author: SAFFELS, District Judge.

text:
    BLUE CROSS AND BLUE SHIELD OF KANSAS CITY, a Missouri not-for-profit corporation, Plaintiff, v. Fletcher BELL, Commissioner of Insurance of the State of Kansas; Defendant. and Kansas Optometric Association, Inc.; Kansas Chiropractic Association; Kansas Association of Professional Psychologists; and Kansas Podiatry Association, Intervenor Defendants.
    Civ. A. No. 84-2255.
    United States District Court, D. Kansas.
    Nov. 7, 1984.

      Max O. Bagby, Christopher C. Iliff, Bag-by, Jacob & Iliff, Kansas City, Mo., J. Nick Badgerow, James R. Goheen, McAnany, Van Cleave & Phillips, Kansas City, Kans., for plaintiffs.
    General Motors Corporation, Paul Scott Kelly, Jr., John J. Yates, Gage & Tucker, Kansas City, Mo., amicus curiae.
    William W. Sneed, Michael J. Dutton, Brenda J. Mitchell, Sp. Asst. Attys. Gen., Topeka, Kans., for Fletcher Bell.
    John C. Peterson, Hamilton, Peterson, Tipton & Muxlow, Topeka, Kans., Larry L. Luttjohann, Wagner, Arterburn & Luttjohann, Topeka, Kans., for intervenors-defendants.
    Phil M. Cartmell, Jr., Stephen A. Murphy, J. Patrick Shepard, Gage & Tucker, Overland Park, Kans., amicus curiae General Motors Corp.
    Jordan Rossen, Leonard Page, International Union, UAW, Detroit, Mich., C. David Whipple, Whipple & Kraft, Thomas E. Osborn, Kansas City, Kans., amicus curiae International Union, United Auto., Aerospace and Agr. Implement Workers of America.
   MEMORANDUM AND ORDER

SAFFELS, District Judge.

This is a declaratory judgment action challenging a Kansas statute on the grounds that it is pre-empted by the Employee Retirement Income Security Act (ERISA) and that it violates the United States Constitution. This cause was tried to the court without a jury on September 6, 1984. The parties have completed post-trial briefing and the court is now prepared to rule.

Plaintiff, Blue Cross and Blue Shield of Kansas City (hereinafter Blue Cross) is a Missouri not-for-profit corporation which sells insurance in Missouri and in Johnson and Wyandotte Counties in Kansas. Defendant, Fletcher Bell, is the insurance commissioner of Kansas. The additional defendants are professional organizations representing optometrists, chiropractors, psychologists and podiatrists. The court has allowed the General Motors Corporation and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America to file amicus curiae briefs.

House Bill No. 3064, the challenged bill, was passed overwhelmingly by the Kansas Legislature and signed into law by the governor to become effective July 1, 1984. Prior to that date, Blue Cross initiated this action and this court denied preliminary injunctive relief. The bill essentially requires that all insurance policies for individuals residing or employed in Kansas meet the requirements of four other Kansas insurance statutes. An out-of-state employer’s group insurance plan or employee benefit plan offering health insurance to Kansas residents or employees must include certain coverages under this bill.

Blue Cross contends that HB 3064 is invalid for the following reasons: [1] ERI-SA, 29 U.S.C. 1144(a), pre-empts all state laws that regulate ERISA employee benefit plans; and [2] by regulating insurance contracts entered into by parties outside the state of Kansas, the provision (a) impairs the right of private parties to contract, (b) denies due process to plaintiff, and (c) poses an undue burden on interstate commerce. Defendants contend that HB 3064 is valid under ERISA’s “savings clause,” 29 U.S.C. 1144(b)(2)(A), in that ERISA does not “exempt or relieve any person from any law of any State which regulates insurance____” Defendants also contend that the law is not unconstitutional in its extraterritorial effect. As a preliminary matter, the defendants challenge Blue Cross’ standing to raise these claims.

Standing

The following facts are relevant to the question of standing:

1. Blue Cross issues many contracts of health care insurance to employers in both Kansas and Missouri which have employees who work and/or reside in Kansas. These employees are subscribers of Blue Cross through their employer or employment group, and health care benefits are provided to employees through contracts with Blue Cross.

2. Blue Cross employs residents of Missouri and Kansas. As an employer, plaintiff provides health care benefits to its own employees through “employee benefit plans.” The evidence at trial was inconclusive as to whether Blue Cross’ plans are ERISA plans, and also as to whether the plans are “self-funded.”

3. The enforcement of HB 3064 would alter the contracts of health care benefits entered into by Blue Cross and increase the actual cost of the service benefits and of claims administration.

4. Plaintiff Blue Cross has an “actual stake in the outcome of this litigation.”

The following conclusions of law are relevant to the question of standing herein:

1. To raise the question of the constitutionality of the bill challenged herein, plaintiff must show that it has standing under’ the general principles respecting standing to sue. Those standards were set forth in Worthing v. Hosey, 73 F.R.D. 406, 409 (D.Kan.1977), as follows:

The general principles respecting standing to sue, which apply with equal effect to the question of mootness, have been pronounced numerous times by this and other courts in the Federal system. Essentially, the constitutional dimension of standing, dictated by the “case or controversy” requirement of Art. Ill of the Constitution, mandates that the plaintiffs in any action allege some threatened or actual injury resulting from the putatively illegal conduct of the defendants before a Federal court may assume jurisdiction. See Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The plaintiffs' herein, therefore, must have some “personal stake in the outcome” of the litigation such as to assure that “concrete adverseness which sharpens the presentation of issues” to allow the determination of difficult constitutional questions. O’Shea v. Littleton, supra, at 494, 94 S.Ct. 669, 38 L.Ed.2d at 682. In this respect, it must reasonably be shown by the pleadings that the plaintiffs themselves have been injured, and not merely that other, unidentified members of an unrepresented class have suffered the alleged wrong. Warth v. Seldin, supra, 422 U.S. at 502, 95 S.Ct. at 2207, 45 L.Ed.2d at 357. The burden of alleging such “case or controversy” between themselves and the defendants in this case is upon the plaintiffs. Id.

2. An actual case or controversy exists herein and plaintiff’s stake in the outcome is sufficient to allow plaintiff to pursue these constitutional claims against these defendants.

3. To assert a claim under ERISA, a plaintiff must have standing under 29 U.S.C. 1132(a), which provides, in the part pertinent hereto, that a civil action may be brought “(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this title or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan.” Blue Cross seeks equitable relief to redress alleged violations of ERISA and to enforce its provisions.

4. United States district courts have jurisdiction over actions brought by a participant, beneficiary or fiduciary pursuant to 29 U.S.C. 1132(e)(1).

5. The circuit courts of appeal are split as to whether the grant of the right to sue to only participants, beneficiaries or fiduciaries pursuant to 29 U.S.C. 1132 is exclusive. Compare Fentron Industries, Inc. v. National Shopmen Pension Fund, 674 F.2d 1300 (9th Cir.1982) [holding that an employer could sue in that the list of parties enumerated under § 1132 is not exclusive; to sue, a plaintiff must show: (1) an injury in fact, (2) that it is within the zone of interests protected by the statute, and (3) that the statute itself does not preclude the suit], with Tuvia Convalescent Center, Inc. v. National Union of Hospital and Health Care Employees, 717 F.2d 726 (2nd Cir.1983) [holding that an employer did not have standing to bring an action under § 1132]; Pressroom Unions-Printers League Income Security Fund v. Continental Assurance Co., 700 F.2d 889 (2nd Cir.) cert. denied, — U.S.-, 104 S.Ct. 148, 78 L.Ed.2d 138 (1983) [holding that § 1132(e)(1) is an exclusive jurisdictional grant]; Crown Cork & Seal Co., Inc. v. Teamsters Pension Fund of Philadelphia and Vicinity, 549 F.Supp. 307 (E.D.Pa. 1982), affd. 720 F.2d 661 (3rd Cir.1983); and R.M. Bowler Contract Hauling Co., Inc. v. Central States, Southeast and Southwest Areas Pension Fund, 547 F.Supp. 783 (S.D.Ill.1982).

6. The United States Court of Appeals for the Tenth Circuit has not decided whether § 1132 is the exclusive grant of the right to sue in the federal courts for the type of relief sought here. See Peck-ham v. Board of Trustees of the International Brotherhood and Allied Trades Union, 724 F.2d 100 (10th Cir.1983). This court is of the opinion that the Tenth Circuit would adopt the position that § 1132 is an exclusive jurisdictional grant and that to sue for equitable relief under ERISA a plaintiff must be a participant, beneficiary or fiduciary, for the reasons set forth by the Second Circuit when it reviewed Fen-tron:

In our view, the Fentron court applied an inappropriate standard in resolving this issue. We focus not on whether the legislative history reveals that Congress intended to prevent actions by employers or other parties, but instead on whether there is any indication that the legislature intended to grant subject matter jurisdiction over suits by employers, funds, or other parties not listed in § 1132(e)(1)....

Pressroom Unions-Printers League Income Security Fund, 700 F.2d at 892.

7. Neither in its status as contracting party providing health care benefits to group plans, nor in its status as employer, is plaintiff Blue Cross a “participant, beneficiary or fiduciary” of any employee benefit plan under ERISA. Therefore, Blue Cross may not sue in this court under ERISA.

Constitutional Claims

The contract clause states, “No State shall ... pass any ... Law impairing the Obligations of Contracts.” U.S. Const., Art. I, § 10. If the contract clause were read literally, HB 3064 would be violative in that the bill imposes on Blue Cross certain obligations which did not exist at the time certain of the insurance contracts were made, and further inhibits the rights of Blue Cross to reach agreement with other contracting parties on mutually agreeable terms. For example, it requires Blue Cross to reimburse certain providers of services (e.g. chiropractors) which under the terms of its insurance contracts Blue Cross is not otherwise responsible to reimburse. The contract clause is not to be read so literally, however. In Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 240, 98 S.Ct. 2716, 2720, 57 L.Ed.2d 727 (1978), the court stated: “The Clause is not, however, the Draconian provision that its words might seem to imply. As the Court has recognized, ‘literalism in the construction of the contract clause ... would make it destructive of the public interest by depriving the State of its prerogative of self-protection.’ W.B. Worthen Co. v. Thomas, 292 U.S. 426, 433 [54 S.Ct. 816, 818, 78 L.Ed. 1344].” Thus, the contract clause does not obliterate the police power of the state. Id. at 241, 98 S.Ct. at 2720.

In determining whether a state law operates to violate the contract clause, the primary inquiry is whether the state law operates as a substantial impairment of the contractual relationship. The “severity of the impairment measures the height of the hurdle the state legislation must clear.” Id., 438 U.S. at 244, 98 S.Ct. at 2722. In Allied Structural Steel, a Minnesota law regulating the vesting of pension plans was struck down. The Supreme Court described the facts in this manner:

Entering a field it had never before sought to regulate, the Minnesota Legislature grossly distorted the company’s existing contractual relationships with its employees by superimposing retroactive obligations upon the company substantially beyond the terms of its employment contracts. And that burden was imposed upon the company only because it closed its office in the State.

Id. at 249-50, 98 S.Ct. at 2724-25.

HB 3064 is not nearly so severe. Prior to HB 3064, Kansas law already regulated Kansas insurance policies in essentially the same manner. The new provision changes Kansas law only insofar as it makes the laws of Kansas applicable to all persons who reside or are employed in Kansas. Previously, the relevant provision had applied to insurance policies and subscriber contracts “delivered or issued for delivery” in the state. Further, impairments to existing contracts brought about by the bill are insubstantial when weighed against the interest of the state in self-protection. The court notes that HB 3064 was enacted for the health and welfare of the residents of and employees in Kansas. The contract clause does not obliterate such an exercise of police power.

With respect to Blue Cross’ arguments under the commerce clause, U.S. Const., Art. I, § 8, Congress removed commerce clause limitations on the authority of the states to regulate insurance when it passed the McCarran-Ferguson Act, 15 U.S.C. 1011, et seq. Western & Southern Life Ins. Co. v. State Board of Equalization, 451 U.S. 648, 653, 101 S.Ct. 2070, 2075, 68 L.Ed.2d 514 (1981). HB 3064 regulates the “business of insurance” within the meaning of the McCarran-Ferguson Act, and the state law is permissible under the commerce clause in light of the Act.

Under Fourteenth Amendment due process standards, however, the state does not have the power to regulate the business of insurance outside of its jurisdiction. State Board of Insurance v. Todd Shipyards Corp., 370 U.S. 451, 455, 82 S.Ct. 1380, 1383, 8 L.Ed.2d 620 (1962). Thus, for HB 3064 to be valid, its extraterritorial application must further a state regulatory interest and be supported by sufficient contacts with Kansas. Osborn v. Ozlin, 310 U.S. 53, 60 S.Ct. 758, 84 L.Ed. 1074 (1940); Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 63 S.Ct. 602, 87 L.Ed. 777 (1943).

In New Hampshire-Vermont Health Service v. Whaland, 119 N.H. 886, 410 A.2d 642 (1979), a state agent for foreign insurers challenged on due process grounds an order of the Commissioner of Insurance requiring the agent to provide coverage for mental illnesses. The statute had extraterritorial effect in a manner similar to that in HB 3064. The court, following Osborn and Hoopeston, held that despite the statute’s repercussions beyond the state line it did not accomplish a forbidden result. 410 A.2d at 647.

Likewise, this court finds that the extraterritorial effect of HB 3064 does not violate due process. The statute regulates only insurance policies and subscriber contracts with sufficient and substantial contact with Kansas through the insured’s residency or employment in Kansas. The provision furthers a legitimate state interest under the police power of the state for the protection and welfare of the residents of Kansas by requiring certain matters to be covered in their insurance policies.

Blue Cross asserts a second due process argument, contending that the language “used in Kansas” as stated in HB 3064 is so vague as to give Blue Cross no notice as to what conduct is required of it. In Wadsworth v. Whaland, 562 F.2d 70, 79 (1st Cir.1977), the court found a “vagueness” challenge to a similar law to be without basis in that the “void for vagueness” doctrine has as its purpose to warn individuals of the criminal consequences of their conduct. There is no criminal penalty associated with HB 3064 herein. Further, a void-for-vagueness challenge to this provision cannot stand in that the evidence adduced at trial does not show that the statute is vague in all of its applications. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 1192, 71 L.Ed.2d 322 (1982).

IT IS BY THE COURT THEREFORE ORDERED that judgment is hereby entered in favor of defendants in this case. IT IS FURTHER ORDERED that each party bear his or its own costs.

      . The vote in favor of HB 3064 was 122-1 in the House of Representatives, and 39-0 in the Senate.

      . House Bill No. 3064 provides:
      AN ACT concerning insurance; relating to certificates of insurance issued, renewed or delivered within or outside this state; amending K.S.A. 40-2, 103 and repealing the existing section.

        Be it enacted by the Legislature of the State of Kansas:

      Section 1. K.S.A. 40-2,103 is hereby amended to read as follows: 40-2,103. The requirements of K.S.A. 40-2,100, 40-2,101, 40-2,102 and 40-2,104 and amendments thereto shall apply to all insurance policies, subscriber contracts or certificates of insurance delivered, renewed or issued for delivery within or outside of this state or used within this state by or for an individual who resides or is employed in this state.

      Sec. 2. K.S.A. 40-2,103 is hereby repealed.

        Sec. 3. This act shall take effect and be in force from and after its publication in the statute book.
      Reference is made in House Bill No. 3064 which mandates the requirements of K.S.A. 40-2,100, 40-2,101, 40-2,102 and 40-2,104. Those statutes are as follows:

        K.S.A. 40-2,100

        Insurance coverage to include reimbursement or indemnity for services performed by optometrist, dentist or podiatrist. Notwithstanding any provision of any individual, group or blanket policy of accident and sickness, medical or surgical expense insurance coverage or any provision of a policy, contract, plan or agreement for medical service, issued on or after the effective date of this act, whenever such policy, contract, plan or agreement provides for reimbursement or indemnity for any service which is within the lawful scope of practice of any practitioner licensed under the healing arts act of this state, reimbursement or indemnification under such policy contract, plan or agreement shall not be denied when such services are performed by an optometrist, dentist or podiatrist acting within the lawful scope of their license.

        History: L.1973, ch. 194, § 1; July 1.

        K.S.A. 40-2,101

        No policies, contracts or agreements for medical service shall deny reimbursement or indemnification for any service within scope of practice licensed under Kansas healing arts act. Notwithstanding any provision of any individual, group or blanket policy of accident and sickness, medical or surgical expense insurance coverage or any provision of a policy, contract, plan or agreement for medical service, issued on or after the effective date of this act, whenever such policy, contract, plan or agreement provides for reimbursement or indemnity for any service which is within the lawful scope of practice of any practitioner licensed under the Kansas healing arts act, reimbursement or indemnification under such policy contract, plan or agreement shall not be denied when such service is rendered by any such licensed practitioner within the lawful scope of his license.

        History: L.1973, ch. 195, § 1; July 1.

        K.S.A. 40-2,102

        Insurance coverage for newly born children; notification of birth. All individual and group health insurance policies providing coverage on an expense incurred basis and individual and group service or indemnity type contracts issued by a profit or nonprofit corporation which provides coverage for a family member of the insured or subscriber shall, as to such family members’ coverage, also provide that the health insurance benefits applicable for children shall be payable with respect to a newly born child of the insured or subscriber from the moment of birth.
      The coverage for newly born children shall consist of coverage of injury or sickness including the necessary care and treatment of medically diagnosed congenital defects and birth abnormalities.
      If payment of a specific premium or subscription fee is required to provide coverage for a child, the policy or contract may require that notification of birth of a newly born child and payment of the required premium or fees must be furnished to the insurer or nonprofit service or indemnity corporation within thirty-one (31) days after the date of birth in order to have the coverage continue beyond such thirty-one day period.

        History: L.1974, ch. 190, § 4; July 1.

        K.S.A. 49-0-2,104

        Insurance coverage to include reimbursement for services performed by certified psychologist. Notwithstanding any provision of an individual or group policy or contract of health and accident insurance, delivered within the state whenever such policy or contract shall provide for reimbursement for any service within the lawful scope of practice of a duly certified psychologist within the state of Kansas, the insured, or any other person covered by the policy or contract shall be allowed and entitled to reimbursement for such service irrespective of whether it was provided or performed by a duly licensed physician or a duly certified psychologist.

        History: L.1974, ch. 189, § 1; July 1.

      . Defendant Bell stipulates that HB 3064 does not apply to "self-funded” employee welfare benefit plans defined and qualified under ERI-SA.

      . HB 3064 applies K.S.A. 40-2,100, 40-2,101, 40-2,102 and 40-2,104 to insurance policies, subscriber contracts or certificate of insurance “delivered, renewed or issued for delivery within or outside of this state or used within this state by or for an individual who resides or is employed in this state.” (Emphasis added.)


source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    Reuben PALMER, et al., Subclass A Plaintiffs, and Edward Negron, et al., Subclass B Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.
    No. 82 C 2349.
    United States District Court, N.D. Illinois, E.D.
    Nov. 7, 1984.
    Michael E. Deutsch, G. Flint Taylor, Jeffrey H. Haas, Chicago, 111., for plaintiffs.
    Jeremiah Marsh, Wm. Carlisle Herbert, James D. Ossyra, Hopkins & Sutter, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

On November 18, 1983 (in the “Opinion,” 576 F.Supp. 252) this Court determined plaintiffs were entitled under 42 U.S.C. § 1988 (“Section 1988”) to interim attorneys’ fees of $116,980.20, an amount later reduced (by a December 28 oral bench ruling) to $112,606.20. In response to this Court’s invitation for the parties’ submissions as to the proper time for payment, the City of Chicago (“City”) opposes immediate payment, claiming:

1. Interim fee payments may be ordered only where a defendant’s liability on the merits is clearly established after full litigation. Here the case has reached only the stage of a preliminary injunction (ordered by this Court at 562 F.Supp. 1067), now on appeal.
2. If plaintiffs lose that pending appeal, they will no longer be prevailing parties and thus no longer entitled to attorneys’ fees.
3. Immediate payment is barred by the consent decree in Evans v. City of Chicago, No. 77 C 4119 and Baylark v. City of Chicago, No. 79 C 1939 (N.D.Ill. May 31, 1984) (“Evans-Baylark ”).
4. Plaintiffs’ fees award is unenforceable absent a determination under Fed.R. Civ.P. (“Rule”) 54(b), and no such determination should be made under the circumstances of this ease.

For the reasons stated in this memorandum opinion and order, this Court finds none of City’s objections persuasive and therefore orders immediate payment.

Proper Grounds for Objection

City’s first two objections are really a back-door effort to obtain reconsideration of the Opinion. Each was disposed of when this Court expressly determined (576 F.Supp. at 253-54) plaintiffs were prevailing parties and were entitled to attorneys’ fees regardless of the outcome of the current appeal or the rest of the litigation. There is no need to repeat that analysis. This opinion therefore restricts its discussion to:

1. whether immediate payment is barred by Evans-Baylark; and
2. whether a determination under Rule 54(b) is a prerequisite to an order for immediate payment.

Nonapplicability of Evans-Baylark

Evans-Baylark has determined the sequence to be followed in payment of tort judgments against City. It contains a provision for attorneys’ fees to be paid along with the judgments themselves, but Judge Grady has specified that provision applies only to attorneys’ fees awarded in conjunction with damage awards, adding (Decree 1.2 n. *):

However, in cases which do not involve claims for money damages, such as cases where only injunctive or declaratory relief is sought, payment of a fee award out of sequence would not result in a preference of the attorney over the client. While this court assumes that for purposes of simplicity and uniformity attorneys fees awards in cases not involving money damages will ordinarily be paid in the same sequential order established in this decree for tort judgments, we nonetheless recognize that another court may in its discretion order current or immediate payment of attorneys fees in non-money damage cases in appropriate circumstances.

This action falls squarely within that last clause. It plainly presents an “appropriate circumstance” for immediate payment. As the Opinion reflects, the fees awarded by this Court were earned in pursuit of injunctive relief rather than money damages, and thus there is no question of favoring lawyer over client.

Most importantly, immediate payment will fulfill the purpose of Section 1988: to encourage — and indeed in this case actually enable — private enforcement of civil rights. Lynch v. City of Milwaukee, 747 F.2d 423, 426 (7th Cir.1984), quoting earlier opinions by our Court of Appeals. Where as here the fee award is consequent on plaintiffs’ having obtained injunctive relief in vindication of constitutional rights, the Supreme Court’s language in Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (though spoken of actions under Title II of the Civil Rights Act of 1964) has special force:

If [a plaintiff] obtains an injunction, he does so not for himself alone but also as a “private attorney general,” vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts.

And the same principles should apply in determining the time for, as well as the right to, interim payment of fees. As the Opinion said (576 F.Supp. at 254):

Plaintiffs invoke Hensley’s [v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ] fee determination principles to obtain current payment of the amount below which their fee award will not fall even under the worst possible scenario. Because plaintiffs will receive at least that amount in the end, they ask it be awarded now. Their position is unassailable. Plaintiffs are “prevailing” and have engaged in successful efforts for which they will inevitably be compensated. Their attorneys have spent hundreds of hours on the case without pay, and it may be years before a final evaluation of their success in every phase of the case can be made. Moreover Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980) (per curiam) expressly authorizes fee awards pendente lite.

If Hanrahan’s sanction of “the award of counsel fees pendent lite” (446 U.S. at 757, 100 S.Ct. at 1989) and “the interim award of counsel fees” (id. at 758, 100 S.Ct. at 1989) were to mean merely a declaration of future rights and not a right to immediate compensation, it would be an empty promise. That kind of purposelessness cannot be ascribed to Congress or to the Supreme Court.

Nature of Order for Immediate Payment

City cites the rule that a judgment may not be executed upon unless it is final (International Controls Corp. v. Vesco, 535 F.2d 742, 744-45 (2d Cir.1976)) and suggests this Court must therefore certify any payment order under Rule 54(b). But Mulay Plastics, Inc. v. Grand Trunk Western Railroad Co., 742 F.2d 369, 371 (7th Cir.1984) teaches Rule 54(b) applies only to judgments or orders relating to “substantive claims” in the complaint. Section 1988 attorneys’ fees awards are collateral to and “uniquely separable” from the merits (White v. New Hampshire Department of Employment Security, 455 U.S. 445, 452, 102 S.Ct. 1162, 1166, 71 L.Ed.2d 325 (1982)) and are therefore not subject to certification under Rule 54(b). Mulay, 742 F.2d at 371; Cheng v. GAF Corp., 713 F.2d 886, 888-89 (2d Cir.1983); Swanson v. American Consumer Industries, Inc., 517 F.2d 555, 560-61 (7th Cir. 1975). Thus the “finality” of an attorneys’ fee award under Section 1988 (including perhaps Cohen “finality,” see n. 6) is to be determined solely under 28 U.S.C. § 1291 (“Section 1291”).

Because of the apparent confusion in City’s memorandum in these respects, this Court wants to make it plain today’s order is immediately effective and the fees are payable now. To that end some brief discussion of the distinction between an order and a final judgment may be in order.

Rule 54(a) defines “judgment” for purposes of the Rules as “a decree” or “any order from which an appeal lies.” With courts of equity no longer separate from courts of law, “decrees” are not distinguished from appealable orders for purposes of that definition. Appealable orders for Rule 54(a) purposes fall into two categories:

1. “final decision[s]” from which an appeal is permitted under Section 1291 and
2. interlocutory orders appealable under 28 U.S.C. § 1292 (“Section 1292”).

10 Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 2651, at 9 (1983).

Interim attorneys’ fees awards are clearly not among the interlocutory orders enumerated in Section 1292. Yakowicz v. Commonwealth of Pennsylvania, 683 F.2d 778, 782 n. 8 (3d Cir.1982); Hastings v. Maine-Endwell Central School District, 676 F.2d 893, 896 (2d Cir.1982). They may also not be “final decisions” for purposes of Section 1291 because of the prospect of an additional attorneys’ fees award after final disposition of the case. Hastings, 676 F.2d at 895-96; Yakowicz, 683 F.2d at 782. Accordingly the interim fee payment ordered by this Court today may not (unless the Cohen doctrine applies, see n. 6) be an appealable “final decision.” That however does not preclude its full enforceability: It is after all a court order, with which parties litigant are bound to comply.

This Court unquestionably has jurisdiction under Section 1988, as interpreted by Hanrahan, 446 U.S. at 757-58, 100 S.Ct. at 1989-90, to order the payment of attorneys’ fees pendente lite. And Mulay makes plain that any nonappealability of such an order does not prevent its current enforcement.

Mulay was a consolidated appeal from two pendente lite awards:

1. an award by this Court of sanctions for failing to produce relevant evidence in connection with a summary judgment motion (102 F.R.D. 130, 133-35); and
2. an award by Judge Prentice Marshall of attorneys’ fees and expenses on a motion to compel discovery.

In the course of ruling both awards non-appealable, our Court of Appeals recognized they were immediately enforceable (742 F.2d at 370). It said immediate payment of sanctions would not inflict irreparable harm on the party charged. Id. If the sanctions award were overturned on appeal at some point in the future, the money would simply be repaid to the party charged. In conceptual legal terms the current award of attorneys’ fees is indistinguishable from the Mulay awards; and if the magnitude of the amount and the identity of the payees bring Cohen considerations into play (see n. 6), that is for the Court of Appeals to determine.

It should again be emphasized this order for current payment of interim attorneys’ fees poses no unfairness to City. As the Opinion (576 F.Supp. at 255) makes abundantly clear, City’s own acknowledgements before this Court and (on its current appeal) before the Court of Appeals show the current conservative award — containing no multiplier — represents the lowest fee award to which plaintiffs could be entitled even on a “worst case” scenario as to what remains in the litigation.

Conclusion

Immediate payment of interim attorneys’ fees is both appropriate and necessary to fulfill the purpose of Section 1988. Neither Evans-Baylark nor the “final judgment” rule poses an obstacle to an order for immediate payment. City is therefore ordered to pay plaintiffs $112,606.20 as attorneys’ fees pendente lite on or before November 19, 1984.

      . That reduction was the result of the parties’ and this Court’s having addressed the issues referred to in the Appendix to the Opinion, 576 F.Supp. at 256-57. As both the Opinion (id. at 256) and the later oral bench ruling made plain, the $ 112,000-odd amount (calculated as the time spent multiplied by the regular hourly rate, without any further multiplier) represents a floor on recovery for the services involved (any consideration of a “negative multiplier" — really a discount — would be inappropriate under the relevant criteria, see Lynch v. City of Milwaukee, 747 F.2d 423 (7th Cir.1984)).
      After disposition of the ultimate merits of this action, the ultimate fee award for all services by plaintiffs’ lawyers (including any possible application of a multiplier) will be determined.

      . That provision was a modification inserted into Evans-Baylark in direct response to the question posed by this case (at this Court’s direction, the litigants here had appeared before Judge Grady to raise the issue in connection with the then-pending proposed decree in his Evans and Baylark class actions).

      . City’s attempt to categorize the fee award here as pursuant to a money judgment, simply because of the possibility some individual plaintiffs may later seek money damages, is not even specious. All anyone need do to reject that characterization is to read the Opinion. Moreover this Court has made plain throughout the litigation that it does not view this action (as contrasted with separate individual lawsuits) as the proper vehicle for advancing any such individual damage claims.

      . Indeed that same view of the civil rights plaintiff as "private attorney general” has just been voiced by our Court of Appeals as the predicate for upholding a fees award because the "amount of monetary recovery is not as significant as the policy being vindicated.” Lynch, 747 F.2d at 431-32. Although the amount of the award is not at issue in this opinion (having been resolved in the Opinion), the principle just reconfirmed in Lynch strongly buttresses the propriety of the substantial award approved by this Court for plaintiffs' having forced defendants to protect the plaintiff classes’ constitutional rights.

      . To read Evans-Baylark as barring immediate payment would pose serious Supremacy Clause questions. Evans-Baylark deals with restrictions created by state law on the enforceability of judgments. Both because the rights vindicated by plaintiffs here are federal constitutional rights and because Congress has created (and federal courts are bound to implement) the policy for fee-shifting under Section 1988 in such cases, such state-law-created limitations cannot stand in the way of the implementation of Constitution and Section 1988. Spain v. Mountanos, 690 F.2d 742, 745-46 (9th Cir.1982); Collins
        v. Thomas, 649 F.2d 1203, 1206 (5th Cir.1981); LaRaza Unida v. Volpe, 545 F.Supp. 36, 38-39 (N.D.Cal.1982); Strama v. Peterson, 537 F.Supp. 668, 671, 670 (N.D.Ill.1982).

      . This Court is not called upon to opine whether the factual matrix here is sufficiently different from that in Mulay to bring the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949) into play (see 742 F.2d at 370). Indeed any such expression of opinion would be nothing more than advisory and hence impermissible.

      . Cases cited by City Mem. 7-8 (filed Oct. 9, 1984) as to the “final judgment” rule and enforceability are inapposite. Each involved a judgment on the merits, not a collateral order such as that presented here. This Court’s spontaneous oral expression of concern in this area when it first identified the problem for the parties (Dec. 28, 1983 Tr. 4) was of course given without the benefit of the research and in-depth analysis reflected in this opinion.


author: JAMES T. FOLEY, Senior District Judge.

text:
    Gerald Abdul WALI, 81-A-5803; LeMoine Arrington, 81-B-981; Kuwasi Balagoon, 83-A-6216; Abdul Reyah, 79-A-137; Theodore Churakos, 82-C-889; Carlos Cortes, 80-B-523; Charles Culhane, 67-A-0065; Frederick Curl, 77-C-687; Kasiem Dodell, 83-A-783; Mujahid Farid, 79-A-0362; Raymond Fernandez, 81-A-2686; Ronald Fox, 82-A-2445; Carlos Gonzalez, 76-A-2277; Charles L. Harris, 81-C-470; Kenneth Johnson, 79-C-575; Jory Lowrence, 77-A-3323; Anthony McBayne, 79-B-1261; Edward McCleary, 80-B-1598; Kelvin Richardson, 80-A-3080; Lamarr Rowell, 81-C-738; Sonny Viele, 77-C-95; David Sealey, 81-A-4099; Jose Vazquez, 77-A-4295; and Albert Washington, 77-A-1528, Plaintiffs, v. Thomas A. COUGHLIN, III, Commissioner, Department of the New York State Department of Correctional Services; and Harold J. Smith, Superintendent of the Attica Correctional Facility, in their official and individual capacities, Defendants.
    No. 84-CV-379.
    United States District Court, N.D. New York.
    Nov. 8, 1984.

      Prisoners’ Legal Services of New York, Buffalo, N.Y., for plaintiffs; Ellen M. Yacknin, Joseph Kelemen, Buffalo, N.Y., David C. Leven, Executive Director, New York City, of counsel.
    Jill Paperno, on the pleading.
    Robert Abrams, Atty. Gen. of the State of New York, N.Y.S. Dept, of Law, Albany, N.Y., for defendants; David B. Roberts, Asst. Atty. Gen., Albany, N.Y., of counsel.
   MEMORANDUM-DECISION and ORDER

JAMES T. FOLEY, Senior District Judge.

The motion for a preliminary injunction in this action under 42 U.S.C. § 1983 asserting deprivation of federal constitutional rights has undergone lengthy processing and prolonged consideration. The twenty-four plaintiffs are or were inmates of several New York Correctional facilities. The issue presented is important but narrow and not factually complex. The preliminary injunction is sought due to the denial of defendant Commissioner Coughlin to permit plaintiffs to receive, while inmates and when requested, copies of a thirty-page document entitled “Attica: A Report on Conditions, 1983”, authored, as noted on the cover page, by the named staff of the Buffalo Office, Prisoner Legal Services of New York. The dispute concerning the grant or denial of this preliminary injunction has become intense with resultant hostile attitudes and voluminous tit-for-tat submissions that are never helpful to efficient court consideration and disposition. The attorneys should always be conscious of the responsibilities of both sides in prisoner litigation of this kind; the need to maintain to the degree humanly possible the security of state correctional facilities, balancing the established rights of inmates therein to limited federal constitutional privileges. Mutual courtesy, understanding, and cooperation by the legal representatives of the parties advances the interests of justice. Any disposition to treat the legal adversary as an enemy should be avoided.

In accord with our procedures, the motion for a preliminary injunction was made returnable before Magistrate Ralph W. Smith, Jr., in Albany. In response, Assistant Attorney General Roberts filed a Notice of Motion and a Cross-Motion. The plaintiffs then countered with a separate Cross-Motion. This unusual array of motions, and the relief sought by them, are detailed in my memorandum-decision and order of June 20, 1984, such being described as an avalanche of papers. The Magistrate heard oral argument on the motions, and filed his Order and Report-Recommendation dated April 27, 1984. The Magistrate denied the motion of the defendants to disqualify the Prisoners’ Legal Services as counsel for the plaintiffs, but without prejudice to renewal if a trial is held on the merits in the district court. The separate Cross-Motion of the plaintiffs to strike specific portions of defendants’ affidavits alleging involvement of the Prisoners’ Legal Services of New York in the general strike of inmates that occurred at Attica Correctional Facility in September 1983 was denied. Finally, the Magistrate recommended that the motion of plaintiffs for a preliminary injunction be denied.

The recommendation to deny the initial plaintiffs’ motion for a preliminary injunction was not accepted for the reasons stated in my memorandum-decision and order of June 20, 1984. My reasoning was that an evidentiary hearing before the Magistrate was essential to evaluate properly such recommendation. The motion for a preliminary injunction was remanded to the Magistrate for an expedited evidentiary hearing. The denial of the defendants’ motion to disqualify Prisoners’ Legal Services as attorneys for the plaintiffs was accepted but was modified to be with prejudice instead of without prejudice to renew. The denial of plaintiffs’ motion to strike portions of the submission of the defendants charging involvement of members of Prisoners’ Legal Services in fostering the September 1983 general strike of Attica inmates was set aside as clearly erroneous. The plaintiffs’ motion to strike such material was granted on the stated ground that in my judgment such allegations were not germane or relevant to the First Amendment content issue of a publication raised by the complaint.

The evidentiary hearing was held by the Magistrate on August 14 and 15, 1984. The Magistrate then filed an eight-page Report-Recommendation dated September 7, 1984. The Magistrate recommended that the defendants be preliminarily enjoined from refusing to allow plaintiffs to receive copies of the Attica Report in issue. Objections to the Report-Recommendation were filed in the Clerk’s office by the defendants on September 24, 1984. The plaintiffs filed a Response to the defendants objections on October 2, 1984. Finally, to cap it all off, although stating that he hesitated to add to the large volume of paper which has been generated in this matter, Assistant Attorney General Roberts submitted a reply affidavit for the defendants in reply to the plaintiffs’ response to the defendants’ objections, such being filed in the Clerk’s office on October 11, 1984. At the time of these filings, the evidentiary hearing record made before the Magistrate had not been transcribed. Again there was serious disagreement among the attorneys not only as to certain testimony given at the evidentiary hearing, but also concerning the arrangements to be made for securing copies of the transcript. Because of the disputes, I have waited for the transcript and it was delivered to my Chambers on October 26, 1984. The transcript settles at least one disagreement. It shows that the line of questioning concerning invocation of the Fifth Amendment privilege by an inmate witness was not pursued by defense counsel. (Tr. p. 29). I have read through the 236 pages.

In his Report-Recommendation the Magistrate made eight explicit findings of fact. After review of the record my determination is that these findings of fact are fully supported by the testimony produced and exhibits received at the evidentiary hearing. Such findings are wholly accepted. 28 U.S.C. § 636(b)(1)(B). It may be helpful to appellate review to set forth these factual findings of the Magistrate:

(1) The Attica Report prepared by PLS is based primarily on information obtained from inmates therein.
(2) Copies of this report were requested by and denied to plaintiffs based on a decision ultimately and personally made by defendant Coughlin.
(3) Other reports, news articles, and court decisions critical of prison conditions and based at least in part on inmate sources have been received by inmates in various New York State prisons, including Attica, without demonstrable adverse effect on security interests.
(4) The Attica Report is no more critical of prison conditions and administration than earlier reports and articles which inmates have been permitted to receive.
(5) Defendant Coughlin’s decision not to permit introduction of this report was based at least in part upon his perception that PLS or persons somehow associated with PLS were in some fashion involved in the organization of the inmate strike in September 1983.
(6) Defendant Coughlin did not apply guidelines as contained in Department of Correctional Services Directive No. 4572 dated 3/2/79 or any other formal guidelines in deciding not to permit introduction of the Attica Report into state prisons.
(7) The Attica Report does not violate guideline 6 or 9 or any guideline contained within the said directive.
(8) Defendant Coughlin’s public reaction to the Attica Report is not unlike his reaction to earlier reports.

The testimony of Commissioner Coughlin is lengthy and interesting. No one doubts that he faces daily the most serious problems that can arise in the human relationship. As noted in my previous memorandum, Chief Justice Burger commented that solutions of these problems will never be simple and easy, but the constitutional protection that inmates are entitled to must be respected. Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 137, 97 S.Ct. 2532, 2543, 53 L.Ed.2d 629 (1977). At the evidentiary hearing the Commissioner’s condemnation of the Attica Report was made in blunt and strong language with emphasis that a serious factor among others for his determination was the information he had that Prisoners’ Legal Services was involved in the organization of the September 1983 strike. (Tr. 59-66, 73-76). However, his testimony also gives strong support to the finding of the Magistrate that his denial to allow the Attica Report to be sent to inmates upon request to Prisoners’ Legal Services was personal and without any formal application of the guidelines and procedures in Directive No. 4572 relating to receipt and review of literature and related materials to inmates. (Tr. 59, 113, 214, 215). The Commissioner stated that he applied no written guidelines, only unwritten guidelines to the Attica Report consideration, and the Attica Report is the only one that he was ever personally involved with. (Tr. 155, 158). He testified he felt very strongly that the Attica Report presented a clear and present danger, and was full, as far as he was concerned, of inflammatory remarks, with mere allegations stated as facts and no balance to so explain. (Tr. 59).

The record is replete with support for the Magistrate’s finding that other critical reports, news articles and court decisions, no more critical than the Attica Report, were permitted to be received and read by Attica inmates. (Tr. 175-195, 205-214). In fact, as noted in my previous memorandum, the Attica Report received widespread publicity by holding of press conferences by the Prisoners’ Legal Services in major cities of New York that undoubtedly was carried by the media into Attica and other New York prisons. (Tr. 136). The Commissioner admitted that there is nothing in the Attica Report that advocates the formation of a prisoners’ union, a work stoppage, disobedience to prison rules, or to go out and break the law. (Tr. 175). The Commissioner admitted also that he could not link any Reports admitted into the New York facilities to any disturbances that have occurred in the New York prison system. (Tr. 187-188). His comparison of the Attica Report with other Reports permitted to be received by inmates is that the other Reports were written in a professional and reasonable manner, and were constructive and not inflammatory. (Tr. 77). In my judgment, an unbiased reading of the Attica Report, as the Magistrate found, indicates fairly that the information and criticisms came from the Attica inmates with whom Prisoners’ Legal Services have continuous contact. From my reading of the Attica Report, I find that it contains criticisms and complaints about Attica living conditions, and inmate-correction officer conflicts and problems that are found often in the numerous state prisoner civil rights complaints filed in this federal court and discussed in published federal court opinions. The Commissioner can always resort to holding press conferences and issue press releases, as he has in the past, whenever he believes any Reports are unfair, unbalanced and their criticisms unfounded. (Tr. 184-187).

Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Procunier v. Martinez, 416 U.S. 396, 413-414, 94 S.Ct. 1800, 1811-1812, 40 L.Ed.2d 224 (1974). The criteria and standards for the justification of censorship of prisoner mail are set forth clearly and specifically in Procunier, supra, at p. 418, 94 S.Ct. at p. 1811. Although counsel for the defendants disagree, in my judgment those standards are still viable and applicable to this situation and by no means can be considered old and discredited. However, on the record made before the Magistrate, I agree with his reasoning that the plaintiffs are entitled to prevail at this stage, and the result is the same as to whether the burden of showing detriment to penological objectives is placed upon the defendants under Procunier or upon the plaintiffs under Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). There are substantial differences between the factual situations in Procunier and in Jones.

There is substantial evidence in the record to conclude there was exaggerated response to a security problem made without any consideration or application of the guidelines and procedures promulgated in Directive No. 4572. See Jones v. North Carolina Prisoners’ Labor Union, Inc., supra, 433 U.S. at 128, 97 S.Ct. at 2539; Aziz v. LeFevre, 642 F.2d 1109, 1112-1113 (2d Cir.1981) (Meskill, C.J., concurring); Jackson v. Ward, 458 F.Supp. 546 (W.D.N.Y.1978). In accord with repeated cautions by the United States Supreme Court, deference to the broad discretionary authority of prison administrators in the discharge of their important responsibilities has always been kept in mind in the consideration of problems of this kind. See Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983); Frazier v. Ward, 426 F.Supp. 1354, 1357, 1359 (N.D.N.Y.1977).

In the objections to the last Report-Recommendation by the Magistrate, Assistant Attorney General Roberts urges that my previous ruling that struck portions of the defendants’ submission to the Magistrate, alleging involvement of Prisoners’ Legal Services in the Attica strike of September 1983, precluded important key evidence from being presented at the hearing for consideration of the Magistrate. The objection in this regard states that the Commissioner’s decision to deny entry of the Attica Report into the facilities was based “in large measure” upon the “apparent involvement” of Prisoners’ Legal Services in the September 1983 Attica strike. At the hearing the Commissioner elaborated upon his suspicion and made the charges even more serious. (Tr. 157, 214-219, 231-232, and Def.Ex.A). As I stated in my memorandum of June 20, 1984, 1 do not minimize the seriousness of such charges, but I remain firm in my conviction they are not germane or relevant to the narrow First Amendment content issue of a publication presented here. The objections offer for the first time as a very analogous decision, Vodicka v. Phelps, 624 F.2d 569, 574 (5th Cir.1980) and as closely analogous Pittman v. Hutto, 594 F.2d 407 (4th Cir.1979). From my reading, there are substantial and significant factual differences from this situation. It is noteworthy that in both cases Procunier, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) was discussed and credited as an applicable authority.

The Report-Recommendation dated September 7, 1984 is accepted and adopted. The loss of the First Amendment rights establishes irreparable harm. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976); Fortune Society v. McGinnis, 319 F.Supp. 901, 903 (S.D. N.Y.1970). The other essential element of likelihood of success under settled Second Circuit standards is sufficiently demonstrated. Mattel, Inc. v. Azrak-Hamway International, Inc., 724 F.2d 357, 359 (2d Cir.1983); Sperry International Trade, Inc. v. Government of Israel, 670 F.2d 8, 11 (2d Cir.1982); Hamilton Watch Co. v. Benrus Watch Co., Inc., 206 F.2d 738, 740 (2d Cir.1953).

The preliminary injunction hereby issues. The defendants are hereby enjoined from refusing to allow plaintiffs, and other inmates of New York Correctional Facilities, from receiving upon request to the Prisoners’ Legal Services of New York copies of “Attica: A Report on Conditions, 1983”.

The defendants in their objections request a stay of the above preliminary injunction if granted. As is my custom, the stay of the above preliminary injunction is granted only for a ten-day period from the date of this memorandum-decision and order that shall be delivered to the office of the Attorney General in Albany as of its date. This time period is allowed to afford to the defendants reasonable opportunity for the filing of a Notice of Appeal and a request for an additional stay to the Court of Appeals, Second Circuit. See F.R. App.P. 8(a).

It is so Ordered.


author: GONZALEZ, District Judge.

text:
    Lawrence J. FERRARA, Plaintiff, v. Thomas J. MILLS, individually and as Superintendent of Schools for Palm Beach County, Florida; John Munroe, individually and as former Principal of John I. Leonard High School; and Luke Thornton, individually and as Principal of John I. Leonard High School, Defendants.
    No. 82-8329-CIV.
    United States District Court, S.D. Florida, N.D.
    Nov. 14, 1984.

      I. Jeffrey Pheterson, Lake Worth, Fla., for plaintiff.
    Richard Oftedal, West Palm Beach, Fla., for defendants.
   ORDER OF DISMISSAL

GONZALEZ, District Judge.

I.

IN THIS ACTION plaintiff Lawrence J. Ferrara alleges that his former superiors at John I. Leonard High School and the Palm Beach County School Board violated his constitutional rights by changing his class assignments and hours in retaliation for plaintiffs outspoken criticism of school policy.

Subject-matter jurisdiction is premised on 28 U.S.C. § 1343(3) and the first and fourteenth amendments to the United States Constitution. Appended to plaintiffs federal questions is a tort claim for intentional infliction of emotional distress. The doctrine of pendent jurisdiction makes possible this court’s review of that state claim. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

The controlling question before the court is whether the subject speech concerns internal school administration or is more appropriately characterized as a matter of public concern. Defendants have moved for summary judgment on this issue, and the court now reviews the question because “[t]he inquiry into the protected status of speech is one of law, not fact.” Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 1690 n. 7, 75 L.Ed.2d 708 (1983).

In reviewing defendants’ motion for summary judgment, the court is mindful that the movants bear the exacting burden of demonstrating that there is no genuine dispute as to any material fact in the case, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); the evidence is reviewed in the light most favorable to the nonmovant. Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983).

II.

When Lawrence J. Ferrara began working for John I. Leonard High School (“Leonard High School”) in 1965, he was assigned to teach eleventh grade American history classes. By the 1980-1981 school year, Mr. Ferrara was teaching four eleventh grade American history classes and one twelfth grade political science course. During this period, Mr. Ferrara was able to work the school shift he desired, 6:45 a.m. to 2:15 p.m.

In January 1980, Mr. Ferrara was compelled to speak out against certain administrative policies at Leonard High School, including collegiate registration and the courses to which he and others had been assigned to teach during the 1981-1982 school year. As explained in his amended complaint, “[cjollegiate registration allows high school students to choose their subjects and teachers. Plaintiff believed that this policy allowed cliques to concentrate in certain classes and add to the normal disciplinary problems.” Amended Complaint H 9 (filed May 5, 1983). As for course assignments, plaintiff wanted to teach advanced placement history, and furthermore objected to the school’s hiring of physical education coaches to fill several vacancies in the social studies department.

Mr. Ferrara submits that he has voiced his concern over collegiate registration with “many others in the school community,” Amended Complaint 119, and personally informed defendant John Monroe, former Principal of Leonard High School, that the use of athletic coaches as social studies teachers contributed to “civil illiteracy.” Id. ¶ 10.

Curiously, Mr. Ferrara also avers that during 1980 he often called various radio talk shows and spoke out on a variety of subjects. No mention is made of the content of these discussions, and thus their relevance is dubious. No doubt Mr. Ferrara would have the court believe that he pontificated on school and Board policy when he called these programs.

Sometime toward the end of the 1980-1981 school year, then-Principal Munroe assigned Mr. Ferrara to teach elective (i.e., less prestigious) classes to ninth and tenth (rather than eleventh and twelfth) graders during the 9:45 a.m. to 5:15 p.m. (rather than the 6:45 a.m. to 2:15 p.m.) shift. Mr. Ferrara maintains that these undesirable assignments are the direct result of his criticism of school policy.

Although Mr. Ferrara fulfilled his assigned tasks during the first half of the 1981-1982 school year, he did request that defendant Luke Thornton (who replaced Mr. Munroe as Principal of Leonard High School) reinstate him to his original class assignment and time schedule for the second term. Mr. Thornton denied this request. Mr. Ferrara repeated his demands at the beginning of the next school term to Mr. Thornton, Mr. Monroe (who had become an Area Superintendent for the Palm Beach County School System) and defendant Thomas Mills, who served as the Superintendent of Schools for Palm Beach County. When his request was again denied before the start of the second term of the 1981-1982 school year, Mr. Ferrara claims he was overcome by severe headaches, psoriasis, insomnia and other stress-related disorders, and consequently could not work for the rest of the year. Mr. Thornton’s evaluation of Mr. Ferrara’s performance during that year indicates the problems posed by the latter’s attitude.

Mr. Ferrara has a considerable amount of discipline problems. Students have difficulty understanding his approach.
Mr. Ferrara does not have an effective relationship with associates. He complains about assignments. He missed half of the year because he could not cope with stress.

Amended Complaint, Exhibit A (Palm Beach Co. Teacher Evaluation Form, dated June 8, 1982).

According to the amended complaint, the defendants’ administrative policies violated plaintiff’s constitutional rights protected under 42 U.S.C. § 1983, including his first amendment right to free speech. Defendants’ actions also allegedly caused plaintiff to suffer mental anguish and physical shock.

III.

A court deciding a claim by a public employee that his first amendment right to free speech has been violated must engage in a three step analysis. The court must determine (1) whether the plaintiff has carried the burden of demonstrating that his “speech” concerned matters of public concern and thus constitutes a protected activity, Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); (2) whether the protected activity was a substantial or motivating factor in the actions taken against the plaintiff, Mt. Healthy City School Dist. Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); and (3) whether the defendant has defeated the plaintiff’s claim by demonstrating that the same action would have been taken in the absence of the protected activity, Givhan v. Western Lines Consolidated School Dist, 439 U.S. 410, 416-17, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979).

In this case the court need only inquire into the first level of analysis. A review of the entire record convinces the court that plaintiff’s speech, while tangentially related to matters of public concern, constitutes nothing more than a series of grievances with school administrators over internal school policies. The court reaches this result after weighing the time, manner and place of the speech; the context in which the dispute arose; the degree of public interest in the speech; and the need for harmony and discipline in the school system. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 1691-92, 75 L.Ed.2d 708 (1983).

IV.

In a working environment there exists an obvious tension between an employee’s right to speak out as a citizen on work-related matters that also are of public concern and an employer’s ability to control such activities in order to manage internal affairs.

The Supreme Court of the United States addressed this very issue in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). In Connick, a disgruntled assistant district attorney circulated a questionnaire among her colleagues asking them to comment on favoritism, incompetency and political pressure that allegedly existed in their office. When the District Attorney caught Wind of the activity, he discharged the assistant, prompting her suit on first amendment grounds.

Justice White, writing for the Court, reversed the Fifth Circuit and held that the assistant prosecutor’s discharge did not violate her first amendment right to freedom of speech. This court recites relevant passages from that decision because they provide guidance in the ease at bar.

[I]f [the assistant prosecutor’s] questionnaire cannot be fairly -characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer’s dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.
We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior. Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government; this does not require a grant of immunity for employee grievances not afforded by the First Amendment to those who do not work for the state.
Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.
To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark — and certainly every criticism directed at a public official— would plant the seed of a constitutional case. While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.

Connick, 103 S.Ct. at 1689-91.

The key to this case is whether Mr. Ferrara’s speech involves matters of public concern. Mr. Ferrara points out that his comments to school administrators regarding collegiate registration and the classes to which he and others were assigned touch on matters that are uniquely of public concern: the education and well-being of our nation’s school children. Plaintiff’s memorandum in opposition to defendant’s motion for summary judgment, at 9 (filed July 25, 1984). While there no doubt is some truth to his claim, Mr. Ferrara’s comments were addressed to school administrators, and any relationship between his statements and matters of public concern appears to be purely incidental. Plaintiff’s flag-raising first amendment claims are nothing more than a smokescreen to camouflage sorted grievances with school administrators. Furthermore, Mr. Ferrara’s participation in local radio talk shows appears to be either irrelevant (because there is no credible evidence in the record to suggest that he discussed collegiate registration or class assignments on the public airways) or a self-serving attempt to create a first amendment claim “by bruiting his complaint to the world ____” Mahaffey v. Kansas Board of Regents, 562 F.Supp. 887, 890 (D.Kan.1983). Such bootstrapping is not persuasive in this case.

At what point does speech in an employment setting become a matter of public concern? Prior to its narrow interpretation of the first amendment in Connick, the Supreme Court had ruled that teachers had a constitutional right to speak out on the allocation of school funds and the need for additional revenue, Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); the need to elevate the state college system to a four-year program, Perry v. Sindermann, 408 U.S. 593, 598, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972); the school dress code as it affected public support for bond issues, Mt. Healthy City School Dish Bd. of Education v. Doyle, 429 U.S. 274, 284, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977); and racially discriminatory school policies, Givhan v. Western Line Consolidated School District, 439 U.S. 410, 414, 99 S.Ct. 693, 695, 58 L.Ed.2d 619 (1979).

In the wake of Connick, the federal courts have substantially broadened the employer’s rights to control employee speech activities that relate to his employment at the expense of first amendment freedoms. The United States District Court for the Eastern District of Kentucky explained this trend in Landrum v. Eastern Kentucky University, 578 F.Supp. 241 (E.D.Ky.1984), a case in which a professor’s discharge for circulating a “Connick” questionnaire and fomenting criticism of the administration was held not to violate the first amendment.

In frankness, the court must state that it reads Connick to narrow the scope of [Perry, Mt. Healthy and Givhan ], even though they were not expressly overruled. A careful study of all these decisions leads to the inevitable conclusion that the First Amendment in the employment context is now to be more narrowly interpreted to give greater scope to the legitimate rights of governmental entities as employers, and also to reduce the burdens on the courts caused by the burgeoning of litigation initiated by the[se] decisions____

Id. at 247.

Several cases illustrate the narrower interpretation of first amendment speech rights after Connick. In Renfroe v. Kirkpatrick, 722 F.2d 714 (11th Cir.1984), plaintiff maintained that the Superintendent of Education fired her because she had filed a grievance contesting his decision to have her share a full-time position with another teacher. According to plaintiff, she had seniority and more teaching experience and thus was entitled to the job outright. The court found plaintiff's constitutional claim to be fatally flawed, however, because she neither mentioned in her discussion with the Superintendent nor in her written grievance that her objection to job sharing was motivated in part by concern for her student's welfare, which arguably could have been a matter of public interest. Plaintiff failed to raise this latter claim until the oral presentation of her grievance to the School Board. Thus, the subject speech, in this ease plaintiff’s grievance, lacked any reference to a matter of public concern. Accordingly, the court of appeals ruled that airing claims of arguably public interest for the first time before an administrative review panel “is not sufficient to bring [such claims] within the rubric of matters of ‘public concern.’ ” Id. at 715.

Mahaffey v. Kansas Board of Regents, 562 F.Supp. 887 (D.Kan.1983), also is instructive. Plaintiff there was a university faculty member who took issue with the administration’s policy on salaries, organization and identity of his supervisors. So heated was their disagreement that plaintiff even published a student paper “that unflatteringly portrayed certain administrative decisions taken within his department.” Id. at 889. In retaliation, says plaintiff, his department head gave him a poor evaluation which ultimately resulted in a diminished appointment. The district court ruled, inter alia, that the university’s actions did not constitute an impermissible infringement of plaintiff’s right to free speech. The court considered the topics of plaintiff’s speech to be “quintessentially items' of individual, rather than public, concern____” Id. at 890.

Relying on Mahaffey and Connick, the United States District Court for the Northern District of Georgia also ruled that a teacher’s comments were not protected by the first amendment in Ballard v. Blount, 581 F.Supp. 160 (N.D.Ga.1983). The plaintiff, a professor, alleged that the university took retaliatory action against him after he complained about salaries, class assignments, hiring practices, and content and administrative procedures used to review syllabi. The court refused to characterize plaintiff’s grievances as matters of public concern, although they no doubt had some bearing on matters of public interest.

The reasoning of the Ballard court is noteworthy because it goes to the heart of the tension between employer authority and employee first amendment rights. The court recognized that virtually all speech made in and about the employment setting has some public significance. 581 F.Supp. at 164. The question is at what point does the link between the employment-related comments and matters of public concern become so tenuous as to not be deserving of absolute first amendment protection? Connick suggests that we look first to the relationship between the employee’s position and the content of his speech. We should ask whether the employee’s grievances are not more properly channeled to well-defined forums such as review committee’s or arbitrators; whether the employee would have reason to make mention of his grievances but for his employment status; how significant is the subject of the employee’s speech to the general public; and whether the subject of the employee’s speech has become a public issue because of attention from the press, politicians, public interest groups or the public at large?

Bowman v. Pulaski County Special School District, 723 F.2d 640 (8th Cir. 1983), addresses these issues. The Bowman court held that the involuntary transfer of several teachers following their administration of and public comments about corporal punishment violated the teachers right to free speech because the issue was one of public concern. The teacher’s use of corporal punishment drew a considerable amount of press coverage and caused turmoil in the community.

In contrast to Bowman, the record in the instant case is conspicuously lacking substantial evidence that Mr. Ferrara’s “crusade” was embraced by the community at large. Plaintiff offers one newspaper clipping from the Washington Times (May 5, 1983) as proof that his grievances had some public import. This certainly is inconclusive because out-of-state coverage of Mr. Ferrara’s story does not demonstrate that plaintiff’s comments are of interest to his community. Furthermore, press coverage of Mr. Ferrara’s discharge is not the same as coverage of the issues about which he spoke. Press coverage of this latter variety is significant because it indicates that a person’s comments are of concern to members of his community, too.

To this end, Mr. Ferrara also submits articles from the Palm Beach Post and the Miami Herald which address student “illiteracy” and teachers working in fields in which they are not certified. Neither of these articles is relevant, for they appeared in December 1983, several years after Mr. Ferrara had begun complaining about collegiate registration and class assignments, and long after he had stopped teaching. The relevant inquiry is whether the subject of Mr. Ferrara’s speeches were matters of public concern at the time he made the comments. No credible evidence of any kind exists to suggest that such was the case.

McGee v. South Pemiscot School District R-V, 712 F.2d 339 (8th Cir.1983), provides some perspective on the nature and timing of comments that are found worthy of first amendment protection. The subject of concern in McGee was the school board’s decision to discontinue junior high school track, which became an issue in the campaign for the board that year. Trouble began when the only newspaper in the county published a letter from several school board members in which they attempted to justify their decision to end the track program. In their letter, the board members stated that John McGee, a popular teacher and track coach at one junior high school, had supported the decision. Several days later, the paper published a letter from McGee renouncing the board’s decision. After the election, the school board voted not to renew Mr. McGee’s teaching contract.

Mr. McGee subsequently filed suit against the school board under 42 U.S.C. § 1983, charging that it had violated his constitutional rights by failing to rehire him because he had exercised his first amendment right to freedom of speech. The court of appeals reversed the district court’s decision granting the board’s motion for a judgment non obstante veredicto and a conditional new trial, reasoning that the subject of plaintiff’s letter was a matter of public concern and finding substantial evidence in the record to support the jury's conclusion that the board did not renew Mr. McGee’s contract because of his public comments.

McGee demonstrates how an issue as parochial as the funding of a school track program can become a matter of public concern. The only newspaper in the county published articles about the issue; members of the community had circulated a petition addressing the subject; the board’s decision was a substantial campaign issue; and the subject of Mr. McGee’s remarks was a volatile campaign issue at the time he made them.

By way of comparison with plaintiff’s protected speech in McGee, Mr. Ferrara’s comments in this case arose in the context of a dispute with school administrators over matters that were of unique concern only to Mr. Ferrara. This stands in sharp contrast with the circumstances surrounding plaintiff’s remarks in Bowman and McGee, which arose in the context of a then-current public debate over the issues of corporal punishment and school funding, respectively.

On balance, then, there being no genuine dispute as to any material fact, the court finds that Mr. Ferrara’s speech did not involve matters of public concern and thus is not protected by the first amendment to the United States Constitution.

Lacking an independent basis for federal jurisdiction now that plaintiff’s constitutional claim has been dismissed, the court also dismisses Mr. Ferrara’s pendent state claim for intentional infliction of emotional distress. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). The court notes, however, that a review of Florida law indicates that the conduct of which plaintiff complains does not seem to rise to the level of outrageousness required to sustain this tort action. See, e.g., Ford Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA 1979) (creditor’s employee seeking to obtain plaintiff's address called plaintiff’s mother and told her plaintiff had been in a serious automobile accident and must be contacted by creditor).

V.

Based on the foregoing, the court grants defendants’ motion for summary judgment in all material respects.