Opinion
Civil Action No. 2000-12393-MLW
May 6, 2002
Robert E. Sullivan, Sullivan Weinstein McQuay, P.C, Boston, MA, For THE HUMANA FOUNDATION, INC., Plaintiff.
Scott A. Roberts, Sullivan, Weinstein McQuay, Boston, MA, For HUMANA MILITARY HEALTHCARE, SERVICES, INC., Plaintiff.
Robert T. Gill, Peabody Arnold LLP, Boston, MA, Timothy O. Egan, Peabody Arnold, Boston, MA, Robert E. Sullivan, Sullivan Weinstein McQuay, P.C, Boston, MA, For CANTELLA CO., INC., Defendant.
Ann Pauly, Griesinger, Walsh Maffei, LLP, Boston, MA, For FLEET BANK interested party.
Robert T. Gill, Peabody Arnold LLP, Boston, MA, Timothy O. Egan, Peabody Arnold, Boston, MA, Robert E. Sullivan, Sullivan Weinstein McQuay, P.C Boston, MA, For CANTELLA CO., INC., Third-Party Plaintiff.
John C. Englander, Greer N. Shaw, For J.P. MORGAN CHASE aka Chase Manhattan Bank, Third-Party Defendant.
John C. Englander, Greer N. Shaw, Richard A. Oetheimer, Goodwin Procter LLP, Exchange Place, Boston, MA, For J.P. MORGAN CHASE aka Chase Manhattan Bank, Third-Party Defendant.
Philip M. Giordano, Giordano Champa, P.A., Boston, MA, James F. Champa, Giordano, Champa Powers, Boston, MA, For MUTUAL MONEY INVEST Third-Party Defendant.
REPORT AND RECOMMENDATION ON THIRD PARTY DEFENDANT J.P. MORGAN CHASE CO.'S MOTION TO DISMISS AMENDED THIRD PARTY COMPLAINT (#36)
I. Introduction
The Humana Foundation, Inc. and Humana Military Healthcare Services, Inc. (collectively, "Humana") filed a Complaint (#1) seeking recovery of more than $4 million from Cantella Co., Inc. ("Cantella") in connection with Humana's purchase of two allegedly forged certificates of deposit. On December 4, 2001, Cantella filed an Amended Third Party Complaint (#29) against Deutsche Bank Argentina S.A., J.P. Morgan Chase Co. ("Chase"), and Mutual Money Investments, Inc. d/b/a Tri-Star Financial ("Tri-Star"), asserting claims including negligence, negligent misrepresentation and contribution. Chase has moved (#36) to dismiss all counts asserted against it in the Amended Third Party Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. With its motion to dismiss, Chase filed a Memorandum of Law (#37). Cantella filed an opposition (#39) and, after obtaining leave of Court, Chase filed a reply brief (#40).
Chase's motion to dismiss has been referred to the undersigned for issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b). The motion was argued at a hearing held on April 3, 2002. For the reasons discussed below, I shall recommend that Chase's Motion to Dismiss be allowed.
II. The Facts
As is required when ruling on a motion pursuant to Fed.R.Civ.P. 12(b)(6), the Court has accepted the facts alleged in the Amended Third Party Complaint as true. See Kiely v. Raytheon Co., 105 F.3d 734, 735 (1 Cir., 1997). The Court also has accepted for purposes of this analysis facts which are admitted in Cantella's Answer to Humana's Complaint.
In late 1996, Tri-Star obtained two certificates of deposit which appear on their faces to have been issued by Deutsche Bank Argentina S.A. #29 ¶ 8. Each of the certificates had a face value of $2,000,000. #29 ¶¶ 9, 10. In late 1996 and early 1997, Tri-Star reached an agreement with Cantella to transfer the certificates to Cantella so it could sell them to Humana. #29 ¶ 12. On or about January 18, 1997, Humana expressed an interest in purchasing one of the certificates ("769 Certificate"). #29 ¶ 13. Cantella sent certain documentation to Humana concerning the '769 Certificate. #29 ¶ 13. Humana informed Cantella that it had forwarded the information to its bank, Chase, for verification of the certificate's authenticity. #29 ¶¶ 13, 14. On or about January 22, 1997, Humana informed Cantella that based on the verification process completed by Chase and information it received directly from Deutsche Bank Argentina S.A., Humana believed the '769 Certificate to be genuine. #29 ¶ 16. On January 24, 1997, the '769 Certificate was sent to Chase for final verification. #29 ¶ 17. Chase examined the '769 Certificate and released the funds to complete the purchase on behalf of Humana. #29 ¶ 17.
In early February 1997, Humana instructed Cantella to purchase the second certificate. #29 ¶ 19. Humana and Cantella relied on Chase's verification of the '769 Certificate in completing the sale of both certificates. #29 ¶¶ 30, 64, 68. Chase knew Humana and Cantella would rely on Chase's opinion in deciding whether to proceed with the sales of the certificates. #29 ¶ 67.
On March 20, 1997, Cantella's Boston office sent a letter to Humana stating that the certificates "may be fraudulent securities." Complaint (#1) ¶ 16; Answer of Defendant Cantella Co., Inc. ("Answer") (#27) ¶ 16. In that letter, Cantella stated that Cantella and its broker were "investigating the situation and considering the remedial steps to be taken in this matter." #1 ¶ 16; #27 ¶ 16. A copy of Cantella's March 20, 1997 letter is attached to the Complaint as Exhibit G. #1 ¶ 16; #27 ¶ 16. Also on March 20, 1997, Cantella's broker, National Financial Services Corporation ("National Financial"), sent a letter to Southwest Securities (the entity that had physically delivered the certificates to National Financial on behalf of Tri-Star) stating that, according to Cantella, the National Association of Securities Dealers, Inc. had "declared" the certificates "to be fraudulent." #1 ¶ 17; #27 ¶ 17. A copy of National Financial's March 20, 1997 letter is attached to the Complaint as Exhibit H. #1 17; #27 17.
On April 3, 1997, Humana sent a demand letter to Cantella's Boston office concerning the certificates, stating as follows:
Humana has been informed by the Denver office of the Securities and Exchange Commission and the Boston office of the Federal Bureau of Investigation that the Time Deposits are counterfeit. Consequently, please consider this a demand for immediate payment for the Humana Foundation Time Deposit calculated to provide a yield of 6.52% (including all accrued interest) to the date of payment and the Humana Military Time Deposit calculated to provide a yield of 6.47% to the date of payment.
Complaint (#1) ¶ 20; Answer (#27) ¶ 20.
A copy of the April 3, 1997 letter is attached to the Complaint as Exhibit I. #1 ¶ 20; #27 ¶ 20. Cantella has failed to pay the amounts demanded by Humana. #1 ¶ 20; #27 ¶ 20.
Humana now believes the certificates are counterfeit and has brought suit against Cantella. Complaint; see also #29 ¶ 21. Cantella has filed an Amended Third Party Complaint which asserts three claims against Chase: Count III for common law tort indemnity, Count XII for negligence, and Count XII[sic] for negligent misrepresentation. At oral argument, Cantella's counsel stated that his client is no longer pursuing its negligence claim against Chase. Accordingly, the discussion which follows will relate only to the two claims which Cantella is pressing.
In Cantella's opposition brief (#39) and at oral argument, its counsel stated that despite being titled as a contribution claim, Count III was intended to assert a claim of common law tort indemnity. Count III shall be treated as a common law tort indemnity claim.
III. The Standard
The Rule 12(b)(6) standard is quite familiar. In deciding the third party defendant's motion to dismiss, the Court must "accept the complaint's allegations as true, indulging all reasonable inferences in favor of [the third party plaintiff]." See Kiely, 105 F.3d at 735. Indeed, when the sufficiency of a complaint is tested, it has long been the law that such "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). At the same time, the Court is not required to credit bald assertions, subjective characterizations, optimistic predictions, or problematic suppositions. See United States v. AVX Corp., 962 F.2d 108, 115 (1 Cir., 1992) (quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1 Cir., 1990) and Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1 Cir., 1989)). The Court need not accept conclusions of law when considering a motion to dismiss. See New England Cleaning Services, Inc. v. American Arbitration Ass'n, 199 F.3d 542, 545 (1 Cir., 1999).
IV. Analysis
Chase moves to dismiss the counts asserted against it in the Amended Third Party Complaint pursuant to Fed.R.Civ.P. 12(b)(6), contending that 1) the negligent misrepresentation claim (Count XII) is time-barred and fails because Chase owed no legal duty to Cantella, and 2) the common law tort indemnity claim (Count III) fails because Cantella has not alleged facts supporting a finding of derivative or vicarious liability.
Cantella contends its negligent misrepresentation claim is not time-barred because it filed the Third Party Complaint within three years of when it was first harmed, when it "incurr[ed] legal expenses to defend against the Plaintiff's Complaint." Cantella Co., Inc.'s Opposition to Third Party Defendant J.P. Morgan Chase Co.'s Motion to Dismiss Or In the Alternative Cantella Co., Inc.'s Motion for Leave to Amend the Third Party Complaint (#39) ("Opposition") at 12. Cantella further argues that under conflicts of law principles, Massachusetts law governs and under Massachusetts law, the negligent misrepresentation claim states a claim.
The Court is required to engage in a conflicts of law analysis only if there is a conflict between the law of Massachusetts and New York on the relevant legal issues. See Steinke v. Sungard Financial Sys., Inc., 121 F.3d 763, 775 (1 Cir., 1997) (court need not resolve choice of law issue when "the outcome is the same under the substantive law of either jurisdiction") (quoting Lambert v. Kysar, 983 F.2d 1110, 1114 (1 Cir., 1993)). Although the elements of negligent misrepresentation differ under Massachusetts and New York law, those differences do not change the outcome of Chase's motion to dismiss if Cantella's negligent misrepresentation claim is time-barred, as Chase contends. The Court therefore first addresses the timeliness of the negligent misrepresentation claim.
New York law provides that "'[a] claim for negligent misrepresentation can only stand where there is a special relationship of trust or confidence, which creates a duty for one party to impart correct information to another, the information given was false, and there was reasonable reliance upon the information given.'" H R Project Assocs., Inc. v. City of Syracuse, 289 A.D.2d 967, 969, 737 N.Y.S.2d 712, 715 (2001) (quoting Hudson River Club v. Consolidated Edison Co., 275 A.D.2d 218, 220, 712 N.Y.S.2d 104, 106 (2000)). A "special relationship" under New York law "'requires a closer degree of trust than an ordinary business relationship.'" Id. (quoting Solondz v. Barash, 225 A.D.2d 996, 998, 639 N.Y.S.2d 561, 564 (1996)). By contrast, under Massachusetts law, the elements of negligent misrepresentation are as follows:
"(1) One who, in the course of his business, profession, or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information." That liability is limited to "loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction."
Nycal Corp. v. KPMG Peat Marwick LLP, 426 Mass. 491, 496, 688 N.E.2d 1368, 1371-72 (1998) (quoting Restatement (Second) of Torts § 552 (1977)).
A. Is Cantella's negligent misrepresentation claim time-barred?
The Massachusetts statute of limitations for a negligent misrepresentation claim is three years. Mass. Gen. L. c. 260, § 2A. Under New York law, the statute of limitations for a negligent misrepresentation claim depends on where the claim "accrues". See N.Y. C.P.L.R. § 202 (action based on cause of action accruing outside New York cannot be commenced after the expiration of the time limited by the laws of the state where the cause of action accrued); N.Y. C.P.L.R. § 213(1) (six year general statute of limitations); Fandy Corp. v. Lung-Fong Chen, 262 A.D.2d 352, 353, 691 N.Y.S.2d 572, 573 (N.Y. A.D. 1999) (N.Y. C.P.L.R. § 213(1) governs claims of negligent representation). For purposes of N.Y. C.P.L.R. § 202, a cause of action accrues in the place where the injury is sustained, which, in cases of economic injury, is usually where the plaintiff resides. See Global Financial Corp. v. Triarc Corp., 93 N.Y.2d 525, 529, 715 N.E.2d 482, 485, 693 N.Y.S.2d 479, 482 (1999).
In this case, Cantella alleges that it is a citizen of Massachusetts. #29 ¶¶ 5, 69. Because Cantella's negligent misrepresentation claim accrued in Massachusetts for purposes of N.Y. C.P.L.R. § 202, section 202 would "borrow" the Massachusetts limitations period. Cantella's claim is therefore governed by a three year statute of limitations under either New York or Massachusetts law.
Because the application of Massachusetts and New York law both lead to a three year statute of limitations for Cantella's negligent misrepresentation claim, the Court will apply Massachusetts law to determine when the claim accrued. See Steinke, 121 F.3d at 775; see also Smith Barney, Harris Upham Co. v. Luckie, 85 N.Y.2d 193, 207, 647 N.E.2d 1308, 1316, 623 N.Y.S.2d 800, 808 (1995) (when borrowing an out of state limitations period pursuant to N.Y. C.P.L.R. § 202, all extensions and tolls applied in the foreign state must be imported with the limitations period).
Both parties argue in their briefs for the application of Massachusetts law concerning the accrual of the negligent misrepresentation claim. See Memorandum in Support of J.P. Morgan Chase Co.'s Motion to Dismiss Amended Third Party Complaint (#37) at 8-9; Opposition (#39) at 12-13. If the Court were to apply New York law, Cantella's negligent misrepresentation claim accrued in January of 1997, on the date the alleged misrepresentation was made. See Fandy Corp., 262 A.D.2d at 353; 691 N.Y.S.2d at 573.
On April 3, 1997, Cantella received a letter from Humana demanding its money back with interest. See #1 Exhibit I; #27 ¶ 20. Cantella filed the Third Party Complaint on October 19, 2001. Because the Third Party Complaint was filed more than three years after certain communications in March and April of 1997 in which the authenticity of the certificates was questioned, the issue before the Court is when Cantella's cause of action for negligent misrepresentation accrued. The burden is on Cantella to allege facts showing that its claim is timely. See Riley v. Presnell, 409 Mass. 239, 243-44, 565 N.E.2d 780, 785 (1991) ("Once the defendant pleads the statute of limitations as a defense . . . and establishes that the action was brought more than three years from the date of the injury, the burden of proving facts that take the case outside the impact of the statute falls to the plaintiff."); see also Franklin v. Albert, 381 Mass. 611, 619, 411 N.E.2d 458, 463 (1980); Salin v. Shalgian, 18 Mass. App. Ct. 467, 469, 467 N.E.2d 475, 477, review denied, 393 Mass. 1102, 469 N.E.2d 830 (1984).
See #1, Exhibits G, H, and I; #27 ¶¶ 16, 17, 20.
Under Massachusetts law, a claim accrues for statute of limitations purposes when there occurs a "necessary coalescence of discovery and appreciable harm". Murphy v. Smith, 411 Mass. 133, 136, 579 N.E.2d 165, 167 (1991) (quoting Cantu v. St. Paul Cos., 401 Mass. 53, 57, 514 N.E.2d 668, [ 514 N.E.2d 666,] 668-69 (1987)); Lyons v. Nutt, 436 Mass. 244, 251, 763 N.E.2d 1065, 1071 (2002); see also In re Tomaiolo, 205 B.R. 10, 13 (D.Mass. 1997), aff'd, 2002 WL 226133 (D.Mass. 2002); Rohmtech, Inc. v. Taylor, 7 Mass. L. Rptr. 616, 1997 WL 778669 at *7 (Mass.Super. 1997). A cause of action "does not accrue until a plaintiff knows or reasonably should know that it has sustained appreciable harm as a result of a defendant's negligence." Cantu, 401 Mass. at 57, 514 N.E.2d at 668 (malpractice claim); see also In re Tomaiolo, 205 B.R. at 13 (same).
The discovery rule provides that "'certain causes of action based on inherently unknowable wrongs do not accrue until the plaintiff learns, or reasonably should have learned, that he has been harmed by the defendant's conduct.'" Hanson Housing Auth. v. Dryvit System, Inc., 29 Mass. App. Ct. 440, 443, 560 N.E.2d 1290, 1293 (1990), review denied, 409 Mass. 1101, 565 N.E.2d 792 (1991) (quoting White v. Peabody Constr. Co., 386 Mass. 121, 129, 434 N.E.2d 1015, 1020 (1982)). Misrepresentation claims may be subject to the discovery rule. Hanson Housing Auth., 29 Mass. App. Ct. at 445, 560 N.E.2d at 1293 (citing Friedman v. Jablonski, 371 Mass. 482, 485, 358 N.E.2d 994, 997 (1976)). The discovery rule starts a limitations period running "'when a reasonably prudent person (in the tort claimant's position) reacting to any suspicious circumstances of which he might have been aware . . . should have discovered that he had been harmed by [the defendant].'" Hanson Housing Auth., 29 Mass. App. Ct. at 446, 560 N.E.2d at 1294 (quoting Malapanis v. Shirazi, 21 Mass. App. Ct. 378, 383, 487 N.E.2d 533, 537 (1986)) (emphasis in original).
"It is not necessary that a plaintiff be aware of the full extent of the harm." Cantu, 401 Mass. at 57, 514 N.E.2d at 668; see also Key Trust Co. v. Doherty, Wallace, Pillsbury and Murphy, P.C., 811 F. Supp. 733, 737 (D.Mass., 1993); Massachusetts Elec. Co. v. Fletcher, Tilton Whipple, P.C., 394 Mass. 265, 268, 475 N.E.2d 390, 392 (1985). "Uncertainty about the total extent of the damages does not delay the accrual of a cause of action." Swasey v. Barron, 46 Mass. App. Ct. 127, 132, 703 N.E.2d 1208, 1212 (1999); see also Beaconsfield Townhouse Condominium Trust v. Zussman, 49 Mass. App. Ct. 757, 762, 733 N.E.2d 141, 146, review denied, 432 Mass. 1109, 738 N.E.2d 750 (2000) ("'The statute of limitations does not stay in suspense until the full extent, gravity, or permanence' and consequences of the injury are known") (quoting Gore v. Daniel O'Connell's Sons, Inc., 17 Mass. App. Ct. 645, 649, 461 N.E.2d 256, 260 (1984)).
"In all cases the statute of limitations begins to run when the injured person has notice of the claim. The 'notice' required is not notice of every fact which must eventually be proved in support of the claim. . . . Rather, 'notice' is simply knowledge that an injury has occurred."
Hanson Housing Auth., 29 Mass. App. Ct. at 445-46, 560 N.E.2d at 1294 (quoting White, 386 Mass. at 130, 434 N.E.2d at 1020-21).
"[W]hat matters for statute of limitations purposes is the date when [plaintiff], 'reacting to any suspicious circumstances of which [it] might have been aware,' should reasonably have been put on notice that it may have been harmed. . . ." Rohmtech, Inc., 7 Mass. L. Rptr. 616, 1997 WL 778669 at *8 (quoting Bowen v. Eli Lilly Co., 408 Mass. 204, 207, 208, 557 N.E.2d 739,739, 741, 742 (1990)) (letter from EPA sufficient to put plaintiff on notice "that there was a potential ground for liability" and to start running of statute of limitations) (footnote omitted). The appreciable harm a plaintiff must sustain before a limitations period starts running can be something less than payment of money. See, e.g., In re Tomaiolo, 205 B.R. at 14 (plaintiff sustained appreciable harm when he signed bankruptcy filings which he knew or should have known contained false statements and "could bring about serious consequences"); Key Trust Co., 811 F. Supp. at 739 ("Notice of the 'harm' occurs when the plaintiff has knowledge of its exposure to liability, not when it must actually write the check."); Hanson Housing Auth., 29 Mass. App. Ct. at 447, 560 N.E.2d at 1295 (cracks and other visible defects in wall surfaces "reasonably should have alerted the plaintiff to the possible existence of a legal claim" against the defendant) (emphasis added); Cargill v. Gilmore, 1 Mass. L. Rptr. 167, 1993 WL 818899 at *5 (Mass.Super., 1993) (claim accrued when plaintiff "alerted to facts which pointed to the possible existence of a legal claim against the defendant").
The Court finds that at least by the time Cantella received the April 3, 1997 demand letter from Humana, Cantella knew the following: 1) the certificates sold to Humana were alleged to be counterfeit; 2) Cantella sold the certificates to Humana in reliance on Chase's representation that they were authentic; and 3) as a result of the sales, Humana was demanding money from Cantella. It is not necessary for a claim to accrue that the plaintiff discover all of the elements of its cause of action. See Malapanis, 21 Mass. App. Ct. at 382, 487 N.E.2d at 536-37 ("Massachusetts does not require discovery of each of the elements of the cause of action . . . before the limitations clock . . . starts ticking.") The Court finds that even if, in April of 1997, Cantella did not know for sure whether it would be sued by Humana as a result of the sales, it knew facts from which a reasonable plaintiff would have concluded that it had suffered appreciable harm. Because Cantella failed to bring suit within three years of that date, as required by Mass. Gen. L. c. 260, § 2A and N.Y. C.P.L.R. § 202, its claim is time-barred.
Given the Court's ruling that Cantella's negligent misrepresentation claim is barred by the statute of limitations, it need not consider Chase's additional argument that it fails to state a claim because Chase owed no duty to Cantella.
B. Does Count III state a claim for common law tort indemnity?
Massachusetts law does not differ materially from New York law on the elements of common law tort indemnity. See Araujo v. Woods Hole, Martha's Vineyard, Nantucket S.S. Auth., 693 F.2d 1, 3 (1 Cir., 1982); Slocum v. Donahue, 44 Mass. App. Ct. 937, 939, 693 N.E.2d 179, 182, review denied, 427 Mass. 1108, 700 N.E.2d 268 (1998); Mauro v. McCrindle, 70 A.D.2d 77, 83, 419 N.Y.S.2d 710, 714 (1979). Accordingly, the Court will apply Massachusetts law. See Steinke, 121 F.3d at 775.Tort-based indemnification "has usually been available only when the party seeking it was merely passively negligent while the would-be indemnitor was actively at fault." See, e.g., Araujo, 693 F.2d at 3 ("Where the party seeking indemnification was itself guilty of acts or omissions proximately causing the plaintiff's injury, tort indemnification is inappropriate"); see also Mauro, 70 A.D.2d at 83, 419 N.Y.S.2d at 714. Here, Humana alleges that Cantella was negligent, made negligent misrepresentations, breached a contract and breached warranties by its own conduct (selling counterfeit certificates), not that it is vicariously liable or derivatively liable for some other party's conduct. See #1 ¶¶ 25-70. If Cantella ultimately is found liable to Humana, it will be for its own conduct, not the conduct of another party. If Cantella is found not to be liable to Humana, it will have no liability for which Chase could indemnify it. In either scenario, its indemnity claim fails to state a claim. Accordingly, Count III fails to state a claim and the Court recommends that Chase's motion to dismiss be allowed with respect to it.
V. Recommendation
For the reasons stated, I RECOMMEND that the Third Party Defendant J.P. Morgan Chase Co.'s Motion to Dismiss Amended Third Party Complaint (#36) be ALLOWED.
VI. Review by the District Judge
The parties are hereby advised that pursuant to Rule 72, Fed.R.Civ.P., any party who objects to these proposed findings and recommendations must file a specific written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed.R.Civ.P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1 Cir., 1988); United States v. Valencia-Copete, 792 F.2d 4 (1 Cir., 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1 Cir., 1983); United States v. Vega, 678 F.2d 376, 378-379 (1 Cir., 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1 Cir., 1980); see also Thomas v. Arn, 474 U.S. 140 (1985).