author: FORRESTER, District Judge.

text:
    Joseph STASSI, Sr., Petitioner, v. Marvin S. HOGAN, Warden, United States Penitentiary, Atlanta; Norman Carlson, Director of the United States Bureau of Prisons; Maurice Sigler, Chairman of the United States Board of Parole, Respondents.
    Civ. A. No. C75-906A.
    United States District Court, N.D. Georgia, Atlanta Division.
    March 28, 1985.

      Joseph Stassi, Sr., pro se.
    Robert Ross, Asst. U.S. Atty., Atlanta, Ga., for respondents.
   ORDER

FORRESTER, District Judge.

This action is before the court on the petitioner’s motion to have the respondents held in civil contempt and on the government’s motion to have certain exhibits filed under seal and other exhibits taken for an in camera inspection. The exhibits which are the subject of the government’s motion are the various documents, letters, memoranda, and judicial opinions which make up petitioner’s official parole commission file. Exhibits 1, 4, 6, and 44 are highly confidential, and the government asks that those exhibits be reviewed only by the court. The other exhibits are also confidential but the government has no objection to Mr. Stassi examining them. As petitioner has not filed any response to the government’s motion, the motion is deemed unopposed and is GRANTED. Exhibits 2, 3, and 7-43 shall be filed under seal. Exhibits 1, 4, 6, and 44 shall be reviewed in camera by the court and returned to the government.

Petitioner’s petition to have the respondents held in civil contempt is based upon respondents’ alleged failure to comply with a series of orders entered in this case in 1975 by the late Judge Edenfield. Judge Edenfield concluded that petitioner’s procedural due process rights had been violated because he had been classified as a “Special Offender” without notice or a fair opportunity to challenge the designation. Judge Edenfield concluded that this designation impacted upon petitioner’s ability to get a fair parole hearing. Stassi v. Hogan, 395 F.Supp. 141 (N.D.Ga.1975). Judge Edenfield subsequently ordered the government to expunge from petitioner’s prison records the “Special Offender” designation and the materials on which it was based. Judge Edenfield further ordered the government to grant petitioner a new parole hearing with the files properly purged. Order of August 12, 1975. Finally, Judge Edenfield ordered that the new parole hearing be conducted by hearing examiners who “to the maximum extent possible have no prior knowledge whatsoever of petitioner’s prior ‘special offender’ classification or of materials or information contained in his file on which such a designation was made.” Order of October 15, 1975.

The government appealed Judge Eden-field’s order, and the Fifth Circuit entered a stay pending appeal of a portion of the order not relevant to the present petition. Stassi v. Hogan, No. 75-3176 (5th Cir. Sept. 5, 1975). After the court of appeals denied the stay as to the remaining parts of Judge Edenfield’s order, a parole hearing was held in accordance with Judge Eden-field’s directives. On October 23, 1975 petitioner was granted parole effective December 9, 1975, to an approved plan.

Petitioner’s expectation of freedom was short-lived, however. Prior to the effective parole date petitioner was convicted in the Southern District of New York of importing heroin. On November 25, 1975 the parole board reopened and retarded petitioner’s parole. On February 27, 1976 petitioner received an additional 30-year sentence to run concurrent with the 18-year sentence he had been previously serving. On June 24, 1976 the parole board conducted a hearing and decided that, based on the conviction and sentence imposed by the Southern District of New York, petitioner’s parole should be rescinded. The parole board notified petitioner on July 21, 1976 that because of the subsequent conviction and sentence he was not eligible for parole until May 4, 1977. Petitioner has been reviewed for parole on at least four separate occasions since that time, and on each occasion the parole board has denied the request based on the severity of his offenses.

Petitioner’s motion to have the respondents held in civil contempt is based upon the fact that certain documents presently in his parole file still bear the “Special Offender” designation, and other documents provide the information upon which such designation was based. Petitioner contends that the existence of such documents in his parole file is in direct violation of Judge Edenfield’s order of August 12, 1975. Petitioner further complains about the fact that J. Robert Cooper, the Assistant U.S. Attorney who represented the government on petitioner’s habeas corpus petition, sat as an en banc Parole Commissioner when the commission reviewed petitioner’s case in 1977. Petitioner claims that this violated Judge Edenfield’s order of October 15, 1975, which required that the members of the Board hearing petitioner’s case for parole have “to the maximum extent possible” no prior knowledge of petitioner’s prior “Special Offender” status.

After reviewing Judge Edenfield’s orders, all of the documents in the file, and the pleadings of the parties, the court cannot say that there is clear and convincing evidence that respondents have violated Judge Edenfield’s orders. Judge Edenfield ordered respondents to expunge from petitioner’s file any documents bearing the special offender label and any documents which provided the basis for that designation. This the respondents did. Judge Edenfield ordered respondents to give petitioner a new parole hearing in the absence of such documents before commissioners who, to the greatest extent possible, had no knowledge of his prior designation as a special offender. Respondents also did this. Petitioner got his second parole hearing free from any evidence of his special offender status and in fact was granted parole. The fact that his parole was rescinded was due to his subsequent conviction and sentence rather than his prior designation as a special offender. The fact that petitioner had been designated a special offender does not appear to have been considered by the parole commission at all.

Judge Edenfield’s order to expunge the special offender designation and supporting documents from petitioner’s file was based upon his conclusion that designating petitioner as a special offender without notice and a fair opportunity to be heard violated his procedural due process rights and adversely affected his chances for parole. However, as Judge Edenfield subsequently decided in Mayo v. Sigler, 428 F.Supp. 1343 (N.D.Ga.1977) parole decisions are not influenced in any significant way by the special offender designation. The special offender designation “is primarily an administrative device whereby the Bureau [of Prisons] insures that certain prisoners are not transferred to other prisons or allowed to participate in community programs without prior approval from the Bureau’s central office.” Id. at 1349. The requirements of procedural due process do not apply to such administrative designations. Makris v. United States Bureau of Prisons, 606 F.2d 575 (5th Cir.1979); Solomon v. Benson, 563 F.2d 339 (7th Cir.1977); Mayo v. Sigler, 428 F.Supp. 1343 (N.D.Ga.1977); see Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). Thus, the reasoning upon which Judge Edenfield’s original order was based — that petitioner was deprived of procedural due process by being designated a special offender without notice and an opportunity to be heard — is no longer valid, and the fact that some documents in his file may still bear that designation does not deprive him of any rights. Since the purpose of civil contempt is remedial rather than to vindicate the authority of the court, and since it does not appear that petitioner today would be entitled to the relief granted under the original order, the court cannot find respondents in civil contempt even if they have not complied with Judge Edenfield’s order.

One final reason for denying petitioner’s petition is that petitioner has known at least since 1980 that he has been designated as a Central Monitoring Case. In fact, after being advised of his status as a Central Monitoring Case and the effect thereof, petitioner signed a statement that he did not object to such designation. If petitioner was given notice of his designation as a Central Monitoring Case and an opportunity to object and did not do so, it is difficult to see how he could possibly be harmed by the existence in his files of documents designating him as a special offender, a term which has almost precisely the same meaning as a Central Monitoring Case.

In sum, the court finds a lack of clear and convincing evidence that respondents violated a valid court order. Further, the court holds that even if respondents had violated the order petitioner would not be entitled to the remedy of civil contempt because the reasoning on which the underlying order was based has been subsequently overruled and because petitioner cannot show any harm flowing from his continued designation as a special offender. The petition to have respondents held in civil contempt is DENIED. This action is hereby DISMISSED.

      . The hearing at .which Cooper sat occurred after the parole was rescinded. Cooper has submitted an affidavit that he did not let his knowledge of petitioner’s prior designation as a special offender influence his deliberations during that hearing. The court sees no evidence that the order of October 15, 1975 was violated.

      . The Central Inmate Monitoring System replaced the special offender designation system in 1976. Although there are differences in the manner in which the designation is made and the prisoner is notified of the designation, being designated a Central Monitoring Case has virtually the same effect as the prior special offender designation. It is an administrative designation which insures that certain classes of prisoners not be transferred to other institutions or be allowed to participate in community programs without the approval of the Bureau of Prisons. Mayo v. Sigler, supra at 1345.


source: Caselaw Access Project

author: WEXLER, District Judge.

license: Public Domain

text:
    Michael A. LEGUTKO, Patrick Walters, Steven Agnostakios, and John T. Golinski, on behalf of Themselves and Others Similarly Situated, Plaintiffs, v. LOCAL 816, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, and International Brotherhood of Teamsters and Wallack Freight Lines, Defendants.
    No. CV84-1395.
    United States District Court, E.D. New York.
    March 29, 1985.

      Hall, Clifton & Schwartz by Arthur Schwartz, New York City, for plaintiffs.
    Cohen, Weiss & Simon by Jani Rachel-son, New York City, for defendant Local 816.
    Shaw, Goldman, Licitra, Levine & Weinberg, Garden City, N.Y. for defendant Wallack Freight Lines.
    Herbert New, Clifton, N.J., co-counsel for defendant Wallack Freight Lines.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

This is a labor case.

Plaintiffs have moved to amend their complaint, for class certification, and for partial summary judgment. Defendant Wallack has moved for summary judgment and to strike plaintiffs’ jury demand. Defendant Local has moved for summary judgment.

We see no reason to deny plaintiffs leave to amend their complaint. Accordingly, the proposed second amended complaint may be filed.

I. FACTS

Plaintiffs’ version of the facts is as follows:

In June 1982 defendant Wallack Freight Lines, plaintiffs’ employer, proposed a one-year rider to a pre-existing contract between the employer and the defendant union local. The rider included a provision for a five-day work week and a ten-hour work day without overtime pay. The local conducted a vote on the.rider. The vote was 23-12 against the rider. Ten days later, without advanced notice, the local conducted a second vote. The vote was 18-17 in favor of the rider, with 3 union members not present. The local then executed the rider.

In August 1982 plaintiff Legutko circulated a petition among his co-workers. The petition requested the International Union to intervene. The employer’s officer took the petition from Legutko and threatened to fire him if he circulated the petition any further.

In June 1983 the local conducted a vote on whether to extend the rider for another year. The vote was 22-12 against extension. Despite the vote, the local executed an extension of the rider, contending that a two-thirds majority was required for rejection of the extension.

In August 1983 plaintiff Legutko asked the International Union to intervene. It did not do so.

In June 1984 the local again conducted a vote on the rider. The vote was 23-18 against the rider. The local did not execute the rider. The employer began paying overtime. In September 1984 the local conducted a second vote. The vote was 36-12 in favor of the rider.

Plaintiffs assert nine causes of action:

1. The June 1982 execution of the rider by the local following its initial rejection by a majority of the membership and subsequent approval by less than a majority of the total membership in a vote taken without advanced notice violated the International Union’s constitution, and so violated 29 U.S.C. § 185 and state common law.

2. and 3. The June 1982 actions by the local violated 29 U.S.C. § 411(a)(1), which concerns equality of union member voting rights.

4. The June 1983 execution of the rider by the local despite its rejection by a majority vote violated the International Union’s constitution, and so violated 29 U.S.C. § 185 and state common law.

5. The June 1983 action by the local violated 29 U.S.C. § 411(a)(1), which concerns equality of voting rights.

6. The employer’s failure to pay overtime breached the contract as the contract would have read without the rider, in violation of 29 U.S.C. § 185.

7. The employer’s failure to pay overtime violated 29 U.S.C. § 207(a)(1), which concerns overtime.

8. The September 1984 decision by the local to conduct a second vote violated 29 U.S.C. § 411(a)(1), concerning equality of voting rights. Plaintiffs also assert a claim against the International Union for its failure to intervene since August 1983, although the legal basis for this claim appears ambiguous.

9. The August 1982 threat by the employer’s officer to discharge Legutko if Legutko continued to circulate a petition violated 29 U.S.C. § 215(a)(3).

II. STATUTE OF LIMITATIONS

Defendants contend that the first five causes of action are barred by the six month limitation established in DelCostello v. International Broth, of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). There, the Court borrowed the six month limitation for bringing charges of unfair labor practices before the NLRB under 29 U.S.C. § 160(b) and applied it to a suit by an employee against an employer for breach of contract and against the union for mishandling of the ensuing grievance or arbitration.

A. CLAIMS UNDER 29 U.S.C. § 411

The Supreme Court in DelCostello emphasized that virtually all unfair labor practice charges made by workers against unions involve allegations of unfair, arbitrary, or discriminatory treatment of workers by unions. 103 S.Ct. at 2293-2294. The Court thus implied that cases involving allegations of unfair, arbitrary, or discriminatory treatment by unions of workers should ordinarily be governed by the six month limitation for bringing charges of unfair labor practices before the NLRB. Actions brought under 29 U.S.C. § 412 for violations of the union members’ “bill of rights” set forth in 29 U.S.C. § 411 certainly involve such allegations of unfair, arbitrary, or discriminatory treatment. Accordingly, this Court has previously applied a six month limitation for such actions. Turco v. Local Lodge 5, Int. Broth, of Teamsters, 592 F.Supp. 1293 (E.D.N.Y.1984) (Wexler, J.); Agola v. Hagnar, No. CY 82-0013 (E.D.N.Y. 9/24/84) (Mishler, J.). Although there is authority from this Court for the proposition that a six month limitation will not apply in suits which do not implicate the rights of an employer, Gordon v. Winpisinger, 581 F.Supp. 234 (E.D.N.Y.1984) (McLaughlin, J.), that view has not been adopted in several other decisions by this Court, Turco; Agola; Monarch Long Beach Corp. v. Soft Drink Workers, 593 F.Supp. 384 (E.D.N.Y.1984) (Wexler, J.).

In the instant case, plaintiffs’ claims against the union local for violations of equal voting rights under 29 U.S.C. § 411(a)(1) are closely related to breach of contract claims against the employer under 29 U.S.C. § 185. Plaintiffs contend that the employer knew that the local acted illegally, that the employer therefore cannot rely upon the local’s ratification of the rider, and that the employer is therefore liable for breach of the contract as the contract would have read without the rider. Consequently, the instant suit is closely analogous to the type of “hybrid” suit involved in DelCostello. Hence, even under this Court’s reasoning in Gordon it would appear that the instant claims under 29 U.S.C. § 411(a)(1) should be governed by a six month limitation. Further, the instant case is very similar to an earlier case handled by this Court, Costanzo v. United Parcel Service, Inc., 573 F.Supp. 1118 (E.D.N.Y.1983) (Nickerson, J.). There, this Court applied a six month limitation to a suit against a union for breach of the duty of fair representation by ratifying a contract without membership approval, and against an employer for “joining in the breach”. Further, even if plaintiffs in the instant suit had not sued the employer, their claims against the union would still be closely involved with the process of collective bargaining agreement formation. The Court in DelCosello suggested that suits involved with the formation of collective bargaining agreements and the private settlement of disputes under them should not be governed by state law limitations. 103 S.Ct. at 2289.

For the above reasons, we hold that the instant claims for violation of equal voting rights in connection with a contract ratification vote under 29 U.S.C. § 411(a)(1) are governed by a six month limitation borrowed from 29 U.S.C. § 160(b). Consequently, the second, third, and fifth causes of action are timed-barred and will be dismissed. We do not at the present time determine whether the precise facts alleged in the complaint make out a violation of 29 U.S.C. § 411(a)(1) by the local. We also do not address the issue of whether and under what circumstances a contract will be voided if the contract was ratified by a union as a result of procedures violative of 29 U.S.C. § 411(a)(1).

B. CLAIMS UNDER 29 U.S.C. § 185

The first and fourth causes of action deal with alleged violations of the international union constitution and are brought under 29 U.S.C. § 185.

Before determining the proper limitation for these claims, we will first determine whether these claims are authorized under 29 U.S.C. § 185.

1. STANDING

Suits, such as the instant suit, for breach of a union constitution, are not perfectly analogous to ordinary breach of contract actions under 29 U.S.C. § 185. Nevertheless, an international union constitution is a “contract” within the meaning of 29 U.S.C. § 185. United Ass’n of Journeymen v. Local 334, 452 U.S. 615, 101 S.Ct. 2546, 69 L.Ed.2d 280 (1981).

Although the Supreme Court has not yet decided whether individual union members can sue for a breach of an international union constitution, id., 452 U.S. at 627 n. 16, 101 S.Ct. at 2553, n. 16, the Second Circuit has implied that individual union members can under certain circumstances sue an international union on the basis of a charter granted by an international union to a union local, Abrams v. Carrier Corp., 434 F.2d 1234, 1248 (2d Cir.1970), and has allowed individual members of one union to sue another union on the basis of the AFL-CIO Constitution, Santos v. Dist. Council of New York City, Etc., 547 F.2d 197, 199-201 (2d Cir.1977). This Court has recently held that individual union members may sue their international union for breach of an international union constitution provision concerning strike benefits, provided that the union local has in bad faith refused a demand by such members that the local request action by the international, or in the alternative that such a demand would be futile. Agola v. Hagnar, No. CV 82-0013 (E.D.N.Y. 9/24/84) (Mishler, J.). There, Judge Mishler upheld a suit by a group of union dissidents against both the local and international union, in which plaintiffs alleged that both had breached the international constitution by failing to provide strike benefits. Judge Mishler found that a demand on the local would have been futile. This Court in Gordon v. Winpisinger, 581 F.Supp. 234, 239 (E.D.N.Y.1984) (McLaughlin, J.), upheld a suit by individual union members against an international union, in which plaintiffs alleged that the international breached its own constitution by violating plaintiffs’ right of free speech and assembly. Judge McLaughlin noted that these rights are “uniquely personal”. The Supreme Court has held that 29 U.S.C. § 185 authorizes suits by individuals for violation of uniquely personal rights. Hines v. Anchor Motor Freight, 424 U.S. 554, 562, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976).

In the instant case, plaintiffs allege that the union local violated the international union constitution in respect to voting procedure. The significance to the individual of voting rights is borne out by Congress’s enactment of 29 U.S.C. § 411(a)(1) and § 412, which authorize ■ suits by individual union members for certain types of improprieties in voting procedure. Although we are concerned in this part of the opinion with violations of the union constitution rather than with violations of § 411 and § 412, the existence of those sections nevertheless suggests the propriety of recognizing the standing of individuals to sue for violations of a union constitution in respect to voting procedures under 29 U.S.C. § 185. The Supreme Court’s recognition of standing for individual citizens to sue for reapportionment, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), lends further support to the significance to the individual of union voting rights, especially since a union local is generally much smaller than the type of political subdivision typically involved in a reapportionment case.

For the above reasons, we hold that plaintiffs herein have standing to sue their union local for alleged violations of the international union constitution in respect to voting procedure, pursuant to 29 U.S.C. § 185. We do not at the present time determine whether plaintiffs’ interpretation of the union constitution is correct.

2. LIMITATION

We will now determine the proper limitation for plaintiffs’ claims under 29 U.S.C. § 185.

In Auto Workers v. Hoosier Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966), the Court looked to state law for a limitation on straightforward breach of contract actions under 29 U.S.C. § 185. In that particular case, the Court applied Indiana’s six year limitation. In DelCostello the Court cited Hoosier with approval. Hoosier is thus still good law. O’Hare v. General Marine Transport Corp., 740 F.2d 160, 167-168 (2d Cir.1984).

This Court has previously applied New York’s six year limitation for breach of contract actions under CPLR § 213(2) to suits for breach of a union constitution under 29 U.S.C. § 185. Gordon v. Winpisinger, 581 F.Supp. 234 (E.D.N.Y.1984) (McLaughlin, J.); Agola v. Hagnar, No. CV 82-0013 (E.D.N.Y. 9/24/84) (Mishler, J.).

There is a great deal to be said for the proposition that suits for breach of a union constitution under 29 U.S.C. § 185 should ordinarily be governed in New York by the six year limitation of CPLR § 213(2). A union constitution is in many respects analogous to an ordinary contract. A suit for breach of a union constitution will not invariably (and perhaps not even in a majority of cases) involve allegations of union action that is intrinsically unfair, arbitrary, or discriminatory. There is thus no strong “family resemblance” between the class of suits for breach of a union constitution and unfair labor practice charges. Consequently, it is quite possible that there should be a general rule that suits for breach of a union constitution should be governed by a six year limitation in New York, and that this rule should not be disregarded in a given case merely because the particular case happens to involve allegations of unfair, arbitrary, or discriminatory treatment.

The instant suit differs radically from an ordinary suit for breach of contract. As already noted, plaintiffs’ contention that the local acted improperly in ratifying the rider is closely related to a contention that the employer can claim no rights under the rider, so that this suit is analogous to the “hybrid” suit in DelCostello. Here, as in DelCostello, plaintiffs’ suit relates to a process the federal labor law is designed to promote (in this case, the formation of a collective bargaining agreement), and to the stability of the bargaining relationship. Even had plaintiffs chosen not to sue the employer, the suit against the union would still be so closely connected with the process of collective bargaining agreement formation as to justify application of a six month limitation.

For the above reasons, we hold that the instant suit against the union local under 29 U.S.C. § 185 for breach of the international union constitution in respect to contract ratification voting procedures, is governed by a six month limitation borrowed from 29 U.S.C. § 160(b). Consequently, the first and fourth causes of action are time-barred and must be dismissed.

III. OVERTIME CLAIMS UNDER 29 U.S.C. § 207

Plaintiffs’ seventh cause of action asserts a claim against the employer under 29 U.S.C. § 207(a)(1), which provides that an employer must pay extra for overtime. The employer relies upon 29 U.S.C. § 213(b)(1), which exempts from the overtime statute “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49”. Although 49 U.S.C. § 304 has been repealed, its provisions authorizing the Secretary to establish qualifications and maximum hours of service have been recodified at 49 U.S.C. § 3102. All references to the old law are deemed references to the corresponding provisions of the recodification. Pub.L. No. 97-449, § 6(b), 96 Stat. 2413, 2443 (1983). Under 49 U.S.C. § 3102(b)(2) the Secretary of Transportation may prescribe requirements for qualifications and maximum hours of service of employees of a motor private carrier, such as the employer in the instant case. However, § 3102 applies only in certain situations. In the instant case, we are concerned with the. statement in § 3102(a) that “this section applies to transportation described in [49 U.S.C. § 10521].” Transportation described in 49 U.S.C. § 10521 does not include purely intrastate transportation.

Plaintiffs have asserted in an unsworn memorandum that one plaintiff, Arthur Mason, was not involved in interstate commerce.

Plaintiffs other than Arthur Mason are involved in interstate transportation described in 49 U.S.C. § 10521. The Secretary of Transportation may therefore prescribe qualifications and maximum hours of service for such other plaintiffs pursuant to 49 U.S.C. § 3102(b)(2). Such other plaintiffs are thus exempt from the overtime statute under 29 U.S.C. § 213(b)(1). Consequently, such other plaintiffs’ overtime claims under 29 U.S.C. § 207(a)(1) must be dismissed.

With respect to plaintiff Arthur Mason, the facts concerning the nature of his employment have not been developed. We do not at this time address the issue of the precise set of facts necessary to exempt an employee under 29 U.S.C. § 213(b)(1). We note however, that the exemption has been interpreted quite broadly. See, e.g., Griffin v. Consolidated Foods Corporation, 587 F.Supp. 921 (W.D.N.C.1984).

IV. CLAIM UNDER 29 U.S.C. § 215 (PROTECTED ACTIVITY)

Under U.S.C. § 215(a)(3), it is unlawful for any person “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted any proceeding under or related to this chapter [the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201-219], or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee”. Plaintiff Legutko contends that the employer violated this provision by threatening to discharge Legutko if Legutko continued to circulate a petition requesting the international union to intervene and stop alleged abuses by the union local.

Legutko, at the time of the alleged incident, had not filed any formal complaint or instituted any formal proceeding. As this Court has previously suggested, however, a statute protecting employees against adverse retaliatory action for protected activities should be construed broadly, and should be construed to encompass not only the institution of formal governmental proceedings, but also complaints to private parties, since such complaints may represent a first step in a process culminating in the initiation of formal proceedings. Donovan v. Diplomat Envelope Corp., 587 F.Supp. 1417, 1424-1425 (E.D.N.Y.1984) (motion to dismiss denied), judgment after trial for defendants affd on other grounds, Docket No. 84-6330 (2d Cir. 2/1/85). Consequently, Legutko’s attempt to request the international union to prevent a perceived violation of the overtime provision of 29 U.S.C. § 207(a)(1) was a protected activity under § 215(a)(3), and Legutko’s allegation in the ninth cause of action that the employer threatened to fire him for such protected activity states a claim for which relief can be granted under § 216(b), irrespective of the merits of the substantive overtime claim under § 207(a)(1). While the scope of relief available might be somewhat limited in view of the fact that the employer did not in fact discharge Legutko, we believe that a threat of discharge, if proven, would justify at least some relief; to allow a threat of illegal adverse action to go unnoticed would be to largely undermine the function of § 215(a)(3).

V. CLAIM AGAINST EMPLOYER FOR BREACH OF CONTRACT UNDER 29 U.S.C. § 185

The employer has moved to dismiss the breach of contract claim on the ground that the local had apparent authority to ratify the rider. Examination of the papers submitted shows that there is a genuine dispute as to whether the local had such apparent authority. The employer’s motion will therefore be denied. We do not at the present time address the issue of the appropriate limitation for breach of contract actions of this type, involving a dispute over the voting procedure employed in a ratification vote.

VI. THE EIGHTH CAUSE OF ACTION

Plaintiffs have sought summary judgment with respect to the eighth cause of action. Since plaintiffs are only now being given leave to file the second amended complaint, it is too early to consider a motion for summary judgment by plaintiffs.

VII. MOTION TO STRIKE JURY DEMAND

The employer has moved to strike plaintiffs’ demand for a jury trial, on the ground that only equitable relief is sought. However, plaintiffs’ claim for breach of contract is surely legal in nature and hence triable by jury. The jury demand will therefore not be stricken.

VIII. CLASS CERTIFICATION

Plaintiffs have moved for class certification.

We have dismissed the first five causes of action in their entirety, and dismissed the seventh cause of action in part. It is possible that the sixth and seventh causes of action will soon be dismissed in their entirety. The ninth cause of action involves only the rights of Legutko and is inappropriate for a class action.

In view of the rapidly changing nature of this case, we will not decide the class certification motion at the present time. We will allow the parties to submit papers on whether the sixth and seventh causes of action should be dismissed in their entirety. Afterwards, we will allow plaintiffs to make a new motion for class certification.

IX. CONCLUSION

It is ORDERED that:

1. The Clerk shall not enter judgment at this time;

2. Plaintiffs’ motion for leave to file an amended complaint is granted, and the “Second Amended Class Action Complaint” which was submitted December 5, 1984 is deemed the complaint;

3. The first five causes of action are stricken on the ground that they are time-barred;

4. Wallack’s motion for summary judgment on the sixth cause of action (breach of contract) is denied, without prejudice to Wallack’s right to raise a statute of limitation defense;

5. Wallack’s motion for summary judgment on the seventh cause of action (statutory overtime claim) is granted, except with respect to plaintiff Arthur Mason;

6. Plaintiffs shall show cause why the seventh cause of action should not be dismissed with respect to plaintiff Arthur Mason, by submitting papers within two weeks of notice of this order;

7. Plaintiffs’ motion for summary judgment on the eighth cause of action is deemed premature;

8. Wallack’s motion for summary judgment on the ninth cause of action (protected activity) is denied.

9. ■ Wallack’s motion to strike the jury demand is denied.

10. Plaintiffs’ current motion for class certification is deemed moot, without prejudice to plaintiffs’ right to make a new motion for class certification in the future.

SO ORDERED.


author: WARREN, District Judge.

text:
    Linus VANDERLOOP, Plaintiff, v. MISSOURI PACIFIC RAILROAD CO., Defendant.
    No. 83-C-2005.
    United States District Court, E.D. Wisconsin.
    March 29, 1985.
    David D. Brown, Brown, Converse, Ever-son & Newlum, Green Bay, Wis., for plaintiff.
    James G. Curtis, Hale, Skemp, Hanson & Skemp, LaCrosse, Wis., for Missouri Pacific.
    James H. Morgan, Morgan Law Office, Dedarburg, Wis., for Brillion and Forest Junction.
   DECISION AND ORDER

WARREN, District Judge.

BACKGROUND

This action was initiated on December 23, 1983, when the plaintiff, a dealer of hay and cattle feed, filed his complaint against defendants Brillion and Forest Junction Railroad Company and Missouri Pacific Railroad Company, alleging negligence and breach of contract in their failure to collect certain sums of money due the plaintiff upon delivery of some seven shipments of hay to an eventual consignee, Delton Weatherly. Specifically, the complaint charges that the subject hay shipments originated from Brillion, Wisconsin, with defendant Brillion and Forest Junction Railroad Company; that the connecting carrier, the Missouri Pacific Railroad Company, delivered the shipments to Little Rock, Arkansas; that “all of the shipments were made with sight drafts and order bills of lading directing that the delivering carrier collect all monies due from the consignee and that the same be credited to the account of the plaintiff ... ”; and that while the subject deliveries were completed, the defendant-carriers were negligent and acted in breach of contract by failing to collect those monies owing from the consignee under the terms of the sight drafts and the order bills of lading. Based on these principal allegations, the plaintiff seeks $18,173.61 plus interest from January 15, 1981, the date of the last shipment, as damages against the defendants, both jointly and severally liable.

On January 18, 1984, defendant Brillion and Forest Junction Railroad Company filed its answer to the plaintiffs complaint, denying all substantive allegations therein and raising three affirmative defenses— among them, that this action was not commenced within the time period established by the order bill of lading; that the plaintiff failed to provide the defendant with notice of his loss, as required under the clear terms and conditions of that bill; and that the action is barred by the applicable period of limitations established under 49 U.S.C. § 11707(e). Upon the stipulation of the parties, defendant Brillion and Forest Junction Railroad Company was dismissed from this matter, with prejudice and without costs, by the Court’s Order of June 4, 1984.

Presently before the Court is the motion of the remaining defendant, the Missouri Pacific Railroad Company, for summary judgment, pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, or, in the alternative, for dismissal of the action pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure or transfer of venue pursuant to 28 U.S.C. § 1406(a). In support of its request for summary judgment, the defendant directs the Court’s attention to the subject order bill of lading, which, by its very terms, establishes as a condition precedent to recovery that the plaintiff file a written notice of claim with the receiving or delivering carrier within nine months of delivery of the property.

By the appended affidavits of its own assistant manager for freight claims and the freight traffic manager for former co-defendant Brillion and Forest Junction Railroad Company, the movant establishes that the plaintiff made no formal written claim to either of the carrier-railroads until June 27, 1983, when he sent a claim letter to the Brillion and Forest Junction Railroad Company, noting his lack of success in collecting from the consignee and advising of his intention to pursue a claim against this delivering party. Based on the plaintiff’s failure to provide notice of his claim to either of the carrier-railroads within the applicable period of limitations, the movant contends, based both on the language of the order bill of lading and the plain language of 49 U.S.C. § 11707(e), establishing the liability of common carriers under receipts and bills of lading, that this action must be dismissed as untimely.

In support of its petition in the alternative for dismissal or transfer of venue, the movant again invokes the prescriptive language of 49 U.S.C. § 11707(d)(2)(A)(ii) & (iii), arguably establishing that the only judicial district in which this action is properly venued is that in which the, point of destination is located and in which the damage is alleged to have occurred — namely, the Eastern District of Arkansas. Accordingly, the movant seeks an order dismissing the case based on improper venue or transferring the matter to the federal district court in Little Rock, Arkansas.

Pursuant to Local Rule 6.01, the plaintiff was afforded fourteen days in which to file a brief in opposition to the present motion to dismiss or for transfer of venue. Despite the fact that that fourteen-day period has now long expired, the plaintiff has failed to interpose any responsive memorandum of law. Accordingly, the Court resolves the defendant’s petition based solely on the case record compiled to date, including the relevant motion papers, and its own understanding and application of the relevant law.

RULE 56(b) AND THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

The Court of Appeals for the Seventh Circuit has recently articulated again those well-established standards to be applied by district courts in resolving motions for summary judgment like the present, as follows:

It is well accepted that the purpose of summary judgment is to prevent an unnecessary trial where, on the basis of the pleadings and supporting documents, there remains no material issue of fact to be tried. Kirk v. Home Indemnity Company, 431 F.2d 554, 559 (7th Cir.1970). Summary judgment is appropriate only if it appears that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir.1976); Fed.R.Civ.P. 56(c). The burden is upon the moving party to show that there is no issue of material fact in dispute, Rose v. Bridgeport Brass Company, 487 F.2d 804, 808 (7th Cir.1973), and all doubts as to the existence of an issue of material fact must be resolved against movant. Moutoux v. Gulling Auto Electric, Inc., 295 F.2d 573, 577 (7th Cir.1961).

Moore v. The Marketplace Restaurant, Inc., 754 F.2d 1336, 1339 (7th Cir.1985) (citing Dreher v. Sielaff, 636 F.2d 1141, 1143 n. 4 (7th Cir.1980); see also Brown University v. Kirsch, 757 F.2d 124, 129 (7th Cir.1985) (noting that “summary judgment is to be cautiously invoked to the end that parties may always be afforded a trial where there is a bona fide dispute of facts between them”).

As established plainly by the affidavit of Sam Robinson, the assistant manager for freightclaims with Union Pacific Systems, the present owner of defendant Missouri Pacific Railroad Company, the order bill of lading upon which the subject transaction was consummated provides in section 2(b) as follows:

As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, within nine months after delivery of the property (or, in case of export traffic, within nine months after delivery at port of export) or, in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed; and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.

Exhibit A to Affidavit of Sam Robinson at 2 (June 18, 1984). As the movant accurately observes, the relevant language of the order bill of lading conforms precisely to the requirements set forth in 49 U.S.C. § 11707(e), prescribing the conditions under which common carriers may be held liable for claims asserted under receipts and bills of lading, as follows:

A carrier may not provide by rule, contract or otherwise, a period of less than 9 months for filing a claim against it under this section and a period of less than 2 years for bringing a civil action against it under this section. The period for bringing a civil action is computed from the date the carrier gives a person written notice that the carrier has disallowed any part of the claim specified in the notice____

It is further uncontroverted that the plaintiff filed no written claim against either of the carrier-railroads until the time of his June 27, 1983, letter to former defendant Brillion and Forest Junction Railroad Company, construed by the parties as such a formal notice. See Exhibit B to Affidavit of Gordon deHaas at 2 (June 20, 1984). Under these circumstances, the Court encounters no difficulty in concluding that the present action is, indeed, untimely since, pursuant to both the clear language of the order bill of lading and the parallel provision of 49 U.S.C. § 11707(e), the plaintiffs notice of claim was not served within nine months after the last of the shipments, on January 15, 1981, but was interposed instead some twenty-nine months after delivery of the hay to the final consignee.

In short, the Court finds that the untimely notice serves as a complete bar to the plaintiffs prosecution of his present action. The mere fact that the plaintiff initiated this lawsuit only six months after his letter notice to the Brillion and Forest Junction Railroad Company does not render inapposite the clear, proscriptive effect of section 2(a) of the order bill of lading and subsection (e) of 49 U.S.C. § 11707.

As indicated above, the plaintiff has failed to submit any affidavits in opposition to those filed by the defendant in support of its present motion; indeed, the plaintiff has not provided this Court with any basis upon which it might reasonably find the existence of some material issues of fact for trial or the movant’s lack of entitlement to judgment as a matter of law. Under these circumstances and for the substantive reasons discussed herein, the Court concludes that summary judgment is appropriately entered in favor of defendant Missouri Pacific Railroad Company as to the entire cause of action against it. See Rule 56(e) of the Federal Rules of Civil Procedure (“... [A]n adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him”).

Because it concludes that this action is wholly barred by the applicable period of limitations, the Court need not and does not reach the movant’s companion argument that dismissal or transfer of venue is warranted under 49 U.S.C. § 11707(d)(2)(A)(ii) & (iii).

CONCLUSION

For the reasons articulated above, the Court hereby GRANTS the motion of defendant Missouri Pacific Railroad Company for summary judgment, pursuant to Rule 56(b) of the Federal Rules of Civil Procedure, as to the entire cause of action.


author: SWEET, District Judge.

text:
    Frank GENDALIA, Felix N. Fidelibus and Stella Rathgeb, Plaintiffs, v. Donald GIOFFRE, Fred Gioffre, John Colangelo and Anthony J. Zaccagnino, individually and as Members of the Town Counsel of the Town of Rye, New York, Anthony J. Posillipo, individually and as Supervisor of the Town of Rye, Aldo Vitagliano, individually and as Town Attorney of the Town of Rye, and the Town of Rye, a Municipal Subdivision of the State of New York, Defendants. Domenick J. PATAFIO, Plaintiff, v. Donald GIOFFRE, Fred Gioffre, John Colangelo and Anthony J. Zaccagnino, individually and as Members of the Town Counsel of the Town of Rye, New York, Anthony J. Posillipo, individually and as Supervisor of the Town of Rye, Aldo Vitagliano, individually and as Town Attorney of the Town of Rye, and the Town of Rye, a Municipal Subdivision of the State of New York, Defendants.
    Nos. 83 Civ. 4069(RWS), 83 Civ. 4239(RWS).
    United States District Court, S.D. New York.
    March 29, 1985.

      Monroe Yale Mann, Port Chester, N.Y., for plaintiffs.
    William Paul Sirignano, Mount Vernon, N.Y., for defendants.
   OPINION

SWEET, District Judge.

Defendants Donald Gioffre, Fred Gioffre, John Colangelo and Anthony J. Zaccagnino, individually and as members of the Town Council of the Town of Rye, New York, Anthony J. Posillipo, individually and as Supervisor of the Town of Rye, Aldo Vitagliano, individually and as Town Attorney of the Town of Rye, and the Town of Rye, a Municipal subdivision of the State of New York (collectively the “Town defendants”) have moved to dismiss the complaint of plaintiffs Frank Gendalia, Felix N. Fidelibus and Stella Rathgeb in one action (83 Civ. 4069) and Domenick J. Patafio in a related action (83 Civ. 4239) (collectively the “Employees”). In the alternative, the Town defendants have moved for summary judgment, only to be met by a cross-motion for summary judgment by the Employees. For the reasons stated below the motion to dismiss will be granted with leave to replead, and both motions for summary judgment will be denied.

Prior Proceedings

These actions were filed on May 26, 1983 and June 3, 1983. A scheduling order was entered on September 13, 1984 calling for completion of discovery and motions by December 5, 1983. By agreement of the parties, this period was extended to June 11, 1984. On June 11, 1984 the Town defendants moved to dismiss, presumably under Rule 12(b), Fed.R.Civ.P. and for summary judgment under Rule 56, Fed.R. Civ.P. The Employees cross-moved on September 11, 1984, and the parties adjourned the submission date of the motion to January 10, 1985, at which time it was fully submitted. During this process discovery has been had, depositions taken, and interrogatories answered.

The Complaint

The complaint alleges jurisdiction under 42 U.S.C. §§ 1983, 1985, 1986 and 28 U.S.C. § 1343. The complaint claims a deprivation of property without due process by the Town defendants arising out of their failure to pay the Employees for vacation and sick days accrued during their employment by the Town of Rye. The complaint is far from a model pleading of constitutional claims, although it might be construed to allege:

1) A failure to follow state law and thereby deny the Employees due process,
2) unequal and discriminatory enforcement of state law, and
3) deprivation of property for purely political purposes.

In 1982 and previously the Employees were employed by the Town of Rye as Police Chief, Town Engineer, Account Clerk and Comptroller. By referendum the Village of Rye Brook (the “Village”) came into existence as a municipality effective June 1, 1983. The Village assumed the functions previously performed by the Town of Rye (the “Town”) and offered the Town employees an opportunity to transfer their employment to the Village at their existing salary but without credit for sick leave or unused vacation. The plaintiff Domenick J. Patafio retired. The other plaintiffs chose employment by the Village upon being advised that their positions would be filled in the event that they chose not to transfer.

The Employees then claimed sick and vacation pay in a total amount of $242,-227.96 accruing over the course of 25 years according to the Town defendants. Defendants Donald Gioffre, Fred Gioffre, , John Colangelo and Anthony J. Zaccagnino, (the “Council defendants”) constituted a majority of the Town Council and at the request of Anthony J. Posillipo, the Town Supervisor (the “Supervisor”) and upon the opinion of Aldo Vitagliano (the “Attorney”) the Council defendants voted to deny the claims of the Employees.

The Employees have asserted that similarly situated former employees of the Town have received compensation for claims based on previously unclaimed sick leave and vacation days, and that the Employees involved in this action have been denied such benefits because the Employees are Democrats and the individual defendants are all Republicans. The Employees allege that the difference in party affiliation has produced the different and discriminatory treatment of the Employees here suing. No factual issue appears to exist with respect to either the party affiliation or the different resolution of the claims of other similarly situated employees. The Town defendants note, however, that the Employees had retained counsel and that this action was anticipated at the time informal resolution of the claims was requested.

Conclusions

§ 1983 Claims

In order to state a § 1983 claim properly, a complaint must allege that the plaintiff was deprived of a right secured by the Constitution or laws of the United States and that the defendant deprived him of this right under color of state law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). When the right alleged to have been denied is one protected by the Fourteenth Amendment, the plaintiff must establish that the state deprived him of a life, liberty, or property interest without due process of law.

Analysis of the Town Employees’ § 1983 claim focuses first on whether the state had conferred on the Town Employees a constitutionally protected right which has been denied them. In Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) the Court cautioned that not every “grevious loss visited upon a person by the state is sufficient to invoke the procedural protections of the due process clause.” Id. at 224, 96 S.Ct. at 2538. “If the state had merely breached a contract ... he would have had no cause of action under § 1983. Relief is predicated on a denial of a constitutional right.” Braden v. Texas A & M University System, 636 F.2d 90, 93 (5th Cir.1981). See Bleeker v. Dukakis, 665 F.2d 401, 403 (1st Cir.1981); Kenyon v. Jennings, 560 F.Supp. 878, 881 (D.Kan.1983). Only if the benefits alleged to have been deprived the Town Employees are property interests within the meaning of the Fourteenth Amendment can the Employees condition a § 1983 claim upon the alleged denial without due process.

In deciding whether a property interest exists, a court must determine whether an individual has “more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The source of property interests rests not in the Constitution, but in “existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id.

The issue here is whether an entitlement to the back pay, founded either in state law or regulations, provides the basis for this § 1983 claim. See Goetz v. Windsor Central School Disk, 698 F.2d 606 (2d Cir.1983). The plaintiffs have presented no basis for finding such an entitlement, and I conclude there is none. The Town Employees do not present a statutory basis for claiming the cash for their unused vacation and sick pay. Indeed, Section 92 of the General Municipal Law states:

1. The governing board of each ... town ... by local, law, ordinance or resolution ... may grant vacations, sick leaves and leaves of absence to its officers or employees, with or without pay and adopt rules and regulations in relation thereto. Notwithstanding any other provision in law, any such governing board ... may also in like manner provide for cash payment of the monetary value of accumulated and unused vacation time or time allowances granted in lieu of overtime compensation standing to the credit of its officers and employees at the time of their separation from their service ...
2. The governing board of each ... town ... may provide by local law, ordinance or resolution ... that vacations granted to its officers and employees shall be earned by and credited to them ...

This statute is purely permissive in nature. The Court in Clift v. City of Syracuse, 45 A.D.2d 596, 360 N.Y.S.2d 356 (4th Dept. 1974) stated: “The cases on this particular subject are in disarray. Those which would deny relief to the plaintiff hold strictly to the letter of the law. They generally reason that Section 92 of the General Municipal Law permits but does not require a municipality to pay its employees for unused vacation time at the termination of their service and that absent any express statutory authorization in the form of a local law, ordinance, or resolution, the municipality has no authority to do so.” Id., 360 N.Y.S.2d at 359, citing Hess v. Board of Education, 41 A.D.2d 151, 341 N.Y.S.2d 536 (3rd Dept.1973); Grossman v. City of New York, 71 Misc.2d 234, 335 N.Y.S.2d 890 (App.Div. 1st Dept. 1972); Rosenthal v. Walsh, 69 Misc.2d 612, 330 N.Y.S.2d 400 (Civ.Ct.N.Y.Cty.1972), Opinion of the State Comptroller, 19 Op.St. Comp., 1963, p. 247; 18 Op.St.Comp., 1962, p. 234). Although Clift, supra, held that payment was warranted, despite the absence of statutory authorization, it followed cases which “have advanced a variety of theories on which to circumvent the absence of express statutory authorization.” Id., 360 N.Y.S.2d at 360. In light of the statute’s clearly permissive language, the absence of any proof or allegation of the enactment of any Town Ordinance to implement a system of payments for unused vacation and sick leave, and the holding in the state courts that payments are beyond the authority of Townships in the absence of such ordinances, I refuse to find a constitutionally protected property right to the back pay. The Town Employees have attempted to elevate a contract dispute to the level of Constitutional litigation.

Even were I to find a property interest at stake here, the reasoning of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), Engblom v. Carey, 677 F.2d 957 (2d Cir.1982), Coleman v. Faulkner, 697 F.2d 1347 (10th Cir.1982), Rubino v. City of Mount Vernon, 707 F.2d 53 (2d Cir.1983), suggest that the existence of sufficient post-deprivation state remedies would provide the requisite due process. The Town Employees do not dispute that state remedies exist. The complaint fails to state a § 1983 claim.

§ 1985 and § 1986 Claims

One of the necessary elements of a proper § 1985 claim is that the defendants were conspiring “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.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). The Court in Griffin held further that plaintiffs must establish “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Id. at 102, 91 S.Ct. at 1798. The Honorable Edward Weinfeld stated that the “prevailing test is that ‘[t]he class-based, invidiously discriminatory animus’ referred to in Griffin relates to ‘that kind of irrational and odious class discrimination akin to racial bias — such as discrimination based on national origin or religion.’ ” Weiss v. Willow Tree Civic Ass’n., 467 F.Supp. 803, 812 n. 25 (S.D.N.Y.1979), quoting Cartolano v. Tyrrell, 421 F.Supp. 526, 532 (N.D.Ill.1976). The plaintiffs have not alleged that the conspiracy on the part of defendants has as a target a group that meets this standard. At most, the plaintiffs have suggested that their status as members of the Democratic Party prompted the deprivation of rights. I conclude that members of the Democratic Party do not constitute a group subject to the invidious discrimination that is sought to be eliminated by § 1985(3). The § 1986 claim necessarily fails if the § 1985 claim is insufficient.

Conclusion

The Town Employees have failed to allege deprivation of constitutionally guaranteed “property” sufficient to support a § 1983 claim and have not alleged that they constitute a class sufficient to support a § 1985 action. It may be that the Employees seek' to enforce their First Amendment rights under Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). If so, that claim has not been stated or properly pleaded.

The complaint is therefore dismissed as failing to state a federal claim. Leave to replead within twenty (20) days is hereby granted.

IT IS SO ORDERED.


author: MILES W. LORD, Chief Judge.

text:
    Barbara Ann GORRIE, Karen Comnick, Linda Schneider, Robert Schneider, On Behalf of Themselves and Their Minor Children, Plaintiffs, v. Margaret M. HECKLER, Secretary, United States Department of Health and Human Services, and Leonard W. Levine, Commissioner, Minnesota Department of Human Services, Defendants.
    Civ. No. 4-84-1203.
    United States District Court, D. Minnesota, Fourth Division.
    April 1, 1985.

      Southern Minnesota Regional Legal Services by Martha A. Eaves, Thomas G. Squire, and Michael Hagedorn, St. Paul, Mn., for plaintiffs.
    James M. Rosenbaum, U.S. Atty. by Carol B. Swanson, Asst. U.S. Atty., Minneapolis, Mn., for defendant Margaret M. Heckler, Secretary of the U.S. Dept, of Health and Human Services.
    Hubert H. Humphrey III, Minnesota State Atty. Gen. by Vicki Sleeper, Sp. Asst. Atty. Gen., St. Paul, Mn., for defendant Leonard Levine, Commissioner of the Minn. Dept, of Human Services.
   ORDER

MILES W. LORD, Chief Judge.

At issue in this case is the validity of the Secretary of Health and Human Service’s (hereinafter “Secretary”) rule, 45 C.F.R. § 206.10(a)(l)(vii) (hereinafter “New Rule”), interpreting 42 U.S.C. § 602(a)(38) (1984) (hereinafter “Paragraph 38”).

Plaintiffs consist of families receiving or applying for Aid to Families with Dependent Children (hereinafter “AFDC”) who have residing with them both dependent children and other children (either blood-related or adoptive) who receive independent child support payments from noncustodial parents. Plaintiffs petition this court for class certification pursuant to F.R.Civ.P. 23(a). This court certifies plaintiffs as a class because their class is so numerous, plaintiffs estimate 1200 families in Minnesota, that joinder of all members is impracticable, Vernon J. Rockier v. Graphic Enterprises, Inc., 52 F.R.D. 335 (D.Minn.1971) (see F.R.Civ.P. 23(a)(1)), because essentially the same questions of fact or law affect all members of the class and arise out of the same contested occurrence, e.g. the enforcement of the New Rule, Mosley v. General Motor Corporation, 497 F.2d 1330, 1333 (8th Cir.1974) (see F.R.Civ.P. 23(a)(2)), because the plaintiffs’ claims are typical of those of the class members, Donaldson v. Pillsbury Company, 554 F.2d 825, 830 (8th Cir.1977) (see F.R.Civ.P. 23(a)(3)), and because the representative plaintiffs possess interests in common with the rest of the class and are represented by competent counsel, Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3rd Cir.1975) (see F.R.Civ.P. 23(a)(4)).

A further preliminary procedural detail involves the motion by the defendant Commissioner of the Minnesota Department of Human Services (hereinafter “Commissioner”) seeking to join as a third party plaintiff against the Secretary. The Secretary opposes this motion alleging that the Commissioner has no standing to sue because he has suffered no injury in fact. Sierra Club v. Morton, 405 U.S. 727, 734-735, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). However, the purpose of the standing requirement is to ensure that a dispute is presented in a concrete adversarial context capable of judicial resolution. Association of Data Processing Services Org., Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). Here, the Commissioner is attempting to join with recognizable parties in a case clearly in controversy, Buckley v. Valeo, 424 U.S. 1, 12, 96 S.Ct. 612, 631, 46 L.Ed.2d 659 (1976), because the effect of the New Rule will allegedly work to undermine his responsibilities for regulating and administering his state’s child welfare program. Washington Utilities & Transp. Com’n v. F.C.C., 513 F.2d 1142, 1149 (9th Cir.1975). While these conditions alone satisfy the requirements of standing, the Commissioner is also injured in fact to the extent that he incurs an added cost in administrating the New Rule. Because of both the expanding notion of standing and the Commissioner’s injuries in fact, this court allows the Commissioner to join as a third party plaintiff.

Interpretation of Paragraph 38 and its attendant New Rule begins with a recitation of the AFDC program’s fundamental purpose of providing financial assistance to needy children who are not adequately protected by state-imposed child support laws. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). Against that background, Congress passed Paragraph 38 as part of the Deficit Reduction Act of 1984 (Pub.L. 98-369), to “end the present practice whereby families exclude members with income in order to maximize family benefits, and [to] ensure that the income of family members who live together and share expenses is recognized and counted as available to the family as a whole.” S.Rep. No. 300, 98th Cong., 2d Sess. 165 (1983). These two goals are not mutually exclusive; rather, the AFDC’s overall purpose subsumes Paragraph 38 and requires that the two be read in harmony with one another. Turner v. Prod, 707 F.2d 1109, 1121 (9th Cir.1983).

Paragraph 38 requires an application for AFDC benefits made on behalf of a dependent child to include (1) the income “available for” siblings living in the same household as the dependent child, if (2) those siblings are themselves “dependent children.” See 42 U.S.C. § 602(a)(7); 42 U.S.C. § 606(a)(l)&(2). Applying Paragraph 38’s first requirement of “availability of income” to the present issue of child support payments in turn involves a two-step process of determining, first, whether child support payments are actually available to that designated child; and second, whether, if available to that child, those funds are also actually available for the family at large. Courts require a showing in fact that funds are available to the designee, Owens v. Heckler, 753 F,2d 675 (8th Cir.1985); Morrison v. Heckler, 602 F.Supp. 1485 (D.Minn.1985), and that those funds are in turn available to the rest of the family. See e.g., Gilliard v. Craig, 331 F.Supp. 587 (W.D.N.C.1971) aff'd without opinion, 409 U.S. 807, 93 S.Ct. 39, 34 L.Ed.2d 66 (1972); cf. Shonkwiler et al. v. Margaret M. Heckler, IP 84-1612-C (S.D.Ind. Jan. 31, 1985). The Secretary argues that in passing Paragraph 38, Congress intended to create a legislative presumption of availability of income as to the individual and as to the family “in recognition of the fact that family members who live together most likely share expenses.” Federal Defendant’s Memorandum of Points and Authorities at 17. However, the legislative history of Paragraph 38 quoted by the Secretary to support her presumption of availability speaks of recognizing and counting as available to the family as a whole, “the income of family members who live together and share expenses.” R.Rep. No. 300, supra, at 165. (emphasis added). Whether family members “share expenses” is inherently a factual matter and thus convinces this court that Congress meant, in passing Paragraph 38, to stop the previous practice whereby families who shared living expenses in fact could elect to avoid having their cumulative income counted for AFDC purposes. Such an interpretation of Paragraph 38 preserves both the AFDC program’s purpose of providing for needy children and Paragraph 38’s purpose of saving money by stopping the previous practice of allowing the family to apply for AFDC benefits on behalf of children of its choosing. Noot v. Heckler, 718 F.2d 852, 862 (8th Cir.1983).

The Secretary’s New Rule avoids Paragraph 38’s required factual showing that funds available to one sibling are available to the entire family by sidestepping Paragraph 38’s second requirement, “dependency.” See 42 U.S.C. § 606(a)(1) & (2). The Secretary interprets § 606(a)(1) & (2) as meaning that “[i]f any of these conditions [death, absence of parent, incapacity] is present, a minor child is considered deprived and therefore dependent and eligible for AFDC assistance.” Federal Defendant’s Memorandum of Points and Authorities at p. 22. By focusing on the status of the parent of the child as conclusively evidencing the child’s dependency, the Secretary creates a presumption of eligibility to which she adds the requirement that “[u]nder the new statute, parents and siblings must be included in the assistance unit, unless they are ineligible to receive AFDC under another provision of the Act.” 49 Fed.Reg. 176 p. 35589. This combined presumption of eligibility and required inclusion of eligible family members in the family’s application for AFDC benefits subsequently enables the Secretary to use 42 U.S.C. § 602(a)(26)(A)’s requirement that AFDC applicants assign income available to them to the state. In this way the Secretary completes her circuitous avoidance of showing whether funds available to one sibling are in fact available to the rest of the family by making them expressly available through her use of 42 U.S.C. § 602(a)(26)(A)’s assignment requirement. However, in so doing, the Secretary’s presumption of eligibility ignores her own regulation requiring that both actual need and deprivation of parental support or care be present to qualify for AFDC benefits. See 45 C.F.R. § 233.90(c)(l)(i). Because Paragraph 38 incorporates § 606(a)(1) & (2), and the Deficit Reduction Act left § 606(a)(1) & (2) unchanged, this court rejects the New Rule’s presumption of eligibility and requires instead that Paragraph 38’s element of dependency comply with § 606(a)(1) & (2)’s traditional showing that applicants for AFDC benefits are in fact (1) needy and (2) deprived of parental support or care.

Left to stand, the New Rule would require co-habitating blood related or adoptive siblings who receive independent child support from their non-eustodial parents to choose between (a) moving out of their family home, so that the rest of their family may remain eligible for AFDC benefits, (b) remaining in their family’s home, refusing to apply for AFDC benefits, and thereby making their dependent siblings ineligible for benefits, or (c) staying in their family home, applying for AFDC benefits and thereupon being subject to § 602(a)(26)(A)’s required assignment of their child support to the state.

All three alternatives violate the AFDC program’s dual purposes of providing for needy children and preserving the family unit. See 42 U.S.C. § 601. The first alternative facially violates the AFDC program’s second purpose by effecting a separation of the family unit while the second alternative violates the AFDC program’s first purpose by depriving actually dependent children of needed state aid. The third alternative, and the one most likely to result from the New Rule, is void for two reasons.

First, by requiring independently supported children to assign their child support payments to the state in order that the rest of the family unit may remain eligible for AFDC benefits, the independently supported child itself is. deprived of monies determined by state courts to be necessary for his or her particular needs. State courts establish the amount of child support payments paid to independently supported children by balancing the specific needs of the individual child, such as special medical care, against the parent’s ability to pay. See e.g. Minn.Stat. § 518.17. Thus, the New Rule deprives independently supported children of their state determined needs to the extent that their noncustodial parental support payments exceed what they would receive as one more unit in their family’s AFDC filing unit. Suffice it to say that such a result stands on its head the AFDC program’s purpose of providing needed care for dependent children and makes meaningless the decrees of the state courts determining the amount of child care aid. Heckler v. Campbell, 461 U.S. 458, 466, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66 (1983).

Second, besides being void for facially violating the purpose of the Social Security Act’s AFDC program, the Secretary’s New Rule also abridges the constitutionally recognizable property rights of these independently supported children without due process of law. The property interest at stake is the state created contract right to receive non-custodial child support payments. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709 33 L.Ed.2d 548 (1972); Perry v. Sinderman, 408 U.S. 593, 598, 601, 92 S.Ct. 2694, 2698, 2699, 33 L.Ed.2d 570 (1972). The Secretary argues that she is not depriving these plaintiffs of their child support payments because they can avoid their loss by not applying for AFDC benefits. While that may be true in the abstract, “procedural due process rules are shaped by the risk of error inherent ... in the generality of cases, not the rare exceptions.” Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 907, 47 L.Ed.2d 18 (1976). Where, as here, minor children are faced with choosing between moving away from home, depriving their siblings of support, or, against their best interests, assigning their support payments to the state, they will “in the generality of cases” choose the last. Such a predictable result constitutes a sufficient taking of a recognizable property interest for this court to strike it down as violative of the Constitution unless the Secretary satisfies this court that such a. taking comports with the necessary degree of due process.

While determining when and how much process is due involves considering the government and private interests at stake, Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), the requisite procedures must be tailored to the capacities and circumstances of those who are to be heard. Goldberg v. Kelley, 397 U.S. 254, 268-269, 90 S.Ct. 1011, 1020-1021, 25 L.Ed.2d 287 (1970). In this case, the “brutal need” of child support receipts to the plaintiffs, id. at 261, 90 S.Ct. at 1016, combined with their limited capacity, as minors, to be heard is weighed against the risk of serious error posed by the Secretary’s presumptions of availability of income and dependency, factors traditionally requiring factual substantiations, and the government’s financial interest in reducing welfare costs, a factor which is not a controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decision. Mathews v. Eldridge, 424 U.S. at 348, 96 S.Ct. at 909. Concluding that the plaintiffs’ interests outweigh the government’s interests, this court also concludes that the practicable procedural safeguard to protect the plaintiffs’ interests is a predeprivation hearing to establish that these independently supported children (1) are actually needy (2) are deprived of parental support or care and that their child support receipts (3) are in fact available to them and (4) if available to them are also in fact available to their family to use. See Goldberg v. Kelley, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). If the Secretary makes those necessary factual showings, then in accordance with this court’s interpretation of Paragraph 38, those monies shall be applied in determining a family’s eligibility for AFDC benefits.

To ensure the Secretary’s and Commissioner’s compliance with these procedural prerequisites, this court issues a preliminary injunction, pursuant to F.R.Civ.P. 65(a), directing the defendant Commissioner to issue an instructional bulletin within ten (10) working days of the filing of this order informing the directors of each county welfare agency within the State of Minnesota of the Court’s Order herein, and directing those agencies to:

a) Reinstate any class member’s AFDC benefits reduced or terminated because of defendant Heckler’s regulation and/or Instruction Bulletin # 84-76, Attachment 9; and
b) Notify any class member now receiving AFDC as a result of the defendant’s rule of his/her right to be removed from the AFDC grant immediately, and of his/her right to request the return of any child support paid by his/her supporting parent, less the amount of AFDC assistance actually paid for such child to date.
c) Notify all AFDC claimants who are now or in the future will be affected by Paragraph 38 of their right to a predeprivation- hearing at which the Secretary must show that the affected independently supported children (1) are actually needy, (2) are deprived of parental support or care and that their child support receipts, (3) are in fact available to them, and (4) if available to them are also available to their family to use; all of which factual findings shall be prerequisites to the Secretary’s right of assignment.

This court issues this preliminary injunction (1) because the plaintiffs risk irreparable harm to their family structure through enforcement of the New Rule, (2) because plaintiffs’ familial harm outweighs the defendants’ loss as the New Rule takes away, rather than denies access to, a recognizable property interest, (3) because the plaintiffs are likely to succeed on the .'merits of their case, and (4) because public interest in preserving the family structure outweighs the public concern for saving the indeterminate amount of money at issue here. See e.g. Chu Drua Cha v. Noot, 696 F.2d 594, 599 (8th Cir.1984) citing Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109 (8th Cir.1981).

IT IS SO ORDERED.

      . The affidavits of the custodial parent plaintiffs express the fear that the New Rule will encourage non-custodial parents to cease payment of child support altogether, thus adding significantly to the administrative cost of the AFDC program and reducing the amount of monies left available for qualified applicants.

      . As a third party plaintiff, the Commissioner would challenge the Secretary’s New Rule as violating the tenth amendment because of its alleged infringement on the state right to regulate its own financial matters. This court does not address this issue because resolution of this case is possible without doing so.

      . Viewed from the perspective of the plaintiffs as parents results in an equally untenable result of the New Rule would place the custodial parent in the position of either improperly assigning to the state the non-dependent childrens’ support payments intended for the benefit of the designated child or forfeiting AFDC for the "dependent" children.


author: ' BUA, District Judge.

text:
    NATIONAL WRECKING COMPANY, Plaintiff, v. Ernest KUMEROW, et al., Defendants.
    No. 85 C 2582.
    United States District Court, N.D. Illinois, E.D.
    April 1, 1985.

      Gerald A. Golden, Carl E. Johnson, Jeffrey S. Heller, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, 111., for plaintiff.
    Hugh B. Arnold, Arnold & Kadjan, Chicago, 111., for defendants.
   ORDER

' BUA, District Judge.

Before the Court is plaintiffs motion for a temporary restraining order to enjoin the defendants from striking, work stoppage, and illegal picketing at various locations where plaintiff and defendants are engaged in demolition. For the reasons stated herein, plaintiffs motion for a temporary restraining order, pursuant to Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, Fed.R.Civ.P. 65(b) and Rule 12(a) of the Local Rules, is denied.

I. FACTS

On July 15, 1984, plaintiff National Wrecking Company, through the Chicago Building Wreckers Association, entered into a collective bargaining agreement with defendant Construction and General Laborers’ District Council of Chicago and Vicinity and Laborers’ Local Union No. 225 covering plaintiff’s employees working within Cook County, as well as other counties. Section 8 of the collective bargaining agreement prohibits strikes or work stoppages by employees and provides for binding arbitration of disputes and grievances with respect to the application and construction of the agreement. Section 8 reads as follows:

UNION agrees that there shall be no strike or picket against this EMPLOYER during the period of this Agreement; nor shall it engage in or participate in any sympathy strike or secondary boycott directed against EMPLOYER. The parties further agree to arbitrate their grievances with the Illinois Department of Concilliation and Mediation or similar arbitration association. The UNION does, however, maintain its right to strike for nonpayment of wages, health and welfare, pension contributions or dues deductions by EMPLOYER beyond sixty (60) days.

Plaintiff contends that defendants have violated this no-strike and mandatory arbitration clause by virtue of their picketing and work stoppage at two of plaintiff’s demolition sites in Chicago, Illinois, on March 27, 1985. Plaintiff further asserts that the dispute underlying defendants’ strike is their desire to renegotiate the amount of plaintiff’s pension fund contributions from 24 cents per hour, contained in the collective bargaining agreement, to $1.30 per hour. Since it has refused to renegotiate the agreement, plaintiff concludes that defendants’ strike is an attempt to force plaintiff to renegotiate. Since the amount of pension fund contributions is a contract dispute, plaintiff further concludes that the underlying dispute involves an issue subject to mandatory arbitration and therefore defendants’ strike violates the no-strike clause in the agreement.

Defendants counter that they have a right to strike for nonpayment of dues deductions. The no-strike clause specifically excludes from its scope a strike for nonpayment of dues deductions beyond 60 days. Defendants assert that, since the beginning of the agreement, the plaintiff has failed to pay dues deductions as provided for in Section 6 of the agreement.

In support of their proposition, defendants submit evidence of past payment of dues deductions to counter plaintiff’s contentions that there was no set procedure for payment of dues deductions and that plaintiff did not have in its possession proper authorization cards necessary for the payment of dues deductions. Since they have presented evidence of plaintiff’s failure to pay the dues deductions for over 60 days, defendants conclude that their strike comes within the exception to the no-strike clause and therefore does not violate the no-strike clause.

II. ‘ DISCUSSION

Section 4 of the Norris-La Guardia Act, 29 U.S.C. § 104, prohibits an injunction against a strike or work stoppage. However, in Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), the Supreme Court held that anti-strike injunctions could be issued when the strike arises out of a grievance that is the subject of compulsory arbitration, provided the usual equitable requirements for preliminary relief are met. Id. at 254, 90 S.Ct. at 1594. In Boys Markets, the parties were obligated to arbitrate the underlying grievance that was the occasion of the strike, i.e., whether members of the Retail Clerks Union were entitled to perform certain work being done by nonmembers of their bargaining unit, and the strike was enjoined. See, Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974).

On the other hand, when the parties have not agreed to arbitrate the underlying dispute, as was the case in Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976), where the issue was whether a sympathy strike violated a no-strike clause, there was no occasion to invoke the policy in favor of compulsory arbitration and, in recognition of the general mandate of § 4 of the Norris-La Guardia Act, the Court held that such a strike may not be enjoined. In short, Buffalo Forge teaches that the mere arbitrability of the issue of whether a strike or work stoppage violates an express or implied no-strike clause does not entitle the employer to a Boys Markets injunction; there must be an underlying arbitrable grievance. Id. at 409-10, 96 S.Ct. at 3148-49; see, Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Ass’n, 457 U.S. 702, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982); Elevator Mfrs.’ Ass’n of N.Y., Inc. v. Local 1, Etc., 689 F.2d 382, 385 (2d Cir.1982). The issue now becomes whether a case is governed by Boys Markets or Buffalo Forge.

In order to determine whether Boys Markets or Buffalo Forge applies to this case, it is necessary to engage in a preliminary interpretation of the agreement in light of the surrounding circumstances. First, under the agreement, the court must determine whether the strike violates the no-strike clause. Second, if the no-strike clause is violated, the court must determine if the underlying dispute involves a grievance which the parties are bound to arbitrate. Elevator Mfrs. ’ Ass’n of N. Y., Inc. v. Local 1, Etc., supra, 689 F.2d at 386.

First, the Court holds that the party seeking the injunction, the plaintiff, has failed to show that the defendants have violated the no-strike clause in Section 8 of the agreement. Plaintiff argues that the failure to pay dues deductions is a smoke screen or a sham to hide the real underlying dispute and to enable defendants to strike in violation of the no-strike clause. Defendants have submitted evidence which suggests that plaintiff has not paid dues deductions since at least July, 1984. Plaintiff protests that it was not supplied proper authorization cards necessary to make the dues deductions. However, it has not produced a sample of the proper cards for the Court to compare with the cards produced by the defendants.

In addition, plaintiff has not shown that it ever tendered payment of dues deductions, requested proper authorization cards for payment, or inquired as to the procedure for paying the dues. The evidence which plaintiff does submit tends to support the fact that defendants have asked it to renegotiate the agreement regarding pension fund contributions. From this fact, plaintiff argues that the failure to pay dues deductions is a sham. However, plaintiffs characterization of the dispute underlying the strike could as easily be a sham explanation.

In light of the fact that the burden of proof is on the party seeking the injunctive relief, the plaintiff has failed to meet this burden because it has not shown payment of the dues deductions. Since plaintiff has not shown payment of the dues deductions, defendants’ strike falls within the exception to the no-strike clause. Since plaintiff has failed to show that defendants’ strike violates the no-strike clause, the strike may not be enjoined according to Buffalo Forge.

Second, the threshold issue to be arbitrated is whether the dispute underlying the strike is renegotiation of the agreement or plaintiff’s failure to pay the dues deductions. The threshold issue is not whether renegotiation of the agreement is an issue to be arbitrated. The courts which have addressed this complex issue, i.e., whether the strike’s underlying dispute violates the no-strike clause, have concluded that an injunction should not issue. Waller Bros. Stone Co. v. United Steelworkers, 620 F.2d 132, 137 (6th Cir.1980); Skokie Valley Bev. v. Beer, Soft Drinks, Water, 563 F.Supp. 460, 462 (N.D.Ill.1983); see also Chicago Typographical Union v. Chicago Newspaper Pub. Ass’n, 620 F.2d 602 (7th Cir.1980) (denial of injunction pending arbitration).

In Waller, the Sixth Circuit Court of Appeals addressed the same problem as presented here:

Where the union has expressly reserved its right to strike over certain issues, a Boys Markets injunction should not issue unless it clearly appears to the trial judge that the dispute which underlies the strike is subject to a no-strike obligation. Under the circumstances which exist here, the issue is so greatly in doubt that we believe that it was an abuse of discretion to issue an anti-strike injunction in the face of the literal ban of the Norris-La Guardia Act and the narrow construction which the Supreme Court and our circuit have placed upon the Boys Markets rule.

620 F.2d at 137.

In Skokie Valley, the court followed reasoning similar to that in Waller: “When the arbitrable issue is the permissibility of the strike itself, rather than some other underlying issue, then an injunction should not issue. In such a case the strike does not constitute an evasion of the agreement to arbitrate disputes; ...” 563 F.Supp. at 462. Following the direct reasoning in Waller and the supportive reasoning in Skokie Valley, the Court further holds that an injunction against the defendants’ strike is improper, where as here, the underlying dispute for the strike may be in doubt. The Court reiterates its primary holding that plaintiff’s failure to show that defendants’ strike violates the no-strike clause prohibits this Court from entering an injunction against the defendants’ strike.

III. CONCLUSION

Since plaintiff has failed to show that the circumstances in this case come within the Boys Markets exception to Section 4 of the Norris-La Guardia Act, plaintiff’s motion for a temporary restraining order enjoining defendants’ strike is denied.

IT IS SO ORDERED.


author: PATRICK F. KELLY, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. James CHARLES, Defendant.
    Crim. No. 85-10005-01.
    United States District Court, D. Kansas.
    April 3, 1985.

      Jackie Williams, Asst. U.S. Atty., Wichita, Kan., for plaintiff.
    William L. Winkley, Salina, Kan., for defendant.
   MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

Defendant James Charles has been indicted by a grand jury on nine counts for a criminal violation of 18 U.S.C. § 658 (1961). Defendant now moves to quash the indictment and to dismiss the action. For reasons stated below, defendant’s motion is denied.

On January 29, 1985, a grand jury returned an indictment against James Charles, charging him with selling property mortgaged and pledged to the Production Credit Association (PCA) of Northwest Kansas, Colby, Kansas. This activity is alleged to be in violation of 18 U.S.C. § 658 (1961), which states:

Whoever, with intent to defraud, knowingly conceals, removes, disposes of, or converts to his own use or to that of another, any property mortgaged or pledged to, or held by, the Farm Credit Administration, any Federal intermediate credit bank, or the Federal Crop Insurance Corporation, Farmers’ Home Corporation, the Secretary of Agriculture acting through the Farmers’ Home Administration, any production credit association organized under sections 1131-1134m of Title 12, any regional agricultural credit corporation, or any bank for cooperatives, shall be fined not more than $5,000 or imprisoned not more than five years, or both; but if the value of such property does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.

(Emphasis added).

Defendant alleges this Court lacks jurisdiction to hear this case because the Farm Credit Act of 1971, 12 U.S.C. §§ 2001 et seq. (1971), effectively repealed the statute on which plaintiff United States of America bases its requisite jurisdiction. Defendant alleges because the Farm Credit Act of 1971 repeals §§ 1131-1134m of the Farm Credit Act of 1933, no further criminal indictments may be handed down under 18 U.S.C. § 658 (1961) for violations involving production credit associations. Defendant supports his allegation by arguing the PCA in question ceased to exist and was reorganized under the Farm Credit Act of 1971.

While this Court commends defendant for his ingenuity, the Court does not accept his position.

The following statutes and legislative histories express the intent of Congress concerning the present action.

Title 12 U.S.C. § 2091 (1971) provides: Each production credit association chartered under section 20 of the Farm Credit Act of 1933, as amended, shall continue as a federally chartered instrumentality of the United States____

(Emphasis added).

It is undisputed that the PCA defendant was involved with was organized under §§ 1131-1134m of Title 12. Thus, the PCA in question falls within the ambit of 18 U.S.C. § 658 (1961). In addition, applying § 2091 above, this Court finds that because the PCA in question was organized under the Farm Credit Act of 1933, it continues as a federally chartered instrumentality.

Section 5.26(b) of the Farm Credit Act of 1971 states:

All regulations of the Farm Credit Administration or the institutions of the System and all charters, bylaws, resolutions, stock classifications, and policy directives issued or approved by the Farm Credit Administration, and all elections held and appointments made under the Acts repealed by subsection (a) of this section, shall be continuing and remain valid until superseded, modified, or replaced under the authority of this Act

Pub.L. No. 92-181, 85 Stat. 624 (1971) (emphasis added).

The legislative history to the above section indicates:

The original Federal Farm Loan Act, as amended, and the 1933 Farm Credit Act, as amended, and some nine supplementary acts are repealed. References in other legislation to those Acts will be construed to refer to comparable provisions of this Act. Subsection (b) is a savings clause preserving the validity of all things done under the Acts repealed in order to avoid disruption of the operations of the System.

1971 U.S.Code Cong. & Ad.News 2091, 2118 (emphasis added).

The legislative history to § 5.24 of the Farm Credit Act of 1971 states:

Citizenship of institutions of the System and judicial jurisdiction found in existing law is retained. However, an exception to the rule that actions relating to production credit association matters must be brought in State courts is made in those cases over which the State courts have no jurisdiction.

1971 U.S.Code Cong. & Ad.News 2118 (emphasis added).

The plain wording of the above sections indicates Congress’ intent that federal courts retain jurisdiction over activity involving PCA’s organized under §§ 1131-1134m of the Farm Credit Act of 1933. Because the activity in the present suit involves a PCA organized under these sections, this Court has jurisdiction over defendant.

IT IS THEREFORE ORDERED this 3 day of April, 1985, that defendant James Charles’ motion to quash the indictment against him be denied.