eastern District of Pennsylvania. The federal defendants' objective was to obtain a contract to provide court reporting services for the United States Bankruptcy Court for the Eastern District.

6. (a) In February of 1981, the federal defendants awarded the court reporting contract for the United States Bankruptcy Court for the Eastern District of Pennsylvania to Abovitz & Nitchie, who reside in the Eastern District of Pennsylvania. Abovitz & Nitchie are expected to perform all of the services under the court reporting contract in this District.

(b) Abovitz & Nitchie's bid was the lowest one submitted in response to the solicitation.

(c) The bids of plaintiffs Katz and Mattis were not accepted.

7. The bid solicitation of the federal defendants provided that the successful bidder would provide services principally from 8:00 a. m. through 5:30 p. m., Monday through Friday, excluding holidays.

519 F. Supp. 470

8. There is no evidence whether full-time reporters are warranted or would be cost-efficient in the bankruptcy court. There is no evidence that any standards have been adopted for determining whether full-time reporting services are warranted.

9. The bid solicitation's Terms and Conditions, Contracts for Court Reporting Services ("Terms and Conditions") P-2, provided in pertinent part at No. 5 that

"(a) each reporter shall possess at least four (4) years of prime court reporting experience, or four years of experience reporting proceedings of at least equal difficulty.
"(b) Notwithstanding subsection (a), any Reporter who possesses a Certificate of Merit from the National Shorthand Reporters Association "NSRA" (or certification from any other organization or governmental agency which evinces, as the Contracting Officer may determine in his sole discretion, at least equivalent skills) may perform reporting services under this Agreement."

10. The Solicitation Preparation Instructions provided as follows P-1:

(a) At No. 2, that "an offeror must request in writing any explanation regarding the meaning or interpretation of the .... terms and conditions ...."
(b) At No. 11, that "the offeror must have adequate facilities, employees, and equipment to enable the offeror to commence performance upon award ... using qualified employee reporters."
(c) At No. 12, that the offeror must furnish "evidence of the offeror's experience in performing similar services, and ... a brief biographical sketch for each reporter ... which evinces the qualifications of the reporter .... The Contracting Officer may inspect an offeror's facilities for the purpose of determining whether the offeror possesses the necessary qualifications."
(d) At No. 13, the "Contracting Officer will accept the offer of the responsible offeror whose responsive offer, conforming to the solicitation, will be most advantageous to the Government, price and other factors considered."

11. (a) In order to obtain a Certificate of Merit from the NSRA, a court reporter must first have a professional membership in the NSRA (i.e., be a registered professional reporter), and thereafter must pass a two-part test, consisting of a written knowledge test in the areas of shorthand writing, transcribing, legal and judicial procedures, office procedures and operating practices, and professional development, and a dictation test including literary matter (200 wpm), jury charge (240 wpm), and testimony (260 wpm).

(b) In order to obtain a professional membership in the NSRA (i. e., become a registered professional reporter), one must be an NSRA member and must pass a two-part test consisting of a written knowledge test in the areas of, inter alia, English, grammar, punctuation, specific terminology, problems and needs of transcriber, court rules and procedures, stipulations, pleadings, and professional conduct and a dictation test consisting of literary matter (180 wpm), jury charge (200 wpm), testimony (225 wpm).

(c) Passing the examination for professional membership in the NSRA (i. e., becoming a registered professional reporter) is not equivalent to holding the higher level Certificate of Merit.

(d) In order to meet the requirements set forth in No. 5(a) of the "Terms and Conditions," which provides that "each court reporter shall possess at least four (4) years of prime court reporting experience, or four years of experience reporting proceedings of at least equal difficulty," a court reporter would need four years of court reporting experience in a court or would need four years of experience transcribing and...

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14 practice notes
  • Tashima v. Administrative Office of US Courts, No. CV-88-4582 SAW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • June 7, 1989
    ...the definition of "court" as the term is used in the APA. Fidelity, 690 F.2d at 39. Petitioner cites Goldhaber v. Foley, 519 F.Supp. 466 (E.D.Pa.1981), in which the court acting under the review provisions of the APA, enjoined the Administrative Office from awarding a court report......
  • JH Rutter Rex Mfg. Co., Inc. v. United States, Civ. A. No. 80-2865.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • February 19, 1982
    ...but also the interest of those responding to the Government's invitation to do business with it." Id. at 1242); Goldhaber v. Foley, 519 F.Supp. 466, 480 (E.D.Pa.1981); Collins & Co. v. Claytor, 476 F.Supp. 407 (N.D.Ga.1979). See also J. H. Rutter Rex Manufacturing Co., Inc. v. U. S......
  • United States v. Price, Civ. A. No. 80-4104.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 23, 1981
    ...or denial of preliminary relief in the light of the movant's likelihood of success on the merits of the litigation. Goldhaber v. Foley, 519 F.Supp. 466, 473 (E.D.Pa.1981) (citations deleted; see Estate of Elvis Presley v. Russen, 513 F.Supp. 1339, 1352-53 (D.N.J.1981); 11 C. Wright & A.......
  • Atlantic City Coin & Slot Service Co., Inc. v. Igt, No. 97-CV-6273 (SSB).
    • United States
    • U.S. District Court — District of New Jersey
    • July 10, 1998
    ...the number of employees it currently has on its payroll. Eastern District of Pennsylvania cases are in accord. In Goldhaber v. Foley, 519 F.Supp. 466 (E.D.Pa.1981), court reporters who were to be replaced by a court reporting service requested a preliminary injunction to help them retain th......
  • Request a trial to view additional results
14 cases
  • Tashima v. Administrative Office of US Courts, No. CV-88-4582 SAW.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • June 7, 1989
    ...it falls within the definition of "court" as the term is used in the APA. Fidelity, 690 F.2d at 39. Petitioner cites Goldhaber v. Foley, 519 F.Supp. 466 (E.D.Pa.1981), in which the court acting under the review provisions of the APA, enjoined the Administrative Office from awarding a court ......
  • JH Rutter Rex Mfg. Co., Inc. v. United States, Civ. A. No. 80-2865.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • February 19, 1982
    ...but also the interest of those responding to the Government's invitation to do business with it." Id. at 1242); Goldhaber v. Foley, 519 F.Supp. 466, 480 (E.D.Pa.1981); Collins & Co. v. Claytor, 476 F.Supp. 407 (N.D.Ga.1979). See also J. H. Rutter Rex Manufacturing Co., Inc. v. U. S. A., et ......
  • United States v. Price, Civ. A. No. 80-4104.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 23, 1981
    ...or denial of preliminary relief in the light of the movant's likelihood of success on the merits of the litigation. Goldhaber v. Foley, 519 F.Supp. 466, 473 (E.D.Pa.1981) (citations deleted; see Estate of Elvis Presley v. Russen, 513 F.Supp. 1339, 1352-53 (D.N.J.1981); 11 C. Wright & A. Mil......
  • Atlantic City Coin & Slot Service Co., Inc. v. Igt, No. 97-CV-6273 (SSB).
    • United States
    • U.S. District Court — District of New Jersey
    • July 10, 1998
    ...the number of employees it currently has on its payroll. Eastern District of Pennsylvania cases are in accord. In Goldhaber v. Foley, 519 F.Supp. 466 (E.D.Pa.1981), court reporters who were to be replaced by a court reporting service requested a preliminary injunction to help them retain th......
  • Request a trial to view additional results

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