author: REGAN, District Judge.

text:
    OZARK AIR LINES, INC., and Thomas J. Korte, Administrator of the Ozark Air Lines, Inc., Pilots’ Retirement Plan, Plaintiffs, v. NATIONAL MEDIATION BOARD, and the Air Line Pilots Association, International, and Arthur J. Schenk, Jr., Defendants.
    No. 85-316C(B).
    United States District Court, E.D. Missouri.
    July 30, 1985.
    Donald J. Meyer, St. Louis, Mo., for plaintiffs.
    Charles A. Werner, St. Louis, Mo., Gary Green and Sarah P. Fleischer, Air Line Pilots Ass’n Int’l., Janet Hudson, U.S. Dept, of Justice, Civil Div., Washington, D.C., and Henry Fredericks, Asst. U.S. Atty., St. Louis, Mo., for defendants.
   MEMORANDUM AND ORDER

REGAN, District Judge.

The basic issue in this case is whether the Ozark Air Lines Retirement Board has the authority to reconsider (and thus, vacate and reverse) a final decision of the Board unanimously denying disability retirement benefits to a pilot.

Plaintiff Ozark Air Lines, Inc. (Ozark) provides retirement benefits (e.g. disability and early) to pilots under Ozark’s Pilot’s Retirement Plan (Plan). Plaintiff Thomas J. Korte (Korte) is the administrator of the Plan. Defendant Air Line Pilots’ Association International (ALPA) is a labor organization which represents air line pilots employed by Ozark, including defendant Arthur J. Schenk, Jr. (Schenk) who was formerly employed by Ozark, but who is presently receiving early retirement benefits from the Plan, the amount of which is less than the disability benefits he seeks.

Schenk’s claim for disability benefits due to an alleged back injury was submitted to the Board, and, as stated supra, denied. The Board had theretofore been created by Ozark and ALPA in a Letter of Agreement pursuant to the provisions of the Railway Labor Act, 45 U.S.C. § 184, for the purpose of hearing and determining all disputes, inter alia, concerning the interpretation of the Plan and the benefits of participants in the Plan. The Board consists of four members, two selected by Ozark and two selected by ALPA.

The unanimous decision of the Board denying disability benefits to Schenk was rendered on July 6, 1984. The Letter of Agreement provides in Section 1.6 that all decisions of the Board, within the scope of its own powers, “shall be final and binding upon (Ozark, ALPA,) and any other persons having an interest under the Plan.” A month later, ALPA filed a motion with the Board for reconsideration of the July 6, 1984 decision. Prior to submission of the motion, one of ALPA Board members (who had signed the decision) resigned (for reasons not appearing of record) and was replaced, following which the Board deadlocked on whether to consider the motion for reconsideration or to take any other action relating thereto.

Purportedly acting pursuant to Section 1.7 of the Letter of Agreement, the ALPA member of the Board then requested the National Mediation Board (NMB) to appoint a neutral referee to hear the matter.

Section 1.7 of the Letter of Agreement provides as follows:

In the event the members fail to agree on any matter before the Board, they may appoint an impartial chairman who shall cast the deciding vote in the matter. If, after thirty (30) days, the Board fails to agree upon the selection of an impartial chairman, the National Mediation Board shall be requested to select the impartial chairman, who shall cast the deciding vote on the matter whose vote shall be final and binding notwithstanding any other provisions herein to the contrary. The compensation and expenses, if any, of the impartial chairman shall be shared equally by the Company and the Association.

Over the objections of Ozark that no dispute to which Section 1.7 applied was pending before the Board, the NMB nominated Sylvester Garrett on December 17, 1984 to sit with the Board “to resolve the following dispute: Disability Application of Arthur H. Schenk, Jr.”

By this action Ozark seeks to obtain a rescission of the NMB appointment of a neutral referee, to enjoin ALPA and Schenk from further pursuing Schenk’s application for disability benefits before the Board, and to be granted other relief ancillary thereto. ALPA and Schenk counterclaimed, seeking an order to compel Ozark to submit to arbitration on the issue whether ALPA’s Motion for Reconsideration to the Retirement Board should be granted.

With the matter in this posture, NMB moved to dismiss the complaint on the ground the Court lacks subject matter jurisdiction, Ozark moved for summary judgment in its favor and ALPA and Schenk filed their cross-motion for summary judgment. These motions are now for determination.

As noted supra, the dispositive issue is whether the rendition of a “final and binding” decision exhausts the jurisdiction of the Board to further consider or reconsider the matter. We hold that it does. There is no provision in the Letter of Agreement or in the Railway Labor Act which makes an otherwise “final and binding” decision less than final and binding on the Board. In 45 U.S.C. § 153 First (m), which provides that awards shall be final and binding upon both parties to the dispute, it is further provided that “(i)n case a dispute arises involving an interpretation of the award, the division of the Board upon request of either party shall interpret the award in the light of the dispute. Here, however, there is no dispute involving an interpretation of the award. Both parties interpret it in the same way. There is no contention that the award is in need of clarification. The only dispute concerns the claim of ALPA that the “final and binding” decision is wrong and should be reconsidered and reversed. In our judgment, the Board lacks the authority to make such a determination.

As noted supra, there is no provision in the Railway labor Act which permits the National Railroad Adjustment Board to reconsider (as distinguished from interpreting) a final decision of the Board. And 45 U.S.C. § 184, which mandates the creation of similar boards of arbitration in the airline industry, specifically provides that the jurisdiction of such boards may not exceed the jurisdiction which may be exercised by railroad boards under the authority of 45 U.S.C. § 153.

We are in accord with the statement of Judge MacLaughlin in Air Line Pilots Association v. Northwest Airlines, Inc., 498 F.Supp. 613, 618 (D.C.Minn.1980):

“For if an award is to be final, then the statute must be interpreted to mean not only that a court cannot redetermine the merits for the parties, but also that the arbitrator himself cannot redetermine the merits.” This principle is in accord with the common law of arbitration known as functus officio, namely, that “(t)he authority and jurisdiction of arbitrators are entirely terminated by the completion and delivery of an award.” 498 F.Supp. at 618.

And see Local P-9, United Food v. George A. Hormel & Co., 599 F.Supp. 319, 331-322 (D.C.Minn.1984) noting that “(b)y prohibiting the arbitrator from re-examining the merits of an award, the doctrine of functus officio furthers the strong federal policy of finality in labor arbitration.” See also A/S Siljestad v. Hideca Trading, Inc., 541 F.Supp. 58, 61 (D.C.N.Y.1981), citing Air Line Pilots Association, supra: “It is undisputed that, after a final decision by an arbitrator, the arbitrator becomes functus officio and lacks, the power to reconsider or amend the decision.” “The rationale underlying this rule is to prevent re-examination of an issue by a nonjudicial officer potentially subject to outside communication and unilateral influence.” A/S Siljestad citing La Vale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 572 (3 Cir.1967).

The initial question is whether there was (or is) “a matter before the Board” within the meaning of Section 1.7 of the Letter of Agreement. Obviously, the NMB has no authority to appoint “an impartial chairman” (or neutral referee) unless there is a pending matter before the Board which it has authority to decide.

By way of background: Applications for disability benefits pursuant to the provisions of the Plan are initially submitted to the Administrator of the Plan for decision. In the event of an adverse determination, an appeal to the Board for review of the decision is authorized. It is this dispute as to the merits of the claim which is the “matter before the Board.” Once that matter is agreed upon by a majority of the Board, it is “final and binding.” The jurisdiction of the Board having been exhausted, there is no longer any matter before the Board relating to the claim. Absent a pending “matter before the Board”, there is and can be no deadlock which would permit the NMB to name an impartial chairman.

Although by its motion to dismiss, the NMB argues that Mr. Garrett was appointed for the sole purpose of resolving the “dispute” as to whether the Letter of Agreement authorizes the Board to “reconsider” its final and binding decision, this is belied by the terms of his appointment, which, as noted was “to resolve the following dispute: Disability application of Arthur A. Schenk, Jr.” On NMB’s present theory, if all that Mr. Garrett was to decide was whether reconsideration is permissible, he could not determine the merits of the disability application for the obvious reason that there is not and could not be a deadlock on the merits of the “reconsidered” application until after it was reconsidered, so that his appointment would be premature.

We hold that inasmuch as no matter was before the Board, the NMB’s appointment of Mr. Garrett was unauthorized. The motion of NMB to dismiss is, accordingly, overruled. And inasmuch as the Board has rendered a decision on the merits which is final and binding and not subject to reconsideration by the Board, the motion of ALPA and Schenk for summary judgment should be and it is HEREBY OVERRULED.

This leaves for consideration only the motion of Ozark for summary judgment. Although Ozark characterizes its action as one seeking to “enforce” the decision of the Board denying Schenk’s application for disability retirement, we find no basis in the pleadings or otherwise which justifies the grant of such relief. In essence, what is sought is the rescission of the appointment of Mr. Garrett as neutral referee and an injunction prohibiting Schenk and ALPA from further pursuing before the Board Schenk’s application for disability benefits. Under the undisputed and admitted facts, Ozark is entitled to such a judgment. Judgment will be entered in accordance herewith.

JUDGMENT

The Court having this day entered its Memorandum and Order sustaining plaintiff’s motion for summary judgment as set forth in our Order,

NOW THEREFORE, in accordance therewith and for the reasons therein stated, IT IS HEREBY ORDERED and ADJUDGED

1. The appointment of Sylvester Garrett as impartial chairman or neutral referee, heretofore made by the National Mediation Board, to sit with the Ozark Air Lines Retirement Board or otherwise act on or in connection with the application of Arthur J. Schenk, Jr. for disability retirement benefits is hereby rescinded and vacated, and said National Mediation Board is hereby enjoined and restrained from appointing any other impartial chairman or neutral referee for said purpose; and

2. Arthur J. Schenk, Jr. and the Air Lines Pilots Association are hereby restrained and enjoined from further pursuing before the Ozark Air Line Retirement Board the application of said Arthur J. Schenk, Jr. for disability benefits.

      . Schenk had theretofore been denied disability benefits due to a head injury.

      . Unfortunately, neither party has submitted a copy of the Plan (or even the relevant portions thereof, in particular Section 14.4 of the Plan, the procedural requirements of which must be exhausted before the Board’s jurisdiction attaches).


source: Caselaw Access Project

author: HAIGHT, District Judge:

license: Public Domain

text:
    In the Matter of the Application of Turnier ST. FLEUR ([ A XX XXX XXX ]), Petitioner, v. Charles C. SAVA, District Director, U.S. Immigration & Naturalization Service, New York, New York, Respondent.
    No. 85 Civ. 4229-CSH.
    United States District Court, S.D. New York.
    Aug. 2, 1985.

      Claude Henry Kleefield, New York City, for petitioner.
    Rudolph W. Giuliani, U.S. Atty., New York City, for respondent; Jorge Guttlein, Sp. Asst. U.S. Atty., of counsel.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Petitioner Turnier St. Fleur seeks a writ of habeas corpus on the ground that the decision of respondent Charles Sava, District Director of the United States Immigration and Naturalization Service (the “INS” or the “Service”), denying petitioner parole pursuant to Section 212(d)(5) of the Immigration and Nationality Act of 1952, as amended (the “Act”), 8 U.S.C. § 1182(d)(5), was arbitrary, capricious and an abuse of discretion. St. Fleur, an unadmitted Haitian alien, was detained by the INS on May 22, 1985. He seeks release from detention pending adjudication by the Service of his application for political asylum and for a visa based upon his marriage to a United States citizen.

The matter is before the Court on an Order to Show Cause initially returnable July 2, 1985. After repeated adjournments at the joint request of counsel, oral argument was heard on petitioner’s application on July 19, 1985. Decision on the petition was reserved pending submission by petitioner’s counsel of further briefs as described infra.

The INS administrative record reveals that St. Fleur first arrived in the United States on August 26, 1981. He attempted to enter the country by presenting a fraudulent passport to an immigration inspector at Miami International Airport in Miami, Florida, and, as a result, was detained by the INS pursuant to Section 235(b) of the Act. While being held at the INS Krome North Service Processing Center (“Krome”) in Miami for deferred inspection and exclusion proceedings, St. Fleur absconded.

Petitioner states that he then came to New York City where he met Edna Denise Watson, a United States citizen. St. Fleur and Watson were married in Brooklyn, New York on March 7, 1983. A daughter, Sadie Teseane Lawanda St. Fleur, was born of that marriage on October 16, 1983.

On February 10, 1984, Edna St. Fleur filed an immigrant visa petition (the “1-130 petition”) with the INS on her husband’s behalf. No decision has yet been made on the 1-130 petition.

On the date that petitioner was apprehended and detained, he filed an application for political asylum (INS Form 559) which is also pending decision. In that application, petitioner alleged that he was beaten, tortured, and imprisoned by the Haitian secret police, ostensibly because his employer had been involved in underground political activities against the Haitian government. Petitioner claims that after his father paid bribe money to obtain his release, he fled the country.

He explains that he had to use a fraudulent passport to seek entry to the United States because as a political opponent of the Haitian government, he could not obtain a valid one. He also contends that he did not “escape” from the Krome detention center; rather he simply walked out of the facility when the doors were opened by demonstrators. He further contends that ten or fifteen days later, the INS released a large group of Haitian detainees and he asserts that he would have been part of that group.

Petitioner has properly invoked the habeas jurisdiction of this Court to review the parole decision of the District Director of the INS. Bertrand v. Sava, 684 F.2d 204, 210 (2d Cir.1982); Abu Laban v. Sava, 564 F.Supp. 30, 31 (S.D.N.Y.1982). But the scope of judicial review of that decision is necessarily narrow: petitioner must prove that the District Director either failed to exercise any discretion at all in denying parole, or that he exercised his discretion irrationally or in bad faith. Bertrand, 684 F.2d at 213.

Petitioner concedes that Benjamin Perlitsh, Deputy Assistant District Director of the INS, to whom respondent Sava delegated the authority and discretion to make the parole decision, did exercise that discretion in denying petitioner parole. However, St. Fleur contends that Perlitsh’s decision was irrational. I cannot agree.

By letter dated July 2, 1985, Perlitsh informed petitioner’s counsel of the denial of St. Fleur’s request for parole and the reasons for that denial. Perlitsh noted ’that in 1981 when St. Fleur first sought admission to the United States, he had presented a Haitian passport bearing a fraudulent endorsement that he was a lawful permanent resident of this country. Perlitsh also noted that St. Fleur had absconded from the Krome detention center while being held by the INS for further proceedings. Perlitsh concluded: “In view of the means whereby Mr. St. Fleur sought to enter the United States and the fact he absconded from [INS] custody, he does not warrant the exercise of discretion favoring his parole. Your request is denied.”

Petitioner argues that there were mitigating circumstances which justified his actions in 1981, thereby making it irrational for Perlitsh to base his denial of parole on those actions. The argument is unpersuasive.

While it may be true that petitioner could not obtain a valid passport in order to exit Haiti, he is not excused thereby from seeking to gain admission to the United States with a fraudulent passport. Upon arrival in Miami, petitioner could have explained his situation truthfully to the immigrations inspector and applied immediately for political asylum. Instead, he sought to gain entry deceitfully and waited four years to apply for political asylum. Under these circumstances, it cannot be said that it was irrational for Perlitsh to conclude that such behavior by petitioner failed to warrant the exercise of Perlitsh’s discretion in favor of parole.

Equally meritless is petitioner’s contention that he did not really “abscond” from the Krome detention center because he was “released” by demonstrators. It is clear that petitioner left the Krome facility without proper authorization and for four years thereafter failed to apprise the Service of his whereabouts. It matters not what fortuitous event permitted him to engage in such unlawful conduct. Furthermore, there is no evidence in the record to support the petitioner’s speculation that he would have been released lawfully from custody a few weeks later.

The applicable INS regulations make it clear that even where the alien has close family relatives in the United States, parole will be appropriate only when there is no risk that the alien will abscond. These regulations provide that “[ajliens who have close family relatives in the United States ... who ... have filed, a visa petition on behalf of the detainee,” 8 C.F.R. § 212.-5(a)(2)(iii), “generally come within the category of aliens for whom the granting of the parole exception would be ‘strictly in the public interest,’ provided that the aliens present neither a security risk nor a risk of absconding. 8 C.F.R. § 212.-5(a)(2).

Perlitsh’s finding that petitioner’s previous escape from custody suggests a risk that petitioner would flee if paroled must be said to have a rational basis. Petitioner protests that his marriage and child guarantee his continued presence in the community, but petitioner left two other children and their mother in Haiti in 1981 when he first sought to enter the United States. On this record, the existence of petitioner’s conjugal and paternal ties could rationally be said to fail to overcome the risk of future flight by petitioner.

Therefore, I conclude that respondent did not exercise his discretion irrationally in denying parole to petitioner.

At oral argument petitioner’s counsel raised an alternative argument for the first time. He pointed out that the Service knew where St. Fleur was as early as February 10, 1984 when his wife filed the 1-130 petition on his behalf, yet it failed to apprehend and detain petitioner for fifteen (15) months thereafter. He contended that the Service should now be held estopped from denying petitioner parole because of this unreasonable delay in apprehending and detaining him. Counsel cited no authority in support of this argument, but requested time to brief the issue. Permission to put in reply papers addressing the point was granted and extended on consent until close of business yesterday. No such papers have been received. Nevertheless, the Court’s own research indicates that the estoppel argument is also unavailing.

In Immigration and Naturalization Service v. Miranda, 459 U.S. 14, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982), the wife of an alien filed a petition for an immigrant visa on his behalf on the ground that he was the spouse of a United States citizen. The alien himself simultaneously filed an application for adjustment of his status to that of a permanent resident alien. Eighteen months later, before the Service had acted on either application, the marriage ended and the wife withdrew her petition. The Service then denied the alien’s application on the ground that the availability of an immigrant visa was a prerequisite for adjustment to permanent resident status; since the visa petition had been withdrawn, the alien was no longer eligible for permanent residency. The alien claimed that the unexplained 18-month delay by the Service in adjudicating the visa petition constituted affirmative misconduct by it sufficient to estop the Service from denying his permanent residency application. The Supreme Court, reversing a Ninth Circuit decision upholding petitioner’s claim, Miranda v. Immigration and Naturalization Service, 673 F.2d 1105 (9th Cir.1982), held that the mere failure of the Service promptly to process the immigrant visa petition failed to rise to the level of affirmative misconduct by it. The Court stated:

“The only indication of negligence is the length of time that the INS took to process respondent’s application. Although the time was indeed long, we cannot say in the absence of evidence to the contrary that the delay was unwarranted. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971) (presumption of regularity supports official act of public officer); United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926) (same) ... [Njeither the Government’s conduct nor the harm to the respondent is sufficient to estop the Government from enforcing the conditions imposed by Congress for residency in this country.”
459 U.S. at 18, 103 S.Ct. at 283 (footnote omitted).

The Court declined to reach the question whether a showing of “affirmative misconduct in a particular case would estop the Government from enforcing the immigration laws.” Id. at 19, 103 S.Ct. at 284. But on the record before it, the Court held that “[pjroof only that the Government failed to process promptly an application falls far short of establishing ... [affirmative misjconduct,” id., sufficient to raise the estoppel question.

I need not reach the question reserved by the Court in Miranda either, for the instant petitioner’s allegation of mere delay in apprehending and detaining him fails to establish affirmative misconduct by the Service sufficient to raise the estoppel question.

Petitioner’s application for a writ of habeas corpus is denied. Furthermore, the petition does not raise questions of substance upon which the Court of Appeals should rule. Accordingly, a certificate of probable cause, pursuant to Rule 22, F.R. App.P., will not issue. The Clerk is directed to dismiss the petition.

It is SO ORDERED.


author: HERBERT F. MURRAY, District Judge.

text:
    MARYLAND DEPARTMENT OF HUMAN RESOURCES and Ruth Massinga, Secretary and Linda Walter and (Individually and on Behalf of All Others Similarly Situated) v. UNITED STATES DEPARTMENT OF AGRICULTURE and John R. Block, Secretary.
    Civ. No. HM85-2734.
    United States District Court, D. Maryland.
    Aug. 2, 1985.
    Stephen H. Sachs, Atty. Gen. of Md., Nancy B. Shuger, Mark J. Davis, Ralph S. Tyler, Asst. Attys. Gen., Baltimore, Md., for State plaintiffs.
    Peter M.D. Martin, Dennis W. Carroll, Stuart R. Cohen, Legal Aid Bureau, Inc., Baltimore, Md., for Recipient plaintiffs.
    Surell Brady, Renee M. Wohlenhaus, Trial Attys., Dept, of Justice, Washington, D.C., Juliet A. Eurich, Asst. U.S. Atty., Dist. of Md., Baltimore, Md., Debra Byers, Elizabeth Allaben, Patrick Gardner, Office of Gen. Counsel, Dept, of Agriculture, Washington, D.C., for defendant.
   MEMORANDUM AND ORDER

HERBERT F. MURRAY, District Judge.

Plaintiffs Maryland Department of Human Resources and Ruth Massinga, Secretary, and Linda Walter, individually and on behalf of all others similarly situated, filed the instant action against defendants United States Department of Agriculture and John R. Block, Secretary, on June 25, 1985. The Verified Complaint for Preliminary and Permanent Injunctive and Declaratory Relief charges that “[djefendants’ decision to deny Maryland’s request to exclude from food stamp income payments designated by the State legislature for energy assistance is arbitrary, capricious and not in accordance with law because the decision violates the terms of defendants’ own regulations, 7 C.F.R. § 273.9(c)(ll)(i) (A)-(E), and the statute governing the Food Stamp Program, 7 U.S.C. § 2014(d)(ll). See 5 U.S.C. § 706(2)(A). Under this statutory scheme, a State which documents that energy assistance is for the purpose of meeting the home energy needs of public assistance recipients is entitled to exclude these payments from food stamp income. It was unlawful for defendants to deny Maryland the opportunity to assist the State’s food stamp recipients in the manner allowed by governing law.” Complaint, paragraph 43 at pp. 13-14. As relief, plaintiffs request the following:

“1. That the court determine as soon as practicable that this action be maintained as a class action under F.R.Civ.P., 23(b)(2).
2. That the court issue a declaratory judgment granting Maryland permission to exclude from income in calculating the Food Stamp allotments of the recipient plaintiff and the class she seeks to represent, the public assistance grant increase designated by the General Assembly of Maryland for energy assistance, effective July 1, 1985.
3. That the court issue a preliminary and permanent injunction prohibiting defendants, pursuant to their illegal decision, from imposing any fiscal sanctions or other penalties upon Maryland or from otherwise reducing any funds for administrative costs, which normally would be paid to Maryland in the usual course of defendants’ financial participation in Maryland’s Food Stamp Program.
4. That, during the pendency of these proceedings, the court issue such interim orders as may be necessary to prevent defendants from imposing fiscal sanctions or other penalties upon Maryland or from otherwise reducing funds for administrative costs which normally would be paid to Maryland in the usual course of defendants’ financial participation in the State’s Food Stamp Program;
5. That the court issue a permanent injunction preventing defendants, pursuant to their illegal decision, from prohibiting Maryland from implementing a policy which excludes from the food stamp income of the individual plaintiff and the class she seeks to represent, the grant increase that the General Assembly of Maryland authorized such recipients to receive, beginning in July 1985, for energy assistance.
6. That the court retain jurisdiction to grant such other relief, including fees and costs, as is fair and just.” Complaint, pp. 14-15.

The State Plaintiffs’ Motion for Preliminary Injunction is now before the court. See F.R.Civ.P. 65(a). The court held a hearing on the pending motion on Wednesday, July 31, 1984. Having considered the oral as well as the written evidence submitted by both parties, the court is now prepared to rule.

In support of their motion for preliminary injunction, plaintiffs Maryland Department of Human Resources and Ruth Massinga [hereinafter State plaintiffs] contend that the balance-of-hardship weighs in their favor. Specifically, the State plaintiffs contend that they will suffer irreparable injury if they cannot continue implementing an exclusion policy free from fiscal sanctions and penalties. They argue that the likelihood of irreparable harm to the plaintiffs without an injunction is greater than the likelihood of harm to the defendants with an injunction. Moreover, State plaintiffs argue that they are likely to succeed on the merits because the defendants’ decision to deny plaintiffs’ exclusion request was arbitrary and capricious. Finally, State plaintiffs argue that the public interest weighs in favor of granting preliminary relief. State plaintiffs therefore request the court to enter a preliminary injunction to preserve the status quo because they face irreparable injury without such relief beginning August 1, 1985 until the merits are determined for following an exclusion policy without defendants’ approval and without freedom from fiscal sanctions and administrative penalties.

The class of recipients of both AFDC welfare and Food Stamp benefits also have filed a memorandum in support of the State plaintiffs’ Motion for Preliminary Injunction. The recipient plaintiffs argue that the State plaintiffs’ motion should be granted because denial of such motion would result in the reduction of food stamp benefits for approximately 180,000 Maryland residents, and any loss of food stamps would cause great hardships to recipient families and individuals and interfere with their ability to subsist. In addition, recipient plaintiffs also claim that the State plaintiffs’ probability of success on the merits is very likely given that the objective facts and legislative materials indicate that the Maryland legislature passed the July 1985 increase as a direct result of evidence of the high cost of energy in Maryland and not as a sham. Recipient plaintiffs therefore request the court to grant the preliminary injunction.

In opposition to State plaintiffs’ Motion for Preliminary Injunction, defendants argue that “[t]he preliminary injunction requested by Maryland may not be entered in this case, however, because the Food Stamp Act, 7 U.S.C. § 2020(g) precludes such relief. Second, the State of Maryland has altered the status quo without authority, in fact with the Secretary’s specific disapproval, the status quo to be protected here is the status before Maryland implemented a disapproved charge in calculation of food stamp households’ income. In such circumstance, equity precluded the Court from granting Maryland’s motion. Third, the elements of the preliminary injunction test have not been met by Maryland in this case”; that is, the preliminary injunction requested would disrupt and not preserve the status quo, Maryland has shown no irreparable injury, Maryland has little likelihood of success on the merits, and the public interest favors denial of the preliminary injunction. Defendants therefore request that plaintiffs’ motion for preliminary injunction be denied.

Before analyzing the law applicable to the case at bar, the court will first examine the facts giving rise to the instant action.

A. FACTUAL BACKGROUND

Plaintiffs Maryland Department of Human Resources (DHR) and Secretary Massinga have submitted Proposed Findings of Fact and Conclusions of Law in the instant case. The court has reviewed all the evidence submitted and believes that plaintiffs’ Proposed Findings of Fact adequately and fairly represent the facts in this case. The court, therefore, has determined to adopt plaintiffs’ Proposed Findings of Fact with few exceptions. The court’s factual findings are thus set forth below adopting plaintiffs’ Proposed Findings of Fact.

1. Plaintiffs Maryland Department of Human Resources (DHR) and Secretary Ruth Massinga administer the Food Stamp Program in Maryland.

2. Defendants United States Department of Agriculture (USDA) and Secretary John R. Block administer the Food Stamp Program nationwide.

3. The State plaintiffs participate in the State-Federal Food Stamp Program and are reimbursed by defendants for 50% of the State’s administrative costs in operating the program. Defendants pay 100% of benefits for program recipients.

4. The facts which gave rise to this suit are as follows:

a. In its 1985 session, the General Assembly of Maryland enacted a budget bill which was signed into law by the Governor. Section 33.09.00.01 of the bill is a grant increase of $17 million for persons receiving Aid to Families with Dependent Children (AFDC) and General Public Assistance (GPA) effective in State Fiscal Year 1986, which began July 1, 1985. The bill specifically states that the General Assembly passed this grant increase for the purpose of helping public assistance recipients in Maryland to meet their home heating needs.

b. Consistent with this legislative mandate to implement the energy grant increase by July 1, 1985, the State plaintiffs determined that the most administratively efficient manner to accomplish this purpose in accordance with applicable law was to begin to pay the energy assistance grant increase to public assistance recipients effectively July 1, 1985. Affidavit of Ruth Massinga, 112.

c. On April 17, 1985, plaintiff Massinga submitted a written request, with supporting documentation, to defendants for permission to exclude, beginning July 1, 1985, from income in the Food Stamp Program the grant increase designated by the Maryland legislature for energy assistance payments. Plaintiff Massinga requested a determination by defendants by May 15, 1985, because of the preparation time necessary to implement an exclusion policy on July 1,1985, the effective date of the grant increase. See Exhibit A to Complaint.

d. On May 24, 1985, more than thirty days after plaintiffs’ request, defendants notified plaintiff Massinga of their decision denying her request pending receipt of additional information. See Exhibit B to Complaint.

e. On June 3, 1985, Secretary Massinga requested defendants to reconsider their decision and to allow Maryland to implement an exclusion policy on July 1, 1985. Using current data, Maryland’s request for reconsideration documented that the energy assistance grant enacted by the 1985 General Assembly of Maryland would meet only 67% of the unmet need in home heating costs of a family of three over a twelvemonth period. See Exhibit C to Complaint.

f. On June 17, 1985, plaintiff Massinga received notification of defendants’ final administrative decision of June 12, 1985, denying her request for reconsideration and stating that defendants’ policy was to require Maryland to include the energy assistance grant in food stamp income. See Exhibit D to Complaint.

5. On June 25, 1985, plaintiffs filed the within action. It is a timely challenge to defendants’ inclusion policy.

6. Maryland’s normal administrative practices for implementing an exclusion policy are as follows:

a. For State Fiscal Years (SFY) 1983 and SFY 1985, Maryland’s requests to defendants for approval to implement an exclusion policy were promptly approved by them in advance of the July 1 date that Maryland’s grant increases became effective in those fiscal years. See Exhibits E and F to Complaint.

b. Maryland’s SFY 1986 request which was denied by defendants was accompanied by quantitative data similar to that submitted to defendants when the State’s requests to follow an exclusion policy for SFY 1983 and 1985 were approved. Compare Exhibits A and C to Complaint with Exhibits E and F to Complaint.

c. For SFY 1983 and 1985, Maryland’s normal administrative practice was to take reasonable steps in advance of July 1 to prepare for implementation of an exclusion policy effective that date. See Exhibits E and F to Complaint.

d. For SFY 1986, Maryland followed its normal administrative practice and began to take reasonable steps necessary for implementation of an exclusion policy to become effective July 1, 1985. Affidavit of Ruth Massinga, If 2; see also Affidavit of Mark Friedman, If 5.

e. By June 25, 1985, the date the within action was filed, Maryland was prepared to continue its past administrative practice to pay food stamp recipients their full level of benefits and to exclude the energy assistance grant increase from income when determining eligibility and benefit level in the State’s Food Stamp Program. Affidavit of Ruth Massinga, ¶ 4.

7. Defendants have represented to this court that they will not take any action against the State plaintiffs, now or in the future, for their decision to exclude as income in their Food Stamp Program for the month of July 1985, the increases in energy assistance payments enacted by the General Assembly of Maryland.

8. Therefore, the issue at this stage is a narrow one: whether defendants’ decision to refuse Maryland permission to follow an exclusion policy from the period beginning August 1, 1985, until the merits are determined, free from fiscal sanctions and penalties, now and in the future, will subject the State plaintiffs to irreparable injury suffieient to entitle them to a preliminary injunction to preserve the status quo.

9. The State plaintiffs’ position is that they will suffer irreparable injury if they are not allowed to continue to follow an exclusion policy free from fiscal sanctions and penalties, now and in the future.

10. Defendants’ position is that they do not oppose issuance of a preliminary injunction, provided that any such relief preserves their right to seek fiscal sanctions and administrative penalties retroactive to the period from August 1, 1985, until this case is decided on the merits, if they should ultimately prevail.

11. If the State plaintiffs continue to use an exclusion policy without defendants’ approval, and without freedom from sanctions, they will be in non-compliance with federal food stamp program plan requirements. As a penalty for such non-compliance, defendants may seek to withhold future federal financial participation in the administrative costs of the State’s Food Stamp Program. For federal fiscal year 1985 (October 1, 1984 through September 30, 1985), defendants’ financial participation in the administrative costs of the State plaintiffs’ Food Stamp Program is $19 million. Affidavit of Mark Friedman, II10. Non-compliance by the State plaintiffs will jeopardize their continued receipt of all or part of these federal funds. Affidavit of Mark Friedman, 117; see also Affidavit of Ruth Massinga, ¶ 6.

12. At the same time, the State plaintiffs will face severe fiscal sanctions for their non-compliance. This is so because, in the calculation of each and every food stamp case, exclusion of the energy assistance grant from income will cause defendants to deem the case a payment error. If Maryland continues to follow an exclusion policy for two months, the amount of the fiscal sanction which could be imposed would be $990,000. If Maryland continues to follow an exclusion policy for one year, the amount of the fiscal sanction would be $3 million. Affidavit of Mark Friedman, ¶ 13; see also Affidavit of Ruth Massinga, 116.

13. Defendants’ refusal to allow the State plaintiffs to implement an exclusion policy will result in a monthly loss of $425,-000, or an annual loss of $5,100,000 in food stamp benefits for residents of the State of Maryland. Affidavit of Mark Friedman, 1114; see also Affidavit of Ruth Massinga, 11 6. On behalf of its citizens who are recipients of food stamps and public assistance, the State of Maryland has standing as par-ens patriae to challenge defendants’ inclusion policy.

14. Defendants’ inclusion policy means that $5.1 million of the $17 million energy grant increase enacted by the General Assembly will be saved by defendants rather than spent on the State’s public assistance recipients.

15. The injunction sought would require defendants to permit the State plaintiffs to exclude the energy grant increase from income when determining eligibility and benefit level in the State’s Food Stamp Program. Defendants would be unable to impose fiscal sanctions for non-compliance or to count as payment errors every food stamp case in which the energy grant increase is excluded from income. An injunction would prevent defendants from reducing food stamp benefits by the $425,000 per month which defendants would otherwise not have to pay to beneficiaries in the State’s Food Stamp Program.

B. CONCLUSIONS OF LAW

Before analyzing the legal standard applicable to plaintiffs’ motion for preliminary injunction, the court will address the legal principles pertinent to the case at bar. The following conclusions of law indicate the legal foundation on which this case is premised and provide a sufficient background for the court’s analysis infra. The following conclusions of law were submitted by plaintiffs herein and will be adopted by the court in pertinent part.

1. The Food Stamp Program is a cooperative State-Federal program in which the federal government issues food stamps to the states. 7 U.S.C. § 2011 et seq. Each state in turn distributes the stamps to eligible households. 7 U.S.C. §§ 2013-16.

2. The federal government reimburses the state for 50% of the state’s administrative costs and pays 100% of benefits for program recipients. 7 U.S.C. § 2025(a). Payment is made by a state’s withdrawing funds directly from the United States Treasury under a Letter of Credit authorization. 7 C.F.R., § 277.5 (1980).

3. In consideration of this partial reimbursement by the federal government, a state participating in the food stamp program agrees to meet reporting requirements established by USDA. 7 U.S.C. § 2025(d)(4). A state must submit to USDA quarterly expenditure reports of its administrative costs. 7 C.F.R., § 277.11(c) (1980).

4. A household’s entitlement to food stamps and the amount received are based on the household’s income. 7 C.F.R., Part 273. The lower a household’s income the more food stamps it receives. A state is required to exclude as income when determining eligibility and benefit level in its Food Stamp Program any payments made under any state law for the purpose of providing energy assistance, which are designated by the state legislature as energy assistance, and which are determined by USDA to be calculated as provided on a seasonal basis. 7 U.S.C. § 2014(d)(ll).

5. On April 19, 1983, USDA promulgated a rule to determine whether state energy assistance payments should be excluded from income in determining eligibility and benefit level in a state’s food stamp program. 7 C.F.R. § 273.9(c)(ll). The state agency must submit documentation to USDA to show that its energy assistance payments may be excluded. The state agency must show, inter alia, that its payments are made for the purpose of providing energy assistance to households. Section 273.9(c)(ll)(i). USDA has adopted five “indicators of purpose” to determine whether or not state assistance to be excluded is actually for the specific purpose of helping households pay home energy costs. Section 273.9(c)(ll)(i)(A)-(E). If a state plan meets three of the five “indicators of purpose”, it will probably be approved for exclusion. 48 Fed.Reg. 16828 (Apr. 19, 1983) (preamble to final rule amending 7 C.F.R. § 27S.9(c)(ll)). USDA policy is to respond to requests to exclude energy assistance payments from food stamp income within thirty days. 48 Fed. Reg. 16829.

6. If a state were to implement an exclusion policy without prior approval by USDA, USDA could reduce the amount due a state for the federal share of the state’s administrative costs for its food stamp program. 7 U.S.C. § 2022(a) and § 2023(a); 7 C.F.R. § 27.4 (1984). Reduction would be by offset from a state’s letter of credit. 7 C.F.R. § 277.16(c) (1984). USDA could also withhold future federal financial participation from a state’s food stamp program. 7 U.S.C. § 2020(g).

7. A state’s implementation of an exclusion policy without USDA approval would be deemed an error by USDA in the calculation of every food stamp case. Such federally deemed errors would increase a state’s food stamp rate. If the rate were to exceed USDA’s tolerance levels, a state could be subject to fiscal sanctions by additional reduction in the federally funded share of administrative costs for the program. 7 U.S.C. § 2025(d); 7 C.F.R. § 275.-25 (1984). Reduction would be by offset to the state’s letter of credit, by direct billing or by other mechanisms authorized under the Federal Claims Collection Act. • 7 C.F.R. § 275.25(d)(4) (1984).

8. Section 33.09.00.01 of the budget bill enacted by the General Assembly of Maryland in 1985 is a $17 million grant increase for persons receiving Aid to Families with Dependent Children (AFDC) and General Public Assistance (GPA). The grant increase is to be effective in the State Fiscal Year 1986, which began July 1, 1985. The General Assembly of Maryland passed this energy grant increase for the express purpose of providing energy assistance payments to public assistance recipients in the State of Maryland to help them meet their home heating needs. The energy grant increase is to be paid effective July 1,1985. Consistent with this legislative intent, the State plaintiffs decided to pay the energy grant increase to Maryland’s public assistance recipients beginning on this date.

9. On behalf of its citizens who are recipients of food stamps and public assistance, the State plaintiffs have standing as parens patriae to challenge defendants’ policy to require the State plaintiffs to include the energy grant increase enacted by the General Assembly of Maryland in income when determining eligibility and benefit level in the State’s Food Stamp Program.

10. State plaintiffs have asked defendants to allow them to implement an exclusion policy and defendants have declined to do so.

C. APPLICABLE LAW

The Fourth Circuit’s standards for issuing preliminary injunctions under Rule 65(a) of the Federal Rules of Civil Procedure are outlined in North Carolina State Ports v. Dart Containerline, 592 F.2d 749, 750 (4th Cir.1979) and Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 195-97 (4th Cir.1977). The Court of Appeals applies a balance-of-hardship test. The four factors considered under the test are:

1) plaintiff’s likelihood of success in the underlying dispute between the parties;
2) whether plaintiff will suffer irreparable injury if interim relief is denied;
3) the injury to defendant if an injunction is issued; and
4) the public interest.

North Carolina, 592 F.2d at 750. In discussing the interrelationship of these factors, the court said:

There is a correlation between the likelihood of plaintiff’s success and the probability of irreparable injury to him. If the likelihood of success is great, the need for showing the probability of irreparable harm is less. Conversely, if the likelihood of success is remote, there must be a strong showing of the probability of irreparable injury to justify issuance of the injunction. Of all the factors, the two most important are those of probable irreparable injury to the plaintiff if an injunction is not issued and likely harm to the defendant if an injunction is issued. If, upon weighing them, the balance is struck in favor of plaintiff, a preliminary injunction should issue if, at least, grave or serious questions are presented. Id.

1. The Balance of the Harm

As previously stated, the Fourth Circuit regards the possibility of irreparable injury to be the most important of the factors the court must consider in deciding whether to grant a motion for preliminary injunction. The court believes that the State plaintiffs have sufficiently shown a greater likelihood of irreparable harm to the plaintiffs without a preliminary injunction than the harm to the defendants with an injunction. Notably, the staggering fiscal sanctions and administrative penalties to which the plaintiffs would be subject absent a preliminary injunction cannot be ignored. The court recognizes that monetary injury is not normally considered irreparable; however, the court believes that more is at stake in this case. Significantly, if a preliminary injunction is not granted, the public assistance recipients in the State of Maryland who receive food stamps, whom the State represents in a parens patriae capacity, would have their food stamp benefits reduced. Recipient Plaintiffs’ Memorandum in Support of State Plaintiffs’ Motion for Preliminary Injunction, p. 2. Given the financial status of these recipients, the court believes that any reduction in their food stamp benefits could irreparably injure their daily subsistence. Moreover, the court also believes that, absent a preliminary injunction, the threatened sanctions would impinge on the State’s ability to “budget for and manage the Food Stamp program.” Supplemental Memorandum in Support of State Plaintiffs’ Motion for Preliminary Injunction, p. 5. Balancing this potential harm to the plaintiffs absent a preliminary injunction against requiring the defendants to hold plaintiffs harmless during the litigation, the court believes that the balance-of-hardship tips in favor of the plaintiffs.

Having found that the balance of the harm tips in favor of the plaintiffs, the court believes that State plaintiffs have presented “grave or serious” questions. See North Carolina, 592 F.2d at 750. Specifically, plaintiffs have presented grave and serious questions as to whether defendants’ decision to include the energy grant increase in income is legal; whether plaintiffs should be subject to the imposition of significant fiscal sanctions; whether defendants’ decision was arbitrary, capricious and in violation of both the statute governing the Food Stamp Program. 7 U.S.C. § 2014(d)(ll), and the terms of defendants’ regulations implementing this statutory provision, 7 C.F.R. § 273.-9(c)(ll)(i)(A)-(E); whether plaintiffs are entitled to exclude the energy assistance payments from income; whether defendants’ decision was based on a consideration of the relevant factors set forth in defendants’ regulation, 7 C.F.R. § 273.-9(c)(ll)(i)(A.) — (E) and the documentary evidence submitted; and whether defendants articulated a rational basis for their action. In light of the gravity of these questions and plaintiffs’ demonstration of irreparable injury, the court believes that a preliminary injunction is warranted in this case to preserve the status quo

2. Likelihood of Success on the Merits The Fourth Circuit has stated:

The first step in determining whether interlocutory injunctive relief should issue is for the court to balance the likelihood of irreparable harm to the plaintiff without an injunction against the likelihood of harm to the defendant with an injunction. If a decided imbalance of hardship should appear in plaintiff’s favor, it is enough that grave or serious questions are presented; plaintiff need not show a likelihood of success on the merits. The need for plaintiff to show likelihood of success on the merits increases as the probability of irreparable injury to plaintiff without an injunction decreases. Finally, the court should consider wherein lies the public interest, sometimes described as preserving the status quo ante litem until the merits of a serious controversy can be fully considered by a trial court.

Maryland Undercoating Co. v. Payne, 603 F.2d 477, 481 (4th Cir.1979). In light of the court’s finding that the balance of the harm tips in favor of the plaintiffs and that plaintiffs have presented grave or serious questions on the merits, plaintiffs “need not show a likelihood of success on the merits.” Id. Nevertheless, the court believes that plaintiffs have sufficiently demonstrated that they have some chance of prevailing on the merits. Plaintiffs argue that the USDA’s decision was arbitrary and capricious because it ignored the evidence presented by the State, because it departs from agency policy of deciding requests for exclusion by applying the five indicators of purpose, and because, initially, it failed to consider the relevant factors. See Memorandum of Plaintiffs in Support of Motion for Preliminary Injunction, pp. 13-22. The court recognizes that it may not substitute its judgment for that of the agency; however, upon consideration of the relevant factors, the court believes that this case fits within those in which the basis of the agency’s decision is reviewable and, possibly, subject to reversal. Significantly, the USDA’s action may be reversed if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). However, it appears that defendants have a number of defenses to plaintiffs’ allegations. In conclusion, plaintiffs have demonstrated some possibility of prevailing on the merits. Given the plaintiffs’ strong showing of irreparable harm, the court believes plaintiffs’ showing of likelihood of prevailing on the merits is adequate.

3. The Public Interest

The court believes that the public interest favors granting preliminary relief given the devastating risk to the food stamp recipients’ welfare in the instant case. If preliminary injunction relief is denied, these recipients will undoubtedly suffer economically and socially. In addition, denial conceivably could wreak havoc on the State’s food stamp program. The public has an interest in the proper construction and implementation of the Food Stamp Act and the protection of those whom the Act was designed to assist. The court believes that denying plaintiffs’ request for preliminary injunctive relief and subjecting the State to the risk of sanctions and subjecting food stamp recipients to reduced benefits would not be in the public interest.

Accordingly, for the foregoing reasons, it is this 2nd day of August 1985, by the United States District Court for the District of Maryland,

ORDERED that plaintiffs’ Motion for Preliminary Injunction be, and the same hereby is, Granted, and that defendants and their officers, agents, servants, employees, attorneys and those persons in active concert or participation with them are preliminarily enjoined as follows:

1. Defendants may not, now or in the future, impose any fiscal sanctions or other penalties upon the State plaintiffs, or otherwise reduce any funds for administrative costs which normally would be paid to the State plaintiffs in the usual course of defendants’ financial participation in Maryland’s Food Stamp Program as a result of State plaintiffs’ policy to exclude from income when determining eligibility and benefit level in the State’s Food Stamp Program the energy assistance grant enacted by the General Assembly of Maryland, effective July 1, 1985, to help public assistance recipients meet their home heating needs from the period beginning August 1, 1985 until this matter is determined on the merits.

2. Defendants may not, now or in the future, require the State plaintiffs to establish and recover as overissuances the dollar value of any food stamps issued as a result of the State plaintiffs’ policy to exclude from income when determining eligibility and benefit level in the State’s Food Stamp Program the energy assistance grant enacted by the General Assembly of Maryland, effective July 1, 1985, to help public assistance recipients meet their home heating needs from the period beginning August 1, 1985, until this matter is determined on the merits;

(3) Defendants may not, now or in the future, require the State plaintiffs to consider as payment errors under defendants’ quality control system the dollar value of any food stamps issued as a result of the State plaintiffs’ policy to exclude from income when determining eligibility and benefit level in the State’s Food Stamp Program the energy assistance grant enacted by the General Assembly of Maryland, effective July 1, 1985, to help public assistance recipients meet their home heating needs from the period beginning August 1, 1985, until this matter is determined on the merits.

It is further ORDERED that the Clerk of the Court shall mail copies of this memorandum and order to counsel for the parties.

      . The court believes that the status quo in this action is the State’s normal administrative practices followed in the two prior years; that is, the State’s practice of taking advance steps to implement an exclusion policy on July 1, 1985 and paying food stamp recipients their full level of benefits. These practices were initiated prior to the commencement of this litigation and were known to defendants. See Affidavit of Ruth Massinga, attached to Supplemental Memorandum in Support of State Plaintiffs’ Motion for Preliminary Injunction, ¶ 2; Exhibit A to Complaint. The court believes that the State’s practice itself is not contested; what is contested is whether the energy assistance grant is related to energy costs in Maryland or whether the increased payment is "simply a general welfare increase that would have occurred even were energy costs not a factor.” H.R.Rep. No. 96-788, 96th Cong., 2d Sess. 123, reprinted in [1981] U.S.Code Cong. & Ad.News 956.


author: JAMES HARVEY, District Judge.

text:
    Carol RICKS, et al., Plaintiffs, v. Forest GLEN, et al., Defendants.
    Civ. A. No. 78-10244.
    United States District Court, E.D. Michigan, S.D.
    Aug. 5, 1985.

      Patricia Pap, Alan S. Ells, Legal Services of E. Mich., Saginaw, Mich., Chris Campbell, Timothy Vogel, Legal Aid of Cent. Mich., Lansing, Mich., for plaintiffs.
    Michael Hluchaniuk, Asst. U.S. Atty., Bay City, Mich., John Jensen, Office of Regional Counsel, U.S. Dept, of HUD, Chicago, 111., for U.S. and HUD.
   MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

This matter is before the Court on plaintiffs’ motion for an award of attorney fees from defendant United States Department of Housing and Urban Development (HUD). Plaintiffs bring this motion pursuant to the Equal Access to Justice Act (EAJA) 28 U.S.C. § 2412 et seq., the Civil Rights Attorneys Fees Award Act of 1976 (CRAFAA) 42 U.S.C. § 1988, and applicable common law. The Court will proceed to address plaintiffs’ motion below.

The class action complaint in this matter seeking declaratory and injunctive relief was originally filed in November of 1978 by Carol Ricks, a tenant in a Section 236 federally subsidized housing project in Midland, Michigan. The suit was filed against the apartment complex-housing project, Forest Glen; against Altman Management Company; and against Patricia Harris, in her official capacity as Secretary of HUD. The defendants were jointly responsible for owning and managing federally subsidized “Section 236” housing projects. Subsequently, amended complaints were filed joining other named plaintiff class representatives and other defendants — owners and operators of Section 236 projects. Plaintiffs sought to compel owners and managers of the subsidized projects and HUD to comply with procedures and regulations governing terminations, as well as evictions from housing, and to provide notice of regulations to current and future tenants. In addition, plaintiffs sought to compel HUD to enforce its regulations and supervise Section 236 projects throughout Michigan as to tenancy termination practices. Count I of plaintiffs’ complaint was asserted against defendants Forest Glen and Altman Management Company alleging that they violated federal regulations. Count II alleged that defendants Forest Glen and Altman Management Company violated plaintiffs’ Fourteenth Amendment right to due process of law. Count II also alleged that defendant Harris of HUD violated plaintiffs’ Fifth Amendment right to due process of law. Count III alleged that defendants Forest Glen and Altman Management Company violated plaintiffs’ First Amendment rights. Count IV of the complaint alleged that the acts and omissions of defendants in depriving plaintiffs’ of their rights under the First and Fourteenth Amendments deprived plaintiffs of civil rights under 42 U.S.C. § 1983.

Following extensive discovery, negotiation, and rulings on various motions filed with this Court, the parties entered into a consent decree. Judgment was entered on September 7, 1982. The “Stipulation of Judgment of Dismissal” dismissed the action without costs but included a statement that “plaintiffs are not precluded from applying for an award of attorney fees nor is HUD precluded from opposing such an application.” Plaintiffs filed this motion for attorney fees in October of 1982 and HUD’s response was filed in December of 1982. A reply was filed by plaintiffs in February of 1983.

As noted previously, plaintiffs’ claim for attorney fees is based upon the EAJA and the CRAFAA. First, plaintiffs’ seek fees pursuant to EAJA, 28 U.S.C. § 2412(d), as prevailing parties against HUD whose position plaintiffs maintain was not substantially justified. Second, plaintiffs seek an award of fees pursuant to the CRAFAA, 42 U.S.C. § 1988, as prevailing parties. Alternatively, plaintiffs argue that they are entitled to attorney fees under the EAJA, 28 U.S.C. 2412(b), pursuant to the CRAFAA. HUD argues that plaintiffs’ application for attorney fees should be denied for the following reasons:

(1) Plaintiffs are not entitled to an award of fees under Section 2412(b) of EAJA, because the complaint fails to state a claim against the federal defendant under any statute (including 42 U.S.C. § 1988) which would subject HUD to a fee award;
(2) Plaintiffs are not entitled to an award of fees under either Section 2412(b) or Section 2412(d) of EAJA because plaintiffs are not the prevailing party in their suit against HUD;
(3) Plaintiffs are not entitled to an award of fees under Section 2412(d) of EAJA because HUD’s position in the litigation was substantially justified;
(4) Plaintiffs are not entitled to an award of fees under Section 2412(d) of EAJA because plaintiffs have not incurred attorney fees pursuant to that provision;
(5) The fees claimed by plaintiffs are unreasonable, duplicative, and excessive, and should be disallowed;
(6) Plaintiffs are not entitled to an award of any fees incurred prior to October 1, 1981 under either Section 2412(b) or Section 2412(d) of EAJA.

A number of courts have addressed the issues raised by plaintiffs’ motion since it was filed. The Court finds several of these decisions persuasive and applicable as set forth in the following consideration of plaintiffs’ claim for fees.

FEES UNDER 28 U.S.C. § 2412(d)

The EAJA, 28 U.S.C. § 2412(d)(1)(A) (1982) provides in pertinent part that:

“a court shall award to a prevailing party other than the United States fees and expenses, ... incurred by that party in any civil action ... brought by or against the United States ... unless the Court finds that the position of the United States was substantially justified.”

See Kreimes v. Department of Treasury, 764 F.2d 1186, 1188 (6th Cir., 1985). A plaintiff is a “prevailing party” under the EAJA “if he ‘succeeds on any significant issue in litigation which achieves some of the benefit the party sought in bringing suit.’ ” Id. quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) and Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978). Furthermore, to qualify as a “prevailing party” under the EAJA, a party need not be a victor in a lawsuit that leads to a judgment on the merits. Citizens Coalition for Block Grant Compliance, Inc. v. City of Euclid, 717 F.2d 964, 966 (6th Cir.1983). “Parties may be considered to have prevailed when they have vindicated important rights through a consent judgment or without formally obtaining relief.” Id. quoting Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 633 (6th Cir.1979) cert. denied 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980). See also Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980). It is enough to prevail if “the lawsuit acted as a ‘catalyst’ in prompting defendants] to take the desired action.” Citizens Coalition for Block Grant, supra at 966. Thus, it is well established that a party may be “prevailing” when there is a settlement agreement. However, a two part inquiry is required to determine whether a party to settled litigation prevailed. Id. First, the Court must determine “whether ... the plaintiff’s lawsuit was a necessary and important factor in achieving the relief desired.” Id. (Citations omitted). Second, if the first query is answered affirmatively, “the court must then determine whether the relief obtained resulted from a gratuitous act on the defendant’s part or whether defendant’s actions were mandated by law.” Id.

Applying these factors to the instant case, it is important to note that it is only defendant HUD being considered. Thus, this motion for fees and the factors noted above must be considered only as they apply to HUD. For this reason, the Court believes plaintiffs' claim for fees fails on the first prong of the prevailing party test. Although the plaintiffs’ lawsuit appears to have been an important factor in achieving certain relief, the Court finds much of the relief sought was achieved by obtaining compliance of the other named defendants. Plaintiffs’ primary claim against HUD was based upon an allegation that plaintiffs’ Fifth Amendment right to due process had been violated. The federal regulations themselves were not being attacked but rather their implementation. The stipulated judgment entered into by plaintiffs and HUD focused on review and monitoring of the housing project program and sites. These reviews and monitoring were all already provided for under HUD guidelines. The Court is cognizant of plaintiffs’ contention that its position was to assume that administrative regulations and guidelines were enforced. The Court does not believe, however, that a sufficient causal connection existed between HUD’s actions and plaintiffs’ complaint. Thus, plaintiffs’ claim for fees fails on the first prong of the test. Furthermore, the Court believes HUD’s entry into the settlement agreement constituted a gratuitous act. Therefore, plaintiffs would fail on the second prong of the test as well.

The Court will also note that the government’s position was substantially justified. “The government’s position is substantially justified if it has a reasonable basis in law and fact.” Kreimes, supra, at 1190. (Citations omitted). See also Trident Marine Construction, Inc. v. District Engineer, 766 F.2d 974 (6th Cir.1985). In the instant case, HUD’s position was premised on the regulations already promulgated and the fact that plaintiffs’ complaint was substantially directed at other defendants. As noted previously, the regulations themselves were not being attacked and HUD’s position was that steps were already being taken for improved supervision and enforcement of those regulations by HUD. The Court finds that based upon the facts of this case such a position was reasonable and, therefore, substantially justified. FEES UNDER CRAFAA, 42 U.S.C. § 1988

Plaintiffs contend that they are entitled to fees pursuant to the CRAFAA, 42 U.S.C. § 1988 because they are prevailing parties in an action filed to enforce constitutional rights under the First and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. Defendants dispute the application of this statute to HUD — as a federal defendant.

Clearly, plaintiffs’ claim against HUD was based upon the Fifth Amendment and federal regulations applicable to the projects in issue. Plaintiffs did not allege that defendants actions were under color of state law. Plaintiffs’ claims based upon the First and Fourteenth Amendments pursuant to 42 U.S.C. 1983 were not directed at HUD but at the other nonfederal defendants. Sections 1988 and 1983 permit a prevailing plaintiff to collect attorney fees where a plaintiffs constitutional rights have been violated under color of state law. Venus v. Goodman, 556 F.Supp. 514, 520 (W.D.WI.1983); 42 U.S.C. § 1983.

In the instant case, as in Venus, 42 U.S.C. § 1988 simply does not apply where a plaintiff(s) sue a federal agency or federal officials for a violation of constitutional rights. Venus, supra, at 520. See also Premachandra v. Mitts, 753 F.2d 635 (8th Cir.1985) (en banc). Therefore, the Court must conclude that plaintiffs are not entitled to attorney fees from HUD on the basis of 42 U.S.C. § 1988.

FEES UNDER 28 U.S.C. § 2412(b)

The EAJA, 28 U.S.C. § 2412(b) provides that:

Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.

Plaintiffs contend that the intent of this statute and the intent of the legislative history underlying the statute was that the United States would be treated as any other party in litigation and would be held liable for attorneys fees to the extent that such statutes specifically provide for such an award. Thus, plaintiffs contend that since the CRAFAA specifically provides for the award of attorney fees against defendants on behalf of prevailing plaintiffs and since the United States is in an identical position to other defendants under both the CRAFAA and the EAJA, plaintiffs are entitled to an award of attorney fees on the basis of the provisions of 42 U.S.C. § 2412(b). As noted previously, defendant disputes this contention.

A number of courts have addressed the application of Section 2412(b) to cases involving federal officials that are analogous to actions brought under 42 U.S.C. § 1983. The prevailing view does not support an award of fees under § 2412 in such an action. See, e.g., Premachandra v. Mitts, supra; Lauritzen v. Lehman, 736 F.2d 550 (9th Cir.1984). Having considered the arguments of the parties in the instant case, as well as the various decisions which have addressed the application of Section 2412(b) to this type of action, the Court finds the reasoning and the conclusion of the Eighth Circuit’s en banc panel in Premachandra persuasive and applicable in the instant case. See Premachandra supra at 637-41. See also Venus v. Goodman, supra at 520-22; United States v. Miscellaneous Pornographic Magazines, 541 F.Supp. 122, 129 (N.D.Ill.1982). A literal reading of § 2412(b) does not make § 1988 applicable. See Venus, supra, at 521. Accordingly, the Court does not believe plaintiffs are entitled to an award for attorney fees based upon 28 U.S.C. § 2412(b).

CONCLUSION

For the reasons set forth above, plaintiffs’ motion for an award of attorney fees from defendant HUD is hereby DENIED.

IT IS SO ORDERED.

      . Neither plaintiffs' motion and reply nor the supporting memorandum provide any identification or explanation of any applicable common law grounds for the award of attorney fees in the context of this suit. Therefore, the Court will address only the alleged statutory basis for the award of fees to plaintiffs.

      . The Court does not believe a retroactive application of any new decision relied upon will constitute a "clear break” with the past nor be otherwise unfair. See Lawson v. Truck Drivers, Chauffers & Helpers, Local Union 100, 698 F.2d 250, 254 (6th Cir.) cert. denied, — U.S.-, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983); Chevron Oil v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971). This should be evident in the Court's decision and reasoning as set forth above.

      . The circumstances here appear to be very similar to those present in Citizens Coalition for Block Grant Complaince v. City of Euclid, 537 F.Supp. 422 (N.D.Oh.1982) aff'd 717 F.2d 964 (6th Cir.1983).

      . 42 U.S.C. § 1988 provides:
      In any action or proceeding to enforce a provision of Section 1981, 1982, 1983, 1985, and 1986 of this title, Title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.


author: PLUNKETT, District Judge.

text:
    Mary Ann J. STRAMA, Plaintiff, v. CITY OF CHICAGO, an Illinois municipal corporation, James Maurer, and Paul Lewis, Defendants.
    No. 84 C 7271.
    United States District Court, N.D. Illinois, E.D.
    Aug. 7, 1985.
    Rick M. Schoenfield, Ettinger & Schoenfield, Ltd., Chicago, 111., for plaintiff.
    Donald Hubert, Donald Hubert & Associates, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

In this suit, Mary Ann J. Strama (“Plaintiff”) alleges that the City of Chicago (the “City”), James Maurer (“Maurer”), the Executive Director of the Office of Municipal Investigation (the “OMI”), and Paul Lewis (“Lewis”), Assistant to Maurer (collectively, “Defendants”), violated her rights by firing her for sexual and political reasons. Plaintiff sues under 42 U.S.C. § 1983 for violations of her rights under Title VII, 42 U.S.C. § 2000e-5, the Fourteenth Amendment, the First Amendment, and the Shakman decree. Presently before us is Defendants’ motion to dismiss Plaintiff’s first amended complaint or sections thereof. For the reasons set forth below, Defendants’ motion is granted in part and denied in part.

Facts

For purposes of the motion to dismiss we take as true the limited allegations in Plaintiff’s amended complaint. Plaintiff was employed as an investigator in the OMI, a municipal corporation, for an unspecified period of time until she was discharged on September 16,1983. The decision to terminate her employment was made by Maurer and Lewis, who set or approved policy and custom regarding employment in the OMI. Other discharged OMI investigators were recalled, but Plaintiff was not. Plaintiff had properly performed the duties of her office. Her refusal to interact sexually with Maurer, Lewis and others in the OMI and politics were substantial motivating factors in Defendants’ decisions to terminate her employment and not to recall her. Plaintiff suffered financial loss and emotional distress as a result of her termination and failure to be reinstated, and seeks $70,000 in compensatory damages, additional punitive damages against Maurer and Lewis, and attorney’s fees.

Discussion

1. Timeliness

Defendants maintain that this suit is barred by laches, citing Kadon v. Bd. of Fire and Police Commissioners, 45 Ill.App.2d 425, 430, 195 N.E.2d 751, 754 (1st Dist.1964), and several other cases in which Illinois courts have required certain actions challenging employment terminations to be brought within six months of the date of termination. This suit was filed approximately eleven months after Plaintiff’s discharge.

Defendants properly look to state law to determine the timeliness of this § 1983 action. See Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). The state rules governing laches, however, generally apply only where equitable relief is sought. See Mother Earth, Ltd. v. Strawberry Camel, Ltd., 72 Ill.App.3d 37, 28 Ill.Dec. 226, 239, 390 N.E.2d 393, 406 (1st Dist.1979); Kadon, 45 Ill.App.2d at 430, 195 N.E.2d at 754 (reinstatement and back pay). Here, Plaintiff seeks damages only. Defendants request that we specially apply the laches doctrine to suits involving government employment so as not to disturb government services more than necessary. We see no reason to treat suits at law involving governmental employment decisions differently than § 1983 suits at law involving any other form of governmental action. Furthermore, delay is more likely to be prejudicial where suits seek reinstatement and back pay, which become more difficult to accord over time, than damages resulting from termination, which are relatively fixed. Accordingly, we apply the state statute of limitations for personal injury actions, see Garcia, — U.S. at-, 105 S.Ct. at 1947, which in Illinois is two years, Ill.Rev.Stat. ch. 110, § 13-202 (1983). Under this rule, Plaintiff’s suit is timely.

2. Municipal Liability

Municipalities are § 1983 “person^]” and can be sued for deprivations of federally secured rights where such deprivations are caused by the municipalities’ official policies or customs. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). The causation requirement “provides a fault-based analysis for imposing municipal liability.” City of Oklahoma City v. Tuttle, — U.S. -, -, 105 S.Ct. 2427, 2434, 85 L.Ed.2d 791 (1985) (plurality opinion) (footnote omitted). “Monell’s ‘policy or custom’ requirement ... was intended to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decisionmakers.” Id.

This case presents the question of a municipality’s liability for the acts of its decisionmakers. Plaintiff has alleged that Maurer and Lewis were municipal decision-makers. At issue are whether Plaintiff has successfully pled that their alleged acts reflected their policy or custom, and if not, whether an isolated act by individuals with the power to create city policy or custom is caused by the city for § 1983 purposes.

Plaintiff has not sufficiently pled that Maurer and Lewis acted pursuant to a policy or custom. While the complaint states that Maurer and Lewis set policy for OMI, “[njothing in the complaint suggests that the incident was other than an isolated one unrelated to municipal policy____” Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985). A policy need be applied only once to give rise to § 1983 liability, see Tuttle, — U.S. at-, 105 S.Ct. at 2435 (plurality opinion), at 2439-41 (Brennan, J., concurring), but here Plaintiff has provided no allegations, such as of intended future discrimination against other women employed by OMI, to suggest the existence of a policy.

This raises the second issue, namely, whether the Monell policy or custom requirement applies when the city has delegated policy-making authority to the person who performs the unlawful act. The Monell standard is based on the § 1983 requirement that the city have caused the deprivation of a constitutional or other right in order to be held liable. Respondeat superior liability for low level employees’ acts which are not taken pursuant to a policy or custom would nullify the causation requirement. Acts taken pursuant to an official policy or custom, on the other hand, are directly, not merely vicariously, attributable to the city. See Monell, 436 U.S. at 691-694, 98 S.Ct. at 2036-2038. In Monell itself, for example, the Court found that the city could be liable where the plaintiff class members claimed they were fired pursuant to a pre-existing, but newly invoked, official discriminatory policy. Id. at 660-661, 694-695, 98 S.Ct. at 2020-2021, 2037-2038. Where as here no official policy exists, the question is whether the city caused the alleged deprivations by delegating authority over the OMI’s employment decisions to Maurer and Lewis, which authority they exercised unlawfully.

A number of courts addressing this issue have found that a city can be found liable under Monell on the basis of an unconstitutional employment decision of one of its officials if the city has delegated final authority over such employment decisions to that official. See, e.g., Williams v. Butler, 746 F.2d 431, 434-439 (8th Cir.1984), and decisions of Second, Third, Fourth, Ninth, and Eleventh Circuits cited therein. At least one district court within the Seventh Circuit declined to follow these authorities, however, because of the seemingly contrary decision in Bell v. City of Milwaukee, 746 F.2d 1205, 1272 (7th Cir.1984). See Perry v. Larson, 599 F.Supp. 727, 731 (E.D.Wis.1984).

In Bell, plaintiffs contended that a defendant district attorney was an authoritative decision-maker for Milwaukee County and that the County should therefore be held liable under § 1983 for his participation in a conspiracy to cover up the facts relating to a fatal shooting by a Milwaukee police officer. The Seventh Circuit disagreed, stating:

This Court has acknowledged that at some level of authority, there must be an official whose acts reflect governmental policy, since the government necessarily acts through its agents. Reed v. Village of Shorewood, 704 F.2d 943, 953 (7th Cir.1983). Yet, as the district court observed, [the district attorney’s] partieipation in the conspiracy was simply conduct in a single case. A custom, policy, or practice of a county under Monell cannot normally be inferred from a single incident of unconstitutional behavior of a district attorney____ Plaintiffs presented no evidence that [the district attorney’s] conduct in [this] matter was indicative of a multi-case pattern of unconstitutional activity on his part, or evidence linking his conduct with the policy of County officials.

746 F.2d at 1272 (citations omitted). This discussion led the Perry court to conclude:

In this circuit, then, the focus is not upon whether there exists a policy of delegating final authority to local officials who may then exercise that authority in a manner that occasionally reaps an unlawful result. Rather, the focus is on whether the act or decision alleged to be unlawful in a particular case is part of a pattern of activity that can be characterized as a policy or custom.

599 F.Supp. at 731.

We are less certain as to Bell’s meaning. As quoted above, Bell relied on Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir.1983) for the proposition that “at some level of authority, there must be an official whose acts reflect governmental policy____” In Reed, the court wrote, “The plaintiffs contend that interference with their business was a policy orchestrated at the highest level of government in the Village of Shorewood. If so ... the Village would be liable.” Id. at 953. This conclusion about acts pursuant to an “orchestrated” “policy” is directed by Monell. The court continued in broader terms, however, “The official acts of municipal policy makers are acts of the municipality for purposes of Section 1983 liability. See Schneider v. City of Atlanta, 628 F.2d 915, 920 (5th Cir.1980); Black v. Stephens, 662 F.2d 181, 191 (3d Cir.1981).” Id.

The Schneider case cited by Reed presents the position of the circuits reflected in Williams v. Butler, rather than the Bell position. In Schneider, a jury found that the plaintiff, a former correctional officer, was constructively discharged by one Hudson, the Director of the Bureau of Corrections, in retaliation for exercising her first amendment rights. Discussing the liability of the city, the court wrote, “At least in those areas in which Director Hudson, alone, ‘is the final authority or ultimate repository of [city] power his official conduct and decisions must necessarily be considered those of one “whose edicts or acts may fairly be said to represent official policy” for which the [city] may be held responsible under § 1983.’ ” 628 F.2d at 920 (citations omitted).

Granting the difficulty of harmonizing the holding in Bell with that of Schneider, our best judgment as to how to interpret the controlling law dictates that we not dismiss the City of Chicago at this stage of the case. The Seventh Circuit has twice, in Bell and Reed, stated that “at some level of authority” an official’s acts are attributable to the city. Schneider, one of the cases cited for that proposition, identifies that level of authority as that of an official who is the “final authority or ultimate repository of [city] power” in a given area. Moreover, the Supreme Court’s statements in Tuttle suggest by negative implication that a municipality is liable when “wrong [can] be ascribed to municipal decisionmakers” regardless of whether a policy or custom exists. Accordingly, Plaintiff is entitled to relief from the city if she can prove that Maurer and Lewis deprived her of federally-secured rights and that they were final authorities or repositories of the city’s power with regard to employment decisions for OMI.

We note that the Supreme Court has granted certiorari to address this issue of municipal liability for discrete acts of policymakers. Pembaur v. City of Cincinnati, 746 F.2d 337 (6th Cir.1984), cert. granted, — U.S. -, 105 S.Ct. 3475, 87 L.Ed.2d 611 (1985). Should the Court’s decision affect the validity of our holding, we will of course reconsider at that time.

3. Title VII

It is undisputed that Plaintiff has not met the jurisdictional prerequisites to bringing a suit under Title VII for sexual harassment. Plaintiff contends, though, that she can bring a § 1983 claim to redress the violation of her rights under Title VII, and thereby avoid the requirements of Title VII. We disagree, for the reasons discussed with respect to the relationship between 42 U.S.C. § 1985(3) and Title VII in Great American Federal Savings & Loan Assoc. v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). From the comprehensive nature of Title VII’s jurisdictional prerequisites and remedial scheme, we presume congressional intent to preclude recovery for Title VII violations under § 1983. See Middlesex County Sewerage Authority v. Nat’l Sea Clammers Assoc., 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981). Accord Woerner v. Brzeczek, 519 F.Supp. 517, 519 n. 2 (N.D. Ill.1981); Le Boeuf v. Ramsey, 503 F.Supp. 747, 754 (D.Mass.1980), rev’d on other grounds, 677 F.2d 158 (1st Cir.), rev’d en banc, 706 F.2d 1 (1st Cir.1982); cert. denied, 464 U.S. 1017, 104 S.Ct. 547-548, 78 L.Ed.2d 722 (1983). But see Huebschen v. HHS, 547 F.Supp. 1168, 1173-1175 (W.D. Wis.1982), rev’d on other grounds, 716 F.2d 1167 (7th Cir.1983).

4. Fourteenth Amendment

A plaintiff may sue under § 1983 for violations of the fourteenth amendment without suing under Title VII even though the facts suggest a violation of Title VII as well. Trigg v. Fort Wayne Community Schools, 766 F.2d 299, 301-302 (7th Cir. 1985). Defendants maintain, however, that Plaintiffs allegations of sexual harassment do not state a claim under the Equal Protection Clause of the fourteenth amendment.

In Huebschen v. HHS, 716 F.2d 1167, 1171-1172 (7th Cir.1983), the Seventh Circuit held that sexual harassment does not violate the equal protection clause when it is aimed at a plaintiff merely as an individual. Specifically, in Huebschen the defendant, a female supervisor, harassed the plaintiff not because he was a male but because he was a former lover who had spurned her. Id. at 1172. The court’s reasoning dictates that Plaintiff can prevail, nonetheless, if she can prove that Defendants harassed her sexually as a way of discriminating against her because she is a woman. Indeed the court distinguished Woerner v. Brzeczek, 519 F.Supp. 517 (N.D.Ill.1981), which held to that effect, from the case before it as an example of a cognizable fourteenth amendment claim of sexual harassment. Cf. Geduldig v. Aiello, 417 U.S. 484, 496 n. 20, 94 S.Ct. 2485, 2492 n. 20, 41 L.Ed.2d 256 (1974) (distinctions between pregnant women and “non-pregnant people” violate equal protection clause only where they are pretexts for gender-based discrimination). Accordingly, Plaintiff must be given an opportunity to prove that Defendants sexually harassed her in order to discriminate against her as a woman.

5. Conclusory Allegation

In Count II, Plaintiff alleges only the following fact in support of her allegation that Defendants violated the first and fourteenth amendments and the Shakman decree: “Political reasons were a substantial motivating factor in the defendants’ decision to terminate the plaintiff’s employment, and not to recall plaintiff to work in 1983.” Defendants move to dismiss, contending that Plaintiff’s allegation is conclusory and fails to state a claim. We agree. While it is true that dismissal is improper unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief,” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted), Plaintiff must make a “ ‘short and plain statement of the claim’ that will give the defendants] fair notice of what plaintiff’s claim is and the grounds upon which it rests.” Id. at 47, 78 S.Ct. at 103 (footnote omitted). Plaintiff’s statement makes clear what her claim is, but not the grounds upon which it rests. This omission requires dismissal. See Strauss v. City of Chicago, 760 F.2d 765, 767-768 (7th Cir.1985). Whereas Plaintiffs Count I allegation of sexual harassment is just barely adequate to suggest underlying facts, namely, that Plaintiff resisted sexual overtures made by Defendants and others in the OMI, Count II provides no similar indication of what role politics played in Plaintiffs alleged discharge. As a result, we dismiss Count II without prejudice. Accordingly, we need not consider the remainder of Defendants’ contentions with regard to Count II.