author: WINDER, District Judge.

text:
    SOCIETY OF PROFESSIONAL JOURNALISTS, a Utah non-profit corporation, KUTV, Inc., KSL Radio and Television, KTVX T.V., KUED, KALL, the Kearns-Tribune Corporation, Deseret News Publishing Company, the Ogden Standard Examiner, the Logan Herald Journal, Associated Press, United Press International, and National Broadcasting Company, Plaintiffs, v. The SECRETARY OF LABOR, Defendant. EMERY MINING CORPORATION, a Utah corporation, Plaintiff, v. The UNITED STATES SECRETARY OF LABOR, Defendant.
    Civ. Nos. C-85-0070W, C-85-0166W.
    United States District Court, D. Utah, C.D.
    Aug. 21, 1985.

      Samuel O. Gaufin, David L. Deisley, Patrick A. Shea, Salt Lake City, Utah, for Society of Professional Journalists.
    James B. Lee, Raymond S. Etcheverry, Salt Lake City, Utah, for Emery Min. Corp.
    Joseph W. Anderson, Asst. U.S. Atty., Salt Lake City, Utah, Timothy M. Biddle, Washington, D.C., for Secretary of Labor.
    Arthur F. Sandack, Salt Lake City, Utah, Michael H. Holland, Earl R. Pfeffer, United Mine Workers of America, Washington, D.C., for United Mine Workers.
   MEMORANDUM DECISION AND ORDER

WINDER, District Judge.

This matter is before the court on the defendant Secretary’s motion for summary judgment. The motion was orally argued on May 9, 1985. The plaintiffs (other than Emery Mining Co.) were represented by Patrick A. Shea and David L. Deisley. The defendant Secretary was represented by Joseph W. Anderson and Alan Yamamoto. The matter was taken under advisement, and the court has since carefully reviewed the memoranda submitted by counsel and various authorities that bear on the issue involved in the motion. Being now fully advised, the court renders the following decision.

Background

On December 19, 1984, a fire broke out in the Wilberg Mine, a coal mine near Price, Utah. The fire killed 27 miners. On December 31, the Mine Safety and Health Administration (MSHA) launched an investigation into the cause of the fire. As part of the investigation, MSHA decided to conduct formal hearings and asked several people to give sworn testimony to be taken down verbatim by a court reporter. MSHA invited several groups to send non-testifying representatives to the hearings, but closed the hearings to the press and the public. The hearings began on January 21, 1985.

When the plaintiffs, who are various news-reporting organizations, discovered that they were being excluded from the hearings, they brought this action. They demanded access to the formal hearings then being conducted by MSHA personnel in Price, Utah. The plaintiffs asked for a temporary restraining order to prevent MSHA from conducting the formal hearings behind closed doors. They asked that MSHA be enjoined from continuing the hearings unless a pool reporter was allowed to be present. On January 25, 1985, after a brief hearing, this court issued the requested temporary restraining order. A pool reporter presented himself at the hearings in Price and requested admittance. The MSHA personnel conducting the hearing thereupon recessed the hearings pending the preliminary injunction hearing this court had scheduled.

The preliminary injunction hearing was held on February 1, 1985. In addition to the plaintiffs and the defendant Secretary, the United Mine Workers of America (UMWA) were represented at the hearing. The UMWA moved to intervene in the proceedings, and that motion was later granted. Following the preliminary injunction hearing, this court took the matter under advisement.

On February 8, this court issued a preliminary injunction which differed from the temporary restraining order. Under the terms of the preliminary injunction, the hearings could be closed if the participants were limited to representatives of MSHA, the Utah Industrial Commission, and the UMWA. If anyone besides representatives of these groups, the witness, and the court reporter were allowed to be present, the hearing would have to be open to the press and the public.

The operator of the Wilberg Mine, Emery Mining Co., was dissatisfied at being excluded from the hearings and brought a separate action against the Secretary of Labor. On February 14, 1985, this court consolidated Emery Mining’s case with this case and modified the preliminary injunction to allow Emery Mining to be among those who could participate in the closed hearings. The hearings were resumed with personnel from MSHA, the Utah State Industrial Commission, the UMWA, and Emery Mining all present and participating. The press and the public were excluded. The hearing were completed several months ago.

The present motion for summary judgment is centered on one issue: whether the Constitution or federal law requires that the formal fact-finding hearings conducted by MSHA be open to the press and public. The defendant Secretary argues that summary judgment must be granted in his favor. He claims that he is not obligated by either federal statute or the United States Constitution to allow the press or the public to attend hearings conducted by MSHA.

The plaintiffs, in response, claim that the constitutional guarantees of free speech and freedom of the press require this type of hearing to be open to the press and the public. They also claim that hearings of the type conducted by MSHA in Price must be public under 30 U.S.C. § 813(b). This court holds that there is a constitutionally protected right of access to formal administrative proceedings of this type. Therefore, the summary judgment motion is denied.

Statutory Requirements

The plaintiffs argue strenuously that there is a statutory requirement under 30 U.S.C. § 813(b) that any formal hearings conducted by MSHA to investigate coal mine accident must be public. However, the language of § 813(b) does not support the plaintiffs’ argument. It is permissive language, not mandatory.

The pertinent part of § 813(b) states that the Secretary may conduct public hearings.

For the purpose of making any investigation of any accident or other occurrence relating to health or safety in a coal or other mine, the Secretary may, after notice, hold public hearings, and may sign and issue subpoenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths.

30 U.S.C. § 813(b). The statute does not require the Secretary to hold in public any and all hearings conducted for the purpose of investigating a mine disaster. It simply empowers him to conduct public hearings. Therefore, the plaintiffs cannot claim a right of access under § 813(b).

The plaintiffs also argue that § 813(b) suggests that Congress intended all investigatory hearings into mine accidents to be conducted formally and in public. While it is unclear whether that was Congress’s intent or not, it is clear that that intent is not embodied in the statutory language. The Secretary is not required to hold all mine accident investigation hearings as public hearings under § 813(b).

Constitutional Right of Access

The United States Constitution does not expressly require either Congress or the Executive to hold any of their meetings in public. There is also no common-law right to attend meetings of government bodies. See Note, Open Meeting Statutes: The Press Fights for the “Right to Know, 75 Harv.L.Rev. 1199, 1203 (1962). Indeed, the tradition in England was to hold legislative debate in secret and to prohibit publication of legislative proceedings. See id.; Watkins, Open Meetings Under the Arkansas Freedom of Information Act, 38 Ark.L.Rev. 268, 271 (1984). This tradition was exported to colonial America. See Watkins, supra, at 271.

The tradition of closed legislative proceedings resulted in both the Continental Congress and the Constitutional Convention conducting their proceedings in secret. See id. It is not surprising, therefore, that the Framers of the Constitution did not include an express provision in the Constitution that required Congress to deliberate in public. Even though not constitutionally required, it was not long before both the House and Senate began to hold their sessions in public on a regular basis. Id. The Senate has done so since 1794, and the House since the War of 1812. Id. The increasingly important committee sessions, however, have been routinely open to the public only since the mid-1970’s. Id.

Although Congress is not expressly required to hold open meetings by the United States Constitution, thirty-four of the states do have express constitutional requirements that their state legislature meet in public. See Note, supra, at 1203. In the other states, the legislative sessions are open by custom. Id. None of the states, however, require by an express constitutional provision that any meetings or proceedings other than legislative sessions be open to the public.

Although the executive branches of the various state governments and the federal government are not expressly required by constitutional provision to open their proceedings, they are required to hold some of their meetings in public by law. All fifty states, the District of Columbia, and the federal government have some form of a “government in the sunshine” act. See Watkins, supra, at 268. These acts have never been held to be constitutionally required, however, and derive from vigorous lobbying of legislative bodies by the news media rather than any action in the courts. See Watkins, supra, at 272.

Although legislatures have generally been-more active in promoting a right of access than the courts, the courts have been active in finding a constitutional right of access in one area. The area is that of judicial proceedings. The sixth amendment gives only the defendant the right to a public trial; it does not give anyone other than a criminal defendant standing to assert the right. See U.S. Const. amend. VI. However, the Supreme Court has found that the press and public have a right of access to criminal trials even where the defendant expressly waives his right to a public trial and desires the proceedings to be closed. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). This right of access is based on the first amendment freedoms. See id. This right is not absolute, since the press and public can be excluded if 'the court finds a compelling reason why the proceedings must be closed. But the right exists.

The right of access to judicial proceedings has been extended beyond criminal trials. Some courts have found a right of access to civil trials. See, e.g., Publicker Indus. v. Cohen, 733 F.2d 1059, 1071 (3d Cir.1984). The press have a first amendment right of access to presidential press conferences. Cable News Network v. American Broadcasting Cos., 518 F.Supp. 1238 (N.D.Ga.1981). This court is asked by the plaintiffs in this case to extend the right of access to formal administrative fact-finding hearings. This court does so.

Freedom of the Press

The plaintiffs ask this court to find a right of access in the freedom of the press guarantee of the first amendment. They claim that they are constitutionally entitled to access even though the public might not be. They claim that the right to publish information is expressly given the press in the first amendment, and argue that the right of access to information is a necessary part of publishing that information. This court agrees that there is a right of access in this case. This court finds, however, that the right of access is based on the penumbra of the first amendment guarantees, not solely on the freedom of the press guarantee.

There are weighty practical problems in finding that members of the press have a greater right of access than the general public. One difficulty is in determining whether a person desiring access is indeed a member of the press or is simply a member of the general public. For example, is a person who claims to be a free-lance reporter, but has never had any of his work published, a member of the press or not? The distinction between press people and the general public is too vague and indistinct to base a constitutional right upon.

Another difficulty in finding that the press has greater rights than the public is that the policies behind allowing a right of access may not be served if the right is limited. If members of the general public cannot attend a hearing, then the only information they can receive will have been filtered through the press. Although one might expect that the press would report fully on all matters of public interest, that is frequently not the case. See Pechter v. Lyons, 441 F.Supp. 115 (S.D.N.Y.1977). A press right of access is often an inadequate substitute for a right of access for all interested members of the public. Allowing the press to decide what the public will hear is subject to the same abuse, and perhaps to a greater degree, as the government itself deciding what the public and press will hear. See Houchins v. KQED, Inc., 438 U.S. 1, 14, 98 S.Ct. 2588, 2596, 57 L.Ed.2d 553 (1978).

In addition to the practical problems in finding a right of access solely for members of the press, there are problems with precedent as well. The Supreme Court has ruled out a right of access based on the freedom of the press guarantee standing alone. See Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495 (1974). See also Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978). This court will follow the Supreme Court, as it must, and not base the right of access solely on the freedom of the press guarantee of the first amendment.

First Amendment Right of Access to Judicial Proceedings

The Supreme Court, in a plurality decision, found a right of access to criminal trials in the penumbra of the first amendment guarantees of freedom of the press, freedom of speech, and freedom of assembly. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). The Richmond Newspapers case was a clear departure from the earlier Supreme Court ruling in Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). A majority of the Court reached basically the same result in Globe Newspaper Co. v. Superior Court, 457 U.S. 596,102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), which made the Richmond Newspapers analysis the analysis of the Court.

In Globe Newspaper, the Court identified two features of the criminal justice system that explain why a right of access to criminal trials is afforded first amendment protection. See 457 U.S. at 605, 102 S.Ct. at 2619. First, criminal trials have historically been open to the press and public. See id.; Richmond Newspapers, 448 U.S. at 569,100 S.Ct. at 2823. Second, the right of access to criminal trials plays a significant role in the proper functioning of the judicial process. See Globe Newspaper, 457 U.S. at 606, 102 S.Ct. at 2619; Richmond Newspapers, 448 U.S. at 569, 100 S.Ct. at 2823.

Thus far, the right of access has been limited to criminal trials in Supreme Court cases. The Supreme Court has, however, extended the right beyond just the trial itself to include jury voir dire in criminal cases. Press—Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). In doing so, the Court used the Richmond Newspapers analysis. The Court looked to the historical tradition in England and colonial America, and found that jury voir dire has historically been performed in public. See id., 104 S.Ct. at 822- 23. The Court then looked to the significance of the role a right of access plays in the jury voir dire process, and found that it plays a crucial role. See id., 104 S.Ct. at 823- 24. Consequently, the Court held that a right of access, or presumption of openness, applies to the jury voir dire proceedings in a criminal proceeding.

While the Supreme Court has extended Richmond Newspapers beyond just the criminal trial itself, it has not overruled the direct holding of Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). In Gannett, the court held that there is no first amendment right of access to a pretrial suppression hearing in a criminal case. The Court in Richmond Newspapers was careful not to overrule Gannett. In fact, the Court mentioned Gannett in passing, thus seeming to indicate that Gannett is still good law, in the recent case of Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 2214-15, 81 L.Ed.2d 31 (1984). However, the stage has certainly been set for the overruling of Gannett, and its precedential value is in question. See In re Herald Co., 734 F.2d 93 (2d Cir.1984) (reaching a result contrary to Gannett). Given the appropriate case, Gannett may well be overruled by the Supreme Court.

Indeed, the analysis used by the Court in Richmond Newspapers and Globe Newspaper supports finding a right of access in civil trials as well as criminal trials. See id. Both historical tradition and the procedural importance of openness weigh as heavily in favor of open civil trials as open criminal trials. See Gannett, 443 U.S. at 386 n. 15, 99 S.Ct. at 2908 n. 15; Richmond Newspapers, 448 U.S. at 599, 100 S.Ct. at 2839 (Stewart, J., concurring). The Second, Third, and Sixth Circuits have all followed the Richmond Newspapers analysis in holding that civil trials must be open. See Westmoreland v. Columbia Broadcasting System, 752 F.2d 16, 23 (2d Cir.1984); Publicker Indus. v. Cohen, 733 F.2d 1059, 1071 (3d Cir.1984); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178-79 (6th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984).

First Amendment Right of Access to Presidential Press Conferences

One court has found that members of the press have a first amendment right to attend presidential press conferences. Cable News Network v. American Broadcasting Cos., 518 F.Supp. 1238 (N.D.Ga.1981). The Cable News court did not carefully track the analysis of the Supreme Court in Richmond Newspapers. It only briefly mentioned that there has been a historical practice of allowing pool coverage of presidential news conferences “going back through several past Administrations.” See 518 F.Supp. at 1244-45. The court was no more extensive in its analysis of the value of a right of access to presidential news conferences. See 518 F.Supp. at 1245. Nevertheless, the Cable News court was unequivocal in finding a right of access to events such as presidential news conferences.

The Cable News court’s holding is succintly stated in one quoted paragraph.

Having carefully reviewed the few cases relevant to this issue, this Court finds that the rights guaranteed and protected by the First Amendment include a right of access to news or information concerning the operations and activities of government. This right is held by both the general public and the press, with the press acting as a representative or agent of the public as well as on its own behalf. Without such a right, the goals and purposes of the First Amendment would be meaningless. However, such a right of access is qualified, rather than absolute, and is subject to limiting considerations such as confidentiality, security, orderly process, spatial limitation, and doubtless many others.

518 F.Supp. at 1244. The court’s rather broad statement that the right applies to “news or information concerning the operations and activities of government” will undoubtedly be limited in subsequent cases. But the clear import of Cable News is that at least one court has unmistakably found a right of access to non-judicial proceedings using the Richmond Newspapers analysis.

First Amendment Right of Access to Administrative Proceedings

This court is convinced that a right of access is necessary to the type of hearing MSHA conducted in this case. Even though it is unclear whether a majority of the Supreme Court would find such a right in this case, nose-count analysis is not always helpful. It is difficult, if not impossible, to predict how each member of the Supreme Court would rule on this new issue. Therefore, this court must merely try to follow the analysis adopted by the Supreme Court in similar cases and examine the same policy considerations the Supreme Court would examine. Following that course, this court holds that a right of access exists in this case.

Historical Tradition

There is little historical tradition to examine to determine whether administrative hearings of the type MSHA conducted have generally been open to the public. There does not appear to be a lengthy tradition of even holding administrative fact-finding hearings, since they are of fairly recent origin. However, as discussed above, it is clear that congressional sessions have been open since the early history of our country. Moreover, civil trials, which are analogous to administrative fact-finding proceedings, have historically been open to the public. It seems, therefore, that to the extent that there is a tradition of holding this type of hearing, there is a tradition that the hearings have been open to the public. See Fitzgerald v. Hampton, 467 F.2d 755, 764 (D.C.Cir.1972) (“in administrative hearings, the rule of the ‘open’ forum is prevailing”). See also 3 K. Davis, Administrative Law Treatise § 14:13 (1980); Pechter v. Lyons, 441 F.Supp. 115 (S.D.N.Y.1977); FCC v. Schreiber, 381 U.S. 279, 292-94, 85 S.Ct. 1459, 1468-70, 14 L.Ed.2d 383 (1965).

The Secretary argues that there is not a tradition of openness in this type of hearing because MSHA has almost always closed its hearings to the public. However, that is not a very good indicator of whether there is a tradition of openness for two reasons. First, MSHA has not held a large number of this type of hearing. It is necessary to examine the broad spectrum of administrative hearings, rather than narrow instances, in order to perceive a tradition, See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605 n. 13, 102 S.Ct. 2613, 2619 n. 13, 73 L.Ed.2d 248 (1982). Second, MSHA alone controls whether these hearings are open or not. The fact that MSHA has chosen over the past few years to close its hearings is not a significant indicator of whether there is an enduring and vital tradition of public entree to administrative hearings.

Procedural Importance of Openness

Openness is crucially important to the type of hearings MSHA conducted. A mine disaster that takes twenty-seven lives creates shock and sorrow in the mining community. Even though the disaster may have been the fault of no one, the emotional impact in the community is just as though a murder had taken place. An investigation into the- causes of the disaster can create an emotional catharsis that soothes the community sorrow. If someone is responsible, people become aware of that. If no one is at fault, people can become reassured of that. Access to the proceedings, where feasible, ensures that people realize that justice is being done.

Moreover, openness ensures that MSHA properly does its job. Although Congress can conduct oversight hearings, they occur too long after the MSHA hearings to accomplish the purposes gained by openness. Congressional oversight hearings can prevent future mistakes, but they can do little to correct past ones. In contrast, openness at the hearings can allow mistakes to be cured at once.

The natural tendency of governmental officials is to hold their meetings in secret. See Note, Open Meeting Statutes, The Press Fights for the Right to Know, 75 Harv.L.Rev. 1199, 1202-03 & n. 21 (1962). They can thereby avoid criticism and proceed informally and less carefully. They do not have to worry before they proceed with the task that a careless remark may be splashed across the next day’s headlines. But it is exactly that type of public awareness and opportunity to criticize that is the very foundation of our democracy.

Openness safeguards our democratic institutions. Secrecy breeds mistrust and abuse. As Justice Brandéis stated in words often quoted,

Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.

L. Brandéis, Other People’s Money 62 (1933). A right to open proceedings is necessary to prevent any governmental body from abusing the power it is given.

The federal government, particularly the executive branch, produces a vast amount of information. If the government is given the unfettered discretion to decide what information to make available to the press and the public, it has the power to distort the information and hide the truth. The first amendment guarantees of free speech and free press protect our right to freely criticize the government without fear of censorship by the government. But censorship in speaking and publishing is not the only form of censorship that must be prevented. The process of filtering information—selectively releasing some information while withholding other information—can be effectively used to prevent criticism and hide mistakes. The first amendment guarantees apply to both forms of censorship.

Without a first amendment right of access to some governmental information, our system of government by the people will not work. As James Madison noted,

A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.

9 Writings of James Madison 103 (G. Hunted. 1910). See also Houchins v. KQED, Inc., 438 U.S. 1, 30-35, 98 S.Ct. 2588, 2604-07, 57 L.Ed.2d 553 (1978) (Stevens, J., dissenting) (quoting and discussing Madison’s comment).

The Constitution is not, however, a Freedom of Information Act. See Houchins, 438 U.S. at 14, 98 S.Ct. at 2596. There are limits to the right of access. It is doubtful that the right of access would extend to informal interviews or internal agency deliberations. A right of access is not a license to force disclosure of confidential information or to invade the decisionmaking processes of governmental officials. In this case, this court decides only that the press and public have a first amendment right of access to formal administrative fact-finding hearings.

Many times, it is not necessary to enshrine rights in the Constitution. The democratic process itself ensures that many rights are protected even without embodying them in the Constitution. If a majority of the people cherish a particular right, that right will be respected and protected by representative legislatures. The right will become law.

Openness is essential, however, to the proper functioning of democratic processes. Majoritarian pressures are not felt if the majority of the people are unaware or misled about information crucial to their decisions. The cloak of secrecy can be used to hide abuses or disguise mistakes until it is too late to prevent damage from being done. Openness acts as both a preventative and a curative of such abuses.

A right of access is more a procedural right than a substantive right. It is particularly important that procedural rights be embodied in the Constitution. Majoritarian pressures are often sufficient to ensure that substantive rights are protected by law even though they are not based in the Constitution. Procedural rights are less susceptible to protection by majoritarian pressures. Unless the procedure functions properly, a right will not arise. Therefore, a right of access must be constitutionally protected as a procedural right.

Transcripts of Hearings Cannot Substitute for Openness

The government argues that openness is not essential to the fact-finding process because MSHA has agreed to make a transcript of the hearings available to interested persons as soon as possible. In fact, the plaintiffs did receive transcripts of the hearings at issue here. The government argues that the transcripts are the procedural equivalent of open hearings. By providing a transcript rather than opening the hearings, the government argues, MSHA is able to proceed as it desires in its hearings while still providing the public with the information it desires.

There are, however, several reasons why a transcript cannot replace the right to an open hearing. The most important reason is that MSHA is not obligated to provide a transcript unless a constitutional right requiring disclosure exists. The fact that MSHA provided a transcript this time does not bind it to produce a transcript the next time such hearings are held. The question of whether a right of access exists, therefore, is not answered by simply noting that a transcript was provided in this case.

Moreover, a transcript is not an adequate substitute for an open hearing. Preparation of a transcript requires time. By the time the transcript is ready, the information it contains is stale. In a hearing such as this one, the participants in the hearing can release their own version of the hearing, filtered according to their viewpoint, before the transcript is ready. See, e.g., Plaintiffs’ Memorandum Of Points and Authorities in Opposition to Defendant’s Motions for a Protective Order and for Summary Judgment, exh. A (containing an excerpt from the United Mine Worker’s Journal which gives the UMWA’s view of the accident). The press and public are denied access to unfiltered information while it is still fresh. A stale transcript is not an adequate substitute for access to the hearings themselves.

Transcripts are also inadequate because they are incomplete. A transcript can be edited to remove sensitive information without leaving a trace, or embarrassing material, as in the Watergate Tapes, may be “accidentally” deleted. No such opportunity exists in open hearings. Even if there is no purposeful tampering with the transcript, the full flavor of the hearing cannot be sensed from the sterile sheets of a transcript. Emotions, gestures, facial expressions, and pregnant pauses do not appear on the reported transcript. See Affidavit of Richard L. Finlinson. Much of what makes good news is lost in the difference between a one-dimensional transcript and an opportunity to see and hear testimony as it unfolds.

The Hearings Are Not Equivalent to Grand Jury Proceedings

The government contends that a right of access is inappropriate because the MSHA hearings must be kept secret just as grand jury proceedings are generally kept secret. But the analogy between MSHA hearings and grand jury proceedings is inapt. Several grounds support secret grand jury proceedings. None apply to the MSHA hearings. The contrast between the two is particularly evidenced by the fact that the secrecy rule regarding grand juries applies to transcripts of the proceedings as well as attendance at the proceedings, while MSHA was willing to provide transcripts in lieu of allowing attendance at its hearings. The MSHA fact-finding hearings are simply not analogous to grand jury deliberations.

Conclusion

This court holds, in short, that the press and public have a constitutional right of access to the MSHA hearings. Although this court is aware of the possible broad implications of this holding, that consideration should not deter recognition of this important right. Other courts in other cases can determine how far the right should extend. This court’s holding is limited to the hearings conducted by MSHA in Price, Utah, that are the basis of this case.

Moreover, to say that there is a right of access to this type of hearing does not mean that all hearings of this type must be open. It means, instead, that the Secretary himself does- not have the unfettered right to decide whether the hearings conducted by him are public or not. That decision is for the impartial judiciary.

Because a right of access exists, the government’s motion for summary judgment is denied. Even though a right of access exists, however, that right is not absolute. Governmental interests in confidentiality, security, or orderly process may weigh heavily enough to limit the right of access, or even outweigh it. But a governmental interest must be weighty indeed to be protected when a constitutional right is on the other side of the scales.

The Secretary has advanced several governmental interests which he believes justify his decision to close the hearings. The governmental interests advanced by the Secretary are not frivolous. It is true that MSHA personnel can more easily conduct MSHA hearings without the press and public having access to the hearings. It is true that the press does not always report information accurately or fairly. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (setting forth a litany of press abuses in sensationalizing the Sheppard murder trial). It is true that access to the hearings may spawn unfounded rumors and distorted information. It is true that access to the hearings may, in some cases, hinder the search for truth rather than aid it. Nevertheless, the hearings must be open.

We have agreed as a society to pay the price of holding governmental proceedings in the open in order to preserve our freedom. We have chosen to preserve and encourage free discussion about, and criticism of, our government in order to continually refine our government. In our democracy, the people control the government. A shift from the people controlling the government to the government controlling the people is a shift from democracy to totalitarianism. Administrative difficulties such as those advanced by the Secretary are a small price to pay to entrench the procedural safeguards that keep our society from creeping even slightly closer to totalitarianism. Such difficulties pale in the light of the constitutional rights of free speech and a free press.

It is unclear what further proceedings are necessary in this case. While the Secretary has not yet suggested any counterbalancing governmental interest to overcome the constitutional right this court has found, he has not yet been squarely presented with the opportunity to do so. The Secretary shall have that opportunity if he has anything further he wishes to present.

It is doubtful that there are any governmental interests compelling enough to warrant complete closure of the MSHA hearings. However, limitations on the right of access appear to be essential. The plaintiffs proposed that one pool reporter be allowed to attend the hearings and that one camera be placed in the hearing room so that a video and audio feed could be available to the press and so that the press and the public could watch and hear the live proceedings in a nearby room. Although that arrangement appears to be equitable, this court will delay a final ruling on this issue until both sides have had an opportunity to fully present their evidence and arguments.

Either side may, if it desires, submit further argument and evidence on the issue of whether there is a governmental interest sufficiently weighty to close the MSHA hearings or limit access to them. If necessary, an evidentiary hearing on that issue will be held. Clearly, discovery concerning that issue is necessary, and the Secretary’s motion for a protective order must therefore be denied.

Accordingly,

IT IS HEREBY ORDERED that the Secretary’s motion for summary judgment and motion for a protective order are both denied.

This order will suffice as the court’s action on these motions. No further order need be prepared by counsel.

      . Plaintiff Emery Mining Co. is not involved in this motion.

      . The Secretary has not raised the issue of mootness, presumably because the situation is "capable of repetition, yet evading review,” and thus excepted from the mootness doctrine. See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911).

      . The difficulty of identifying members of the press has been made more difficult by the expansion of methods of reporting the news. The term "press” can refer to the traditional media such as newspaper, magazine, television, and radio news reporters, as well as the non-traditional press such as writers of non-fiction books or articles and the creators of documentary films.

      . Although Houchins was merely a plurality opinion, it seems clear that most, if not all, of the current members of the Court agree that the press has no constitutional right of access superior to that of the general public. See Houchins, 438 U.S. at 13-14, 98 S.Ct. at 2596 (opinion of Burger, C.J., joined by White and Rehnquist, JJ.); id. at 19, 98 S.Ct. at 2599 (Stevens, J., dissenting, joined by Brennan and Powell, JJ.).

      . As Jeremy Bentham noted, no other check on power can substitute for openness.
      Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.
      1 J. Bentham, Rationale of Judicial Evidence 524 (1827), quoted in Richmond Newspapers v. Virginia, 448 U.S. 555, 569, 100 S.Ct. 2814, 2823, 65 L.Ed.2d 973 (1980).

      . Some of the most important grounds for maintaining secrecy in grand jury proceedings include:
      (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

        Houchins v. KQED, Inc., 438 U.S. 1, 35 n. 26, 98 S.Ct. 2588, 2607 n. 26, 57 L.Ed.2d 553 (1978) (Stevens, J., dissenting).


source: Caselaw Access Project

author: WARRINER, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Haeja O. NAMKOONG, et al.
    Crim. No. 85-00044-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Aug. 21, 1985.

      James R. Spencer, Asst. U.S. Atty., Richmond, Va., for plaintiff.
    Richard R. Ryder, Clinton B. Corry, Sr., Richmond, Va., for defendants.
   OPINION AND ORDER

WARRINER, District Judge.

On 17 June defendants were arraigned and entered pleas of not guilty. Trial was set for 30 July. Sometime prior to 30 July defendants entered into a plea bargain with the Government and pursuant to the plea bargain, they entered pleas of guilty on 30 July. Before accepting the guilty plea, the Court conducted the hearing required by Fed.R.Crim.P. 11. Sentencing was set for 28 August.

On 12 August defendants filed a motion to withdraw their pleas of guilty with the request that they be tried by jury on not guilty pleas. Though not cited, the motion is obviously based upon Fed.R.Crim.P. 32(d). Rule 32(d) requires “a showing by the defendant of any fair and just reason” for withdrawing his guilty plea. The motion cites no reason other than defendants’ “desire.” No brief or affidavit supports the motion. Despite a prompt brief in opposition, no rebuttal has been filed by defendants. The Court will consider the motion on the present state of the record.

The Rule for granting motions to withdraw a plea was set in this Circuit by United States v. Savage, 561 F.2d 554 (4th Cir.1977). In Savage, it was established that a defendant could withdraw his plea pretty much on the basis of his “desire” in the absence of prejudice to the Government. United States v. Strauss, 563 F.2d 127 (4th Cir.1977), decided a few months after Savage, appears to confirm that the trial judge should look first to prejudice to the Government before being required to determine whether defendant had good reason to change his plea.

An amendment to Rule 32(d) effective 1 August 1983 changes, I believe, the Savage-Strauss rule. The present amendment requires that the defendant show some “fair and just reason” for withdrawal of his plea. In the absence of such a reason, inquiry into prejudice is not triggered. The Notes to the 1983 amendment specifically so argue.

Looking first, then, to the reasons defendants advance for their motion for leave to change their plea, one finds nought. Thus, no prejudice to the Government need be shown.

Even under the Savage-Strauss rule, however, defendants could not prevail in this case. It is manifest that the Government would require a number of witnesses to prove its case including, especially, witnesses from the film industry. Assembling far-flung witnesses who are not Government employees is a task of some proportions. Permitting them to scatter and then being required to reassemble them adds substantially to the problem—and to the expense of the United States. A similar problem presented itself in Strauss and the Court there recognized it to constitute “prejudice.”

Further, the simple unfairness to the Government lawyers , and to the Government witnesses twice to prepare themselves for trial at the defendants’ desire is a sufficient prejudice under the circumstances of this case.

The motion is DENIED.

And it is so ORDERED.


author: NANGLE, Chief Judge.

text:
    Angela BOND, et al., Plaintiffs, v. Daniel B. KECK, et al., Defendants.
    No. 84-292C(1).
    United States District Court, E.D. Missouri, E.D.
    Aug. 21, 1985.
    Charles R. Oldham and Anne V. Maloney, St. Louis, Mo., for plaintiffs.
    Norman C. Parker and Thomas M. Blumenthal, St. Louis, Mo., for defendants.
   MEMORANDUM

NANGLE, Chief Judge.

This is a suit brought by Angela Bond, a minor, and her parents, Walker and Rubye Bond, against the Ferguson-Florissant School District, Daniel B. Keck, Superintendent, and certain members of the Board of Education of the Ferguson-Florissant School District, individually and in their official capacity. Count I is a complaint by Angela Bond that she was discriminated against on the basis of her race with respect to her placement in an instructional math class of predominantly black students and retaliated against because of her complaint of discrimination in violation of 42 U.S.C. §§ 1981 and 1983. Count II is a similar complaint by her parents.

This case was tried to this Court sitting without a jury. This Court having considered the pleadings, the testimony of the witnesses, the documents in evidence, and the stipulations of the parties, and being fully advised in the premises, hereby makes the following findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 52.

A. FINDINGS OF FACT

1. Plaintiffs Walker Bond, Rubye Bond and Angela Bond are residents of St. Louis County, Missouri. Angela Bond is a minor black female enrolled in the Commons Lane School of the Ferguson Reorganized School District, R-II, a public school in the State of Missouri. Angela Bond was enrolled in the Commons Lane School as a first grade student during the 1982-83 school year.

2. Defendants are members of the Board of Education of the Ferguson-Florissant School District and various other employees or representatives of the Ferguson Reorganized School District R-II.

3. During the first semester of the 1982-83 school year, there was a combined first and second grade in which three (3) teachers were assigned for the first and second grade classes. These three (3) teachers were Rosella Branch, Carolyn Hack and Nancy Arnold. The students were divided into three (3) homerooms and, during the course of the day, they were divided and mixed into different classrooms according to subject matter. The combined first and second grades consisted of a total enrollment of 80 students. The racial composition of these 80 students was 37 black students and 43 white students.

4. During the first semester of . the 1982-83 school year, Angela Bond was placed in Rosella Branch’s math class which consisted of twenty-five (25) first and second grade students. The racial composition of these twenty-five (25) students was ten (10) black students and fifteen (15) white students.

5. In January of 1983, the administration of the Commons Lane School decided that the class size of the first and second grade necessitated the addition of a fourth teacher to the staff. On February 3, 1983, a fourth teacher, Terry Finn, was added to the staff and the three (3) homerooms were divided into four (4) homerooms. In addition, the individual subject matter classes were divided from three (3) into four (4) rooms. This reduced the student/teacher ratio in each instructional class from an average of 27/1 to an average of 20/1. Thus, the three (3) math classes were divided into four (4) math classes.

6. On February 3, 1983, Angela Bond was moved from the math class being taught by Rosella Branch to the new math class taught by Terry Finn. Ms. Finn’s new math class consisted of seventeen (17) students. The racial composition of Ms. Finn’s new math class was fourteen (14) black students and three (3) white students.

7. The grouping of students in the four (4) math classes was determined by the four (4) teachers of the first and second grade. Race did not play any part in the grouping decisions made by the four (4) teachers. The students were assigned to their particular math classes based on classroom performance, the teachers’ observation and “time at task”.

8. Prior to the arrival of Ms. Finn, there were three (3) math classes, of which Mrs. Branch’s class was the “highest”. After the arrival of Ms. Finn, Mrs. Branch continued to teach the “highest” math class, but Ms. Finn taught the second highest math class. During the fall of 1982, Angela Bond ranked tenth out of ten among the first graders in Mrs. Branch’s math class. Following her transfer to Ms. Finn’s math class, Angela Bond ranked fifth out of ten among first graders in Ms. Finn’s math class.

9. This Court credits Mrs. Branch’s testimony that Angela Bond’s work/study habits were not suitable for the highest math class. She testified that Angela Bond had trouble staying in her seat, was always interested in the work being done by the other students, and was often careless about not completing her work. This Court agrees with Mrs. Branch’s judgment that Angela Bond would benefit most from the group teaching method utilized by Ms. Finn, as opposed to the individualized style of teaching utilized by Mrs. Branch. This Court also credits Ms. Finn’s testimony that, given Angela Bond’s poor time on task and short attention span, Angela Bond was not misplaced in her math class.

10. The time spent by Angela Bond in her math class is approximately 45 minutes per school day.

11. The legitimate, non-discriminatory reasons given for Angela Bond’s placement in Ms. Finn’s math class are not pretextual. Angela Bond was properly assigned to Ms. Finn’s math class.

12. Angela Bond’s race was not a factor in her failure to be chosen as student of the month.

13. Angela Bond was not, in any way, shape or form discriminated against on account of her race.

14. Walker and Rubye Bond complained to various defendants about the placement of their daughter in Ms. Finn’s math class. Defendants did not cause any acts to be taken against Walker, Rubye or Angela Bond in retaliation for their complaints. The classroom observation of Angela made by Mr. Paul Buenneman was merely an effort by defendants to investigate plaintiffs’ complaints and to review the propriety of Angela Bond’s placement in Ms. Finn’s math class. Moreover, this Court credits the testimony of several defendants that the Bonds did not initially object to Angela Bond’s placement in Ms. Finn’s math class on the grounds of racial discrimination. Initially, Angela Bond’s parents objected on the ground that their daughter deserved to be in the “highest” math class. When the Bonds did finally assert race as a basis for their objection to Angela Bond’s placement in Ms. Finn’s math class, defendants did not subsequently take any actions against plaintiffs in retaliation for said complaint of racial discrimination.

15. Defendants did not treat Angela Bond, an eventual participant in the “Probe” program, differently than other participants in said program, because at the time of the incidents in question, first graders had not yet been selected for participation in the Probe program.

16. Plaintiffs have not been damaged by any action taken by any defendant.

17. Plaintiffs’ complaints, arising primarily from the hypersensitivity of both plaintiffs, have resulted in several confrontations between plaintiffs and defendants. As a result, the administration, faculty and staff of the Commons Lane School are understandably apprehensive in their efforts to provide Angela with an appropriate education. Nevertheless, Commons Lane is a public school. Its rules and regulations encourage parental involvement in the education of their students. The school has the authority and the ability to regulate or restrict the conduct of parents to the extent that they interfere with the ability of the school to teach. Defendants failed to prove that the Bonds were or are interfering with the functioning of the Commons Lane School to a degree that warrants federal court equitable intrusion.

B. CONCLUSIONS OF LAW

This Court has subject matter jurisdiction over plaintiffs’ claims and personal jurisdiction over the parties. Venue is proper in this District.

Plaintiffs claim that defendants violated 42 U.S.C. §§ 1981 and 1983. To recover on their claims, plaintiffs must prove purposeful discrimination on the basis of race. General Building Contractors v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); Williams v. Anderson, 562 F.2d 1081 (8th Cir.1977); McDonald v. Ferguson Reorganized School District R-2, 530 F.Supp. 469 (E.D. Mo.1981). Plaintiffs’ claims must be denied because race did not play any part in any of the actions taken by defendants. See Findings of Fact No. 13. Angela Bond was properly transferred to Ms. Finn’s math class on the basis of legitimate, non-discriminatory criteria. See Findings of Fact Nos. 7 and 9. While there is a subjective component to these criteria, Angela Bond’s numerical scores in her math class can hardly be described as a subjective criteria and therefore provided an objective basis for Angela Bond’s transfer. Moreover, the simple statistical fact that the math class to which Angela Bond was transferred consisted of considerably more black students than white students does not, without more, rise to the level of a violation of Angela Bond’s constitutional rights. This is especially true in view of the fact that Angela spent a mere 45 minutes out of each day in her math class. See Findings of Fact No. 10. Plaintiffs do not challenge her placement in any other class. Angela Bond was properly placed in Ms. Finn’s math class on the basis of her ability and such grouping does not violate the Constitution. McNeal v. Tate County School District, 508 F.2d 1017, 1020 (5th Cir.1975). Plaintiffs’ other claims concerning the student of the month program and the Probe program are equally without merit. See Findings of Fact Nos. 12 and 15. Moreover, defendants did not retaliate against plaintiffs at all or in response to their complaint of race discrimination. See Findings of Fact No. 14. Accordingly, defendants are entitled to judgment in their favor on plaintiffs’ complaint.

Defendants counterclaimed for injunctive relief against Angela Bond’s parents. The order requested by defendants would enjoin Walker and Rubye Bond from entering the premises of the Commons Lane School and from communicating with any employee of the Ferguson Reorganized School District R-II “during school class hours in any manner which disrupts the daily educational functions of the school district of the peaceful and orderly operation of any school in the district which Angela Bond attends.” In the opinion of this Court, the relief sought by defendants is not warranted. See Findings of Fact No. 17. This Court has no doubt that Angela Bond’s parents have made life more difficult for everyone at Commons Lane School. To the extent that the Bonds exceed their rights with respect to the education of Angela Bond, defendants have many avenues of relief available to them which are both adequate to deal with any potential situation and are less intrusive than a federal court order. In addition, this Court finds the proposed order submitted by defendants to be so vague as to require constant interpretation and application by this Court over a long period of time. Angela Bond will soon enter the fourth grade at Commons Lane School. She could possibly spend the next eight (8) years in Ferguson-Florissant public schools. Defendants’ proposed order would have this Court supervise the relationship between the school district and Angela Bond’s parents over the next eight (8) years. The facts presented to this Court do not depict a situation that warrants such intervention by this Court. Accordingly, plaintiffs are granted judgment in their favor on defendants’ counterclaim for injunctive relief.

Costs are taxed against the plaintiffs. Defendants have requested an award of attorney’s fee under 42 U.S.C. § 1988. Defendants are granted leave to file, in writing and within ten (10) days of this date, a memorandum and affidavit supporting their right to an award of attorney’s fees and the amount of said award. Plaintiffs shall have five (5) days thereafter to oppose defendants’ request for an award of attorney’s fees.


author: SPRIZZO, District Judge:

text:
    Robert JANTZ, Plaintiff, v. Margaret M. HECKLER as Secretary of Health and Human Services, Defendant.
    No. 83 Civ. 3460 (JES).
    United States District Court, S.D. New York.
    Aug. 22, 1985.

      Davison F. Moore, Poughkeepsie, N.Y., for plaintiff.
    Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., New York City, for defendant; Mark S. Sochaczewsky, Sp. Asst. U.S. Atty., Annette H. Blum, Regional Atty., Region II, Rosemarie E. Matera, Asst. Regional Atty., Office of the Gen. Counsel, Dept. of Health and Human Services, New York City, of counsel.
   OPINION AND ORDER

SPRIZZO, District Judge:

Plaintiff Robert Jantz brings this action pursuant to 42 U.S.C. § 405(g) for review of the decision of defendant Heckler, Secretary of Health and Human Services, denying plaintiffs application for disability insurance benefits. The parties have filed cross motions for judgment on the pleadings. Fed.R.Civ.P. 12(c).

The scope of judicial review in this type of action is quite limited, and does not allow the Court to decide the case de novo. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.1983) (per curiam); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980); Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.1980). The only issue before the Court is whether the Secretary’s decision is supported by substantial evidence. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Donato v. Secretary of Health and Human Services, 721 F.2d 414, 418 (2d Cir.1983); Parker, supra, 626 F.2d at 231. Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” See Richardson, supra, 402 U.S. at 401, 92 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).

Plaintiff challenges the finding of the Administrative Law Judge (“AU”) that he is not disabled because he has the residual functional capacity to perform sedentary work in accordance with 20 C.F.R. § 404.1567. However, based on the entire record, the Court cannot agree with plaintiff’s contention that there is no substantial evidence to support the ALJ’s finding that plaintiff is able to perform sedentary work.

A determination regarding disability must take into account (1) whether plaintiff is currently engaged in substantial gainful activity; (2) whether he has a severe impairment which significantly limits his physical ability to do basic work activities; (3) if plaintiff suffers such an impairment, whether that impairment is listed in the relevant regulation, in which case plaintiff is automatically to be considered disabled based solely upon medical evidence, and if not; (4) whether, despite plaintiff’s severe impairment, he has the residual functional capacity to perform his past work; and (5) if unable to perform his past work, whether there is other work plaintiff could perform. See, e.g., 20 C.F.R. § 404.1520; Chico v. Schweiker, 710 F.2d 947, 950-52 (2d Cir.1983); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam). Plaintiff bears the burden of proof on disability, as reflected in items 1 through 4, and the Secretary bears the burden of proof on item 5. See, e.g., Berry, supra, 675 F.2d at 467; Parker, supra, 626 F.2d at 231.

In order to determine whether the Secretary’s decision is supported by substantial evidence, the Court must look to the entire record, including objective medical facts and clinical findings, diagnoses and medical opinions of examining physicians, subjective evidence of pain and disability, and plaintiff’s age, educational background, and work experience. See, e.g., Monguer, supra, 722 F.2d at 1037; Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir. 1983); Parker, supra, 626 F.2d at 231; Marcus v. Califano, 615 F.2d 23, 26 n. 2 (2d Cir.1979). However, these factors need not be given equal weight. See, e.g., Parker, supra, 626 F.2d at 231.

The record indicates that Mr. Jantz was born on August 9, 1944, is a high school graduate, attended police training school, and worked from 1966 to 1981 as a police officer. In 1981 he injured his back in a fall while on duty, and has not been employed since that time. The AU found that plaintiff does suffer a severe impairment which prevents him from returning to his prior police work. Plaintiff does not dispute, however, that he does not suffer from an impairment listed in the regulations which renders him automatically disabled based on medical evidence alone.

Therefore, the only issue before the Court is whether there is substantial evidence to support the AU’s finding that plaintiff retains the residual functional capacity to perform sedentary work. The burden of proof on this issue is on the Secretary.

The record contains no medical evidence that plaintiff is unable to perform any type of work. However, there is abundant medical evidence that he is capable of performing sedentary work.

Dr. Magliato, an orthopedic surgeon working for the Police Department, reported in March 1982 that while plaintiff had signs of a lumbosacral strain, there was no sign of radiculopathy, and he did not feel plaintiff had any significant neurological deficits. He stated that with a few weeks of physical therapy, plaintiff should be able to perform light duties. See Transcript of Administrative Proceedings (“Tr.”) 99-100.

Especially significant is a report of the New York State Department of Social Services Office of Disability Determinations, dated July 13, 1982, which found that in an eight hour day plaintiff could sit for two hours, walk for six hours, stand for six hours, bend as needed, and lift or carry twenty pounds frequently. See Tr. at 84. The other medical evidence clearly indicated that plaintiff suffered from a lumbar disc disease but casts no light on plaintiffs ability to do sedentary work.

While it is unquestionably true that plaintiff has some pathology of the back, the medical evidence clearly supports the conclusion that plaintiff could perform sedentary work, especially since neither plaintiffs treating physician nor any consultative physician found that plaintiff was unable to perform sedentary work. The only evidence plaintiff points to as supporting the conclusion that he is not able to perform sedentary work is his own testimony at the Administrative Law Hearing regarding his subjective pain and his limited daily activities.

The Court recognizes that subjective pain must be considered and may properly be the basis for a finding of disability even absent supporting objective medical evidence. See, e.g., Donato, supra, 721 F.2d at 419; Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir.1980); Marcus, supra, 615 F.2d at 27. The AU stated in his decision that he did take plaintiffs testimony of pain into account. However, the AU had discretion to weigh the credibility of this testimony, and in light of the rest of the evidence a finding of disability was not mandated by the subjective testimony regarding pain. See, e.g., Vega v. Harris, 636 F.2d 900, 904 (2d Cir.1981) (per curiam); Marcus, supra, 615 F.2d at 27; Mejias v. Social Security Administration, 445 F.Supp. 741, 743 (S.D.N.Y.1978). This is particularly so given the absence of any medical evidence supporting plaintiffs contention that he cannot perform sedentary work. See, e.g., Rivera, supra, 623 F.2d at 216; Adams v. Fleming, 276 F.2d 901, 904 (2d Cir.1960); cf. Fields v. Secretary of Health, Education & Welfare, 444 F.Supp. 1003, 1007 (S.D.N.Y.1977). The Court holds, therefore, that on this record the AU’s finding that plaintiff can perform sedentary work is supported by substantial evidence.

At oral argument counsel for plaintiff challenged the AU’s finding with respect to plaintiffs ability to perform sedentary work on the ground that plaintiff’s treating physicians never directly addressed the issue. Plaintiff was represented by counsel throughout the administrative proceedings and before this Court. Therefore, this is not a situation where the AU and the Court have the duty to search the record or request particular kinds of evidence, which would be the case where the plaintiff is unrepresented by counsel. See, e.g., Hankerson, supra, 636 F.2d at 895; Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir.1975); cf. Gold v. Secretary of Health, Education & Welfare, 463 F.2d 38, 43 (2d Cir.1972). Moreover, at oral argument plaintiff's counsel acknowledged that no evidence of plaintiff’s inability to perform sedentary work existed at the time of the hearing before the AU, and that such evidence does not exist at present. There is therefore no new evidence to consider which would require a remand. See, e.g., 42 U.S.C. § 405(g); Mongeur, supra, 722 F.2d at 1038; Cutler, supra, 516 F.2d at 1238.

Plaintiff’s motion for judgment on the pleadings is therefore denied, defendant’s motion for judgment on the pleadings is granted, and the decision of the Secretary is affirmed.

It is SO ORDERED.

      . The case was originally referred to United States Magistrate Ruth V. Washington pursuant to 28 U.S.C. § 636(b). Magistrate Washington issued a Report and Recommendation, to which plaintiff objected because the Magistrate allegedly considered only the administrative record, without giving plaintiff an opportunity to submit any motion or memorandum supporting his claim. Without ruling on the merits of the Magistrate's Report, the Court granted the parties leave to file cross-motions for judgment on the pleadings. Oral argument was held on the motions. This Opinion and Order therefore constitutes the Court’s de novo determinations.

      . Plaintiff requested review of the ALJ's decision by the Department of Health and Human Services Appeals Council. This request was denied, and therefore the ALJ's decision became the final decision of the Secretary.

      . 42 U.S.C. § 423(d) defines disability as an:
      (1)(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; ...
      The statute further provides that:
      (2)(A) an individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work____
      The regulations provide that sedentary work:
      involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
      20 C.F.R. § 404.1567(a).

      . It appears that in January, February and October of 1982 plaintiffs treating physician, Dr. Pappalardo, indicated on Workers’ Compensation forms that plaintiff was "disabled” but that the permanence of his disability could not be determined. See Tr. at 109-112. Plaintiff has not argued that this means he was "disabled” within the meaning of section 423(d). Nor did he introduce before the ALJ any evidence or testimony from Dr. Pappalardo as to the significanee of these forms with respect to his ability to perform sedentary work. It is clear that Workers' Compensation forms indicating that plaintiff was "disabled" with respect to performing police work do not mandate a finding that plaintiff is unable to perform any type of work. Similarly, while the Medical Board of the Police Pension Fund found plaintiff "disabled” in the sense that he was unable to return to his police duties, it does not necessarily follow that plaintiff can engage in no substantial gainful employment.

      . As noted above, the Police Department subsequently found plaintiff unable to return to his work as a policeman.

      . In July 1982, plaintiff's treating physician Dr. Pappalardo stated in a letter to the New York State Department of Social Services Office of Disability Operations that in February 1982 plaintiff had demonstrated “suggestions of L5 SI Lumbar Radidiculopathy [sic],” but that he was unable to determine whether plaintiff was “still disabled” as he had not seen plaintiff since February 1982. In December 1982, in response to a request of the ALJ for information regarding Mr. Jantz for use with respect to his application for disability insurance benefits, Dr. Pappalardo stated that plaintiff had "a suspicion of a Herniated Nucleus Pulposus” and would “not recover more than likely, without surgery.” See Tr. at 94. He gave no opinion as to disability. Plaintiff did not submit any other medical information from Dr. Pappalardo.


text:
    FRANKART DISTRIBUTORS, INC., Plaintiff, v. FEDERAL INSURANCE COMPANY, Defendant.
    No. 82 Civ. 2511 (JES).
    United States District Court, S.D. New York.
    Aug. 22, 1985.

      Weg Myers & Jacobson, P.C., New York City (Ira M. Myers, New York City, of counsel), for plaintiff.
    Acito & Klein, P.C., New York City (Elinore B. Klein, New York City, of counsel), for defendant.
   OPINION AND ORDER

SPRIZZO, District Judge:

Plaintiff Frankart Distributors, Inc. (“Frankart”) sues defendant Federal Insurance Company (“Federal”) to recover attorneys’ fees incurred by Frankart when Federal allegedly wrongfully refused to defend Frankart in a lawsuit. The action is before the Court on cross-motions for summary judgment.

The parties have stipulated to the material facts, which are as follows. Federal issued to Frankart a Commercial Umbrella Liability Policy, number 7923-34-04 (“the Policy”), which was effective at all relevant times herein. The Policy provided excess insurance over any other “underlying” policy held by Frankart, and covered:

all sums ... for which the insured shall become obligated to pay by reason of liability
(a) imposed upon the insured by law or
(b) assumed under contract or agreement by the insured,
arising out of personal injury, property damage or advertising liability caused by an occurrence.

See Stipulated Facts, Exhibit A at if 1 (emphasis in original).

The policy defines an occurrence as:

an accident, including continuous or repeated exposure to conditions, which results in personal injury, property damage or advertising liability neither expected nor intended from the standpoint of the insured.

Id. at 5 (emphasis in original).

An “endorsement” dated January 30, 1975 provided that the policy excluded coverage of any “[l]oss, damage or expense caused intentionally by or at the direction of the insured.” Id. (emphasis in original).

The policy also provided that:

With respect to any occurrence not covered by the underlying policies ... but covered by the terms and conditions of this policy the Company shall, in addition to the amount of ultimate net loss payable;
(1) defend any suit against the insured seeking damages on account of personal injury, property damage or advertising liability, even if any of the allegations of the suit are groundless, false or fraudulent; ...

Id. at 114(b) (emphasis in original).

In April 1978 a suit was commenced against Frankart and others in the Eastern District of New York. The complaint alleged, inter alia, that Frankart “knowingly aided and abetted and conspired with [others] in the breach of fiduciary obligations to plaintiffs, in the conversion of ... funds and other assets, and in defrauding plaintiffs, ...” See Stipulated Facts, Exhibit C at U 20. Frankart’s other insurer, Eagle Star Insurance Co., with whom Frank-art had an “underlying policy” within the meaning of the Federal policy, declined to defend the action because the allegations against Frankart did not fall within the coverage of the Eagle Star policy. Upon notification that Eagle Star disclaimed coverage, Frankart forwarded a copy of the summons and complaint to Federal.

On May 11, 1978 Federal wrote to Fran-kart to confirm receipt of the summons and complaint, and noted that the allegations of the complaint all apparently fell within the above-mentioned exclusion regarding losses intentionally caused. Therefore, Federal stated that Frankart would be personally liable for any judgment against it. Federal went on to advise that the legal papers had been referred to a law firm “to defend you in this .action.” Finally, the letter provided that:

Not withstanding the specific portions of the policy referred to in this letter, all rights are reserved both to Frankart Distributors, Inc. and the Federal Insurance Company as though the policy were set forth in full herein.

See Stipulated Facts, Exhihit E.

On June 7, 1978, Federal wrote to Fran-kart again, stating that this letter supplemented that of May 11, 1978. Federal cited to the coverage provisions of the Policy, and stated that further investigation had revealed that the loss claimed in the Eastern District complaint was not encompassed by the Policy. Therefore, Federal advised Frankart that it would instruct its attorneys to return the legal papers to Frankart for Frankart to handle personally and at its own expense. See Stipulated Facts, Exhibit F. On June 8, 1978 Federal returned the summons and complaint to Frankart with a cover letter which once again contained a reservation of rights. See Stipulated Facts, Exhibit G. The Eastern District lawsuit was thereafter defended by Frankart’s personal counsel, and was eventually settled.

Frankart sues Federal only for the attorneys’ fees incurred in defending the Eastern District action, and not for any amount paid by Frankart in settlement of that lawsuit. The complaint herein claims three grounds for recovery. First, Frankart sues for breach of Federal’s contractual duty to defend pursuant to the Policy. Second, Frankart argues that even if Federal was not bound by the Policy to defend the Eastern District lawsuit, Federal had “waived such policy provision ... based upon its action in this matter.” See Complaint at II Seventeenth. Third, Frankart alleges that Federal should be estopped from claiming it had no duty to defend.

1. Contract claim

It is well settled that an insurer has a duty to defend any claim against its insured which, if proved to be true, would give rise to liability under the insurance contract. See, e.g., Sturges Manufacturing Co. v. Utica Mutual Insurance Co., 37 N.Y.2d 69, 72, 332 N.E.2d 319, 321, 371 N.Y.S.2d 444, 447 (1975); Goldberg v. Lumber Mutual Casualty Insurance Co., 297 N.Y. 148, 154, 77 N.E.2d 131, 133 (1948); Parkset Plumbing and Heating Corp. v. Reliance Insurance Co., 87 A.D.2d 646, 647, 448 N.Y.S.2d 739, 740 (2d Dept.1982) (mem.); Touchette Corp. v. Merchants Mutual Insurance Co., 76 A.D.2d 7, 9-10, 429 N.Y.S.2d 952, 954 (4th Dept.1980). The fact that the allegations are false or unfounded does not relieve the insurer of its obligation to defend. See, e.g., Lionel Freedman, Inc. v. Glens Falls Insurance Co., 27 N.Y.2d 364, 368, 267 N.E.2d 93, 94, 318 N.Y.S.2d 303, 305 (1971). However, assuming the allegations of the complaint to be true, if there is no factual or legal basis upon which the insurer could be liable the insurer need not undertake the defense. See, e.g., Syoor-Lasher Co. v. Aetna Casualty and Surety Co., 39 N.Y.2d 875, 876, 352 N.E.2d 139, 140, 386 N.Y.S.2d 221, 222 (1976) (mem.); Lionel Freedman, supra, 27 N.Y.2d at 368, 267 N.E.2d at 94, 318 N.Y.S.2d at 305; Prudential Lines, Inc. v. Firemen’s Insurance Co., 91 A.D.2d 1, 5, 457 N.Y.S.2d 272, 275 (1st Dept.1982); Touchette, supra, 76 A.D.2d at 10, 429 N.Y.S.2d at 954.

The duty to defend is contractual in nature, is incident to the primary obligation of liability for covered occurrences, and is dependent upon and supplemental to that primary obligation. See, e.g., Lionel Freedman, supra, 27 N.Y.2d at 367, 267 N.E.2d at 94, 318 N.Y.S.2d at 304; 7C J. Appleman, Insurance Law and Practice § 4681, at 8-9, § 4682, at 26, § 4684, at 72-73, 86, § 4684.01, at 91-92, § 4686, at 165 (Berdal ed. 1979). Therefore, there is no duty to defend where the alleged basis for liability is not within the coverage of the policy, including where the alleged conduct falls within an express policy exclusion. See, e.g., International Payer Co. v. Continental Casualty Co., 35 N.Y.2d 322, 325, 320 N.E.2d 619, 621, 361 N.Y.S.2d 873, 875 (1974); Parkset, supra, 87 A.D.2d at 647, 448 N.Y.S.2d at 740. The issue of coverage is a matter of law for the Court. See, e.g., National Union Fire Insurance Co. v. Medical Liability Mutual Insurance Co., 85 A.D.2d 851, 852, 446 N.Y.S.2d 480, 482 (3d Dept. 1981) (mem.); Touchette, supra, 76 A.D.2d at 9, 429 N.Y.S.2d at 954.

The Policy at issue herein covers losses caused by accident neither expected nor intended by Frankart and resulting in personal injury, property damage or advertising liability, and expressly excludes coverage of losses intentionally caused by or at the direction of Frankart. This clearly excludes from coverage any loss allegedly caused by Frankart’s knowing or fraudulent conduct. Therefore, even assuming the allegations of the Eastern District complaint were true, Federal had no potential liability under the Policy, and therefore no incident duty to defend.

2. Waiver

Plaintiff argues that, even if the Policy did not cover the claims alleged in the Eastern District fraud action, Federal “did not choose to invoke its right not to defend.” See Plaintiffs Memorandum of Law in Support of Plaintiff’s Motion For Summary Judgment at 4. Instead, by sending the May 11, 1978 letter, Frankart contends that Federal “informed FRAN-KART that it would take up the defense ____[and that] [t]his act constituted a waiver of FEDERAL’s right not to defend FRANKART.” See id. Frankart contends that “by reason of the waiver with knowledge, the duty to defend arose” and that “FEDERAL ‘breached’ that duty by its June 7th letter notifying FRANKART that it would not defend____” See id. at 7.

It is clear that while defenses to coverage based upon the insured’s failure to comply with the terms of the policy may be waived by the insurer by failure to timely raise them, see, e.g., Schiff, supra, 51 N.Y.2d at 698, 417 N.E.2d at 87, 435 N.Y.S.2d at 975; Draper v. Oswego County Fire Relief Association, 190 N.Y. 12, 16-17, 82 N.E. 755, 756 (1907); Kiernan v. Duchess County Mutual Insurance Co., 150 N.Y. 190, 195, 44 N.E. 698, 699 (1896), the doctrine of waiver cannot be used to create coverage where none previously existed under any insurance contract. See, e.g., Schiff, supra, 51 N.Y.2d at 698, 417 N.E.2d at 87, 435 N.Y.S.2d at 975; Draper, supra, 190 N.Y. at 17, 82 N.E. at 756; National Union, supra, 85 A.D.2d at 852, 446 N.Y.S.2d at 482; Van Wyck Associates v. St. Paul Fire & Marine Insurance Co., 115 Misc.2d 447, 451-52, 454 N.Y.S.2d 266, 270 (Sup.Ct.1982). “[W]here the issue is the existence or nonexistence of coverage ... the doctrine of waiver is simply inapplicable.” Schiff, supra, 51 N.Y.2d at 698, 417 N.E.2d at 87, 435 N.Y.S.2d at 975. Since the duty to defend is incident to coverage, that duty also cannot be created by waiver.

Frankart argues that a duty to defend was created here where none had previously existed, because defendant did not refuse to defend Frankart in its first letter of May 11, 1978. This is clearly contrary to the well-established law of waiver cited above, especially since, in addition to noting the intentional conduct exclusion in its May 11, 1978 letter disclaiming liability under the Policy, Federal also specifically reserved all its rights under the Policy. Therefore, Federal cannot be held to have waived any other Policy provision. See, e.g., Schiff, supra, 51 N.Y.2d at 700, 417 N.E.2d at 88, 435 N.Y.S.2d at 976.

Counsel to Frankart admitted at oral argument that it knows of no decision in New York where a court awarded attorneys’ fees to an insured on a theory of waiver under facts such as those in this case. Moreover, even if a doctrine of waiver applied herein, the Court finds that Federal’s May 11, 1978 letter was insufficient to constitute a voluntary and intentional relinquishment by Federal of any known right not to defend, see, e.g., Schiff, supra, 51 N.Y.2d at 698, 417 N.E.2d at 87, 435 N.Y. S.2d at 975; Draper, supra, 190 N.Y. at 16, 82 N.E. at 756, especially in light of Federal’s reservation of rights. Frankart points to no other fact or action by Federal to support its waiver argument.

3. Estoppel

In its complaint Frankart alleges that by initially undertaking the defense of the fraud action, Federal was “estopped to raise the terms and conditions of the policy” and therefore could not later withdraw from defending Frankart.

It is well settled that where an insurer assumes the defense of its insured it may be estopped from later refusing to continue to defend, despite noncoverage, where such refusal would prejudice the rights of the insured. See, e.g., Schiff, supra, 51 N.Y.2d at 699, 417 N.E.2d at 87, 435 N.Y.S.2d at 975; O’Dowd v. American Surety Co., 3 N.Y.2d 347, 355, 144 N.E.2d 359, 363, 165 N.Y.S.2d 458, 463 (1957); Gerka v. The Fidelity & Casualty Co., 251 N.Y. 51, 57, 167 N.E. 169, 170 (1929); Touchette, supra, 76 A.D.2d at 12, 429 N.Y.S.2d at 955.

Federal notified Frankart of its refusal to defend less than a month after it received the complaint. Plaintiff has not even attempted to support its estoppel argument by any particularized showing of prejudice resulting from Federal’s conduct. Indeed, plaintiff’s counsel conceded at oral argument that given the facts of this case, Frankart could not demonstrate any prejudice by Federal’s refusal to defend, and agreed with the Court that plaintiff therefore cannot prevail on a theory of estoppel.

It follows that defendant is entitled to summary judgment on each claim alleged in the complaint.

It is SO ORDERED.

      . Policy coverage must be determined by consideration of the entire contract of insurance, including both the insuring clauses and any exclusions. See, e.g., Albert J. Schiff Associates, Inc. v. Flack, 51 N.Y.2d 692, 697, 417 N.E.2d 84, 86, 435 N.Y.S.2d 972, 974 (1980); 7A J. Appleman, supra, § 4684, at 71, § 4685.01, at 124.