author: GENE CARTER, District Judge.

text:
    UNITED STATES of America, v. Jonas KLIMAVICIUS.
    Civ. No. 84-0183 P.
    United States District Court, D. Maine.
    Oct. 30, 1985.
    Ronnie L. Edelman, Alan Held, Trial At-tys., Washington, D.C., F. Mark Terison, Asst. U.S. Atty., Portland, Me., for plaintiff.
    Ivars Berzins, Babylon, N.Y., Daniel Bates, Daniel G. Lilley, Portland, Me., for defendant.
   MEMORANDUM OF DECISION AND ORDER GRANTING GOVERNMENT’S MOTION TO COMPEL DISCOVERY AND DENYING GOVERNMENT’S MOTION FOR SANCTIONS

GENE CARTER, District Judge.

In this denaturalization proceeding Plaintiff seeks to compel the deposition testimony of the Defendant and seeks sanctions for Defendant’s refusal to answer questions at a deposition held on March 6, 1985. In its six-count Complaint, Plaintiff alleges that Defendant illegally obtained entry into and citizenship in the United States by concealing that he had aided the Nazis in persecuting civilian populations during World War II.

Defendant refused to answer any questions at his deposition other than those requesting his name and address. In response to other questions, Defendant responded, “Fifth Amendment,” indicating that he did not wish to answer because his responses might tend to incriminate him. Defendant also refused to produce certain documents and handwriting and signature exemplars on Fifth Amendment grounds. Plaintiff asserts in its motion herein that the Fifth Amendment privilege is unavailable to Defendant.

A major portion of Defendant’s argument supporting his claim of Fifth Amendment privilege is that he has a reasonable fear of criminal prosecution in the U.S.S.R., West Germany, and Israel. The Supreme Court has not decided whether the Fifth Amendment privilege is available to individuals who fear foreign prosecution. See Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972). In considering such a claim, however, the Court stated, “It is well established that the privilege protects against real dangers, not remote and speculative possibilities. Id. at 478, 92 S.Ct. at 1675. The Court agrees with the Plaintiff that Defendant has not made an adequate showing that he is in any real danger of foreign prosecution.

After initial submission of supporting memoranda and affidavits, in which Defendant failed to submit evidence sufficient to support his invocation of the privilege, the Court issued an order requesting additional information. United States v. Klimavicius, 613 F.Supp. 1222 (D.Me.1985) (Order). The Court allowed the Defendant another opportunity to present a record because the privilege against self-incrimination plays such an important role in the American scheme of justice. Id. The Court requested that the Defendant submit certified, translated copies of the text of all foreign laws which indicate he might be subject to prosecution and to make some showing that the laws would be applied to him if the allegations in the Complaint were proved. Defendant has not complied with this Court’s Order, but instead, has relied on a plethora of unsubstantiated statements, irrelevant documents and copies of laws which have not been shown to be accurate or current.

For example, in support of his claim that he has a reasonable fear of prosecution in West Germany, the Defendant states that “a Latvian, Viktors Arajs ... was successfully prosecuted in Hamburg, Germany,” Defendant’s Memorandum at 8, but provides no documentation of that claim or the circumstances of that case. Similarly, Defendant cites In re Ryan, 360 F.Supp. 270 (E.D.N.Y.1973), aff'd without opinion, 478 F.2d 1397 (2d Cir.1973), in which the court granted a West German extradition petition concerning a woman accused of being a concentration camp guard in Poland. Although the Ryan court rejected the Defendant’s lack of jurisdiction claim, 360 F.Supp. at 273, n. 4, Defendant presents nothing to show the current state of the law.

Defendant’s other evidence in regard to West German law or treaties between the United States and West Germany suffers the same deficiencies. Defendant submits a certified translation of a letter from the First Criminal Court in the Regional Court of Landau/Palatinate in West Germany to the Department of Justice in 1979 requesting assistance in obtaining testimony from an individual residing in New York in criminal proceedings against Albert Eichelis. The letter includes what appear to be quotations of West German penal code statutes, but Defendant does not submit the actual statutes or present evidence that these statutes are current or that they will be applied to him. Defendant submits a Canadian information and complaint requesting the extradition of Helmut Rauca, a German citizen accused of war crimes in Lithuania, but Defendant does not produce or discuss the extradition treaty between ■West Germany and Canada or submit evidence that the German-American treaty allows similar extradition requests. Defendant does not submit evidence that jurisdiction was ever found to be proper in the Rauca case or that extradition was granted. Overlooking all of these problems with the probative value of the Rauca complaint, it appears from that complaint that there had been an outstanding warrant for Rau-ca’s arrest in West Germany for many years prior to the extradition proceedings, unlike the instant case.

Finally, Defendant submits correspondence between Attorney General William French Smith and the Federal Minister of Justice of West Germany, which does not pertain directly to the Defendant but which discusses the shared view of those officials that individuals who have committed war crimes be tried and punished. However, the same correspondence indicates that West Germany has no jurisdiction to try Defendant for crimes committed in Latvia by a nonGerman. Therefore, since Defendant has not submitted any probative evidence that West Germany has jurisdiction to prosecute him, he cannot sustain the invocation of the Fifth Amendment privilege on the basis of a reasonable fear of prosecution in West Germany.

The evidence presented regarding the likelihood of Defendant’s extradition to and prosecution in the Soviet Union is even more tenuous. The government has submitted an affidavit by Neal Sher, Director of the United States Department of Justice, Office of Special Investigations, stating that there is no extradition treaty in force between the United States and the Union of Soviet Socialist Republics. Authority relied on by the Defendant states, “In the absence of a treaty provision authorizing delivery ... the United States is powerless to extradite_” Ryan v. United States, 860 F.Supp. 264, 265 (1973). Thus, it seems extremely unlikely that a request for extradition from the Soviet Union could be granted. None of Defendant’s other evidence persuades the Court that there is a realistic chance Defendant will be prosecuted in the Soviet Union.

Defendant relies on two instances in which the United States purportedly sought extradition of an individual to the Soviet Union or the United States sought deportation to the Soviet Union. Defendant’s Memorandum at 4, 5. The government’s brief makes clear, however, that in one case the Defendant designated the Soviet Union as the country to which he wished to be deported, and in the other, the Defendant declined to designate any country and so was deported to his birthplace pursuant to 8 U.S.C. § 1253(a)(4). Plaintiff’s Reply Memorandum at 2.

Defendant discusses a 1965 trial against Boleslaus Maikovskis for crimes committed in 1941 and 1942 while Latvia was under Nazi occupation and a similar trial against Karl Linnas in Estonia in 1962. Defendant refers to Article 59 of the Latvian Soviet Socialist Republic’s Criminal Code as the basis of the 1965 charges against Mai-kovskis and refers to an unpublished opinion in the Southern District of New York, but has presented nothing from which this Court could determine that Maikovskis’ circumstances are significantly similar to his own. Defendant submits Article 62 of the Lithuanian Soviet Socialist Republic Criminal Code which he copied from a code book published in 1977, and which was apparently translated by a Ms. Simona Pipko who makes no submission to the Court as to the accuracy of the translation or as to her qualifications.

However, putting aside the difficulties presented to the Court in determining the foreign law on which Defendant relies, the lack of an extradition treaty indicates that, if these laws are in existence, it is extremely unlikely that they could be applied to the Defendant.

In support of his claim that he has a reasonable fear of being prosecuted under Israeli law, Defendant has submitted the Nazis and Nazi Collaborators (Punishment) Law, a sworn statement by Marvin E. Han-kin, Senior Assistant to the State Attorney of Israel regarding procedural aspects of this law made in connection with the extradition request of John Demjanjuk, the United States government’s brief in the extradition proceeding against Demjanjuk, a Wall Street Journal article and a Washington Post article.

The Defendant does not present a certified translation of the Israeli law, but has submitted what appears to be a copy of a printed text which the Court will treat as accurate. Defendant does not submit the Israeli-American extradition treaty but the United States’ memorandum submitted in support of the extradition of John Demjan-juk indicates such a treaty exists or existed as of April 18, 1984.

The Israeli law allows the prosecution in Israel of persons charged with crimes committed outside Israel in connection with Nazi persecution. According to the memorandum submitted by the United States in the Demjanjuk proceeding the Israeli-American extradition treaty was applicable to Demjanjuk. Appendix C to Defendant’s Affidavit, Aug. 28, 1985, Government’s Pre-hearing Memorandum at 12. The treaty allows extradition of an individual for crimes committed outside Israel’s borders. Id. at 14. Even though Defendant has not actually submitted the relevant laws to this Court, or presented evidence that he has done so, the Court notes that a closer question of whether Defendant has a reasonable fear of prosecution is raised by the evidence submitted, because it at least appears possible from that evidence that Defendant could be prosecuted in Israel.

However, the Court believes that it is entirely speculative that Defendant will be prosecuted in view of several factors. Defendant has submitted a Wall Street Journal article (June 2, 1983) indicating that in the preceding 23 years only one person, Adolph Eichmann, had been tried under the law allowing Israeli courts to prosecute Nazi criminals even though their crimes were committed in Europe. The United States, in its affidavit by Neal Sher, states that OSI is apprised of all foreign governments’ communications to the government regarding allegations relating to individuals residing in the United States who may have assisted Nazi persecution. A request for extradition may be granted for an American citizen pursuant to treaty. Esco-bedo v. United States, 623 F.2d 1098, 1107 (5th Cir.1980). Mr. Sher states that “[n]o foreign government has made any demands on the government of the United States, nor has initiated action leading to the making of demands, for the delivery of the Defendant.” There appears to be no direct threat of foreign prosecution.

Defendant contends that if he is denatur-alized, he will be deported and then might be subject to extradition by the three countries which he fears. As Plaintiff points out, deportation would require a separate legal proceeding. If Defendant should be deported, he may choose the country to which he is deported, subject to veto by the Attorney General if the choice is not thought to be in the best interests of the United States. 8 U.S.C. § 1253(a). Since no extradition requests have been made of the United States, it is purely speculative that extradition of Defendant will be sought from any other country. Since the other country is not and cannot be known until deportation proceedings have taken place, even the availability of extradition from any country Defendant might designate is highly speculative.

The Court finds, therefore, that there is no threat of foreign prosecution of Defendant which is real and substantial enough to justify his invocation of the Fifth Amendment privilege against self-incrimination.

Defendant also suggests that he fears prosecution in the United States for perjury arising from statements he made or failed to make in an interrogation by the OSI on July 20, 1983. The Court ordered the Defendant to submit the 1983 statement which he asserts as the basis for his fear of domestic prosecution in its July 30th order. Defendant has submitted an appendix, the table of contents of which indicates that a transcript of the interrogation is included, but in fact it is not. Consequently, the Court disregards this as a basis for the Defendant’s invocation of the privilege.

Documents

Defendant, at his deposition, also refused to produce various documents requested by Plaintiff. At the deposition, Defendant’s attorney went through the list of requested documents one by one. He stated that Plaintiff already had the only documents Defendant might produce in response to requests 1 and 5. In response to requests 2, 3, 6, and 8, he stated that Defendant had documents that might fit the description but that he would not produce them because mere possession of the documents may tend to incriminate him. Defendant’s attorney also stated that Defendant did not have any documents in categories 4, 7, 9, 10, 11, 12, 13, and 14.

The Supreme Court has expressly stated that the contents of documents which were voluntarily prepared are not privileged. United States v. Doe, 465 U.S. 605, 612, 104 S.Ct. 1237, 1242, 79 L.Ed.2d 552, 560 (1984). Defendant here makes no claim that he was compelled to prepare the documents sought.

Although the contents of a document may not be privileged, the Court explained in Doe that the act of producing the documents may be because compliance with a request concedes the existence of the papers and their possession and control by the person from whom they are sought. Compliance also indicates the witness’ belief that the papers are those described in the subpoena or request. Id. Whether or not production of the documents is incriminating or testimonial depends on the facts or circumstances of the case.

Here Defendant’s attorney has admitted that Defendant possesses various documents that may fit the descriptions of requested documents. Moreover, as far as the Court can tell, Defendant’s refusal to produce the documents is based on his fear of foreign prosecutions which the Court has determined to be too speculative to support invocation of the privilege, even if it is otherwise available for documents.

Sanctions

The United States seeks an order requiring Plaintiff to pay the Government’s attorney’s fees and expenses incurred as a result of this motion and the Government’s attendance at a deposition in which the Defendant failed to appear. The Court is not convinced that Defendant has acted vexatiously or in bad faith and, therefore, it would not be appropriate to grant the Government’s request for reimbursement in this matter.

Accordingly, Plaintiff’s Motion to Compel Discovery is hereby GRANTED to the extent that it seeks to compel discovery and is hereby DENIED as to that portion seeking to recover fees and expenses.

So ORDERED.

      . The Court determined in a prior order that the Defendant could not support a Fifth Amendment claim as to the handwriting and signature exemplars. United States v. Klimavicius, 613 F.Supp. 1222 (D.Me.1985) (Order).

      . The Court can conduct its own research on foreign law when an issue is raised. See Fed.R. Civ.P. 44.1. Defendant, however, by not even citing current texts of the foreign law on which he relies, has not made enough of a showing for the Court to invest its limited resources in its own inquiry.

      . Defendant also states that this is the latest extradition request made by West Germany, indicating that country has not made any such requests for over twelve years, although numerous active investigations and denaturalization proceedings have taken place on bases similar to Defendant’s during the last six years. See The Wall Street Journal, June 2, 1983, at 34, col.

      . The letter to Attorney General Smith states, "the German-American extradition treaty basically allows extradition only for punishable acts perpetrated in the jurisdiction of the petitioning state.”

      . Defendant has relied on numerous unpublished opinions, copies of which he has failed to submit to the Court. Accordingly, they have been disregarded by the Court.

      .Defendant’s pleadings are also replete with unsubstantiated and irrelevant statements condemning the Soviet legal system. For example, he states, “After the Soviets reoccupied Lithuania, they dealt in their customary fashion with those [Lithuanians] who had opposed them. For the most part they did not waste much time with formal judicial proceedings, but there are few notable exceptions where they staged elaborate show trials.” Defendant’s Memorandum at 6.

      . Eichmann was not extradited from the United States. Since that time John Demjanjuk may have been extradited and prosecuted. This is still an extraordinarily small number of persons in the face of a number of denaturalization proceedings. See note 2, supra.


source: Caselaw Access Project

author: WILLIAM C. CONNER, District Judge.

license: Public Domain

text:
    NATIONAL BASKETBALL ASSOCIATION, Plaintiff, v. NATIONAL ASSOCIATION OF BASKETBALL REFEREES; Jack Madden, Michael F. Mathis, Jim Capers, Wally Rooney, and William Saar, individually and as members of the Executive Board of the National Association of Basketball Referees; Richard G. Phillips; and Gettler & Katz, Defendants.
    No. 84 Civ. 2017 (WCC).
    United States District Court, S.D. New York.
    Oct. 31, 1985.

      Proskauer Rose Goetz & Mendelsohn, New York City, for plaintiff; Michael A. Cardozo, of counsel.
    Solotoff & Spivak, Great Neck, N.Y., for defendant Jack Madden; Joel Spivak, Kenneth Meiselas, of counsel.
    Richard H. Markowitz, New York City, for defendants Michael F. Mathis, Jim Capers, Wally Rooney and William Saar; Gettler & Katz, Cincinnati, Ohio, of counsel.
    Sprague, Levinson & Thall, Philadelphia, Pa., for defendant Richard G. Phillips; Sheldon Albert, Stephen R. Basser, of counsel.
   OPINION AND ORDER

WILLIAM C. CONNER, District Judge.

The National Basketball Association (“the NBA”) brought this interpleader action under the Federal Interpleader Act, 28 U.S.C. §§ 1335, 1397, 2361 (1982), after receiving conflicting instructions from officers of the National Association of Basketball Referees (“NABR” or “the union”), a labor union that represents the referees who officiate NBA games, as to the disposition of certain union funds. In a collective bargaining agreement dated December 8, 1983 the members of the NABR authorized the NBA to deduct from their paychecks “check-off” dues monies and remit them to the union. Defendant Jack Madden, the Executive Director of the union and a member of the five-person Executive Board, claimed that as Executive Director he had the exclusive power under the union’s constitution and by-laws to control all of the union’s business affairs, including the disposition of these check-off dues. He instructed defendant Richard G. Phillips, Esq., counsel for the union, to advise the NBA to deposit the check-off monies with the Provident National Bank in Philadelphia, Pennsylvania. Defendants Michael Mathis, Jim Capers, Wally Rooney, and William Saar, the other four members of the Executive Board, claimed that control of the union’s affairs properly rested in a majority of the Executive Board. They instructed the NBA to continue to withhold the monies, but not to send them to the Provident National Bank. Instead, they requested that the NBA simply hold the funds until a new bank account could be opened.

On May 8, 1984, Judge Sprizzo of this Court issued a temporary restraining order directing the NBA to deposit into the Registry of the Court all of the check-off dues monies it currently held pursuant to the December 8, 1983 collective bargaining agreement, and all check-off monies it might subsequently collect under that agreement. Thereafter, all of the parties to this litigation agreed to extend the temporary restraining order while awaiting disposition of a lawsuit captioned Madden v. National Association of Basketball Referees pending before Judge Joseph P. Braig in the Court of Common Pleas of Philadelphia County, Pennsylvania. Accordingly, the NBA has deposited and continues to depost the check-off monies with the Registry of this Court; the Registry currently holds approximately $98,000.

The Pennsylvania state court litigation apparently has not yet been resolved. Nonetheless, defendants Mathis, Capers, Rooney, and Saar have moved this Court for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on the ground that the dispute pending here is moot. This action is clearly not moot since there is still a live controversy as to who is entitled to control the check-off dues monies, but, for the reasons stated below, I agree that this matter is ripe for summary judgment and the motion is granted.

Background

The following facts appear to be uncon-troverted. On August 10, 1984, defendant Rooney, on behalf of himself, Mathis, Saar, and Capers, wrote to all of the members of the union and proposed the adoption of a new constitution and by-laws at the union’s annual meeting in September. See Affidavit of William Oakes in Support of Motion for Summary Judgment U 5 [hereinafter cited as “Oakes Aff.”]. The proposed constitution provided, among other things, that control of the union’s business affairs would rest in a majority of the Executive Board and not with the Executive Director. Id., Exh. C If 6.1. The proposed constitution also provided that upon its adoption, elections would immediately be held to choose a new Executive Board and Executive Director. Id., Exh. C ¶¶ 14.1, 14.2.

The union took up the issue of the proposed constitution at its meeting on September 26, 1984. Oakes Aff. 1110. All members were invited to attend, and all did attend with the exception of Madden and two other referees. Id. After discussion and amendments, the members voted on the proposed constitution by secret ballot. Id. 1112. More than two-thirds of the members voted in favor of it, and the constitution was declared adopted. Id.

In accordance with the terms of the newly adopted constitution, the union held an immediate election to choose a new Executive Board and Executive Director. Id. U14. Nominations were made, and the membership cast secret ballots. Id. Hugh Evans and defendants Rooney, Saar, and Capers, were elected to the Executive Board. Id. ¶ 15. Defendant Mathis was elected Executive Director. Id. Defendant Madden was not re-elected.

The newly constituted Executive Board then held a meeting, selected a treasurer, and directed the treasurer to open a bank account in the union’s name in New York City into which all union funds would henceforth be deposited. Id. ¶¶ 17-18. The Court has been advised that such an account has been opened. Id. ¶ 18.

The moving defendants contend that these events render this lawsuit moot because the adoption of the new constitution made it clear that the power to control the union’s business affairs rests with a majority of the Executive Board and not with the Executive Director. Accordingly, they maintain that they are entitled to summary judgment and request that all check-off dues monies be transferred to the union’s new bank account.

Defendant Madden does not dispute that the new constitution vests the power to control the union’s business affairs in a majority of the Executive Board, but he argues that the motion for summary judgment should be denied because (1) by taking the actions described above, the moving defendants improperly attempted to divest this Court of jurisdiction over this lawsuit; (2) under certain orders entered by Judge Braig in Madden v. National Association of Basketball Referees, the moving defendants lack the legal capacity to make this application for summary judgment; and (3) the election discharging Madden as Executive Director was illegal because it was contrary to his four-year term of office and in violation of § 401 of the Labor-Management Reporting and Disclosure Act of 1959 (“LMRDA”), 29 U.S.C. § 481(h), (i) (1982). I address each of these contentions below. Discussion

It is well-settled that “ ‘on a motion for summary judgment, the court cannot try issues of fact; it can only determine whether there are issues to be tried.’ ” Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir.1983) (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975)). The court of appeals has stated that “ ‘the key is issue-finding, not issue-resolution.’ ” Id. (quoting United States v. One Tintoretto Painting Entitled “The Holy Family with Saint Catherine and Honored Donor,” 691 F.2d 603, 606 (2d Cir.1982)). Thus, summary judgment is appropriate only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), Fed.R.Civ.P.; Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444 (2d Cir.1980).

Applying these familiar principles to the instant motion, I conclude that there are no issues of material fact that preclude a grant of summary judgment in this case. As I noted above, Madden has not controverted the facts set out above, but he does argue that they do not entitle the moving defendants to judgment as a matter of law. For the reasons below, I find his arguments to be without merit.

I turn first to Madden’s contention that, by taking the actions described above, the moving defendants have improperly attempted to strip the Court of jurisdiction to decide this dispute. Despite Madden’s urgings, it is clear that the moving defendants did nothing improper by proposing the adoption of a new union constitution. Indeed, from all appearances, it would seem that they were pursuing their legitimate rights as union members to participate in the governance of the union. Of course, I have no doubt that one of their aims was to remove Madden from his position as Executive Director, but nothing in the orders of this Court prohibited them from doing so.

Moreover, the actions of the moving defendants have not in any way divested the Court of jurisdiction to decide this case. Indeed, the fact that the moving parties have requested that the Court grant them summary judgment is a tacit acknowledgement that the Court continues to have the power to determine who should take control of the check-off monies. The moving defendants simply contend that the recent amendment to the constitution removes all question that the Executive Board is the group to whom I should give this control. The fact that the issues in this case have become clearer does not mean that the Court has been stripped of jurisdiction; it just means that my task has become easier.

Madden’s second argument is that in view of certain orders issued by Judge Joseph P. Braig in Madden v. National Association of Basketball Referees, the moving defendants lack the legal capacity to make this application for summary judgment. In that suit, Madden and other members of the NABR challenged the validity of a union meeting at which a majority of the membership voted to terminate defendant Phillips’ employment as union counsel. On May 3, 1984, Judge Braig issued an order declaring the meeting illegal because it was not conducted in accordance with the union’s constitution and by-laws; he ruled that since the meeting was illegal, the vote taken was invalid as well.

In a memorandum accompanying his order, Judge Braig stated that if the membership were to remove Phillips as counsel to the union, it would breach Phillips’ retainer agreement, bankrupt the union, and make each of the members personally liable for Phillips’ damages. In view of these drastic consequences, Judge Braig decided to appoint an overseer to conduct another meeting at which the effects of terminating Phillips’ relationship with the union could be explained to the members, and they could again vote on whether to discharge Phillips as counsel to the NABR.

On April 5, 1984, Judge Braig issued a preliminary injunction enjoining the union from terminating Phillips as General Counsel for the NABR, apparently to enable the overseer to conduct a meeting with the union membership and hold another vote. The next day, Judge Braig supplemented his order, providing “that ... Phillips is at least until further order of this court EXCLUSIVE counsel — except for proceedings directly related to the instant litigation.” (emphasis in original). Judge Braig apparently has not modified or rescinded this order.

Madden contends that in view of Judge Braig’s order that Phillips is, at least for now, exclusive counsel for the union, the moving defendants in this action are without the legal capacity to move for summary judgment in this case. Madden has not articulated why this is so, but presumably he believes that the moving defendants are in violation of Judge Braig’s order because they employed counsel other than Phillips to represent them in this action. The theory appears to be that the union and its officials are powerless to take any legal action unless Phillips acts as their attorney.

I find little merit in this novel argument for a variety of reasons. First, I seriously doubt that Judge Braig intended his order to preclude the union or its officers from protecting their interests in a lawsuit such as this where the issues presented are unrelated to the question of whether Phillips can or should be terminated as the union’s counsel. Second, even if Judge Braig’s order were read to prohibit the moving defendants from employing counsel other than Phillips to represent them in this suit, Phillips could not do so since he is a co-defendant and has an obvious conflict of interest with the moving defendants. Thus, if the moving defendants were not permitted to engage another attorney to represent them, they would lose the benefit of counsel altogether. This Court, of course, could not tolerate such a result. Finally, if Madden believed that Judge Braig intended such unlikely results, the appropriate remedy for this alleged violation of Judge Braig’s order was to petition the Court of Common Pleas for an order of contempt. Madden has had plenty of time to seek such an order, and he has not done so. Accordingly, I see no reason why I should adopt the strained interpretation of Judge Braig’s order that Madden offers here.

Thus, I turn to Madden’s final argument — that summary judgment is inappropriate because his discharge as Executive Director was contrary to his four-year term of office and in direct violation of § 401 of LMRDA, 29 U.S.C. § 481(h), (i) (1982). Section 481(h) of title 29 provides as follows:

If the Secretary [of Labor], upon application of any member of a local labor organization, finds after hearing in accordance with subchapter II of chapter 5, of Title 5 [the Administrative Procedure Act] that the constitution and bylaws of such labor organization do not provide an adequate procedure for the removal of an elected officer guilty of serious misconduct, such officer may be removed, for cause shown and after notice and hearing, by the members in good standing voting in a secret ballot conducted by the officers of such labor organization in accordance with its constitution and bylaws insofar as they are not inconsistent with the provisions of this subchapter.

Section 481(i) further provides:

The Secretary shall promulgate rules and regulations prescribing minimum standards and procedures for determining the adequacy of the removal procedures to which reference is made in subsection (h) of this section.

Madden contends that the old NABR constitution did not contain adequate procedures for his removal and that the union was therefore required to follow the procedures promulgated by the Secretary of Labor. He argues that since the union did not follow those procedures, the September 1984 election is invalid and the results void.

Whatever the merits of Madden’s argument, it is clear that this Court is not the appropriate forum to hear it. The United States Supreme Court has held that § 403 of LMRDA, 29 U.S.C. § 483 (1982), makes suit by the Secretary of Labor the exclusive post-election remedy for a violation of § 401. Trbovich v. UMW, 404 U.S. 528, 531, 92 S.Ct. 630, 632, 30 L.Ed.2d 686 (1972); see also Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers v. Crowley, 467 U.S. 526, 104 S.Ct. 2557, 2569-71, 81 L.Ed.2d 457 (1984). Thus, if Madden wishes to challenge his discharge, his sole recourse is to file a complaint with the Secretary. If after an investigation the Secretary concludes that there is probable cause to believe that the election was a violation of § 401, the Secretary can commence a suit to set it aside. In the meantime, however, I must presume that the election was valid.

Madden argues that although § 401 would prohibit him from initiating a private suit to set aside the NABR election, he has an “independent right as an interpleaded defendant” to challenge the validity of the election in the context of this action. Defendant Madden’s Memorandum of Law in Opposition to Motion for Summary Judgment at 10 [hereinafter cited as “Madden’s Mem.”]. However, I cannot discern, and Madden has not identified, the source of this alleged “independent right.” Congress and the Supreme Court have made clear that all post-election challenges to union elections are to be made to the Secretary of Labor. No exception has been made for interpleader actions; indeed, if anything, an interpleader suit seems an even less appropriate context in which to decide the validity of a union election than a private suit brought expressly for that purpose. Accordingly, I find little merit in Madden’s argument that I should entertain his challenge to the NABR’s September 1984 election.

Finally, I note that Madden maintains “upon information and belief” that the moving defendants will dissipate the union’s funds if I grant their motion for summary judgment. He contends that this might “cause the demise of [the] NABR as well as ... untold future inconvenience to the referees.” Madden’s Mem. at 12. While I appreciate Madden’s concern for the well-being of the union, his unsupported assertions are no basis for denying the moving defendants’ application for summary judgment. As with all union funds, the NABR’s leaders will have a fiduciary duty not to waste or misuse the check-off dues monies. If they breach that duty, the union membership can of course sue them for relief.

For all of these reasons, I conclude that the moving defendants are entitled to summary judgment. Unfortunately, that does not entirely dispose of this matter. The NBA has moved for an award of $19,167.64 in costs and attorney’s fees to compensate it for the expense of commencing and maintaining this interpleader action. Both Madden and the moving defendants have opposed the NBA’s request as excessive. Accordingly, the NBA’s, motion for costs and attorney’s fees is referred to Magistrate Ruth V. Washington for a report and recommendation.

In the meantime, the Clerk of the Court is directed to enter judgment in favor of defendants Michael F. Mathis, Wally Rooney, William Saar, and Jim Capers. The Clerk is further directed to pay to Richard Bavetta, in his capacity as Treasurer of the National Association of Basketball Referees, all but $20,000 of the funds currently held in the Registry of the Court. That sum, and any interest that may accrue on it, is to remain in the Registry pending determination of plaintiff’s motion for costs and attorney’s fees.

The NBA is hereby discharged from any further liability as to any check-off monies due under the December 8, 1983 collective bargaining agreement. Defendants, their agents, attorneys and assigns are hereby enjoined from instituting or prosecuting any proceedings against the NBA with respect to the subject matter of this action in any state or federal court, or instituting any proceeding for recovery of, or relating to, check-off monies payable under the December 8, 1983 agreement.

SO ORDERED.

      . In a statement submitted pursuant to Rule 3(g) of the Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, Madden states that he "was prevented from participating in the September 1984 meeting and was denied a meaningful opportunity to be heard.” Defendant Madden’s Statement of Material Facts as to Which There Exists a Genuine Issue to be Tried ¶ 3. Madden has not, however, submitted any affidavit or other admissible evidence to support this allegation as required by Rule 56(e), Fed.R.Civ.P. Since he has not controverted the moving defendants' sworn statements, they are deemed admitted.


author: GLEN M. WILLIAMS, District Judge.

text:
    G.J. ELDRIDGE, et al., Plaintiffs, v. Ronald A. BOUCHARD, et al., Defendants.
    Civ. A. No. 85-0042-A.
    United States District Court, W.D. Virginia, Abingdon Division.
    Oct. 31, 1985.

      Robert M. Galumbeck, Tazewell, Va., for plaintiffs.
    W.A. McFarlane, L.L. Hopkins, Jr., Malcolm R. West, Asst. Attys. Gen., Richmond, Va., for defendants.
   MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

This case is before the court on defendants’ motion to dismiss pursuant to Fed.R. Civ.P. 12(b)(6) and/or motion for summary judgment, Fed.R.Civ.P. 56, and on defendants’ recent motion to abstain. Plaintiffs brought this action seeking declaratory and injunctive relief and monetary damages against the named defendants jointly and severally as individuals and in their official capacities. Plaintiffs bring this action pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and 1988 and the Fourteenth Amendment to the United States Constitution, and invoke the jurisdiction of this court under 28 U.S.C. § 1343. For the reasons stated below, this court overrules defendants’ motion to abstain; overrules the motion for summary judgment as to plaintiffs’ § 1983 claim; and grants summary judgment for defendants on the § 1985(3) claim. Venue is proper in this court.

I.

The one hundred thirty-three plaintiffs in this action are or have been troopers for the Virginia State Police in Division Four. The state is divided into seven geographical regions known as divisions. The basis for plaintiffs’ suit is that troopers in Northern Virginia’s Seventh Division are paid a salary differential in addition to their base pay while troopers in the Fourth Division in Southwestern Virginia do not receive any salary differential to supplement their base pay. The crux of plaintiffs’ argument is that the decision to pay the salary differential only to those troopers in Division Seven is arbitrary, without any rational relationship to legitimate state interests and as such is an unconstitutional denial of their rights to equal protection and due process under the Fourteenth Amendment, and that defendants’ actions violate §§ 1983 and 1985(3). (In Plaintiffs’ Brief in Opposition to Motion to Dismiss and/or for Summary Judgment at page 9, they stated that the complaint alleges violations of only §§ 1983 and 1985(3).)

Defendants point to the fact that the Virginia General Assembly, by Joint Resolution in 1973, authorized a private firm to conduct a study of salaries paid to state employees compared to salaries of private sector employees in comparable occupations. Based on the results of this study, it was determined that salaries in Northern Virginia were generally higher than those in Southwestern Virginia. The decision to pay the salary differential to Northern Virginia State Troopers was premised on the theory that it was necessary in order for the state to effectively compete for qualified personnel with the private security agencies in the area. It was determined that troopers in Division Seven should be paid a differential which would make their salaries on a par with the salaries paid to employees of private security agencies. The intended effect was to keep troopers from leaving state employment in order to work with the higher paying private security agencies. The defendants specifically stated that this differential was not based on cost of living. (Brief Supporting Motion to Dismiss and/or Summary Judgment, p. 2.).

II.

The issue is whether the defendants arbitrarily and without legislative authorization paid an unjustified salary differential only to Northern Virginia state troopers in Division Seven. The dispute centers around the geographical classification of state troopers in light of state statutes concerning the salary to be paid to all state troopers, as state employees, and the justification and implementation of the practice of paying the differential only to Division Seven troopers. The defendants have raised three major points: lack of subject matter jurisdiction; failure to state a claim upon which relief can.be granted, and improper venue. Their main arguments are that the Eleventh Amendment bars this suit and that plaintiffs have made only conclusory and insufficient allegations.

Because the parties have submitted materials in addition to their pleadings, this court will treat defendants’ preliminary motion as one for summary judgment. See Gay v. Wall, 761 F.2d 175 (4th Cir.1985). Upon a motion for summary judgment the moving party has the burden of clearly establishing the lack of any triable factual issue. See 6-Pt. 2 Moore’s Federal Practice ¶ 56.15[6] (2d ed. 1985). Pursuant to Rule 56, the court will examine the pleadings, affidavits and other materials in a light more favorable to the nonmoving party. This court must determine whether defendants have demonstrated that there are no genuine issues of material fact involved thus entitling them to judgment as a matter of law, or whether there is a genuine need for trial.

III.

Before addressing the motion for summary judgment, this court will dispose of defendants’ motion to abstain and request to stay this action pending resolution in state court of issues allegedly involving clarification of state law. Defendants maintain that abstention is the proper course for this court to follow based on the Pullman doctrine and similar cases. This court does not disagree with the law cited by defendants, however, this case involves neither the interpretation of ambiguous state statutes nor pending state court or administrative proceedings.

In Stewart v. Hunt, 598 F.Supp. 1342, 1348-49 (E.D.N.C.1984), a district court recently summarized the three generally recognized categories of abstention as articulated in Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1945). The court stated that the Pullman doctrine applies “where there are federal constitutional issues which might be mooted by state court determination of relevant state law.... The state issue must exhibit the qualities of uncertainty and ambiguity ... Pullman abstention is inappropriate when the most important issues of law presented are federal, not state issues.” (citations omitted). Under Younger abstention comity is the central concern and “abstention was held to be appropriate only where: (1) there was a pending state proceeding (2) which was criminal in nature and (3) no unusual circumstances counseling against abstention were present.” (The Younger doctrine has been modified to cover civil actions, but only where ongoing state proceedings are initiated before any proceedings on the merits have taken place in federal court. Hawaii Housing Authority v. Midkiff 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984).) The third type of abstention, enunciated in Burford, “applies when there exists (1) a state created regulatory scheme which would be disrupted by federal court review and (2) a specially created forum with specialized competence in that particular area.”

The Fourth Circuit addressed the issue of abstention this summer in Browning-Ferris, Inc. v. Baltimore County, Maryland, 774 F.2d 77 (4th Cir.1985). In that ease BFI, owner-operator of a landfill, complained that county and state officials had arbitrarily and capriciously refused to renew the disposal permit for its privately owned landfill and sought relief under § 1983. The district court applied the doctrine of abstention announced in Burford and refused to hear the case. In affirming, the Fourth Circuit pointed out that there were pending state administrative proceedings that had been initiated by the state in order to deny BFI a permit. The court stated that the Burford requirement that a complex state regulatory scheme be involved in order for a district court to abstain was sufficiently present in this case, and “... [d]espite BFI’s attempt to characterize the suit as a mere contract case, the federal court of necessity would become involved in the complexities of state land use control.” In the case at bar, plaintiffs have pointed out that state law does not afford them the means for resolving disputes about wages or salaries. See Va. Code § 2.1 — 114.5:l.B(i) (1985) (nongrievable complaint committed solely to managerial discretion for resolution).

In Cox v. Planning Dist. I Community Mental, Etc., 669 F.2d 940, 943 (4th Cir.1982), the district court dismissed the action because plaintiff had petitioned the state court to stay enforcement of aii arbitration award on the same day he had filed action in federal court. Agreeing that abstention was warranted, the Fourth Circuit pointed out that the status of Virginia law regarding an arbitration award was unsettled. However, it directed the district court to reinstate the case on its docket and stay the action pending disposition of the state court proceedings.

Plaintiffs, here, do not attack the validity of any Virginia statute, nor do they request this court to interpret any statute dealing with salaries of state employees. It is well established under Virginia law that before a court is justified in construing a statute, the statute must be unclear and ambiguous. “Virginia clings tenaciously to the proposition that when a statute is clear and unequivocal, general rules for statutory construction have no application.” Dennis v. County Board of Rappahannock County, 582 F.Supp. 536, 540 (W.D.Va.1984). Plaintiffs have put in issue only defendants’ actions pursuant to Va.Code §§ 2.1-114.2.B, 2.1-114.5.B, and 2.1-114.6 and have not questioned the plain meaning of these statutes. There being no dispute concerning state law, this court would not be intruding into a matter traditionally committed to the state’s jurisdiction.

Applying these principles to the case at bar, this court finds abstention is not warranted and, therefore, a stay would be totally inappropriate in light of the absence of any pending state proceedings. Plaintiffs have implicated important constitutionally and federally protected rights and should not be denied the opportunity to litigate these issues on the chance that they may later bring suit in state court.

IV.

Defendants first contend that this court lacks subject matter jurisdiction because the Eleventh Amendment bars any monetary claims against a state and/or persons sued in their official capacity. However, as plaintiffs point out, their suit is not against persons sued solely in their official capacities and sovereign immunity is not an issue. -

The Supreme Court in Scheuer v. Rhodes, 416 U.S. 232, 236-238, 250, 94 S.Ct. 1683, 1693, 40 L.Ed.2d 90 (1974) held in part that the district court was wrong in dismissing the action against Rhodes, Governor of Ohio, based solely on the pleadings. The Court stated that

... since Ex Parte Young, 209 U.S. 123 [28 S.Ct. 441, 52 L.Ed. 714] 123 (1908) it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he deprived another of a federal right under the color of state law ... [damages against individual defendants are a permissible remedy in some circumstances notwithstanding the fact that they hold public office.

(citations omitted.).

And in Landman v. Royster, 354 F.Supp. 1302, 1315-16 (E.D.Va.1973), though the suit was originally brought against defendants in their official capacity, the court stated that damages could be recovered from them personally but not from them in their official capacity. In making out their prima facie claim for damages, plaintiff must prove some actual conduct depriving him of his rights on the part of each defendant he seeks to hold personally liable.

Therefore, since plaintiffs lodge no complaint against the state and because consideration of upon whom liability could ultimately rest is premature, the Eleventh Amendment imposes no bar to plaintiffs’ action. Because factual matters are still in dispute, this court will refrain from addressing what impact, if any, a judgment against defendants may have on the state itself.

Defendants next argue that this action is barred by Virginia’s statute of limitations, Va.Code § 8.01-243 (1985). They contend that the cause of action accrued in 1974 which was the time plaintiffs first became aware of the conduct/policy about which they now complain. There is no federal statute of limitations applicable to suits arising under § 1983, therefore, federal courts must borrow the state statute of limitations that most closely fits this cause of action. It is generally recognized that this federal rule establishes as the time of accrual that point in time when the plaintiff knows or has reason to know of the injury which is the basis of his action. Bireline v. Seagondollar, 567 F.2d 260, 262 (4th Cir.1977), Blanck v. McKeen, 707 F.2d 817, 819 (4th Cir.), cert. den., 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 258 (1983).

However, the conduct which plaintiffs allege to be an unconstitutional denial of federally protected rights is repetitive— beginning in 1974 and continuing to this day. See Perez v. Laredo Jr. College, 706 F.2d 731, 733-34 (5th Cir.1983) for the proposition that:

if the alleged statutory violation does not occur in a single moment but in a series of separate acts and if the same alleged violation was committed at the time of each act, then the limitations period begins anew with each violation and only those violations preceding the filing of the complaint by the full limitations period are foreclosed. Similarly if the statutory violation occurs as a result of a continuing policy, itself illegal, then the statute does not foreclose an action aimed at the company’s enforcement of the policy within the limitations period.

That case involved a claim under § 1983 for alleged employment discrimination which was initially held time barred. On appeal the Fifth Circuit examined the complaint to determine whether plaintiff had made only mere conclusory allegations of a continuing wrong. Upon careful examination of plaintiffs’ complaint in the case at bar, this court finds that plaintiffs have stated facts which indicate that the conduct alleged to be wrongful is continuing in nature by reason of the Virginia statutes, cited above, and defendants’ actions. Therefore; the Virginia statute of limitations does not bar this action.

Defendants have forcefully argued that plaintiffs’ allegations are insufficient, conclusory and fail to state a claim upon which relief can be granted, or, alternatively, that based on the record before this court defendants are entitled to judgment in their favor. This court finds merit in plaintiffs’ allegations and finds that they have succeeded in pleading a legitimate claim under § 1983 and the Fourteenth Amendment. The complaint together with affidavits and other memoranda show that there are genuine issues of fact concerning the reason for the salary differential and the authority for paying it only to Northern Virginia troopers. These issues need to be fleshed out at trial. Therefore, the motion for summary judgment as to plaintiffs’ claims invoking protected rights under the Fourteenth Amendment and § 1983 is overruled.

A review of the complaint, however, reveals that plaintiffs have alleged no valid federal conspiracy claim. In 1971 the Supreme Court articulated four elements a party must allege in order to establish a possible violation of § 1985(3):

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.

Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), (as cited in Waller v. Butkovich, 605 F.Supp. 1137, 1143 (M.D.N.C.1985)).

Courts which have addressed complaints brought under § 1985(3) have placed great weight on the second element requiring that there be some racial, or perhaps otherwise class-based invidiously discriminatory animus. See United Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), and Furka v. Great Lakes Dredge & Dock Co., 755 F.2d 1085 (4th Cir.1985). Neither the Supreme Court nor the Fourth Circuit has identified any classes other than racial or religious classes. In Dotson v. Mountain Mission School, Inc., 590 F.Supp. 583, 587 (W.D.Va.1984), this court stated, in part, that

based on a strict construction of the Act’s legislative history, the conspiratorial reach of § 1985 does not include tor-tious acts against groups, ..., whose constituency is dependant on circumstances subject to ready change and whose character is quite different from classes based on race, ethnic origin, sex, religion, or political loyalty.

In this case defendants’ alleged wrongful action is directed toward a class composed of troopers in the Fourth Division in Southwestern Virginia. The plaintiffs as a class possess none of the immutable traits or other characteristics which would entitle them to special protection under § 1985(3). Any animus that could possibly be directed toward them would be motivated by something other than a political, racial or economic status. See Carpenters, 463 U.S. 825, 837, 103 S.Ct. 3352, 3360 (1983). This court finds that the complaint fails to properly plead any legitimate claim of conspiracy due to plaintiffs’ failure to satisfy the requisite element of class-based animus toward them. Summary judgment is warranted for defendants upon the § 1985(3) claim against them.

Defendants’ last basis for urging this court to dismiss is that venue is improper. Under 28 U.S.C. § 1404 it is generally recognized that “plaintiffs choice of forum should rarely be disturbed unless the balance is strongly in favor of defendant.” Bertnick v. Home Fed. Sav. & Loan Ass’n, 337 F.Supp. 968, 970 (W.D.Va.1972). “The plaintiff has primary right to choose his forum and that selection is not to be easily overthrown. The decision of whether to transfer from one district court to another is in the discretion of the district judge.” Akers v. N & W Ry. Co., 378 F.2d 78, 80 (4th Cir.1967). In ruling on a motion to dismiss for improper venue, defendants bear the burden of showing that the balance of equities is in their favor; .that judicial economy and convenience to all parties favor suit in another forum. This court finds that defendants have not shown this to be an inconvenient or improper forum requiring dismissal of this cause of action. Venue has been properly placed within the jurisdiction of this court sitting in the Abingdon Division.

V.

An order will be entered granting summary judgment for defendants on plaintiffs’ conspiracy claim under § 1985(3) and overruling defendants’ motion for summary judgment on claims against all defendants for violations of plaintiffs’ Fourteenth Amendment rights to due process and equal protection and for violations of rights pursuant to § 1983.

This court finds that plaintiffs have sufficiently pleaded facts of a substantial nature which indicate that there are genuine issues of material fact in dispute which make it necessary for the parties to proceed to trial.

The Clerk is directed to send certified copies of this Memorandum Opinion to counsel of record.


author: TEITELBAUM, Senior District Judge.

text:
    UNITED STATES of America v. Elmer J. JONNET.
    Crim. No. 84-19.
    United States District Court, W.D. Pennsylvania.
    Oct. 31, 1985.

      James Y. Garrett, Asst. U.S. Atty., Pittsburgh, Pa., for plaintiff.
    Stanley Preiser, Charleston, W.Va., George G. Mahfood, Yaier Y. Lehrer, Pittsburgh, Pa., for defendant.
   MEMORANDUM OPINION

TEITELBAUM, Senior District Judge.

I.

Defendant Elmer J. Jonnet recently filed motions on August 19, 1985 and September 16, 1985 asking me to recuse from further proceedings in the above-captioned case. Both motions were denied. Defendant twice sought a Writ of Mandamus compelling my recusal and was unsuccessful both times.

Since then I have reviewed the matter further and now conclude that my recusal is required by 28 U.S.C. § 455(a). Although I have no bias-in-fact against the defendant, he and his counsel have contrived to create a situation in which it well might appear to a reasonable person that I am biased against the defendant.

II.

A judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). The test for determining whether recusal is required under this subsection is whether a reasonable person, knowing all the circumstances, would believe that a judge’s impartiality could be questioned. See United States v. Schreiber, 599 F.2d 534, 536 (3d Cir.1979). What matters is the objective appearance of bias, not actual bias. United States v. Nobel, 696 F.2d 231, 235 (3d Cir.1982).

III.

The objective appearance of bias arises out of a number of accusations made by defendant and his counsel concerning me and certain members of my staff.

Defendant alleged in an affidavit in support of the motion to recuse filed on August 19, 1985 that Mr. Sanford Lampl, Esquire, had told defendant and his son that I considered myself to be “the Archangel Gabriel” and defendant to be “the greatest evil on earth.”

The allegation that I hold or expressed such beliefs is untrue. In addition, Mr. Lampl contacted me on his own initiative and insisted that he never made the statement attributed to him to defendant, his son, or anyone else. It was for these reasons that I stated during the conference on August 19, 1985 that defendant had perjured himself in making such an allegation.

Also, Mr. Lampl informed me that Mr. H.F. Salsbery, one of defendant’s counsel, had approached him in a hostile manner and had attempted to induce such statements concerning my attitudes from Mr. Lampl. It was for this reason that I accused Mr. Stanley Preiser, also one of defendant’s counsel, and his law firm, of engaging in a blatant campaign to malign my reputation and of filing the recusal motion in bad faith.

Mr. Preiser and other members of his law firm unquestionably were aware that defendant had perjured himself in his affidavit. Although counsel understandably would be expected to fight zealously to protect defendant’s interests, there are limits to the stratagems that may be employed in aid of the defendant’s cause. See In The Matter Of The Complaint of Bankers Trust Co., et al., 775 F.2d 545, 549 (3d Cir.1985) (per Judge Higginbotham). For counsel to file the recusal motion and false affidavits was unprofessional and unethical. See American Bar Association Standards for Criminal Justice, The Defense Function § 4-7.7 (1980) (proposed standard).

Defendant also accused certain members of my staff of improper conduct.

Mr. Richard Grainer, my Administrative Aide, was accused of improperly delivering certain documents to the jury for consideration during its deliberations. The fact that jurors were questioned, so stated, and also stated that they had read the three volume document, a deposition, raises questions as to defendant’s conduct. Also, the ludicrous accusation was made against Mr. Grainer that the reason why the two jurors who were designated as alternate jurors were so designated was because they were Catholics. I am satisfied that these charges are untrue.

Mr. Salsbery also has accused Mr. R.J. Haver, my Law Associate, of making derogatory remarks concerning the merits of many of the pretrial motions filed by the defendant and of impugning the motive of defense counsel in filing them.

Considering the lengths to which defendant, Mr. Preiser, and his law firm already have gone in endeavoring to create a situation in which it might appear that I am biased against the defendant, there is little doubt in my mind that the reprehensible machinations to discredit me and my staff would continue were I not to recuse at this time. I am unwilling, as a Senior Judge, to subject myself to such treatment. More importantly, I am convinced that justice would be best served if I recused. Defendant had previously moved that every judge of this Court is disqualified because they read an opinion by another judge critical of him. How he knows this defies my imagination. Instead, it establishes that defendant does not want to be tried on these criminal charges and that his counsel is doing everything he can to assist his client in this.

An appropriate order will issue.

ORDER

AND NOW, October 31, 1985, in accordance with the foregoing Memorandum Opinion, IT IS HEREBY ORDERED that I recuse from any further proceedings in the above-captioned case; and that the case is returned to the Clerk of Court for assignment to another judge.


author: BUA, District Judge.

text:
    MacArthur HUBBARD, Plaintiff, v. Margaret HECKLER, Secretary of the Department of Health and Human Services, Defendant.
    No. 85 C 0065.
    United States District Court, N.D. Illinois, E.D.
    Oct. 31, 1985.
    Christine M. Naper, Legal Assistance Foundation of Chicago, Chicago, Ill., for plaintiff.
    Anton R. Yalukas, U.S. Atty. by William T. Clabault, Asst. U.S. Atty. Chicago, Ill., for defendant.
   ORDER

BUA, District Judge.

Before this Court is plaintiffs motion for summary judgment. Hubbard brings this action pursuant to Section 1602 of the Social Security Act, 42 U.S.C. § 1381a. Hubbard seeks summary reversal of defendant Secretary of Health and Human Services’ (“Secretary”) denial of Hubbard’s Social Security disability benefits. Alternatively, Hubbard requests that this case be remanded to the Secretary for further proceedings. Jurisdiction is based on 42 U.S.C. §§ 405(g) and 1383(c)(3).

The sole issue presented is whether the Secretary’s final decision is based upon substantial evidence. For the reasons stated herein, this Court finds that the Secretary’s decision is based upon substantial evidence and denies Hubbard’s motion for summary judgment.

FACTS

Hubbard applied for Social Security disability benefits in 1983 alleging inability to work due to high blood pressure, ulcers, asthma, seizures, and a bad liver. His application was denied and an administrative hearing was held. Testimony at the hearing revealed that Hubbard was 41 years old, five feet nine inches tall, and 135 pounds. Hubbard’s prior employment included work as a gas station attendant, messenger, cab driver, and lamp assembler. The hearing also revealed the results of extensive medical testing of Hubbard by three doctors. That medical evidence established that Hubbard had severe hypertension, seizures, peptic ulcer disease, and bronchial asthma with chronic bronchitis, but that Hubbard did not have an impairment or combination of impairments that qualified as a disability under the Social Security Act. Consequently, the Administrative Law Judge (“ALJ”) found that Hubbard’s impairments did not prevent Hubbard from performing the duties required by his past employer. Accordingly, the ALJ denied Hubbard’s claim for benefits.

Hubbard sought review of the AU’s decision by the Appeals Council of the Social Security Administration. The Appeals Council declined to review the decision. Hubbard seeks judicial review by this Court.

DISCUSSION

Hubbard argues that the Secretary’s decision is in error because it was not based on substantial evidence. First, Hubbard maintains that the ALJ failed to fully develop the record to determine the effect of Hubbard’s alcohol abuse on his ability to perform substantial gainful activity. Second, Hubbard contends that the AU failed to consider the combined effect of Hubbard’s impairments in making the disability determination.

Judicial review of the Secretary’s decision is limited to a determination of whether the Secretary’s findings are supported by substantial evidence based on the record as a whole. Debolt v. Califano, 445 F.Supp. 893, 896 (N.D.Ill.1978). It is not this Court’s function to appraise the evidence de novo. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

Substantial evidence exists in the record to support the Secretary’s finding that Hubbard’s physical impairments do not rise to the level of a “disability”. Although Hubbard’s condition was undoubtedly painful, there is no evidence in the record to indicate that his condition was sufficiently incapacitating to meet the “disability” requirement of the Social Security Act. After holding a hearing and carefully considering the entire record, the AU concluded that Hubbard’s impairments could be controlled with medication and abstinence from alcohol. This Court finds that the AU acted reasonably in concluding that Hubbard was not disabled. This finding, however, is not dispositive of this case.

Hubbard does not contend that the AU erroneously concluded Hubbard was not disabled. Rather, Hubbard argues that the ALT failed to determine the extent and effect of Hubbard’s alcohol use. Hubbard believes there was sufficient evidence on the record to compel the AU to conduct additional hearings to determine the effect of Hubbard’s drinking habits on his ability to perform substantial gainful activity.

Hubbard’s brief in support of his motion consistently refers to Hubbard’s drinking habits as “abusive” and “chronic”. However, the entire 177-page record only refers to Hubbard’s drinking habits three times. First, Dr. Carasig noted during an examination with Hubbard that “there is positive alcohol in the breath.” Second, Dr. Racal noted during a different examination that Hubbard “drank alcohol.” Last, Hubbard denied drinking alcohol. The Court finds that these minor references to drinking do not constitute abusive, chronic alcoholism. Nor should the references compel a reasonable AU to conduct additional hearings in a search for a possible history of drinking problems. Alcohol on Hubbard’s breath could have been caused by only a few drinks. Since the record fails to reflect any credible evidence of alcohol problems sufficient to trigger the need for additional hearings, the AU’s decision will not be reversed.

Hubbard’s second argument contends the AU failed to consider the combined effect of Hubbard’s impairments in making the disability determination. This argument is also unpersuasive. Hubbard offers no evidence that questions the credibility of the AU’s decision. The AU’s willingness to consider both exertional and nonexer-tional impairments leads this Court to conclude that the AU was similarly willing to consider the combined effect of Hubbard’s impairments. Accordingly, Hubbard’s motion to remand this case for further proceeding is denied.

CONCLUSION

This Court denies Hubbard’s motion to summarily reverse the Secretary’s decision to deny Hubbard Social Security disability benefits. In addition, Hubbard’s alternative motion to remand this case for further proceedings is also denied.

IT IS SO ORDERED.


author: NANGLE, Chief Judge.

text:
    INTERCO INCORPORATED, Plaintiff, v. PENSION BENEFIT GUARANTY CORPORATION, Defendant.
    No. 84-2064C(1).
    United States District Court, E.D. Missouri, E.D.
    Nov. 1, 1985.

      Keith Mattern, St. Louis, Mo., for plaintiff.
    Lawrence Landgraff, Washington, D.C., Henry Fredericks, Asst. U.S. Atty., St. Louis, Mo., for defendant.
   MEMORANDUM

NANGLE, Chief Judge.

This case is now before the Court on cross motions for summary judgment. The parties filed a joint stipulation of uncontested facts, the majority of which provide the historical background of this case and are summarized below.

FACTS

In 1964, Interco (then called International Shoe Company) acquired P.N. Hirsch & Co. (hereinafter Hirsch), a corporation that operated a chain of junior department stores. Hirsch was subsequently liquidated and converted into an unincorporated division of Interco. Hirsch stores were located in various midwestern, western and southern states. Eligible employees of Hirsch were covered by a single, defined pension plan (hereinafter the Hirsch Pension Plan). On November 5, 1983, Interco sold most of the assets located in the mid-western and southern states. The remaining assets still held by Interco were liquidated into Interco and, effective February 13, 1984, the name of P.N. Hirsch & Co. was changed to Idaho Department Stores Co., a division of Interco.

Under the terms of the sale agreement, many Hirsch employees in the midwestern and southern states were terminated on the date of the sale. Interco retained certain management personnel and various other personnel as well as the assets and personnel for the stores located in the western states. As a result of the termination of the employees in the midwestern and southern states, the number of active employees in the Hirsch Pension Plan was reduced from approximately 1,974 to approximately 900.

The central dispute in this lawsuit concerns Interco’s treatment of the Hirsch Pension Plan. On February 17, 1984, In-terco notified the Pension Benefit Guaranty Corporation (PBGC) of its intention to terminate the Hirsch Pension Plan pursuant to § 4041(a) of Title IV of the Employee Retirement Income Security Act (ERI-SA), 29 U.S.C. § 1301 et seq., as amended P.L. 96-364, 94 Stat. 1208 (1980). The PBGC is a wholly-owned United States Government corporation created by 29 U.S.C. § 1302 to administer the pension plan termination insurance program established by Title IV of ERISA. Interco, in its notice to the PBGC proposed a termination date of March 1, 1984.

The precise legal consequences of Inter-co’s actions with respect to the Hirsch Pension Plan form the heart of this dispute. The following steps were then taken by Interco and are stated herein for the purpose of explaining the context of this case. On February 29, 1984, Interco implemented a new pension plan, designated the Idaho Department Store Subsidiaries Pension Plan (the Idaho Plan). Following establishment of the Idaho Plan, Interco transferred all remaining active employees who were participants in the Hirsch Plan to the Idaho Plan. In addition to transferring the employees, Interco transferred what it considered to be adequate funds to cover the actuarial value of accrued vested and non-vested benefits for those employees. There is no dispute that the Hirsch and Idaho Pension Plans are substantially identical. It is also not disputed that Interco did not purchase annuities for, nor did it fully vest, any of the employees who were transferred to the Idaho Plan. Following the transfer, the only participants who remained in the Hirsch Plan were those employees who had previously retired or had been terminated by Interco’s sale of assets on November 5, 1983.

There is no dispute that the Hirsch Plan, prior to November 5, 1983, had become substantially overfunded. Interco stated to the PBGC in its notice of termination, its intention to purchase annuities for the remaining participants in the Hirsch Plan. It was Interco’s belief that the annuity purchase would terminate the Hirsch Plan. Interco would then be eligible to recover approximately $3,500,000.00 in excess contributions.

Interco responded to the PBGC’s request for additional information concerning the proposed termination on May 21, 1984. On August 28, 1984, a representative of the PBGC requested that Interco agree to an extension of the ninety day statutory review period pursuant to § 4041(d) of ERI-SA, 29 U.S.C. § 1341(d). Interco refused the PBGC’s request and filed this action. Interco seeks an order compelling the PBGC to issue a notice of sufficiency and an injunction against the PBGC attaching conditions on the notice of sufficiency. The PBGC filed a counterclaim, which was subsequently amended, requesting that this Court declare that the Hirsch Plan is an ongoing employee pension benefit plan as defined in § 3 of ERISA, 29 U.S.C. § 1002.

CONCLUSIONS OF LAW

Under Rule 56 of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if he can “show that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). See also Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). In passing on a motion for summary judgment, a court is required to view the facts and inferences that may be derived therefrom in the light most favorable to the non-moving party. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983); Vette Co. v. Aetna Casualty and Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). The burden of proof is on the moving party and a court should not grant a summary judgment motion unless it is convinced that there is no evidence to sustain a recovery under any circumstances. Buller, 706 F.2d at 846. However, under Rule 56(e), a party opposing a motion for summary judgment may not rest upon the allegations of his pleadings but “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). See also 10A Wright, Miller and Kane, Federal Practice and Procedure: Civil 2d, § 2739 (1983). For the reasons which follow, the defendant’s motion for summary judgment must be granted and the plaintiff’s motion for summary judgment must be denied.

The principal question presented by this case is whether the PBGC is authorized not to accept Interco’s spin-off transaction as a termination under § 4041 of ERISA, 29 U.S.C. § 1341. The PBGC claims that its treatment of Interco’s transaction is a permissible exercise of the agency’s enforcement discretion. Interco, on the other hand, asserts that the PBGC is bound by Interco’s characterization of its action as a termination and is required by ERISA to act pursuant to § 4041, 29 U.S.C. § 1341. In reviewing the authority of the PBGC, it is necessary to examine briefly the history of ERISA.

ERISA was established as part of a complex piece of legislation, deemed necessary by Congress to insure soundness and stability in employees’ pension funds. The pre-ERISA pension system was subject to numerous abuses and ultimately many employees were denied their due benefits when pension plans were terminated. Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 374, 100 S.Ct. 1723, 1732, 64 L.Ed.2d 354 (1980). Part of the ERISA scheme includes insurance of any plan which “is, or has been determined by the Secretary of the Treasury to be, a plan described in section 401(a) of the Internal Revenue Code of 1954.” 29 U.S.C. § 1321(a)(2). See United Steelworkers of America v. Harris & Sons Steel Co., 706 F.2d 1289, 1291 fn. 2 (3d Cir.1983). Thus, the PBGC can guarantee, within certain limits, the payment of all vested benefits upon termination of a covered plan. Id. at 1293. Under § 1302(b)(3), the PBGC is given the power to adopt and amend rules and regulations necessary to enforce Title IV. Central to the ERISA scheme is the ability of the PBGC to both review voluntary terminations and, under certain circumstances, to seek the involuntary termination of ERISA covered pension plans.

It is obvious that terminations and asset preservation are critical to PBGC’s liability exposure. Pension Benefit Guaranty Corp. v. Heppenstall, 633 F.2d 293 (3d Cir.1980). To prevent depletion of pension assets by employers, ERISA provides that contributions “shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to the participants of the plan and their beneficiaries_” 29 U.S.C. § 1103(c)(1). As the PBGC argues in its brief, the ERI-SA provision could be easily circumvented through the use of spin-off transactions. To prevent a depletion of the contributions, the PBGC has refused to allow Interco to spin-off the Idaho Plan from the Hirsch Plan without the proper vesting and the annuity purchase. The effect of the PBGC’s requirements is to treat the proposed spin-off termination as a termination of the entire pension plan. Interco objects to the PBGC’s action as an abuse of authority. This Court disagrees.

As previously stated, the PBGC is charged with enforcing Title IV of ERISA. If this Court denied the PBGC the ability to order Interco to take certain steps to accomplish a valid spin-off, clearly the intent of Congress would be frustrated. See Reuther v. Trustees of the Trucking Employees of Passaic and Bergen County Welfare Fund, 575 F.2d 1074, 1077 (3d Cir.1978) (“[I]t is readily apparent that the major concern of congress [in ERISA] was to ensure that bona fide employees with long years of employment and contributions realize anticipated pension benefits.”) In prior cases, the courts have recognized the authority of the PBGC to withhold notices of sufficiency until plan administrators amended their distribution plans in a manner acceptable to PBGC’s interpretation of the requirements of § 4044(d)(2) of ERISA. See LLC Corp. v. Pension Benefit Guaranty Corp., 703 F.2d 301, 302 (8th Cir.1983).

It is clear that the authority of the PBGC to withhold notices of sufficiency is necessary to enforce ERISA. The case at bar demonstrates this necessity. Interco established the Idaho Plan, then transferred assets which Interco considered adequate to cover the transferred Hirsch employees. Interco’s procedure attempts to avoid any review of the spun-off plan’s assets by the PBGC. While the exact amount of funds transferred to the Idaho Plan is unclear, it is obvious by Interco’s position that the amount is less than what would be necessary to fully vest and purchase annuities for the transferred employees. The PBGC’s action seeks only to protect those employees transferred to the Idaho Plan. Prior to the transfer, all Hirseh Plan participants were members of an overfunded pension plan. Following the transfer, the Idaho Plan, if it were immediately terminated, would have insufficient funds to purchase the requisite annuities. Interco, on the other hand, stands to recover a significant amount of funds from the proposed transaction.

Congress noted the great personal tragedy suffered by employees when vested benefits were no longer available when a pension plan was terminated. Nachman Corp. v. Pension Benefit Guaranty Corp., supra, 446 U.S. at 374, 100 S.Ct. at 1732. Moreover, § 4002, 29 U.S.C. § 1302(a) provides that one of the purposes to be carried out by the corporation is “to provide the timely and uninterrupted payment of pension benefits to participants and beneficiaries under plans to which this title applies.” It is clear to this Court that spinoff transactions could easily be used to circumvent the distribution provisions of ERISA. Allowing Interco to circumvent the Internal Revenue Code and the intent of ERISA would clearly frustrate the Congress’ goal of insuring stability in pension plans.

The requirements which the PBGC is applying to Interco’s conduct were published as guidelines on May 21, 1985. In-terco objects on several procedural grounds to these guidelines. This Court agrees with the PBGC that the guidelines are irrelevant to the issue in this ease. It is clear to this Court that Title IV of ERISA grants the PBGC the authority to deny recognition of Interco’s termination action even if the guidelines had never been issued. The PBGC is entitled to great deference with respect to administering and enforcing Title IV. See Connolly v. Pension Benefit Guaranty Corp., 581 F.2d 729, 730 (9th Cir.1978) cert. denied, 440 U.S. 935, 99 S.Ct. 1278, 59 L.Ed.2d 492 (1979) (“the determination of the PBGC ... is entitled to great deference in the construction and application of ERISA.”) Moreover, “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1969). This Court should only set aside the agency’s construction “if it does not have a reasonable basis in law or if it frustrates congressional policy.” Metropolitan Medical Center and Extended Care Facility v. Harris, 693 F.2d 775, 780 (8th Cir.1982). This Court agrees with PBGC’s interpretation and action in this case. It is the interest and protection of the pension plan participants which is paramount under ERISA.

In reviewing the action of the PBGC, this Court will only set aside the agency’s action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ...” 5 U.S.C. § 706 (1976). This standard of review is a narrow one. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). See also Bradley v. Bureau of Alcohol, Tobacco and Firearms, 736 F.2d 1238 (8th Cir.1984). As previously stated, this Court finds that the PBGC’s actions in this case promote the Congressional policies behind ERISA. This Court, viewing the facts and inferences in a light most favorable to the plaintiff cannot say that the agency’s decision was arbitrary and capricious.

This Court’s conclusion is further supported by the wording of § 4043(b)(4), 29 U.S.C. § 1343(b)(4), which states that even a finding by the Secretary of Treasury that a partial termination has occurred does not, by itself, constitute or require a termination of a plan under Title IV. It is clear to this Court that Congress recognized that a termination or a partial termination may be largely a question of fact. This question should be resolved by the PBGC. In a case such as this, this Court must defer to the interpretation of the PBGC, an impartial Government agency with the requisite expertise and the responsibility for enforcing the ERISA statute.

Finally, Interco has not demonstrated any unfairness or other burden as a result of the PBGC’s action. Interco has not, nor could they allege that any actions were taken in reliance on the PBGC’s recognizing Interco’s proposed spin-off transaction as a valid termination. Clearly, contributions which resulted in the overfunding of the Hirsch Pension Plan were not made in reliance on recognition of the spin-off transaction. Certainly Interco knew that if it terminated the entire Hirsch Plan, the ERISA statute would require exactly what the PBGC states is necessary for recognition of the spin-off termination.

It is this Court’s opinion that the PBGC’s refusal to recognize Interco’s spinoff transaction as a valid ERISA termination is a valid exercise of the agency’s discretion. Accordingly, defendant’s motion for summary judgment is granted and plaintiff’s motion for summary judgment is denied.

      . There is some disagreement between the parties on the question of when the Idaho Plan was implemented. Defendant submitted a copy of the Idaho Plan which indicates that the Idaho Plan was actually signed on February 28, 1985, but made effective on March 1, 1984. Plaintiff does not dispute the validity of defendant’s exhibit. In view of this Court’s resolution of the cross motions however, it is not necessary to reach or decide this question.

      ." Interco’s transaction in this case is known as a spin-off:
      In a typical spinoff transaction, an employer splits an overfunded defined benefit plan into two spunoff defined benefit plans, one for active employees and one covering retired employees. The employer allocates to the active employees’ plan assets equal to the present value of the active employees’ benefits, in accordance with section 414(1) of the Code. The employer then allocates all other plan assets, including the excess assets, to the retired employees’ plan, leaving it overfunded. Upon termination of the retired employees’ plan the excess assets revert to the employer.
      Ronald Pearlman, Deputy Assistant Treasury Secretary for Tax Policy, 12 PENS.REP. 484.


author: LOVELL, District Judge.

text:
    SAFECO TITLE INSURANCE COMPANY OF IDAHO, a corporation, Plaintiff, v. Robert HOLTER, District Judge of the Nineteenth Judicial District of the State of Montana, Defendant.
    No. CV 85-191-M-CCL.
    United States District Court, D. Montana, Missoula Division.
    Nov. 1, 1985.

      Richard DeJana, Kalispell, Mont., for plaintiff.
    Mike Young, Montana State Torts & Claims Div., Helena, Mont., for defendant.
   MEMORANDUM AND ORDER

LOVELL, District Judge.

Plaintiff seeks preliminary and permanent injunctive relief against State District Judge Robert Holter, enjoining him from including plaintiff in the retrial of a case previously tried before a jury in Judge Holter’s court.

Plaintiff (Safeco) was a party defendant in a state court suit brought by husband and wife property owners (Dobles) against Safeco and Lincoln County Title Company for negligence in the issuance of a title commitment. In the state action, the Do-bles sought, inter alia, attorneys fees incurred in a nunc pro tunc action to correct the title problems. Judgment was entered upon the jury’s verdict in favor of the Dobles and against Lincoln County Title in the amount of $34,582.66, and in favor of Safeco and against the Dobles in the amount of $4,172.85. Lincoln County Title appealed from the judgment, but the Do-bles did not.

On appeal, the Supreme Court of Montana reversed the District Court and ordered a new trial. Safeco claims that since it was not a party to the appeal and since the Supreme Court did not specifically reverse the judgment against the Dobles in favor of Safeco, the original judgment in favor of Safeco stands and Safeco cannot be made a party to the new trial. Thus, Safeco has filed this action under 42 U.S.C. § 1983, claiming imminent threat of deprivation of its property rights in and to the judgment and seeking to enjoin Judge Hol-ter from proceeding against it in the retrial. Safeco has also requested a hearing for preliminary injunction.

There are three issues to be resolved before a hearing may be granted. First, does the Court have jurisdiction over Safe-co’s action? Second, should the court abstain from hearing the action? Third, should the complaint be dismissed for failure to state a claim upon which relief can be granted? For the reasons set forth below, I resolve the first two issues in Safeco’s favor, but conclude that the action will be dismissed without a hearing for failure to state a claim.

The first issue is whether this Court has jurisdiction to hear Safeco’s claim. The Federal Anti-Injunction Act provides that a federal court “may not grant an injunction to stay proceedings in a state court....” 28 U.S.C. § 2283. However, civil rights actions under Section 1983 are among the exceptions to the Act that have been expressly authorized by Act of Congress. Goldie’s Book Store v. Superior Court for the State of California, 739 F.2d 466 (9th Cir.1984). The United States Supreme Court has held that in order to stay a cause of action under Section 1983, a plaintiff must allege only that some person has deprived him of a federal right and that such person acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). The Court of Appeals for the Ninth Circuit has held that district courts have subject matter jurisdiction over suits brought under Section 1983 even when the state action allegedly violating plaintiff’s federally protected right takes the form of state court proceedings. White v. White, 731 F.2d 1440 (9th Cir. 1984).

In Miofsky v. Superior Court, State of California, etc., 703 F.2d 332 (9th Cir.1983), the issue presented was “whether a federal district court has jurisdiction to entertain an action brought under Section 1983 to restrain a state court from conducting litigation in a manner that would allegedly deprive a party of rights guaranteed by the United States Constitution.” The court in Miofsky concluded that district courts do have jurisdiction over such claims. Generally, in order to invoke jurisdiction under § 1983 a complaint must fulfill two criteria: (1), it must claim a right to recover under the Constitution and laws of the United States, and (2), the claim must not be wholly insubstantial and frivolous. Jackson Transit Authority v. Local Division 1285, 457 U.S. 15, 102 S.Ct. 2202, 72 L.Ed.2d 639 (1982). Thus, if the complaint satisfies these two criteria, the rule in Miofsky requires this court to accept jurisdiction. On its face, the complaint claims violation of constitutionally protected rights and does not appear to be frivolous. Therefore, under the rule of Miofsky and its progeny, this Court must accept jurisdiction over the action.

The second issue is whether the court should abstain from hearing the plaintiffs case. The Ninth Circuit in Miofsky stated that the question whether subject matter jurisdiction exists is different from the question whether a federal district court should, in deference to principles of comity and federalism, abstain from exercising its jurisdiction in order to avoid interfering with ongoing state judicial proceedings. 703 F.2d at 334. The court cautioned that the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), is not to be “applied indiscriminately to civil proceedings.” Id. The court concluded that “unless ‘vital state interests’ are at stake, federal district courts are not proscribed from interfering with ongoing state civil proceedings when necessary to vindicate federally protected civil rights.” Id. at 338, quoting Middlesex County Ethics Commission v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Thus the court held that the Younger doctrine did not apply where federal jurisdiction was invoked under Section 1983 “to restrain the state judiciary from conducting private tort litigation in a way that allegedly threatens to violate [plaintiffs] constitutional rights.” Id.

The Ninth Circuit has reaffirmed Miofsky in several subsequent cases. In Goldie’s Bookstore v. Superior Court of State of California, supra, the Ninth Circuit cited Middlesex for its three requirements for the proper invocation of the Younger abstention doctrine. These requirements are (1) that there are ongoing state proceedings (2) that the proceedings implicate important state interests and (3) that there is an adequate opportunity in the state proceedings to raise federal questions. In Goldie’s Bookstore, the court relied on Miofsky, stating that there were no vital state interests where there is simply litigation between two private parties. The Court again concluded that abstention was improper. The Ninth Circuit has based several other decisions holding abstention improper on this second requirement that an important state interest must be involved. The court has implied that Younger abstention is not appropriate in civil cases except in limited situations which bear similarities to criminal proceedings or otherwise implicate state interests vital to the operation of state government. Playtime Theaters, Inc. v. City of Renton, 748 F.2d 527 (9th Cir.1984). Accord, Champion International Corporation v. Brown, 731 F.2d 1406 (9th Cir.1984). Based upon these decisions, this Court will not abstain from considering the complaint at issue.

Having assumed jurisdiction and determined abstention to be improper, my review of the pleadings and supporting exhibits persuades me that this case should be dismissed under Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim. An action may be dismissed for failure to state a claim only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). This standard has been applied to civil rights actions as well. Wirth v. Surles, 562 F.2d 319, 45 A.L.R.Fed. 864 (4th Cir.1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531. In order to state a cause of action under Section 1983, the plaintiff must allege at least some act which has deprived him of a right, privilege or immunity secured by the Constitution and laws of the United States. Holder v. Claar, 459 F.Supp. 850 (D.C.Colo.1978).

Safeco has clearly misinterpreted the opinion of the Supreme Court of Montana remanding the case for new trial. The Supreme Court's order is not limited to Lincoln County Title or to a particular part of the judgment. Its express language is: "We reverse the district court and order a new trial." Safeco erroneously relies upon the Supreme Court's determination of the second issue on appeal in support of its argument that the court intended to exclude it from the new trial. In particular, Safeco relies on the language the court used in holding "that the verdict and judgment against Lincoln County Title Company only is not supported by the evidence." Slip Op. at Pg. 6 (emphasis added). Safeco reads this holding entirely out of context. Issue Number 2 was whether the verdict and judgment against Lincoln County Title Company were contrary to law and the evidence. The opinion refers to agreed facts taken from the pretrial order that Lincoln County Title Company was an agent of Safeco for the purpose of selling title insurance; it also makes reference to an instruction given to the jury that a principal is bound by the acts of his agents. On this basis, the court concluded that the jury properly could not have returned a verdict against the agent Lincoln County Title Company and in favor of the principal, Safeco. Thus the court held that the verdict against Lincoln County Title alone was not supported by the evidence.

Safeco's action is based upon an alleged property right in the district court judgment. However, there can be no property right in a nonexistent judgment. Reversal of a judgment makes it void as if never rendered. O'Brien v. Great Northern Railroad Company, 148 Mont. 429, 421 P.2d 710 (1966), cert. denied, 387 U.S. 920, 87 S.Ct. 2034, 18 L.Ed.2d 974. The Supreme Court of Montana has held that reversal extends to those issues which the appellate court decided in actuality or by necessary implication. Aye v. Fix, 626 P.2d 1259 (Mont.1981).

It is clear in this case that the Supreme Court's order encompasses the entire judgment of the district court and that Safeco remains a party to the action. Thus Safeco can prove no set of facts in support of its claim which would entitle it to relief.

THEREFORE, IT IS HEREBY ORDERED that the plaintiff's motion for preliminary injunction is DENIED and the complaint is DISMISSED in its entirety with prejudice.