author: NORTHROP, Senior District Judge.

text:
    Shashi Kumar PANDE, M.D. v. The JOHNS HOPKINS UNIVERSITY et al.
    Civ. A. No. N 84-3027.
    United States District Court, D. Maryland.
    Dec. 12, 1984.

      Barry Bach, Barbara Ann Spicer, and Claire A. Smearman, of Smith, Somerville & Case, Baltimore, Md., for plaintiff.
    Estelle A. Fishbein, and Carolyn W. Kone, Baltimore, Md., for defendants The Johns Hopkins University and The Johns Hopkins University School of Medicine.
    Stanley Mazaroff and Venable, Baetjer & Howard, Baltimore, Md., for defendant The Johns Hopkins University.
    George D. Solter and Carl R. Gold, and Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, Md., for defendants The Johns Hopkins Medical Institutions, The Johns Hopkins Hosp., and Adolph Meyer Center for Psychiatry and the Neurosciences.
   MEMORANDUM

NORTHROP, Senior District Judge.

This Title VII suit was instituted by plaintiff, Shashi Kumar Pande, M.D., against defendants, The Johns Hopkins University (University), The Johns Hopkins Medical Institutions (Institutions), The Johns Hopkins University School of Medicine (School), The Johns Hopkins Hospital (Hospital), and the Adolph Meyer Center for Psychiatry and Neurosciences (Meyer). Presently pending is the School’s motion to dismiss; a motion for extension of time and protective order filed by Institutions, Hospital and Meyer; a motion for protective order filed by University and School; and a motion to dismiss or, in the alternative, for summary judgment filed by the University and joined by all defendants. Plaintiff has filed a memorandum in opposition to each motion and defendants have recently replied. For the reasons set forth hereinbelow, the motion for summary judgment will be granted, and judgment will be entered in favor of all defendants and against the plaintiff. This ruling effectively moots all other pending motions.

I.

On August 2, 1984, Dr. Pande, instituted this suit against the five above-named, defendants alleging that he was terminated from his employment because of (1) his race, color, religious creed and national origin, and (2) in retaliation for his having made a complaint to the University’s Affirmative Action Officer.

A brief factual background is necessary to put the instant motion in context. Dr. Pande, a dark-skinned Indian Hindu, was first employed by the University as a Fellow and Resident in Psychiatry on July 1, 1959. The following year he was appointed to the position of Instructor and, beginning July, 1966, he was appointed as an Associate Professor. On July 1, 1971, Dr. Pande was promoted to Associate Professor, full-time.

On October 2, 1973, Dr. Pande was informed that he would not be reappointed as of July, 1974. The University claims that the Psychiatry Department was totally reorganized, and Dr. Pande was merely one of sixteen faculty members whose status was affected by the change.

Dr. Pande, represented by counsel, filed a complaint with the EEOC on June 4, 1974. The EEOC deferred the charge to the Maryland Commission on Human Relations (MCHR). On June 24, 1974, the MCHR transmitted the complaint back to the EEOC marked “Deferred-Proceedings Terminated.” The EEOC notified Dr. Pande that it had asserted jurisdiction over his charge on June 28, 1974.

After the initial investigatory activity, there was little or no contact between the EEOC, the University, plaintiff or his counsel for approximately eight years. Finally, on April 6, 1983, nine years after Dr. Pande filed his charge, EEOC issued a finding of probable cause with regard to the retaliation issue. No determination was made as to the discrimination allegations raised in the charging complaint. On August 2, 1984, ten years after the filing of his charge of discrimination, Dr. Pande instituted the present civil action in this Court.

II.

The University argues that Dr. Pande’s claims are time-barred under the doctrine of laches because his delay of more than ten years in filing suit is unreasonable, and that the delay has substantially prejudiced the defendant. Specifically, defendant argues that at some point in time, it becomes unreasonable for a complainant, represented by counsel, not to request a right-to-sue letter from the EEOC and file his private action. The University argues further that the delay in this case has severely prejudiced its ability to defend itself. Dr. Pande counters by arguing (1) that his reliance on the EEOC process to vindicate his rights does not constitute inexcusable delay, (2) that the University has failed to demonstrate the prejudice necessary to warrant the imposition of the doctrine of laches, and (3) that the entry of summary judgment at this stage of the litigation is premature.

It is well settled that the doctrine of laches may be invoked as a defense to a Title VII suit. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 424-425, 95 S.Ct. 2362, 2374-2375, 45 L.Ed.2d 280 (1975) (when a defendant is prejudiced by an unexcused delay by a private plaintiff, the district court has the discretionary power to effectuate “a just result.”); Equal Employment Opportunity Commission v. American Nat’l Bank, 574 F.2d 1173, 1175-1176 (4th Cir.), cert. denied, 439 U.S. 876, 99 S.Ct. 213, 58 L.Ed.2d 190 (1978), citing, Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 373, 97 S.Ct. 2447, 2458, 53 L.Ed.2d 402 (1977); Boone v. Mechanical Specialties, 609 F.2d 956, 959 (9th Cir.1979) (“We hold that laches may be used as a defense to a Title VII action.”). In order to prevail on this defense, the defendant bears the burden to show (1) unreasonable delay in bringing the action, and (2) resulting prejudice to the employer. Menn v. Amstar Corp., 476 F.Supp. 303, 306 (D.Md.1979). These two elements, and their application to the case sub judice, must be addressed separately.

A. DELAY

There was a ten-year delay between the filing of Dr. Pande’s discrimination charge and the filing of the instant law suit. Dr. Pande argues that the delay is excusable because he relied on the EEOC to resolve his claim. The University claims that Dr. Pande, represented by counsel throughout the proceeding, was aware of his right to secure a right-to-sue letter upon request, and had the burden to do so long before the delay prejudiced the defendant. This Court concludes that the delay occasioned in this case is inexcusable as a matter of law.

It is clear the Dr. Pande was represented by counsel since the inception of this matter. See Exhibit 6 to the University’s Motion for Summary Judgment. It is also clear that Dr. Pande returned to his native India from 1975 to 1982. Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary Judgment, p. 3-4. These two factors, coupled with the fact that Dr. Pande is obviously a well educated man, lead to the conclusion that Dr. Pande was aware, even if only vicariously through his counsel, that he could receive a right-to-sue letter and bring a civil action at an earlier time, but he chose not to do so. Dr. Pande’s delay is unreasonable and attributable solely to his own lack of diligence.

In Boone v. Mechanical Specialties Co., 609 F.2d 956 (9th Cir.1979), the court applied the doctrine of laches and dismissed a Title VII action where the claimant permitted his EEOC charge to remain pending for seven years before requesting and receiving a right-to-sue letter. The court rejected Boone’s argument that he was merely relying on EEOC conciliation procedures and held:

Normally, it may be reasonable for an aggrieved employee to allow the EEOC to retain jurisdiction over a Title VII action. The Act clearly encourages informal conciliation of grievances through the offices of the EEOC. Nevertheless, we cannot read Title VII as providing for the indefinite tolling of a claim which knowingly lies dormant with the EEOC, to the prejudice of the adversary party. We therefore conclude that Boone’s Title VII claim is barred by laches.

Id. at 960 (emphasis supplied). See also Holden v. Burlington Northern, Inc., 34 Empl.Prac.Dec. (CCH) ¶ 34, 581 (D.Minn. 1984) (had plaintiff known of her ability to bypass EEOC procedures, the court in dicta indicated it would bar plaintiff’s delayed law suit); Cf. EEOC v. American National Bank, 574 F.2d 1173, 1175-1176 (4th Cir.1978) (laches may bar relief to individual, but not to class action type litigation). This Court recognizes that Boone is the exception and not the general rule. Nonetheless, there comes a point in time where an educated complainant, represented by counsel, must affirmatively pursue his rights. Nine years is simply too long to allow the EEOC complaint to lie dormant under the facts of this case.

Dr. Pande’s reliance on Bernard v. Gulf Oil Co., 596 F.2d 1249 (5th Cir.1979); Staples v. Avis Rent-A-Car Systems, Inc., 537 F.Supp. 1215 (W.D.N.Y.1982); and Sangster v. United Air Lines, 438 F.Supp. 1221 (N.D.Cal.1977) is misplaced. In those cases, all of the plaintiffs proceeded pro se, none had the advantage of a professional education, and none absented themselves from the country for the better part of seven years after filing their EEOC complaints. Compare Lamberos v. GTE Automatic Electric, Inc., 603 F.2d 598, 603 (7th Cir.1979) (laches applied to damages where plaintiff, herself an attorney, had been represented by counsel in the protracted administrative proceedings); Lynn v. Western Gillette, Inc., 564 F.2d 1282, 1287 (9th Cir.1977) (the “complainant should not be permitted to prejudice the employer by taking advantage of [EEOC’s] slowness in processing claims ... particularly where the aggrieved party has consulted counsel and is aware of this right. ”) (emphasis added).

In light of Title VII’s provisions for attorney’s fees, the Court concludes that Dr. Pande offers no other reasonable excuse for his inordinate delay in bringing this suit. The Court notes that if Dr. Pande did have another valid excuse for his delay, that excuse would be in his possession (or his counsel’s), and not with the defendants. Accordingly, the Court holds that Dr. Pande’s delay was unreasonable.

B. PREJUDICE

Unreasonable delay in bringing a suit will not, alone, trigger the doctrine of laches; there must be a clear showing of substantial prejudice to the defendant’s ability to defend itself. Moreover, a “finding of prejudice cannot rest on the [defendant’s] generalized assertions. Prejudice must arise from and be assessed with respect to the facts of each claim.” EEOC v. Ches. & Ohio R.R. Co., 577 F.2d 229, 234 (4th Cir.1978).

As stated, the claims in this case are discrimination and retaliatory filing. Of the fourteen persons who allegedly discriminated against Dr. Pande in 1974, most are no longer employed by the University, several have moved out of state, and others have retired and are aged. Specifically, defendant claims, and Dr. Pande does not dispute, that Dr. Elkes has relocated to Kentucky; Dr. Woolf has relocated to New Jersey; Dr. Neff has relocated to Seattle, Washington; Dr. Potchen and Mr. Schonbeir have relocated to Michigan; Dr. Perlin has relocated to Washington, D.C.; Dr. Turner and Dr. Morgan, although still in Baltimore, are Deans Emeritus and aged 82 and 73, respectively; Mr. Dalton and Dr. McClary are no longer salaried employees of Johns Hopkins. Other persons who participated in the affairs of the Department of Psychiatry and who defendant claims are essential to defense of its cause are Dr. Stanley D. Zamber, now located in Pennsylvania; Dr. Joy Joff, now located in Florida; Dr. Roger Sider, now located in New York; and Dr. Jerome D. Frank who, although still residing in Baltimore, is now Professor Emeritus and is aged 75.

In addition to the logistical and financial problems caused by the dispersal of so many witnesses during the intervening ten-year period, the Court takes judicial notice of the fact that all potential witnesses’ memories will be eroded by the passage of such an inordinate period of time. See Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 64 S.Ct. 582, 88 L.Ed. 788 (1944); Cleveland v. Douglas Aircraft Co., 509 F.2d 1027 (9th Cir.1975). Indeed, the affidavits of Dr. Morgan and Dr. Turner, two former Deans of the School of Medicine who allegedly discriminated against Dr. Pande, reveal that neither doctor has any recollection of Dr. Pande or of the circumstances of his relationship to the School of Medicine. The Court has no reason to doubt the credibility of these affiants.

In addition to the aforementioned personnel problems, much of the documentary evidence relevant to this case has been discarded, destroyed or irretrievably dispersed. As the affidavit of the Administrator of Department of Psychiatry and Behavioral Sciences, Ms. Bonnie Straus, makes clear, the physical relocation of certain departments within the University system caused the destruction of much of the material which Dr. Pande has identified as relevant to this case.

Furthermore, over the passage of the decade in question, other pertinent documents, such as all payroll forms of all University employees, have been destroyed. Defendants’ affidavits also show that the records of government grant work are no longer in existence. These are but a few of the many instances where Dr. Pande’s requested and allegedly relevant documents have been shown by defendants to be lost or destroyed over the ten-year period in question. See, e.g., EEOC v. Dresser Industries, Inc., 668 F.2d 1199, 1203 (11th Cir.1982); and EEOC v. Alioto Fisk Co., 623 F.2d 86 (9th Cir.1980), where the courts recognize the loss of pertinent records as key elements of undue prejudice to the defendant.

Because of the changes in personnel, the effect of the passage of time on memories, the change in administration and the loss or destruction of relevant documents, the Court concludes that defendant has shown substantial prejudice in defense of Dr. Pande’s stale claims.

III.

For the foregoing reasons, the Court concludes that Dr. Pande’s substantial delay in bringing this action was inexcusable, and has resulted in severe prejudice to defendants’ ability to conduct its defense. There are no material facts in dispute that alter this conclusion. Accordingly, the defendants are entitled to a dismissal of this action under the doctrine of laches.

A separate Order confirming this ruling will be entered.

      . It is not clear which defendant actually “employed” the plaintiff. Because of the ruling rendered herein, this determination need not be reached. For the sake of clarity alone, however, plaintiff's employer will be referred to as the University.

      . Defendants also argue that Dr. Pande did not timely file his charge of discrimination with the EEOC because he did not file within 180 days from the date of the alleged discrimination. In Haller v. Butler Shoe Corp., 595 F.Supp. 998, (D.Md.1984), the Court rejected the 180-day argument offered by defendants. Accordingly, their motion for summary judgment on this ground is denied.

      . If the destroyed material is relevant to the prosecution of Dr. Pande's cause, it is logical to infer that the same evidence may have been material to defendants’ defense. Now, however, due to the ten-year delay in bringing this suit,
        neither side has the benefit of this lost or destroyed material.


source: Caselaw Access Project

author: KANE, District Judge.

license: Public Domain

text:
    Jesse T. ORNELAS, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 81-K-2049.
    United States District Court, D. Colorado.
    Dec. 12, 1984.
    Susan E. Perry, Denver, Colo., for plaintiff.

      Janis E. Chapman, Asst. U.S. Atty., Denver, Colo., for defendant.
   ORDER AWARDING ATTORNEY’S FEES

KANE, District Judge.

Plaintiff originally filed this action November 25, 1981 seeking review, pursuant to 42 U.S.C. § 405(g), of a final decision of the Secretary of the Department of Health and Human Services denying Social Security disability benefits. On March 23, 1982 I heard oral argument and issued an Order remanding this case to the secretary for further consideration. On remand, a full evidentiary hearing was held before an administrative law judge during October and November of 1982. Following the administrative law judge’s recommendation that Ornelas be found eligible for benefits, the appeals council again remanded the case to an administrative law judge for further proceedings. After these supplemental proceedings in March and April of 1984, the second administrative law judge also recommended that Ornelas be found eligible for benefits. On June 15,1984, the appeals council issued its final order denying plaintiff benefits.

Ornelas filed a supplemental complaint in this court on July 19, 1984. On September 14, 1984 I reversed the decision of the Secretary.

My ruling from the bench merits repetition here:

If this were anything other than an agency of the United States government, I would have every one of those people [the appeals council] in here for contempt of court. I think their conduct is unconscionable and it’s despicable. This case is one of the most outrageous examples of the abuse of governmental authority that I have encountered, not only since I have been on the bench but in 25 years in the law. It is an outrage. There is no evidence, there is no authority for what they have done.
The evidence shows neurological damage, mental retardation, pain, motor instability, [and] vocational incapacity. Two of their own hearing officers have come to the same conclusion and yet they base their decision out of thin air. The appeals council has no right in the face of the record that was made to make any finding on credibility, to make any finding of vocational capacity. It is dishonest, cynical and mendacious.
Their decision is reversed; the matter is remanded. If in 30 days’ time full benefits are not awarded to him, I’m going to have the appeals council people that are responsible for this case in this court every single morning at seven a.m. until it’s done. He shall be restored to his benefits and given full back pay, and I am directing, Ms. Perry [plaintiff's counsel], that you file a motion within the next ten days under the Equal Access to Justice Act for attorney’s fees over and above any other statutory authority.

Transcript of Oral Argument, September 14, 1984, at pp. 2-3.

The secretary’s persistence in disregarding the law of this and other circuits is repeatedly demonstrated. See, e.g., Byron v. Heckler, 742 F.2d 1232 (10th Cir.1984); Valdez v. Schweiker, 575 F.Supp. 1203 (D.Colo.1983). Appeals of HHS disability benefit denials have become common place in federal courts. In the District of Colorado, 82 Social Security disability benefit cases were filed during the 12 month period ending June 30, 1984. Since June 1, 1984, I have reversed or remanded eight cases in which the secretary denied benefits. The situation is no different in other parts of the country. See, e.g., Wier v. Heckler, 734 F.2d 955 (3d Cir.1984); Merli v. Heckler, 600 F.Supp. 249 (D.N.J.1984).

Before me now is Ornelas’ petition for attorney fees pursuant to the provisions of subsection (d) of the Equal Access to Justice Act, 28 U.S.C. § 2412(d). In her brief in support of the motion for fees, Ornelas’ counsel also argues that fees should be awarded pursuant to § 2412(b). She suggests that I apply the bad faith exception to the American rule generally denying awards of attorney fees. Because the original motion did not raise this argument and because I award fees pursuant to subsection (d) I do not consider the arguments in support of an award under subsection (b) of the EAJA.

I have previously outlined the criteria for an award of fees in social security cases under subsection (d) of the EAJA. See Trujillo v. Heckler, 582 F.Supp. 701 (D.Colo.1984); Blanchette v. Heckler, 586 F.Supp. 903 (D.Colo.1984). The record is clear that Ornelas was the prevailing party and that the position of the government was not substantially justified. Moreover, there are no special circumstances which would make the award of fees unjust.

The government argues that because the Assistant United States Attorney made no argument in support of the Secretary’s position at the September 14, 1984 hearing, the position of the government was substantially justified. The Tenth Circuit has directed that I examine the position of the government in litigation, as opposed to the agency position before litigation to determine if it was substantially justified. See United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1486-87 (10th Cir.1984). The government cannot limit its position during the course of litigation to statements made by the Assistant United States Attorney in the courtroom. Certainly the EAJA contemplates that agency activities in response to in court motions and orders reflect upon the position of the government. All actions taken by the secretary following my remand of March 23,1982 were subject to the supervisory authority of this court and constitute the government’s position during litigation. While the Assistant United States Attorney’s actions in the courtroom were commendable and in full accord with the provisions of Rule 11, Fed.R.Civ.P., they are insufficient to expunge the position of the government throughout the course of the litigation. See Valdez, supra. I find that the position of the government during the course of the litigation was not substantially justified.

Plaintiff’s counsel spent 13.2 hours working on the supplemental complaint. I find this time to be appropriate and reasonable. At a statutory rate of $75 per hour plaintiff is entitled to an award of attorney fees in the amount of $990.

Plaintiff’s counsel also seeks an award of fees out of plaintiff’s award pursuant to 42 U.S.C. 406(b). In Voth v. Heckler, No. 83-K-1687 (D.Colo. June 10, 1983), I held that $80 per hour was a reasonable rate for services in cases like Mr. Ornelas’. All totaled his counsel, Susan Perry, spent 74.7 hours working on the case. I find this time to be appropriate and reasonable. Thus, after deducting the 13.2 hours for which the government must pay Ornelas’ attorney fees, Ms. Perry is entitled to a payment of $4,920 pursuant to § 406(b).

IT IS THEREFORE ORDERED:

1. Plaintiffs’ motion for fees under the EAJA in the amount of $990.00 is granted and

2. The Secretary shall certify payment of $4,920.00 to Susan Perry out of her client’s award of benefits.

      . The reversed cases include: Miller v. Heckler, 84-K-1321; Vigil v. Heckler, 83-K-1431; Ornelas v. Heckler, 81-K-249; Sheeks v. Heckler, 84-K-820; Luna v. Heckler, 83-K-1431; and Lucero v. Heckler, 84-K-119. The remanded cases include Palisoul v. Heckler, 84-K-864 and Manchego v. Heckler, 84-K-259.

      . The attorney fee provisions of 28 U.S.C. § 2412(d) lapsed pursuant to a sunset provision for all cases filed after October 1, 1984. Ornelas’ case was filed before the date and, therefore, is unaffected by the lapse.

      . Other circuits have held that the government's position referred to in § 2412(d)(1)(A) includes agency action which precipitated the plaintiff’s suit. See, e.g., Natural Resources Defense Council, Inc. v. USEPA, 703 F.2d 700, 707 (3d Cir.1983).


author: SCHWARZER, District Judge.

text:
    MESA VERDE CONSTRUCTION CO., Plaintiff, v. NORTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS, Defendant.
    No. C-84-4389-WWS.
    United States District Court, N.D. California.
    Dec. 13, 1984.

      Mark R. Thierman, Deborah E.G. Wilder, Thierman, Simpson & Cook, San Francisco, Cal., for plaintiff.
    Victor J. Van Bourg, Van Bourg, Weinberg, Roger & Rosenbeld, San Francisco, Cal., for defendant.
   ORDER

SCHWARZER, District Judge.

Plaintiff Mesa Verde Construction Company (“Mesa Verde”) brings this action against Defendant Northern California District Council of Laborers (“the Union”) seeking a declaration that it is not obligated to arbitrate a grievance under the terms of an agreement with the Union. Mesa Verde contends that the agreement was a pre-hire agreement within the meaning of § 8(f) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(f) (1976) and was repudiated before the date on which the grievance was filed.

FACTS

Mesa Verde has performed contracting work in California since June 1977. On August 13, 1979, it entered into a memorandum agreement with the Union. The memorandum agreement incorporated an industry master agreement which is not before the Court, and provided that it would remain in effect until June 15, 1980, and continue from year to year thereafter unless either party gave written notice of intention to change or cancel by April 15th. This agreement remained in effect until a second memorandum agreement was signed on June 26, 1980, incorporating by reference all of the terms and conditions of the 1980-83 Master Agreement between the Associated General Contractors of California, Inc. and the Northern California District of Laborers. This- memorandum agreement provided that it would remain in full force and effect until June 15, 1983, and continue from year to year thereafter unless either party gave written notice within the time provided in the agreement. On November 17, 1982, the terms of the June 1980 agreement were modified and extended to June 15, 1986. It is the June 1980 agreement which is the subject of this action.

The Master Agreement defined the scope of covered laborers’ work and designated the counties to which it applied. That agreement also contained a union security clause requiring any employee on the job for more than eight days to join the Union.

On May 15, 1984, Mesa Verde’s attorney sent a letter to the Union stating that Mesa Verde was abrogating “any and all agreements” with the Union. As of that date, Mesa Verde operated on only one jobsite, the Lucky Hercules Project. Thereafter, in June, 1984, the Union filed a grievance against Mesa Verde with respect to work at a different jobsite at Orland, California, after May 27, 1984.

Mesa Verde brings this action seeking relief in the form of a declaration that it is not obligated to arbitrate this grievance which arose at a new jobsite after its notice of termination. Jurisdiction is premised on § 301 of the Act. On July 16, 1984, this Court stayed arbitration of the grievance pending resolution of Mesa Verde’s declaratory relief action. A motion to reconsider that stay was denied on August 31. Mesa Verde now moves for summary judgment. Inasmuch as no material facts are in dispute, disposition by summary judgment is appropriate.

DISCUSSION

Mesa Verde’s motion and the Union’s opposition raise three issues:

1. Was the agreement repudiated on May 15, 1984, a'pre-hire agreement within the meaning of § 8(f)?

2. If the agreement was a pre-hire agreement, is this court a proper forum to determine whether the repudiation was effective?

3. If the court may make that determination, was the letter sent to the Union effective to repudiate the agreement?

I. Was the Agreement a Pre-Hire Agreement?

Mesa Verde asserts that it was free to repudiate the memorandum agreement because that agreement did not become a binding collective bargaining agreement but was only a voidable pre-hire agreement under § 8(f).

Although it is an unfair labor practice for an employer to sign a collective bargaining agreement recognizing a minority union as an exclusive bargaining representative, International Ladies’ Garment Workers Union v. NLRB, 366 U.S. 731, 737-39, 81 S.Ct. 1603, 1607-08, 6 L.Ed.2d 762 (1961), to accommodate the fluidity of construction industry employment, § 8(f) allows an employer in that industry to execute a pre-hire agreement before a majority is established. Jim McNeff, Inc. v. Todd, 461 U.S. 260, 103 S.Ct. 1753, 1756-57, 75 L.Ed.2d 830 (1983). While the statute by its terms does not provide for repudiation, the Supreme Court has held that parties may repudiate pre-hire agreements “until and unless such time as the union achieves majority support in the relevant bargaining unit.” Jim McNeff, Inc. v. Todd, 103 S.Ct. at 1753-54; NLRB v. Local Union No. 103, International Association of Bridge, Structural and Ornamental Ironworkers, 434 U.S. 335, 345, 98 S.Ct. 651, 657, 54 L.Ed.2d 586 (1978) (“Higdon”). Once a union achieves majority status, “the prehire agreement attains the status of a collective bargaining agreement executed by the employer with a union representing a majority of the employees in the unit.” Higdon, 434 U.S. at 350, 98 S.Ct. at 660. Majority status thus converts a voidable § 8(f) agreement into a binding collective bargaining agreement under § 9(a).

A. Jurisdiction

The Union contends that before majority status can be ascertained, a determination of the appropriate bargaining unit must be made. The Union argues that the court is without jurisdiction to determine the appropriate bargaining unit and therefore cannot reach the question of majority status. It is true that “bargaining unit determination is a representational question reserved in the first instance to the Board ... [and] a district court does not have jurisdiction to address this question in a section 301 suit.” Carpenters Local Union No. 1478 v. Stevens, 743 F.2d 1271, at 1278 (9th Cir.1984). The primary jurisdiction rule, however, does not apply where the party raising the issue has no standing to raise it before the National Labor Relations Board. Laborers Health & Welfare Trust Fund v. Kaufman & Broad of Northern California, Inc., 707 F.2d 412, 415-16 (9th Cir.1983). This rationale was recently extended to defenses which cannot be presented to the Board. Operating Engineers Pension Trust v. Beck Engineering & Surveying Co., 746 F.2d 557, at 565 (9th Cir.1984).

The Union’s argument is premised on the notion that effective repudiation of a pre-hire agreement can only follow a determination of the appropriate bargaining unit in connection with a representation election. The case before this Court, however, involves a repudiation as to future jobsites for which no laborers have yet been hired. No bargaining unit determination could be made with respect to non-existent jobs nor could an election be held. The Union’s argument is therefore irrelevant.

B. Majority Status

Majority status sufficient to convert a voidable § 8(f) agreement into a binding § 9(a) agreement may be established in one of two ways:

If the agreement covers a permanent and stable unit of employees, the contract is converted into a binding agreement covering all employees from the time the union establishes majority support. Once a majority of the company employees belong to the union, a rebut-table presumption of the union’s majority status is created.
If an employer has no stable workforce and hires on a job-to-job basis, “the employer’s duty to bargain and honor the contract is contingent on the union’s attaining majority support at the various construction sites.” Higdon, 434 U.S. at 345 [98 S.Ct. at 657]. “The union must demonstrate its majority status at each new jobsite in order to invoke the provisions of section 8(a)(5) of the Act.” Construction Erectors, Inc. v. N.L.R.B., 661 F.2d 801, 804 (9th Cir.1981) (citing Hageman Underground Construction, 253 N.L.R.B. 60 (1980)).
N.L.R.B. v. Pacific Erectors, Inc., 718 F.2d 1459, 1463 (9th Cir.1983).

The Union makes three arguments. First, the Union argues that because it first entered into an agreement with Mesa Verde in 1979, the subsequent June 26, 1980, agreement was a part of an existing bargaining relationship and therefore could not be a pre-hire agreement. The National Labor Relations Board has held that the concept of a pre-hire agreement applies only to the initial § 8(f) agreement and not to succeeding contracts. See e.g. Custom Sheet Metal and Service Co., 243 N.L.R.B. 1102 (1979); Williams Enterprise, Inc., 212 N.L.R.B. 880 (1974), enforced 89 LRRM 2190 (4th Cir.1975); Dallas Building & Construction Trades Council, 164 N.L.R.B. 938 (1967), enforced 396 F.2d 677 (D.C.Cir.1968); Bricklayers & Masons Local 3, 162 N.L.R.B. 476 (1966), enforced 405 F.2d 469 (9th Cir.1968). Thus in Bricklayers & Mason Local 3, the Board enforced a collective bargaining agreement whose origin was a pre-hire agreement. The Board found this origin to be irrelevant in light of the subsequent dealings between the parties:

It is apparent from the foregoing that the bargaining between the AGC and the Union presents the situation of a continuing bargaining relationship; a situation quite different from that which Congress had in mind when enacting Section 8(f)(1), to wit, an initial attempt by a union and an employer in the construction industry to commence such a relationship. Thus, the entire legislative history of Section 8(f)(1) is couched in terms of “prehire agreement,” a reference which can have no meaning is the situation where, as here, the parties are continuing an existing bargaining relationship under which employees have previously been hired. 162 NLRB at 478

These cases, however, in which the Board determined that successive agreements could not be characterized as § 8(f) agreements, involved what Pacific Erectors described as a permanent and stable workforce. But when an employer hires on a jobsite-by-jobsite basis, a § 8(f) agreement matures into a binding § 9(a) agreement only as to a jobsite on which the union attains majority status. Id. at 1463. In Dee Cee Floor Covering, Inc., 232 N.L.R.B. 421 (1977), the Board noted that “the mere fact that the Union might indeed have represented a majority of the employees at Respondent Dee Cee’s previous job sites is of no consequence inasmuch as the Union must demonstrate its majority at each new jobsite in order to invoke the provisions of § 8(a)(5) of the Act.” Id. at 422. In the absence of a permanent stable workforce, therefore, any binding collective bargaining relationship established at any jobsite under the 1979 agreement between Mesa Verde and the Union could have no effect on future jobsites.

Second, Mesa Verde argues that, even ignoring the 1979 agreement, the 1980 agreement could not have been a pre-hire agreement because at the time of its signing, the Union represented a majority of the laborers on the Mesa Verde payroll. It is not disputed that in June 1980, ten laborers were on the payroll of whom seven were Union members. These ten men were employed on three different jobs: Job # 150, Job # 170 and Job # 175; none worked at more than one job.

This argument must be rejected in light of the decision in Acme Marble & Granite Co., Inc., 271 N.L.R.B. No. 147 (August 9, 1984). There a cemetery developer performed approximately 30 to 40 jobs in 36 different states. The developer began a project in Missouri in September, 1976, and started another project in Kansas in October, 1976. On October 27, 1976, he entered into an agreement in western Missouri and Kansas with locals of the Laborers’ International Union of North America. The developer adhered to the terms of the agreement as to the two jobsites, but refused to apply the agreement to a third job commenced after completion of the earlier two.

The Board rejected the argument that the Union had become a § 9(a) representative because on the date the contract was executed, the Union represented a majority of the developer’s employees in the geographic area covered by the contract, noting that “there is nothing in the Act to indicate that the Union’s geographical jurisdiction establishes the bargaining unit.” It followed Dee Cee Floor Covering, Inc., stating that the Union must demonstrate majority status at each new jobsite regardless of majority status at previous projects. 232 N.L.R.B. at 422. Applying the Acme Marble analysis here, the Union’s majority status at three different projects at the time of the June 26, 1980, agreement is irrelevant; the June 26, 1980, agreement remained a pre-hire agreement as to future jobsites.

Third, the Union argues that even if the agreement was a pre-hire agreement when it was signed,' the Union attained majority status in 1981 in a stable and permanent workforce and was therefore entitled to a presumption of majority status for the life of the agreement. The Board has accorded a union achieving majority status in a permanent and stable workforce at any time during the term of the collective bargaining agreement an irrebuttable presumption of majority status for the duration of the agreement. Construction Erectors, Inc., 265 N.L.R.B. 786 (1982); Hageman Underground Construction, 253 N.L.R.B. 60 (1980). The Union relies on those decisions to support its argument.

In Construction Erectors, Inc., the Board stated the test for determining whether a stable and permanent workforce exists, considering the special nature of the construction industry:

[W]e believe it is important to emphasize that the determination of whether the workforce is “permanent and stable” is more than a mechanical exercise in tabulating the makeup, longevity, and fluctuation of a group of employees. For in making the determination, the Board ultimately is deciding whether the workforce is of such a nature that a showing of majority support made at a particular point in time reasonably can be said to have significance at a subsequent time. In this regard, we do not require a showing that the workforce is a stable group of employees who work for a long period of time with no fluctuation in the overall unit. Indeed, in view of the special nature of the construction industry, such a requirement would virtually eliminate the possibility of finding a construction industry workforce that is “permanent and stable”____ In short, our analysis in cases of this nature must go beyond the calculation of numbers and dates and focus upon the issue of whether the employee complement possesses sufficient continuity as to merit continued reliance on showing of majority support for the union made at any point during the relevant period.
Id. at 787 (footnotes omitted).

In Construction Erectors, Inc. the Board found a permanent and stable workforce on evidence that the company moved its iron-workers from job to job and did not hire them for a single job only. Of 47 iron-workers employed by the company, 15 worked for seven or more months on approximately 75% of the total number of days on which ironworkers were employed. The Board noted:

[W]e rely particularly on the fact that throughout the relevant period, Respondent moved its employees from job to job and did not regularly assign employees to single jobs and then to no subsequent jobs. Thus, the instant case is readily distinguishable from those where employees are hired on a jobsite-by-jobsite basis with little or no carryover from job to job. In addition, we also find of substantial significance the existence of a basic core group of employees utilized by Respondent throughout the relevant period. As noted, this group of employees worked approximately 75% of the total number of days on which ironworkers were employed and, again, moved from job to job.
Id. at 788.

In Hageman Underground Construction, supra, the Board also found a permanent and stable workforce. Hageman entered into a contract with the union in September, 1977, by which it agreed to recognize the union as the collective bargaining representative for its backhoe operators. Hageman complied with the terms of the contract until repudiation in March 1979. The company employed three backhoe operators who operated the company’s four machines, but occasionally hired additional operators for brief periods. Between October 1977 and April 1978, the three operators were transferred from job to job. The Board concluded that the union represented a majority of the employees in a permanent and stable workforce of backhoe operators:

An examination of the record pertaining to the backhoe operators alone reveals that between October 1977 and April 1978, a substantial period during the contract, [one-third of the contract period], Respondent utilized a permanent and stable group of backhoe operators and did not generally hire on a project-by-project basis. In this regard, it is undisputed that [the three operators] operated backhoes for Respondent at various jobsites during this period and that they were not re-hired for each project. Rather, ... these men were moved from project to project____ While [one of the operators] was terminated in April 1978, and ... Respondent subsequently may have hired new backhoe operators as a result of turnover, there is no evidence suggesting that Respondent ever abandoned its practice of using a stable complement to operate its four backhoes.
Id. at 62-63.

The Union argues that it attained majority statús among a “stable and permanent workforce on a multi-site basis” in 1981, and thus is entitled to a presumption of majority status for the life of the agreement. It points out that in 1981, Mesa Verde had four main jobs on which it employed laborers: Jobs # 200, # 205, # 210 and # 230. At all these jobsites, the union represented a majority of the workers. Additionally, five of the six laborers who worked on job # 200 were the five laborers on job # 210.

Neither Construction Erectors, Inc. nor Hageman Underground support the Union’s argument. The undisputed evidence compels the conclusion that the Union has failed to show sufficient continuity of employment to merit continued reliance on the asserted majority status. Construction Erectors, Inc., 256 N.L.R.B. at 787. The ten months period during which five laborers were employed on both Jobs # 200 and # 210 represents less than one-fifth of the contract period (July 1980-May 1984). Moreover, the extent of overlap for three of the five employees was insignificant; one worked five hours on the second job, a second worked eight hours on the second job, and a third laborer worked 55 hours on the second job. Further, an examination of the over-all work performed during the contract period indicates that 48 laborers were employed on 11 different jobs. Of these 48 laborers, only 13 worked on more than one job; 11 worked on two jobs; only two worked on four jobs; and only one worked on six jobs. Unlike in Construction Erectors, Inc. and Hageman Underground, these statistics fail to show the existence of a core group of a significant portion of the total number of employees moving from project to project during a substantial period of the contract. Rather they demonstrate that employees “are hired on a jobsite by jobsite basis with little or no carryover from job to job.” Construction Erectors, Inc., 265 N.L.R.B. at 788. Thus, at no time did the Union achieve a majority in a stable and permanent workforce sufficient to bind Mesa Verde under the agreement as to future jobsites.

C. Timing of the Repudiation

At the time that Mesa Verde abrogated the agreement on May 15, 1984, its Lucky Hercules Project was still in operation. Mesa Verde continued to make Trust Fund contributions after May 15, 1984, for laborers employed on that project. Mesa Verde argues that when a pre-hire agreement is abrogated and there is an ongoing project on which the union represents a majority of the employees, the employer must continue to comply with the collective bargaining agreement on that project until it is completed and the employees are terminated. The repudiation is effective, however, as to future jobsites. The Union rejects this argument and contends that Mesa Verde could not repudiate the agreement at a time when the Union had majority status on any jobsite.

Under Dee Cee Floor Covering, Inc., ’supra, however, a § 8(f) pre-hire agreement does not become enforceable until the union demonstrates majority status, and, in the case of a project-by-project employer, majority status must be separately demonstrated at each job site. Contrary to the Union’s claim, the Board has not “cut back on its opinion in Dee Cee Floor Covering." Recent cases continue to make this distinction between project-by-project employers and those having a permanent and stable workforce, all citing Dee Cee Floor Covering. See Acme Marble & Granite Co., Inc., 271 N.L.R.B. No. 147 (August 9, 1984); Construction Erectors, Inc., 265 N.L.R.B. 786 (1982); Giordano Construction Co., 256 N.L.R.B. 47 (1981); Hageman Underground Construction, 253 N.L.R.B. 60 (1980). The Ninth Circuit approved this rule in N.L.R.B. v. Pacific Erectors, Inc., 718 F.2d 1459 (9th Cir.1983).

Inasmuch as a prehire agreement may be repudiated “until and unless such time as the union achieves majority status in the relevant unit,” Jim McNeff Inc. v. Todd, 103 S.Ct. at 1753-54, Mesa Verde, as a jobsite-by-jobsite employer, was entitled to repudiate its agreement as to all projects on which the Union had not then attained a majority. Under the decisions of the Board and the Ninth Circuit, in the absence of a permanent and stable workforce, each job-site is assessed independently of every other jobsite. If the union has acquired majority status on a particular jobsite, the agreement becomes a binding collective bargaining agreement only as to that job-site. Thus, Mesa Verde remained bound by the collective bargaining agreement on the Lucky Hercules Project but not on future jobsites. See also Irvin-McKelvey Co., 194 N.L.R.B. 52 (1971), enforced in part sub. nom. N.L.R.B. v. Irvin, 475 F.2d 1265 (3d Cir.1973).

II. Is this Court the Proper Forum to Determine Whether the Repudiation was Effective?

Section 9 of the Mesa Verde-Union agreement provides that “any dispute concerning the interpretation or application of the agreement shall be submitted to arbitration.” The Union argues that the scope of the clause is broad enough to encompass a claim of repudiation of the collective bargaining agreement and hence the issue must be decided in arbitration. It relies on the general rule stated in California Trucking Association v. Brotherhood of Teamsters and Auto Truck Drivers Local 70, 679 F.2d 1275, 1282 (9th Cir.1981), that “the issue whether repudiation has occurred must normally be submitted to arbitration when the contract calls for arbitral resolution of questions arising under the collective bargaining agreement.”

The Union’s argument ignores the “important distinctions between collective bargaining agreements and prehire agreements.” Northern California District Council of Laborers v. Robles Concrete Company, 149 Cal.App.3d 289, 293, 196 Cal.Rptr. 776 (1983). Mesa Verde’s right to abrogate the agreement is based on a federal statute, not on a contractual provision. “An arbitrator is confined to interpretation and application of the collective bargaining agreement.” United Steelworkers v. Enterprise Wheel and Car. Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). Since the issue of pre-hire agreement repudiation is statutory, rather than contractual, it is properly decided by the Court.

III. Did the Letter Sent to the Union Repudiate the Agreement?

Mesa Verde’s attorney wrote to the Business Manager for the Union on May 15, 1984, informing him that Mesa Verde was abrogating “any and all labor contracts” with the Union. Mesa Verde contends that the letter was effective to repudiate the agreement. The Union argues that an election held under § 9 of the Act is the exclusive means by which a § 8(f) agreement may be repudiated.

The Supreme Court in Jim McNeff Inc. v. Todd, supra, declined to decide what constitutes an effective repudiation of a § 8(f) prehire agreement. In a footnote, it stated:

It is not necessary to decide in this case what specific acts would effect the repudiation of a pre-hire agreement — sending notice to the union, engaging in activity overtly and completely inconsistent with contractual obligations, or, as respondents suggest, precipitating a representation election pursuant to the final provision of § 8(f) that shows the union does not enjoy majority support.
103 S.Ct. at 1759 n. 11

The Ninth Circuit recently addressed the issue in the case of a single employee unit. Operating Engineers Pension Trust v. Beck Engineering & Surveying Co., 746 F.2d 557 (N.D.Cal.1984) The Trust there argued that a letter sent by the employer was not an effective means of repudiation. The court rejected the argument, noting that as a matter of long-standing policy, the Board will not certify or find appropriate a single-person bargaining unit for a representation election. Id. at 564. “Since the Board may not and will not ascertain majority status in a single-employee unit, it would be ¿utile for the employer of a single employee to petition the Board for a representation election in order to repudiate his Section 8(f) pre-hire agreement. Id. Accordingly, a construction industry employer who employs a single employee pursuant to a § 8(f) agreement “is entitled to repudiate the agreement by conduct sufficient to put the union and the employee on notice that the agreement has been terminated.” Id. The court concluded that the company’s letter was sufficient to put the union and the only employee on notice that it considered the agreement terminated.

The reasoning in Operating Engineers controls here. It would have been futile for Mesa Verde to petition the Board for a representation election with respect to jobs which had not commenced and for which laborers had not yet been hired. Mesa Verde’s conduct had only to be sufficient to put the union on notice that the agreement was terminated. Id. at 565. The letter announcing termination was clearly sufficient to do so.

For the reasons stated above, Mesa Verde’s motion for summary judgment is granted.

IT IS SO ORDERED.

      . Section 8(f) provides in pertinent part:
      It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not established, maintained, or assisted by any action defined in subsection (a) of this section as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 159 of this title prior to the making of such an agreement____ Provided, That nothing in this subsection shall set aside the final proviso to subsection (a)(3) of this section: Provided further, That any agreement which would be invalid, but for the clause (1) of this subsection, shall not be a bar to a petition filed pursuant to section 159(c) or 159(e) of this tide.
      29 U.S.C. § 158(f).

        . The Board was persuaded by the developer’s argument that Congress intended that each job-site establishes the relevant unit. The developer relied on the following language from H.R.Rep. No. 741, 86th Cong., 1st Sess. 19 (1959), reprinted at [1959] U.S.Code Cong. & Admin.News 2318, 2441-2442; 1 Leg.Hist. 777:
      The occasional nature of the employment relationship makes this industry markedly different from manufacturing and other types of enterprise. An individual employee typically works for many employers and for none of them continuously. Jobs are frequently of short duration, depending upon various stages of construction.
      ******
      In the building and construction industry it is customary for employers to enter into collective-bargaining agreements for periods of time running into the future, perhaps 1 year or in many instances as much as 3 years. Since the vast majority of building projects are of relatively short duration, such labor agreements sometimes apply to jobs which have not been started.

      . The Ninth Circuit has recognized only a rebut-table presumption. Precision Striping, Inc. v. NLRB, 642 F.2d 1144 (9th Cir.1981)


author: GENE CARTER, District Judge.

text:
    Texx LUCE, Plaintiff, v. Dennis HAYDEN, David W. Sinclair, and Allan H. Weeks, Chief, Maine State Police, Defendants.
    Civ. No. 84-0328P.
    United States District Court, D. Maine.
    Dec. 13, 1984.

      Texx Luce, pro sé.
    Michael E. Saucier, Hunt Thompson & Bowie, Portland, Maine, for defendants.
   MEMORANDUM OF DECISION

GENE CARTER, District Judge.

This case is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Complaint. Plaintiff, appearing pro se, filed a Complaint seeking compensatory and punitive damages pursuant to 42 U.S.C. § 1983 on September 24, 1984. Defendants are Trooper Dennis Hayden and Sergeant David W. Sinclair of the Maine State Police and Maine State Police Chief Allan H. Weeks. Plaintiff alleges, among other things, that Trooper Hayden arrested him in Greene, Maine on June 10, 1984; that Trooper Hayden then handcuffed Plaintiff behind his back and forced him to lie on his stomach; that Trooper Hayden then directed a trained state police dog to bite Plaintiff “on the rear part of his body”; and that the alleged dog attack caused serious physical, psychological and emotional injuries. Plaintiff claims that these actions violated his rights under the eighth amendment and the due process clause of the fourteenth amendment to the United States Constitution.

Plaintiff alleges that Defendant Sergeant David W. Sinclair knew of Trooper Hayden’s actions and allowed said actions to be taken. Plaintiff claims that the Maine State Police Chief should be held liable for his alleged injury because Trooper Hayden’s actions reflect a policy or practice of the Maine State Police.

In considering this Motion to Dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6), the Court must accept the allegations in the Complaint as true and construe them in a light most favorable to Plaintiff. See Carr v. Learner, 547 F.2d 135, 137 (1st Cir.1976); Ballou v. General Electric Company, 393 F.2d 398, 399 (1st Cir.1968). In general, pro se complaints brought under 42 U.S.C. § 1983, “however inartfully pleaded,” are held to less stringent standards than are formal pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980). Courts need not, however, conjure up facts that are not pleaded to support conclusory allegations of the complaint. Hurney v. Carver, 602 F.2d 993, 995 (1st Cir.1979).

Plaintiff does not contend that his arrest was made without probable cause, and it will be assumed that he claims that his rights were violated in the course of a lawful arrest.

I.

Defendants argue that the Complaint fails to state a claim against Defendant Hayden because it does not allege that there was a deprivation of constitutional rights or that the deprivation complained of was caused by Trooper Hayden.

Specifically, Defendants argue, among other things, that the Complaint contains only conclusory allegations or subjective characterizations that are insufficient as a matter of law to state a claim. See Dewey v. University of New Hampshire, 694 F.2d 1 (1st Cir.1982). In Dewey, the First Circuit stated:

although we must ask whether the “claim” put forward in the complaint is capable of being supported by any conceivable set of facts, we insist that the claim at least set forth minimal facts, not subjective characterizations, as to who did what to whom and why.

Id. at 3. Plaintiff alleges in his Complaint that he was asleep in a wooded area when approached by Trooper Hayden:

After Plaintiff was awakened, Plaintiff was handcuffed behind his back forced to lay on his stomach, and State Police Trooper Dennis Hayden brought a trained state police dog named Skipper over to Plaintiff and had this state police dog bite Plaintiff in the rear part of his body, than [sic] Trooper Dennis Hayden took this dog Skipper off the Plaintiff, and than [sic] again Trooper Dennis Hayden put this dog Skipper back onto Plaintiff. This Trooper Dennis Hayden than put a gun to Plaintiff [sic] head and stated go ahead move, I’d love to blow your fucking head off, while Plaintiff was secured.

Whatever this account lacks in felicity of expression or elaboration of detail, it certainly contains a sufficiently specific and concrete description of the alleged abuse to meet the standard of Dewey. The clear inferences to be drawn from this account are that Trooper Hayden, acting under col- or of state law, after arresting and obtaining physical control of Plaintiff, intentionally unleashed a state police dog on Plaintiff, which inflicted injury upon Plaintiff.

II.

Defendants further argue, even assuming the truth of the facts alleged in Plaintiffs Complaint, that such actions do not constitute deprivations of any identifiable constitutional rights. They cite the decisions of the Supreme Court in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) and Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Paul, the Supreme Court held that mere damage to reputation, actionable under state law, does not violate the Constitution and will not support a civil rights action under 42 U.S.C. § 1983. In Parratt, the Supreme Court held, inter alia, that a negligent deprivation of property does not violate the fourteenth amendment where a state tort remedy provides adequate “due process of law.” Paul stated, and Parratt reaffirmed, that the fourteenth amendment is not “a font of tort law.” Paul, 424 U.S. at 701, 96 S.Ct. at 1160. See also, Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).

It has been widely held that use of excessive force in the course of a lawful arrest may constitute a constitutional deprivation. See, e.g., Soto v. City of Sacramento, 567 F.Supp. 662, 670-71 (E.D.Cal.1983) and cases cited therein. Often, courts fail to specify which constitutional right is implicated in such cases. Id. at 671. Some courts have found that use of excessive force violates the fourth amendment. Soto, 567 F.Supp. 662; Carter v. Carlson, 447 F.2d 358, 363 (D.C.Cir.1971), rev’d on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), reh’g denied, 410 U.S. 959, 93 S.Ct. 1411, 35 L.Ed.2d 694 (1973); Jenkins v. Averett, 424 F.2d 1228, 1232 (4th Cir.1970); Davis v. Murphy, 559 F.2d 1098, 1102 (7th Cir.1977). Some have found that it violates the fourteenth amendment. Soto, 567 F.Supp. at 673; Davis v. Murphy, 559 F.2d at 1102; United States v. Delerme, 457 F.2d 156, 161 (3d Cir.1972). Others have found that it violates the eighth amendment. Howell v. Cataldi, 464 F.2d 272, 281-82 (3d Cir.1972).

The doctrinal difficulties posed by the impact of the Supreme Court’s holdings in Paul v. Davis, Parratt v. Taylor, and Baker v. McCollan upon actions under Section 1983 for the use of excessive force during a lawful arrest have not been authoritatively resolved by the Supreme Court. Circuit courts and district courts have applied a number of different standards to the determination of whether excessive force rises to the level of a constitutional deprivation. See, e.g., cases cited in Soto, 567 F.Supp. at 670-71; Annot., 60 A.L.R.Fed. 204, 209 (1982); Schiller v. Strangis, 540 F.Supp. 605, 613 (D.Mass.1982). The First Circuit has not had occasion to articulate such a standard.

There has been articulated, however, a minimum standard below which police conduct cannot fall if it is to conform to the due process clause of the fourteenth amendment. Some conduct is so offensive to “ ‘those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses’ ” that it is a violation of due process. Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952) (quoting Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 788-89, 89 L.Ed. 1029 (1945) (Frankfurter, J., concurring)). The Court, per Justice Frankfurter, explained:

Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardozo twice wrote for the Court, are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97,105, 54 S.Ct. 330, 78 L.Ed. 674, or are “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288.

Id. at 169, 72 S.Ct. at 208. In Rochin, the police had forcibly extracted the contents of the defendant’s stomach in order to obtain capsules he had swallowed for use as evidence. The Court concluded that the police conduct “shocks the conscience” and was therefore violative of due process.

The standard set forth in Rochin for a substantive due process violation is still the law of this nation. See Baker v. McCollan, 443 U.S. 137, 147-49, 99 S.Ct. 2689, 2696-97, 61 L.Ed.2d 433 (1979) (Blackmun, J., concurring); see also, Roberts v. Marino, 656 F.2d 1112 (5th Cir.1981); Schiller v. Strangis, 540 F.Supp. 605 (D.Mass.1982). Application of “such a vague and discretionary standard” can be difficult. See Schiller, 540 F.Supp. at 616. Judge Friendly made one notable attempt to elucidate the substantive due process standard:

Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights. In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973); see also, Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981).

Reading Plaintiff’s Complaint with the generosity required in pro se civil rights actions, the Court has determined that it does state a claim against Trooper Hayden. The Complaint may be read to allege that Trooper Hayden, after gaining full control of Plaintiff, intentionally and maliciously, for no other purpose than to frighten and injure Plaintiff, ordered a state police dog to attack Plaintiff. So read, the Complaint alleges conduct which does indeed “shock the conscience.”

The Court need not, and expressly does not, decide what standard should be applied to determining whether police misconduct in the course of a lawful arrest, that is not so egregious that it “shocks the conscience,” amounts to a deprivation of constitutional rights that is actionable under 42 U.S.C. § 1983.

III.

Defendants Sinclair and State Police Chief Allan Weeks contend that the Complaint fails to state a claim against them. With respect to Sinclair, Plaintiff alleged, inter alia:

Defendant Sgt. David W. Sinclair knew of this Defendant Dennis Hayden’s actions, and allowed said action and crimes against Plaintiff [sic] body and mind to happen.

Plaintiff alleged that the police chief knew of Trooper Hayden’s alleged conduct either before or after it occurred, and

On information and belief because of these uncalled for threats and attacks, by this state police dog, the policy and practice of the Maine State Police are in violation of the United States Constitution and Defendant Maine State Police Chief has the power and the legal duty to to [sic] and those who practices [sic] but has failed to do so,

Section 1983 does not authorize damages liability where an individual had no personal role in the wrong doing. Kostka v. Hogg, 560 F.2d 37, 40 (1st Cir.1977). Such an individual lacks the bad faith required to expose him to damages liability-under section 1983. Id. Courts have generally rejected vicarious liability as a basis for imposing liability upon a supervisor under Section 1983. Id.; see cases cited in Annot, 51 A.L.R.Fed. 285, 291, § 3 (1981). Adoption by a supervisor of a plan or policy, however, which is causally related to a constitutional deprivation may be sufficient to attribute liability to the supervisor. See Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (dicta); Duchesne v. Sugarman, 566 F.2d 817, 831 (2d Cir.1977).

While lacking in specificity, Plaintiffs allegations regarding Sinclair, generously construed, are sufficient to suggest that Sinclair was personally involved in the alleged misconduct by Trooper Hayden. In this pro se action, the allegations are sufficient to survive a motion to dismiss.

With respect to the police chief, the question is whether the Complaint alleges facts which suggest that he implemented or authorized a plan or policy which was affirmatively linked to the alleged incident of police misconduct. The mere allegations that the incident occurred and that the police chief later found out about it are insufficient to support a claim that he implemented or authorized a plan or policy which was linked to the incident. No facts indicating that such a plan or policy exists are alleged. Accordingly, the Complaint fails to state a claim against the police chief.

IV.

Finally, Defendants argue that Defendants are immune from liability because Plaintiff has failed to allege bad faith on the part of Defendants, all government officials acting in their official capacity. See Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Kostka v. Hogg, 560 F.2d 37, 40 (1st Cir.1977). It is clear, first of all, that the facts alleged, as they are to be construed on this motion and viewed in the light most favorable to Plaintiff, could not have occurred in the absence of bad faith on the part of Defendants Hayden and Sinclair. Second, the Supreme Court has unequivocally announced that a plaintiff does not have the burden of pleading bad faith in order to state a claim for relief. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) (overruling in part Kostka v. Hogg, 560 F.2d 37, 40-41 (1st Cir.1977)). Official immunity is a defense to be pleaded affirmatively by the defendant. Id. On this motion to dismiss, therefore, Defendants’ claim of official immunity must fail.

Accordingly, it is ORDERED:

(1) that Defendants’ Motion to Dismiss as to Defendants Hayden and Sinclair be, and is hereby, DENIED;
(2) that Defendants’ Motion to Dismiss as to Defendant Maine State Police Chief Allan Weeks be, and is hereby, GRANTED.

So ORDERED.


author: GARRITY, District Judge.

text:
    Francis HICKEY et al., Plaintiffs, v. Charles H. HOWARD, III et al., Defendants.
    Civ. A. No. 82-1779-G.
    United States District Court, D. Massachusetts.
    Dec. 13, 1984.

      Robert H. Bohn, Jr., Paul G. Gitlin, Gitlin Emmer, Kaplan & Bohn, Boston, Mass., for plaintiffs.
    Harvey J. Wolkoff, Ropes & Gray, Boston, Mass., for defendants.
   ORDER

GARRITY, District Judge.

On June 11, 1984, plaintiffs moved to amend their complaint, which alleges that defendant stockbrokers “churned” plaintiffs’ accounts, to add a claim for treble damages under Mass.G.L. c. 93A. On October 29, 1984, the court declined to certify the issue of the applicability of c. 93A to securities claims to the Supreme Judicial Court of Massachusetts. After reviewing briefs submitted by the parties on this issue, we hold that c. 93A is applicable to securities transactions.

The scope of c. 93A is broadly defined in § 2(a), which provides that all “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” The statute itself makes no reference to its applicability to securities transactions. Nor has the Massachusetts Supreme Judicial Court addressed this issue. Our task, then, is to determine what the Supreme Judicial Court would decide if confronted with this question.

Two judges in the United States District Court for the District of Massachusetts have held that § 2(b) of c. 93A limits the scope of the Act. This section provides that the statute is to be construed “by the interpretations given by the Federal Trade Commission and the federal courts to section 5(a)(1) of the Federal Trade Commission Act____” These judges reason that because the FTC Act does not apply to securities transactions, neither does c. 93A. See Conkling v. Moseley, Hallgarten, Estabrook & Weeden, D.Mass.1983, 575 F.Supp. 760; Sweeney et al. v. Keystone Provident Life Insurance Company et al., D.Mass.1983, 578 F.Supp. 31.

However, we concur instead in the opinions of three other judges of this court who have determined that Massachusetts courts would allow a c. 93A action for alleged securities violations. See Kennedy v. Josephthal & Co., Inc., No. 82-913-Ma (D.Mass. June 29, 1982); Sullivan et al. v. Dean Witter Reynolds, Inc. et al., No. 82-3300-K (D.Mass., June 9, 1983); Mitchelson v. Aviation Simulation Technology, Inc., D.Mass.1983, 582 F.Supp. 1. Recent decisions by the Supreme Judicial Court have expanded the scope of c. 93A, not restricted it. See Dodd v. Commercial Union Insurance Co., 1977, 373 Mass. 72, 365 N.E.2d 802 (c. 93A applies to insurance transactions); Raymer v. Bay State National Bank, 1981, 384 Mass. 310, 424 N.E.2d 515 (c. 93A applies to the banking industry). These Supreme Judicial Court decisions also indicate that while § 2(b) provides that the FTC Act should be used as a “guide” in construing c. 93A, it should not be used arbitrarily to limit its scope. See Raymer, at 319, 424 N.E.2d 515 (“The fact that [banks] are exempted from the Federal Trade Commission Act because they are regulated by a different Federal agency does not require a similar exception from c. 93A”). Furthermore, these cases demonstrate that c. 93A may be applied to areas already covered by federal or state regulation.

Accordingly, we grant plaintiffs’ motion to amend their complaint to add a claim under c. 93A.

      . Plaintiffs also sought to add a claim under the RICO statute, 18 U.S.C. § 1964(c). On August 30, 1984 the court denied plaintiffs’ motion with respect to the RICO claim.


author: MILTON POLLACK, Senior District Judge.

text:
    The NATIONAL NUTRITIONAL FOODS ASSOCIATION and Solgar Co., Inc., Plaintiffs, v. Frank E. YOUNG, M.D., Commissioner of Food and Drugs, and Food and Drug Administration, Defendants.
    No. 84 Civ. 5108 (MP).
    United States District Court, S.D. New York.
    Dec. 14, 1984.
    Bass & Ullman by Jacob Laufer, New York City, for plaintiffs.
    Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Amy Rothstein, Asst. U.S. Atty., New York City, for defendants.
   MILTON POLLACK, Senior District Judge.

This is a suit for an injunction and declaratory judgment which seeks to invalidate regulations of the Food and Drug Administration (“FDA”) promulgated on April 6, 1984 and applicable to high-concentrate food products deriving more than 50% of their caloric value from protein. Plaintiffs challenge the warning labels required on such food products as arbitrary and capricious, and as unsupported by the administrative record of the Agency.

Jurisdiction of the Court over this suit resides in 28 U.S.C. §§ 1332 and 1391(a). In July, 1984, this Court denied plaintiff’s application for a preliminary injunction which sought to hold up the effective date, August 6, 1984, of the regulations. The Court found, at that time, that defendant had demonstrated a “reasonable basis for addressing the hazards posed by the use of low caloried protein diets.” National Nutritional Foods Ass’n. v. Novitch, 589 F.Supp. 798, 799, at 801 (S.D.N.Y.1984) (Pollack, J.). The issues were then presented at a Bench Trial concluded on December 10, 1984.

The plaintiffs’ contentions turn basically on the answer to the question whether the requirements of the regulations at issue are adequately supported by rational judgments as to relevant material to be found in the Agency’s administrative record, which is comprised of 12,412 pages of material. 5 U.S.C. § 706(2)(A); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971).

Upon due deliberation, the Court finds and decides that the regulations of the Agency questioned herein establish rational thresholds as well as reasonable and proper warnings and notices to be affixed to the protein products and that these are supported by substantial evidence in the administrative record and are reasonably and necessarily required in the protection of the public interest.

In detail, the findings of fact and conclusions of the Court follow.

Background

Some seven years ago, an alarming incidence of illness and deaths was reported that was associated with persons who were on certain liquid protein diets which were being widely promoted and recommended at the time. Those reports prompted the FDA to conduct an investigation and ultimately to propose the predecessors of the current regulations. 42 Fed.Reg. 61285-61287, (December 2, 1977). The regulation at issue in this action, as modified, was promulgated by the FDA on April 6, 1984 (21 C.F.R. § 101.17(d)). It establishes three types of required label and labeling statements for:

“any food product in liquid, powdered, tablet, capsule or similar forms that derives more than 50 percent of its total caloric value from either whole protein, protein hydrolysates, amino acid mixtures or a combination of these, and that is represented for use ' in reducing weight” ... (regulated protein products)

(49 Fed.Reg. 13679-13689, April 6, 1984).

The background which precipitated the original form of the regulations and of the modifications thereof over a period of seven years leading up to the 1984 version, is instructive. The findings and conclusions of the FDA giving the reasons and explanation for the promulgation of the regulations are set forth in the preambles to the various Federal Register announcements issued during the course of the administrative proceedings.

In 1976 and 1977, a book entitled “The Last Chance Diet” was written by a Dr. Robert Linn popularizing the use of “predigested liquid protein supplements,” and proclaiming them as essentially the only source of nourishment in a weight reduction program. This diet reached widespread fad proportions and involved the ingestion of less than 400 calories per day. As a result of this book and other promotional materials, some of the regulated protein products which were either specifically labeled for use in diets providing more than 400 calories per day, or as food supplements, were used in diets of less than 400 calories per day.

The National Center for Disease Control (“CDC”) conducted a portion of the investigation of the casualties reported following the protein dieting described and found inter alia that the death rate among people adhering to very low calorie diets in conjunction with regulated protein products was, while the diet was popular, 37 times greater than the death rate in the general population. The CDC further concluded that the clinical electrocardiographic pattern of the deaths reported was highly suggestive of death by starvation.

As a result of such investigation, FDA had determined that use of the regulated protein products in diets of less than 400 calories per day (“very low calorie diets”) may cause serious illness or sudden and unexpected death from cardiac arrest and that such diets should not be undertaken without medical supervision or by infants, children, pregnant or nursing women.

The 1984 regulation now sets forth three types of required label statements for the regulated protein products. The use for which a particular product is represented on its label and labeling determines which of the three label statements must appear on the product’s label. Regulated protein products which are represented on their label or labeling for use in weight reduction must bear a label with the word “warning” which advises that very low calorie diets of less than 400 calories per day may cause serious illness or death and that such diets should not be undertaken without medical supervision. (C.F.R. § 101.-17(d)(1)) (the first label statement).

If a regulated protein product is represented on its label or labeling for weight reduction in diets of more than 400 calories per day, and provides a specific diet plan (or information as to where one can be obtained) it is exempt from the first label statement and is required instead to bear a label which includes the following two sentences:

“Notice: For weight reduction use only as directed in the accompanying diet plan (the name and specific location in labeling of the diet plan may be included in this statement in place of “accompanying diet plan”). Do not use in diets supplying less than 400 calories per day without medical supervision.”

21 C.F.R. § 101.17(d)(2) (the second label statement).

If a regulated protein product is represented in its label or labeling for purposes other than weight reduction, the regulation prescribes the following label requirement:

“Notice: Use this product as a food supplement only. Do not use for weight reduction.”

21 C.F.R. § 101.17(d)(3) (the third label statement).

Since regulations of this kind were first proposed, changes have taken place in the market place with respect to protein supplement products. Popularity of the fad diet which advocated the use of protein as the sole source of nourishment in conjunction with very low calorie diets (both supervised and unsupervised) has long since ended. One regulated product, deriving 56% of its calories from protein was represented for supervised use in a very low calorie diet during the notice and comment proceedings.

Other reducing diets, with varying combinations of calories and types of nutrients remain popular. One such diet involves the use of products deriving less than 50% of its calories from protein, and provides less than 400 calories per day. The products affiliated with such diet are not subject to the regulation.

Except for a few instances, there is no evidence of continued widespread use of very low calorie protein diets or adverse effects therefrom. FDA has not received reports of serious injury or death with respect to the use of the regulated protein products since at least 1980.

In explaining the continuing need for this regulation at the present time, the FDA stated inter alia:

“The record contains considerable evidence concerning the risks associated with very low calorie protein diets. FDA has clear authority to require label warnings to avert the recurrence of the type of use and misuse of protein products which resulted in the serious health problem that occurred in 1977 ... the Agency is concerned that if it abandons its label warning proposal very low calorie protein diets will again gain similar popularity without adequate warnings of the risks."

49 Fed.Reg. 13685 Column 1.

There is no evidence that plaintiffs have suffered any economic loss as a result of the implementation of the regulation during the time period from August 6, 1984 to the present.

Plaintiffs’ Challenge to the 1984 Regulation

As a result of the trial testimony of Dr. Victor Frattali, FDA’s Deputy Director of Nutrition, who was actively involved in the development of the regulation throughout the entire course of the administrative proceedings, the plaintiffs have reduced their broadside challenge to the regulation and now challenge only the following:

With respect to (a), the second label statement — first sentence;

(b) the third label statement — first sentence; and

(c) the third label statement as it applies to products sold for use in gaining weight and not for weight reduction.

A. The Second Label Statement — First Sentence

The regulation in the second label statement requires that a regulated protein product be accompanied by a nutritionally balanced diet plan providing more than 400 calories per day (or provide information describing where such plan can be obtained) and that the label of the product bear the second label statement.

Plaintiffs object to the requirement of this statement on the label as overbroad. They argue that under the regulation manufacturers are not precluded from providing as many accompanying diet plans as they desire. They say it is not feasible for a manufacturer to supply either with a product, or by mail, all diet plans providing more than 400 calories per day. They say that the regulation prohibits a manufacturer who desires to provide one accompanying diet plan, from making a statement on the label, such as “For weight reduction, use only with a nutritionally balanced diet of more than 1,000 calories per day such as the accompanying diet plan,” in place of the first sentence of the second label which reads “For weight reduction, use only as directed in the accompanying diet plan.”

The plaintiffs contended that the sole concern of FDA is that the plan does not go below 400 calories in weight reduction diets and consequently the use of the word “only” is improper surplusage since the last sentence reads, “Do not use in diets supplying less than 400 calories per day without medical supervision.” It is the use of the word “only” to which the plaintiffs finally reduced their criticism of the second sentence on the last day of the hearings.

This criticism of the regulation as over-broad lacks merit. The word “only” is used to refer to qualifying plans and, contrary to plaintiffs’ argument, does not constrict the manufacturer in its selection of a qualifying plan; it merely requires the accompanying copy of the diet plan selected by the manufacturer, or the name of, and specific location of, its availability. A manufacturer is not precluded from providing as many qualifying diet plans as he desires.

B. The Third Label Statement — First Sentence

The first sentence of the required notice in the third statement to which the plaintiffs object reads:

“Use this product as a food supplement only.”

In a second sentence in the third statement, the notice must say:

“Do not use for weight reduction.”

Plaintiffs do not object to the subsequent sentence quoted above. They object to the seeming redundancy of the first and second sentences, arguing that there is no evidence that consumers regard the uses for such a product as food supplement uses.

It is perfectly apparent that anything compounded of ingredients is in a form in which each ingredient supplements another.

It is also entirely rational for FDA to anticipate consumer confusion and to require a notice expressly cautioning against use of the protein product by itself, both by a statement that the product should be used only as an additive and not used separately for weight reduction.

Certainly, the plaintiffs have not shown any damage to their sales from this innocuous requirement and the notice form is entirely rational under all the circumstances.

C. The Third Label Statement — Products Sold For Use in Gaining Weight and not for Weight Reduction

The third label statement applies to products which are expressly labeled for use in gaining weight and which are not labeled for weight reduction. Plaintiffs contend that it is arbitrary and capricious to require products promoted for weight gain to be subject to a regulation designed to curb abuses in weight reduction.

It is undisputed that the composition of protein products promoted for use in gaining weight may be identical to that of products promoted for weight reduction. Thus, the FDA believes that the third label statement is necessary to guard against the possibility that regulated products will be used in very low calorie diets. Since the products are promoted as aids for gaining weight, sales are unlikely to be affected by a label cautioning against their use for weight loss; indeed, plaintiffs have presented no evidence of detrimental effects on sales.

Conclusion

Based on a “searching and careful” review, the Court finds that each of the requirements of the regulation at issue is adequátely supported by rational judgments of the FDA based on relevant material. Plaintiffs have not established as meritorious their criticisms of the substance, form, or propriety of the regulation, or of the judgment of the FDA.

The complaint is dismissed in its entirety, and judgment shall be entered herein in favor of the defendants, with costs.

So Ordered.